author: hPEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Jerry Barrioshena ELZIE, Appellant.
    No. 37,920-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      Anita D. McKeithen, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Edwin L. Blewer, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY & PEATROSS, JJ.
   hPEATROSS, J.

Defendant, Reverend Jerry B. Elzie, was charged with molestation of a juvenile on two grounds: by the use of force, menace and psychological intimidation and by the use of influence by virtue of a position of control and supervision over the juvenile, J.A., in violation of La. R.S. 14:81.2(A). He was tried by a six-person jury and convicted as charged. Defendant was sentenced to serve 12 and a half years imprisonment at hard labor. He now appeals his conviction and sentence. For the reasons stated herein, we affirm.

FACTS

The victim, J.A., was born on October 10, 1980. Defendant is J.A.’s father and a reverend at a church in Shreveport, Louisiana. In the fall of 1995, when J.A. was 15 years old, she began using Defendant’s address in order to attend Woodlawn High School. During this time, Defendant and J.A. spent time alone at various locations, including Defendant’s home. Ultimately, Defendant had sex with J.A. at least three times during the fall of 1995, twice at his office in his residence and once at his church. ^Defendant ordered J.A. to have sex with him each time. In two of the sexual acts between Defendant and J.A., Defendant rubbed J.A. with oil and had candles burning in the room. J.A. questioned Defendant as to why he ordered her to have sex with him and told him that she did not want to have sex with him, crying throughout one of the acts. Defendant explained to J.A. that others had “done it” and she also had to “do it” to get the blessings of God. J.A. did not tell anyone what happened to her because Defendant told her that nobody would believe her— they would believe him.

After a few weeks, having become upset with J.A.’s reluctance to continue having sex with him, Defendant took J.A. by a store he owned and showed her a bed with candles surrounding the bed. Defendant told her, “This is what you missed out on. This was all for you.” Defendant then took J.A. back to her home; and, while she was being dropped off, J.A. exclaimed to her mother, in the presence of Defendant, that she did not want to have sex with Defendant anymore. In response to J.A.’s accusation, Defendant told the victim, “Do you see what you have done. Do you know this will take me to jail?” J.A. never returned to Defendant’s household. Shortly after this encounter, the authorities were notified.

In November 1995, Lieutenant Mickey Lowe of the juvenile and sex crimes unit with the Shreveport Police Department received a call from a counselor at Woodlawn High School regarding a 15-year-old girl, J.A., who complained that her father had ordered her to have sexual intercourse with him on at least two different occasions. J.A. said that one incident took place at Defendant’s office. The other took place in a room in Defendant’s | achurch. Lieutenant Lowe began the investigation by interviewing J.A. He also arranged for J.A. to have a medical examination with Dr. Ann Springer at LSU Medical Center. Dr. Springer, an expert in pediatric medicine and evaluation of child sexual abuse, examined J.A. on November 30, 1995. J.A.’s exam was “normal” — it neither proved nor disproved sexual abuse.

In an interview conducted by Detective Carolyn Eaves Deal, Defendant denied any intimate sexual relationship with J.A.’s mother, denied that J.A. was his daughter and denied the allegations of sexual abuse. Until J.A.’s accusation of what Defendant had done to her, Defendant had never denied to J.A. that she was his daughter. Specifically, Defendant related that J.A.’s mother caused problems for him when she was pregnant by publicly claiming in church that he was “her man,” and contacting his wife about her claim. Defendant claimed that J.A.’s mother then asked Defendant and his wife to be J.A.’s godparents, to which they agreed. Further, Defendant related to Detective Deal that J.A.’s mother approached him about letting J.A. use his address so that she could attend Woodlawn High School. Defendant explained that J.A.’s accusations of sexual abuse were because she was angry at him for having spanked her as punishment for bad grades. Moreover, Defendant told Detective Deal that his wife and daughters could confirm that he was never alone with J.A. Due to the lack of evidence to substantiate J.A.’s claims or to determine that Defendant was lying about his relation to J.A., the case was closed in December 1995. Detective Deal did not have the capability to take DNA samples in 1995.

DThe case was reopened in early 1998 when the Caddo Parish District Attorney’s Office’s newly formed screening section reviewed the ease. A search warrant was obtained to collect epithelial cells from the cheek lining of Defendant and several other persons, in order to establish paternity. The collection was conducted by Detective Deal in accordance with instructions given by Connie Brown (“Brown”) of the North Louisiana Crime Lab regarding the proper collection procedures. Detective Deal wore the same gloves throughout the collection process. Epithelial cell samples were also taken from J.A. and her mother at the police station.

After testing the samples, it was determined that J.A. was indeed the daughter of Defendant. Further, it was also determined that Defendant was the father of other children with two other girls. The police discovered that in 1983, Defendant fathered a child with one of the girls, who is his adoptive daughter, while she was under the age of consent and the other girl told police that she had sex with Defendant numerous times before she came into the age of consent and later gave birth to two of Defendant’s children.

Based on the discovery of this evidence that Defendant had lied to the police and that he had shown a pattern of behavior of having sex with underage girls, one being his adoptive daughter, Defendant was charged with molestation of a juvenile, his daughter, J.A. At trial, J.A. testified against Defendant, describing Defendant’s actions. On cross-examination, J.A. testified that she made some bad grades in September at Woodlawn High School. It was also brought out that Defendant had spanked J.A. because of those- grades. J.A. explained that her bad grades were in | .^response to what her father was doing to her. She steadfastly denied concocting the accusations against her father because she was angry about the spanking.

The State presented not only the testimony of J.A., but also that of the investigating officers and Dr. Springer. Dr. Springer testified that, during her exam of J.A., J.A. told Dr. Springer that her biological father had sex with her two times. As previously stated, J.A.’s exam was “normal” — it neither proved nor disproved sexual abuse; but Dr. Springer explained at trial that, in 80 percent of the cases in which penetration is known to have occurred with a female victim, the physical exam will still produce normal results. Dr. Springer further explained that it is normal for an abused child to “act out,” and it is particularly normal for an abused child to have difficulty in school. According to Dr. Springer, the latter is a “red flag.” In her conclusion, Dr. Springer opined that this ease was typical of the findings seen when a child is sexually molested and penetrated.

Connie Larkins also testified for the State. Ms. Larkins is the adoptive daughter of Defendant. When she was age 14 or 15, she gave birth to a son. It was later determined that Defendant was the father of Ms. Larkins’ child. Tracy Lidette Smith also testified for the State. She was a childhood friend of Ms. Larkins; and, when she was younger, she would go to Defendant’s house to play and she attended Defendant’s church. Ms. Smith testified that she began having sex with Defendant when she was a 14-year-old virgin. Defendant had sex with Ms. Smith about three times a week while she was underage. He fathered her two children.

1 Brown, an expert in the field of DNA analysis, testified that there was no contamination of any of the DNA samples taken by Detective Deal in this case. According to the tests of the samples performed by Brown, there is a 99.99 percent probability that Defendant is J.A.’s father, the father of Ms. Smith’s two children and the father of Ms. Larkins’ child.

After the conclusion of the trial, Defendant was convicted as charged of molestation of a juvenile on two grounds: by use of force, menace and psychological intimidation and by the use of influence by virtue of a position of control and supervision over J.A. After the conviction, Defendant filed a motion for post-verdict judgment of acquittal and/or a motion for a new trial. His motion asserted that the evidence did not reasonably support the guilty verdict. Defendant also argued that a new trial should be granted because the verdict was contrary to law and evidence and the ends of justice would not be served because his defense trial counsel was ineffective. After a hearing and arguments, the motions were denied by the trial court.

On December 30, 2002, a sentencing proceeding was held. Defendant was allowed to address the trial judge. Before sentencing Defendant, the trial judge read the facts of the crime into the record. In particular, the trial judge noted that two sexual acts with J.A. were performed as a religious ritual wherein she was rubbed with an oil and laid near a cross and lighted candle before intercourse. The trial judge also noted that Defendant had a history of taking advantage of underage girls by having sex with them, using his position as a minister to entice these young |7girls to satisfy his sexual desires. The trial judge found it particularly reprehensible that Defendant’s conduct in this case involved his own natural daughter.

