author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Allen A. GUILBEAU.
    No. 03-KA-1327.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Thomas S. Block, Assistant District Attorneys, Gretna, LA, for Plaintiff-Appellee.
    Kevin V. Boshea, New Orleans, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On March 2, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Allen Guilbeau, with possession with intent to distribute Dia-zepam, a violation of LSA-R.S. 40:969(A). Defendant was arraigned on March 31, 2000, and pled not guilty. Defendant filed various pre-trial motions, including a motion to suppress the evidence.

On September 5, 2000, the state amended the bill of information to add Count 2, possession of Alprazolam, a violation of LSA-R.S. 40:969(C).

On January 29, 2001, defendant withdrew his pleas of not guilty and pled guilty as charged to both counts. In accordance with the plea agreement, the trial court sentenced defendant to five years on each count and ordered that the sentences run concurrently with each other.

The state filed a multiple offender bill of information alleging defendant to be a third felony offender. The state specified that it sought enhancement of ^defendant's sentence on Count 1, possession with intent to distribute Diazepam. Defendant was apprised of the allegations in the multiple offender bill and entered an admission. The court accepted defendant’s admission and found him to be a third felony offender. Pursuant to the plea agreement, the court vacated defendant’s sentence as to Count 1, and imposed an enhanced sentence of ten years at hard labor, without benefit of probation or suspension of sentence. The court ordered that the sentence run concurrently with the sentence on Count 2.

On January 6, 2003, defendant filed an application for post-conviction relief in the district court. He argued that his admission to the habitual offender bill of information was infirm, as the 1991 predicate conviction for possession of LSD was the result of a guilty plea under the former LSA-R.S. 40:983. As such, defendant claimed the conviction could not be used for enhancement purposes in a habitual offender bill. Defendant alternatively claimed that his trial counsel was ineffective in allowing him to admit to the allegations in the habitual offender bill.

On March 17, 2003, the trial court issued an Order denying defendant relief as to both claims. The court indicated that defendant’s claim regarding the use of the 1991 conviction as a predicate in the habitual offender bill was a sentencing matter not properly raised in an application for post-conviction relief. The court further found that defendant had failed to meet his burden of proof with regard to the ineffective assistance claim.

Defendant applied to this Court for supervisory writs from the trial court’s denial of his post-conviction relief application. On June 3, 2003, this Court granted writs for the limited purpose of allowing defendant the opportunity to seek reinstatement of his appeal rights since defendant had not timely filed a motion for appeal following his guilty plea and sentencing. This Court did not, in its writ denial, reach the merits of defendant’s post-conviction claims.

14Pefendant filed a motion for an out-of-time appeal in the district court on June 17, 2003. The trial court granted the motion on July 7, 2003.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant complains that his admission to the allegations in the habitual offender bill of information was invalid because one of the two predicate convictions alleged by the state could not legally be used for enhancement purposes. Defendant states that he pled guilty in 1992 to possession of lysergic acid diethylamide (“LSD”) under the provisions of LSA-R.S. 40:983. That statute, repealed by 1995 Louisiana Acts, No. 1251, § 2, provided:

A. Whenever any person who has not previously been convicted of any offense under this Part pleads guilty to or is convicted of having violated R.S. 40:966(C), R.S. 40:967(0, R.S. 40:968(0, R.S. 40:969(0, 40:970(0 of this Part, and when it appears that the best interests of the public and of the defendant will be served, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as may be required. Among such conditions the court shall order that the defendant perform not less than one hundred hours of court-approved community service that may include manual labor.
B. Upon the defendant’s violation of any of the terms or conditions of his probation, the court may enter an adjudication of guilt and impose sentence upon such person.
C. Upon fulfillment of the terms and conditions of probation imposed in accordance with this Section, the court shall discharge such person and dismiss the proceedings against him.
D. Discharge and dismissal under this Section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under R.S. 40:982.
E. Discharge and dismissal under this Section may occur only once with respect to any person.

|sThe Louisiana Supreme Court has held that a dismissal of prosecution pursuant to LSA-R.S. 40:983 is tantamount to an acquittal. Louisiana State Bar Assoc. v. Reis, 513 So.2d 1173, 1176 (La.1987).

The state concedes that defendant pled guilty under LSA-R.S. 40:983, and that he successfully completed his probation and had the charge dismissed. That being the case, the state was not entitled to use the 1992 guilty plea to enhance defendant’s sentence. Therefore, we reverse the trial court’s finding that the defendant is a third felony offender and vacate the enhanced sentence. We further remand this matter to the trial court for resentencing on Count 1 of the original bill of information.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant complains that his trial counsel was ineffective in failing to recognize that the state was barred from using the 1992 LSD conviction as a predicate offense in the habitual offender bill of information.

A criminal defendant is guaranteed the effective assistance of counsel by the Sixth Amendment to the United States Constitution, and Article I, § 13 of the Louisiana Constitution. A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland test, the defendant must show (1) that his attorney’s performance was deficient, i.e., that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that counsel’s errors or omissions resulted in prejudice so great as to undermine confidence in the outcome. It is not enough for the accused to make allegations of ineffectiveness; the accused must couple these allegations with a specific showing of prejudice. State v. Bell, 02-1127, pp. 6-7 (La.App. 5 Cir. 2/25/03), 840 So.2d 656, 660.

| fiThe Sixth Amendment does not guarantee “errorless” counsel, or counsel judged ineffective by hindsight. Rather, a defendant is guaranteed an attorney who is reasonably likely to render effective assistance. State v. LaCaze, 99-0584, p. 20 (La.1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). Judicial scrutiny must be highly deferential, and claims of ineffective assistance are to be assessed on the facts of the particular case as seen from counsel’s perspective at the time. The courts, therefore, must indulge a strong presumption that counsel’s conduct falls within the range of reasonable professional assistance. Id.

Generally, an ineffective assistance of counsel issue is a matter more properly addressed in an application for post-conviction relief filed in the trial court, where a full evidentiary hearing can be conducted. State v. Truitt, 500 So.2d 355, 359 (La.1987). It is well settled, however, that where the record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. Bell, 02-1127 at p. 6, 840 So.2d at 660. As noted above, the state concedes that defendant pled guilty under LSA-R.S. 40:983, and that he successfully completed his probation and had the charge dismissed. Trial counsel’s failure to investigate and to object to the state’s use of the 1992 guilty plea before allowing defendant to admit to the habitual offender allegations amounts to a deficient performance. However, this issue is now moot since we vacated the third felony offender finding and remanded the matter to the trial court pursuant to the discussion in Assignment of Error Number One.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred in denying his motion to reconsider sentence. There is no evidence in the record that defendant preserved |7his right to appeal either of his sentences by way of an oral or written motion to reconsider sentence, as required by LSA-C.Cr.P. art. 881.1. Additionally, defendant’s brief contains no argument in support of this assignment. Assignments of error that are neither briefed nor argued are considered abandoned on appeal. Uniform Rules Courts of Appeal, Rule 2-12.4; State v. Blank, 01-564, pp. 10-11 (La.App. 5 Cir. 11/27/01), 804 So.2d 132, 139. Therefore, we will not address this issue on appeal.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent. 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 following matters are presented for review.

First, there is no evidence in the record that defendant was arraigned after the bill of information was amended to add Count 2. Defendant did not object to the court’s failure to arraign him on the amended charge, nor does he complain of the error on appeal. He has, therefore, waived the issue and no corrective action is required. State v. Smith, 02-1018, p. 10 (La.App. 5 Cir. 3/11/03), 844 So.2d 119, 126.

Second, Defendant failed to make a timely motion for appeal. When this Court remanded the matter for the limited purpose of allowing defendant the opportunity to seek reinstatement of his appeal rights, defendant should have done so by way of an application for post-conviction relief in the district court. LSA-C.Cr.P. arts. 924-930.7; State v. Counterman, 475 So.2d 336, 339 (La.1985). Instead, defendant improperly filed a motion for out-of-time appeal in the district court. However, the state has not claimed prejudice and the Louisiana Supreme Court has recognized that appeals are favored in the law, and has disapproved of the dismissal of appeal on “hypertechnical grounds.” See, State v. Bunnell, 508 So.2d 55 (La.1987). Therefore, in the interest of judicial economy, we treat [ ^defendant’s appeal as proee-durally sound. See, State v. Armant, 02-907, pp. 4-5 (La.App. 5 Cir. 1/28/03), 839 So.2d 271.

Finally, LSA-C.Cr.P. art. 930.8 provides that a defendant has two years from the date “the judgment of conviction and sentence become final” within which to file a post-conviction relief application. This article requires that the trial judge inform a defendant of the prescriptive period at the time of sentencing. In the instant case, the judge instructed defendant that he would have “two years to file for post conviction relief.” The judge’s advice was incomplete because he failed to inform defendant that the prescriptive period will begin to run when the judgment of conviction and sentence becomes final. Therefore, we advise the district court to fully inform defendant of the provisions of Article 980.8 on remand.

In accordance with the above, we vacate the defendant’s third felony offender finding and enhanced sentence and remand this matter for resentencing on Count 1 of the original bill of information. We further affirm defendant’s conviction on Count 1 and conviction and sentence on Count 2.

REVERSED AND REMANDED.

