author: JjDENNIS R. BAGNERIS, SR, Judge.

text:
    James HOLLINS v. PEOPLE WORKS.
    No. 2003-CA-0687.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2003.

      Harry E. Forst, New Orleans, LA, for Plaintiff/Appellant.
    Randy J. Hoth, Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli & Frie-man, Metairie, LA, for Defendant/Appel-lee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR, and Judge EDWIN A. LOMBARD).
   JjDENNIS R. BAGNERIS, SR, Judge.

In this workers’ compensation case, James Hollins, appeals the decision of the workers’ compensation judge, which denied his claim for workers’ compensation benefits. For the following reasons, we affirm.

FACTS

Mr. Hollins worked for City Wholesale Liquor Company (“City Wholesale Liquor”) as a customer service representative at the time of the alleged incident. His average weekly wage was $675.00. Mr. Hollins testified at trial that he had an accident on October 13, 1999, when he was on a delivery route with a co-employee by the name of Robert Wright. Specifically, Mr. Hollins testified that a 30 to 45 pound box of vodka fell on his left foot while he was making a delivery at a bar in the Houma area and that this work-related accident led to an amputation from below his left knee down. Mr. Hollins admitted at trial that his co-employee, Robert Wright, was inside the bar at the time of the incident and that the alleged accident was not witnessed. Mr. Hollins testified that when Robert Wright returned to the truck, he told him about the box falling on his foot. Further, Mr. |2Hollins testified at trial that when he returned to the store that evening, he told Dan Dembinski, President of City Wholesale Liquor, about the accident on the truck. Mr. Hollins also testified at trial that he reported the alleged work accident to Dr. Ira Markow-itz on October 20, 1999, during his first visit following the alleged incident.

Dan Dembinski, President of City Wholesale Liquor, testified at trial that he prepared the Employer’s First Report of Injury on December 28, 1999. On cross-examination, Mr. Dembinski testified that the Employer’s First Report of Injury does in fact indicate that Mr. Hollins was injured on November 11, 1999. At trial, Mr. Dembinski testified that Mr. Hollins’s injury occurred in either the first or second week of November 1999. Mr. Dem-binski testified that when asked on the report “what work activity was the employee doing when the incident occurred?” he responded with “[ajlleges pain in toe.” Mr. Dembinski testified that the report fails to mention a box falling on Mr. Hol-lins, and that had he been aware of the fact that a box fell on Mr. Hollins at the time he was filling out the report in December 1999, he would have noted it on that form. Further, Mr. Dembinski testified that he is unsure of whether or not Mr. Hollins told him, on the day of the alleged accident, that he injured his foot while on the truck.

Dr. Ira Markowitz, a vascular surgeon specialist, testified by deposition. Dr. Markowitz testified that he had treated Mr. Hollins in May 1999 for right and left leg discomfort. Dr. Markowitz testified that Mr. Hollins’s past medical history included him being diabetic and having multiple bypasses. Dr. Markowitz testified |3that on October 20,1999, he again treated Mr. Hollins for pain in his left foot. Dr. Markowitz testified that during this October 1999 office visit, Mr. Hollins specifically denied having sustained any trauma to his foot other than having changed some shoes. Specifically, Dr. Markowitz’s progress notes of October 20, 1999, state that “Mr. James Hollins was seen in the office, complaining of left foot pain. The patient denies any trauma, says he did change some shoes, but he noted some drainage coming out of the area.”

DISCUSSION

The issue before this court is whether Mr. Hollins carried his burden of proving by a preponderance of the evidence that he sustained an accident while in the course and scope of his employment with People Works.

A threshold requirement in a workers’ compensation case is that a plaintiff establish “ ‘personal injury by accident arising out of and in the course of his employment.’ ” Bruno v. Harbert Intern. Inc., 593 So.2d 357, 360 (La.1992) (quoting La. R.S. 23:1031). Although the workers’ compensation laws are liberally construed in favor of coverage, the plaintiffs burden of proving personal injury by an accident is not relaxed and must be proven by a preponderance of the evidence. Coats v. American Tel. & Tel. Co., 95-2670, p. 4 (La.10/25/96), 681 So.2d 1243, 1245.

A plaintiffs testimony alone may be sufficient to establish an accident provided that: “(1) no other evidence discredits or casts serious doubt upon the |4worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Bruno, 593 So.2d at 361.

In a workers’ compensation case, as in other cases, the appellate court’s review of factual findings is governed by the manifest error — clearly wrong standard. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary for a finding of manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Stobari v. State, through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. A workers’ compensation judge’s determinations as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations which will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Bruno, 593 So.2d at 361.

| sIn this case, Mr. Hollins’s January 25, 2000 deposition testimony was used to impeach his trial testimony on several points. On direct examination, Mr. Hollins testified that the accident occurred on October 13, 1999; however, Mr. Hollins testified in his deposition that the alleged accident occurred around the beginning of November 1999. Further, Mr. Hollins testified at trial that he told his co-worker, Robert Wright, about the accident minutes after it occurred; however, Mr. Hollins testified in his deposition that he never told Mr. Wright about the accident.

Mr. Hollins’s testimony on direct was also impeached by the trial testimony of Dan Dembinski. As stated above, Mr. Hollins’s trial testimony was that the alleged accident occurred on October 13, 1999; however, Mr. Dembinski testified that to the best of his judgment, the accident occurred in either the first or second week of November 1999. Mr. Hollins also testified that he reported the accident on the truck to Mr. Dembinski; however, Mr. Dembinski testified at trial that he was unaware of the fact that a box of vodka fell on Mr. Hollins’s left foot until sometime after he had filled out the December 22, 1999 accident report. .

Mr. Hollins’s trial testimony was also impeached with the medical records and testimony of Dr. Markowitz. At trial, Mr. Hollins testified that he reported the alleged accident to Dr. Markowitz on October 20, 1999, during the first visit following the alleged incident. However, the medical records and testimony of Dr. Markow-itz indicate that Mr. Hollins failed to report any trauma or job related accident during his first visit following the alleged accident.

| fiBased on these inconsistencies in Mr. Hollins’s case, as well as our review of the record, we cannot say that the trial court’s finding that Mr. Hollins failed to carry his burden of proof that he suffered a work-related accident and injury in October of 1999 while employed by People Works was manifestly erroneous. For the reasons assigned, the judgment of the trial court dismissing Mr. Hollins’s action is affirmed.

AFFIRMED.

      . City Wholesale Liquor employed Mr. Hol-lins through a leasing arrangement with defendant, People Works.


source: Caselaw Access Project

author: J^LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joseph HAROLD.
    No. 2003-KA-0649.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2003.

      Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant, Joseph Harold.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
   J^LEON A. CANNIZZARO, JR., Judge.

The defendant in this case, Joseph Harold, was convicted of carjacking after a jury trial. He is appealing his conviction. For the reasons set forth below, we affirm the conviction.

STATEMENT OF THE CASE

Mr. Harold was charged in a bill of information with one count of carjacking in violation of La. R.S. 14:64.2. He entered a not guilty plea at his arraignment. Mr. Harold then moved to suppress a statement he made to the police and to suppress the victim’s identification of him. After a hearing, these motions were denied. Subsequently, a twelve-person jury found him guilty as charged. He was sentenced to five years at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court judge requested that Mr. Harold be placed in either the About Face Program at the Orleans Parish Prison or, if he were transferred to the custody of the Department of Corrections, the intensive incarceration program. Mr. Harold is now appealing his conviction.

STATEMENT OF THE FACTS

At approximately 3:00 a.m. one morning, Lori Albaral, the victim in this case, left the Maple Leaf Bar in New Orleans, where she had been. listening to Lmusic with friends. She was returning home in her green 1999 Ford Explorer (the “Explorer”), when she got lost and found herself in the 1800 block of Joliet Street. As she was driving on Joliet Street, she slowed down as she approached a stop sign, rolled down the driver’s side window of the Explorer, and threw a cigarette and some ice from a cup out of the window. As she was doing this, a male approached, and he opened the victim’s car door and tried to pull her out of the Explorer. Ms. Albaral was resisting being pulled from her vehicle, when a second person, who was never identified, entered the Explorer from the passenger side and pushed her out’ of the vehicle. Mr. Harold jumped into the driver’s seat of the Explorer and began to accelerate and drive off while Ms. Albaral was still holding onto the door of the Explorer. As the victim was being dragged down the street, Mr. Harold said, “Let go, bitch, or I’ll kill you.” The victim was forced to release her grip on the door, and Mr. Harold drove away in the Explorer, leaving Ms. Albaral screaming hysterically in the street.