Defendant was then sentenced to serve 12 and a half years imprisonment at hard labor, with credit for time served. Subsequently, Defendant timely filed a motion to reconsider sentence, which was denied. Defendant now appeals, raising the following assignments of error (verbatim):

1. The trial court erred by convicting the defendant without sufficient evidence to do so;
2. The trial court erred by denying defendant’s motion for a new trial; and,
3. The trial court erred by imposing an excessive sentence.

DISCUSSION

Sufficiency of the Evidence

Defendant argues that the evidence presented at trial was not sufficient to convict him of the crime charged. He asserts that J.A.’s physical examination did not support her allegation of sexual activity. He further contends that J.A.’s trial testimony was inconsistent with her statement to the examining physician, Dr. Springer, that she had sex with Defendant two times. Defendant further argues that the DNA evidence was unreliable because Detective Deal did not change gloves between taking swabs from at least 18 individuals; and, thus, the evidence could have been contaminated. He asserts that no rational trier of fact could have found him guilty beyond a reasonable doubt. We disagree.

IsThe question of sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Gay, 29,434 (La.App.2d Cir.6/18/97), 697 So.2d 642. When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 00-3070 (La.10/26/01), 799 So.2d 1150, 01-2087 (La.4/19/02), 813 So.2d 424. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in 19part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

The testimony of the victim alone is sufficient to convict a defendant. State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490. This is equally applicable to the testimony of sexual assault victims. State v. Rives, 407 So.2d 1195 (La.1981); State v. Thomas, 30,490 (La.App.2d Cir.4/8/98), 711 So.2d 808, writ denied, 99-0331 (La.7/2/99), 747 So.2d 8; State v. Free, 26,267 (La.App.2d Cir.9/21/94), 643 So.2d 767, writ denied, 94-2846 (La.3/10/95), 650 So.2d 1175; State v. Standifer, 513 So.2d 481 (La.App.2d Cir.1987). Indeed, such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Ponsell, supra; State v. Watson, 32,203 (La.App.2d Cir.8/18/99), 743 So.2d 239, writ denied, 99-3014 (La.3/31/00), 759 So.2d 69; State v. Turner, 591 So.2d 391 (La.App. 2d Cir. 1991), writ denied, 597 So.2d 1027 (La.1992).

The essential elements of the crime of molestation of a juvenile, each of which the prosecution must prove beyond a reasonable doubt, are (1) the accused was over the age of seventeen, (2) the accused committed a lewd or lascivious act upon the person or in the presence of a child under the age of seventeen, (3) the accused was more than two years older than the victim, (4) the accused had the specific intent to arouse or gratify either the child’s sexual desires or his own sexual desires and (5) the accused committed the lewd or lascivious act by use of force, violence, duress, menace,^^psychological intimidation, threat of great bodily harm or by the use of influence by virtue of a position of control or supervision over the juvenile. State v. LeBlanc, 506 So.2d 1197 (La.1987); State v. Breaux, 02-382 (La.App. 5th Cir.10/16/02), 830 So.2d 1003.

After viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found the essential elements of Defendant’s crime proven beyond a reasonable doubt. The State proved the ages of both J.A. and Defendant at the time of the sexual encounters. Through J.A.’s testimony, the State proved that Defendant committed the act upon J.A. with the specific intent to satisfy his own sexual desires while he used intimidation and control to force her to have sex with him. This testimony alone supports Defendant’s conviction and was sufficient to persuade the jury to convict Defendant. Contrary to Defendant’s assertions, it is not necessary for the State to introduce any medical, scientific or physical evidence to prove the commission of the offense by him. The jury’s decision to accept the testimony of J.A. in whole or in part will be accorded great deference and we will not disturb it on appeal. We conclude that there was sufficient evidence to find Defendant guilty; and, consequently, Defendant’s first assignment of error is without merit.

Ineffective Assistance of Counsel

Defendant argues that the trial court erred in denying his motion for a new trial because he had ineffective assistance of counsel. He contends that no defense was presented and his defense counsel failed to rebut several of Inthe claims made against him. Further, Defendant asserts that, contrary to his trial counsel’s statements during oral arguments, no evidence was presented regarding Defendant’s loving household. Defendant also argues that his trial counsel erred in failing to call J.A.’s mother as a witness and in failing to call witnesses to testify regarding J.A.’s mother’s change in demean- or and threats against Defendant after their love affair ended, despite his trial counsel’s statement in oral arguments that such evidence would be presented. He further argues that his trial counsel incorrectly told the jury that Dr. Springer’s opinion was that the victim’s examination was normal. Finally, Defendant contends that his trial counsel erred in failing to call any witnesses to testify that the DNA samples could have been contaminated because Detective Deal failed to change gloves between the individuals from whom she received a DNA sample. Defendant concludes that these facts clearly show that he suffered some injustice and his motion for new trial should have been granted. We do not agree.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court than by appeal. This is because post-conviction relief creates the opportunity for a full evi-dentiary hearing under La.C.Cr.P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. A motion for new trial, however, is also an accepted vehicle to raise such a claim. Id. When the record is sufficient, we may resolve the issue of ineffective assistance of counsel on direct appeal in the interest of judicial economy. See State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673; State v. Smith, 25,841 (La.App.2d Cir.2/23/94), 632 So.2d 887.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). The defendant bears the burden of proving that certain acts by his counsel were deficient and that this deficiency led to an unreliable outcome. Id.

A claim of ineffectiveness of counsel is analyzed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, to establish that his attorney was ineffective, a defendant must show that his counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra; State v. Roland, 36,786 (La.App.2d Cir.6/5/03), 850 So.2d 738; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. Roland, supra; Moore, supra.

_Jj¿Second, a defendant must show that his counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra. A defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; Roland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9.

Based partly on his claim of ineffective assistance of counsel, Defendant in this case filed a motion for new trial and was afforded a hearing. The record contains sufficient evidence to address Defendant’s allegations here; however, we find that Defendant’s claim of ineffective assistance of counsel is unsubstantiated.

Defendant was represented by two attorneys at trial. Contrary to Defendant’s allegations, his trial team did present a defense, which was that the State failed to prove its case. The record shows that Defendant’s trial team questioned all witnesses and diligently pursued its theory throughout the case, alleging that J.A. made up the story as revenge against Defendant. Moreover, failing to call certain witnesses does not itself establish ineffective assistance of counsel. See Willars, supra. Defendant cannot show that his defense |ucounsel was deficient or that, even if his defense counsel was deficient, but for his defense counsel’s errors, there is a reasonable probability the outcome of the trial would have been different.

Defendant’s allegations of attorney error are vague and touch merely upon defense counsel’s strategy and what hypothetically defense counsel should have done at trial. We note that Defendant does not even specify which of his two defense attorneys was allegedly ineffective or whether it is argued that both attorneys were ineffective. The failure to present defense witnesses was a tactical and strategic decision, not an example of ineffective assistance of counsel, and we will give great deference to trial counsel in these decisions. At the hearing on the motion for new trial, Defendant argued in broad general terms about his ineffective assistance of counsel, without providing any evidence of this claim. Defendant has failed to show that he was prejudiced by defense counsel’s trial strategy or that he was deprived of a fair trial. The record does not support Defendant’s claims of ineffective assistance of counsel; and, thus, this assignment of error is without merit.

Defendant’s Sentence

Defendant notes that the maximum sentence for the instant offense is 15 years, with or without hard labor. He argues that his 12 and a half year hard labor sentence is excessive. Although the trial court considered his previous criminal history, which included two prior felonies, Defendant contends that the court failed to recognize that he has had no criminal history since 1976. Defendant asserts that one of his felonies is over ) 1537 years old and the other is more than 26 years old; and, consequently, his sentence is excessive. We do not agree.

La. R.S. 14:81.2 C provides:

Whoever commits the crime of molestation of a juvenile when the offender has control or supervision over the juvenile shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than one nor more than fifteen years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. The record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (La.1988). There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); Bradford, supra.

