author: I, PICKETT, Judge.

text:
    Robert WEINGARTNER v. LOUISIANA ICEGATORS.
    No. WCA 02-1181.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2003.
    Writ Denied Sept. 19, 2003.

      Robert L. Hackett, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant, Robert Weingartner.
    Michael Kevin Springmann, Attorney at Law, Covington, LA, for Defendant/Appel-lee, Louisiana Ice Gators.
    Court composed of NED E. DOUCET JR., Chief Judge and ULYSSES GENE THIBODEAUX and ELIZABETH A. PICKETT, Judges.
   FACTS

I, PICKETT, Judge.

On May 9, 2000, Robert Weingartner was employed by the Louisiana IceGators as a professional hockey player. On that date, Weingartner allegedly suffered injuries to his neck and head when he was hit from behind and pushed into some end boards during the course of a hockey game.

On July 6, 2001, Weingartner filed a disputed claim for compensation and the matter was sent to mediation. The parties were unable to fully resolve the matter in mediation and the matter was set for trial.

Prior to the trial, the employer filed a motion for summary judgment alleging that the claimant had violated La.R.S. 23:1208 by making false statements and misrepresentations for the purpose of obtaining workers’ compensation benefits. On May 30, 2002, a hearing on the motion was held. The workers’ compensation judge granted the employer’s motion for summary judgment, finding that the claimant had committed fraud. It is from this ruling that the claimant appeals.

DISCUSSION

In his sole assignment of error, the claimant contends that the workers’ compensation judge erred in rendering summary judgment.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Potter v. First Federal Savings & Loan Ass’n, 615 So.2d 318 (La.1993). A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there exists no genuine issue as to any material fact and that the 1 ¡.mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966; Haywood v. Louisiana Sugar Cake Products, 96-1151 (La.App. 3 Cir. 3/5/97); 692 So.2d 524.

Summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Facts are material if they determine the outcome of the legal dispute. The determination of the materiality of a particular fact must be made in light of the relevant substantive law. Rener v. State Farm Mut. Auto Ins. Co., 99-1703, (La.App. 3 Cir. 4/5/00); 759 So.2d 214.

In the present case, the issue before us is whether there is a genuine issue of material fact remaining concerning whether the claimant forfeited his rights to benefits by committing fraud in violation of La.R.S. 23:1208.

Under La.R.S. 23:1208, in order for there to be a forfeiture of benefits, the claimant must have: 1) made a false statement or representation; 2) willfully made the statement or misrepresentation; and 3) made the statement or misrepresentation for the purpose of obtaining or defeating any benefits or payments. Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95); 660 So.2d 7.

The burden in this summary judgment proceeding is on the moving party to establish the claimant violated La. R.S. 23:1208 and, therefore, movant is entitled to judgment as a matter of law.

In the memorandum attached to its Motion For Summary Judgment, the appellee claimed the claimant made false statements in his deposition which are clearly contradicted by his medical records. Specifically, the appellee argues that in his deposition, the claimant specifically denied that any doctor had ever told him he |3had a concussion before working for the Louisiana IceGators, denied he had ever been to the hospital after having a concussion, and denied receiving medical treatment for a concussion prior to May 9, 2000. Further, the claimant denied he had ever told a physician or medical care provider that he had problems thinking, concentrating, or remembering prior to the May 9, 2000 work accident. Appellee argues the medical records of Dr. Kim Edward Leblanc show these statements given at deposition are not true.

The appellee also alleges the claimant stated in his deposition that he could not rotate his head to the left and line his chin over his left shoulder, and that he could almost line his chin over his shoulder. The appellee argues video surveillance tape shows otherwise.

The workers’ compensation judge found the claimant committed fraud, although it is somewhat difficult to determine from her oral reasons to determine precisely the basis for the ruling. This court has conducted a de novo review of the record, as required by law, and we disagree with the conclusion of the workers’ compensation judge.

The employer alleges the claimant lied in his deposition when he denied any doctor had ever told him that he had a concussion before his May 9, 2000 accident. The employer further alleges the claimant lied in his deposition when he denied he received medical treatment for any concussion prior to his May 9, 2000 accident. The employer argues the records and deposition of Dr. Kim Edward LeBlanc prove otherwise. Having reviewed Dr. LeBlanc’s deposition, we disagree that his testimony establishes the claimant made false representations. Dr. LeBlanc’s testimony does |4not establish he told the claimant he had diagnosed a concussion. Regarding his prior examinations of the claimant, Dr. LeBlanc, who is the team physician, testified as follows:

Q: Okay. I’d like to turn to the script dated April 13, 2000. Do you recall why Mr.-
A: What day was that again?
Q: April 13, 2000
A: Okay.
Q: Do you recall why Mr. Weingarter came to see you on or about that date?
Not really, no. <
Okay. &
A: I mean, if you’d jog my memory perhaps. I know I saw him. I don’t have any recollections.
Q: Okay, Doctor. Other than what’s recorded on the script itself?
A: No, the only thing is that script is I remember — the thing is sometimes when I write those scripts I may see one of the Ice Gators. I may or may not see them at that time. Sometimes if we’re following them like I’ve seen him after a game or something like that and usually what I would do is tell the trainer that if he doesn’t improve that I want the MRI, just let me know. So what he’ll let me know and he’s in touch with me. So what happens is I won’t necessarily see him on that particular day if I don’t think it’s necessary, and I’ll just write the script, and they’ll get the scan.
Q: I understand that. Do you recall the other occasion or any on the other occasions specifically where you rendered treatment to him for a concussion?
A: Well, at the Cajundome, yes, after a game or during a game I would have seen him, yes. I remember that.
IbQ: All right. So if he testified under oath that prior to May 9, 2000 he had never had any medical treatment for a concussion, he would have been incorrect in that testimony?
A: Well, no, not really. I mean, he didn’t — depends on how you define that. Usually a concussion needs no quote medical treatment unquote.

We find nothing in this testimony that impeaches the claimant’s deposition testimony. It is clear from the doctor’s deposition that the MRI ordered, and the information given to the doctor regarding prior concussions, could have likely come from the trainer. The claimant specifically stated in his deposition that he had been told by trainers on occasions prior to the May 9 injury that he had concussions. Further, there is nothing in the evidence that suggests the claimant directly told the team physician he had memory loss resulting from a concussion prior to May 9, 2000. The doctor noted there was memory loss, that the claimant was repeating himself, but does not state if that information came directly from the claimant, if it was noted by observation, or if the information came from the trainer. We further note this prior injury, for which a MRI was ultimately performed, was also an on the job injury. The employer was aware of it and, in fact, the claimant’s medical needs were addressed at the employer’s direction. This was an injury the team physician considered when determining, after the May 9, 2000 injury, that the claimant should no longer play ice hockey. It is obviously a fact of which the employer was aware and the claimant never tried to hide.