Sandra Hudson, a resident of Joliet Street, was awakened by Ms. Albaral’s screams. When Ms. Hudson opened the door to her residence, Ms. Albaral approached her and requested assistance. Ms. Hudson called 911, but when she gave the telephone to Ms. Albaral, Ms. Albaral was unable to speak coherently, and the call was disconnected. A second call was placed, and Ms. Hudson advised the police that there was a frantic woman crying hysterically at her house.

New Orleans Police Department (“NOPD”) Officer Lawrence James responded to Ms. Hudson’s call. He found Ms. Albaral crying and hysterical. Her knees were scraped and bruised. Officer James elicited from Ms. Albaral a description of the Explorer, which she stated had Texas license plates, and of the man who had tried to pull her out of the Explorer. Ms. Albaral described the manjúas being black with dark or black, baggy clothing. Ms. Albaral indicated that she would be able to identify this man, because she had seen his face. She could not, however, identify the man who pushed her out of the driver’s side of the Explorer, because she had not seen his face well enough to identify him.

Officer James broadcast to other police officers a description of the Explorer and the man. NOPD Officers Fred Thompson and Harry Parker heard the broadcast right after they had seen a vehicle matching the description of the Explorer. The vehicle had just passed their police vehicle. Officers Thompson and Parker pursued the vehicle into the Calliope Housing Development in New Orleans. They then saw Mr. Harold jump out of the Explorer and run. Officer Parker chased Mr. Harold on foot, and Mr. Harold was apprehended without incident.

When he heard over his radio that a suspect had been found, Officer James drove Ms. Albaral to the scene of the apprehension. She immediately identified her Explorer. While the scene was being processed, Mr. Harold was taken out of a police car where he had been held, and he was illuminated with the headlights from the police car. Ms. Albaral was asked if she recognized Mr. Harold, and she immediately stated that he was the man who had pulled her from her car and threatened to kill her. Mr. Harold was arrested, and a search incident to the arrest was conducted.

The search revealed that Mr. Harold had several items in his pockets. Ms. Albaral was then shown the contents of Mr. Harold’s pockets, and she identified her car keys. Mr. Harold also had five dollars in currency when he was apprehended.

Ms. Albaral’s purse had been turned upside down inside the Explorer, and its contents had fallen out. The contents of the Explorer’s console were scattered, Rand Ms. Albaral’s wallet, which contained fifty dollars she was going to use to pay her child’s babysitter, was never recovered.

After Ms. Albaral had identified Mr. Harold as the man who tried to pull her out of the Explorer, NOPD Detective Jeff Walls was called to the scene, where he interviewed Mr. Harold, who indicated that he wanted to make a statement. The formal waiver of Mr. Harold’s constitutional rights in connection with the statement and the statement itself were both made at the police station. In the statement made by Mr. Harold, he denied carjacking anyone.

At trial Mr. Harold testified on his own behalf. He stated that, at approximately 3:00 a.m. on the night of the incident involving Ms. Albaral, he was waiting with a friend on the corner of Hickory and Leonidas Streets in New Orleans for a bus that was scheduled to stop at 5:00 a.m. The lounge at the corner, the Bus Stop Lounge, was still open, and he had been in there. According to Mr. Harold, while he was standing on the corner, a “Jeep”, presumably the Explorer, drove around the block several times. Mr. Harold testified that a black male was driving the vehicle and that a white woman was sitting in the passenger seat. The vehicle then stopped, and the driver asked Mr. Harold if he had drugs for sale. When Mr. Harold said that he did not, the vehicle drove away, but it returned a short time later with only the black male driver inside. The driver asked Mr. Harold if he wanted to “buy the truck” for twenty dollars. The defendant accepted the offer to “buy the truck” and gave the driver of the vehicle twenty dollars. Mr. I,.¡Harold was then given possession of the vehicle, and he drove it to the Calliope Housing Development, where, according to Mr. Harold, his aunt lived.

Mr. Harold claimed that he ran from the police after he jumped from the vehicle he had “rented”, because there was an outstanding warrant relating to a misdemean- or charge against him. Therefore, Mr. Harold ran to avoid arrest on that charge.

On cross-examination, Mr. Harold admitted that he did not know the driver of the “rented” vehicle, and he admitted that no agreement had been made between him and the driver of the vehicle regarding the return of the vehicle. Mr. Harold also stated that since his arrest, he had not spoken with the friend who was with him at the bus stop where he “rented” the vehicle. Mr. Harold’s attorney, however, stated in court that despite repeated attempts to obtain the friend’s testimony, the friend had refused to appear in court.

ERRORS PATENT

We have reviewed the record in this case to determine whether there are any errors patent. We have found none.

DISCUSSION

Mr. Harold’s sole assignment of error in this case is that the trial court erred by denying his motion to suppress Ms. Albaral’s identification of him. He argues that the identification procedure was impermissibly suggestive, because it was a one-on-one show up, during which Mr. Harold was handcuffed and presented for | ^identification at the scene where the Explorer was found in his possession.

Applicable Law

Article 703 of the Louisiana Code of Criminal Procedure provides, in relevant part, that “[a] defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.” In State v. Prudholm, 446 So.2d 729 (La.1984), the Louisiana Supreme Court discussed the requirements that must be met before an identification can be suppressed. The Supreme Court stated that “[a] defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misiden-tification as a result of the identification procedure.” Id. at 738 (emphasis in original). See also State v. Haynes, 2002-1648, p. 4 (La.App. 4 Cir. 4/30/03), 847 So.2d 653, 656.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court discussed five factors to be considered in evaluating the likelihood of misidentification of a suspect. These factors include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ pri- or description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. 409 U.S. at 199-200, 93 S.Ct. at 382. See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Prudholm, 446 So.2d 729 (La.1984).

The fact that an identification could be considered suggestive is not determinative regarding the admissibility of the identification. The likelihood of a mis-identification is what violates due process, not suggestibility by itself. See State v. Thibodeaux, 98-1673, p. 20-21, (La.9/8/99), 750 So.2d 916, 932. Therefore, 17“reliability is the linchpin in determining the admissibility of identification.” Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253.

The Louisiana Supreme Court has considered the admissibility of one-on-one identifications in several cases. In State v. Bickham, 404 So.2d 929 (La.1981), the Supreme Court stated as follows:

One-on-one confrontations between a suspect and a victim, while not favored by the law, are permissible when justified by the overall circumstances. State v. Dunbar, 356 So.2d 956 (La.1978). Such identification procedures are generally permitted when the accused is apprehended within a short time after the offense and is returned to the scene of the crime for on-the-spot identification. A prompt in-the-field identification, under appropriate circumstances, promotes accuracy, as well as expediting the release of innocent suspects.

Id. at 934. See also State v. Williams, 420 So.2d 1116 (La.1982); State v. Frank, 344 So.2d 1039 (La.1977).

Additionally, the determination of whether a one-on-one show up is not im-permissibly suggestive such that the reliability of the identification is impaired is to be based on the totality of the circumstances surrounding the identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In State v. Dunbar, 356 So.2d 956 (La.1978), the Louisiana Supreme Court stated with respect to one-on-one show up identifications that “identifications made in this manner are permissible when justified by all of the circumstances.” 356 So.2d at 962. See also, e.g., State v. Dauzat, 364 So.2d 1000 (La.1978); State v. Frank, 344 So.2d 1039 (La.1977);

This Court has also approved one-on-one show up identifications where the identifications have been found to be reliable and the procedure did not create a substantial likelihood that the suspect would be misidentified. See, e.g., State v. Haynes, 2002-1648 (La.App. 4 Cir. 4/30/03), 847 So.2d 653; State v. Vicks, 2000J17008 (La.App. 4 Cir. 9/26/01), 798 So.2d 308; State v. Nogess, 98-0670 (La.App. 4 Cir. 3/3/99), 729 So.2d 132; State v. Jackson, 94-0436 (La.App. 4 Cir. 6/29/95), 657 So.2d 1391.

In the Bickham case, the Louisiana Supreme Court enunciated the standard of review to be used by an appellate court in cases involving the admissibility of a one-on-one show up identification of a defendant. The Supreme Court stated that “.[a] trial judge’s determination on the admissibility of an identification should be accorded great weight and will 'not be disturbed on appeal unless the evidence reveals an abuse of discretion.” 404 So.2d at 934. See also State v. Haynes, 2002-1648 (La.App. 4 Cir. 4/30/03), 847 So.2d 653; State v. Offray, 2000-0959 (La.App. 4 Cir. 9/26/01), 797 So.2d 764.

