author: |,PICKETT, Judge.

text:
    STATE of Louisiana, v. Cedric Lynn SIAS.
    No. KA 03-891.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      James C. Downs, District Attorney, James M. Buck, Assistant District Attorney, Ninth Judicial District Court, Alexandria, LA, for Plaintiff/Appellee: State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, Cedric Lynn Sias, Rapides Parish Detention Center, Alexandria, LA, for Defendant/Appellant: Cedric Lynn Sias.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   |,PICKETT, Judge.

FACTS

The defendant and his wife, Joyce Sias, were married on March 17, 1988. They separated on January 1, 2002. On May 6, 2002, when Joyce arrived at her residence and was exiting her vehicle, she was struck in the top of the head by a bullet fired by the defendant.

The defendant, Cedric Lynn Sias, was charged by bill of information on July 17, 2002, with attempted second degree murder, a violation of La.R.S. 14:27 and La. R.S. 14:30.1. The defendant entered a plea of not guilty on July 26, 2002. Jury selection in this matter began on December 10, 2002. On December 12, 2002, the jury returned a verdict of guilty of aggravated battery in violation of La.R.S. 14:34.

The State filed a habitual offender bill on January 13, 2003. On February 10, 2003, the defendant was sentenced to ten years with the Louisiana Department of Corrections, with credit for time served. A pro se Motion for Appeal was filed on February 17, 2003. The motion was granted on February 25, 2003. A second pro se Motion for Appeal was filed on March 12, 2003 and was denied as untimely. A pro se Motion to Reconsider Sentence was filed on March 19, 2003 and was denied on April 1, 2003. On April 21, 2003, the defendant filed a pro se Motion to Quash the habitual offender bill. The motion was denied after a hearing on June 23, 2003. Defense counsel filed a Motion for Appeal and Designation of Record on April 21, 2003. The Appeal was granted and made returnable on May 25, 2003.

On August 11, 2003, the defendant was adjudicated a habitual offender, the sentence imposed on February 10, 2003 was vacated, and the defendant was sentenced to serve fifteen years at hard labor. The defendant appeals his conviction.

DISCUSSION

The appeal filed by appellant’s counsel, and the pro se appeal filed by the appellant set forth the same, single assignment of error. The appellant contends that the trial court erred in holding the selection/challenging of prospective jurors out of court, off the record, and out of his presence. The appellant specifically contends the procedure used by the trial court to select/challenge jurors violated his right to be present, to effective assistance of counsel, to due process, to trial by a fair and impartial jury, to a public trial, and to full appellate review.

Jury selection in this matter began on December 10, 2002. Voir Dire of Jury Panels I, II, and III was conducted in open court.

JURY PANEL I

At the conclusion of voir dire of Jury Panel I, the judge made the following comments:

Thank you. Ladies and gentlemen, at this time, what we’re going to do, counsels and myself, we’re going to retire to — to decide whether or not you should serve on this jury, okay. And that when you return in fifteen minutes.... I will give you the names of those that are selected.... Counselors, I’ll meet with you in chambers.

The court minutes indicate the following occurred: “Court, State and Defense retire to the back for the selection of jurors. Defendant not present during this process.” Court reconvened with the defendant present. The judge then named the selected jurors and the remainder of Jury Panel I was dismissed.

JURY PANEL II

At the conclusion of voir dire of Jury Panel II, the judge made the following comments: “Ladies and gentlemen, we’re going to go through this process again.... At 3:35, everyone please return and please take your seats here. In the meantime, |3I’ll meet with counsels in chambers.” The court minutes regarding Jury Panel II read as follows: “The Court, State and Defense then meet in the back for the selection of jurors. Accused not present during this process.” Court reconvened with the defendant in attendance. The judge then named the jurors selected to serve on the jury and dismissed the remainder of Jury Panel II.

JURY PANEL III

Voir Dire of Jury Panel III ended and the judge made the following comments: “Ladies and gentlemen, I would ask that you please keep your seat. I’ll meet with counsels. We’re going to go through the deliberative process of making a final selection, and, hopefully, we’ll have a jury after this panel.... I’ll meet with counsels in chambers.” The court minutes indicate the following occurred: “Court retired to the back for the selection of jurors. Accused not present during this time.” Court reconvened with the defendant present. The judge then named the jurors selected to serve and all remaining'members of the jury venire were released.

Louisiana Code of Criminal Procedure Article 831 provides in pertinent part:

A. Except as may be provided by local rules of court in accordance with Articles 522 and 551, a defendant charged with a felony shall be present:
(3) At the calling, examination, challenging, impaneling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror....

The Louisiana Supreme Court discussed the scope of La.Code Crim.P. art. 831 in State v. Broaden, 99-2124 (La.2/21/01), 780 So.2d 349, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001), as follows:

The rule [set out in art. 831] is broader than an accused’s due process right to be present at all stages of trial when his absence might frustrate |4the fairness of the proceeding. [State v. Hampton, 99-2605, pp. 1-2 (La.5/28/99), 737 So.2d 699, 700], citing United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985).
Yet the provisions of Article 831 are not absolute. In addition, an accused may waive his presence by voluntary absence, La.Code Crim. Proc. art. 832, or by not objecting to his absence from an Article 831A(3) hearing, as required under the general contemporaneous objection rule to preserve the matter. La. Code Crim. Proc. art. 841; State v. Taylor, 93-2201, pp. 4-7 (La.2/28/96), 669 So.2d 364, 367-69.

Id. at 360.

In Broaden, discussions were held in chambers to determine whether several jurors remained qualified to serve on the jury. During the examination, the state inquired as to whether the defense objected to the defendant’s absence. The state believed the defendant’s presence was not required because the matter being investigated was a jury matter. Defense counsel indicated the defendant’s presence was not required and it was not necessary to waive his presence. The court made the following ruling regarding the necessity of the defendant’s presence or a waiver thereof:

In this case, defense counsel was likely mistaken in believing that neither his client’s presence nor a waiver was required for the “subsequent proceedings for the discharge of ... a juror[.]” La. Code Crim. art. 831A(3). In any event, the defendant’s interests were fully represented. One or both defense attorneys attended all proceedings and participated throughout. While no request for the accused’s presence in chambers was made, there was no objection to his absence. The circumstances support a conclusion that the defense acquiesced in the accused’s exclusion from the chambers proceedings. With no objection, the matter is not preserved. La. Code Crim.P. art. 841; Taylor, 93-2201 at pp. 4-7, 669 So.2d at 367-69.

Id.

The defendant was present during all portions of the jury selection process except the in chambers discussions wherein jury challenges were exercised. The court minutes indicate defense counsel was present during all three conferences held j^in chambers. At no time did the defendant or defense counsel object to the challenging of jurors being held in chambers, off the record, and out of the presence of the defendant. Accordingly, these issues were not preserved for review.

The defendant contends that if the error in excluding him from the out-of-court portion of the jury selection process is proeedurally barred, the failure of trial counsel to object to the selection process held in his absence constitutes ineffective assistance of counsel.

In State v. Griffin, 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, our brethren of the Fourth Circuit, with whom we agree, reviewed the law applicable to claims of ineffective assistance of counsel stating as follows:
Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Reed, 483 So.2d 1278 (La.App. 4 Cir.1986). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986); State v. Landry, 499 So.2d 1320 (La.App. 4 Cir.1986).
The defendant’s claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s | (¡unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra, 466 U.S. at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).
This Court has recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987).

State v. Schexnaider, 03-144, pp. 17-18 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 462.

The defendant makes general allegations that he was denied due process, the right to a fair and impartial jury, the right to a public trial, and the right to full appellate review. In his pro se brief, the defendant asserts “[tjhere were certain juror I didn’t want and certain ones I did want, but how could I challenge when I wasn’t present or allowed to be there.” The defendant also asserts, in his pro se brief, that the outcome of the trial could have been different.

The defendant did not object at trial to his absence during the jury challenging process and, thus, the in chambers process of challenging jurors did not violate his right to due process. See Broaden, 780 So.2d 349. The defendant was afforded the right to a public trial. The defendant does not put forth any proof that the jury was not fair and impartial. The defendant does not allege that he was prejudiced by the make up of the jury, that there were errors made during the jury selection process, and that any peremptory challenges or challenges for cause were improperly granted or denied by the trial court. Although the defendant alleges he would have selected |7other jurors, he does not discuss which jurors he would have excused or which jurors his attorney excused that he wanted to keep. Inasmuch as the defendant has not put forth sufficient evidence to show he was prejudiced by the jury challenging process, he has not met his burden of proof on his claim of ineffective assistance of counsel.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record we find one error patent and one error in the minutes of sentencing.

The trial court erroneously informed the defendant that the two-year prescriptive period for filing post-conviction relief began on the date he was sentenced rather than on the date his conviction became final. Louisiana Code of Criminal Procedure Article 930.8 provides that the two-year prescriptive period does not begin to run until the judgment of conviction and sentence become final. Accordingly, this matter is remanded and the trial court directed to inform the defendant of the correct provisions of Article 930.8 by sending him written notice within ten days of the rendition of this opinion and to file written proof that the defendant received the notice in the record of this proceeding.

