author: MARION F. EDWARDS, Judge.

text:
    Kim Ruffin STRAUGHTER, Wife of/and Anthony Straughter, Individually and on Behalf of their Minor Daughter, Amami Straughter v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, John Doe, American Freightways, Inc. and/or American Freightways Corporation.
    No. 05-CA-699.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Ford T. Hardy, Jr., Denham Springs, Louisiana, for Plaintiffs/Appellants.
    Dwayne R. McClure, New Orleans, Louisiana, for Defendant/Appellee.
    John E. Galloway, Kimberly G. Anderson, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

| aPlaintiffs/appellants, Kim Ruffin Straughter, wife of and Anthony Straughter, individually and on behalf of their minor daughter, Amani Straughter, appeal a judgment of the district court dismissing their claims against defendants/appellees American Freightways (now FedEx East, Inc.) and Government Employees Insurance Company (GEICO). On a tragic note, in brief, counsel for the Straughters has informed this Court that less than ten months following trial in this matter, Mrs. Straughter passed away from causes not related to the accident herein. The record does not disclose a substitution of parties.

The Straughters filed suit against GEI-CO and American Freightways alleging that, on May 27,1998, Kim Straughter was operating a Chevy Blazer, owned by Alamo Rent-A-Car, with her husband and daughter as passengers. According to the petition, while proceeding westbound in the right-hand lane of [¡¡Interstate 10 approaching the George Wallace Tunnel in Mobile, Alabama, a large red and white eighteen-wheeler truck attempted to merge into their lane of travel, striking the front of their vehicle and forcing it off the road and into a barricade. It was further asserted that the truck was operated by an unknown driver and owned by American Freightways. The Straughters alleged serious personal injury as a result of the accident. American Freightways was purchased by FedEx East Freight, Inc. around 2001.

At trial, Mr. Straughter testified that he is a dog breeder and, at the time of the accident, he had gone to Florida to pick up two dogs that were in a kennel in the back of the vehicle, a Chevy Blazer that the family had rented. Besides Mrs. Straughter and their daughter, a neighborhood friend, Leon Robinson, was along for the ride. On the trip home from Jacksonville, Mr. Straughter dozed off. Sometime after midnight he felt a jolt. When he awoke, Mrs. Straughter was screaming, and he stuck his arm out to brace himself as they hit the guardrail head on. They were going about 45-50 miles per hour in the right lane and went about twenty yards more before the Blazer stopped, ending up on the left side of the highway. There was smoke coming out of the hood. Mr. Straughter saw the rear trailer of an eighteen-wheeler near the front of the Blazer in the left lane. It was a white trailer with the name “American Freight-ways” on the back. The impact would have been in the front left-hand side of the Blazer. No one stopped. The family called the rental car company, who picked up the vehicle and replaced it with another SUV. The accident happened before reaching the Mobile Tunnel.

Mr. Straughter injured his left wrist, shoulder, and arm, as well as his neck. He saw Dr. Brinkman, and was told he had a hairline fracture in his wrist and neck spasms. He was treated for two or three months, although the pain lasted about six months.

[4On cross-examination, Mr. Straughter was presented with some inconsistent statements from an earlier deposition. In that deposition, he stated he felt two jolts rather than one prior to hitting the guardrail and that the accident occurred after the Mobile Tunnel. He further testified that he was involved in two other auto accidents after this one, one on November 8, 1998, as well as two accidents prior to the current action. He admitted that he never tried to contact American Freight-ways after the accident.

Kim Straughter testified that she, her husband, daughter, and Mr. Robinson, were on the way to Jacksonville, Florida to pick up one dog. Mr. Robinson had had some beers and was asleep in the back seat when the accident happened. It was starting to get dark, between 5:00 and 6:00 p.m. when they left Jacksonville. Because her husband had driven the entire trip there, Mrs. Straughter took over in Tallahassee and began driving. About four or five miles before reaching the tunnel in Mobile, at around 10:00 p.m., she noticed a truck coming alongside. Suddenly she felt something push and “grab hold,” and she ran straight into the barricade. She saw the trailer, which was light gray illuminated with the red lettering “American Freightways.” The truck came all the way over into her lane and hit the car. It felt as though there were two impacts, in the front and in the rear. The truck never stopped. When they got out of the car, the front bumper was hanging. The air bags had deployed, and the engine was smoking. They drove a short distance to a gas station and reported the accident. The police officer told them to make a short report because he was investigating a shooting at the gas station. Mrs. Straughter told him the name of the truck that ran them off the road.

Later, the towing company came and brought them a mid-size Contour to drive home. Mrs. Straughter testified that, on the date of the accident, she was already totally disabled from several previous accidents. She had another auto | ¡^accident since the one in question. By the time of the present accident, she had started to feel better. However, here she suffered injuries to her chin, left leg, chest, neck, and back. She had been treated by Dr. Stuart Phillips and Dr. Robert Lesser. At the time of trial, she had a steroid shot and was not hurting when she testified. However, she has ongoing back pain and, as a result of the combination of accidents, has problems sitting, standing, and walking. She has trouble swimming and horseback riding and problems doing activities with her children. She is currently in vocational rehabilitation.

Dr. Phillips suggested she have breast reduction surgery to help ease her back pain, but the operation did not relieve her back. Mrs. Straughter testified that the testimony of Dr. Laborde (infra) was a lie. He tried to make her bend over, and she stopped him right away because it was painful. According to Mrs. Straughter, Dr. Laborde never touched her.

Mrs. Straughter stated at trial that the only reasons they rented a truck for the trip was because the tires on her SUV were bad, because she didn’t want wear and tear on her vehicle, and didn’t like the smell of the dogs. In a recorded statement to the defendant, admitted into evidence, she stated the vehicle was rented because her truck was being repaired at the time of the accident at Guy’s Body Shop. In her trial testimony, she admitted that statement was inaccurate and indicated the shop was “supposed to have been Firestone;” her statement mentioned Guy’s Body Shop, because there was damage to her SUV from a previous accident. In the statement, Mrs. Straughter had said the dogs were picked up in Alabama. She testified at trial that her response involved other places where dogs had been picked up. Her statement indicated that she had cuts and bruises on her face and leg and suffered a bulging disc from her accident in 1994. According to the statement, someone came up behind them to see if they were all right, and | (followed them to the exit, staying until the police came. The officer talked with that person. Nowhere in her statement did she mention a Jacksonville destination.

Mrs. Straughter testified that she fell off of a horse when she was about seventeen years old and landed on her back. She received a muscle relaxer and was released. In 1993, she was in an auto accident and injured her neck, back, and shoulders. That claim was settled. In 1994, she injured her back in a boating accident, which resulted in a lawsuit. In 1995, she slipped and fell and received workers’ compensation. There was another accident in April 1996, where she injured her shoulder and back and was temporarily totally disabled. In May 1997, a drunk driver hit her, causing serious injuries. An accident in October 1998, was very light, causing some stiffness and injuries to her neck and back, although her shoulder started to feel better. Her neck and back were still hurting before that latter accident. That case was settled. In November 1998, yet another accident occurred, causing injury to Mrs. Straughter’s neck, back, and left leg. In May 2003, an accident causing similar injuries occurred, which was settled out of court. The accident in Mobile did cause brand new injuries to her chin, chest, and knee.

