author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. John BROWNING.
    No. 06-KA-929.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.
    Rehearing Denied May 7, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Ken J. Dohre, James W. Adair, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff Appellee.
    Juan C. Labadie, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   WALTER J. ROTHSCHILD, Judge.

LOn November 16, 2005, the Jefferson Parish District Attorney filed a bill of information charging the defendant, John Browning, with looting after a declared state of emergency, in violation of LSA-R.S. 14:62.5(C). On December 9, 2005, the defendant filed a motion to waive his presence at arraignment, which the trial court granted. On December 13, 2005, a plea of not guilty was entered for the defendant in absentia. On May 19, 2006, the defendant filed a motion to quash the bill of information alleging that the bill failed to charge an offense punishable under a valid statute. The trial court subsequently denied the motion to quash. On the day of trial, May 23, 2006, the defendant made a request to waive his right to a jury trial, but the trial court denied this request.

After trial, a twelve-member jury found the defendant guilty of attempted looting after a declared state of emergency. The defendant orally moved for a Lpost-verdict judgment of acquittal, which the trial court denied. In addition, the defendant filed motions for new trial and suspension of sentence, both of which were subsequently denied. On June 9, 2006, the defendant was sentenced to two years at hard labor and ordered to pay a fine of $2500. The defendant takes this timely appeal.

FACTS

Deputies Kirk Zeagler and Todd Giaco-na of the Jefferson Parish Sheriffs Office testified that they responded to a 911 looting call at New Orleans Audio Video located at 5600 Citrus Boulevard, on September 11, 2005. When they arrived at New Orleans Audio Video approximately five minutes later, they obtained entry to the damaged building through a hole in the wall. Deputy Giacona testified that he saw no other way in or out of the building except the hole in the wall. Deputy Zeagler testified that it was not easy to gain entry into the building’s storage room, because he and Deputy Giacona had to climb over a pile of debris that was adjacent to the hole in the wall. On top of the pile of debris, not mixed in, was a 42-inch flat screen television that was out of its box. All of the other televisions were in boxes and stacked on shelves in the storage room.

According to Deputy Zeagler, after they saw the television, they checked the rest of the building and found the defendant hiding in the corner of the storeroom behind some debris. After the defendant was removed from the building, arrested for looting, and placed in the police car, Deputy Zeagler and his partner searched the building. No one else was found in the building. On cross-examination, Deputy Zeagler identified his police report. He admitted that in his report, he stated that he saw the 42-inch television when he reentered the building after the defendant was taken outside. He also admitted that he did not know where the | television was originally placed. Neither deputy saw the defendant touch or move the television.

Richard Savoie, the owner of New Orleans Audio Video, testified that prior to Hurricane Katrina, his store had full alarms and video. The building that housed the business was damaged during the hurricane. Savoie stored 13 to 42 inch televisions in boxes and on shelves at that store. He described the 42-inch flat panel televisions as four inches thick and weighing 75 to 80 pounds, which made them easy for him to move alone. Neither Savoie nor his employees authorized the defendant to enter the building, and the defendant was not authorized to take anything from the store. Savoie admitted that he did not know who was at the site from the time of the hurricane until September 11, 2005. However, only his employees were authorized to enter the building in order to secure it.

Stephanie Jovic, the defendant’s girlfriend, testified that she and the defendant lived together in River Ridge before evacuating to Florida due to Hurricane Katrina. They returned to the area on September 8, 2005 to retrieve their possessions, and they intended to return to Florida on September 11, 2005. Jovic and the defendant were together until noon on September 11, 2005, when the defendant left to get a pizza from the only open pizzeria, which was on the Westbank. After Jovic learned that the defendant was arrested at 4:00 p.m., she attempted to retrieve the defendant’s truck and found it in a parking lot beside New Orleans Audio Video. A few days later, she returned and took photographs of the area, while accompanied by the defendant and his father. Two of the photographs taken of the exterior of the damaged building depicted the defendant’s sunglasses and hat, which the defendant wore on the date of the incident but were not in his possession when he was released from jail.

|RAt trial, the State introduced into evidence a copy of Proclamation No. 48KBB2005 signed by the Governor of Louisiana. The proclamation declared a state of emergency as a result of Hurricane Katrina “from Friday, August 26, 2005, through Sunday, September 25, 2005, unless terminated sooner.”

DISCUSSION

In his first assignment of error, the defendant asserts that the trial court committed legal error in denying his motion to quash. Prior to trial, the defendant filed a motion to quash the bill of information alleging that, pursuant to LSA-C.Cr.P. art. 532(1), the bill failed to charge an offense punishable under a valid statute. In addition, the defendant alleged that, pursuant to LSA-C.Cr.P. art. 532(5), there was a ground for quashing the indictment under LSA-C.Cr.P. art. 485, because the police report standing as the bill of particulars and the bill of information showed that no crime had been committed. Specifically, the defendant alleged that there was no evidence in the police report establishing that he obtained, exerted control over, damaged or removed the owner’s property — an essential element of the charged crime of looting.

At the hearing, after listening to argument by the defense and the State, the trial judge denied the motion to quash based on State v. Mulvihill, 03-691 (La.App. 5 Cir. 10/28/03), 860 So.2d 266, finding that it presented an analogous set of circumstances to the defendant’s case. The trial judge stated that in State v. Mulvihill, this Court found that in a circumstantial case based on a police report, the question of whether an essential element of the offense had been proven was a question for the jury, and did not provide grounds to quash.

On appeal, the defendant argues that the trial court erred in denying his motion to quash based on State v. Mulvihill. He contends that the holding of the Louisiana Supreme Court in State v. Legendre, 362 So.2d 570 (La.1978), that | (¡there should not be an indictment for a serious offense brought upon an allegation of fact which cannot conceivably satisfy an essential element of the crime, is correct and applies to the instant case. The State responds that the trial court properly denied the defendant’s motion to quash, because the defendant incorrectly used the motion to quash to raise a sufficiency argument on a factual matter that should be decided by the fact-finder on the merits at trial.

LSA-C.Cr.P. art. 532(1) and (5) provide that a defendant can base a motion to quash on the grounds that the indictment has failed to charge an offense which is punishable under a valid statute and the bill of particulars has shown a ground for quashing the indictment under Article 485.

LSA-C.Cr.P. art. 485 states in pertinent part:

[i]f it appears from the bill of particulars ... together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, ... the court ... on motion of the defendant shall, order that the indictment be quashed unless the defect is cured.”

A motion to quash is a mechanism by which pre-trial pleas that do not go to the merits are urged. State v. Jordan, 06-187 (La.App. 5 Cir. 9/26/06), 938 So.2d 805, 807. The question of factual guilt or innocence of the charged offense is not raised by a motion to quash. Id. Fact-intensive inquiries regarding the sufficiency of the evidence and merits of the case are not properly raised by a motion to quash; rather they should be decided on the evidence at trial. State v. Billard, 03-319 (La.App. 5 Cir. 7/29/03), 852 So.2d 1069, writ denied, 03-2437 (La.2/6/04), 865 So.2d 739.

In the present case, the defendant argues that the holding of State v. Legendre, not State v. Mulvihill, applies. In State v. Mulvihill, the defendant was charged with operating a vehicle while intoxicated, third offense, in violation of |7LSA-R.S. 14:98. The State appealed the trial court’s grant of the defendant’s motion to quash. The trial court granted the motion, because the State was unable to provide a response to whether the vehicle was in gear when the defendant was found intoxicated and asleep in the driver’s seat of the vehicle while the engine was running. This Court found that the trial court erred in granting the motion to quash, because the determination of whether the defendant was operating the vehicle was a factual matter related to the merits of the case and a question for trial.

