author: I,CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Lonzette K. GADDIS, Appellant.
    No. 36,661-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 14, 2003.

      Cary J. Ellis, III, Louisiana Appellate Project, for Appellant.

      Lonzette K. Gaddis, Pro Se.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Dale G. Cox, Assistant District Attorney, for Ap-pellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   I,CARAWAY, J.

By grand jury indictment, Lonzette K. Gaddis (“Gaddis”) was originally charged with second degree murder and convicted of the responsive verdict of manslaughter. Gaddis received a life sentence after his adjudication as a fourth-felony offender and now appeals his conviction and sentence. We affirm.

Facts

In the early morning hours of June 11, 2000, Erica Walker (‘Walker”) drove to a vacant lot in Shreveport known as “the slab.” The slab is a neighborhood haunt known for drinking, gambling, and drug activity. A witness saw Walker exit her vehicle and approach Gaddis. An argument between the two ensued, as well as the exchange of unknown items. When Walker sat down on a bucket, Gaddis pointed a gun to her face and fired, inflicting fatal injuries to her neck and throat. Cash and cocaine were found on the victim. Gaddis fled the scene and threw his gun into a lake. Thereafter, he and a cousin drove to Gaddis’s father’s home where they obtained $30. Gaddis then traveled to Joaquin, Texas, where he was apprehended by police after an attempted flight into nearby woods. Upon his arrest, Gaddis waived extradition and was transferred to Louisiana for trial. During transport, he stated that Walker had a gun and had brought this upon herself.

1 Sufficiency of Evidence

On appeal, Gaddis first contends that the evidence was insufficient to convict him because the state failed to prove that he possessed the specific intent to kill or inflict great bodily harm and failed to exclude the reasonable hypothesis that he acted in self-defense.

The standard of appellate review for a sufficiency of evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

|3A justifiable homicide is a homicide committed in self-defense by one who reasonably believes he is in imminent danger of losing his life or receiving great bodily harm and the killing is necessary to save himself from that danger. La. R.S. 14:20. A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw. La. R.S. 14:21.

In pertinent part, second degree murder is the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm. La. R.S. 14:30.1. The offense of manslaughter is defined as a homicide that would be second degree murder but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Specifically, for the purpose of this offense, the crime of manslaughter includes a homicide committed without any intent to cause death or great bodily harm when the offender is engaged in the perpetration of felonies not enumerated in La R.S. 14:30.1 or any intentional misdemeanor directly affecting the person. La. R.S. 14:31.

When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Hudson, 33,357 (La.App.2d Cir.5/10/00), 760 So.2d 591.

The issue in this case is whether a rational fact finder, viewing the evidence in the light most favorable to the prosecution, could have found Lbeyond a reasonable doubt that Gaddis did not kill Walker in self-defense. Gaddis concedes he shot Walker, but contends that he acted in self defense. At trial, he testified that it was Walker who came up to him with a gun and demanded that he pay her the money owed to her. Gaddis stated that he gave her a twenty, although he only owed her ten dollars. He claimed that after he gave her the twenty, Walker sat down and put down the gun. However, as Gaddis approached her to get his change, she rearmed herself and came toward him. It was then that Gaddis stated he shot Walker with his gun because he believed she would kill him. Thereafter, Gaddis fled the scene, called 911, and threw his gun into a local lake. He could not explain the absence of Walker’s gun from the crime scene but surmised that someone probably stole it after the incident. He further explained that he fled from the police out of fear.

The eyewitness testimony of Jerry Jones (“Jones”) presented a different version of the events. Jones testified that he saw Walker and Gaddis exchange something and then begin a heated argument. When Jones attempted to stop the fight, he claimed that Gaddis pushed him into a fence. By that time, Jones saw Gaddis holding a gun in Walker’s face; she was seated and he was standing. After approximately thirty to forty seconds, Jones stated that Gaddis pulled the trigger, shooting Walker in the throat. Jones testified that Walker was unarmed and never threatened Gaddis.

Dr. Steven Cogswell, the forensic pathologist who performed Walker’s autopsy, testified that in his opinion the gun was fired from a distance of twelve to twenty-four inches. He stated that the bullet traveled |Bat a forty-five degree angle downward which was consistent with the victim being seated and the perpetrator standing at the time of the shooting.

From this proof, the jury convicted Gaddis of manslaughter, obviously rejecting his self-defense claim. The law is clear that absent internal contradictions or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Johnson, 34,902 (La.App.2d Cir.9/26/01), 796 So.2d 201; State v. Hopkins, 34,119 (La.App.2d Cir.12/20/00), 774 So.2d 1178. Obviously, the jury in this case accepted Jones’s testimony and rejected Gaddis’s version of the events. Moreover, the medical testimony corroborated this description of the shooting and contradicted Gad-dis’s claim that Walker was coming toward Gaddis with a gun. Further, the absence of a second gun at the crime scene discredits Gaddis’s claim that Walker was also armed. Under these circumstances, we find the jury’s credibility determination reasonably supported by the record. When credited by the jury, Jones’s eyewitness testimony is sufficient to prove beyond a reasonable doubt that Gaddis did not act in self-defense. These facts also support the manslaughter verdict. We, therefore, reject this argument.

Jury Instructions

In his first pro se argument, Gaddis contends that he was denied both effective assistance of counsel and due process based upon unconstitutional charges which were submitted to the jury. Specifically, Gaddis argues that the jury instructions defining the phrase “reasonable doubt” and instructing | r;the jury on the issue of self defense effectively shifted the burden of proof to him and relieved the state of its burden of proof. Gaddis also argues that his counsel failed to object to the flawed instructions.

Notably, the record before us clearly shows that Gaddis’s counsel did not make any objection to the jury instructions during trial. Of course, the general law is that an error may not be asserted on appeal unless a timely contemporaneous objection is made. La.C.Cr.P. art. 841. Nevertheless, the jurisprudence has carved out an exception to this rule where such alleged trial errors raise overriding due process considerations. State v. Lowery, 33,905 (La.App.2d Cir.2/28/01), 781 So.2d 713, writ denied, 2001-1041 (La.2/22/02), 809 So.2d 978.

Reasonable Doubt Instruction

The specific reasonable doubt instruction at issue and the relevant portions thereof which Gaddis contends is unconstitutional reads as follows:

Proof beyond a reasonable doubt is a phrase that is almost self-explanatory. Reasonable doubt does not mean all possible doubt, but means doubt based upon a reason. If, after you have considered the evidence and the law applicable, there is doubt in your mind as to the guilt of the accused, which doubt is based upon a reason, or for which doubt you can express a reason, then the defendant is not yuilty. However, “proof beyond a reasonable doubt” does not mean proof to an absolute certainty.

Gaddis relies on the cases of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) and Humphrey v. Cain, 138 F.3d 552 (5th Cir.1998) to support his claim that the above instruction violated his due process rights. In Cage, the U.S. Supreme Court condemned the use, in a reasonable doubt instruction, of the phrases “grave uncertainty,” “actual substantial doubt,” and “moral certainty.” In Humphrey, the Fifth Circuit l7Court of Appeals also condemned the use of the phrases “grave uncertainty,” “moral uncertainty,” “actual and substantial doubt” and “serious doubt for which you could give reason” in jury charges relating to reasonable doubt. Both courts held that such definitions diminished the state’s burden of proof, in violation of the Due Process Clause.

We first observe that in this case, none of these specific definitions are utilized. Moreover, the Louisiana Supreme Court has held that these cases, while persuasive authority, are not binding on the courts of this state. State v. Penns, 99-2916 (La.12/20/99), 758 So.2d 776, cert denied, 529 U.S. 1134, 120 S.Ct. 2014, 146 L.Ed.2d 963 (2000). Rather, that court has determined that its holdings in State v. Smith, 91-0749 (La.5/23/94), 637 So.2d 398, cert. denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d 546 (1994) and State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998) bind the courts of this state in reviewing claims regarding erroneous instructions on reasonable doubt.

Smith considered the jury instruction as a whole, rather than isolating certain terms, and held that an instruction equating a reasonable doubt -with “a serious doubt for which you could give a good reason” was not constitutionally infirm. Relying on the Smith holding, Williams likewise held that an instruction defining reasonable doubt as being “based on reason and common sense ...” did not violate the constitution.

|sIn this case, we see little distinction between the subject instruction and that discussed in Williams. Each simply equates a reasonable doubt with a doubt for which a juror could give a good reason. Based upon the holding of Williams, and, after viewing the jury instructions as a whole in accordance with Smith, we cannot say that this instruction is constitutionally infirm.

Self-Defense Instruction

The self-defense language at issue was included in the jury instruction on justifiable homicide which contains the following language:

The burden of proving self defense is not on the defendant. The State must prove beyond a reasonable doubt that the killing was not in self defense. The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self defense.

Gaddis argues that inclusion of the phrase, “viewing the evidence in the light most favorable to the prosecution,” confused the jury and “required” it to return a guilty verdict if the state presented any evidence whatsoever to prove its case. Since Gaddis’s trial counsel made no timely objection to the jury instruction, Gaddis argues that the patent prejudice of this instruction establishes his claim for ineffective assistance of counsel.