We further note the minutes of the habitual offender sentencing contains an error. The minutes indicate that the trial court ordered the defendant’s sentence be served without benefit of parole while the transcript of sentencing contains no such restriction. “When there is a conflict between the transcript and the minutes, the transcript prevails.” State v. Guillory, 00-00386, p. 11 (La.App. 3 Cir. 11/2/00), 773 So.2d 794, 805, writ denied, 00-3334 (La.11/9/01), 801 So.2d 362. In the present case, the trial court is ordered to amend the minutes of sentencing to correctly reflect 1 sthe sentence imposed.

DECREE

The defendant’s conviction is affirmed. The case is remanded, and the trial court is directed to inform the defendant of the correct time frame within which he has to file post-conviction relief under Article 930.8 by sending him written notice within ten days of the rendition of this opinion. The trial court is also directed to file written proof that the defendant received the notice in the record of this proceeding. Additionally, the trial court is ordered to amend the minutes of sentencing to correctly reflect that the defendant’s sentence was not imposed without benefit of parole.

AFFIRMED AN D REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: hEZELL, Judge.

license: Public Domain

text:
    Darrell BENJAMIN v. ASPLUNDH TREE COMPANY.
    No. WCA 03-913.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Thomas Reginald Hightower, Jr., Attorney at Law, Lafayette, LA, for Defendant/Appellee Asplundh Tree Company.
    Darrell Benjamin, Scott, LA, In Proper Person.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

Darrell Benjamin files an appeal from a decision of the Office of Workers’ Compensation finding that he had reached supplemental earnings benefits (SEB) status and therefore, was no longer entitled to indemnity benefits pursuant to La.R.S. 23:1221(3)(d) and La.R.S. 23:1223. For the following reasons we affirm.

FACTS

Benjamin was injured in the course and scope of his employment with Asplundh Tree Expert Company when he fell from a tree on August 17, 1992. He injured his right knee resulting in a partial tear of the anterior cruciate ligament. Dr. Robert Morrow, an orthopedic surgeon, performed an arthroscopic procedure. Dr. Morrow continued to treat Benjamin for his knee problems. On April 13, 1993, the Office of Workers’ Compensation awarded him weekly temporary total disability benefits (TTD) in the amount of $202.13, which he received until December 11, 2001, when his benefits were converted to SEB. As a result, Benjamin filed a disputed claim for compensation.

A trial on the matter was held on August 20, 2002. The workers’ compensation judge (WCJ) found that Asplundh had proven that jobs were available within Benjamin’s restrictions and that Benjamin was entitled to SEB. Since Benjamin had been receiving TTD and SEB for ten years, she also found that his benefits terminated pursuant to La.R.S. 23:1221(3)(d) and La.R.S. 23:1223. A judgment was signed on February 13, 2003.

Benjamin appealed the judgment and appears in proper person to this court. We note that Benjamin was represented by counsel in the lower court proceedings.

1 ^SUPPLEMENTAL EARNINGS BENEFITS

Benjamin’s brief to this court basically argues that he is unable to perform any of the jobs that the WCJ found he was capable of performing, and that he is still entitled to TTD. As we review the evidence in the record, we are mindful that a WCJ’s findings of fact are subject to the manifest error standard of review. Edwards v. Sawyer Indus. Plastics, Inc., 99-2676 (La.6/30/00), 765 So.2d 328.

In 1996 Crawford and Company was hired by Asplundh to perform vocational services for Benjamin. As part of the vocational services, he was sent to truck driving school in 1999, which was approved by Dr. Morrow as long as he did not have to unload merchandise. At that time, Dr. Morrow found Benjamin capable of medium work but restricted him from squatting and lifting a load with his right knee flexed. The evidence also indicates that Dr. Morrow had approved Benjamin to work in several job positions as far back in 1994.

Later, on September 13, 2001, Crawford and Company presented five job positions to Dr. Morrow for his approval. He approved four of the positions which included two maintenance positions, a dispatch position, and a driver. Dr. Morrow did not approve a laborer position. It was at the point that Asplundh converted Benjamin’s benefits from TTD to SEB.

After trial on the matter, the WCJ found that there was some question as to the suitability of the dispatch position and the availability of one of the maintenance positions. However, she found that the remaining two positions were appropriate and available.

Louisiana Revised Statute 23:1221(l)(c) provides that whenever the employee is not engaged in any employment, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence that he is |sphysically unable to engage in any employment, regardless of the nature or character of the employment. In light of Dr. Morrow’s opinion that Benjamin is capable of performing work, in addition to the fact that Crawford and Company specifically found available jobs within Benjamin’s restrictions, we cannot say that the WCJ was in error in finding Benjamin was no longer entitled to TTD.

We further agree that Benjamin is no longer entitled to receive any indemnity benefits pursuant to La.R.S. 23:1221(3)(d)(ii) and La.R.S. 23:1223 because ten years have elapsed since the commencement of benefits and Asplundh is entitled to a credit for the TTD it paid to Benjamin prior to his entitlement to SEB. Thibodeaux v. Diamond M. Drilling Co., 93-2963 (La.2/25/94), 632 So.2d 736; Burge v. Louisiana Ins. Guar. Ass’n, 02-33 (La.App. 3 Cir. 5/15/02), 819 So.2d 1098, writ denied, 02-2209 (La.11/15/02), 829 So.2d 427.

For the above reasons, the judgment of the Office of Workers’ Compensation is affirmed. We pretermit the assessment of costs, as Mr. Benjamin appears as a pauper.

AFFIRMED.


author: hAMY, Judge.

text:
    Timothy Methias FLOYD v. Mary Ann Schlotterbeck FLOYD.
    No. CA 03-1126.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Thomas Overton Wells, Alexandria, LA, for Defendant/Appellant: Mary Ann Schlotterbeek Floyd.
    Steven Patrick Mansour, Alexandria, LA, for Plaintiff/Appellee: Timothy Methi-as Floyd.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   hAMY, Judge.

Plaintiff husband filed for divorce against defendant wife. In disposing of matters ancillary to the divorce, the trial judge denied the defendant’s request for final spousal support and granted custody of the couple’s minor child to the plaintiff. Defendant appeals that portion of the judgment denying final support. For the following reasons, we affirm.

Factual and Procedural Background

Timothy Floyd and Mary Ann Schlotter-beck were married on August 12, 1973. Three children were born of the marriage; as of the date of trial, two had reached the age of majority, and the youngest child was fourteen years old. According to the record, Mr. Floyd moved out of the family residence on August 1, 1998, and on September 29, 1999, he filed a petition for divorce under La.Civ.Code art. 103(2). The minute entries for May 21, 2002, in the record reflect that the petition was uncontested, that testimony was heard, and that a judgment of divorce was rendered that same day. On July 15, 2002, a hearing was held on the issues of child custody, visitation, child support, final spousal support, and use of the family home. At this hearing, Ms. Floyd’s claim for final support was dismissed on Mr. Floyd’s motion. Judgment was rendered on September 17, 2002, granting custody of the couple’s minor child to Mr. Floyd. Ms. Floyd was granted reasonable visitation and use of the family home. Her request for child support was denied as moot.

The record reflects that this judgment was signed on September 17, 2002, and notice of judgment was mailed to counsel for both parties on September 30, 2002. However, in the interim, while under the impression that her business in court had concluded, Ms. Floyd filed a joint motion with her attorney requesting his withdrawal 1 ¿from representation. The court granted the joint motion on September 27. Nonetheless, when the notice of judgment was mailed on September 30, it was sent to Ms. Floyd’s former attorney and not to Ms. Floyd herself. Similarly, the draft judgment prepared by Mr. Floyd’s attorney was not submitted to Ms. Floyd for her approval before it was sent to the trial judge to be signed.

On November 6, 2002, Ms. Floyd, who had hired another attorney, filed a motion for new trial. In this motion, Ms. Floyd argued that because Mr. Floyd’s attorney had not forwarded her the proposed judgment for her approval and because she was not represented by counsel at that time, the topics of final spousal support and child custody should be re-litigated. The record reflects that Ms. Floyd was granted a new trial as to the custody issue, and, with respect to final support, the trial court granted arguments only. At the conclusion of the proceedings, the trial judge upheld the court’s prior custody determination and its decision that Ms. Floyd was not entitled to final support. From this judgment, Ms. Floyd appeals.

Discussion

In her sole assignment of error on appeal, Ms. Floyd argues that the trial court incorrectly denied her request for final support. She contends that no testimony given at' trial indicated that she was a bad wife or that she had caused the break-up of her marriage. In fact, Ms. Floyd argues, the lack of testimony to this effect proves her freedom from fault. Ms. Floyd insists that she carried the burden of proof, and, consequently, she maintains that she is entitled to a new trial on the issue of spousal support.