In State v. Legendre, the defendant was charged with committing a battery with a dangerous weapon. In response to the defendant’s bill of particulars, the State responded that the dangerous weapon used by the defendant was a concrete parking lot. The defendant filed a motion to quash alleging that the aggravated battery was not committed with a dangerous weapon. The trial court denied the motion to quash finding that the question of whether a dangerous weapon was involved was a question of fact to be decided by the jury. The Louisiana Supreme Court reversed, finding that a parking lot was not a dangerous weapon and thus, the State had not charged a valid offense. The court noted that a defective indictment and its invalidity may be ruled on in a motion to quash when based on the ground that the indictment failed to charge an offense which is punishable under a valid statute.

In the present case, the defendant alleged in his motion to quash that the indictment failed to charge an offense that is punishable under a valid statute. Thus, he asserts that the holding of State v. Legendre is applicable. We disagree.

The defendant has not shown that the indictment failed to charge an offense that is punishable under a valid statute. In addition, the defendant has not shown a ground for quashing the indictment with the police report standing as the bill of ^[¿particulars. Rather, the defendant’s claim that the State had not and would not be able to provide sufficient proof that he obtained, exerted control over, damaged, or removed the property of the owner is a fact-intensive matter related to the sufficiency of the evidence and the merits of the case, and, therefore, is not properly raised by a motion to quash. Whether the State would have been able to prove this essential element of the crime was a question of fact for the jury to decide on the merits at trial.

Considering the evidence before us, along with the applicable law, we find that the trial court did not err in denying the motion to quash. Thus, this assignment of error is without merit.

In his second assignment of error, the defendant contends that the trial court committed legal error in denying his motion to waive the jury, in light of the custom in this jurisdiction allowing defendants to waive a jury at any time before the commencement of trial and, specifically, in light of the fact that the record does not show that the defendant was ever advised that he had a right to waive the jury.

On the day of trial, prior to the examination of the first prospective juror but after the trial court had given instructions to the jury venire, the defendant decided to waive his right to a jury trial. The defendant argued that since voir dire had not commenced and no juror had been empaneled, he had the right to waive a jury trial. The trial court informed the defendant that it was too late, because he had not filed his request to waive his right to a jury trial within the statutory time period.

The defendant claims for the first time on appeal that he was not advised that he had the right to waive a jury trial. In addition, he argues that the trial court denied his jury trial waiver without due process and in a prejudicial fashion. The defendant claims that it is not the local customary practice to require a defendant to waive the right to a jury trial by motion within the statutory time delays for filing | flregular motions. Rather, it is customarily done by a verbal assertion with the standing permission of the court, at any time before trial has commenced. He notes that there is no federal constitutional right not to be tried by a jury except when a fair jury trial is impossible or unlikely, as in this looting case in post-Katrina Jefferson Parish.

The State argues that the defendant is raising the trial court’s failure to advise him of his right to waive a jury trial for the first time on appeal. In addition, the State argues that the defendant did not move to waive his right to a jury trial until after the jury venire had been brought into the courtroom on the day of trial, which was not within the statutory period; therefore, the trial court had the authority to deny the waiver. The State further claims that the defendant has not shown that he could not receive a fair trial, did not move for a change in venue, and did not use all of his peremptory challenges during jury selection. In addition, the State claims that any prior customary practice in the courts is outside the scope of the appellate record and does not equate with statutory authority and jurisprudential precedent.

First, as the State notes, the defendant claims for the first time on appeal that the trial court failed to advise him of his right to waive a jury trial. In order to preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. LSA-C.Cr.P. art. 841. State v. Gaol, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant. Id. A defendant is limited to the grounds |infor objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 594; State v. Torregano, 03-1335 (La.App. 5 Cir. 5/11/04), 875 So.2d 842, 846.

Since the defendant did not raise the trial court’s failure to advise him of his right to waive a jury trial as a basis for his objection, this argument is not properly before us for review.

In the trial court, the defendant did argue that he had the right to waive a jury since no jurors had yet been empaneled. Accordingly, we address the issue of whether the trial judge abused his discretion in denying the defendant’s request to waive his right to a jury trial after the requisite statutory period elapsed.

The right of an accused to a trial by jury is guaranteed by LSA-Const. Art. 1, § 17 and by the Sixth Amendment to the United States Constitution. A defendant may waive his right to a jury trial and choose to be tried by the judge. LSA-C.Cr.P. art. 780 provides in pertinent part:

A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waive trial by jury.
B. The defendant shall exercise his right to waive trial by jury in accordance with the time limits set forth in Article 521. However, with permission of the court, he may exercise his right to waive trial by jury at any time prior to the commencement of trial.

LSA-C.Cr.P. art. 521 states:

Pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate.
Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

InA waiver of the right to trial by jury must be express and voluntary, and the record must show that it was knowingly and intelligently made. State v. Singleton, 05-622 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 653. Generally, a waiver of the right to a jury trial is entered at arraignment. State v. Lokey, 04-616 (La.App. 5 Cir. 11/30/04), 889 So.2d 1151, 1154, writ denied, 04-3195 (La.5/6/05), 901 So.2d 1093. However, the trial court may accept a waiver of the right to a jury trial at any time prior to the commencement of trial. Id. “A jury trial commences when the first prospective juror is called for examination.” LSA-C.Cr.P. art. 761.

In the present case, there is no indication in the record nor does the defendant claim that he exercised his right to waive his right to a jury trial at his arraignment or in the statutorily provided 15 days following his arraignment. In addition, the defendant makes no showing that there was a different time period fixed by the court, upon a written motion asserting good cause why 15 days was inadequate for him to file a motion to waive a jury trial. Instead, the defendant suggests that it is a tradition or a standing custom of the court to give permission to waive the right to a jury trial at any time before trial has commenced. However, perceived custom or tradition does not control.

In this case, the defendant did not move to waive his right to a jury trial until after the jury venire had been seated in the courtroom and given instructions by the trial court. The trial court denied the defendant’s motion finding that it was too late for the defendant to waive his right to a jury trial after the trial court addressed the jury as a whole, but before the first prospective juror was called for examination. Although the defendant argues that he is permitted to waive a trial by jury at any time prior to commencement of the trial, LSA-C.Cr.P. art. 780(B) is clear that waiver of a trial by jury may be entered after the statutory time limits only with permission of the court. Such permission was not granted in this case.

LgThe jury venire was already in the courtroom and given preliminary instructions when the defendant moved to waive his right to a jury trial. Considering the record before us, we cannot say that the trial judge abused his discretion when he denied defendant’s request to waive a jury trial just before voir dire began. Accordingly, this assignment of error is without merit.

In his third assignment of error, the defendant asserts that his conviction must be overturned, because a rational trier of fact could not have concluded beyond a reasonable doubt that the State proved every element of the offense or that every reasonable hypothesis of innocence had been excluded. Specifically, the defendant claims that the State did not prove that he exerted control over, damaged, or removed the property of the owner. He claims that the testimony of the business’ owner provided reasonable doubt regarding whether or not he moved the television, because other unauthorized persons could have been in the building since the storm. In addition, the defendant argues that the State did not prove that the state of emergency declared by the Governor on August 26, 2005, did not terminate before September 25, 2005, because the State did not present evidence of any subsequent declarations by the Governor to prove that the state of emergency lasted through September 25, 2005. The State responds that it presented sufficient evidence to establish each element of the charged offense.

The standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Both the direct and circumstantial evidence must be | ^sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La. App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. “Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. LSA-R.S. 15:438 does not establish a stricter standard of review than the more general rational juror’s reasonable doubt formula; instead it serves as a helpful evidentiary guide for the jurors when evaluating circumstantial evidence. State v. Spears, 05-964 (La.4/4/06), 929 So.2d 1219,1222.

The trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Baker, 01-1397 (La.App. 5 Cir. 4/30/02), 816 So.2d 363, 365. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id. An appellate court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83.

In the present case, the defendant was charged with violating LSA-R.S. 14:62.5, looting during a declared state of emergency. He was convicted of attempted looting during a declared state of emergency. Looting is defined in LSA-R.S. 14:62.5(A) as:

the intentional entry by a person without authorization into any dwelling or other structure belonging to another and used in whole or in part as .... a place of business, .... in which normal security of | uproperty is not present by virtue of a hurricane, flood, fire, act of God, or force majeure of any kind, ... and the obtaining or exerting control over or damaging or removing property of the owner.

LSA-R.S. 14:62.5(C) states that it is a crime to “loot [ ] during the existence of a state of emergency, which has been declared pursuant to law by the governor ...., when the defendant knew or should have known that a declaration of emergency existed....”

LSA-R.S. 14:27(A) states:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

In order to convict for an attempted offense, there must be sufficient proof that the defendant actually desired to cause the proscribed criminal consequences to follow his act or failure to act, and that the defendant committed or omitted an act for the purpose and tending directly toward the accomplishing of his objective. State v. Cheatham, 38,413 (La.App. 2 Cir. 6/23/04), 877 So.2d 164, 170, writ denied, 04-2224 (La.6/24/05), 904 So.2d 717. Specific intent is a state of mind that need not be proven as a fact, but may be inferred from the circumstances and action of the accused. Id. at 171.

Therefore, in order to convict a defendant of attempted looting during a declared emergency, the State must prove that the defendant attempted or perpetrated the act of (1) intentionally entering a structure containing a business, (2) lacking normal security because of a hurricane, flood, act of God, or force majeure of any kind, (3) during a declared state of emergency that the defendant 11Bknew or should have known existed, and (4) obtaining, exerting control over, damaging or removing property of the owner.

In the present case, the defendant claims that the State failed to prove that he attempted to obtain, exert control over, damage or remove property of the owner. We disagree. Savoie testified that he stored the televisions in the storeroom in their boxes on shelves. Although Savoie admitted that other unauthorized persons could have entered the building after the hurricane, the only entry into the damaged building was through a hole in the wall and the deputies stated that it was not easy to gain entry due to debris adjacent to the hole in the wall. Further, Deputies Zeagler and Giacona testified that they responded to the looting call within five minutes and the defendant was the only person found in the building. Also, the defendant was hiding in the corner of the storeroom behind some debris.

In addition, the television in question was found out of its box on top of the debris pile, not mixed in, and was adjacent to the hole in the wall through which ingress and egress had to be made. It was the only television that was not in its box or properly stacked. While neither deputy saw the defendant touch or move the television, no one else was found in the building.

The defendant contends that the photographs taken by its sole witness, Ms. Jovic, suggests that the defendant did not enter the building; instead, a struggle took place between the defendant and the police outside the building where the defendant’s sunglasses and hat were found. However, the jury apparently chose to believe the officers that the defendant was found inside the building.

Based upon the evidence, the jury could have rejected the defendant’s argument that the employees of the business or looters had previously moved the television, and reasonably concluded that the defendant had moved the television close to the only exit before he was found by the police.

lifiThe defendant further argues that the State failed to prove that a state of emergency existed at the time the offense was committed. We find this argument unpersuasive. The State introduced into the record a copy of Proclamation No. 48KBB2005, signed by the Governor of Louisiana, which declared a state of emergency from August 26, 2005 through September 25, 2005, unless terminated sooner. Evidence of subsequent declarations, as suggested by the defense, would not have proven that the initial declaration was not terminated before September 25, 2005, since the initial declaration could have been terminated before the final date and another state of emergency could have been subsequently declared. There is no evidence that the declared state of emergency was terminated prior to the date of the offense, September 11, 2005. Based on the evidence, we find that the State met its burden of proof as required by the statute when it introduced into evidence the proclamation showing the dates that the state of emergency existed, which included September 11, 2005, the date of the offense.

Considering the entire record before us, we conclude that the evidence was sufficient for a rational trier of fact to conclude that the State proved the required elements of attempted looting during a declared state of emergency beyond a reasonable doubt. Accordingly, this assignment of error is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). No errors requiring corrective action were noted.

DECREE

For the reasons set forth above, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . We note that after the jury’s verdict was rendered, the defendant moved for a post-verdict judgment of acquittal, which was denied by the trial court. We further note that the defendant filed a motion for new trial, arguing that the verdict was contrary to the law and evidence, but this motion was denied by the trial court as well.

      . LSA-R.S. 14:62.5(C) was later amended by Acts 2006, No. 165, § 1 to delete "when the defendant knew or should have known that a declaration of emergency existed.”


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Tynes E. MIXON, III, M.D. v. IBERIA SURGICAL, L.L.C., et al.
    No. 2006-878.
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2007.

      Onebane Law Firm, Charles J. Bou-dreaux, Steven C. Lanza (Appeal Counsel), Michael D. Skinner, Michael G. Durand, Lafayette, LA, for Plaintiff/Appellant, Tynes E. Mixon, III, M.D.
    Ottinger Hebert, L.L.C., Paul J. Hebert (Appeal Counsel), J. Bradley Duhe,’ Lafayette, LA, for Defendant/Appellee, Iberia Surgical, L.L.C.
    Gilbert F. Ganucheau, Jr., Kathleen L. DeBruhl & Associates, New Orleans, LA, for Defendant/Appellee, Iberia Surgical, L.L.C.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

h,STATEMENT OF THE CASE

Tynes E. Mixon, III, M.D. filed a petition for damages asserting he was wrongfully terminated from his membership in Iberia Surgical, L.L.C. (Iberia Surgical) and did not receive adequate compensation for his interest in the business. Dr. Mixon later amended his petition alleging a claim under an “abuse of rights” theory. Iberia Surgical filed motions for summary judgment. The trial court granted the Defendant’s motions dismissing all claims of Dr. Mixon against Iberia Surgical. Dr. Mixon filed this appeal. For the reasons assigned below, we affirm the judgment of the trial court.

STATEMENT OF THE FACTS

Iberia Surgical was formed, in August 1998, by a group of physicians practicing in Iberia Parish for the purpose of establishing an ambulatory, out-patient surgery center. Each of the eleven physician members contributed $5000 and obtained a 9.09% interest in the business. The members executed a written Operating Agreement which provided a member may be terminated “without cause” upon unanimous vote of the membership. The contract also contained a “Buy-Out” provision in case of termination or withdrawal by one of the members. Dr. Mixon was one of the original organizers and became the managing partner.

In June 1999, Iberia Surgical, in a joint ownership venture with Iberia Medical Center, formed New Iberia Surgery Center, L.L.C., an outpatient surgical facility. Iberia Surgical owned an 80% interest and Iberia Medical Center owned a 20% interest in the new facility. The New Iberia Surgery Center was managed by a professional management company, Genesee & Associates, Inc.