In the case sub judice, the record contains a complete and accurate articulation of the factual basis for Defendant’s sentence, setting forth the criteria the court considered in sentencing Defendant in compliance with La.C.Cr.P. art. 894.1. The record adequately indicates that the trial judge considered the circumstances of this case and of Defendant, reciting the factors he considered before imposing sentence, including Defendant’s lengthy personal statement, his age, the details of his criminal history and |17the content of the multiple letters sent to the court on his behalf. A pre-sentence investigative report was prepared and filed into the record. Defendant has exhibited a history of a predilection for sex with underage girls — a nature which could easily be described as predatory. In summary, the trial judge concluded that Defendant was a third-felony offender and used his position as a minister to seduce underage girls under the pretense that it was sanctioned by his religion. The fact that these types of relationships produced children was also considered.

Defendant’s 12 and a half year hard labor sentence is neither grossly out of proportion to the seriousness of the offense, nor is it a purposeless and needless infliction of pain and suffering. He did not receive the maximum sentence of imprisonment for this heinous, loathsome crime and no fine was imposed. When the crime and punishment are viewed in light of the harm done to society, and particularly to J.A., Defendant’s sentence does not shock the sense of justice and it is not constitutionally excessive under the facts and circumstances of this case. Defendant’s final assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Reverend Jerry B. Elzie, are affirmed.

AFFIRMED.

      . The victim's initials are used because of confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W).

      . La. R.S. 14:81.2(A) defines molestation as follows:
      Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

      . Before this time, J.A. was not brought up in Defendant’s home. Defendant's house was located within Woodlawn's school district. J.A. also used Defendant's address to ride the bus to school. J.A. lived with her mother, but used her father's address so that she could attend Woodlawn. J.A.'s mother lived in the Captain Shreve High School school district.

      . In 1965, while in military service, Defendant was convicted by court martial of illegal carrying of a weapon and received a three-month hard labor sentence. In 1965, he was also convicted by court martial of house breaking or burglary in Fort Sam Houston and sentenced to serve one year at hard labor. In 1976, the defendant was convicted of a postal violation and sentenced to serve one year imprisonment at hard labor, two years execution, all but six months suspended, and given five years probation.


source: Caselaw Access Project

author: L CARAWAY, J.

license: Public Domain

text:
    HOLIDAY HOSPITALITY FRANCHISING, INC. f/k/a Holiday Inns Franchising, Inc., Plaintiffs-Appellees v. Joe Bailey GRANT and Gail L. Grant, Defendants-Appellants.
    No. 38,103-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, for Appellants.
    H. Herbert Hobgood, Monroe, for Ap-pellees.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   L CARAWAY, J.

Following a default judgment against them rendered in the State of Georgia, the appellants challenge the enforcement of the judgment in this state asserting that the Georgia court lacked personal jurisdiction over them. The contract underlying the dispute was a license or franchise agreement which one appellant executed with a national hotel chain headquartered in Georgia. The other appellant acted as the guarantor of the agreement. The trial court found that minimum contacts were established by both appellants with the forum state. For the following reasons, we affirm the judgment against the original licensee appellant, but reverse the judgment against the guarantor.

Facts

Joe Bailey Grant and Gail Grant appeal the trial court’s judgment in favor of Holiday Hospitality Franchising, Inc., f/k/a Holiday Inns Franchising, Inc. (“Holiday”), recognizing and making executory a Georgia default judgment against them under the Uniform Enforcement of Foreign Judgments Act (“UEFJA”). La. R.S. 13:4241, et seq. The Louisiana trial court found that the Grants had sufficient minimum contacts with the State of Georgia to permit its exercise of jurisdiction over them, and that the judgment was valid, thus entitled to the full faith and credit accorded judgments of sister states under the federal constitution.

The Georgia default judgment noted that the proceedings arose from several contracts between the parties, including a 1994 Holiday Inn license agreement, as amended in 1996, and defendants’ personal guaranties of that ^contract. The judgment, for $1,092,329.02, stated that the amount consisted of unpaid monthly fees, liquidated damages, interest and attorney’s fees.

The record shows that the business relationship between Holiday Inns Franchising, Inc. and Joe Bailey Grant (“Grant”) was one of franchisor/licensor and franchisee/licensee, respectively, pursuant to which Grant operated the Holiday Inn in Monroe, Louisiana. On December 14, 1994, Holiday and Grant entered a “Renewal License Agreement” (the “1994 Agreement”) detailing the specific terms of the franchise. Holiday licensed its “hotel management system” for a ten year term in exchange for Grant’s monthly payments of a percentage of the hotel’s revenue stream to Holiday. The contract provided that Grant would furnish monthly statements and remittances thereunder, as well as quarterly and annual financial statements subject to review and audit by Holiday in connection with his operation of the Holiday Inn. Gail Grant’s separate guaranty was appended to the 1994 Agreement.

The 1994 Agreement provided that the contract “shall be deemed made and entered into in the State of Georgia, and shall be governed and construed under and in accordance with the laws of the State of Georgia.” Grant specifically acknowledged that by entering the agreement, he had “sought, voluntarily accepted and become associated with Licensor who is headquartered in Atlanta, Georgia.” The Georgia choice of law designation “permits, but does not require that all suits concerning this License shall be filed in the State of Georgia.”

| oOn July 22, 1996, Holiday and Grant amended the 1994 Agreement to substitute a new licensee. The amendment recited that Grant was required to change the licensee’s name because the hotel was in the process of being refinanced. Investor Inns Limited Partnership, a Louisiana limited partnership (“Investor Inns”), was substituted as the licensee. Investor Inns was comprised of a general corporate partner, Investor Inns, Inc., wholly-owned by Grant, and a limited corporate partner, Sara Gail, Inc., also wholly-owned by Grant. The 1994 Agreement contemplated that a licensee who was a natural person could transfer the license, as follows:

(2) If Licensee is a natural person, he may, without the consent of Licensor, upon 30 days’ prior written notice to Licensor, transfer the license to a corporation entirely owned by him, provided that:
(a)adequate provision is made for the management of the Hotel; and
(b)the transferee executes a new license agreement for the unexpired term of this License, on the standard form then being used to license new Hotels under the System, except the fees charged then shall be the same as those contained herein including any adjustments to such fees as may have been implemented from time to time in accordance with the terms of this License; and
(c)the Licensee guarantees, in Li-censor’s usual form, the performance of the new licensee’s obligations hereunder.

Another guaranty, signed by both Grants, was also included with the 1996 amendment. This guaranty warranted the performance of the new licensee’s obligations under the 1994 Agreement. The guaranty further provided that it would be governed and construed under the laws of the State of Georgia.

Holiday filed suit in Louisiana under the UEFJA for recognition of the judgment it obtained against the Grants in Georgia. The trial court | ¿found that the Georgia judgment was entitled to full faith and credit. Thereafter, the Grants sought to nullify the judgment, alleging that the State of Georgia lacked jurisdiction over them. After the trial court initially granted Holiday’s motion to strike the petition for nullity, the Grants appealed. This court’s opinion concluded that the Grants were entitled to the opportunity to present evidence that Georgia lacked jurisdiction over them and remanded the proceeding to the trial court with instructions to schedule a contradictory hearing to consider the Grants’ arguments.

Joe Bailey Grant was the only witness who testified at the hearing on remand. The substantive portion of the direct examination consisted of the following:

Q. Did you or your wife ever travel to Georgia to contact (sic) any business with Holiday Hospitality?
A. No.
Q. Did you otherwise have any minimal contact with Georgia (sic) Hospitality?
A. No, sir.
Q. I mean Holiday Hospitality.
A. No.
Q. Where was the 1994 license agreement ... signed?
A. Monroe, Louisiana.

On cross-examination, Grant indicated that the Holiday Inn had been managed by his family prior to 1994. He testified that he was the president of the hotel’s general partner, Investor Inns, Inc., and that was the capacity in which he communicated with and remitted funds to Holiday pursuant to the license agreement. Although he denied ever sending money to Holiday personally, he admitted communicating with them “as an operator” and that |fihe had originally been the individual licensee. Grant also admitted to having negotiations with Holiday when the financial problems of Investor Inns developed. The only evidence presented concerning Mrs. Grant was Mr. Grant’s testimony that neither he nor she had ever been domiciled in the State of Georgia.