Mrs. Straughter admitted that the photos of the SUV did not show damage to the driver’s side of the vehicle. She stated that she did not seek medical attention in Mobile, although Dr. Phillips’ report indicated she had gone to the emergency room in Alabama. She could not account for the discrepancy. Although she was in moderate pain, she stated she drove home from Mobile; later in her testimony, she indicated that she thought her husband had started driving and that she took over the wheel later. She had stated in her deposition that she had cuts from broken glass in the Blazer, but at trial, after viewing photos of the SUV, she testified that she had confused this accident with another one, and she had not been cut by glass.

|7Pr. James Laborde was accepted as an expert in the field of orthopedic surgery. He testified that he examined Mrs. Straughter in November 1999 and in May 2003, and reviewed her MRI’s and X-rays. According to the physician, she exhibited a mild positive Wadell test, which indicates a psychological problem causing or magnifying pain. She had tenderness in her back with no spasms and had a normal neurological exam. After the initial examination, Dr. Laborde concluded that there were no objective physical impairments, but her history evidenced non-organic back and neck pain. He recommended stopping narcotic pain medication and suggested an anti-inflammatory, diet, exercise, learning coping skills for pain, and returning to work. On the second exam, there were more positive tests indicating psychological factors with her complaints, and there were inconsistencies in other tests. Mrs. Straughter has arthritis, but there was no objective evidence of permanent residual injury from the accident. She may have had some sprains, which could be painful for a few weeks. The most common source of non-organic pain is anxiety, depression, or other psychological distress. The most likely explanation for her MRI results was the aging process. A medical report admitted into evidence showed that Mrs. Straughter suffered from clinical depression.

The deposition of John Hall, the investigating officer, was admitted in lieu of his testimony. He took the report from Mrs. Straughter at a gas station. Officer Hall reviewed a copy of his. report and stated that he did not visit the accident scene, but Mrs. Straughter stated that she swerved to avoid another vehicle. There were no injuries reported at that time, and, while there was an indication of damage to the right front of the vehicle, there was no notation of damage to the side. He did not observe any physical injuries of any passengers. If he had been given any information about the color or name of the eighteen-wheeler, or been informed |sthere was contact on the side of the vehicle, he would have written it down. If there had been contact on the side of the vehicle, it would have been noted. He had no recollection of a robbery happening at the gas station on the night of the accident.

Gary Bouch of American Freightways testified in his deposition that each of the trucks run double trailers. The trailers are white with American Freightways in red on each side, and the back doors are solid red, with the name painted in white along with a slogan of some sort. After reviewing company records, Mr. Bouch could not locate any tractor trailer that would have been present at the scene of the accident in Mobile, on the night in question, although there is one route through the tunnel at 8:00 a.m. The trucks are routinely scanned as they return to the company yard. There was no reason any of the trucks would be off their respective routes, and there were no reports by drivers of any accidents at that time. Theodore, Alabama, is the Mobile center for the company, about fourteen miles from the tunnel area, and there was no reason for any of the drivers to go east, as all routes are north from there. The last driver checked out from Theodore to go home at 10:19 p.m., which meant that he would have had to be at the yard approximately twenty minutes before to close out his paperwork.

' In his deposition, Ernest McClean, a supervisor of operations and city dispatcher for American/FedEx in Theodore, Alabama, testified that a city driver, Sean Edwards, checked out of the Theodore facility to go home at 10:19 p.m. on the night of May 14, 1998 and other employees checked out at 9:55 p.m. and 9:45 p.m. The paperwork indicated that all these employees were working in the facility at the dock that day. There was a truck that left the facility at 9:25 p.m., but it would not have gone near the tunnel.

IflDr. Stuart Phillips testified in his deposition that Mrs. Straughter was first a patient in the office in 1994, where she was treated by Dr. Louis Bogran for injuries sustained in an auto accident. She had back pain, and an MRI in 1995 revealed a herniated lumbar disc, for which she received conservative treatment. She was treated a number of times in the office for various complaints, including shoulder, left leg, and back pain. In addition to other medications, she received a cortisone injection in February 1997, which worked, although she has had recurrent problems. An accident in May, 1997 caused a new neck injury, and a recurrence of sacroiliac complaints that had cleared up prior to the accident. The diagnosis was cervical strain with a possible cervical disc. She continued with treatment for back pain for several months until June 1998, when she returned with complaints from the present accident. An MRI showed lumbrosacral disc desiccation, but the old hernia had healed. Dr. Phillips would have cleared her for light work. By November, she returned with continuing severe pain, having reported two more accidents. Dr. Phillips diagnosed an aggravation of her previous problems and did not feel she required surgery. He felt the injuries sustained by Mrs. Straughter would have aggravated her symptoms for about six months. She continued to be treated over the next several years for back and neck pain, and it was noted that she was depressed. Her continuing pain was related to her degenerative condition. In 2002, Mrs. Straughter wanted to have surgery but was told she was not a good candidate.

A medical report from Dr. Isadore Brickman of AMMS clinic, admitted into evidence, indicated that Mrs. Straughter was examined on My 27, 1998, and was found to suffer from pain in her chin, left leg, chest, low back, and neck. No acute signs were noted. She was diagnosed with a cervical sprain and a sprain of the | inIumbrosacral spine with possible aggravation of the herniated disc. She was given a poor prognosis and placed on full disability.

Following the presentation of the plaintiffs-appellants’ case-in-chief, both GEICO and American Freightways orally moved for a “directed verdict” in their favor alleging that the Straughters failed to meet their burden of proof.

LSA-C.C.P. art. 1672(B) applies to non-jury trials. That article states that after the plaintiff has completed the presentation of his evidence, any party may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

On appeal, the Straughters complain that the trial court committed manifest error in that it was so biased in favor of GEICO and prejudiced against them as to deprive them of a fair trial. In so doing, they point to a number of remarks made by the trial court in granting the involuntary dismissal.

Generally, a trial judge is presumed to be impartial; thus, a party contending that a judge did not act impartially is required to present some factual basis to support his claim and may not rely on conclusory allegations. The trial court is afforded discretion in conducting a trial, but that discretion is circumscribed by considerations of justice and fairness. The trial court is generally prohibited from engaging in a pattern of judicial conduct that demonstrates prejudice to one party or partiality to the other party. Improper conduct by the trial court constitutes Inreversible error, however, only when a review of the record as a whole reveals the conduct was so prejudicial that the complaining party was deprived of a fair trial.

Without quoting the particular remarks made by the trial court in granting the involuntary dismissal, we agree that some of them were untoward, unrestrained, and unnecessary. However, based on the record on appeal, we cannot conclude that these comments made by the court prejudiced the parties’ ability to enjoy a fair trial. The court based its judgment on a credibility evaluation of the Slaughters’ testimony.

The manifest error standard is used by an appellate court in reviewing a trial court’s ruling on a Motion for Involuntary Dismissal. The appellate court must determine whether the trial judge’s conclusion was reasonable, not whether it was right or wrong. In order to determine whether an involuntary dismissal is appropriate pursuant to LSA-C.C.P. art. 1672(B), the trial court must determine whether the plaintiff has presented sufficient evidence to establish his claim by a preponderance of the evidence. On appellate review, the grant of such motion will not be disturbed absent manifest error in a credibility determination or an error of law.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings.... However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the Court of Appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination....
hyBut where such .factors are not present and a factfinder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong....

The trial court weighed the credibility of Mr. and Mrs. Straughter when granting the motion for involuntary dismissal. We find nothing in the present case to support a finding of manifest error in this evaluation. There were significant inconsistencies in the version of events presented by Mr. and Mrs. Straughter, as well as within their testimony. Mr. Straughter testified he was asleep at the time of the first impact; Mrs. Straughter had stated in her deposition that he was awake. According to Mr. Straughter, the accident took place after midnight; Mrs. Straughter testified it was approximately 10:00 p.m. Mr. Straughter stated in his deposition that he felt two jolts but in his testimony insisted there was but one. He changed his account of where the accident took place. He stated that no one stopped to help them; she stated that someone did stop and follow them to the exit.

There were significant variations within Mrs. Straughter’s story as outlined above. Perhaps most significantly, the photos of the vehicle clearly indicate that there was no damage to the driver’s side of the SUV, where the two impacts from an eighteen-wheeler were allegedly suffered. There was no evidence of any American Freight-ways trucks in the vicinity at the time of the accident. We find that the record supports the credibility conclusion made by the trial court.

The Straughters point out that, during the trial, the court admonished their attorney to keep his “wisecracks” to himself and told Mrs. Straughter to “answer her question and do it now and stop fooling around.” The latter remark was made after Mrs. Straughter was questioning the defense counsel in an argumentative 113manner. As to the former comment, the court’s admonishment was not improper under the circumstances.

