author: | JARRO, J.

text:
    STATE of Louisiana v. Billy G. VAUGHN.
    No. 2003 KA 1585.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Camille A. Morvant II, District Attorney, Jennifer Richard, Assistant District Attorney, Thibodaux, for State of Louisiana.
    Larry P. Boudreaux, Thibodaux, for Defendant-Appellant Billy G. Vaughn.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | JARRO, J.

The defendant, Billy G. Vaughn, was charged by bill of information with one count of fourth offense driving while intoxicated (DWI-fourth offense), in violation of LSA-R.S. 14:9s. Defendant pled not guilty. Thereafter, defendant filed a motion to suppress the predicate convictions, which was denied. After a trial by jury, defendant was found guilty as charged and was sentenced to ten years of imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, to be served consecutively to any other sentence being served.

On appeal, defendant assigns three errors, as follows:

1. The trial judge erred in denying defendant’s motion to suppress.
2. Considering the evidence presented by the state in the light most favorable to the state, the state failed to prove defendant’s guilt beyond a reasonable doubt.
3. The trial judge erred in denying the defendant’s motion for a post verdict judgment of acquittal.

Finding merit to certain of these assignments of error, we reverse and modify defendant’s conviction. Furthermore, we vacate his sentence and remand for resen-tencing.

FACTS

At about 4:30 p.m. on February 8, 2002, Louisiana State Trooper Johnny Adams was operating a stationary radar device on Louisiana State Highway 307 in Kraemer, Louisiana. He observed a gray Chevrolet Corsica traveling at 74 mph in a 55 mph zone. The officer turned on his lights and siren and gave pursuit. He observed the suspect’s vehicle slow down, and pull into a residential driveway. The driver exited the Corsica and started walking to the residence. When the officer called out, “Police, stop,” the driver broke into a run toward the back of the house. The officer verified that no one else was in the vehicle and observed the driver duck into a barn at the back of the residence. Not knowing whether the suspect was armed, the officer demanded that the 13suspect exit the barn with his hands up. Once apprehended, the defendant was handcuffed and placed under arrest.

Trooper Adams smelled alcohol on defendant’s breath, and the defendant’s speech was slurred. Rather than uncuff defendant and risk another attempted escape, the officer decided to conduct the field sobriety test when he returned to the police station with defendant in custody. Before leaving the scene, he determined that the Corsica was registered in the name of a woman. Although defendant initially refused to identify himself, the officer found documents in the vehicle bearing the name of Billy Vaughn, and defendant eventually admitted his identity.

At the Lafourche Parish Detention Center in Thibodaux, Trooper Adams, who was certified to conduct such examinations, conducted a field sobriety test. Defendant failed the horizontal gaze nystagmus test. Defendant swayed while standing and also failed the “walk and turn” and the “one leg stand” tests. Defendant consented to the chemical test. After determining that the breathalyzer machine was operating properly, defendant was tested. Defendant voluntarily blew into the machine, which registered a reading of .187 at about 6:49 p.m. on February 8, 2002. For unknown reasons, the machine did not print out the result, probably because the officer did not properly insert the card. However, the officer wrote the results of the test by hand at the bottom of the document. When defendant was interviewed, he admitted that he had three beers and a “white Russian.” The officer attempted to run the chemical test again but defendant refused.

Defendant called Sylvia Richard to testify on his behalf. Ms. Richard indicated that she had known the defendant for ten years. According to Ms. Richard, they had been dating for the past few months and saw each other daily at his home. She knew him to be living at 626 Highway 20 in February of 2002, at the time he was arrested, and for at least ten years prior thereto. Ms. Richard testified that she picked defendant up at about 7:00 a.m. on February 8, 2002, to work on her Chevrolet Corsica car because the speedometer was not working. She had no reason to believe he was drinking at that time. She claimed he was at her home until 4:00 p.m. that day, | ¿working on her car with his friend. She did not see him consume alcohol during the day and he did not seem intoxicated when he left. She claimed that she spoke to defendant by telephone at about 7:00 p.m. after his arrest and he did not sound intoxicated to her.

Defendant also testified on his own behalf. He confirmed that he had lived at 626 Highway 20 for the past 18 years. He identified Sylvia Richard as his fiancée for about ten years. Defendant denied drinking anything the night before or the day of his arrest. He claimed that he left Sylvia’s house and dropped off his friend at about 4:20 p.m. Defendant admitted that he was speeding when first spotted by Trooper Adams and that he turned into a driveway and tried to get to the back of the house because he was afraid to be found without a driver’s license. However, he denied that he ran when the officer called out to him, insisted that he complied with the request to come out of the barn, and contradicted the officer’s testimony that he was placed on the ground before being arrested. Defendant claimed that the officer retrieved a pill bottle with salt in it from the car and told him that he was taking him in because the bottle appeared to contain a narcotic substance. According to defendant, the officer never referred to intoxication. Defendant suggested that perhaps the pickled eggs he had been eating accounted for the odor the officer smelled on his breath. Defendant further testified that, believing the chemical test machine malfunctioned, he offered to take a blood or urine test instead, but was refused the right to such a test. He denied that any interview whatsoever was conducted.

After a jury trial, defendant was found guilty as charged of DWI-fourth offense.

MOTION TO SUPPRESS

Defendant contends the trial judge erred in denying his motion to suppress each of the predicate DWI convictions relied upon by the state. He argues that the guilty pleas taken in connection with each of his predicate convictions were defective, because his constitutional rights were not adequately explained to him before he entered his guilty pleas. Specifically, defendant claims that he was not properly advised |Bof certain of his Boykin rights before entering the guilty pleas. We have separately examined defendant’s claims with respect to each of the predicate convictions relied upon by the state. We agree that the guilty pleas taken in connection with two of those predicate convictions were defective. However, we find no infirmity in the guilty plea taken in connection with defendant’s February 27, 1995 conviction. We conclude, therefore, for the reasons more fully explained below, that defendant’s fourth offense DWI conviction must be reversed and that a modified judgment of conviction of DWI-second offense should be rendered. We further conclude that defendant’s fourth offense DWI sentence must be vacated and the matter remanded to the trial court for sentencing on the modified judgment of conviction.

February 27, 1995 conviction

Defendant claims the trial judge did not adequately advise him of his right to confront and cross-examine witnesses called by the state before accepting his guilty plea in connection with his February 27, 1995 conviction. We do not agree. Defendant was at all pertinent times represented by counsel. Prior to accepting his plea, the trial judge advised:

If your case went to trial, you would have the right to — you would have a lawyer with you at all times. The people that have accused you would have to come in the front of you.

In our view, this was adequate notice of this counseled defendant’s right to confront the witnesses against him. See State v. Woods, 402 So.2d 680, 682 (La.1981).

October 17, 199b and September 11, 2001 convictions

Defendant claims he was not properly advised of his Boykin rights prior to his conviction on October 17, 1994, because he was not advised of his privilege against self-incrimination. In State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556, the Louisiana Supreme Court eased the state’s burden of proving a prior DWI guilty plea as a predicate offense for enhancement purposes. In Carlos, the court held that the | ^burden-shifting principles of State v. Shelton, 621 So.2d 769 (La.1993), are applicable to multiple-offense DWI cases. Under this burden-shifting scheme, if the defendant denies the allegations of a bill of information, the state has the initial burden to prove the existence of the prior guilty plea(s) and that the defendant was represented by counsel when the plea(s) were taken. If the state meets this initial burden, the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea(s). If the defendant carries this burden, then the burden reverts to the state to prove the constitutionality of the plea. Carlos, 738 So.2d at 559.

The record in the instant case contains a transcript of the colloquy between the trial judge and the defendant at the time the guilty plea was entered on October 17, 1994. The transcript clearly shows that the trial judge did not advise the defendant of one of his Boykin rights, the privilege against self-incrimination. The state did not introduce a waiver of rights form or any other evidence to substantiate defendant’s knowledge and waiver of that constitutional right. Thus, the evidence, taken as a whole, shows that the defendant was not fully advised of his Boykin rights.