Following trial, in written reasons, the trial court found that a business relationship existed between Holiday and Grant which predated the 1994 license agreement, that the Grants had minimum contacts with Georgia sufficient to afford that state personal jurisdiction over them, and that the Georgia judgment rendered against them was valid and entitled to full faith and credit in Louisiana. However, the award for attorney’s fees in the initial Louisiana judgment was stricken and the court ordered that the Louisiana judgment making the Georgia judgment executory be corrected to parallel the Georgia judgment. It is from this judgment that the Grants appeal.

Discussion

The United States Constitution provides that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. U.S. Const, art. IV § 1. The basic constitutional principles of Full Faith and Credit and Due Process which govern the Grants’ attack on the Georgia judgment were discussed by this court in Dunn v. Mortenson, 36,878 (La.App.2d Cir.3/5/03), 839 So.2d 1007, 1011, as follows:

The structure of our nation of states, each possessing equal sovereign powers, however, dictates some basic limitations of the full faith and credit principle. It is established that a court in one state, when asked to give effect to the judgment of a | ficourt in another state, “may constitutionally inquire into the foreign court’s jurisdiction to render that judgment.” Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963).
* * *
If that foreign court did not have jurisdiction over the subject matter or the relevant parties, full faith and credit need not be given to the sister state’s judgment. Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979).
The Supreme Court has held that, “it is axiomatic that a judgment must be supported by a proper showing of jurisdiction over the subject matter and over the relevant parties.” Underwriters Nat Assur. Co. v. North Carolina Life and Acc. and Health Ins. Guaranty Ass’n, 455 U.S. 691, 102 S.Ct. 1357, 71 L.Ed.2d 558, (1982). “The requirement that a court have personal jurisdiction recognizes and protects an individual liberty interest, which flows from the Due Process Clause.” Schultz v. Doyle, 00-0926 (La.1/17/01), 776 So.2d 1158. The test for personal jurisdiction requires that “the maintenance of the suit ... not offend traditional notions of fair play and substantial justice.” International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). “However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has the ‘minimum contacts’ with that state that are a prerequisite to its existence of power over him.” Id.

Although the Grants, collectively and individually, present various arguments for the invalidity of the Georgia judgment, we will first consider whether evidence reveals that meaningful contacts and relations were established by Mr. Grant with the State of Georgia as the result of his dealings with Holiday since 1994. The relevant law to determine whether the foreign court had personal jurisdiction is the law of the forum state rendering the original judgment. Dunn v. Mortenson, supra; Lepard v. Lepard, 31,351 (La.App.2d Cir.12/9/98), 722 So.2d 367. The Georgia long-arm statute provides for personal jurisdiction over a non-resident defendant if he “transacts any business within Georgia.” O.G.C.A. § 9-10-91.

17In order for a forum to exercise jurisdiction over a nonresident defendant who transacts business in the state, the defendant’s contacts with the state must satisfy three criteria under the Georgia jurisprudence. First, the contacts must be related to the plaintiffs cause of action or have given rise to it. Second, the contacts must involve some act by which the defendant purposefully avails himself of the privilege of conducting activities with the forum, thus invoking the benefits and protections of its laws. Third, the defendant’s contacts with the forum must be such that the defendant should reasonably anticipate being haled into court there. Francosteel Corp. v. M/V Charm, 19 F.3d 624 (11th Cir.1994); Drennen v. First Home Savings Bank, 204 Ga.App. 714, 420 S.E.2d 376 (1992). Georgia courts have also held that the Georgia long arm statute confers personal jurisdiction over nonresidents to the maximum extent permitted by due process. Francosteel Corp. v. M/V Charm, supra; SES Industries, Inc. v. Intertrade Packaging Machinery Corp., 236 Ga.App. 418, 512 S.E.2d 316 (1999).

From our review of Georgia law and jurisprudence, we find that the jurisdictional touchstone of “transacting business within the state” is interpreted in Georgia consistent with the pronouncements on due process by the United States Supreme Court. In particular, we note the Georgia courts’ citation of and reliance upon Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). See, e.g. Yukon Partners, Inc. v. Lodge Keeper Group, Inc., 258 Ga.App. 1, 572 S.E.2d 647 (2002). The Burger King ruling has great relevance for the measure of Grant’s |scontacts with the State of Georgia resulting from his execution of the 1994 Agreement. By that agreement, he first obtained the hotel license issued by the nationwide organization headquartered in Georgia.

The defendant in Burger King was a Michigan resident who contracted with a Florida-based fast food chain. The court found that the parties’ agreement established a franchise relationship with the Miami corporation, was governed by Florida law, and required that fees and business information be continually forwarded by the defendant to the Miami headquarters throughout the term of the contract. The court reviewed the contract’s choice of Florida law provision which employed language identical to the language in the present 1994 Agreement selecting Georgia law. The court recognized the choice of law provision as reinforcement of the defendant’s “deliberate affiliation with the forum state and the reasonable foreseeability of possible litigation there.” Id., 471 U.S. at 482, 105 S.Ct. 2174. The court reasoned that “[i]t is these factors-prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing-that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.” Id., 471 U.S. at 479, 105 S.Ct. 2174. After making that analysis, the court upheld the exercise of personal jurisdiction concluding that the defendant has “established a substantial and continuing relationship with Burger King’s Miami headquarters, received fair notice from the contract documents and the course of dealing that he might be subject to suit in 13Florida, and has failed to demonstrate how jurisdiction in that forum would otherwise be fundamentally unfair.” Id., 471 U.S. at 487, 105 S.Ct. 2174.

Grant does not argue that his relationship with Holiday under the 1994 Agreement was significantly different from the relationship of the franchisee and franchisor in Burger King. We likewise find that Grant’s negotiations and course of dealing with Holiday under the 1994 Agreement demonstrated that Grant purposefully established minimum contacts within the State of Georgia. Instead, Grant argues that the 1994 Agreement was no longer the basis for the Georgia action against him after the agreement’s 1996 amendment changed Grant’s status to the secondary relationship of guarantor. We do not find that the 1996 amendment altered or eliminated the minimum contacts that resulted from the parties’ overall course of dealing.

There are cases, discussed below in our review of the personal jurisdiction over Mrs. Grant, which hold that a nonresident’s execution of a guaranty under certain circumstances may not establish minimum contacts with the state of the creditor’s place of business. Nevertheless, Grant’s guaranty and his ongoing actions with Holiday show that one course of dealing from the time of the initial 1994 Agreement has continued. The 1994 Agreement contemplated that Grant’s wholly-owned corporation could be substituted as the licensee under the contract. The Investor Inns Limited Partnership, which was substituted in 1996 as the licensee, was comprised of two of Grant’s wholly-owned corporations. Grant’s personal liability for the continued performance of the 1994 Agreement remained after the |10amendment in the form of his guaranty. He continued to manage and operate the Holiday Inn, reporting financial data and submitting payment of fees pursuant to the 1994 Agreement. The technical change in the status of Grant’s obligation to Holiday from primary to secondary obligor, if such change did result under Georgia law, did not diminish the possibility that suit on the 1994 Agreement for the contractual liabilities of the Monroe business might continue to be brought against Grant in Georgia. Such litigation against Grant was reasonably foreseeable because after 1996 he remained the principal individual providing management services and carrying out the contract. Accordingly, we find that Joe Bailey Grant purposefully established minimum contacts within the State of Georgia by transacting business with Holiday beginning with the 1994 Agreement. His transacting of business and contacts within that state were not erased by the 1996 amendment, and those minimum contacts could serve as the basis for the exercise of personal jurisdiction over him by the Georgia court.