Not long after the formation of Iberia Surgical, Dr. Mixon became dissatisfied |4with the operation of the new facility and management practices of his fellow physicians. On several occasions, he voiced concerns regarding patient care and what he perceived to be violations of federal law in the handling of medicaid patients. When the members took no action regarding his complaints, Dr. Mixon met with federal authorities to report the alleged violations. He provided documents from Iberia Surgical to federal investigators, taped telephone conversations between himself and his partners, and, at one point, placed a voice-activated recorder in the trash can of the partnership meeting room. Dr. Mixon disclosed to several partners that he had reported them to federal authorities. Soon, Dr. Mixon began to realize his behavior was not well received among the partners and he may be terminated from membership in Iberia Surgical by a vote of the organization. In fact, a proposal was circulated to amend the bylaws of the Operating Agreement to require a majority vote to terminate a member instead of a unanimous vote. Dr. Mix-on perceived this proposed change to be directed against him. He requested mediation and then filed a petition in district court for declaratory judgment and injunc-tive relief to prohibit the members from meeting to discuss the proposed change. His fears were well founded. After months of discord, and despite his legal protests, on August 28, 2002, Dr. Mixon was terminated from Iberia Surgical by unanimous vote of the membership. Pursuant to the Buy-Out provisions of the Operating Agreement, Dr. Mixon was paid $71,356.85, over a twelve month period for his membership interest. He negotiated the checks. To date, no state or federal charges have been filed against Iberia Surgical or any of its physician members.

LAW AND DISCUSSION

Dr. Mixon contends there was no legitimate reason for his termination in Iberia Surgical since he was a productive member of the group and was, in fact, the number |,dive producer in terms of surgical procedures. Dr. Mixon further contends he was expelled from membership in Iberia Surgical solely because he complained of and reported allegedly improper activities and violations of federal law by Iberia Surgical and New Iberia Surgery Center. This termination, he maintains, violates the Louisiana Unfair Trade Practices and Consumer Protection Law, La.R.S. 51:1401 et seq. and the Louisiana whistleblower statute, La.R.S. 46:440.3(B). Additionally, Dr. Mixon asserts Iberia Surgical abused their right to terminate him from membership. He also alleges he was compensated for his ownership interest at a price far less than fair market value. We find neither the Louisiana Unfair Trade Practices and Consumer Protection Law or the Louisiana whistleblower statute provide a remedy for Dr. Mixon. Based on our review of the record, we conclude Dr. Mixon’s release from membership in Iberia Surgical was done for legitimate business reasons and he was compensated, in accordance with the provisions of the Operating Agreement, which he helped draft. Each of Dr. Mixon’s claims will be addressed below.

Louisiana Unfair Trade Practices and Consumer Protection Law, La.R.S. 51:1401 Louisiana Whistleblower Statute, La.R.S. 46:U0.3(B)

The Unfair Trade Practices Law and Consumer Protection Law was enacted to prohibit “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The individuals falling within the ambit of its protection are consumers, defined under the Act as “any person who uses, purchases, or leases goods or services.” A consumer transaction means “any transaction involving trade or commerce to a natural person, the subject of which transaction is primarily intended for personal, family, or household use.” The statute authorizes the Attorney General to seek injunctive relief against business engaging in prohibited business practices. Philips v. Berner, 00-0103 (La.App. 4 Cir. 5/16/01), 789 So.2d 41, writ denied, 01-1767 (La.9/28/01), 798 So.2d 119, held this | ^statute applies to competitors or consumers and provides a remedy for unfair or deceptive trade practices. A practice is unfair when it offends established public policy and when the practice is unethical, oppressive, unscrupulous or substantially injurious. A trade practice is “deceptive” for purposes of LUTPA when it amounts to fraud, deceit, or misrepresentation. The actions of Iberia Surgical in releasing Dr. Mixon from its membership under the terms of a contract mutually agreed upon does not amount to fraud, deceit or misrepresentation. Moreover, Dr. Mixon is not a “consumer or competitor” within the definition of the Act. We find no merit to this argument.

Louisiana Whistleblower Statute, La.R.S. Jt6:U0.3(B)

Dr. Mixon alleges his termination from membership in Iberia Surgical was a direct result of his actions in reporting allegedly improper activities and violations of federal law by Iberia Surgical and New Iberia Surgery Center. He seeks to bring his actions within the scope of protection of Louisiana Revised Statutes 46:440.3, which provides, in relevant part:

(B) No individual shall be threatened, harassed, or discriminated against in any manner by a health care provider or other person because of any lawful act engaged in by the individual or on behalf of the individual in furtherance of any action taken pursuant to this Part in regard to a health care provider or other person from whom recovery is or could be sought except that a health care provider may arrange for a recipient to receive goods, services, or supplies from another health care provider if the recipient agrees and the arrangement is approved by the secretary. Such an individual may seek any and all relief for his injury to which he is entitled under state or federal law.
(2) A person aggrieved of a violation of Subsection A or B of this Section shall be entitled to exemplary damages.

This statute is part of the Louisiana Medical Assistance Programs Integrity Law adopted in 1997 and was intended to “protect the fiscal and programmatic integrity of the medical assistance programs from health care providers and other persons who 17engage in fraud, misrepresentation, abuse or other ill practices, as set forth in this Part, to obtain payment to which there health care providers or persons are not entitled.” La.R.S. 46:437.2(B). Dr. Mixon does not assert that Iberia Surgical fraudulently sought payment from the Medicaid Program to which it was not entitled. Rather, Dr. Mixon alleges Iberia Surgical was attempting to limit the number of Medicaid patients treated at the facility. Iberia Surgical’s alleged effort to limit the referral of medicaid patients to the facility is not prohibited under the Louisiana Medical Assistance Programs Integrity Law. Therefore, the whistleblower provision of the statute contained in La.R.S. 46:440.3 does not apply. Moreover, the whistleblower provision under the Act is intended to protect individuals reporting violations under the statute from threats, harassment or discrimination. The actions of Iberia Surgical in terminating his membership does not rise to the level of threats, harassment or discrimination within the definition of the Act. We find no merit to this argument.

Action for Abuse of Rights

Dr. Mixon does not dispute the Operating Agreement allows for the termination of a partner by unanimous vote of the membership. Article 3.2(g) of the Operating Agreement provides:

Termination Without Cause. A Member may be Terminated Without Cause, by unanimous vote in writing of the remaining Members of the Company. Such Termination Without Cause shall be treated as though the Member were expelled from the Company as provided in Section 3.2(e)(iv) above.

However, Dr. Mixon asserts the exercise of this contractual right by Iberia Surgical to terminate his membership was a abuse of right and violates moral rules, good faith, and elementary fairness. He also contends there was an absence of a serious or legitimate motive for the exercise of the right and, therefore, he concludes it was done | ⅜⅛ cause harm. Dr. Mixon contends the trial court erred in determining Iberia Surgical could not be subject to an action for abuse of rights.

