source: Caselaw Access Project

author: RKLINE, J.

license: Public Domain

text:
    INTERNATIONAL PAPER COMPANY v. EAST FELICIANA PARISH SCHOOL BOARD, State of Louisiana, Attorney General.
    No. 2002 CA 0648.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.

      Jesse R. Adams, III, Andre B. Burvant, New Orleans, Counsel for Appellant International Paper Co.
    Robert R. Rainer, Frederick Mulhearn, Baton Rouge, Counsel for Appellee East Feliciana School Board.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   RKLINE, J.

This is an appeal taken by International Paper Company (IP) from a summary judgment rendered in favor of East Felici-ana Parish School Board (School Board) allowing it to levy and collect sales tax on parts and labor used in repairing IP’s equipment in East Feliciana Parish. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Between January 1, 1994 and December 31, 1996, IP owned and operated a paper mill located in Mobile, Alabama. During that period, IP sent equipment used at its Mobile mill to be repaired at Woodyard Equipment and Supply Company, Inc. (WYESCO), located in East Feliciana Parish. According to IP, these repairs generally required the installation of new parts. After WYESCO completed the repairs, it returned IP’s equipment to the Mobile mill on WYESCO trucks. For billing purposes, IP specifically requested that WYESCO separately designate the cost for labor and the cost for parts on its invoices.

Subsequently, the School Board conducted a tax audit of IP for the period of January 1994 through December 1996. The audit revealed that IP had not paid taxes in East Feliciana Parish for the repairs performed by WYESCO. Consequently, the School Board issued an assessment to IP on December 30, 1997, seeking collection of taxes in the amount of $15,421.64, penalties in the amount of $3,855.41, and interest in the amount of $4,217.76, for a total of $23,494.81. In its assessment, the School Board levied sales tax on the full cost of the repairs, including labor and the cost of the parts used in making the repairs.

On March 2, 1998, IP paid the assessment under protest and soon after filed suit for recovery of the amount paid. While IP subsequently admitted that the labor used in making the repairs was taxable in East Feliciana Parish, it disputed that the parts used in making the repairs were also taxable in the parish. Rather, IP contended that the repair parts constituted tangible personal property delivered outside the parish and, as such, was exempt from East Feliciana sales tax.

|30n September 10, 2001, IP filed a motion for partial summary judgment arguing that the School Board “lack[ed] authority to impose and collect sales taxes on the materials used in the repairs because WYESCO delivered the materials that it sold to IP at its mill in Mobile, Alabama.” Subsequently, on October 1, 2001, the School Board filed a cross motion for partial summary judgment contending entitlement to levy and collect a sales tax on the materials used in the repairs. A hearing on the motions was conducted on November 26, 2001. At its conclusion, the trial court stated:

[T]he East Feliciana Parish School Board, the collector of taxes here in East Feliciana Parish, conducted a tax audit for the years 1994, 1995 and 1996. And [sic] pursuant to that audit determined that International Paper had not paid taxes on labor and parts related to repairs of International Paper’s equipment which occurred here in East Feli-ciana Parish during the audit periodf.] International Paper owned and operated a mill located in Mobile, Alabama that sent pieces of equipment to the Wood-yard Equipment and Supply Company, which is located here in East Feliciana Parish for repair. These repairs generally required installation of new parts into International Paper’s equipment. After these parts were installed and otherwise repaired, the Woodyard Equipment and Supply Company delivered the equipment on Woodyard’s trucks to International Paper in Mobile, Alabama. So, those are the facts, and as is said earlier, it does not appear that there is any contest as to any of these material facts.
The issue before the Court and the basis of International Paper’s motion is that they are protesting the assessment because there are allegations that the School Board lacks authority to collect sales taxes on the materials used in the repairs because of the fact that Wood-yard delivered the materials that sold [sic] to International Paper at its mill in Mobile, Alabama. Again, that is the issue as to whether or not these materials that were used in the repairs are taxable here in East Feliciana Parish or elsewhere.
The East Feliciana Parish School Board ordinance which purportedly creates the authority for the School Board to levy this tax is found in Section 1.301(14) that defines the sale of services. It says “Furnishing of repairs to tangible personal property, including but not restricted to the repair and servicing of automobiles and other vehicles, electrical and mechanical appliances and equipment, watches, jewelry, refrigerators, radios, shoes and office appliances and equipment.” So that’s the basis upon which this tax is levied and the issue is whether or not that includes materials. That is whether or not there is, in fact, a sale of materials. So the actual labor, as I said earlier, is not an issue. Both parties appear to agree that labor certainly is taxable. So, again, the issue is the material, the parts used in making the repairs.
It appears to me that these two items, labor and materials or parts, go hand in hand. I do not think that they’re divisible. It’s my opinion that International Paper sent their equipment over here for repairs, not for the purchase of individual parts. And looking at the Parish of Jefferson versus Ecko-Glaco, which is found at 280 So.2d |4629, a Fourth Circuit decision of 1973, and looking at the second case, which I feel is dispositive of the issue before the Court, Clyde Juneau Co. versus Caddo-Shreveport Sales and Use Tax Commission found at 677 So.2d 610, Second Circuit, 1996, buttresses my opinion that the labor/services and parts/ materials go hand in hand. I just don’t feel from the facts of this case and those cases that those things can or should be bifurcated' or divided.
The language' from the Clyde Juneau case says that the parts are of no use to a customer without the service provided by a contractor and the service provided cannot be completed without the parts. So, again, this just reinforces my belief that these two things are not divisible.

Thus, the trial court denied IP’s motion and granted the motion of the School Board. A judgment was signed accordingly on December 11, 2001. From this judgment, IP appeals asserting the following three assignments of error:

1) The District Court erred by ruling that the East Feliciana Parish School Board can impose sales tax on tangible personal property delivered outside the territorial limits of East Feli-ciana Parish.
2) The District Court erred in concluding that the separately itemized labor and materials aspect of a repair could not be treated separately for sales tax purposes.
3) The District Court erred by failing to recognize that any ambiguity in the relevant statutes as they apply to the transactions at issue in this case must be interpreted liberally in favor of the taxpayer, International Paper.

As an appellate court we review a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. The motion is to be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Perry v. City of Bogalusa, 00-2281 (La.App. 1 Cir. 12/28/01), 804 So.2d 895, 899. In the present case, the facts are undisputed, thus we need only make a determination as to who is entitled to judgment as a matter of law.

| ^Assignments of Error 1 and 2

According to the record before us, Section 2.302C of the East Feliciana School Board Ordinances imposes a tax on “the sale of services, as defined herein,” and Section 1.301(14) defines “sale of services” in part as:

The furnishing of repairs to tangible personal property, including but not restricted to the repair and servicing of automobiles and other vehicles, electrical and mechanical appliances and equipment, watches, jewelry, refrigerators, radios, shoes, and office appliances and equipment.

This language is identical to that contained in La. R.S. 47:301(14) defining “sales of services.” On the basis of this definition the School Board assessed a sales tax for the total cost of the repair work that WYESCO performed for IP in the parish.

However, IP argues that the invoices used in billing the repair services distinguished the labor component from the parts component. IP urges that, when the repair transaction is bifurcated in such a manner, different tax consequences can apply to each component. While it concedes that the School Board can tax the labor portion, it contends that it cannot tax the separately itemized parts used in the repairs because they constituted a sale of personal tangible property delivered outside the parish. In support of its contention IP cites both East Feliciana Parish Code Section 15-38(e) and La. R.S. 33:2716(A) which provide that no tax shall be due on the sale of any goods or personal tangible property delivered outside the territorial limits of the parish.

We respectfully disagree with IP’s contention. Initially, we note that it is the substance of the transaction, not the form, that is controlling for the determination of tax liability for sales or use tax purposes. United Companies Printing Company v. City of Baton Rouge, 569 So.2d 186, 189 (La.App. 1 Cir.1990), writ denied, 572 So.2d 73 (La.1991). The substance of a contract, not the wording of it, nor the splitting or dividing it up by the contracting parties, is determinative. The taxpayer cannot defeat the collection of taxes by either the wording, form, or label of a contract. McNamara v. Electrode Corporation, 418 So.2d 652, 662 (La.App. 1 Cir.), writ denied, 420 So.2d 986 (La.1982). Thus, ^something is either taxable or not regardless of the type of invoicing methods utilized. See Clyde Juneau Company, Inc. v. Caddo-Shreveport Sales and Use Tax Commission, 28,433, p. 5 (La.App. 2 Cir. 6/26/96), 677 So.2d 610, 612. Accordingly, the fact that the parts and labor were separately itemized on the invoices is of no consequence.

The School Board contends that the true object of the transaction at issue was not the purchase of parts alone, nor was it the purchase of labor alone. Rather, the School Board maintains that what IP purchased was the repair of its equipment and that both the labor and parts were integral to and inseparable from the rendering of the requested repairs. We agree.