Analysis under Biggers

It is necessary in the instant case to apply the analysis described in the Biggers case to determine whether the identification of Mr. Harold as the perpetrator of the crime against Ms. Albaral was properly admitted at Mr. Harold’s trial. First, we must determine whether Ms. Albaral had an opportunity to view Mr. Harold at the time the crime was committed. At trial in response to a question requesting that she describe the perpetrator of the carjacking, Ms. Albaral testified that “it was him, I saw his face. He was in my face. I’ll never forget that.” Ms. Albaral also testified that while the carjacking was in progress, she “focused” on the perpetrator’s face.

Mr. Harold argues, however, that Ms. Albaral did not meet the requirements of the first factor set forth in Biggers. His argument is based on the fact that Ms. Albaral was taken by surprise and removed from the Explorer so quickly that there was no opportunity to get a good view of the perpetrator. We find this argument to [ 3be without merit. Based on Ms. Albaral’s testimony that she focused her attention on the perpetrator’s face, that she will never forget the face, and that her view of his face was unobstructed, we find that Ms. Albaral clearly had an opportunity to view the perpetrator of the crime against her, and we conclude that the first of the five factors set forth in Biggers was satisfied.

We must next consider whether the degree of Ms. Albaral’s attention to the perpetrator during the crime was sufficient for her to identify the perpetrator, and we must also consider the accuracy of the description that Ms. Albaral gave to the police when they interviewed her prior to Mr. Harold’s apprehension. Ms. Albaral testified that although there were two perpetrators, she saw the face of only one. She also testified that the perpetrator she saw was not wearing anything that obstructed his face. Also, she testified that she “focused” on the perpetrator’s face while the crime was being committed.

Mr. Harold argues that because Ms. Al-baral’s encounter with the perpetrator was so brief and so harrowing, she could not have paid the degree of attention to the perpetrator that is required under Biggers. Further, Mr. Harold argues that the prior description of the perpetrator that Ms. Albaral had given to the police was too vague. We find no merit in these arguments. There is no reason to believe that Ms. Albaral’s view of the perpetrator, as he was trying .to pull her from the Explorer, was not sufficient for her to identify him. Also, Ms. Albaral correctly described Mr. Harold’s clothing to the police who responded to the 911 call that was made. Based on these facts, we find that the second and third factors set forth in Big-gers are satisfied.

The fourth factor that we must consider is the level of certainty demonstrated by Ms. Albaral when she identified Mr. Harold as one of the two |inpeople who committed the carjacking. Not only did Ms. Albaral identify Mr. Harold without any hesitation as soon as she saw him at the scene of his apprehension, she also was very certain that he was the person who tried to pull her from the Explorer. We find that the fourth factor that must be met under Biggers was met in the instant case.

Finally, we must determine whether the length of time that elapsed between the crime and the identification was sufficiently short to enable Ms. Albaral to identify the perpetrator from memory. Because the entire criminal episode in the instant case, from the commission of the crime to Mr. Harold’s arrest, transpired in less than an hour, we find that the length of time between the crime and the identification was clearly short enough for the memory of Mr. Harold’s face to be fresh in Ms. Albaral’s mind. Therefore, the fifth factor in Biggers was satisfied.

Defendant’s Additional Arguments

Mr. Harold has questioned the reliability of Ms. Albaral’s identification, because he alleges that her memory was shown to be unreliable based on her varying descriptions regarding a handkerchief or bandana worn by the perpetrator. Ms. Albaral’s alleged failure to include the description of the bandana or handkerchief in the information she gave the police who responded to her 911 call and her inability to recall exactly where or how the perpetrator wore the bandana or handkerchief does not mean that her memory is faulty. She testified that her focus was on the perpetrator’s face, and it is reasonable to believe that in concentrating on the perpetrator’s face, she may have missed some details of what the perpetrator was wearing.

Mr. Harold also argues that identification of a handcuffed suspect in a one-on-one show up is inherently too suggestive for an identification to be reliable. In More particularly, he argues that because Ms. Albaral heard over the radio in the police car in which she was being driven to the scene of the apprehension that her Explorer had been found and that a suspect was in custody, she would naturally assume that the person she was asked to identify was the suspect. In State v. Nogess, 1998-0670 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, this Court stated that “[tjhere is no merit to the argument that the identification procedure was rendered suggestive because the victim overheard the police radio call [stating that the police had detained two suspects for viewing].” 1998-0670, p. 6, 729 So.2d at 135.

There is nothing in the instant case to suggest that the radio transmission that was broadcast included any statement to the effect that the person apprehended was responsible for the carjacking. Additionally, there was no suggestion by the police that Ms. Albaral had to make an identification or that the person apprehended was the one who carjacked the Explorer. Therefore, we find no merit in Mr. Harold’s contention that because Ms. Albaral heard the announcement regarding his apprehension over the police radio, her identification of him was unreliable.

Admissibility of the Identification

We find that the trial court did not abuse his discretion in refusing to suppress the one-on-one show up identification of Mr. Harold. Not only did the trial court not abuse his discretion, Mr. Harold did not satisfy his burden of proof in showing that the identification procedure was unreliable or allowed for misidentification. See La.C.Cr.P. art. 703. Under the totality of the circumstances, the identification of Mr. Harold in the instant case was neither impermissibly suggestive nor unreliable.

| ^CONCLUSION

There was no error in the admission of the identification of the defendant at the trial. The judgment of the trial court is hereby affirmed.

AFFIRMED.

      . Mr. Harold explained at trial that "buying the truck” is a term that is used to describe the rental of a vehicle for a certain amount of time, during which the person originally in the vehicle uses the "rental” payment to buy drugs.

      . The term "one-on-one show up” refers to an identification procedure that takes place shortly after a crime is committed, usually at the scene of the crime or the apprehension of a suspect, whereby a victim is asked whether the victim recognizes a person suspected to be the perpetrator of a crime against the victim. This type of identification differs from identification through a photo line-up or a physical line-up, because only one individual is presented to the victim for identification.


author: PER CURIAM.

text:
    Raymond ZELLARS v. NEW ORLEANS SAINTS.
    No. 2003-CA-0103.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2003.
    Robert L. Haekett, Law Offices of Robert L. Haekett, New Orleans, LA, for Plaintiff/Appellant.
    Sammie M. Henry, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR. and Judge MICHAEL E. KIRBY).
   PER CURIAM.

The claimant was injured in November or December 1996. The employer paid some of his medical expenses for treatment received in January 1997. The claimant initiated this workers compensation proceeding April 1, 1999. When an employer has paid some medical expenses, claims for other medical expenses prescribe three years after the last payment of any medical expenses by the employer. La. R.S. 23:1209.C; Boquet v. Tetra Technologies, Inc., 2002-1634 (La.02/25/03), 839 So.2d 13, 15, 17-18. The claimant instituted this workers compensation proceeding less than three years after January 1997, so, as to claims for medical expenses only, the claim is not prescribed.

Accordingly, the judgment of the trial court sustaining the exception of prescription is reversed as to medical expense claims and this ease is remanded for further proceedings.

REVERSED AND REMANDED.


author: 1 .KLINE, J. 11 McCLENDON, Judge,

text:
    J. Roger BERGERON, in His Official Capacity as Director of the Sales Tax and Use Department for the Parish of West Baton Rouge v. Preston W. ALBERT, Jr.
    No. 2002 CA 1955.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 2003.
    Rehearing Denied Jan. 5, 2004.

      Robert R. Rainer, Baton Rouge, Counsel for Plaintiff/Appellee J. Roger Bergeron.
    Marvin E. Owen, Baton Rouge, Counsel for Defendant/Appellant Preston W. Albert, Jr.
    Before: FOIL, PETTIGREW, GAIDRY, MeCLENDON, and KLINE, J.J.

      . The Honorable William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   1 .KLINE, J.

In this appeal, a corporate officer contests the imposition of corporate sales tax liability against him personally under La. R.S. 33:2845.1. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Preston W. Albert, Jr. was, at all pertinent times, president and chief executive officer, and a part owner of S & W Services, Inc. (S & W), an eighteen-wheeler repair service located in West Baton Rouge Parish (WBRP). Mr. Albert also had ownership interests in two interstate trucking companies, Tigator, Inc. (Tigator) and Bayou Kritter, Inc. (Bayou Kritter). S & W provided preventative maintenance and repair services to Tigator and Bayou Kritter, including the sale of all necessary parts.

