author: hPLANCHARD, Judge.

text:
    Gloria MOORE v. Donald Steve BURNS and The Succession of Faye Z. Burns.
    No. 2003-1199.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Elvin Clemence Fontenot Jr., Leesville, LA, for Defendant-Appellee, Succession of Faye Z. Burns.
    Tony Clell Tillman, Leesville, LA, for Defendant-Appellee, Donald S. Burns.
    William Alan Pesnell, Alexandria, LA, for Plaintiff-Appellant, Gloria Moore.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JOHN D. SAUNDERS, Judges and ARTHUR J. PLANCHARD , Judges.

       Judge Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.

   hPLANCHARD, Judge.

The Plaintiff, Gloria Moore, appeals the judgment of the trial court dismissing her petition to annul a donation of certain property from her mother to her brother, Donald Burns.

On November 24, 1997, Faye Burns executed a donation giving certain property located in Vernon Parish to her son, Donald Burns. On July 2, 2002, Gloria Moore, the daughter of Faye Burns and the sister of Donald Burns filed a “Petition to Annul Donation and for an Accounting.” Named as Defendants were Donald Burns and the Succession of Faye Z. Burns. The petition alleges that the notary who signed the Act of Donation was not present when it was executed by the Donor and signed by the witnesses, and that, as a result, the donation should be annulled as not conforming to the requirements of authentic form. The trial of this matter was held on May 28, 2003.

The testimony at trial centered around the question of who was present at the execution of the donation. Donald Burns testified that those present at the signing of the donation were those whose signatures appear on the document: Jeanette LaCour and Pearlie Lewis, both employees of the home health care provider employed by Faye Burns; Faye Burns, the donor; himself, the donee; and Suzanne Magee, the notary. He testified that his daughter Dina Burns was also present. He stated that the document had been drawn up by a local attorney, Ed Cabra and that he picked it up at Cabra’s office and brought it to his mother’s house for signing. He stated that he could not remember the time of day the document was executed but opined that it was ^probably mid-morning. He stated that Suzanne Magee arrived at Faye Burns’ house after him.

Suzanne Magee, the notary who signed the donation, also testified at trial. She informed the court that at the time the donation was signed she was employed by the District Attorney’s office in Leesville. She testified that she had obtained her notary’s commission before becoming employed by that office. Magee stated that she was related to Don Burns and his wife, Jeri, by marriage and had met Faye Burns while Don and Jeri lived with her. She testified that she did not know Jeanette LaCour or Pearlie Lewis personally but was acquainted with them. Magee stated that Jeri Burns called her and asked her to go Faye Burns’ house to sign a donation of real estate from Faye to Don. She could not remember what time of day it was. Magee testified that she explained the donation to Faye Burns but that she already knew what it was about. It was Magee’s testimony that she knew the donation had to be signed by all the parties at the same time and that is why she went to Faye Burns’ house. She stated that she saw Faye Burns, Donald Burns and each of the witnesses sign the act of donation. She affirmed that, at the time she left Faye Burns’ house, all four signatures were on the donation. Magee admitted to no doubt that all the parties whose signatures appear on the donation were present and that she saw each of them sign. Dina Burns, Donald Burns’ daughter, also testified. She stated that she too saw the donation signed by all the people whose signatures appear thereon.

Pearlie Lewis testified that on November 24, 1997, she worked for Thompson Home Health and that, in that capacity, she took care of Faye Burns twice a day. She stated that she remembers signing the donation and that she remembers Jeanette LLaCour and Faye Burns being there, but that she did not remember the notary or Dina Burns being there. She stated that Donald Burns was not there at the time the donation was signed. She did not know who brought the document to Faye Burns house.

The testimony of Jeanette LaCour was also introduced at trial. She too stated that on November 24, 1997, she was employed by Thompson Home Health and, in that capacity, went to the home of Faye Burns twice a day, five days a week. She stated that she was present when the donation was executed as were Lewis, Donald Burns, Faye Burns and another woman she could not identify. LaCour admitted to a change in testimony since signing an affidavit to the effect that not all the persons whose names appeared on the donation were present at the signing. However, she explained that she was presented with the affidavit at time of great stress, due to her husband’s hospitalization and uncertain health. As a result, she indicated that she was not fully cognizant of what she was signing and was mistaken in what she stated therein.

Gloria Moore testified that before she died in October 2001, her mother, Faye Burns, told her that Magee was not present when the donation was signed. She further testified that her mother had changed her mind about giving the property to Donald. However, she admitted that she did not know whether her mother signed any document to that effect.

After hearing the testimony and receiving the documentary evidence, the court gave oral reasons for judgment and dismissed the Plaintiffs “Petition to Annul Donation.” The Plaintiff, Moore, appeals. INTENT

IsThe Plaintiff first asserts that the trial court erred in considering the intent of the donor in reaching its decision. However, after reading the trial court’s oral reasons for judgment, it appears that the trial court raised the question of intent only to make it clear that intent is not an issue in this case. The oral reasons for judgment, taken as a whole, show that the case was decided on the question of whether the donation was executed in a manner conforming to the procedural requirements of an authentic act. Therefore, we find no error in this regard.

CREDIBILITY EVALUATIONS

The remaining assignments of error, although differently characterized by the Plaintiff, all essentially turn on credibility evaluations made by the trial court. The appellate court “will not reverse the fact-trier’s credibility evaluations or findings of fact, unless manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Reeves v. Reeves, 607 So.2d 626 (La.App. 2d Cir.1992), writ denied.” Succession of Caraway, 25,879, p. 4 (La.App. 2 Cir. 6/22/94), 639 So.2d 415, 419.

The Plaintiff essentially argues that the trial court erred in relying on the testimony of Suzanne Magee and should have instead relied on the testimony of Pearlie Lewis.

Plaintiffs argue that the testimony of Magee and that of Dina Burns is unreliable and inconsistent. She first notes that, while the time sheets of the District Attorney’s office show that Magee was present at the office all day on November 24, 1997, Magee testified that she left work during the day to go to Faye Burns’ house for the execution of the donation. At trial, the Plaintiff introduced into evidence time sheets from the District Attorney’s office showing that Magee did not take any time off on November 24, 1997. However, Ma-gee testified that short absences from the |fioffice were not always noted on the time sheet. The Plaintiff makes similar assertions about Dina Burns, stating that her work time sheet shows she spent a full day at the office. However, at trial not only did Dina Burns state that she was not on a time clock and that her employer allowed her to leave if she needed to, Plaintiffs counsel agreed that he, too, was aware that Dina Burns’ employer did not have a strict policy in this regard.

On appeal, the Plaintiff additionally asserts that the trial court erred in taking improper judicial notice of “how employers and governmental bodies” in Vernon Parish “handle employee personal time.” The trial court did, in fact, note in its oral reasons for judgment that:

The Joint Stipulation was for time sheets from different sources where the parties present, or, alleged to be present had signed time sheets showing that they were — or turned in time sheets their employers had them showing they were working at a time when most of the witnesses felt this occurred during the morning, that’s when the time sheets cover those periods of time. The whole day, but, for sure the time sheets don’t reflect that anybody was off from employment. I don’t know how much weight you can give to that sort of thing based on the testimony and just common knowledge, or the common — what we know about our ordinary business affairs. Most employers, especially in Vernon Parish are liberal, no question about it, on personal time for personal things. I know that, certainly, is the case around the courthouse and government bodies.

However, we find that we need not reach the question of whether the trial court took inappropriate judicial notice of local custom in this regard. The evidence adduced at trial is sufficient to support the trial court’s finding that the time sheets do not necessarily evidence the presence of Suzanne Magee and Dina Burns at their places of employment at the time the donation was signed. The witnesses, when confronted with the time sheets, explained that small absences from work during the day were not routinely reported on the time sheets. No witness testified to controvert |7this version of the time keeping practices of these employers. The trial court chose to believe the version of events related by Magee and Dina Burns. Finding that the testimony of record supplies a sufficient basis for this credibility evaluation, and finding no manifest error, we will not overturn the trial court’s determination in this regard.

The Plaintiff further asserts that Ma-gee’s testimony is inconsistent because while she asserts that Jeri Burns called her to go Faye Burns’ house, Jeri Burns was not present when the document was signed. We find no inconsistency here. There was no testimony by anyone that Jeri Burns was present. Nor need she have been at Faye Burns house in order to make a telephone call asking Magee to go there. Jeri Burns does not deny making the call. Rather she states that she is unable to remember the events of that day, more than five years prior to her court testimony.

Finally, the Plaintiff asserts that the trial court should have believed the testimony of Pearlie Lewis. However, we find that the record supports the credibility evaluations made by the trial court. While there were minor inconsistencies between the various testimonies of the parties, this may be explained by the passage of more than five years. It was the testimony of all those present, except for Lewis, that the donation was signed by both donor and donee in the presence of the notary and two witnesses. The evidence of record, taken as a whole, supports the conclusion that the trial judge made reasonable credibility evaluations.