Since we find nothing in the team physician’s deposition that impeaches the claimant’s sworn testimony, the evidence certainly falls short of establishing fraud under 23:1208.

UThe appellee further argues the claimant lied about his physical limitations and the degree to which he could turn his head to the left and right. The appellee points to video surveillance which shows the claimant mowing a lawn which required him to move his head from side to side.

The claimant freely testified as to his activities regarding his lawn service and what he is physically required to do to operate that service. We find nothing inconsistent with his testimony regarding his physical limitations, what he would do, although it might be painful, and the video surveillance. Moreover, the claimant seeks workers’ compensation benefits because of his inability to play ice hockey as a result of the numerous concussions he has received. It is the Post-Concussive Syndrome he claims prevents him from playing — no other injury. He is not claiming any other physical limitations prevent him from his employment as a hockey player. Therefore, what is truly material is the information regarding the head injuries.

In a Motion For Summary Judgment, the burden is on the moving party to make a prima facie showing that the motion should be granted. Not until that showing is made does the burden shift to the party opposing the summary judgment to present evidence demonstrating that material factual issues remain. Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41. In the matter before us, the appellee, the moving party in this case, has failed to make a prima facie showing that the claimant made material misrepresentations that entitle the employer to judgment as a matter of law under 23:1208. Accordingly, the judgment of the trial judge is reversed.

REVERSED.


source: Caselaw Access Project

author: |, SULLIVAN, Judge.

license: Public Domain

text:
    Peter MONTALVO v. Cathy Schuff MONTALVO.
    No. 02-1303.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2003.

      Rachel C. Marinovich, Attorney at Law, New Orleans, LA, for Defendant/Appellant, Cathy Schuff Montalvo.
    Anthony F. Salario, Salario Law Firm, Marksville, LA, for Plaintiff/Appellee, Peter Montalvo.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   |, SULLIVAN, Judge.

Cathy Montalvo Brunet, formerly married to Peter Montalvo, appeals a judgment (1) changing the domiciliary parent of their minor daughter, L. M., to Peter; (2) providing that Peter shall remain the domiciliary parent when L.M. attains school age; and (3) ordering each party to pay the other child support during the months that L.M. resides with the other parent. For the following reasons, we reverse the change in the domiciliary parent and remand for a determination of child support.

Discussion of the Record

Cathy and Peter, both natives of Bunkie, Louisiana, were married on February 14, 1998, in Hot Springs, Arkansas. Prior to their marriage, they lived together in Bunkie for approximately one year with A., Peter’s minor son from a previous relationship. After their marriage, while still living in Bunkie, they had one child, L.M., who was born on September 10, 1999.

Peter filed for divorce on November 27, 2000. On December 15, 2000, the parties appeared in court for a rule to determine paternity, child support, and health insurance, but they reached a compromise that was reduced to a written judgment on January 24, 2001. In that consent judgment, Peter admitted that he was L.M.’s biological father and agreed to pay Cathy $225.00 each month in child support; Cathy was designated as L.M.’s “primary custodian,” subject to weekend, holiday, and summer visitation in favor of Peter. The consent judgment also provided that Cathy could move with L.M. to Thibodaux, Louisiana, with exchanges of L.M. to take place in the mid-Lafayette area. The judgment of divorce, signed July 23, 2001, incorporated the custody, child support, and visitation provisions of the consent judgment.

|gOn June 28, 2002, Peter filed a rule to show cause why he should not be named the domiciliary parent of L.M., alleging that, since the consent judgment, Cathy has moved numerous times, has taken L.M. “in and out” of daycare centers, and has allowed males to live with her or to stay Overnight, all to the detriment of the minor child. Cathy responded by denying all allegations in Peter’s rule and seeking an increase in child support.

At trial on July 22, 2002, Cathy testified that she has moved three times since the entry of the consent judgment allowing her to relocate to Thibodaux. She first lived in a one-bedroom apartment; then she moved to a two-bedroom apartment, where she stayed for over a year; and now she resides in a home that she recently purchased in Houma, Louisiana. Cathy qualified to purchase the home without the financial help of her new husband, Cory Brunet, whom she married two weeks before trial, but she explained that Cory would contribute to her housing expenses. Cathy identified three daycare centers where L.M. has been enrolled since she moved to the Thibodaux/Houma area. She explained that she placed L.M. in the most recent center, Tinker Tots, because of the move to her new home and because the center is one block from her work, which allows her to visit L.M. during the work day. (Cathy, Peter, and the trial court agreed that Tinker Tots is an impressive facility.) Cathy identified two men in her life since her divorce. She first dated Sonny Rivera, whom she knew before the divorce and with whom Peter had an altercation during one exchange with L.M. The only other man identified was her present husband, Cory, whom she dated for one year before their marriage. Cathy denied that Cory ever |3spent the night in her home when L.M. was present, but Cory later testified that he did so occasionally.

Cathy testified that Peter filed the instant rule shortly after she filed a criminal complaint against him for making harassing telephone calls to her at work and after she filed for an increase in child support in Terrebonne Parish. She denied that she provided an unstable environment for L.M., pointing out that she had lived in one residence for a year before she purchased her home and that she dated Cory for a year before she married him. Cathy believed that the current custody arrangement should not be changed. She pointed out that L.M. has her own room in her home, that she dresses and grooms L.M. each morning before work, that Cory has several family members in Houma who are willing to help with L.M., and that her own parents will soon be moving to Houma.

Peter testified that he filed the instant rule because he believed that L.M. was in an unstable environment with Cathy “moving around too much” and because L.M. was missing out on growing up with her nine-year-old half-brother, A. Athough Peter admitted that Cathy was a good mother, he believed that he could provide a more stable environment because he has been raising A. alone since the child was three and because most of L.M.’s extended family, including Cathy’s relatives, lived nearby. By working twelve-hour shifts for the Department of Corrections, where he has been employed for ten years, Peter has been able to schedule about fourteen days off each month, which allows him to spend much time with his children. At the time of trial, Peter lived in a two-bedroom apartment, but he testified that he was in the process of buying a three-bedroom brick home where L.M. and A. would each have their own room.

14Peter objected to Cathy moving L.M. to different daycare centers without prior notice to him, and he related one instance in which Cathy refused to tell him where L.M. had been hospitalized for dehydration, testifying that Cathy threatened to have him arrested if he came to the hospital. During his visitation with L.M., he has observed her exhibit angry behavior by fussing at A, throwing her dolls on the floor, and yelling at them that they have to go sleep “right now, I said right now.” He denied harassing Cathy at work, explaining that he had to call her there because she did not have a telephone at home.