Effective in July of 1996, the Louisiana Department of Revenue (Department) authorized and provided necessary documentation to Tigator and Bayou Kritter to allow these corporations to avoid paying sales tax to vendors on purchases of “tangible personal property that is to be used in the furtherance of ... interstate transportation business” in accordance with La R.S. 47:306.1. Under La. R.S. 47:306.1, persons operating in ^interstate or foreign commerce are allowed to obtain such an “exemption” from payment of sales tax. It is not a total exemption, because the taxpayer has to remit sales tax to the Department in accordance with the formula set forth in the statute.

All three of Mr. Albert’s corporations took the position that parts sold by S & W that were installed by S & W on Tigator’s and Bayou Kritter’s eighteen-wheelers were “tangible personal property,” for use in interstate commerce, on which no sales tax was owed to the vendor, S & W. Beginning in September of 1996, S & W stopped collecting and remitting sales tax on parts sold to Tigator and Bayou Kritter. Because of a limitation with their invoicing software, S & W’s tax/business consultant, Mr. Ordrie Orte-go, testified that for invoicing purposes, S & W fictitiously assumed that all sales were comprised of fifty percent parts and fifty percent labor. Since S & W could only collect sales tax on labor, due to their understanding with Tigator and Bayou Kritter, S & W collected sales tax that amounted to 4% of each invoice total. S & W maintained that one-half of the amount of sales tax collected was for the State of Louisiana and |4one-half was for West Baton Rouge Parish. S & W contends its intent was not to collect sales tax on the sale to Tigator and Bayou Kritter of tangible items (i.e., parts for their eighteen-wheelers).

In November and December of 1998, West Baton Rouge Parish Council Revenue Agent, Kimberly A. Deaton, conducted a sales and use tax audit of S & W’s records. West Baton Rouge Parish took the position that Tigator and Bayou Krit-ter were not entitled to the La. R.S. 47:306.1 “exemption” on parts used in repairs made by S & W. Consequently, the audit by Ms. Deaton resulted in a finding that S & W had remitted insufficient sales tax on sales made to Tigator and Bayou Kritter. WBRP further concluded that since a total of 4% sales tax had been collected on invoices from S & W to Tigator and Bayou Kritter, all of these tax funds should have been remitted to the parish, as the parish maintained that 4% sales tax was due on the entirety of every S & W invoice. S & W contends one-half of all sales tax collected was collected to pay state sales tax.

A judgment was obtained against S & W for the fall amount of the sales tax deficiency claimed by WBRP; that judgment was not appealed and has become final. Thereafter, the tax collector of WBRP filed suit against Mr. Albert, under La. R.S. 33:2845.1, seeking to have him found personally liable for failure to remit all sales tax owed by S & W to WBRP. The trial court rendered judgment in favor of the parish, and Mr. Albert has appealed. Mr. Albert makes the following assignments of error:

|51. The Trial Judge erred in allowing evidence of prior assessments and a prior judgment against S & W Services, Inc.
2. The Trial Judge erred in denying the motion for directed verdict at the termination of Plaintiffs case.
3. The Trial Judge erred in not requiring a determination of the amount of taxes collected.
4. The Trial Judge erred in determining that the Defendant “willfully” failed to remit taxes.
5. The Trial Judge erred in assessing the liability for the subject sales taxes, etc. against the Defendant.

LAW AND ANALYSIS

Whether La. R.S. 47:306.1 actually provided an exemption to Tigator or Bayou Kritter is not directly pertinent to whether Mr. Albert, as a corporate officer, became liable for the payment of S & W’s tax debt. The extent of S & W’s tax debt was litigated in a prior suit, resulting in a judgment in favor of the parish. The judgment against S & W has become res judicata and establishes that a certain and specified amount of sales tax was due WBRP by S & W for the pertinent time period. Therefore, the only consideration in this appeal is whether the trial court properly applied La. R.S. 33:2845.1, which provided as follows:

A. Notwithstanding any other provision of law to the contrary, if any corporation fails to file returns or to remit sales and use taxes required to be filed and remitted under any law or under any ordinance of a political subdivision in a parish which has a single sales and use tax collector for all political subdivisions in the parish, the single tax collector of such political subdivision is authorized, as an alternative means of enforcing collection, to hold those officers or directors who have direct control or supervision of such taxes or who are charged with the responsibility of filing such returns and remitting such taxes and who willfully fail to remit or account for such taxes collected, personally liable for the total amount of such taxes collected, and not accounted for or not remitted, together with any interest, penalties, and fees accruing thereon. Collection of the total amount due may be made from any one or any combination of such officers or directors who willfully fail to remit or account for such taxes withheld or collected.
|,;B. A corporation by resolution of the board of directors may designate an officer or director having direct control or supervision of such taxes or charged with the responsibility of filing such returns and remitting such taxes, and such resolution shall be filed with the secretary of state. [Emphasis supplied.]

Since the liability of the corporate officer depends on the liability of the corporation, among other factors, the tax liability of the corporation must first be established, in a suit based on La. R.S. 33:2845.1. The plaintiff/tax collector, in the instant case, did in fact establish the tax liability of S & W by introducing the WBRP sales tax assessments and the judgment rendered thereon. These documents were relevant and properly admitted.

All parties agree that in order to satisfy La. R.S. 33:2845.1, it must also be established that the corporation actually collected the taxes at issue, and that there was a “willful” failure to remit same. The trial court found sufficient evidence presented through the testimony of Mr. Bergeron, the WBRP tax collector, Ms. Deaton, the WBRP revenue agent who audited S & W’s records, and Ordrie Ortego, the S & W business advisor, that the taxes in question had been collected by S & W and were willfully diverted from payment of the WBRP sales tax assessment by the issuance of a refund by S & W to Tigator.

|7In reviewing a trial court judgment, the appellate courts of the State of Louisiana are authorized by the constitution to review both law and facts. La. Const, art. V. § 10(B). Am appellate court may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In applying this test, a reviewing court must do more that simply review the record for some evidence that supports or controverts the trial court’s finding. Mari v. Hill, 505 So.2d 1120, 1127 (La.1987). Furthermore, to reverse a factual determination, the appellate court must find that a reasonable factual basis for the finding of the trial court does not exist in the record and that the record establishes that the finding is clearly wrong or manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978).

The trial court specifically stated in reasons for judgment:

I do believe as a matter of fact that there was tax that was collected by S & W and was failed to be remitted willfully by Mr. Albert.
... Obviously there was an amount that was collected or there would not have been a remittance back to Tigator’s, if it hadn’t been collected.

The record reflects that on July 15, 1999, after completing the audit of S & W’s records, WBRP Revenue Agent, Kimberly Deaton, and WBRP Revenue Director, J. Roger Bergeron, met with Mr. Albert, along with their respective attorneys. At that time, the audit results were disclosed to Mr. Albert. He was informed by the WBRP officials that it was their conclusion that $67,369.09 in sales tax had been collected by S & W, which had not been remitted to the parish. On that same day, S & W issued a check in the |samount of $67,369.09 to Tigator, signed by Mr. Albert, with the notation, “For Refund Sales Tax.”

The defendant corporate officer did not favor the trial court with his testimony or other evidence of his state of mind. Kimberly Deaton’s testimony, relative to the exit conference conducted with Mr. Albert, and her denial of having informed Mr. Albert he could refund the taxes to Tigator, was available to the court. Based on the ruling of the trial court in favor of the parish, it can be concluded that he evaluated the credibility and accepted the testimony of Ms. Deaton on these points. See Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993); Tauzin v. Claitor, 417 So.2d 1304, 1309 (La.App. 1 Cir.), writ denied, 422 So.2d 423 (La.1982).

Moreover, the trial court could have adjudged “willfulness.” Willfulness is a state of mind that a trial court must discern and determine from the documents and testimony, including the credibility of the witnesses. Willfulness is, of course, on the opposite end of the spectrum from accidental or negligent action. It may be said to be beyond intentional action in that the willful actor desires the consequences. “Willfulness” in this case is an intentional act with the desired consequence of avoiding remittance to the taxing authority. It is reasonable to so find by virtue of the issuance of the check to Tigator designated as a “refund” of “sales tax,” signed by Mr. Albert, in the amount of the outstanding tax due WBRP, as determined by the audit.

Thus, we can conclude there is supporting evidence for the trial court’s finding of fact and application of the law.

The trial court was certainly mindful of the defendant’s argument that some of these issues arose because of the inability of S & W to program its computer to invoice different rates on different items. The response of S & W’s management to that inability was an arbitrary assignment oflspercentage of goods and services. Any resulting problem is of their own making and one for which they have to assume responsibility. The trial court after hearing all the testimony and considering the evidence, accepted the audit conducted by the taxing authority.

