author: WINDHORST, J.

text:
    Robert Daniel LOCKWOOD v. Stacey M. LOCKWOOD
    NO. 17-CA-644
    Court of Appeal of Louisiana, Fifth Circuit.
    September 19, 2018
    COUNSEL FOR DEFENDANT/APPELLANT, STACEY M. LOCKWOOD, Robert T. Garrity, Jr., New Orleans
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
   WINDHORST, J.

Appellant, Stacey Lockwood, appeals the trial court's April 3, 2017 judgment partitioning the community of acquets and gains. For the following reasons, we affirm.

Facts and Procedural History

Stacey Lockwood and Robert Lockwood were married on January 9, 1995. Two children were born of this marriage. The parties were divorced on June 26, 2013. By judgment dated June 23, 2013, the community property regime existing between Ms. Lockwood and Mr. Lockwood was terminated retroactive to May 24, 2012. On June 13, 2014, Ms. Lockwood filed a petition to partition the community property, and sworn descriptive lists were filed by both spouses.

The trial on the partition of community property was conducted on July 7, 2016. At the conclusion of the proceedings, the trial court took the matter under advisement. On April 3, 2017, the trial court issued a written judgment, which valued and granted ownership of certain assets and liabilities to each party, denied numerous reimbursement claims, determined contempt and sanction issues, and ordered Mr. Lockwood to make an equalizing payment to Ms. Lockwood. Ms. Lockwood appeals from various aspects of the judgment partitioning the community.

Discussion

A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Snider v. La. Med. Mut. Ins. Co., 14-1964 (La. 05/05/15), 169 So.3d 319, 323, rehearing denied, 14-1964 (La. 06/30/15), 2015 La. LEXIS 1501 ; Hoffman v. Jefferson Parish Hosp. Services Dist. No. 2, 11-776 (La. App. 5 Cir. 04/10/12), 87 So.3d 370, 372, writ denied, 12-1295 (La. 09/28/12), 98 So.3d 842. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even if the appellate court may feel that its own evaluations and inferences are as reasonable. Snider, 169 So.3d at 323. Thus, the issue is not whether the trier of fact was right or wrong, but whether the trier of fact's conclusion was reasonable. Id. A court of appeal must not reweigh the evidence or substitute its own factual findings. Id.

La. R.S. 9:2801 provides for the procedure for the judicial partition of community property and settlement of claims after dissolution of the marriage. The allocation of assets and liabilities pursuant to La. R.S. 9:2801 A(4) is set forth as follows:

(4) The court shall then partition the community in accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.

A trial court has broad discretion in adjudicating issues raised by divorce and partition of the community regime. Goines v.Goines, 09-994 (La. App. 5 Cir. 03/09/11), 62 So.3d 193, 198, writ denied, 11-721 (La. 05/20/11), 63 So.3d 984. The trial court is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Id. Procedurally, a trial court partitioning community property is required to value the assets as of the time of trial on the merits. La. R.S. 9:2801 A(4)(a); Hare v. Hodgins, 586 So.2d 118, 121 (La. 1991). The termination of community property does not have the effect of freezing the value of each spouse's undivided interest in the community assets. Lupberger v. Lupberger, 00-2571 (La. App. 4 Cir. 12/05/01), 805 So.2d 264, 270, writ denied, 02-653 (La. 05/24/02), 816 So.2d 308 (citing Hare, 586 So.2d at 121 ). Each spouse continues to be a co-owner of the assets until they are partitioned and, as such, is entitled to benefit from any appreciation in their value. Id. The trial court's allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Legaux-Barrow v. Barrow, 08-530 (La. App. 5 Cir. 01/27/09), 8 So.3d 87, writ not considered, 09-447 (La. 04/13/09), 5 So.3d 152.

In her sole assignment of error, Ms. Lockwood contends that the trial court erred in not "utilizing the evidence presented in order to determine the proper partition of community property." Specifically, Ms. Lockwood argues that the trial court was manifestly erroneous in finding that: (1) her 401k plan was entirely community property; (2) she was not entitled to rental reimbursement for the months in which Mr. Lockwood resided in the community home; (3) she was not entitled to reimbursement for the loss of the value of the community home; (4) she should be granted exclusive right of use of the Honda Pilot and the 2009 Chevrolet Corvette; and (5) she should be responsible for the additional expenses related to the 2009 Chevrolet Corvette.

Ms. Lockwood's 401K plan

Ms. Lockwood contends that the trial court erred in finding that her 401K was entirely community property because her initial monetary contribution at the beginning of her 401K and the interest accumulated thereon is her separate property because it was acquired prior to her marriage to Mr. Lockwood. She argues that her initial investment of $14,110.09 is easily traceable as her separate property. Ms. Lockwood claims that an additional monetary value would also be discernable from the community property if a steady fixed interest rate of five percent (5%) over 18 years of marriage is applied. She therefore argues that her total separate property in her 401K plan would be $33,957.61.

In its written reasons, the trial court only allocated Mr. Lockwood "one-half of the community interest in the 401K Plan pursuant to a Qualified Domestic Relations Order, to be prepared by counsel for Stacey M. Lockwood in a form, and with such terms and conditions as are acceptable to the Administrator of the Plan."

Upon review of the record, we find that the judgment regarding Ms. Lockwood's 401K plan is interlocutory and thus, pretermit any discussion on this issue. La. R.S. 9:2801 B provides:

Those provisions of a domestic relations order or other judgment which partitions retirement or other deferred work benefits between former spouses shall be considered interlocutory until the domestic relations order has been granted "qualified" status from the plan administrator and/or until the judgment has been approved by the appropriate federal or state authority as being in compliance with applicable laws. Amendments to this interlocutory judgment to conform to the provisions of the plan shall be made with the consent of the parties or following a contradictory hearing by the court which granted the interlocutory judgment. The court issuing the domestic relations order or judgment shall maintain continuing jurisdiction over the subject matter and the parties until final resolution. (Emphasis added.)

The record does not establish that the Qualified Domestic Relations Order (QDRO) has been granted "qualified" status from the plan administrator or that the judgment has been approved by the appropriate federal or state authority as required. Therefore, the trial court's ruling ordering a QDRO for the 401K plan is not yet appealable. We therefore pretermit discussion of any issues concerning the parties' interest in the 401K plan.

Rental Reimbursement

Ms. Lockwood contends that the trial court erred in finding that she is not entitled to rental reimbursement for Mr. Lockwood's use and occupancy of the former community home located at 2011 Ormond Boulevard in Destrehan. She contends that the trial court: (1) evicted Mr. Lockwood from the community home; (2) ordered that Mr. Lockwood was responsible for the mortgage payments and various other payments for his use and occupancy; and (3) ordered that Ms. Lockwood was entitled to rental reimbursement in the event that Mr. Lockwood did not make the required payments on the community home. Ms. Lockwood argues that the trial court erred in finding that she was not entitled to rental reimbursement in accordance with La. R.S. 9:374 C.

When the community of acquets and gains is terminated, spouses become co-owners in indivision of the marital home. La. C.C. art. 2369.1 ; La. C.C. art. 801 ; La. C.C. art. 802 ; Philmon v. Philmon, 04-673 (La. App. 3 Cir. 11/10/04), 886 So.2d 1222, 1226. A co-owner in exclusive possession may be liable for rent, but only beginning on the date another co-owner has demanded occupancy and has been refused. Kendrick v. Kendrick, 13-1278 (La. App. 3 Cir. 04/02/14), 136 So.3d 958, 961 ; VonDrake v. Rogers, 43,546 (La. App. 2 Cir. 10/08/08), 996 So.2d 608, 610 ; Philmon, 886 So.2d at 1226 ; Sequeira v. Sequeira, 04-433 (La. App. 5 Cir. 11/30/04), 888 So.2d 1097, 1103 ; McCarroll v. McCarroll, 99-0046 (La. App. 1 Cir. 05/12/00), 767 So.2d 715, 722, writ denied, 00-2370 (La. 11/03/00), 773 So.2d 146 ; Lupberger v. Lupberger, 99-0144 (La. App. 4 Cir. 06/16/99), 738 So.2d 138, 140 ; McCarroll v. McCarroll, 96-2700 (La. 10/21/97), 701 So.2d 1280, 1290. Rental payments may not be assessed retroactively unless agreed to by the spouses or ordered by the court in the exercise of its sound and vast discretion. McCarroll, 701 So.2d at 1289.

La. R.S. 9:374 provides, in pertinent part:

A. When the family residence is the separate property of either spouse, after the filing of a petition for divorce or in conjunction therewith, the spouse who has physical custody or has been awarded temporary custody of the minor children of the marriage may petition for, and a court may award to that spouse, after a contradictory hearing, the use and occupancy of the family residence pending the partition of the community property or one hundred eighty days after termination of the marriage, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, and shall award the use and occupancy of the family residence to the spouse in accordance with the best interest of the family. The court shall consider the granting of the occupancy of the family residence in awarding spousal support.
B. When the family residence is community property or is owned by the spouses in indivision , or the spouses own community movables or immovables, after or in conjunction with the filing of a petition for divorce or for separation of property in accordance with Civil Code Article 2374, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community movables or immovables pending partition of the property or further order of the court, whichever occurs first . In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community movables or immovables to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of the family residence and the use of community movables or immovables in awarding spousal support. (Emphasis added.)
C. A spouse who, in accordance with the provisions of Subsection A or B of this Section , uses and occupies or is awarded by the court the use and occupancy of the family residence, a community immovable occupied as a residence, or a community manufactured home as defined in R.S. 9:1149.2 and occupied as a residence, regardless of whether it has been immobilized, shall not be liable to the other spouse for rental for the use and occupancy, except as hereafter provided. If the court awards use and occupancy to a spouse, it shall at that time determine whether to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to defer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy. (Emphasis added.)