The term “repairs” must be given its generally prevailing meaning and be construed according to common usage. La C.C. art. 11; La.R.S. 1:3, South Central Bell Telephone Company v. Barthelemy, 94-0499, p. 20 (La.10/17/94), 643 So.2d 1240, 1250. Merriam-Webster’s Collegiate Dictionary 991 (10th ed.1995) defines “repair” as, “to restore by replacing a part or putting together what is torn or broken.” The jurisprudence has similarly defined it as, to fix anything that is broken. South Central Bell Telephone Company v. Barthelemy, 94-0499 at p. 20, 643 So.2d at 1250. IP sent its paper-making equipment to WYESCO to be repaired. In order to fix or restore the equipment, WYESCO necessarily had to replace broken parts with new parts. The equipment could not have been repaired without them, and therefore the furnishing of new parts was incidental to and a part of the repair contract. See Thompson Chevrolet Company v. Blanchard, 15 La.App. 254, 131 So. 630, 631 (2 Cir.1930). Consequently, WYESCO was not selling parts to IP, but was consuming them in making the requested repairs. See Clyde Juneau Company, Inc. v. Caddo-Shreveport Sales and Use Tax Commission, 28,433 at p. 6, 677 So.2d at 613.

Hence, it is abundantly clear that what IP purchased was repairs to its equipment, and it is each repair transaction, necessarily comprised of both labor and parts, that is the subject of the tax.

17Even assuming arguendo that there was a separate and distinct sale of tangible personal property (repair parts) in addition to a sale of repair services (labor), rather than just a single sale of repair services (including both parts and labor), IP’s argument that the parts are exempt from sales tax in East Feliciana because they were delivered outside the parish must still fall. Under East Felicia-na Parish Ordinance Section 15-31 the term “sale” is to be given the meaning ascribed to it in La. R.S. 47:301. Louisiana Revised Statute 47:301(12) defines “sale” as “any transfer of title or possession ... of tangible personal property, for a consideration....” (Emphasis added.)

Ordinarily, tax laws are sui gener-is. South Central Bell Telephone Co. v. Barthelemy, 94-0499 at p. 6, 643 So.2d at 1243. However, the courts have applied property law in tax contexts. City of New Orleans v. Baumer Foods, Inc., 532 So.2d 1381, 1383 (La.1988). In Exxon Corporation v. Traigle, 353 So.2d 314, 316-317 (La.App. 1 Cir.1977), writ denied, 354 So.2d 1385 (La.1978), this court held that “tangible personal property” as it is used in the state sales tax law is synonymous with “corporeal movable property” as used in the Civil Code. In our reasoning, we stated:

In its use of this common law term [“tangible personal property”] we do not believe the legislature intended to import the common law into Louisiana for the purpose of sales tax law or to require the court to develop a new body of property law for the purpose of the sales tax. We find it more likely that the legislature desired that this undefined term be defined in accordance with the general property law of Louisiana. Other states use their general property law to explain their sales tax law. Therefore we find it only natural to assume that despite using common law terminology, the legislature intended that Louisiana property law be applied to give explanation to Louisiana tax law. (Citation omitted.)

Louisiana Civil Code article 461 defines corporeals as “things that have a body, whether animate or inanimate, and can be felt or touched.” Louisiana Civil Code article 471 further defines corporeal movables as “things, whether animate or inanimate, that normally move or can be moved from one place to another.” Under these definitions, the repair parts are clearly “corporeal movables” and thus qualify as “tangible personal property” under the relevant ordinance and statute. However, the analysis cannot end there, because La. C.C. art. 482 states that “the ownership of a thing includes by accession the ownership of |severything that it produces or is untied with it either naturally or artificially.” More specifically, La. C.C. art. 510 provides, in pertinent part, that “[w]hen two corporeal movables are united to form a whole, and one of them is an accessory of the other, the whole belongs to the owner of the principal thing.” Accordingly, title to the repair parts (accessories) passed to IP when they were united to or incorporated in the equipment (principal thing) during the repair services wholly performed in East Feliciana Parish. See Roberts v. Williams, 99 So.2d 392, 394 (La.App. 2 Cir.1957).

Although we are unable to find any tax law cases applying the article on accession as it relates to corporeal movables, we are convinced that such an application is appropriate. We are buttressed in our opinion by several cases applying other germane property law articles to various tax law issues. See Exxon Corporation v. Traigle, 353 So.2d 314, 317 (La.App. 1 Cir.1977), (court determined the applicability of state sales and services tax by classifying the property at issue under general property law) writ denied, 354 So.2d 1385 (La.1978); Showboat Star Partnership v. Slaughter, 00-1227 (La.4/3/01), 789 So.2d 554 (applying La. C.C. art. 466 to determine whether gaming equipment on a riverboat gaming vessel qualified as “component parts” under La. R.S. 47:305.1 A for sales tax exemption purposes); Clyde Juneau Company, Inc. v. Caddo-Shreveport Sales and Use Tax Commission, 28,433 (La.App. 2 Cir. 6/26/96), 677 So.2d 610 (applying La. C.C. art. 466 to determine that corporeal movable repair parts became component parts of an immovable and thus, were exempt from sales taxes); City of New Orleans v. Baumer Foods, Inc., 532 So.2d 1381 (La.1988) (applying La. C.C. art. 467 to determine that corporeal movable equipment had not become immovable by declaration when use tax attached and thus the tax was correctly levied); Sales Tax Collector, St. Charles Parish v. Westside Sand Company, Inc., 534 So.2d 454 (La.App. 5 Cir.1988) (applying La. C.C. art. 468 on deimmobilization to determine that once removed from its natural source, sand becomes a corporeal movable and thus subject to sales tax) writ denied, 536 So.2d 1240 (La.1989).

|9As a consequence, the repair parts, as well as the labor, are subject to taxes in East Feliciana Parish.

Assignment of Error 3

With regard to its third assignment of error, we agree with IP that tax statutes are to be interpreted liberally in favor of the taxpayer. Clyde Juneau Company, Inc. v. Caddo-Shreveport Sales and Use Tax Commission, 28,433 at p. 6, 677 So.2d at 613. If the statute can reasonably be interpreted more than one way, the interpretation less onerous to the taxpayer is to be adopted. Id. However, as set out hereinabove, whether applying the general rules for statutory interpretation or applying the property provisions provided by our Civil Code, IP is inescapably bound to pay the taxes for its purchase of repair services, including the cost of the parts used or consumed by WYESCO in providing those services. Consequently, IP’s last assignment of error cannot prevail.

DECREE

For the foregoing reasons, the summary judgment granted in favor of the East Feliciana Parish School Board is affirmed. Costs of this appeal are taxed to International Paper Company.

AFFIRMED.

        . The East Feliciana Parish Code imposes a tax on “the sale of services” in Section 15-32(5) as it is defined in La. R.S. 47:301.


author: I MOAN BERNARD ARMSTRONG, Judge.

text:
    John M. REAUX, M.D. v. The LOUISIANA BOARD OF MEDICAL EXAMINERS.
    No. 2002-CA-0906.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.
    Rehearing Denied Aug. 15, 2003.

      Michael D. Cox, Bossier City, LA, for PlaintiffiAppellant.
    Don S. McKinney, Adams and Reese LLP, New Orleans, LA, for Defendant/Ap-pellee.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE and Judge LEON A. CANNIZZARO JR.
   I MOAN BERNARD ARMSTRONG, Judge.

This is an appeal by a physician from a decision of the trial court affirming an administrative decision revoking the physician’s license to practice medicine. Because the decision of the trial court is amply supported by the record as a factual matter, and because the record reflects that the physician was not deprived of any of his legal rights in the proceedings of the trial court, we will affirm.

This action was begun by the filing of an administrative complaint, against Dr. John M. Reaux, M.D., before the Louisiana State Board of Medical Examiners (“the Board”). The crux of the complaint against Dr. Reaux is that he prescribed narcotics and other controlled substance drugs to patients without performing physical examinations and without legitimate medical purpose in exchange for payments by those patients. Dr. Reaux was represented by legal counsel. There were discovery and other pre-hearing proceedings. A two-day administrative hearing was held at which evidence was presented and Dr. Reaux was given the opportunity to cross-examine and present rebuttal evidence. The Board presented the testimony of several witnesses, including two undercover narcotics police ^officers, and numerous exhibits. Dr. Reaux testified but did not call any other witnesses and introduced one exhibit. The Board issued a lengthy written opinion in which it made numerous findings of fact including determinations of credibility. The Board revoked Dr. Reaux’s license to practice medicine. Dr. Reaux brought an action for judicial review of the Board’s determination. The trial court clarified or modified the Board’s decision to reflect that fewer patients were involved than might have been suggested by the Board’s opinion, but the trial court ruled that: “In all other respects, the Board’s findings of fact and conclusions of law are affirmed.” Dr Reaux then brought the present appeal.