After a thorough review of the record presented on appeal, we conclude that there is a reasonable factual basis for the finding of the trial court and that the record establishes that the finding is not clearly wrong or manifestly erroneous. Therefore, we adhere to our standard of review and affirm the decision of the trial court.

CONCLUSION

For the reasons assigned herein, the judgment of the trial court is affirmed; all costs of this appeal are to be borne by appellant, Preston J. Albert, Jr.

AFFIRMED.

FOIL, J., dissents.

MCCLENDON, J., dissents and assigns reasons.

11 McCLENDON, Judge,

dissents.

In reviewing this case, we must begin with the well-settled premise that taxing statutes must be strictly construed against the taxing authority. Goudchaux/Maison Blanche, Inc. v. Broussard, 590 So.2d 1159, 1161 (La.1991). Therefore, to prevail herein under LSA-R.S. 33:2845.1 A, the plaintiff had the burden of proving by a preponderance of the evidence two essential elements of its cause of action. That is, it had to show by a preponderance of the evidence that the taxes were “collected” and the defendant “willfully” failed to remit the taxes. I believe the plaintiff failed to prove the willful element of its cause of action. On that basis, I respectfully dissent without reaching the issue of whether the plaintiff proved that the taxes were actually collected.

By letters dated November 6, 1996, the Louisiana Department of Revenue (hereinafter the “Department”) authorized Tigator, Inc. and Bayou [ ¡¡Kritter, Inc., Louisiana corporations domiciled in West Baton Rouge Parish, to remit state sales and use taxes on purchases of tangible personal property directly to the Department pursuant to LSA-R.S. 47:306.1. The effective date of the letters was July 3, 1996. Tigator and Bayou Kritter provided copies of these letters to S & W Services, Inc., a Louisiana corporation with facilities in West Baton Rouge Parish, and requested that S & W not invoice them for sales taxes on tangible personal property used in servicing and repairing their 18-wheel tractor-trailer rigs. Prior to the effective date of the Department’s letters, S & W had collected an 8% sales tax on all transactions with Tigator and Bayou Kritter, 4% of which was collected for the State of Louisiana and 4% for West Baton Rouge Parish. In an effort to comply with the letters from the Department, in September of 1996, S & W began collecting a 4% sales tax on all parts and labor it supplied to Tigator and Bayou Kritter, and did so throughout the remainder of the audit periods. With respect to its other customers, it continued to collect an 8% sales tax, 4% for the State of Louisiana and 4% for West Baton Rouge Parish.

The Sales and Use Tax Department for the Parish of West Baton Rouge conducted audits of S & W for the periods of January of 1996 through September of 1998 and October of 1998 through July of 1999. As a result of these audits, it determined that 5 & W owed sales tax on the parts used in servicing and repairing tractor-trailers for Tigator and Bayou Kritter and issued assessments to S & W in October of 1999 and November of 1999. S & W did not appeal the assessments.

On August 8, 2000, J. Roger Bergeron, in his capacity as Director of 13the Sales and Use Tax Department for the Parish of West Baton Rouge (hereinafter the “Parish”) filed suit against S & W for its tax debt and obtained a judgment in the sum of $91,723.86, plus penalties, interest and attorney’s fees. S & W did not appeal that judgment. Subsequently, a judgment debtor examination revealed that S & W, which ceased operations in July of 1999, had no assets.

Pursuant to LSA-R.S. 33:2845.1 A, the Parish filed suit against Preston W. Albert, Jr., who at all pertinent times was president and chief executive officer of S & W, seeking to recover the taxes owed by S 6 W from Mr. Albert. After hearing the matter, the trial court rendered judgment in favor of the Parish and against Mr. Albert in the sum of $91,723.86, plus interest, penalties and attorney’s fees. Mr. Albert appealed, asserting that the trial court erred in imposing liability on him as the Parish failed to carry its burden of proving that S & W collected and willfully failed to remit the taxes at issue.

In reviewing a trial court judgment, the appellate courts of the State of Louisiana are granted by the constitution the authority to review both law and facts. La. Const, art. V. § 10(B). An appellate court may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989).

14At trial, Kimberly Deaton, who conducted the audits for the Parish, testified that, during the audit periods, S & W charged Tigator and Bayou Kritter a 4% sales tax on all parts and labor, but its invoices did not indicate whether the tax was collected for the State of Louisiana or West Baton Rouge Parish. However, S & W’s general leger showed that S & W remitted sales tax to both the State of Louisiana and to West Baton Rouge Parish. Ms. Deaton testified that she concluded that the 4% tax was collected entirely for West Baton Rouge Parish because, during her initial conversation with Mr. Albert at the beginning of the audits, Mr. Albert showed her the letters from the Department and said he was proceeding under the requirements of LSA-R.S. 47:306.1. Since the letters were from the State of Louisiana, Ms. Deaton assumed S & W was collecting no tax for the State of Louisiana and the entire 4% sales tax was collected for West Baton Rouge Parish. However, Ms. Deaton admitted that Mr. Albert never told her that S & W was charging the entire 4% sales tax on behalf of West Baton Rouge Parish.

At trial, J. Roger Bergeron, the Director of the Sales and Use Tax Department for the Parish of West Baton Rouge and Ms. Deaton’s immediate supervisor, explained the Parish’s position as follows, “[F]our percent tax was collected on transactions throughout the audit period, which we believe to be West Baton Rouge Parish tax, and the tax was not fully remitted on transactions we believe to be fully taxable.” He testified further that the Parish relies solely on Ms. Deaton’s testimony concerning Mr. Albert’s comments at her initial visit to S & W in asserting that the entire sum was collected on behalf of West Baton Rouge Parish.

Mr. Ordrie Ortego, a retired accountant, testified on behalf of the defendant. Mr. Ortego worked, at all pertinent times, for S & W as a 1 ¡¡consultant, advising the company about financial, business and tax matters. Mr. Ortego testified that the application of LSA-R.S. 47:306.1, as authorized by the Department’s letters dated November 6, 1996, required S & W to collect and remit taxes only on the labor costs that it billed to Tigator and Bayou Kritter. However, due to its accounting system, S & W could assess only one tax rate to each customer for all services and materials it provided to that customer. Therefore, it could not assess 8% on labor and no tax on parts as required by LSA-R.S. 47:306.1. To manage this inadequacy in its accounting system, S & W reviewed its transactions with Tigator and Bayou Kritter and determined that, of the services and repairs it provided to Tigator and Bayou Kritter, approximately one-half of the costs were attributable to parts and one-half were attributable to labor. On this basis, S & W estimated the tax liability of Tigator and Bayou Kritter was 8% of 50% of its costs and collected the estimated sums by assessing a 4% tax on all parts and labor, 2% for West Baton Rouge Parish and 2% for the State of Louisiana. Although 4% was charged on the entire amount, S & W only remitted to the State of Louisiana and West Baton Rouge Parish the tax due on the labor element of Tigator’s and Bayou Kritter’s invoices. It paid no taxes to either the State of Louisiana or to West Baton Rouge Parish on the parts used to service and repair the tractor-trailers. S & W, Tigator and Bayou Kritter agreed that, on a monthly basis, S & W would compute the actual tax liability and refund any overcharged sums; however, S & W had not refunded any sums prior to the audit. Upon completion of the Parish’s audits in July of 1999, S & W immediately refunded the sums collected in excess of the taxes due on the labor expenses.

The Parish asserts that the act of refunding the taxes, rather than remitting them to the Parish, alone is sufficient to prove the willful failure to Lremit. I disagree. S & W simply developed and executed a plan to act within the dictates of the letters authored by the Department in November of 1996. The delay in refunding funds until the auditor for the Parish advised S & W that it continued to hold moneys paid in excess of the tax liability for labor costs does not constitute a willful failure to remit or account for taxes collected. Furthermore, even if S & W’s interpretation of the Department’s letters was erroneous as asserted by the Parish, such is also insufficient to constitute the willful act of not remitting collected taxes. This record is void of any evidence that Mr. Albert or any employee of S & W willfully failed to remit or account for taxes collected. Therefore, the trial court manifestly erred in concluding that the Parish proved that any failure to remit taxes was willful, an essential element of the Parish’s case.

Undisputedly, the review of an appellate court is limited to manifest or clear error. Stobart v. State, 617 So.2d 880, 882 (La.1993). However, an appellate court is not required to follow blindly the factual determinations of a trial court without discerning whether the court’s discretion in evaluating facts and credibility has been abused. The great latitude and discretion afforded the trier of fact must always be buttressed by sound judgment. Herein, the factual determinations of the trial court are not supported by evidence of record. Therefore, I would reverse the judgment of the trial court.