Appellants next argue that Gail Grant’s execution of the two guaranties, without more, is insufficient to support Georgia’s exercise of jurisdiction over her, and that Holiday failed to show any minimum contacts between her and the State of Georgia. We find the case Apparel Resources Int’l, Ltd. v. Amersig Southeast, Inc., 215 Ga.App. 483, 451 S.E.2d 113 (1994), instructive. In that case, the court upheld jurisdiction for one defendant based on the parties’ contract for printing catalogues. A forum selection clause provided that the corporate defendant consented to suit where the printing plant was located in the event of a dispute arising under the contract. However, the court found that the other defendant, an individual who executed a guaranty, was not subject to jurisdiction in the selected forum because the evidence was insufficient to show that any other negotiations or contacts took place between the guarantor and the plaintiff in relation to the forum. “Under these facts we do not find [that she] purposefully established the minimum contacts with the forum state to justify the trial court’s long arm jurisdiction over her. Accordingly, we find the trial court did not have jurisdiction ... and the judgment against her is void.” Id. Likewise, under Louisiana law, this court in First Nat’l Bank of Lewisville v. Jones, 35,708 (La.App.2d Cir.2/27/02), 811 So.2d 217, found that letters faxed from out of state to the bank purportedly guaranteeing payment of a third party loan were insufficient to establish minimum contacts between the nonresident defendants, the plaintiff bank and the forum. The trial court’s finding that it lacked jurisdiction over the guarantors was affirmed.

Unlike the evidence of Mr. Grant’s personal involvement with the negotiation and performance of the Holiday license agreement, the record reveals no such involvement in the license transaction by Mrs. Grant other than as a secondary guarantor of the license obligations. Accordingly, the trial court’s finding that Gail Grant had established minimum contacts with |12the State of Georgia is reversed and that portion of the judgment upholding the Georgia judgment against her is reversed.

Conclusion

The judgment insofar as it makes the Georgia judgment executory against Joe Bailey Grant is affirmed. The judgment making the Georgia judgment executory against Gail L. Grant is reversed. Costs of appeal are assessed to Joe Bailey Grant.

AFFIRMED IN PART; REVERSED IN PART.

      . Holiday Hospitality Franchising, Inc., f/k/a Holiday Inns Franchising, Inc. v. Grant, 36,035 (La.App. 2 Cir. 5/8/02), 817 So.2d 449.

      . Grant's limited partnership was not made a party to the Georgia proceeding. The recitations in the Georgia default judgment state that Holiday's complaint against Grant rested on both the 1994 License Agreement and the 1996 Guaranty. Whether Grant remained primarily obligated under the 1994 License Agreement under Georgia law is therefore unclear.

      . Since our conclusions are based upon the recitations in the Georgia judgment, the parties' contractual agreements, and the testimony at the contradictory hearing, we need not address Grant's arguments regarding the burden of proof in this matter. Regardless of the burden of proof, the record is sufficient to support the finding of Georgia's personal jurisdiction over Grant.


author: I, WILLIAMS, J.

text:
    Larry Tyrone BRANTLEY, and Ellen Roberson Brantley, Plaintiff-Appellant, v. STATE FARM INSURANCE COMPANY, Defendant-Appellee.
    No. 37,601-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      James Sharp, Jr., Monroe, for Appellant.
    Larry Tyrone Brantley, in Proper Person.
    Brian E. Crawford, Monroe, Jefferson B. Joyce, Baton Rouge, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   I, WILLIAMS, J.

The plaintiffs, Larry Tyrone Brantley and Ellen Roberson Brantley, appeal a judgment in favor of the defendant, State Farm Insurance Company (“State Farm”). The trial court found that plaintiffs failed to comply with the terms of the tenant dwelling insurance policy because of their lack of cooperation with the insurer’s investigation of their fire damage claim and their abandonment of the premises. For the following reasons, we affirm.

FACTS

Larry and Ellen Brantley owned a house at 1606 Oaklawn Drive in Monroe. The house was used as rental property and was insured under a tenant dwelling policy issued to the Brantleys by State Farm. In March 1996, the Ouachita Parish Sheriffs Office seized the property pursuant to foreclosure proceedings against the Brant-leys. On June 23, 1996, three days before a scheduled sheriffs sale of the property, a fire of suspicious origin caused damage to some of the rooms inside the house. On June 26, 1996, the property was sold at a sheriffs sale.

The Brantleys submitted a claim to State Farm and it was assigned to Laurence Crompton, a claims adjuster. After reviewing the fire marshal’s report indicating that the fire was of suspicious origin, Crompton contacted James Vickers, a consultant who investigated the origin and cause of fires. On June 28, Crompton and Vickers met at the property, inspected the fire damage and took photographs of the rooms in the house. The rooms did not contain furniture and the house appeared uninhabited. Based on his determination that the fire had caused minimal damage to the property, Crompton estimated the total repair cost for materials and labor was $2,864,12less depreciation of $787 and a deductible of $250, for a net repair amount of $1827. Vickers reported there were ten separate points of fire origin, without any evidence of a heat source, and concluded that the fires were set intentionally.

Because the fire was of suspicious origin, the Brantley claim was assigned to Wayne Van, an adjuster in State Farm’s special investigative unit. Van’s file notes indicated that he called the Brantleys at the telephone number listed in the policy on July 8, 9 and 10, 1996, but did not get an answer. Van telephoned the Brantleys three more times on July 15 and again on July 22, 1996, without an answer. On July 11 and 29, 1996, Van sent letters by certified mail to the Brantleys’ policy address requesting a meeting. The letters were returned, unclaimed. According to Van, he received a call from Ellen Brantley about the fire claim on August 5, 1996, but she would not give any mailing address other than the address listed on the policy and she did not agree to submit to an examination under oath or to provide financial information.

On August 15, 1996, State Farm mailed a letter to the Brantleys reserving its right to deny coverage and a letter notifying them of their duty under the policy to cooperate with the insurer’s investigation. After the Brantleys did not respond, Van mailed a letter dated December 6, 1996, advising them that State Farm was closing the investigation into the loss because they had failed to cooperate with the insurer to resolve the claim. State Farm later denied payment of the fire damage claim.

The plaintiffs, Larry and Ellen Brantley, filed a petition for damages |3against the defendant, State Farm, in May 1997. Subsequently, defendant filed a motion for summary judgment alleging that at the time of the fire plaintiffs did not have an ownership interest in the property, and that they had left the premises unoccupied and failed to cooperate with the insurer’s investigators. In December 1998, the district court granted a partial summary judgment in favor of the defendant, finding that plaintiffs did not have an insurable interest in the property on the date of the fire. The plaintiffs moved for a new trial and defendant filed a second motion for summary judgment on the issue of plaintiffs’ claims for tenant damage. After a hearing, the district court issued a written ruling on March 8, 1999, stating, “the court grants a new trial on the motion for summary judgment filed by defendant.” In May 1999, the matter was heard as a new trial on the remaining issues raised by defendant in its original summary judgment motion.

The district court granted the motion for summary judgment on the grounds that plaintiffs did not show that they complied with the terms of the insurance policy in light of the evidence that they had not cooperated with the insurer’s investigation and abandoned the property. This judgment was not certified as suitable for immediate appeal under LSA-C.C.P. art. 1915. Plaintiffs filed a motion for new trial on the ground that the court was precluded from considering their failure to cooperate, since that issue was implicitly denied by the court’s previous partial summary judgment on the issue of insurable interest. The district court denied the motion for new trial and plaintiffs appealed. This court dismissed the appeal because it was |4taken from an uncertified partial summary judgment. Brantley v. State Farm Ins. Co., 33,386 (La.App.2d Cir.5/10/00), 760 So.2d 603.

In September 2000, the district court granted defendant’s motion for summary judgment on the tenant damage claim and dismissed all of plaintiffs’ claims. Plaintiffs’ motion for new trial was denied and they appealed. This court reversed the summary judgment in favor of defendant, finding that material issues of fact existed. Brantley v. State Farm Ins. Co., 35,148 (La.App.2d Cir.10/31/01), 799 So.2d 638.

The parties eventually settled the tenant damage claim and trial was scheduled on the fire damage claim. On the day of trial, the parties realized that defendant had not filed an answer to the original petition. Over the plaintiffs’ objection, the court allowed defendant’s attorney to file a handwritten answer. Plaintiffs filed motions for continuance, asserting their need for time to prepare a motion for summary judgment and to obtain another estimate of damages because a builder had denied that he had provided the estimate previously relied on by plaintiffs. The district court denied the motions for continuance. After a trial, the court rendered judgment in favor of the defendant, finding that plaintiffs had failed to cooperate with the insurer’s investigation and abandoned the premises contrary to the policy provisions. Plaintiffs’ motion for new trial was denied and they appeal the judgment.