Rosemary Zaunbrecher, Peter’s maternal aunt, testified that she exchanges L.M. with Cathy because of the tension between Peter and Cathy and because L.M. screams and clings to Peter when he is present. Mrs. Zaunbrecher testified that L.M. is usually calm when she is picked up, but that she often screams for her daddy when she is returned. Mrs. Zaun-brecher has witnessed L.M. shaking her dolls, slamming them on the floor, and telling them to “shush up your eyes right now and go to sleep.” She also recalled an instance where L.M. told Peter that the “cops are going to get you, daddy, you better watch out.”

Cory Brunet, Cathy’s new husband, testified that in the year and a half that he has known her, Cathy has always made L.M. her first priority. He described how much L.M. enjoys her new home and how she has taken to- his family, including his brother and sister and their young children. He testified that when L.M. returns from visiting Peter, she refuses to leave Cathy’s side and that Cathy will often have to ride in the back seat with her on the return trip.- Cory testified that he has been employed as a Terrebonne Parish Sheriffs Deputy for three years, but that he is in the process of being hired by the Louisiana State Police.

|KAt the close of the evidence, the trial court did not specifically find that a material change in circumstances had occurred since the consent judgment, but in its analysis of the factors in La.Civ.Code art. 134, it alluded to Cathy’s numerous moves, including her initial move to Thibodaux, her untruthfulness about Cory spending the night at her home before they were married, and the changes in daycare. The trial court continued joint custody, but named Peter as L.M.’s domiciliary parent. Peter was awarded physical' custody of L.M. in the months of September, October, November, and December, with physical custody switching to Cathy in January and February, then back to Peter in March, April, May, and June, and back to Cathy in July and August. Concerning child support, the trial court ordered Cathy to pay Peter $150.00 in the months that L.M. was with him and ordered Peter to pay Cathy $225.00 when L.M. was with her, with each party to reimburse the other the cost of daycare. The trial court further ordered that Peter would remain L.M.’s domiciliary parent when she reaches school age, absent a contrary opinion from a licensed psychologist, and that the changes of custody should take place at the parents’ homes, with each parent present so that L.M. could see them acting civilly toward each other.

Cathy has appealed, arguing that the trial court erred by (1) ordering a change in custody without a showing of a material change of circumstances; (2) formulating a schedule that is not feasible and is not in the best interest of the child; (3) ordering future custody arrangements when the child reaches school age; and (4) rendering a | fichild support award that does not comport with the child support guidelines and worksheets.

Opinion

“[W]here the original custody decree is a stipulated judgment, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child.” Evans v. Lungrin, 97-541, 97-577, p. 13 (La.2/6/98), 708 So.2d 731, 738. If the original custody decree is a considered decree, ie., one for which the trial court received evidence of parental fitness, the party seeking a modification must prove that continuation of the present situation is “so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

“On appeal, a trial court’s ruling on a change of custody request may only be disturbed if the reviewing court determines that the trial court abused its discretion in making its ruling.” Hillman v. Davis, 02-685, p. 5 (La.App. 3 Cir. 12/11/02), 834 So.2d 594, 598.

Because the present custody decree is a stipulated judgment, Peter does not have to meet the heavier burden of Bergeron. He must, however, prove both prongs of the Evans standard: that a material change in circumstances has occurred since the entry of the consent judgment and that his proposed modification is in L.M.’s best interest.

|7In its oral reasons, the trial court did not make a specific finding of a material change in circumstances, but immediately began a best-interest analysis under La. Civ. Code art. 134. In that analysis, it considered that Cathy has moved three times (although it found that she is now in a stable environment), that she has made numerous daycare changes, that there have been men in her life, and that she testified untruthfully about her husband spending the night in her home before they were married. Because the trial court applied only the second prong of Evans, we will lsdetermine de novo whether these factors amount to a material change in circumstances that would trigger a best-interest analysis under Article 134.

The trial court questioned Cathy’s decision to move to Thibodaux because she had no family there and because the move placed a great distance between the child and her father, but it also concluded that the move “has seemed to work out okay.” Because the consent judgment contemplated that Cathy would relocate, we do not believe that her initial move should reflect negatively on her in determining whether a material change in circumstances has occurred since the consent judgment.

Peter testified that he consented to the move only because he believed Cathy would soon break up with Sonny, her boyfriend at the time, and move back to Bunk-ie. Cathy testified that she had lived in Thibodaux before, that she believed it offered her greater opportunities than Bunk-ie did, and that she was able to keep her same job with a dialysis center when she moved. Although she eventually changed jobs to work in an eye-care center, there is no indication that her employment record has been unstable. The trial court and Peter seem to have criticized Cathy for moving three times (she actually moved only twice since the contemplated relocation to Thibodaux), yet each move — from a one-bedroom apartment, to a two-bedroom apartment, to her own home — improved her and L.M.’s standard of living. We also note that in the year and a half between the consent judgment of January 24, 2001 and the trial of July 22, 2002, Cathy had lived at one residence for at least a year. Cathy admitted that she placed L.M. in three daycare centers since moving to Thi-bodaux, but the final change appears to coincide with the purchase of her new home. Additionally, that move placed L.M. in an excellent facility near Cathy’s work, where she can visit L.M. during the work day.

13Concerning the men in Cathy’s life, the record does reflect that Sonny, the first of her two boyfriends, and Peter had an unpleasant altercation in L.M.’s presence that may have been triggered by Sonny’s aggressive behavior. However, that relationship appears to have ended well before Peter filed the instant rule, in light of testimony from Cathy and Cory that they dated about one year before the time of trial. As to Cory’s influence, the trial court found him to be “refreshing and honest” in characterizing him as a “safety net” and a “positive influence” for Cathy. Cory has been in L.M.’s life for at least a year since Cathy relocated. Although the trial court found Cathy to be untruthful in her testimony about Cory spending the night in her home before they were married, we do not find that this incident materially affects L.M.’s welfare.

In seeking an affirmation, Peter argues that Pizzolato v. Hihar, 02-53 (La.App. 5 Cir. 6/26/02), 822 So.2d 885, is strikingly similar to the present case. To the contrary, we find Pizzolato clearly distinguishable. In that case, the court did find that a material change in circumstances warranted replacing the mother as the domiciliary parent based upon an increase in stability in the father’s life and a decline in the mother’s: she was temporarily unemployed and living in a two-bedroom condominium with five to seven other people. In Weaver v. Weaver, 01-1656 (La.App. 3 Cir. 5/29/02), 824 So.2d 438, also cited by Peter, this court had ample evidence of the mother’s poor judgment in raising her children, including testimony that she was a “sporadic” parent who was often unavailable to supervise them. Id. at 446.