In his written reasons for judgment denying defendant’s motion to suppress the use of this predicate conviction, the trial judge suggested that the transcript of the plea colloquy indicates that the suspended sentence imposed in 1994 was the product of plea bargain discussions. However, we find nothing in the transcript that proves that defendant entered into a plea bargain or that he was advised of his right against self-incrimination during plea bargain negotiations. The trial judge also suggested in his reasons for judgment that he could not conclude that defendant’s rights were prejudiced, because there was no evidence to prove that defendant would not have entered a guilty plea had he been advised of his right against self-incrimination. In view of defendant’s DWI history, we understand the trial judge’s skepticism concerning whether defendant needed to be advised of his Boykin rights. We are nevertheless constrained by the burden-shifting rules set forth in Carlos. The burden of proof reverted to the state to establish the constitutionality of defendant’s plea. The state | introduced no evidence tending to prove that defendant would have pled guilty had he been properly advised of his Boykin rights. Thus, there was no evidence for the trial judge to weigh against the transcript to support the conclusion that defendant’s Boykin rights were not prejudiced. Speculation as to what defendant would have done if properly “Boykinized” is not sufficient. See State v. Drenning, 99-1151 (La.App. 4th Cir.3/22/00), 767 So.2d 45, 48. Accordingly, this predicate offense should not have been used for enhancement purposes.

Defendant similarly claims that he was not made aware of his right to confront the witnesses against him prior to entering his plea of guilty on September 11, 2001. The record of the Boykin hearing confirms defendant’s claim. The state did not bear its burden of proving that the defendant’s constitutional rights were adequately safeguarded. For the same reasons expressed as to defendant’s October 1994 conviction, the September 11, 2001 conviction should not have been used as a predicate offense for enhancement purposes.

Inasmuch as two of the prior DWI convictions introduced by the state could not properly serve as predicate offenses for enhancement purposes, defendant’s conviction and sentence for fourth offense DWI must.be reversed. However, under State v. Byrd, 385 So.2d 248, 251 (La.1980) and LSA-C.Cr.P. art. 821(E), the discharge of the defendant is neither necessary nor proper when the evidence supports a conviction on a lesser and included offense which is a legislatively authorized responsive verdict. As noted hereinabove, defendant’s February 27, 1995 conviction was properly used as a predicate DWI offense for enhancement purposes. Moreover, we have concluded below, in our review of defendant’s second assignment of error, that there was sufficient evidence to establish that defendant was guilty of driving while intoxicated on February 8, 2002. Thus, there was sufficient evidence to conclude that defendant was guilty of DWI-second offense, a legislatively provided responsive verdict to the charge of DWI-fourth offense. LSA-C.Cr.P. art. 815. Thus, it is not necessary for us to remand this case for a new trial in order to convict defendant of DWI-second offense. Accordingly, we modify the trial court judgment and render a judgment of conviction of | RDWI-second offense. We remand the matter to the trial court for resentencing on the modified judgment of conviction. LSA-C.Cr.P. art. 821(E).

SUFFICIENCY OF THE EVIDENCE OF THE FEBRUARY 8, 2002 OFFENSE

Defendant contends the evidence adduced by the state was insufficient to support his conviction of the DWI offense committed on February 8, 2002. We do not agree. The standard of review for sufficiency of the evidence to support a conviction is whether viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime and defendant’s identity as perpetrator of that crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821; State v. Johnson, 461 So.2d 673, 674 (La.App. 1st Cir.1984). When circumstantial evidence is used to prove the commission of an offense, LSA-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.” State v. Wright, 98-0601 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157, and 00-0895 (La.11/17/00), 773 So.2d 732. This is not a separate test to be applied when circumstantial evidence forms the basis of a conviction; all evidence, both direct and circumstantial, must be sufficient to satisfy a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987).

Defendant was charged with driving while intoxicated, in violation of LSA-R.S. 14:98. LSA-R.S. 14:98 provides, in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
(a) The operator is under the influence of alcoholic beverages;

|aIn his opening statement, counsel for defendant conceded that defendant was operating a vehicle. In this assignment of error, defendant argues that the state did not prove beyond a reasonable doubt that he was under the influence of alcoholic beverages. He insists that the breathalyzer machine malfunctioned and that, crediting the testimony of his girlfriend as true, it would have been impossible for him to have consumed enough alcohol to cause a reading of .187 as testified by Trooper Adams.

The record, however, clearly establishes that after defendant was initially stopped for speeding and apprehended, a strong odor of alcohol was detected on his breath. In addition, he failed field sobriety tests. Regardless of the reading registered on the breathalyzer machine, there was ample evidence to support the jury’s determination that he was intoxicated. The jury was not obligated to accept as true defendant’s self-serving testimony or that of his girlfriend. The jurors were entitled to accept the testimony of Trooper Adams that defendant was intoxicated when arrested.

Defendant does not contest the adequacy of the record to support a DWI-second offense conviction. We have found that there is no impediment to using defendant’s February 27, 1995 conviction as a predicate offense. Defendant pled guilty to that offense and a record of the plea colloquy establishes that defendant’s constitutional rights were adequately protected.

There is no merit to this assignment of error.

POST VERDICT JUDGMENT OF ACQUITTAL

In this assignment of error, defendant contends the trial judge erred in not granting his motion for a post verdict judgment of acquittal. In his motion, defendant contested the sufficiency of the evidence to support his conviction. More specifically, he claimed that the state failed to prove that he was the same individual convicted of the predicate offense of driving while intoxicated on October 17, 1994. Inasmuch as we have refused to permit the October 17, 1994 conviction to be used as a predicate offense, this assignment of error is moot.

^CONCLUSION

For the reasons assigned, the defendant’s conviction for fourth offense DWI is reversed and his sentence is vacated. The judgment of guilty of fourth offense DWI is hereby modified and a judgment of conviction of second offense DWI is rendered. We remand the case to the trial judge for sentencing on the modified judgment of conviction.

CONVICTION REVERSED AND MODIFIED; SENTENCE VACATED; AND REMANDED FOR RESENTENC-ING.

      . The fourth offense allegedly occurred on February 8, 2002. The predicate convictions alleged were an April 19, 1994 conviction for driving while intoxicated (predicate # 1), an October 17, 1994 conviction for driving while intoxicated (predicate # 2), a February 27, 1995 conviction for driving while intoxicated (predicate #3), and a September 11, 2001 conviction for driving while intoxicated (predicate # 4). At the commencement of trial, the state struck the April 19, 1994 conviction from the bill of information.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct 1709, 23 L.Ed.2d 274 (1969).

      . Since the evidence supports a conviction for a lesser and included offense, this court is authorized to render a judgment of conviction on the lesser included responsive offense. See LSA-C.Cr.P. art. 821(E) and State v. Ortiz, 96-1609 (La. 10/21/97), 701 So.2d 922, 934, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).


source: Caselaw Access Project

author: JjPETTIGREW, J.

license: Public Domain

text:
    STATE of Louisiana v. Jeremy HERRON.
    No. 2003 KA 2304.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Joseph L. Waitz, Jr., District Attorney, Mark Rhodes, Ellen Daigle Doskey, Assistant District Attorneys, Houma, for State of Louisiana.
    Margaret Smith Sollars, Thibodaux, for Defendant-Appellant Jeremy Herron.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   JjPETTIGREW, J.

The defendant, Jeremy Herron, was charged by bill of information with attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1. He pled not guilty. Following a trial by jury, the defendant was convicted as charged and sentenced to imprisonment at hard labor for twenty-five years, with credit for time served. The defendant filed a motion to reconsider the sentence. On reconsideration, the trial court amended the defendant’s sentence to imprisonment at hard labor for fifteen years, with credit for time served. The defendant now appeals, urging the following assignments of error:

1. A mistrial should have been .granted when the prosecutor elicited impermissible hearsay evidence and Brady material was withheld from the defense.
2. The evidence was insufficient to support the jury’s verdict when the element of specific intent was not proven beyond a reasonable doubt.

For the following reasons, we set aside the judgment of the trial court and render judgment against the defendant for the lesser included offense of aggravated battery.

FACTS

In the early morning hours of June 22, 2000, pursuant to calculated plans to rob Michael Johnson (“the victim”), an alleged drug dealer, the defendant and Frederick Oatis kicked in the front door of the victim’s residence. Armed with handguns, both men entered the residence. During the robbery attempt, a shot was fired, after which the defendant and Oatis fled. The victim sustained a non-fatal gunshot wound to the chest.

SUFFICIENCY OF THE EVIDENCE

In cases such as this one, where the defendant raises issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal. State v. Hearold, 603 So.2d 731, 734 (La.1992). The 1 ^sufficiency issue must be decided first because a finding of insufficient evidence to support the guilty verdict bars the retrial of a defendant based on the constitutional protection against double jeopardy. Thus, all other issues would be rendered moot. State v. Davis, 2001-3033, pp. 2-3 (La.App. 1 Cir. 6/21/02), 822 So.2d 161, 163. Accordingly, we will first determine whether the evidence was sufficient to support the defendant’s conviction for attempted second degree murder.