The inclusion of the “light most favorable to the prosecution” phrase in the charge to the jury is error. The language provides the appellate standard of review which gives deference to the trier of fact’s determination of the facts of the conviction. This was explained in Jackson v. Virginia, supra, as follows:

13This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

443 U.S. at 319, 99 S.Ct. 2781. In this case, the conflict in the evidence arose in the competing accounts of the shooting given by the defendant and Jones. Gad-dis’s claim of self-defense turned on this credibility issue. Therefore, we must consider whether this error requires reversal of the conviction.

A conviction will not be overturned on the grounds of an erroneous jury charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. State v. Motton, 395 So.2d 1337 (La.1981), cert. denied, 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139; State v. Jasper, 28,187 (La.App.2d Cir.06/26/96), 677 So.2d 553, writ denied, 96-1897 (La.2/21/97), 688 So.2d 521. An erroneous instruction is subject to harmless error review. State v. Eskano, 2000-101 (La.App. 5th Cir.1/30/01), 779 So.2d 148. The question becomes, whether it appears beyond a reasonable doubt, that the erroneous instruction did not contribute to the jury’s finding of guilt or whether the error is unimportant in relation to everything else the jury considered, as revealed in the record. State v. Smith, 600 So.2d 1319 (La.1992). Stated another way, the appropriate standard for determining harmless error is whether the guilty verdict was surely unattributable to the jury charge error. State v. Eskano, supra.

| inAs conceded even by Gaddis, the justifiable homicide instruction also unequivocally informs the jury that the burden of proving self defense is not on the defendant. We will agree, however, that confusion regarding the correct standard of proof can result when consideration is given solely to the erroneous language. However, considered in the context of the entire charge, as well as the evidence of guilt presented at trial, we are sufficiently convinced that no reversible prejudice resulted.

Most significantly, the issue of the witness’s credibility was presented to the jury in the following portion of the jury charge:

It is your duty to determine weight and credibility of the evidence. You may take into consideration the probability or improbability of the statements of the witnesses, their opportunities for knowledge of the facts to which they testify, their reliability in noting and remembering facts, their demeanor on the stand, the interest or lack of interest they have shown in the case, and every circumstance surrounding the giving of their testimony which may aid you in weighing their statements. If you believe that any witness in this case has willfully and deliberately testified falsely to any material fact for the purpose of deceiving you, then you are justified in disregarding the entire testimony of such witnesses as proving nothing and as not worthy of belief. You have the right to accept as true or reject as false the testimony of any witness, in whole or in part, as you are impressed with his truthfulness.

With each witness’s testimony directly contradicting the other on the issue of self-defense, the jury was therefore instructed that the testimony of either Jones or Gad-dis could be disregarded in favor of the version of the shooting presented by the other.

The record before us shows that in addition to the justifiable homicide charge, the jury was given a totally separate self-defense instruction which excluded the “light most favorable” language and reiterated the correct ^standard of proof, i.e., that the burden of proving self-defense was on the state. Additionally, the jury was clearly and correctly instructed at least twice regarding Gaddis’s presumed innocence, until “each element of the crime necessary to constitute guilt is proven beyond a reasonable doubt.”

When we compare the improper language of the jury charge with the specific charge regarding the conflicting statements of witnesses and the jury’s right to determine credibility, we do not find that the guilty verdict was attributable to the erroneous jury charge. On this basis, we find no merit in Gaddis’s contention. Nor would Gaddis’s claims of ineffective counsel for failure to object to these instructions have merit on these grounds.

Failure to Consider Pro Se Motions

In his next assignment of error, Gaddis contends the trial court erred in neglecting to rule on three pro se motions. Gaddis filed two pro se motions to appoint new counsel on August 22 and September 23, 2001. He also sought funds for a private investigator in a pro se motion filed on September 23, 2001.

Gaddis correctly contends that the trial court never ruled on any of these pre-trial motions. State v. Melon, 95-2209 (La.9/22/95), 660 So.2d 466. However, because the record shows that Gaddis permitted the trial to proceed without raising the issue of the lack of a ruling on the pending motions, they are waived. State v. Jackson, 99-401 (La.App. 5th Cir.10/13/99), 746 So.2d 698; State v. Price, 96-680 (La.App. 5th Cir.2/25/97), 690 So.2d 191. Moreover, on appeal, Gad-dis has failed to allege |1gor demonstrate prejudice in the failure of the trial court to rule on these motions. La. C. Cr. P. art. 921. For these reasons, we find no merit to Gaddis’s argument.

Erroneous Rulings on Pro Se Motions

In this assignment of error, Gad-dis contends that the trial court erred in failing to grant three supplemental motions for new trial, a supplemental motion for appointment of counsel and a motion to place a material witness under bond. The record shows that the trial court heard, considered and denied Gaddis’s motions on January 22, 2002.

Gaddis grounded his supplemental motion for appointment of new counsel on a claim of ineffective assistance of counsel. The trial court denied the motion on the basis that Gaddis had included insufficient allegations to support the claim. We agree. A defendant making a claim for ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123. We have reviewed Gaddis’s motion and find that the allegations contained therein can be appropriately classified as general and concluso-ry charges. Therefore, with insufficient grounds to support the motion, we find that the trial court correctly ruled.

In his pro se brief, Gaddis also contests the trial court’s denial of his Motion to Place Material Witness Under Bond. In the motion, Gaddis sought to have Gwen Hopson, an alleged witness to the incident, arrested on a material witness bond in accordance with La. R.S. 15:257.

113The provisions of La. R.S. 15:257 allow a judge, upon motion of a defendant, when supported by his affidavit, to issue a warrant for the arrest of a witness who is essential to the prosecution or defense, to secure the testimony of that witness. The mover is required to show that there are good grounds to fear that the witness may depart or be taken from the jurisdiction of the court. In this case, the trial court denied the motion on the grounds that the motion was not properly before the court and failed to adequately provide the location of the witness. We agree. Not only did Gaddis fail to include an affidavit as required by La. R.S. 15:257, but he also failed to allege that the prospective witness would depart or be taken from the jurisdiction of the court. For these reasons, the trial court correctly denied this motion.

In his three motions for new trial, Gad-dis requested a new trial based upon his counsel’s alleged ineffectiveness, the lack of credibility of witness Jerry Jones, and the erroneous admission of other crimes evidence. The trial court denied these motions, finding that they did not contain information sufficient to warrant a new trial. On appeal, Gaddis makes a specific argument relating only to the first two, i.e., ineffective assistance of counsel and the credibility of Jerry Jones.

As a general rule, a claim of ineffective assistance of counsel should be raised in an application for post-conviction relief in the trial court so that a full evi-dentiary hearing may be had. State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. However, a new trial motion is also a proper vehicle to raise such claims. Id. As in the case of his motion to |uappoint new counsel, here Gaddis makes conelusory allegations. Many of the claims involve the alleged failure of the trial court to provide Gaddis funds for a private investigator. Nevertheless, because the record shows that Gaddis was provided with a private investigator through the public defender’s office, he cannot show prejudice. The remaining claims concern counsel’s alleged failure to confer with him and interview witnesses. Again, Gaddis has neither pointed to specific instances supporting his claim nor showed that these errors established actual prejudice, i.e., that but for counsel’s actions, there is a reasonable probability that the outcome of the trial would have been different. Id. Therefore, we can find no error in the trial court’s denial of Gad-dis’s motion for new trial because of ineffective assistance of counsel.

In a second supplemental motion for new trial, Gaddis contends that Jones’s testimony “should not have been worthy of belief,” due to his admission at trial that he had been drinking at the time of the incident and because he changed his story throughout the investigation and trial proceedings. Gaddis also seeks a new trial on the basis of newly discovered evidence, namely, the testimony of another witness, Gwen Hopson, which he contends would have raised a reasonable doubt in the jurors’ minds, thus changing the verdict. Where the issue on a motion for new trial primarily involves a question of credibility, the trier of fact is better situated to make such determinations. State v. Tyler, 342 So.2d 574 (La.1977), cert denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227; State v. Cherry, 32,141 (La.App.2d Cir.9/22/99), 752 So.2d 894, writ denied, 2000-0085 (La.6/30/00), 765 So.2d 1064. As a legal proposition, a new trial should not be granted on the ground that the newly discovered evidence destroys the credibility of the State’s witness. Id. Additionally, in a motion for new trial based upon newly discovered evidence, the defendant has the burden of showing that the evidence was discovered after trial, is material to the trial, would have produced a different verdict, and the failure to discover it was not caused by lack of diligence. State v. Lanham, 31,791 (La.App.2d Cir.3/31/99), 731 So.2d 936, writ denied, 99-1320 (La.1/14/00), 753 So.2d 207.

In this case, the record clearly shows that the jury heard evidence regarding Jones’s possible intoxication, i.e., he admitted drinking up to ten beers. Additionally, Gaddis’s attorney pointed this fact out in closing argument. Therefore, the jury’s credibility determination regarding this point was fully informed. On this basis, a new trial is not warranted. Likewise, it is clear that Gaddis knew of Gwen Hopson’s testimony prior to trial. Moreover, her account of the incident, as reported by the investigating police, not only corroborated Jones’s testimony generally but failed to exculpate Gaddis in the way that he claims. Therefore, Gaddis has failed to show how Hopson’s testimony would have either changed the result of the trial or qualifies as newly discovered evidence, for which a new trial is appropriate.

