author: I, PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Christopher VAN SALES, Appellant.
    No. 38,138-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, Melissa Sugar, Dale Montgomery, II, Assistant District Attorneys, for Appellee.
    ■ Before CARAWAY, PEATROSS & MOORE, JJ.
   I, PEATROSS, J.

Defendant, Christopher Van Sales, and David Matthew Waters were charged with the second degree murder of their friend, Greg Farmer, in violation of La. R.S. 14:30.1. Defendant pled not guilty and a unanimous jury subsequently convicted him as charged. Defendant was sentenced to a term of life imprisonment without benefits. Defendant now appeals, arguing that the evidence was insufficient to sustain the conviction and that the trial court erred' in denying defense counsel’s challenge for cause of one of the prospective jurors. For the reasons stated herein, Defendant’s conviction is affirmed.

FACTS

Evidence adduced at trial revealed that, on the evening of January 11, 2001, Defendant left the home he shared with his girlfriend, Angela Gilmore, at about 8:00 p.m. in Gilmore’s 2000 Cougar automobile. He was wearing yellow wind pants, a shirt and shoes at the time. Defendant told Gilmore that he was going to “hang out” with his friends, the victim, Gregory Farmer, and/or Waters (also known as “Snotty”). He did not return home again until 1:00 or 2:00 the next morning, and he was wearing different clothes — jeans and a different shirt. Gilmore never saw the yellow pants again.

Michael Gorman testified that, on January 11, 2001, he and Richard Hollis, Waters and Defendant were at Waters’ trailer home in Haughton “doing drugs” — using the methamphetamine that Hollis had cooked. Gorman mentioned to the others that he thought that Farmer was a “snitch,” citing discovery documents which he claimed showed that Farmer was a | gconfidential informant for the police in a criminal case pending against him. Waters and Defendant decided to go looking for Farmer; but, before they left the trailer, at Defendant’s request, Hollis gave him a stainless steel knife with a four-inch blade.

At about 8:00 or 8:30 that evening, Farmer visited his best friend, Casey Crews, at her apartment in Bossier City. Farmer and Crews had made tentative plans to go out that night; but, instead, Farmer, Crews and Crews’ boyfriend “hung out” at her apartment for a while. Farmer left Crews’ apartment for a short while to visit a friend and, while he was gone, Waters telephoned Crews’ home looking for Farmer. When Farmer returned to Crews’ apartment, he attempted to telephone Waters. Farmer and Crews noted at the time that it was “weird” that Defendant was with Waters because Defendant was not old enough to “go out.”

Later, Waters and Defendant arrived at Crews’ apartment looking for Farmer. They took Farmer into the bathroom to talk, apparently confronting him about Gorman’s accusation that he was a snitch. After about five minutes, Waters, Defendant and Farmer came out of the bathroom; and, according to the testimony of Crews and Waters, it was obvious that Farmer was upset — he was hitting his fists together and telling Waters and Defendant, “Take me to him.” Farmer further stated that he did not have anything to prove, but he still wanted to go with Waters and Defendant to see Gorman. The three left Crews’ apartment shortly thereafter; this was the last time Crews saw the victim alive. Farmer did, however, telephone | ¡¡Crews later that night to tell her that, if anything happened to him, he was at the end of Busby Road. Crews testified that Farmer sounded worried during the call.

Back at Waters’ trailer, Gorman heard Hollis answer a telephone call. After hanging up the telephone, Hollis told Gor-man that Defendant, Waters and Farmer were on their way to the end of Busby Road (near the trailer), and they wanted Gorman to meet them down there so Gor-man and Farmer could fight. Gorman declined to join them, saying that he wanted nothing to do with it.

Waters testified that he was at his trailer with Hollis, Gorman and Defendant on the evening of January 11, 2001, getting ready to go out to a club with Farmer. Waters had been good friends with Farmer and his family for years. Waters had also been friends with Defendant for a long time. Waters testified that he let Hollis live in his trailer so Hollis could supply Waters’ drug habit. There was a methamphetamine lab set up in the rear bedroom of Waters’ trailer and Hollis cooked the drug. Each of the men at Waters’ trailer that evening admitted that they were doing drugs that night. At trial, Waters corroborated Gorman’s testimony regarding Gorman’s statement that Farmer was a snitch. . When Waters left the trailer to pick up Farmer to go out, Defendant asked if he could go with him to confront Farmer. Defendant drove Gilmore’s car and Waters rode with him. Waters related at trial how he and Defendant found the victim at Crews’ apartment and confronted him in the bathroom. As previously stated, Farmer denied the accusation to Waters and Defendant and said he wanted to confront RGorman. Not wanting a fight at the trailer, Waters and Defendant left Farmer at the end of Busby Road and returned to Waters’ trailer to tell Gorman that Farmer wanted to confront him. A few minutes later, according to Waters, Farmer walked up to Waters’ trailer and banged on the front door trying to get Gorman to come out, but Gorman refused. As Waters was trying to calm Farmer down on the front porch, Farmer told Waters that he did not'want to go out anymore and Waters asked Defendant to take Farmer home. Waters rode with them in Gilmore’s Cougar.

Instead of taking Farmer home, however, Defendant drove to the end of Little League Road and stopped the car. Defendant explained that he wanted to show them a shortcut to a house that he and Waters had talked about robbing. The three men got out of the car, but Defendant told Waters he wanted to talk to Farmer alone and asked Waters to leave. Waters then drove the Cougar to a Circle K store in Haughton and bought some beer. After a short while, Waters drove back to pick up Defendant and Farmer. Waters did not see anyone as he stopped the car, so he got out of the car, urinated, and, as he was returning to the car, saw one person running toward the car. Defendant, who was alone, jumped into the passenger side of the car. From the interi- or car light, Waters saw that Defendant had blood all over him and had a knife in his hand. Waters testified that he could smell the blood and kept asking Defendant where Farmer was' and what had happened. Defendant told Waters that he “had to do it” and yelled at him to “just drive.” Waters, who was in shock and who was now afraid of Defendant, drove back to the trailer. As Waters questioned Defendant about | Bwhat had happenéd, Defendant answered, “Snotty, just calm down. I did this before I know (sic) what I’m doing. Just chill out.”

At .the, trailer,,. Defendant showered, changed clothes and put the bloody clothes (including some yellow wind pants) into a trash bag. Defendant wore Waters’ blue jeans, white tee shirt, a flannel shirt and some black Avirex tennis shoes. Waters gave Defendant a can of lighter fluid and the trash bag,, and he and Defendant left the trailer in Waters’ car. Waters drove Defendant to Bellevue Road and left him there for about 30 minutes. After Waters returned for Defendant and the two got back to Waters’ trailer, Defendant left in Gilmore’s Cougar to go home.

On the morning of January 12, 2001, Farmer’s body was discovered by a walker off Little League Road in Bossier Parish. Farmer’s leather jacket was found with a puncture-type tear near the zipper area and there was a pool of blood on the edge of the blacktop road. The body was located between two logs some distance away. Between the pool of blood and the logs was more blood and drag marks. Farmer was found in the fetal position, with his pants pulled down to his ankles apparently from being dragged by the arms through the mud and brush. Several pieces of physical evidence were removed from the scene, including cigarette butts, a beer can and a knife that was found in the middle of the road about 100 feet away from the scene.

A subsequent autopsy revealed that Farmer died of multiple penetrating stab and incised wounds penetrating the head, neck and torso, resulting in massive blood loss. A total of 50 sharp force wounds were on | fihis body, including at least one incised wound. The primary series was the sharp force wounds to the neck and head, including 21 total stab and incised wounds. These wounds included one involving the brain, a deep incised wound of the neck which transected the right external jugular vein and a stab wound to the throat which transected the left internal jugular vein. The primary series also included sharp force wounds of the torso, including five stab wounds involving the lung, mesenteric artery, retroperitoneum and a large incised wound to the central chest. There were 23 total small shallow incised wounds of the central chest. The body also had a sharp force stab wound to the back of the left hand. Blunt force injuries included multiple contusions, abrasions and small lacerations of the face, and multiple shallow vertically oriented parallel abrasions consistent with movement of the body over an abrasive surface.

The investigation led to the questioning and arrests of Waters and Defendant. Waters gave a statement to police about what transpired. Waters’ statement to police that he drove to the Circle K store in Haughton and bought some beer was corroborated by the store surveillance camera and the store clerk. After obtaining a search warrant for Waters’ trailer, investigators discovered a “meth” lab in the rear bedroom and seized other evidence from the automobile.

The investigation also revealed a “burn scene” located approximately 100 feet into the woods off Bellevue Road. The residue from the burn indicated that clothing, including shoes, had recently been burnt. Several |7foot impressions were discovered at the burn scene and castings were made thereof. The eastings matched the shoes that Defendant was wearing at the time of his arrest.

DNA analysis conducted by the Northwest Louisiana Crime Lab of blood samples removed from the passenger seat of Gilmore’s Cougar automobile were matched to the victim. The knife recovered from near the crime scene, however, did not contain any of the victim’s DNA. Also, Hollis testified that the knife found at the scene was not the same knife that he gave to Defendant that night.