The Straughters urge in brief that, because the trial court ruled from the bench, it did not review any of the evidence submitted by them or by American Freight-ways. This allegation in unsupported in the record on appeal. The evidence was submitted prior to and during trial, and the transcript indicates some breaks were taken, including a lunch break. There is nothing to suggest the court did not consider all of the evidence before ruling on the matter.

After the trial court heard the evidence, it concluded that the Straughters could not meet their burden of establishing that a compensable accident occurred by a preponderance of the evidence. After review, we cannot find that the trial court’s judgment granting the Motion for Involuntary Dismissal was manifestly erroneous. Accordingly, the judgment is affirmed. Costs of appeal are assessed to the plaintiffs/appellants.

AFFIRMED.

      . Jackson v. CSX Transp., Inc., 97-0109, p. 5 (La.App. 4 Cir. 12/23/97), 712 So.2d 514, 518 (citing Pierce v. Charity Hosp. of La., 550 So.2d 211, 213 (La.App. 4 Cir.1989), writ denied, 551 So.2d 1341 (La.1989)).

      . Reed v. Recard, 97-2250 (La.App. 1 Cir. 11/18/99), 744 So.2d 13, 16, writ denied, 98-3070 (La.02/12/99), 738 So.2d 572.

      . Reed v. Recard, 744 So.2d at 16.

      . Culmone v. Family Dollar Stores of La., Inc., 04-926 (La.App. 5 Cir. 1/25/05), 892 So.2d 686, writ denied, 05-0740 (La.5/6/05), 901 So.2d 1101.

      . Id.

        . See, CB & I Constructors, Inc. v. City of Thibodaux, 04-1133 (La.App. 1 Cir. 12/17/04), 897 So.2d 724.

      . Johnson v. Lee, 00-78 (La.App. 5 Cir. 5/30/00), 760 So.2d 1273, 1277 (citations omitted).


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Carlos HURTADO v. CJC SERVICE, INC. and American Interstate Insurance Company.
    No. 05-CA-736.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Leonard I. Cardenas, III, Attorney at Law, Baton Rouge, Louisiana, for Plain-tiffiAppellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡.Claimant, Carlos Hurtado, appeals the dismissal of his claim for workers’ compensation benefits due to lack of subject matter jurisdiction. For the following reasons, we affirm.

Claimant was injured on March 24, 2000 while working for a cubicle installation company, CJC Service, Inc. (“CJC”), in the state of Georgia. Claimant alleges that while working as an installer for CJC he was hit in the head and body by equipment and suffered disabling spine and back injuries. CJC, through its insurer, American Interstate Insurance Company, began paying workers’ compensation benefits to claimant pursuant to Georgia’s workers’ compensation laws. On August 27, 2004 claimant filed a Disputed Claim for Compensation against defendants, CJC and American Interstate Insurance Company, seeking Louisiana workers’ compensation benefits for the March 24, 2000 incident.

Defendants filed a Declinatory Exception of Lack of Subject Matter Jurisdiction and the parties agreed to submit the matter on memoranda and depositions. The trial court granted the exception and dismissed the claim, with prejudice, on jurisdictional grounds only, preserving all of claimant’s substantive rights. Claimant appeals.

| oThe record includes the depositions of claimant, Ronald Cuandra, and Carlos Cuandra.

Claimant testified that he performed carpentry work in Louisiana for approximately four years before leaving that job because he “had a job offer in Atlanta” with CJC. According to claimant, a friend, Marco Lorio (“Lorio”), who was then a CJC supervisor, called and offered him a job with CJC. Lorio told claimant that “they needed people they could trust who were responsible” and that “there was opportunity to improve.” Claimant told Lo-rio that he did not want the job unless it paid more than his present job. Lorio responded by saying they “would talk about that in Atlanta.” Claimant further testified that it was his “understanding” that he had the job at that point. When asked what Lorio said during the phone conversation that prompted this conclusion, claimant testified, “Well, like I said before, he — the trust. He knew me. He knew the type of person that I am and also, that I’m very good working with my hands.”

In Georgia claimant was first taken to job sites in the area because, “[t]hey wanted me to see what the job was like to see if I liked the work and then we would meet.” He then met with Carlos Cuadra, Ronald Cuadra, and Marco Lorio at CJC’s main office. They discussed how CJC was a growing business with advancement opportunities for personnel they could trust.

Claimant could not recall whether he provided CJC with any employment documentation before the meeting. He did remember filling out a form in Georgia, but according to claimant it was just “a formality.” While working for CJC, claimant lived in Atlanta, Georgia. During his tenure with CJC, he was unaware of any CJC job sites in Louisiana.

Ronald Cuadro (“Ronald”) testified that he was operations manager for CJC at the time claimant was hired. His duties included all hiring for CJC. He stated Rthat CJC was always looking for good candidates and, “if somebody walks into our door, I interview him and he looks like a strong candidate, I will hire him.” In this case Lorio brought claimant to Ronald’s office in Atlanta for a job interview. According to Ronald, Lorio did not have the authority to hire employees for CJC and claimant was not hired before Ronald interviewed him. Ronald did not participate in any conversations between Lorio and claimant regarding a job with CJC until the day of the interview. Further, Ronald did not speak with claimant “on the telephone or otherwise” regarding a job with CJC until claimant arrived in Georgia and met with him.

. Carlos Cuadro (“Carlos”), Robert’s brother, testified that he was the owner of CJC. As such, he was involved in the hiring of claimant. Carlos stated that Lo-rio did not participate in the interview process and did not have authority to hire employees for CJC. Further, claimant had not been hired prior to the interview in Atlanta. Carlos testified that he was not privy to any conversations Lorio and claimant might have had regarding employment with CJC.

Carlos first met claimant when he came to Atlanta to apply for a job and knew nothing at all about claimant before the interview. Claimant did not have an appointment, but rather “just showed up.” According to Carlos, claimant told him during the interview that he came to Atlanta looking for work because the job market in New Orleans was “dead.” He further testified that it was he and Ronald’s policy to confer privately post-interview before offering a candidate a job.

On appeal, claimant argues that his contract of hire with CJC was made in Louisiana, and that therefore La. R.S. 23:1035.1 applies.

La. R.S. 28:1035.1 provides, in pertinent part:

| B(l) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which he ... would have been entitled to the benefits provided by this Chapter [Chapter 10, Workers’ Compensation] had such injury occurred within this state, such employee ... shall be entitled to the benefits provided by this Chapter, provided that at the time of such injury
(b) he is working under a contract of hire made in this state.

Claimant asserts that the contract of hire was entered into in Louisiana because he reasonably believed Lorio was authorized to offer him the job via telephone and because during their conversation both parties intended that claimant leave his job in Louisiana to begin employment with CJC in the state of Georgia. We disagree.

In determining whether a contract should be regarded as a Louisiana contract or that of another state in workers’ compensation cases, the parties’ intent should be paramount. Moore v. KLLM, Inc., 96-38 (La.App. 5 Cir. 4/30/96), 673 So.2d 1268, 1272. Some of the factors to be considered in determining the parties’ intent include the domicile of the parties, the nature of the work to be done, and the place where the employment was initiated. Id.

In the present case, there is nothing in the testimony of either Carlos or Ronald to indicate that it was their intention to authorize Lorio to hire claimant over the telephone. In fact, they both testified that Lorio was not authorized to hire personnel and that claimant was not hired prior to coming to Georgia. Also, they both testified that they were not involved in Lorio’s telephone conversation with claimant about employment with CJC. Further', claimant expressed his intention to not accept a job that paid less than his present position, during his conversation with Lorio. According to claimant, Lorio left the issue of salary unresolved, only |fitelling claimant that salary would be discussed in Georgia. Claimant also testified that he was in Georgia when he filled out an employment form for CJC and that while employed by CJC he lived and worked in Georgia, not Louisiana. Therefore, we find that claimant was not working under a contract for hire made in Louisiana.

Accordingly, we affirm the judgment of the trial court granting defendants’ exception of lack of subject matter jurisdiction.