On appeal, the defendant contends the evidence adduced at trial was insufficient to support his conviction. Specifically, he argues the evidence failed to establish that he possessed the requisite specific intent to kill the victim.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. See La.Code Crim. P. art. 821; State v. Johnson, 461 So.2d 673, 674 (La.App. 1 Cir.1984). The Jackson v. Virginia, 443 U.S. 307, 99 S:Ct. 2781, 61 L.Ed.2d 560 (1979), standard of review incorporated in La.Code Crim. P. art. 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Nevers, 621 So.2d 1108, 1116 (La.App. 1 Cir.), writ denied, 617 So.2d 906 (La.1993); State v. McLean, 525 So.2d 1251, 1255 (La.App. 1 Cir.), writ denied, 532 So.2d 130 (La.1988).

Louisiana Revised Statutes 14:30.1(A) defines second degree murder, in pertinent part, as follows:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of ... aggravated burglary ... [or] armed robbery ... even though he has no intent to kill or to inflict great bodily harm.

|4Under La. R.S. 14:27(A), a person is guilty of an attempt to commit an offense when he has a specific intent to commit a crime and “does or omits an act for the purpose of and tending directly toward the accomplishing of his object.” Specific criminal intent is the state of mind that exists when the circumstances indicate 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 proved by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. State v. Cummings, 99-3000, p. 3 (La.App. 1 Cir. 11/3/00), 771 So.2d 874, 876.

Louisiana Revised Statutes 14:24 defines “principals” as “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.” While all persons “concerned in the commission of a crime” are principals under La. R.S. 14:24, this rule has important qualifications. All persons concerned in the commission of attempted first or second degree murder must possess the specific intent to kill to be found guilty of the offense. State v. LeBlanc, 94-0282 (La.6/3/94), 637 So.2d 489. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Bridgewater, 2000-1529, p. 10 (La.1/15/02), 823 So.2d 877, 890, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).

The record reflects that during the trial of this matter the State focused its case on two basic theories: 1) the defendant was the shooter and thus specifically intended to kill the victim, or 2) specific intent to kill was not required because the shooting occurred during the commission of an aggravated burglary or armed robbery. Although the State repeatedly argued its attempted felony-murder theory during the trial, it is well settled that, “[a] conviction of attempted second degree murder requires proof of specific intent to kill.” State v. Franklin, 95-1876, p. 7 (La.1/14/97), 686 So.2d 38, 42. The crime of attempted second degree murder cannot be based upon an underlying felony. State v. Graham, 2002-1492, p. 7 (La.App. 1 Cir. 2/14/03), 845 So.2d 416, 421. An attempt to commit second degree murder requires that the offender possess the specific intent to kill and commit an overt act tending toward the accomplishment of that goal. La. R.S. 14:27(A) and 14:30.1(A)(1).

Thus, in order to convict the defendant of attempted second degree murder, the State was required to prove, beyond a reasonable doubt, that the defendant specifically intended to kill the victim. This could be accomplished by proof that the defendant was the shooter (since the victim was shot in the chest at close range) or, under the law of principals, that the defendant and/or Oatis planned to utilize deadly force during the commission of the robbery. La. R.S. 14:30.1 and 14:24. In our review of the record, we are unable to discover any admissible evidence from which a trier of fact could reasonably find that the defendant specifically intended to kill the victim.

Although in opening arguments the State alleged the defendant was the shooter, there was no evidence presented to support this assertion. The only evidence as to the identity of the shooter came during the testimony of Detective Malcolm Wolfe, the investigating detective who spoke with the victim following the incident. Detective Wolfe testified that the victim identified Oatis from a photographic lineup as one of the perpetrators, but indicated that Oatis was not the shooter. In response to an objection by defense counsel, the trial court ruled this statement was inadmissible hearsay and admonished the jury to disregard it. The court specifically instructed the jury not to consider the statement as evidence. Thereafter, apparently relying upon the theory that a conviction for attempted second degree murder could be based upon the felony-murder provisions of La. R.S. 14:30.1, the State presented no further proof to establish that the defendant specifically intended to kill the victim.

The defendant did not testify at trial. However, the State introduced a taped statement the defendant provided to the police in connection with the investigation of this incident. Over the objection of defense counsel, the trial court ruled that the taped statement was admissible and allowed the jury to listen to the tape. In the statement, the defendant stated he and Oatis were in Thibodaux, Louisiana, on the day in question when Robert Cheatham approached them and indicated he knew an individual in Gibson | fithey could rob for a large amount of marijuana. The defendant and Oatis agreed to participate in the robbery. Cheatham then drove the men to Gibson. The defendant and Oatis went to the victim’s residence while Cheatham stayed behind for fear of being recognized by the victim, Cheatham’s cousin.

According to the defendant, Oatis kicked in the victim’s door, and they entered the residence. The defendant indicated both he and Oatis were armed with handguns. Inside the residence, Oatis went to the room where the victim was located, and the defendant stayed near the front door as lookout. Shortly thereafter, the victim emerged from the room, Oatis hit the victim in the head with his gun, and a struggle ensued. The defendant claimed he did not engage in the struggle. During the struggle, a gunshot was fired. The defendant and Oatis immediately ran from the residence and went back to Thibodaux with Cheatham.

The evidence in this case, particularly the defendant’s statement, clearly establishes that the defendant, Oatis, and Cheatham traveled to Gibson to rob the victim. The defendant’s admitted participation in the robbery plans certainly made him a principal to the unauthorized entry into the victim’s residence. However, the defendant’s statement, which happens to be the only direct evidence of his intent, fails to prove he specifically intended to kill the victim. The defendant denied firing the shot that injured the victim and unequivocally indicated that the sole purpose of the break-in was to rob the victim of marijuana. While it is certainly possible that the defendant was the shooter or that he and Oatis planned to kill the victim, either of which would have supplied the requisite specific intent, the evidence, even when viewed in the light most favorable to the prosecution, does not support such findings. Proof of the defendant’s participation in the robbery plans and subsequent attempt to carry them out, without more, does not support a rational inference that he specifically intended to kill the victim. Therefore, the evidence is insufficient to support the defendant’s conviction for attempted second degree murder.

In his other assignment of error, the defendant contends the trial court erred in denying his motion for a mistrial. The defendant cites two instances that he argues |7mandate a mistrial. First, the defendant contends a mistrial should have been granted when impermissible hearsay evidence was introduced during the testimony of Det. Wolfe. The defendant also avers a mistrial was warranted based upon the fact that the State withheld information favorable to him, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

La.Code Crim. P. art. 771 provides, in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.

A mistrial is warranted when certain remarks are considered so prejudicial and potentially damaging to the defendant’s rights that even a jury admonition could not provide a cure. State v. Edwards, 97-1797, p. 19 (La.7/2/99), 750 So.2d 893, 906, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). Mistrial is a drastic remedy that is authorized only where substantial prejudice will otherwise result to the accused. State v. Anderson, 2000-1737, p. 19 (La.App. 1 Cir. 3/28/01), 784 So.2d 666, 682, writ denied, 2001-1558 (La.4/19/02), 813 So.2d 421. A trial court’s ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518, p. 12 (La.1/17/01), 776 So.2d 443, 454.

HEARSAY

As a result of questioning posed during the direct examination of a State’s witness, Det. Malcolm Wolfe, the trial court held a hearing, outside the presence of the jury, to determine the admissibility of statements made by the deceased victim to Det. Wolfe. At the conclusion of the hearing, the trial court held that the statements provided by the victim were inadmissible hearsay and not subject to any hearsay exception. The court ^instructed, “there will be no testimony admitted as to any statement Mr. Johnson made[.]”

Back before the jury, the prosecutor questioned Det. Wolfe about his investigation in this case. Det. Wolfe testified that during his investigation he received information developing co-defendant, Frederick Oatis, as a suspect. The prosecutor then questioned Det. Wolfe regarding the procedures used to confirm Oatis’s identity as a participant in the offense. The following exchange occurred:

Q. .. .Armed with the information that Frederick Otis (sic) might be a suspect, did you get him (sic) mug shot or a photograph of Mr. Oatis?
A. Yes, I did.
Q. Did you put the photograph in a photographic lineup?
A. Yes, sir.
* *
Q. ... Did you go to the hospital and show that lineup to Mr. Johnson?
A. Yes, sir, I did.
Q. What did he do when you showed it to him?
A. Within five seconds he identified Frederick Oatis as being one of the people but not the shooter.