      . This assignment is taken out of order, as it is closely related to the issue raised in Assignment of Error Number One.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terry PIERRE.
    No. 03-KA-1306.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Jackie Maloney, Assistant District Attorneys, Gretna, LA, for the State of Louisiana, Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Terry Pierre, Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

A Jefferson Parish Grand Jury returned an indictment charging the defendant, Terry Pierre, and co-defendant, Avrell Walker, with distribution of heroin, a violation of LSA-R.S. 40:966(A). The defendant pled not guilty at arraignment. Before trial, the court denied the defendant’s motion to exclude tape recorded conversations purported to have been made between the defendant and Brian Parent, a confidential informant, who was deceased at the time of trial.

The defendant proceeded to trial before a twelve-person jury, which found him guilty as charged on March 13, 2003. The trial judge denied the defendant’s motions for new trial and post-verdict judgment of acquittal. On March 24, 2003, the defendant was sentenced to life imprisonment without benefit of probation or suspension of sentence. This timely appeal follows.

FACTS

At trial, Louisiana State Trooper Dickinson testified that Brian Parent was arrested for selling heroin in May of 2000. In exchange for the district attorney’s |sagreement not to prosecute the heroin distribution charge against him, Parent agreed to become a confidential informant for the State Police. Thereafter, Parent consented to have his telephone calls taped between May 23, 2000 and May 23, 2001. A signed agreement evidencing this consent was introduced into evidence. Trooper Dickinson testified that Parent’s job was to name individuals selling heroin in New Orleans and Jefferson Parish and to make phone calls to arrange controlled purchases between these individuals and undercover agents. According to Trooper Dickinson, Parent identified the defendant as a target in the investigation.

Pursuant to Trooper Dickinson’s request, Parent placed a telephone call on July 21, 2000 to the defendant to arrange a sale of a bundle of heroin to an undercover officer posing as Parent’s cousin for $350. That day, Agent Moffett, who was the Drug Enforcement Administration’s (DEA) agent in this investigation, and several other law enforcement officials set up surveillance at the Salvation Army Building on Jefferson Highway and Monticello. Before the transaction took place, Trooper Fitzpatrick drove around the area to conduct pre-operational surveillance. Trooper Fitzpatrick testified that he observed the defendant driving a Ford Bronco on Monticello before the transaction, and he saw the Bronco twice more during the transaction.

Trooper Bradley, the officer who posed as Parent’s cousin, testified that, on July 21, 2000, he was in the parking lot of the Salvation Army Building with Parent, who was driving the vehicle. A black female, later identified as Avril Walker, walked past the truck into the thrift store. She exited shortly thereafter and approached the driver’s side of the vehicle. Walker handed Parent tissue paper containing foils, and Trooper Bradley handed Parent $350, which he gave to |4Walker. A videotape of this transaction was introduced into evidence and played for the jury while Trooper Bradley narrated.

Trooper Schmidt was called to testify. He stated that he observed Walker enter the thrift store and exit with a shopping bag after the transaction was completed. She walked south on Monticello toward the Bronco, which was parked on the side of the road. According to Trooper Schmidt, Walker was still heading toward the Bronco when the case officers decided to terminate the surveillance. After the transaction, the items in the tissue paper, which were 26 foils, tested positive for the presence of heroin.

Avril Walker testified that she had known the defendant all of her life, and had known Parent since 1984. Walker said that she and Parent smoked crack together every day until she was ultimately arrested in August of 2001. Walker admitted that she had two prior convictions, one for possession of a “pipe” and one for distribution of cocaine. Walker further acknowledged that she had entered into an agreement in which she would plead guilty to possession of heroin, instead of distribution, and would receive a ten-year sentence, subject to the court’s approval. The State also agreed not to file a multiple bill against her. In return, she agreed to testify against her suppliers. Walker said that the supplier in this heroin case was the defendant, Terry Pierre.

Walker testified that Parent called her early on July 21, 2000 and asked her to page the defendant. Parent wanted her to input his beeper number, and Walker complied; Walker testified that the defendant drove by her house later that morning and asked her if she knew Brian’s cousin. She replied negatively, but that she knew of him. The defendant told her that the heroin was on the “Pigeon town side of the levee by the Water Board, by the fence in a napkin on the ground.” Thereafter, Walker walked to the described location, found the heroin and brought | Bit to Parent at the Salvation Army. In exchange for the heroin, Parent handed her $350. Walker testified that she was to be paid $20 to deliver the heroin, but instead she kept the entire $350. Walker said that she used all of the money to smoke crack cocaine. She stated that she saw the defendant the next day, but they did not discuss the money that she kept. Walker said that she and the defendant did not speak again until the day she was arrested because she “messed up” by “smokfing] the money.”

At trial, Avril Walker identified the voices of Parent and the defendant on taped phone conversations. In the first conversation, Parent called the defendant and said that he was with his cousin and was ready to get “this bundle.” The defendant told Parent that he would have to come alone and that he was not trying to meet anyone new. The defendant mentioned that “Brian” could go get “it” from Avril, and they discussed locations. In the next conversation, Parent confirmed that the defendant was going to give “it” to Avril. Parent told the defendant to tell Avril to meet him at the Salvation Army at 3:00 p.m., and the defendant replied, “all right.”

By the time of trial, Parent had died as a result of an unrelated domestic disturbance.

DISCUSSION

On appeal, the defendant argues that the evidence was insufficient to establish beyond a reasonable doubt that he committed this crime. He contends that the evidence presented at trial was legally insufficient to support his conviction because the State failed to prove beyond a reasonable doubt that he acted with Avril Walker to deliver the heroin to Parent. According to the defendant, Walker’s testimony was not credible in light of her plea agreement with |fithe State that reduced her sentencing exposure from life to ten years of imprisonment.

In reviewing the sufficiency of evidence, this Court must determine whether, viewing the evidence, direct and circumstantial, in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 82. To support a conviction of LSA-R.S. 40:966(A), the State must prove that the defendant distributed a controlled dangerous substance classified in Schedule I. Heroin is a Schedule I controlled dangerous substance. LSA-R.S. 40:963(B)(11). The term “distribute” is defined as “to deliver a controlled dangerous substance ... by physical delivery.” LSA-R.S. 40:961(14). Delivery is defined as the “transfer of a controlled dangerous substance whether or not there exists an agency relationship.” LSA-R.S. 40:961(10). Delivery has also been jurisprudentially defined as transferring possession and control. State v. Celestine, 95-1393 (La.1/26/96), 671 So.2d 896, 897.

A defendant may be guilty of distribution as a principal if he “aids and abets in the distribution or if he directly or indirectly counsels or procures another to distribute a controlled dangerous substance.” State v. Bartley, 00-1370 (La.App. 5 Cir. 2/14/01), 782 So.2d 29, 32-33, writ denied, 01-717 (La.2/22/02), 809 So.2d 981. To support a defendant’s conviction as a principal, the State must show that the defendant had the requisite mental state for the crime. State v. Saylor, 01-451 (La.App. 5 Cir. 11/27/01), 802 So.2d 937, 941, writ denied, 01-3406 (La.10/4/02), 826 So.2d 1122. Distribution of a controlled dangerous substance only requires general intent. See State v. Banks, 307 So.2d 594, 596-597 (La.1975); State v. Ruffin, 02-798 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 631. General criminal intent is present whenever there is specific intent, and also when the |7circumstances indicate that the offender, 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. LSA-R.S. 14:10(2).

In State v. Staggers, 03-655 (La.App. 5 Cir. 10/28/03), 860 So.2d 174, this Court held that the evidence was sufficient to support the defendant’s conviction as a principal to distribution of cocaine even though the defendant never dealt directly with the undercover agent. In State v. Rexrode, (La.App. 3 Cir.1988), 536 So.2d 671, the evidence was sufficient to prove the defendant was a principal to distribution of marijuana when the defendant indirectly produced a seller for marijuana. The defendant told the undercover agent that he did not have any marijuana, but instructed his roommate to inquire about the availability of marijuana at a nearby lounge. The roommate then found a person who ultimately sold marijuana to the undercover officer. The court concluded that the defendant was guilty as a principal to distribution because he had aided the illegal transfer of marijuana by indirectly procuring the party who actually consummated the sale. State v. Rexrode, 536 So.2d at 676.

In the present case, while, the defendant was not directly involved in the transaction, the evidence reflects that the defendant facilitated the transaction and procured Avril Walker to deliver the heroin. According to Walker, the defendant described the precise location of the heroin and even described how it would be packaged. After speaking to the defendant, Walker went to the location, picked up the heroin and delivered it to Parent in exchange for $350. Further, the defendant was seen driving a vehicle near the Salvation Army Building prior to and during the transaction.

Although the defendant contends that Walker’s testimony was not believable, the jury obviously found otherwise. It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and a reviewing court will not |ssecond-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983); State v. Wallace, 00-1745 (La.App. 5 Cir. 5/16/01), 788 So.2d 578, 584, writ denied, 01-1849 (La.5/24/02), 816 So.2d 297.

After reviewing the record, we find that the evidence was sufficient for rational jurors, viewing the evidence in the light most favorable to the prosecution, to conclude beyond a reasonable doubt that the defendant was a principal to distribution of heroin. Accordingly, this assignment of error is without merit.