AFFIRMED.


author: CLARENCE E. McMANUS, Judge.

text:
    Vicki P. HARRIS v. Andre N. DeBRUEYS, James W. DeBrueys, State Farm Mutual Automobile Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 05-CA-750.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Jim S. Hall, Jim S. Hall & Associates, Metairie, Louisiana, for Plaintiff/Appellee.

      Joseph M. Messina, Lobman, Carnahan, Batt, Angelle & Nader, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

| ¡¡This litigation arises out of an automobile accident. Plaintiff was proceeding through an intersection when she was struck on the left side by defendant who was executing a left hand turn. Prior to trial, plaintiff stipulated that her damages did not exceed $50,000.00. After trial on the merits, the court rendered judgment in favor of plaintiff, finding that defendant was 90% fault and plaintiff 10% fault in the cause of the accident. The trial court awarded general damages of $24,700.00, and special damages for medical expenses of $15,157.40, to be reduced by the 10% fault allocated to plaintiff. Defendants filed this appeal, alleging that the trial court erred in finding defendant at fault for the cause of the accident. Plaintiff answered the appeal, requesting that this Court reduce or eliminate the fault found, and further alleging that the damages awarded were inadequate. For the reasons that follow, we amend, and as amended, affirm the decision of the trial court.

This accident occurred late afternoon on March 24, 2000 at the intersection of Vintage and Monte Carlo, in Kenner, Louisiana. Plaintiff testified that she was northbound on Vintage. Prior to the intersection the street widens and becomes two lanes. She moved to the right lane, in anticipation of making a right turn at the following intersection. There were ears in the left lane, and the traffic was heavy. | ¡¡As she was crossing the intersection, she was hit on the driver’s side door. The impact caused her car to spin around, jump a curb and hit a tree.

Defendant testified that she was southbound on Vintage, intending to make a left turn onto Monte Carlo. There was a red pickup truck northbound at the intersection, and the driver waved her through. She executed the left hand turn and struck plaintiffs vehicle. Defendant stated that she did not see plaintiffs vehicle prior to the accident. Defendant contends that Vintage is a one-lane street until after the intersection, and that plaintiff was driving in the parking lane. Defendant admitted that she was issued a traffic citation, which was dismissed when the witnesses failed to show up in court.

The deposition testimony of Simone Gordon, a witness to the accident, was introduced into evidence. She was southbound on Vintage, which at that point was a one lane street with a parking lane. Signs were posted stating that one should not drive or park in the parking lane. She stated that she was following the plaintiff, and when the plaintiff pulled into the right lane, she did too. There were two or three vehicles in front of plaintiff at that time. When Ms. Gordon pulled over, she realized that she was in the parking lane.

The deposition testimony of Freddy Sandino, the Kenner police officer who investigated the accident, was also introduced into evidence. He stated that after obtaining the facts of the accident, he cited defendant for failure to yield. He did not cite plaintiff. He further said that while plaintiff might have traveled in the parking lane, she was out of that lane when the accident occurred.

Lawrence Hamm, and accident recon-structionist and consulting engineer examined the site where the accident occurred. He testified as trial, not as an expert, but as a fact witness. He stated that on August 8, 2002, he went to the intersection where the accident occurred, and he took photographs and | ¿measurements. ■ The road close to the intersection median was 24 feet wide from median to curb. A lane on the interstate is twelve feet wide, so there is sufficient roadway for two lane travel. The solid white line delineating the parking lane ended 33 feet before the intersection. Past the intersection, Vintage is clearly marked as a two lane road. Photographs taken by M-r. Hamm show a white line painted across the entire expanse of the street. There are two signs, one on each side'of the street, cautioning motorists to avoid blocking the intersection.

In this appeal, defendants allege that the trial court erred in finding defendant at' fault for the accident. Plaintiff answers, alleging that the trial court erred in assessing her with 10% fault, because she was fault free in this accident.

On appellate review, the court’s function is to determine whether the findings of the trier-of-fact were clearly wrong or manifestly erroneous. Himel v. State ex rel. Dept. of Transp. and Development, 04-274, p. 8 (La.App. 5th Cir.1/12/04), 887 So.2d 131, 137-138, writ denied, 04-2802 (La.3/18/05), 896 So.2d 999; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Himel, 04-274 at p. 8, 887 So.2d at 137-138; Rosell, 549 So.2d at 844. The issue to be resolved by the reviewing court is not whether the fact-finder was. right or wrong, but whether its conclusion was a reasonable one. Himel, 04-274 at p. 8, 887 So.2d at 138; Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993).

LeBlanc v. Baxter, 05-33 (La.App. 5 Cir. 5/31/05), 905 So.2d 415, 426.

Furthermore,

The allocation of fault between comparatively negligent parties is a finding of fact. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Accordingly, an appellate court may only reallocate fault if it finds the trial court was clearly wrong or manifestly erroneous in its allocation of fault, even if the reviewing court would have decided the case differently had it been the original trier of fact. (Citations omitted)

LaFleur v. Martin, 04-516 (La.App. 5 Cir.2004), 890 So.2d 26, 29-30, citing Gregor v. Argenot Great Cent. Ins. Co., 02-1138 (La.5/20/03), 851 So.2d 959, 968.

Defendant, at the time of the accident, was executing a left hand turn at an intersection. LSA-R.S. 32:122 provides that:

The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard.

A left turn is one of the most dangerous maneuvers a driver may execute and requires the exercise of great caution. Before attempting a left turn, a driver should ascertain whether it can be completed safely. Shelton v. Safeway Ins. Co. of Louisiana, 36,736 (La.App. 2 Cir. 1/29/03), 836 So.2d 1225, 1228; Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. Once a plaintiff has established that the defendant was attempting to make a left turn when the accident occurred, the burden of proof then shifts to the defendant to prove that he or she was free from fault. Stevens v. Willis, 00-01171, 00-01172 (La.App. 3 Cir. 1/31/01), 778 So.2d 1196.

In this case, the trial court found that the defendant was negligent in her execution of the left hand turn. The testimony at trial established that she was executing a left hand turn in heavy traffic. She admitted that she did not see the plaintiff prior to impact. We cannot say that the trial court was manifestly erroneous in finding that defendant was at fault for this accident.

The trial judge further found plaintiff contributorily negligent, and he assessed her with 10% fault. While the trial court did not specifically state whether he found that the second lane of travel started before or after the intersection with Monte Carlo, he did opine that, because of the traffic conditions, defendant should | shave been more careful. Harris moved over right prior to the intersection, in heavy traffic, instead of waiting to clear it before she moved into the lane. We cannot say that the trial court was manifestly erroneous in this case.

In her answer, plaintiff alleges the general damage award of the trial court was inadequate and should be increased. In reviewing damages, the standard is not manifest error, but abuse of discretion:

[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Miller [v. Clout], 03-0091 at p. 7, 857 So.2d [458] at 463 [ (La.2003) ], quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).

LaFleur v. Martin, supra at 30-31; Thibodeaux v. Stonebridge, L.L.C., 03-1256 (La.App. 5 Cir. 4/27/04), 873 So.2d 755, 766.

On the date of the accident, March 24, 2000, plaintiff went to Kenner Regional. X-rays of her spine, left shoulder, elbow, and left femur produced negative results. She was diagnosed with a soft tissue injury, prescribed medications and told to follow up with her family doctor.

Plaintiff was seen by Dr. Howard initially on March 28, 2000. He diagnosed acute cervical/lumbar strain, left shoulder strain and bilateral elbow contusions, and prescribed medications and physiotherapy. He treated her until August, when she was referred to an orthopedic surgeon. An MRI was conducted on June 19th, 2000. The results were normal of the lumbar spine. The cervical spine showed minimal annular bulging of disc material without evidence of disc herniation or spinal canal stenosis. The MRI of her left shoulder showed inflammation and/or 17degenerative changes with a small, degenerative subcor-tal cyst formation within the humerus.