Responsive Verdicts

In this assignment of error, Gaddis contends that the trial court never ruled on his Motion to Exclude Responsive Verdicts, thereby erroneously |1ficharging the jury with manslaughter when there was insufficient evidence with which to support a manslaughter verdict. We have, of course, already determined that the evidence was sufficient to support the manslaughter verdict. Therefore, this portion of the argument is without merit. Moreover, although Gaddis failed to provide a transcript of the argument on this motion, the minute entry for October 30, 2001, shows that the case was “taken up on Motion to Exclude Verdict filed November 7, 2000, argued, submitted and denied.” Therefore, Gaddis’s claim that the trial court failed to rule on the motion is also rejected.

Habitual Offender Adjudication/Sentencing

In this assignment of error, Gad-dis contends that the trial court erred in adjudicating him a habitual offender and in sentencing him to life imprisonment. Specifically, Gaddis contends that the state failed to prove the ten-year cleansing period had not elapsed for any of the crimes used as predicate offenses.

On October 25, 2001, the state filed a habitual offender bill of information charging Gaddis as a fourth felony offender, based upon the present conviction and his previous guilty pleas for simple burglary of an inhabited dwelling on March 5, 1990, distribution of a schedule II controlled dangerous substance, on April 12, 1993, and unauthorized entry of an inhabited dwelling on February 18, 1997. No written objection to the |17proceedings was filed in accordance with La. R.S. 15:529.1(D)(1)(b). Of course, any challenge to the previous conviction or adjudication which is not made before the sentence is imposed may not thereafter be raised to attack the sentence and is not preserved for appellate review. La. R.S. 15:529.1(D)(1)(b); State v. Henry, 36,217 (La.App.2d Cir.8/14/02), 823 So.2d 1064; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writ denied, 2000-3070 (La.10/26/01), 799 So.2d 1150. Therefore, Gaddis is precluded from raising as an issue the propriety of the subject cleansing period.

Nor do we find error in the sentence imposed. The definition of criminal conduct and the provisions of penalties for such conduct is a purely legislative function. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993). Pursuant to this function, the legislature enacted the habitual offender statute, which has been held on numerous occasions to be constitutional. Since that statute in its entirety is constitutional, the minimum sentences it imposes on recidivists are presumed to be constitutional. The determination of an appropriate minimum sentence by the legislature should be afforded great deference by the judiciary. While the judiciary is not without authority to declare a mandatory minimum sentence under the habitual offender law excessive under the facts of a particular case, this should be done only in those rare instances where there is clear and convincing evidence to rebut the presumption of constitutionality. State v. Johnson, supra.

|TSIn order to successfully rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must clearly and convincingly show that:

[He] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the ease.

Id. at 676. Additionally, in determining whether Gaddis has met this burden, the trial judge must consider that the goals of the Habitual Offender Law are to deter and punish recidivism. Finally, it must be emphasized that the departure downward from the minimum sentence prescribed under the Habitual Offender Law should occur only in rare instances. Id.

In compliance with La. R.S. 15:529.1(A)(1)(c)(ii), as it read on the date of Gaddis’s offense, and which imposed a statutory minimum life sentence for a fourth felony offender whose fourth or previous felonies were defined as a crime of violence under La. R.S. 14:2(13), the court sentenced Gaddis to life imprisonment without benefit of parole, probation or suspension of sentence. Because manslaughter is a crime of violence, the sentence is presumed to be constitutional. On appeal, Gaddis merely claims that the trial court erred in imposing this sentence and offers no evidence showing an unusual circumstance or that he is the “exceptional” defendant for which downward departure from the mandatory minimum sentence is required. Under these circumstances, we will not disturb the imposed sentence.

|19Res Gestae

In his final assignment of error, Gaddis argues that the trial court erred in admitting other crimes evidence at trial. The record shows that this argument was also presented in support of Gaddis’s supplemental motion for new trial.

On September 5, 2001, the state notified Gaddis of its intent to use evidence of other crimes at trial. Specifically, the state sought to introduce evidence that at the time of the shooting, Gaddis was probably engaged in a drug transaction based upon the fact that cocaine was discovered on the victim at the hospital. On September 19, 2001, a hearing was held on the admissibility of the evidence. Specifically relating to the other crimes evidence, the state presented the testimony of Officer Tom Oster (“Oster”) who received cocaine and cash from a nurse at the hospital where the victim was taken; these items had been retrieved from the victim. Based upon his receipt of these items, at the hearing Oster stated his belief that a drug transaction transpired at the time of the homicide. After hearing this testimony, the trial court found it admissible as part of the res gestae.

Though generally inadmissible, evidence of other crimes, wrongs or acts may be introduced when it relates to conduct that forms an integral part of the act or transaction that it the subject of the present proceedings. La. C.E. art. 404(B)(1); State v. Coates, 27,287 (La.App.2d Cir.9/27/95), 661 So.2d 571, writ denied, 95-2613 (La.2/28/96), 668 So.2d 365. In such cases, the purpose served by the admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the JUcrime on trial by proving the immediate context of happenings near in time and place. State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074. The test of integral act evidence is not simply whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. State v. Colomb, supra.

We find no error in the trial court’s classification of this evidence as res gestae, thereby allowing the state to utilize it in proof of its case. Clearly, the victim’s possession of drugs after the incident was near in place and time to the event. Moreover, with eyewitness testimony suggesting an exchange occurred between the victim and Gaddis prior to the shooting, this evidence appropriately served to complete the story of the crime. Therefore, we can discern no error in its admission into evidence at trial or the trial court’s denial of Gaddis’s motion for new trial on these grounds.

Conclusion

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

AFFIRMED.

      . On appeal, briefs have been submitted by Gaddis and his appellate counsel.

        . Toxicology results showed that Walker had a blood alcohol level of 0.185 percent.

      . Specifically in accordance with Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).

      . In brief, Gaddis "adopts” all arguments made by his counsel at the multiple offender hearing, while making no argument in support of those claims. Of course, assignments which are neither briefed nor argued are considered abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978). Moreover, the only argument made by counsel concerning the propriety of using court minutes to prove the simple burglary of an inhabited dwelling conviction was correctly disposed of by the trial court pursuant to State v. Shelton, 621 So.2d 769 (La.1993).


source: Caselaw Access Project

license: Public Domain

text:
    David Moan TRETTIN, Plaintiff-Appellant, v. Karla TRETTIN, nee Overby, Defendant-Appellee.
    No. 37,260-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 17, 2003.
    Donald L. Kneipp, Monroe, for Appellant.
    Loomis & Dement, by Albert E. Loomis III, Monroe, for Appellant.
    Robert S. Tew, Monroe, for Appellee.
    Before BROWN, CARAWAY and DREW, JJ.
   I,CARAWAY, J.

In this case, the trial court, after a partial hearing, rendered an interim award of joint custody of the children, naming the mother the primary domiciliary parent. The father then contested the custody ruling by claiming irreparable harm caused by the mother’s conduct and sought an ex parte order for temporary custody. Upon the trial court’s denial of his ex parte order, the father simultaneously sought supervisory review of the trial court’s rulings and lodged this appeal. Finding no irreparable injury, this court first denied the request for supervisory review. Trettin v. Trettin, No. 37,189-CW (La.App.2d Cir.1/9/03). Because we find the trial court’s rulings are not subject to appeal pursuant to La. C.C.P. art. 2083, we now dismiss the father’s appeal.

Facts and Procedural History

David Trettin and Karla Trettin were married on June 22, 1991. Of the marriage, four daughters were born. Both parties are employed as full-time physicians and the time demands of their careers required them to employ full-time nannies to care for their children. On February 7, 2002, David filed a petition for divorce and requested full custody of the girls or, in the alternative, domiciliary custody under a joint custody plan. David sought sole custody based upon Karla’s alleged excessive drinking and an eating disorder. In his petition David also sought partition of the community property as well as the exclusive use and occupancy of the family home. Thereafter, Karla answered and reconvened, requesting that |2she be named domiciliary parent under a joint custody plan. Likewise, she also sought the exclusive use and occupancy of the family home.

Pursuant to La. C.C.P. art. 2592(8), the trial court set a rule to show cause for the custody determination on June 11, 2002. Prior to the hearing, the parties by agreement chose two psychiatrists to evaluate the children’s safety in the mother’s care and both parties’ need for possible therapy. On May 10, 2002, the doctors rendered a joint report substantially based upon interviews with the four nannies. The psychiatrist chosen by Karla interviewed her and she denied her alleged excessive use of alcohol or the existence of an eating disorder.

The parties agreed to obtain formal testimony from both psychiatrists about their findings at a partial hearing held in June, the original setting for the custody hearing. At the conclusion of the proceedings, the trial court instructed the parties to either reach an agreement regarding custody or set another hearing date so that the court could render a decision.