DISCUSSION

Initially, we note that although plaintiffs alleged ten formal assignments of error, those numbered 1, 3, 6, 7 and 9 were not argued in | ¡¿heir brief. Thus, those assignments of error are deemed abandoned pursuant to URCA Rule 2-12.4.

Plaintiffs contend the defendant’s second motion for summary judgment was in effect an untimely motion for new trial and the court erred in treating the motion as one for summary judgment. Plaintiffs argue that the district court did not issue a ruling on the merits of their motion for new trial. We disagree.

The record shows that the district court granted defendant’s original motion for summary judgment on the limited issue of plaintiffs’ lack of an insurable interest and did not address the plaintiffs’ assertion that there was also an issue of tenant damages raised in their petition. Plaintiffs then filed a motion for new trial and defendant filed a second motion for summary judgment regarding the separate tenant damage claim. There is no indication that defendant sought to change the court’s prior ruling through this motion. Thus, the circumstances do not support plaintiffs’ contention that defendant’s motion was actually a request for a new trial rather than a motion for summary judgment. Plaintiffs’ argument lacks merit.

At the February 1999 hearing on plaintiffs’ motion for new trial, the district judge took the motion under advisement and instructed defendant to submit a memorandum on the issue of whether plaintiffs possessed an insurable interest in the property at the time of the fire. In response, the defendant’s attorney submitted a letter to the district court acknowledging that plaintiffs may have held an insurable interest in the property and that the issue was not suitable for summary judgment. Subsequently, the district | (¡court issued a written ruling which stated, “Upon reviewing the law and considering the position of State Farm Insurance Company, the Court grants a new trial on the motion for summary judgment filed by defendant.” Based upon the entire record, the most reasonable reading of this language demonstrates that, contrary to the plaintiffs’ assertions, the district court ruled on and granted their motion for new trial with respect to the partial summary judgment previously rendered. The plaintiffs have not shown that they were denied their rights to due process and equal protection of the law. The assignment of error lacks merit.

Evidentiary Issue

Plaintiffs contend the trial court erred in excluding a district fire chiefs testimony regarding the amount of property damage caused by the fire. Plaintiffs argue that the witness should have been allowed to give an opinion based on his experience as a firefighter.

If scientific, technical or other specialized knowledge will assist the trier of fact to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience or training may testify in the form of an opinion. LSA-C.E. art. 702. A trial judge has much discretion in the determination of whether to accept a witness as an expert and the decision will not be disturbed on appeal absent an abuse of that discretion. Doyle v. Picadilly Cafeterias, 576 So.2d 1143 (La.App. 3rd Cir.1991).

In the present case, plaintiffs presented testimony by Ralph May, a district chief with the Monroe Fire Department, who had responded to the fire at the property. Chief May testified that he listed in his report an |/estimated loss” of $50,000 from the fire and defendant objected to his qualifications to make such an estimate. In response to questioning by the court, May acknowledged that he had received “very little” training in estimating the value of property losses from fires. The court found that the witness had not been trained in evaluating property loss and excluded his testimony regarding estimated damages. After reviewing the record, we cannot say the trial court abused its discretion in excluding the opinion of the witness based on his lack of training. The assignment of error lacks merit.

Procedural Issue

In two assignments of error, the plaintiffs contend the trial court erred in assigning the case for trial even though defendant had not filed an answer to the original petition and in allowing defendant to file a handwritten answer on the day of trial. Plaintiffs argue that the court should have granted their motion for a continuance to allow them time to file a motion for summary judgment or, in the alternative, the court should have granted their motion to strike the answer because the defendant failed to plead any affirmative defenses.

Technical forms of pleading are not required and all allegations of fact in the petition or answer shall be simple and concise. LSA-C.C.P. art. 854. Except as otherwise provided by law, a defendant shall file an answer within fifteen days after service. The court may grant additional time for answering. LSA-C.C.P. art. 1001. Notwithstanding this provision, the defendant may file an answer at any time prior to confirmation of a default | judgment. LSA-C.C.P. art. 1002. The answer shall set forth all affirmative defenses. LSA-C.C.P. art. 1005.

On the morning of trial in the present case, the plaintiffs informed the court that defendant had never filed an answer to the original petition and moved for a continuance for an opportunity to file a motion for summary judgment. In response, the court instructed defendant to prepare a handwritten answer for filing and denied the continuance. However, the court ordered a recess until 1:30 p.m. to give plaintiffs’ attorney the opportunity to draft and file a motion for summary judgment. Following the recess, plaintiffs’ attorney stated that he was unable to prepare a motion for summary judgment, but he moved to strike the answer for failure to plead affirmative defenses. The court denied the motion and trial proceeded.

An answer may be filed at any time prior to obtaining judgment, whether or not the time designated has elapsed. Buruzs v. Buruzs, 96-1247 (La.App. 4th Cir.12/27/96), 686 So.2d 1006. Thus, the trial court did not err in allowing defendant to file an answer on the day of trial. Although they were not granted a continuance, plaintiffs were given a chance to file a motion for summary judgment before trial resumed, but declined. Plaintiffs have not shown they were prejudiced by the trial court’s ruling.

An affirmative defense, which must be asserted in the answer, is one raising a new matter that constitutes a defense to the action and will have the effect of defeating plaintiffs demand on its merits. Remet v. Martin, 97-0895 (La.App. 4th Cir.12/10/97), 705 So.2d 1132. Here, the answer states that “defendant asserts all defenses under the policy, including failure to |9cooperate, fraud, abandonment of the property and no inhabitants for 30 days before fire.” Based upon this record, we cannot say the trial court was clearly wrong in finding that the answer was sufficient and in denying the motion to strike. The assignments of error lack merit.

Insurance Coverage

The plaintiffs contend the trial court erred in denying their motion for new trial. Plaintiffs argue that the evidence presented at trial did not support the court’s finding that they failed to cooperate with the insurer or that they abandoned the premises.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of conflicting evidence was reasonable in light of the record as a whole. Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.8/19/98), 716 So.2d 511.

In the present case, the insurance policy provides in pertinent part:

SECTION I-LOSSES NOT INSURED
We do not insure for loss to the property described in Coverage A and Coverage B either consisting of, or directly and immediately caused by, one or more of the following:
* * * *
g. vandalism and malicious mischief or breakage of glass and safety glazing materials if the dwelling has been vacant for more than 30 consecutive days immediately before the loss.
JjgSECTION I-CONDITIONS
sk :J: d*
2. Your Duties After Loss. In case of a loss to which this insurance may apply, you shall see that the following duties are performed:
c. prepare an inventory of damaged personal property showing in detail the quantity, description, actual cash value and amount of loss.
d. as often as we reasonably require:
(2) provide us with records and documents we request and permit us to make copies; and
(3) submit to examinations under oath and subscribe the same;
e. submit to us, within 60 days after the loss, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:
(1) the time and cause of loss;
(2) interest of the insured and all others in the property involved and all encumbrances on the property; * * * *
(5) specifications of any damaged building and detailed estimates for repair of the damage;
(6) an inventory of damaged personal property described in 2.c.
11. Abandonment of Property. We need not accept any property abandoned by any insured.

In the present case, the defendant’s representatives, Crompton and Van, testified that they attempted to contact the plaintiffs by telephone or letter several times without receiving a response. Crompton acknowledged that he received a message that one of the plaintiffs had called on July 3,1996. However, he stated that when he returned the telephone call a short time later, a machine answered and he left a message. He testified that he did not receive any other calls from plaintiffs.

InVan testified that he telephoned plaintiffs many times, but was unable to contact them. He stated that he received one telephone call from Ellen Brantley in August 1996, when she told him to send any correspondence to the rural route address listed on the policy. Van testified that Brantley would not agree to provide any financial information, to meet with him to give a recorded statement or to answer questions under oath.

Larry Brantley testified that tenants were living in the house during 1996, but that he had not spoken to them since the fire and did not know where to find them. Brantley stated that furniture and carpeting had been taken out of the house, but said he did not know who had removed the items. He testified that he called defendant’s office one or two times, but was unable to speak to an adjuster about the fire claim. Brantley acknowledged that he did not give defendant an inventory of damaged property or a completed proof of loss form.