The standard of judicial review of the Board’s decision was set out by this court most recently in Holladay v. Louisiana State Board of Medical Examiners, 96-1740 (La.App. 4 Cir. 2/19/97), 689 So.2d 718, unit denied, 97-0730 (La.5/1/97), 693 So.2d 740, which decision, like the present case, involved a physician’s improperly prescribing narcotics and other controlled substance drugs. Specifically, Holladay states:

The standard of appellate review of a decision by an administrative agency is distinct from and narrower than that which pertains to general appellate jurisdiction over civil and criminal appeals. Considerable latitude must be afforded administrative agencies to perform functions delegated to them under law, and courts should not intervene unless the administrative agencies’ conduct is clearly unreasonable and arbitrary.... An administrative agency’s proceedings and decisions are presumed to be legitimate and correct, and the burden is on the appellant to demonstrate the grounds of reversal or modification.
[aThe exclusive grounds upon which an administrative determination or decision may be reversed or modified on appeal are enumerated in La. R.S. 49:964(G), La. Const., 1974, Art. 5, 510(B). Pursuant to La. R.S. 49:964(G), the district court may not reverse or modify an administrative decision unless the decision was arbitrary, capricious, characterized by abuse of discretion, clearly unwarranted exercise of discretion, or manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Where the administrative agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues. La. R.S. 49:964(G).
In reviewing the Board’s decision, the district court had to determine whether the Board’s factual findings were supported by substantial evidence and whether the Board’s conclusions and sanctions were arbitrary or capricious or constituted an abuse of its discretion. To reverse the Board’s decision, the district court had to find that the Board’s factual findings constituted manifest error.... To modify the penalties imposed by the Board, the district court had to find that the penalties were arbitrary, capricious, an abuse of discretion, or grossly disproportionate to the offense. La. R.S. 49:964(G)(5);

97-0730, p. 4 — 7, 693 So.2d 740; 689 So.2d at 721-22 (citations omitted). We apply these standards of review to the present appeal.

Captain Shane Evans, narcotics commander of the East Baton Rouge Parish Sheriffs Office testified with respect to patient J.A., for which patient Dr. Reaux had written several prescriptions for narcotics or other controlled substance drugs. J.A. committed suicide. A large number of prescription pill bottles were found in his Utah apartment. Captain Evans introduced into evidence the pill bottles as well as a $150.00 money order slip and a Federal Express receipt showing a shipment to Dr. Reaux’s clinic in Baton Rouge. Based upon the dates of the prescriptions, it 14appears that Dr. Reaux wrote prescriptions for J.A. while J.A. was in Utah and that Dr. Reaux’s medical records, which reflect examinations of J.A. on the dates of the prescriptions, were falsified.

Undercover narcotics police officer R.O. testified. She went to Dr. Reaux’s clinic. She filled out a form and made a cash payment of $125.00. In response to a nurse’s inquiry as to what type of pain she was having and what had caused her pain, R.O. said, “I guess my neck” and “everyday life”. R.O. also said she was used to taking Lortab. R.O. went into Dr. Reaux’s office where he wrote prescriptions for Lortab and other controlled-substances drugs with refills. Dr. Reaux never rose from his desk much less performed any physical examination upon R.O. R.O. returned to Dr. Reaux’s clinic a month later. Dr. Reaux again performed no physical examination but, instead, simply wrote prescriptions for Lortab, Flexeril and Xanax. Dr. Reaux told R.O. that she should bring him some medical records or paperwork in case he was ever audited but that he “had no problems pushing the rim of the envelope”. Dr. Reaux’s medical record for R.O. relates a history of pain which R.O. never gave him and a physical examination of R.O. which never occurred.

Another narcotics undercover police officer, L.S., also testified. He went to Dr. Reaux’s clinic. He was seen by a receptionist whom he asked about diet pills. He talked to a nurse and said that he was interested in an energy boost and losing weight. The nurse suggested Adipex and said that patients liked it because of the energy boost. The nurse then went to Dr. Reaux’s office while L.S. returned to the | slobby. The nurse came to the lobby with a prescription for Adipex written by Dr. Reaux. L.S. paid $50.00 in cash. Thus, Dr Reaux never even spoke to L.S., much less examined him, prior to prescribing a controlled-substanee drug.

A patient of Dr. Reaux’s, K.C., testified. He went to Dr. Reaux’s clinic. He saw Dr. Reaux on the first visit, but Dr. Reaux performed no physical examination, and Dr. Reaux wrote for him a prescription for controlled-substanee drugs. K.C. paid $80.00 for the prescription. K.C. went to Dr. Reaux’s clinic four more times, and received prescriptions for controlled substance drugs each time, but never saw Dr. Reaux on any of these four visits. Instead, K.C. called ahead, paid for the prescriptions at the front desk, and picked up his prescription at the front desk. Dr. Reaux’s medical records stated that there were physical examinations of K.C. despite the fact that such physical examinations never occurred.

Another patient of Dr. Reaux’s, K.J., was observed at a party, the night before his death, drinking narcotic cough syrup and taking pills as well as alcoholic drinks. Dr. Reaux had prescribed narcotic cough syrup as well as other controlled substance drugs for K.C. and the cough syrup and other prescribed drugs were found at the scene of K. J.’s death. Dr. Reaux’s medical records reflect that K. J. showed symptoms of cardiomegaly and/or congestive heart failure, but Dr. Reaux did not refer K. J. to a heart specialist. The autopsy showed that K.J.’s death was caused by cardiom-yopathy and massive cardiomegaly.

The Board received testimony and documentary evidence as to Dr. Reaux’s prescribing of controlled-substanee drugs to several other patients as well. The [ f,pattern was that Dr. Reaux performed no physical examinations and falsified elaborate medical records. Also as to these patients, Dr. Reaux testified inconsistently with the patients’ testimony as to his performing physical examinations.

Dr. Reaux’s first argument on appeal is that, because no expert testimony was received at the Board hearing, (a) he was deprived of due process of law in that the Board presumed him guilty and (b) the statutes and regulations which Dr. Reaux was found to have violated were unconstitutionally vague. Dr. Reaux presented to the Board both of these arguments related to the lack of expert testimony. The Board dealt with them thus:

In his post-trial memorandum, Respondent raises a number of issues relating to the manner in which the hearing was conducted:
First, in his Objection No. 6, he objects to the Board not granting him the presumption of innocence by fading to present any expert testimony from a physician as to the standard of care, and as to the meanings of the various rules and regulations of the Board.
In Objection No. 13, he “objects to the rules and regulations in Subchap-ter A and B of La. R.S. 49:6901-6923, in that they are unconstitutionally vague. Specifically, it is claimed that section 6917 is void because the following terms or phrases are not defined in the regulation and are not susceptible of definition:
“the usual course of a disease”
“the expected time for healing”
“generally accepted course of medical practice”
“the usual course of professional medical practice”.
|7He further alleges that the following phrases in Section 6907 render it void for the same reasons:
1. “prescribed sound nutrition”
2. “thorough and complete physical examination”.
As to Objection No. 6, we point out that the objection probably relates to the weight to be given to the testimony as a whole. We further note that R.S. 49:956(3) specifically provides that “the agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence”. We interpret this to mean that we may utilize our own expertise in evaluating the testimony in a case.
Laws and regulations are presumed to be constitutional. One asserting unconstitutionality bears the burden of establishing that fact. Respondent offers no support for his claim other than the bare assertion of his contention. Dr. Reaux testified that he thought the above provisions are vague, but also stated that he thought he knew what they mean. So should any physician know, if he is properly educated in his field. We find Objection No. 13 to be without merit.

We agree with the Board. Based upon the record of the proceedings in the trial court, and the Board’s meticulous written opinion of eighteen single-spaced pages, there is not the slightest indication that the Board presumed Dr. Reaux to be guilty. The Board is made up of physicians and the Board is statutorily-authorized to rely upon its own medical expertise. La. R.S. 49:956(3). Unlike a jury of laypersons, a board made up of physicians is able to evaluate medical issues without the assistance of expert testimony.

As to the argument that the statutes and regulations are unconstitutionally vague in the absence of expert testimony as to their meaning, we find dispositive the Board’s findings of fact that Dr. Reaux knew what the statutes and regulations meant and that any properly educated physician would know what the statutes and|sregulations meant. The statutes and regulations are not addressed to laypersons, who indeed may not know what they mean but, rather, are addressed to physicians who will know what they mean.-

Dr. Reaux’s next argument on appeal is that he has been denied equal protection of the law because his license to practice medicine was revoked whereas, in Holladay v. Louisiana State Board of Medical Examiners, 96-1740 (La.App 4 Cir. 2/19/97), 689 -So.2d 718, the Board suspended for three months the license of Dr. Holladay and placed him on three years probation. Dr. Reaux cites no legal authorities in support of this equal protection argument.