It is undisputed that Ms. Lockwood willingly and voluntarily left the former family home with the two minor children. There is no showing in the record that she subsequently demanded and was refused occupancy of the family home so as to entitle her to rent. The record does not indicate that Ms. Lockwood was prevented for any reason from seeking to have a fair rental value set during the time Mr. Lockwood occupied the family home, or that the parties agreed to defer a determination thereof. Moreover, Ms. Lockwood did not appeal the January 7, 2013 consent judgment allegedly awarding Mr. Lockwood use and occupancy of the family home.

We further find that La. R.S. 9:374 C, as argued by Ms. Lockwood, is inapplicable under the circumstances of this case. La. R.S. 9:374 C is applicable only if a spouse occupies the residence "in accordance with the provisions of Subsection A or B [.]"

La. R.S. 9:374 A is not applicable in this case because the family home was not alleged to be the separate property of either spouse. La. R.S. 9:374 B deals with when the family home is community property or owned by the spouses in indivision, as is the situation here. However, subsection B only applies when either spouse petitioned for and the court awarded use and occupancy after a contradictory hearing. In the instant case, neither spouse petitioned for, nor did the court award use and occupancy, after a contradictory hearing. La. R.S. 9:374 C is only applicable where subsection A or B has been applied or where the trial court awards use and occupancy. In this case, the trial court did not award use and occupancy to Mr. Lockwood and neither party petitioned for use and occupancy as required by subsection B. We therefore find that the trial court did not abuse its discretion in denying Ms. Lockwood's claim for rental reimbursement.

Loss of value of family home

Ms. Lockwood contends that the trial court erred in finding that Mr. Lockwood was not responsible for the "deplorable condition" of the family home at the time of the sale in September 2013. She argues that when the family home was sold in September 2013, the condition of the home was "significantly less" than when she left it in February 2012. She further contends that the trial court was manifestly erroneous for excluding evidence that after they sold the family home in September 2013, the new owner subsequently resold the family home a few months later for an increased price of $140,000.

At trial, in support of her claim for loss of value of the family home, Ms. Lockwood's counsel attempted to submit into evidence a document purporting to show what the property was resold for by the new owner. Mr. Lockwood's counsel objected to the document based on relevance. After a discussion with counsel, the trial court found the document inadmissible. The trial transcript reveals that Ms. Lockwood's counsel did not object to the trial court's ruling, nor did counsel request to proffer the evidence.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the action more probable or less probable than it would be without the evidence. La. C. E. art. 401. Whether evidence is relevant is within the sound discretion of the trial court and an appellate court will not disturb that ruling in the absence of clear abuse of discretion. Tatum v. UPS, 10-1053 (La. App. 5 Cir. 11/15/11), 79 So.3d 1094, 1104, writ denied, 11-2783 (La. 02/17/12), 82 So.3d 290.

Evidentiary rulings are reviewable on appeal subject to the provisions of La. C.C.P. art. 1636, which permits a party to preserve evidence which was ruled inadmissible in the trial court. Archangel v. Mayeaux, 12-696 (La. App. 5 Cir. 05/30/13), 119 So.3d 786. Error may not be predicated upon a ruling that excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by counsel. La. C.E. art. 103 A(2). In those instances, it is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot contend such exclusion was erroneous. Tatum, 79 So.3d at 1104-1105, citing Goza v. Parish of West Baton Rouge, 08-0086 (La. App. 1 Cir. 05/05/09), 21 So.3d 320, writ denied, 09-2146 (La. 12/11/09), 23 So.3d 919, cert. denied, 560 U.S. 904, 130 S.Ct. 3277, 176 L.Ed.2d 1184 (2010).

The record shows that Ms. Lockwood did not object to the exclusion of evidence, and did not proffer the evidence she contends was erroneously excluded. In the absence of a contemporaneous objection and a proffer of the evidence, Ms. Lockwood cannot now complain that such exclusion was error. Therefore, we decline to review this assignment of error.

Honda Pilot

Ms. Lockwood contends that the trial court erred in concluding that the parties did not enter into a binding compromise that resulted in the transfer of ownership of the Honda Pilot from Ms. Lockwood to Mr. Lockwood. She argues that although she was originally granted exclusive use of the Honda Pilot, she entered into a compromise with Mr. Lockwood in open court wherein he agreed that he would pick up the vehicle although he was aware that it was no longer functional. Thus, she contends that the trial court erred in allocating the Honda Pilot to her.

At trial, Ms. Lockwood testified that when she originally left with the children, she took the Honda Pilot. The trial court subsequently granted her possession of the Honda Pilot, but as of the date of the trial, she did not know its location. She testified that the Honda Pilot was towed from her apartment complex because it was not running. Ms. Lockwood testified that although Mr. Lockwood agreed to take possession of the Honda Pilot, he never retrieved the car. The trial court found that no evidence was presented to show that there was a transfer in the ownership of the Honda Pilot, and Ms. Lockwood admitted that no transfer of the title for the Honda Pilot occurred.

On review of the record, we find the trial court did not abuse its discretion in finding that the parties did not enter into a compromise regarding the Honda Pilot and in allocating Ms. Lockwood ownership of the Honda Pilot.

Corvette and Corvette towing and storage fees

Ms. Lockwood contends that the trial court erred in allocating to her full ownership of the Corvette. She also argues that the trial court erred in making her financially responsible for the towing and storage fees for the Corvette.

In its written reasons for judgment awarding Ms. Lockwood full ownership of the Corvette and making her financially responsible for the towing and storage fees, the trial court made the following findings:

The undisputed evidence shows that Mr. Lockwood violated the court's order (awarding use and occupancy of the family home to Ms. Lockwood) by going to the family home without permission or authority. While a civil violation, Mr. Lockwood, somehow, was arrested for simple burglary of his own home and spent approximately five months in jail and four weeks at a state mental institution due to competency issues. Ms. Lockwood testified that while Mr. Lockwood was incarcerated, she was concerned that her credit would be ruined if the Corvette was repossessed. Therefore, she admits that she hired Jake's Towing to tow the vehicle from the family home, and that she transferred title to the Corvette without Mr. Lockwood's knowledge, permission or signature, even though the title was in both of their names. Ms. Lockwood's actions were in violation of the restraining orders against alienating or encumbering community property and were not in the community's best interest.
* * *
Ms. Lockwood claims that the towing and storage fees incurred post-termination of the community are community property so that each party is responsible for half of this debt. $24,138.16 / 2 =$12,069.08 each. The court disagrees. La. Civil Code art. 2360 provides that if an obligation is incurred for the common interest of the spouses or for the interest of the other spouse, it is a community obligation. Article 2363 defines a separate obligation as an obligation resulting from an intentional wrong. The court finds that this obligation resulted from an intentional wrong and was not incurred to benefit the community or Mr. Lockwood. In addition, this debt was incurred post-termination of the community. Therefore, the court finds that the towing and storage charge are Ms. Lockwood's separate obligation.

We do not find that the trial court was manifestly erroneous in finding that Ms. Lockwood violated the trial court's restraining orders on encumbering and alienating community property. The record establishes that Ms. Lockwood alienated community property, the Corvette, when she sold "her one-half interest," transferred title to the Corvette to Jake's Towing, and encumbered the Corvette with a substantial towing and storage fee in violation of the trial court's restraining orders forbidding encumbering and alienating community property. Ms. Lockwood contends that she acted in good faith and in the best interest of the community to prevent the car from being repossessed and to save her and Mr. Lockwood's credit. However, the transcript reveals that Ms. Lockwood's actions were not for the benefit of the community as shown by her testimony as follows:

The main purpose for me was to get my name off of the car....That car was in my name. I just wanted my name off. Could never get my name off. I saw a way to get my name off and save my credit at the same time. Jake's paid the car off. And here we are.

Ms. Lockwood clearly did not act on behalf of the community when she sold "her one-half interest," transferred title to the Corvette to Jake's Towing, and encumbered the Corvette with a substantial towing and storage fee which encumbered and alienated community property. Accordingly, we conclude that the trial court did not abuse its discretion in allocating the ownership of the Corvette and the related towing and storage fees to Ms. Lockwood.

Conclusion

For the above stated reasons, we affirm the trial court's April 3, 2017 judgment.

AFFIRMED

      Ms. Lockwood's right to her initial investment and interest thereon as to her separate property in the 401K plan is not precluded by the language of the judgment.

      The January 7, 2013 consent judgment does not award Mr. Lockwood use and occupancy of the community home. The consent judgment only states that Mr. Lockwood will be responsible for the monthly mortgage payment, insurance premium, and property tax for December 2012 and for every month which he continues to occupy the family home.