Ellen Brantley testified that the tenants who lived in the house paid monthly rent through May 1996, but she produced a photocopy of only one check dated March 1996. Mrs. Brantley stated that she called defendant’s office to report the claim for fire damage and spoke to a secretary. She testified that she called and spoke to someone in the claims office the next day. Mrs. Brantley stated that she and her husband traveled to California in July 1996 and that she called the insurer from there in August 1996 to speak with Van, but he was not in the office. Mrs. Brantley testified that she spoke with Van about the fire “a few times,” but he said the defendant would not do anything about the fire claim. Both plaintiffs denied receiving l^any of the letters mailed by defendant.

Chief May testified that when he responded to the fire, he did not see any furniture inside the house and he concluded that the dwelling was not occupied. Entergy utility records showed that there had not been any electricity usage at the property from January 1996 through the date of the fire. Vickers testified that when he inspected the property, the electricity usage meter had been removed from the house.

The trial court considered the evidence, heard the conflicting testimony and weighed the credibility of the witnesses. The record shows that the plaintiffs did not provide the insurer with a sworn proof of loss or an inventory of damaged property, and they did not submit to an examination under oath or provide any of their financial records. Based upon the evidence presented, the trial court could reasonably have found that plaintiffs did not comply with the policy coverage provisions by failing to cooperate with defendant’s investigation of the claim and by allowing the house to remain vacant for more than 30 days immediately prior to the loss. Consequently, we cannot say the trial court erred in dismissing plaintiffs’ claims for recovery of property damages under the policy. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellants, Larry and Ellen Brantley.

AFFIRMED.


author: h CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Greg D. BLACKSON, Appellant.
    No. 38,044-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      Sonny N. Stephens, Winnsboro, McKeithen, Ryland & Champagne, by Dina F. Domangue, for Appellant.

      William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Penny Wise Douci-ere, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   h CARAWAY, J.

After a bench trial, Greg D. Blackson was convicted of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. For the conviction, Blackson was sentenced to twelve years at hard labor without benefit of parole, probation or suspension of sentence and a $1,000 fine. Urging various claims of error, Blackson appeals his conviction. We affirm.

Facts

On January 31, 2001, Blackson and Re-cardo Bell got into a verbal altercation in front of Bell’s home on Carter Street in Winnsboro, Louisiana. The contradictory evidence showed that the argument ensued after Blackson stopped his vehicle to drop Bell off. After “exchanging words” with Bell, Blackson got back into his car and was driving away when Bell threw a half-full beer bottle at the car, breaking the rear passenger window. Blackson drove on but returned shortly to confront Bell about the broken car window. Testimony showed that Blackson had a gun which he waved around while arguing with Bell.

After Winnsboro City police officers arrived at Bell’s home, they were dispatched to Blackson’s trailer home in response to Blackson’s complaint against Bell. When Lieutenant Bruce McCarthy and Officer Chris Shaw arrived at Blackson’s trailer, Blackson informed them that Bell had broken his car window. Blackson admitted to Officer Shaw that he had returned to Bell’s home with a gun. Blackson then retrieved the gun from the mobile home, claiming that it belonged to his wife.

| ¿Thereafter, both Blackson and Bell went to the police station and made formal complaints. In the complaint signed by Blackson, he described his confrontation with Bell as follows, “I went around turn around to come back and I stopped and ask what the problem was and he pull a gun I got my gun.” Blackson was initially charged with aggravated assault for which he entered a guilty plea in city court. When it was later discovered that Black-son had a prior 1994 felony conviction for possession of cocaine, he was arrested for possession of a firearm by a convicted felon. After Blackson’s conviction on this charge, this appeal ensued.

Discussion

Appellant’s counsel has failed to brief and/or argue the assignments of error numbered three, four, seven, eight, nine, and ten. Therefore, this court considers those assigned errors abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978).

In his first assigned error, Black-son argues that the evidence was insufficient to convict him because the state failed to prove his previous felony conviction. Incorporated within this argument is Blackson’s separate but related claim that the state’s proof of the previous conviction through the testimony of Franklin Parish Sheriff, Steve Pylant, was unduly suggestive and impermissible. Finally, Blackson also asserts as error the lack of sufficient evidence of his possession of a firearm.

|3The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

A reviewing court accords great deference to the trier of fact’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255.

Possession of a firearm by a convicted felon requires proof of: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year cleansing period; and (4) general intent to |4commit the offense. La. R.S. 14:95.1; State v. Ball, 31,515 (La.App.2d Cir.12/9/98), 733 So.2d 1, citing, State v. Husband, 437 So.2d 269 (La.1983).

To prove the prior conviction and that the ten-year time period had not passed, the state submitted certified copies of court minutes, guilty plea and sentencing transcripts of the 1994 Franklin Parish proceedings entitled State Versus Greg Blackson. Blackson’s first-offender pardon demonstrated that his firearm rights were not reinstated. Additionally, the state presented the testimony of Sheriff Pylant identifying Blackson as the same defendant who was previously convicted of possession of cocaine. The state conducted the following colloquy with Sheriff Py-lant:

Q. Do you know the defendant in this case, Greg Blackson?
A. Yes, sir.
Q. How long have you worked at the Sheriffs Office?
A. Since 1982.
Q. Pm going to show you minutes of Court from December 7th 1994; March 14th 1995; and a transcript of sentencing from March 14th, 1995 in Docket Number 94-309F, State Versus Greg Blackson. Are you familiar with the person who was charged in that case?
A. Yes, sir.
Q. Is that person in the courtroom today?
A. Yes sir.
Q. Can you point him out to the Judge?
A. Yes, sir. Sitting to the right of Mr. Kramer.
Q. So this is the same Greg Blackson who is charged here today?
A. Yes, sir.

At this point, the state offered the minutes and sentencing transcript from the prior offense into evidence without objection. The defense did not cross examine the sheriff.

|sBlackson argues that Sheriff Pylant’s testimony was insufficient to establish his identity as the same Greg Blackson convicted in 1994 because it failed to establish Sheriff Pylant’s personal knowledge of this previous conviction. Blackson also argues that showing the transcript, entitled “State Versus Greg Blackson,” to the sheriff was unduly suggestive and failed to prove his independent knowledge of Blackson’s prior criminal conviction.

In the area of establishing a defendant’s previous conviction identity, courts have recognized various methods of proof including testimony of witnesses, expert opinion evidence comparing fingerprints, or photographs in the records. State v. Brown, 514 So.2d 99 (La.1987); State v. Curtis, 338 So.2d 662 (La.1976); State v. Thomas, 27,504 (La.App.2d Cir.11/1/95), 662 So.2d 798; State v. Morris, 99-3075 (La.App. 1st Cir.11/3/00), 770 So.2d 908, writ denied, 00-3293 (La.10/12/01), 799 So.2d 496, cert denied, 535 U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d 220 (2002). Additionally, the defendant’s name, driver’s license number, sex, race, and date of birth have been held to be sufficient evidence for the state to establish the identity of the defendant as the same person previously convicted of another felony. State v. Westbrook, 392 So.2d 1043 (La.1980); State v. Gillam, 03-0369 (La.App. 4th Cir.6/18/03), 850 So.2d 804. The mere fact, however, that the defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity. State v. Curtis, supra; State v. Gillam, supra.

The courts have also approved of the use of testimony from a rural parish clerk of court and a deputy sheriff identifying defendants from their ^personal knowledge as the same individuals convicted of previous offenses. State v. Augillard, 371 So.2d 798 (La.1979); State v. Evans, 506 So.2d 1283 (La.App. 2d Cir.1987).

This case is similar to the noted jurisprudence. Here, Sheriff Pylant testified that he worked in the Franklin Parish Sheriffs office since 1982 and became sheriff in 1996. The evidence shows that both Blackson and his parents all grew up in Franklin Parish, a small rural parish. The 1994 conviction occurred in the Fifth Judicial District, of which the parish comprised a part. Sheriff Pylant stated that he not only knew the defendant but was familiar with his 1994 conviction. The witness testified from personal knowledge that the individual convicted in 1994 and Blackson were one and the same person. Blackson presented no contrary evidence. Accordingly, we find this evidence adequate to establish the defendant as the same person convicted in 1994. This identification evidence along with the documentary evidence described above was sufficient to prove the prior felony conviction element and that the ten-year cleansing period had not elapsed. Therefore, we find the evidence sufficient to show that Blackson was a convicted felon within the ambit of the present offense.