Without any objection by the defense, the prosecutor continued to question Det. Wolfe regarding the victim’s identification of Oatis. Later in the examination, the prosecutor asked:

Q. All right. When he picked out Oatis, this confirmed his statement from the very beginning that he recognized somebody from being related to somebody from Labadieville?
A. Yes, sir.
Q. And he clearly indicated that Mr. Oatis was not the man that shot him?
A. Correct.

Again, there was no objection to this testimony by the defendant. Moments later, when the prosecutor moved to introduce the photographic array into evidence, the counsel for the defendant objected to Det. Wolfe’s statement as to what the victim 19said as hearsay. The defendant further indicated he intended to “backtrack” his objection to include an objection to the lineup as hearsay and to the entire line of questioning regarding the lineup as hearsay. The court ruled, “.. .because of the events that have transpired, I’m going to, at least as to what has transpired so far, overrule the objection, and I will allow the lineup into evidence.”

The trial continued. Later, following a court recess, counsel for the defendant moved for a mistrial based upon the aforementioned hearsay evidence. Counsel argued that Det. Wolfe’s comment, which led to an inference that the defendant was the shooter, was irreparably prejudicial. Counsel further argued that the photographic lineup was also inadmissible hearsay evidence and was erroneously allowed into evidence. In denying the defendant’s motion for a mistrial, the trial court ruled:

.. .With regard to the lineup and the statement from Det. Wolfe as to what the victim, Michael Johnson, told him, it was always the Court’s position that the lineup constituted hearsay evidence. But there was no objection to the lineup itself and the testimony about the lineup. It appears that the problem came when Det. Wolfe, in response to a question, indicated that Mr. Johnson, the victim, had identified Mr. Oatis from the lineup and identified him as one of the individuals involved in the shooting incident that’s been described to the jury. But it was when Det. Wolfe added something along the lines of “and he told me he was not the shooter.” That seems to be where the problem has come in.
The Court’s ruling with regard to the lineup evidence, that is, the photographic lineup, which was actually introduced into evidence, the Court feels was correct. However, now that Mr. Whipple has asked that the photographic lineup not be made part of the evidence, the Court will grant his request and will hold that the photographic lineup is not part of the evidence in this case. The Court will instruct the jury that the photographic lineup is not to be considered evidence and that it has been withdrawn as evidence.
Now, with regard to the statement that Det. Wolfe made as to what the deceased told him, that is, that Mr. Oatis was not the shooter. The Court believed that part of Det. Wolfe’s testimony is hearsay and the Court will instruct the jury that they are to disregard any statements made by Michael Johnson to Det. Wolfe, inasmuch as they are not admissible under any exception to the hearsay rule.
The State objected to the court’s ruling.

In connection with its ruling on the hearsay evidence, the trial court admonished the jury as follows:

Earlier today, you were allowed to view a photographic lineup and you heard testimony from Det. Wolfe about that photographic lineup. The |inCourt has determined that that evidence is inadmissible. So any evidence that you have heard about that photographic lineup and the testimony of Det. Wolfe with regard to that lineup you are to entirely disregard as if you never heard it. It is not evidence in this case.
In addition, any statement that Det. Wolfe had made while testifying as to what the deceased in this case, Michael Johnson, said to him is inadmissible and it is not evidence and you are to entirely disregard that testimony by Det. Wolfe.

Upon our review of the record, we find no error or abuse of discretion by the trial court in denying the defendant’s motion for a mistrial. A contemporaneous objection is necessary to preserve the issue for appellate review. La.Code Crim. P. art. 841(A); La.Code Evid. art. 103(A)(1). An objection made after the evidence is before the jury comes too late. State v. Bretz, 394 So.2d 245, 251 (La.), cert. denied, 454 U.S. 820, 102 S.Ct. 102, 70 L.Ed.2d 91 (1981). The record reflects that the defendant’s objection to the evidence in question was untimely. Thus, any prejudice that might have resulted from Det. Wolfe’s statements was attributable to the defendant’s tardy objection. Moreover, even after noting that Det. Wolfe’s statements initially came in without objection, the trial court sustained the defendant’s untimely objection and ruled the statements inadmissible. The court then withdrew the previously admitted photographic lineup and, on its own motion, admonished the jury to disregard all of the contested evidence. We do not find that the trial court abused its discretion in opting to issue an admonishment in lieu of a mistrial. In fact, we conclude, that the trial court effectively remedied the problem created by the defendant’s failure to object timely. The court’s exclusion of the hearsay evidence and its specific admonishment to the jury sufficiently cured any prejudice.

This argument lacks merit.

BRADY VIOLATION

Next, the defendant contends the trial court should have granted a mistrial based upon the ground that the State failed to disclose exculpatory evidence.

The record reflects that after the trial court denied the defendant’s motion for a mistrial based upon the introduction of inadmissible hearsay evidence, the prosecutor informed the court that he had just learned, during the recess, that during the police Ininvestigation, the victim failed to identify the defendant in a prepared photographic lineup. The prosecutor denied any prior knowledge of the potentially exculpatory evidence.

Thereafter, the defendant moved for a mistrial based upon the late disclosure of exculpatory evidence. Although he acknowledged that the prosecutor did not have the contested evidence in his file, the defendant argued that the enforcement agency’s failure to disclose favorable evidence also violates Brady, and warrants a mistrial. The trial court denied the motion for a mistrial and provided the following reasons:

It appears to the Court that this testimony that Det. Wolfe could give, that is, that the victim Michael Johnson was unable to identify Mr. Herron in a photographic lineup a short period of time after Mr. Herron gave an audiotaped statement to Det. Wolfe, that evidence it would appear on its face to be exculpatory to some extent and favorable to Mr. Herron.
However, for the 'same reasons that the testimony concerning Mr. Johnson’s statements to Mr. Wolfe about the Oatis photographic lineup, that is, that that testimony is inadmissible as hearsay, it would appear to the Court that this so-called exculpatory evidence for Mr. Her-ron would also be inadmissible as hearsay.
Now, having said that and for that reason, the Court, despite the delay in revelation of this information to the defendant, is not going to grant a mistrial because the Court is hard pressed to understand how, if the evidence is inadmissible, the defendant would be prejudiced in any way.

The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. State v. Mitchell, 412 So.2d 1042, 1044 (La.1982). Discovery procedures enable a defendant to properly assess the strength of the State’s case against him in order to prepare his defense. State v. Roy, 496 So.2d 583, 590 (La.App. 1 Cir.1986), writ denied, 501 So.2d 228 (La.1987). If a defendant is lulled into a misapprehension of the strength of the State’s ease by the failure to fully disclose, such a prejudice may constitute reversible error. State v. Ray, 423 So.2d 1116, 1118 (La.1982).

Under the United States Supreme Court decision of Brady, the State, upon request, must produce evidence that is favorable to the accused where it is material to guilt or punishment. This rule has been expanded to include evidence that impeaches l^the testimony of a witness where the reliability or credibility of that witness-may be. determinative of guilt or innocence. Giglio v. U.S., 405 U.S. 150, 154-155, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Where a specific request is made for such information and the subject matter of such a request is material, or if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the information to the trial judge for an in camera inspection. See U.S. v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2899, 49 L.Ed.2d 342 (1976); State v. Cobb, 419 So.2d 1237, 1241 (La.1982).

The test for determining materiality was firmly established in U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and has been applied by the Louisiana Supreme Court. See State v. Rosiere, 488 So.2d 965, 970 (La.1986). The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

The fact that the victim failed to identify the defendant as a perpetrator is obviously exculpatory evidence. It fails to constitute material evidence in this case, however, because confidence in the outcome of trial is not undermined by its disclosure. Because the defendant in this case gave a taped statement confessing his participation in the offense, it is not reasonably probable that the result of the proceeding would have been different had evidence of the victim’s failure to identify the defendant as one of the perpetrators been disclosed to the defense. Moreover, as the trial court correctly noted, any out of court statements by the victim had already been ruled inadmissible. Thus, it is unlikely that the identification information would have been allowed into evidence. Accordingly, the trial court did not err or abuse its discretion in failing to grant a mistrial on the basis of a Brady violation.

This argument lacks merit.

We now focus our attention on whether a conviction for a lesser included offense may be substituted for the jury’s verdict. Louisiana Code of Criminal Procedure article [ 1S821(E) provides that if an appellate court finds the evidence, viewed in the light most favorable to the State, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense. The responsive guilty verdicts to a charge of attempted second degree murder are attempted manslaughter and aggravated battery. See La.Code Crim. P. art. 814(A)(4). As with attempted second degree murder, specific intent to kill is an essential element of attempted manslaughter. See State v. Brunet, 95-0340, p. 5 (La.App. 1 Cir. 4/30/96), 674 So.2d 344, 347, writ denied, 96-1406 (La.11/1/96), 681 So.2d 1258. We have already concluded there is insufficient evidence to establish that the defendant possessed specific intent to kill the victim. Thus, the evidence is insufficient to support a conviction for attempted manslaughter. However, following our extensive review of the record, we find the evidence sufficient to support a finding that the defendant acted as a principal in the aggravated battery of the victim.