We find the present facts more analogous to Hillman, 834 So.2d 594, in which we reversed the trial court’s removal of the mother as the child’s sole custodian upon linthe mother’s relocation from Vernon Parish, Louisiana, to Buna, Texas, to take advantage of a permanent employment opportunity. Because the mother’s new job was subject to a one-year probationary period, she chose to leave the child in the care of an aunt and visit with her on weekends, instead of removing the child from her familiar environment only temporarily if that job did not work out. In that case, the trial court also did not articulate a finding of a material change in circumstances, but apparently based its decision to change the prior custody decree “entirely on the presence of extended family in Vernon Parish.” Id at 597-98.

In his concurrence in Shaffer v. Shaffer, 00-1251, p. 2 (La.App. 1 Cir. 9/13/00), 808 So.2d 354, 360, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151, Justice Weimer, then serving on the first circuit, recognized: “Life changes may occur, but if the changes do not have an effect on the welfare of the child, then no change in custody is justified.” Since the entry of the consent judgment, both parties have experienced life changes. Peter is purchasing a new home, and, although he is not dating anyone in particular, he is “somewhat” looking. Cathy has steadily improved her housing situation so that she is now a homeowner. She recently married a man who had been in L.M.’s life for about a year and whom the trial court found to be a “positive” influence in her own life. Changes in residences and the introduction of new people in one’s life are not unexpected consequences of a divorce. In the present case, Peter has not shown that these changes in Cathy’s life — many of which had positive aspects — have materially impacted L.M.’s welfare.

Although our analysis should end upon finding that Peter has not proved a material change in circumstances, we will review whether the record supports the trial court’s modification as being in L.M.’s best interest. In discussing Article 134, the |71trial court found that most factors did not favor either party, with one factor favoring Cathy, and others favoring Peter “not that much” or “to a small degree.” The trial court was concerned about the number of times that Cathy moved and changed daycares, yet its plan removes the child from an environment that it found stable and ensures that she will frequently be swapped between two residences and two daycares. The record before us simply does not support such an upheaval in this child’s life.

Because we find that Peter has not met his burden of proof under Evans, we order that the consent decree of January 24, 2001 be reinstated with the following modifications: (1) both parents shall refrain from making any derogatory remarks about the other parent in the presence of the minor child; (2) the father shall continue to provide health insurance for the minor child, and the mother shall continue to provide dental insurance for the minor child; and (3) the parents shall arrange for the exchanges of the minor child to take place at a mutually agreeable and safe location approximately half-way between their residences, or if the parents are unable to agree on such a location, the parent returning the child shall drive to the other parent’s residence to exchange custody. This ruling pretermits discussion of Cathy’s third and fourth assignments of error concerning the correctness of the trial court’s order of future custody when the child reaches school age and child support.

1g In her answer to Peter’s rule, Cathy asked that child support be awarded in accordance with the child support guidelines. At trial, both parties testified as to their income and expenses. However, Peter testified that he was unaware that child support would be decided that day. Cathy introduced three exhibits pertaining to child support, but they were not included in the appellate record before us. Peter did not introduce any exhibits. Because the record does not contain the documentation required by La.R.S. 9:315.2, we will order a remand for the trial court to consider the merits of Cathy’s requests for an increase in child support.

Decree

For the foregoing reasons, the judgment of the trial court is reversed; the January 24, 2001 consent judgment is reinstated with the modifications outlined above; and the case is remanded to determine the merits of Cathy Montalvo Brunet’s request for an increase in child support. Cost of this appeal are assessed to Peter Montal-vo.

TRIAL COURT JUDGMENT REVERSED; ORIGINAL CONSENT JUDGMENT REINSTATED WITH MODIFICATIONS; AND REMANDED.

      . Because A.'s mother and Peter never married, it is unclear from the record whether A.’s surname is "Montalvo.”

      . At the time of this hearing, L.M, was approximately thirty-four months old.

      . Peter testified that Cathy had insisted the exchanges with L.M. take place in New Iberia, Louisiana, even though the consent judgment specified that they would exchange the child in mid-center Lafayette. Cathy testified that she did not feel safe at some of the locations Peter had chosen in Lafayette because she had been approached by beggars and by other people that made her uncomfortable. She believed that a Burger King in New Iberia worked better for L.M. because she felt safe there and because L.M. could play in its play area instead of waiting in a car.

      . Art. 134. Factors in determining child's best interest
      The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.

        (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . The trial court acknowledged that, under factor twelve, Cathy has been the party more responsible for the care and rearing of the child. The trial court found that factor four, concerning the length of time that the child has lived in a stable environment, favored Peter "somewhat but not greatly” because of Cathy's moves and daycare changes, but it also acknowledged that "now Cathy is in a stable environment.” Concerning factor six, "the moral fitness of each party, insofar as it affects the welfare of the child,” the trial court found troubling that Cathy's and Cory’s testimony differed on whether he had spent the night in her home before they were married. The trial court initially said that factor eight, the home, school and community history of the child, favored Peter, but then stated that the time that Cathy has lived in Thibo-daux and Houma "almost equalizes” this one.


author: | t COOKS, Judge. It EZELL, J.,

text:
    STATE of Louisiana v. Phyllis GAUTHIER and Duane K. Gauthier, Jr.
    No. 02-1227.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2003.

      Rick Bryant, District Attorney, Robert S. Kleinschmidt, Jr., Assistant District Attorney, Lake Charles, LA, for Appellant State of Louisiana.
    Duane Gauthier, Phyllis Gauthier, Lake Charles, LA, In Proper Person.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and BILLY HOWARD EZELL, Judges.
   | t COOKS, Judge.

This is an appeal from the trial court’s judgment denying the State’s attempt to seize a vehicle owned by Phyllis Gauthier and driven by Duane Gauthier and $353.00 in currency in the possession of Duane Gauthier, under the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, La.R.S. 40:2601 et seq. (the Forfeiture Act). The trial court also awarded damages to both Phyllis Gau-thier and Duane Gauthier. For the following reasons, we affirm in part and reverse in part.

FACTS

On November 15, 2001, Duane Gauthier, driving a 1992 Oldsmobile, was observed by Sgt. Arnold Bellow of the Lake Charles Police allegedly committing several traffic offenses. Sgt. Bellow stated he immediately recognized the vehicle as Gauthier’s because he had been under investigation in reference to the sale and distribution of illegal drugs. Sgt. Bellow followed him to a residence in Lake Charles. Sgt. Bellow was traveling in an unmarked police car, so he requested a marked unit via radio to assist with stopping Gauthier for the traffic offenses.

When the police unit arrived, Sgt. Bellow approached the vehicle driven by Gau-thier and asked the occupants to remain still. At this point, Gauthier was already out of the vehicle. According to Sgt. Bellow, Gauthier bent over to reach into the vehicle. Sgt. Bellow withdrew his weapon and ordered Gauthier to place his hands on the vehicle. There were two other passengers in the vehicle, Andrew Simmons and Brian Jones.