We further note that:

An authentic act in Louisiana, as under the French Code, is presumed to be valid, and this presumption is established in the interest of public order, to maintain peace among men and to prevent contestations concerning the proof or evidence of their conventions. Succession of Tete, 7 La.Ann. 95, 96 (La. 1852).
| sWhere, as here, the memories of the signatories are blurred by the passage of time, one seeking to invalidate an apparently authentic act must present strong and convincing proof of such magnitude as to overcome the presumption of verity of notarial acts. DiVincenti v. McIntyre, 611 So.2d 140, 142 (La.App. 1st Cir.1992), writ denied 614 So.2d 1264 (La.1993).

Meltzer v. Meltzer, 95-0551 (La.App. 4 Cir. 9/28/95), 662 So.2d 58, 62, writ denied 95-2616 (La 1/5/96), 666 So.2d 293.

We cannot say that the Plaintiff herein has carried the heavy burden of proof necessary to invalidate an authentic act. Accordingly, we will not overturn the trial court’s opinion herein.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff/Appellant, Gloria Moore.

AFFIRMED.

      . Judge Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.


source: Caselaw Access Project

author: | BLANCHARD, Judge Pro Tem.

license: Public Domain

text:
    Nicole WHITE, et al. v. RAPIDES PARISH SCHOOL BOARD, et al.
    No. 2003-1172.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      David D. Lind, Attorney at Law, Alexandria, LA, for Plaintiff/Appellant Nicole White.
    Peggy Dean St.John, Attorney at Law, Alexandria, LA, for Defendant/Appellee Phyllis Fulton.
    James M. Passman, Walker, Passman & Michiels, Alexandria, LA, for Defendant/Appellee Rapides Parish School Board.

      H. Bradford Calvit, Attorney at Law, Alexandria, LA, for Defendant/Appellee City of Alexandria.
    William Francis Henderson, Attorney at Law, Alexandria, LA, for Defendant/Ap-pellee Lynton 0. Hester III.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and ARTHUR J. PLANCHARD , Judges.

       Judge Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.

   | BLANCHARD, Judge Pro Tem.

Plaintiff, Nicole White, individually and on behalf of her minor son, Plaintiff, William R. Shepherd, appeals a judgment of the trial court granting a motion for summary judgment filed by Defendant, the Rapides Parish School Board, dismissing Plaintiffs’ claims at their cost. We reverse the judgment of the trial court and remand the case for further proceedings.

FACTS

On April 12, 2000, William R. Shepherd rode his sister’s bicycle to school at the South Alexandria Sixth Grade Center. He parked the bicycle and went to his classes. Another student, Melissa Hester, had a similar bicycle stolen some time earlier. Upon arriving at school, Melissa saw the bicycle William rode to school and believed it to be hers. She reported her suspicion to the school authorities and received permission to make a closer inspection of the bicycle to try to confirm her suspicion. After a close inspection, she reported she found “scratch marks that looked like those” on her bicycle, and believed the bicycle to be hers. The principal then had the guidance counselor call the police.

Subsequently, William Shepherd, then 13 years old, was taken to the principal’s office at school. It is alleged that he was neither advised of why he was being questioned nor of any of his constitutional rights, nor was he allowed to contact his mother. He was questioned by police, handcuffed, and taken away in a police car. He was seen by other students being taken away in handcuffs. Following a subsequent investigation, it was determined that the bike belonged to Shepherd, not the other child.

1 White, on her own behalf and on behalf of her son, Shepherd, sued the Rapides Parish School Board, the Alexandria Police Department, the parents of the other child, and their various insurers. The parents of the other child were dismissed from the suit.

Following dismissal of Melissa’s parents, the Rapides Parish School Board filed its own motion for summary judgment asserting it was protected from suit by discretionary immunity under La.R.S. 9:2798.1. The trial judge granted the School Board’s motion and Plaintiffs appealed.

LAW AND DISCUSSION

Before us is the trial court’s grant of a motion for summary judgment filed by the School Board asserting its discretionary immunity under La.R.S. 9:2798.1.

The Plaintiffs appeal asserting as error that the trial court erred in finding that the school board was immune from liability arising from its discretionary acts, because:

1) The school board is not a branch or department of the state as required by the statute, and
2) Even if the statute is applicable to school boards, it is not applicable to “acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless or flagrant misconduct” such as those by the school towards Shepherd.

First, the immunity afforded by La.R.S. 9:2798.1 applies to political subdivisions and boards of the State. Louisiana Revised Statute 13:5102(B) (emphasis ours) states: “As the term is used in this Part, ‘political subdivision’ means any parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which |3is not a state agency.” Clearly, the Rapides Parish School Board qualifies as a political subdivision of the State.

We now turn our attention to the more weighty question, whether under the facts of this case, the trial judge was correct in finding that there were no issues of disputed fact and that the School Board was entitled to summary judgment as a matter of law.

Recently, in Thiels v. American Int’l. S. Ins. Co., 03-774, 775, 776, 777, pp. 2-3 (La.App. 3 Cir. 12/10/03), 861 So.2d 757, this court reviewed the standard of appellate review of summary judgments stating as follows:

In Louisiana, summary judgment is now favored and it shall be used to secure the just, speedy, and inexpensive determination of all actions, except those specifically excluded in La.Code Civ.P. art. 969. La.Code Civ.P. art. 966(A)(2). A summary judgment shall be rendered if the pleadings, depositions, interrogatory responses, and admissions, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Material facts are those that have the potential to insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of a legal dispute. Rambo v. Walker, 96-2538 (La.App. 1 Cir. 11/7/97), 704 So.2d 30. Appellate courts review summary judgments de novo applying the same criteria as the trial court to determine whether summary judgment is appropriate. Schroeder v. Bd. of Sup’rs, 591 So.2d 342 (La.1991). Accordingly, we undertake a de novo review of the matter at bar.
The party moving for summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. Any doubt as to whether the moving party has met that burden should be resolved against granting the motion. Bradford v. Louisiana Downs, Inc., 606 So.2d 1370 (La.App. 2 Cir.1992). The likelihood that a party will prevail on the merits does not constitute a basis for granting a motion for summary judgment. Claiborne v. Conagra, Inc., 96-482 (La.App. 3 Cir. 10/30/96), 682 So.2d 851.

In the case sub judice, the School Board claims immunity from suit under the provisions of La.R.S. 9:2798.1; and alternatively, that “even without the immunity provided by La.R.S. 9:2798.1,” it is entitled to summary judgment.

| Louisiana Revised Statute 9:2798.1, titled “Policymaking or discretionary acts or omissions of public entities or their officers or employees,” states the following (emphasis ours):

A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policy-making or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
D. The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.

In Misuraca v. City of Kenner, 01-707, p. 7 (La.App. 5 Cir. 11/14/01), 802 So.2d 784, 789, our brethren of the fifth circuit observed as follows:

In Cormier v. T.H.E. Ins. Co., 98-2208 (La.09/08/99), 745 So.2d 1, the Louisiana Supreme Court explained the Discretionary Immunity doctrine as follows:
Generally, ‘Discretionary Immunity’ under La.Rev.Stat. 9:2798.1 applies to specific fact situations which satisfy the rule enunciated in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Under Berkovitz, the court must first consider 1 swhether the government employee had an element of choice and his course of action was not specifically prescribed by the statute, regulation, or policy. Conduct cannot be discretionary unless it involves an element of judgment or choice. 108 S.Ct. at 1958. Thus, discretionary immunity will not apply when a specific course of action is prescribed as the employee has no rightful option but to adhere to the directive. Id. On the other hand, when discretion is involved, the court must then determine whether that discretion is the kind shielded by the exception: one grounded in social, economic, or political activity. If it is, then the doctrine applies and the employee or agency is insulated from liability; if it is not, the employee or agency is liable for any negligence. Id. at 6-7, 802 So.2d at 789.

In brief, the School Board argues that the actions of the Board’s employees at the South Alexandria Sixth Grade Center clearly fall within the purview of Berkovitz. The Supreme Court, in Berkovitz, explained:

The exception relevant to this case provides that no liability shall lie for
“[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).

Berkovitz, 108 S.Ct. at 1958 (emphasis ours).

However, the immunity conferred by La. R.S. 9:2798.1 is not as broad as that conferred by 28 U.S.C. § 2680(a). Section (C)(2) of La.R.S. 9:2798.1 specifically exempts from immunity “acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.” Therefore, there is a material issue of disputed fact to be resolved: Did the actions of the Board’s employees constitute “malicious, intentional, willful, outrageous, reckless, or flagrant misconduct?”

| (^Alternatively, the Board argues that under the duty-risk analysis Plaintiffs cannot prove it is liable.