While incarcerated, Defendant told his cellmate, Michael Knight, the gruesome story of how he and his “fall partner” were involved in the “homicide” of the victim, Greg Farmer. Defendant told Knight that they had received a discovery package that included Farmer’s name as an informant in some drug arrests. Defendant related to Knight that they planned to pick up Farmer, carry him to a secluded place and beat him up because Farmer was a snitch and “deserved to die.” Defendant described to Knight how he and his fall partner drove Farmer to a dead-end road and he instructed his fall partner to leave in the car. At this point, Defendant related that he and Farmer got into an argument over Farmer being an informant and “he just snapped,” lashed out and stabbed/sliced Farmer in the throat. Defendant admitted to Knight that he slashed or stabbed Farmer in the throat multiple times and that Farmer was gurgling blood; so, in an attempt to put his friend out of his suffering, Defendant attempted to stab Farmer in the chest and stomped his head. Defendant stated that, when | ¡¡Farmer stopped gurgling, he dragged his body into a cut-over area and attempted to cover him with limbs. Defendant also told Knight that a knife was found at the scene, but it was not the knife he used. Defendant-said that the knife he used would never be found because it was at the bottom of the river. He also told Knight how his “fall partner” took him to change clothes and then to the woods to burn the clothes he wore during the homicide. Knight testified at trial regarding this story told to him by Defendant and noted that Defendant did not appear to feel badly about what he had done to Farmer, but felt badly for Farmer’s family.

As previously stated, after a trial by jury, Defendant was unanimously convicted as charged. Defendant’s motions for new trial and post-verdict judgment of acquittal were heard and denied and he was ultimately sentenced- to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. This appeal ensued.

DISCUSSION

On appeal, Defendant raises the following two assignments of error (verbatim):

1. The State failed to present sufficient evidence to support the verdict, a conviction of second degree murder.
2. The Trial Court erred by failing to grant Defense (sic) challenge for cause of prospective Juror Arthur Berquist.

Sufficiency of evidence

Defendant argues that, of the 18 witnesses who testified for the State, none were eyewitnesses to .the incident. He contends that, although there was evidence that the parties had been arguing and were upset on the evening of January 11, 2001, there was no evidence that he intended to kill 1 flor inflict great bodily- harm upon Farmer before the two'were alone on Little League Road.

The State asserts that the sequence of events and circumstances unique to this case point to no other rational conclusion than Defendant’s guilt of second degree murder. It asserts that the defense has presented no reasonable hypothesis of innocence.

The question of sufficiency of evidence was properly raised by a motion for post-verdict judgment of acquittal. See State v. Howard, 31,807 (La.App.2d Cir.8/18/99), 746 So.2d 49, writ denied, 99-2960 (La.5/5/00), 760 So.2d 1190. 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. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in eases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in

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

Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La.1985); State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991), writ denied, 597 So.2d 1027 (La.1992).

In all cases where an essential element of the crime is not proven by direct evidence, La. R.S. 15:438 applies. As an evidentiary rule, the statute restrains the fact finder in the first instance, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Shapiro, 431 So.2d 372 (La.1982); State v. Ham-montree, 363 So.2d 1364 (La.1978).

InThe court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994); State v. Owens, supra.

Second-degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. State v. Ellis, 28,282 (La.App.2d Cir.6/26/96), 677 So.2d 617, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521.

Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Ellis, supra. As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Kahey, 436 So.2d 475 (La.1983); State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020; State v. Ellis, supra; State v. Knowles, 598 So.2d 430 (La.App. 2d Cir.1992). The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Knowles, supra.

In State v. Mackens, 35,350 (La.App.2d Cir.12/28/01), 803 So.2d 454, writ denied, 02-0413 (La.1/24/03), 836 So.2d 37, cited in State v. Miller, 36,003 (La.App.2d Cir.7/25/02), 824 So.2d 1208, writ denied, 02-2480 (La.6/27/03), 847 So.2d 1253, this court found that it was reasonable for the jury to conclude that the defendant had the specific intent to kill or cause great bodily harm to support the conviction of second degree murder, given the number and nature of the victim’s stab wounds.

Manslaughter is a lesser included offense of second degree murder. La. C. Gr. P. art. 814 A(3). A homicide which would otherwise be second degree murder is manslaughter when it is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31. “Sudden passion” or “heat of blood” are not elements of the crime of manslaughter, but are mitigating factors in the nature of a defense which exhibit a degree of culpability less than that present when a homicide is committed without them. State v. Scott, 31,379 (La.App.2d Cir.10/28/98), 720 So.2d 415, writ denied, 99-0170 (La.5/14/99), 741 So.2d 664, reconsideration denied, 99-0170 (La.9/3/99), 747 So.2d 529; State v. Steivart, 26,168 (La.App.2d Cir.8/17/94), 641 So.2d 1086, writ denied, 94-2363 (La.1/13/95), 648 So.2d 1337. Also, State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993).

A defendant is required to prove by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” for a verdict of manslaughter to be appropriate. State v. Lombard, 486 So.2d 106 (La]131986);. State v. Robinson, 32,794 (La.App.2d Cir.3/1/00), 754 So.2d 311, writ denied, 00-0989 (La.3/23/01), 787 So.2d 1008, citing State v. McCray, supra. In reviewing a defendant’s claim that he has met that burden, the appellate court must determine whether a rational trier of fact, upon reviewing the evidence in the light most favorable to the prosecution, could have found that these mitigating factors had not been established by- a preponderance of the evidence. State v. Lombard, supra; State v. Robinson, supra; State v. Lewis, 28,973 (La.App;2d Cir.12/11/96), 685 So.2d 1130, writ denied, 97-0122 (La.5/16/97), 693 So.2d 797. See also State v. Scott, supra.

When the evidence does not support a conviction of the crime charged, but supports a conviction on a lesser and included offense, this court is authorized to enter a judgment of guilty of the lesser and included offense. State v. Maxie, 33,-982 (La.App.2d Cir.11/1/00), 773 So.2d 198.

In the case sub judice, we find that the facts and circumstances presented at trial in the form of witness testimony and physical evidence were such that the existence of the main fact, that Defendant had the requisite specific intent to kill or to inflict great bodily harm, may be inferred according to reason and common experience. See State v. Lilly, supra; State v. Turner, supra. Defendant stabbed and/or cut Farmer 50 times. Given the number and nature of the victim’s stab wounds, we find it was reasonable for the trier of fact to determine that Defendant had the specific intent to kill or inflict great bodily harm upon this victim. See State v. Miller, supra; State v. Mackens, supra. This finding is bolstered by | uDefendant’s cellmate’s testimony, which indicated that Defendant and Waters planned to take the victim to a secluded place and beat him up because the victim was a snitch and “deserved to die.” Further, the fact that Defendant armed himself with a knife before going to confront Farmer supports a finding of specific intent as well. After evaluating the evidence in the light most favorable to the prosecution, we find sufficient circumstantial evidence to support the jury’s inference that Defendant had the requisite specific intent for a conviction of second degree murder.

We further find that, when viewed in the light most favorable to the prosecution, the evidence does not support that the possible alternative hypothesis (that the defendant proved mitigation sufficient to entitle him to a verdict of manslaughter) is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. State v. Davis, supra; State v. Owens, supra. Defendant argues that “tempers were flying” that evening and emphasizes that Farmer was very angry and ready to fight over being accused of being a snitch. He uses this fact to argue that he and Farmer got into a fight and he killed Farmer in a “rage” of sudden passion such that his conviction should be of manslaughter rather than second degree murder. On this record, we cannot say that the jury was unreasonable in concluding that Defendant did not prove these mitigating factors by a preponderance of the evidence. This assignment of error is without merit.

11fiChallenge for cause to juror Berquist

During voir dire, prospective juror Arthur Berquist revealed that one of the State’s potential witnesses, Gorman, was a neighbor of his who had worked for Berquist when Gorman was a child. When the district attorney asked Berquist if he could give the State a fair trial based on what he knew about Gorman, Berquist responded:

BERQUIST: Well, on one witness?
DA: No, there’ll be several witnesses.
BERQUIST: Yeah, I mean, I might throw out his testimony.
DA: Okay. Would you throw out his testimony just because of what you know about him in the past or would you be willing to listen to him up here and decide based upon his demeanor and how he acts and whether his testimony is corroborated by others’ testimony, would you base it on what you hear today or would you base it on what you know about him?
BERQUIST: Well, I’ve known him for a long time. That’s hard to say.
DA: Okay. I appreciate your honesty. I’m going to assume that what you’ve said (sic) if you don’t think you can judge his credibility and be fair.
BERQUIST: That’s true.
DA: Let me ask you one more thing. What if Michael Gorman’s testimony didn’t bear on the key issue at trial, if it was just one of the facts leading up to the trial? Would you disregard what he said? Are you telling me you’re going to disregard what he says?
BERQUIST: Well, I hate to say it that way but probably.

The district attorney also questioned the prospective jurors regarding the degree of proof required for a conviction and explained that there is no possible way she could prove this case beyond all doubt:

DA: ... Mr. Berquist, do you agree that a case has to be proven beyond all doubt?
|u;BERQUIST: No, ma’am.
DA: Do you see the difference in why I could not prove to you beyond all doubt?
BERQUIST: Yes, ma’am.

The district attorney later asked all the prospective jurors if they had a reason why they cannot serve:

DA: Mr. Berquist, besides what we’ve been through?
BERQUIST: No, I do not.

During further voir dire examination by the district attorney, Berquist stated that he had no problems with the legal system, plea bargains or testimony from someone who had made a plea bargain and then testified for the State.

Defense counsel, began her voir dire by asking the prospective jurors to tell something about themselves: '

BERQUIST: Okay, I’m Wally Bérquist. I’m 39 plus. Thank God I’ve got a forgiving God and forgiving children. I’ve been married, divorced and recently remarried. Job relocation. I used to be a horse trainer for 25 years. Now I’m a nurse. I love boating.

