author: CLAIBORNE, J.

text:
    Brent W. HEBERT, Individually and on Behalf of His Minor Child, Caleb Hebert, and Michelle B. Hebert, Individually and on Behalf of Her Minor Children, Daniel H. Edwards, Jr. and Zachary F. Edwards v. J. Edward LAYRISSON, Individually and in His Capacity as Sheriff of Tangipahoa Parish, Randy Pinion, Individually and in His Capacity as Warden of the Tangipahoa Parish Jail, the Tangipahoa Parish Sheriff’s Office, XYZ Insurance Company and Aaron Stanley.
    No. 2002 CA 0361.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      James C. Percy, Baton Rouge, Counsel for Plaintiffs-Appellants, Brent W. Hebert, et al.
    Scott C. Vincent, New Orleans, Counsel for Defendants-Appellees, Edward Layris-son, Randy, Pinion and Tangipahoa Parish, Sheriffs Office.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   CLAIBORNE, J.

This is an appeal by the plaintiffs, Brent W. Hebert, individually and on behalf of his minor child, Caleb Hebert, and Michelle B. Hebert, individually and on behalf of her minor children, Daniel H. Edwards, Jr. and Zachary F. Edwards, from a judgment of the trial court sustaining the exception of no cause of action filed by the defendants, J. Edward Layrisson, Randy Pinion, and the Tangipahoa Parish Sheriffs Office, and dismissing the plaintiffs’ lawsuit against them.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are discussed in great detail in a similar case already decided by this court, which was based on some of the same operative facts, Harper v. Layrisson, 99-0544 (La.App. 1st Cir.4/10/00), 764 So.2d 1061, writ denied, 00-1312 (La.6/23/00), 765 So.2d 1044, but we will summarize the facts briefly for the purposes of this appeal. A disturbance call investigated by a deputy from the Tangipahoa Parish Sheriffs Office on May 17, 1999, resulted in the arrest of Aaron Stanley at his home on June 3, 1997, on charges of resisting arrest by flight, obscenity, possession of stolen property, and aggravated assault on a police officer. A bond hearing was conducted, and bail was set by a judge of the Twenty-First Judicial District Court in the amount of $15,000.

However, on June 6, 1997, Stanley was allowed to sign himself out of the Tangipa-hoa Parish Jail on his own recognizance, without posting the bail fixed by the judge and without the approval of the judge. He was given a return date of August 6, 1997, to appear in court for arraignment on the aforementioned charges. On August 5, 1997, the day before his scheduled arraignment, Stanley broke into the plaintiffs’ home and severely beat plaintiff Michelle Hebert about the head, face, and body, using a metal hand 13tool. According to the plaintiffs, Stanley broke into their home in an attempt to steal their car keys and vehicle in order to escape from the custody and control of the Sheriff, his agents and employees, and in order to escape from the jurisdiction of the court and avoid his scheduled court appearance on August 6,1997.

On August 4, 1998, the plaintiffs filed the instant personal injury action against Aaron Stanley; J. Edward Layrisson, the Sheriff of Tangipahoa Parish; Randy Pinion, Warden of the Tangipahoa Parish Jail; the Tangipahoa Parish Sheriffs Office; and XYZ Insurance Company. Defendants, J. Edward Layrisson, Randy Pinion, and the Tangipahoa Parish Sheriffs Office (hereinafter “the defendants”), filed an exception raising the objections of no cause or right of action and prescription, which was argued before Judge M. Douglas Hughes on August 9, 1999. At the time of the hearing on the exception, Judge Bruce Bennett of the Twenty-First Judicial District Court had sustained an exception raising the objection of no cause of action in the companion case, Harper v. Layris-son, which was then pending before this court on appeal. Judge Hughes overruled the exception in the instant case at that time, but after this court issued its ruling in Harper v. Layrisson, affirming Judge Bennett’s sustaining of the exception of no cause of action, the defendants in this case filed another exception raising the objection of no cause or right of action. The exception raising the objection of no cause of action was sustained, and the trial court granted plaintiffs leave to amend their petition to state a cause of action and set the matter for rehearing. Finding that the plaintiffs’ amended petition failed to state a cause of action, the trial court dismissed the action against the defendants, J. Edward Layrisson, Randy Pinion, and the Tangipahoa Parish Sheriffs Office. From that judgment, plaintiffs now appeal, arguing that 14this case is different than Harper v. Layrisson, and that those differences warrant reversal in this case.

LAW AND ANALYSIS

The peremptory exception pleading the objection of no cause of action is a procedural device designed to test the legal sufficiency of the petition by determining whether, under the allegations of the petition, the plaintiff is afforded a remedy in law. Sinclair v. Kennedy, 96-1510 (La.App. 1st Cir.9/19/97), 701 So.2d 457, 459, writ denied, 97-2495 (La.4/3/98), 717 So.2d 645. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931; Sinclair v. Kennedy, 701 So.2d at 459. For purposes of ruling on the exception, the court must accept as true all well-pleaded allegations of fact in the petition and any annexed documents. Sinclair v. Kennedy, 701 So.2d at 459. The court should sustain the exception only if the law affords no remedy under any evidence that is admissible under the pleadings. Sinclair v. Kennedy, 701 So.2d at 459. In reviewing a trial court’s judgment sustaining an exception of no cause of action, this court subjects the case to a de novo review, because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. Harper v. Layrisson, 764 So.2d at 1064.

As noted above, a companion case, Harper v. Layrisson, based on some of the same operative facts as the case now before us, has already been decided by this court. The difference between this case and Harper is that the plaintiffs in Harper were the children of a woman whom Stanley murdered just hours before he attacked and beat Michelle Hebert. The plaintiffs in Harper alleged that Stanley had broken into their mother’s home in an attempt to steal money to allow him to escape the court’s | ¡-jurisdiction and avoid his scheduled court appearance the following day. As the decision of this court in Harper is controlling precedent for our decision in this case, we will duplicate most of its substance below:

At the outset, this court notes that none of the cases cited by the parties contain the particular factual circumstances presented herein. In this case, Stanley was booked and charged with several crimes, given a date upon which he was to return to court, and held on a $15,000.00 bond pending his return court date. At the time of the attack, he had not been convicted of any crime, nor had he escaped from the defendants’ custody. He was merely a pre-trial detainee being held in the parish jail pending his ability to make bond. Undisputedly, Stanley did not post bond in the amount set by the trial court, but was released from jail, without judicial authorization or review, three days after his arrest. Also, the acts allegedly giving rise to the claim for damages occurred two months after his release on a “sign out.”
Thus, in determining whether or not the trial court erred in granting the exception, the issue presented for review is whether, as a matter of law, a defendant sheriff may ever be held civilly liable for the misconduct of a pretrial detainee purposefully released on his own recognizance by the sheriff despite a judicially set bond.
Citing Green v. State Through Department of Institutions, 91 So.2d 153 (La.App. 1st Cir.1956), and subsequent cases interpreting Green, the defendants contend that if no liability exists where the inmate escapes, (except under very narrow circumstances), there can be' no liability where the inmate is released on a recognizance bond. We agree.
LSA-C.Cr.P. art. 311 provides, “Bail is the security given by a person to assure his appearance before the proper court whenever required.” LSA-C.Cr.P. art. 326 further provides in pertinent part:
[T]he condition of the bail undertaking in district, juvenile, parish, and city courts shall be that the defendant will appear at all stages of the proceedings to answer the charge before the court in which he will be prosecuted, will submit himself to the orders and process of the court, and will not leave the state without the written permission of the court.
Louisiana courts have consistently held that the purpose of bail is not to protect the public from all harms that the prisoner, or | fiin this case, the detainee, may inflict upon his release. Instead, bail exists to ensure that the accused will appear at trial. Green, 91 So.2d at 155; Frank v. Pitre, 353 So.2d 1293 (La.1977).
As set forth in Green:
An institution’s duty to restrain a convicted criminal is not based upon the purpose of protecting the general public from all harms that the prisoner might inflict if he were allowed to escape. A convicted person may be as dangerous on the day of his legal release as he was on the first day that he was confined, although the institution may still be under a legal duty to detain or release him.
As the court further noted, in rejecting any claim of liability:
There is no more reason for the State to be civilly responsible for the convict’s general misconduct during the period of his escape than for the same misconduct after a legal release, unless there is some further causal relationship than the release or escape to the injuries received.
Green, 91 So.2d at 155.
Thus, even accepting as true the allegations of the petition, we find no cause of action exists herein. We note that Stanley could have been released upon satisfaction of the judicially set bond and committed the very same acts, regardless of whether his release was authorized and proper pursuant to the judicially mandated bond or otherwise.
As noted in Frank, 353 So.2d at 1296:
For a defendant’s violation of a duty to be a legal cause of an injury, his violation must not only be a cause in fact of (i.e., a substantial factor contributing to) the injury, but the duty violated must also have included within its purpose the prevention of the risk encountered by the plaintiff to his injury.
Thus, even assuming defendants were negligent in allowing Stanley to sign himself out of jail, we are unable to say that this breach of duty or violation could be considered a cause in fact or a legal cause of the death of Birdie Ellen Barron.
Quite simply, bond does not exist for the protection of the public. Instead, as the courts have recognized, it exists to further the goal of ensuring the presence of the criminal accused at trial. Thus, even if the sheriff violated a duty associated with the housing of this pretrial detainee by negligently allowing l7him to be released, he could have just as easily committed the same offenses had he been released and at large pursuant to the judicially set bond by posting a commercial surety or property bond. Thus, as a matter of law, the trial court acted properly in holding that no cause of action exists herein upon which liability can be imposed.
Harper v. Layrisson, 764 So.2d at 1064-66.