The defendant further assigns on appeal that the trial court erred in admitting the taped conversations of Brian Parent at the trial, because the tapes were inadmissible hearsay and violated his constitutional right of confrontation.

The United States Constitution, Sixth Amendment, guarantees the right of the accused in a criminal prosecution to be confronted with witnesses against him. This right encompasses the right physically to face those who testify against him, and the right to conduct cross-examination. Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988). Additionally, the confrontation clause of the Louisiana Constitution Article I, Section 16 specifically affords the accused a right to cross-examine the witnesses against him.

On March 12, 2003, the day of trial, the defendant filed a motion seeking dismissal of the prosecution on the basis that his right of confrontation would be abridged by Parent’s absence. He argued that, because Parent was dead, he could not cross-examine Parent about the taped conversations. After argument by the defense and the State, the trial judge denied the motion.

That same day, the defendant, through counsel, filed a motion to suppress the taped conversations on the basis that there was no evidence that either party gave consent to have the conversations recorded. The defendant asserted that the | Badmission of the tapes would abridge his right to confront and cross-examine Parent on the voluntariness of Parent’s consent because Parent was deceased. The State responded that Trooper Dickinson had obtained Parent’s consent and that Parent had signed a written agreement evidencing his consent. The trial judge denied the motion to suppress the taped conversations.

The defendant contends in this assignment that the trial court erred by admitting the tapes, because they constituted inadmissible hearsay. The defendant raises this hearsay argument for the first time on appeal. Instead of hearsay, the defendant’s motion to suppress was based on the inability to cross-examine Parent regarding his consent to have his phone conversations taped. In fact, defense counsel specifically stated that the basis of the motion was the “right of confrontation with Mr. Parent on the coerciveness of this consent, the duress of this consent, and so forth, and his unavailability for us to be able to cross-examine him with regard to that consent.”

Both this Court and the Louisiana Supreme Court have held that a new basis for an objection may not be raised for the first time on appeal. State v. Cooks, 97-999 (La.9/9/98), 720 So.2d 637, 644, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999); State v. Myers, 584 So.2d 242, 255 (La.App. 5 Cir.1991), writ denied, 588 So.2d 105 (La.1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992). While the defendant contends that the judge erred in determining that the tapes were not inadmissible hearsay, the trial judge did not make such a ruling. As such, there is no hearsay ruling for this Court to review. In State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 77, writ denied, 98-264 (La.6/19/98), 719 So.2d 481, this Court addressed the defendant’s assigned error only on the basis of the objection raised at trial, not the new basis urged for the first time on appeal. Accordingly, we review this assignment on the basis urged at trial, which was that the defendant’s right of | mconfrontation was abridged because he could not cross-examine Parent on the vol-untariness of his consent to allow his telephone conversations to be recorded.

At the suppression hearing, the defendant argued that there was no evidence that either Parent or the defendant consented to the interception of the conversations. The Electronic Surveillance Act, LSA-R.S. 15:1301, et seq., generally prohibits the interception and disclosure of wire or oral communications. However, there are exceptions to this general prohibition, such as where one of the parties to the communication consents to its interception. LSA-R.S. 15:1303(0(3) and (C)(4).

In State v. Esteen, 02-1241 (La.App. 5 Cir. 4/29/03), 846 So.2d 167, writ denied, 03-1486 (La.1/9/04), 862 So.2d 978, this Court held that a police officer’s testimony was sufficient to show the voluntariness of a cooperating source’s consent to a taped telephone conversation between the defendant and the source. In Esteen, the Jefferson Parish Sheriffs Office received information that one of their deputies was trafficking in cocaine. Further investigation revealed that the deputy was “experimenting” with cocaine and marijuana, and that the defendant was suspected to be the supplier of the marijuana. The deputy was taken into custody and agreed to cooperate in the investigation. The cooperating deputy agreed to telephone the defendant in an attempt to purchase marijuana, and the telephone conversation was recorded and monitored under police supervision. Id. at 171.

At a hearing on the defendant’s motion to suppress the taped conversation, one of the police officers testified that the cooperating deputy had consented to having that officer listen in on the conversation. The officer further testified that he did not threaten the deputy or force him to make the telephone call. The cooperating deputy did not testify at the hearing or at trial, because he was “at hdarge.” The trial judge denied the motion, and the taped conversation was admitted at trial over the defendant’s objection. State v. Esteen, supra at 173.

On appeal, the defendant contended that the trial judge erred in denying the motion to suppress the conversation in which the defendant and the cooperating deputy “purportedly discussed the purchase of marijuana.” Id. at 176. This Court found that the police officer’s testimony at the motion hearing was sufficient to establish the voluntariness of the cooperating deputy’s consent. Further, this Court concluded that any prejudice that might have accrued to defendant was harmless, in light of the evidence against defendant and because the conversation was “so ambiguous that it was not apparent what the subject of the conversation was.” Id. at 176.

In the present case, Trooper Dickinson testified that Parent had voluntarily agreed to permit his conversations to be recorded between May 23, 2000 and May 23, 2001. He stated that Parent worked with the State Police as a confidential informant between one year and one year and a half. He further testified that Parent was never forced, threatened or coerced into making recorded phone calls. In this case and in State v. Esteen, taped conversations were admitted at trial, but the cooperating informant was not available to testify. Further, like the tapes in Esteen, the tapes in the present case could be construed to be ambiguous. The word “heroin” was never mentioned and some of the exchange on the tape is inaudible.

Considering the record before us and the caselaw, particularly State v. Esteen, we find that Trooper Dickinson’s testimony at the motion hearing was sufficient to establish that Parent’s consent was voluntary. However, even if the tapes had not been admissible, the tapes were harmless.

| ^.Confrontation errors are subject to a harmless error analysis. State v. Louviere, 00-2085 (La.9/4/02), 833 So.2d 885, 905, cert. denied, — U.S. -, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003). When there are confrontation errors, the verdict may still stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Id.

In the instant case, the State’s evidence established that the defendant provided instructions to obtain the heroin and that the defendant was in the area of the transaction when it occurred. Avril Walker’s testimony established that the defendant told her where to find the heroin and that she went to meet Parent after picking up the heroin. There was testimony from the officers at the scene that the defendant was driving a vehicle in the area of the drug transaction before and during the transaction. Based on the foregoing, even if these tapes should have been excluded, the guilty verdict was surely unattributable to any error in admitting the tapes. Furthermore, we note that even if a hearsay ruling had been made and were reviewable by this Court, the record reveals that the taped conversations that were monitored by the police were admissible as statements against interest, which is an exception to the hearsay rule. LSA-C.E. art. 804(B)(3). Accordingly, this assignment of error is without merit.

In his third and final assignment of error, the defendant argues that, based on recent legislation eliminating a mandatory life sentence for distribution of heroin, the mandatory minimum sentence of life imprisonment is unconstitutionally excessive.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is excessive if it is grossly disproportionate to the seriousness of the offense so as to shock our sense of justice, or if it imposes | ^needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Brown, 01-160 (La.App. 5 Cir. 5/30/01), 788 So.2d 667, 674.

Prior to June 15, 2001, LSA-R.S. 40:966(B)(1) provided that distribution of heroin was punishable by a mandatory sentence of life imprisonment without benefit of probation or suspension of sentence. The Louisiana Supreme Court has held that a mandatory sentence of life imprisonment for distribution of heroin is not unconstitutional. See Richardson v. La. Dep’t of Public Safety and Corrections, 627 So.2d 635, 637 (La.1993), and the cases cited therein. See also State v. Jackson, 99-1368 (La.App. 5 Cir. 5/17/00), 762 So.2d 253, writ denied, 00-1948 (La.9/21/01), 797 So.2d 60, where this Court held that a mandatory life sentence for distribution of heroin was not unconstitutional despite the defendant’s age, twenty-one, and the fact that distribution of heroin is a non-violent crime.

Mandatory sentences generally fall within the legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies. State v. Barberousse, 480 So.2d 273, 280 (La.1985). However, in State v. Dorthey, 623 So.2d 1276, 1280 (La.1993), the Louisiana Supreme Court recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676, the Louisiana Supreme Court reexamined Dorthey, and outlined the criteria a defendant must meet in order to show that a mandatory minimum sentence under the Habitual Offender Law is constitutionally excessive. Although Dorthey involved a mandatory enhanced sentence, this Court has applied the principles set out in Dorthey to the review of mandatory life sentences other than those imposed under the Habitual Offender Law. See State v. Temple, 01-655 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 707, unit denied, 02-234 (La.1/31/03), 836 So.2d 58.

|14In order to rebut the presumption that a mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” State v. Johnson, supra at 676. A sentencing court should exercise its authority to declare excessive a mandatory minimum sentence only under rare circumstances. State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339, 345.

Act 403 of the 2001 Regular Session, effective June 15, 2001, changed the penalty for distribution of heroin to not less than five nor more than fifty years at hard labor, at least five years of which shall be served without benefit of probation, or suspension of sentence. The Louisiana Supreme Court has held that the changes mandated by Act 403 do not apply to sentences imposed for crimes committed before the Act’s effective date. State v. Barnes, 02-2059 (La.4/4/03), 845 So.2d 354; State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, 520. The Sugasti court stated that, although a trial judge should consider the ameliorative changes in the law when imposing sentence, the trial judge should not derogate from the penalty provision in effect at the time of the commission of the offense. Id. at 521.