      La. C.C.P. art. 1636 A provides: "When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence."

      The bill of sale states that the vehicle is a 2009 Chevrolet Corvette, with the VIN number and title number. The bill of sale provides the following:
      That in cosideration [sic] of $7374.30, the receipt of which is hereby acknowledged, I, the seller, do(es) hereby grant, sell, transfer, and deliver unto Jakes Auto Parts, heirs, executors, administrations, and assigns the following described vehicle. To have and to hold, all and singular, the said vehicle forever. Also the said seller hereby covenants with the said purchaser that (he) she; we is/are the lawful owner(s) of the said property by guaranting [sic] that it is free from all encumbrances. In the event of non-delivery of title at the time of purchase (we) the seller also holds Jakes Auto Parts and its employees harmless from towing, storing, .....[sic] or disposing of the said vehicle. I further assume the responsibility of any ...[sic] mortgage and any other encumbrances to deliver the title upon demand of Jakes Auto Parts in a reasonable amount of time if so required.
      Handwritten at the bottom, the bill of sale further provides "Sold for pay off of 5812.86 to Chase Bank and tow and storage of 1561.44 on 10/18/2013 totaling 7374.30" and was signed by Ms. Lockwood as seller and Chuck Jacob, d/b/a Jakes. The bill of sale from Ms. Lockwood, as seller, to Jake's Towing, as buyer, does not state that Ms. Lockwood only sold her one-half interest in the Corvette.


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    Glenn H. WOODS v. Kimberly ROBINSON, Secretary, Department of Revenue, State of Louisiana, and the State of Louisiana
    Jimmie M. Woods v. Kimberly Robinson, Secretary, Department of Revenue, State of Louisiana, and the State of Louisiana
    NO. 18-CA-145 18-CA-146
    Court of Appeal of Louisiana, Fifth Circuit.
    September 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, GLENN H. WOODS, Robert S. Angelico, Cheryl M. Kornick, Randy J. Marse, Jr., Jeffrey Birdsong, New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, SECRETARY OF THE DEPARTMENT OF REVENUE, STATE OF LOUISIANA, Miranda Y. Conner, Antonio C. Ferachi, Debra D. Morris, Brian C. DeJean, Baton Rouge, Wendy Ramnarine, Port Allen
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   WICKER, J.

These consolidated cases arise out of a dispute involving the Alternative Fuel Tax Credit, wherein the Department of Revenue is appealing the Board of Tax Appeal's judgment overruling an Exception of No Right of Action and granting two refunds totaling $710,402, plus interest. For the following reasons, we affirm the Board of Tax Appeal's judgment.

Procedural Background

On August 2, 2016, petitioners, Glenn H. Woods and Jimmie M. Woods, each filed a Petition to Review Denial of Refund/Credit and Alternatively for a Claim Against the State. The petitioners, each fifty percent owners of Metro Service Group, Inc. (Metro), prayed that the Louisiana Board of Tax Appeals (the Board) determine that they have a refundable overpayment/credit in the amount of $344,661 each and that the Board order the Secretary of the Louisiana Department of Revenue (the Department) to pay the refunds to them with interest. The petitioners prayed, alternatively, that the Board award claims against the State to each of them in the amount of $344,661 of Louisiana individual income tax paid and recommend to the next session of the Legislature that these claims are approved and should be paid.

On January 31, 2017, the Department filed an Exception of Improper Cumulation of Actions and Answer in each case, responding, in part, that the Alternative Fuel Tax Credit/refund had already been issued to Metro. On May 1, 2017, the Department filed an Exception of No Right of Action, arguing, inter alia , that the petitioners did not have a right to claim this credit as the credit had been previously claimed and issued to another taxpayer. On May 9, 2017, the Board conducted a hearing, taking the matter under advisement thereafter.

On November 7, 2017, the Board issued a written judgment, along with written Reasons for Judgment, overruling the Department's Exception of No Right of Action and granting the refund claims of Glenn H. Woods and Jimmie M. Woods in the amount of $355,201 to each of them, for a total of $710,402, with interest. The Department, thereafter, filed a Motion for Appeal in each case that was granted. These cases were ultimately transferred from the Fourth Circuit Court of Appeal to this Court based on the recusal of the Fourth Circuit Court of Appeal judges and were consolidated.

Statement of the Case

The petitioners, Glenn H. Woods and Jimmie M. Woods, are brothers who each own fifty percent of Metro, a waste hauling business operating as an S corporation. The petitioners decided to convert to alternative fuel based on the Alternative Fuel Tax Credit (AFTC), a Louisiana tax incentive for businesses which convert their operations to run on compressed natural gas (CNG). Metro, thereafter, purchased twenty CNG-powered rear-loader waste hauling vehicles and constructed a CNG filling station to service the fleet. Metro originally claimed the credit in the amount of $1,044,524 on its 2012 Louisiana corporation income and franchise tax return for both the vehicles and an alternative fuel station. However, in a letter dated December 5, 2013, the Department denied $689,323 of the amount claimed and allowed the remainder of $355,201. Metro did not appeal the Department's partial denial of the credit.

On November 13, 2015, Metro filed an amended 2012 return, reducing the amount claimed from $1,044,524 to $355,201, which was the amount previously allowed. At the same time, the petitioners filed amended Louisiana individual income tax returns for the same period, each seeking a credit of $344,661, for a total of $689,322. In other words, Metro made an S corporation election to allow the credit to flow through to Metro's shareholders, the petitioners, in proportion to their ownership interests, and the petitioners then claimed the tax credit on their personal income tax returns. In letters to the petitioners dated June 8, 2016, the Department denied the refund/credit. The petitioners subsequently filed petitions asking the Board to review the denial of the refund/credit.

At the hearing on May 9, 2017, the Board severed the refund claim from the claim against the State, hearing the refund claim that day. The petitioners posited that they were entitled to the tax credit as they were within the three years for filing amended tax returns. The Department responded that the petitioners were not entitled to pass through the tax credit once the corporation failed to respond to the denial. In support of their position, the petitioners called Glenn Woods who testified that he invested approximately $7,000,000 in the CNG trucks and $1,300,000 in the fueling station, that they had to build a completely new fueling station, and that he was counting on receiving the tax credits to make it economically feasible. Mr. Woods explained that Entergy had to run new gas lines and electricity to the new fueling station to make it all work, and that all of the components were necessary to make the project work.

The petitioners introduced exhibits at the hearing, including Joint Exhibit 1, the original 2012 Metro tax return; Joint Exhibit 2, the refund denial/reduction letter; Joint Exhibit 3, the amended 2012 Metro tax return; Joint Exhibit 4, the amended tax return for Glenn H. Woods; Joint Exhibit 5, the amended tax return for Jimmie M. Woods; Taxpayer Exhibit 6, the memo associated with invoices and costs; and Taxpayer Exhibit 7, the fueling station costs. The Department called no witnesses and introduced no evidence in support of its position. The Board took the matter under advisement, after which it rendered judgment and provided reasons.

On November 7, 2017, the Board overruled the Department's Exception of No Right of Action and granted the refund claims in the amount of $355,201 to each petitioner, with interest. With regard to La. R.S. 47:6035, the Board stated in pertinent part:

The Secretary interprets the prefatory language in the first sentence of Subsection D, "where no previous credit has been claimed," as preclusive of Petitioners' claims because the credit was previously claimed by Metro. As an initial matter, Petitioners elected to claim the credit under Subsection C. Moreover, the Secretary's interpretation is not supported by the canons of statutory construction. Subsection D provides a means of calculating the appropriate amount of the credit in the event that the taxpayer elects not to claim the credit "pursuant to Subsection C ...." Under Subsection D, a taxpayer may claim the credit without determining the extra cost attributable to the subject property, but the amount of the credit is limited to "ten percent of the cost of the motor vehicle or three thousand dollars, whichever is less, provided the motor vehicle is registered in this state." On the other hand, a taxpayer who elects to claim the credit under Subsection C would be required to determine the cost of the qualified property, but would also be entitled to a more lucrative credit; "fifty percent of the cost of the qualified clean-burning motor vehicle fuel property." It would be illogical to permit the taxpayer to claim the fifty percent credit under Subsection C and then an additional ten percent credit under Subsection D. The purpose of the language quoted by the Secretary is to prevent the taxpayer from doing just that. Consequently, the Secretary's reliance on Subsection D is misplaced. (Footnote added).
The relevant provision of the statute for determining whether Petitioners have a right of action to claim the credit is found in Subsection A. Subsection A provides that the credit is available against income tax to any person or corporation purchasing qualifying property. Petitioners allege that they are entitled to claim the credit on their amended 2012 Louisiana individual income tax return because Metro purchased qualifying property during the 2012 tax period, was entitled to a claim [sic] the credit, and elected to pass the credit through to its shareholders. Considering the proper standard for an exception of no right of action, Petitioners fit within the class of persons that have a legal interest in the matter asserted.
Accordingly, the Department's Exception of No Right of Action is overruled.

The Board also recognized that while Metro may be procedurally barred from litigating its own refund, Louisiana tax law provides for the type of flow-throughof credits utilized by these taxpayers and there is no apparent procedural bar to this refund action.