This court discussed the Board’s authority to determine penalties in the Holladay decision:

Last, Dr. Holladay contends that the penalties imposed by the Board were grossly disproportionate to the alleged offense. An administrative agency’s decision assessing a penalty should not be set aside unless it is arbitrary, capricious or characterized as an abuse of discretion. La. R.S. 49:964(G)(5)_ Considerable latitude must be allowed to public agencies to perform functions delegated to them under law and courts should not intervene unless such conduct is clearly unreasonable and arbitrary.... The imposition of an administrative sanction is in the nature of a disciplinary measure.
In deciding what, if any, discipline to impose, the Board may be strict, moderate or lenient. Unless arbitrary, such discretionary decisions must be upheld.... In light of the evidence and the fact that the Board could lawfully revoke Dr. Holladay’s license altogether, it appears that the Board was extraordinarily lenient in selecting the sanctions imposed. Accordingly, there is no indication that the penalty imposed by the Board was arbitrary, capricious, an abuse of discretion, or grossly disproportionate to the offense.

96-1740, p. 18; 689 So.2d at 727 (citations omitted). We note that, in Holladay, we characterized the Board’s penalty as “éx-traordinarily lenient”. We do not | ^believe that the Board’s decision to be lenient in one case obliges it to exercise leniency in every subsequent case. Holladay was decided six years ago and, over time, the Board’s attitude towards infractions may change and/or the individuals comprising the Board may change, so there is nothing surprising or untoward if the Board has decided to act in the present case without the leniency exhibited in the Holladay case.

Moreover, seldom are two cases truly identical in their facts, and the penalty imposed in each case must be judged in light of the facts peculiar to that case. The Board may have viewed the infractions for Dr. Reaux as more egregious than those of the Holladay case. The Board’s opinion below notes that the Board had previously disciplined Dr. Reaux in connection with his medication prescriptions whereas, in Holladay, the physician involved apparently had not been previously disciplined. The Board also expressly found that Dr. Reaux extensively fabricated false medical records (relating examinations that 'never occurred, etc.) after learning that he was under investigation and that Dr. Reaux testified falsely before the Board. Dr. Reaux’s extensive and elaborate attempts to deceive the Board, which are not paralleled in Holla-day, could reasonably have elevated the Board’s concerns as to Dr. Reaux. Thus, a number of factors distinguish the present case from Holladay and reasonably explain the difference between the penalty imposed in the present case and the penalty imposed in Holladay.

Dr. Reaux’s next argument on appeal is that he was not given the opportunity for a “La. R.S. 49:961(c) meeting” with the Board prior to the institution of proceedings against him. That statute provides:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gives |innotice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license.

(emphasis added).

Dr. Reaux presented this argument to the Board and the Board addressed the issue thus:

The hearing was held as scheduled, on January 25 and 26, 2001. Prior thereto, Respondent filed a number of objections to the pre-hearing procedure:
“Number 1: The Respondent objects to the denial of a timely requested pre-hearing conference pursuant to L.R.S. 49:961(c) .(hereinafter ’961(c)’ meeting) with regard to each count and each installment of new allegations, original or added at a later date which thereby denied him due process of law.”
“Number 2: The Respondent objects to the refusal of the Louisiana State Board of Medical Examiners (hereinafter the “Board”) to permit him to have present a court reporter, at his own expense, to record a 961(c) meeting and then to use the presence of said court reporter at the scheduled July 11, 2000, via process verbal hearing to waive the rights of the Respondent and thereby denying him due process of law.”
“Number 3: The Respondent objects to the Board’s waiver of his rights to 961(c) meetings on the basis of the Board’s refusal to permit the court reporter in attendance and without a hearing or notice of the waiver from the Board’s Independent Counsel and thereby denying respondent due process of law.”
Respondent claims that he was denied due process of law because he was never granted a meaningful meeting under R.S. 49:961(c). He states that under the State and Federal Constitutions he has a right to confront his accusers, and a 961(c) hearing was the only opportunity given to accomplish this.
Two 961(c) hearings have been scheduled in this case. The first was halted by Respondent allegedly because of Investigating Officer’s remark relative to Respondent’s competency. The second was halted by | n Complainant because of Respondent’s insistence that the meeting be transcribed by a court reporter. A third 961(c) meeting was requested by Respondent when the second Supplemental Complaint was filed. This motion was denied. Respondent contends that he is entitled to a 961(c) meeting relative to every charge leveled against him.
It is the position of the Complainant that the purpose of the 961(c) meeting is to give the Respondent an opportunity to respond to the charges against him, doctor to doctor, before the matter is brought to the attention of the Board. It is contended that Dr. Reaux was given this opportunity on two occasions. On the first, he refused to go forward in the face of the Investigating Officer’s alleged declaration that the matter would be brought to the Board regardless of what Dr. Reaux might say.
On the second occasion, with a new Investigating Officer in the case, the Complainant refused to have the meeting because the Respondent insisted on having the meeting transcribed in order to build a record.
R.S. 49:961(c) clearly requires that a respondent be given “an opportunity to show compliance with all lawful requirements for the retention of the license”. A meeting, in which it is allegedly represented that it is immaterial what Respondent might say in response to the charges against time, does not furnish such opportunity.
On the other hand, the exchanges at the 961(c) meeting form no part of the record of the case. It is intended to give the Respondent the opportunity to answer, explain, contradict, or otherwise respond to the charges against him, in an informal setting.
The contents of the record on appeal are prescribed by La. Admin.Code § 46:9921(e), and the proceedings at a 961(c) meeting are not included. If follows that there is no right to make a record of such a meeting, and that Complainant was within his right to refuse to proceed under those circumstances.
Be that as it may, Respondent did not file an exception of prematurity or object to continuing the proceedings until shortly before the hearing. In the meanwhile, he conducted discovery and participated in pre-hearing and status conferences. In so doing he has | ^waived his right to a 961(c) meeting. Louisiana State Board of Medical Examiners v. Bertucci, La.App. 4 Cir, 593 So.2d 798 (1992).
We conclude that Dr. Reaux failed to take advantage of the second 961(c) meeting offered him, by insisting, improperly, that the meeting be transcribed by a court reporter. Further, he failed to preserve any right he may have had by voluntarily going forward with the discovery portion of the proceedings, and thereby waived the 961(c) meeting.

We are in substantial agreement with the Board’s reasoning. The statute, La. R.S. 49:961(c), does not require that the licensee’s right to “an opportunity to show compliance” must be recorded and, therefore, the Board did not violate Dr. Reaux’s rights by refusing to conduct the “961(c) meeting” with a court .reporter present. Consequently, Dr. Reaux’s insistence that a court reporter be present for the “961(c) meeting” amounted to a waiver of the meeting. It is a reasonable inference from the statute that, while “an opportunity to show compliance” must be generally fair and reasonable, the Board has some discretion as to the manner of providing that opportunity and the licensee is not entitled to dictate to the Board in that regard.

Moreover, under our Bertucci decision, cited by the Board, Dr. Reaux waived the “961(c) meeting” by not raising the issue with the Board prior to participating in discovery and other pre-hearing proceedings. . The apparent purpose of La. R.S. 49:961(c) is to give the licensee an opportunity to address the Board’s concerns before the proceedings against the licensee are substantially underway so that, in cases in which the licensee can convince the Board at that point that the Board’s concerns are unjustified, the licensee will never be subjected to most of the burdens of Board proceedings. Dr. Reaux did not object before the |13Board to the alleged lack of a “961(c) meeting” until shortly before the Board hearing, after the completion of substantial Board proceedings, at which point much of the apparent purpose of La. R.S. 49:961(c) could no longer be accomplished. Further, having a “961(c) meeting” on the eve of a long-scheduled hearing was apt to be a vain and useless act. This procedural issue was raised too late in the proceedings.

Dr. Reaux argues that, because undercover narcotics police officers conducted two “sting” operations against him, obtaining improper prescriptions from him, the Board exceeded its statutory authority. Initially, we note that the sting operation was conducted by the East Baton Rouge Parish Sheriffs Office, not the Board, and so Dr. Reaux’s argument seems off-the-mark at best. In any case, the Board does have express statutory authority to use “inspectors, special agents, and investigators”, La. R.S. 37:1270, so the investigation, even if conducted by the Board itself, would be authorized. Dr. Reaux complains that the investigation involved illegal activity, i.e., obtaining improper prescriptions, but such undercover operations by narcotics officers are lawful. See, e.g., State v. Hardy, 715 So.2d 466 (La.App. 5th Cir.1998); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). Lastly on this issue, we note that Dr. Reaux is inaccurate when he states: “The case began with the Louisiana State Board of Medical Examiners participating in the creation and/or manufacture of evidence.” In fact, the case began when one of Dr. Reaux’s patients, J.A., while reportedly despondent over his addiction to prescription pain-killers, took his own life, and all signs pointed to Dr. Reaux improperly prescribing for J.A. such controlledjsubstance14 drugs. The investigation undertaken was statutorily-authorized, lawfully-conducted and urgently necessary for the protection of the public.

