author: Judge Regina Bartholomew-Woods

text:
    Mark J. SMITH v. COMMERCIAL FLOORING GULF COAST, LLC D/B/A Priority Floors
    NO. 2018-CA-0537
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
    Kenneth C. Bordes, ATTORNEY AT LAW, 2725 Lapeyrouse Street, New Orleans, LA 70119, Alexandre E. Bonin, R. Christian Bonin, J. Marc Bonin, BONIN LAW FIRM, 4224 Canal Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Eric A. Bopp, BOPP LAW FIRM, 101 Brookside Drive, Suite 101, Mandeville, LA 70470-2297, Edward F. Harold, Wm. Brian London, ATTORNEYS AT LAW, FISHER & PHILLIPS L.L.P., 201 St. Charles Avenue, Suite 3710, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods )
   Judge Regina Bartholomew-Woods

Appellant, Mark J. Smith, appeals the March 27, 2018 judgment of the district court in favor of Appellee, Commercial Flooring Gulf Coast, LLC d/b/a Priority Floors, finding that a valid non-compete/non-solicitation contract existed between the parties. Appellant had sought a declaratory judgment finding the contract invalid, and Appellee filed a reconventional demand seeking injunctive relief and damages.

The parties agreed to address the petition for declaratory judgment and demand for injunctive relief together at a hearing scheduled for March 7, 2018, and submitted post-trial memoranda addressing those issues. However, the district court's written judgment only specifically addressed the petition for declaratory judgment, and was silent as to Appellee's reconventional demand for injunctive relief. As a result, Appellee filed a motion to dismiss the appeal, arguing that it does not constitute a final appealable judgment. The Louisiana Code of Civil Procedure article 1915(B) provides:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The judgment in question disposes of less than all claims addressed at the March 7, 2018 hearing, yet contains no designation that it is a final appealable judgment. Our Court has held that "relief granted or denied must be determinable from the judgment itself without reference to an extrinsic source such as pleadings or reasons for judgment." Bayer v. Starr Int'l Corp. , 2017-0257, pp. 4-5 (La.App. 4 Cir. 8/15/17), 226 So.3d 514, 518 ; See also Claiborne Med. Corp. v. Siddiqui , 2012-759 (La.App. 5 Cir. 2/28/13), 113 So.3d 1109, 1112 (stating that "[t]he specific relief granted or denied should be determinable from the judgment itself without reference to an extrinsic source such as pleadings or reasons for judgment.").

Appellant cites Zatzkis v. Zatzkis , 632 So.2d 307, 313 (La.App. 4 Cir. 1993) for the proposition that "[g]enerally[,] when a judgment is silent with respect to a party's claim, it is presumed that the trial court denied the relief sought[,]" a jurisprudential rule of which we are well aware. While we agree that such a presumption generally exists, it would be inappropriate to apply it under the circumstances presented here, given the interconnected nature of the litigants' competing claims. Appellee prevailed in opposing Appellant's petition for declaratory judgment, yet the district court passed no judgment on whether Appellee is, accordingly, entitled to injunctive relief and damages as a result of the existence of a valid and enforceable contract. Without passing on the merits of the judgment in question, this Court observes that, were we to consider the district court's silence as denial of the injunctive relief, the judgment appears contradictory. In finding that the non-compete clause was valid and enforceable, the district court apparently made a finding that the clause satisfied the requirements of La.R.S. 23:921(C), a finding that we are unable to reconcile with the denial of Appellee's request for preliminary injunctive relief.

We also note that "[a] suit for a declaratory judgment is an ordinary, not a summary proceeding." Couvillion v. James Pest Control, Inc. , 1998-2382 (La.App. 4 Cir. 3/3/99), 729 So.2d 172, 174. A preliminary injunction, however, employs a summary procedure, and "is ancillary to the principal demand for a permanent injunction, in order to prevent irreparable injury during the pendency of the principal demand." Mortg. Elec. Registration Sys., Inc. v. Wells , 2005-0795, p. 6 (La.App. 4 Cir. 4/5/06), 930 So.2d 117, 120 (quoting Abadie v. Cassidy , 581 So.2d 657, 658 (La.1991). Nevertheless, in the interest of expediency, the parties agreed to have both the action for declaratory judgment and preliminary injunction heard at the same time. Thus, the district court failed to specifically address the cause of action for which summary proceedings were appropriate.

The uncertainty created by the district court's failure to specifically address Appellee's counterclaims leaves this Court without information sufficient to invoke its appellate jurisdiction. Accordingly, we find that this Court lacks Appellate jurisdiction, and the appeal is dismissed.

APPEAL DISMISSED

      Irreparable injury need not be shown in this particular context. See La.R.S. 23:921(H).


source: Caselaw Access Project

license: Public Domain

text:
    Karen GUY and Stephen Guy v. The HOWARD HUGHES CORPORATION, and Liberty Mutual Insurance Company
    NO. 2018-CA-0413
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
    Michael S. Brandner, Jr., Scot P. Koloski, MIKE BRANDNER INJURY ATTORNEYS, LLC, 2000 Clearview Parkway, Suite 101, Metairie, LA 70002, Joseph "Joey" F. Lahatte, III, LAHATTE LAW FIRM, L.L.C., 2000 Clearview Parkway, Suite 203, Metairie, LA 70001, James J. Carter, CARTER & MCKEE, LLC, 1100 Poydras Street, Suite 1475, New Orleans, LA 70163, COUNSEL FOR PLAINTIFF/APPELLANT
    Nahum D. Laventhal, LAW OFFICE OF KIMBERLY G. ANDERSON, 3850 N. Causeway Blvd., Suite 1230, Metairie, LA 70002, Kevin Phayer, ATTORNEY AT LAW, LAW OFFICE OF ROBERT E. BIRTEL, 3850 N. Causeway Blvd., Suite 220, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods )
   Judge Regina Bartholomew-Woods

In this civil appeal, Plaintiffs-Appellants seek review of the trial court's February 15, 2018 judgment granting summary judgment in favor of Defendants-Appellees, dismissing Plaintiffs-Appellants' claims. On appeal, Plaintiffs-Appellants argue that the trial erred in granting summary judgment because there existed a genuine issue of material fact making summary judgment improper. They further allege that in granting summary judgment, the trial court incorrectly applied the doctrine of force majeure . For the reasons that follow, we reverse the trial court's granting of summary judgment and remand for further proceedings.

FACTUAL BACKGROUND

On July 1, 2015, Plaintiffs-Appellants Karen Guy ("Ms. Guy"), Steven Guy ("Mr. Guy"), and their dependent, Zak Guy (collectively "Appellants") visited Spanish Plaza, which is adjacent to the Mississippi River and the New Orleans Riverwalk. While there, it began to rain and Appellants took refuge from the weather under a kiosk/display cart. A tent collapsed onto the kiosk/display cart under which Appellants were standing, pinning and injuring Ms. Guy. As a result, Ms. Guy suffered an amputated finger, cognitive defects, mental anguish associated with an amputated finger, and an inability to play the piano, which is her trade; Mr. Guy and their dependent son suffered mental and emotional injuries.

PROCEDURAL HISTORY

Appellants filed a petition for damages against Defendants-Appellees Riverwalk Marketplace, L.L.C., and Liberty Mutual Insurance Company, alleging that Defendant-Appellees' negligence caused Ms. Guy's injuries. Following discovery, Appellants amended their petition for damages to name as defendants Scurlock Rentals, L.L.C., and Western Heritage Insurance Company (collectively, all of these parties are referred to as "Appellees"). Thereafter, Defendant, United States Fire Insurance Company, filed a motion for summary judgment seeking to dismiss all claims pursuant to the doctrine of force majeure ; all other Defendants joined the motion. In opposition to Defendants-Appellees' motion for summary judgment, Appellants provided the depositions of two (2) expert witnesses - meteorologist Edwin Roy and engineer Frederich W.L. Gurtler. On February 15, 2018, the trial court granted Appellees' motion for summary judgment, and dismissed Appellants' claims. It is from this judgment that Appellants now appeal.

DISCUSSION

On appeal, Appellants raise the following assignments of error:

1. Whether the trial court erred in granting Appellees' motion for summary judgment because there exists a genuine issue of material fact as to whether Appellees properly secured the tents and kiosks/display carts in Spanish Plaza, and whether Appellees' negligence in failing to secure the tents and kiosks/display carts caused Appellants' injuries; and
2. Whether the trial court erred in applying the doctrine of force majeure .

Standard of Review

This Court has explained the standard of review applied when evaluating motions for summary judgment.