Officer Guillory, who had arrived on the scene, observed Gauthier remove some pills from his sock and place them into his mouth in an attempt to destroy 1 ^evidence. Officer Guillory attempted to stop Gauthier from destroying the evidence, and they became engaged in a physical altercation. Officer Guillory and Sgt. Bellow were ultimately able to retrieve one pill from Gau-thier. Later testing proved the pill contained Xanax. Marijuana and codeine were also found in the vehicle. The vehicle, a 1992 Oldsmobile, and $353.00 in currency were seized for civil forfeiture.

A Notice of Pending Forfeiture was mailed by certified mail to Gauthier, and was returned unclaimed on February 29, 2002. A Notice of Pending Forfeiture was also mailed via certified mail to Phyllis Gauthier, because she was the vehicle’s title holder. This was received by Mrs. Gauthier on February 12, 2002.

Both Duane Gauthier and Phyllis Gau-thier filed a claim for the seized property. A Motion and Order to Assign Civil Forfeiture Case was filed by the Calcasieu District Attorney’s office and the matter was set for trial. On the morning of trial, Duane Gauthier informed the court he did not have an attorney and requested a continuance. The trial court granted the continuance over the State’s objection.

The trial began on June 4, 2002, with Gauthier representing himself and his mother. The trial court ruled in favor of Duane Gauthier and Phyllis Gauthier, ordering the return of the vehicle and the currency. The trial court also awarded $150.00 in damages to Duane Gauthier and $1000.00 in damages to Phyllis Gauthier. The State appealed the trial court’s judgment, contending the trial court erred in returning the vehicle and currency, and in awarding damages to the claimants.

ANALYSIS

Under the Forfeiture Act, La.R.S. 40:2601 et seq., property used or intended to be used in any manner to facilitate conduct in violation of La.R.S. 40:961 (the Louisiana Uniform Controlled Dangerous Substances Law) is subject to forfeiture Lupon the commission of an act or omission punishable by confinement for more than one year under La.R.S. 40:961 et seq. La.R.S. 40:2603(1) and 2604(2)(b).

The initial burden in civil forfeiture proceedings is on the State to show probable cause for the forfeiture. La.R.S. 40:2612(G); State v. $29,177.00 U.S. Currency, 93-592 (La.App. 3 Cir. 2/2/94), 638 So.2d 653, writ denied, 94-1955 (La.10/28/94), 644 So.2d 378; State v. Cash Totalling $15,156.00, 623 So.2d 114 (La.App. 1 Cir.), writ denied, 629 So.2d 401 (La.1993). To support a finding that prob able cause exists for forfeiture of property, the evidence presented by the State must be sufficient to form a reasonable ground for the belief that the property was .connected with illegal drug transactions. State v. Cash Totalling $15,156.00, 623 So.2d 114. While the ultimate determination of probable cause is a legal question; the findings of fact which lead to a probable cause determination are subject to the manifestly erroneous-clearly wrong standard. State v. $29,177.00 U.S. Currency, 638 So.2d at 653 (on rehearing). Thus, much deference must be given to the factual findings of the trial court as long as a review of the record as a whole shows those findings were reasonably supported. Id.

The State was required to show by credible evidence and by more than mere suspicion, a reasonable ground for belief that the currency on Gauthier’s person was drug related and that the vehicle was used or available for use to facilitate the alleged drug transactions. The state argues the “evidence definitively shows that the property was used to facilitate a drug transaction.” We disagree and find the trial court was not manifestly erroneous in returning the currency and vehicle to the claimants.

Officer Bellow testified he believed the $353.00 in currency found on Duane Gau-thier must have been drug related because Gauthier was unemployed. However, 14Gauthier presented evidence that he received checks for an accident settlement in the amount of $1,233.34 on October 4, 2001, and $1,218.54 on October 30, 2001. The date of the incident in question was November 15, 2001. We find no error on the trial court’s part in accepting Gauthier’s testimony that the currency seized was obtained from the accident settlement rather than any drug activity.

In reference to the vehicle, the trial court gave the following reasons for ordering the return of the vehicle to Phyllis Gauthier:

There’s no showing that Ms. Gauthier knew anything about any drug activity or even that she knew her son had a Xanax pill. There’s been some testimony by two witnesses, ladies, that testified on behalf of Mr. Gauthier that they heard him say at the time of the arrest that he had a prescription, but there’s been no evidence other than that to come out. I think if Mr. Gauthier had a prescription for the Xanax, he probably would have brought it out. I assume he didn’t have a prescription. But to have a Xanax pill on you does not suggest a drug transaction necessarily. It’s certainly a violation of the law to be in possession of a Schedule 4 drug without a prescription. To have the codeine, 2.0 grams of codeine, in your possession without a prescription is a violation of the law. It appears that Mr. Gauthier was in possession of a quantity of drugs without a prescription. The marijuana, the other individual in the car admitted it was his marijuana and Mr. Gauthier denied knowing about that marijuana. The 26 grams of marijuana has not been found to be related to any transaction that Mr. Gauthier had anything to do with. The bottom line is the State has to show probable cause that the forfeiture was proper in that the seizures were related to a drug transaction. I don’t even see a drug transaction here. One may conclude that to have in your possession a small quantity of illegal drugs is a transaction. Maybe it is, but even if it is, it is such a minute quantity given the fact that the vehicle did not belong to Mr. Gauthier. I don’t think it justifies forfeiture. I don’t think a probable cause was shown for forfeiture.

The State argued in its brief that the claimants failed to offer into evidence the vehicle’s title. However, in the record before us the title to the seized vehicle is present, and is in the name of Phyllis Gauthier. Given the much deference afforded to the factual findings of the trial court, we cannot say the trial court erred in finding [ 5probable cause did not exist for the forfeiture of the vehicle.

The State also argued the trial court erred in awarding damages to the claimants for their loss of use of the vehicle and currency. We agree. La.R.S. 40:2611(L) sets forth what may be awarded -to a claimant who successfully obtains the return of his seized property:

L. If a claimant whose property has been seized for forfeiture is successful in obtaining the return of the property in a civil proceeding, the court may award the claimant reasonable attorney fees, to be paid by the seizing agency, and the claimant shall also be exempt from any storage fees, or other costs incurred in the seizure, preservation, storage, or return of such seized property. Any searched or seized vehicle that is subsequently returned to a claimant, with or "Without court mandate, shall be returned in substantially the same condition as when searched or seized, together with any interest earned on monies or other negotiable instruments deposited, held, or invested.

The statute does provide for the award of reasonable attorney fees for the successful claimant. However, since the claimants represented themselves in this matter and the trial court specifically noted no evidence of attorney fees was provided, an award of attorney fees was not appropriate.