Also, although Berquist related that he had been a crime victim years ago and had a relative who was in jail, neither fact would cause him to be biased toward the State or the defense. Defense ’ counsel asked Berquist if he had heard anything about the case and Berquist responded that he had read about the case in the newspaper a long time ago and again this past weekend. When defense counsel asked Berquist if he had formed any type of opinion, Berquist answered:

BERQUIST: Not really.
DEFENSE COUNSEL: Okay. Do you feel like that because you have.read something about the case.in the paper that that (sic) would |i7cause you maybe not to be quite as fair and impartial as you would had you not read that in the paper?
BERQUIST: Well, I mean, to be truthful, it does make you a little biased but, you know, you try to listen to the stuff that’s presented to you and, you know, try to weigh the pros and the cons.

When asked by defense counsel whether he thought he would make a good juror, Berquist responded:

BERQUIST: Well, if -1 was sitting up there in that same spot, I’d want my peers to be judging me, and I’d want them to, .you know, be the same, you know, don’t be judgmental.
DEFENSE COUNSEL: Do you think you’d be able to listen to all of the evidence in making your determina,tion?
BERQUIST': Yes, ma’am.

Defense counsel asked Berquist if he had children, and whether he ever had to determine whether his children were telling the truth. Berquist replied affirmatively, and stated , that he could determine whether they were telling the truth by body language and other factors. The questioning continued:

DEFENSE COUNSEL: Do you think that when you’re listening to the testimony that you’ll be able to take into account any motives or anything like that when you’re listening to the witness’s testifying?
BERQUIST: Yes, ma’am.
DEFENSE COUNSEL: Do you think it’s better to lock up an innocent man ■ or to let a guilty man go free?
BERQUIST: Well, this is about going to a gut feeling, whatever I feel my gut tells me, that’s the way I’m going to go, |1syou know. I don’t want a guilty man out on the street but I sure don’t want an innocent man in jail, either.

Berquist asked defense counsel several questions regarding her previously related definition of manslaughter. He also stated that it would appear that, if the defense had done its “homework,” it would have something to present to show why the defendant is innocent. Defense counsel told Berquist that much of the defense’s information could be brought out on cross-examination of the state’s witnesses. Ber-quist indicated that he understood.

Later during the voir dire examination, Berquist asked another question of defense counsel:

BERQUIST: The last thing he brought up that probably would weigh heavy on my mind — say this is not a cut and dry case and the defendant’s life hinges on everything that was brought up, and it’s a sway right here, it could go either way, if he didn’t get up and testify, I think it could sway me.
DEFENSE COUNSEL: Okay.
BERQUIST: You know, if it’s a very close case.
DEFENSE COUNSEL: Okay. So you think you might hold — you would hold it against—
BERQUIST: I think I could. I mean, he’d be the one to be able, you know, probably sway me one way or the other, you know. So—
DEFENSE COUNSEL: Okay. I appreciate your honesty with that. Does anybody else — did anybody else think of anything? Thank y’all.

After a sidebar conference, the district attorney and defense counsel exercised their peremptory challenges. Defense counsel challenged Berquist for cause, noting that he said he would have trouble if the 119defendant did not take the stand in a close case and would, therefore, have trouble following the law. Other reasons advanced in support of the challenge were that Berquist was biased because of media coverage and he knew one of the witnesses and, therefore, he may have already formed an opinion. The trial court permitted follow-up questions by both sides. Berquist clarified that his reading of a recent newspaper article about the case would not cause him to be less fair and impartial. Questioning by defense counsel regarding a defendant’s right not to testify followed:

DEFENSE COUNSEL: The other issue I need to ask you about is I think when I was about to sit down you said you had something to add, that in a close case that if Mr. Sales did not take the stand that you might hold it against him. Could you elaborate a little bit on that?
BERQUIST: Well, I mean, if this is not a cut and dry case and it’s very close and his life is hanging in the balance, I’d expect him to get up and say something on his behalf.
DEFENSE COUNSEL: If Judge Stin-son instructs you that you’re not to hold that against Mr. Sales, that he has a fifth amendment right not to testify, do you think that you would be able to follow the law?
BERQUIST: I don’t you know, I’m a Christian and I don’t judge people and I hope I don’t, you know, in those aspects but, you know, in the back of your mind you’re always wondering why didn’t he get up and testify on his own behalf. And that’s the only thing that — you know, that’s why I came out and brought it up.
DEFENSE COUNSEL: Okay, Like I say, we’re not trying to — •
BERQUIST: Yes, ma’am, I understand.
DEFENSE COUNSEL: So even with the judge’s instructions, it still may cause you to hold it against Mr. Sales at that point in time?
BERQUIST: I’m- — I pray to God that I don’t do it that way, you know.
* * *
BERQUIST: I just look at it like if I was in that position and it was a close case, I’d definitely want to get up and testify on my behalf. And I guess that’s the way I’m looking at it, you know. I’m trying to put myself in his shoes like what if, you know. And I understand pleading the fifth, I understand that. But to me if my life’s in jeopardy, I’d definitely want to be up there, you know, showing my point of view.
DEFENSE COUNSEL: Okay. Sitting as a juror, not being in Mr. Sales shoes but sitting as a juror, do you think that you would hold it against him? And there’s no right or wrong answer, Mr. Berquist.
BERQUIST: I know. I mean, I’m brought up a Christian and all that, but my gut feeling’s telling me something isn’t right if he doesn’t get up ■ and testify if it’s a close case.

During questioning by the district attorney, Berquist reiterated that he would base his verdict solely on the evidence and would be able to set aside any opinion he may have formed after reading the newspaper article. The district attorney then went into Berquist’s problem with a defendant’s failure to testify in a close case. She explained that there is a multitude of reasons why a defendant might not testify and gave the example of persons who stutter and persons who are very nervous and cannot handle talking to people and making eye contact. The questioning ended with the following colloquy:

DA: ... But all I’m asking is can you follow the law and when the judge instructs you (sic) | ^you are not to use that against him in making your decision, will you do that?
BERQUIST: Okay. I can do that.
DA: Thank you.
BERQUIST: I understand it now.
DA: Thanks.

Defense counsel reurged its challenge for cause, which was denied by the trial court. The record confirms that Defendant used all of his peremptory challenges. Defendant now argues that a thorough review of the voir dire of Berquist reveals an inability to be fair and impartial. He urges that Berquist’s candid responses, taken as a whole, reveal facts from which bias, prejudice or inability to render judgment accordingly may be reasonably implied. He contends that Berquist’s inclination to insist that a defendant take the stand raises the question of Berquist’s ability to be fair and impartial.

The State argues that Berquist was “rehabilitated” by subsequent voir dire, which clearly..indicated his ability to follow the law as given by the court. Noting that the trial court was satisfied .that Berquist could render an impartial verdict according to the law and evidence, the State urges that such action was not an abuse of discretion. We agree.

When a defendant uses all of his peremptory challenges, a trial court’s erroneous ruling depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal, of the conviction and sentence. State v. Maxie, 93-2158 (La.4/10/95); 653 So.2d 526; State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278; State v. McIntyre, 365 So.2d 1348 (La.1978). In order for a defendant to prove reversible error warranting reversal of both his 122Conviction and sentence, he must show the following: (1) erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. State v. Hart, 96-0697 (La.3/7/97), 691 So.2d 651, and cases cited therein. See also State v. Divers, 94-0756 (La.9/5/96), 681 So.2d 320,. cert. denied, 520 U.S. 1182, 117 S.Ct. 1461, 137 L.Ed.2d 564 (1997); State v. Lee, 559 So.2d 1310 (La.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991); State v. Richardson, 33,272 (La.App.2d Cir.11/1/00), 779 So.2d 771, writ denied, 00-3295 (La.10/26/01), 799 So.2d 1151.

La. C. Cr. P. art. 797 provides, in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
* * *
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
* * *
(4) The juror will not accept the law as given to him by the court.

A trial court is vested with broad discretion in ruling on challenges for cause, and its ruling will be reversed only when a review of the entire voir dire reveals that the court abused its discretion. State v. Richardson, supra; State v. Ellis, supra, citing State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683. Also see: State v. Brown, 496 So.2d 261 (La.1986); State v. Walker, 577 So.2d 770 (La.App. 2d Cir.1991), writ denied, 581 So.2d 704 (La.1991); State v. Jackson, 548 So.2d 57 (La.App. 3d Cir.1989).

A refusal by a trial judge to excuse a prospective juror on the ground he is not impartial is not an abuse of discretion where, after further inquiry or instruction (frequently called “rehabilitation”), the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Cross, supra; State v. Welcome, 458 So.2d 1235 (La. 1983), cert denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 152 (1985); State v. Richardson, supra; State v. Ellis, supra.

As Chief Justice Calogero stated in State v. Lee, supra:

When a juror expresses a predisposition as to the outcome of a trial [or in this case, as to a particular sentence], a challenge for cause should be granted. Yet, if after subsequent questioning the juror exhibits the ability to disregard previous views and make a decision based on the evidence presented at trial, the challenge is properly denied. When assessing whether a challenge for cause should be granted, the trial judge must look at the juror’s responses during her entire testimony, not just “correct”, isolated answers, or, for that matter, “incorrect”, isolated answers. (Citations omitted.) State v. Richardson, supra.