An appellate court conducts a de novo review, applying the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Brown v. Amar Oil Co. , 2011-1631, p. 2 (La. App. 1 Cir. 11/8/12), 110 So.3d 1089, 1090 (citing Sanders v. Ashland Oil, Inc. , 96-1751, p. 6 (La. App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035 ). A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Collins v. Randall , 2002-0209, p. 3 (La. App. 1 Cir. 12/20/02), 836 So.2d 352, 354. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. King v. Allen Court Apartments II , 2015-0858, p. 3 (La. App. 1 Cir. 12/23/15), 185 So.3d 835, 837, writ denied , 2016-0148 (La. 3/14/16), 189 So.3d 1069. This procedure is favored and shall be construed to accomplish these ends. Id. ; see also La. C.C.P. Art. 966 A(2).
The initial burden of proof rests on the moving party. La. C.C.P. Art. 966 D(1). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather, to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. King , 2015-0858 at p. 3, 185 So.3d at 838. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. It is only after the motion has been made and properly supported that the burden shifts to the non-moving party. Brown , 2011-1631 at p. 3, 110 So.3d at 1090-91 ; Pugh v. St. Tammany Parish School Bd. , 2007-1856, p. 3 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 98.
A genuine issue is a triable issue. Brown , 2011-1631, p. 3, 110 So.3d at 1090-91. Jones v. Stewart , 2016-0329, p. 7 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 389, writs denied , 2016-1967 (La. 12/16/16), 211 So.3d 1169. More precisely, an issue is genuine if reasonable persons could disagree. Id. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Id. A fact is material when its existence or non-existence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Id. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Id. ; King v. Illinois Nat. Ins. Co. , [20] 08-149, p. 6 (La. 4/3/09), 9 So.3d 780, 784. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of substantive law applicable to the case. Brown , 2011-1631 at p. 3, 110 So.3d at 1091 ; Hall v. Our Lady of the Lake R.M.C. , 2006-1425, p. 9 (La. App. 1 Cir. 6/20/07), 968 So.2d 179, 185.
In order to determine whether the trial court's grant of summary judgment was proper, this court must look to the applicable substantive law.

Alexander v. Hancock Bank , 2016-0662, pp. 2-4 (La. App. 4 Cir. 2/8/17), 212 So.3d 713, 715-16.

Law & Analysis

Appellees moved for summary judgment and asserted an affirmative defense of force majeure , which is sometimes referred to as the "Act of God defense." 12 La. Civ. L. Treatise, Tort Law § 25:5 (2d ed.). This Court explained that

[a]n act of God or force majeure is "an unusual, sudden and unexpected manifestation of the forces of nature which man cannot resist." Greene v. Fox Crossing, Inc., 32,774, p. 5 (La. App. 2 Cir. 3/1/00), 754 So.2d 339, 343 (citing Caldwell v. Let The Good Times Roll Festival, 30,800 (La. App. 2 Cir. 8/25/98), 717 So.2d 1263, 1272 ). To be caused by an act of God, the plaintiff's injury must be due directly and exclusively to natural causes that could not have been prevented by the exercise of reasonable care. Id. This court has held that two circumstances must exist for the act of God defense to apply: (1) the accident is directly and exclusively due to natural causes without human intervention; and (2) no negligent behavior by the defendant(s) has contributed to the accident. Terre Aux Boeufs Land v. J.R. Gray Barge, [20] 00-2754, p. 8 (La. App. 4 Cir. 11/14/01), 803 So.2d 86, 93.

Duboue v. CBS Outdoor, Inc. , 2008-0715, pp. 4-5 (La. App. 4 Cir. 10/1/08), 996 So.2d 561, 563. This Court has also stated that the force majeure defense is not absolute, and:

The defense does not apply if human fault is involved in causing the loss. Saden v. Kirby, [19] 94-0854, p. 8 (La. 9/5/95), 660 So.2d 423, 428. It has been held that a party may be held liable for damages that would not have occurred, but for his own conduct or omission, when combined or concurrent with a "force majeure " or "Act of God." Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge Co., 2000-2754 (La. App. 4 Cir. 11/14/01), 803 So.2d 86.

Bush v. Bud's Boat Rental, LLC , 2013-0989, pp. 3-4 (La. App. 4 Cir. 2/26/14), 135 So.3d 1189, 1191-92.

When evaluating Appellee's affirmative defense of force majeure , this Court also reviews La. C.C.P. art. 966(D)(1), which states, in pertinent part, that "[t]he burden is on the adverse party [herein, Appellants] to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." To this end, Appellants presented two (2) expert witnesses - Ed Roy ("Mr. Roy"), a meteorologist, and Frederich W. L. Gurtler ("Mr. Gurtler"), an engineer.

By definition, force majeure or an Act of God is "unusual, sudden and unexpected." Duboue at 563,. When deposed, Mr. Roy, Appellant's expert meteorologist, testified that he reviewed the meteorological data and the data from the closest Doppler radar for July 1, 2015. He stated that the weather was "expected" and "nothing out of the ordinary" for a "typical summer rainstorm" "not only in the New Orleans area, but throughout the State of Louisiana, and throughout the Gulf South." Mr. Roy further testified that it is "not uncommon to have gusty surface winds like that with thunderstorms in July." Finally, Mr. Roy denied that the weather was "a severe thunderstorm." When deposed, Mr. Gurtler, Appellant's expert engineer, testified that he reviewed the meteorological data from Weather Underground for July 1, 2012; July 1, 2013; July 1, 2014; and July 1, 2015. Mr. Gurtler explained that the weather conditions, specifically the wind speeds and gusts, were consistent on each date. Mr. Gurtler's weather observations further confirmed that the weather at issue was not "unusual, sudden and unexpected." Conversely, Appellees presented no evidence to negate these findings. This Court, in Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge Co. , 2000-2754, p. 6 (La. App. 4 Cir. 11/14/01), 803 So.2d 86, 91, looked to Skandia Ins. Co., Ltd. v. Star Shipping AS, 173 F.Supp.2d 1228, 1240 (S.D. Ala.2001), a federal maritime case, which reasoned that "... storms that are usual for waters and the time of year are not 'Acts of God' ..." Accordingly, contrary to the trial court's ruling on this issue, we find that, based on the uncontroverted testimony of both of the Appellants' experts, the injuries suffered by Appellants on July 1, 2015, were not caused by a force majeure or an Act of God.

Furthermore, this Court, in Terre Aux Boeufs Land Co., Inc. 803 So.2d at 91 reasoned that

regardless of the type of "heavy weather," "it is certain that human negligence as a contributing cause defeats any claim to the 'Act of God' immunity[,]" because an "Act of God" is not only one which causes damage, but one as to which reasonable precautions and/or the exercise of reasonable care by the defendant, could not have prevented the damage from the natural event.

Id. at 92. In applying the aforementioned to the present case, Mr. Roy testified that he reviewed surveillance video of the instant incident, and determined that because the carts moved or rolled, they were not anchored. Mr. Roy also explained that because a tent collapsed, it was not properly anchored. Mr. Roy further reasoned it was possible that interior, rather than exterior, kiosks had been placed in Spanish Plaza, an outdoor area. Mr. Roy opined that Appellees' failure to properly anchor or secure the carts, tents, and kiosks contributed to Appellants' injuries. Conversely, Appellees provided no evidence to negate the testimonial evidence offered by Appellants' expert witnesses.

CONCLUSION

For the aforementioned reasons, we find that the trial court committed error when it granted summary judgment. Accordingly, we reverse and remand for further proceedings.

REVERSED AND REMANDED

LOBRANO, J., CONCURS IN THE RESULT

      This Court, guided by the Louisiana Supreme Court's decision in Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002, reasoned " that summary judgment was warranted when a plaintiff has only conclusory, speculative testimony and the physical evidence is uncontroverted." Bridgewater v. New Orleans Reg'l Transit Auth. , 2015-0922, p. 14 (La. App. 4 Cir. 3/9/16), 190 So.3d 408, 417. It stands to reason that a summary judgment should be denied when the movant, herein Appellees, fail offer any scintilla of evidence that controverts the testimonial evidence offered by Appellants' expert witnesses.


author: Judge Joy Cossich Lobrano

text:
    Frederick EVERETT v. INTORBUS OF NEW ORLEANS, LLC and Japerlet Wilson
    Kevin Everett v. Intorbus of New Orleans, LLC and Occidental Insurance Company
    Sequin Brimmer v. Intorbus of New Orleans LLC; Japerlet Wilson; and IAT Specialty Acceptance Insurance Company
    NO. 2017-CA-0643 NO. 2017-CA-0644 NO. 2017-CA-0645
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
    Leonard J. Cline, Jr., LEONARD J. CLINE, P.L.C., 3021 35th Street, Suite A, Metairie, LA 70001, COUNSEL FOR PLAINTIFF/APPELLANT
    Evan J. Bergeron, DEUTSCH KERRIGAN, LLP, 755 Magazine Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods )
   Judge Joy Cossich Lobrano

In this automobile accident case, plaintiff/appellant, Frederick Everett ("Everett"), appeals the November 18, 2016 judgment of the district court dismissing with prejudice all claims against defendants/appellees, Intorbus of New Orleans, LLC ("Intorbus"), Japerlet Wilson ("Wilson"), and Occidental Fire and Casualty Company of North Carolina (collectively "Appellees"). For the reasons that follow, we reverse and remand this matter to the district court for further proceedings.