Pursuant to La. R.S. 14:33, battery is defined, in pertinent part, as “the intentional use of force or violence upon the person of another.” Aggravated battery is a battery committed with a dangerous weapon. La. R.S. 14:34. An aggravated battery conviction requires proof of only general criminal intent or showing that the defendant, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from Ms act or failure to act. La. R.S. 14:10; State v. Freeman, 2001-997, p. 4 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 581.

As previously indicated, the defendant admitted that he, Oatis, and Cheatham went to Gibson to rob the victim. Oatis kicked in the victim’s door, and the defendant and Oatis entered the victim’s residence. Both men were armed with handguns. While inside the victim’s residence, Oatis hit the victim in the head with his gun, a struggle ensued, and a gunshot was fired, striMng the victim. Thereafter, the defendant and Oatis immediately ran from the victim’s residence.

|uBased on our review of the record herein, we are satisfied that the evidence produced by the State was sufficient to prove beyond a reasonable doubt that the defendant had the requisite general intent and was guilty as a principal to the aggravated battery of the victim. Accordingly, we must modify the defendant’s conviction and render a judgment of conviction on the lesser included responsive offense of aggravated battery.

CONCLUSION

For the above and foregoing reasons, we find the evidence insufficient to support a conviction of attempted second degree murder but sufficient to support a conviction of aggravated battery. Thus, we set aside the defendant’s conviction and sentence for attempted second degree murder. We hereby modify the jury’s verdict, render a judgment of guilty of aggravated battery, and remand the case to the trial court for sentencing.

CONVICTION AND SENTENCE SET ASIDE; JUDGMENT OF GUILTY OF AGGRAVATED BATTERY RENDERED; REMANDED FOR SENTENCING.

      . The record indicates that the victim was killed in an unrelated incident four months later.


author: | ¡WHIPPLE, J.

text:
    Louis CILIBERTI, Jr. & Patricia Ciliberti v. Eric MISTRETTA and Nicole Mistretta.
    No. 2003 CA 1559.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Wade Petite, Gonzales, Counsel for Plaintiffs/Appellees, Louis Ciliberti, Jr. and Patricia Ciliberti.
    Andre’ Bourgeois, Molly McGraw, Baton Rouge, Counsel for Defendants/Appellants, Eric Mistretta and Nicole Mistretta.
    Kevin Landreneau, Baton Rouge, Counsel for Third Party Defendant/Appellee, Bestbuilt Homes.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   | ¡WHIPPLE, J.

This matter is before us on appeal by defendants/third-party plaintiffs, Eric and Nicole Mistretta, from a judgment of the trial court maintaining an exception of prescription filed by Bestbuilt Homes, Inc. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 7, 2003, plaintiffs, Louis and Patricia Ciliberti, filed a “Petition for Rescission of Sale and for Damages” seeking to rescind a cash sale entered into on July 19, 2002 with the Mistrettas, who were “sellers” of a certain lot of immovable property and residential structure thereon. In the petition, plaintiffs contended that a sewerage blockage created a situation that led to “a severe and nauseating presence of sewerage gases being present at all times within the residence and upon the immovable on which the residence sits.” Plaintiffs contended that the sewerage blockage and resulting problems constituted a redhibitory defect, and that plaintiffs would never have entered into the contract of sale had they known of the defect. Plaintiffs prayed that the July 19, 2002 sale be rescinded, that the purchase price be returned to them, and that damages and attorneys fees be awarded.

On March 6, 2003, the Mistrettas filed an Answer and Third-Party Demand naming as third-party defendant Bestbuilt Homes, Inc. (“Bestbuilt”), the manufacturer/builder of the home. The Mistrettas claimed that they had purchased the home directly from Bestbuilt, and had experienced one plumbing-related incident involving the subject premises that was subsequently reported to and repaired by Bestbuilt in late September or early October of 1996. Accordingly, the Mistrettas asked that the suit be dismissed, or alternatively, that in the event they were deemed liable on the main demand, their third-party demand against Bestbuilt be 13granted and judgment rendered in their favor for damages, attorneys’ fees, expenses and costs.

In response, Bestbuilt filed an Exception of Prescription and alternative Answer to the Third Party Demand, asserting that any claims set forth by the Mistrettas had prescribed pursuant to the provisions of LSA-R.S. 9:3144, the New Home Warranty Act (“NHWA”), and LSA-C.C. art. 2534. The matter was heard before the trial court on May 30, 2003, and after considering the pleadings, evidence, and argument of counsel, the trial court rendered judgment on June 4, 2003, maintaining the exception of prescription in favor of Bestbuilt, and dismissing the third party claims of the Mistrettas with prejudice.

THE APPEAL

The Mistrettas filed the instant devolu-tive appeal, contending that the trial court erred in dismissing their third-party claim against Bestbuilt as prescribed under the provisions of the NHWA. The Mistrettas contend that their claims for negligent misrepresentation and/or detrimental reliance and | ¿request for indemnification are independent and separate causes of action which the NWHA cannot exclude as a matter of law. The Mistrettas further contend that the trial court erred as a matter of law in applying an over-expansive interpretation of the NHWA’s definition of “Owner” as neither the Cilibertis (plaintiffs) nor the Mistrettas (third-party plaintiffs) meet the definitional requirements necessary to establish either party as an “Owner” under the Act.

DISCUSSION

Assignments of Error Numbers One and Two

The standard of review controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Pratt v. Himel Marine, Inc., 2001-1832, p. 7 (La.App. 1st Cir.6/21/02), 823 So.2d 394, 400.

In these assignments, the Mistrettas do not challenge the trial court’s finding that their third-party claims were prescribed under the NHWA. Instead, they contend that the trial court erred in failing to recognize their right to seek relief under alternative theories of recovery, i.e., negligent misrepresentation, detrimental reliance, and indemnification, which they .argue are separate and independent causes of action not governed by the provisions of the NHWA. Bestbuilt counters that because the Mistrettas did not allege negligent misrepresentation or detrimental reliance in their third-party demand, or raise these arguments before the trial court, these claims are waived and the Mistrettas are prohibited from raising them on appeal for consideration by this court in the first instance.

The Mistrettas’ Third Party Demand set forth the following allegations against Bestbuilt:

JbiL
In the event third-party plaintiffs are held liable to plaintiffs for any redhibi-tory defects in the subject premises, then Bestbuilt Homes, Inc. is concomitantly liable unto third-party plaintiffs as their predecessor in title because Bestbuilt Homes, Inc. was the manufacturer/builder of the subject property and is therefore legally presumed to know of the existence of any such “defects” therein.
III.
Third-party plaintiffs had earlier purchased said premises directly from third-party defendant, Bestbuilt Homes, Inc., and had one plumbing-related complaint with the subject premises, which arose shortly after the premises were delivered to them for habitation and which complaint was tendered for repair to Bestbuilt Homes, Inc. and thereafter was ostensibly repaired.

The NHWA was enacted in 1986 and codified in LSA-R.S. 9:3142, et seq., for the purpose of “providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of homeowners’ insurance as additional protection for the public against defects in the construction of new homes.” LSA-R.S. 9:3141. The NHWA provides a “warranty for a new home purchaser defining the responsibility of the builder to that purchaser and subsequent purchasers during the warranty provisions provided herein.” LSA-R.S. 9:3141. The NHWA also provides that “all provisions of this Chapter shall apply to any defect although there is no building standard directly regulating the defective workmanship or materials.” LSA-R.S. 9:3141.

Most importantly, the NHWA provides the exclusive remedies, warranties, and peremptive periods as between the builder and owner relative to home construction and statutorily sets forth that no other provisions of law relative to warranties and redhibitory vices and defects shall apply. LSA-R.S. 9:3150. Further, LSA-C.C. art. 2520, which governs claims in redhibition, specifically states in Comment (e) that, “[t]he Articles | (¡on redhibition do not apply to hidden defects discovered in a new home governed by the New Home Warranty Act, R.S. 9:3141-3150.”

Nonetheless, on appeal, the Mistrettas assign as error the trial court’s granting of the exception of prescription and dismissal of their third-party claim for relief under alternative theories of negligent misrepresentation and/or detrimental reliance. At the outset, as noted by counsel for Best-built, we recognize that the Mistrettas’ third-party demand does not assert a demand for relief on these theories.