On August 15, 2002, David filed a rule for divorce alleging that although he and Karla had lived separate and apart since the filing of the petition, they nevertheless had occupied separate areas of the family residence since then. The court rendered a judgment of divorce on September 30, 2002.

| ¡¡Pursuant to a consent order on November 6, 2002, Karla agreed to cease the consumption of alcohol and submit to random drug and alcohol testing.

On November 18, 2002, a sale of the family residence was apparently imminent. Because the parties could not agree on custody, the court rendered an Interim Order pending a complete trial on the custody issue. The order granted joint custody of the children and designated Karla the primary domiciliary parent.

Thereafter, on December 6, in response to the trial court’s action, David sought an ex parte order of temporary custody of his daughters in accordance with La. C.C.P. art. 3945. Relevant to his custody claim, David submitted ten affidavits of various individuals who had allegedly observed Karla’s suspect behavior. These affidavits included statements of previously and currently employed nannies, a nurse and a doctor, three private investigators, and one person who had seen Karla at a restaurant. Additionally, the June 11 and 14 hearing transcripts and the May 10, 2002 psychiatrists’ report were attached as ex-Mbits. On the same date, the court summarily denied the motion.

On December 17, David sought writs from this court requesting reversal of the November 18 Interim Order and the trial court’s denial of his subsequent motion for an ex parte order of temporary custody. David complained about both custody determinations. In support of his position, David submitted substantially the same evidence used in support of his motion for an ex parte order of temporary custody, including the record of |4the June, 2002 hearing. On January 9, 2003, a separate panel of this court rejected David’s claims regarding the custody issues “upon the showing made.” Simultaneously with his writ application, David also lodged the present appeal regarding the November 18 and December 6 orders.

Discussion

Prior to the 1990 changes in our law concerning the dissolution of marriage, provisional custody, or custody of the child during the pendency of divorce or separation proceedings, was specifically provided for in our law. See former La. C.C. arts. 146 and 157, and Acts 1990, No. 1009. Nevertheless, the right to an ordinary appeal of such provisional custody ruling was not available under La. C.C.P. art. 2083, since it was not considered an interlocutory judgment causing irreparable injury. McCarstle v. McCarstle, 521 So.2d 551 (La.App. 1st Cir.1988). There was no irreparable harm from a procedural standpoint because the hearing for a final judgment of “permanent” custody would soon follow, in which the merits of the custody dispute would be fully decided and stability in the child’s environment would result. Loeb v. Shanton, 168 La. 874, 123 So. 604 (1929).

Following the 1990 changes ending the former provisional custody, the award of custody, whether “in a proceeding for divorce or thereafter,” is simply a judgment of custody. La. C.C. art. 131. Such judgment is provisional only in the sense that custody may be altered later, after material changes in circumstances occur, as illustrated in cases such as Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731 and Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). The award is therefore a final judgment. It is governed substantively under La. C.C. art. 131, which enunciates the best interest of the child test, and procedurally under La. C.C. art. 2592(8), which provides for trial by summary process. A special provision expediting the time for the filing of appeal of the judgment awarding custody is provided in La. C.C.P. art. 3943.

The rule for custody is a summary proceeding, conducted with rapidity, within the delays allowed by the court. La. C.C. art. 2591. Generally, summary proceedings are provided in instances where the issue to be resolved is narrow and/or the need for rapid adjudication is great. Clay v. Clay, 389 So.2d 31 (La.1979). Referring to its own rule for an expedited appeal process, our supreme court has said “this Court has recognized that, to the extent practicable, any and all proceedings affecting children should be given expeditious treatment.” State of Louisiana, In the Interest of T.L.R., Minor Child of T.R. v. R.W.T., 98-2274 (La.1/20/99), 737 So.2d 688. See also, U.R.C.A. Rule 5-1 for the expeditious handling of the appeals of child custody rulings.

The one exception to the summary proceeding or rule for custody pursuant to La. C.C.P. art. 2592(8) is the ex parte, injunctive proceeding addressed in La. C.C.P. art. 3945, which provides, in pertinent part, as follows:

B. An ex parte order of temporary custody of a minor child shall not be granted unless:
(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and | ¿irreparable injury will result to the child before the adverse party or his attorney can be heard in opposition.
(2) The applicant’s attorney certifies to the court, in writing, either:
(a) The efforts which have been made to give the adverse party reasonable notice of the date and time such order is being presented to the court.
(b) The reasons supporting his claim that notice should not be required.
C. An ex parte order of temporary custody shall:
(1) Expire by operation of law within fifteen days of signing of the order; however, the order may be extended for good cause shown at any time before its expiration for one period not exceeding ten days.
(2) Provide specific provisions for temporary visitation by the adverse party of not less than forty-eight hours during the fifteen-day period, unless the verified petition or supporting affidavit clearly demonstrates that immediate and irreparable injury will result to the child as a result of such visitation.
(3) Be endorsed with the date on which the ex parte order is signed and the date and hour of the rule to show cause.
D. The rule to show cause why the respondent should not be awarded the custody, joint custody, or visitation of the child shall be assigned for hearing not more than fifteen days after signing of the ex parte order of temporary custody.
* * *
F. In the event an ex parte order of temporary custody is denied, the court shall specifically allocate between the parents the time which the child shall spend with each parent, unless immediate and irreparable injury will result to the child.

Article 3945, therefore, allows for an ex parte, temporary custody award after specific, verified allegations, showing immediate and irreparable harm to the child. Nevertheless, within the intendment of Article 3945, the ex parte order must be immediately followed by the adversarial summary proceeding or “rule to show cause.” Such custody judgment on the rule to show cause contemplated by Article 3945 becomes therefore a final custody judgment in accordance with La. C.C. art. 131 and La. C.C.P. art. 2592(8).

17Through a combination of rulings, the trial court first ordered, on November 18, an “Interim Order” or temporary arrangement for the sharing of custody. Then, when challenged by David through an ex parte request for custody pursuant to Article 3945, the trial court denied David’s motion on December 6. The December ruling effectively maintained the previous allocation of joint custody, in accordance with the directive set forth in Article 3945(F). From the above review of our law, we now determine that neither one of the trial court’s two rulings was subject to the right of ordinary appeal, and in fact, through the supervisory appeal, the evidence in support of David’s claim for irreparable injury has already been considered and found insufficient by this court. Accordingly, we dismiss this appeal.

David argues that this court should consider this appeal because of the trial court’s lack of authority to issue the November 18 Interim Order and because of the evidence of Karla’s psychological condition established during the June, 2002 partial hearing. We have reviewed the above provisions of our law to make clear that the trial court’s temporary custody ruling of November 18 has no statutory basis. Nevertheless, the parties directed the trial court down the path to such a ruling by their failure to utilize the June, 2002 setting for a complete hearing on the merits of each parent’s right to custody. By the time of the June, 2002 hearing, the parties’ rules for custody had been pending for months. Such matters require rapid resolution and adjudication. Yet, the parties’ negotiations slowed down and parsed this process. When the trial court determined that negotiations had indeed broken down and that an interim ruling was required, it based its | ^ruling on the partial record then before it. With such a ruling, the need for rapid adjudication was all the more compelling from David’s perspective. Yet, instead of seeking an expeditious setting for the trial of his rule for custody, which the trial court should have immediately provided, David pursued another procedural course, including the two appeals to this court.

The Interim Order of November 18 was clearly an interlocutory ruling. La. C.C.P. art. 1841. Pursuant to La. C.C.P. art. 2083, the interim interlocutory order would only be appealable through the ordinary appeal process if it caused irreparable injury. As shown above, the jurisprudence holds that such provisional custody award, which is made pending the full trial on the merits, does not cause irreparable injury. The recourse of the party who objects to such interim order is to seek an immediate trial of his rule for custody.

Moreover, in this ease, David attempted through his ex parte motion to establish the existence of additional irreparable injury because of Karla’s alleged condition. The trial court ruled that irreparable injury was not threatened by Karla’s conduct, and this court agreed by rejecting David’s application for supervisory review. The evidence presented in David’s application included the record of the June, 2002 partial hearing. If ongoing irreparable injury had been established on that record, David’s writ application would have been granted and an ex parte order of custody pursuant to Article 3945 would have been rendered.

la Conclusion

Accordingly, there being no showing of actual irreparable harm to the children by Karla’s actions nor procedural irreparable harm, the November 18 Interim Order is not an appealable judgment under La. C.C.P. art. 2083, and the appeal is hereby dismissed. Costs are assessed to appellant.

APPEAL DISMISSED.

      . Article 2083 provides, in pertinent part, that "an appeal may be taken ... from an interlocutory judgment which may cause irreparable injury, ...”

      . Article 2592(8) provides for the use of summary proceedings as the procedure for an original custody determination.

      . Although the transcript suggests that the purpose of the hearing was to evaluate Karla’s need for hospitalization, in reference to the hearing, the court minutes state that "[r]ules for custody [were] taken up and tried.”

      . On January 9, 2003, this court also denied David’s motion to consolidate the writ application and this appeal.

      . Article 1841 provides that "[A] judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.”


author: | j DREW, J. | KOSTELKA, Judge Pro Tempore

text:
    Gary D. HOWARD, Plaintiff-Appellant, v. HOLYFIELD CONSTRUCTION, INC., Defendant-Appellee.
    No. 36,734-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 18, 2003.