Under the duty-risk analysis, plaintiff must prove that the conduct in question was a cause-imfact of the resulting harm, the defendant owed a duty of care to plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Berry v. State, Through Department of Health and Human Resources, 93-2748 (La.5/23/94), 637 So.2d 412, 414. Whether a duty is owed is a question of law. Id. The inquiry is whether the plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support his claim. Id. Governmental agencies in the performance of governmental functions may be subjected to the imposition of certain duties, the breach of which may result in liability for damages to those injured by a risk contemplated by that duty. Id. The determination of whether a particular duty should be imposed on a particular governmental agency is a policy question. Id. It is our role to determine whether there is any jurisprudential or statutory rule or policy reason why, under the facts and circumstances of this case, [the Board] ... would owe a duty to plaintiff to compensate her for her [her son’s injuries].... Id.

Misuraca, 802 So.2d at 789-90.

We find the School Board and its employees had the duty to act reasonably under the circumstances. We make no determination as to how they acted or if they breached the duty, that remains a factual issue to be determined by the trier of fact.

Accordingly, we find there remains disputed issues of material fact which preclude the rendering of summary judgment. We reverse the judgment of the trial court and remand the case for further proceedings. Costs of this appeal are assessed against Appellant, the Rapides Parish School Board.

REVERSED AND REMANDED.

      . Judge Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.


author: PEZELL, Judge.

text:
    STATE of Louisiana v. Gary Dewayne HAMILTON.
    No. KA 2003-1385.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Van Hardin Kyzar, District Attorney, 10th JDC, Natchitoches, LA, for Plaintiff/Appellee, State of Louisiana.
    Dmitrc Ian Burnes, Burnes & Burnes, Alexandria, LA, for Defendant/Appellant, Gary Dewayne Hamilton.
    Gary Dewayne Hamilton, NPDC, Natch-itoches, LA, pro se.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   PEZELL, Judge.

The Defendant, Gary Hamilton, was charged by bill of information with one count of attempted second degree murder of Chris Fisher, Joseph Steele, and Sandra Washington in violation of La.R.S. 14:27 and La.R.S. 14:30.1. Following a jury trial on January 21-22, 2003, the Defendant was convicted as charged. On July 18, 2003, he was sentenced to fifteen years at hard labor without benefit of probation, parole, or suspension of sentence. The Defendant’s motion for post verdict judgment of acquittal and motion for new trial were denied on June 25, 2003. A motion and order for appeal was granted on July 23, 2003. The Defendant appeals his conviction on several grounds.

FACTS

On January 12, 2002, the Defendant and at least two other men were involved in a fight with Christopher Fisher. Shortly after the fight, Fisher’s aunt and uncle drove him to his nearby home. After Fisher walked out of his house and was getting into the car with his relatives, multiple gunshots were fired into the car. No one was injured in the shooting. The victims were unable to identify the shooters.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

The Defendant contends the evidence at trial was insufficient to show that he fired shots at the victims. He asserts that the trial court erred in denying his motion for post verdict judgment of acquittal and motion for new trial on this ground. These arguments will be addressed together.

|2The jury convicted Defendant of attempted second degree murder. Attempt is defined by La.R.S. 14:27, which states, in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended;' and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the -intent to commit a crime, or searching for the intended victim-with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

Second degree murder is defined by La. R.S. 14:30.1, which states, in pertinent part:

. A. Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnaping; second degree kidnaping, aggravated escape, drive-by shooting; • armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.

At trial, Joseph Steele testified that he attended his grandmother’s ninetieth birthday party on January 12, 2002, in Natchitoches. Steele stated that he is a manager of a repair department. He explained that he was convicted of simple burglary in 1993, but has not received as much as a traffic ticket since his -parole in 1995. He testified that around 11:00 p.m. the party ended and he and his family went to his sister’s house at the corner of Dixie and Hill Streets. Steele testified that he heard a fight outside and saw his nephew, Fisher, fighting with three men in a car. He pulled Fisher out of the car and the men drove away. He testified he did not know any of the men or have descriptions of them.

hSteele stated that about thirty minutes later he and his wife drove Fisher to his home on Dixie Street to change clothes. He testified as follows:

A. Well, he was in there about ten (10) minutes, maybe fifteen (15) at the most. So, I blew the horn for him to come out. He came out, he got in the car, he got back out the ear to get something out of the trunk ... a sweater or something. And he got ... as he got back in the car, when I turned around, or put the car in reverse, that’s when I saw the guys jump out from around the back of the house. Okay, by this time they came up with guns ... what I saw was guns. I saw the reflection of one, and I assumed they was fixing to shoot. And I told my wife to, “Get down, get down.” I pushed her down in the seat, and I slumped down, and threw the car in reverse and begin to back out. And as I was backing out, they started shooting.
A. Well, actually the first bullet I saw, hit my hood, and uh ... ricocheted off the hood. I saw the fire from it. And it hit like where my face was, and I did like that, and it hit car and they just kept shooting.
Q. All right. Do you know how many shots you heard fired?
A. Maybe twelve (12), fifteen (15) shots, something like that.
Q. Okay. Uh ... what did you do then?
A. I threw it in drive, and headed toward the police, which were actually two (2) blocks straight down from where we were on the corner of Dixie and Hill at that time. There was about six (6) cars of police there.

He stated both of his front tires were flat, and his windshield, mirror and gas tank were shot out. Steele testified that his Cadillac was struck about eight times, with other bullets hitting the hood, left front fender, and side panel. He identified the photographs taken of his car after the shooting.

Steele’s wife, Sandra Washington, was sitting in the front passenger seat. Fisher was seated behind Steele in the back seat. No one was injured in the shooting.

Steele testified that he saw two shooters, both black males, with one shorter than the other. He could not describe the clothing the two shooters were wearing. [4He stated he could not see the shooters faces, and could not identify them. Steele denied giving the police the Defendant’s name as a suspect.

Christopher Fisher testified that he has a criminal record and has served a total of eleven-and-a-half years behind bars. He stated he last got out of jail on April 26, 2001, and was working as a supervisor at Walmart. Fisher testified that he attended his greatgrandmother’s party and then went to his mother’s house at Dixie and Hill Streets at about 11:00 p.m. He stated that he was walking his sister to her car across the street when a speeding car swerved and almost hit her. After yelling at the men in the car, Fisher saw the car stop and a man get out. Fisher identified the Defendant in court as the man who got out of the car with a glass Hennessy liquor bottle in his hand. The two had words. Fisher testified that he thought the Defendant was going to hit him with the raised bottle, so he began fighting with him. Fisher then began fighting with the two men in the backseat of the car before he was pulled off by family members. He also stated that a fourth man, Larry Hamilton, had jumped out of the car and disappeared. Fisher testified that as the three men drove off, he heard one of them yell “Nigger, I know where you at. I’m a get you.”

Fisher testified that he went home to change clothes about fifteen minutes later. He stated:

And I was getting ready to leave ... you know what I’m saying. So when I got ready to go get back in my uncle’s car, I had to get something out of the trunk, I get in the car, and the next thing you know they telling me, “Man, get down.” Just like that, but I was like almost already in the car. And he grabbed his wife’s head, and pulled his wife’s head down, and they just started shooting.

He stated he did not know how many shots were fired.

Fisher stated that he could not identify the shooters. He testified that the first man he hit in the fight was “G-Nut.” Fisher told police he had been in a fight with G-Nut. Fisher testified that he did not know how many shooters there were. He | .¡stated that when he was interviewed by Detective Payne he gave the names or nicknames of the men who were in the car during the fight. Fisher testified that he did not tell police that the Defendant was the shooter.

On cross examination, Fisher testified regarding the identification of the Defendant as follows:

Q. And you can’t under oath on this witness stand today, sit there and honestly say “Gary Hamilton shot at me”? A. Can’t say.
Q. Okay.
A. I didn’t see him.
Q. Did you ever tell the District Attorney’s Office that Gary Hamilton shot at you?
A. Did I ever tell them that?
Q. Yes, sir.
A. In my ... I told them that I felt like it. I think, because the altercation had just happened. So, yeah ... yes, ma’am.
Q. You told him it was Gary Hamilton who shot at you?
A. I say Gary Hamilton and Kabookie.
Q. Okay. You told the D.A.’s office that, but it’s now your testimony that you don’t know if he did?
A. (Inaudible) ...
Q. I’m not asking you what you felt.
A. Okay, what I felt ma’am ... it was
Q. I’m not asking you, sir, what you felt. Is your testimony today that you do not know that Gary Hamilton, you don’t know that he was the shooter?
A. No, ma’am.
Q. Okay. So, when you told that to the police department you were interpreting what you believed happened?
| (A- Yes, ma’am.
Q. Okay. So, when you told Christopher Payne that, you were basing it on what you believed, not what you saw?
A. Yes, ma’am.