In the present case, the defendant urged the trial judge to consider the recent reduction of the penalty for distribution of heroin at the hearing on his motion for new trial and objected to the sentence as excessive on this basis at sentencing. However, the defendant did not urge the court to consider a downward departure from the mandatory sentence under Dor-they or Johnson, and he did not set forth exceptional circumstances warranting a downward departure. Further, the defendant did not offer any evidence to rebut the presumption that the mandatory sentence is constitutional. At the hearing on the motion for new trial, the judge Instated that he was aware of the recent change in the law, and that life imprisonment was a “harsh” penalty, but emphasized that our supreme court has held that the appropriate penalty provision is the law in effect at the time of the offense. At sentencing, the court imposed the life sentence, noting that the law in effect at the time of his offense provided for the mandatory penalty.

In State v. Harris, 02-873 (La.App. 5 Cir. 1/28/03), 839 So.2d 291, 295, writ denied, 03-0846 (La.10/31/03), 857 So.2d 474, the defendant made no argument and presented no evidence regarding a downward departure from the mandatory minimum life sentence. As such, this Court held that defendant failed to carry his burden under Johnson, and concluded that the defendant’s life sentence is not excessive.

In this case, the defendant failed to make any argument or present any evidence in support of a downward departure from the mandatory minimum life sentence. Accordingly, we conclude that the defendant failed to meet his burden of showing that the mandatory life sentence that he received is unconstitutional. Therefore, this assignment of error is without merit.

Finally, 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 case that require correction.

DECREE

For the reasons set forth above, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . In the transcript, Walker’s first name is spelled "Avril,” while it is spelled "Avrell” in the indictment. Hereinafter, Walker's first name is spelled Avril as it is in the transcript.

      . Trooper Dickinson explained that a bundle of heroin contains 25 or 26 foils of heroin.

      . At trial, the officers explained that the delay between the transaction and the arrest of Walker and the defendant was to protect the identity of the confidential informant.

      . When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the appellate court first determines the sufficiency of the evidence. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 55, citing, State v. Hearold, 603 So.2d 731, 734 (La.1992). Therefore, the error concerning the sufficiency of the evidence is considered first, even though it was assigned second.

      . See also United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir.1988), wherein the court held that the admission of a recorded telephone conversation between a party cooperating with the DEA and the defendant did not violate defendant’s right of confrontation.


author: THOMAS F. DALEY, Judge.

text:
    Shane FORRESTER v. NEW ORLEANS IRON WORKS.
    No. 03-CA-1194.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      M. Elizabeth Bowman, Gretna, LA, for Plaintiff/Appellee.
    Robert J. May, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

Shane Forrester (Forrester) was injured in the course and scope of his employment with New Orleans Iron Works while installing metal flashing on a fan house atop a building at the Lockheed Martin facility. While working on the roof of the building, Forrester fell off, sustaining injuries. He was treated at Charity Hospital in New Orleans, where a urinalysis tested positive for the presence of marijuana in his system. After he filed a claim for benefits, New Orleans Iron Works denied his claim, raising the defense of intoxication. The trial court found that Forrester rebutted the presumption of intoxication at the time of the accident, specifically finding that Forrester was a credible witness.

New Orleans Iron Works appeals this finding, arguing that the trial court erred as a matter of law by not applying the presumption of intoxication or applying it incorrectly. They argue that the trial court erred by placing the burden of proof on appellants to show that Forrester was intoxicated, rather than requiring Forres-ter to show that he was not intoxicated. They argue that Forrester did not rebut the presumption of intoxication, because his movements within the hour 13before the accident are unaccounted for, and he could have smoked pot in the hour before the accident. They also argue that this is the type of accident that could not have happened if Forrester were not intoxicated.

After thorough review of the record and evidence, we find that the trial court correctly applied the presumption of intoxication, and further, the trial court’s finding that Forrester successfully rebutted the presumption, is not manifestly erroneous. Accordingly, we affirm the judgment.

ANALYSIS

Under LSA-R.S. 23:1081(l)(b), an employee is not entitled to workers’ compensation benefits for an injury caused by the employee’s intoxication. The employee is presumed to be intoxicated if there was, at the time of the employee’s accident, evidence of either on-the-job or off-the-job use of a non-prescribed controlled substance. LSA-R.S. 23:1081(5). Once the employer shows that the employee was intoxicated at the time of a job accident, the intoxication is presumed to have caused the accident. LSA-R.S. 23:1081(12). The employee then has the burden of proving that the intoxication was not a contributing cause of the accident. Id.

Thus, the statute leads to two rebuttable presumptions: first, that a positive drug test establishes the presumption of intoxication, and second, that intoxication was presumed to have caused the accident.

|4The burden rests with the party challenging the rebuttable presumption to convince the fact-finder that his proposed conclusion is more correct than the presumed one; a presumption does not have any probative value, but merely provides the fact-finder with a conclusion in the absence of proof to the contrary. Whiting v. Aadvance Insulation Services, 98-1238 (La.App. 5 Cir. 6/1/99), 738 So.2d 685.

In determining whether a workers’ compensation claimant discharged his burden of proving that intoxication was not a contributing cause of the accident in order to defeat the employer’s intoxication defense, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of this testimony. Id.

A trial judge’s findings of fact, including evaluations of credibility of the witnesses, are reviewed on appeal under the clearly wrong/manifest error standard, and may not be disturbed on appeal so long as they are reasonable.

As this court stated in Bernard v. Cox Communications, Inc., 01-1321 (La.App. 5 Cir. 3/26/02), 815 So.2d 259, the seminal question is not so much whether the plaintiff tested positive for marijuana use, but whether the presence of the drug caused him to be intoxicated and, if not, whether he successfully rebutted the presumptions of intoxication and causation arising from the test result.

In this case, the proof of intoxication was a urinalysis performed when Forres-ter was admitted to Charity Hospital that was positive for the presence of marijuana in Forrester’s system. Dr. Francis Ragan, Jr., an expert toxicologist with The Medical Center of Louisiana, Charity Hospital, testified in a deposition regarding Forres-ter’s urinalysis and the testing procedures employed by the hospital. He stated that a urinalysis can be positive for marijuana use up to 30 days after actual usage. He testified that Forrester’s urinalysis showed the presence of cannabinoids in his system, but the test was not quantitative, i.e., not useful for | «¡showing how much drug was in Forrester’s system. The standard test performed at the hospital was not useful for showing whether an individual was impaired, he said, but only that he had used marijuana in the past 30 days. The positive test result, Dr. Ragan testified, did not indicate when a person used marijuana or how much.

Forrester testified that he was employed by New Orleans Iron Works at the time of his accident and that he had been on this job at the Lockheed Martin facility for around 12 days. Forrester established that he was working an 8 hour shift up on a flat roof 30 feet above the ground. The accident occurred when Forrester had one hour left on his shift. He typically worked from 6:00 p.m. until around 4:00 a.m., but on this particular night, the NASA supervisor, David Wells (Wells), wanted Forrester and his co-worker, David Snyder (Snyder), to finish early, around midnight, because Wells needed to leave at that time. Forrester and Snyder both testified that they were making every effort to be done at that time, but that they informed Wells the work would not quite be done at midnight, and that Wells had approved.

Forrester testified that he arrived at the site around 5:15 p.m. and waited for his coworker Snyder, who was also his supervisor, to arrive. Brent Bufford (Brent), the owner of New Orleans Iron Works, came by for a short time that night to check on them. Forrester also said that another coworker, Jessica, was there early in the shift to act as a fire watch for some welding, but that she was done early and left thereafter. Forrester parked his truck next to the building where he was working, about 20 feet from the ladder they used to gain access to the roof of the building.

Forrester testified that he worked on the roof, which was approximately 30 feet high. The only time he came down was for lunch or a bathroom break. The building’s dimensions were approximately 60 feet by 30 feet. Six fan houses were | ^located on the roof. These fan houses were an additional 15 to 18 feet high and housed large fans and equipment. On the day of the accident, Forrester and Snyder were installing metal flashing on Fan House # 6.

Forrester testified that the roof was illuminated by two large floodlights belonging to the roofer. He said they illuminated their immediate workspace and the area near the ladder, but did not shine all the way to the edge of the roof, which was in darkness.

Forrester testified on that particular day, he and Snyder had. taken 2 breaks; one while Brent went to get materials, and one around 11 pm, when they each ate something and sat on Snyder’s tailgate and smoked some cigarettes. Forrester testified that he took no other breaks that shift. Snyder testified he could not remember what breaks Forrester took that night other than the one where they ate together. Forrester also stated that it was his practice to inform Snyder if he was going to take a bathroom break, because he didn’t want Snyder having to look for him while he was gone.

Forrester stated that the accident occurred as he was trying to straighten out a 200 foot extension cord. He and Snyder had finished installing the flashing and were working separately at different tasks, and had been for about an hour. As he straightened the cord, he walked backwards towards the roofs edge. Forrester testified that he knew the edge of the roof was coming up. As he turned to look for the edge, he stepped off at the same moment. He testified that he pushed off the roof with his other foot in an attempt to land on his feet rather than on his back or neck. He landed in gravel, twisted to his right side, and fell.