As to Blackson’s possession of a firearm, his statements both to the police and in his voluntary complaint against Bell constituted admissions that he possessed a gun. Blackson’s actions in obtaining a gun from his wife’s trailer during the investigation demonstrated that he had access to the gun. Finally, the state presented the testimony of two witnesses, Bell and Shedrick Coleman, who testified that Blackson had a gun during his 17confrontation with Bell. On this basis, we find the evidence sufficient to prove that Blackson possessed a firearm.

Blackson next urges that the use of same evidence to convict him of aggravated assault arising out of the same incident and the instant offense impermissibly subjected him to double jeopardy.

The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution of 1974, prohibit placing a person twice in jeopardy of life or limb for the same offense. Likewise, La.C.Cr.P. art. 591 provides:

No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 77 or ordered with the express consent of the defendant.

Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal act. State v. Lefeure, 00-1142 (La.App. 5th Cir.1/30/01), 778 So.2d 744, 750, writ denied, 01-1440 (La.9/21/01), 797 So.2d 669, citing, State v. Jackson, 96-661 (La.App. 5th Cir.4/9/97), 694 So.2d 440, 448, writ denied, 97-1050 (La.10/13/97), 703 So.2d 609, writ denied, 97-1255 (La.10/13/97), 703 So.2d 612.

The two tests used by Louisiana courts when examining double jeopardy violations are the “distinct fact” or the Blockburger , test and the “same evidence test.” The Blockburger test determines whether each crime |srequires proof of an additional fact which the other does not. State v. Lefeure, supra. The “same evidence” test evaluates whether the evidence required to support a finding of guilt of one crime would also have supported a conviction for the other crime. The test depends on the evidence necessary for conviction, not all of the evidence introduced at trial. State v. Lefeure, supra. Although the Louisiana Supreme Court has accepted both tests, it has principally relied on the “same evidence” test to evaluate double jeopardy claims. State v. Lefeure, supra, citing, State v. Miller, 571 So.2d 603, 606 (La.1990).

An accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols, 337 So.2d 1074 (La.1976); State v. Gordon, 00-1013 (La.App. 5th Cir.11/27/01), 803 So.2d 131, writ denied, 02-0362 (La.12/19/02), 833 So.2d 336, writ denied, 02-0209 (La.2/14/03), 836 So.2d 134.

Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. La. R.S. 14:36. Aggravated assault is an assault committed with a dangerous weapon. La. R.S. 14:37. As discussed above, possession of a firearm by a convicted felon requires proof of the possession, a previous conviction of an enumerated felony, the absence of the ten-year cleansing period and the general intent to commit the offense. La. R.S. 14:95.1

In the instant case, although the facts of both cases are intertwined, the constitutional prohibition against double jeopardy is not violated. Utilizing | flthe “same evidence” test, the evidence needed to support Blackson’s conviction for aggravated assault would not have secured a conviction for possession of a firearm by a convicted felon. For the aggravated assault conviction, the state had to prove that either Blackson attempted to use intentional force or violence upon Bell or place him in apprehension of being harmed while using a dangerous weapon. For the instant offense, the state had to prove that Blackson possessed a firearm and had previously been convicted of a felony within the last ten years. Clearly, the evidence required for conviction of each separate offense would not have supported a conviction for the other crime. Furthermore, under the Blockburger test, each offense requires proof of an additional fact which the other does not require. The charge of possession of a firearm requires a previous conviction of an enumerated offense while aggravated assault requires proof of an attempted battery or the intentional placing of another in reasonable apprehension of receiving a battery. Clearly, under this test as well, double jeopardy safeguards are not implicated here.

In his final assignment of error, Black-son contends that his trial counsel was ineffective in failing to file a motion to suppress the inculpatory statements made by him in response to direct interrogation by police officers or to object to their admissibility during trial on the ground of voluntariness. Blackson also contends that his counsel fell below the constitutional standard for effectiveness, both in failing to object to or conduct cross-examination of |inthe identification testimony of Sheriff Pylant, and in failing to file post-trial motions.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court than by appeal. This is because such an application creates the opportunity for a full evi-dentiary hearing under La.C.Cr.P. art. 930. State ex rel Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. A motion for new trial is also an accepted vehicle to raise such a claim. Id. However, when the record is sufficient, we may resolve this issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra; State v. Roland, 36,786 (La.App.2d Cir.6/5/03), 850 So.2d 738.

[^Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Roland, supra.

Here, Blackson’s claim for ineffective assistance of counsel falls short of the standard required under Stnckland. Because we have both determined that the evidence was sufficient to support the conviction and that no double jeopardy rights were violated, Blackson’s counsel’s failure to file post-trial motions or object regarding these issues could not have resulted in prejudice to Blackson.

We have likewise found no merit in Blackson’s claim regarding the admissibility of Sheriff Pylant’s testimony. Black-son’s claim that his counsel’s failure to cross-examine Sheriff Pylant “severely prejudiced” him and amounted to “no advocacy whatsoever” qualifies as those types of general and conclusory charges which are insufficient to prove a claim of ineffective assistance of counsel. State v. Outley, 629 So.2d 1243 (La.App. 2d Cir.1993), writ denied, 94-0410 (La.5/20/94), 637 So.2d 476; State v. O’Neal, 501 So.2d 920 (La.App. 2d Cir.1987), writ denied, 505 So.2d 1139 (La.1987). Moreover, because counsel otherwise conducted extensive crossjexamination12 of other witnesses, there is a strong presumption that the conduct of counsel falls within the wide range of reasonable professional assistance to which this court grants great deference. State v. Roland, supra; State v. Outley, supra.

We likewise find no merit in Blackson’s claim regarding his counsel’s decision not to file a motion to suppress the inculpatory statements made by the defendant to Lieutenant McCarthy and Officer Shaw. Blackson’s specific argument is that counsel should have raised the issue of admissibility of these statements because he was not given his Miranda warnings prior to divulging information about his possession of a firearm to the police. The record clearly indicates that Blackson initiated the contact with police by calling in a complaint against Bell for the broken car window. When the officers arrived, they conversed with Blackson about Bell’s alleged crime. The general rule is that Miranda warnings are not required until a citizen is deprived of his liberty in a significant way, such as when he is forbidden from leaving the officers’ presence. State v. Thompson, 399 So.2d 1161 (La.1981); State v. Lambert, 98-0703 (La.App. 4th Cir.11/17/99), 749 So.2d 739, writ denied, 00-1346 (La.1/26/01), 781 So.2d 1258. Additionally, Miranda warnings are not a prerequisite to admissibility of statements taken by officers during non-custodial, general, on-the-scene investigations, conducted to determine the facts and circumstances surrounding a possible crime, absent a showing that the investigation has passed the investigatory stage and has focused on the accused. State v. Weeks, 345 So.2d 26 (La.1977); State v. Jackson, 452 So.2d 1250 (La.App. 2d Cir.1984), writ denied, 457 So.2d 17 (La.1984).

| i.Jn this case, the record shows that the police came to Blackson’s house to investigate a crime other than the crime for which he has now been convicted. As such, any inculpatory statements made by Blackson occurred during a non-custodial, general investigation. In fact, the evidence shows that at the time of the subject conversation, the police officers themselves were unaware of any previous felony conviction for Blackson. Finally, there is no indication of a reasonable probability of a different outcome if Blackson had been successful in the suppression of this evidence at trial. Blaekson’s own admission of his use of the gun in the written complaint and the eyewitness testimony of the state’s witnesses regarding his possession of the gun served as sufficient evidence of the possession element for the conviction.

Conclusion

For the foregoing reasons, we affirm Blaekson’s conviction and sentence.

AFFIRMED.

      . Despite the lack of a motion for post-verdict judgment of acquittal, this court may review a sufficiency of the evidence argument. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)

      . State v. Steele, 387 So.2d 1175 (La.1980).

      . Although Blackson lists numerous other claims for ineffective assistance of counsel in his assignments of error, only three specific claims are argued in brief.