Dr Reaux’s next argument on appeal is that the Board erred in applying its regulation on the use of drugs for “chronic” pain because the patients at issue did not have “chronic” pain. In the first place, this argument does not benefit Dr Reaux. If the patients did not have chronic pain, then there certainly would be no medical justification for Dr. Reaux prescribing long-term use of controlled-substanee painkiller drugs. Thus, Dr. Reaux’s (mostly fabricated after the fact, according to the Board’s fact findings) medical records are organized in accordance with the Board’s regulation as to treatment of chronic pain and, in fact, refer to some of the patients at issue as being treated for “chronic pain”. Also, Dr. Reaux testified (mostly falsely according to the Board’s fact findings) that he had attempted to comply with the Board’s regulation on pain and that he found the Board’s regulation “helpful”. Thus, Dr. Reaux himself admitted that the Board’s pain treatment regulation is applicable. Lastly on this point, the Board, which is made up of physicians, and which promulgated the pain treatment regulation, has expertise in the applicability of the regulation, and should be given some deference as to its finding that the pain treatment regulation is applicable.

Dr. Reaux’s next argument is simply that the charges against him were not proven by a preponderance of the evidence. Dr. Reaux’s argument, for the most part, is simply that the witnesses against him were all lying. However, the Board observed all of the witnesses, including Dr. Reaux, and found that it was Dr. Reaux who was untruthful and that the other witnesses were credible. There is no basis in the record whereby we could possibly conclude that the Board’s findings as to | ^credibility are clearly wrong-manifestly erroneous. The Board was not unreasonable in finding that the witnesses against Dr. Reaux were credible.

Lastly, Dr. Reaux argues that he was wrongfully denied a suspensive appeal. However, as we have decided the merits of the appeal, this point is moot.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

LOVE and CANNIZZARO, JJ. CONCUR IN THE RESULT.


author: I ¶WILLIAMS, J.

text:
    In re SUCCESSION OF Yvonne G. GILBERT.
    No. 37,047-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 2003.

      Robert A. Robertson, for Appellant, Darlynn G. Ware.
    Don C. Burns, for Appellee, Succession of Yvonne G. Gilbert.
    Mary Alice Bryant, Monroe, for Appel-lee, Hobart William “Woody” Woodruff, Mary Woodruff, Corina Inbeault & William Ray Woodruff.
    Before WILLIAMS, GASKINS and DREW, JJ..
   I ¶WILLIAMS, J.

Darlynn G. Ware, petitioner and daughter of the decedent, Yvonne G. Gilbert, appeals a trial court judgment in favor of defendants, Estate of Yvonne Gilbert and Estate of Hobart Woodruff, dismissing her petition to disqualify the executor and nullify her mother’s last will and testament. For the following reasons, we affirm.

FACTS

The decedent, Yvonne G. Gilbert, died on October 12, 2000. She was survived by three adult children: Darlynn Gilbert Ware, Steven George Gilbert, and Clas Lafatte Gilbert, Jr. The decedent executed the last will and testament on June 16, 2000. The will named Hobart Williams “Woody” Woodruff as executor of decedent’s estate. Woody, a friend, caretaker and companion of decedent, was bequeathed her house, personal property and all of her mineral and royalty interests. The three adult children were bequeathed the remainder of the estate. The two sons also received an automobile for their shared use.

Woody was decedent’s caretaker during the last days of her life. There is no blood relationship between the decedent and Woody, but they were close friends and confidants. Decedent and Woody lived in Columbia, Louisiana and her children resided out-of-state. Darlynn resided in Houston, Texas. Steve and Clas resided in Lexington, Kentucky.

In June 2000, the decedent was diagnosed with several medical conditions, including atrial fibrillation, aortic valvular disorder, congestive heart failure, hypertension, osteoarthrosis and osteoporosis. Because of the decedent’s illnesses and her refusal to have surgery, her health began toRslowly deteriorate. Thereafter, Woody began to take more responsibility for the care and assistance of decedent. On June 12, 2000, the decedent gave Woody power of attorney to make medical and financial decisions on her behalf. The power of attorney was executed by decedent in the presence of her attorney, Don C. Burns.

Darlynn sought to annul the will and disqualify Woody as the executor, alleging that he unduly influenced her mother at the time of the execution of the will. Subsequently, Woody died and Carl Duke, his nephew, was appointed executor of the decedent’s estate. A petition to intervene was later filed and Mary Woodruff, the executrix of Woody’s estate, was substituted as a party defendant.

Darlynn contended that at the time her mother executed the power of attorney and the will, she was subjected to undue influence from Woody. Darlynn made the following allegations in support of her claim: (1) Woody lived with decedent for a period of time and had unfettered access to her home and this association affected the drafting of her will; (2) Woody had such undue influence over her mother that he convinced her to change her prescribed dosage of medication and to refuse medical treatment recommended by her physician; (3) Woody convinced decedent that her family did not care for her and that he was the only person keeping her out of a nursing home; and (4) Woody’s influence had advanced to such a degree that decedent could not speak with her children without Woody listening to the conversation on an adjoining line or on a speaker phone.

At the close of the plaintiffs case, the trial court granted the | .¡defendant's motion for directed verdict and dismissed the petitioner’s claim. The trial court found that the plaintiff failed to present any evidence to show that the testator was subject to undue influence in executing the will. Darlynn appeals this adverse ruling.

DISCUSSION

Darlynn contends the trial court erred in dismissing her petition. She argues the court abused its discretion when it held that the only evidence admissible in a case involving “undue influence” is the relevant actions and/or inactions which took place the day before and the day after the decedent signed the will.

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. LSA-C.C.P. art. 1672 B; Dampeer v. Dampeer, 96-0708 (La.5/3/96), 672 So.2d 176. The trial judge is required to evaluate the evidence and render a decision in accord with the applicable burden of proof. Silva v. Calk, 30,085 (La.App.2d Cir.12/10/97), 708 So.2d 418, and authorities cited therein.

Prior to 1990, our Civil Code prohibited the admission of proof that a disposition had been made “through hatred, anger, suggestion or captation.” LSA-C.C. art. 1492 (repealed). In light of this nearly insurmountable burden, courts considered evidence of influence only when it affected, or virtually destroyed, the mental capacity of the testator. Succession of Hamiter, 519 So.2d 341 (La.App. 2d Cir.1988). In 1989, however, the legislature repealed Article 1492, and in 1991 enacted LSA-C.C. art. 1479, which specifically allows evidence of undue influence to nullify a will.

Under Article 1479, a donation inter vi-vos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor. The accompanying Revision Comment explains that “mere advice, or persuasion, or kindness and assistance, should not constitute influence that would destroy the free agency of the donor and substitute someone else’s volition for his own.” See, Succession of Braud, 94-0668 (La.App. 4th Cir.11/17/94), 646 So.2d 1168, writ denied, 95-0383 (La.3/10/95), 651 So.2d 841.

LSA-C.C. art. 1483 provides:

A person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence. However, if at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and the wrongdoer and the wrongdoer was not then related to the donor by affinity, consanguinity or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of the evidence.

The trial court’s finding of, or failure to find, undue influence is fact intensive, and such a finding cannot be disturbed on appeal in the absence of manifest error. Succession of Anderson, 26,947 (La.App.2d Cir.5/10/95), 656 So.2d 42, writ denied, 95-1789 (La.10/27/95), 662 So.2d 3. Reversal is warranted only if the appellate court finds that no reasonable factual basis for the trial court’s finding exists in the record, and that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987).

When seeking to annul a donation on the basis of undue influence, it is not sufficient to merely show that the do-nee exercised some degree of influence over a donor; instead, the challenger must show that the donee’s influence was so substantial that the donee substituted his or her volition for that of the donor. Succession of Anderson, supra; Succession of Cole, 618 So.2d 554 (La.App. 4th Cir.1993). To annul a testamentary disposition on the basis of undue influence, the influence must be operative at the time the testament is executed. Succession of Deshotels, 98-1467 (La.App. 4th Cir.5/12/99), 735 So.2d 826. When the evidence shows that the execution of a testament was well within the discretion of the testator, the court should find that the testator’s volition has not been substituted by the volition of any donee. Succession of Cole, supra.