Forrester said that safety harnesses were never mentioned or used. Snyder testified that harnesses were used when work took place near the edge of the roof. They were not used on that night because the work on Fan House # 6 took place away from the edge.

|7Installing the flashing was a two person job, Forrester testified, one of them inside the fan house and one outside. Though they could not always see each other because of the fan house wall, they were in constant verbal contact and could see each other’s hands as they installed the flashing together. At the time of the accident, Forrester and Snyder had not been working together for approximately the last hour. After they finished installing the flashing together, Snyder was applying tar inside the corners of the fan house, while Forrester was going behind him, putting in screws. This work took them out of sight and hearing of each other. Snyder testified that during the last hour to hour and a half, he had no direct contact with Forrester and could not hear his activities, due to the loudness of the machinery on the roof.

The accident occurred on a Monday night. Forrester admitted to having smoked marijuana on the Saturday night before the accident, at the wedding of one of his friends. He explained that he had not smoked pot for around four months before this incident, and that he did not smoke on Sunday or on the day of the accident. He denied being under the influence of the drug at work. On cross examination, he admitted telling Brent, after the accident when Brent offered to move his truck from the job, that he had a pipe in his truck that he had used to smoke marijuana in the past, but that he explained at trial that he had not used that pipe in several months. The pipe itself was never tested and was not entered into evidence. Forrester said that he did not use marijuana daily, but only “every now and then.”

David Snyder, an employee of New Orleans Iron Works and Forrester’s co-worker and supervisor on that shift, corroborated Forrester’s description of the work they performed that evening and the fact that they worked together most of the evening until about the last hour or so. When asked if he felt that Forrester was impaired that night, he replied that “Shane was Shane to me.” He explained that he |sdid not have much eye-to-eye contact with him to tell if he was intoxicated, but he testified that Forrester performed his job well that night and did not recall him performing his tasks incorrectly. He felt that Forrester did not appear to be any different than any other time he’d worked with him. If Forrester was under the influence of something, Snyder said he was not aware of it. He was never worried about working with Forrester, that night or any night, he testified. Snyder testified that Forrester had had no accidents, or even near misses, up to that point on this job. He testified that he didn’t watch over Forrester because Forrester was doing his job. He said he wouldn’t have much use for an employee who needed to be watched in order to perform his work. His overall characterization of Forrester was of a responsible employee who knew how to perform his job and did so reliably.

On cross examination, Snyder said that he was unaware if Forrester ever left the roof during that last hour or so before the accident. He agreed that Forrester could have left the roof that last hour without Snyder being aware of it. Snyder was not aware when Forrester fell off the roof, until security called him to ask if they had a man down.

Snyder didn’t recollect that Wells told them to hurry, only that he wanted to be finished early that evening. Snyder said that he was very safety conscious and would not rush a job and risk injury to himself or a co-worker. Snyder stated that there were two flood lights on the roof. One was aimed at the fan house and the other aimed off towards the edge of the roof in direction of the ladder. He testified that the ground lighting lit up the ladder fairly well. Snyder testified that Brent was present early on to check on them, but left early with Jessica.

Jessica Landry testified that she was an employee of New Orleans Iron Works and that she had been on site briefly that night. She denied having performed fire watch duties that night, as Forrester testified, and said she left early | gbecause she was not needed. She remembered seeing Forrester briefly that night, but didn’t converse with him enough to have an opinion whether he was impaired or under the influenced of something.

Brent Bufford, the owner of New Orleans Iron Works, testified that he, too, was on site briefly that night, but did not converse with Forrester enough to form an opinion on his possible impairment. He did state that Forrester had never been reprimanded for being intoxicated at work. He said that New Orleans Iron Works had a drug test policy, but that Forrester had never been tested.

Following the close of testimony, the trial court ruled from the bench that For-rester was a credible witness, and he found that Forrester was not intoxicated at the time of the accident.

Appellant first argues that the trial court erred in either failing to apply the presumption of intoxication or implying it incorrectly. Appellant argues that the trial court appears to have required New Orleans Iron Works to prove that Forres-ter was intoxicated, rather than have For-rester prove he was not intoxicated or that his intoxication did not cause the accident.

After reviewing the record as a whole, we cannot say that the trial court erred in its application of R.S. 23:1081’s presumption. There is simply no indication that the trial court required defendant to prove Forrester was intoxicated. At the close of testimony, the trial court stated:

It’s the ruling of the Court that Mr. Forrester is a credible witness and I do not find Mr. Forrester to have been intoxicated on the night of the accident.

We find that the trial court correctly applied the presumption, and required Mr. Forrester to rebut the presumption of intoxication supplied by the positive drug test. There is simply no indication that the trial court required defendant to prove that Forrester was not intoxicated.

| mAppellant argues that the trial court erred in accepting Forrester’s uncorroborated, self serving testimony that he smoked marijuana two days before the accident, but not on the day of the accident. Appellant claims that in the hour before the accident, when he and Mr. Snyder were working separately, no one observed Forrester’s movements, and For-rester could have gone down off the roof, to his truck parked nearby, smoked marijuana, where he admitted the presence of a marijuana pipe. Appellant contends that Forrester did not produce any witnesses who had seen him shortly before the accident who could corroborate his claim that he had not smoked marijuana shortly before the accident. Appellant cites two cases, Johnson v. Abraham Payton Roofing and Company, 99-1967 (La.App. 4 Cir. 4/5/00), 761 So.2d 30, and Johnson v. Envi-roBlast, 01-0200 (La.App. 1 Cir. 12/28/01), 804 So.2d 924, for the proposition that co-employee testimony about the claimant’s demeanor and possible intoxication is insufficient to rebut the presumption when the testifying co-employee did not see the accident and/or see the employee immediately before the accident.

Those cases can be distinguished from the instant case. In both cases, circumstances cast suspicion on the reliability of the claimant’s testimony. First, in Johnson v. Abraham Payton Roofing and Company, the claimant’s credibility was seriously undermined when he denied using alcohol on the day of or cocaine within 72 hours of the accident. Though Mr. Johnson denied using alcohol or cocaine in temporal proximity of the accident, he did describe his long-term, daily very heavy drinking and occasional use of crack cocaine. An expert toxicologist testified that someone with Mr. Johnson’s blood alcohol levels had to have used alcohol shortly before the accident, and would show substantial impairment, and the cocaine metabolites in his blood indicated usage within the last 72 hours. Moreover, Mr. Johnson relied on a co-worker witness, a Mr. Pay-ton, who testified that Mr. Johnson did not seem impaired that day, but admitted that there were Intimes he (Payton) left on errands and Mr. Johnson was alone. The court found that Mr. Payton’s testimony was not enough to overcome the very convincing evidence of intoxication supplied by the alcohol test levels and the toxicologist, in part because he was not at the job site for substantial periods of time in order to observe Mr. Johnson.

In EnviroBlast, the judge found that the claimant failed to rebut the presumption that he was intoxicated, after a drug test was positive for the presence of cocaine. Johnson denied cocaine use on the specific day of the accident, but admitted to off-the-job usage of cocaine on other work days on a weekly basis and admitted to using cocaine two and a half days before the accident. The trial judge specifically found that he had a “problem” with drugs, as evidenced by two positive drug tests. The court of appeal found that in light of the claimant’s testimony regarding the frequency of his drug use, the trial court was justified in discounting the claimant’s self serving testimony that he did not use drugs in the immediate two days before the accident. Co-workers testified that Johnson seemed normal to them that day, but this testimony was found insufficient to rebut the presumption that intoxication was a contributing cause of the accident in light of the positive drug test and the fact that the witnesses had not seen Johnson for around an hour before the accident.

Forrester, on the other hand, was found to be a credible witness. We note that his admission of marijuana use two days before the accident was corroborated by his positive drug test, unlike in Mr. Johnson’s case, who denied alcohol or cocaine usage in the face of positive tests that showed very recent usage. Second, Dr. Ragan, in this case, could not say, based upon For-rester’s drug test, that he was or would have been impaired at the time of the accident, but that the test showed |1?,only that Forrester had used marijuana in the past 30 days or so. In Johnson, the toxicologist testified that the high serum alcohol levels alone would have caused Mr. Johnson to show serious impairment at the time of the accident. In Johnson, the only evidence presented to rebut the presumption of intoxication was the claimant’s testimony, who was specifically found not credible, and a co-worker’s, whose testimony was found inadequate rebut the presumption based upon the fact that he was absent much of the day.

Forrester’s co-worker witnesses characterized him as a responsible employee who performed his job well, did not need to be watched over to perform his job, and who had never been reprimanded for being intoxicated on the job. Snyder testified that Forrester had no previous accidents or even near-misses. Based upon Forrester’s demeanor and performance that night, Snyder had no reason to believe that he was impaired or under the influence of a drug. In all material aspects, Snyder’s testimony corroborated Forrester’s.