      McBride & Collier, by Robert M. Hanna, Alexandria, for Appellant.
    Crawford & Anzelmo, by Donald J. An-zelmo, Monroe, for Appellee.
    Before BROWN, WILLIAMS, GASKINS, DREW and KOSTELKA (Pro Tempore), JJ.
   | j DREW, J.

Gary Howard appeals from a judgment of the Office of Workers’ Compensation terminating his right to compensation benefits. For the following reasons, we reverse the judgment in part, affirm the judgment in part, and remand.

FACTS

In this workers’ compensation case, the issues are whether the workers’ compensation judge (“WCJ”) erred in finding that the claimant made false statements to obtain compensation, whether the WCJ considered inadmissible evidence, whether the employer falsified a job description and whether the employer is liable for alleged violations of the doctor-patient privilege.

Claimant, Gary Howard, is a carpenter, formerly employed with Holyfield Construction, Inc. (“HCI”). HCI’s compensation carrier is Louisiana United Businesses Association Self Insurers Fund (“LUBA”). On February 7, 2000, Howard fell from a ladder while working and broke his right wrist. Howard is right-handed. Thereafter, HCI paid Howard weekly compensation benefits and medical benefits.

Dr. Sidney Bailey, an orthopedist, diagnosed the wrist fracture, and a splint was applied. He believed there would be total temporary impairment of 8 to 12 weeks, with little to no permanent impairment expected. Once Howard finished his pain medication and was able to drive, he would be permitted to return to a sedentary or light job that did not require use of his right hand. Dr. Bailey recommended a long-arm cast on February 16, 2000. The long-arm cast was replaced with a short-arm cast the next month. On | ¡.April 13, 2000, X-rays showed “near anatomic healing and alignment.” Dr. Bailey recommended an immobilizer. Six days later, X-rays showed there was not a solid union of the fractured bone. The immobilizer was discontinued and a short arm cast was used. On May 4, 2000, Dr. Bailey noted healing of the distal radius fracture. He recommended outpatient therapy and light duty. Howard complained of discomfort in his right wrist when examined by Dr. Bailey on May 25, 2000, and Dr. Bailey recommended that therapy be continued.

In a progress report dated June 29, 2000, Dr. Bailey stated that he had reviewed studies consistent with bilateral carpal tunnel syndrome. He noted that Howard had prior “nerve injuries to the left, but none to the right,” and he recognized that the carpal tunnel problems might be part of the symptom complex. Dr. Bailey recommended a resting night splint and stated that if there was no improvement, he would consider a carpal tunnel release.

A function capacity evaluation (“FCE”) ordered by Dr. Bailey was performed in July 2000. The FCE report stated that Howard gave “reliable efforts” during testing, and the results suggested an “actual and true functional capacity.” During the work simulation portion of the FCE, Howard was tested swinging an eighfipound sledgehammer, screwing and unscrewing wood screws with a drill and a hand-held screwdriver, nailing and removing various sized nails, and assembling nuts and bolts into a panel. The work simulation was to last for 45 minutes or until either the evaluator or the patient terminated it; Howard terminated it after 35 minutes.

laThe FCE evaluator, Debi Balch, observed that Howard “experienced difficulty using the right hand/wrist during activities that required extreme AROM [Active Range of Motion] in all planes, more so ulnar deviation.” She also noted that Howard “experience[d] increased discomfort with forceful, downward resistance coupled with supination/pronation, as with use of the drill and screwdriver and with swinging a sledge hammer.” The evaluator stated that Howard could return to limited-duty work with weight restrictions and a graduated return to full-duty work.

Howard briefly attempted to return to work with HCI after this first FCE, but testified that he was unable to do the kind of work required. His first assignment was a welding job, but he found the grinder to be too heavy. His next assignment was to tear forms from a new concrete sidewalk using an eight-foot long crowbar and a shovel. A third task was to drive iron rods measuring 12 to 18 inches into the ground with a four-pound sledgehammer. These rods were used to hold steel mesh for forming concrete. Howard testified that it hurt his hand to pry with the crowbar, which weighed between 15 and 20 pounds. His last assignment was to put plaster on a house, which he was unable to do because it involved working high above the ground. When he refused to do the last assignment, he was told to go home.

Dr. Bailey noted on August 9, 2000, that Howard complained of hypesthesias in the median nerve distribution of the right hand after returning to work, which was shown by a physical exam. His diagnosis was Uprobable carpal tunnel syndrome. Nerve Conduction Velocity (“NCV”) tests and a resting night splint were recommended.

An NCV test was performed on August 16, 2000. The test suggested right median neuropathy at the forearm which may have been secondary from trauma. Dr. Bailey noted no improvement from the splint on August 22, 2000. An EMG/NCV performed on August 30, 2000, indicated traumatic neuropathy of the right median nerve at 6.5 cm above the distal wrist crease. After reviewing the results of the EMG/NCV tests, Dr. Bailey recommended exploration and release of Howard’s median nerve and forearm.

A median neurolysis was performed on Howard’s right forearm and wrist on September 27, 2000. Dr. Bailey noted that he expected total temporary impairment of four to six weeks with minimal, if any, permanent impairment. Outpatient therapy was ordered following the surgery. A progress note from November 28, 2000, reflected that Howard related that his condition improved when he was at rest, but the symptoms increased when he used his hand. Howard complained of no improvement on January 4, 2001.

An EMG/NCV was performed on January 9, 2001. The results suggested “a limited degree of right median nerve involvement at the wrist (i.e., right carpal tunnel syndrome with borderline prolongation of the right median nerve motor and sensory latencies).” There was no clear indication of median nerve involvement in the right forearm proximal to the wrist. | s Dr. Bailey reviewed the results and stated that he would not recommend exploration.

On January 25, 2001, Howard underwent a second FCE. Howard complained of “moderate to severe pain in wrist/forearm with static and dynamic lifting/carrying, pushing/pulling, crawling, and mild with tool use.” The FCE report concluded:

... [Howard was] capable of performing light to medium work with lifting tasks; fine motor manipulation speed and discrimination of objects is also limited with right hand. It appears that symptoms has (sic) increased since initial FCE which is decreasing level of function more.

On February 15, 2001, Dr. Bailey issued a progress report in which he stated:

Agree with FCE, i.e., light to medium duty. He has another opinion with Dr. Springmeir (sic), I appreciate his input, and we will see him one more time after about 4-6 weeks. It is okay to return to light-medium duty as of today’s date.

Howard was examined by Dr. Craig Springmeyer on April 16, 2001. Dr. Springmeyer stated that he thought that “due to the type of work [Howard] has and the type of injury he had, he may continue to have -wrist problems along with some chronic neuropathy.” He added that if that was correct, then Howard would probably need retraining for a more sedentary type of job.

On April 24, 2001, Dr. Bailey released Howard from his care and in his report again noted his agreement with the results of the FCE. On May 2, 2001, a disability evaluator, Debi Balch, assigned Howard a whole person impairment rating of 19%. On May 10, 2001, with the assistance of the | ^employer, a job description was prepared for Howard. This description stated:

General description of job:

Generally light to medium carpentry work, lift a material with assistance if needed (his decision). Sawing, nailing occasionally. Measuring and installing doors. All general light to medium duty carpentry work.
Can this job be modified? Yes / No. If so, how?
This position has been modified to assist Mr. Howard. He can decide if items are too heavy and refuse to lift them without problem unless he is continuously unable to perform light to medium work.

The emphasized term above is circled on the original document. Dr. Bailey approved of this description on May 30, 2001.

Howard returned to work on June 11, 2001, but said that he was only able to work for about two hours. He was assisting in the demolition of some walls. Howard stated that he began by removing the crown molding, using a flat bar about a foot long to pry away the crown molding. He then used the flat bar and a claw hammer to remove door trim, describing the process as using the hammer to knock the flat bar underneath the trim, and then twisting the flat bar to pry the trim. Howard next attempted to remove the baseboard. Spanish tile had been laid down after the baseboard was put in, so it was difficult to remove the baseboard without breaking the tile. Howard recalled that the flat bar twisted in his right hand as he tried to remove a section of baseboard, and his hand began hurting. He attempted to continue working because his doctor told him to expect some pain and try to endure it, but the pain increased until it became too great.

| TJoe Holyfield, Howard’s employer, testified that he released Howard from work that day because Howard complained that he was having pain in his arm, and that it was Howard’s decision that he could not do the work and that Howard said that he could not remove trimwork. Holyfield testified that Howard was removing the trim when he walked up, although he did not know what tools Howard was using as he was not acting as job supervisor. In any event, Holyfield estimated that Howard had been working, on that date, for two hours. Howard testified that when he complained about his hand hurting, Holy-field told him that was the only job he had for him that day, so he might as well go home. Holyfield testified that removing trim was light work for a carpenter and that Howard said that he could not do this. Howard characterized his tasks that day as heavy work, and he considered his work as a finishing carpenter to be lighter work than what he was doing to remove the wall. HCI terminated Howard’s compensation benefits on June 11, 2001.