In its reasons, the Board also addressed whether the petitioners had demonstrated that the tax credit was applicable to the vehicles and the filling station. It found that under the 2012 tax period version of La. R.S. 47:6035, an individual or corporation was entitled to a refundable credit against the individual or corporate income tax equal to fifty percent of the "cost of the qualified clean-burning motor vehicle fuel property." The Board also found in pertinent part:

A taxpayer claiming a credit must clearly demonstrate its entitlement to relief. See Crawford v. Duhon , 2001-0193 (La. App. 4 Cir. 11/7/01), 799 So.2d 1273, 1277. Petitioners assert that the total cost of qualified clean-burning motor fuel property was $916,840 for the fleet of 20 vehicles, and for $1,172,189 for the filling station. As described above, Petitioners have supported their assertions through testimony and documentary evidence introduced at trial. The Secretary does not challenge Petitioners' evidence but nevertheless argues that Petitioners have not established their entitlement to the credit. The Board can discern no articulable reason why Petitioners' evidence should be deemed insufficient. The Board accordingly finds, based on the evidence introduced at trial, that Petitioners are entitled to the credits claimed. (Footnote added).
For the reasons set forth above, the Department's Exception of No Right of Action is overruled, and the Petition for Refund and associated claims of Glenn H. Woods and Jimmie M. Woods are granted.

Analysis

On appeal, the Department raises three Assignments of Error:

1. The Board erred by failing to grant the Department's Exception of No Right of Action.
2. The Board erred by allowing the refund under the S-Corp exclusion.
3. The Board erred by not correctly calculating the refund.

The Department also presents the following as issues for review:

1. Whether the taxpayers have a right to claim the credit under La. R.S. 47:6035(B)(2)(c) ?
2. Whether the taxpayers have a right to claim the credit under La. R.S. 47:1625 ?
3. Whether the taxpayers properly claimed the credit under La. R.S. 47:1675(G)(2)(B) ?
4. Whether the Board properly calculated the refund under La. R.S. 47:6035(B)(2)(c) and La. R.S. 47:6035(C) ?

Assignment of Error Number One

The Board erred by failing to grant the Department's Exception of No Right of Action.

Discussion

The Department argues that the Board erred by failing to grant its Exception of No Right of Action as petitioners do not belong to the class of persons to whom the law grants the Alternative Fuel Tax Credit. Appellants posit that the law grants the Alternative Fuel Tax Credit under La. R.S. 47:6035(B)(2)(c) only if "no credit has been previously claimed on the cost of such property," and in this case, Metro submitted a claim for the credit with the Department.

The Department argues that on December 5, 2013, it informed Metro of the partial granting and partial denial of the tax refund and that Metro did not appeal the partial denial within sixty days, the time allowed by law. The Department maintains that because no appeal was taken, the denied portion of the refund is final and unavailable and that any right by any taxpayer to that refund is extinguished. The Department asserts that the procedure for appealing a refund denial is set out in La. R.S. 47:1625(A)(1), which generally provides that no appeal may be filed after the expiration of sixty days from the date of mailing by the collector to the taxpayer of a notice of the disallowance of the claim. The Department contends that by allowing the petitioners to assert a claim for a prescribed refund, the Board has provided a method of circumvention of the rules of prescription.

The petitioners respond that they are clearly entitled to claim the credit under the Alternative Fuel Tax Credit as the Department's denial of Metro's original refund claim is not res judicata and has no preclusive effects on subsequent refund claims even if filed by the same taxpayer, as long as those refund claims are within the three-year prescriptive period. The petitioners argue that a Department denial of a portion of a taxpayer's refund claim is not "final," so as to preclude any re-filings of that refund claim, such as a re-filing made with additional documentation, and that the Department cannot arbitrarily cut off a taxpayer's right to file a refund claim brought within that three-year period simply by sending a letter pursuant to La. R.S. 47:1625 notifying a taxpayer that all or part of a refund claim has been denied.

The petitioners further contend that La. R.S. 47:1625 states that a taxpayer "may" appeal a denial of a refund claim, but that there is no requirement that a taxpayer appeal the denial or forever lose the right to make that claim. In support of this argument, petitioners point out that nowhere in the text of La. R.S. 47:1625 does the statute state or suggest that the Department's denial of a refund claim amounts to a "final" decision on the merits of that claim unless the taxpayer files an appeal with the Board. The petitioners maintain that for the law to provide such finality, it must say so expressly, citing by example the tax assessment procedure found in La. R.S. 47:1565, which they argue explicitly states that if the taxpayer does not appeal the assessment to the Board within sixty days, the assessment shall be final. They contend that La. R.S. 47:1625 addresses only the deadline for appealing a denial of a claim for refund or credit, not for the re-filing of another claim. As such, they contend that taxpayers like themselves are free to file additional refund claims provided they do so within the three-year prescriptive period.

La. R.S. 47:1435(A) provides that, "[t]he courts of appeal shall have exclusive jurisdiction to review the decisions or judgments of the board, and the judgment of any such court shall be subject to further review in accordance with the law relating to civil matters." Upon such review, the courts shall have the power to affirm or, if the decision or judgment of the board is not in accordance with law or is manifestly erroneous on the facts considering the record as a whole, to modify, or to reverse the decision or judgment of the board, with or without remanding the case for further proceedings. See La. R.S. 47:1435(C).

In Int'l Paper, Inc. v. Bridges , 07-1151 (La. 1/16/08), 972 So.2d 1121, 1127-28, the Louisiana Supreme Court set forth the standard of review of a decision of the Board of Tax Appeals:

Judicial review of a decision of the Board is rendered upon the record as made up before the Board and is limited to facts on the record and questions of law. The Board's findings of fact should be accepted where there is substantial evidence in the record to support them and should not be set aside unless they are manifestly erroneous in view of the evidence on the entire record.

This Court has found that the standard of appellate review of a decision of the Board of Tax Appeals is the manifest error standard. Falco Lime, Inc. v. Kennedy , 99-189 (La. App. 5 Cir. 7/27/99), 739 So.2d 953, 955. Judicial review of a decision of the Board is rendered upon the record as made up before the Board. Id. A decision of the Board will not be reversed on appeal absent a finding that the Board: 1) failed to correctly apply the law and adhere to procedural standards; or 2) that the Board's conclusions from the evidence presented were arbitrary or constituted an abuse of discretion. Id.

The peremptory exception of no right of action functions as a test of whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927. The determination of whether a plaintiff has a right of action is a question of law, which the appellate court reviews de novo . Khoobehi Props., LLC v. Baronne Dev. No. 2, L.L.C. , 16-506 (La. App. 5 Cir. 3/29/17), 216 So.3d 287, 296, writ denied , 17-0893 (La. 9/29/17), 227 So.3d 288. In examining an exception of no right of action, a court focuses on whether a plaintiff belongs to a particular class of persons to whom the law grants the cause of action asserted in the suit, and the court assumes that the petition states a valid cause of action. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com'n , 94-2015 (La. 11/30/94), 646 So.2d 885. Evidence supporting or controverting an exception of no right of action is admissible. La. C.C.P. art. 931. However, in the absence of evidence to the contrary, the averments of fact in the pleadings will be taken as true. Denoux v. Vessel Mgmt. Servs. , 07-2143 (La. 5/21/08), 983 So.2d 84, 88 ; State v. AstraZeneca AB , 16-1073, (La. App. 1 Cir. 4/11/18), 249 So.3d 38. Determination of whether a plaintiff has a right of action is a question of law. Id.

"Legislation is the solemn expression of the legislative will; thus, the interpretation of legislation is primarily the search for legislative intent." Dunn v. City of Kenner , 15-1175, p. 10 (La. 1/27/16), 187 So.3d 404, 409. See also La. R.S. 24:177(B)(1) ("The text of a law is the best evidence of legislative intent."). When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. La. C.C. art. 9 ; La. R.S. 1:4. The meaning and intent of a law must be determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting it. Allen v. Allen , 13-2778, p. 11 (La. 5/7/14), 145 So.3d 341, 346. Courts should give effect to all parts of a statute and, if possible, should not give a statute an interpretation that makes any part superfluous or meaningless. McLane S., Inc. v. Bridges , 11-1141, p. 10 (La. 1/24/12), 84 So.3d 479, 483. The language of the statute itself is the starting point for the interpretation of any statute. Dunn , 15-1175 at 10, 187 So.3d at 410.