This litigation arises from the claims of three plaintiffs - Everett, his brother Kevin Everett ("Kevin"), and passenger Sequin Brimmer ("Brimmer")(collectively "plaintiffs"). Each plaintiff was represented by separate counsel, and each filed a separate lawsuit. These three lawsuits were consolidated and scheduled for a jury trial.

This case concerns the second of two alleged accidents. In the first accident, Everett was operating an automobile in which Brimmer was a passenger when the automobile was rear-ended by a vehicle operated by Jesse Conrad ("Conrad"). Everett, thereafter, settled his claims against Conrad. Following the first accident, Kevin came to the scene to assist Everett. Next, a second accident allegedly occurred in which a double decker tour bus, owned by Intorbus and operated by Wilson, sideswiped the Everett automobile. As discussed herein, there was conflicting testimony about which of the three plaintiffs were inside the automobile during the second accident and about whether the bus collided with the automobile at all.

A four-day jury trial began on October 24, 2016. On October 27, 2016, the jury finished its deliberations and found that Wilson was not negligent. Accordingly, on November 18, 2016, the district court rendered judgment dismissing all claims against Appellees. Everett filed a motion for judgment notwithstanding the verdict and/or new trial, which was denied. Everett was the only plaintiff to appeal.

On appeal, Everett raises the following assignments of error, arguing that the district court erred as follows:

(1) in refusing to admit the deposition of an independent witness, Gilbert White;
(2) in refusing to either grant plaintiffs' motion for continuance or permit plaintiffs to take the trial deposition of the investigating officer;
(3) by rigidly enforcing trial management restrictions in a manner which deprived plaintiffs of a reasonable opportunity to present their case;
(4) in excluding the photographs taken at the scene by defendant's supervisor and produced by defendant during discovery; and
(5) in prohibiting plaintiffs' treating physicians from offering opinions on medical causation and in requiring all references to causation to be deleted from Everett's medical records.

The primary issue before this Court implicates Everett's first and third assignments of error: whether the district court erred as a matter of law in not permitting plaintiffs sufficient time to present evidence in support of their respective cases. Everett attests that, had the district court allowed him more time, he would have called Gilbert White ("White") to testify by deposition. White was the only nonparty witness who testified that all three plaintiffs were in the Everett vehicle when it was sideswiped by the bus.

Ordinarily, a district court's evidentiary and docket-management rulings are subject to the abuse of discretion standard of review. Bell v. Mid City Printers, Inc. , 2010-0818, p. 9 (La. App. 4 Cir. 12/22/10), 54 So.3d 1226, 1233 ; Cooper v. Lacorte , 99-1726, p. 3 (La. App. 4 Cir. 5/17/00), 775 So.2d 4, 7, opinion amended on reh'g , 99-1726 (La. App. 4 Cir. 1/31/01), 775 So.2d 704. If, however, a district court's ruling is "based on its erroneous interpretation or application of law, rather than a valid exercise of discretion," such incorrect ruling "is not entitled to deference" by the appellate court. Billieson v. City of New Orleans , 2002-1993, p. 4 (La. App. 4 Cir. 9/17/03), 863 So.2d 557, 560 (citation omitted). The appellate court reviews questions of law to determine whether the district court was legally correct or legally incorrect. Driscoll v. Mazaleski , 2011-1719, p. 6 (La. App. 4 Cir. 5/30/12), 95 So.3d 1140, 1144.

This Court has examined whether a district court violated a plaintiff's due process rights and prevented the plaintiff from properly presenting all necessary and relevant evidence and explained as follows:

We begin with La. Const. Art. I, § 22, which reads as follows:
All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.
La. C.C.P. art. 1631 A also has bearing on this issue, and states in relevant part:
The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings as the trial, so that justice is done.
We recognize a trial court has the discretion to control its docket and, thus, place reasonable time limits on the amount of time allotted to try a case so that all litigants have fair access to the court. However, that limit must allow a party to present evidence to support the litigant's case.
While this precise issue of time limits has never [before] been addressed by this court, our brethren in the Second Circuit have considered the issue of time limitations on the presentation of evidence by a party. In Goodwin v. Goodwin , 618 So.2d 579, 583-84 (La. App. 2nd Cir. 1993), writ denied , 623 So.2d 1340 (La. 1993), the court identified certain non-exclusive guidelines to be followed by a trial court should it decide to place such time limitations. These are: (1) litigants have a general right to present all evidence he/she possesses with regard to the contested issue at trial that is relevant, admissible, and not cumulative, tempered by La. C.E. art. 403 ; (2) before imposing time limitations, the trial judge should be thoroughly familiar with the case through pretrial proceedings, including status conferences, pretrial conferences, and discovery; (3) if time limitations are used, time limits should normally be imposed on all parties, before any party presents any evidence, and sufficiently in advance of trial for the litigants to prepare for trial within the limits imposed; (4) the trial judge should inform the parties before the trial begins that reasonable extensions of the time limits will be granted for good cause shown; (5) the trial judge should develop an equitable method of charging time against each litigant's time limits. Rather than charging each side for the total time used to present its case, the judge should generally charge each party for the time the litigant uses, whether it be used on direct or cross-examination; and (6) the trial judge should put all of the court's rulings regarding time limitations and the reasons for the rulings on the record.

Plaia v. Stewart Enters., Inc. , 2014-0159, pp. 11-12 (La. App. 4 Cir. 10/26/16), 229 So.3d 480, 490-91 (footnotes omitted).

Here, the parties jointly filed a pretrial outline stating that the jury trial was expected to last four days. The district court stated multiple times throughout trial that she would not extend the trial beyond the fourth day.

Prior to trial, Everett filed a motion to declare White an unavailable witness, as Everett was unable to locate White to testify live at trial. The motion was orally granted during trial. Everett did not read White's deposition to the jury during his case in chief. Kevin then sought to introduce White's testimony after the defense rested, as rebuttal to Wilson's trial testimony that she saw only one person in the Everett vehicle, a woman. Wilson's trial testimony was inconsistent with her prior deposition testimony that she saw two people in the Everett vehicle. The district court, citing time constraints, did not allow White's deposition to be read to the jury or admitted into evidence. White's deposition is 57 pages long, and counsel argued that it would take 15 to 30 minutes to read to the jury.

The facts of the alleged accident and credibility of witnesses were very much in dispute in this case. Everett, Kevin, Brimmer, and Conrad all testified that the bus collided with the Everett vehicle. White, too, would have testified by deposition that the bus collided with the Everett vehicle. Wilson, in her testimony, denied any collision. Everett and Kevin testified that they, along with Brimmer, were in the Everett vehicle at the time of the collision with the bus. Brimmer, however, testified that she was the only one in the Everett vehicle at that time. Wilson, while denying that any collision occurred, likewise testified that she saw only a woman inside the Everett vehicle. Conrad testified that, at the time of the collision, he saw in the vehicle a woman and a man, though he admitted it was possible that there was a third person he did not see. White was the only nonparty witness who would have testified that all three plaintiffs were in the Everett vehicle at the time of the collision.

We recognize that the three plaintiffs' testimonies diverged from one another, and there was testimony about personal animosity between the Everetts and Brimmer. The three plaintiffs were each represented by separate counsel, and questioning by counsel took longer than it would have, had there been only one plaintiff or had all plaintiffs' interests been aligned. The record also reflects that a fire drill interrupted trial for an hour and a half. The district court expressed the view on several occasions that the entire trial must invariably be completed in four days, trial would not be extended into a fifth day, and any extension of time for a plaintiff to put on his case would require that time be subtracted from the defendants' case in chief.