The provisions of law applicable to the instant matter on appeal are La.Civ.Code arts. Ill and 112. Louisiana Civil Code Article 111 provides that

|3In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay, in accordance with the following Articles.

Louisiana Civil Code Article 112 lists various factors for the trial judge’s consideration in determining whether an award of final support is merited. This article provides as follows:

A. The court must consider all relevant factors in determining the entitlement, amount, and duration of final support. Those factors may include:
(1) The needs of the parties.
(2) The income and means of the parties, including the liquidity of such means.
(3) The financial obligations of the parties.
(4) The earning capacity of the parties.
(5) The effect of custody of children upon a party’s earning capacity.
(6) The time necessary for the claimant to acquire appropriate education, training, or employment.
(7) The health and age of the parties.
(8) The duration of the marriage.
(9) The tax consequences to either or both parties.
B. The sum awarded under this Article shall not exceed one-third of the obligor’s net income.

The concept that the burden of proof is upon the claimant spouse in an action for final support has been developed through the jurisprudence interpreting La.Civ. Code art. 112. In the context of final support actions, “fault” encompasses the grounds for divorce or separation listed in former La.Civ.Code arts. 138 and 139, now repealed. Harrington v. Montet, 93-984 (La.App. 3 Cir. 3/2/94), 634 So.2d 1302. The following sampling of behavior, classified as “fault,” would prevent a claimant spouse from receiving final support: “adultery; conviction of a felony; habitual intemperance or excesses, cruel treatment, or outrages; public defamation; abandonment; an attempt on the other’s life; status as a fugitive; and intentional nonjsup-port4.... ” Goodnight v. Goodnight, 98-1892, p. 3 (La.App. 3 Cir. 5/5/99), 735 So.2d 809, 812, (quoting Guillory v. Guillory, 626 So.2d 826, 829 (La.App. 2 Cir.1993)). Moreover, in Harrington, 634 So.2d 1302, a panel of this court stated that a claimant spouse does not establish his or her entitlement to final support merely by proving that the other spouse was at fault — instead, the claimant spouse must affirmatively prove his or her own freedom from fault that caused the break-up of the marriage. We review, pursuant to the manifest-error standard, the trial court’s determination that Ms. Floyd had not met this burden of proof. Mayes v. Mayes, 98-2228 (La.App. 1 Cir. 11/5/99), 743 So.2d 1257.

Ms. Floyd acknowledges that under La. Civ.Code arts. Ill and 112, she had the burden of proving her freedom from fault. She maintains that the lack of any testimony to the effect that she was a bad wife was sufficient to meet her burden of proof and that the burden then shifted to Mr. Floyd to prove that he had not abandoned the family home. Ms. Floyd hypothesizes that the trial court might have misinterpreted the burden of proof applicable to final-support claims as requiring her to show that her husband had been at fault or to pinpoint the cause of the break-up. Ms. Floyd points out that La.Civ.Code art. Ill does not impose such a burden. Instead, she contends, Mr. Floyd abandoned the family home when he moved out on August 1, 1998, and refused to return, despite her numerous entreaties for reconciliation.

After Ms. Floyd rested at the hearing in the instant matter, Mr. Floyd moved to dismiss her claim for final support, asserting that she had not proven freedom from fault so as to establish her qualifications for such an award. Before issuing a ruling, the trial judge expressed concern regarding the issue of fault, stating,

|BI’m not we really [sic] understand of [sic] the evidence really before this court about the break up. I mean, what caused the break up? I don’t know. I don’t know whose fault the break up was on the basis of the evidence before the court at the present time. And I don’t know how we can determine that she’s free from fault on the basis of the evidence in the — in the record....

The record reflects that Ms. Floyd’s attorney then recalled Ms. Floyd’s testimony to the effect that she desired a reconciliation. Again, the judge expressed concern as to the burden of proof: “Now, does that prove she is free from fault? Free from fault in the break up?” According to the record, Ms. Floyd’s attorney stated that he was of the opinion that nothing showed fault on her behalf, to which the trial judge responded, “Well, the burden, as I understand it, and I’ll be glad to have you argue it, is that she’s got to prove her freedom from fault. The totality of the circumstance.” The record indicates that the following colloquy then occurred:

THE COURT:
And I don’t think they’ve [Mr. Floyd’s counsel] got to prove she was at fault. I think the burden rests on you [Ms. Floyd’s counsel] to prove her freedom from fault.
MR. MOSLEY:
That’s correct, Your Honor.
THE COURT:
Go ahead and argue.
MR. MOSLEY:
Well-uh-Judge, I — and I — I’m trying to go back in my mind to the testimony from this morning of the — some of the incidents from the marriage. Uh. I can’t think of anything specifically addressed in the fault issue, Your Honor.

The trial judge then granted Mr. Floyd’s motion to dismiss Ms. Floyd’s claim for final support.

The jurisprudence attendant to Louisiana Civil Code Articles 111 and 112 emphasizes that for a claimant spouse to prove entitlement to final support, that spouse must affirmatively prove freedom from fault. See, e.g., Harrington, 634 So.2d 1302; Gibson v. Gibson, 592 So.2d 855 (La.App. 3 Cir.1991). In light of this | ^jurisprudential principle, we find no error in the imposition of this burden of proof upon Ms. Floyd, the claimant herein. Furthermore, considering that Ms. Floyd had the burden of proving her freedom from fault leading to the break-up of the marriage, we find no manifest error in the trial judge’s determination that she had not met this burden. The evidence presented at trial in the instant matter consisted of nothing more than general testimony as to the Floyds’ marriage and divorce. No direct evidence was offered that positively established Ms. Floyd’s freedom from fault as defined by the jurisprudence. Without such evidence directly addressing the issue of fault, the Floyds’ general testimony does not meet the burden of proof required of a spouse in a final-support action.

DECREE

For the foregoing reasons, the judgment denying final support is affirmed. All costs of this proceeding are assigned to the defendant-appellant, Mary Floyd.

AFFIRMED.


author: _JjAMY, Judge.

text:
    Joseph R. LEGER, v. GREY WOLF DRILLING COMPANY.
    No. WCA 03-930.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      James D’Arensbourg Hollier, Laborde & Neuner, Lafayette, LA, for Defendant/Appellant: Grey Wolf Drilling Company.
    Richard E. Smith, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellee: Joseph R. Leger.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   _JjAMY, Judge.

The claimant filed the instant matter seeking workers’ compensation benefits due to injuries he alleges resulted from a work-related accident. The workers’ compensation judge awarded the benefits. The employer appeals, asserting that the workers’ compensation judge applied the incorrect burden of proof. For the following reasons, we affirm.

Factual and Procedural Background

On September 11, 2001, the claimant, Joseph Leger, was employed by Grey Wolf Drilling Company as a derriekman on a land-based rig. He contends that he sustained a work-related injury on that day while stepping from a metal box. He asserts that, while doing so, his foot slipped. Although he does not allege a fall, he contends that the slip caused him to twist and injure his back. Mr. Leger explains that he did not immediately report the accident, but felt that the pain would resolve. He left later that day, the final day of a seven-day work stretch. Mr. Leger contends that, in the subsequent days, the pain did not abate, causing him to exercise caution in his activities, including a day of moving boxes and furniture from one residence to another. Due to his injury, Mr. Leger contends, he had friends assist in the move. He denied lifting boxes during the move that were in excess of fifteen pounds.

Due to his seven-day on, seven-day off schedule, and a week of pre-arranged leave to conduct personal business, Mr. Leger was not scheduled to return to work until October 3, 2001. Mr. Leger did not report to work as scheduled, but visited Dr. Reginald Segar, a family practitioner. According to Dr. Segar, Mr. Leger reported the twisting of his back and described worsening pain that radiated from his back into his left leg and heel. Dr. Segar explained in his deposition that he diagnosed Mr. Leger |2as having a myofascial lumbar strain at that time. Mr. Leger began to receive treatment as of October 3rd.

The claimant contends that he contacted his supervisor, Joel Kirkpatrick, to let him know that he would not be reporting to work. According to Mr. Kirkpatrick, however, he contacted Mr. Leger on the October 3rd after he failed to report to work at the scheduled time. In any event, an accident report was completed at that time. The employer denied compensation benefits.

Mr. Leger filed a disputed claim for compensation on October 15, 2001, seeking indemnity and medical benefits. The workers’ compensation judge found in favor of the claimant, concluding that the claimant demonstrated the existence of an injury. The matter was continued for the claimant to present additional evidence regarding the question of whether the disability continued. Subsequently, the claimant presented the deposition of Dr. Segar, who explained that he found the claimant to still be disabled. On the issue of disability, the employer presented the deposition of a State Trooper who arrested Mr. Leger for simple assault for raising his arms in a threatening posture following a car accident in December 2001. The trooper reported that Mr. Leger denied any pain or injury at the time of the accident. After these post-trial submissions, the workers’ compensation judge concluded that the claimant was entitled to continuing supplemental earnings benefits.