Plaintiff first saw Dr. Meyer on August 8, 2000. He diagnosed impingement syndrome of the left shoulder with cervical and lumbar strain. He injected her shoulder, and prescribed exercises for her neck and lower back. Plaintiff returned on September 12th, 2000 complaining of left shoulder and back pain. Dr. Meyer’s examination revealed findings consistent with resolving cervical and lumbar strain with underlying disc disease, and improvement in impingement syndrome in shoulder. Plaintiff returned on December 19th, 2000 and Dr. Meyer noted resolving cervical and lumbar strain with associated degenerative disc disease. He also found rotator cuff tendinosis in the left shoulder.

In March of 2001, plaintiff fell down some stairs and hit her head. She went to Kenner Regional to rule out concussion. She stated that the fall did not aggravate her injuries from the accident.

On May 9, 2001, plaintiff was evaluated by Dr. Roger Smith, a neurologist. He obtained an MRI on May 14, 2001 that showed no evidence of degenerative disc disease of the thoracolumbar spine. He prescribed another course of physical therapy. He saw plaintiff on July 9th, 2001 and prescribed continuing therapy. On September 24, 2001 he noted that the MRI was normal, but plaintiff had developed sciatic pain over the last two to three months. He continued with prescriptions. An EMG conducted in October showed mild chronic neurogenic atrophy at L5S1 spine.

In January of 2002, plaintiff was involved in a second accident. She stated that the second accident aggravated her neck injury, but not her back injury, which has been her primary complaint.

| sAfter the second accident, plaintiff was seen by Dr. Stefan Pribil. He opined that the MRI showed subtle disc prominence of the cervical spine, and no definite lumbar spine abnormalities. There is no recommendation for surgery in the records presented to this Court.

At trial, plaintiff testified that her husband, who she met in 2002, is a therapist, and that she still gets treatments for her lower back at home. There was no evidence of the nature, duration and frequency of these treatments.

The trial court awarded $24,700.00 in general damages. The record shows that plaintiff was treated conservatively for her injuries from March 24, 2000 until September 24, 2001, a period of 20 months, and that she still continued to suffer with symptoms up to the date of trial. We find that, under the circumstances of this case, the trial court abused its discretion as the damages awarded in this ease were inadequate.

Because plaintiff stipulated that her damages were $50,000.00 or less, this Court is limited in the amount that it can award. We therefore increase the general damage award to $34,840.00, subject to the 10% reduction for plaintiff fault.

For the above discussed reasons, the judgment of the trial court is amended to increase the award of general damages to $34,840.00, and as amended, is affirmed. All costs are assessed to appellants.

AFFIRMED AS AMENDED.


text:
    Aisha B. PATRICK v. IBERIA BANK.
    No. 05-CA-783.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Larry C. Pieno, Attorney at Law, Mar-rero, Louisiana, for Plaintiff/Appellant.
    Jeffrey K. Warwick, Amie D. Stassi, Miranda, Warwick, Milazzo, Giordano & Heb-bler, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

^Plaintiff appeals from the granting of defendant’s Motion for Summary Judgment. For the following reasons, we affirm the judgment of the trial court.

Plaintiff filed a Petition for Damages against defendant, alleging that on January 9, 2002 defendant was “willfully negligent and malicious in misinforming the Jefferson Parish Sheriffs Office” that plaintiff was attempting to fraudulently remove funds from her mother, Rosemary Patrick’s (Mrs. Patrick), account, causing plaintiff to be transported from the premises and charged with attempted theft.

After filing an Answer and Defenses, defendant filed a Motion for Summary Judgment, asserting that plaintiffs claims against it should be dismissed because the undisputed facts surrounding her arrest support a conclusion that defendant had a reasonable and honest belief that she presented a check that was not properly | spayable, and that, therefore, she was attempting to illicitly remove funds from Mrs. Patrick’s account.

In its judgment granting defendant’s Motion for Summary Judgment, the trial court stated:

After reviewing the memoranda of the parties and hearing the argument of counsel, the Court found that the undisputed facts surrounding plaintiffs arrest supported a finding of probable cause for plaintiffs arrest. Therefore, no genuine issue of material fact exists as to the liability of IberiaBank, and defendant is entitled to Summary Judgment as a matter of law.

It is from this judgment that plaintiff appeals. Plaintiff argues that the trial court erred, because 1) it misapplied the standard of proof pursuant to La.C.C.P. art. 966; 2) it considered an affidavit which did not meet the legal standards of La. C.C.P. art. 967; and 3) it granted defendant’s summary judgment solely on the grounds of “probable cause” when intent was a consideration.

Appellate courts review summary judgment de novo, using the same criteria applied by the trial court to determine whether summary judgment is appropriate. Cage v. Road Dist. No. One of Jefferson Parish, 04-1470 (La.App. 5 Cir. 5/31/05), 904 So.2d 863, 865; Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, 137. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B); Costello v. Hardy, supra. Pursuant to a 1996 amendment to the summary judgment article, the summary judgment procedure is now favored under our law. La.C.C.P. art. 966(A)(2); Id.

The party bringing the summary judgment motion bears the burden of proof. La.C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial, the mover’s burden on the motion for summary judgment does not require j 4him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2); Cage, supra at 866. Then, the burden shifts to the adverse party to produce factual support sufficient to show that she will be able to meet her evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Id.

The essential elements of malicious prosecution are: (1) the commencement or continuance of an original criminal proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards resulting to plaintiff. Jack v. Johnson, 618 So.2d 448, 450 (La.App. 5 Cir.1993); JCM Const. Co., Inc. v. Orleans Parish School Bd., 04-0059 (La.4/30/04), 871 So.2d 1122, 1123.

In the instant case, the trial court determined that plaintiff could not establish the fourth essential element, the absence of probable cause for such proceeding.

In support of its motion, defendant submitted a memorandum and attached plaintiffs deposition, an affidavit by Kathey Simmons (IberiaBank Teller), and a copy of Mrs. Patrick’s Certificate of Death listing January 8, 2002 as her date of death. Attached to plaintiffs deposition is a copy of an IberiaBank signature card indicating that Mrs. Patrick opened an account (hereinafter “the checking account”) on September 8, 2001. Plaintiff is not listed on the signature card; only Mrs. Patrick is listed as an authorized individual. Also attached to the deposition is a copy of a check for $1,885.00, drawn on the account, dated January 9, 2002, ftmade payable to defendant, and signed “Rosemary Patrick” (hereinafter “the check”).

In opposition to the motion, plaintiff submitted a memorandum with attachments — signature cards from the checking and savings account showing “Rosemary Patrick” as the only authorized individual on both accounts; a statement from the savings account, and an affidavit by plaintiff.

In plaintiffs deposition she testified that she accompanied her mother to Iberia-Bank on September 8, 2001 to open Mrs. Patrick’s checking and savings accounts. Plaintiff further testified that, although only her mother’s name is listed and signed twice on the account signature card, in actuality plaintiff signed one of the “Rosemary Patrick” signatures. According to plaintiff, she and her mother signed “Rosemary Patrick” on the card at the same time in front of an IberiaBank representative. Plaintiff further stated that she believed that this signature was her authorization to sign on the account.

Plaintiff testified that she received a telephone call on January 9, 2002 from an IberiaBank representative asking to speak to Mrs. Patrick; plaintiff told the representative that Mrs. Patrick was deceased. Plaintiff further testified that later that day she drove to IberiaBank to cash a check for $1,885.00 drawn on Mrs. Patrick’s checking account. According to plaintiff, Mrs. Patrick had signed the check on January 6, 2002 and filled in everything but the date, which plaintiff filled in. Plaintiff stated that she walked into the bank, waited in line for a period of time, and then presented the check to the teller, without speaking. The teller asked for and received plaintiffs ID , then told plaintiff to wait a few minutes “because the computer was down.” She had no further conversations with anybody from the bank that day. Plaintiff stated that after waiting five to ten 1 ^minutes, a Jefferson Parish Sheriffs Deputy arrived and questioned her for approximately three minutes in the bank’s conference room. She told him that her mother was deceased and:

... basically he asked me what was I doing in the bank. I told him that I came to cash a check. He asked me who the check was for. I told him that it was for me, but it was under my mom’s name. He said, okay. He started reading me my rights.”