The abuse of rights doctrine is a civilian concept which is applied only in limited circumstances because its application renders unenforceable an individual’s otherwise judicially protected rights. Johnson v. KTBS, Inc., 39,022 (La.App. 2 Cir. 11/23/04), 889 So.2d 329. This doctrine applies when one of the following conditions is met: “(1) the predominant motive for exercise of the right is to cause harm; (2) there is no legitimate motive for exercise of the right; (3) exercise of the right violates moral rules, good faith, or elementary fairness; or (4) exercise of the right is for a purpose other than that for which it was granted.” Id. at 334. This doctrine is typically applied in situations involving the cancellation of insurance coverage. Although the insurer may have right to modify or cancel the policy, the courts have held public policy considerations may prevent the insurer from exercising this right. For example, in James v. State, 93-0902 (La.App. 1 Cir. 4/8/94), 636 So.2d 1017, the appellate court held the abuse of rights doctrine prohibited a State group health insurance plan, from applying a benefit modification to an individual who was previously diagnosed and treated for cancer. The appellate court stated: “Although an insurer may have the contractual right to cancel a policy, many courts hold that public policy prevents an insurer from terminating benefits with respect to previously diagnosed and treated illnesses.” Id. at 1020.

We agree with the trial court that Dr. Mixon cannot support a claim for abuse of right. The members of Iberia Surgical, including Dr. Mixon, negotiated a business agreement the purpose of which was to establish a profitable out-patient surgery center. There is ample evidence in the record, including Dr. Mixon’s own testimony, to establish he objected to the way the facility was being managed and had serious ^concerns regarding the distribution of income within the group. His views were not well received and represented the minority opinion within the organization. When the partners refused to cooperate with his suggestions, he reported them to federal authorities. Dr. Mixon then revealed to the partners that he had contacted federal investigators. Once this occurred, it became apparent that the animosity which existed between Dr. Mixon and his partners would be detrimental to the welfare of the business venture. A decision was made to buy-out Dr. Mixon’s interest and sever financial ties with him. The Operating Agreement which Dr. Mix-on negotiated and signed, gave Iberia Surgical the right to terminate one of its members without cause. Dr. Mixon has provided no evidence to suggest the termination was done to cause him harm or for any other reason than a legitimate business reason. The provisions of the Operating Agreement are straight-forward and provide a formula for compensation of its members in the event of a termination or withdrawal. There is no evidence to suggest the terms of the Operating Agreement violates moral rules, good faith, or elementary fairness. We find no merit to this argument.

Adequate Compensation

Dr. Mixon contends he was not adequately compensated for his interest in Iberia Surgical. The Buy-Out provisions of the Operating Agreement are contained in Article 3.3, which provides:

Buy-Out Upon Termination of Membership; Fair Market Value Determinations. Upon termination of a Member’s Interest, for any reason, there shall be no return of such Member’s Capital Contribution(s). Any Member who voluntarily withdraws from the Company as provided in this Agreement shall be entitled to receive the value of such Withdrawing Member’s Interest to be determined as set forth in Exhibit E, attached hereto. The value of the Withdrawing Member’s Interest in the Company shall be in accordance with its “Fair Market Value” as of the most recent determination by the Company’s accountant in that regard. Fair Market Value determinations as to Membership Interests shall be made by the Company’s Accountant, unless otherwise unanimously agreed to in writing by the Management |inCommittee members, all in accordance with the provisions set forth in Exhibit E.

Exhibit E, Section 1, provides:

(c) Purchase Price and Terms. The Purchase Price of a Former Member’s Interest which is sold as a result of the occurrence of a Dissolution Event, shall be determined as follows:
(ii) The “Book Value” means the “fair market value” of a Membership Interest computed in accordance with generally accepted accounting principles, of the net equity of the Company as of the end of the last full taxable year immediately preceding the year in which the Event giving rise to the purchase and sale of the Membership Rights or Interest occurred. Notwithstanding anything contained in this Agreement to the contrary, the computation of Book Value shall be subject to the following provisions.
(ff) Book Value shall be determined by the accountants regularly employed by the Company. The determination of the accountants shall, for the purposes of this Agreement, be binding and conclusive upon all parties.

Dr. Mixon contends “Book Value” is not synonymous with “Fair Market Value.” He contends the Operating Agreement requires his membership share should be computed according to the “Fair Market Value,” which he defines as the price a seller is willing to accept and a buyer is willing to pay on the open market. In support of his theory, he submits the affidavit of Chris Rainey, a certified public accountant and certified valuation analyst. Mr. Rainey testified the appropriate method to use in determining the “Fair Market Value” of Iberia Surgical is to locate a comparable in the area. His search for a comparable led him to the 1989 sale of Physicians Surgery Center in Houma. Mr. Rainey determined Physicians Surgery Center was sold for a price equal to 9.89 times its net income. He then determined the net income of Iberia Surgical for the tax year ending December 2001 was $806,062. He multiplied that number by 9.89 and concluded the fair market value of Iberia Surgical to be $7,971,953. Therefore, Mr. Rainey calculated Dr. Mix-on’s 9.09% equity interest, after discounting for a minority interest, was valued at $483,100.

|nWe agree the terms “Book Value” and “Fair Market Value” are not synonymous and have generally recognized meanings in accounting in valuation. However, the Operating Agreement, Exhibit E, defines the terms interchangeably and specifically provides: ‘Book Value’ means the ‘fair market value’ of a Membership Interest computed in accordance with generally accepted accounting principles, of the net equity of the Company as of the end of the last full taxable year immediately preceding the year in which the Event giving rise to the purchase and sale of the Membership Rights or Interest occurred.” (emphasis added). Under the agreement, the “Book Value shall be determined by the accountants regularly employed by the Company.” We find the terms of the Operating Agreement clear and controlling in determining the amount owed to a member. Dr. Rainey’s calculations were based on “fair market value” which was not the standard agreed upon by the parties. Under the terms of the Operating Agreement, the parties agreed to use the “book value” in determining the value of a member’s interest, not fair market value. The book value of a business “has a well-defined meaning, is unambiguous, and is susceptible of only one construction. It is the value as shown by the books of the business, and no other value.” Succession of Jurisich, 224 La. 325, 69 So.2d 361, 362 (1953). Book value is calculated by measuring the assets of the business against its liabilities. Good will, actual value or value in the open market, is not considered in determining book value. Id.

Iberia Surgical submitted the testimony of Caroline C. Boudreaux, the certified public accountant hired to determine the amount owed to Dr. Mixon, under the terms of the Operating Agreement. Ms. Boudreaux testified she examined the books of the 112business and calculated Dr. Mixon’s interest to be $71,356.85. Dr. Mixon does not contend the calculations used by Ms. Boudreaux are incorrect. Instead, he contends she used “book value” instead of value in the open market or “fair market value.” We find no error in the decision of the trial court finding Dr. Mixon was compensated in accordance with the terms of the Operating Agreement.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court granting summary judgment in favor of Iberia Surgical and dismissing all claims of Dr. Mixon. All costs of this appeal are assessed to Dr. Tynes Mixon, III.

AFFIRMED.

      . Dr. Rainey’s calculations were based on a comparison of Iberia Surgical in New Iberia with a surgery facility in Houma. There is no evidence to suggest the two facilities are comparable and the same market factors are applicable, such as patient base and level of competition in the surrounding area.


author: GREMILLION, Judge. AMY, J.,

text:
    STATE of Louisiana v. Dennis Wayne BAKER.
    No. 2006-1218.
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2007.

      James C. Downs, District Attorney, Charles Edward Johnson, Assistant District Attorney, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Edward Kelly Bauman, La Appellate Project, Lake Charles, LA, for Defendant/Appellant, Dennis Wayne Baker.
    Dennis Wayne Baker, Winnfield, LA, pro se.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

pin this case, the defendant, Dennis Wayne Baker, was convicted of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1, and was sentenced to serve fifteen years at hard labor without benefit of parole, probation, or suspension of sentence. He is now before this court on appeal asserting that there is insufficient evidence to sustain his conviction and that his sentence is excessive. For the following reasons, we affirm.