Holyfield testified that Howard continued to come into work for several mornings and “sit around [and] drink coffee and talk to some of the employees” and that he repeatedly told Howard, “If you can’t do the job, go home.” Howard said that he came into HCI’s office every morning for two and a half months and that his offers to work were rejected by Holyfield.

On June 26, 2001, Howard returned to Dr. Bailey. Dr. Bailey’s report from that date stated in part:

lsHe attempted to return to work, but states that he had to do a lot of activities regarding twisting, turning and using his types of tools that he was unable to do without pain.
PHYSICAL EXAMINATION: Actual improvement with lesser traction and visible adhesions in the forearm with active and passive range of motion of the right hand which is full sensation.
He has some pain in the thumb and index distribution, but no hypesthesias.
Impairment and restrictions as before. We discussed this at length. He’s had an FCE, permanent impairment rating and a job analysis that I signed off on....
Again, I believe if he would continue to attempt to use the hand and forearm despite subjective complaints of pain, then I believe his symptoms will hopefully improve over a period of time.

During the course of Howard’s disputed claim, his activities were videotaped on several occasions by Robert DeFatta, a private investigator. DeFatta provided two VHS-format videotapes which he testified were copies of an original tape made in Sony Hi-8 format. The WCJ viewed the tapes over the objection of the claimant that the tapes were not the originals. One of the tapes shows Howard working on a fence on March 17, 2001. Howard’s activities on June 26 and June 27, 2001, are recorded on the other tape. Howard is shown working on a truck part on June 26, the date of his visit to Dr. Bailey. He is then shown working on a pickup truck on the next day. Howard also objected to the tapes on the grounds that they were irrelevant; he argued that they did not show him doing any activity outside of his medical restrictions, but the judge overruled this objection as well.

IsAfter hearing the testimony and considering the evidence, the WCJ decided that Howard had made false statements for the purposes of obtaining workers’ compensation. The WCJ gave extensive verbal reasons for her ruling, stating in part:

The video tapes presented to this Court ... show that on March 17th, 2001, the claimant was lifting a board and doing hammering. He was pushing and holding wire with his right hand. He was twisting wire with pliers with his right hand on a fence. He was pulling a line and a cord with his right hand. He was jerking the line and cord with pliers in his right hand. He was pulling and jerking with a hard motion with his right hand, twisting and pulling and jerking, once again, and several other times with his right hand. Unrolling wire and lifting wire. Holding up wire using his right hand. On June 26th, 2001, the video tape show (sic) that he was prying and unscrewing items with his right hand. The Court noticed that on this right hand — or his fingers were covered with oil, indicating that he was performing some work activities. However, the most persuasive evidence that the Court saw on that video tape occurred on June 26th, 2001, when the Court noted that at approximately 3:52 p.m. the claimant was prying an object forcibly using his right hand. He was pressing down. He had an object in his hand which appeared to be a crowbar, was pressing down using that crowbar, twisting his wrist as he was doing it, applying body weight onto the object that he was using his right wrist. This is the same type of work that he was doing on the day that he said he was in so much pain that he can’t do it. The court doesn’t believe he was in pain on the 26th because — I went back and looked at the video tape. That happened — the prying of the object occurred at 3:52 p.m. At 4:21 p.m. on June 26th, 2001, he was still working. At 7:21 p.m. on June 26th, he was still working. And this is the same date that he went to Dr. Bailey ... and told him he was unable to do anything twisting, turning and using tools without pain. The person depicted in that video, same being, Mr. Gary Howard, does not appear to be one who is unable to do twisting and turning with his right hand without pain.

The judge dismissed Howard’s claim for compensation, and Howard now appeals.

JjflISCUSSION

Surveillance Video

Howard contends on appeal that the WCJ erred in admitting dubbed copies of the surveillance videos into evidence. We disagree. La. R.S. 23:1317(A) reads, in part, “The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence.... ” The videotape evidence was sufficiently authenticated for the purpose of this hearing through the testimony of the private investigator and was clearly relevant. The private investigator testified that Howard was the person depicted on the tapes, and he gave a sufficient foundation to ensure the reliability of the tapes. Although the tapes were copies, there was no evidence that DeFatta had added or removed any portions of what he videotaped on the dates in question.

False Statements

Howard next contends that the WCJ erred in finding that he had made false statements willfully and for the purpose of obtaining workers’ compensation benefits. La. R.S. 23:1208 provides, in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

|, .This statute authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. Resweber v. Haroil Construction Co., 94-2708 (La.09/05/95), 660 So.2d 7.

Whether a workers’ compensation claimant has forfeited his right to benefits by making a false statement for the purpose of obtaining benefits is a question of fact that will not be disturbed on appeal absent manifest error. Bossier Electric v. Cubley, 35,852 (La.App.2d Cir.06/14/02), 821 So.2d 685. Statutory forfeiture must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.01/21/98), 707 So.2d 1214.

In applying the manifest error— clearly wrong standard of review, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551. The primary evidence which persuaded the WCJ that Howard was able to work was the videotapes. Our viewing of these tapes and our review of the remainder of the record leads this court to conclude that a reasonable factual basis does not exist for the WCJ’s finding that Howard made false statements for the purpose of obtaining benefits, and the record establishes that this finding is clearly wrong.

Howard did not claim that the condition of his wrist and hand rendered him entirely unable to perform the tasks expected of him by his [^employer. Rather, he was simply claiming that at certain times, certain tasks caused him pain. Howard described his ability to use his right hand this way:

Some things, sometimes my hand don’t bother me at some of the things I do. And then, sometimes it affects — I could be doing the same thing I was doing yesterday and then my hand bothers me.
I have weird burning sensations, tingling sensations, in my hand. I ache. I hurt. And in some positions — sometimes when I get my hand in that certain positions, it — it flares up real bad.

“Evidence in the form of moving pictures or videotapes must be approached with great caution because they show only intervals of the activities of the subject, they do not show rest periods, and do not reflect whether the subject is suffering pain during or after the activity.” Orgeron v. Tri State Road Boring, Inc., 434 So.2d 65 (La.1983). During much of the video, Howard’s hands are partially obscured by vegetation or other individuals. The video jerks and is not very clear at times, making it difficult to determine exactly what Howard may have been doing or what tool he was holding at a particular time. Moreover, there are gaps of time in the tape, either because Howard left De-Fatta’s view or DeFatta had to move to keep from being discovered filming Howard.

Howard was filmed on March 16 while he stood with other individuals in front of Howard’s home. He was filmed the next day as he and several other men installed a chicken wire fence from approximately 9:21 a.m. to 12:47 p.m., with numerous time gaps. Howard was captured |1sholding fence posts, pulling or tugging on wire, twisting and cutting wire with pliers, twisting a metal tie on a fence post, and unrolling and holding up a roll of chicken wire. Howard did not work the entire time, as he was sometimes shown standing around, smoking cigarettes, and at one point he even appeared to be playing with some dogs.

We reference Howard’s testimony regarding the use of pliers or wire cutters:

Like I said, sometimes I don’t hurt. Sometimes I do. Some days I can get up and I could probably use pliers all day long and it not bother me. Some days I can go out there and in five minutes get my wrist in the right way— I don’t know which way. I don’t know how to explain it. But sometimes it hits the nerve in my hand and it aggravates my arm.

On April 24, 2001, Dr. Bailey reviewed a videotape of Mr. Howard engaging in some activities on an unspecified date and said:

After reviewing the video tape of Mr. Howard, I do believe that he is doing activities with that hand and forearm but certainly he is not using his hand in normal fashion compared to his left hand. I’ve actually encouraged Mr. Howard to do activities around the house in an attempt to build up strength and would still place those restrictions as obtained from the FCE and Dr. Springmeyer.

Emphasis supplied.

The next videotape made available to the WCJ was from June 2001. On June 26, Howard is depicted as working on what appears to be a pickup truck wheel that had been placed on the ground. Video was filmed on this date between 1:66 p.m. and 7:25 p.m., although the majority of the relevant activity occurred between 3:80 p.m. and 4:43 p.m. Once again, there are several gaps of time in the video. Exactly what Howard was doing is sometimes difficult to determine because he was often obscured by tall grass |14or weeds. In any event, Howard appeared to be working at times with a wrench. He is also shown cleaning the wheel with a rag, picking up the wheel with both hands and holding it upright, and dragging a part with both hands to the pickup truck. What particularly invoked the WCJ’s ire was when Howard was shown at 3:52 p.m. pushing down on what appeared to be a crowbar in an attempt to pry a part off the wheel. The WCJ stated, “This is the same type of work that he was doing on the day that he said he was in so much pain that he can’t do it.”

What is shown on the video from June 26 are mere minutes of Howard using a crowbar in a like manner to what he was doing on June 11. He was definitely prying with the crowbar from 3:51.34 to 3:52.10, from 3:52.36 to 3:52.56 and from 3:53.44 to 3:54.12, for a total of 84 seconds. He was arguably using the crowbar to pry from 3:55.10 to 3:55.20 and from 3:55.24 to 3:55.59, a total of 45 seconds. We compare this to Howard’s testimony that he stopped working from pain on June 11 while attempting to pry a baseboard, after removing door trim and crown molding with a pry tool or, at the very least, Holyfield’s testimony that Howard complained after working for a couple of hours.