In the instant case, both sides presented the testimony of several witnesses. Dr. Salmon Shafiq, the decedent’s treating physician, testified that decedent did not have any cognitive deficits. He felt that the decedent understood the extent of her diseases and condition and she comprehended the medical information he had given her. Dr. Shafiq explained that he discussed the option of surgery with decedent and she, on her own accord without Woody’s involvement, refused to have the operation. Initially, petitioner alleged that Woody was trying to incapacitate or harm her mother by administering improper dosages of prescribed medicines to decedent. | a Dr. Shafiq, through his testimony, refuted this allegation by explaining that his records showed only one occasion when Woody diverted from decedent’s regular medication dosage and used a “home” or “book” remedy in an attempt to help alleviate some of her pain.

Steve Gilbert, the decedent’s son, testified that he telephoned his mother frequently and constantly asked her to come and live with him. He stated that she would always refuse the offer and would give him an excuse regarding her decision. Steve’s testimony indicates that the decedent understood his offer, but she wanted to stay in Columbia, Louisiana with Woody.

Peggy Moore, decedent’s home health nurse, saw the decedent in her home on June 12, 2000, four days before the execution of the will and the day the power of attorney was signed. Moore testified that decedent was a very “with it” lady. She explained that decedent had heart problems and was a very sick woman. Moore’s medical notes indicated that on June 12, 2000, the decedent was a little confused, disoriented and weak. She testified that although she visited the home of decedent on a regular basis, she did not observe any isolation, alleged captivity or undue influence.

Louise Rushing, decedent’s hair-stylist, testified that prior to her death, the decedent’s feet were swollen and it was difficult for her to move around. According to Rushing, the decedent still looked “radiant” and carried herself “graciously.” Rushing’s testimony did not support petitioner’s allegations that Woody controlled or manipulated decedent in any way. The only information Rushing provided with regard to Woody |7was that he would drive decedent to the hair salon and pick her up when she was ready to leave.

Bobby Ray Parker, Sr., a Mend of the decedent for over 30 years, described events that occurred after her death. Parker testified that Woody told him that his assistance was the only reason decedent was never placed in a nursing home. According to Parker, Woody informed Parker that the decedent had left everything to Woody and decedent’s children were not going to take anything away from him, including the house.

The petitioner, Parker and Phyllis Woods, the former daughter-in-law of decedent, were the only witnesses to present testimony in an attempt to prove the undue influence exerted by Woody over the decedent. They testified that Woody exercised control and power over the decedent. Petitioner and Woods also testified that Woody monitored and supervised all of the decedent’s telephone calls. They testified decedent was afraid of Woody. According to these witnesses, Woody influenced and threatened the decedent by regularly informing her that her family did not love her and he was the only person keeping her out of a nursing home.

Attorney Don Burns testified that he prepared the decedent’s will. He testified that at the time the decedent executed the will she did not lack the capacity to sign. Burns was not asked any other questions with regard to the decedent’s behavior or her physical and mental condition which would establish the voluntariness of her actions at the time she executed the will.

Because Woody and the decedent had established a relationship of confidence and were not related by affinity, consanguinity or adoption, the | ^petitioner was required to prove undue influence by a preponderance of the evidence. LSA-C.C. art. 1483. The evidence presented does not support the petitioner’s assertion of undue influence. The witnesses did not express first-hand knowledge of the events which occurred at the time the decedent executed the will. Moreover, the petitioner did not present any specific evidence to prove the allegations of undue influence. The decedent’s bequest to Woody is not invalid merely because Woody may have at some time made negative statements about decedent’s family. See LSA-C.C. art. 1479 Comment (d). Furthermore, the testimony did not demonstrate that decedent’s “free agency was destroyed” and that Woody’s “volition” was substituted for that of her own. See Succession of Anderson, supra.

After a thorough review of this record, we conclude that petitioner failed to meet her burden of proving that the decedent’s donative intent was impaired to the extent that Woody’s volition was substituted for that of the decedent. Additionally, because the undue influence must be operative at the time the will was executed, we cannot say that the trial court abused its discretion in limiting the testimony to facts and events directly surrounding the time of the execution of the will. The trial court was not clearly wrong in finding that the plaintiff failed to prove by a preponderance of the evidence that Woody exerted undue influence over the decedent. Thus, the trial court did not err in granting the defendants’ motion to dismiss. The assignment of error lacks merit.

| .CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the petitioner, Dar-lynn Ware.

AFFIRMED.


author: JjDREW, J.

text:
    STATE of Louisiana, Appellee, v. George Stanley ROLAND, Appellant.
    No. 36,786-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 2003.

      Louisiana Appellate Project, by Paula Corley Marx, Lafayette, for Appellant.
    Paul J. Carmouche, District Attorney, J. Thomas Butler, Donna Frazier Hall, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   JjDREW, J.

George Stanley Roland appeals his conviction and sentence on two counts of unauthorized entry of an inhabited dwelling. We amend, and as amended, affirm.

FACTS

For several years, the defendant and Sherrie Tillman had an ongoing, rocky common-law relationship, producing one child. From time to time, the defendant would move in and out of Tillman’s home on 85th Street in Shreveport. In early 2001, the couple broke up once again, and the defendant left Tillman’s home, while leaving clothing and other personal effects. In May 2001, Tillman obtained a restraining order prohibiting the defendant from going near her or her home. Tillman continued to be concerned about the defendant coming back into her home and enlisted the help of a friend, Michael Anderson, to watch and stay in her home.

Michael Anderson testified:

• On August 18, 2001, Tillman had gone to a funeral, leaving Anderson in the premises;
• He heard a noise in another room, investigated, and discovered the defendant in the house;
• He called the police and told the defendant to leave, to which order the defendant complied without incident, departing before the police arrived;
• On September 3, 2001, the defendant came through the front door, armed with a hammer, while Tillman and Anderson were both inside the house;
• The defendant hit Anderson on the back of the head; and
• Shortly thereafter, the defendant was arrested.

pin contrast, the defendant testified that:

• He went to Tillman’s home at the time of the first incident only because he was homeless and had nowhere to go, needing a place to rest;
• He knocked on the door, and when he received no answer, he crawled through a window into the house; and
• He talked to Anderson, then left the home without incident.

The second incident also occurred differently, according to the defendant:

• Tillman let him into the house;
• Tillman and Anderson started the fight;
• Shortly thereafter, the defendant was arrested; and
• He admitted to the police that he entered the home on the two occasions.

The state charged the defendant with two counts of unauthorized entry of an inhabited dwelling. The events relative to Count One occurred on August 18, 2001; the events relative to Count Two occurred on September 3, 2001. A jury found the defendant guilty of Count One, the first incident, but not guilty of Count Two, the second incident. Thereafter, the state filed an habitual offender bill of information, alleging the defendant to be a second felony offender. On April 18, 2002, the trial court adjudicated the defendant to be a second felony offender. Immediately after the adjudication, the defendant waived sentencing delays, and the trial court sentenced the defendant to serve seven years at hard labor, without benefit of probation, parole, or suspension of sentence.

UOn April 19, 2002, the defendant filed an untimely pro se motion for new trial. On May 2, 2002, the defendant filed a motion to reconsider sentence, and for appeal. The motion to reconsider sentence alleged the reasons given by the trial court as aggravating factors were inadequate, and the trial court failed to consider eer-tain mitigating factors, including the capacity of the defendant to appreciate the criminality of his conduct because of a somewhat impaired education. The trial court denied the motion without a hearing. This appeal followed.

The defendant’s initial brief asserted insufficient evidence to convict as to Count Two, instead of Count One. On February 19, 2003, this court ordered the defendant’s counsel to file a new brief arguing the correct conviction. The defendant’s appellate counsel filed a supplemental brief. The defendant has also filed several pro se briefs and motions, which have been filed as either pro se briefs or as exhibits to his briefs.

DISCUSSION

Sufficiency

The defendant first argues the evidence was legally insufficient to convict him of unauthorized entry of an inhabited dwelling.

La. R.S. 14:62.3 provides, in pertinent part:

A. Unauthorized entry of an inhabited dwelling is the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.
B. Whoever commits the crime of unauthorized entry of an inhabited dwelling shall be fined not more than one thousand 14doIlars or imprisoned with or without hard labor for not more than six years, or both.

The defendant does not dispute that on August 18, 2001, he entered the home occupied by Ms. Tillman. He does complain that the state failed to show that she owned the home, or that his entry was unauthorized.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt.

The standard for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational fact-finder that the defendant is guilty beyond a reasonable doubt. State v. Cotton, 25,940 (La.App.2d Cir.3/30/94), 634 So.2d 937. Of course, it is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir. 1992), writ denied, 617 So.2d 905 (La.1993). A previewing court accords great deference to a trier of fact’s decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987). In the absence of internal contradiction 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. Brown, 29,708 (La.App.2d Cir.9/24/97), 702 So.2d 744, writ denied, 97-2549 (La.1/30/98), 709 So.2d 703; State v. Ford, 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12. Where a trier of fact has made a rational determination, an appellate court should not disturb it. State v. Thomas, supra; State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), unit denied, 604 So.2d 973 (La.1992).