Considering the facts of this case under the guidelines discussed in Plaia , we find that Everett was denied due process. Under the particular circumstances before us, it was not reasonable for the district court to exclude White's brief rebuttal testimony on the grounds of trial time management. It is evident that the jury credited Wilson's testimony over that of the three plaintiffs. However, Wilson gave inconsistent testimony regarding her account of the alleged accident, and the jury did not hear White's rebuttal testimony. Because the jury found no negligence by Wilson, it did not reach the issue of damages. White's testimony might have changed the jury's findings with respect to Appellees' liability. While the district court has great discretion to impose reasonable time limits on its docket, those limits "must allow a party to present evidence to support the litigant's case." Plaia , 2014-0159, p. 11, 229 So.3d at 490. The district court erred in this respect. We, therefore, reverse the district court's judgment and remand this matter for a new trial.

Because of our findings herein, we pretermit Everett's remaining assignments of error.

Accordingly, we reverse the November 18, 2016 judgment of the district court and remand this matter to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      The district court also denied Everett's request to extend trial by one hour for further cross examination of Wilson. The trial transcript indicates that the district court interrupted Everett's counsel three times in front of the jury during Wilson's cross examination to admonish that counsel was exceeding the fifteen minutes collectively allotted the three plaintiffs.


author: JUDGE SANDRA CABRINA JENKINS

text:
    STATE of Louisiana v. Rayne WILLIAMS
    NO. 2016-KA-0982
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
    Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Kyle Daly, Assistant District Attorney, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE / STATE OF LOUISIANA.
    Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073-2333, COUNSEL FOR APPELLANT / DEFENDANT.
    (Court composed of Chief Judge James F. McKay, III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins )
   JUDGE SANDRA CABRINA JENKINS

Defendant, Rayne Williams, was charged by bill of information on May 17, 2012, with one count of attempted second degree murder, a violation of La. R.S. 14:(27)30.1. His co-defendant, Greenville Mahogany, was also charged in the same bill of information with one count of attempted second degree murder and one count of discharging a firearm during a crime of violence, in violation of La. R.S. 14:98(F). On February 21, 2014, at the conclusion of a joint bench trial, the trial court found each defendant guilty as charged. The trial court sentenced defendant to ten years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served.

Defendant then filed this appeal of his conviction and sentence, raising two assignments of error. In a prior opinion, State v. Williams , 16-0982 (La. App. 4 Cir. 9/20/17), 225 So.3d 1124 (" Williams I "), this Court concluded that the case should be remanded to the trial court for an evidentiary hearing to determine whether defendant knowingly and intelligently waived his right to a jury trial. In addition, this Court pretermitted and preserved for appellate review defendant's remaining assignment of error as to the sufficiency of the evidence to sustain his conviction.

Defendant sought supervisory review in the Louisiana Supreme Court, arguing that this Court erred in remanding the case without first considering defendant's assignment of error as to the sufficiency of the evidence. The Louisiana Supreme Court granted defendant's writ, reversed this Court's decision, and remanded to this Court for a decision on the pretermitted issue of the sufficiency of the evidence to sustain defendant's conviction, pursuant to State v. Hearold , 603 So.2d 731, 734 (La. 1992). State v.Williams , unpub., 17-1816 (La. 9/21/18), 252 So.3d 892.

Upon review of the evidence and testimony presented to the trial court in this case, viewed in the light most favorable to the prosecution, we find the evidence was sufficient to establish that defendant committed attempted second degree murder. However, as discussed in this Court's prior opinion, we find that the record does not reflect whether defendant knowingly and intelligently waived his right to a jury trial. Williams I , supra Thus, we remand this case to the trial court for an evidentiary hearing to make that determination.

STATEMENT OF FACT

At the bench trial of this case, the following testimony and evidence was presented:

NOPD Officer Zenia Smith Williams responded to the November 20, 2011, shooting of Winfield Brazile on Downman Road. She testified that Christopher Baham was arrested, convicted of the shooting, and received a twenty-year sentence.

Winfield Brazile, III, the victim, testified that he was a lifelong resident of New Orleans and the CEO of Life or Death Record Company. His job involved staging music concerts, videos, and internet advertisements. One of the venues for his music concerts was the Sports Café ("the club") on Downman Road. The victim recalled an incident that occurred at the club on October 9, 2011, at about midnight. The victim saw his "godbrother" and Baham involved in a verbal altercation. The victim's "godbrother" told the victim that he did not know Baham and then walked away. Baham then told the victim, "It's going down," as soon as the victim left the premises. The club's D.J. informed the victim that Baham was his cousin, and he would handle the matter with Baham outside. As Baham left the club with the D.J., he told the victim he was armed. The victim told the group still inside the club he did not want any trouble. Shortly thereafter, Baham and one of his friends re-entered the club, stood next to the victim, and began sizing him up. Once again, the victim told Baham that he did not want any trouble. Fearing Baham would attack him, the victim struck Baham in the face while exiting the club and ran. The victim encountered the police in the parking lot and explained he was threatened by someone inside the club, after which the police advised the victim to leave the area.

On the night of November 20, 2011, the victim had another concert at the Sports Café. At about 2:30 a.m., the victim noticed Greenville Mahogany enter the club with a friend. Recognizing Mahogany from the previous incident at the club, the victim was uncomfortable in Mahogany's presence and decided to leave. When the victim went out to his car, Mahogany was leaning on the vehicle in front of the victim's car. The victim then looked over his shoulder and observed Baham running at him holding a gun. The victim recognized Baham as the man he had hit in the face during the previous incident at the club. When he saw Baham approaching with the gun, the victim turned and ran to a service station on Dwyer and Downman Road. As he fled, the victim heard gun shots and felt the impact of being hit in his side and his back.

The victim spent four days in a hospital recovering from his gunshot wounds. After the victim was released from the hospital, he did some "Facebook research" to learn the identity of the people involved in the incidents at the club. He relayed to the police the information and pictures he gathered online.

On December 19, 2011, as the victim stopped to speak with a friend at a mechanic shop on the I-10 Service Road and Morrison Avenue, he noticed a white Dodge Charger enter the parking lot and drive past him. The victim noticed that the defendant was driving the Charger. The victim told his friend that he had to leave because he believed that the men in the Charger had something to do with him being shot in the earlier incident. As the victim drove from the parking lot, he observed the Charger follow his car. The victim drove on the I-10 Service Road and turned onto Mayo Boulevard with the Charger following him. At the next intersection, the victim's passage was blocked by a truck. At that point, the Charger pulled alongside the victim's car. The victim saw Mahogany, riding as a passenger in the Charger, lean out of the window, pull a gun, and start shooting at the victim. Mahogany fired several shots into the victim's car; then, the Charger drove off. The victim was able to drive to his girlfriend's house, where he discovered he had been shot in his left side. His girlfriend called an ambulance, and the victim was transported to the hospital.

After he was released from the hospital, the victim contacted Detective Guient, telling him that he believed Mahogany and a man named "Junior" or "Ace" were responsible for this second shooting. The victim supplied Det. Guient with a picture of Mahogany, who the victim stated was the man who shot him, retrieved from Facebook. Later, defendant learned that the name of the second person involved in the shooting was not "Junior" but Rayne Williams, defendant. The victim spoke again with Det. Guient about how he learned the name of defendant from pictures found on Facebook. Then, fearing for his safety, the victim left New Orleans and did not return until after Mahogany was arrested.

On January 24, 2012, the victim returned to New Orleans and spoke with Det. Guient, who had compiled photographic lineups. From two six-pack photographic lineups, the victim identified Mahogany, as the person who shot him, and defendant, as the person driving the Charger.

David Murthil testified that he had known the victim since childhood, and he knew Mahogany because they had been cellmates at Orleans Parish Prison from 2011 to 2012; however, Murthil did not know defendant. Murthil stated that he learned about the December 2011 shooting from Mahogany while they were cellmates. Mahogany had asked Murthil if he was from New Orleans East and if he knew someone named "Spooney." When Murthil denied knowing that person, Mahogany told Murthil about an incident at the Sports Café involving "Spooney." Mahogany stated that this "Spooney" had hit his friend, Christopher Baham, with a beer bottle; and on the next night, when Mahogany and Baham spotted "Spooney" drive up to the Sports Café, Mahogany distracted "Spooney" and Baham shot him. Mahogany also told Murthil that he later learned that "Spooney" was still alive and "had some money out on his head"; so Mahogany and defendant found and shot the victim on Morrison Avenue and Mayo Street.

Murthil testified that he relayed to the victim, whom he knew as "Scoonie," what Mahogany had told him. Subsequently, Mahogany learned that Murthil knew the victim as "Scoonie" not "Spooney." When Mahogany found out about Murthil's relationship with the victim, he backtracked from his confession and stated that he only told Murthil what the State was alleging he had done to the victim.

Murthil also testified that he was incarcerated at the time of this trial, serving a sentence on a burglary conviction; but he stated that the State had not promised him anything in return for his testimony.