The video of the final day of Howard’s activities played for the court was June 27, 2001. Howard was shown working on what appeared to be brakes for the pickup truck. On this date, he was often obscured by the wheel well of the pickup truck where he was working. Howard appeared to be using a wrench at times. He is shown hitting a part with light taps from a unknown tool for less than one minute. He is later shown tapping an auto |1Bpart with a hammer for approximately 30 seconds and then for approximately 50 seconds.

We find it significant that Howard was encouraged by Dr. Bailey to use his wrist, and if he experienced any pain, to attempt to work through the pain. We do not find it significant that Howard was examined by Dr. Bailey on June 26, the same date DeFatta filmed him prying with the crowbar, as noted by the WCJ. Presumably this examination took place prior to the filmed activity which commenced at 1:56 in the afternoon and extended to the early evening hours. In any event, Dr. Bailey reported that Howard had some pain in the thumb and index distribution, but no hy-pesthesias. Moreover, Dr. Bailey stated, “I believe if he would continue to attempt to use the hand and forearm despite subjective complaints of pain, then I believe his symptoms will hopefully improve over a period of time.” Thus, Howard would have been doing that afternoon exactly what his physician had told him to do.

Job Description

Howard further contends that vocational rehabilitation counselor Ed Earhart and Holyfield fabricated a job description that they knew Dr. Bailey would approve. We find no merit to Howard’s assertion that the job description was somehow a violation of La. R.S. 23:1208. The description appears appropriate to the type of work that a carpenter would be called upon to perform and does not have any indicia of falsity.

\KJa. R.S. 23:1127

Howard’s final argument on appeal is that Earhart and Lisa Anderson violated La. R.S. 23:1127 when they met with Dr. Bailey without Howard being present. Anderson was an employee of Health Choice Solutions, apparently an administrator for LUBA. La. R.S. 23:1127 provides, in part:

(C)(2) In any verbal communication or personal conference between the vocational rehabilitation counselor and any health care provider, for the purpose of providing rehabilitation services, the employee or his agent or representative shall cooperate in scheduling a reasonable date and time for such communication or conference and the employee or his agent or representative shall be given fifteen days notice of any such communication or conference, and shall be given the opportunity to attend or participate in the communication or conference.

Howard contends that he was not aware that Earhart was going to meet with Dr. Bailey until he called Dr. Bailey’s office to inquire about a scheduled appointment when Anderson was to be present. Howard stated that he then called Earhart and told Earhart to notify him before meeting with his physician, and that he wanted to be present for the meetings. According to Howard, he had previously told Anderson that he wanted to be present when she met with his physician. Howard contends that due to a train, he arrived late to the scheduled appointment. When he arrived at Dr. Bailey’s office, he witnessed Anderson and Earhart coming out of Dr. Bailey’s office, and Earhart told him that Dr. Bailey had signed the job description.

Dr. Bailey approved of the job description on May 30, 2001. Anderson sent a letter to Dr. Bailey dated June 1, 2001, in which she thanked Dr. Bailey for meeting with her regarding Howard on May 30, 1^2001. Dr. Bailey’s progress note from May 31, 2001, states, “Reviewed job analysis as proposed. I certainly agree that the patient is able to perform these activities as outlined by Ed Earhart, rehab counsel- or and Lisa Anderson, case manager.” The records do not clearly show that Dr. Bailey met with Earhart and Anderson outside the presence of the claimant, and the WCJ obviously did not accept Howard’s testimony on this point.

Howard also testified that Anderson met with Dr. Springmeyer outside his presence while he was in the waiting room after his appointment. We note that Howard did not know the topic of the conversation between Anderson and Dr. Springmeyer. Moreover, Howard stated that Anderson had another client at Dr. Springmeyer’s office at the same time, which does not eliminate the possibility that Anderson was speaking with Dr. Springmeyer about the other client. This assignment of error is without merit.

CONCLUSION

At appellee’s costs, the judgment is affirmed insofar as it denied appellant’s claims that defendant violated La. R.S. 23:1127 and 23:1208; in all other respects, the judgment is reversed, and this matter is remanded.

DECREE

At appellee’s costs, the judgment is REVERSED in part, AFFIRMED in part, and REMANDED.

KOSTELKA, Judge Pro Tempore, dissents with written reasons.

| KOSTELKA, Judge Pro Tempore

dissenting.

I must respectfully dissent. The majority opinion substitutes its finding of fact for that of the Workers’ Compensation Judge who had the additional benefit of observing the appellant’s demeanor at trial. Whether or not a claimant has forfeited his workers’ compensation benefits by misrepresentation is a question of fact and even though an appellate court may disagree with the conclusion of the trial judge, it should not reverse. The Workers’ Compensation Judge gave extensive and detailed reasons for her conclusion and where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880 (La.1993).


author: PER CURIAM.

text:
    Frank HAYNES, Applicant, v. UNITED PARCEL SERVICE, INC. & Liberty Mutual Insurance Company, Respondents.
    No. 37,457-WCW.
    Court of Appeal of Louisiana, Second Circuit.
    April 3, 2003.

      Law Offices of Jack J. Bailey, Jr., by Jack M. Bailey, Jr., James Allen Cooper, Jr., Shreveport, Mary L. Salley, for Applicant.
    Mayer, Smith & Roberts, by Caldwell Roberts, Jr., Shreveport, for Respondents.
    Before GASKINS, CARAWAY and MOORE, JJ.
   PER CURIAM.

WRIT GRANTED AND MADE PEREMPTORY.

Applicant, Frank Haynes, seeks reversal of the protective order issued by the workers’ compensation judge prohibiting him from taking the deposition of Liberty Mutual Insurance Company in Caddo Parish. Pursuant to La. C.C.P. art. 1442, the corporation designated its representative who is a resident of Texas and works in the corporation’s Irving, Texas office. Liberty Mutual Insurance Company is a defendant and has filed an answer to the plaintiffs claim. Yet, Liberty Mutual insists that the deposition must be taken in Irving, Texas.

The residence of a corporate designee for the purposes of a deposition of the corporation is not germane to the issue of the place for taking of this deposition. La. C.C.P. arts. 1436 and 1442. The witness which Haynes seeks to depose is Liberty Mutual Insurance Company. The record does not reveal whether Liberty Mutual Insurance Company is a Louisiana or foreign corporation. Nevertheless, if a Louisiana corporation, the deposition may be taken in Louisiana. If a foreign corporation, the corporation has appeared in this state by its answer to the plaintiffs claim and the deposition may be taken in the parish where service can be made pursuant to Article 1436, subject to the trial court’s power and discretion to monitor the discovery process. In re Medical Review Panel of Hughes, 2001-2313 (La.App. 4th Cir.1/23/02), 807 So.2d 1074; cf. Phillips Petroleum Co. v. OKC Limited Partnership, 93-1629 (La.4/11/94), 634 So.2d 1186, fn. 3. Accordingly, we hereby grant the writ and rescind the protective order granted on the motion of Liberty Mutual Insurance Company.


author: ROBERTS, Justice.

text:
    FLORIDA INDUSTRIAL COMMISSION, Unemployment Compensation Division, Appellant, v. Ella A. CIARLANTE, Appellee.
    Supreme Court of Florida. Division B.
    Dec. 14, 1955.

      Burnis T. Coleman and Carl R. Pennington, Jr., Tallahassee, for appellant.
    Daniel Sepler, Miami, for appellee.
   ROBERTS, Justice.

This is an appeal in an unemployment compensation proceeding under the Florida Unemployment Compensation Act, Chapter 443, Fla.Stat.1953, F.S.A. The claimant, appellee here, was denied unemployment compensation by the Claims Examiner, the Appeals Referee, and the Unemployment Compensation Board of Review, on the ground that she was not “available for work” within the meaning of Section 443.05 (3) of the Act. The claimant then sought a judicial review of the Board’s order in the Circuit Court of Dade County, as authorized by Section 443.07(4) (e) of the Act, and obtained a reversal of the Board’s order by the reviewing court. The Florida Industrial Commission has appealed to this court from the order of reversal entered by the reviewing court.

There was no dispute in the evidence, which was heard by the Appeals Referee and consisted solely of the testimony of the claimant. The claimant is 67 years of age and listed her occupation as “custom tailor.” This means “high class dress making,” according to claimant. She said that she had been doing this type of work all of her life, in dress establishments in Miami Beach and New York City, where she formerly resided. In both places the work is seasonal, and she has always worked only four or five months during the winter and is always “laid off” .during the summer. She was last employed by Saks Fifth Avenue in Miami Beach from December 1953, to May 7, 1954, and expected to return to her job with that establishment in November or December 1954. She said that she had taken alterations, but that her work was high class dress making, and that “at my age, I can’t change to something else.” After she was discharged by Saks on May 7, she registered for employment as a custom tailor with the Florida State Employment Service and checked the daily newspapers for advertisements for such work. At the suggestion of the Claims Examiner, she made personal calls during three separate days on similar establishments in the area, but discontinued these efforts because she knew there was “nothing to do” in her line of work during the summer.