The employer appeals, assigning the following as error:

1. The trial court erred by failing to apply the “clear and convincing” burden of proof and dismissing the claim based upon the evidence presented. Leger’s allegation of a work-related injury is supported only by his own testimony, and the record is filled with evidence which casts doubt on his credibility.
|s2. The trial court committed manifest error in ruling that Leger proved his claim of a work-related disability by a preponderance of the evidence.
3. Alternatively, the trial court erred in concluding that Leger’s disability extended beyond December 18, 2001.

Discussion

Burden of Proof

The employer first contends that the trial court erred in applying the preponderance of evidence standard in considering whether the claimant established the existence of an accident. It asserts that the accident was unwitnessed and that it presented evidence casting doubt on Mr. Leger’s credibility. Thus, the employer contends, a higher, clear and convincing burden of proof should have been found applicable. The employer cites Crochet v. American Tobacco Co., 407 So.2d 1330 (La.App. 3 Cir.1981), for the proposition that the clear and convincing burden must be met when the claimant’s testimony is presented without corroborating evidence. Furthermore, the employer contends that, if the preponderance of the evidence standard is found applicable, the determination that the claimant satisfied this burden was in error.

In discussing a claimant’s burden of proof, the Louisiana Supreme Court has noted that, although workers’ compensation provisions are to be construed liberally in favor of coverage, the worker does not enjoy a relaxed burden of proof. See Coats v. Am. Tel. & Tel. Co., 95-2670 (La.10/25/96), 681 So.2d 1243. Rather, a worker 14seeking compensation benefits must demonstrate injury by a work-related accident by a preponderance of the evidence. Id.

In Bruno v. Harbert International, Incorporated, 593 So.2d 357, (La.1992), the supreme court observed that a worker’s testimony, alone, may be sufficient to discharge the preponderance of the evidence standard. However, two elements must be satisfied: “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Id. at 361. See also, Coats, 681 So.2d 1243. Medical evidence and testimony of fellow workers, spouses, or friends were cited by the supreme court as examples of corroboration. Bruno, 593 So.2d 357. The supreme court in Bruno, specifically found a statement regarding the application of the clear and convincing standard of proof to be an error of law. Confirming its prior decision in West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979), the supreme court stated: “[T]he worker’s burden of proof, even if the worker is the sole witness to the accident, is by a preponderance of the evidence.” Bruno, 593 So.2d at 364. Thus, there is no question as to the applicable burden of proof, only as to whether the claimant satisfied that burden of proof.

In the present case, the workers’ compensation judge found the claimant satisfied his burden of proof by a preponderance of the evidence. In oral reasons for ruling, the workers’ compensation judge stated:

This is the type of case that’s addressed in Bruno, an unwitnessed accident, and discusses the basically two-pronged evaluation of Isdetermining whether the burden of proof has been met with an un-witnessed accident.
There are some discrepancies that [defense counsel] has demonstrated through her cross-examination and case in chief, and while I think those discrepancies are surely enough to prevent an award of penalties or attorney’s fees, I simply can’t say that they are sufficient to the extent that they cast such a suspicion on the case as to prevent Mr. Leger’s recovering.
I will say that I have made a credibility determination in Mr. Leger’s favor and in his corroborating witnesses. And I will state for the record, not to hurt anybody’s feelings or be ugly or anything, but I didn’t have the impression that Mr. Leger has an intellectual flexibility or ability to be deceptive to the extent that would be needed to fool me, I guess. So either he’s very, very good — either he’s lying to me and he’s very, very good, or the one I choose is that he’s not lying because I just don’t think he had the ability to pull one over really good on me. I may be wrong, but that’s what I’m going to adopt as my finding.

In written reasons, the workers’ compensation judge explained: “The accident was not witnessed and not reported for three weeks. However, the WCJ finds that Leger was sufficiently credible and had sufficient corroboration to meet his burden of proving an accident by a preponderance of the evidence.”

On appeal, we are mindful that a workers’ compensation judge’s determinations regarding credibility and whether the burden of proof has been satisfied are factual in nature. Bruno, 593 So.2d 357. These determinations are not to be disturbed unless they are clearly wrong or manifestly erroneous. Id.

Our review of the record indicates Mr. Leger testified that he was stepping from a metal box when his right foot slipped from underneath him. He stated that when he turned to the left to catch himself something “popped” in his lower back. He contends that although he was immediately in pain, he hoped that it would go away and he continued his work day. Dr. Segar testified that Mr. Leger reported similarly when he came to his office for treatment on October 3, 2001. Furthermore, a friend, ^Joseph Robert Gibbs, III, explained that Mr. Leger had called him a week and a half to two weeks after September 11th to ask for assistance in moving as he was fearful that he had injured his back. Mr. Gibbs explained that, during the move, he did not see Mr. Leger move anything heavier than ten or fifteen pounds. Mr. Leger’s girlfriend, Tricia Romero, testified similarly with regard to the move and stated that Mr. Leger could no longer do the things that he used to do.

The employer contends that the above evidence should not be found sufficient to establish the claimant’s burden of proof as several pieces of evidence, it contends, discredit the claimant’s version of events. For example, Mr. Leger stated that he phoned his supervisor to report the accident while Mr. Kirkpatrick, the supervisor testified that he initiated the telephone call to Mr. Leger after Mr. Leger failed to report to work on October 3, 2001. The employer also points out that, he testified that his right foot slipped, while he reported to the claims investigator that it was his left foot that slipped. Further, the insurer notes that Mr. Leger was involved in a December 2001 accident and did not report to the investigating Trooper that he was in any discomfort. The employer points to other alleged inconsistencies as well.

In light of the record, we conclude that the workers’ compensation judge was neither manifestly erroneous nor clearly wrong in finding that the requirements of Brnno were established. Although the accident was unwitnessed, the claimant testified as to the occurrence of the accident and onset of pain. The workers’ compensation judge found this testimony credible. Furthermore, although certain inconsistencies are present in the record, the workers’ compensation judge acknowledged these, finding them insufficient to cast suspicion on the claimant’s testimony. The record supports this determination regarding the weight to be given |7the inconsistencies. Also, Mr. Leger’s claim of an injury and accident are corroborated in the record by testimony regarding his need for assistance in a move that occurred subsequent to the date of alleged injury. Both his friend and his girlfriend explained that the claimant was unable or unwilling to risk lifting heavy objects on that day due to pain. Moreover, Dr. Se-gar explained that Mr. Leger reported the “twisting” accident and complained of pain. Finally, Dr. Segar diagnosed myofascial lumbar strain. In subsequent visits, the claimant continued to complain of pain and was found to continue to evidence tenderness on exam. Dr. Segar described his complaints of pain as consistent with the accident as reported by Mr. Leger. These factors, we conclude, support the worker’s compensation judge’s determination that the factors described by the supreme court in Bruno, for satisfaction of the preponderance of the evidence standard in a case involving an unwitnessed accident, were met in the present case.

These assignments regarding the satisfaction of the burden of proof are without merit.

Continuation of Disability

The employer also argues that the workers’ compensation judge erred in determining that any disability continued after December 18, 2001, the date on which Mr. Leger was involved in an automobile accident. The employer points out that Trooper Frank Garcia denied that Mr. Leger reported that he was in any pain at the time of the accident and that his actions subsequent to the accident did not reveal any signs of distress. The insurer also points to Dr. Segar’s deposition testimony indicating that his finding as to Mr. Leger’s testimony was based on Mr. Leger’s subjective complaints.

|sOnr review of the record supports the trial court’s determination that Mr. Leger’s disability continued. Specifically, Mr. Leger testified that he felt that he could not return to work due to weakness in his leg and continued pain in his back, hips, and the back of his leg. Furthermore, Dr. Segar testified in his August 2002 deposition that he also felt that Mr. Leger was unable to return to work. He explained that Mr. Leger’s complaints of pain and responses to exam were consistent, resulting in repeated findings of tenderness in the left paraspinous muscle area of the lower back. Dr. Segar treated Mr. Leger with medication and an injection, and noted that during the course of Mr. Leger’s treatment he lost almost twenty pounds. Dr. Segar stated that, in his opinion, Mr. Leger was totally disabled and would fail any physical exam required for another manual labor position. Neither was the trial court required to accept Trooper Garcia’s testimony that Mr. Leger failed to report any pain resulting from the accident as indication that he no longer suffered a disability. Mr. Leger testified that he did not report any pain at the time of the accident to Trooper Garcia because, according to his statement, he was in no more pain after the automobile accident, than he was before the accident. We find no merit in the employer’s assertion that the evidence does not support the workers’ compensation judge’s findings.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is affirmed. All costs of this appeal are assigned the employer, Grey Wolf Drilling Company.

AFFIRMED.