This court’s decision in Harper v. Layrisson controls our decision in the case now before us. However, the plaintiffs argue that this case is different, because the plaintiffs in Harper specifically asserted that their petition “in no way asserts or alleges that the released perpetrator had escaped or was in the process of escaping at the time he murdered [Mrs. Barron].” Harper v. Layrisson, 764 So.2d at 1064. The plaintiffs in this case allege that this is an escape ease. They assert in their amended petition that, because Stanley’s release from jail on his own recognizance was unauthorized and unlawful, he remained in the legal custody, supervision, and control of the sheriff, his agents, and employees after the unauthorized release.

Because the sheriff did not have the authority to release Stanley on his own recognizance, the plaintiffs argue that the custodial relationship could not be terminated by the unauthorized release, but continued, despite the termination of physical custody. They allege that on the night of the attack on Michelle Hebert, Stanley was attempting to escape from the custody and control of the sheriff, his agents, and employees and from the jurisdiction of the court in order to avoid his scheduled court appearance the next day, and that the attempted theft of their car was done in furtherance of Stanley’s escape. They further allege that the defendants knew or should have known of Stanley’s propensity for violence and flight. Under the standard used by Louisiana courts in escape cases, they argue that the defendants are hable.

|sBy way of this argument, the plaintiffs attempt to have this case treated as an escape case. However, there is no legal authority for their argument that Stanley remained in the legal custody of the sheriff after his release. Although there are no Louisiana cases containing the exact factual circumstances as this one, cases such as Frank v. Pitre, 353 So.2d 1293 (La.1977), and Lloyd v. State, 395 So.2d 1385 (La.App. 1st Cir.1981), hold that even when a sheriff has exceeded his authority and acted negligently in releasing a prisoner, he will not be held civilly liable for the torts of the prisoner unless there is some further causal relationship which establishes that the sheriffs negligence is the proximate or legal cause of the injury. In this case, this court has already determined in Harper v. Layrisson that the defendants’ unauthorized release of Stanley on his own recognizance was not a cause in fact or a legal cause of the death of the woman he murdered just hours before he broke into the plaintiffs’ home and beat Michelle Hebert. For the reasons stated by the court in that case, we find that the defendants’ unauthorized release of Stanley was not a cause in fact or a legal cause of the injuries suffered by the plaintiffs in this case.

Furthermore, in attempting to have this case treated as an escape case, the plaintiffs allege in their petition that, at the time of the attack on Michelle Hebert, Stanley was in the process of escaping from the court’s jurisdiction to avoid his court appearance. The allegation of escape is a conclusion of law. We find that failure to make a court appearance does not constitute an escape. Cf. La. R.S. 14:110 (Simple escape; aggravated escape) with La. R.S. 14:110.1 (Jumping bail).

Accordingly, the plaintiffs have not stated a cause of action which would entitle them to relief, and the trial court was correct in sustaining the ^defendants’ peremptory exception raising the objection of no cause of action.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court sustaining the exception of no cause of action filed by the defendants, J. Edward Layrisson, Randy Pinion, and the Tangipahoa Parish Sheriffs Office, and dismissing the plaintiffs’ lawsuit against them. All costs of this appeal are assessed to plaintiffs.

AFFIRMED.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Paula C. Callison Wife of/and John Michael CALLISON v. LIVINGSTON TIMBER, INC., Gerald Whitehead and Charles Brown.
    No. 2002 CA 1323.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Mary Grace Knapp, Mandeville, Counsel for Plaintiffs/Appellants Paula C. Callison and John Michael Callison.
    Michael J. Whitehead, Mandeville, Counsel for Defendants/Appellants Livingston Timber, Inc., Gerald Whitehead, Charles Brown And General Star Indemnity-
    Before: KUHN, DOWNING and GAIDRY, JJ.
   GAIDRY, J.

In this suit involving the unlawful harvesting of timber, plaintiffs, Paula and John Callison (“the Callisons”), appeal a trial court judgment in their favor, and defendants, Livingston Timber, Inc., Charles Brown, and Gerald Whitehead (“the defendants”), answer the appeal. We affirm.

FACTS AND PROCEDURAL HISTORY

On June 3, 1996, Charles Brown, a subcontractor working on behalf of Livingston Timber under the supervision of Gerald Whitehead, cut down trees on the Calli-sons’ property while performing a logging operation on adjacent property owned by Angelo Giafaglone. The defendants admitted liability, but the parties were unable to agree on the amount due the Callisons, and this suit resulted.

After a bench trial, in a judgment dated October 26, 2001, the trial court awarded the Callisons twelve hundred dollars for the value of their timber, two thousand dollars for land restoration and clean-up, four hundred dollars for the loss of a buffer zone, fifteen hundred dollars as an expert witness fee, and five thousand dollars in attorney fees, as well as court costs and legal interest from the date of judicial demand.

The Callisons appeal this judgment, raising the following assignments of error:

1. The trial court erred in failing to apply general tort law in addition to La. R.S. 8:4278.1 in awarding damages.
2. The trial court erred in finding that there were no demarcations of the Calli-sons’ property fine and that defendants acted in good faith, thereby denying the Callisons’ treble damages claim.
|s3. The trial court erred in finding that the Callisons failed to sufficiently prove the fair market value of the trees removed by the defendants.
4. The trial court erred in awarding only five thousand dollars in attorney fees when the record clearly indicates that thirteen thousand eight hundred and forty dollars in attorney fees were reasonable under the circumstances.

The defendant answered the appeal, and alleged that the trial court erred in awarding the Callisons any attorney fees under La. R.S. 3:4278.1(D), since the defendants had attempted to settle the matter with the Callisons, but were rejected.

APPLICABILITY OF GENERAL TORT LAW

The Callisons allege that the trial court erred in fading to apply general tort law in addition to La. R.S. 3:4278.1 in awarding damages. Specifically, the Callisons allege that, under La. R.S. 3:4278.1 and La. C.C. art. 2315, they were entitled to recover treble damages for the fair market value of the trees, reforestation costs, diminished aesthetic value, loss of growth value, restoration of the land surface, general damages for trespass, mental anguish, and attorney fees.