Fisher read an affidavit he signed that was written and notarized by an attorney. The affidavit, D-l, states: “Christopher L. Fisher who, being duly sworn, stated that in the shooting of his vehicle on the 12th day of January 2002 he did not see nor does he believe that Gary Hamilton was involved in the altercation.” Fisher explained the affidavit as follows:

A. Ms. Johnson, I went and talked to Ms. Johnson. And I explained to her ... cause she had called me one time and asked me to come in and talk to her. And she asked me, she say, “Did you see Larry Hamilton and Gary Hamilton shoot at you?” I said, “No ma'am, I didn’t see nobody.” Because I wasn’t trying to pay attention on who was shooting at me, my thing was trying to make sure I don’t get hit. So, she said, “Well, could you say ... do you believe that he shot at you?” I say, “Well, quite naturally I do, cause we just had a fight.” And the words was that, ‘We’ll be back. We gon[sie] get you.” And that wasn’t even no more than about twenty (20) or thirty (30) minutes, and that’s all I said.
Q. Okay. The part of the affidavit where is says, uh ... “Nor does he believe that Gary Hamilton was involved in the altercation.” Is that true?
A. No. No, sir.
Q. Okay. Immediately after the uh ... the altercation, did you explain to the police officers what exactly happened?
A. Yes, sir.
Q. Did you give them Gary Hamilton’s name?
A. I just gave them G-nut. I didn’t know his name was Gary Hamilton.

He testified that he did not intend to suggest that the Defendant did not have anything to do with the shooting.

The Defendant and Fisher spoke some time after the shooting at a local bar. Fisher testified the conversation was about “squashing it.” He explained as follows:

A. To ... to leave it alone. You know what I’m saying that ... he ... what he explained to me is that he didn’t know it was me, and he didn’t know me, or whatever. And you know, that it was cool, and that you know ... and I was telling him like, you know, “I’m not tripping, but you know ... y’all shot at me nineteen (19) times, man. You know what I’m saying? It wasn’t just my life. You had my uncle and auntie life. You know what I’m saying. If that comes from you not thinking, but then when you get out on bond, you know what I’m saying, you want to be like, well, let’s just squash it.”

On cross examination, Fisher admitted that the Defendant never said he was talking about the shooting, and it was possible he was referring to the fight. On cross examination, Fisher was extensively questioned about his occupation. He stated he is currently self-employed producing records in Dallas, Texas. Fisher stated that he is on parole and is in good standing with his parole officer. Fisher testified that he makes enough money to pay his bills. He said he filed taxes last year on his Walmart job. However, he admitted he did not pay taxes on the money he earned producing records in Natchitoches before moving to Texas because he did not make very much. Defense counsel questioned Fisher about his living arrangements and how he paid his bills. Fisher denied being a drug dealer. Fisher outlined his criminal record. He stated he pled guilty to possession of cocaine, possession of cocaine with the intent to distribute, unauthorized use of a movable, and carnal knowledge of a juvenile, and was convicted of auto theft. Regarding the night in question, Fisher stated that he had one beer before the fight with the Defendant occurred, but denied being “buzzed.” Fisher admitted that it was a violation of his parole to drink alcohol.

Bonevelyn Powell, Chris Fisher’s sister, corroborated Fisher’s account of the fight with the Defendant and the other men. She testified that the Defendant was the driver of the car that almost hit her. About thirty minutes after the fight, Powell drove |sto her mother’s house nearby and heard gunshots. She never gave the police the Defendant’s name, but did identify him from a police photograph as the man who fought with her brother. Powell stated that she is a CEO of a company in Dallas. She said she did not know what her brother’s job was in Dallas, nor where he lived.

Sandra Washington, wife of Joseph Steele, testified that she witnessed the fight but could not identify the men involved. Washington described the shooting as follows:

A. And we started to back out, and as we were backing out, I kind of focused because it was real dark behind the house. It was ... it was dark because it was a light on ... I remember a light being on under the carport. But, when they came ... I could see figments of people. And I know it was more than one person, but I don’t know how many people it was. And I could just see them with their hands pointed.
Q. Okay. At that time, did you ... did you realize they had the guns?
A. I figured to be ... in that position like they was, they had to have something. And I ...
Q. (Inaudible).
A. It triggered in my mind about the fight that we had just had, so ... I figured it was a retaliation or something. I didn’t ... (inaudible). I just was ... I just ...
Q. What did you do?
A. I went under the dashboard of the car.
Q. Okay.
A. I just went under the dashboard. And they started shooting, and ... we backed out ... well, my husband managed to back on out and some kind of way he got us out of there.
Q. Okay, do you know how many shots were fired? Do you have any idea?
A. Oh, I don’t know, but it sounded like a lot.
|flQ. Okay. Do you know how many people were shooting? Could you see? A. I couldn’t see how many were shooting, but ... I’m saying it sound like it could have been more than one person shooting ... (inaudible).
Q. Could you hear the bullets striking the car?
A. Uh,uh.
Q. Did you have any thoughts that you may be killed?
A. Oh, yes.
Q. Okay. Did the shooting take place only as you backed out, or your husband backed out of the driveway? Or did the shooting continue while you were still on Dixie Street and as you pulled off?
A. Well, it sound like as we were pulling off, they were coming, like on the side. I don’t ... I don’t ...
Q. On the side of the house or the ear?
A. Car ... when we backed out, and the he had to come out to go ... to the uh, we was trying to get to the corner, because we knew the police were down there. It sounded like something was hitting the sides as we were taking off to go forward.

She could not identify the shooters.

Natchitoches City Police Detective Christopher Payne testified he was called to the crime scene at 1225 Ellis Street to investigate the shooting. He found multiple shell casings all along the carport area and the side of the house. Detective Payne identified the photographs taken of the locations where the shell casings were found. He specifically identified Exhibit S-7 as an item found in the driveway of the house. Payne identified the eight 10mm shell casings and nine 9mm brass shell casings that he collected for evidence at the scene. A lead projectile and casing were also collected from the body of Joseph Steele’s Cadillac. Detective Payne identified the photographs he took of the Steele vehicle. He explained that the photographs show hnprojectile strikes to the hood, driver’s front fender, bumper, windshield, driver’s door, and flat tires. Several bullet strikes were found on the Haskett residence across the street from the scene of the shooting. He stated that he suspected there were at least two shooters and they were on foot.

Statements were taken by Detective Payne from Fisher, Steele, and Powell. He issued a BOLO (Be On the Lookout For) for the Defendant based on the information that Fisher gave him. The Defendant was picked up by another officer and brought to the station for questioning. Detective Payne interviewed the Defendant after he was Mirandized. The Defendant admitted he was involved in an altercation with Fisher. Payne testified that he first asked about the fight then asked the Defendant why he had ammunition in his vehicle and the Defendant did not comment. Detective Payne admitted that the Defendant denied being involved in the shooting.

The Defendant signed a permission form to search his vehicle, which was located in the parking lot of the police station. Detective Payne identified the photographs he took of the inside of the Defendant’s vehicle. He stated that Ex. S-13d shows a box of Remington 10mm shells located in the back seat of the Defendant’s vehicle on the passenger side. He further identified the ammunition box recovered in evidence. Detective Payne testified that there were eight 10mm cartridges missing out of the box. He also found a latex rubber glove in the glove compartment of the Defendant’s vehicle. Detective Payne testified that after collecting the evidence and interviewing the victims, he arrested the Defendant and two other individuals.

Detective Payne stated the others investigated along with the Defendant were Robert “Kabookie” Burr, Marcus Slaughter, and Tony Hamilton. Slaughter was interviewed, but not arrested or charged with a crime. Burr was charged with |! attempted second degree murder. He testified that Hamilton was also charged, but he did not specify what he was charged with. Burr and Slaughter were named as two of the individuals in the back seat of the Defendant’s vehicle when the fight occurred.

Detective Payne stated that Fisher gave him the name of the Defendant (G-Nut), Marcus (whom he called Slaughter or Tank), Larry Hamilton, and Tony Hamilton. Payne testified that Fisher told him that he felt the Defendant was involved in the shooting. He stated that Fisher did not tell him that he could not identify the shooters. Fisher did not give descriptions of the shooters, or the weapons involved. Detective Payne testified that he was looking for a 9mm and a 10mm semi-automatic pistol, one with a missing part. He explained this information was given to the other detectives in the department as per policy.

Greg Dunn testified that he is the Assistant Chief of Narcotics for the Natchitoch-es Drug Task Force. He identified S-15 as a firearm that he found while executing a search warrant at 226 Marie Street in Point Place on June 4, 2002. The gun was found some six months after the shooting at issue. Officer Dunn testified that the Defendant and Tameka Means were living at the residence. He stated the firearm was found on the top shelf of a closet in a back bedroom. At the time of the search, the Defendant, Means, and Tyrone Wiley were at the residence. Wiley told police he did not live at the residence. The firearm was missing the safety mechanism. Officer Dunn recalled that a firearm with this description was being sought in connection to a shooting, so he released the gun to Detective Payne.