      . Louisiana Revised Statutes 23:1021(1) defines ''accident” as: "[A]n unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”


author: 17AMY, Judge.

text:
    HURLEY STATE BANK, v. Sharon PICKENS.
    No. CA 03-911.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Gregory M. Eaton, Baton Rouge, LA, for Plaintiff/Appellant, Hurley State Bank.
    Charles A. “Sam” Jones, III, DeRidder, LA, for Defendant/Appellee, Sharon Pick-ens.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   17AMY, Judge.

Plaintiff bank filed a collection suit against the defendant, claiming that certain amounts were due under an open-account agreement. The defendant asserted an affirmative defense, arguing that she had entered into a purchase agreement with the plaintiff and had not consented to an open account. The trial court dismissed the plaintiffs suit for lack of evidence of such an account. The plaintiff appeals. We affirm the trial court’s ruling.

Factual and Procedural Background

The instant matter arose from the credit purchase of a computer. Sharon Pickens, the defendant herein, testified at trial that she had responded to a television advertisement offering computers through Value America. Shortly after completing the paperwork for the purchase of the computer, a dispute arose as to billing, and Ms. Pick-ens ultimately ceased making payments. Hurley State Bank, Value America’s financing agent and the plaintiff herein, filed a collection suit against Ms. Pickens, seeking repayment of the balance owed on what it classified as an open account, plus interest, attorney’s fees, and costs. During the pre-trial phase, the Bank’s motion for summary judgment was denied. A trial was then held in the matter, culminating in the dismissal of the Bank’s suit. In his oral reasons for judgment, the trial judge pointed out that although the Bank’s case rested on its classification of the debt as an open account, no evidence had been introduced that proved that the Bank and Ms. Pickens had entered into this particular type of contract. The Bank had introduced evidence relevant only to an open account, and, the trial judge noted, this evidence was insufficient to support a favorable judgment where the existence of such an agreement had not been established.

| ¡^Hurley State Bank contests the dismissal of its suit, asserting two assignments of error on appeal:

1. The trial court erred in determining that a prima facie case was not made regarding the existence of an open account, and
2. The trial court erred in ruling that the Bank did not prove its case by a preponderance of the evidence.
For the following reasons, we affirm.

Discussion

Because the Bank’s assignments of error are interrelated, we address them together. Hurley State Bank first argues that, according to the principles outlined in the first circuit’s decision in Jacobs Chiropractic Clinic v. Holloway, 589 So.2d 31 (La.App. 1 Cir.1991), & prima facie case of an open account is established through the production of business records. The Bank argues that once these records have been introduced into evidence, the burden of proof shifts to the defendant to prove that the records are inaccurate or that she is entitled to credits on the account. The Bank asserts that business records, admissible herein under La.Code Evid. art. 803 and La.R.S. 13:3733, are given great evi-dentiary weight. The Bank further cites Williams v. Bulk Transp., Inc., 266 So.2d 472 (La.App. 4 Cir.1972), in support of its contention that when testimony conflicts, the trial court should turn to physical evidence to establish the factual circumstances of the case. The Bank further points out that Ms. Pickens admitted that she signed a contract, and pursuant to Bank of Louisiana v. Berry, 94-576 (La.App. 5 Cir. 12/14/94), 648 So.2d 991, this contract was perfected when she used the card. In sum, the Bank contends that it introduced business records in this matter, and, as such, it made its prima facie case against Ms. Pickens.

laThe Bank further asserts that the trial court erred in determining that the Bank did not prove its case against Ms. Pickens by a preponderance of the evidence. The Bank argues that testimony supported by documentation is afforded greater weight than unsupported testimony and, moreover, the weight given to credible testimony supported by documentation is greater still, citing the fourth circuit’s decision in Williams, 266 So.2d 472. Ms. Pickens produced no documentary evidence, the Bank points out, and she testified at trial that she signed a contract. According to American Bank v. Saxena, 553 So.2d 836 (La.1989), the Bank argues, Ms. Pickens’s unsupported testimony, coupled with the admission that she signed a contract, is insufficient to rebut the Bank’s case. The Bank also points out that a party faced with a motion for summary judgment cannot prevail based solely on general denials; instead, documentation is needed for adequate opposition. The Bank likewise insists that Ms. Pickens’s testimony to the effect that she signed a contract amounts to a judicial confession of the debt, citing La.Civ.Code art. 1853 and Krepps v. Hin-delang, 97-980, 97-1034 (La.App. 5 Cir. 4/15/98), 713 So.2d 519. The Bank argues that because it produced business records pertaining to the debt, along with the deposition of its records custodian, and because Ms. Pickens testified that she had signed a contract, the Bank proved its case by a preponderance of the evidence, and the trial judge manifestly erred in ruling to the contrary. We disagree.

In order to recover in an action on an open account, a creditor has the burden of proving that the debtor agreed to an open-account arrangement. Service Steel and Pipe, Inc. v. Guinn’s Trailer Sales, Inc., 37,291 (La.App. 2 Cir. 6/25/03), 850 So.2d 902. A panel of this court has previously defined an open account as “an account in which a line of credit is running and is open to future modification because of expectations of prospective business dealings.” Tyler v. Haynes, 99-1921, p. 5 (La.App. 3 Cir. 5/3/00), 760 So.2d 559, 563. Moreover, a defining characteristic of an open account is that “[sjervices are recurrently granted over a period of time.” Id. In Tyler, the following factors were listed as indicative of the existence of an open-account agreement between two parties:

1. Whether there were other business transactions between the parties;
2. Whether a line of credit was extended by one party to the other;
3. Whether there are running or current dealings; and
4. Whether there are expectations of other dealings.

Id. at 563, citing Herb’s Mach. Shop, Inc. v. John Mecom Co., 426 So.2d 762 (La.App. 3 Cir.), writ denied, 430 So.2d 98 (La.1983). We examine the trial court’s findings of fact in this collection suit according to the manifest-error/clearly-wrong standard. Wooldridge Production Co., Ltd. v. Goldstream Corp., 36, 373 (La.App. 2 Cir. 9/20/02), 827 So.2d 1211.

At trial, the Bank argued that Ms. Pick-ens had entered into an open-account agreement with Value America, for whom Hurley State Bank was a financing agent. The Bank offered various business records, resembling credit-card statements, that it had issued to Ms. Pickens, along with the deposition of its business records custodian. The Bank also argued that it had sent interrogatories to Ms. Pickens and that Ms. Pickens responded that she had, indeed, signed a contract. The Bank then rested.

The record reflects that Ms. Pickens testified as to her understanding of what had happened. Ms. Pickens explained that after seeing Value America’s commercial | tfor computers on television, she called the number provided on-screen and arranged for the purchase of one of said computers. Ms. Pickens recalled that she entered into a written purchase agreement with Value America that required monthly payments of $46; however, neither she nor the Bank had a copy of this contract. The record reflects that the only evidence pertaining to this transaction was a document containing credit terms that Ms. Pickens did not sign.

Ms. Pickens further testified that after she received the computer, she had to call Value America to request her first bill. Ms. Pickens explained that it was commonplace for her to receive bills from Value America after their respective due dates, and, as a result, these bills would often reflect late fees from previous months. The amount due gradually increased from $46 per month, as originally agreed, to $57. Ms. Pickens noted that she called Value America on several occasions with respect to billing, and eventually, she told them that the “arrangement was not working out, that every time [she] turned around, they were making [her] pay more and that [she] no longer would like to have this computer or ... do business.” She testified that she subsequently ceased making payments because the bills were never timely sent to her. Ms. Pickens further testified that she never applied for a credit card with Value America, never received a credit card, and never signed anything that would allow increases in the monthly amount payable.

The record indicates that during the proceedings, the trial judge inquired whether the suit involved an open account or a closed account, to which counsel for the Bank responded, “I believe it’s just for the sale of a computer.” The following exchange is noteworthy, as it later formed the basis of the trial judge’s reasoning:

lfiTHE COURT:
That’s what I’m saying; this is not a credit card, open-end financing, is it?
MR. BOURGEOIS [counsel for Hurley State Bank]:
I believe it was a credit card with Value America that was used to purchase the computer.
THE COURT:
There was a credit card involved?
MR. BOURGEOIS:
That’s my belief.
THE COURT:
Or was it just a single credit purchase that was a closed-end transaction?
MR. BOURGEOIS:
Well, I think it was a single credit purchase of the computer that was financed by Hurley. But I believe — • We’re of the impression—
THE COURT:
What I’m asking you is if the citations that you’re giving me that pertain to an open account, are they applicable to this case—
MR. BOURGEOIS:
Yes, sir.
THE COURT:
And why are they applicable?
MR. BOURGEOIS:
Because we believe that it’s the same or we believe that the law states that it is the same type of account — •
THE COURT:
Open account or a closed—
MR. BOURGEOIS:
Yes, sir. It’s really a credit — The two types are a credit versus a note, and this isn’t a note. You know, a credit card purchase, even though it’s for $2,000 for the purchase of a computer.
THE COURT:
Well, I understand there’s credit card purchases; but nobody’s introduced any credit card in this case, have they?
MR. BOURGEOIS:
No, sir.
THE COURT:
Okay. So we’re talking about credit cards, we’re talking about open accounts. But that’s not what we’re dealing with here; is that right?
MR. BOURGEOIS:
Well, it’s — I believe the matter really involves a Value America charge card or charge account. Charge account.
THE COURT:
There’s a charge account that apparently is not an open-end account. We’re talking about a single-purchase contract, aren’t we?
|7MR. BOURGEOIS:
In this case I believe it was only a single purchase was [sic] made.
THE COURT:
Well, that’s all we’re talking about is in this ease. In other words, whatever your client does with other people or whether they have credit cards outstanding with other people hasn’t got anything to do with this case, right?
MR. BOURGEOIS:
Well, I believe that if Ms. Pickens had chosen to purchase other things through Value America, it could have been done through this account.
THE COURT:
Had she been given a credit card?
MR. BOURGEOIS:
I don’t know if she actually received a credit card or it was over the phone....