The fact that Snyder did not observe Forrester in the hour immediately preceding the accident does not discredit Forres-ter’s testimony. The defendant posits the theory that Forrester, since he was unobserved, might have left the roof, smoked pot, and returned to the roof. This theory, which is unsupported by any evidence, is mere speculation. It is not consistent with the testimony of witnesses who established that Forrester was a responsible, reliable worker, nor does it seem likely since For-rester and Snyder were working to finish early to accommodate the NASA supervisor.

We also find that this accident is not the type that is explained solely by intoxication. This accident took place on top of a 30 foot roof around midnight. Only parts of the- roof were illuminated fully. The area where Forrester fell was not fully illuminated. Forrester testified that he was aware that he was approaching the edge of the roof, and actually turned to look for it as he stepped off. He 113testified he was able to push off the roof with his other foot in an attempt to land on his feet. Forrester, though always aware of the edge of the roof, simply misjudged his distance to the edge, which, given all of the conditions, is not the type of occurrence explained only by intoxication. This accident is easily explained by ordinary negligence, which is not a bar to recovery. Sweeden v. Hunting Tubular Threading, Inc., 01-724 (La.App. 5 Cir. 12/12/01), 806 So.2d 728.

Accordingly, we find no error in the trial court’s ruling. We find that the trial court correctly applied the presumptions found in LSA-R.S. 23:1081. We further find no manifest error in the trial court’s finding that Forrester was a credible witness and that he successfully rebutted the presumption that he was intoxicated at the time of this accident.

AFFIRMED.

      . No compensation shall be allowed for an injury caused:* * *
      (b) by the injured employee's intoxication at the time of the injury, unless the employee's intoxication resulted from activities which were in pursuit of the employer's interests or in which the employer procured the intoxicating beverage or substance and encouraged its use during the employee’s work hours. LSA-R.S. 23:1081(l)(b).

      . "If there was, at the time of the accident, evidence of either on or off the job use of a nonprescribed controlled substance as defined in 21 U.S.C. § 812, Schedules I, II, III, IV, and V, it shall be presumed that the employee was intoxicated.'' LSA-R.S. 23:1081(5).

      ."Notwithstanding any language to the contrary, once the employer has met the burden of proving intoxication at the time of the accident, it shall be presumed that the accident was caused by the intoxication. The burden of proof then is placed upon the employee to prove that the intoxication was not a contributing cause of the accident in order to defeat the intoxication defense of the employer.”

      . The second drug test was performed seven days after the accident and was positive for cocaine. Though it was not relevant for the presumption of intoxication at the time of the accident, the court clearly found it relevant for purposes of the claimant’s credibility regarding his drug usage.


author: MARION F. EDWARDS, Judge.

text:
    Darlene Lebeau CARMOUCHE v. Myron Joseph CARMOUCHE.
    No. 03-CA-1106.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Mark A. Marino, Destrehan, LA, for Appellant.
    Steven F. Griffith, Sr., Destrehan, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and MARION F. EDWARDS.
   MARION F. EDWARDS, Judge.

Appellant, Myron Joseph Carmouche, appeals from a judgment of the trial court that fixed an amount of child support for his two children and granted interim periodic spousal support to his former wife, Darlene Lebeau Carmouche. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

Darlene Lebeau Carmouche (“Ms.Car-mouche”) filed a Petition for Divorce, pursuant to La. C.C. art. 102, on April 24, 2003 in the Twenty-Ninth Judicial District Court for the Parish of St. Charles. In her petition, Ms. Carmouche further sought interim periodic spousal support and child support for the Carmouches’ two children from her husband, Myron Joseph Carmouche (“Mr.Carmouche”).

On June 6, 2003, the trial court held a hearing on Ms. Carmouche’s claims for child and spousal support. On June 23, 2003, the trial court bordered that Mr. Carmouche pay $600 per month in child support and $300 per month to Ms. Car-mouche in interim periodic spousal support.

It is from this judgment that Mr. Car-mouche has timely filed the present appeal.

LAW AND ANALYSIS

The standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find from the record there is a reasonable factual basis for the finding of the fact finder, and (2)- the appellate court must further determine the record establishes the finding is not clearly wrong (manifestly erroneous). Factual findings should not be reversed on appeal absent manifest error. If the trial court’s “findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous.

In his first assignment of error. Mr. Carmouche contends that the trial court abused its discretion “in not applying the affect of a shared custodial arrangement under Louisiana Revised Statute 9:315.9 as it pertains to the setting of child support.”

The record shows that Mr. and Ms. Car-mouche had both previously agreed and maintained a voluntary joint custody arrangement for their children under which the parties alternated custody on a weekly basis. Accordingly, LSA-R.S. 9:315.9 provides, in relevant part:

(2) If the joint custody order provides for shared custody, the basic child support obligation shall first be multiplied by Rone and one-half and then divided between the parents in proportion to their respective adjusted gross incomes.
(3) Each parent’s theoretical child support obligation shall then be cross multiplied by the actual percentage of time the child spends with the other party to determine the basic child support obligation based on the amount of time spent with the other party.
(4) Each parent’s proportionate share of work-related net child care costs and extraordinary adjustments to the schedule shall be added to the amount calculated under Paragraph (3) of this Subsection.
(5) Each parent’s proportionate share of any direct payments ordered to be made on behalf of the child for net child care costs, the cost of health insurance premiums, extraordinary medical expenses, or other extraordinary expenses shall be deducted from the amount calculated under Paragraph (3) of this Subsection.
(6) The parent owing the greater amount of child support shall owe to the other parent the difference between the two amounts as a child support obligation. The amount owed shall not be higher than the amount which that parent would have owed if he or she were a domiciliary parent.
B. Worksheet B reproduced in R.S. 9:315.20, or a substantially similar form adopted by local court rule, shall be used to determine child support in accordance with this Subsection.

The trial court in this case did, in fact, use Worksheet B to determine Mr. Car-mouche’s child support obligation in this case. Mr. Carmouche maintains however, that the trial court failed to follow the directions on lines 13 and 14 of the form, and should not have used Ms. Carmouche’s child support obligation on line 13 without subtracting Mr. Carmouche’s obligation for support in column A of line 13.

There is a rebuttable presumption that the amount of child support obtained by use of the guidelines is the proper amount of child support. Generally, however, the trial court’s order of child support is entitled to great weight and will not be disturbed on appeal absent clear abuse of discretion.

IfiAfter a review of the record, we find that the court did not abuse its discretion in this case in awarding $600.00 per month in child support for Mr. Carmouehe’s minor children.

Mr. Carmouche next asserts that the trial court erred in ordering that the parties equally share any uncovered medical expenses.

LSA-R.S. 9:315.5 states, “By agreement of the parties or order of the court, extraordinary medical expenses incurred on behalf of the child shall be added to the basic child support obligation.”

As the court noted in Welbome v. Wel-bome, however:

As to future medical expenses not covered by insurance, this court has repeatedly held that the express legislative approval of the addition of extraordinary medical expenses to the basic child support obligation under La.R.S. 9:315.5 does not preclude the trial court from ordering one or both parties to pay ordinary, noncovered, medical expenses. See Hutto v. Kneipp, 627 So.2d 802 (La.App. 2d Cir.1993); Settle v. Settle, 25,643 (La.App.2d Cir.3/30/94), 635 So.2d 456; Holdsworth v. Holdsworth, 621 So.2d 71, (La.App. 2d Cir.1993).

Similarly, in this case, we find no abuse of discretion in the trial court’s ruling related to uncovered medical expenses in regard to their child support obligations.

In his last assignment of error, Mr. Carmouche asserts that the trial court abused its discretion in allowing interim spousal support to Ms. Carmouche. Specifically, Mr. Carmouche asserts that the evidence provided to the court established that her economic circumstances indicated that she had sufficient income for her maintenance.

The trial court is vested with much discretion in determining awards of spousal support, and such determinations will not be disturbed absent a | ficlear abuse of discretion. In order to demonstrate need for interim periodic spousal support, the claimant spouse has the burden of proving that she lacks sufficient income to maintain the standard of living that she enjoyed while residing with her spouse.

In this case, the trial court noted in its Reasons For Judgment, “On the spousal support issue, the Court notes that Mrs. Carmouche has a shortfall of $300.00 per month on nominal, bare subsistence living expenses.” After a review of the record, we find the trial court’s conclusion to be reasonably supported, as the trial court both heard the testimony of Ms. Car-mouche regarding her income and expenses and had the opportunity to review the supporting documentation entered into evidence. Accordingly we find this assignment to be without merit.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

      . Rosell v. ESCO, 549 So.2d 840, 844 (La.1989);

      . Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

      . Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993).

      . La. R.S. 9:315.1(A); Campbell v. Campbell, 95-1711, p. 5 (La.App. 1 Cir. 10/10/96), 682 So.2d 312, 317.

      . Campbell v. Campbell, 95-1711, p. 4 (La.App. 1st Cir. 10/10/96), 682 So.2d 312, 316.

        .Welborne v. Welborne, 29,479 (La.App. 2 Cir. 5/7/97), 694 So.2d 578, 583; writ denied, 97-1800 (La. 10/13/97), 703 So.2d 621; writ denied, 97-1850 (La. 10/13/97), 703 So.2d 623.

      . McDermott v. McDermott, 32,014 (La.App. 2 Cir. 6/16/99), 741 So.2d 186, 188.