Plaintiff further testified that the charges against her were eventually dropped.

As stated above, defendant submitted Kathey Simmons’ affidavit in support of its motion. Three exhibits are attached to the affidavit, one identified as an IberiaBank account application, and the other two are statements for Mrs. Patrick’s checking and savings accounts at IberiaBank.

Simmons states that she is a teller at IberiaBank in Marrero, Louisiana, and that in connection with her work as a teller, she has access to all official bank records. She attests that the account application attached to the affidavit is the account application completed by Mrs. Patrick to open the checking account. Further, the only individual authorized to sign checks drawn on the checking account was Mrs. Patrick.

Simmons states that there were multiple requests for telephone transfers of money from Mrs. Patrick’s savings account to her checking account in January 2002. Mrs. Patrick’s checking and savings account statements attached to the affidavit indicate these telephone transfers — January 2, 2002 for $500 and January 8, 2002 for $900. After a third telephone request was made on January 9, 2002, a bank employee spoke to Simmons “regarding the fact that the individual making the request sounded younger than a 63 year old woman.” After speaking to bank employees, Simmons telephoned West Jefferson Hospital and spoke to a | ./representative in the medical records department who verified that Mrs. Patrick died on January 8, 2002. Thereafter an “alert” was placed on Mrs. Patrick’s account. Simmons further stated that she was present during plaintiffs arrest.

Plaintiff contends that the trial court erred by considering the affidavit of Ka-they Simmons because it did not meet the legal standard of La.C.C.P. art. 967. La. C.C.P. art. 967(A) provides, in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein ...

Plaintiff argues that certain assertions by Simmons in her affidavit do not comply with La.C.C.P. art. 967(A) because they are hearsay and are not made on her personal knowledge but rather on information provided to her by an unknown third person. The assertions pertain to conversations Simmons had on January 9, 2002, and are as follows:

11. After the January 9, 2002 request, a bank employee spoke to her regarding the fact that the individual making the request sounded younger than a 63 year old woman;
12. After speaking to the bank employees, she called West Jefferson Hospital and spoke to a representative in the medical records department who verified that Rosemary Patrick died on January 8, 2002;

La.C.C.P. art. 967(A) provides that “affidavits shall be made on personal knowledge.” Simmons would clearly have personal knowledge of conversations that she asserts she participated in. Further, La.C.E. art. 801(C) defines hearsay as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” The statements which Simmons refers to above are not being offered in evidence to prove the truth of the matter asserted, i.e., that the person who made the third ^telephone transfer request was in fact younger than sixty-three years of age and that Mrs. Patrick died on January 8, 2002. Rather, they are being offered into evidence to show what information the bank had at the time of plaintiffs arrest. And even if the above statements were omitted as hearsay, the record includes Mrs. Patrick’s certificate of death indicating a January 8, 2002 date of death and plaintiffs testimony that a representative of Iberia-Bank telephoned on January 9, 2002 asking to speak to Mrs. Patrick and that she informed the representative that Mrs. Patrick was deceased.

Finally, plaintiff argues that the trial court erred because it granted defendant’s summary judgment solely on the grounds of “probable cause” when intent was a consideration.

In the present case, the defendant, as the party bringing the summary judgment motion, bears the burden of proof. However, because defendant will not bear the burden of proof at trial, its burden on the motion for summary judgment does not require it to negate all essential elements of plaintiffs claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to plaintiffs claim. As stated above, one of the five essential elements in a malicious prosecution case is that plaintiff must prove that there was no probable cause.

Probable cause does not depend upon the actual state of the case in point of fact, but on the honest and reasonable belief of the party prosecuting. JCM Const. Co., Inc. v. Orleans Parish School Bd., supra at 1123. In support of its motion for summary judgment, defendant submitted a deposition, affidavit, and exhibits pointing out that defendant’s records indicated that Mrs. Patrick was the only authorized signatory on her checking account; that Mrs. Patrick died on January 8, 2002; that the bank learned of Mrs. Patrick’s death on January 9, 2002; and that Rafter Mrs. Patrick’s death, plaintiff entered a bank branch and without explanation attempted to cash a check drawn on the deceased Mrs. Patrick’s checking account, dated January 9, 2002, and made payable to plaintiff for $1,885.00. Plaintiff does not dispute any of these facts. Once defendant pointed out the absence of factual support for an element essential to plaintiffs claim, the burden then shifted to plaintiff to produce factual support sufficient to show that she will be able to meet her evidentiary burden of proof at trial. La.C.C.P. art. 966(C)(2). Because plaintiff failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof as to this element at trial, the trial court properly granted summary judgment in favor of defendant.

Therefore, we affirm the judgment of the trial court granting defendant’s motion for summary judgment.

AFFIRMED.

      . A copy of plaintiffs identification, her drivers' license, is attached to the deposition.


text:
    STATE of Louisiana v. Glenn SMART.
    No. 05-KA-814.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Thomas Block, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Glenn Smart, In Proper Person, Kinder, Louisiana.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

| ¡¡Defendant, Glenn Smart, was found guilty of distribution of cocaine in violation of LSA-R.S. 40:967 A, and was sentenced to imprisonment at hard labor for six years with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. After the filing of a multiple bill by the State, the trial court found defendant to be a second felony offender, vacated his original sentence, and sentenced defendant to imprisonment at hard labor for 15 years with the first two years to be served without benefit of parole, probation or suspension of sentence. The trial court further stated that the balance of the sentence was to be served without benefit of probation or suspension of sentence. Defendant’s motion to reconsider sentence was denied by the trial court. The defendant now appeals from his conviction and sentence.

Defense counsel filed a brief in which he argues that the trial court erred in denying his motion for mistrial, and that the trial court imposed an excessive sentence. In addition, the defendant filed a pro se brief in which he also alleges that the sentence imposed was excessive, and furthermore that the evidence was legally insufficient to support the verdict, that he was denied ineffective assistance 13of counsel at the multiple bill and sentence hearing and that the trial court erred in failing to ensure an adequately perfect record of the trial.

FACTS

The following was adduced at the trial of this matter. Paul Smith of the Jefferson Parish Sheriffs Office (JPSO), whose undercover name was Agent Aan James, testified that, on July 29, 2003, at approximately 1:05 p.m., he traveled to the Scottsdale area in Harvey, Louisiana, a “high drug trafficking area”, in a vehicle equipped with a video recorder and a transmitter, to attempt to purchase narcotics. As he was driving around, he pulled up to a group of people and asked them if they knew where he could get a “twenty.”

A man, later identified as defendant, walked out of the group and asked Agent James what he wanted. Agent James told defendant he wanted a “twenty,” and defendant told him he would have to exit the vehicle. Once Agent James complied with defendant’s request, defendant told him to put the money on the hood of the vehicle. Agent James refused and told defendant to place the narcotics on the hood of the vehicle, which he did. Agent James then picked up the narcotics, put the (pre-re-corded) money on the hood of the vehicle, and got into his vehicle.

After the transaction, Agent James observed defendant pick up the money, put it in his pocket, and go in between two buildings in the apartment complex. As Agent James was leaving the area in his vehicle, he provided information to the surveillance team over the transmitter regarding the transaction. He also provided a description of defendant as being approximately 6'1" to 6'2" with a medium build and wearing a black shirt with black shorts. The videotape recorded that day was played for the jury; however, Agent James testified that the videotape did not show defendant since defendant insisted he (Agent James) exit the vehicle. Agent |4James positively identified defendant in a photographic lineup shown to him by Agent Aaron Wilkie on August 4, 2003, and he also positively identified defendant in court.

JPSO Agent Corey Wilson testified that he positioned himself in the area of 1108 Scottsdale prior to Agent James coming into the area, and that he observed the transaction between Agent James and defendant. Agent Wilson testified that, after the transaction occurred, defendant walked between two buildings for approximately three minutes and then came right back out. He subsequently advised the other agents of defendant’s location.