The Callisons are correct that the application of La. R.S. 3:4278.1 does not preclude recovery for other elements of damage suffered by the owner of an immovable as a result of a trespass. La. R.S. 3:4278.1 is not an exclusive remedy; it merely standardizes damages due for timber trespass as the fair market value of the trees cut. Versai Management, Inc. v. Monticello Forest Products Corporation, 479 So.2d 477 (La.App. 1 Cir.1985).

A person injured by trespass or the fault of another is entitled to full indemnification for the damages caused. Where there is a legal right to | recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all of the facts and circumstances. Damages are recoverable even though the tortfeasor acts in good faith. Versai Management, Inc., 479 So.2d at 484. In addition to the amount recoverable under La. R.S. 3:4278.1, damages are recoverable, if supported by the record, for the costs of removing stumps and clearing the land after a timber trespass, Versai Management, Inc., 479 So.2d at 484; reforestation, Isdale v. Carman, 96-1435, p. 16 (La.App. 3 Cir. 4/2/97), 692 So.2d 687, 695; loss of aesthetic value/buffer zone, Howes v. Rocquin, 457 So.2d 1220, 1223 (La.App. 1 Cir. 1984); and mental anguish, Olsen v. Johnson, 99-783, p. 7 (La.App. 3 Cir. 11/3/99), 746 So.2d 740, 745.

In fact, the trial court did award the Callisons damages under the general tort law — two thousand dollars for land restoration and clean-up and four hundred dollars for the loss of a buffer zone. The court simply did not award the costs of reforestation or mental anguish damages.

Both Mr. and Mrs. Callison testified that they wanted the property to remain in its natural state, and they asked that the court award them the costs of reforestation. Reforestation costs are not recoverable in all cases of timber trespass, but only when supported by the record. In Isdale v. Carman, 96-1435 (La.App. 3 Cir. 4/2/97), 692 So.2d 687, the court found that an award of reforestation costs was supported by the record because the evidence' adduced at trial showed that the tract contained no pine seedlings or close older pines which could produce seedlings to reseed the entire tract; therefore, it was recommended that the plaintiffs burn the tract to rid it of the grass and treetops leftover from the logging, which would hinder replanting, and then' have the tract replanted, since there was no means of natural regeneration.

I RIn the instant case, the Callisons’ expert arborist, Dr. Malcolm Guidry, testified that the trees that had been cut were undeniably regrowth, meaning that at some point, the timber had been harvested and natural regeneration had taken place. He recommended having the site cleared and replanted with new trees and having a sprinkler system installed to maintain the new trees. He believed it was necessary to completely clear the site because natural regeneration had already begun and there were quite a few Chinese Tallow trees, which he described as “trash trees,” growing on the property. While Dr. Gui-dry admitted that there was a stand of new pine trees growing on the site that were six to eight feet tall, he testified that that was not representative of the entire property.

The defendants’ forestry expert, Gaston Lanaux, testified that when he visited the property the week before the trial, what he saw was typical of natural regeneration with no site preparation or chemical treatment to control unwanted species. There were pine seedlings in the higher elevations that appeared to be five to six years old and ten to twelve feet tall. In the lower areas with standing water, there were some tallow trees and small water oaks. He testified that pines would not grow in these wetter areas. ' He said that, as a whole, this property was typical of naturally regenerated property in St. Tammany Parish.

It was not Mr. Lanaux’s recommendation that the property be cleared and replanted. He would leave what had already regenerated in place, but thin things out and get rid of some of the undesirable species that grow on any site if it is not taken care of. He stated that the organic debris left on the property from the logging operation was pretty much decomposed. In addition, the unwanted species would be shaded out as the pine trees and other trees got taller. Given the Callisons’ wish to have the property | (¡returned to its original “natural” state and to restore the “buffer zone” as quickly as possible, he believed that the best way to achieve this would be to allow the natural regeneration which had been going on for five to six years at the time of trial to continue. The trees already growing on the property would be twenty to twenty-five feet tall in five years. He testified that there were just as many pine trees and oak trees as there were tallow trees. He estimated the total cost of clearing the site and replanting to be, at most, four hundred to five hundred dollars an acre. Mr. Lanaux did not believe that a sprinkler system was necessary since the property was in a flood zone.

The trial court is free to accept or reject, in whole or in part, the testimony of any witness. See LeBouef v. Gross, 506 So.2d 879 (La.App. 1 Cir. 4/14/87). In this case, it is clear that the court found the opinion of Mr. Lanaux that the property did not need to be completely cleared and replanted more credible than that of Dr. Guidry. Therefore, the court did not err in declining to award the Callisons the cost of reforestation.

Likewise, mental anguish damages are not recoverable in all cases of timber trespass. In Evans v. B.R. Bedsole Timber Contractors, Inc., 521 So.2d 887, 839-40 (La.App. 2 Cir.1988), the plaintiff sought mental anguish damages for the loss of timber on land owned by his family since 1878, before which time his grandfather worked the land as a slave. The plaintiff testified that several of the larger trees had been there since slavery days, so he had never cleared the tract and had no intention of doing so; as a result, he was “hurt” over the loss of the trees and “upset” that someone would just go in and cut his timber without asking. In denying his claim for mental anguish, the court stated:

Every incident of property damage is necessarily accompanied by some degree of worry and consternation over such things as possible financial loss, settlement of insurance claims, and ^discomfort and inconvenience. The owner of the damaged property may not recover for mental anguish unless he or she proves a psychic trauma in the nature of or similar to physical injury, directly resulting from the property damage. Elston v. Valley Electric Membership Corp., 381 So.2d 554 (La.App. 2d Cir.1980); Thompson v. Simmons, 499 So.2d 517 (La.App. 2d Cir.1986), writ denied 501 So.2d 772 (La.1987). This standard of proof is applicable to cases of trespass and wrongful removal of timber. Jones v. Don Edwards Timber Co., 516 So.2d 1256 (La.App. 2d Cir.1987). The property damage in this case was caused by the defendants’ intentional crossing of a highly visible fence, cutting and removing the plaintiffs trees and reducing them to wood chips. Plaintiff did not prove psychic trauma as a result of this; he did not seek treatment for any mental disorders after the incident...; he merely testified that he was “upset” and “hurt.” This strikes us as nothing more than normal worry associated with having one’s property damaged by another.

In the instant case, Mr. Callison testified that he bought the property because it was beautiful; he stated that he fell in love with it because of the trees, the distance of the house off the road, and the creek. Mr. Callison testified that he can see the part of the property that was cut from his house, although this fact was disputed at trial. Mrs. Callison testified that she feels that they have lost the seclusion they once had because of the loss of the trees, although there remain other trees between their home and the area that was cut. This was to be their retirement home, and they had plans to build a bridge over the creek and a nature trail through the woods, but now Mr. Callison hardly goes out to the area that was cut anymore. However, Mr. Callison testified that the purpose of his purchase of the property has not been defeated; he still loves the property and wants to keep it.

Both Mr. and Mrs. Callison testified that Mr. Callison was very upset over the loss of his trees, and they attributed Mr. Calli-son’s high blood pressure and anxiety attacks to the loss. Mrs. Callison testified that she was concerned about her husband because his stress level has increased as a result of this incident, and she feels that has affected his medical problems. | s However, neither of the Callisons ever saw a psychologist regarding the loss, and Mr. Callison admitted that no one had ever told him that his high blood pressure and anxiety attacks were related to the trespass.

The trial court chose to make no award for the Callisons’ mental anguish and emotional distress. In making an award of general damages, i.e., those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain and suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or lifestyle which cannot really be measured definitively in terms of money, the trial court is granted much discretion. Boswell v. Roy O. Martin Lumber Co., Inc., 368 So.2d 506, 507 (La.1978).

Appellate review of general damage awards is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, keeping in mind that the trier of fact has had the advantage of seeing the witnesses and evaluating their testimony. Abuse of discretion by a trial court must be clearly demonstrated before an appellate court may tamper with an award of general damages. Boswell, 363 So.2d at 507.