Based upon these facts, the Appeals Referee found that the claimant was not “available for work” as of the date of the hearing (August 19, 1954) and denied unemployment compensation. Upon appeal to the Board of Review by the claimant, the Board denied the application for review, and the decision of the Appeals Referee is thus “deemed to be a decision of the board of review * * * for purposes of judicial review,” under Section 443.07(4) (e), supra. As noted, the reviewing court reversed the order of the Board denying compensation, and the Commission appealed.

The sole question here is whether there was competent substantial evidence to support the finding of the Appeals Referee that the claimant was not “available for work.” If there was, then the reviewing court should not have reversed the order denying compensation, as the Unemployment Compensation Act specifically provides, in Section 443.07(4) (e) thereof, that “the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.”

The requirement of our Unemployment Compensation Act that, in order to be eligible for unemployment compensation, the claimant must be found to be “available for work,” is found in all other state unemployment compensation acts. Our Act does not define the term, and this court has not heretofore been called upon to construe it. But the courts of other states, in considering such a provision, have generally held that the “availability” requirement is designed to “test the individual’s continued and current attachment to the labor force.” Mohler v. Department of Labor, 1951, 409 Ill. 79, 97 N.E.2d 762, 764; 24 A.L.R.2d 1393. It means that the claimant “ ‘must be exposed unequivocally to the labor market.’ ” Schettino v. Administrator, Unemployment Compensation Act, 138 Conn. 253, 83 A.2d 217, 220. “In order to give effect to the act a person must be ready and willing to accept suitable work. The act is intended to benefit persons who are unemployed through no fault of their own and who are genuinely attached to the labor market.” Swanson v. Minneapolis-Honeywell Regulator Co., 1953, 240 Minn. 449, 61 N.W.2d 526, 531. For other recent decisions on the question of whether a claimant was actually and currently attached to the labor force, and thus “available for work”, see Dwyer v. Appeal Board, 321 Mich. 178, 32 N.W.2d 434, 438; Beaman v. Safeway Stores, Inc., 1954, 78 Ariz. 195, 277 P.2d 1010; Unemployment Compensation Commission v. Tomko, 192 Va. 463, 65 S.E.2d 524, 25 A.L.R.2d 1071; Claim of Sapp, 1954, 75 Idaho 65, 266 P.2d 1027; Tung-Sol Electric v. Board of Review, etc., 1955, 34 N.J.Super. 349, 112 A.2d 571; Rabinowitz v. Unemployment Compensation Board of Review, 1955, 177 Pa.Super. 236, 110 A.2d 792; Stapleton v. Administrator, Unemployment Compensation Act, 1955, 142 Conn. 160, 112 A.2d 211. See also 55 Yale L.J. pp. 123-124.

It has also been said that the test of availability is subjective in nature, Dwyer v. Appeal Board, supra, 32 N.W.2d 434, Stapleton v. Administrator, Unemployment Compensation Act, supra, 112 A.2d 211; and must depend in part on the facts and circumstances of each case. Mohler v. Department of Labor, supra, 97 N.E.2d 762. A factor to be considered is the claimant’s mental attitude, i. e., whether he wants to go to work or is content to remain idle. Pizura v. Director of Division of Employment Security, 1954, 331 Mass. 286, 118 N.E.2d 771. “Indicative of such mental attitude is evidence as to efforts which the person has made in his own behalf to obtain work. A person who is genuinely attached to the labor market and desires employment will make a reasonable attempt to find work, and will not wait for a job to seek him out.” Dwyer v. Appeal Board, supra, 32 N.W.2d 434, 438.

A case somewhat similar on its facts is that of Mohler v. Department of Labor, supra, 97 N.E.2d 762, 24 A.L.R.2d 1393. There, the claimants were seasonal workers in a canning industry and sought benefits during the off-season of their customary occupation. They made minor efforts to obtain other employment, but were unsuccessful. In affirming a decision of the administrative department, that claimants were not “ ‘available for work’ ”, the Supreme Court of Illinois said:

“Both women resided for twenty-seven years in communities that presented no labor market outside seasonal work, and offered no transportation facilities to other available labor markets. It is apparent that neither claimant sought additional work outside or within their communities until this litigation was commenced, and even then the evidence is meager that either fully or adequately canvassed the labor markets to which they did have access. The habit, born over a long period of years, of working only seasonally is indicative of a mental attitude of contentment to remain out of the labor market during the off season of the canning industry. Under such circumstances, it cannot be said that either appellee was currently attached to the labor market, and available for work within the requirement of our Unemployment Compensation Act.”

In holding that the claimant in the instant case was not available for work, the Appeals Referee found that the claimant “for many years has been content to work four or five months a year, thus being unemployed the remaining seven or eight months a year. Her summer unemployment has therefore been of her own choosing. The few applications she did make after being held ineligible are not impressive. Claimant still intends to return to her last employer who will not furnish her with work until December 1954.” And we agree with the Appeals Referee that, in these circumstances, a finding that the claimant was available for work would not be justified. The claimant apparently made no attempt to find, or even registered for, suitable work in any line except “high class dress making”, knowing that such work was unavailable, according to her testimony. Her work history clearly showed that she was content to work only for a few months in the winter and remain idle during the summer. In these circumstances, the Appeals Referee could reason'ably conclude that the claimant had not kept herself “available” for work during the summer. As stated in Austen v. Corsi, 1955, 285 App.Div. 577, 139 N.Y.S.2d 690, 694, “Claimant may not exclusively pursue her chosen career at the expense of unemployment contributions made by others. In so doing she removes herself from the spirit, purpose and letter of the Unemployment Insurance Law.”

It has also been argued here on behalf of claimant that the policy adopted by the Florida Industrial Commission of requiring claimants to indicate their desire to become employed and their “availability for work” by actively seeking work has the effect of adding, administratively, an additional requirement for eligibility to those prescribed in Section 443.05, Fla.Stat.1953, F.S.A., and one which is contrary to the provisions of' Section 443.06(2), Fla.Stat. 1953, F.S.A. This contention cannot be sustained.

The Act not only requires registration for employment but, also, that the claimant be found to be able to work and available for work. It does not seem to be an unreasonable interpretation of the general terms of the statute -that “availability” should be evidenced by something more than mere registration with an employment agency and an expressed willingness to work. Cf. Dwyer v. Appeal Board, supra, 32 N.W.2d 434; Mohler v. Department of Labor, supra, 97 N.E.2d 762; Dan River Mills, Inc., v. Unemployment Compensation Commission, 1954, 195 Va. 997, 81 S.E.2d 620. Nor is there anything in such interpretation which conflicts with the provisions of Section 443.06(2). This latter section has to do with the disqualification of a claimant, which is not the same thing as the eligibility of a claimant. As stated in Beaman v. Safeway Stores, Inc., supra, 277 P.2d 1010, 1012, “Ineligibility and disqualification as used in the act do not mean the same thing and are not intended to be applicable to the same conditions. Eligibility relates to 'a status indispensable to the operation of the act’ whereas disqualification refers to a limited deprivation of benefits because of a specific affirmative act.” The claimant contends that, under Section 443.06(2), “the commission must show a job was available to the applicant, that it was suitable and that he refused it without good cause, before it can rule that he is disqualified for benefits”; but, even if this be true, there is no conflict with an administrative policy to require a claimant to show that he actively, albeit unsuccessfully, sought work, as a condition precedent to eligibility for benefits during his benefit year. 'While the burden may be on the Comitiission to show that the claimant has become disqualified for unemployment compensation during a portion of his benefit year, under Section 443.06(2), it is generally held that the burden is on the claimant to prove that he has met the requirements of eligibility prescribed by the Act, including, of course, the requirement of “availability” for work. Cf. Claim of Sapp, supra, 266 P.2d 1027, and cases there cited. We see nothing to require our substituting a different interpretation of the Act from that adopted by the Commission entrusted with the responsibility of administering the statute and, accordingly, we sustain its interpretation, as set forth above.

As originally enacted by Chapter 18402, Laws of Florida, Acts of 1937, the Unemployment Compensation Act expressly provided that seasonal workers were not entitled to the benefits of the Act during their off-season; but this provision was changed in subsequent amendments to the Act and, finally, by Chapter 23919, Laws of Florida, Acts of 1947, F.S.A. § 443.04, the provisions for the seasonal classification of workers were eliminated from the Act. In the light of this legislative history, we do not hold that seasonal workers are per se ineligible for unemployment compensation, but we do hold that the manifest intent of the legislature was that seasonal workers during their off-season must meet the same eligibility requirements as nonseasonal workers — that is, that they are still actively and currently attached to the labor market. The Unemployment Compensation Act was designed to alleviate the financial hardship of those unfortunate workers who become unemployed through no fault of their own and who are ready, willing and able to work but cannot find suitable employment. It was not intended to provide a vacation with pay for á seasonal worker (or for a non-seasonal worker, for that matter) at the expense of the unemployment compensation fund.

For the reasons stated, the order here appealed from is reversed.

DREW, C. J., and THOMAS and O’CONNELL, jj., concur.