During cross-examination, Murthil stated that Mahogany also told him the victim shot back at him and the defendant. Murthil later added that "Scoonie" told him he tried to defend himself and shoot back when "Rayne and Greenie [Mahogany] pulled up on him and started shooting."

NOPD Detective Borjius Guient testified that he was the lead investigator to the shooting that injured the victim on December 19, 2011. Det. Guient stated that the victim's injury did not require any surgical repair and that the victim was coherent when Det. Guient conducted an initial interview with him at the hospital. During that initial interview, the victim could not identify the person driving the vehicle involved in the shooting. Det. Guient also testified that the vehicle involved in the shooting was recovered, but he stated there was no physical evidence linking defendant to that vehicle.

On January 24, 2012, Det. Guient spoke with the victim by phone. At that time, the victim told him that the second person in the vehicle went by the name "Junior." After they spoke, Det. Guient arranged for the victim to view photographic lineups. From one of the lineups, the victim identified defendant as the second person involved in the shooting. However, shortly afterwards, the victim contacted Det. Guient and stated he wanted to be "a hundred percent sure" and he would contact Det. Guient when he was sure about his identification. Subsequently, in April 2012, the victim made a second photographic lineup identification of defendant as the person driving the vehicle involved in his shooting. Based on that identification, Det. Guient obtained an arrest warrant for defendant.

NOPD Officer Donald Blackwell testified that he was the initial officer to investigate the shooting on December 19, 2011. Blackwell spoke to the victim at the hospital. The victim, who was conscious and lucid, related to Blackwell that he was speaking to a friend, when a white Dodge Charger pulled up. The friend asked the victim whether the person in the Charger was "Greenie," the man who had shot him. The victim told Ofc. Blackwell that as he drove away, he was followed by the Charger, which was driven by "Junior" or "Ace," with "Greenie" riding as a passenger. At some point, the Charger pulled alongside the victim's car, and the occupant fired at the victim. Ofc. Blackwell acknowledged that the victim did not mention the name of Mahogany or defendant during the interview.

The victim was recalled to testify by defense counsel. Defense counsel asked the victim about his relationship to Murthil. The victim referred to Murthil as a close friend and confirmed that he and Murthil had several conversations, while Murthil and Mahogany were cellmates, about Mahogany having shot the victim. The victim vehemently denied telling his friend "Aaron" that Mahogany did not shoot him; however, he admitted to defense counsel that he thought of dealing with Mahogany via "street justice." The victim testified he had owned guns in the past but not at the time of this shooting. He acknowledged that he obtained a picture of Mahogany from a local webpage and gave that picture to the police as identification of the man who shot him.

Ms. Gaidrelle Chamberlain testified that Mahogany was her best friend. Ms. Chamberlain stated that on December 19, 2011, the day of this shooting, Mahogany was helping her cut the grass at her mother's house on West Laverne Street at around noon. She stated that they finished cutting the grass about an hour later and remained together until 2:00 a.m. or 3:00 a.m. the following morning. Ms. Chamberlain asserted that Mahogany did not leave her company the entire day.

Mahogany testified in his own defense. He corroborated Ms. Chamberlain's testimony regarding his whereabouts on December 19, 2011. He denied shooting the victim and stated he did not know the victim or have any disputes with him or the victim's friends. Mahogany stated he witnessed the victim hit Baham with a beer bottle at the Sports Café on Downman Road. However, he denied knowing what the problem was between the victim and Baham, and he did not interject himself into their dispute. Mahogany also denied telling Murthil he attempted to kill the victim.

Defendant did not testify during the trial.

DISCUSSION

Sufficiency of the Evidence

In the second assignment of error, previously pretermitted by this Court, defendant argues that the evidence is insufficient to prove that he was a principal to the attempted murder of the victim.

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court "must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Ennis , 11-0976, pp. 4-5 (La. App. 4 Cir. 7/5/12), 97 So.3d 575, 579 (quoting State v. Brown , 03-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18 ).

"When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that 'assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.' " Brown , 03-0897, p. 22, 907 So.2d at 18 (citing State v. Neal , 00-0674, p. 9, 796 So.2d 649, 657 (La. 2001) ). Ultimately, all evidence, both direct and circumstantial must be meet the Jackson reasonable doubt standard. Id. (citing State v. Rosiere , 488 So.2d 965, 968 (La. 1986) ).

"When a key issue at trial whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof beyond a reasonable doubt." State v. Peters , 12-1641, p. 17 (La. App. 4 Cir. 8/21/13), 123 So.3d 307, 316 (quoting State v. Holmes , 05-1248, pp. 8-9 (La. App. 4 Cir. 5/10/06), 931 So.2d 1157, 1162 ). "The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witnesses." Id. , 12-1641, pp. 17-18, 123 So.3d at 317. "The testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction." State v. Taylor , 12-0345, p. 19 (La. App. 4 Cir. 6/26/13), 118 So.3d 65, 77. The trier of fact's determination of the credibility of a witness is entitled to great deference and will not be disturbed unless it is clearly contrary to the evidence. State v. James , 09-1188, p. 4 (La. App. 4 Cir. 2/24/10), 32 So.3d 993, 996 (citing State v. Vessell , 450 So.2d 938, 943 (La. 1984) ).

In this case, defendant was convicted of attempted second degree murder. To obtain a conviction for attempted second degree murder, the State must prove the defendant: (1) intended to kill the victim; and (2) committed an overt act tending towards the accomplishment of the victim's death. Id. (citing Bishop , 01-2548, p. 4, 835 So.2d at 437 ). Attempted second degree murder requires proof of specific intent to kill. State v. Bishop , 01-2548, p. 4 (La. 1/14/03), 835 So.2d 434, 437. Specific intent exists "when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the defendant's actions. State v. Johnson , 08-1488, p. 9 (La. App. 4 Cir. 2/10/10), 33 So.3d 328, 334.

In addition, La. R.S. 14:24 provides that, "[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals." In order to convict a defendant as a principal to an offense, the State must show that a defendant has the requisite mental intent to commit the offense.

State v. Pleasant , 11-1675, p. 18 (La. App. 4 Cir. 10/17/12), 102 So.3d 247, 257. "Although factors that can contribute to the finding that a defendant is a principal include 'standing by the scene of the crime ready to give some aid if needed, it is necessary that the principal actually be aware of the accomplice's intention.' " Id. (quoting State v. Anderson , 97-1301, p. 3 (La. 2/6/98), 707 So.2d 1223, 1225 ).

Defendant argues that the victim did not originally identify defendant as the driver of the Charger and gave conflicting statements about whether defendant or Mahogany was driving the Charger; thus, he argues that the victim's identification is unreliable. In addition, defendant argues there is no direct, physical evidence implicating defendant in the shooting; and, consequently, he asserts that the State failed to carry its burden to prove defendant's identity as a principal to the offense.

At trial, the victim testified that he saw defendant driving the white Charger that pulled into the parking lot where he was talking with a friend; he observed the Charger following him as he drove to his girlfriend's house; then, when the Charger pulled up alongside him, the victim saw defendant driving and Mahogany lean out the passenger window, pull a gun, and start shooting at him. Although the victim acknowledged that he incorrectly stated to Det. Guient that the driver went by the name "Junior" or "Ace," the victim recognized defendant in the pictures he found on Facebook as the person driving the Charger when he was shot by Mahogany. The victim later identified defendant in two separate photographic lineups, to which Det. Guient testified. In addition, Murthil testified that Mahogany told him that he and Rayne found the victim, followed him, and shot him.

Viewing all of the testimony and evidence presented at trial in the light most favorable to the prosecution, we find sufficient evidence establishing that defendant was the driver of the Charger that pursued the victim and that defendant pulled the Charger alongside the victim's car to allow Mahogany to shoot the victim. Although there was no direct, physical evidence connecting defendant to the shooting, the trial court's determination of the credibility of the State's witnesses is entitled to great weight; and we find nothing in this record to indicate that the trial court abused its discretion in crediting the testimony of those witnesses to find defendant guilty of the charged offense. See Pleasant , 11-1675, pp. 22-23, 102 So.3d at 259. Thus, we find sufficient evidence to support the trial court's verdict finding defendant guilty of the attempted second murder of the victim.

This assignment of error has no merit.