In the present case, there is no meaningful dispute that on August 18, 2001, the defendant entered the home occupied by Ms. Tillman without her consent. The defendant testified in detail about thinking no one was home and crawling through a broken window to get into Tillman’s home. His stated purpose for doing so was to find a place to rest. Tillman testified that she had repeatedly told the defendant to stay away from her home. For purposes of showing an “unauthorized entry,” the state need only prove that any portion of the defendant’s body passed the line of the door’s threshold. State v. Abrams, 527 So.2d 1057 (La.App. 1st Cir.1988), writ denied, 625 So.2d 164 (La.1993).

The defendant conténds that the state failed to adequately prove who owned the home, and, therefore, the state failed to meet its burden of proof | fiof unauthorized entry. In brief, as well as in pro se filings, he argues on appeal that he may have had some type of ownership claim to the home. He testified, and argues in filings with this court, that Tillman took the home away from him by putting the home in her name. A review of the testimony shows that both Tillman and the defendant testified that the home was owned by Tillman. There is no evidence or testimony in the record to rebut this testimony of ownership of the home by Tillman. The operative fact is not who owns the home, but that the home was not owned by the defendant, and he had no authorization to enter it. The fact that Tillman did not produce a deed or did not fully complete the ownership part of the forms for seeking injunc-tive relief, does not alter the fact that both Tillman and the defendant testified at trial that the home did not belong to him, and he did not have authorization to enter it. This meets the unauthorized entry requirement of the statute of prosecution.

Responsive Verdicts

The defendant next argues that the failure of the jury to be provided the responsive verdict of trespassing was such a fundamental defect as to deprive the defendant of a fair trial. In the alternative, the defendant argues that his trial counsel was ineffective in not making a contemporaneous objection to the defect.

The state responds that the defendant did not object to the failure to include trespassing as a responsive verdict, and is now barred from asserting it on appeal.

|7La. C. Cr. P. art. 801(C) provides:

C. A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

The record shows that at the end of the trial the jury was charged that the possible verdicts were:

1) guilty as charged of Unauthorized Entry of an Inhabited Dwelling, or
2) guilty of Attempted Unauthorized Entry of an Inhabited Dwelling, or
3) not guilty.

The record shows that the defendant did not make any contemporaneous objection to the jury instructions. However, on appeal, the defendant, in appellate briefs, as well as in pro se filings, argues that the trial court erred in failing to include the charge of trespassing as a responsive verdict. The defendant, mindful of La. C. Cr. P. art. 801, argues that there have been jurisprudential exceptions to the contemporaneous objection rule in cases in which fundamentally incorrect jury instructions so affect the fairness of the proceedings and the accuracy of the fact-finding process that due process requires reversal, even in the absence of compliance with legislative procedural mandates. The argument follows that if the jury had been properly charged with the responsive verdict of trespassing, they may well have found the defendant guilty of that charge.

| ^Inclusion of the requested verdict is not mandated by La. C. Cr. P. art. 814. In fact, the crime of criminal trespass is not listed as responsive to any charge in this article. How is the trial court or a reviewing court to know that the failure to request this additional responsive verdict possibility was. not calculated trial strategy, perhaps to obviate the possibility of a compromise verdict?

Admittedly, after the trial of this case, the Louisiana Supreme Court, in State v. Simmons, 01-0293 (La.5/14/02), 817 So.2d 16, held that trespassing is a responsive verdict to the charge of unauthorized entry of an inhabited dwelling because the crime of unauthorized entry of an inhabited dwelling necessarily includes all of the elements of the lesser charge of trespassing. But, in Simmons, supra, the defendant had requested that trespassing be included as a responsive verdict in the jury-charge, but his request had been denied by the trial court. The defendant in the present case has cited no cases supporting the proposition that appellate courts could review a trial court’s failure to include responsive verdicts in the absence of a contemporaneous objection. Because the defendant did not make his objection known, he is precluded from raising the alleged error on appeal. As enunciated in State v. Mart, 419 So.2d 1216,1218 (La.1982):

The contemporaneous objection rule serves two laudable and related purposes. The first is succinctly stated in Professor Dale Bennett’s original comments to C.Cr.P. Art. 841: to prevent the defendant from having “an anchor to windward” to urge for the first time in the event of conviction. See D. Bennett, The 1966 Code of Criminal Procedure, 27 La. L.Rev. 175 (1967). In fairness to the state, defendant cannot simply watch the proceedings unfold and silently hope that the state will introduce inadmissible evidence or that the trial court will commit error. Significantly, the rule also prevents defendant | nfrom adopting, as a matter of strategy, one approach at trial, and then, if that approach fails, arguing a contrary view on appeal.
The second and related purpose is one of judicial efficiency. The defendant has a duty to alert the trial court, if he objects to the admissibility of evidence or the method of proceeding. This allows the trial court to correct (or avoid) error, so that the verdict results from a trial which is as error-free as possible.
Nevertheless, this court has recognized exceptions to the rule’s seemingly inflexible assertion that trial error, unless contemporaneously objected to, cannot be asserted on appeal. In State v. Williamson, 389 So.2d 1328 (La.1980), fundamentally erroneous misstatements of the essential elements of the charged offense were found to require reversal, despite the defendant’s failure to raise an objection in the trial court. In that case this court apparently adopted a view, not totally unlike the federal “plain error” approach, that such fundamentally incorrect jury instructions so affect the fairness of the proceedings and the accuracy of the factfinding process that due process of law requires reversal, even in the absence of compliance with legislative procedural mandates.
When counsel for defendant fails to comply with the contemporaneous objection rule, even in the case of a fundamentally erroneous instruction on the elements of an offense, it is not unreasonable to require defendant to carry the burden of satisfying this court that the procedural default (that is, the failure to raise the complaint properly) was excusable and was not the result of trial strategy. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Here, defendant has not borne this burden.
Further, the erroneous instruction related only to an element (albeit a crucial one) of a responsive verdict, rather than to the definition of the offense charged. In such a case, it is not so apparent that the erroneous instruction fundamentally affects the fairness of the proceedings and the accuracy of the factfinding process.

|inThe defendant next argues that it was ineffective assistance of counsel for his counsel to fail to make a contemporaneous objection to the failure of the jury instructions and verdict form to contain trespassing as a responsive verdict. As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id.

However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673; State v. Smith, 25,841 (La.App.2d Cir.2/23/94), 632 So.2d 887.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing l^that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. Moore, supra.

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, unit denied, 95-1398 (La.11/3/95), 662 So.2d 9.

In the present case, the record does not support the defendant’s claim that his counsel was ineffective for failing to object on these grounds. The fact that a responsive verdict is not included in a jury charge is not | ^necessarily an error patent, and does not establish ineffective assistance of counsel. When the crime of prosecution is one of the 58 listed in C. Cr. P. art. 814, the trial court may “exclude” a responsive verdict, but cannot add to the number. See, State v. Hall, 26,505 (La.App.2d Cir.12/7/94), 647 So.2d 453, writ denied, 95-2188 (La.3/17/97), 691 So.2d 69. A defendant may also not object to the addition or deletion of responsive verdicts as a trial strategy. See, State v. Martin, 525 So.2d 535 (La.App. 5th Cir.1988). Nothing in this record points to an ineffective assistance of counsel claim.

The jury’s verdict is clearly supported by overwhelming evidence, i.e. the defendant entered into the victim’s home without authorization. The fact that a later Supreme Court ruling found criminal trespass to be responsive in this situation in no way casts in derogation the trial conduct in this case. It appears to be a credibility call — swearing match, and apparently the jury believed the victims.

Sentencing

Lastly, defendant complains about his sentence, alleging:

• excessiveness;
• faulty imposition, lacking adequate consideration of La. C. Cr. P. art. 894.1.; and
• the denial of parole benefits.

La. R.S. 14:62.3 provides, in pertinent part:

B. Whoever commits the crime of unauthorized entry of an inhabited dwelling shall be fined not more than, one thousand dollars or imprisoned with or without hard labor for not more than six years, or both.

La. R.S. 15:529.1(A)(l)(a) provides:

|1s(a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;

La. C. Cr. P. art. 841(A) provides, in pertinent part:

A. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.

La. C. Cr. P. art. 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

La. R.S. 15:529.1(G) provides:

G. Any sentence imposed under the provisions of this Section shall be without benefit of probation or suspension of sentence.