At the hearing of this matter before the trial court on May 30, 2003, the trial court asked counsel for the Mistrettas, on at least two occasions during the hearing, what cause of action they would proceed under if the NHWA did not apply. The following colloquy occurred:

THE COURT: Let me ask you this question: If the New Home Warranty Act does not apply, as you all claim, then what is your cause of action?
[COUNSEL]: But do we put it in a vacuum?
THE COURT: What is your cause of action? What are you seeking indemnity under?
[COUNSEL]: Well, that would be just under general equitable principles.
THE COURT: But here’s my question one more time: Let’s assume the New Home Warranty Act does not apply-
[COUNSEL]: Okay.
THE COURT: What cause of action or right of action do you have to proceed six years later?
[COUNSEL]: Well -
THE COURT: Redhibition has prescribed, all right, so -
_li[COUNSEL]: Well, I’m not sure redhibition has prescribed because of my prescription articles, I believe it was told — First, I think it was acknowledgment by the builder when they went out to repair and then prescription—

Thereafter, the trial court dismissed the Mistrettas’ claims “as prescribed according to the New Home Warranty Act.” Thus, as Bestbuilt correctly notes, the Mistrettas did not allege negligent misrepresentation and/or detrimental reliance theories against Bestbuilt; instead, the Mistrettas argued they were entitled to indemnification for redhibitory defects, if proven, under “general equitable principles.”

The Mistrettas argue that “indemnification” constitutes a separate and independent cause of action, which cannot be excluded by the NHWA, as a matter of law. In support of their argument, the Mistrettas cite Nassif v. Sunrise Homes, Inc., 98-3193 (La.6/29/99), 739 So.2d 183. In Nassif, the home owner brought an action in redhibition to recover damages for a defective foundation against the seller, Sunrise Homes, Inc., and the real estate developer who built the house. The builder/developer filed a third-party demand against the engineering firm that designed the foundation of the house for full indemnity for any and all sums for which the builder/developer was held liable to the home owner on the main demand.

However, the sole issue for review in Nassif was whether a defendant, whose liability to a plaintiff for the plaintiffs attorneys fees resulted from the actual fault of another, could recover, by way of indemnity, the amount of such attorneys fees from the party actually at fault, given the general rule |sthat attorneys fees are not allowed except where authorized by statute or contract.

In Nassif, the home owner brought an action in redhibition against the builder/developer to recover for a foundation defect, and the builder/developer filed a third-party demand against the engineering firm that negligently designed the foundation of the house, for “full indemnity” for all sums for which the builder/developer was deemed “technically liable.” Nassif, 98-3193 at p. 2, 739 So.2d at 185. On appeal, the Supreme Court affirmed the award of full indemnification to the home owner, but reversed the appellate court’s deletion of attorneys fees that the trial court had included in the judgment in favor of the builder/developer and against the negligent engineer. In doing so, the Supreme Court reasoned as follows:

“[W]e conclude that the equitable principle of restitution applies in an action for indemnity to allow a defendant who is only technically or constructively liable for a plaintiffs loss to recover from the party actually at fault the attorney fees it was compelled to pay the plaintiff, even in the absence of a statute or contract of indemnification. This measure of relief is in accordance with the long standing principle that “[i]n-demnity shifts the entire loss from a tortfeasor only technically or constructively at fault to one primarily responsible for the act that caused the damage.” (Citation omitted).

Nassif, 98-3193 at pp. 6-7, 739 So.2d at 18-188.

While the Court in Nassif stated that an action in indemnity is a “separate substantive cause of action, independent of the underlying wrong, and distinct from an action for attorneys fees,” Nassif, 98-3193 at p. 5, 739 So.2d at 186-187, we do not find Nassif dispositive of the issues presented in this appeal. We find Nassif distinguishable from the instant case because in Nassif: (1) the claims arose prior to the enactment of the NHWA; and (2) the underlying suit was filed in redhibition and thus, was governed by the applicable redhibition law at the time, not the provisions of the NHWA. | ¡¡Moreover, we deem it significant that the contractor who sought indemnification from its engineering firm had timely filed his independent claim against the engineer for indemnity based on a breach of contract between the engineer and the builder/developer, not a homeowner and builder. Nassif, 98-3193 at p. 1, 739 So.2d at 184.

Because the NHWA provides the exclusive remedies, warranties, and peremptive periods as between the builder and owner relative to home construction and specifies that no other provisions of law relative to warranties and redhibitory vices and defects shall apply, we reject the Mistrettas’ contention that their third-party claim was preserved under a theory of indemnity. See LSA-R.S. 9:3150.

These assignments lack merit.

Assignment of Error Number Three

Lastly, the Mistrettas argue that they are not subject to the exclusivity provisions of the NHWA because they are not suing the builder as an “owner” in a main demand but, rather, as non-owners asserting a claim for indemnity in the third-party demand. “Owner” is defined under the NHWA as “the initial purchaser of a home and any of his successors in title, hems, invitees, or assigns to a home during the time the warranties provided under this Chapter are in effect.” LSA-R.S. 9:3143(6). The Mistrettas claim that, in addition to not being “owners” because they no longer own the home, the peremp-tive warranties guaranteed by the NHWA for the plumbing system expired prior to the date of sale. Thus, the Mistrettas argue, since they do not meet the definitional requirements of an “owner,” their claims are not within the purview of the NHWA.

I inContrariwise, Bestbuilt maintains that the NHWA contemplates that the remedies against the builder are limited to the NHWA for all purchasers of a home constructed by the builder and sold to an initial purchaser. In support, Bestbuilt cites Ory v. A.V.I. Construction, Inc., 2003-72 (La.App. 5th Cir.5/28/03), 848 So.2d 115.

In Ory, the plaintiffs claimed that since A.V.I. was both the “builder” and the “seller” of the home, the NHWA did not provide their exclusive remedy and that they could proceed against A.Y.I. in redhibition. Ory, 2003-72 at pp. 5-6, 848 So.2d at 118. After reviewing the record, the appellate court determined that the Orys and A.V.I. met the definitional requirements of “owner” and “builder” respectively, under the NHWA. Ory, 2003-72 at p. 6, 848 So.2d at 118. The court noted that where the cause of action had not wholly arisen from construction defects, some courts had determined that the NHWA was not the sole remedy available to home owners. Ory, 2003-72 at p. 7, 848 So.2d at 118-119. However, the court concluded that the type of damage asserted by the Orys therein, i.e., the defective installation of the corner bead, was squarely addressed by the NHWA. Ory, 2003-72 at p. 7, 848 So.2d at 119. The appellate court maintained A.V.I.’s exception of no cause of action as to any alleged claim in redhibition, concluding the suit was subject to the provisions of the NHWA, and maintained AV.I.’s exception of prescription, as the Orys’ suit was not timely filed under the provisions of the NHWA. Ory, 2003-72 at pp. 7-10, 848 So.2d at 119-121.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. See LSA-C.C. art. 9; Lasyone v. Phares, 2001-1785, pp. 3-4 (La.App. 1st Cir.5/22/02), 818 So.2d 1068, 1071. It is a recognized rule of statutory construction that this court must give the words of a law their generally prevailing meaning. See LSA-C.C. art. 11. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. LSA-C.C. art. 12. Furthermore, the meaning of words or phrases may be ascertained by the words and phrases with which they are associated. Words of general meaning should be applied only to such classes of things of the same general kind as those specifically mentioned. Cox Cable New Orleans, Inc. v. City of New Orleans, 624 So.2d 890, 894 (La.1993). When the language is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. LSA-C.C. art. 10.

Further, it is presumed that every word, sentence, or provision in the law was intended to serve some useful purpose, that some effect is to be given each such provision, and that no unnecessary words or provisions were used. McDonald v. Louisiana State Board of Private Investigator Examiners, 2003-0773, p. 3 (La.App. 1st Cir.2/23/04), 873 So.2d 674, 675, 2004 WL 324978. The meaning of a statute is to be interpreted by looking to all sections taken together so that no section, clause, sentence or word becomes superfluous or meaningless. Barrilleaux v. NPC, Inc., 98-0728, p. 4 (La.App. 1st Cir.4/1/99), 730 So.2d 1062, 1065, writ denied, 99-1002 (La.5/28/99), 743 So.2d 672.