At trial, Detective Payne identified the Colt Delta Elite 10mm semi-automatic pistol. He testified that he obtained the firearm from Detective Collins some months after the shooting. Detective Payne sent the firearm and the box of 10mm shell casings to the Louisiana Criminalistics Laboratory in Shreveport. On cross | ^examination, Payne testified that no fingerprint analysis was conducted on the shell casings found at the scene of the shooting. He also stated that no fingerprint analysis was requested on the box of ammunition found in the Defendant’s vehicle.

Richard Beighley, a criminalist with the North Louisiana Crime Lab, testified as an expert in firearms identification. He identified S-15 as the 10mm pistol that he received as evidence. Beighley testified that ballistics tests revealed the bullet jacket in Exhibit S-8 was fired from the 10mm pistol. He further stated that the eight spent 10mm casings in Exhibit S-5 were also found to have been fired from the 10mm pistol. Beighley identified Exhibit S-7 as a safety lever and stated that the 10mm gun he examined was missing a safety lever.

Beighley explained that when he received the 10mm gun it was missing seven different parts and was unsafe to fire. He stated he had the gun repaired before he fired it for ballistic testing. Beighley testified that none of the replaced parts affected his identification of the fired casings. He identified Exhibit S-19 as a photograph he took showing the side by side comparison of the found safety lever and the one that he had installed on the gun. Beighley testified that the found safety lever is compatible with the 10mm pistol. He stated he had no doubt that the eight 10mm casings were fired from the 10mm firearm, Exhibit S-15. Beighley testified that he fired two test shots from the gun. He did not use the ammunition found in the Defendant’s car to test fire the gun, but explained that he used the same bullet design with the same manufacturer’s markings.

Justin Austin stated that he was subpoenaed by the State to testify. Fisher testified that he gave Austin’s name to police as a witness. Austin stated that before midnight on the date in question he was walking on Dixie Street around Dean Street when he saw “Larry, Gary, and Robert” walking past him. He did not know exactly 113what time he saw the men. Austin gave the police his statement in February 2002. His statement reflected that he saw the three men just before midnight. On cross examination, Austin stated that he had not been drinking or doing drugs that night. He testified that he did not know the Defendant by name. Austin testified that his God-brother, Chris Fisher, gave him the Defendant’s name. Austin identified the Defendant in open court and stated that his nickname was G-Nut. He testified that the Defendant was one of the three men he saw walking that night.

Motion for Post Verdict Judgment of Acquittal

Louisiana Code of Criminal Procedure Article 821(B) states that a motion for post verdict judgment of acquittal “shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” Regarding Defendant’s claim that the evidence was insufficient, this court has explained the analysis as follows:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Further, when the conviction is based upon circumstantial evidence, La.R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of | ^innocence. State v. Camp, 446 So.2d 1207 (La.1984); State v. Wright, 445 So.2d 1198 (La.1984). However, La.R.S. 15:438 does not establish a stricter standard of review on appeal than the rational juror’s reasonable doubt standard. The statute serves as a guide for the jury when considering circumstantial evidence. This is a case of circumstantial evidence. There is no physical evidence or witness identification to show the Defendant was involved in the shooting. On appeal, the issue is whether a rational trier of fact, when viewing the evidence in a light most favorable to the prosecution, could find that all reasonable hypotheses of innocence were excluded.

The Defendant argues the evidence fails to disclose any facts which directly link him to the shooting. He contends that the circumstantial evidence could apply to any of the other individuals who were in his car during the altercation earlier in the evening. The Defendant asserts that the three other men had motive and opportunity to shoot at the victims. He argues that the circumstantial evidence points more toward the two men who were in the back seat of his car, where the box of bullets was found. We observe that this argument omits the fact that sometime after the shooting the 10mm gun used in the shooting was found in a bedroom closet at the house the Defendant shared with his girlfriend. In his brief to this court, the Defendant does not assert any hypothesis of innocence regarding the location of the gun. However, at the hearing on his motions, the Defendant asserted that the 10mm gun found by police could have been hidden at his house by any one of his other friends who were involved in the fight.

Viewing the evidence in the light most favorable to the State, we find the circumstantial evidence was sufficient to uphold the Defendant’s conviction. Therefore, this assignment of error is without merit.

| ^Motion for New Trial

Louisiana Code of Criminal Procedure Article 851 states, in pertinent part, that a new trial shall be granted when the verdict is contrary to the law and evidence. When evaluating a motion for new trial, the courts are to use the “thirteenth juror standard” for re-weighing the evidence. State v. Long, 590 So.2d 694 (La.App. 3 Cir.1991). However, Defendant is arguing that the evidence was insufficient to convict him, thus, he is requesting a sufficiency review that is more properly considered in a motion for post-verdict judgment of acquittal pursuant to La.Code Crim.P. art. 821.

In State v. Sykes, 03-397, pp. 2-3 (La.App. 3 Cir. 10/8/03), 857 So.2d 638, 641 - 42, this court has stated the following regarding review of a motion for new trial:

The supreme court has stated the following regarding the distinction of claims raised in a motion for new trial and a motion for post-verdict judgment of acquittal:
However, a motion for new trial presents only the issue of the weight of the evidence, see Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (setting aside a verdict as against the weight of the evidence, as opposed to the insufficiency of the evidence, under the Due Process Clause does not bar retrial) and is examined under the so-called thirteenth juror standard under which the trial judge re-weighs the evidence. State v. Voorhies, 590 So.2d 776, 777 (La.App. 3 Cir.1991). The question of sufficiency is properly raised by a motion for post-verdict judgment of acquittal. La.C.Cr.P. art. 821; State v. Demery, 28,396, p. 6 (La.App. 2 Cir. 8/21/96), 679 So.2d 518, 522. But see Article 851 comment (d) (“[i]t is the duty of the trial judge to pass upon the sufficiency of the evidence” once ground (1) is raised under Article 851).
In the instant case, the constitutional issue of sufficiency is treated in assignment of error number 1 because the denial of a motion for new trial based upon La.C.Cr.P. art. 851(1) is not subject to review on appeal. State v. Skelton, 340 So.2d 256, 259 (La.1976) (“[W]e have uniformly held that a bill of exceptions reserved to the refusal of the trial judge to grant a motion for a new trial based on Article 851(1), relative to sufficiency of the evidence presents nothing for our review.”) (citations omitted); State v. Bartley, 329 So.2d 431, 433 (La.1976) (“It is well established in Louisiana that an assignment of error reserved to the denial of a motion for a new trial alleging that the verdict is contrary 11fSto the law and the evidence presents nothing for appellate review.”) (citations omitted).
State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, 859, n. 21(alteration in original).
Likewise, we find Defendant’s claims that the trial court erred in denying her motion for new trial because the verdict was contrary to the law and evidence presents nothing for this court to review. The only issue reviewable in the present appeal is the constitutional issue of sufficiency of the evidence, which was raised in the Defendant’s motion for post-verdict judgment of acquittal.

See also State v. Hampton, 98-331 (La.4/23/99), 750 So.2d 867, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999).

Therefore, we find this assignment of error should be considered a sufficiency review. Following a'sufficiency review regarding the Defendant’s post verdict judgment of acquittal, the court has already resolved this issue and finds it is without merit.

ASSIGNMENTS OF ERROR NUMBERS THREE AND FOUR

The Defendant contends the trial court erred in denying his oral motion for a mistrial, and in denying his motion for new trial based on the same error. During the cross examination of the victim Christopher Fisher, a remark was made that referred to the Defendant’s parole.

Louisiana Code of Criminal Procedure Article 770 states, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible:
|17An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Article 770 is limited to a comment made by a judge, district attorney, or court official. In the Defendant’s case, the remark was made by a State witness while on cross examination. At trial Fisher testified as follows:

Q. Okay. Now, you gave some testimony to Mr. Wright, uh, about you saw my client at a club.
A. Yes, ma’am.
Q. Another violation of your parole, right?
A. His too. Yes, ma’am.

The Defendant moved for a mistrial and the jury was removed from the courtroom. The defense attorney argued that Fisher made an unsolicited and improper reference to the Defendant’s criminal history. The trial court commented that it was not the State’s responsibility to control its witness while he was being cross examined by the defense attorney. The defense attorney stated that the State’s witness should have been instructed not to say anything about the Defendant’s other crimes.

In denying the motion for mistrial, the trial court stated:

All right. And your motion is denied for a mistrial. I didn’t hear him say it, although I’m not ... I’m not denying that he said it. But, my point in that is, is that I don’t know that the tone and the manner in which he said it had a great impact on the jury. Uh, and I don’t think ... even if they did hear it, I don’t know that it’s prejudicial enough to matter. If at the time, before I give my instructions, if you are concerned about it enough, I will offer you an instruction, if you would like one, instructing the jury to disregard that.