Although Defendant used all of his peremptory challenges, a review of the entire voir dire of prospective juror Ber-quist supports the trial court’s ruling on the defense’s challenge for cause. See State v. Richardson, supra; State v. Ellis, supra, and cases cited therein. First, regarding the issue of Berquist’s prior association or relationship with State witness Gorman, we find that any error in not excusing Berquist for cause on this ground was harmless. Gorman was not the State’s primary witness and the elements of li^the offense of second degree murder were established through various witnesses other than Gorman. Second, with respect to Berquist’s expressed opinions on a defendant’s decision not to testify in his own behalf, we find no constitutional error. After defense counsel’s objection for cause to Berquist, the trial court allowed both defense counsel and the district attorney to ask follow-up questions of Ber-quist. The district attorney’s “rehabilitation” of Berquist evidenced his eventual understanding of Fifth Amendment concepts and his willingness to apply the law. Specifically, after the district attorney gave Berquist several examples of legitimate reasons why a defendant might not testify on his own behalf, Berquist responded that he “now” understood and could follow the law and the judge’s instructions regarding a defendant’s right not to testify. Third, Berquist clarified that his reading of a recent newspaper article about the case would not cause him to be less fair and impartial. Thus, Ber-quist demonstrated a willingness and ability to decide the case impartially, according to the law and the evidence. We, therefore, find no reversible error in the trial court’s denial of the defense counsel’s challenge for cause to Berquist. This assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the conviction of Defendant, Christopher Van Sales, is affirmed.

AFFIRMED.

      . Gorman admitted at trial that the documents did not contain the victim's name.

      . In exchange for his testimony, Waters was allowed to plead down to Accessory After the Fact.


source: Caselaw Access Project

author: ||WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Manuel ESPEJEL, Appellant.
    No. 38,071-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Carey J. Ellis, III, Rayville, for Appellant.
    Terry R. Reeves, District Attorney, James E. Lewis, Assistant District Attorney, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   ||WILLIAMS, J.

The defendant, Manuel Lee Espejel was charged by an amended bill of information with one count of theft, a violation of LSA-R.S. 14:67, one count of malfeasance in office, a violation of LSA-R.S. 14:134 and one count of possession with intent to distribute a Schedule I narcotic drug, to-wit: marijuana, a violation of LSA-R.S. 40:966. After a jury trial, the defendant was found guilty only of malfeasance in office. The trial court imposed the maximum sentence of five years imprisonment. Defendant’s motion in arrest of judgment and motion for new trial were denied. Defendant appeals his conviction challenging the sufficiency of the evidence presented to support his conviction. For the following reasons, we reverse the conviction and vacate the sentence.

FACTS

The defendant, a former sergeant with the City of Winnfield Police Department, served as the department’s investigator and the custodian of the evidence room from 1998 until 2001. In late December 1999, the defendant was involved with a “drug bust,” which ended in the arrest of one David L. Mangum (“Mangum”). At the time of the arrest, the defendant seized approximately nineteen pounds of marijuana as evidence.

On January 1, 2002, at approximately 9:30 p.m., the former Chief of Police, Gleason Nugent, was informed by part-time Winnfield City Police Officer, Johnny Ray Carpenter, that the marijuana seized from the “drug bust” involving Mangum was missing from the evidence room. On January 2, 2002, the defendant was advised of his Miranda rights and questioned by | ¡¡Chief Nugent about the disappearance of the marijuana seized from Mangum. Initially, the defendant informed Chief Nu-gent that he had burned the marijuana in an incinerator at Kaye’s Food Store in September of 2001 to create more space in the evidence room.

Chief Nugent later received information from Officer Carpenter that the bags that had contained the marijuana were in the trunk of the defendant’s patrol unit. After searching the trunk, Chief Nugent discovered a box that contained five empty brown paper bags with North Louisiana Criminalistic Laboratory evidence tags attached to them. Thereafter, Chief Nugent arrested the defendant and contacted the Louisiana State Police Department to investigate the disappearance of the evidence.

On January 4, 2002, Baxter Welch, a detective with the Louisiana State Police Department assigned to the case, interviewed the defendant. During the initial interview, the defendant informed Detective Welch that he had burned the marijuana in the incinerator at Kaye’s Food Store the day Mangum was arraigned, March 26, 2001. On January 18, 2002, after contacting Detective Welch two days prior, defendant recanted the first version of his story and stated that he had left the marijuana in the trunk of his police unit. Defendant also informed Detective Welch that Officer Carpenter borrowed the police unit to use while he worked at a housing project in Winnfield, Louisiana. Defendant then informed Detective Welch that he discovered that the marijuana was missing when he went to retrieve the evidence from the trunk of the vehicle on the following morning. Defendant, told the detective that he questioned Officer Carpenter about the | ¡¡marijuana's disappearance and did not report the marijuana missing to Chief Nugent because Officer Carpenter said that he would look into the matter. On April 18, 2002, defendant gave a final version of the set of circumstances surrounding the missing marijuana. On that date, the defendant admitted to Winnfield Parish Sheriffs Deputy Charles Martin that he had given the evidence room key to Officer Carpenter, who removed the marijuana and either sold it or had disposed of it in some manner, and that he had received $500 from Officer Carpenter.

After a jury trial, the defendant was found guilty of malfeasance in office. Following a hearing, the trial court denied the defendant’s motions for arrest of judgment and new trial. The trial court imposed a sentence of five years imprisonment. Defendant now appeals his conviction and sentence.

DISCUSSION

In his sole assignment of error, the defendant contends the state failed to present sufficient evidence to support his conviction of malfeasance in office. The defendant urges that in the absence of a specific duty imposed by law to restore evidence to an evidence locker in a timely manner, the defendant cannot be convicted of malfeasance ■ in office.- He argues that although the state introduced portions of the Winnfield City Police Department policy manual as evidence that the defendant committed acts of malfeasance, no claim was made by the state that the policies outlined in the police manual were .statutes or laws.

The defendant contends LSA-R.S. 15:61 does not address the duties |4or obligations of peace officers concerning seized contraband evidence or the failure to restore such evidence to a locker room. He concludes that the state failed to meet its burden of proving each element of the crime charged beyond a reasonable doubt, since the state did not establish that there was a law or statute requiring evidence to be placed into an evidence locker.

The state argues that both the defendant’s oath of office as a police officer and portions of the Winnfield City Police Department’s policy manual placed an affirmative duty on the defendant to return the seized marijuana to the evidence locker.

LSA-R.S. 14:134 provides as follows:

Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to per- . form any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority; to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.
Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars or both.

|sThe provisions of the police department’s policy manual at issue in this prosecution state in pertinent part:

24. B. Creating and Destroying Evidence
No member shall manufacture, create, or destroy evidence of any kind. A court order is necessary for the destruction of any property collected as evidence.
* * * *
E. Confiscated Property
Under no circumstances shall a member of this department neglect to preserve or collect property, MONEY OR OTHER EVIDENCE when that member had the opportunity to do such. No member shall wrongfully use or misappropriate any property, money or articles under his care.
F. Continuity of Evidence
Every member shall make every effort to preserve, the chain of evidence of which he is a part. The chain should be kept to a minimum.

Under Louisiana law, prosecutions for malfeasance of office as defined by LSA-R.S. 14:134(1) and 14:134(2) presuppose the existence of “a statute or provision of the law which delineates an affirmative duty upon the official.” State v. Perez, 464 So.2d 737, 741 (La.1985); State v. Schwehm, 98-1599 (La.3/19/99), 729 So.2d 548. This duty “must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges.” State v. Perez, supra. When a public official takes the oath of office contained in LSA-Const. art. 10, § 30, swearing to uphold the laws of Louisiana, that oath imposes upon him a specific duty not to obstruct or interfere with the execution of those laws. State v. Perez, supra; State v. Authement, 532 So.2d 869 (La.App. 1st Cir.1988).

In Perez, the district court denied a motion to quash a bill of information, which had been substituted for an indictment against the defendants who were the district attorney and a district judge of the 24th Judicial District. The indictment charged both defendants with malfeasance in office and conspiracy to commit malfeasance in discharging a grand jury. On the application of the defendants, the Fourth Circuit Court of Appeal granted writs and reversed the trial court, finding that neither defendant violated any statutory duty required of him by law. State v. Perez, 450 So.2d 1324 (La.App. 4th Cir.1984).

The court of appeal essentially held that on the basis of the evidence produced on the motion to quash, the defendants were not guilty of malfeasance in discharging the grand jury because the evidence showed that the defendants did not misrepresent the facts and that due to outside influences upon the grand jury, there was legal cause for its discharge. Id. With reference to the malfeasance charges against the district attorney in Perez, our Louisiana Supreme Court stated:

Without some provision of law which sets forth what duties the district attorney has in his capacity as legal advisor to the grand jury, we cannot simply conclude after-the-fact what specific things the defendant should have done in that capacity with respect to this additional grand jury.

The requirement that there must be a statute or provision of law which delineates an affirmative duty on the defendant charged with malfeasance was established in State v. Passman, 391 So.2d 1140 (La.1980). In Passman, the Director of the Louisiana Real Estate Commission |7was charged with malfeasance for intentionally issuing licenses without valid testing or without regard to actual test scores of applicants and knowingly falsifying, altering, modifying and/or completing the examinations of applicants in order to insure the issuance or non-issuance of licenses contrary to the requirements of law.