Finally, if a statute is not clear on its face, the meaning must be determined. Statutory interpretation is a province of the judiciary. The paramount consideration in interpreting a statute is ascertaining the legislature’s intent and the reasons that prompted the legislature to enact the law. Southlake Development Company v. Secretary of the Department of Revenue and Taxation for the State of Louisiana, 98-2158, p. 4 (La.App. 1st Cir.11/5/99), 745 So.2d 203, 205, writ denied, 99-3405 (La.2/4/00), 754 So.2d 235.

Keeping in mind the rules of statutory-interpretation outlined above, we recognize that the statute defines “owner” as “the initial purchaser of a home and any of his successors in title ...” (Emphasis added). See LSA-R.S. 9:3143(6). The parties do not dispute that the Mistrettas were the initial purchasers of the home or that the Cilibertis subsequently purchased the home from the Mistrettas. Applying the plain language of the statute, we conclude the Mistrettas are clearly considered the “owner” as defined by the NHWA.

Further, we conclude that the Mistret-tas’ third-party claim falls squarely within the purview of'the NHWA. Alleged defects in the plumbing system are squarely addressed by the two-year warranty provision of the NHWA. See LSA-R.S. 9:3144(A)(2); Ory, 2003-72 at p. 7, 848 So.2d at 119. To accept the Mistrettas’ strained statutory interpretation would render the NHWA and its prescriptive periods meaningless. For example, new-home purchasers who became aware of a defect after the tolling of the prescriptive period could simply sell the home to another “owner” and circumvent the statutory prescriptive periods by waiting to be sued and then claiming they were not covered by the act as they were no longer the “owner.”

Such an interpretation would virtually eliminate any legal effect of the NHWA. Interpreting the sections of the statute as a whole, the NHWA contemplates that the remedies against the builder are limited to the NHWA for initial and subsequent purchasers of the home.

This assignment lacks merit.

I ^CONCLUSION

We find no error in the judgment of the trial court maintaining Bestbuilt’s Exception of Prescription, and dismissing the Mistrettas’ claims with prejudice. Accordingly, for the above and foregoing reasons, the June 4, 2003 judgment of the trial court maintaining the Exception of Prescription, and dismissing Erie and Nicole Mistretta’s claims against Bestbuilt Homes, Inc. is affirmed. Costs of this appeal are assessed against the appellants.

AFFIRMED.

      . Louisiana Revised Statutes 9:3144(A) provides that the builder warrants the following to the owner:
      (1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
      (2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
      (3)Seven years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship regulated by building standards. (Emphasis added.)
      As such, Bestbuilt contended that any claims set forth by the Mistrettas related to the plumbing system were subject to a two-year prescriptive period.

      . "Indemnification” is defined by Black's Law Dictionary as "1. The action of compensating for loss or damage sustained. 2. The compensation so made.” Black's Law Dictionary 772 (7th ed.1999).

      . Pursuant to LSA-R.S. 9:3144(A)(2), the warranty period for a plumbing system complaint is two years following the warranty commencement date.


author: ^MCDONALD, J.

text:
    Larry HARRISON v. AUTO KING (A.K. Warehouse, Inc.) and Ohio Casualty Group.
    No. 2003 CA 1620.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      Ted Williams, Baton Rouge, Counsel for PlaintiffAppellant Larry Harrison.
    Michael E. Parker, Lafayette, Counsel for Defendants/Appellees Auto King (A.K. Warehouse, Inc. and Ohio Casualty Group).
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   ^MCDONALD, J.

Larry Harrison appeals a judgment in favor of A.K. Warehouse Inc. (A.K. Warehouse), which found that he was overpaid workers’ compensation benefits, that A.K. Warehouse was entitled to a credit against any future indemnity obligations, that Mr. Harrison was not entitled to supplemental earnings benefits, and that he did not prove entitlement to penalties and attorneys’ fees. We affirm.

Mr.. Harrison began working for A.K. Warehouse on February 23, 2000, as a warehouseman. He was hired as a full-, time employee and was paid $5.50 per hour plus overtime. He only worked one full week before he was injured. On March 8, 2000, Mr. Harrison was injured in an automobile accident while in the course and scope of employment. A.K. Warehouse paid benefits to Mr. Harrison in the amount of $165.01 per week, starting March 8, 2000, based on an average weekly-wage of $247.51.

Mr. Harrison saw Dr. Thad Broussard, an orthopedic surgeon, on March 14, 2000, complaining of neck and low back pain as a result of the automobile accident. Mr. Harrison had seen Dr. Broussard previously for a low back injury due to a welding accident. He saw Dr. Broussard for his automobile injury 18 times up until December 30, 2002, after which time a functional capacity evaluation was done and Dr. Broussard released Mr. Harrison to return to work with restrictions. In August of 2001, Dr. Broussard signed off on a number a jobs presented to him by the vocational rehabilitation counselor, finding that Mr. Harrison could perform those jobs. On September 10 2001, A.K. Warehouse’s insurer sent notice to Mr. Harrison that his doctor had approved jobs that paid 90% of his pre-accident average weekly wage; thus, they were terminating his benefits.

|aMr. Harrison filed a disputed claim for compensation, asserting that he was unable to work and asking that disability benefits be reinstated. He asserted that he believed benefits were payable in the amount of $165.01 per week, based on an average weekly wage of $247.50. A.K. Warehouse filed an answer, asserting that it was .entitled to a credit for payments made to Mr. Harrison due to the miscalculation of his average weekly wage; that Mr. Harrison’s actual wage calculation, using a forty hour week, would be $220.00 per week with a weekly compensation rate of $146.67; that Mr. Harrison had initially been paid $185.62 per week; and, thus, he was overpaid $38.95 for approximately 65 weeks (a total of $2,531.75); that his compensation rate was changed to $165.01 and remained at that rate until benefits were terminated in September 2001 (approximately 8 weeks of overpayment of $18.34 or $146.72); and that the employer and insurer were entitled to a credit for the overpayment of $2,678.47 erroneously made to Mr. Harrison.

At trial, the parties stipulated that Mr. Harrison was employed by A.K. Warehouse on March 8, 2000 at $5.50 per hour; that he had an accident in the course and scope of his employment; and that indemnity benefits were paid at the rate of $185.62 from the date of the accident until August 27, 2001, at which time his payments were reduced to $165.01 until September 10, 2001.

After trial on the merits, the workers’ compensation judge ruled in favor of A.K. Warehouse and against Mr. Harrison, determining that Mr. |4Harrison’s average weekly wage was $220.00 based on a 40-hour work week and a $5.50 per hour wage rate; that defendants were entitled to a credit of $2,996.35 against any future indemnity obligation, which represented the overpayment of benefits from March 8, 2000, through September 10, 2001; that Mr. Harrison was not entitled to supplemental ' earnings benefits as the employer/insurer found jobs within his geographical area that were within the restrictions imposed by his treating physician and that paid at least 90% of his pre-injury wages; and that Mr. Harrison did not sustain his burden of proving entitlement to penalties and attorneys’ fees.

Mr. Harrison appeals that judgment. He assigns as error the workers’ compensation judge’s finding that his average weekly wage at the time of his March 8, 2000 accident was $220.00, and the finding that he was not entitled to supplemental earnings benefits.

THE STANDARD OF REVIEW

In a workers’ compensation case, the appellate court’s review of fact is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, Mr. Harrison asserts that his average weekly wage was $356.13, rather than $220.00. He argues that he was paid $5.50 an hour with overtime and was told that he would be working 52 to 60 hours per week, Monday through Saturday. His first paycheck covered his first two days on the job, for the week of February 18, 2000 to February 24, | r2000, was for 18 hours, and totaled $99.00. His second paycheck, for February 25, 2000, to March 2, 2000, was for 56.5 hours and totaled $356.13. That was the only full week Mr. Harrison worked at A.K. Warehouse before his accident. His actual work hours are:

Week one:
2/23 8.5
2/24 9.5
Week two:
2/25 sick
2/26 sick
2/28 sick
2/29 sick
3/1 9.0
3/2 9.0
Week three:
3/3 8.5
3/4 7.25
3/6 11.5
3/7 11.75
3/8 8.5 (date of accident)
3/9 9
Week four:
3/15 10

Louisiana Revised Statute 23:1021(10) provides:

(10) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(11) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a parttime employee, his hourly wage rate | (¡multiplied by the average actual hours worked in the four full weeks preceding the date of the injury. (Emphasis added.)