      . La. R.S. 47:306.1 provides:
      Persons, as defined in this Chapter, engaged in the business of transporting passengers or property for hire in interstate or foreign commerce, whether by railroad, railway, automobile, motor truck, boat, ship, aircraft or other means, may, at their option under rules and regulations prescribed by the collector, register as dealers and pay the taxes imposed by R.S. 47:302 A on the basis of the formula hereinafter provided.
      Such persons, when properly registered as dealers, may make purchases in this state or import property into this state without payment of the sales or use taxes imposed by R.S. 47:302 A at the time of purchase or importation, provided such purchases or importations are made in strict compliance with the rules and regulations of the collector. Thereafter, on or before the 20th day of the month following the purchase or importation, the dealer shall transmit to the collector, on forms secured by him, returns showing gross purchases and importations of tangible personal property, the cost price of which has not previously been included in a return to the state. The amount of such purchases and importations shall be multiplied by a fraction, the numerator of which is Louisiana mileage operated by the taxpayer and the denominator of which is the total mileage, to obtain the taxable amount of tax basis. This amount shall be multiplied by the tax rate to disclose the tax due. [Emphasis supplied.]

      . The parties do not dispute that Tigator and Bayou Kritter operated almost exclusively in interstate commerce. Although the tax periods at issue in the instant case involved the years 1996 through 1998, it is interesting to note that it was established in Tigator, Inc. v. Police Jury of West Baton Rouge Parish, 94-1771 (La.App. 1 Cir. 5/5/95), 657 So.2d 221, writs denied, 95-2126, 95-2172 (La. 11/17/95), 663 So.2d 712, that for the years 1990 through 1992 Bayou Kritter had 100% interstate hauling business and Tigator had between 99.80% and 99.89% interstate hauling business; only between 0.11% and 0.20% of Tigator's business was intrastate. Because the actual sales tax obligation of S & W for sales taxes charged to Tigator and Bayou Kritter was not an issue in the instant lawsuit, no similar testimony was received regarding the percentage of these companies’ interstate hauling business.

      . Prior to that time, S & W collected a total of 8% sales tax from Tigator and Bayou Kritter (4% for the State of Louisiana and 4% for West Baton Rouge Parish). After that time, S & W began invoicing Tigator and Bayou Krit-ter for sales tax, which amounted to only 4% of invoice totals. S & W continued to invoice other customers the full 8% in sales tax.

      . Mr. Ortego testified they were unable to make the computer software S & W used for invoicing customers calculate different rates on different items within the invoice; i.e., only one tax rate could be applied to the entire invoice. Thus, S & W could not print an invoice that taxed parts at 0% and labor at 8%.

      . The three corporations had an agreement that at some later time the exact figures would be determined and any necessary payment or refund would be made between the companies. Nevertheless, sales tax returns in evidence showed 4% sales tax on the gross amount of labor charges was remitted to both the parish and the state.

      . There was no dispute among the parties that the percentage of sales tax collected was not stated on the invoices at issue; a dollar amount of tax charged was stated only, and this tax amounted to 4% of the invoice total.

      . Although the parish tax collector, J. Roger Bergeron, conceded that if the parts had been sold separately, by a parts retailer for example, no sales tax should have been collected, Mr. Bergeron took the position that once the parts were incorporated into a repair service, the overall object of the transaction was the repair service and that service constituted the classification under which the entire transaction should be evaluated for sales tax purposes. Since the sale of services is not subject to the provisions of La. R.S. 47:306.1, the statute does not excuse the payment of sales tax on services. See International Paper Company v. East Feliciana Parish School Board, 2002-0648 (La.App. 1 Cir. 3/28/03), 850 So.2d 717, writ denied, 2003-1190 (La.6/20/03), 847 So.2d 1235, relative to resolution of this issue in favor of the taxing authority.

      . Pursuant to 2003 La. Acts, No. 551 § 1, effective under § 5 to all tax which becomes due on and after July 1, 2003, La. R.S. 33:2845.1 was repealed and re-enacted in substantially the same form in La. R.S. 47:337.46.

      . In fact, counsel for defendant/appellant stated to the trial court that no one was "contesting the liability of S & W or the judgment.” DefendanVappellant’s contention is more accurately that the judgment against S & W does not automatically amount to personal liability of the corporate officer, but rather, collection of the tax and willful failure to remit same must be proven as well.

      . In brief to this court, plaintiff/appellee listed the elements required to be established by La. R.S. 33:2845.1 as follows: (1) S & W was a corporation; (2) WBRP through its Sales and Use Tax Department is the single sales and use tax collector for all political subdivisions of WBRP; (3) S & W failed to remit sales/use taxes required to be remitted under the ordinances of WBRP; (4) Mr. Albert was an officer or director of S & W; (5) Mr. Albert had direct control or supervision of S & W's taxes or had the responsibility of filing tax returns and remitting taxes; (6) S & W collected from its customers the sales/use taxes at issue; and (7) the failure to remit these taxes was willful. Of these factors, whether the taxes were collected and whether there was a willful failure to remit are the only issues seriously argued in this appeal.

      . The majority refers to Tigator, Inc. and Bayou Kritter, Inc. as companies, and refers to S & W, Inc. as a repair service. However, at all times pertinent to this litigation, these three entities were valid Louisiana corporations.

      . It is noteworthy that there is no evidence in the record of any official notification to S & W by the Parish of additional tax liability on behalf of S & W prior to S & W's act of refunding the excess taxes collected to Tigator and Bayou Kritter.

      . I do not reach the issue of whether the taxes were ever collected having found that the willful element of the Parish's case was not proven.


author: | .THOMAS F. DALEY, Judge.

text:
    Steven J. QUICK and Lisa R. Quick, His Wife, Individually and on Behalf of their Minor Children Bradley, Jake and Bryce Quick v. RONALD ADAMS CONTRACTOR, INC., and Presco Amphibious Equipment, Inc.
    No. 03-CA-751.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.
    Order Granting Rehearing in Part Dec. 15, 2003.

      Brian J. Marceaux, Julius P. Hebert, Jr., Herbert & Marceaux, Houma, LA, Counsel for Plaintiff/Appellant, Presco Amphibious Equipment, Inc.
    John Nickerson Chappuis, Ginger H. Welborn, Voorhies & Labbe, Lafayette, LA, Counsel for Defendant/Appellee, Eagle Pacific Insurance Company.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   | .THOMAS F. DALEY, Judge.

Presco Amphibious Equipment, Inc. (Presco), third party plaintiff, appeals the grant of summary judgment in favor of third party defendant, Eagle Pacific Insurance Company (Eagle), on the issue of duty to defend. After thorough consideration of the law and evidence, we reverse, finding that Eagle owed Presco a defense to this suit.

Eagle issued Presco both a Workers’ Compensation Liability policy and an Employers Liability Insurance Policy. Plaintiff, Steven Quick (Quick), sued his employer, Presco, in tort for injuries he allegedly received while working in the course and scope of his employment. Quick previously claimed and was awarded Workers’ Compensation benefits under Presco’s Workers’ Compensation Liability Policy with Eagle, after which he filed the tort suit against Presco alleging tort liability based on negligence and intentional tort. Presco filed a Third Party Demand against Eagle, alleging the existence of an Employers Liability Insurance Policy that provided coverage for the alleged incident, and arguing that Eagle owed Presco the duty to defend the Quick tort suit. Eagle filed a Motion for Summary |3Judgment, alleging two coverage exclusions in the Employers Liability Insurance Policy it issued to Presco; one exclusion for matters covered under workers’ compensation, and another exclusion based upon intentional acts. Eagle argued that since there was no coverage for the alleged incident, it owed no duty to defend.

The trial court granted Eagle’s Motion for Summary Judgment on June 6, 2002. The Notice of Judgment was sent to an old address for Presco’s counsel, not the current address that appeared on all pleadings in this case. Presco filed a Motion for Summary Judgment on November 25, 2002, which was denied considering the Summary Judgment granted in favor of Eagle on June 6, 2002. Presco filed a Motion for New Trial for Re-Argument purposes only on December 3, 2002, which was denied on February 7, 2003.