The trial court granted defendant’s motion to quash on the grounds that the indictment failed to charge an offense punishable under a valid statute. Our Louisiana Supreme Court specifically stated that it was not required to decide whether or not an administrative rule could be considered as a provision of law, because the rules presented at trial did not clearly promulgate the duty which the real estate commissioner allegedly violated. As a result, the Court held that the trial court had properly sustained the defendant’s motion to quash the indictment.

In State v. Schwehm, supra, a former Justice of the Peace in St. Tammany Parish was convicted on two counts of malfeasance in office. The First Circuit Court of Appeal reversed the defendant’s conviction for malfeasance in office on the count charging him with failure to remit litter fines to the appropriate governing authority for approximately three years. The lack of any state or local law which specified the time period for remittance of the litter fines by justice of the peace courts, together with the enactments regarding LSA-R.S. 25:1112(A), formed the core of the defense argument at trial. Although the defendant conceded he had failed to remit any of the litter fines as charged in the indictment, he argued against the culpability of that conduct under LSA-R.S. 14:134 based on the lack of an |sexpress statutory deadline. Our Louisiana Supreme Court, however, rejected this argument and reinstated the defendant’s conviction and sentence, finding that his personal use of a portion of the fines violated his legal duty to remit all fine proceeds to the parish. Schwehm, supra.

In the case sub judice, the defendant’s brief tacitly admits and the record shows that the defendant removed the marijuana from the evidence room for transport to the court for Mangum’s arraignment on March 26, 2001 and that defendant failed to preserve the evidence from that date until defendant was arrested for another matter on September 27, 2001. The defendant’s argument that the absence of a specific duty imposed by law to restore evidence to an evidence locker in a timely manner basically obviates any duty he may have had to restore the evidence to the locker is unconvincing under the rationale and holding in Schwehm, supra.

Although the defendant’s brief cites State v. Davis, 93-0599 (La.4/11/94), 634 So.2d 1168, he does not discuss the case. The state correctly interprets the issue presented in Davis. There, a former may- or of Ferriday, Louisiana was charged by grand jury indictment with three counts of malfeasance in office. The evidence presented at trial established that defendant, on his last day in office, had payroll checks issued to himself and several employees who were not to be retained by the incoming administration. The checks included amounts for accrued sick leave and annual leave in excess of the amounts purportedly authorized by the town’s ordinances. After a jury trial,- the defendant was convicted of one count of malfeasance in office.

[flAs it was incumbent upon the state to prove the existence of the ordinance that imposed the alleged duty, the supreme court held that the evidence was insufficient because the prosecutor did not prove that the city had adopted the ordinance concerning vacation and sick leave. There was evidence to show that the ordinance had been discussed by the town aldermen but never voted on or adopted. In Davis, our Louisiana Supreme Court raised this sufficiency of evidence issue on its own since only the minutes of the Board of Alderman meeting were introduced at trial. The defendant’s conviction and sentence were reversed and set aside.

There is language in Davis, however, which indicates that the existence of the ordinance could have been proved by either judicial notice or competent evidence. As shown in Davis, LSA-R.S. 13:3712 governs the authenticity of public records and LSA-C.E..art. 202 establishes the authority of the court to take judicial notice of Louisiana state laws and ordinances.

LSA-R.S.-13:3712 states:

A. Certified copies of books, records, papers or other documents of the state of Louisiana and its departments, boards, and agencies, and of its political subdivisions and their departments, boards, and agencies, and which are made self authenticating under Chapter 9 of the Louisiana Code of Evidence, shall be prima facie proof of the existence and contents of the originals and of any act, transactions or occurrence or event as a memorandum of which said books, records, papers or documents were kept or made.
B. All courts of record in the state shall take judicial cognizance of the municipal ordinances and parochial ordinances which may be enacted by the governing authority of any town, city, municipality, or parish within their respective jurisdictions whenever certified copies of Imsuch ordinances have been •filed with the clerk of said court. The clerk shall.keep a record of such ordinances filed with him. It shall not be necessary to file more than one copy of any ordinance with the clerk in order that judicial cognizance be taken thereof.- Such certified copies may be filed with the various clerks of court either by the proper custodian of the ordinances of respective town', city, municipality or parish, or any lawful officer of the court.
LSÁ-C.E. art. 202 states, in pertinent part:
A. Mandatory. A court, whether requested to do so or not, shall take judicial notice of the laws of the United States, of every state, territory, and other jurisdiction of the United States, and of the ordinances enacted by any political subdivision within the court’s territorial jurisdiction whenever certified copies of the ordinances have been filed with the clerk of that court.
B. Other legal matters. (1) A court shall take judicial notice of the following if a party requests it and provides the court with information needed by it to comply with the request, and may take judicial notice without request of a party of:
* * * *
(c) Ordinances enacted by any political subdivision of the State of Louisiana.

The evidentiary situation in the present case is analogous to that of Davis, in that the state failed to present evidence to prove that the city had actually adopted the police policy manual as a provision of law. Thus, in this case, as in Davis, the state has failed to prove an essential element of the crime of malfeasance in office.

As did the Louisiana Supreme Court in Davis, we have performed our own review of the record to assess the sufficiency of evidence. We conclude that the police policy manual excerpts introduced at trial cannot be considered “a provision of law,” because a certified copy was never offered as evidence of its authenticity and there was no showing that the manual had Inbeen enacted as a city ordinance subject to judicial notice under the provisions set forth in LSA-R.S. 13:3712.

For the above reasons, we must find on this record that the evidence presented by the state is insufficient to support a conviction of malfeasance in office.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence for malfeasance in office are reversed and set aside, and the defendant is ordered discharged on the count of malfeasance in office.

CONVICTION REVERSED AND SENTENCE VACATED.

      . The defendant testified at trial that his legal name is Emmanual Lee Espejel.


author: JjPEATROSS, J.

text:
    George HOOKER, Jr., Plaintiff-Appellee, v. WAL-MART STORES, INC., Defendant-Appellant.
    No. 38,244-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Allen & Gooch by Eric J. Waltner, Lafayette, for Appellant.
    Street & Street by C. Daniel Street, Monroe, for Appellee.
    Before STEWART, GASKINS & PEATROSS, JJ.
   JjPEATROSS, J.

This appeal arises from a workers’ compensation judgment awarding workers’ compensation benefits to the plaintiff, George Hooker, Jr. (“Hooker”). The defendant, Wal-Mart Stores, Inc. (“Wal-Mart”), now appeals the judgment. For the reasons stated herein, we affirm.

FACTS

Hooker commenced work for Wal-Mart as a grocery stocker at a store in Monroe in 1999. In September 2002, he was injured on the job; and, after refusing to return to work during the time his doctor had excused him from work, he was fired by Wal-Mart. In October 2002, Hooker filed a disputed claim for workers’ compensation benefits against Wal-Mart.

Part of Hooker’s job entailed the use of an electric pallet jack to unload groceries from delivery trucks. On September 3, 2002, Hooker was working inside the trailer on one of these trucks when the pallet jack went out of control and caused a number of boxes to fall. This in turn caused the trailer’s rear door to come down and strike Hooker on the head. At the hearing, he testified that the blow “knocked [him] silly,” but did not cause him to lose consciousness. Hooker reported the accident immediately to the market manager, James Tedeton. He stated that he requested medical treatment, but that he was refused; he testified that “they wanted me to wait until the next day.”

The next day, Mr. Tedeton took Hooker to the emergency room at the North Monroe Medical Center. Hospital records from that date reflect that Hooker complained of “neck pain, pain in pace maker area.” Hooker also |2compIained of a headache. The hospital records show that the attending physician diagnosed Hooker with “cervical strain, chest wall strain, minor scalp contusion.” The doctor gave Hooker some medicine for the pain, instructed him to rest that day and to work only light duty for four days and then to see a specialist if he had not improved.

Hooker worked on light duty for several days and then worked for approximately another week on either light or regular duty. The next week Hooker took a week of already-scheduled vacation before seeing a specialist, Dr. Sidney Bailey, on September 17, 2002. After reviewing Hooker’s x-rays and conducting a physical examination, Dr. Bailey diagnosed Hooker with a cervical strain, recommended physical therapy and prescribed DayPro, an anti-inflammatory medication. Hooker made an appointment to see Dr. Bailey again on October 10, 2002. Dr. Bailey also gave Hooker a note stating “George Hooker needs to be off work until 10-7-02.” Hooker took the note to Wal-Mart and gave it to the personnel manager, Sandra Johnson.

Hooker attended several physical therapy sessions and stated that the therapy helped him. He testified that Wal-Mart paid him approximately $59 in workers’ compensation indemnity benefits representing either a day and a fourth or a day and a half of work. On September 20, 2002, Dr. Bailey’s office received a fax from Angie Nichols with Claims Management, Inc. (“CMI”) with reference to Hooker’s claim for compensation. The fax cover letter stated that Hooker had filed a compensation claim with CMI and asked the doctor to complete an attached temporary alternative duty form |sand treatment plan and fax it back to CMI. Dr. Bailey stated that these forms were routinely received in his office. The fax cover letter stated that “Your assistance in this matter will allow the associate to safely recover at work, earn a Ml wage, and continue to receive benefits.” According to Dr. Bailey’s deposition testimony, he noted on the form that Hooker could do light duty work, but could not work on a ladder, reach over his head or work over his shoulders and that he should alternate sitting and standing. Dr. Bailey was not specifically able to explain or articulate what made him change his recommendation from “no work until October 7,” in the doctor’s excuse he gave to Hooker, to light duty work as indicated on the form, without reexamining him.