Since Mr. Harrison did not work four full weeks prior to his injury, the workers’ compensation judge had to interpret the statute to fit the situation presented. The workers’ compensation judge stated in his reasons for judgment:

I am aware of the Fus[i]lier versus Slick case, and I do agree in some respect with some aspects of the case. I am of the opinion, certainly, that if somebody — we’re talking about average weekly wage issue first — that if we’re talking about somebody who has worked a short period of time or who has been out of work without — not through any desire of their own for some period of time, that you go back and look for four full weeks. You try to find four weeks — well, in this instance, Mr. Harrison takes issue with the time sheets that say he was ill. But just for the sake of argument, if he had been working in January and there had been some other weeks in January where he was not listed as being ill, I certainly have no problem reaching farther back to find four full weeks.
But in this case, the only testimony— the only evidence I have of exactly how many hours he worked are these records. He can’t tell me day by day exactly how many hours he worked, so all I have are these records, and these records indicate a couple of days one week, a couple of days the next week and then a full week, and the full week that they show does have overtime. It has like 56 hours worth of time, which would be about 16 hours worth of overtime.
I am of the opinion that the interpretation of the act with regard to average weekly wage for an hourly employee is that they get the benefit of the full time 40-hour presumption or a calculation of the four full weeks worth of benefits— worth of wages earned, whichever is greater. It’s one or the other to give the claimant a change to go back, look for weeks, take advantage of all the overtime and be able to get a greater weekly wage than just full time. But in this case, since we can’t go back four full weeks, I certainly would have no problem only using three weeks if we had three full weeks and dividing by three or if we had two full weeks and dividing by two. But I don’t think that it’s fair to the employer to — I think that you have to balance the fairness to the employee and the employer when you’re computing average weekly wage.
And in light of the fact that I’ve got two weeks with sick time on them and then one full week, I think the only fair thing to do in using the act is, since I don’t have four full weeks and we have an “or” in there, to use the full time presumption.
|7So the court finds that Mr. Harrison’s average weekly wage is $220 a week based upon a 40-hour work week at 5.50 an hour.

Mr. Harrison points out that the one full week he worked prior to his accident he logged 56.5 hours and earned $346.13. Thus, he argues, that one week should be used to calculate his average weekly wage, based on the reasoning in Fusilier v. Slick Construction Company, 94-11 (La.App. 3 Cir. 6/1/94), 640 So.2d 788. In that case the court stated:

Fusilier did not complete four full weeks of work with Slick. The first week he logged thirty-two and a half hours, the next two weeks were full forty hour weeks and the week he was injured he worked twenty-one hours. During the two complete weeks that Fusilier worked, he put in twenty-one and a half hours overtime. The hearing officer adopted the calculation method utilized by Liberty Mutual, which based compensation on Fusilier’s regular pay in a forty hour week without regard to his overtime. Liberty Mutual justified the calculation by pointing out that Fusilier had not completed four full weeks of work as is apparently necessary under the statute. Fusilier contends that calculation of SEB should have been based on an average of the hours worked in those two complete weeks, including overtime. We agree.
The nature of workers’ compensation law requires a liberal construction of the statute. The language of the statute indicates the legislature’s intent to provide the worker with the maximum hours available by using the greater of an average of four weeks work or the wage at forty hours. Under normal circumstances, a worker who completes four full weeks will have overtime considered in the average as well. However, as in this case, if four full weeks are not completed and a forty hour week is used, the claimant unfairly receives nothing for any overtime he might have worked.

Fusilier, 94-11, pp. 5-6, 640 So.2d at 792.

Mr. Harrison argues that, based on the Ftisilier rationale, he is being discriminated against because his accident happened to have occurred before he had the opportunity to work four full weeks for A.K. Warehouse. He urges that he should benefit from the fact that he was able to earn overtime wages while employed by A.K. Warehouse just like the injured employee |swho happens to have worked three weeks longer than him would benefit from the overtime he earned before his accident.

However, in Fusilier, the court had three weeks to work with. In this case, there is only one full work-week history from which to extrapolate. Mr. Harrison worked 75 hours in 12 workdays prior to his accident, which averaged out to 6.25 hours per day. Mr. Harrison is suggesting that the court pick seven days out of the time before the accident and use those days only to calculate the average weekly wage. There is no legislative authority for doing so.

After a thorough review of the record and the jurisprudence, we cannot say that the workers’ compensation judge committed manifest error or was clearly wrong in calculating Mr. Harrison’s average weekly wage based on a forty-hour week.

ASSIGNMENT OF ERROR NO. 2

Mr. Harrison asserts that the workers’ compensation judge erred in failing to award supplemental earnings benefits. Louisiana Revised Statute 23:1221 provides in pertinent part:

3(c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region, (ii) For purposes of Subsubparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform | flemployment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.

In order to recover supplemental earnings benefits, claimant must first prove by a preponderance of the evidence an inability to earn wages equal to 90 percent or more of the wages he earned before the accident. And it is only after such a showing that the burden of proof shifts to the employer who, if he wishes to contend that claimant is earning less than he is able to earn so as to defeat or reduce supplemental earnings benefits, bears the burden of proving that claimant is physically able to perform a certain job and that the job was offered to claimant or the job was available to claimant in his or the employer’s community or reasonable geographic region. Gilley v. Parkview Baptist School, 2000-1937, p. 4 (La.App. 1 Cir. 11/9/01), 804 So.2d 103, 105, writ granted, 2002-0623 (La.5/24/02), 816 So.2d 293, judgment affirmed, 2002-0623 (La.10/25/02), 832 So.2d 975.

The workers’ compensation judge found that Mr. Harrison met the initial burden of proving an inability to earn wages equal to 90% or more of the wages he earned before the accident, when he was released by his treating physician with restrictions that prevented him from returning to his job at A.K. Warehouse. The workers’ compensation judge also found that A.K. Warehouse met its burden of proving that work was available to Mr. Harrison that was within the restrictions imposed by his doctors and that those jobs would pay at least 90% of his pre-injury wage.

Mr. Harrison’s treating physician released him to work and agreed that jobs presented to him by the vocational rehabilitation counselor, which paid at least 90% of his pre-accident wages, were within his physical restrictions. Mr. Harrison notes that some of those jobs were discounted by |inthe workers’ compensation judge, and argues that those left were not suitable to him because he has a felony record and takes pain medication.

However, we note that A.K. Warehouse hired Mr. Harrison when he had a felony record. Further, Mr. Harrison’s treating physician knew that Mr. Harrison took pain medication when he signed off on the jobs. Dr. Broussard’s records from March 20, 2001, titled “REHAB CONFERENCE — Larry Harrison” note that:

Basically noted that I have not seen Larry for several months but he is taking his medications on a regular basis and this is something, I think that needs to be addressed. I have also reviewed the F.C.E. and noted that he does have abilities and restrictions. I have noted that the F.C.E. indicates some inconsistencies and certainly, to me, indicates that it likely represents less than maximum effort. I certainly believe he could work, at the very least, within the confines of the F.C.E. and perhaps to some marginal degree beyond that.

Dr. Broussard’s notes from August 24, 2001 state:

Larry Harrison is seen today for followup of his spinal complaints. I have basically told him that I had rehab meeting and I found that he is able to work within the confines of the F.C.E. and have so told his rehab person. He is telling me that he has found a job on his own that has to do with a drug center, where it is a very light duty job where he is sitting checking the clients in. This appears to fit within the confínes of the F.C.E. and I have signed off on it. He is to cheek back with me only as needed.

As pointed out by the workers’ compensation judge at the close of the trial, it is preferable for the claimant and his attorney to attend the meeting with the physician and the vocational rehabilitation counselor so that the physician and the claimant can discuss the suitability of the jobs prior to the physician’s approval of them. However, in this case, Mr. Harrison and his attorney, although notified, failed to attend that meeting wherein any concerns could have been raised. Mr. Harrison failed to apply for any of the jobs found by the vocational rehabilitation counselor and failed to follow up on her offer of return to work assistance.

InWe cannot say that the workers’ compensation judge committed manifest error or was clearly wrong in finding that A.K. Warehouse met its burden of proving that work was available to Mr. Harrison which was within the restrictions imposed by Mr. Harrison’s doctors and that those jobs would pay at least 90% of Mr. Harrison’s pre-injury wage; thus, we cannot say that the workers’ compensation judge erred in finding Mr. Harrison was not entitled to supplemental earnings benefits.

Therefore, for the foregoing reasons, the workers’ compensation judge’s judgment is affirmed. Costs are assessed against Mr. Harrison.

AFFIRMED.

      . In its answer A.K. Warehouse asked for reimbursement of this amount; however, at trial A.K. Warehouse conceded that it was only asking for a credit. Although A.K. Warehouse asked for a credit of $2,678.47 in its answer, and received a credit of $2,996.35 in the judgment, the payment records were entered into evidence without objection and were utilized to determine the amount of overpayment. See La. C.C.P. art. 1154.