From the evidence presented at trial, the complaints of the Callisons regarding their mental anguish and emotional distress following this incident seem more akin to the “normal worry associated with having one’s property damaged” described by the court in Evans than com-pensable mental anguish, and therefore the trial court did not abuse its great discretion in denying the Callisons’ mental anguish claim.

This assignment of error is without merit.

J^TREBLE DAMAGES CLAIM

Louisiana Revised Statutes 3:4278.1(C) states that good faith violators of the statute shall be liable for treble damages “if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.” The trial court denied the Callisons’ demand for treble damages under La. R.S. 3:4278.1 because the court found that there were no demarcations of the property lines except the iron stakes and that there was no evidence establishing that the defendants should have known they had transgressed the property line. The court found that the defendants did not blatantly ignore the Callisons’ property rights, but instead made efforts to identify the property lines by following the instructions of the adjacent property owner, Mr. Giafa-glone, and therefore they were in good faith and not hable for treble damages.

According to Mr. Callison, the only boundary marker on the boundary fine at issue was one steel rod alongside a fencepost. He says that on that property line, there are only corner survey stakes, and nothing along the property line itself.

Mr. Whitehead testified that his misinformation regarding the location of the property line came from Mr. Giafaglone. He testified that he did not see any reason to have a survey done since Mr. Giafaglone showed him where the boundary fine was and he assumed that Mr. Giafaglone knew what he was talking about. He had no reason to doubt Mr. Giafaglone’s knowledge of the location of the property line. Mr. Whitehead testified that Mr. Giafa-glone showed him the wrong corner marker, and there were no boundary lines or markers whatsoever on the property line itself, there was Imno ditch along the boundary line, no flags, and no demarcation in the size of the trees on one side of the property line or the other.

Officer St. Pierre, who conducted an investigation of Mr. Callison’s complaint of timber theft, also testified that he saw no evidence of clearly marked boundary lines. In the course of his investigation, he also spoke with Mr. Whitehead, who advised that he had been told that the power line was the boundary line.

The evidence in the record does not support the conclusion that the defendants should have known that they crossed onto the Callisons’ property. Since the treble damages provisions of La. R.S. 3:4278.1 are punitive in nature, they must be strictly construed; it is only when a person clearly violates its provisions that he will be assessed the severe penalty of treble damages. Howes v. Rocquin, 457 So.2d 1220, 1222 (La.App. 1 Cir. 10/9/84). The trial court did not err in denying the Callisons’ claim for treble damages. This assignment of error is without merit.

PAIR MARKET VALUE OF HARVESTED TIMBER

The court also determined that the Calli-sons were not entitled to treble damages because they failed to sufficiently prove the fair market value of the trees that were removed by defendants. The court found that the Callisons’ expert valued the living trees and the damage under a method which considered the replacement costs at the time of cutting, but recovery under the statute is limited to the fair market value of the harvested timber.

In its reasons for judgment, the court cited Olsen v. Johnson, 99-783 (La.App. 3 Cir. 11/3/99), 746 So.2d 740, wherein the court held that because the plaintiff failed to prove the fair market value of the trees, the trial court was correct in refusing to award treble damages. The Olsen court pointed out that the statute sets damages for violations at three times the fair | timarket value of the trees. However, the plaintiffs expert arborist only outlined clean-up expenses and replacement costs, but did not give an opinion as to the fair market value of the trees removed. Since the plaintiff failed to put forth evidence as to the fair market value of the trees removed from her property, treble damages under the statute were not available. Olsen, 99-783 p. 5, 746 So.2d at 744.

The Callisons argue that their expert, Dr. Malcolm Guidry, did in fact testify as to the fair market value of the trees. However, a review of Dr. Guidry’s trial testimony reveals that he testified at trial that he was not a commercial forester and was not qualified to render an opinion as to the fair market value of the timber removed from the property. He was only able to render an opinion as to the cost of restoring and reforesting the property. As such, the trial court was correct in refusing to award treble damages under La. R.S. 3:4278.1.

ATTORNEY FEES

Louisiana Revised Statutes 3:4278.1 provides for payment of a reasonable attorney fee by a good faith violator of the statute who fails to make payment within thirty days after notification and demand by the owner. La. R.S. 3:4278.1(D). In their answer, the defendants claim that the court erred in awarding attorney fees to the Callisons since they had attempted to settle this matter, but were rejected by the Callisons.

Mr. Callison testified that he called Mr. Whitehead after discovering the damage and told him what had happened and that Mr. Whitehead offered him five hundred dollars for the damage. The Callisons’ attorney sent a letter to Mr. Whitehead by certified mail on January 27,1997 demanding $133,162.50, three times the cost of replacing the trees and restoring the land. A check was later tendered in the amount of five hundred dollars to |1gthe Callisons on January 16, 2001, some four years after notification and demand.

Although there was a dispute over the amount due the Callisons, there was no dispute over the defendants’ liability, yet the defendants failed to tender any amount of money to the Callisons within thirty days after notification and demand. The trial court later determined the fair market value of the timber removed from the property to be twelve hundred dollars, not five hundred as alleged by the defendants; however, even if the defendants had tendered the correct amount, they did not do so within thirty days as required by the statute in order to avoid payment of attorney fees. Therefore, the trial court did not err in awarding a reasonable attorney fee to the Callisons. This assignment of error by defendants is without merit.

The Callisons allege that the trial court erred in setting the attorney fee at five thousand dollars, when they presented evidence that thirteen thousand eight hundred and forty dollars would be a reasonable attorney fee.

Factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) the court’s own knowledge. Corbello v. Iowa Production, 02-0826 (La.2/25/03), 850 So.2d 686, 2003 WL 536727.

The reasonableness of an attorney fee awarded under La. R.S. 3:4278.1 is within the great discretion of the trial court. Evans v. B.R. Bedsole Timber Contractors, Inc., 521 So.2d 837, 840 (La.App. 2d Cir.1988).13 Based upon a review of the record and the factors enumerated in Cor-bello, the fee awarded by the court was reasonable and we find no abuse of discretion. This assignment of error is likewise without merit.

DECREE

For the above reasons, the October 26, 2001 judgment of the trial court is affirmed. Costs of this appeal are to be shared equally by the parties.

AFFIRMED.

DOWNING and KUHN, JJ., concur.

      . This check was never cashed.


author: FITZSIMMONS, J.

text:
    STATE of Louisiana v. Kenneth DILOSA.
    No. 2001 KA 0024.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Walter P. Reed, District Attorney, Cov-ington, Dorothy A. Pendergast, Metairie, Counsel for Appellee State of Louisiana.
    Carol A. Kolinchak, New Orleans, Counsel for Defendanf/Appellant Kenneth Dilo-sa.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   FITZSIMMONS, J.

Defendant, Kenneth Dilosa, and his co-defendant, Johnny Lee White, Jr., were indicted by a grand jury with one count of distribution of heroin each, a violation of La. R.S. 40:966 A(l). Defendant pled not guilty. Following a jury trial, defendant and White were found guilty as charged. Defendant was sentenced to life imprisonment without benefit of probation or suspension of sentence. For the following reasons, defendant’s conviction and sentence are affirmed.

FACTS

Trooper Richard L. Horton, a narcotics investigator for the Louisiana State Police, was a case agent for an investigation of narcotics distribution in the Slidell area. On September 11, 1997, Trooper Horton met with Jesse Simon of the Slidell Police Department. Simon introduced Trooper Horton to a confidential informant (Cl), who had contacts with people who sold narcotics. Trooper Murphy Paul, an undercover agent, also was involved with the contact with the Cl.