FACTS

From February 2005 to June 2005, Detective Buddy Willis of the Rapides Parish Sheriffs Office conducted an investigation of Defendant, a convicted felon, with regard to the illegal possession of firearms as a felon. In taped conversations between Defendant and his girlfriend, Sandra Rashall, during his incarceration in the Rapides Parish Correctional Facility on an unrelated charge, he indicated that he possessed guns prior to his incarceration.

On June 14, 2005, Detective Willis executed a search warrant and recovered a rifle from the home of Donna Hastings and a rifle from the home of Derek Belgard, which were allegedly possessed, in part, by the Defendant during the time of the investigation. A pistol was recovered from Rashall’s residence.

SUFFICIENCY OF EVIDENCE

In this assignment of error, Defendant argues that the evidence presented at trial was insufficient to sustain his conviction. He maintains that there was no evidence presented to show that he intended to possess the guns in question, that he ^possessed the guns, that the guns in question were in his immediate control, or that he had constructive possession of the guns.

The analysis for a claim of insufficient evidence is well-settled:

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

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

The elements of the charge, possession of a firearm by a convicted felon, are set forth in La.R.S. 14:95.1(A) (footnote omitted) as follows:

It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(13) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541(14.1), or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

| ..¡Defendant does not dispute that he has prior felony convictions and that the ten-year cleansing period under the provisions of La.R.S. 14:95.1(0(1) has not run.

Early in the trial, the State offered into evidence a transcript of telephone conversations between Defendant and Rashall, with whom he lived, which were taped when he was incarcerated. The conversations occurred when Defendant entered into the jail system on May 19, 2005, until about two months later. The conversations were read aloud at trial and the following involve Defendant’s alleged possession of the guns:

DB: Do me a favor? Let’s get over this right now. Call Donna now on her cell.
SR: No, don’t get ugly with her.
DB: I ain’t going to get ugly.
SR: She’s not any (can’t understand). No, I know. I want to talk to you right now and today. Just call back and then we’ll call Donna and you tell Donna to give me the gun. I want the gun out of her house and away from her, do you hear me?
DB: Yes.
SR: Because that’s our gun — that’s your gun and my gun.
DB: I worked on that mother f-long enough.
SR: That’s right. That was an antique and you worked on it for a month.
DB: That’s your grandpa’s gun.
SR: That’s right. That’s my grandpa’s gun and I told her — and I told her, I said, I called her one day about the gun and I said, “you make sure nothing happens to that gun, Donna, because then it’s — that’s an antique gun and Dennis worked on that thing to redo it.”
|4DB: I appreciate that. Call P.J. When you hang up with him and tell him to come over here and look at the tools I got, and tell him to pawn — you know, you need some money, I need some money, and to pawn my drywall tools. None of them are stolen, okay. I’ve got the papers on that gun at the house somewhere, because I bought the gun for one, okay — I bought the gun for one when I had my own little business going on. Tell them it’s legal, everything’s legit.
Hey, I love you.
DB: We’re about to get nasty. We’re going to do the nasty for a week, maybe two, but I ain’t leaving. Those cell phones going in the mother f cesspool. I’m throwing the mother fs dead in the s-t tank. I ain’t bulls— tting. The mother f cell phone, the house phone is going in the — and the cell phone; I don’t want to hear nar [sic] a mother f. If they come out there, make sure both my guns are loaded and I’m just going to walk out the door and start shooting. Get the f— out, old bitch, don’t come back; the next bullet’s going to be in you. You been practicing?
SR: Yeah.
DB: They shooted [sic] the 22?
SR: No, I hadn’t.
DB: You ain’t shot a gun?
SR: No.
DB: I’m going to have to clean that mother f because we—
SR: Yeah, I already cleaned it.
DB: We shot the f— out of that mother f the day we shot over-how many bullets we shot?
SR: Oh, I don’t know. I cleaned it since then.
DB: Oh, you did?
SR: Uh — I cleaned it when I got home because (cannot understand).

Next, the State called Rashall who testified that she lived with Defendant from February 2005, until May 2005. She identified a gun that had been seized from | sher home and testified that Defendant had brought it to her home. According to Rashall, the weapon belonged to Defendant and they shot it together. Rashall stated that she did not want to lie by saying that gun belonged to her to cover for Defendant, and she denied having a grudge against him.

On cross examination, Rashall admitted that she had been convicted of possession of marijuana and that she has two counts of aggravated burglary, four counts of burglary of a dwelling, and two counts of theft over $500 pending against her. She also admitted that she was on probation for theft of $300 to $500 in Grant Parish. However, she testified that she was not promised anything by the district attorney, the assistant district attorney, or Investigator John Allen as an inducement to testify against Defendant. Further, Detective Buddy Willis of the Rapides Parish Sheriffs Office also testified that the district attorney’s office did not make any promises or inducements to Rashall or Donna Hastings to get them to testify.

Hastings, the woman referred to in the taped conversations, testified that her husband was very good friends with Defendant. She explained that after her husband had been incarcerated, she wanted a gun for safety since she was living alone. According to Hastings, Defendant told her that he had a gun that belonged to Ras-hall’s grandfather that she could borrow for her protection. Hastings went to the home of Defendant and Rashall and Defendant gave her the gun and showed her how to load and shoot it. Hastings could not remember the date she picked up the gun, but acknowledged that it was prior to Defendant’s incarceration in May 2005.

Detective Willis testified that Hastings consented to a search of her house and she voluntarily gave him the gun. The search occurred on June 14, 2005, Rwhen Defendant was incarcerated. In Hastings’ statement to Detective Willis, she stated that she got the gun from the Defendant. Detective Willis also testified that Defendant’s fingerprints were not on the gun.

A rifle was retrieved from the home of Derek Belgard on May 17, 2005, when Mr. Belgard was arrested. Defendant’s fingerprints were not on the gun and there was no paper work linking him to the gun.

While Defendant is correct in his assertion that there were no fingerprints found on the weapons, the taped conversations corroborated the testimony of the two fact witnesses who testified that he did possess the firearms. As we noted in State v. Brooks, 99-478, p. 4 (La.App. 3 Cir. 12/8/99), 756 So.2d 336, 339, writ denied, 00-1492 (La.5/25/01), 792 So.2d 750:

Neither possession of a firearm by a convicted felon nor illegal carrying of weapons requires actual physical possession of a firearm upon the person of the accused; constructive possession of a firearm satisfies the possessory element. State v. Armentor, 94-745 (La.App. 3 Cir. 2/1/95); 649 So.2d 1187, writ denied, 95-0557 (La.6/30/95); 657 So.2d 1027, citing State v. Day, 410 So.2d 741 (La.1982). Constructive possession exists when the illegal object is subject to the defendant’s dominion and control. State v. Johnson, 463 So.2d 778 (La.App. 4 Cir.1985).

See also State v. Joseph, 02-1370 (La.App. 3 Cir. 4/17/03), 854 So.2d 914. Therefore, the evidence admitted at trial was sufficient to show that Defendant had actual possession or, at the very least, dominion and control over a firearm, which amounted to constructive possession. Accordingly, this assignment of error is without merit.