In 2012, at the time the petitioners purchased the vehicles in question, La. R.S. 47:6035 provided the law regarding tax credits for conversion of vehicles to alternative fuel usage in pertinent part as follows:

A. The intent of this Section is to provide an incentive to persons or corporations to invest in qualified clean-burning motor vehicle fuel property. Any person or corporation purchasing such property as specified in this Section shall be allowed a credit against income tax liability as determined pursuant to Subsection C of this Section.
B. As used in this Section, the following words and phrases shall have the meaning ascribed to them in this Subsection unless the context clearly indicates otherwise:
****
(2) "Cost of qualified clean-burning motor vehicle fuel property" shall mean any of the following:
(a) The retail cost paid by the owner of a motor vehicle for the purchase and installation by a technician of qualified clean-burning motor vehicle fuel property certified by the United States Environmental Protection Agency to modify a motor vehicle which is propelled by gasoline or diesel so that the motor vehicle may be propelled by an alternative fuel, provided the motor vehicle is registered in this state.
(b) The cost to the owner of a new motor vehicle purchased at retail originally equipped to be propelled by an alternative fuel for the cost of that portion of the motor vehicle which is attributable to the storage of the alternative fuel, the delivery of the alternative fuel to the engine of the motor vehicle, and the exhaust of gases from combustion of the alternative fuel, provided the motor vehicle is registered in this state.
(c) The cost of property which is directly related to the delivery of an alternative fuel into the fuel tank of motor vehicles propelled by alternative fuel, including compression equipment, storage tanks, and dispensing units for alternative fuel at the point where the fuel is delivered, provided the property is installed and located in this state and no credit has been previously claimed on the cost of such property. The cost of property which is directly related to the delivery of an alternative fuel into the fuel tank of motor vehicles propelled by alternative fuel shall not include costs associated with exploration and development activities necessary for severing natural resources from the soil or ground. [Emphasis added].
(3) "Qualified clean-burning motor vehicle fuel property" shall mean equipment necessary for a motor vehicle to operate on an alternative fuel and shall not include equipment necessary for operation of a motor vehicle on gasoline or diesel.
C. The credit provided for in Subsection A of this Section shall be allowed against individual or corporate income tax for the taxable period in which the property is purchased and installed, if applicable, and shall be equal to fifty percent of the cost of the qualified clean-burning motor vehicle fuel property.
D. In cases where no previous credit has been claimed pursuant to Subsection C of this Section for the cost of qualified clean-burning motor vehicle fuel property in a new motor vehicle purchased by a taxpayer with qualified clean-burning motor vehicle fuel property installed by the vehicle's manufacturer and the taxpayer is unable to, or elects not to determine the exact cost which is attributable to such property, the taxpayer may claim a credit against individual or corporate income tax for the taxable period in which the motor vehicle is purchased equal to ten percent of the cost of the motor vehicle or three thousand dollars, whichever is less, provided the motor vehicle is registered in this state.

La. R.S. 47:6035.

La. R.S. 47:1625 provides the law regarding appeals from the disallowance of refund claims in pertinent part as follows:

A. (1) If the collector fails to act on a properly filed claim for refund or credit within one year from the date received by him or if the collector denies the claim in whole or in part, the taxpayer claiming such refund or credit may appeal to the Board of Tax Appeals for a hearing on the claim filed. No appeal may be filed before the expiration of one year from the date of filing such claim unless the collector renders a decision thereon within that time, nor after the expiration of sixty days from the date of mailing by registered mail by the collector to the taxpayer of a notice of the disallowance of the part of the claim to which such appeal relates.

La. R.S. 47:1625(A)(1).

In the instant case, we find that La. R.S. 47:6035(A) gives petitioners the right of action to claim the tax credit. The law is clear and unambiguous and its application does not lead to absurd consequences. La. C.C. art. 9 ; La. R.S. 1:4. La. R.S. 47:6035(A) provides that any person or corporation purchasing the property in question shall be allowed a credit against income tax liability pursuant to Subsection C. The corporation tried and failed to obtain the full tax credit. Because the corporation missed the sixty-day deadline, it appears that the corporation is procedurally barred from seeking the disallowed portion of the refund. However, there is no preclusive language in the statute that prohibits the petitioners from seeking the disallowed portion of the tax credit by filing amended individual income tax returns within the three-year prescriptive period for doing so. The statute does not state that only one entity can claim the tax credit nor does it state that if the S corporation's tax credit is disallowed then an individual cannot file a claim for the tax credit. La. R.S. 47:6035(B)(2)(c) provides that the statute is applicable if "no credit has been previously claimed on the cost of such property." The credit has not been previously claimed on the cost of the property by these petitioners in their personal income tax returns (prior to their amended returns). The petitioners' claims are separate from the corporation's claim.

For the foregoing reasons, we find that the Board did not err in overruling the exception.

Assignment of Error Number Two

The Board erred by allowing the refund under the S-Corp exclusion.

Discussion

The Department argues that the Board erred by allowing the refund under the S corporation exclusion. It reiterates that the original return filed by Metro sought an Alternative Fuel Tax Credit in the amount of $1,044,524, that the Department verified $355,201 of that amount, that Metro failed to appeal the disallowed portion of the credit, and that it issued a partial refund in February of 2014. It also reiterates that two years later Metro filed an amended return reducing the amount of the credit from $1,044,524 to $355,201. The Department argues that Metro included with its amended return the statement that the return was being amended to make the election set forth in La. R.S. 47:1675(G)(2)(b). The Department also argues that Metro elected pursuant to that statute to flow through the entire amount of the credits earned for tax year 2012 under La. R.S. 47:6035 to the shareholders of the corporation.

The Department contends that this S corporation election fails for several reasons. It argues that Metro cannot flow through the entire amount of the credit because that amount has already been refunded by the Department. It also argues that Metro did not write a check to the Department to cover the refund that had already been issued, so that the $355,201 could be available to flow through. The Department submits that the statute requires that S corporation Metro flow through the entire amount of the credit, not just a portion, and that Metro asserted this contention in its statement but did not do so. It states that the petitioners admit that Metro is not passing through the entire amount of the credit, just the denied portion. The Department also states that the denied portion does not appear on the amended return, which it argues is clearly outside the scope of the statute. It argues that if Metro were allowed to flow through the credit to its shareholders, only $355,201 would be available for flow through, but it has already been refunded.

The Department asks that in the event this Court finds that the S corporation exclusion is applicable, this Court find that the Board has incorrectly calculated the amount of the credit and remand back to the Board for recalculation, if necessary.

The petitioners respond that Metro properly elected to pass through the credit to the taxpayers, pointing out that Metro originally claimed the credit in the amount of $1,044,524 pursuant to La. R.S. 47:6035 and the Department allowed $355,201 and disallowed $689,323. Metro then made the La. R.S. 47:1675(G)(2)(b) election to allow the unpaid amount of the credit to flow through to Metro's shareholders in an amount in proportion to their ownership interest. As fifty percent shareholders of Metro, each of them claimed half of the total credit sought by Metro on his amended 2012 individual income tax return - $522,262. They explain that since the State already allowed the partial refund in the amount of $355,201 instead of the $1,044,524 sought by Metro, the petitioners are only claiming $344,661 in this suit, fifty percent of the disallowed $689,323.

La. R.S. 47:1675(G)(2)(b) provides:

(b) Flow through election for S corporations. An S corporation that earns or otherwise receives a tax credit through allocation or transfer during a year in which the corporation operates as an S
corporation may annually elect to flow through the entire amount of the credit to its shareholders. The election may be made for each credit received by the S corporation and shall be made annually. The election shall be in writing and may not be revoked. [Emphasis added].

La. R.S. 47:1675(G)(2)(b).

In the instant case, Metro filed an amended 2012 return, reducing the amount claimed from $1,044,524 to $355,201, which was the amount previously allowed. At the same time, the petitioners filed amended Louisiana individual income tax returns for the same period, each seeking a credit of $344,661, for a total of $689,322. Metro made the election under La. R.S. 47:1675(G)(2)(b) in writing to flow through the disallowed amount of the credit to Metro's shareholders, the petitioners, in an amount in proportion to their ownership interest - $344,661 each. Here, Metro did not flow through the entire amount of the credit, and it was not required to do so under the statute. The statute provides that the corporation "may" flow through the entire amount, not that it "must" do so. As such, we find that the Board did not err by allowing the refund under the S corporation exclusion.

Assignment of Error Number Three

The Board erred by not correctly calculating the refund.

Discussion

The Department argues that the Board erred by not correctly calculating the amount of the Alternative Fuel Tax Credit/refund. It also argues that the Board has allowed items not considered clean-burning alternative motor vehicle fuel property by statute. The Department contends that the Legislature has provided an Alternative Fuel Tax Credit under La. R.S. 47:6035, for the cost of property which is directly related to the delivery of an alternative fuel into the fuel tank of motor vehicles propelled by alternative fuel, including compression equipment, storage tanks, and dispensing units for alternative fuel at the point where the fuel is delivered.

The Department states that the petitioners each submitted a document from Vocational Energy CNG Fuel Stations that includes a Schedule of Values and CNG Project Breakdown of Capital Cases. It contends that a review of the breakdown shows that an overwhelming amount allowed by the Board is not property directly related to delivery of the alternative fuel at the point where the fuel is delivered, citing the Board's allowance of money for design plans and permits ($39,825); communication package ($3,355); concrete, guardrail, bollards, excavation, trenching, and backfill ($107,142); high and low pressure piping, installation, testing, and trenching (($68,805); electrical, meter main, transformer tie in, and materials ($98,413); project management and onsite foreman ($41,175); training and testing ($11,475); freight charges ($12,000); and taxes ($55,351).

The Department argues that the burden of proof rested with the petitioners to show how each of the aforementioned items qualified under the statute and that they failed to carry that burden at the hearing. It also argues that the petitioners simply introduced the documents into the record without any explanation as to how they fit under the statute. The Department maintains that Mr. Woods testified that without any of those things the fueling station would not exist; however, it contends that the statute did not address contracts as a whole. It also maintains that Mr. Woods noted he was just a layman and that Vocational and McNeilus were the specialists. Nevertheless, the Department submits that no one from those companies was there to testify regarding how each item was directly related to the delivery of the natural gas at the point of delivery. The Department argues that for the Board to completely disregard the statute and award the entire amount, including items that have nothing to do with delivering the natural gas from the pump to the vehicle is reversible error, and the judgment should be vacated and/or reduced according to the statute.