At the conclusion of the trial, the trial judge noted in his oral reasons for judgment that although the parties recognized that Ms. Pickens and Value America had entered into a purchase agreement, no one had a copy of this agreement, and the Bank could not explain how or when revolving-credit terms began to apply. The trial judge pointed out that the Bank could not unilaterally transform a purchase agreement into a revolving-credit account and that Ms. Pickens would have had to approve such action. Because the Bank had not proven that an open account had been established, then the burden of proof discussed in Jacobs Chiropractic, 589 So.2d 31 — viz., an affidavit of the business records custodian and an itemization of relevant business records — was not applicable, and the Bank had failed to prove its case.

The record reflects that Ms. Pickens’s statements unequivocally expressed her intent to enter into only one transaction with Value America. There were no prior transactions between the parties, and there were no future transactions contemplated. Hurley State Bank admitted at trial that Value America and Ms. Pickens had entered into a single transaction, for the purchase of the computer, as provided in the excerpt above. According to Tyler, 760 So.2d 559, discussed above, the party who wishes |sto sue on an open account must prove the existence of the open-account agreement. Here, the Bank had the burden of proving that Value America and Ms. Pickens had agreed upon an open-account arrangement, and the record is devoid of any evidence to this effect. The Bank could not produce any contracts between the two, and it could not produce any credit cards issued to Ms. Pickens that would support its claim that a revolving line of credit was extended to her. In light of the burden of proof in an open-account claim as set forth in Tyler, and considering the absence of supporting evidence in the record, we find that the trial judge was neither manifestly erroneous nor clearly wrong in dismissing Hurley State Bank’s suit.

DECREE

For the foregoing reasons, the judgment dismissing the plaintiffs suit is affirmed. All costs of this proceeding are assigned to the plaintiff-appellant, Hurley State Bank.

AFFIRMED.

      . Louisiana Civil Code Article 1853, entitled "Judicial confession,” provides as follows: "A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. A judicial confession is indivisible and it may be revoked only on the ground of error of fact.”


author: h GREMILLION, Judge.

text:
    STATE of Louisiana v. William Odell CASH.
    No. 03-853.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Michael Cade Cassidy, District Attorney, Thirty-first Judicial District, Bennett R. Lapoint, Asst. District Attorney, Jennings, LA, for Plaintiff/Appellee, State of Louisiana.
    Jack Derrick Miller, Crowley, LA, for Defendant/Appellant, William Odell Cash.
    William Odell Cash, In Proper Person.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   h GREMILLION, Judge.

The defendant, William Odell Cash, was convicted by a jury of possession of marijuana with intent to distribute, a violation of La.R.S. 40:966, and possession of methamphetamine, a violation of La.R.S. 40:967, and was sentenced to ten years at hard labor. He now appeals his conviction. For the following reasons, we affirm.

ERRORS PATENT

We review all appeals for errors patent on the face of the record in accordance with La.Code Crim.P. art. 920. After reviewing the record, we find that there is one error patent.

Defendant and a co-defendant were charged by bill of information with two offenses — one count of possession with the intent to distribute marijuana and one count of possession of methamphetamine. Defendant and co-defendant were not tried together and the bill of information read at Defendant’s trial cited only one of the offenses charged on the bill — possession of marijuana with the intent to distribute. Consequently, the jury returned a verdict as to that charge alone, and no verdict was returned on count two — possession of methamphetamine. We sent an information request to the Jefferson Davis Clerk of Court’s Office for any minute entry, motion, order, or other pleading showing the disposition of count two, possession of methamphetamine. The clerk’s office responded with an affidavit stating, “that there is no minute entry, motion, order or other pleading showing the disposition” of that charge in the docket number that is before this court. We also conducted an examination of the transcripts included in the record, but found no mention of the ^disposition of count two. Thus, it appears that count two is an outstanding charge against Defendant, for which no verdict was returned by the jury.

Louisiana Code of Criminal Procedure Article 819 requires a verdict to be returned on each count charged in an indictment: If there is more than one count in an indictment, the jury must find a verdict as to each count, unless it cannot agree on a verdict as to a count.

In two previous cases, when faced with a similar error patent, we remanded for a proper disposition of the outstanding charge. State v. Davis, 614 So.2d 270 (La.App. 3 Cir.1993), reversed on other grounds, 93-0599 (La.4/11/94), 634 So.2d 1168, and State v. James, 99-1858 (La.App. 3 Cir. 5/3/00), 761 So.2d 125, writ denied, 00-1595 (La.3/23/01), 787 So.2d 1010. Likewise, we remand this matter for a proper disposition of the possession of methamphetamine charge.

SUFFICIENCY OF EVIDENCE

In this assignment, Defendant attacks the sufficiency of the evidence. Because a ruling that the evidence was insufficient would necessitate an acquittal, we will address this argument before the others. State v. Hearold, 603 So.2d 731, 734 (La. 1992).

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

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

Defendant was convicted of possession of marijuana with intent to distribute, a violation of La.R.S. 40:966. The statute states, in pertinent part:

A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I[.]
We have stated:
The State was required to prove two essential elements: possession of the controlled dangerous substance and the intent to distribute it.
The prosecution is not required to show actual possession in order to convict. The State need only show that the defendant exercised dominion and control over the illegal substance. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Rexrode, 536 So.2d 671 (La.[App.3rd Cir.]1988). The mere presence of the defendant in the area where narcotics are discovered is insufficient to support a finding of possession. State v. Matthews, 552 So.2d 590 (La.App. 2nd Cir. 1989). What must be shown is that the defendant had a direct right and ability to exercise control. State v. Segura, 546 So.2d 1347 (La.App. 3rd Cir.1989). Additionally, the prosecution must show guilty knowledge. Trahan, supra; Matthews, supra.

State v. Newberry, 560 So.2d 121, 123 (La.App. 3 Cir.1990).

We have also explained constructive possession as follows:

The following factors should be considered in determining whether defendant exercised dominion and control so as to constitute constructive possession: defendant’s knowledge that illegal drugs were in the area; the defendant’s relationship with the person in actual possession; the defendant’s access to the area where the drugs were |4found; evidence of recent drug use; the defendant’s proximity to the drugs; and any evidence that the area was frequented by drug users.

State v. Laws, 95-593, p. 4 (La.App. 3 Cir. 12/6/95), 666 So.2d 1118, 1121, writ denied, 96-0089 (La.9/13/96), 679 So.2d 102 (citation omitted).

On appeal, Defendant claims the State’s case was circumstantial, thus requiring it to produce evidence that excluded “every reasonable hypothesis of innocence,” as required by La.R.S. 15:438. At trial, the State relied mainly upon the testimony of Louisiana State Trooper Richard Elliot, a motor carrier safety inspector. Elliot testified that on July 19, 2000, in Jefferson Davis Parish, he stopped a tractor-trailer rig driven by Defendant. There was also a passenger, Karen Kayla. The purpose of the stop was a routine safety inspection. After Defendant produced his log book, Elliot checked its entries and noticed discrepancies. We note that Defendant stipulated there were falsified entries in the log book.

Elliot testified Defendant “seemed extremely nervous.” He explained that people are often nervous when they encounter police, but usually relax after the initial contact. However, he testified that Defendant did not relax. He further testified that Defendant’s demeanor made him suspicious, as did the presence of a number of locks on the trailer section of the rig. Defendant was hauling produce, which Elliot testified is not normally a high-security load. Thus, Elliot obtained Defendant’s written permission to search the vehicle. After a backup officer arrived, Elliot commenced his search. He began in the cab area of the truck, which included a sleeper compartment. Behind the driver’s seat, he found a bag containing a full bottle of wine. Elliot testified that drivers may not possess alcohol in commercial vehicles. About three feet away from the wine, he found a dog-food box in plain |fiview. Elliot observed there was no dog in the truck, and Defendant admitted he did not have a dog. Also, Elliot could tell the box had been opened and then re-sealed with packing tape. He opened the box and discovered several bricks of a substance he believed to be marijuana. He said there were “little perfume things” packed in with the marijuana. Subsequent laboratory testing confirmed the substance was marijuana and that its weight was 9,579.9 grams.