EXCESSIVE SENTENCE

By this assignment, Defendant argues that the sentence imposed by the trial court was unusual and excessive. Defendant did not file a motion to reconsider |7his sentence in the trial court. Thus, he is limited on appeal to a review of a bare claim of excessiveness. State v. Mims, 619 So.2d 1059 (La.1993).

As we have noted, Defendant was found guilty of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1, which states in pertinent part:

B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

Therefore, he received the maximum sentence of fifteen years.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331 (alteration in original).

In State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-0433 (La.6/25/99), 745 So.2d 1183, our colleagues on the Fifth Circuit Court of Appeal noted three factors the appellate court should consider in reviewing a judge’s sentencing discretion. They are:

1. the nature of the crime,
|s2. the nature and background of the offender, and
3. the sentence imposed for similar crimes by the same court and other courts.
State v. Telsee, 425 So.2d 1251 (La.1983); State v. Richmond, 97-1225 (La.App. 5 Cir. 3/25/98), 708 So.2d 1272.

Id. at 58.

At sentencing, the trial court reviewed Defendant’s prior criminal history which included nine felony convictions in addition to pending charges of two counts of aggravated burglary, six counts of burglary of a dwelling, and four counts of theft over five hundred dollars. The trial court was also informed that the Defendant was convicted of unauthorized entry of an inhabited dwelling in Grant Parish in 2005. Considering his prior criminal history in Rapides Parish, the trial court imposed the maximum sentence for the crime. However, the trial court did not articulate any other reasons for imposing the fifteen-year sentence.

In State v. Morvan, 31,511 (La.App. 2 Cir. 12/9/98), 725 So.2d 515, writ denied, 99-0186 (La.5/28/99), 743 So.2d 659, the court of appeal upheld a maximum fifteen-year sentence for possession of a firearm by a convicted felon, noting defendant’s multiple felonies, including two violent crime convictions and at least three DWI dispositions. The court of appeal concluded that the defendant showed a continued propensity for illegal activity and a failure to benefit from prior leniency. Further, the appellate court noted the defendant’s predilection toward alcohol, and believed that the defendant demonstrated an inclination toward violence by using a gun to threaten someone’s life.

Because of Defendant’s extensive criminal history, we hold that the trial court did not abuse its broad sentencing discretion. Although the trial court did not state whether it considered the nature of the crime or sentences imposed for similar crimes by the same court and other courts, the record clearly demonstrates ^Defendant’s propensity for illegal activity. Also, his recorded telephone conversations found in the record, which are referred to herein, reflect a total disregard for the law as demonstrated by Defendant’s involvement in committing the instant offense. Accordingly, we affirm Defendant’s sentence of fifteen years at hard labor.

RECUSAL OF ASSISTANT DISTRICT ATTORNEY

In this assignment of error, Defendant argues that the trial court erred in denying his motion to recuse Assistant District Attorney Charles Johnson, who was prosecuting his case. Defendant maintains that Mr. Johnson had previously represented him in 1998 while Mr. Johnson was employed with the Public Defender’s Office. Because of that, Defendant contends that it was inherently prejudicial to allow Mr. Johnson to represent the State in prosecuting him, as both the present charge and his previous charge can be used against him at any habitual offender proceedings the State may choose to institute.

In State v. Bourque, 622 So.2d 198, 216-17 (La.1993), the Louisiana Supreme Court addressed the defendant’s burden in a motion to recuse a district attorney as follows:

In a motion to recuse the district attorney, “the defendant bears the burden of showing by a preponderance of the evidence that the district attorney has a personal interest in conflict with the fair and impartial administration of justice.” State v. Edwards, 420 So.2d 663, 673 (La.1982). While this standard of proof is applicable for the disqualification of an assistant district attorney, the grounds for disqualification are not necessarily restricted to the statutory grounds to recuse a district attorney as set forth in La.C.Cr.P. art. 680. See State v. Allen, 539 So.2d 1232, 1234 (La.1989).

Further, in State v. Brown, 274 So.2d 381, 382 (La.1973), the supreme court stated, “The mere fact that an assistant district attorney previously represented an accused |1ndoes not [ijpso facto require disqualification of the District Attorney in the criminal proceeding.”

Louisiana Code of Criminal Procedure Article 680 provides, in part, that a district attorney shall be recused when he has been employed or consulted in the case as attorney for the defendant before his election or appointment as district attorney. However, as noted in Bourque, 622 So.2d 198, and State v. Allen, 539 So.2d 1232 (La.1989), the grounds required for the disqualification of a district attorney are not necessarily restricted to the statutory grounds set forth in Article 680. The supreme court in Allen held that “although art. 680 expressly requires recusation when the district attorney was previously employed ‘in the case,’ the ethical rules and the jurisprudence impose a broader gloss on the statutory requirement by providing for recusation when the district attorney was previously employed in ‘a substantially related matter.’ ” Id. at 1234. Thus, the question before this court is whether Mr. Johnson’s prior representation of Defendant is substantially related to the instant criminal proceeding.

In Allen, the supreme court approved the substantial relationship test adopted by the federal courts, which set forth the standards of proof used for attorney disqualification:

In [United States v.] Kitchin, [592 F.2d 900, 904 (5th Cir., cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (1979) ], the court rejected the idea that confidential information must have been disclosed in order for the recusation to be proper and stated:
So long as the affected party can show that the matters involved in the previous representation are substantially related to those in an action in which the attorney represents an adverse party, the former client is entitled to the disqualification of the lawyer.
|nThe aggrieved party need not prove that [the lawyer] actually obtained confidential information nor that he has or will disclose it to his present employer.

Similarly, the Eighth Circuit in [State of Arkansas v.] Dean Foods [Products Co., 605 F.2d 380, 383 (8th Cir.1979) ] reiterated the rule for attorney disqualification:

[T]he former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action [where] the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation.

Id. at 1234 (alterations in part in original).

In Allen, the assistant district attorney prosecuting the defendant for conspiracy charges had previously represented the defendant in bankruptcy. The defendant moved to recuse the assistant district attorney, which was denied by the trial court and affirmed on appeal. The supreme court reversed the appellate decision, finding that the assistant district attorney’s representation of the defendant in the bankruptcy proceeding concerned matters substantially related to the conspiracy charge against him. More specifically, the court concluded that an essential element in the conspiracy charge was the defendant’s intent to defraud which could have been called into question by the events that occurred in the bankruptcy proceeding.

As noted by Defendant in his supplemental brief, this issue was before this court in State v. Gardner, 94-594 (La.App. 3 Cir. 11/2/94), 649 So.2d 519, reversed, 94-2954 (La.3/24/95), 651 So.2d 282. In Gardner, J. Reed Walters was court appointed counsel for the defendant’s first two DWI offenses. In his limited representation of the defendant, Mr. Walters filed pre-trial motions and may have passed on information about a potential plea bargain agreement. The defendant also consulted another attorney, Norris D. Jackson, but chose not to retain him as counsel. | ^Eventually, the defendant replaced Mr. Walters with another attorney, Edward Larvadain. After the defendant retained Mr. Larvadain, Mr. Walters ceased all contact with the defendant and the case, and the defendant ultimately pled guilty to both offenses while represented by Mr. Larvadain.

The defendant was charged with DWIs a third and fourth time, the fourth charge being the subject of the litigation at issue. Prior to Defendant’s fourth DWI, Mr. Walters was elected district attorney, and he hired Mr. Jackson to serve as an assistant district attorney. After taking office, the defendant was arrested for his fourth DWI, and in Mr. Walters’ capacity as district attorney, he charged the defendant as a fourth DWI offender pursuant to La.R.S. 14:98(E).