The statute also provides the successful claimant is exempted from storage fees or other costs incurred in the seizure, preservation, storage, or return of the vehicle. It is also mandated that the vehicle be returned to her in substantially the same condition as when it was seized. However, there is no provision in the statute to support damages for the loss of use of the vehicle as awarded by the trial court. Therefore, the award of $1,000.00 in damages to Phyllis Gauthier is reversed.

We also reverse the award of $150.00 in damages to Duane Gauthier for the loss of use of the $353.00 in currency seized by the State. The statute only provides for “any interest earned on monies or other negotiable instruments deposited, held, |fior invested.” Therefore, the trial court’s award of $150.00 in damages was beyond the scope of the statute.

DECREE

For the foregoing reasons, the portion of the trial court’s judgment returning the vehicle to Phyllis Gauthier and the $353.00 in currency to Duane Gauthier is affirmed. The portion of the judgment awarding damages of $1,000.00 to Phyllis Gauthier and $150.00 to Duane Gauthier is reversed. Costs of this appeal are assessed one-half to appellants and one-half to appellees.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

EZELL, J., concurs and assigns written reasons.

It EZELL, J.,

concurs.

I concur with the results in this matter, but would affirm the trial court on the basis that the defendant, Duane K Gauthier overcame the States burden with regard to the funds found on his person.

As to the forfeiture of the vehicle, the record reflects that it was titled in the name of Ms. Phyllis Gauthier. There is no evidence to show that she had any knowledge of the drugs being possessed by Duane K. Gauthier. The vehicle would fall within those items that are exempted from seizure.


author: J^GREMILLION, Judge.

text:
    STATE of Louisiana v. Jerome Anthony JOSEPH.
    No. 2002-1370.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2003.

      Earl B. Taylor, District Attorney, Alisa Ardoin Gothreaux, Asst. District Attorney, Opelousas, LA, for Plaintiff/Appellee State of Louisiana.
    Kenota Pulliam Johnson, Louisiana Appellate Project, Shreveport, LA, for Defendant/Appellant Jerome Anthony Joseph.
    Court composed of ULYSSES GENE THIBODEAUX, BILLIE COLOMBARO WOODARD, and GLENN B. GREMILLION, Judges.
   J^GREMILLION, Judge.

The defendant, Jerome Anthony Joseph, was found guilty by a jury of possession of a firearm by a convicted felon, and was sentenced to serve ten years at hard labor without the benefit of probation, parole, or suspension of sentence. He appeals assigning as error that the evidence was insufficient to convict him; that the trial court improperly allowed the admission of other crimes evidence; and, that the trial court improperly granted the State’s Motion in Limine denying the admission of an affidavit. For the following reasons, we affirm.

SUFFICIENCY OF EVIDENCE

Defendant contends the evidence presented at trial, when viewed in a light most favorable to the prosecution, was insufficient to sustain a verdict of guilty of possession of a firearm by a convicted felon. In State v. Elaire, 02-203, p. 1 (La.App. 3 Cir. 6/19/02), 820 So.2d 660, 661, we cited State v. Freeman, 01-997 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, with approval:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 ex rel. Graffagnino v. King, 436 So.2d 559, (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).

Possession of a firearm by a convicted felon is governed by La.R.S. 14:95.1, which provides that it is unlawful for any person who has been convicted of | ¡¡.certain enumerated felonies, which includes simple burglary to possess a firearm or carry a concealed weapon. We note that La.R.S. 14:95.1(C)(1) states that this section shall not apply to “any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.”

In State v. Recard, 97-754, p. 8 (La.App. 3 Cir. 11/26/97), 704 So.2d 324, 329, writ denied, 97-3187 (La.5/1/98), 805 So.2d 200, we held:

To convict Defendant of possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and, (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Tatum, 27,301 (La.App. 2 Cir. 9/27/95); 661 So.2d 657.

Defendant does not dispute that he has a prior felony conviction for simple burglary; however, he contends the State did not meet its burden of proving that he was in actual or constructive possession of a firearm or that he had general intent to possess a firearm.

Neither possession of a firearm by a convicted felon nor illegal carrying of weapons requires actual physical possession of a firearm upon the person of the accused; constructive possession of a firearm satisfies the possessory element. State v. Armentor, 94-745 (La.App. 3 Cir. 2/1/95); 649 So.2d 1187, writ denied, 95-0557 (La.6/30/95); 657 So.2d 1027, citing State v. Day, 410 So.2d 741 (La.1982). Constructive possession exists when the illegal object is subject to the defendant’s dominion and control. State v. Johnson, 463 So.2d 778 (La.App. 4 Cir.1985).

State v. Brooks, 99-478, p. 4 (La.App. 3 Cir. 12/8/99), 756 So.2d 336, 339, writ denied, 00-1492 (La.5/25/01), 792 So.2d 750.

Mere presence in an area where contraband is found or mere association with an individual found to be in possession of such does not necessarily | ^establish possession. State v. Viera, 449 So.2d 644 (La.App. 4 Cir.1984), writ denied, 450 So.2d 962 (La.1984). However, an individual found in close proximity to an area where contraband is located may be considered in constructive possession if the contraband is subject to his dominion and control. The determination of whether there is “possession” sufficient to convict depends on the particular facts of the case. State v. Walker, 514 So.2d 602 (La.App. 4 Cir.1987); State v. Trahan, 425 So.2d 1222 (La.1983).

State v. Heacox, 543 So.2d 101, 105-06 (La.App. 3 Cir.1989).

La.R.S. 14:95.1 requires only general criminal intent, which means that the circumstances indicate that the accused “in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La.R.S. 14:10(2). Although the existence of intent is a question of fact, it need not be proven as such, but may be inferred from the circumstances of a transaction. La.R.S. 15:445.

Recard, 704 So.2d at 329-30.

“Guilty knowledge is an essential element in proving constructive possession and may be inferred from the circumstances. State v. Converse, 529 So.2d 459 (La.App. 1 Cir.), writ denied, 533 So.2d 355 (La.1988); State v. Jones, 551 So.2d 18 (La.App. 4 Cir.1989).” Brooks, 756 So.2d at 339-riO.

The record reflects that, on January 31, 1998, Officer Cleveland Thomas was dispatched to a domestic disturbance at a trailer on Frilot Street in Opelousas, Louisiana. Once there, Officer Thomas tried to make contact with Defendant by knocking on both doors of the trailer. He got no response. C.J., Defendant’s wife, told the officers that Defendant was in the trailer and to break the door down if they had to in order to get in the trailer. Once inside, Officer Thomas found Defendant in the front bedroom laying in bed. There was a rifle laying partially under the bed, | ¿within Defendant.’ According to C.J.’s daughter, C.O. said the gun was kept in the bedroom Defendant shared with her mother behind the door in the closet. C.O. also testified that Defendant shot something in the residence before the police came.