Elliot immediately arrested Defendant and Kayla, advised them of their rights, and separated them. He then resumed the search. He found possible drug paraphernalia, i.e., clips and pipes, but no other drugs in the cab area. He then checked the utility boxes on the outside of the truck and found one or two more bricks of marijuana in a shopping bag, packaged in a manner similar to those found in the dog-food box. Elliot then searched the trailer. He found more bottles of alcoholic beverages, but no other contraband.

The State also presented the testimony of Trooper Martin Zaunbrecher, who participated in the follow-up investigation of Defendant. Zaunbrecher testified that the lower section of Texas, along the Mexican border, is an area of high drug-trafficking. Elliot’s testimony had already indicated Defendant had been in the Corpus Christi, Texas area on the same date as the traffic stop and arrest. Subsequently, another state trooper, Sergeant Christopher Ivey, testified regarding the prevalence of drug trafficking in lower Texas. Ivey also testified the marijuana in this case was packaged in a manner meant to conceal its odor, as it was wrapped in dryer sheets and vacuum-sealed. Further, he explained the manner of packaging was consistent with distribution rather than personal consumption. On cross-examination, 1 fiIvey acknowledged the truck apparently belonged to a company, rather than to Defendant. Ivey also testified that he photographed and processed the evidence; like Elliot, he observed an item in the truck that he believed to be drug paraphernalia, i.e., a smoking pipe. He photographed it, but the pipe itself was not preserved.

In addition to the above evidence, the State also adduced testimony from Detective William Gary of South Carolina. Gary testified that on January 25, 2002, he arrested Defendant for possession of marijuana. The detective further testified that he came into contact with Defendant pursuant to a search warrant that covered his residence and vehicle. As Gary arrived, Defendant was leaving in the vehicle; the officer stopped him, and found a substance that appeared to be marijuana in plain view in a clear plastic bag. The weight of the substance was approximately twenty-one grams. The lab test of the substance was not introduced, because it was excluded as hearsay.

We have reviewed the entire record, particularly addressing specific portions of the evidence highlighted by Defendant and the State in their appellate arguments. We note that the majority of the arguments set forth by Defendant involve alleged “failures” to produce or preserve various types of evidence. It is well-established that the State has discretion regarding how to make out its case. Presence or absence of evidence, and weight of the evidence produced, are matters to be assessed by the factfinder. For example, there is no legal requirement for the State to test for fingerprints, produce fingerprint evidence, test certain evidence, or call certain witnesses to satisfy the elements of the offense at issue. See State v. Green, 94-986 (La.App. 3 Cir. 3/1/95), 651 So.2d 435. State v. Sweeney, 443 So.2d 522 (La.1983) cited by Defendant, merely contains general statements of law;, and State v. Penson,. 351 So.2d 1181 (La.1977), which he also cites, is a pre-Jackson sufficiency case.

In State v. Odle, 02-226, p. 11 (La.App. 3 Cir. 11/13/02), 834 So.2d 483, 492, writ denied, 03-0625 (La.6/20/03), 847 So.2d 1219, in which the defendant was found to be in constructive possession of cocaine hidden in his gas tank, we wrote:

Considering the evidence, particularly the fact that Shaw was acting abnormally, gave information to the police .that was inconsistent with that given by Odie, was surrounded by a gasoline smell as well as an air freshener smell while in the vehicle, along with the fact that rags containing gasoline were found in the cargo area of the vehicle and his explanation for them was lacking, the fact that the gas tank had recently been tampered with, was geared to always read full, and there were several cans of cocaine hidden in the gas tank, we find that sufficient evidence was presented to the jury for it to find that Shaw constructively possessed the cocaine.

The present case is even stronger than Odie as the box of marijuana was in an open area that was within Defendant’s dominion and control. The evidence is sufficient to support the conviction. Therefore, this assignment is without merit.

MOTION TO SUPPRESS

In his first assignment of error, Defendant argues the lower court erred by denying his Motion to Suppress, which alleged Trooper Elliott did not have probable cause to stop him. However, as the State observes, Defendant raised this same argument in a pre-trial writ application. In an unpublished opinion bearing docket number 02-0293, this court denied, the application on May 15, 2002. Subsequently, the supreme court also denied the writ. State v. Cash, 02-1667 (La.8/30/02), 823 So.2d 932.

1 ¡.Our previous review of the issue does not preclude review on appeal. State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162, cert. denied, 528 U.S. 1050, 120 S.Ct. 589 (1999). However, our review of the prior file reveals Defendant’s current appeal is raising no new issues for analysis. As the Louisiana Supreme Court has explained:

When this court considers questions of admissibility of evidence in advance of trial by granting a pretrial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result.

State v. Humphrey, 412 So.2d 507, 523 (La.1981) (on rehearing).

We find that the trial record does not reveal new evidence on this issue, nor does Defendant’s brief point to any such evidence. Further, neither our review nor Defendant’s argument suggests our earlier ruling was patently erroneous or unjust. Thus, this assignment of error shall not be considered.

OTHER CRIMES EVIDENCE

Defendant’s assignments of error two and three relate to the State’s introduction of “other crimes evidence.” First, he contends that the other crimes evidence, evidence that police in South Carolina arrested him on suspicion of possession of marijuana on January 25, 2002, was irrelevant. Second, he argues that the prejudicial impact of the other crimes evidence outweighed its probative value.

|8The relevant law is set forth in La. Code Evid. art. 404(B), which states, in pertinent part:

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

Our supreme court has explained:

La.C.E. art. 404(B)(1) incorporates a fundamental evidentiary rule that “[mjatters which are logically relevant to issues before the jury should not be excluded merely because they show the accused has committed other offenses.” State v. Moore, 278 So.2d 781, 788 (La.1972) (on reh’g). Such evidence may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident....” La.C.E. art. 404(B)(1). However, La.C.E. art. 404(B)(1) also incorporates Louisiana’s traditional rule, see former La.R.S. 15:446, that evidence of other crimes, wrongs, or acts “is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” The state therefore must show “that the evidence is necessary to prove a matter genuinely at issue ... and that the probative value of the evidence of the other crime outweighs the prejudicial effect.” State v. Martin, 93-0285, p. 12 (La.10/17/94), 645 So.2d 190, 197 (citation omitted). For purposes of the balancing test provided by La.C.E. art. 403, Louisiana’s analogue of Fed.R.Evid. 403, “[t]he term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the fact-finder into declaring guilt on a ground different from proof specific to the offense charged.... Such improper grounds certainly include ... generalizing a defendant’s earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged....” Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997); see also State v. Hatcher, 372 So.2d 1024, 1036 (La.1979) (Tate, J., concurring) (“Other-crime evidence may not be used to prove that the offender committed this crime simply because he had committed similar crimes in the past.”).

State v. Morgan, 99-1895, pp. 2-3 (La.6/29/01), 791 So.2d 100, 102-03.

|! (According to Defendant, the arrest for possession was irrelevant because it did not relate to the current charge of possession with intent to distribute. For support, he cites State v. Quest, 00-205, p. 19 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866:

Intent is an essential element of the crime of possession with intent to distribute heroin. Previous attempts to distribute may be considered in establishing intent. State v. White, 98-91 (La.App. 5th Cir.6/30/98), 715 So.2d 714, 717, writ denied, 98-2043 (La.11/25/98), 729 So.2d 577.
In [State v.] Johnson, [98-604 (La.App. 5th Cir.1999), 728 So.2d 901, writ denied, 99-0624 (La.6/25/99), 745 So.2d 1187,] we held that evidence of a defendant’s prior conviction for distribution of cocaine had independent relevance because it satisfied an element of the crime of unlawful possession of a firearm. In this case, the Defendant’s admission that he sold drugs in the past has independent relevance in satisfying the intent element of the crime of possession with intent to distribute heroin.
The part of the Defendant’s statement in which he admitted to using■ heroin does not appear to have any relevance other than to show his “bad character.” The actual use of heroin does not satisfy or relate to any element of the crime of possession with intent to distribute heroin. Therefore, that portion of the Defendant’s statement should have been excised. However, the admission is subject to the harmless error rule. State v. Johnson, 728 So.2d at 911. The analysis for determining harmless error is whether the verdict actually rendered in this case was surely unattributable to the error. Id.