      . Thomey v. Thomey, 33,000 (La.App. 2 Cir. 4/7/00), 756 So.2d 698, 702.


author: JACHARLES R. JONES, Judge. TOBIAS, J.,

text:
    The Reverend Deninah WEBB-GOODWIN v. Kimberly Williamson BUTLER, etc.
    No. 2004-CA-0280.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 23, 2004.
    Reverend Deninah Webb-Goodwin, New Orleans, LA, in Proper Person, Plaintiff/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., and MOON LANDRIEU Judge Pro Tempore.
   JACHARLES R. JONES, Judge.

This suit involves a question of the qualifications of a candidate for the office of Member, Louisiana Democratic State Central Committee, 100th Representative District, Office “A.” La. R.S. 24:35.5. The plaintiff/appellant, Deninah Webb-Goodwin (hereinafter, “Ms.Goodwin”), appeals a judgment dated February 18, 2004, of the district court finding that the defendant/appellee, Crystal Walker-McCullom (hereinafter, “Ms.McCullom”), shall remain a candidate in the election scheduled for March 9, 2004.

On February 6, 2004, Ms. Goodwin timely filed her “Suit Objection to Candidacy” alleging that Ms. McCullom was a resident and domiciliary of the Parish of Jefferson residing at 207 Appletree Lane, Gretna, Louisiana, and not properly qualified as a candidate for the office of Member, Democratic State Central Committee, 100th Representative District, Office “A”. Further, she alleges that Ms. McCullom and her now ex-husband, purchased the Appletree Lane property in 1998, that Ms. McCullom was registered as a voter from that Apple-tree |¡>Lane address, and that her suit for divorce in June, 2002, alleged her domicile to be in Jefferson Parish. Pursuant to La. R.S. 18:1409, the district court set the trial of the matter for 10:00 a.m. on February 17, 2004. The district court signed the order setting the trial on February 12, 2004. (We note that February 16, 2004 was a legal holiday, President’s Day. La. R.S. 1:55 E.)

On the morning of February 17, 2004, Ms. Goodwin filed a Motion to Continue the trial asserting that she had been unable to serve subpoenas because the office of the Clerk of Court had been closed the preceding day (for the legal holiday). The district court denied the motion, noting that given the statutory time delay for holding a trial was four days, and the district court was required to render a decision within twenty-four hours from the close of evidence. Further, the district court held the record open until 5:00 p.m. on February 17, 2004, in order for Ms. Goodwin to supplement the record with additional evidence. However, Ms. Goodwin did not supplement the record with filings until 5:40 p.m. on February 18, 2004, and again on February 19, 2004; this Court, on appeal, cannot consider those untimely-filed documents.

At trial, only Ms. McCullom testified. She indicated that she co-owned the home at 207 Appletree Lane with her ex-husband, and that a homestead exemption was on file in Jefferson Parish for at least the year 2002. She testified that she was a registered voter in Orleans Parish from the address of 4700 Dodt Avenue, New Orleans, Louisiana, and that at the time of filing her Petition for Divorce she was domiciled in Jefferson Parish. She denied being a registered voter in Jefferson 13Parish. She acknowledged having a toll tag for the Mississippi River Bridge attached to a white Ford Expedition SUV that she drives, testifying that the vehicle was part of the community assets with her husband and registered in his name. Ms. MeCullom explained that she travels in the morning across the bridge to the Orleans Parish School Board office at 3510 General DeGaulle Drive, where she is a contract worker, to drop off work. She further testified that from there, she travels to the office of the Orleans Parish District Attorney, where she is employed as a full-time administrative assistant. Her son attends a private school on Dorgenois Street in New Orleans.

The district court then asked Ms. Goodwin if she had anything else she wished “to state for the record.” Ms. Goodwin stated that Ms. MeCullom did own a home in Jefferson Parish and that Ms. MeCullom was not shown as an owner or co-owner of a dwelling at 4700 Dodt Avenue. Further, Ms. Goodwin said that she would provide a title for 4700 Dodt Avenue, that Ms. MeCullom had never filed for a homestead exemption in Orleans Parish, and that 4700 Dodt Avenue is not in Representative District 100. She stated that she had a “copy of her [Ms. McCullom’s] toll tag where we can prove activity on a daily basis coming from Jefferson Parish within the hours of 7:15 in the morning to 9:00.” Ms. McCul-lom also stated that the human resource record of the Orleans Parish District Attorney’s office showed that Ms. MeCullom stated her primary residence to be on Ap-pletree Lane and that the last time that Ms. MeCullom voted in Jefferson Parish was in November 2003. Ms. Goodwin finally requested twenty-four hours to provide the | ¿district court with her telephone bill, water bill, “Office of Public Works, human resources [, and] the Jefferson Parish Registrar of Voters Form.” She also said that Ms. McCullom’s divorce petition was filed in Jefferson Parish. The record on appeal does not reflect that Ms. Goodwin was ever sworn and her statements are not properly considered as evidence. La. C.C.P. art. 1633.

The district court then questioned Ms. MeCullom. The judge’s questioning confirmed that Ms. MeCullom was divorced from her husband, Gary MeCullom, but that the community property had not been divided, that at the time of her divorce she was domiciled in Jefferson Parish, that before moving to 207 Appletree Lane she lived on West Pond in Gonzales, Louisiana, and that “[d]uring my divorce and really [sic] my domicile is for 38 years has been with my mother and my father [at 4700 Dodt Avenue].” Ms. MeCullom stated that she lived on Dodt Avenue with her son, father, mother, and aunt. She further stated that she used the 4700 Dodt Avenue address on the qualifying papers that she filed in order to qualify for the office of Member, the Democratic State Central Committee.

The record on appeal contains an “EXHIBIT LIST” clocked with the Clerk of the Civil District Court at 5:40 p.m. on February 18, 2004. The documents listed and attached to the list include a copy of Ms. McCullom’s divorce petition filed on June 27, 2002; a facsimile transmittal sheet dated “2-18-04” from the Clerk of the 24th Judicial District Court for the Parish of Jefferson indicating a 5 page transmittal that includes the transmittal sheet; an e-mail transmittal from Larry Preston Williams & Associates, Ltd., Detectives and Security Consultants, dated February 8, 2004, relating to seven subpoenas and a second e-mail from the same entity dated February 16, 2004, advising that because of the holiday additional time to serve the subpoenas was needed and that Ms. Goodwin should 15file a motion for a continuance; and copies of subpoenas duces tecum to the Orleans Registrar of Voters to produce Ms. McCullom’s voter registration documents and to Ms. McCul-lom to produce the following: “1. Copy of Application Form [;] 2. W-2’s for 2002, 2001[;] 3. Copy of Driver’s Liscense (sic) [; and] 4. Credit Card Bills, Utility Bills, Cell Phone Bills.” These subpoenas duces te-cum call for the production of the documents on February 18, 2004, at Civil District Court.

The district court rendered judgment on February 18, 2004, although it failed to note the time of day that the judgment was rendered as required by La. R.S. 18:1409 C. The district court judge did note however, that as of noon on February 18, 2004, the documents that Ms. Goodwin was given time to produce had not been submitted. In the Reasons for Judgment refusing to remove Ms. McCullom as a candidate, the district court found that Ms. Goodwin had not met her burden of proof as mandated by La. R.S. 18:492. Further, the court noted that the plaintiff had pointed to no statute that required that a candidate for the Democratic State Central Committee be domiciled in the representative district from which the candidate sought election. This timely appeal followed.

Both Sections 443 and 443.2 of Title 18 of the Louisiana Revised Statutes require that a member of a state central committee of a recognized political party shall meet the qualifications established by the rules and regulations of the state central committee of that recognized party, and that the rules and regulations establishing or changing the qualifications for membership on the state central committee shall be filed with the secretary of state within ten days after their | fiadoption and published by the state central committee in the Louisiana Register. La. R.S. 18:443 A and E; La. R.S. 18:443.2(1) and (5). In the section “POTPOURRI” of the Louisiana Register appears Resolutions 1 and 2 of the Democratic State Central Committee of Louisiana’s Executive Committee, which in pertinent part read as follows:

RESOLUTION NO. 1
ARTICLE ONE
(Democratic State Central Committee of Louisiana)
Section 2. — Membership
(c) Any registered Democrat may seek membership on the Democratic State Central Committee.
RESOLUTION NO. 2
* * *
ARTICLE VII — Election
Any registered Democrat residing in the district in which he or she seeks election shall be eligible for election to membership on the Democratic State Central Committee or a Parish Democratic Central Committee.... Such candidates shall be elected pursuant to state law. (Emphasis added)

Thus, as a matter of state law and the rules and regulations of the Louisiana Democratic party, the only qualifications for a member of the Democratic State Central Committee are being a registered Democrat and residing in the district from which the person seeks election. Although a person can have but one domicile, a person can have multiple residences. That is, domicile and residence are not synonymous terms; a person can have several residences but only one domicile. Taylor v. State Farm Mutual Auto. Ins. Co., 248 La. 246, 178 So.2d 238, 242 (1965); Butler v. Cantrell, 630 So.2d 852, 855 (La.App. 4 Cir.1993); Reeves v. Johnson, 36,837, p. 2 (La.App. 2 Cir. 9/11/02), 824 So.2d 1277, 1279.