On September 24, 2002, Dr. Bailey’s office received a second fax, this time from Eloise Leonard, a nurse at Wal-Mart’s third-party compensation administrator, CorVel at CMI. The fax cover letter noted Dr. Bailey’s diagnosis of a cervical sprain/ strain and stated that Wal-Mart could provide the employee with a modified position under any restrictions the doctor outlined. The letter asked, “What harm could come to Mr. Hooker working within restrictions for a cervical sprain?” The letter also asked Dr. Bailey to complete a “work form” outlining specifically the restrictions to be placed on Hooker’s work. On this form, as on the form received on September 20, 2002, Dr. Bailey indicated that Hooker could not 1 ¿work on a ladder, reach over his head or work over his shoulders and that he should alternate sitting and standing. This form, entitled the ‘Wal-mart and Sam’s Club Return to Work Activity Prescription- — Temporary Duty Available,” is in the record. It was signed by Dr. Bailey on October 7, 2002. The form asks Dr. Bailey when Hooker can return to work with restrictions and the answer provided is “now,” without giving a specific date. The form also provides that it would not be known until the next appointment when Hooker could return to work without restrictions.

At his deposition, Dr. Bailey expressed some surprise regarding the September 20, 2002 fax in that he completed the attached form so close to CMI’s original request. Dr. Bailey said that he was usually not so prompt in completing and returning the forms, that it often took a week or two and that for him to quickly complete a form “some level of urgency was demonstrated to me” and that this “would most likely have to be more than a letter, again, or it wouldn’t have been that prompt.” He speculated, but did not know, that someone had called his office regarding the form and he did not know if the information on the forms was ever communicated to Hooker.

On September 25, 2002, the same day Dr. Bailey faxed the first forms back to CMI, Wal-Mart notified Hooker that he was to return to work. Hooker returned to the store and spoke to Wal-Mart employee Mary Edmonson who informed Hooker that Dr. Bailey had sent a fax to Wal-Mart | ¿releasing him to light-duty and that Wal-Mart had a light-duty job for him to do. He testified that he tried to show his note from Dr. Bailey excusing him until October 7, but that no one from Wal-Mart would look at it. He further stated that he did not look at the fax that was sent to Wal-Mart from Dr. Bailey’s office because he had not been back to see Dr. Bailey. Hooker did not return to work at that time.

At some point before October 7, 2002, Hooker was at his cousin’s house when his cousin told him that someone from Wal-Mart had called him. Hooker related at the hearing that his cousin informed him that the Wal-Mart representative had called and left instructions for Hooker to call the store. He testified that the caller told his cousin that Hooker’s doctor had called Wal-Mart and wanted Hooker to come back to work. Hooker stated that he never authorized anyone at Wal-Mart to communicate with his doctor or discuss his medical treatment with his cousin and never received a copy of any correspondence from Wal-Mart to the doctor. In addition, Hooker reiterated that he had not seen the doctor since September 17, 2002.

Hooker testified that he called the store and spoke to a manager, Derek Blue, who offered him a job as a door greeter at his same rate of pay and within the restrictions set by Dr. Bailey. Hooker initially accepted the job, but later rescinded his acceptance because he was afraid that he would be ordered to do some type of work, like lifting something, that he could not do; Hooker stated that this had happened at Wal-Mart in the past and he had [(¡been suspended from work for refusing to follow such an order. He later explained:

Wal-Mart does not believe in light duty. They have you doing any and everything. And earlier I got hurt with the same type of injury back in the summer — the first year I worked there in the summer. And I was on light duty. They made me do things that I wasn’t suppose (sic). I refused to do the things that I wasn’t suppose (sic) to pick up. They suspended me three and a half weeks without pay, and that’s another reason I did not want to go back.

On September 27, 2002, Wal-Mart, through CMI, paid Hooker one payment of $59.68 in indemnity benefits. Instead of reporting to work for the jobs offered to him in September, Hooker waited until October 7, 2002, as specified on his doctor’s excuse, to return to Wal-Mart. When he returned, Wal-Mart fired him because he had not reported to work on the days after the job offers' were made.

On October 8, 2002, Hooker filed a disputed claim for workers’ compensation benefits against Wal-Mart in the Office of Workers’ Compensation. Hooker alleged that he had been temporarily totally disabled in an accident at work and that Wal-Mart had refused to pay the full amount of indemnity benefits owed as well as all medical benefits owed. Hooker sought benefits, penalties and attorney fees.

On October 10, 2002, Hooker kept his appointment with Dr. Bailey. Dr. Bailey noted Hooker’s continued complaints of pain and recommended an additional round of physical therapy to help alleviate stiffness and inflammation in his spine. Dr. Bailey released Hooker to full duty on that |7date. Hooker testified that Wal-Mart refused to pay for this additional therapy.

The Workers’ Compensation Judge (“WCJ”) heard the matter on May 21, 2003. Hooker claimed that Wal-Mart owed him two weeks of compensation at $202.40 per week as well as medical benefits ordered by his doctor. Hooker also asked for penalties and attorney fees for Wal-Mart’s refusal to pay these benefits.

During the hearing, Wal-Mart attempted to introduce records purported to be those of its claims manager showing that it had approved six physical therapy sessions for Hooker and that he had, by October 10, 2002, only attended five such sessions. The WCJ did not allow these records into evidence as they were not certified, as required under workers’ compensation hearing rules. Wal-Mart refused to pay for any additional physical therapy sessions.

By way of impeachment, Wal-Mart called three employees, Derek Blue, Chaz Brookshire and Daniel Young, who testified as to specific instances where they heard Hooker state that he did not want to come back to work because he was not being treated right by Wal-Mart or that he would stage an accident. Hooker denied that he made any of these or similar statements as claimed by these employees.

Hooker admitted that he had suffered several accidents while working for various employers over the years that he had failed to disclose at his deposition, although Hooker’s counsel pointed out that he may have been | sconfused by the questioning at the deposition. Wal-Mart attempted to offer into evidence various documents purporting to be records from, inter alia, Brookshire Grocery Company and County Market, two of Hooker’s former employers, documenting his compensation claims at those employers. The judge did not allow these documents into evidence because no one from those companies was present to identify the records as authentic and because no additional evidence was necessary to prove that Hooker had not reported all of his previous claims at his deposition. Wal-Mart did not produce any evidence that Hooker was not injured.

After hearing all of this evidence, the court rendered judgment in favor of Hooker. The WCJ found that Hooker’s injuries were consistent with his version of the accident and that he had suffered an injury at work when the trailer door hit him on the head because the medical records from the hospital the next day noted the contusion to his head and cervical and chest wall strains. Further, the WCJ found that Dr. Bailey’s release of Hooker to work on September 25, 2002, was based not on any change in Hooker’s condition, but “on whatever information was provided to him by the representative of the employer.” The WCJ concluded that the employer had contacted Hooker’s doctor without following the procedures set forth in La. R.S. 23:1127 and, further, had discussed the claimant’s medical history with an unauthorized person, his cousin. The WCJ found that the employee had not proven actual damages as a result of this latter contact, but would have been entitled to them if he had.

l9The WCJ rendered judgment in favor of Hooker awarding benefits, penalties and attorney fees. In addition, the WCJ found that Hooker should have been off work until October 7, 2002, as first recommended by his doctor, that he was temporarily totally disabled from September 17, 2002, until October 7, 2002, and that Wal-Mart failed to pay workers’ compensation benefits as required by law. The WCJ also found that the employer should have paid for additional physical therapy for Hooker. In conjunction with these findings, the court assessed Wal-Mart with a penalty of $2,000 for each of the two violations of the law and awarded Hooker $6,000 in attorney fees, $4,000 for the failure to timely pay indemnity benefits and $404.80, representing two weeks of workers’ compensation temporary, total disability indemnity benefits. , The WCJ allowed Wal-Mart a credit for all benefits already paid, but ordered Wal-Mart to pay Hooker’s outstanding medical bills. Wal-Mart now appeals, raising the following assignments of error (verbatim):

1. The Court erred in finding that the claimant satisfied the objective evidence of injury requirement by relying upon a medical report indicating that the claimant was diagnosed with a cervical and chest wall strain and that the claimant had a contusion on his forehead;
2. The Court erred in its interpretation of 23:1127;
3. The Court erred in awarding indemnity benefits in light of the job offers and the doctor’s medical opinion that the claimant was capable of performing same;
4. The Court erred in awarding penalties as to indemnity benefits as those benefits were terminated in accordance with 23:1201.2;
5. The Court erred in awarding penalties as to indemnity benefits as there was not arbitrarily and capriciously behavior;
6. The Court erred in refusing to admit into evidence the pre-certification documents pertaining to the physical therapy; and,
|1n7. The Court erred in awarding penalties and attorney fees as to the physical therapy as that treatment was properly not paid or at the very least there was not arbitrary and capricious behavior in reference to same.

DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Chaisson v. Cajun Bag and Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375. In applying the manifest error— clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Id. “Thus, ‘if the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Id., citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, (La.7/1/97), 696 So.2d 551.

La. R.S. 23:1317(A) provides, in part:

[T]he workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself....

The hearing officer.has the discretion to admit hearsay evidence in workers’ compensation proceedings. Chaisson, supra. Such evidence can qualify as Incompetent evidence,” provided that the evidence has some degree of reliability and trustworthiness and is of the type upon which reasonable persons would rely. This determination must be made on a case-by-case basis under the particular facts and circumstances. The reviewing court must evaluate the competency of the evidence under the manifest error standard. Id.