As a result of information provided by the Cl, Trooper Paul was able to make a telephone contact with Johnny White on September 11, 1997, and White agreed to meet with Trooper Paul at a Texaco station located on Old Spanish Trail in Slidell. At the meeting, Trooper Paul told White he wanted to purchase a bundle of heroin. White indicated the bundle would cost about $250-$800. After Trooper Paul agreed he would pay $250 for the bundle, White called defendant, identified only as “Jack” at this point in time, on his cell phone and defendant agreed to meet White and Trooper Paul at the Lake Forest Plaza Mall in New Orleans. Defendant’s identity was discovered when the surveillance team monitoring Trooper Paul tracked the license plate number from the vehicle defendant used in the first transaction.

| ¡¡Trooper Paul and White then drove to the mall and met defendant, where they completed a transaction for one bundle of heroin. The transaction was captured on video surveillance equipment. Following the transaction, Trooper Paul asked defendant about future transactions. The defendant stated that he should be getting some white heroin, as opposed to the brown heroin involved in the present transaction. Trooper Paul and White then drove back to the Texaco station where he let White return to his vehicle. Trooper Paul then proceeded to a prearranged location where he turned over the drugs to Trooper Horton. Trooper Horton conducted a field presumptive test, which tested positive for heroin. According to Trooper Horton, 2.05 grams of heroin were sold during this transaction.

On September 28, 1997, Trooper Paul again contacted White and told him he wanted to buy two bundles of heroin (approximately 4 grams). Trooper Paul was told that the price of heroin had gone up to $300 a bundle because it was a more potent grade. Trooper Paul agreed to pay $600, and White contacted defendant. Another meeting was scheduled at the same mall where the first transaction took place. Once again White accompanied Trooper Paul from Slidell to the Lake Forest Plaza Mall. While White and Trooper Paul were waiting in the parking lot, the mall security seemed to take note of them. When defendant arrived, he asked if they could relocate to the Popeye’s restaurant across the street. Trooper Paul agreed, but took his time in getting there so the surveillance officers could have time to get into a different position.

Trooper Paul and White met defendant in the parking lot behind the Popeye’s. White went to defendant’s vehicle, got a small plastic bag containing a brown powdery substance and turned over the bag to Trooper Paul. Trooper Paul examined the bag and gave $600 to the defendant. Trooper Paul and defendant again discussed the possibility of future transactions, with Trooper Paul inquiring ^whether defendant could obtain an ounce of heroin. The defendant indicated he could get an ounce.

Trooper Paul and White returned to Sli-dell, with White being dropped off at his vehicle. Trooper Paul then met with Trooper Horton and turned over the bag containing the brown powdery substance. Trooper Horton testified that his field presumptive test determined this substance was 4.05 grams of heroin.

On November 6, 1997, Trooper Paul paged White. When White returned his call, Trooper Paul explained that he wanted to purchase a half-ounce of heroin. White said that amount of heroin would cost $3,200. The two men again met at the Texaco station in Slidell. This time, defendant was meeting them at the Texaco station in Slidell to complete the transaction. The defendant arrived in a red Jeep Wrangler. When he arrived, White got out of Trooper Paul’s vehicle and went over to defendant’s Jeep. White got in the Jeep while Trooper Paul leaned in through the doorway. Defendant gave Trooper Paul a plastic container with a brown powdery substance. Trooper Paul gave defendant $8,200. After the purchase and some brief conversation, defendant left.

Trooper Paul then met Trooper Horton and gave him the plastic container. Trooper Horton conducted a field presumptive test, which resulted in a positive test for heroin. Trooper Horton indicated that he weighed the heroin, which amounted to 13.5 grams.

Members of the surveillance team followed defendant after he left the Texaco station. Trooper Joseph Hasselbeck was contacted and told to stop defendant’s vehicle, which he did at approximately Mile Post 253 on Interstate 10 in Orleans Parish. Defendant was arrested at that time on warrants for the two prior drug transactions that occurred in Orleans Parish. Incidental to defendant’s arrest, a search of his vehicle and person turned up $3,000 in cash. The cash seized | .-matched the cash Trooper Horton had photocopied and given to Trooper Paul to use in the transaction that occurred earlier that evening.

Trooper Horton took the drugs obtained in the November 6, 1997 transaction, sealed them in an envelope, and placed it in Bin 190 of the State Police Narcotics Office in Metairie. According to Trooper Horton’s testimony, he transported this evidence to the State Police Crime Lab in Baton Rouge on November 7, 1997. However, the paperwork accompanying this evidence indicates the evidence actually arrived at the Baton Rouge Crime Lab on November 10,1997.

Howard Pentes, a forensic scientist with the State Police, as well as the supervisor of the drug section of the state laboratory at the time of trial, testified that the material obtained in the November 6, 1997 transaction tested positive for heroin in the laboratory tests. According to Pentes, when he received the evidence delivered by Trooper Horton, it had not been tampered with. Val Penouilh, the lieutenant in charge of the narcotics at the State Police Crime Lab in Baton Rouge, testified that when he received the package containing the evidence of the November 6, 1997 purchase, it was properly sealed. Lt. Penouilh testified he received the package on November 10,1997.

Co-defendant Johnny White testified at trial. He stated he was contacted several times by the Cl, who wanted to know if he knew a source for heroin. White acknowledged dealing cocaine to the Cl, but not heroin. White testified that after the Cl made five to six inquiries regarding heroin, he called defendant. According to White, he would find out the price of heroin by calling defendant and then pass along the information to the Cl or Trooper Paul, who White only knew by his undercover alias, “Country.” Although White acknowledged that he connected a source for heroin with the ultimate purchaser, he denied ever receiving [ (¡anything from the transactions. White testified he was present at each transaction between Trooper Paul and defendant.

Defendant did not testify at trial. Defendant was tried before a jury along with White as a co-defendant. Following the trial, the jury found defendant guilty as charged on one count of distribution of heroin for the November 6, 1997 transaction. Defendant appeals, urging twelve assignments of error.

SUFFICIENCY OF THE EVIDENCE

In his tenth assignment of error, defendant argues that the evidence was insufficient to support his conviction. In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard is that the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Captville, 448 So.2d 676, 678 (La.1984). The standard has been codified in La.C.Cr.P. art. 821.

The statute under which defendant was charged, La. R.S. 40:966, reads in part as follows:

A. Manufacture; Distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I;

Heroin is listed in Schedule I.

Defendant argues that the state failed to prove the substance distributed was heroin because the state failed to document and maintain the chain of custody of the evidence purported to be heroin.

7 Chain of custody establishes the custody of an object from the time it is seized to the time it is offered into evidence. State v. Spradley, 97-2801, p. 9 (La.App. 1 Cir. 11/6/98), 722 So.2d 63, 69, writ denied, 99-0125 (La.6/25/99), 745 So.2d 625. A sufficient foundation for the introduction of demonstrative evidence is laid if the evidence establishes that it is more probable than not that the object is the one connected to the case. Lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. Ultimately, a chain of custody or eonnexity of the physical evidence is a factual matter for determination by the jury. A continuous chain of custody need not be established if the evidence as a whole establishes more probably than not that the object introduced is the same as the object originally seized by police officers. Spradley, 97-2801 at p. 10, 722 So.2d at 69.

Trooper Paul testified that during the November 6, 1997 transaction, he received a cellophane bag with a brown powdered substance. Following the transaction, Trooper Paul met with Trooper Horton and turned the bag over to him. Trooper Horton testified that he received a cellophane bag containing a brown powdery substance from Trooper Paul and conducted a presumptive field test, which indicated the substance was heroin. Trooper Horton then sealed the bag containing the substance in an envelope and placed the envelope in Bin 190 at the State Police Narcotics Office in Metairie. Although Trooper Horton admitted there was no paperwork documenting his transfer of the evidence to the State Police Crime Lab in Baton Rouge, he testified that he personally transported the evidence to Baton Rouge. Val Penouilh, a lieutenant in charge of the south district for narcotics, testified he received the properly sealed evidence package at the Baton Rouge Crime Lab. According to Lt. Penouilh, the package had not been opened or tampered with in any way. The evidence was later determined by laboratory analysis to be heroin.