The sole issue on appeal is whether Ms. McCullom is qualified to seek election to the Democratic Central Committee from district 100. In seeking to qualify, Ms. McCullom states in her notice of candidacy, that her domicile address is 4700 Dodt Street, New Orleans. However, the website for the Secretary of State indicates that 4700 Dodt Street is actually in District 101. Thus, by her own qualifying documents, Ms. McCullom admits that she is domiciled outside of District 100. For this reason, the district court committed manifest error, or was clearly wrong, in not granting petitioner relief.

Decree

Thus, for the reasons herein stated, we reverse the judgment of the district court and find that Crystal Walker-McCullom is not a qualified candidate for the office of Member, Louisiana Democratic State Central Committee, 100th Representative District, Office “A”. It is further ordered that Secretary of State, Fox McKeithen, strike from the ballot, for the election of March 9, 2004, the candidacy of Crystal Walker-McCullom.

REVERSED.

TOBIAS, J., CONCURS IN PART AND DISSENTS IN PART.

TOBIAS, J.,

concurs in part and dissents in part.

I respectfully concur in part and dissent in part.

I concur with the majority that the address of 4700 Dodt Avenue, New Orleans, Louisiana, is currently and was following the 1990 reapportionment of the Louisiana Legislature in the 101st Representative District. But I note that the wards and precincts contained within the 100th and 101st Representative Districts changed as a result of reapportionment following the 2000 U.S. census. See La. R.S. 24:35.4 and 24:35.5. What is unclear is whether the provisions of La. Const. Art. Ill, § 4, that permits a person to qualify in either representative district for the office of state representative for the first election following reapportionment also applies to the office of member of a state central committee given the distinction between domicile (as used in Article III, § 4) from residence (as applies to a state central committee). I also concur in the implicit holding that the defendant/appellee, Crystal Walker McCullom, qualified for the office of Member of the Democratic State Central Committee, 100th Representative District, Office “A.” I also think that as a matter of common sense and the law as I understood it before the Supreme Court of Louisiana’s recent opinion in Becker v. Dean, 03-2493 (La. 9/18/03), 854 So.2d 864, the result reached by the majority is correct. I ponder whether one should not view Becker as an “orphan” case limited to its Lunusual set of facts, both proven and historical.

I regretfully dissent in part, however, because the record on appeal, as well as the documents that the plaintiff/appellant, Deninah Webb-Goodwin, untimely submitted to the trial court and which the trial court did not have before it when it rendered its decision on 18 February 2004, and the documents with which the plaintiff/appellant has sought to supplement the record on appeal in this court, which were not considered by the trial court, are not properly considered by this court. We cannot consider the untimely-filed documents and the documents that the trial court did not view. Ventura v. Rubio, 2000-0682, pp. 3-4 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 885. On its own motion and without offering notice to the parties, this court has supplemented the record on appeal by obtaining a certified copy of Ms. McCullom’s notice of candidacy filed with the Clerk of Criminal District Court; the document was not furnished by a party. I concede that Ms. McCullom did testify that her notice of candidacy showed the Dodt Avenue address. (I note, however, that the notice of candidacy does in fact show that the defendant/appellee lists 4700 Dodt Avenue as her domicile address, an address not currently in the 100th Representative District.)

Becker v. Dean, supra, makes it clear that the burden of proof is on the plaintiff, here Ms. Webb-Goodwin, to prove that the candidate’s residence is not in the district from which the candidate seeks election. No evidence in the record on appeal as it came to this court establishes that Ms. McCullom does not maintain a residence in the 100th Representative District. The plaintiffs questions of Ms. McCullom at trial were directed to whether Ms. McCullom owned a home in the 100th Representative District that she claimed as a domicile or residence. Ms. McCullom was never asked if she had a residence, as distinguished from domicile, in the 100th Representative District, The record, including the untimely-submitted documents submitted by Ms. Webb-Goodwin, does not have a copy of the | ..¡qualification papers of Ms. McCullom. This court cannot take judicial notice of Ms. McCullom’s qualification papers under La. C.E. arts. 201 or 202.

Resolutions 1 and 2 of the Democratic State Central Committee of Louisiana’s Executive Committee in pertinent part read as follows:

RESOLUTION NO. 1
ARTICLE ONE
(Democratic State Central Committee of Louisiana)
Section 2. — Membership
* * *
(c) Any registered Democrat may seek membership on the Democratic State Central Committee.
RESOLUTION NO. 2
* * *
ARTICLE VII — Election
Any registered Democrat residing in the district in which he or she seeks election shall be eligible for election to membership on the Democratic State Central Committee or a Parish Democratic Central Committee... Such candidates shall be elected pursuant to state law.

As a matter of state law and the rules and regulations of the Louisiana Democratic party, the only qualifications for a member of the Democratic State Central Committee are (1) being a registered Democrat and (2) residing in the district from which the person seeks election. Neither the law, rules, nor regulations, as far as this court can ascertain, require that a candidate be domiciled in the district from which he or she seeks election, and there is no stated length of time for one to be s resident. Additionally, the regulations are silent respecting the applicability of Art. Ill, § 4, of the Louisiana Constitution. I note that the regulation does not require that the person be registered to vote in the district from which he or she seeks election.

|/This court has no proper evidence before it that Ms. McCullom is not or was not a resident of 100th Representative District at the time she qualified for Office “A.” Ms. McCullom was never specifically asked nor did she ever deny that she had a residence in the 100th Representative District at the time she qualified for office.

As this court recently stated in Cavignac v. Bayham, 04-0260, p. 2 (La.App. 4 Cir. 2/17/04), 869 So.2d 159, 160-61, 2004 WL 389430:

The interests of the state and its citizens are best served when election laws are interpreted so as to give the electorate the widest possible choice of candidates. Becker v. Dean, 03-2493, p. 7 (La. 9/18/03), 854 So.2d 864, 869. In an election contest, the person opposing candidacy bears the burden of proving the candidate is disqualified. Id. The laws governing elections must be liberally construed so as to promote rather than defeat candidacy. Id. Any doubt as to qualifications of a candidate should be resolved in favor of allowing the candidate to run for office. Id. A person can have several residences. Id., p. 10, 854 So.2d at 871.

The conclusion reached by the trial court is technically neither manifestly erroneous nor clearly wrong on the issue of whether Ms. McCullom should be disqualified to run in the 100th Representative District, although the trial court was wrong when it referred to the office being sought as that for Office “A.”

      .In the pleadings filed in the district court, the parties and the district judge occasionally refer to the office as "Office 'B'." In fact, both parties are qualified for "Office ‘A’ " as per the records of the Louisiana Secretary of State. Similarly, the judgment of the district court reflects the clerical error that the parties are qualified for "Office ‘B’.” We note the error and correct same by our decree to re-fleet that the contest is for Office "A." La. C.C.P. art. 2164; see also La. C.C.P. art. 5054.

      . The motion and order for appeal were respectively filed and signed on Februaty 19, 2004.

      . We spell Ms. McCullom’s name as she spelled it on her notice of candidacy form.

      . Although Ms. Goodwin listed the Clerk of Criminal District Court and the Louisiana Secretary of State as additional parties defendant, their participation in this suit is irrelevant because the present suit is not over the results of an election. In that regard, the secretary of state filed an exception of no cause of action, which the trial court orally sustained at the merits trial; that ruling is commemorated in the February 18, 2004 judgment and the judgment further dismisses the Clerk of the Criminal District Court based upon oral motion adopting the secretary of state's exception of no cause of action.

      . The record is silent as to why the order setting the trial was not signed earlier than February 12, 2004. It is unexplained in the record. We noted that La. R.S. 18:1409 A(l) requires that "The trial shall begin no later than 10:00 a.m. on the fourth day after suit was filed.” The delay in obtaining the order setting the trial is properly charged against the plaintiff. Mayeux v. Stephens, 96-1101, pp. 4-5 (La.App. 3 Cir. 8/7/96), 678 So.2d 82, 84-85; cf., Scoggins v. Jones, 442 So.2d 1202 (La.App. 2 Cir. 1983). Neither party addresses this issue on appeal.

      .We take judicial notice pursuant to La. C.E. art. 202 that 4700 Dodt Avenue is currently located in the 101st Representative District following the 2000 census and was located in the 101st Representative District following the 1990 census. See La. R.S. 24:35.5; La. R.S. 35.4; New Orleans Ord. M.C.S. § 58-36.

      . We take judicial notice of the fact that Dor-genois Street (both North and South) is on the east bank of the Mississippi River in Orleans Parish, that 3510 General DeGaulle Drive is on the west bank of the Mississippi River in Orleans Parish, and that toll tags register crossings over the Mississippi River Bridge for vehicles traveling west to east. La. C.E. art. 201.

      .A third subpoena duces tecum directed to Mr. Dennis DiMarco, 5001 West Bank Expressway, Marrero, Louisiana 70072 is also attached requesting production of unnamed documents at Civil District Court by 5:00 p.m. on February 18, 2004. The purpose of this subpoena duces tecum is unexplained and unclear.

      . It is duly noted that on February 23, 2004, at the conclusion of oral argument, this matter was
      marked as submitted to this Court at 10:50 a.m.

      . Perhaps the better word is "Miscellany.”