The Department further contends that the Board failed to apply the Legislative reduction from fifty percent to thirty-six percent of the cost of the clean-burning property. It asserts that beginning July 1, 2015, the Louisiana Legislature reduced the amount of the qualified clean-burning motor vehicle fuel property from fifty percent to thirty-six percent and that the Legislature made this reduction applicable to a claim for a credit on any return filed on or after July 1, 2015 but before June 30, 2018, regardless of the taxable year to which the return relates. The Department notes that the amended return filed by Metro has a signature date of November 10, 2015 and that the amended returns filed by the petitioners have a signature date of November 12, 2015. It contends that since all three amended returns were filed after July 1, 2015, they are subject to the Legislative reduction from fifty percent to thirty-six percent of the cost of the clean-burning motor fuel property, which includes the fueling station and the vehicles. The Department, therefore, argues that because the Board failed to apply the Legislative reduction, this Court should apply the reduction itself, or at least remand the matter back to the Board for it to make the reduction and correctly calculate the amount of the credit.

The petitioners respond that the Department did not raise these arguments nor introduce any evidence at the hearing to controvert the types of property or value thereof which entitled them to a credit under the Alternative Fuel Tax Credit. They further respond that by contrast, they introduced various exhibits and offered sufficient testimony to support their claims for credits under the Alternative Fuel Tax Credit. Therefore, the petitioners argue that this Court should not consider these arguments because "issues not raised in the trial court will not be given consideration for the first time on appeal." The petitioners contend that this is consistent with this Court's standard of review, which they explain is rendered upon the record made before the Board and is limited to the facts on the record.

The Department replies that its cross-examination of Mr. Woods was prima facie proof that it was contesting the amount of the credit sought by petitioners. It further replies that the dialogue between the Department's counsel and the witness clearly shows that the Department is challenging the amount of the credit and what items the statute allows.

The Louisiana Legislature has provided three definitions of the "Costs of qualified clean-burning motor vehicle fuel property." The petitioners rely upon the definition found in La. R.S. 47:6035(B)(2)(c) as follows:

(c) The cost of property which is directly related to the delivery of an alternative fuel into the fuel tank of motor vehicles propelled by alternative fuel, including compression equipment, storage tanks, and dispensing units for alternative fuel at the point where the fuel is delivered, provided the property is installed and located in this state and no credit has been previously claimed on the cost of such property. The cost of property which is directly related to the delivery of an alternative fuel into the fuel tank of motor vehicles propelled by alternative fuel shall not include costs associated with exploration and development activities necessary for severing natural resources from the soil or ground. [Emphasis added].

At the hearing during Glenn Woods' testimony, petitioners introduced into evidence a Schedule of Values from Vocational Energy which details the costs of the fueling station. These costs include, but are not limited to, engineering designs, plans and permits; equipment such as compressors, a dryer, fuel posts and hoses; civil work; high and low pressure piping, installation, testing, and trenching; electrical and conduit; project management; start up and commissioning/maintenance training; freight; and taxes, for a total of $1,172,189.

Glenn Woods explained that they hired Vocational Energy to build a completely new fueling station for the CNG vehicles, which was mainly composed of two generators and a drier that were tapped into a gas line that Entergy provided to Metro. He testified that if he had not paid for all of the costs of the fueling station as set forth above, he would not have a CNG station and that all of the components were necessary to make the project work. The Department called no witnesses and produced no documentation to counter Glenn Woods' testimony and supporting documentation.

In light of the foregoing, we find that since the Department failed to object at trial to the memos regarding the costs in question, the argument raised on appeal that the writers of those memos did not testify at trial is waived, and we may consider those memos. We also find that the Department challenged the calculation of the tax credit at trial during the cross-examination of Mr. Woods, and therefore, we can consider the Department's argument regarding that issue on appeal. We further find that the cost of property as detailed above is directly related to the delivery of an alternative fuel into the fuel tank of motor vehicles propelled by alternative fuel pursuant to La. R.S. 47:6035(B)(2)(c). The statute is clear and unambiguous, and its application does not lead to absurd consequences. The Schedule of Values does not list extraneous property, such as a grocery store or a car wash attached to the fueling station. It lists only the items and costs necessary for the fueling station. As such, we find that the Board properly allowed all of the costs of the fueling station.

The Department also argues that the Board failed to apply the Legislative reduction from fifty percent to thirty-six percent of the cost of the clean-burning motor vehicle fuel property. La. R.S. 47:6035 was amended by Acts 2015, No. 125, § 2, effective July 1, 2015, wherein thirty-six percent was substituted for fifty percent in La. R.S. 47:6035(C)(1).

Effective July 1, 2015, La. R.S. 47:6035(C)(1) provided:

The credit provided for in Subsection A of this Section shall be allowed against individual or corporate income tax for the taxable period in which the property is purchased and installed, if applicable, and shall be equal to thirty-six percent of the cost of the qualified clean-burning motor vehicle fuel property. [Emphasis added].

See La. R.S. 47:6035(C)(1).

The Section 7 comments provide as follows:

(A) Except as provided for in Subsection (B) of this Section, the provisions of Sections 1, 2, and 3 of this Act shall apply to a claim for a credit on any return filed on or after July 1, 2015, but before June 30, 2018, regardless of the taxable year to which the return relates.
(B) The provisions of Sections 1, 2, and 3 of this Act shall not apply to an amended return filed on or after July 1, 2015, but before June 30, 2018, relating to a credit properly claimed on an original return filed prior to July 1, 2015.
(C) If a return is filed after July 1, 2015, but before June 30, 2018, for which a valid filing extension has been allowed prior to July 1, 2015, then any portion of the credit reduced by the provisions of Sections 1, 2, or 3 of this Act shall be allowed as a credit in the amount of one-third of the reduced portion of the credit on the taxpayer's return for each of the taxable years beginning during calendar years 2017, 2018, and 2019.

The Section 8 comments provide as follows:

The provisions of Sections 1, 2, and 3 of this Act shall become effective on July 1, 2015 and shall remain effective through June 30, 2018. The provisions of Sections 4, 5, and 6 of this Act shall become effective on July 1, 2018 and shall apply to original returns filed on or after July 1, 2018.

The Department argues that the petitioners fall under the Section 7(A) comments, which provide in pertinent part that except as provided for in (B), Section 2 of this Act shall apply to a claim for a credit on any return filed on or after July 1, 2015, but before June 30, 2018, regardless of the taxable year to which the return relates. The amended returns of Glenn Woods and Jimmie Woods were signed on November 12, 2015. As such, the Department contends that the petitioners are only entitled to thirty-six percent of the costs in question.

Nevertheless, Metro falls under the Section 7(B) comments which provide in pertinent part that the provision of Section 2 of this Act shall not apply to an amended return filed on or after July 1, 2015, but before June 30, 2018, relating to a credit properly claimed on an original return filed prior to July 1, 2015. The amended return of Metro was filed on November 10, 2015. Metro's amended return relates to a credit properly claimed on an original return filed prior to July 1, 2015. Therefore, the fifty percent figure applies to Metro, an S corporation.

The S corporation's tax credit was granted in part and denied in part. The S corporation allowed the sixty-day appeal deadline to pass. It then elected to pass through the disallowed portion of the tax credit to its two shareholders on their individual tax returns on a proportional basis. The Board found that the S corporation was allowed to pass through the tax credits. We find that the Board's ruling was not manifestly erroneous. The clear wording of La. R.S. 47:1675(G)(2)(b) is that an S corporation can pass through some or all of the tax credit to its shareholders. Since the S corporation was entitled to fifty percent of the costs in question, that amount passed through to the individuals. Furthermore, the Department conceded at the hearing that the petitioners were entitled to fifty percent of the cost if they could prove their case. In light of the foregoing, we find that the Board did not err in calculating the amount of the tax credit.

DECREE

For the foregoing reasons, we affirm the judgment of the Board of Tax Appeals.

AFFIRMED

      S corporations are defined by the IRS as corporations that elect to pass corporate income, losses, deductions, and credits through to their shareholders for federal tax purposes. Shareholders of S corporations report the flow-through of income and losses on their personal tax returns and are assessed taxes at their individual income tax rates. Vedros v. Vedros , 16-735 (La. App. 5 Cir. 10/25/17), 229 So.3d 677, 691, writs denied , 18-0004 (La. 2/23/18), 237 So.3d 520 and 17-2119 (La. 2/23/18), 237 So.3d 1185.

      The Board refers to the Louisiana Department of Revenue as the "Secretary" and as the "Department."