ANALYSIS

As this court recently stated in Houghtaling v. Richardson, 01-208 (La.App. 5 Cir. 10/17/01), 800 So.2d 1012:

Generally, the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. Yount v. Malsano, [627 So.2d 148 (la.1993)]supra. The insurer’s duty to defend suits brought against its insureds is determined by the allegations of the plaintiffs petition, and the insurer is obligated to defend the insured, unless the petition unambiguously excludes coverage. The allegations in the petition are to be construed liberally to determine whether they state grounds bringing the claims within the scope of the insurer’s duty to defend. Assuming all the allegations of the petition to be true, if there would be coverage under the policy and also liability to the plaintiff, the insurer must defend the suit, regardless of the outcome of the suit. The duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. The duty to defend is determined solely from the plaintiffs pleadings and the face of the policy, without consideration of extraneous evidence. Yount v. Malsano, supra; KLL Consultants, Inc. [v. Aetna Cas. & Sur. Co. of Illinois, 99-14(La.App. 5 Cir. 6/1/99), 738 So.2d 691], supra.

Eagle sold Presco both a Workers’ Compensation Liability Policy and an Employers’ General Liability Policy. We find that Eagle had a duty to defend 14Presco against Quick’s suit, and that this duty arises out of the Workers’ Compensation Liability Policy itself.

Quick’s Petition alleged that he was an employee of Presco, and was instructed to change the motor that powered the tree cutter on one of Presco’s swamp buggies. He alleged that the motor weighed approximately 200 pounds, and he was not provided any manual or mechanical assistance to remove and lift the motor. He alleged that the swamp buggy crews were shorthanded and that the labor shortage was known to Presco. He further alleged that Presco knew or should have known that the cutter mowers were breaking frequently on the job and needed to be replaced with regularity, and that the shorthanded personnel were sometimes required to change the 200 pound motors without assistance. Quick alleged that Presco knew not to require him, who was 5'2" and weighed only 114 pounds, to “manhandle” a motor without assistance, which Quick alleged was “substantially certain” to result in injury to him.

Quick alleged that his injuries were caused “solely, proximately and directly by the negligence and responsibility under the law of [defendant Presco] for failing to furnish [plaintiff] with a safe place to work, for the commissions [sic] and/or omissions of defendants ... for allowing operation to continue while shorthanded, for allowing conditions which were hazardous, dangerous, unsafe, for failure to warn of these operations and conditions, for failure to properly inspect and/or maintain the work premises, failure to have adequate and proper safety procedures, failure to comply with pertinent safety statutes, laws, standards and regulations, failure to provide competent crew and equipment, failure to provide proper training, and any other acts or omissions as may be learned through discovery or proved at trial.”

Presco purchased two types of liability insurance from Eagle: a Workers’ Compensation Liability Policy, and an Employers Liability Insurance Policy. Both | ..¡policies purported to cover injury to an employee while in the course and scope of employment (see Part Two — Employers Liability Insurance, Section A). We agree with the trial court that coverage was not afforded under the Employers Liability Insurance Policy because of the applicability of the “workers compensation” exclusion in that policy. Instead, we find that the Workers’ Compensation Liability Policy provided the duty to defend.

In Eagle’s policy to Presco, Part One— Workers Compensation Insurance states, under Section C, entitled ‘We Will Defend:”

We have the right and duty to defend at our expense any claim, proceeding or suit against you for benefits payable by this insurance. We have the right to investígate and settle these claims, proceedings or suits.
We have no duty to defend a claim, proceeding or suit that is not covered by this insurance.

We find that this language in the Workers’ Compensation Liability Policy is sufficiently broad to encompass a duty to defend Presco against this suit. This is a “suit” by Quick against Presco (“you”), alleging the facts of an injury and damages to Quick that are covered by workers compensation insurance.

Workers’ compensation is an employee’s exclusive remedy against an employer for injuries arising in the course and scope of employment resulting from negligence. LSA-R.S. 23:1032. Eagle’s Employers Liability Insurance Policy issued to Presco clearly excludes from coverage obligations imposed by Workers’ Compensation Law, and to the extent that Quick’s Petition alleges that he was in the course and scope of his employment, and injured by Presco’s negligence, the Eagle Employers Liability Insurance Policy clearly excludes coverage because coverage is provided by the Workers’ Compensation Liability Policy issued by Eagle to Presco.

We find that Quick’s Petition did not allege an intentional tort. The Supreme Court in Reeves v. Structural Preservation Systems, 731 So.2d 208, 211 (La.1999), stated that the words “substantially certain to happen” did not allege an intentional tort. It is clear, considering the Supreme Court’s definition in Reeves, that Quick’s Petition did not allege an intentional tort, nor injury intentionally caused by Presco. The mere recitation of the words “substantially certain,” in Quick’s Petition, do not make these allegations ones of intentional tort. While the allegations of the petition are liberally interpreted in determining whether they set forth grounds that bring the claim within the scope of insurer’s duty to defend a suit brought against an insured , allegations of fact, and not conclusions, contained in the petition, determine the obligation to defend. Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App. 2 Cir. 3/31/99), 731 So.2d 482.

We agree with the trial court’s analysis that coverage is not afforded by the Employers Liability Insurance Policy because of Exclusion 4, which excludes coverage for any obligation imposed by a workers compensation law. But considering the entirety of the circumstances, most significantly that Eagle provided Presco with both Workers’ Compensation Liability and Employers Liability coverage, we find untenable Eagle’s position that it does not owe Presco a defense against this particular suit.

Accordingly, the judgments of the trial court are reversed.

REVERSED.

REHEARING GRANTED IN PART

Considering Third Party Plaintiff/Appellant Presco Amphibious Equipment, Inc.’s Motion For Rehearing, REHEARING IS GRANTED for the limited purpose of amending the disposition of the opinion rendered by this Court in the above captioned matter on November 25, 2003 to read: REVERSED; REMANDED FOR FURTHER PROCEEDINGS. In all other respects, the motion for rehearing is denied.

      . Yount v. Maisano, 627 So.2d 148 (La.1993).


author: ¡.CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. John D. PEARSON.
    No. 2003-KA-652.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.
    Rehearing Denied Jan. 9, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, Counsel for State.
    Jane L. Beebe, Gretna, LA, Counsel for defendant-appellant.
    John D. Pearson, St. Gabrial, LA, In proper person.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   ¡.CLARENCE E. McMANUS, Judge.

Defendant, John Pearson, was charged in a bill of information on September 15, 2000 with possession of cocaine in violation of LSA-R.S. 40:967(C). Defendant initially pled not guilty but later pled guilty in connection with a plea agreement. On November 3, 2000, defendant was sentenced to five years at hard labor in accordance with the plea agreement. His sentence was deferred until November 17, 2000 at which time a multiple bill hearing was scheduled.

As part of the plea agreement, the State agreed to multiple bill defendant as a third felony offender and the court agreed to impose the same five-year sentence on enhancement. However, it was agreed that, in the event defendant failed to appear on November 17, 2000, the State would multiple bill him as a fourth felony offender and there would be no guarantee as to his enhanced sentence. Defendant failed to appear on November 17, 2000 and an attachment was issued for his arrest.

Defendant appeared in court one year later on November 16, 2001. On that date, the State filed a multiple offender bill of information alleging defendant to be a third felony offender despite the earlier agreement. The State based the multiple | obill on defendant’s 1990 conviction for possession of cocaine and 1995 conviction for theft. Defendant stipulated to the multiple bill and the trial court found him to be a third felony offender after engaging in a plea colloquy concerning his rights. Defendant’s original sentence was vacated and he was resentenced as a multiple offender to seven years at hard labor.

Defendant was granted an out-of-time appeal on April 13, 2003.

FACTS

Defendant entered a guilty plea to the charged offense of possession of cocaine and, therefore, little is known about the facts and circumstances of the offense. The bill of information alleges the offense occurred on August 28, 2000. During the plea colloquy, the State asserted it would prove that on that date defendant was the driver of an automobile stopped for a possible hand-to-hand transaction. After defendant exited the car, two rocks of cocaine were seen in plain view in the driver’s seat where defendant was sitting.

On appeal, defendant’s appellate counsel filed a brief pursuant to the procedure approved by the.United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), discussed in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990), approved by State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, and adopted by this Court in State v. Bradford, 95-929, 95-930 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108. Specifically, counsel asserts she cannot find any non-frivolous issues to raise on appeal and seeks to withdraw as defense counsel. In accordance with State v. Bradford, supra, this Court sent defendant a certified letter advising him that his appellate counsel found no non-frivolous issues for appeal and gave defendant an opportunity to file a supplemental brief. Defendant has responded by filing a supplemental brief.

|4In State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242, the Louisiana Supreme Court revisited the Anders procedures outlined in State v. Benjamin, supra, and adopted by this Court in State v. Bradford, supra, and stated that the brief filed by defense counsel “must review not only the procedural history of the case and the evidence presented at trial but must also provide ... a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Defense counsel is required to “cast an advocate’s eye over the trial record and consider whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, supra at 242.