We note that Defendant attacked C.O.’s credibility making numerous references to inconsistent statements in her testimony. However, a review of the record indicates that the jury was aware of those inconsistencies and chose to ignore them in favor of her testimony referred to above. Further, our review of these inconsistencies reflects that they were minor and do not affect the conclusion that Defendant was in possession of a firearm on the day in question.

Accordingly, the testimony of C.O. is sufficient to place Defendant in actual physical possession of a firearm and prove his intent to possess. Also, the testimony of both C.O. and Officer Thomas shows that Defendant had constructive possession of the gun. Therefore, this assignment of error lacks merit.

OTHER CRIMES EVIDENCE

Defendant contends the trial court erred in allowing the admission of other crimes evidence and in denying a Motion for Mistrial based on the introduction of that evidence. Defendant maintains the State, as well as C.O., made reference to other crimes evidence, specifically, simple battery, aggravated assault with a [ ^dangerous weapon, simple criminal damage, illegal use of a weapon, and false imprisonment, during trial. Based on these references, Defendant avers that the mistrial he requested should have been granted.

In its opening statement, the State made the following remarks:

But specifically on the afternoon, the early afternoon hours of January 31st of 1998, [C.J.] and her daughter, [C.O.], and you’re going to hear from [C.O.], came home and this defendant was home and a domestic disturbance was started by this defendant. He roughed them up, he threatened them, made accusations against them and they tried to leave.... He started trashing the house. He started ransacking it and started throwing pictures, breaking things, even went so far as to pull or cut the phone out of the wall so they couldn’t call for help. And most importantly, he had a rifle. He had a .22 caliber Marlin rifle.... He threatened to kill them if they tried to leave. He held them prisoners in their own home against their will. In fact, he threatened to shoot them and at one point he even went so far as to fire a shot in the home....
It looked like all hell had broke loose. Pictures were broken, phones ripped out of the wall.

The State also made similar remarks in its closing statement.

.... On January 31st of 1998, all hell broke loose at the trailer on Frilot Street.... [C.O.] told us they had come home, a little ruckus started. He wasn’t happy.... Again, it looked like all hell had broke loose. Pictures are smashed, glasses broken, lamps are damaged. But that’s not the end of it. The phone is yanked out of the wall. He didn’t want them to leave. And he armed himself with that gun and not only did he threaten [C.J.], but he threatened an eleven or twelve year old child. That’s not the conduct of a man.... Not only did he arm himself with the gun, but he went so far as to threaten a woman and more tragically an eleven or twelve year old child. Threaten to kill them, tell them that if they tried to leave, he was going to kill them. And in fact, to keep them honest what did he do? He cracked off a shot turning that trailer into a shooting gallery ... not only was the inside of the trailer damaged, but what did we see whenever Officer Thomas first got to the trailer? Pictures smashed right outside. I mean, again, all hell had broke loose. Acting like a maniac, threatening fives of a woman and a child with a gun.... He, the convicted felon who had threatened a child and threatened her mother and had even gone so far as to pop off a shot in the trailer.... Not only did he have actual possession because as [C.O.] said he was marching around that trailer like a storm trooper threatening them with the gun, threatened to kill them if they tried to leave, scaring |fithem half to death, but then he even went so far as to keep them honest by popping off a shot into that plaque and then for....

Defendant failed to raise an objection at trial to the State’s remarks during opening and closing statements. “ ‘An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence.’ La.Code Crim.P. art. 841(A).” State v. Thibodeaux, 96-471, p. 7 (La.App. 3 Cir. 12/11/96), 687 So.2d 477, 481, writ denied, 97-0060 (La.5/30/97), 694 So.2d 243. Because Defendant did not enter an objection at the time the State made the challenged remarks, he did not preserve the assignment of error and cannot now seek appellate review of those remarks.

In C.O.’s case, she testified that, on the date of the incident, Defendant had a gun and would not allow her and her mother to leave their home. She also testified that Defendant said if they left he would kill them. Defendant objected after the second time C.O. testified she felt she could not leave her home, and argued that the introduction of other crimes evidence was grounds for a mistrial. The trial court overruled the objection pursuant to La. Code Evid. art. 404(B). C.O. stated that Defendant shot something with the gun. She also testified Defendant was having an argument with her mother at the time the offense occurred, and that once she and her mother were able to leave the house, they went to a neighbor’s house and called the police.

La.Code Evid. art. 404(B) provides in pertinent part:

Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, 17identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In State v. Colomb, 98-2813, pp. 3-4 (La.10/1/99), 747 So.2d 1074, 1075-76, the supreme court explained:

This Court has long approved of the introduction of other crimes evidence, both under the provisions of former R.S. 15:448 relating to res gestae evidence and as a matter of integral act evidence under La.C.E. art. 404(B), “when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it.” State v. Brewington, 601 So.2d 656, 657 (La.1992). This doctrine encompasses “not only spontaneous utterances and declarations made before and after commission of the crime but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances.” State v. Molinario, 383 So.2d 345, 350 (La.1980). We have required a close connexity between the charged and uncharged conduct to insure that “the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.” State v. Haarala, 398 So.2d 1093, 1098 (La.1981) (emphasis added); see also 1 McCormick on Evidence, § 190, p. 799 (4th ed., John William Strong, ed., 1992) (other crimes evidence may be admissible “[t]o complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.”) (footnote omitted). The res geaste [sic] or integral act doctrine thus “reflects the fact that making a case with testimony and tangible things not only satisfies the formal definition of an offense, but tells a colorful story with descriptive richness.” Old Chief v. United States, 519 U.S. 172, 186, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997). The test of integral act evidence is therefore not simply whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct but whether doing so would deprive its case of narrative momentum and cohesiveness, “with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.” Id.

s Additionally, “[n]o pre-trial notice is necessary for other crimes evidence when the evidence forms an integral part of the crime charged. State v. Arvie, 97-990 (La.App. 3 Cir. 2/4/98), 709 So.2d 810, writ denied, 98-2461 (La.1/29/99), 736 So.2d 827.” State v. Williams, 00-1277, p. 7 (La.App. 3 Cir. 2/28/01), 779 So.2d 1106, 1110.

The current jurisprudence holds that under Article 404(B)(1) “[i]t is no longer true that whatever forms part of the res gestae is admissible, and such evidence remains subject to the balancing test of La.Code Evid. Ann. art. 403 (West 1994).” State v. Smith, 94-1502, p. 6 (La.App. 4 Cir. 1/19/95); 649 So.2d 1078, 1083, citing Authors’ Note to Article 404(B), Handbook on Louisiana Evidence Law, Pugh, Force, Rault, and Triche (1994 ed.). See also, State v. McGuire, 577 So.2d 1120 (La.App. 1 Cir.), writ denied, 581 So.2d 704 (La.1991).