Jury Trial Waiver

In our prior opinion, Williams I , we found merit in defendant's first assignment of error that the record of this case does not indicate that defendant knowingly and intelligently waived his right to a jury trial. 16-0982, pp. 2-5, 225 So.3d at 1126-27. As previously discussed, the waiver of the right to a jury trial cannot be presumed; a waiver of the right to trial by jury is valid only if the defendant acted knowingly and voluntarily. State v. McCarroll , 337 So.2d 475, 480 (La. 1976) ; State v. Santee , 02-0693, p. 3 (La. App. 4 Cir. 12/4/02), 834 So.2d 533, 534 ; State v. Kahey , 436 So.2d 475 (La. 1983). In our de novo review, we found no written waiver of a jury trial, nor a colloquy between the trial court and defendant indicating that defendant made a knowing, intelligent waiver of his right to a jury trial. We need not revisit this assignment of error, as the record has not changed. "Where no evidence in the record exists showing a defendant specifically waived the right to a jury trial, the case must be remanded for an evidentiary hearing to determine whether the defendant knowingly waived his right." State v. Fortenberry , 11-0022, p. 5 (La. App. 4 Cir. 7/27/11), 73 So.3d 391, 394 (collecting cases). Accordingly, we remand this matter to the trial court for an evidentiary hearing to determine whether defendant knowingly and intelligently waived his right to a jury trial.

CONCLUSION

Upon review of the evidence and testimony presented at trial, we find sufficient evidence to sustain defendant's conviction for attempted second degree murder. However, the record fails to show that defendant knowingly and intelligently waived his right to a jury trial. Accordingly, we conditionally affirm defendant's conviction and sentence; and, in accordance with State v. Nanlal , 97-0786 (La. 9/26/97), 701 So.2d 963, we remand for an evidentiary hearing to determine whether defendant knowingly and intelligently waived his right to a jury trial. If the trial court determines that defendant did not knowingly and intelligently waive his right to a jury trial, then defendant shall be granted a new trial. Id. ; Fortenberry , 11-0022, p. 11, 73 So.3d at 398.

CONDITIONALLY AFFIRMED; REMANDED WITH INSTRUCTIONS

      In this Court's prior opinion, we incorrectly stated that defendant, rather than Mahogany, was also charged with one count of discharging a firearm during a crime of violence. Williams I , 16-0982, p. 2, 225 So.3d at 1126.

      The procedural background of this case was discussed in this Court's prior opinion. Williams I , 16-0982, p. 2, 225 So.3d at 1126.

      The victim had not seen defendant during the previous incidents. He made an in-court identification of defendant as the person he saw on December 19, 2011, driving the Charger.

      The victim identified the picture of Mahogany that he supplied to Det. Guient.

      The victim identified a second picture from Facebook in which he recognized defendant and which he provided to Det. Guient.

      The victim testified that he was known by the nickname "Scoonie."


text:
    STATE of Louisiana v. Clarence GABRIEL
    NO. 2018-KA-0169
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 26, 2018
    Leon Cannizzaro, DISTRICT ATTORNEY, Michael Danon, Irena Zajickova, ASSISTANT DISTRICT ATTORNEYS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE
    Christopher A. Aberle, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, LA 70470-8583, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods )
   Judge Regina Bartholomew-Woods

Appellant-Defendant, Clarence Gabriel, appeals the January 25, 2017 judgment of the district court finding him guilty of possession of a firearm by a felon, in violation of La.R.S. 14:95.1. Defendant was sentenced on October 4, 2017 to ten (10) years' imprisonment, at hard labor without the benefit of probation, parole, or suspension of sentence. For the reasons that follow, we affirm.

FACTUAL BACKGROUND

On May 24, 2016, Orleans Parish Sheriff--Captain Bryan Peters ("Captain Peters), working with the United States Marshal's Service on the Fugitive Task Force was assigned to locate Kelvin Dailey, the subject of an active arrest warrant. Captain Peters proceeded to the residence of Mr. Dailey's brother, Defendant Clarence Gabriel, ("Defendant") in an effort to elicit information concerning Mr. Dailey's whereabouts. Two other officers, Sergeant Tao and Deputy U.S. Marshal Brian Fair, knocked on Defendant's door while Captain Peters and another Deputy U.S. Marshal, Jerry Dyzart, remained in a patrol car to provide coverage.

Although Captain Peters could not see the person who answered Defendant's door, he later learned it was Mr. Dailey, the fugitive for whom they were searching. As Officers Peters and Dyzart approached the front door, they observed Defendant and his wife approaching the front door from inside the residence. Captain Peters testified that they seemed "agitated" at the police presence and "wanted to know what was going on." He further testified they ordered Defendant and his wife to sit on the couch in the front room while he and Deputy Fair conducted a protective sweep of the residence to ensure no safety threats were present "while they were dealing with Mr. Dailey."

The officers entered the first door they encountered off the living room and discovered a little girl lying on a mattress on the floor watching television. Captain Peters observed "another full-size bed" against the wall in that room and a holstered, fully loaded, semi-automatic firearm was located on the bed, next to a set of dentures, a pair of scissors, and a cigarette lighter. Photographs taken at the scene also showed cotton swabs, what appeared to be a can of seasoning, and a pack of cigars among the items located on the bed near the firearm. Captain Peters escorted the child into the living room while Deputy Fair secured the firearm. According to the NCIC database, the weapon had not been reported stolen; however, a background check revealed that Defendant had previous felony convictions and was on active probation for burglary. Despite the insistence by the wife of Defendant that the gun belonged to her, Captain Peters and Deputy Dyzart took Defendant into custody for illegal possession of a firearm by a felon. As they were leaving, Captain Peters learned that the dentures discovered next to the firearm on the bed belonged to Defendant when he asked the officers "if he could have his teeth when he went to jail."

At Defendant's trial, on cross-examination, Captain Peters clarified that when he and the other officers approached Defendant's residence, Defendant was neither a fugitive, nor the subject of their investigation. He also testified that once they learned that the person who answered the door, Mr. Dailey, was the person for whom they were searching, they brought Mr. Dailey outside, placed him in handcuffs, and sat him in a folding chair on the front porch. He admitted that neither Defendant nor his wife was threatening or uncooperative at any time, nor did he witness either of them exiting or occupying any room other than the living room. According to Captain Peters, Defendant's wife, who had no outstanding warrants or felony convictions, claimed ownership of the gun and stated that she lived at that residence with her husband, and had done so for the preceding two (2) years. Captain Peters also admitted that he never asked Defendant if the gun was his, and he did not perform any gunshot residue or fingerprint testing at any time.

U.S. Marshal Inspector Fair testified that he investigated sex offenders in violation of registration requirements and was in pursuit of Mr. Dailey when he and other officers approached Defendant's residence to interview him regarding his brother's whereabouts. When Mr. Dailey answered the door, Deputy Fair testified that they "had him step outside" and "secured him," and then at that point, they noticed "several other people in the house that were just agitated and asking questions." The officers asked them to sit on the couch in the living room and then went inside to conduct a protective sweep of the residence. Deputy Fair testified that he entered the first open door off of the living room and "observed an eleven-year-old girl on the floor sleeping on a mattress," and a holstered firearm located on the side of a bed.

On cross-examination, Deputy Fair stated that Mr. Dailey was apprehended at the front door and that it was his decision to conduct the protective sweep because Mr. Dailey, who was handcuffed at the time, had become "agitated," and Defendant and his wife also appeared "agitated" and were "starting to ask questions," so he and two other officers entered the house to conduct the sweep. When asked if it was standard practice to conduct a protective sweep, Deputy Fair responded, "Just the area immediately to where we arrested somebody, which was right on the other side of that door." Deputy Fair also admitted that when he asked who owned the firearm, Defendant's wife responded that it belonged to her, despite its location on Defendant's "side of the bed," and near Defendant's dentures.

In Defendant's case-in-chief, Gaynell Gabriel, Defendant's wife of twenty-two (22) years, testified that she and Defendant had been separated for over a year, and were separated and living separate and apart at the time of Defendant's arrest. Ms. Gabriel stated that she remembered the day of May 24, 2016, because she had taken her granddaughter, who resided at Defendant's home, to get an MRI. Her granddaughter had been anesthetized for the procedure, so when they returned to Defendant's home, Ms. Gabriel brought her into the bedroom. Ms. Gabriel recalled saying hello when she entered Defendant's home, but had observed Defendant napping in the living room so she proceeded into the bedroom with her granddaughter. She felt tired and decided to rest for a while, so she removed her weapon from her side and set it on the bed.

Approximately thirty (30) minutes later, she heard the front door open. The police entered the residence and "snatched the brother out the door," and then they told her to exit the bedroom and sit on the sofa in the living room. She testified that as the police were entering the bedroom, she informed them that her firearm was lying on the bed and that she did not reside in the home. Mrs. Gabriel stated that the police began interrogating her about the weapon and her brother-in-law. She responded that the gun was hers and that neither she nor her brother-in-law lived at the home; the only residents were Defendant and her granddaughter. Ms. Gabriel testified that she "kept telling them that it was [her] gun and [the officer] just kept telling [her] to shut up or [she] was going to jail."