JPSO Agent Aaron Wilkie testified that, after speaking with Agent Wilson, he drove to 1108 Scottsdale, exited his vehicle along with Deputy Magee, and conducted a field interview of defendant, eliciting information from defendant including his name, address, date of birth, and a physical description. Agent Wilkie completed a “field interview card” which documented his meeting with defendant, and he also took a Polaroid picture of defendant at that time. Agent Wilkie testified that defendant resided at 1108 Scottsdale Drive in Apartment D, approximately two feet from where the drug transaction occurred. He further testified that it was approximately six or seven minutes from the time the transaction occurred until the time he stopped defendant. He also indicated that he conducted a preliminary field test on the white rock which was positive' for cocaine.

The state and the defense stipulated that if Charles Crohn and Thomas Angelica were called as witnesses, they would be qualified as experts in the testing and identification of controlled dangerous substances, and they would testify that the white rock defendant sold to Agent James tested positive for cocaine.

ANALYSIS

|RIn his first three pro se allegations of error, defendant argues that the evidence was legally insufficient to support the verdict. He alleges that the testimony and other evidence was conflicting, inconsistent, confusing, and misleading in the following ways: (1) Agent James testified at trial that defendant sold him cocaine; however, the police report indicated that defendant sold cocaine to Agent Lionel Womack; (2) Agent Wilkie testified that he did not hear any conversation between Agent James and defendant, even though in the police report, Agent Wilkie indicated that Agent James’ vehicle was equipped with a transmitter; (3) Agent James testified that it was unusual to exit his vehicle to purchase narcotics; however, Agent Wilson stated that that was not unusual; (4) Agent James initially testified that he asked defendant where he could get a “twenty,” but then later testified that defendant motioned to him that he wanted to sell cocaine; and (5) Agent Wilson testified that he never lost sight of defendant; however, no pre-recorded money was found on defendant.

Defendant notes that there was no audio or video recording of him selling drugs, that he was not found to be in possession of any money or drugs, and that if he had been in possession of money or drugs, he had no opportunity to dispose of them.

With respect to the issue of identity, defendant argues that the state failed to prove his identity as the perpetrator of the crime. He alleges that Agent Wilkie suggested his identity to Agent James before Agent James made a positive identification of him in a photographic lineup. He notes that Agent James was in the presence of the perpetrator for approximately a minute-and-a-half and, therefore, he was only able to provide a vague description of the perpetrator. Defendant further notes that he has many distinguishable facial features, especially |fivery prominent eyes, that should have been noticed by the agent and included in the description had he been the perpetrator.

The standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Defendant was convicted of violating LSA-R.S. 40:967 A, distribution of cocaine. Pursuant to that statute, the state was required to prove that defendant knowingly or intentionally distributed cocaine. State v. Raines, 00-1941 (La.App. 5 Cir. 5/30/01), 788 So.2d 635, 640, writ denied, 01-1906 (La.5/10/02), 815 So.2d 833.

Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Zeno, 99-69 (La. App. 5 Cir. 8/31/99), 742 So.2d 699, 706, writ denied, 00-0105 (La.6/30/00), 765 So.2d 1065. When the key issue in the case is identification, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

In the instant case, as was stated in the previous memorandum, the evidence against defendant was overwhelming. Agent James testified that a man, whom he positively identified in a photographic lineup and in court as defendant, sold him narcotics in exchange for money. Agent Wilson testified that he observed the transaction and directed Agent Wilkie to defendant. Agent Wilkie testified that he completed a field interview card of defendant and took his picture shortly after the transaction. The credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any 17witness; therefore, the credibility of witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Defendant argues that the evidence was insufficient to convict him based on several inconsistencies in the record.

First, defendant notes that the police report indicates that defendant sold cocaine to Agent Lionel Womack; however, Agent James testified at trial that defendant sold him cocaine. An examination of page 4 of the police report indicates that defendant did, in fact, sell cocaine to Agent Lionel Womack. However, this must have been a typographical error, because on page 5 of the police report in the narrative section, and in the supplemental police report, it specifically states that defendant sold cocaine to Agent Allen James. Additionally, Agent James testified at trial that defendant sold him cocaine.

Second, defendant points out that Agent Wilkie testified that he did not hear the conversation between him and Agent James, even though in the police report, Agent Wilkie indicated that Agent James’ vehicle was equipped with a transmitter. A review of the transcript indicates that Agent Wilkie testified that Agent James’ vehicle was, in fact, equipped with a transmitter. However, Agent Wilkie explained that he was unable to hear what was going on, because Agent James got out of the vehicle to purchase the cocaine and did not have a transmitter on his person.

Third, defendant states that the testimony of Agents James and Wilson contradicted one another when Agent James testified that it was unusual for him to get out of his vehicle to make a transaction and Agent Wilson testified that it was not unusual for an undercover agent to exit the vehicle. A review of the record indicates that defendant is correct in his assessment of the testimony. Nevertheless, a reasonable juror could have found that the testimony was not ^contradictory, but that each agent had different past experiences with regard to the issue.

Fourth, defendant next states that there was a contradiction in Agent James’ testimony regarding how he purchased the cocaine from him. He points out that Agent James initially testified that he asked defendant where he could get a “twenty,” but that Agent James later testified that defendant motioned to him that he wanted to sell cocaine. The record reflects that Agent James did, in fact, testify that he asked defendant where he could get a “twenty.” The record also reflects that Agent James testified that, when he drove around high-crime areas, he would raise one or two fingers to indicate how many rocks he wanted to buy, and that “everybody in those, neighborhoods that do deal with crack cocaine or any kind of drugs would stop you and ask you what you wanted.” Agent James further testified that no one other than defendant motioned to him and told him that he wanted to sell him crack cocaine.

The videotape taken that day shows that Agent James was driving a vehicle when he stopped and asked someone (who could not be seen on the videotape) where he could get a “twenty.” The videotape also shows that as Agent James said this, he lifted one finger. When Agent James came upon defendant (who could be heard, but not seen on the videotape) a few moments later, he asked defendant where he could get a “twenty,” but he did not motion with his finger. Based on the evidence, a reasonable juror could have concluded that Agent James mistakenly thought he had motioned to defendant, when in fact, he motioned to someone else just a few seconds earlier. It is noted that the videotape does not confirm or deny whether defendant motioned to Agent James as defendant cannot be seen on the videotape.

| gFifth, defendant asserts that Agent Wilson testified that he never lost sight of defendant; however, defendant states that no recorded money was found on him. The record reflects that Agent Wilson testified that immediately following the transaction, the perpetrator walked quickly in between two apartment buildings. Contrary to defendant’s assertions, Agent Wilson further testified that he was unable to see what apartment the perpetrator was going to and that he lost sight of the perpetrator for approximately three minutes. He asserted that the perpetrator then came back into view, and at that time, he contacted the other agents and told them he was going in closer. Agent Wilson explained that, after a drug deal, the perpetrator would not just stand there, but would either go and hide the money or go and obtain more drugs to sell to the next person.

Although there are some inconsistencies in the record, they are minor and irrelevant compared to the overwhelming evidence of defendant’s guilt. Also, it is noted that the defense did not question the agents at trial regarding these alleged inconsistencies even though it had the opportunity to do so on cross-examination.

With respect to the issue of identity, defendant alleges that Agent Wilkie suggested his identity to Agent James before Agent James made a positive identification of him in a photographic lineup. He claims that Agent James admitted that before he made a positive identification, Agent Wilk-ie showed him a picture and told him, “[t]his is the guy we dealt with.”

The record shows that Agent Wilkie testified that he constructed a photographic lineup and showed it to Agent James who positively identified defendant. Agent Wilkie further testified that he did not tell Agent James which picture to choose. Agent James testified that Agent Wilkie gave him a photographic lineup and the videotape and said, “[t]his is the guy we dealt with.” He subsequently positively identified defendant.

|inA review of the photographic lineup in question shows that it contains six photographs of black males. Therefore, contrary to defendant’s assertions, Agent Wilkie did not hand defendant one picture, but rather, one sheet of paper containing six pictures. As such, defendant’s assertion that Agent Wilkie suggested his identity to Agent James by handing him “a picture” before Agent James positively identified him is without merit.