Although the defendant argues that neither Trooper Paul nor Trooper Horton placed any identifying marks on the evidence once it was obtained, and Trooper Horton could not verify when he took the evidence to the State Police Crime Lab in Baton Rouge, the evidence is admissible as long as a connexity by a preponderance of the evidence is established. State v. Sherer, 354 So.2d 1038, 1042 (La.1978). It is not necessary that all possibility of alteration be eliminated for evidence to be admitted. Id. An appellate court does not reweigh credibility of witnesses when reviewing the sufficiency of the evidence. State v. Davis, 2001-3033, p. 3 (La.App. 1 Cir. 6/21/02), 822 So.2d 161, 164. The jury was free to accept or reject the testimony of the State Police Troopers indicating the evidence was sealed, not tampered with, and that all tests, both laboratory and presumptive field tests, revealed it was heroin. The evidence substantiates that it was more probable than not that the evidence obtained in the November 6, 1997 transaction was not tampered with and was, in fact, heroin.

This assignment of error lacks merit.

RIGHT TO COUNSEL

Through his first assignment of error, defendant asserts he was denied his right to retain counsel of his choice, his right to present a defense, and effective assistance of counsel.

Right to Retain Counsel of His Choice and Present a Defense

Louisiana Code of Criminal Procedure Article 515 provides:

Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned by the court. The court may assign other counsel in substitution of counsel previously assigned or specially assigned to assist the defendant at the arraignment.

The right to counsel cannot be manipulated to obstruct the orderly procedure of the courts and cannot be used to interfere with the fair administration of justice. State v. Seiss, 428 So.2d 444, 447 (La.1983). While the right to counsel of choice in a criminal trial is guaranteed by the United States and the Louisiana Constitutions, there is no constitutional right to make a new choice on the date a trial is scheduled to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. State v. Leggett, 363 So.2d 434, 436 (La.1978). The right to counsel of choice must be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system of which it is a part. State v. Lee, 364 So.2d 1024, 1028 (La.1978). Once the day of trial has arrived, the question of withdrawal of counsel rests largely within the discretion of the trial court. The Louisiana Supreme Court has frequently upheld the trial court’s denial of motions for a continuance made on the day of trial when the defendant is dissatisfied with his present attorney but had ample opportunity to retain private counsel. State v. Leggett, 363 So.2d at 436; State v. Spradley, 97-2801 at p. 5, 722 So.2d at 67.

The defendant was arrested on November 6, 1997, on warrants from Orleans Parish, and he remained in Orleans Parish Prison. On June 18, 1998, a St. Tammany Parish Grand Jury returned a true bill charging him with the present offense. The minutes in this matter indicate that defendant made his first court appearance in this case on July 8, 1998, wherein he was accompanied by counsel, Gerald Ley-decker, and entered a plea of not guilty. The matter was assigned for trial on September 21, 1998.

On September 21, 1998, the defendant’s counsel, James G. Burke, III, appeared and requested a continuance, which was granted and the trial rescheduled for October 26, 1998. On October 26, 1998, Burke again moved for and was granted a continuance of trial until January 25, 1999. On January 25, 1999, pursuant to a joint motion by the state and defense, another continuance was |ingranted until March 15, 1999. On March 15, 1999, Burke obtained another continuance until May 3, 1999. The defendant had not appeared in court on this matter since July 8, 1998, when he entered his plea. However, the minutes also reflect that the only events that occurred were the numerous continuances of the trial date.

On April 29, 1999, the Chief Public Defender filed a motion to appoint counsel because of a conflict of interest existing in this matter. Specifically, defendant’s counsel until that point had been James G. Burke, III, who also represented co-defendant White.

' On May 3, 1999, the defendant was present in court without an attorney, and the court ordered the trial continued to June 16, 1999. On May 7, 1999, David Carollo was appointed to represent defendant. On June 16, 1999, the defendant and his counsel, David Carollo, were in court. Pursuant to a defense motion for continuance, the trial was continued until September 20, 1999. On September 20, 1999, the defendant and his attorney were present in court, and the defendant advised the court that he wanted to retain private counsel and sought a continuance. The court denied the defendant’s request to continue the trial.

Defendant argues that he was unable to retain counsel of his choice and that the trial court erred in denying his motion for continuance. Defendant asserts that he was not adequately notified of the proceedings against him such that he had the opportunity to obtain private counsel. It is evident that defendant was not brought to court from July 8, 1998 until May 3, 1999. The state offers no explanation for this failure. However, following the appointment of David Carollo as defendant’s attorney, he was present in court on June 16, 1999, and the minutes reflect the trial court set the trial date as September 20, 1999. There is no evidence defendant hi sought to inform the trial court of his desire to retain private counsel. In the three-month span between June 16 and September 20, 1999, there is no indication defendant sought private counsel. The first indication the trial court had that defendant desired private counsel was the morning of his trial.

Considering the facts as presented by the record, we cannot say the defendant exercised his request to retain counsel in a reasonable time, manner, or stage of the proceedings. Further, the trial court did not err in denying the defendant a continuance of his trial. Nor can we say there was any showing that defendant was denied access to any private counsel, given the complete lack of any indication defendant had retained such counsel. This portion of the assignment of error is without merit.

Ineffective Assistance of Counsel

Following the testimony of co-defendant White, defendant requested his attorney seek a severance, which the trial court denied as untimely. The transcript reflects defendant alleged he told his attorney to seek a severance prior to trial, and defense counsel explained he never considered a motion for severance based upon his defense strategy in this matter. Defendant also alleges defense counsel failed to interview witnesses available to testify on his behalf.

A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. Where the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Lockhart, 629 So.2d 1195, 1207 (La.App. 1st Cir.1993), writ denied, 94-0050 (La.4/7/94), 635 So.2d 1132.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-part test for review of a convicted defendant’s claim that his counsel’s assistance was so defective as to require reversal of a conviction. First, the defendant must show that counsel’s performance is deficient. Second, the defendant must show that this deficient performance prejudiced the defense.

The issues raised by defendant clearly question the trial strategy and preparation put forth by his trial counsel. Such issues can only be resolved on evi-dentiary findings regarding his trial counsel’s investigation, preparation, strategy, and whether counsel’s performance was deficient such that it prejudiced defendant. These questions cannot be determined by this appellate review and should be asserted through an application for post-conviction relief. See State v. Eames, 97-0767, p. 8 (La.App. 1 Cir. 5/15/98), 714 So.2d 210, 216, writ denied, 98-1640 (La.11/6/98), 726 So.2d 922. Accordingly, these portions of defendant’s assignment of error are not subject to appellate review.

This assignment of error is without merit.

SEVERANCE

In his second assignment of error, the defendant argues that the trial court’s failure to grant a severance constitutes reversible error.

On the morning of September 23, 1999, following the testimony of co-defendant White, defendant’s counsel addressed the court with the following: “[Defendant] asked me to inform the Court that he’d like to make a motion for a severance in this matter.” Defendant was then allowed to address the court as follows:

Prior to coming to trial, when I found out that I was coming to trial I believe that was Sunday night or Monday morning, I advised my attorney that I wanted a severance then. I didn’t want to go to trial with my co-defendant. And he never put in my request. That’s why I asked for it today and that I also had witnesses prepared to testify that 113he never interviewed or put on the stand. I’d just like all that on the record.

The trial court ruled that the objection of misjoinder of defendants may only be urged by a motion to quash the indictment, which had to be done before trial. Defendant stated that he asked his attorney to do this before trial to which defense counsel responded, “For the record, Your Hon- or, I never considered a motion for severance based upon defense strategy in this matter, which was not to the detriment of [defendant].” At that point, defendant addressed the court, “My strategy never was the entrapment. I had — .”