Ms. Gabriel explained at trial that she always knocked on the front door when visiting Defendant's home, but if the door was unlocked and her granddaughter was with her, she would "go on in." She testified that on that day, when she entered Defendant's residence, the gun was holstered on her right hip, but she had not informed Defendant that she possessed the weapon. She also denied telling the officers that the gun had been located on Defendant's "side of the bed" because she did not live there and would not have known where in the bed he slept.

Ms. Gabriel testified that she had purchased the gun for herself from a pawn shop "across the river," but could not remember when or for what price. She thought she had received a receipt when she paid the deposit, but she was put on a waiting list and did not receive "the paperwork" until she actually took possession of the gun. She stated that she knew Defendant was on probation and could not possess firearms, but that Defendant's probation officer was aware that she owned a gun, and had simply warned her that Defendant could not touch it.

On cross-examination, Ms. Gabriel admitted that she owned the house in which Defendant resided, and that she had also resided there until their separation. She had subsequently moved in with her sister, then with a friend, and then with her son. She stated that she carried the firearm for her own protection and that she owned more than one. She also confirmed that Defendant was napping on the sofa in the living room when she entered the residence, and she had not noticed any other items on Defendant's bed when she removed her gun to lie down.

Defendant testified at trial that his granddaughter resided with him because she had a brain tumor and he cared for her. On May 24, 2016, he came home from work and was resting in his bed. Shortly thereafter, his brother knocked at the door looking for "somewhere to stay," but Defendant had refused because he did not have room. Defendant also explained that Mr. Dailey had recently been released from prison, and he assumed his brother was on parole or probation, and did not want to risk violating his own probation terms. Defendant said he fell asleep as the two men were talking on the sofa in the living room. Defendant assumed he had been asleep for nearly two (2) hours and had not known that his wife and granddaughter had returned from the hospital, but he awoke when the police arrived and "snatched [his] brother out the door."

Defendant stated he started asking questions of the police, but was told to "sit down and be quiet." The police explained that they were arresting his brother and they asked for consent to search Defendant's residence, which he provided, stating that he had nothing to hide. He stated that he realized his wife was in the house when she exited his bedroom, and that she attempted to explain to the officers that the gun they discovered belonged to her and that Defendant knew nothing about it. According to Defendant, the police asked if he was on probation or parole, but never asked if he owned the weapon. Defendant explained that he had abided by the terms of his probation without fail for two-and-a-half years; he did not own or possess any firearms; he did not use drugs; he attended his probation appointments and paid his fines on time; and he avoided trouble.

Defendant testified that he was aware that his wife carried a gun for protection, but he had not known that she was inside his house when the police arrived and asked to search his home. He also did not know that his brother was a sex offender, and explained that, had he known, he would not have allowed his brother inside his home near his granddaughter. Defendant testified that he had removed his dentures and laid them on the edge of the bed when he arrived home from work, but because he slept in the middle of the bed, he did not agree that the dentures were located on his "side" of the bed. Defendant testified that he had no idea where the gun had been located in proximity to his dentures until he saw the pictures the police had taken. Nevertheless, once the police conducted a background check and confirmed that Defendant was on probation, they arrested him.

On cross-examination, Defendant admitted that he had pled guilty to a charge of felon in possession of a firearm in 1995, and had additional felony convictions since then. Defendant also admitted ownership of the several other items shown on his bed near his dentures in the police photographs, with the exception of the firearm. Defendant confirmed that he told his brother he was not welcome to stay there, even for the night. When asked why the police discovered Mr. Dailey's "stuff" inside Defendant's home, Defendant replied that his brother had brought "his stuff" with him when he arrived at Defendant's house.

On redirect examination, Defendant testified that he had no intention of violating his probation and had no intention of being near a firearm. He stated that he had always intended to comply with the terms of his probation, and indeed had complied with the terms of his probation, because he took care of his granddaughter, who had a brain tumor, and provided support for his wife, who was also very ill. He believed he would lose them both if he was incarcerated for violating his probation.

ERRORS PATENT

A review of the record reveals no errors patent.

ANALYSIS

Assignment of Error Number 1

In Appellant's first assignment of error, he argues the evidence is insufficient to support the conviction. We address this assignment of error first, as it is controlling. In assessing sufficiency of the evidence, we are guided by the standard set forth in Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979), which stated that:

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. at 486, 17 L.Ed.2d 362 (1966) (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1624-1625, 32 L.Ed.2d 152 (1972). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law.

(footnotes omitted).

"It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence." State v. Richards , 2011-0349, p. 9 (La.App. 4 Cir. 12/1/11), 78 So.3d 864, 869. "The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence." Id. "Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness' testimony, if believed by the fact finder, is sufficient to support a factual conclusion." State v. Rapp , 2014-0633, pp. 6-7 (La.App. 4 Cir. 2/18/15), 161 So.3d 103, 108 (citing State v. Marshall , 2004-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369 ).

Furthermore, proof of guilt in this case was circumstantial. "Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts." State v. Carter , 1999-2234, p. 31 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, 144. "When circumstantial evidence forms the basis of a conviction ... such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience." Id.

Defendant in this case was convicted of violating La. R.S 14:95.1, relative to possession of a firearm by a convicted felon. La. R.S. 14:95.1 states, in pertinent part, that "[i]t shall be unlawful for any person who has been convicted [of an enumerated felony] to possess a firearm." In order to convict for possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt that Defendant: (1) possessed a firearm; (2) was previously convicted of an enumerated felony; (3) possessed the firearm within ten years of the previous conviction; (4) had the general intent to commit the crime.

State v. Fields , 2012-0674, p. 6 (La.App. 4 Cir. 6/19/13), 120 So.3d 309, 315.

In this case, Defendant does not dispute that he was legally prohibited from possessing a firearm at the time of his arrest due to prior enumerated felony convictions. He argues, however, that the state failed to present sufficient evidence that Defendant possessed, or intended to possess the firearm, in light of his and Mrs. Gabriel's uncontradicted testimony that Mrs. Gabriel was the sole owner and possessor of the firearm, and that Defendant was unaware, at the time, that the weapon was in his home.

Actual possession of the firearm is not necessary to prove the possession element of La. R.S. 14:95.1 ; constructive possession is sufficient. Fields , 2012-0674, p. 6, 120 So.3d at 315. A person is in constructive possession of a firearm if it is subject to his dominion and control, even if it is only temporary and even if the control is shared. State v. Johnson , 2003-1228, p. 5 (La. 4/14/04), 870 So.2d 995, 998-99. "[M]ere presence of a defendant in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession. Id. , 2003-1228, p. 6, 870 So.2d at 999. Thus, the State must prove that the offender "exercised" dominion and control over the firearm. "When the perpetrator has not carried the firearm on his person, the State must show that the defendant's intent amounted to an intent to possess rather than a mere acquiescence to the fact that there was a firearm in his presence." State v. Haddad , 1999-1272, p. 2, n. 2 (La. 2/29/00), 767 So.2d 682, 684.

"General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." La. R.S. 14:10(2). "Guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence." State v. Clements , 2012-1132, p. 7 (La.App. 4 Cir. 3/13/13), 112 So.3d 306, 311. "Whether the proof is sufficient to establish possession turns on the facts of each case." State v. Thomas , 2014-0510 (La.App. 4 Cir. 5/20/15), 171 So.3d 959, 966.

In the instant case, during its closing argument, the State asserted that the police officers' testimony that they discovered the firearm in Defendant's bedroom, on his bed, and in the vicinity of other items he admitted to owning, including his dentures, was sufficient to meet its burden of proving beyond a reasonable doubt that the firearm belonged to Defendant. The State also asserted that even if Mrs. Gabriel, in fact, owned the gun, its location on Defendant's bed and among his belongings was sufficient to prove that Defendant intended to exercise dominion and control over the firearm, and did, in fact, exercise dominion and control there over.

In the instant case, neither police officer observed Defendant occupy or exit the bedroom in which the weapon was discovered. They also did not observe Mrs. Gabriel occupy or exit the bedroom. The State argued to the jury that it "doesn't make sense" that Mrs. Gabriel would enter Defendant's residence and remove her firearm before napping in Defendant's bed, although it appears that Defendant was aware that his granddaughter had a medical appointment and that his wife planned to escort her to the hospital and back. Defendant contends that proof of the proximity of the firearm to Defendant's other belongings is too attenuated to sustain the conviction for possession, arguing that the police had conducted neither fingerprint nor gunshot residue analysis, on either the weapon, or Defendant or his wife, and the State presented no evidence that Defendant purchased, owned, physically possessed, or touched the firearm at any time, nor that he intended to.