      The Board referred to a memorandum written by the vendor of the vehicles in question detailing the difference in cost between CNG propelled and diesel propelled rear loader waste vehicles. It also mentioned that the petitioners introduced twenty invoices evidencing the purchase of the vehicles in question. The Board found that the evidence proved that the alleged cost of equipment attributable to the exhaust gases from the combustion of the CNG vehicles is $10,482 per vehicle, and the cost of the equipment attributable to the storage and delivery of the alternative fuel is $35,360 per vehicle. Thus, the Board found that the asserted cost of qualified clean-burning motor fuel property is $45,842 per vehicle for a total of $916,840 for the entire fleet of twenty vehicles. The Board also referred to a Schedule of Values from Vocational Energy detailing the $1,172,189 price Metro paid for the CNG filling station, as well as four invoices evidencing the payment of that amount, all introduced by the petitioners at the hearing.

      As was noted by the Board in its judgment, the applicable version of La. R.S. 47:6035 is the one that existed when the petitioners purchased the vehicles in question. See Barfield v. Bolotte , 15-0847 (La. App. 1 Cir. 12/23/15), 185 So.3d 781, 786, writ denied , 16-0307 (La. 5/13/16), 191 So.3d 1058. See also La. R.S. 47:6035(C) ("The credit ... shall be allowed ... for the taxable period in which the property is purchased[.]")

      However, it is noted that the statute was amended again wherein thirty percent was substituted for thirty-six percent. La. Acts 2017, No. 325, § 1, effective June 22, 2017.


author: McCALLUM, J.

text:
    STATE of Louisiana, Appellee v. Dylan MAGLUILO, Appellant
    No. 52,227-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, TOMMY J. JOHNSON, JASON W. WALTMAN, TRENEISHA J. HILL, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, GARRETT, and McCALLUM, JJ.
   McCALLUM, J.

The defendant, Dylan Magluilo ("Magluilo"), was convicted by a jury of second degree murder under La. R.S. 14:30.1 and was sentenced to life in prison. Magluilo now appeals, challenging only the sufficiency of the evidence. For the reasons stated herein, we affirm.

FACTS

The prosecution's lay witnesses. On September 8, 2015, a group including Magluilo, Danielle Davis, Todd Scruggs, Lacy Smith, Amanda Thompson, and Tiffany Chaffee booked a room at the Hilton Hotel in downtown Shreveport. All of these group members, except Davis and Magluilo, admitted using methamphetamine during the time frame surrounding this murder.

In his recorded interview with detectives, Magluilo admitted that he had a "gym" bag with him in the hotel room. Tiffany Chaffee saw that Magluilo had a black bandana wrapped around a gun and had a "duffle" bag in the hotel room. Chaffee also testified that Magluilo was a "nervous wreck" and appeared to be high.

Seeking to obtain methamphetamine, Lacy Smith and Todd Scruggs contacted the victim, Mark Cornett, to arrange a purchase. Mark Cornett met them in the parking garage of the Hilton Hotel and took $200 cash as payment for the purchase of methamphetamine. He went alone to retrieve the methamphetamine and returned shortly without it or the money. Cornett indicated they would have to go to a casino near the Shreveport Airport (which is on Monkhouse Drive) to get the methamphetamine.

Cornett got in the driver's seat of his vehicle, while Todd Scruggs got in the front passenger seat and Lacy Smith got in the rear passenger seat. At Scruggs' direction, Cornett stopped in the parking lot of the Hilton and picked up Magluilo, who got in the rear driver-side seat carrying the bag. The four then proceeded along Interstate 20 and exited at Monkhouse Drive.

Lacy Smith testified that, when the car stopped at the red light at the bottom of the exit ramp, she felt movement to her left. She turned and saw that Magluilo was holding a handgun to the back of Mark Cornett's head and then heard a loud bang. Todd Scruggs testified that he was looking to the right when the shot was fired. He heard a loud boom and saw a flash of light. Scruggs stated that after Magluilo shot Cornett and exited the car, Magluilo knelt down and put the handgun in the bag.

After the shooting, Lacy Smith and Todd Scruggs fled the scene together. Magluilo made his escape separately. All three were on foot and contacted Ted Wheat for a ride. Wheat, accompanied by Brooklin Pickett, first went to Monkhouse Drive to pick up Magluilo, but could not find him because he was not where he said he would be. Before Wheat and Pickett left, Lacy Smith contacted them by phone. They picked up Smith and Todd Scruggs at the Moonrider Inn (located on Monkhouse Drive) and took them back to the Hilton Hotel.

Magluilo called Ted Wheat again asking for a ride. Wheat obliged, picking up Magluilo at the Greenwood Road exit on Interstate 20 and taking him to Wheat's shop/residence. Initially, Pickett testified that Magluilo burned his pants at Wheat's shop because they had blood on them. Later, she partially recanted, stating that she actually did not know whose pants were burned and did not see Magluilo without pants.

Amanda Thompson testified that she picked up Magluilo from Ted Wheat's shop/residence and took him to her house. Tiffany Chaffee was already at Thompson's house at this point. Thompson and Chaffee both testified that Magluilo confessed to killing Mark Cornett. However, they reported slightly different explanations of Magluilo's motive.

Thompson testified that Magluilo said he killed Mark Cornett because Todd Scruggs told him to do so. Chaffee testified that Magluilo said he thought the car ride to the casino was a setup for Mark Cornett to kill him. Magluilo explained that he believed this because Todd Scruggs, during the ride, kept turning around and telling Magluilo that Cornett had a gun and was going to kill Magluilo. Magluilo told Chaffee that he shot Mark Cornett when Cornett stopped the car and bent over as if reaching for something. Both Chaffee and Thompson stated that Magluilo's story evolved from initially denying that he was the shooter to admitting he shot Mark Cornett.

The gun and bag were found at a construction site near the crime scene. Chaffee and Thompson stated that Magluilo had Thompson drive past the construction site where Magluilo had left the gun and the bag. Chaffee and Thompson testified that they drove by the site but did not stop.

Magluilo's police interview. Magluilo did not testify at trial. He did give a recorded statement to the police on September 27, 2015, which was introduced into evidence and played for the jury. On the recording, Magluilo admitted to being at the Hilton with Danielle Davis, Tiffany Chaffee, Amanda Thompson, Todd Scruggs, and a woman Magluilo did not know. He also admitted to having with him his gym bag containing "all" his clothing. He further stated that he took the bag when he left the Hilton. He sat directly behind Cornett, who was driving. However, Magluilo denied being in the car at the Monkhouse exit on Interstate 20, and he denied shooting Cornett. Magluilo claimed that, because Cornett appeared high and was swerving all over the road, he got out of Cornett's car at the intersection of Fairfield Avenue and Common Street around 9:00 or 10:00 p.m. on September 8, 2015. From there he walked to his girlfriend's house at 1070 Boulevard Street while carrying the bag containing all his clothing. Once there, Magluilo did not see anyone, and after unsuccessfully trying to contact his girlfriend by throwing rocks at her window, he called his sister, Danielle Coats. Between midnight and 2:00 a.m. on September 9, 2015, she gave him a ride back to the Hilton to get his truck.

The defense's witness . Danielle Coats, Magluilo's sister, was the sole witness called by the defense. Her testimony contradicted Magluilo's recorded statement. She also contradicted Chaffee and Thompson regarding whom Magluilo was with and his whereabouts after leaving Ted Wheat's shop/residence in the early morning hours of September 9, 2015.

Coats testified that her first personal contact with Magluilo on September 9, 2015, was when she went to pick up her vehicle from Ted Wheat's shop/residence around 3:40 a.m. According to Coats, Magluilo left Wheat's shop/residence with her, rather than with Chaffee and Thompson, around 4:30 or 5:00 a.m. and they went to a Motel 6 in Bossier City. She testified that Magluilo was with her intermittently throughout the day. She contradicted his statement that she had dropped him off at his truck at the Hilton. She also stated that she was on the phone with Magluilo at the time of the shooting. She said she heard a gunshot followed by shouting and screaming. Subsequently, she heard a car door open and close after which the call ended.

The investigation . At 3:15 or 3:30 a.m. on September 9, 2015, Mark Cornett's vehicle was discovered stopped at a traffic light on the Monkhouse Drive exit ramp on Interstate 20. The engine was still running. Sergeant Tracy Mendels of the Shreveport Police Department reported to the scene to document and collect forensic evidence. She found Cornett dead in the driver's seat with the seatbelt on, a burned-down cigarette between his fingers, and his right foot on the brake pedal. A cell phone was beneath his left leg on the floor. Cornett's wallet was found, but no gun or other weapon. Blood poured down the back of the driver's seat and sprayed across the backseat. A smear of blood on the backseat suggested that someone may have moved across the backseat and exited the rear passenger side door, which was found open. Sergeant Mendels photographed the exterior and interior of the vehicle.

Sergeant Mendels collected fingerprints from inside and outside the vehicle, but none of the prints were viable enough to aid in identification. She collected swabs of the surfaces and blood inside the vehicle. These were sent to the North Louisiana Crime Lab for testing, along with a spent Hornaday 9 mm cartridge casing that was found on the ground outside the rear passenger door. Sergeant Mendels testified that a parking voucher from the Shreveport Convention Center parking garage was found in the vehicle and the receipt was dated and time stamped for September 9, 2015 at 2:30 a.m., just an hour before the body was discovered and 911 was called.