In her appellate brief, defense counsel notes she reviewed the procedural history of the case and noted there were no pre-trial rulings. In her brief, she addressed and dismissed as a possible issue the excessiveness of defendant’s sentence. She further noted that she found no errors patent. Defense counsel has satisfied the requirements of Jyles in that her brief adequately reviews the procedural history of the case and the transcripts of the various hearings, and provides a detailed assessment of whether the appeal is worth pursuing.

When an Anders brief is filed, the appellate court must independently review 1) the bill of information or indictment to insure the defendant was properly charged; 2) all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; 3) all pleadings in the record; and 4) all transcripts to determine if any ruling provides an arguable basis for appeal. State v. Bradford, 676 So.2d at 1110-1111.

|sIn the instant case, the record reveals defendant was properly charged in the bills of information and was present at all crucial stages of the proceedings. He was properly advised of his rights before he waived them and pled guilty to the underlying offense and stipulated to the multiple bill. Additionally, the enhanced sentence imposed by the trial court is legal as authorized by LSA-R.S. 15:529.1(A)(l)(b)(i). Accordingly there are no errors or issues, which if raised, would “arguably support an appeal.” State v. Haynes, 96-84 (La.App. 5 Cir. 6/25/96), 676 So.2d 1120, 1122. We therefore grant defense counsel’s Motion to Withdraw.

Defendant raises several issues in his supplemental brief. A discussion of defendant’s claims and an errors patent review follow.

PRO SE ASSIGNMENT OF ERROR NUMBERS ONE AND TWO

By his first two assignments of error, defendant argues his guilty plea on the instant offense of possession of cocaine is defective because the trial court failed to ascertain whether his plea was knowing and intelligent. He asserts the trial court did not make an independent determination of whether he was informed of and understood his rights before he waived them. He further claims there was no showing he was advised of and waived his rights.

A guilty plea is not valid unless the defendant voluntarily and intelligently relinquishes his known rights. Before accepting a guilty plea, the trial court must make an “independent determination of whether the defendant’s plea is made knowingly and intelligently through a colloquy wherein the defendant is questioned about his decision and the constitutional rights he is waiving.” State v. Montalban, 00-2739 (La.2/26/02), 810 So.2d 1106, 1109, cert. denied, 537 U.S. 887, 123 S.Ct. 132, 154 L.Ed.2d 148 (10/7/02).

| (¡For a guilty plea to be valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation, and right against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Montalban, supra. The Louisiana Supreme Court has stated, “[Wjhile an understanding of the triad of rights may be the sine qua non for the acceptance of a guilty plea, it is also true that other factors may have a bearing on the validity of the plea. A mere recitation of rights does not always insure the intelligent and voluntary nature of the plea.” State v. Halsell, 403 So.2d 688, 690 (La.1981).

In the present case, the guilty plea transcript indicates a thorough colloquy. The colloquy between the trial court and defendant reveals defendant was 41 years old at the time he entered the plea and had 12 years of schooling. The trial court confirmed that defendant’s attorney had advised defendant of his right to a trial by jury, right to confrontation and right against self-incrimination and that defendant told his attorney he understood these rights and wished to waive his rights. The trial court inquired whether defendant had been forced, intimidated, coerced or induced to plead guilty to which defendant replied, “none whatsoever.” The trial court then again advised defendant of his right to a trial by judge or jury and right to confrontation. The trial court did not again specifically advise defendant of his right against self-incrimination but went on to advise defendant of his right to an attorney at trial and on appeal and his right to an appointed attorney if he was indigent. The trial court further advised defendant of the maximum sentence and reviewed the details of the plea agreement with regard to the sentence defendant would receive.

Throughout the colloquy, the trial court asked defendant if he understood his rights and the fact that he was giving them up by pleading guilty to which 17defendant consistently responded, “Yes, sir.” The trial court also specifically inquired into the waiver of rights form executed by defendant. Defendant acknowledged that he had read and signed the form, which specifically advised defendant of his three Boykin rights. At the conclusion of the colloquy, the trial court stated it found defendant made a “knowing, intelligent, free and voluntary” guilty plea.

Accordingly, the record sufficiently shows defendant was advised of his rights and made a knowing and intelligent wavier of his rights. These assignments of error are without merit.

PRO SE ASSIGNMENT OF ERROR NUMBERS THREE AND FOUR

Defendant argues the State improperly used the same evidence, which had previously been used in another enhancement proceeding, to prove his multiple offender status and enhance his sentence. Specifically, defendant contends his first predicate conviction, possession of cocaine, was used to enhance his second predicate conviction, theft. Therefore, he claims the State could not, under the theory of double enhancement, use the predicate conviction for possession of cocaine again to enhance his current conviction.

Defendant asserts his 1990 predicate conviction for possession of cocaine was used to enhance his 1995 predicate conviction for theft; however, nothing in the record supports defendant’s assertion. Furthermore, there is no prohibition against using the same conviction multiple times in separate multiple offender proceedings to sequentially establish defendant’s multiple offender status and enhance defendant’s sentence as to the new crime. See, State v. Brooks, 99-478 (La.App. 3 Cir. 12/8/99), 756 So.2d 336, 342-343, writ denied, 00-1492 (La.5/25/01), 792 So.2d 750.

| «Defendant also contends that his enhanced sentence is illegal and unconstitutional because it exceeds the maximum sentence allowable for his underlying conviction for possession of cocaine. As a third felony offender, defendant faced a maximum sentencing exposure of ten years imprisonment. LSA-R.S. 15:529.1; 40:967(C). However, defendant received a sentence of seven years imprisonment, well within the sentencing provisions contained in LSA-R.S. 15:529.1.

Accordingly, these assignments of error are without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FIVE

Defendant alleges his plea to the multiple bill is invalid because he was not advised of “his right to be tried as to the truth thereof’ in connection with the multiple bill as required by LSA-R.S. 15:529.1.

Once a multiple offender bill of information had been filed, LSA-R.S. 15:529.1(D)(l)(a) requires that, “the court ... shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true.” This statute has been interpreted to require that a defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Also, implicit in this requirement is the additional requirement that defendant be advised of his constitutional right to remain silent. State v. Johnson, 432 So.2d 815, 817 (La.1983); State v. Bell, 03-217 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90.

Generally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error where the | gdefendant’s habitual offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Bell, supra. However, when the guilt of the defendant is proven by his own stipulation or admission to the habitual offender bill of information without having been informed of his right to a hearing or his right to remain silent, by either the trial court or his attorney, there is reversible error. Id.

At the multiple bill hearing, defense counsel advised that defendant wished to stipulate to the allegations contained in the multiple bill. Thereafter, the trial court entered into a colloquy with defendant. The trial court advised defendant of his right to. remain silent and his “right to a hearing at which the State has the burden of proving their allegations against you.” The trial court asked defendant if he understood that he was giving up these rights by pleading guilty to which defendant responded, “Yes, sir.” The trial court then reviewed the allegations of the multiple bill including the predicate convictions upon which the multiple bill was based.

The record shows the trial court fully complied with the requirements of LSA-R.S. 15:529.1(D)(l)(a) prior to accepting defendant’s stipulation or plea to the multiple bill. The mere fact the trial court did not use the same exact words of the statute in advising defendant of his right to a hearing is inconsequential. The trial court advised him of his right to a hearing and defendant expressly waived the right. This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBERS SIX AND SEVEN

By these assignments of error, defendant essentially argues the multiple offender statute is unconstitutional because it denies him of a right to a jury trial which is guaranteed by Article I, § 17 of the 1974 Constitution. He contends Imbecause the statute subjects him to punishment at hard labor, he is entitled to a jury trial.

In order to successfully challenge the constitutionality of a statute, the party attacking the statute must meet a three-tiered burden. First, the plea of unconstitutionality must be raised in the trial court. Second, the plea of unconstitutionality must be specially pleaded. Finally, the grounds outlining the basis of unconstitutionality must be particularized. State v. Mansion, 98-992 (La.App. 5 Cir. 4/27/99), 733 So.2d 1212, 1215, writ denied, 99-1545 (La.11/5/99), 751 So.2d 231; State v. Riche, 608 So.2d 639, 640 (La.App. 5 Cir.1992), writ denied, 613 So.2d 972 (La.1993). In the instant case, defendant did not raise the issue of unconstitutionality in the trial court and, therefore, he is precluded from raising the issue on appeal.

Additionally, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this ease.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.