The State argues the other crimes evidence was relevant to help prove guilty knowledge, as Defendant argued in the case sub judice that the State failed to prove he knew the marijuana was in the truck. The lower court reasoned:

I think this particular case is distinguishable from the State versus Quest case that defense counsel has cited and — and—to the extent that the Quest case was an attempt to use an admission by the defendant that he was a drug user or user of heroin.
|1TIn this particular case, that is not the evidence. The evidence is that the defendant possessed marijuana at a time closely in proximity to the arrest that — • that is the subject of this particular case before us today.
To accept the defense argument would essentially exclude any evidence of a prior possession of a drug by a person who subsequently is arrested and on trial for possession of that drug with intent to distribute. And I don’t believe that that was the intent of the Quest case to go that far. I think it was — in my reading, it — it intended simply to avoid the evidence of use by the defendant because use had no other relevance "other than to show that the defendant was a bad person; whereas, in this particular case, the relevance is to show knowledge of — on the part of the defendant that he knew what marijuana was.
So the Court is going to allow the introduction of the other crimes evidence, and that being the arrest on January 25 of 2002 of the defendant, William Cash, in South Carolina for the charge of possession of marijuana.
The Court is going to, however, restrict any testimony by the State’s witnesses to that particular crime or other act and will not allow testimony of the— of any other crimes or any other acts by the defendant. And I’m particularly addressing the defense’s concern that there may be some evidence of the purpose for execution or having the search warrant and that is not going to be admitted. It will not be allowed.

We agree with the lower court and its points are well-founded. Also, Defendant in the present case contested the possession element of the crime at issue; thus, the evidence regarding the South Carolina arrest had clear relevance in showing “knowledge” of marijuana and how it may be packed and shipped, as well as “absence of mistake or accident” in transporting the marijuana.

Next, we will examine Defendant’s separately-captioned fifth and sixth issues, which both relate to the notice the State provided regarding the other crimes evidence. First, Defendant argues the State did not provide a sufficient description of the evidence to be introduced. He cites State v. McArthur, 97-2918, pp. 1-2 (La.10/20/98), 719 So.2d 1037, 1039-40, (emphasis added):

| ^Finally, the requirements set forth in State v. Prieur, 277 So.2d 126 (La.1973) must be met. Thereunder, the state must, within a reasonable time before trial, provide written notice of its intent to use other acts or crimes evidence and describe these acts in sufficient detail. The state must show the evidence is neither repetitive nor cumulative, and is not being introduced to show the defendant is of bad character. Further, the court must, at the request of the defendant, offer a limiting instruction to the jury at the time the evidence is introduced. The court must also charge the jury at the close of the trial that the other crimes evidence serves a limited purpose and that the defendant cannot be convicted for any crime other than the one charged or any offense responsive to it.

Regarding Defendant’s- contention that the State’s notice was insufficient, we observe the following language from the State’s notice:

1.
The State anticipates that the following individual will testify against William Cash in his trial, namely Officer William Gary, a police officer from South Carolina.
2.
State intends to introduce evidence through the testimony of said witnesses [sic] that on or about January of 2002, the defendant William Cash was arrested and charged in South Carolina with possession of marijuana.
3.
The State asserts that this other crimes evidence is admissible pursuant to law to show motive, opportunity, intent, preparation, plan, knowledge, identity, and/or absence of mistake or accident pursuant to Louisiana Code of Evidence Article 404(B).
WHEREFORE, the State of Louisiana prays that a prieur [sic] hearing be held on this matter prior to the defendant’s trial to determine the admissibility of this other crimes evidence.

The trial court conducted a Prieur hearing, and, after taking testimony, made the following observations:

113Well, the language in 404(B) of the evidence code requires reasonable notice, and after reviewing the motion of the State, I-I find that they have provided reasonable notice of the particularity of the crime that they wish to — to introduce.

And then subsequently, the trial court stated:

All right. The Court has listened to the evidence and the argument of counsel. I’ve reviewed the memorandums that’s been submitted as well as the motion for the hearing. As I’ve indicated earlier, I found the — the notice or the motion did provide adequate notice of the — other crimes or other acts that the State intended to introduce, and I also find that the — the motion sets forth with sufficient specificity the purpose for which the State intends to introduce those items....

At trial, the State limited its introduction of other crimes evidence to the fact of the arrest. Thus, the pretrial notice provided by the State specified exactly the evidence that was eventually introduced at trial. Therefore, Defendant’s argument on this issue fails on its facts.

The other notice-related issue raised by Defendant is his contention that the State’s notice did not properly particularize the reason why the other crimes evidence was admissible. In its written notice, the State listed all the statutory exceptions that apply under La.Code Evid. art. 404 (motive, opportunity, intent, preparation, plan, knowledge, identity, and/or absence of mistake or accident). We have found no case on point, as prior reported cases that include similar arguments have been disposed of on other grounds. However, we note that even when Prieur-rel&t-ed error occurs, reversal is not automatic. If a defendant is not prejudiced by the error, then reversal is not required. In other words, the error may be harmless, although some cases focus upon prejudice and do not use harmless-error language.

|uIn the present case, the trial court conducted a Prieur hearing before trial. The present argument was asserted by Defendant at that hearing, discussed and ruled upon by the trial court, although our review indicates the State never specified which exception it was applying. However, because we have found that the South Carolina arrest was relevant for the reasons stated above, Defendant cannot claim undue prejudice from the admission of the evidence at trial. Any error committed by the trial court in failing to require and name a specific exception would, therefore, be harmless. Because we have found that the Quest case is distinguishable from the case at bar for the reasons expressed by the trial court, we hold that the other crimes evidence was properly admitted, and that this assignment of error lacks merit.

OTHER CRIMES-JURY INSTRUCTIONS

In this assignment of error, Defendant argues that the trial court erred by instructing the jury that the standard of proof for “other crimes evidence” is preponderance of the evidence. Defendant contends the clear and convincing standard should apply. We disagree. The trial court’s instruction regarding the standard of proof was correct in regard to admissibility, pursuant to La.Code Evid. art. 1104 and State v. Crawford, 95-1352 (La.App. 3 Cir. 4/3/96), 672 So.2d 197, writ denied, 96-1126 (La.10/4/96), 679 So.2d 1379, insofar as the standard of proof requirement for Prieur hearings. How ever, it is not clear if the standard for admissibility of other crimes evidence at trial is the same as the standard for the Prieur hearing.

| ^Accordingly, we shall begin our analysis of this issue with Judge Katz’s dissent in State v. Pollard, 98-1376 (La.App. 4 Cir. 2/9/00), 760 So.2d 362, 373 (emphasis added), where he observed:

The court in State v. Pardon, 97-248 (La.App. 5 Cir. 10/15/97), 703 So.2d 50, 57, writ denied, 97-2892 (La.3/20/98, 715 So.2d 1207), stated:
La.Code Evid. Art. 1104, added by Acts 1994, 3rd Ex.Sess. No. 51, § 2, changed the burden of proof. It provides: “The burden of proof in a pretrial hearing held in accordance with State v. Prieur, 277 So.2d 126 (La.1973), shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404.” That burden of proof was enunciated in Huddleston v. U.S., 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), as follows:
“We conclude that [Rule 404(b) ] evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.* * * The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence, (citations omitted)” [sic]
The court in Pardon then concluded: “... we find the State carried its burden of proving the prior bad acts by a preponderance of the evidence.” Pardon, supra, at p. 58. However, footnote # 1 in Pardon states: “Because La.Code Evid. Art. 1104 refers to the burden of proof at a hearing only, the impact of this article on the burden of proof at trial is unknown at this point.” See Pugh, Force, Rault & Triche, “Handbook on Louisiana Evidence Law”.

Our review of the jurisprudence since Pollard reveals the impact of Article 1104 on the burden of proof at trial remains unresolved in Louisiana. For this reason, and because the relevant state law apparently requires that we follow federal law in determining the burden of proof, we shall refer to the Supreme Court of the United States. We have noted that the Supreme Court, in discussing the standard for | ^admissibility of other crimes evidence in Huddleston v. U.S., 485 U.S. 681, 690, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771, (1988) (emphasis added), stated that the court should decide “whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence.”

This language suggests the Huddleston court contemplated that juries would employ the preponderance standard in their assessments of other crimes evidence. Further, the Supreme Court’s language in Dowling v. U.S., 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), a collateral estoppel case, appears to take the same view. In explaining why collateral estop-pel did not apply, the Supreme Court noted:

‘[Similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.’ Because a jury might reasonably conclude that [defendant] was the masked man who entered [victim’s] home, even if it did not believe beyond a reasonable doubt that [defendant] committed the crimes charged at the first trial ... the Double Jeopardy Clause is inapposite.

Doioling, 493 U.S. at 348-49, 110 S.Ct. at 672, citing Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501 (emphasis added).

Therefore, following the Huddle-ston and Dowling cases, we find that the preponderance of evidence standard, rather than a clear and convincing standard of proof, shall apply to both pretrial and trial admissibility involving other crimes evidence. Thus, the trial court did not err in its instruction. Defendant’s fourth assignment of error lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed. However, we remand the case to the trial court for a proper disposition of count two, possession of methamphetamine, of the bill of information.

|17AFFIRMED WITH INSTRUCTIONS.

      . An unrelated portion of Wessinger has been suspended by statute. State v: Gomez, 00-0566 (La. 1/17/01), 778 So.2d 549.