Defendants who are jointly indicted are to be tried together unless the court finds that justice requires a severance. La.C.Cr.P. art. 704. The courts have permitted a severance to co-defendants whose defenses are antagonistic to each other. Defenses are antagonistic when each defendant intends to exculpate himself by putting the blame for the offense on a co-defendant. However, a mere allegation that the defenses are antagonistic is insufficient because convincing evidence of actual antagonism must be present to justify a severance. An accused is not entitled to a severance as a matter of right; the decision is one resting -within the sound discretion of the trial judge. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. Reversal of a conviction for failure to sever will not always be mandated unless prejudice can be shown. State v. Price, 93-0625, 93-0626, pp. 3-4 (La.App. 1 Cir. 3/11/94), 636 So.2d 933, 936-37, writs denied, 94-1566 (La.10/14/94), 643 So.2d 159 and 94-0742 (La.6/17/94), 638 So.2d 1091. A motion to sever may be made during trial at the time the prejudice to the mover becomes manifest. State v. McGraw, 366 So.2d 1278, 1285 (La.1978). Justice does not require a severance where only the extent of participation of each defendant is at issue. State v. Gaskin, 412 So.2d 1007, 1012 (La.1982).

114The trial court’s reasons for denying the severance were not erroneous under the circumstances presented in the record. Although defendant indicated to the court he had no wish to be tried with his co-defendant, the defendant did not actually request a severance until after White had testified.

Defendant argues that the testimony of White was prejudicial in that White portrayed defendant as the “drug dealer,” identified defendant as the heroin source, and testified there was no doubt heroin was being sold by defendant because the transaction took place in his presence. White attempted to portray himself as merely the connection who put Trooper Paul in touch with the ultimate distributor of heroin. White also denied receiving any money for his role in the transaction.

After reviewing the record, we do not find White’s testimony to be so antagonistic to defendant that it would allow this court to conclude the trial court abused its discretion in failing to grant the severance. Prior to White’s testimony, Trooper Paul had already identified defendant as the seller of heroin. Trooper Paul also testified that money was given to defendant in exchange for heroin. Although defendant’s trial strategy seemed to center around whether the state could prove the substance exchanged was actually heroin, the testimony of White was not different than the testimony of Trooper Paul regarding whether defendant was the individual involved in the drug transaction. Moreover, White’s testimony portraying defendant as the “drug dealer” is more appropriately considered to raise the issue of the extent of participation of each defendant in the transaction. Such an issue is not grounds for granting a severance. Accordingly, this assignment of error is without merit.

PROCEEDINGS OUTSIDE THE PRESENCE OF DEFENDANT.

In his third assignment of error, defendant argues it was error for the trial court to conduct certain proceedings outside of the defendant’s presence. Specifically, defendant alleges he was not present at the September 1, 1999 hearing 11son the application for bill of particulars for oyer and motion for pre-trial inspection.

Louisiana Code of Criminal Procedure Article 831 provides that the defendant’s presence is required:

(1) At arraignment;
(2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.

There is no jurisprudence or statute mandating that defendant be present at a discovery motion. Moreover, the minutes reflect that defense counsel informed the court that he was satisfied with the state’s response, and the state informed the court that it was satisfied with the defendant’s response. Defendant’s absence from such proceedings is not reversible error. This assignment of error is without merit.

OTHER CRIMES EVIDENCE

In his fourth assignment of error, defendant argues that the introduction of two prior instances of heroin purchases that took place in Orleans Parish between defendant and Trooper Paul were erroneously admitted.

Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. McDermitt, 406 So.2d 195, 200 (La.1981). However, Article 404 B(l) of the Louisiana Code of Evidence provides the following exceptions to this general rule of inadmissibility:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity | t F,therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ... or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The second sentence of this article refers to other crimes evidence that previously was admissible under former La. R.S. 15:445-446 (Prieur evidence) and former La. R.S. 15:447-448 (res gestae). See La. C.E. art. 404, comments (k) & (m).

Prior to trial, the state provided notice of its intent to introduce other crimes evidence pursuant to La. C.E. art. 404 B. Specifically, the state sought to introduce the heroin purchases of September 11, 1997, and September 23, 1997, that took place at Lake Forest Plaza Mall in Orleans Parish. The state claimed the purpose of introducing these other crimes was to establish a system, plan, scheme, knowledge, motive and intent on the part of defendant. Following a Prieur hearing on the morning of trial, the trial court ruled the evidence was admissible. Because defendant failed to object to this ruling, this issue is not preserved for appeal.

The record indicates that following the trial court’s ruling that the two prior transactions were admissible, there was no objection by defense counsel. To preserve the right to appeal the introduction of testimony, the defendant must make a timely objection and state the specific ground of objection. La. C.E. art. 103 A(l); see also La.C.Cr. P. art. 841; State v. Wisinger, 618 So.2d 923, 927 (La.App. 1st Cir.), writ denied, 625 So.2d 1063 (La.1993).

In any event, admission of the other crimes evidence was not reversible error. The evidence served to establish defendant’s identity and to contradict co-defendant White’s defense of entrapment by establishing that there was clearly intent on the part of the participants to willingly take part in these transactions. Accordingly, even if such admission of evidence was erroneous, it was harmless error. See State v. Wisinger, 618 So.2d at 927.

117This assignment of error is without merit.

JURY INSTRUCTIONS

In his fifth assignment of error, defendant argues the trial court erred in giving improper jury instructions. Specifically, defendant asserts the trial court’s instructions regarding intent and acquittal were erroneous.

Erroneous instructions or failure to give jury instructions are not errors patent, and absent an objection during the trial, a defendant may not complain on appeal of an allegedly erroneous jury charge or the failure to give a jury instruction. See La.C.Cr. P. arts. 801 C, 841 and 920(2); State v. Tipton, 95-2483, p. 7 (La. App. 1 Cir. 12/29/97), 705 So.2d 1142, 1147. In the present case, the record does not reflect that defendant made a contemporaneous objection to the jury charges on the basis of the alleged failures now asserted in this assignment of error. Accordingly, the issue raised in this assignment of error is not properly preserved for appellate review.

This assignment of error lacks merit.

ABSENCE OF FULL AND COMPLETE RECORD

In his sixth assignment of error, defendant argues he has been forced to proceed in his appeal with an incomplete record. Defendant identifies five portions of the proceedings against him that are not part of the appellate record. These portions are all pre-trial proceedings with the exception of the proceedings held the morning of trial; discussions regarding counsel retained by the defendant and his availability to try the case; numerous bench conferences; two letters written by co-defendant White to the assistant district attorney; and co-defendant White’s statement to authorities on December 17, 1997.

Under the Louisiana Constitution, art. I, § 19, “[n]o person shall be subjected to imprisonment ... without the right to judicial review based upon a complete record of all evidence upon which the judgment is based.” This requirement is 11scodified in La. C.Cr.P. art. 843, which mandates a court stenographer record all of the “proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.”

The type of “proceeding” contemplated by article 843 was addressed by the supreme court in State v. Gipson, 359 So.2d 87 (La.1978). The supreme court explained that a proceeding consisted of a formal hearing or trial. It did not include an ex parte ministerial function that by its very nature occurs informally at times and places that do not lend themselves to delays and formalities attending recordation of facts and reasons. Gipson, 359 So.2d at 89. The plain wording of Article I, § 19 extends defendant’s constitutional right to a complete record only as to all evidence upon which the judgment is based.

Accordingly, there has been no showing that any pre-trial proceedings that are not transcribed included rulings on evidence ultimately presented at trial. Regarding defendant’s assertion that there were discussions concerning whether he had retained counsel, it has been previously observed that such a matter is more properly addressed through an application for post-conviction relief, where an evidentiary hearing can be held to determine if defendant had in fact retained private counsel prior to trial and whether defendant was denied such counsel.

Defendant asserts that numerous bench conferences during trial were not transcribed. The supreme court stated in State v. Deruise, 98-0541, pp. 14-15 (La.4/3/01), 802 So.2d 1224, 1236, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001) that it has never articulated a per se rule either requiring the recording of bench conferences or exempting them from the scope of La.C.Cr.P. art. 843. The Demise court noted that article 843’s requirement that “objections” and “arguments” be recorded normally applied only to objections made in open |19court and the arguments of counsel in closing, because only these objections and arguments rise to a level of materiality sufficient to invoke Article 843. The court also determined that the mandate of Article I, § 19 that “evidence” be recorded does not encompass bench conferences, which do not satisfy the materiality requirements of La.C.Cr.P. art. 843. Id.