The trial court adjudicated the defendant as a second felony offender based on a 1997 conviction for obscenity and this conviction for unauthorized entry of an inhabited dwelling. The record shows that immediately after adjudication, the defendant waived sentencing delays. The trial court, without further comment or discussion, sentenced the defendant to seven years at hard labor, without benefit of probation, parole or suspension of sentence.

The sentence range for the conviction of unauthorized entry of an inhabited dwelling is with or without hard labor for not more than six years. La. R.S. 14:62.3(B). La. R.S. 15:529.1(A)(l)(a) provides:

|uIf the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Therefore, the defendant’s minimum sentence was three years, and his maximum was 12 years, all without benefit of probation or suspension of sentence.

The first argument raised by the defendant in brief, and in pro se filings, is that the trial court did not comply with La. C. Cr. P. art. 894.1 in sentencing. La. C. Cr. P. art. 894.1 requires a review of enumerated aggravating and mitigating factors by the trial court before sentencing a defendant. A review of the sentencing transcript shows that the trial court did not address any such factors before sentencing the defendant.

But, the transcript also shows that immediately after being adjudicated to be a second felony offender, the defendant expressly waived sentencing delays and consented to being sentenced without further proceedings. The comments to La. C. Cr. P. art. 873 show the purpose of sentencing delays is to allow the defendant time to file pleadings before being sentenced. Prior to sentencing, the trial court may also order a presentence investigation to address the issues in La. C. Cr. P. art. 894.1. See, La. C. Cr. P. art. 873. By waiving sentencing delays and agreeing to be immediately sentenced, the defendant is obviously agreeing to allow the trial court to render a sentence based on the information and record available to the trial court at that time.

hfjThe defendant did not object to the procedure. La. C. Cr. P. art. 841 requires an objection to preserve an issue on appeal. To allow the defendant to waive sentencing delays and be immediately sentenced by the trial court on the record available, and then later to object to the trial court’s limited review on appeal, would allow the defendant to circumvent the requirements of La. C. Cr. P. art. 841. The purpose of the contemporaneous objection rule is to put the trial court on notice of a potential problem, and to allow it to be corrected before it infects the entire system. State v. Butler, 30,798 (La. App.2d Cir.6/24/98), 714 So.2d 877, unit denied 98-2217 (La.1/8/99), 734 So.2d 1222. The contemporaneous objection rule also prevents defendant from adopting, as a matter of strategy, one approach at trial, and then, if that approach fails, arguing a contrary view on appeal. State v. Mart, supra.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. However, even in a case where the trial court has failed to state the considerations taken into account and the factual basis for sentencing the 11 (¡defendant, where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, and employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), unit denied, 521 So.2d 1148 (La.1988). In the present case, the record shows that, although the trial court did not review the factors in La. C. Cr. P. art. 894.1 when sentencing the defendant, the trial court did hear extensive testimony as to the defendant’s family ties, marital status, health, employment record, and criminal history during the trial and the habitual offender adjudication hearing. The trial court even heard sworn testimony from the defendant himself.

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra. In this |17case, the record shows the defendant repeatedly entered or attempted to enter someone else’s home under circumstances that ultimately led to violence. It cannot be said that the sentence shocks the sense of justice — far from it.

The fact that the defendant’s sentence was enhanced by the Habitual Offender Law does not provide relief. The Habitual Offender Law has been held to be constitutional in its entirety; the mandatory minimum sentences provided therein are therefore presumed to be constitutional. State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672. Although a punishment required by the Habitual Offender Law may constitute excessive punishment, the appellate courts of this state have recognized that declaring a sentence under the Habitual Offender Law constitutionally excessive should be a rare act, not a commonplace practice. State v. Dorthey, supra.

In order to successfully rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must clearly and convincingly show 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 case. Additionally, in determining whether the defendant has met his 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 |1sHabitual Offender Law should occur only in rare instances. See, State v. Norris, 32,941 (La.App.2d Cir.3/1/00), 754 So.2d 362.

The defendant further argues the trial court erred in imposing his habitual offender sentence to be without benefit of parole. The record does show the trial court sentenced the defendant to seven years at hard labor, without benefit of probation, parole, or suspension of sentence. La. R.S. 15:529.1(G) provides that sentences imposed under the habitual offender provisions are to be imposed “without benefit of probation or suspension of sentence.” As such, it was simply not within the trial court’s authority to impose the sentence without benefit of parole. There is no necessity to remand, as we hereby strike the prohibition against parole.

ORDER

The defendant’s conviction is AFFIRMED. His sentence is AMENDED, AND AS AMENDED, AFFIRMED.

      . The first felony conviction was for obscenity to which the defendant pled guilty on December 19, 1997. He was sentenced to one year at hard labor.

      . The motion was filed after sentencing. See La. C. Cr. P. art. 853.


author: 11 DREW, J.

text:
    STATE of Louisiana, Appellee v. Tyrell D. ODELL, Appellant.
    No. 37,194-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 2003.
    Louisiana Appellate Project by Carey J. Ellis III, Rayville, for Appellant.
    Paul Joseph Carmouche, District Attorney, Tommy J. Johnson, William Jacob Edwards, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW and KOSTELKA (Pro Tempore), JJ.
   11 DREW, J.

The state charged Tyrell D. Odell with one count of armed robbery, a violation of La. R.S. 14:64 punishable by not less than 10 years and no more than 99 years at hard labor without benefits, but agreed to accept his guilty plea to an amended charge of aggravated burglary, a violation of La. R.S. 14:60 punishable by not less than one, nor more than 30 years at hard labor. The state also agreed:

• not to charge defendant as an habitual offender, and
• to dismiss a pending, unrelated charge of simple burglary.

The district court imposed a sentence of 12 years at hard labor, which, after denial of two timely motions for reconsideration, defendant appeals as excessive. We affirm.

DISCUSSION

The matters of record show that during the night of April 6, 2000, defendant and a companion forced entry into the Shreveport residence of Poltavas Black. During this home invasion, defendant was armed with a firearm. The two robbers pushed Black to the floor and demanded to know if anyone in the house was selling marijuana and where his money was. When Black’s mother came out of a bedroom, defendant’s companion told her to leave and no one would be shot. Ms. Black went to a different room and called the police. The perpetrators took the victim’s wallet, which | ¡¡contained $50, a cell phone, and car keys. The victim identified defendant as having attended high school with him — not the perfect crime.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Our review of the record discloses that it contains a more than adequate factual basis for the sentence imposed.

A sentence violates La. Const, art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Prior to imposing sentence, the district court considered a PSI report which provided detailed information concerning the defendant, who, at the time of sentencing, was 26 years old. The court noted that defendant had jobeen given a drastic reduction in his criminal exposure through his plea bargain. The facts of the case showed the crime actually committed was armed robbery, during which defendant used threats of violence and a firearm. Further, the offense involved multiple victims. Defendant had a juvenile record, and he was a fourth felony adult offender.

• He had been arrested in 1994 for distribution of CDS but was allowed to plead guilty to possession. He was placed on probation, but it was revoked.
• This revocation of probation was due to a subsequent conviction for felony theft. After a term of imprisonment, defendant was placed on parole, but it also was revoked.
• This revocation of parole was due to a conviction for carnal knowledge of a juvenile. He later was placed on parole again, but it was revoked for noncompliance with conditions.

The court determined that defendant, who was a former gang member, was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of the offense, particularly since supervision had failed miserably in the past.

Somewhat in mitigation, the court noted that:

• defendant’s child had been killed in 1998 by gang members, and
• the victim of the instant offense had avoided contact with the agent who compiled the information for the PSI report.

Finally, the court said it considered the sentence imposed to be lenient, particularly noting that the actual conduct was much worse than the crime to which defendant pleaded guilty.

On this record, we do not find constitutional error. Defendant, a fourth felony offender, obtained a substantial benefit from his plea bargain. |4He avoided conviction on an unrelated burglary charge for which a consecutive sentence could have been imposed. He has a history of arrests and offenses involving controlled dangerous substances, larceny, and crimes against persons. There was no provocation or justification for the instant offense. The crime of conviction does not adequately describe the true nature of his criminal conduct. He has repeatedly failed to abide by the terms of conditional release.

The sentence imposed is lawful and is only 40% of what the district court could have imposed for this reduced charge of aggravated burglary. Defendant was afforded great leniency by the state when it agreed to forego charging him as an habitual offender, which, as a fourth offender, could have mandated a much harsher sentence. Under the totality of the circumstances of the case, we find the sentence imposed is neither grossly disproportionate to the severity of the offense nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence, which is clearly not constitutionally excessive.

The conviction and sentence are AFFIRMED.

      . Had the state initially charged defendant with armed robbery with a firearm under BOTH La. R.S. 14:64 AND La. R.S. 14:64.3, the defendant would have faced a mandatory additional five years at hard labor, to be served consecutively and without benefits.

      . Even though he was a fourth felony offender.

      . One by counsel; on e prose.