The defense attorney stated she did not want an instruction.

In State v. Bishop, 98-1147, p. 9 (La.App. 3 Cir. 2/3/99), 734 So.2d 674, 678-79, writ denied, 99-2499 (La.2/11/00), 754 So.2d 932, this court stated:

11sRegarding the scope of our review of trial court rulings on motions for mistrial, a “[mjistrial is a drastic remedy generally and the determination ‘of whether prejudice has resulted lies in the sound discretion of the trial judge.’ ” State v. Banks, 96-2227, p. 2 (La.4/18/97); 692 So.2d 1051, 1053 (quoting State v. Sanders, 93-0001 (La.11/30/94); 648 So.2d 1272, cert.

Since the reference was made by a State witness in response to defense counsel’s questioning, it cannot be said the remark is a basis for mistrial pursuant to Article 770. In addition, we find the Defendant has not shown that he was prejudiced by the brief reference to his being on parole. The admission may have been harmless. If any prejudice existed, it was slight, and therefore the trial court’s denial of a mistrial did not constitute reversible error. This assignment of error is without merit.

ASSIGNMENTS OF ERROR NUMBERS FIVE AND SIX

These assignments of error will be addressed together as the Defendant asserts the trial court erred in granting the State’s oral motion to exclude “guilty of aggravated battery” from the jury verdict form. He further argues the trial court erred in denying his motion for new trial based on the same claim.

The Defendant was charged with attempted second degree murder. The responsive verdicts for attempted second degree murder are listed in La.Code Crim.P. art. 814(A)(4) as follows:

“Attempted Second Degree Murder: Guilty.
Guilty of Attempted Manslaughter. Guilty of Aggravated Battery.
Not guilty.”

l19The responsive verdict statute also provides for the exclusion of a responsive verdict. La.Code Crim.P. art. 814(C) states:

Upon motion of the state or the defendant, or on its own motion, the court shall exclude a responsive verdict listed in Paragraph A, if after all the evidence has been submitted, the evidence, viewed in a light most favorable to the state, is not sufficient reasonably to permit a finding of guilty of the responsive offense.

The Defendant asserts that the trial evidence showed that the shots fired struck the vehicle occupied by the victims. He cites two cases for his proposition that aggravated battery is a proper responsive verdict when the vehicle is struck, instead of the passengers. In State v. Trahan, 416 So.2d 65 (La.1982), the Louisiana Supreme Court found that the evidence supported the responsive verdict of aggravated battery for attempted first degree murder because the defendant had tried to run over an officer by ramming his vehicle into the patrol car which the officer was standing nearby. The court stated:

The evidence establishes physical contact either between the deputy and the Blazer or between the deputy and the patrol car when it was struck by the Blazer. There is no question that an automobile can constitute a dangerous weapon if used in a manner likely to cause death or great bodily harm.

Id. at 68. The court found that the jury could have reasonably found that an aggravated battery was proven.

In State in the Interest of H.L.F. and R.J.T., 97-2651 (La.App. 4 Cir. 5/20/98), 713 So.2d 810, the fourth circuit affirmed the juvenile’s adjudication for aggravated battery. The court stated:

In the instant case, the State contends that H.L.F. intentionally collided into two cars in a manner which caused injury to at least one of the victims, Officer Kevin Stamp. It is not necessary for the contact to be between the dangerous weapon and the victim, as long as the dangerous weapon (the car) exerts a force calculated or likely to cause great bodily harm or death to the victim.

Id. at 812.

Igpln response, the State cites State v. Dauzat, 392 So.2d 393 (La.1980) for the holding that aggravated battery was not a proper responsive verdict to attempted second degree murder when the defendant fired several shots into the victim’s vehicle. The Louisiana Supreme Court stated:

The defendant shot his gun in Guillot’s direction. The bullets lodged in the door of Guillot’s car. Guillot testified at trial that he was not touched by the defendant or by the bullets. Since there is no evidence to establish the presence of the essential element of the crime of battery contact with the person of another-the verdict of guilty of aggravated battery must be reversed.

Id. at 397. See also State v. Schenck, 513 So.2d 1159 (La.1987).

At trial, the State argued that since there was no evidence that any of the three victims were injured in the shooting, that the element of battery requiring contact with the person of another was not satisfied. The Defendant argued that because he was charged with attempted second degree murder, then the aggravated battery responsive verdict should read attempted aggravated battery. He contended the facts of the shooting fit the definition of attempted aggravated battery, but did not fit the definition of aggravated battery. The trial court granted the State’s motion to remove aggravated battery as a responsive verdict, without stating reasons therefore.

At the hearing on the post verdict motions, the defense counsel explained further:

uh, I contend here that, uh, uh, that the evidence could support the Aggravated Battery. Uh, if this were a case where my client had been accused of taking his car and ramming it into the other client’s car. There’d be no question about it. Uh, however, here’s a case of saying instead of hitting there[sic] car with a car, the State’s contending that he hit there[sic] car with a little piece of metal, not a big piece of metal. I believe that uh, Aggravated Battery, uh, absolutely should have been maintained as uh, responsive verdict in this case.

The trial court denied the motion, without stating reasons for its decision.

| g1We note the crime of battery requires the intentional use of force or violence upon the person of another. La.R.S. 14:33. In State v. Howard, 94-23, p. 3 (La.6/3/94), 638 So.2d 216, 217, the Louisiana Supreme Court stated:

The offense of aggravated battery “consists of the intentional use of force or violence, with a dangerous weapon, upon the person of another.” State v. Englerth, 213 La. 158, 34 So.2d 409, 410 (La.1948); La.R.S. 14:34. The crime requires neither the infliction of serious bodily harm nor the intent to inflict serious injury. Compare La.R.S. 14:34.1 (Second Degree Battery); cf., State v. Fuller, 414 So.2d 306 (La.1982). The offense does require “physical contact whether injurious or merely offensive.” State v. Dauzat, 392 So.2d 393, 396 (La.1980) [footnote omitted].

We find that the trial court did not err in removing aggravated battery from the list of responsive verdicts in this case. The evidence fails to show that the Defendant had any physical contact whatsoever with the victims. Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

The Defendant complains the trial court erred in denying his motion for new trial on the ground the State made prejudicial remarks during its closing argument. He refers to the State’s comment that his case is similar to a terrorist attack against U.S. soldiers in the Middle East. However, the Defendant failed to object to this alleged error at trial. Pursuant to La.Code Crim.P. art. 841, this assigned error will not be considered on appeal as the Defendant did not make a contemporaneous objection at trial.

ASSIGNMENT OF ERROR NUMBER EIGHT

The Defendant also complains the trial court erred in denying his motion for new trial on the ground that the trial court gave the improper definition of attempted manslaughter to the jury. He contends the court failed to define first degree murder or second degree murder as these offenses are mentioned in the manslaughter ^-¿definition. However, the Defendant failed to object to this alleged error at trial. Pursuant to La.Code Crim.P. art. 841, this assigned error will not be considered on appeal as the Defendant did not make a contemporaneous objection at trial.

CONCLUSION

Defendant’s conviction is affirmed.

AFFIRMED.


author: hPICKETT, Judge.

text:
    Melanie Ducote LINDMEIER v. Todd D. LINDMEIER.
    No. 2003-1392.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Angelo Joseph Piazza III, Attorney at Law, Marksville, LA, for Plaintiff Appellee Melanie Ducote Lindmeier.
    Mary Helen Johnson, Johnson Law Firm, LLC, Marksville, LA, for Defendant Appellant Todd D. Lindmeier.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   hPICKETT, Judge.

FACTS

Lindsay Mae Elizabeth Lindmeier was born in Lafayette, Louisiana, to a union between Melanie Ducote, a resident of Avoyelles Parish, Louisiana, and Todd Dougles Lindmeier, a citizen of Canada. On September 15, 1997, Melanie Ducote and Todd Lindmeier were married in Louisiana.

Subsequently, Mrs. Lindmeier, Mr. Lindmeier, and Lindsay Mae Elizabeth Lindmeier resided in Avoyelles Parish, Louisiana, from 1997 until February, 2002. At some point in 2001 the couple allegedly separated. All parties continued, however, to reside in Avoyelles Parish until February, 2002.

In February 2002, Mr. Lindmeier went to Canada to look for work. Mrs. Lind-meier and her two children from a previous marriage went with him. According to Mr. Lindmeier’s testimony, he drove Mrs. Lindmeier back to Louisiana with the understanding she was to sell the house and then return to Canada to live with him. He took Lindsay with him back to Canada.