State v. Arvie, 97-990, pp. 16-17 (La.App. 3 Cir. 2/4/98), 709 So.2d 810, 818, writ denied, 98-2461 (La.1/29/99), 736 So.2d 827.

[Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, risk of misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403; See State v. Mosby, 595 So.2d 1135, 1138 (La.1992). Absent a clear abuse of discretion, the trial judge’s determinations concerning relevancy and admissibility should not be overturned. State v. Vaughn, 431 So.2d 358, 361 (La.1982); State v. Bates, 397 So.2d 1331, 1334 (La.1981) (same); State v. Stram-iello, 392 So.2d 425, 427 (La.1980) (same).

State v. Cosey, 97-2020, pp. 13-14 (La.11/28/00), 779 So.2d 675, 684, cert. denied, 533 U.S. 907, 121 S.Ct. 2252, 150 L.Ed.2d 239 (2001).

In State v. Hamilton, 99-523 (La.App. 3 Cir. 11/3/99), 747 So.2d 164, 170, quoting State v. Felo, 454 So.2d 1150 (La.App. 4 Cir.1984), writ denied, 488 So.2d 686 (La.1986), we wrote:

We note, parenthetically, that by “prejudicial”, it cannot be meant simply “damaging”; if that were true, then any evidence which is probative would be “prejudicial”. But it is only unfairly prejudicial evidence that cannot be admitted, State v. Germain, 433 So.2d 110 (La.1983), and as one court has noted, “unfair prejudice results from an aspect of the evidence other than its tendency to make the existence of a material fact more or less probable, e.g., that aspect of the evidence which makes conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.” United States v. Bailleaux, 685 F.2d 1105 (9 Cir.1982).

Defendant cites State v. Ramoin, 554 So.2d 278 (La.App. 3 Cir. 1989), in support of his argument that the other crimes evidence introduced was inadmissible. We have reviewed that case and find it is distinguishable in that the referenced crime occurred twenty years prior to trial. In the case sub judice, the other crimes occurred on the same day and approximately at the same time as the charged offense.

In State v. Brewington, 601 So.2d 656, 656-57 (La.), on remand, 605 So.2d 4 (La.App. 3 Cir.1992), the court held that the “defendant’s display of crack cocaine and a pistol tucked into his waistband, three hours after the victim was last seen alive in his presence and less than two hours before her death, formed an inseparable part of the state’s substantial circumstantial evidence linking him to the shooting.”

In State v. Curtis, 99-45 (La.App. 5 Cir. 7/27/99), 739 So.2d 931, defense counsel filed a motion in limine seeking to preclude the admission of other lincrimes evidence, the discovery of cocaine which occurred prior to the discovery of the weapon, which formed the basis for the charge of illegal carrying of weapons. The court concluded the evidence of the discovery of the cocaine formed an inseparable link in the continuous chain of events leading to the discovery of the weapon at issue in the proceeding, and the evidence was used only to complete the story of the crime on trial and allow the state to accurately present its case.

The events which led up to and surrounded Defendant’s possession of a firearm formed an integral part of the offense, as the offenses were part of a single incident. These were events that could not be separated from the charged crime. It would have been difficult for the State to present its case without making any reference to the events which led up to Defendant’s arrest.

We note that the trial court did not perform a balancing test under, but simply ruled that under the Article the evidence was admissible. We, however, find that the trial court was correct in its ruling and that the evidence was properly admitted because the probative value outweighed the prejudice. Accordingly, this assignment of error has no merit.

ADMISSION OF AN AFFIDAVIT

Defendant contends the trial court erred in granting the State’s Motion in Limine, thereby denying the admission of C.J.’s affidavit. Defendant attempted to call Josie Frank, an attorney, as a witness at trial to testify that she had possibly |ntaken an affidavit from Defendant’s wife, stating she wanted certain charges dismissed. The court ruled such testimony was inadmissible because it was irrelevant and ordered the affidavit not be allowed into evidence.

The affidavit states in pertinent part:

I, [C.J.], would like to have the charges which resulted from an altercation on January 31, 1998 with my husband, JEROME JOSEPH, dismissed.
FURTHER, I would ask that the restraining order which was placed on my husband be recalled. We have sat down and discussed our problems and agreed that it is in the best interest of our family which includes two small children that JEROME JOSEPH be allowed to return home.

In Recard, 704 So.2d at 327, we said:

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La.Code Evid. art. 401. “Evidence which is not relevant is not admissible.” La.Code Evid. art. 402. The relevancy of evidence depends on whether it tends to prove or disprove a matter in issue. State v. Constantine, 364 So.2d 1011 (La.1978). The trial court is vested with wide discretion in determining the relevance of evidence. State v. Stowe, 93-2020 (La.4/11/94); 635 So.2d 168; State v. Miles, 402 So.2d 644 (La.1981). The trial court’s determination regarding the relevancy of evidence offered is entitled to great weight and should not be overturned absent a clear abuse of discretion. State v. Kahey, 436 So.2d 475 (La.1983).

Defendant was tried on the charge of possession of a firearm by a convicted felon. The affidavit does not tend to prove or disprove the matter at issue. Therefore, the trial court was correct in finding that the affidavit was irrelevant and it did not abuse its discretion in its ruling.

We also note that the affidavit (statement) that was made by C.J. (declar-ant), offered by Ms. Frank (a person other than the declarant) at the instant trial 11gto prove that C.J. wanted the charges dropped (the truth of the matter asserted) is classic hearsay for which there are no exceptions. La.Code Evid. art. 801. Accordingly, this assignment of error lacks merit.

CONCLUSION

Defendant’s conviction is affirmed.

AFFIRMED.

      . C.J. is the mother of the minor testifying in this matter. Accordingly, her initials will be used in accordance with La.R.S. 46:1844.

      . Defendant was married to C.O.'s mother at the time of the offense, and C.O. lived with her mother and Defendant. C.O. was eleven or twelve at the time of the offense. Thus, out of precaution and in accordance with La.R.S. 46:1844, her initials will be used throughout.

      . See also State v. Davis, 97-0817 (La.App. 4 Cir. 3/24/99), 735 So.2d 708, writ denied 99-1422 (La. 11/12/99), 749 So.2d 651, and State v. Mitchell, 572 So.2d 800 (La.App. 4 Cir. 1990), writ denied, 576 So.2d 47 (La.1991). However, in Colomb, 747 So.2d at 1074, the supreme court stated it was not deciding whether integral act evidence presented under the authority of La.Code Evid. art. 404(B) must pass the balancing test of La.Code Evid. art. 403.

      . "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La.Code Evid. art. 403.