The WCJ found that Hooker was entitled to temporary total disability benefits from September 17, 2002, to October 7, 2002. La. R.S. 23:1221(l)(e), provides, in pertinent part:

[CJompensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Further, La. R.S. 23:1203(A) provides, in pertinent part:

[T]he employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services.

This duty, however, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs and supplies, as determined under the reimbursement schedule annually published pursuant to La. R.S. 23:1034.2 or the actual charge made for the service, whichever is less. La. R.S. 23:1203(B).

112Indemnity and Medical Benefits

With regard to Hooker’s entitlement-to temporary total disability indemnity benefits, we observe that he was instructed by his doctor on September 17, 2002, not to return to work until October 7, 2002, approximately three weeks later. This instruction was based upon the doctor’s opinion after examining Hooker on September 17. The doctor observed Hooker during the examination and thereafter and saw nothing to indicate that Hooker was fabricating his symptoms. The medical evidence altogether is sufficient to establish a compensable “objective” injury as contemplated by La. R.S. 23:1317(A). Wal-Mart provided no evidence that Hooker was not injured.

Dr. Bailey provided Hooker a note ordering that he not work until the specified date of October 7, 2002. Hooker gave this note to,. Wal-Mart. On September 25, 2002, however, at Wal-Mart’s request, Hooker’s doctor faxed CMI a form delineating the work in which Hooker could and could not engage. Dr. Bailey was unable to explain why he changed his recommendation with regard to Hooker’s ability to work in the absence of a more recent physical examination of Hooker. As noted by the WCJ, the doctor suggested that his completion of the form was done at the prompting of the Wal-Mart agent. The change in the doctor’s recommendation was not based on any observed change in Hooker’s condition. We, therefore, believe that the WCJ was not manifestly erroneous in concluding that Hooker proved his entitlement to temporary total disability benefits from September 17, 2002, through October 7, 2002. Likewise, we find no error 11gm the WCJ’s conclusion that Wal-Mart should have paid for Hooker to undergo a second round of physical therapy. Dr. Bailey was of the opinion that this therapy would have been beneficial to Hooker’s recovery and noted that some types of therapy require the assistance of a therapist. Wal-Mart provided no evidence that the physical therapy would not have been reasonable medical care.

Admission of Evidence

We also find no error in the WCJ’s refusal to admit into evidence the claims management and former compensation claims evidence proffered by Wal-Mart. With regard to the claims management evidence, no representative of the claims management company appeared to authenticate or explain these records and we do not believe that these particular records are of a type that are self-explanatory. Alsoi they were not certified as required under the workers’ compensation hearing rules. Moreover, at least one of these records contains double hearsay of the type rejected in Chaisson, supra.

As for the previous claims evidence, the WCJ determined that this voluminous documentary evidence was not relevant or helpful to prove the point for which it was offered. The determination of the relevance of evidence is within the wide discretion of the trial court, and the court’s ruling in that regard will not be disturbed on appeal in the absence of a clear abuse of discretion. Crowson v. Crowson, 32,314 (La.App.2d Cir.9/22/99), 742 So.2d 107. Hooker admitted to other prior compensable accidents at trial, and Dr. Bailey explored the effect of such incidents on | uHooker in his deposition, which was admitted into evidence. As Hooker admitted to these injuries at trial, we find no abuse of discretion in refusing to admit alleged documentary evidence of the same.

Penalties and Attorney Fees

This is a case where the employee alleges that the employer failed to pay continued installments of indemnity benefits and not a case where wrongful termination of benefits is alleged. Accordingly, La. R.S. 23:1201(F), not La. R.S. 23:1201.2, is the appropriate penalty statute. Gilcrease v. Wal-Mart Stores, Inc., 36,523 (La.App.2d Cir.12/11/02), 843 So.2d 415. Under La. R.S. 23:1201(F), an employee has the burden of proving his entitlement to statutory penalties for the employer’s failure to timely pay workers’ compensation benefits. Bolton v. Mike Fleming Construction, 36,521 (La.App.2d Cir.12/11/02), 833 So.2d 1177. To reasonably controvert a workers’ compensation claim so as to avoid imposition of penalties and attorney fees, the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant. Id. To meet this standard, the employer must have some “valid reason or evidence upon which to base his denial of benefits.” Feild v. General Motors Corporation, 36,-339 (La.App.2d Cir.9/18/02), 828 So.2d 150. The court must determine whether the employer “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Feild, supra. Penalties are stricti h ¿juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Bolton, supra.

An award of attorney fees is a type of penalty in workers’ compensation matters. Ward v. Phoenix Operating Co., 31,656 (La.App.2d Cir.2/24/99), 729 So.2d 109. The penalty for the behavior is the imposition of the attorney fee, rather than the amount of the attorney fee. The amount of the fee must be assessed in accordance with law, i.e., the fee must be reasonable. Id. Thus, the court must assess the degree of skill involved and the amount of time counsel spent representing the claimant to arrive at a .reasonable attorney fee. Id. The WCJ’s decision to award or deny attorney fees is subject to the manifest error standard of review. Bolton, supra, citing Feild, supra.

We find no manifest error in the decision of the WCJ awarding statutory penalties and attorney fees on both the failure to pay indemnity benefits and the failure to pay medical benefits. Wal-Mart was in possession of an order from Hooker’s physician directing that he not work until October 7, 2002. That order was based upon the doctor’s contemporaneous examination of Hooker. In ordering Hooker back to work before October 7, 2002, Wal-Mart relied on a form completed by the doctor in the interim issued at their request without the benefit of a second examination of the employee and without any expressed reason for the change in restrictions. We also note that the cover letter accompanying the form completed in September instructed the doctor that timely completion of the return to work form would allow Hooker to “safely recover at work, |1(iearn a full wage, and continue to receive benefits.” This is obviously an incomplete statement of the law and tends to suggest that Hooker’s continued receipt of benefits are somehow tied to the completion of the form.

Given all of these factors, it was unreasonable for Wal-Mart to rely on the amended information from the doctor in ordering Hooker to return to work. Further, we find no justification whatsoever for the employer’s refusal to pay for the physical therapy ordered by Dr. Bailey. Wal-Mart is not excused in this case from ensuring that Hooker received all of the reasonable medical care recommended by his physician. We do not find it necessary to address the parties’ extensively briefed contentions regarding the employer’s alleged violation of La. R.S. 23:1127, because the WCJ did not make any award to Hooker under that statute alone. The WCJ’s other findings are sufficient to sustain the awards of penalties and attorney fees. Wal-Mart’s assignments of error are without merit.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ against Wal-Mart Stores, Inc., is affirmed. Costs of this appeal are assessed to Wal-Mart Stores, Inc.

AFFIRMED.

      . Hooker's pacemaker is located in his upper left chest.

      . Oddly, it appears that the fax cover letter is in the record, but the attached pages to the cover letter are not. Apparently, the “Alternative Duty Form” filled out by Dr. Bailey is not in the record. When questioned by Wal-Mart's counsel, Dr. Bailey acknowledged in his deposition that he filled out such a form and faxed it back to CMI on September 25, 2002. Evidently, a job description sheet was also attached and Dr. Bailey indicated on it that Hooker could work as an invoice clerk, greeter or film clerk within his restrictions. The job description sheet is also not in the record.

      . This form seems to be consistent with Dr. Bailey's original finding that Hooker not return to work until October 7, 2002, since it is signed on that date and indicates that “now” is the time he can return to work with restrictions, rather than listing a specific date.

      . The counsel for Wal-Mart describes Hooker's feelings about Wal-Mart’s communication with his doctor and orders to return to work as a "dirty phony.”

      . Wal-Mart proffered the records into evidence.

      . Wal-Mart proffered the records into evidence.


author: h CARAWAY, J.

text:
    ESTATE OF Mary MESSINA, Plaintiff-Appellant v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HOSPITALS, Defendant-Appellee.
    No. 38,220-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Anthony J. Bruscato, Monroe, for Appellant.
    Neal R. Elliott, Jr., Baton Rouge, Rene Simone Millet, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   h CARAWAY, J.

The family of an applicant for Medicaid benefits appeals the state’s denial of her application for long term care benefits. The administrative law judge (“ALJ”) ruled for the state, finding that within thirty-six months of the application, the applicant had transferred property which she used as her residence to other family members for less than the fair market value of the home. The district court affirmed the ruling of the ALJ, and for the following reasons, we also affirm.

Facts

Upon moving into a nursing home on March 31, 2000, Mary Messina (“Mary”) applied for Long Term Care (“LTC”) vendor benefits under the Medicaid program. She resided at the nursing home until her death from cancer approximately five weeks later, and this dispute concerns the reimbursement to her family of the costs of her nursing home care for that time period.

Mary’s application for LTC stated that before moving into the nursing home, she lived in an “estate home.” The Louisiana Department of Health and Hospitals (“DHH”) conducted a routine asset clearance check and turned up information from the parish conveyance records that Mary had recently been the record owner of property at 2804 Anita Lane in Monroe. The tax notice reflected a homestead exemption on the property in Mary’s name. The DHH review found that the property was sold by Mary for $110,000 on June 24, 1999 (hereinafter the “1999 Deed”), and that the new |2owners were Mary’s six surviving siblings. The 1999 Deed was recorded in Ouachita Parish on July 13, 1999.