There is no evidence the Lindmeiers ever established a matrimonial domicile in Canada. According to Mrs. Lindmeier’s testimony, all attempts on her part to return Lindsay to Louisiana were in vain. Mr. Lindmeier apparently filed a petition for divorce and custody in Canada on April 8, 2003. According to Mr. Lindmeier he retained custody by agreement of the parties, although he acknowledged he had nothing in writing. According to Mrs. Lindmeier, he retained custody not by agreement, but because he would not allow Lindsay to leave Canada and she had no recourse.

1 2Ultimately, in late June 2003, Mrs. Lindmeier went to Canada in an attempt to bring Lindsay back to Louisiana. On June 24, 2003, she signed an Acknowledgment of Receipt, acknowledging she received a copy of the divorce petition Mr. Lindmeier filed in Canada. That same day, Mrs. Lindmeier signed an affidavit wherein she stated her intention that Lindsay remain in the custody of her father and that she would be returning Lindsay to Mr. Lindmeier on July 31, 2003.

Thereafter, Mrs. Lindmeier returned to the State of Louisiana with Lindsay. On July 14, 2003, she filed a Petition For Divorce and a request for a grant of full custody of the minor child.

On July 30, 2003, a Divorce Judgment was rendered in Canada which also purports to grant custody of the minor child to Mr. Lindmeier. According to Mr. Lind-meier, there was no hearing and he was never required to go before a judge. A plain reading of the judgment supports that there was no hearing as it indicates the judgment was granted “ON READING the petition, the notice of motion for judgment, and the affidavit dated July 28, 2003 of the petition filed a support of the motion[.]” Notably, neither a copy of the mentioned motion nor a copy of the accompanying affidavit were produced at the subsequent hearing in Avoyelles Parish, Louisiana.

August 8, 2003, Mr. Lindmeier filed an Exception of Lis Pendens and Lack of Subject Matter Jurisdiction as to both the divorce and custody issues. He further alleged that Avoyelles Parish was an inconvenient forum under La.R.S. 13:1706 and requested that the court decline jurisdiction on that ground.

Following a hearing, the trial court granted Mr. Lindmeier’s exception of lis pendens as to the divorce but denied the exception in all respects as to the custody _|jissue. The trial court did not address Mr. Lindmeier’s argument regarding inconvenient forum under La.R.S. 13:1706. It is from this judgment the defendant appeals.

ASSIGNMENTS OF ERROR

The appellant sets forth three separate assignments of error:

1) The Twelfth Judicial District Court failed to properly consider the “Home State Jurisdiction” under the Uniform Child Custody Jurisdiction Act and Louisiana Revised Statute § 13:1702(A)(1) when it did not find Canada to be the “Home State” of the minor child, Lindsay Mae Elizabeth Lindmeier
2) The Twelfth Judicial District Court erred when it found subject matter jurisdiction in the instant matter based on “Significant Connection” to Louisiana under the Uniform Child Custody Jurisdiction Act and Louisiana Revised Statute § 13:1702(A)(2), and
3) The Twelfth Judicial District Court failed to properly exercise its discretion when it refused to consider or address Mr. Douglas Lindmeier’s alternative argument of “Inconvenient Forum” under the facts and circumstances of this case and based on Louisiana Revised Statute § 13:1706(A) et seq.

DISCUSSION

The appellant argues the trial court erred in failing to recognize Canada as the “home state” of the child. Appellant argues Canada is considered a state under the Uniform Child Custody Jurisdiction Act (UCCJA) relying on La.Civ.Code article 3516 which he argues provides that “[t]he word ‘state’ denotes, as may be appropriate: ... any foreign country or territorial subdivision of a foreign country that has its own system of law.” The appellant’s reliance on Article 3516 is misplaced. Article 3516 is found in Book IV, Conflict of Laws. The first sentence of that article, which was deleted from the appellant’s quote, sets forth as follows:

As used in this Book, the word “state” denotes, as may be appropriate....

|4The clear wording of the statute limits it applicability to matters arising under those articles contained in the Louisiana Civil Code, Book IV. It is inapplicable to the provisions of the UCCJA.

The UCCJA is found at La. R.S. 13:1700, et seq. Louisiana Revised Statute 13:1701 sets forth the definitions applicable to the UCCJA and, in pertinent part, provides as follows:

(5) “Home State” means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.
(10) “State” means any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.

Clearly, no foreign country is considered to be a “state” under the provisions of the UCCJA. As Canada is, in fact, a foreign country, it does not fall under the definition of “state” as contemplated by the act.

The provisions of the UCCJA do, however, have international application. Louisiana Revised Statute 13:1722 provides as follows:

International Application
The general policies of this Part extend to the international area. The provisions of this Part relating to the recognition and enforcement of custody decrees of. other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.

We must therefore, examine the evidence presented as to the Canadian proceeding and determine, whether the trial court erred in failing to recognize the 1 .¡apparent judgment rendered in Canada on July 30, 2003, which purported to grant custody of Lindsay to Mr. Lindmeier.

A petition for divorce was filed by Mr. Lindmeier in Canada on April 8, 2003. That petition consists of a fill-in-the blank form wherein the applicable sections, as they apply to the petitioner, are marked. In that petition Mr. Lindmeier seeks not only a divorce, but also full custody of the minor child, Lindsay Mae Elizabeth Lind-meier,

Upon reviewing the petition, we note some of the information supplied is incorrect based on the testimony of both parties at the hearing below. For example, the petition sets forth that Mr. Lindmeier has been a resident of Dryden, Ontario, since birth and has resided in Louisiana since 2001. According to both parties, Mr. Lindmeier was residing in Louisiana in 1997 when Lindsay was born and continued to reside in Louisiana, in Avoyelles Parish, until February 2002 when he decided to return to Canada to look for work. If both parties testified truthfully at the hearing, the statements set forth in the Canadian petition cannot be correct.

Further, the petition reflects the minor child has lived with the petitioner since birth. The testimony established the minor child lived with her mother from the time the couple separated in April 2001 until Mr. Lindmeier took her to Canada in February 2002. Although it is set forth in the petition that the child normally resides in Dryden, Ontario, there is no mention that the child is a United States resident, born in the United States and has actually resided in the United States 80% of her life.

When Mrs. Lindmeier went to Canada she signed a receipt acknowledging she had received a copy of the Canadian petition. According to her testimony, it was a receipt acknowledging she had received the papers the Canadian court had mailed to her which, according to the receipt, was the petition filed by Mr. Lindmeier. On the |fiface of the receipt it states, among other things, “You are served by mail with the documents enclosed ...” Those documents were mailed to Mrs. Lindmeier while she was residing in Louisiana. We note the cover sheet for the Petition For Divorce clearly states:

If you are served in another province or ■territory of Canada or in the United States of America, the period for serving and filing your answer is forty days. If you are served outside Canada and the United States of America, the period is sixty days.

Clearly, since Mrs. Lindmeier was served in the United States she had, under the clear wording of the notice, forty days to file an answer. Yet we note the judgment rendered which purports to grant custody to Mr. Lindmeier was issued July 30, 2003, only thirty-six days after Mrs. Lindmeier signed the Acknowledgment of Receipt.

Mrs. Lindmeier was never given notice of a hearing on the issue of custody. According to Mr. Lindmeier’s testimony there was no hearing. He clearly states that he never went to court before a judge.

Mr. Lindmeier argues his wife consented to his being granted custody pursuant to the Canadian petition. This argument is based upon a sworn statement signed by Mrs. Lindmeier, at his attorney’s office, wherein she stated it was her intention that Lindsay continue to reside with Mr. Lindmeier in Dryden, Ontario and her intention to return Lindsay to him on July 31, 2003. First, we note that nowhere in that document does Mrs. Lindmeier state she is relinquishing her custodial rights to Lindsay. Nor does she agree therein that he be granted full custody of Lindsay. Moreover, at the hearing Mrs. Lindmeier testified she was denied access to her daughter until she signed the sworn statement, and that she would have signed anything to gain physical custody of her daughter so that she could bring her back to |7the United States. Mr. Lindmeier admitted on cross-examination that had Mrs. Lindmeier not signed the documents he would not have allowed her to cross the border back into the United States with Lindsay. The trial court concluded the affidavit was signed under duress. We agree.

Considering the evidence as a whole, we do not find we are required to recognize the custody decree issued in Canada on July 30, 2003. Mrs. Lindmeier clearly was not given reasonable notice. She was not given an opportunity to be heard. The information presented to the Canadian court, including that information as to the length of time the child was in Canada and in the custody of her father was, by his own testimony, incorrect. There was no court hearing in Canada whereby a determination of the best interest of the child was made. We are not even provided with a complete copy of the Canadian proceeding. We do not know what information was set forth in the affidavit upon which the custody decree was based.