Sergeant Mendels testified that a bag was found at a construction site immediately North of the intersection of Monkhouse and Interstate 20. The bag contained "a lot" of men's clothing. It contained live 9 mm cartridges, some of which were manufactured by Hornaday. The bag also had blood on it which was still wet. A 9 mm High Point semiautomatic handgun was found nearby at the same construction site. The gun had blood spatter on it, and some of the cartridges in its magazine were manufactured by Hornaday Ammunition.

Dr. James Traylor, the forensic pathologist who performed the autopsy, testified that the cause of death was a single, close contact gunshot wound to the back of the head. He recovered the bullet from Mark Cornett's head in two fragments. The bullet was a jacketed hollow point, and its jacketing had separated from its core.

Carla White, a forensic firearm analyst, test fired a cartridge from the handgun found at the construction site and determined that this gun fired the 9 mm cartridge found by Mark Cornett's car. White compared markings on the test-fired projectile with the fragments recovered from Mark Cornett's head. She determined that the handgun found at the construction site had fired the bullet recovered from Cornett's head.

Audra Williams, a forensic DNA analyst, testified that DNA recovered from the gun matched a Chase Anderson and another person who was not identifiable. Detective Sherita Holden, the lead detective in this case, testified that she investigated Chase Anderson's possible involvement in the murder and determined that he had an alibi witness who would place him elsewhere the night of the murder.

DISCUSSION

Magluilo's sole assignment of error is that the evidence was insufficient to support his conviction for second degree murder. La. R.S. 14:30.1(A)(1) defines second degree murder as "the killing of a human being... [w]hen the offender has a specific intent to kill or inflict great bodily harm." The issue in this case is not whether it was sufficiently proved that second degree murder was committed, but whether it was sufficiently proved that Magluilo is the person who committed the murder.

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 proved beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter , 42,894 (La. App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied , 08-0499 (La. 11/14/08), 996 So.2d 1086. The Jackson standard has been codified in La. C. Cr. P. art. 821 and is applicable in cases involving both direct and circumstantial evidence.

Jackson 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. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So.3d 297. "[I]t is the function of the jury, and not that of the appellate court, to assess the credibility of witnesses." State v. McKinney , 31, 611 (La. App. 2 Cir. 2/24/99), 728 So.2d 1009. "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. Wiltcher , 41, 981 (La. App. 2 Cir. 5/9/07), 956 So.2d 769, citing State v. Burd , 40, 480 (La. App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied 2006-1083 (La. 11/9/06), 941 So.2d 35.

The arguments that Magluilo asserts in support of his assignment of error are as follows: (1) State witnesses Lacy Smith and Todd Scruggs have been in "much prior trouble." At the time of the trial, both were drug users and had narcotics offenses in their criminal histories. Additionally, Todd Scruggs' criminal history includes an armed robbery. (2) Todd Scruggs and Lacy Smith had the same opportunity to commit the murder as did Magluilo, since Scruggs and Smith were both in the vehicle at the time of the shooting. Thus, assuming they committed the crime, they have the incentive to falsely accuse Magluilo. (3) While DNA was found on the murder weapon, none of it proved to belong to Magluilo. Additionally, the defense points out that there were no fingerprints linking Magluilo to the murder. Magluilo also asserts that (4) "many of the state's witnesses' testimony made no sense or was conflicting with evidence," and that "in this case, there is internal contradiction and irreconcilable conflict."

Magluilo's two arguments regarding state witnesses Todd Scruggs and Lacy Smith amount to nothing more than attacks on their credibility. The first argument seeks to impeach their credibility on the basis of their prior felony convictions. The second argument is also a credibility attack, and is premised on the assumption that Scruggs and/or Smith committed the murder. From that assumption, Magluilo reasons that these witnesses therefore had the incentive to falsely accuse him as a means of escaping prosecution themselves. McKinney, supra , makes clear that it is the function of the jury - not that of the appellate court - to determine witness credibility. Thus these arguments are meritless.

Magluilo's argument that the evidence was insufficient because his DNA was not proved to be on the murder weapon and there was no fingerprint evidence linking him to the murder is also meritless. There is no requirement that the state prove second degree murder with fingerprint or DNA evidence. La. R.S. 14:30.1.

Finally, the defense argument that the testimony of "many of the state's witnesses...made no sense or was conflicting with evidence," and "in this case, there is internal contradiction and irreconcilable conflict" also lacks merit. The defendant cites no specific facts whatsoever to support these conclusory allegations. Nor do we find any evidence in the record which would potentially render the evidence insufficient. We do note that Lacy Smith and Todd Scruggs contradicted each other regarding (1) whether there was conversation in the car prior to the shooting; (2) whether, in the days following the shooting, Scruggs was supplying Smith with methamphetamine or vice versa ; and (3) whether Scruggs told Magluilo not to shoot Smith right after Cornett was shot. Bearing in mind the totality of the evidence, these contradictions are immaterial and do not render the evidence insufficient. This is especially so when the evidence is viewed in the light most favorable to the prosecution.

Tiffany Chaffee saw Magluilo with a gun wrapped in a black bandana and carrying the gym/duffle bag at the Hilton shortly before the murder. In the parking lot of the Hilton, Todd Scruggs and Lacy Smith saw Magluilo get into Mark Cornett's vehicle carrying the bag. Lacy Smith testified that during the ride, the bag sat on the backseat between her and Magluilo.

Lacy Smith testified that she saw Magluilo shoot Cornett in the back of the head. Todd Scruggs testified that he heard a loud boom and saw a flash of light; he looked left and saw that Mark Cornett was shot in the head, and saw Magluilo put the gun in the bag after he exited the car.

The bag Magluilo was carrying was found at a construction site near the crime scene still wet with blood. It contained men's clothes and Hornaday 9 mm bullets, i.e. , the same type of ammunition that was used to kill Cornett. The bag and clothing found inside the bag contained DNA (blood) belonging to the victim. The gun used to shoot Cornett was also found hidden within 50 feet of the bag. Magluilo admitted to Tiffany Chaffee and Amanda Thompson that he shot Mark Cornett and that he left his bag and the gun at a construction site near the crime scene.

The evidence presented at trial established that Magluilo shot Mark Cornett with specific intent to kill or inflict great bodily harm. Expert testimony by Dr. Traylor established that Mark Cornett was killed by a single, close-contact gunshot to the back of the head. Magluilo shot Mark Cornett in a manner that left no doubt that he would die.

Expert testimony by Sergeant Mendels - as well as observations by the eyewitnesses to the shooting and the citizens who discovered the crime - established that Mark Cornett was killed inside the vehicle. There was no damage to the outside of the vehicle. There were no windows shot out, and nothing appeared to be missing from the victim, not even his wallet. There was no evidence of a drive-by shooting, robbery, or even a struggle. There was no evidence that suggested Cornett was an aggressor. There was no gun or other weapon recovered from the car or Cornett's person to support an argument that Magluilo was acting in self-defense.

Finally, Magluilo's own sister testified to hearing a gunshot accompanied by screaming while on the phone conversing with him. She then heard a car door open and close before the phone call ended.

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 to be proved beyond a reasonable doubt. The evidence at trial was constitutionally sufficient to convict Magluilo of second degree murder.

CONCLUSION

For the reasons stated above, Dylan Magluilo's conviction and sentence for second degree murder are AFFIRMED.

      As described in more detail infra , the state introduced a picture of the bloody "gym" or "duffle" bag found near the crime scene as State Exhibit 45. At trial, Tiffany Chaffee identified the bag depicted in State Exhibit 45 as the same bag that Magluilo had with him in the Hilton hotel room. For the sake of clarity only, we refer to it as the "bag" for the remainder of this opinion.

      Lacy Smith testified that there was not much talking during the ride, while Todd Scruggs testified that he and Cornett were laughing and joking.

      Smith testified that Scruggs urged Magluilo not to shoot her. Scruggs contradicted Smith on that point.

      Smith and Scruggs' efforts to get a ride from Wheat were independent from Magluilo's efforts to do the same.

      Smith testified that, in the days following the shooting, Scruggs supplied her with methamphetamine. Scruggs, however, testified that Smith supplied him with methamphetamine during that time frame.

      Magluilo stated that he really did not like Cornett for various reasons, and he was concerned about encountering Cornett because Cornett would try to fight him "or something like that" and had threatened to kill him "or something like that."

      One of the interviewing officers noted that it would have been a shorter walk to go back to the Hilton and retrieve his truck than to walk to 1070 Boulevard Street.

      Coates testified that, on the night in question, she was returning from New Orleans, Louisiana, by bus, and arrived in Shreveport at approximately 3:00 a.m. on September 9, 2015.

      A civilian witness testified that, before law enforcement arrived at the scene, another civilian put the car's transmission in park because Cornett's foot on the brake was the only thing keeping the car from moving.

      We note that Sergeant Mendels' statement that the bag had "a lot" of men's clothing in it is consistent with the defendant's statement that his bag had "all" his clothes in it.

      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 so 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. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/6/09), 21 So.3d 299.

      The defense brief states that Magluilo's DNA was not found on the gun. This is not precisely or necessarily true. The testimony of Audra Williams, the only DNA expert who testified, indicates that the DNA found on the gun included: (1) that of Chase Anderson, who was excluded as a suspect via alibi; and (2) a contributor of DNA who was unidentifiable - and thus could have been Magluilo.