DHH’s discovery of the details of the 1999 Deed triggered the application of federal and state LTC eligibility rules which provide that the transfer of an asset for less than fair market value within a thirty-six month look-back period can render an individual applicant ineligible for medical assistance for a certain number of months based upon the value of transferred property. The caseworker contacted Mary’s family advising them of the ramifications of the asset transfer, and this dispute over the Medicaid benefits resulted.

A hearing before an ALJ for the Department was held in September 2000. The Messina family presented evidence showing that the Anita Lane home was acquired from a third party by Messina Real Estate in 1969. Mary’s father owned 40 shares in the corporation; her mother, herself and her eight siblings each owned one (1) share, for a total of 50 outstanding shares. A few months after the corporation acquired the property, it conveyed a lifetime usufruct to Mary so that she would be eligible for the homestead exemption. After Mary’s parents died, the corporation transferred the home to Mary in 1986 for $27,250, (the same consideration paid by the corporation when it acquired the property in 1969). The Messi-na family claimed that no cash was paid for the transaction. The home was always considered as the parents’ home, but available to the children should they need a place to live. Mary, however, was the principal resident of the home. Mary had never married, and although title to the family home 13was placed in her name, “it was always the understanding of all of [the Messina siblings] that each had a shared ownership in the home.” The family claimed that the property formed part of each sibling’s inheritance from their parents.

Although the consideration stated in the 1999 Deed was $110,000, an unrecorded counterletter acknowledged by all the parties stated that no payment was made for the deed. The counterletter, which set forth the history of the family home detailed and quoted above, was also dated June 24, 1999 and signed by Mary as an authentic act.

The ALJ reviewed the family’s rebuttal information contained in the counterletter and ultimately rejected their claim. The ALJ concluded that the $110,000 uncompensated value had to be counted in determining eligibility for Medicaid coverage for nursing facility services, which resulted in 55 months of ineligibility, and that Mary would not have become eligible for medical assistance until February, 2004.

The ALJ’s opinion concluded that “it is not shown convincingly that the transfer was solely for purposes other than qualifying for LTC vendor payment.” Thereafter, in December, 2000, appellant filed a petition for judicial review in the district court, pursuant to the provisions of the Administrative Procedure Act (La. R.S. 49:950, et seq.). The trial court upheld the ALJ’s findings and rendered judgment accordingly. It is from this judgment that the Messina family appeals.

LDiscussion

The Medicaid Program, established in 1965 as Title XIX of the Social Security Act (42 U.S.C. § 1396, et seq.) provides federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons. Case of Hamner, 427 So.2d 1188 (La.1983). The Medicaid Eligibility Manual (“Manual”) of DHH determines standards for Medicaid eligibility for long term care nursing facilities. (Manual §§ B-100, B-300). Eligibility for LTC vendor payments is specifically based on the applicant’s need, calculated based on income and resources. (Manual § H-831.4). The value of immovable property is counted as a resource, including “home property.” Home property is defined as “property in which [B[the applicant] has an ownership interest and that serves as his or her principal residence.” (Manual § 1634.28). If resources are greater than the Supplemental Security Income resource limit of $2000, the applicant is ineligible for LTC. (Manual § Z-900 Charts).

The Omnibus Budget Reconciliation Act of 1993 (“OBRA”) incorporated new requirements for treatment of transfers of assets for less than fair market value. (Manual § 1-1674). Such transfers are presumed to be for the purpose of qualifying for LTC vendor payment, unless the individual can prove convincingly that the transfer was made for some other purpose. In addition, OBRA provided that “[effective for transfers occurring on or after August 11, 1993, that state must develop uncompensated value of transfers occurring during the 36 month look-back period before application for institutional coverage and anytime thereafter.” “Uncompensated value” is the difference between the fair market value at the time of the transfer and the amount received for the asset. (Manual §§ 1-1674, 1675). Manual § I-1676 provides that LTC vendor payments shall not be made during a penalization period which begins with the month of the transfer and extends until the total cumulative uncompensated value is depleted. This is determined by dividing the uncompensated value by the average monthly cost of LTC services, which, in 1999, was $2000 per month. After such a transfer penalty is calculated and assessed, the individual will be ineligible for Medicaid during the penalty period. The applicant has the opportunity to rebut the presumption that the transfer was made to become eligible for Medicaid. (Manual § 1-1679).

| fiState judicial review of an agency adjudication is governed by the provisions of Louisiana’s Administrative Procedure Act (La. R.S. 49:950, et seq.). The scope of judicial review of an agency adjudication was set forth by this court in Holiday Bossier Ltd. Partnership v. La. Tax Commission, 574 So.2d 1280, 1285 (La.App. 2d Cir.1991), writ denied, 578 So.2d 136 (La.1991) as follows:

La. R.S. 49:964 provides that the scope of review shall be confined to the record. Where an administrative agency or hearing body is the trier-of-fact, the courts will not review the evidence before such body except for the following limited purposes: 1) to determine if the hearing was conducted in accordance with the authority and formalities of the statute; 2) to determine whether or not the fact findings of the body were supported by substantial evidence; and, 3) whether or not the hearing body’s conclusions from these factual findings were arbitrary or constituted an abuse of the hearing body’s discretion.

The Messina family disputes the ALJ’s determination of Mary’s ownership of the home which was valued in the 1999 Deed at $110,000. The family argues that the counterletter which Mary executed indicates that she never owned the home and that she received nothing for the transaction. They therefore argue that the 1999 Deed was not executed to establish Medicaid eligibility.

As an initial matter, we do agree with the Messina family that the counter-letter may be considered under Louisiana law for the determination of ownership in this instance. La. C.C. art.2025. The 1999 Deed was not a sale because, contemporaneously with that act, Mary executed a counterletter indicating that no price was paid to her. As between the parties to that transaction, including Mary’s siblings who remain the record |7owners of the property under the 1999 Deed, Mary’s interest in the home was at least intended to be conveyed as a donation. Both documents were not required to be recorded to be effective among the parties and may be considered in this context. DHH is not analogous to a third party purchaser or an acquirer of a -real right in property whose interest would be protected by the rules of recordation. Rather, its interest involves the saleable value that Mary transferred without benefitting from a fair market return, which gives rise to the presumption under the regulations that the purpose of the transfer was to establish Medicaid eligibility.

Nevertheless, in spite of the family’s arguments to the contrary, Mary was shown to have an undivided interest in the home and did make a transfer of property as a result of her June 24, 1999 transactions. The counterletter indicates that Mary was a co-owner with her siblings and that her family acquiesced in her exclusive possession of the property. As a co-owner, Mary was entitled to use the home under La. C.C. art. 802 and other provisions of our law dealing with co-ownership. Contrary to the family’s argument, Mary did not owe her siblings anything for her use of the property. Her co-owners acknowledged their intent to allow her that special occupancy right in the family home. Mary therefore divested her rights as a co-owner by executing the 1999 Deed and counterletter. While the value of that divestiture was not the entire $110,000 value attributed to the home, it was enough to permit assessment of a ten-month penalty in this instance. | sThe value assignable to Mary’s interest because of her continued occupancy was more than that of the mere fractional interest in the property which she owned as an heir of her parents. Had the ownership value not been transferred prior to her application, her eligibility for LTC vendor payments (less than $2000 in resources) would clearly have been denied. Accordingly, we do not find an abuse of discretion from the ALJ’s determination that the plaintiffs failed to meet their burden of showing that the transfer was solely for purposes other than qualifying for Medicaid LTC benefits.

Conclusion

For the above reasons, the judgment of the trial court is AFFIRMED.

Costs of the appeal are assessed to appellant.

AFFIRMED.

      . The applicable portions of Title 42 of the United States Code dealing with the administration of Social Security and Grants to the States for Medical Assistance Programs provide in § 1396p as follows:

        (c) Taking into account certain transfers of assets
      (1)(A) In order to meet the requirements of this subsection for the purposes of Section 1396a(a)(18) of this title, the State plan must provide that if an institutionalized individual or the spouse of such an individual (or, at the option of a State, a noninsti-tutionalized individual or the spouse of such an individual) disposes of assets for less than fair market value on or after the look-back date specified in subparagraph (B)(i), the individual is ineligible for medical assistance for services described in sub-paragraph (C)(i) (or, in the case of a non-institutionalized individual, for the services described in subparagraph (C)(ii)) during the period beginning on the date specified in subparagraph (D) and equal to the number of months specified in subparagraph (E).

      (C)(i) The services described in this subpar-agraph with respect to an institutionalized individual are the following:
      (I) Nursing facility services.

      (2) An individual shall not be ineligible for medical assistance by reason of paragraph (1) to the extent that—
      (A) The assets transferred were a home and title to the home was transferred to—

      (iii) a sibling of such individual who has an equity interest in such home and who was residing in such individual’s home for a period of at least one year immediately before the date the individual becomes an institutionalized individual;

      (C) a satisfactory showing is made to the State (in accordance with regulations promulgated by the Secretary) that (i) the individual intended to dispose of the assets either at fair market value, or for other valuable consideration, (ii) the assets were transferred exclusively for a purpose other than to qualify for medical assistance, or (iii) all assets transferred for less than fair market value have been returned to the individual.

      . The $2000 per month penalty provision under the DHH regulation would begin at the time of the July 1999 recordation of Mary's transfer. With an uncompensated value of at least $20,000, the penalty would still have remained in effect for the five-week period in question during the spring of 2000, when she sought LTC vendor payments.