In conclusion, Canada is not a “state” within the meaning of the word ‘state’ as it is used in the UCCJA. Further, we are not obligated to recognize the judgment of the Canadian court which purports to grant custody to Mr. Lindmeier for the reasons noted above. We find no error in the trial court’s refusal to recognize Canada as the home state of the minor child.

The appellant argues the trial court erred when it found subject matter jurisdiction based on La.R.S. 13:1702(A)(2), that the child has a significant connection with this state. Louisiana Revised Statute 13:1702(A)(2) provides:

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
|s(2) It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.

The appellant argues that at the time the hearing below was held, Lindsay had only resided in Avoyelles Parish for approximately two weeks. The evidence does not support this argument.

In fact, the testimony established that Lindsay was born in Lafayette, Louisiana, at a time when her parents were residing in Iberia Parish. According to the testimony, Mrs. Lindmeier is presently residing with Lindsay in the family home in Avoyelles Parish where she and Mr. Lind-meier resided from 1997 until the time they separated in April 2001. After the separation, Lindsay continued to live in the family home until February 2002, when she was taken to Canada by her father. Lindsay lived in Louisiana, therefore, for a period of four years and nine months before living in Canada with her father. The vast majority of the time she lived in Louisiana, she resided in Avoyelles Parish. As the trial court correctly noted, Lindsay has spent 80% of her life in Louisiana. The majority of Lindsay’s family live in Louisiana, including her mother, a half-brother, a half-sister, her maternal grandparents, and numerous aunts, uncles, and cousins. Lindsay lived continuously with her mother and two siblings in Louisiana for 80% of her life. All her school records and medical records, except for the sixteen-month period she was in Canada, are located in Louisiana.

This is not a situation where a child has been moved from place to place or from state to state throughout her life. Lindsay’s contacts with Louisiana are not only | asignificant, the majority of the contacts in her life have been in Louisiana, in Avo-yelles Parish. The trial court found subject matter jurisdiction existed based on the significant connections with this state and that substantial evidence is available in this state concerning the child’s present or future care, protection, training, and personal relationships. After reviewing the evidence, we find no error in this ruling.

In his final assignment of error, the appellant argues the trial court erred by refusing to consider or address his alternative argument of “Inconvenient Forum” based on La. R.S. 13:1706(A) et seq.

La. R.S. 13:1706 provides:

A. A court which has jurisdiction under this Part to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
B. A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a curator ad hoc or other representative of the child.
C. In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) If another state is or recently was the child’s home state.
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.
(4) If the parties have agreed on another forum which is no less appropriate, and
|in(5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in Section 1700.
D. Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
E. If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.
F. The court may decline to exercise its jurisdiction under this Part if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.
G. If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.
H. Upon dismissal or stay of proceedings under this Section the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.
I. Any communication received from another state informing this state of a finding of inconvenient forum because a court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction the court of this state shall inform the original court of this fact.

Louisiana Revised Statute 13:1706(0) sets forth those things that may be considered by the court in determining whether Avoyelles Parish, Louisiana, is an inconvenient forum, among others. Although the trial court did not expressly deny |T1 the appellant’s request that this be considered an inconvenient forum, it is clear from the court’s statements that he did not find evidence that would support any of those circumstances listed in 13:1706(0). The trial court declined to acknowledge Canada as the child’s home state, he found the child’s significant contacts are in the State of Louisiana, he specifically found that evidence concerning the child’s present and future care readily available in Louisiana, the parties have not agreed on another forum, and there is no evidence to support the argument that the exercise of jurisdiction by this state would contravene any of the purposes stated in La.R.S. 13:1700.

Further, we note that it is within the discretion of the court whether to find this an inconvenient forum when jurisdiction otherwise exists. The trial court declined to find Louisiana an inconvenient forum. We find no abuse of the trial court’s discretion in this determination.

CONCLUSION

We affirm the trial court’s ruling in all respects, finding no error in its determination that Louisiana has subject matter jurisdiction in this custody dispute. The case is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed against Mr. Lindmeier.


author: GREMILLION, Judge.

text:
    Pamela BORDELON v. TUNICA BILOXI INDIAN TRIBE OF LA, d/b/a Paragon Casino and Resort.
    No. 2003-1223.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    Jay Anthony Pucheu, Marksville, LA, for Plaintiff/Appellant Pamela Bordelon.
    Anthony P. Palermo, Breazeale, Sachse & Wilson, Baton Rouge, LA, for Defendant/Appellee Tunica Biloxi Indian Tribe of LA, d/b/a Paragon Casino and Resort.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

The plaintiff, Pamela Bordelon, appeals the judgment of the workers’ compensation judge granting an exception of subject matter jurisdiction in favor of the defendant, Tunica Biloxi Indian Tribe of LA, d/b/a Paragon Casino and Resort, dismissing her workers’ compensation claim with prejudice. Tunica Biloxi filed the exception claiming that it was immune from suit in the Louisiana Department of Labor, Office of Workers’ Compensation, due to its sovereign status as an Indian nation.

After reviewing the law and the evidence, we conclude that the.issue in this matter is essentially identical to that raised in our recent decision of Ortego v. Tunica Biloxi Indians of LA, d/b/a Paragon Casino, 03-1001 (La.App. 3 Cir. 2/4/04), 865 So.2d 985. Finding our opinion in OHego controlling, we affirm the dismissal of Bordelon’s suit.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge granting Tunica Biloxi’s exception of lack of subject matter jurisdiction is affirmed. The costs of this matter are assessed to the plaintiff-appellant, Pamela Bordelon.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    Laura STELLY v. PARAGON CASINO AND RESORT.
    No. 2003-1222.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    Jay A. Pucheu, Attorney at Law, Marks-ville, LA, for Plaintiff/Appellant Laura Stelly.
    Anthony P. Palermo, Breazeale, Sachse & Wilson, Baton Rouge, LA, for Defendant/Appellee Paragon Casino and Resort.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN G. GREMILLION, Judges.
   SULLIVAN, Judge.

In this workers’ compensation case, Defendant filed an exception of lack of subject matter jurisdiction, claiming that it was immune from suit in the Louisiana Department of Labor, Office of Workers’ Compensation, due to its sovereign status as an Indian nation. The workers’ compensation judge sustained the exception and dismissed Plaintiffs suit.

After reviewing the law and the evidence, we conclude that the issues in this case are essentially identical to those in our recent decision of Ortego v. Tunica Biloxi Indians of La. d/b/a Paragon Casino, 03-1001 (La.App. 3 Cir. 2/4/04), 865 So.2d 985. Finding Ortego controlling, we affirm the dismissal of Plaintiffs suit.

Decree

For the foregoing reasons, the judgment of the Office of Workers’ Compensation granting Defendant’s exception of lack of subject matter jurisdiction is affirmed. Costs of this appeal are assessed to Plaintiff-Appellant, Laura Stelly.

AFFIRMED.


author: pEZELL, Judge.

text:
    Priscilla WHITTINGTON v. PARAGON CASINO RESORT.
    No. WCA 03-1286.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintifi/Appellant Priscilla Whittington.
    Trenton John Oubre, Breazeale, Sachse & Wilson, Baton Rouge, LA, for Defen-danVAppellee Paragon Casino Resort.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   pEZELL, Judge.

This case involves the issue of whether the Office of Workers’ Compensation has subject matter jurisdiction to hear a claim filed by an employee of the Tunica Biloxi Indians of Louisiana d/b/a Paragon Casino. Finding that this specific issue has been recently addressed by this court, we affirm.

DISCUSSION

Priscilla Whittington was hired by Paragon Casino on November 28, 1995, as a soft count handler. She claims that, as a result of her employment, she suffered progressive carpal tunnel injury to both hands and wrists which subsequently caused pain and injury to her neck and back. She filed a claim for workers’ compensation benefits on December 12, 2002.

Her claim was met with an exception of subject matter jurisdiction filed by Paragon Casino. A hearing on the exception was held on March 24, 2003. The workers’ compensation judge agreed with Paragon Casino that the Office of Workers’ Compensation does not have jurisdiction to litigate an action against the Tribe over activities that occurred on tribal lands. A judgment granting Paragon Casino’s exception of lack of subject matter jurisdiction was signed on June 18, 2003. Whit-tington appealed the judgment.

This very issue involving the same defendant was recently decided by a different panel of this court in Ortego v. Tunica Biloxi Indians of La. d/b/a Paragon Casino, 03-1001 (La.App. 3 Cir. 02/04/04), 865 So.2d 985. The panel in Ortego throughly reviewed the history, law, and jurisprudence surrounding jurisdiction of tribal courts and determined that the Tribe had not waived its sovereign immunity but had retained its civil jurisdiction over workers’ compensation claims brought as a result of tribal activities. We agree with the opinion and affirm the judgment of the | P,Office of Workers’ Compensation. Costs of this appeal are assessed to Priscilla Whittington.

AFFIRMED.