Defendant references ten bench conferences that occurred off-the-record. However, the defendant has not demonstrated any specific prejudice that he suffered as a result of those conferences not being transcribed; nor does anything in the record suggest that such conferences had any impact on the proceedings. See State v. Deruise, 98-0541 at p. 15, 802 So.2d at 1236-37. Thus, there is no error in the failure of the trial court to have such bench conferences recorded. While we acknowledge Demise, we opine that the better practice by the trial court would be to put all bench conferences on the record. Failure to do so might result in serious evidentiary and procedural issues.

Defendant’s final assertion that his record is incomplete concerns the fact he did not have access to two letters written by his co-defendant Wfiiite to the prosecutor; nor did he have access to White’s December 17, 1997 statement to authorities. Initially we note that neither of these items was introduced as evidence in support of the case against defendant. As a result, there is no showing such documents meet the “materiality” requirements of article 843. As an appellate court, we have no authority to receive or review evidence not contained in the record. However, if defendant is seeking to prove the state failed to provide him with exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or that he had ineffective assistance of counsel, his proper remedy is by post-conviction relief, wherein an evidentiary hearing | gncould be conducted if necessary. State v. Trahan, 93-1116, pp. 27-28 (La.App. 1 Cir. 5/20/94), 637 So.2d 694, 709.

This assignment of error lacks merit.

CONFIDENTIAL INFORMANT

In his seventh assignment of error, defendant argues the trial court committed reversible error by allowing the introduction of information regarding a confidential informant, who participated in at least one illegal transaction in this case, whose reliability was never established, and whose identity was never disclosed.

As a general rule, the state is allowed to withhold the identity of an informer from the accused. The defendant bears the burden of demonstrating exceptional circumstances pertaining to his defense before disclosure is required. Discretion is vested in the trial court to determine when disclosure is proper. Disclosure of the name of the confidential informant will be ordered when the prosecution’s case shows that the informer, cooperating with the police, participated in the crime. State v. Washington, 93-2221, p. 3 (La.App. 1 Cir. 11/10/94), 646 So.2d 448, 451.

The record reflects that a confidential informant (Cl) introduced Trooper Paul to White, who eventually contacted defendant regarding the sale of heroin. The record also indicates that the Cl was present at the September 11, 1997 transaction, but there is nothing to indicate the Cl had any greater involvement in the transaction other than being present in Trooper Paul’s vehicle when the transaction took place. Moreover, we note that the September 11, 1997 transaction is not the crime in which the defendant was charged or convicted. The record does not contain any evidence that the Cl participated or was even present at the | g1 November 6, 1997 transaction, which forms the basis for this offense. Accordingly, we find this assignment of error without merit.

REMARKS BY PROSECUTOR

In his eighth assignment of error, the defendant argues that certain remarks by the prosecutor were improper and prejudicial. Specifically, defendant objects to the prosecutor’s remarks to the prospective jurors that his wife was a police officer who taught in the D.A.R.E. program; the prosecutor’s comment during opening statement that the statute for distribution of heroin carried a life sentence but did not prohibit parole; and during closing argument the prosecutor referred to the societal problems of heroin.

Defense counsel failed to object to the remarks by the prosecutor during voir dire, nor were there any objections lodged regarding the prosecutor’s reference to the penalty for distribution of heroin. Where a defendant does not object to remarks by the prosecutor, ask for an admonition, or move for mistrial, he cannot raise such issues on appeal. State v. Gomez, 433 So.2d 230, 240-41 (La.App. 1st Cir.), writs denied, 440 So.2d 730, 441 So.2d 747 (La.1983). Accordingly, these portions of the assignment of error are not preserved for appellate review.

Defendant asserts that the prosecutor made a “sermon” about heroin during his closing argument. Defense counsel moved for a mistrial during the prosecution’s closing argument on the basis that such comments to the jury were inflammatory. The trial court denied the motion for mistrial.

Louisiana Code of Criminal Procedure Article 774 provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

2!. A conviction will not be reversed due to an improper remark during closing 'argument, unless the court is convinced that the remark influenced the jury and contributed to the verdict. Much credit should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence, heard the argument, and have been instructed repeatedly 'by the trial judge that arguments of counsel are not evidence. State v. Mitchell, 94-2078, p. 11 (La.5/21/96), 674 So.2d 250, 258, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996).

Our review of the prosecutor’s closing argument reveals that the prosecutor mentioned that the legislature can only pass laws and “stomp out this problem with heroin[,]” which counsel pointed out had begun in the 1960’s.' At that point, defense counsel lodged an objection. Following the trial court’s denial of the motion for mistrial, the prosecutor did not make any other reference to any societal problems caused by heroin. We disagree with defendant’s characterization of the prosecutor’s remarks as a “sermon” on the societal problems caused by heroin. Rather, the prosecutor made a general reference to the time that the heroin problem historically evolved. Considering the record, we cannot say such a reference influenced the jury’s verdict.

This assignment of error is without merit.

ALLEGED DISCOVERY VIOLATIONS

In his ninth assignment of error, defendant argues the state failed to disclose two letters written by White to the prosecutor until jury selection was completed on September 21, 1999. In providing the letters, the prosecutor explained that during voir dire, in the raising of the entrapment defense, he made copies of the unsolicited letters for defense counsel. The letters were sent in March and April of 1999, apparently requesting leniency. The prosecutor indicated the state had no intention of using the letters until the defense of entrapment came up. The prosecutor denied contacting White or attempting to elicit information from him.

| ^Following defendant’s objections regarding the failure of the state to provide the letters and whether the state should be allowed to use the letters, the trial court took the matter under advisement. However, the record does not reflect the trial court ever ruled on the admissibility of these letters. The letters were never used during the trial and are not part of the record.

As previously indicated, if defendant is raising the failure of the state to provide exculpatory material under Brady v. Maryland, supra, the proper vehicle to raise such an issue is through an application for post-conviction- relief. State v. Trahan, 93-1116 at p. 28, 637 So.2d at 709.

This assignment of error is without merit.

EXCESSIVE SENTENCE

In his eleventh assignment of error, defendant argues that his sentence of life imprisonment is excessive. At the time of this offense in 1997, the penalty for distribution of heroin was mandatory life imprisonment at hard labor without benefit of probation or suspension of sentence, and a fine of not more than fifty thousand dollars. La. R.S. 40:966 B(l). Following his conviction of distribution of heroin, defendant was sentenced to life imprisonment without benefit of probation or suspension of sentence. However, the record does not contain a motion to reconsider sentence or evidence that defendant orally moved for reconsideration of sentence. The failure to file or make a motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. See La.C.Cr.P. art. 881.1 D. Thus, defendant is proeedurally barred from having the assignment of error reviewed. State v. Duncan, 94-1568, p. 2 (La.App. 1 Cir. 12/15/95), 667 So.2d 1141, 1142-43 (en banc per curiam).

This assignment of error is without merit.

I,¿CUMULATIVE EFFECT OF ERRORS

In his final assignment of error, defendant argues that he is entitled to a reversal of his conviction as a result of the cumulative prejudicial effect of all the assigned errors. This court has found no substantial or prejudicial errors; therefore, this argument is rejected.

CONCLUSION

Kenneth Dilosa’s conviction and sentence are affirmed for the reasons assigned.

CONVICTION AND SENTENCE AFFIRMED.

      . A bundle of heroin usually consists of 25 bindles, which are the individual dosage units, each with a street value of $20-25.

      . Although defendant argues the state failed to arraign defendant for eight months, we note defendant was not indicted for the present offense until June 18, 1998, and that his incarceration prior to that time was for different charges.

      . The defendant would have to satisfy the requirements of La.Code Crim. P. art. 924, et seq., in order to receive such a hearing.

      . See La.C.Cr.P. art. 924, et seq.

      . See La.C.Cr.P. art. 924, et seq.

      . See La.C.Cr.P. art. 924, et seq.