The defendant filed a motion to recuse both Mr. Walters and Mr. Jackson from prosecuting the matter because they had previously represented or counseled him for his first two DWIs. The trial court granted the defendant’s motion and re-cused the district attorney and his office. On appeal, this court reversed the trial court’s ruling, stating:

We have considered the holding of [State v.] Allen, [539 So.2d 1232 (La.1989) ] in conjunction with LSA-C.Cr.P. Art. 680 and conclude that the trial court erred by granting the defendant’s motion to recuse Mr. Walters and Mr. Jackson from prosecuting this case. Unlike the facts addressed in Allen, supra, Mr. Walters and Mr. Jackson’s brief contact with the defendant bears no substantial relationship to any of the elements needed to convict the defendant for his fourth DWI offense.
When the defendant entered his previous guilty pleas, Mr. Walters was discharged. The defendant was represented only by Mr. Larvadain when he entered his guilty pleas and the minutes from these guilty pleas so reflect. Since these predicate DWI offenses are guilty pleas, the inquiry as to their constitutional validity will only concern Mr. Larvadain, not Mr. Walters and Mr. Jackson.
Accordingly, under these circumstances, we find that Mr. Walters’ limited representation of the defendant for his December 27, 1985, and February 1, 1986, DWI charges fails to involve matters substantially related to any element of the DWI charge now against the defendant. The record indicates that after being replaced as counsel by Mr. |1sLarvadain on October 6, 1987, Mr. Walters ceased all contact with the defendant and played no role in the defendant’s decision to plead guilty to the DWI charges in question on April 5, 1988. A fortiori, we also reach the same conclusion regarding Mr. Jackson’s consultation with the defendant.

Id. at 522-23. However, the defendant applied for writs in the supreme court which was granted, and ultimately the judgment of the court of appeal was reversed and the ruling of the trial court was reinstated, without reasons. State v. Gardner, 94-2954 (La.3/24/95), 651 So.2d 282.

In the instant case, Defendant moved to recuse Assistant District Attorney Charles Johnson as prosecutor and the Rapides Parish District Attorney’s Office. In his written motion, Defendant asserted that he was charged with simple escape in Rap-ides Parish in 1998, and was represented by attorney Bridgette Brown. At the time of his trial, Ms. Brown was not present and Mr. Johnson, her associate at the time, appeared on behalf of Defendant and entered a guilty plea on his behalf.

At the hearing in the ease sub judice, the trial court noted that Mr. Johnson stood in for Ms. Brown when Defendant actually entered the guilty plea to the charge of simple escape. Defendant disagreed, stating that Mr. Johnson stood in on two other occasions. However, the record reflects that Mr. Johnson reviewed the minutes in Defendant’s numerous felonies and had located only one instance wherein he stood in for Ms. Brown and that the matter involved a guilty plea.

Considering the information set forth in Defendant’s motion and the facts adduced at trial, we And that the Defendant has failed to show that the matters involved in Mr. Johnson’s previous representation are substantially related to those in the instant matter. In other words, he failed to show that the matters embraced within the pending charge for possession of a firearm by a felon are substantially related to the matters in the 1998 criminal action wherein he pled guilty to simple | uescape. The mere possibility of future litigation involving a habitual offender proceeding, which could encompass the conviction for simple escape and possession of a firearm by a felon, does not warrant the recusal of Mr. Johnson in the instant matter. The present case is distinguishable from Allen and Gardner because Defendant here relies upon speculation about future charges rather than a substantial relationship to the charges at hand. Accordingly, this assignment of error is without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant did not formally assign as error the ineffective assistance of counsel in his pro se brief to this court, but he did argue in that brief that his counsel was ineffective in that he did not question Ras-hall regarding her bias for testifying on behalf of the State. In the interest of justice, we shall address that issue herein. Specifically, Defendant claims that Rashall had a great interest in testifying against him because there were charges pending against her at the time of her testimony and she received a probated sentence for those charges.

As noted by the supreme court in State v. Leger, 05-0011, p. 44 (La.7/10/06), 936 So.2d 108, 142-43, cert. denied, — U.S. —, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007):

“Initially we note that ineffective assistance of counsel claims are usually addressed in post-conviction proceedings, rather than on direct appeal.” State v. Deruise, 1998-0541 p. 35 (La.4/3/01), 802 So.2d 1224, 1247-1248, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001). The post-conviction proceeding allows the trial court to conduct a full evidentiary hearing, if one is warranted. State v. Howard, 1998-0064 p. 15 (La.4/23/99), 751 So.2d 783, 802, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). Where the record, however, contains evidence sufficient to decide the issue, and the issue is raised on appeal by an assignment of error, the issue may be considered in the interest of judicial economy. State v. Smith, 1998-1417 (La.6/29/01), 793 So.2d 1199 (Appendix, p. 10), cert. denied, 535 U.S. 937, 122 S.Ct. 1317, 152 L.Ed.2d 226 (2002); State v. Ratcliff, 416 So.2d 528 (La.1982).
| iSUnder the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by this court in State v. Washington, 491 So.2d 1337, 1339 (La.1986), a reviewing court must reverse a conviction if the defendant establishes: (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect.

Initially, we find that the record on appeal is sufficient to decide Defendant’s claim of ineffective assistance of counsel in this case. First, we note that he refers to La.R.£>. 15:492, which has been repealed, and La.R.S. 15:495, which is not a valid statute. However, Defendant is correct in his assertion that he is entitled to confront and cross-examine Ms. Rashall pursuant to La. Const, art. 1, § 16. In that regard and in conformity with that constitutional authority, defense counsel was permitted to cross-examine Rashall. On cross-examination, defense counsel delved extensively into the criminal background of Rashall. She admitted that she had criminal charges pending against her, including two counts of aggravated burglary, two counts of burglary of a dwelling, and two counts of theft over $500, arising from one arrest, in addition to charges stemming from another arrest which had not yet been tried. She also testified that she had a prior felony conviction of possession of a controlled dangerous substance, marijuana. Defense counsel also ascertained that at the time of trial, Rashall was on probation for theft of $300 to $500 in neighboring Grant Parish.

Further, in response to defense counsel’s questioning, Rashall testified that she was incarcerated at the time the weapon was found in her home. When asked if she was convicted of a felony when the gun was found, she responded, “No.” Lastly, Ms. Rashall admitted under questioning by defense counsel that she had previously testified against Defendant. She maintained, however, that Detective 11fiWillis did not ask her to testify against Defendant and that she did so because she “didn’t do these things on my own.”

The record, therefore, does not support Defendant’s allegation that defense counsel failed to challenge Rashall’s credibility on cross-examination. Further, Defendant fails to show either that his counsel’s performance fell below an objective standard of reasonableness or that counsel’s alleged inadequate performance prejudiced him to the extent that his trial was rendered unfair and the verdict suspect. Accordingly, we find that there is no merit to this claim.

CONCLUSION

Defendant’s conviction and sentenced are affirmed.

AFFIRMED.

AMY, J., concurs in part, dissents in part, and assigns reasons.

AMY, J.,

concurring in part and dissenting in part.

|TI join the majority in the affirmation of the defendant’s conviction. However, I dissent in part as I would vacate the defendant’s sentence due to the trial court’s failure to impose the mandatory fine of La.R.S. 14:95.1. See State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. I would then remand for re-sentencing in accordance with the statute.