In State v. Allen , 2012-0412, pp. 3-4 (La. 10/26/12), 101 So.3d 41, 43-44, the Supreme Court reinstated the defendant's conviction for possession of a firearm by a felon, finding the evidence sufficient to sustain the jury's verdict that Defendant was in constructive possession of a firearm discovered inside the vehicle he was driving, notwithstanding his girlfriend's testimony that she concealed the weapon in a hidden vault beneath the backseat without the Defendant's knowledge. However, the officer conducting the traffic stop had also observed the defendant reach behind him into the backseat. A drug-sniffing dog also indicated the presence of cocaine, attributed to the defendant, on the latch of the hidden vault.

In Clements , 2012-1132, p. 7, 112 So.3d at 311-12, this Court found that the defendant was in constructive possession of firearms based on the arresting officers' testimony that the defendant "was the sole occupant of the bathroom where the firearms were found in plain view in the open toilet tank." Further, the defendant's "actions-flushing the toilet, moving away from the area from which the firearms were immediately recovered, and his nervousness-demonstrated his awareness of the presence of the firearms and his general criminal intent to possess [them]." Id.

In Fields , 2012-0674, pp. 7-8, 120 So.3d at 316, the defendant was also found to be in constructive possession of a firearm when an officer testified that he discovered the weapon "sticking out between the mattress and box spring in [the defendant's] bedroom;" the defendant "acknowledged that he knew of the presence of the weapon in the residence" and "men's clothing, including Mr. Fields' shoes, were found in the bedroom" which appeared "co-habited by a man and a woman."

In State v. Mickel , 2009-953 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, the Court held that a rational trier of fact could have found beyond a reasonable doubt that the defendant exercised constructive possession of the gun and that he intended to possess it because it was found underneath the bed he shared with his girlfriend, and that the jury could have reasonably inferred that Defendant was living in the residence and knew a gun was in a shoebox underneath the bed in which he slept.

On the other hand, this Court reversed the defendant's conviction in State v. Scott , 2015-0321, pp. 10-14 (La.App. 4 Cir. 2/26/14), 136 So.3d 383, 389-92, finding that the state did not prove the defendant possessed the firearm discovered in the home he shared with his girlfriend, despite his knowledge of its presence, because the gun was discovered in his girlfriend's purse, which had been hanging in a closet in a separate bedroom the defendant did not appear to have occupied.

Additionally, this Court held that a rational juror could not have found beyond a reasonable doubt that the defendant in State v. Smith , 1998-0366, p. 8 (La.App. 4 Cir. 5/12/99), 744 So.2d 73, 77, had constructive possession of a firearm discovered under his seat in the vehicle he was driving, which was discovered only after a search conducted by a K-9 unit. The vehicle belonged to the defendant's mother, who testified that she had never seen the gun before, but had allowed several other people to use the vehicle, and the defendant was not in possession of any ammunition. Id.

In the instant case, the State's evidence proving Defendant intentionally possessed the firearm was its location on Defendant's bed near his dentures and other personal belongings of Defendant. Both of the State's witnesses testified that Mrs. Gabriel told them that she lived in the residence with Defendant, but Mrs. Gabriel testified that she had not resided there for at least a year despite her ownership interest in the property. Both Defendant and his wife testified that she was the sole occupant of the bedroom when the police entered the residence, however, both officers testified that Defendant and his wife were in the living room and the child was the only occupant of the bedroom when they entered; neither the other two officers nor Defendant's brother or granddaughter, all of whom were present at the time, testified at the trial. Defendant argues that the State did not disprove his hypothesis of innocence, however, when "a rational trier of fact reasonably rejects the defendant's hypothesis of innocence, that hypothesis falls; and, unless another one creates reasonable doubt, the defendant is guilty." State v. Beaulieu , 2012-0735, p. 13 (La.App. 4 Cir. 8/7/13), 122 So.3d 1050, 1059 (citing State v. Captville, 448 So.2d 676 (La. 1984) ). Although the State's evidence was entirely circumstantial and not overwhelming, Defendant does not show that the jury acted irrationally when it rejected his and Mrs. Gabriel's testimony that Defendant was unaware of the presence of either his wife or the firearm in his home, and the jurisprudence interpreting La. R.S. 14:95.1 is not irreconcilable with the jury's finding in this case. Accordingly, we find the evidence was sufficient to support Defendant's conviction.

Assignment of Error Number 2

Defendant argues that the warrantless, protective sweep that the officers conducted after they arrested Mr. Dailey in the front door of Defendant's residence, which resulted in the discovery and seizure of the handgun in Defendant's bedroom, was unconstitutional and the evidence, therefore, should have been suppressed.

"[W]arrantless searches of a home are impermissible absent consent or exigent circumstances." Steagald v. United States , 451 U.S. 204, 216, 101 S.Ct. 1642, 1650, 68 L.Ed.2d 38 (1981). See also State v. Howard , 2015-1404, p. 7 (La. 5/3/17), 226 So.3d 419, 424 ("A search warrant must be obtained, absent exigent circumstances or consent, to enter the house of a third party to search for the subject of an arrest warrant."). In this case, Defendant testified at trial that he gave the officer consent to search his home. The colloquy proceeded as follows:

DEFENSE COUNSEL: So what happened after the police snatched your brother out of the door?
DEFENDANT: I jumped up, asked them what's going on. He told me, "Man, just sit down and be quiet. We got what we want, but we want to do some kind of search." I said, "go ahead. I have nothing to hide."
DEFENSE COUNSEL: So you gave them consent to search?
DEFENDANT: Yes, Ma'am.

Defendant admitted that he consented to the warrantless entry and subsequent search of his home. Accordingly, the officer's actions that resulted in the discovery of the handgun in his bedroom complied with the constitutional requirements for a warrantless search, and the evidence was therefore properly admitted at trial.

CONCLUSION

For the foregoing reasons, Defendant's conviction is affirmed.

AFFIRMED

BELSOME, J., DISSENTS WITH REASON.

LOBRANO, J., CONCURS IN THE RESULT.

BELSOME, J., DISSENTS WITH REASON.

I respectfully dissent from the majority opinion. In particular, I do not find that the evidence was sufficient to establish that the Defendant was guilty beyond a reasonable doubt of possessing a firearm while being a convicted felon. The well settled standard of review for a sufficiency of the evidence claim is whether any rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Williams , 11-0414, p. 15 (La. App. 4 Cir. 2/29/12), 85 So.3d 759, 769. On appeal, a reviewing court must consider the record as a whole as that is what a rational trier of fact would do. State v. Santinac , 99-0782, p. 6 (La. App. 4 Cir. 6/14/00), 765 So.2d 1133, 1137. While rational decisions to convict must be upheld, irrational decisions to convict should be reversed. State v. Mussall , 523 So.2d 1305, 1310 (La. 1988). "If the court finds that no rational trier of fact viewing all of the evidence from a rational pro-prosecution standpoint could have found guilt beyond a reasonable doubt, the conviction cannot stand constitutionally." Id. at 1311.

Where a conviction was based on circumstantial evidence, the evidence "must exclude every reasonable hypothesis of innocence." La. R.S. 15:438. This test is not separate from the Jackson standard; rather, it simply requires that "all evidence, both direct and circumstantial, must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt." State v. Ortiz , 96-1609, p. 12 (La. 10/21/97), 701 So.2d 922, 930. A reviewing court is not to determine whether a potential hypothesis suggested by the defendant could present an exculpatory explanation of the events. State v. Davis , 637 So.2d 1012, 1020 (La. 1994). Instead, the reviewing court determines whether the defendant's hypothesis is "sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson . " Id. ; State v. Calloway , 07-2306, p. 10 (La. 1/21/09), 1 So.3d 417, 422.

This is a constructive possession case, thus the evidence presented was circumstantial and of a speculative nature. Unless that evidence excluded every reasonably hypothesis of innocence, Defendant's conviction cannot stand. See State v. Gould , 395 So.2d 647, 656 (La. 1980). While the State was able to demonstrate that the firearm was located on his bed, near some of his personal items, it was not able to rebut the fact that the firearm was registered to his wife, Gaynell Gabriel, who testified that she removed the firearm from her person while taking a nap with her sick granddaughter on the Defendant's bed.

Given the foregoing, a rational juror, viewing the evidence in the light most favorable to the prosecution, could only have speculated as to who possessed the firearm. Accordingly, since the evidence cannot exclude every reasonable hypothesis of innocence, the Defendant's conviction cannot stand. Accordingly, I dissent from the majority and would reverse the Defendant's conviction.