In light of the foregoing, we find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that defendant was guilty of distribution of cocaine and that the state negated any reasonable probability of misidenti-fication.

In his first counseled allegation of error, defendant argues that the trial court erred in denying his motion for a mistrial. He contends that the prosecutor intentionally elicited inadmissible other crimes evidence from Agent Wilkie. The state responds that the reference in question was relevant to rebut testimony elicited by the defense and to explain the sequence of events leading up to defendant’s arrest. The state further responds that the reference was not inadmissible evidence of other crimes because no details of prior offenses were provided. Finally, the state contends, alternatively, that any error was harmless.

During the cross examination of Agent Wilkie, defense counsel twice elicited testimony from Agent Wilkie that he did not find the pre-recorded twenty-dollar bill or any cocaine on defendant, yet defendant was placed into the rear of the police ear.

During the redirect examination of Agent Wilkie, the prosecutor elicited testimony that defendant was arrested for “an unrelated matter.” Defense counsel subsequently moved for a mistrial, which the trial judge denied, stating that

I ii... [a]nd if I understand, the answer is, yes, you know full-well that there were warrants and that’s what led to him being placed on the car. You left this jury with the impression that he placed him in there without a good cause.
⅝ * *
—the Court finds — just a minute— that the Defense, in its examination of the witness, approached this area and opened the door to that examination, for which the State had a lawful right to respond.

Defense counsel again noted her objection and began to reargue her position; however, the trial judge said he did not want to hear any further argument.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is inadmissible at trial unless the probative value of the evidence substantially outweighs its unfair prejudicial effect, and unless it falls under one of the statutory or jurisprudential exceptions to the exclusionary rule. LSA-C.E. arts. 403 and 404; State v. Tuckson, 00-1408 (La.App. 5 Cir. 2/28/01), 781 So.2d 807, 814, writ denied, 01-1129 (La.1/25/02), 806 So.2d 671. LSA-C.Cr.P. art. 770(2) provides that a mistrial shall be ordered “when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to ... [ajnother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible[.]”

As a general rule, Article 770 does not apply to testimony by a state witness, since a witness is not considered a “court official” for purposes of the article. However, an impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the state and therefore triggers the rule mandating a mistrial. State v. Tuckson, supra at 814. The reference must be to another crime committed or alleged to have been committed by defendant as to which evidence is not admissible. State v. Bell, 02-1127 (La. App. 5 Cir. 2/25/03), 840 So.2d 656, 659. A mistrial is warranted only if a comment or remark results in substantial prejudice to the accused. LSA-C.Cr.P. art. 771; State v. Tuckson, supra at 814. An improper reference to other crimes evidence is subject to a harmless error analysis. Id.

It is well recognized that when one side has partially gone into a matter during its direct examination, the other side may fully go into it on cross-examination. State v. Edwards, 420 So.2d 663, 675 (La.1982). Any doubt as to the propriety or extent of cross-examination is resolved in favor of the cross-examination. State v. Edwards, 420 So.2d at 675.

The decision to grant or deny a mistrial is within the sound discretion of the trial court. The denial of a motion for a mistrial will not be reversed on appeal unless the court has abused its discretion. State v. Ratcliff, 98-101 (La.App. 5 Cir. 2/23/99), 731 So.2d 356, 363, writ denied, 99-1112 (La.9/3/99), 747 So.2d 541. Mistrial is a drastic remedy and is warranted only where remarks result in substantial prejudice sufficient to deprive defendant of a fair trial. State v. Overton, 618 So.2d 439, 441 (La.App. 5 Cir.1993).

In the instant case, we find that the agent’s comment that defendant was taken into custody on an unrelated matter was not inadmissible evidence of other crimes or bad acts because it did not refer to any specific crime or bad act committed by defendant and was vague and ambiguous. Compare State v. Marsalis, 04-827 (La. App. 5 Cir. 4/26/05), 902 So.2d 1081, 1085-1086; State v. Smothers, 02-277 (La.App. 5 Cir. 12/30/02), 836 So.2d 559, writ denied, 03-0447 (La.10/10/03), 855 So.2d 329; State v. Sprinkle, 01-137 (La.App. 5 Cir. 10/17/01), 801 So.2d 1131, writ denied, 01-3062 (La.10/25/02), 827 So.2d 1174; State v. Tuckson, supra.

|1sWe further find that defense counsel “opened the door” to this line of questioning on redirect examination when she elicited testimony during cross-examination of Agent Wilkie that defendant was placed in the back of the police car even though no money or drugs were found on him, thereby leaving the impression that defendant was apprehended without good reason. See State v. Edwards, 420 So.2d 663, 675 (La.1982); State v. Taylor, 2001-1638 (La.1/14/03), 838 So.2d 729, 746, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).

Nonetheless, even assuming the comment constitutes an impermissible reference to other crimes, such an error is subject to a harmless error analysis. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102. In the instant case, the evidence against defendant was overwhelming. Agent James testified that a man, whom he positively identified in a photographic lineup and in court as defendant, sold him narcotics in exchange for money. Agent Wilson testified that he observed the transaction and directed Agent Wilkie to defendant. Agent Wilkie testified that he completed a field interview card of defendant and took his picture shortly after the transaction. Thus, we find that the verdict was surely unattributable to any other crimes reference charged by defendant.

In his second counseled allegation of error and in his fifth pro se allegation of error, defendant argues that his fifteen-year enhanced sentence is constitutionally excessive. Counsel, in brief, notes that defendant’s sentence is extreme considering that he is a non-violent offender and that he sold a small amount of cocaine to a person he believed to be a fellow drug addict. The state responds that the record does not contain clear and convincing evidence to rebut |14the presumption of constitutionality to justify a sentence below the mandatory minimum sentence of fifteen years.

The trial judge sentenced defendant, as a second offender, to the mandatory minimum of fifteen years, stating in pertinent part:

Because the court has found the defendant to be a second felon (sic) offender, we take notice of Revised Statute 15:529.1 in imposing sentence as well as Article 894.1 which we previously considered and the statute mandates that the 'court must sentence the defendant to not less than one-half of the maximum penalty allowed by law, nor more than twice of that. One-half of the sentence is 15 years at hard labor, the maximum in this case being 30 years and, therefore, the court sentences the defendant to 15 years at hard labor ...

In his motion to reconsider sentence, defendant argued that his sentence was excessive because the amount of the drug sold was small and the agent’s life was not put in danger.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Wickem, 99-1261 (La. App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992).

Three factors are considered in reviewing a trial court’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Stewart, 03-920 (La.App. 5 Cir. 1/27/04), 866 So.2d 1016, 1028, writ denied, 2004-0449 (La.6/25/04), 876 So.2d 832. The issue on appeal is h ¿whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id.

A mandatory minimum sentence under the Habitual Offender Law may be reviewed for constitutional excessiveness. State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, 342, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). In State v. Dorthey, 623 So.2d 1276, 1280-1281 (La.1993), the Louisiana Supreme Court specifically held that when a trial court determines the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the present case that would rebut the presumption of constitutionality. Id. The burden is on the defendant to rebut the presumption of constitutionality by showing:

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

State v. Johnson, supra at 676, quoting State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223.

Downward departures from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in rare situations. State v. Davis, 01-123 (La. App. Cir. 7/30/01), 792 So.2d 126, 132. The trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 384.

In this case, defendant was found to be a second felony offender. LSA-R.S. 15:529.1 provides that for a second felony offender, the sentence for imprisonment shall be not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. LSA-R.S. 40:967 B(4)(b), which is the penalty provision for a conviction of distribution of cocaine, provides for a sentence of not less than two years nor more than 30 years. As such, defendant was facing an enhanced sentence of between 15 years and 60 years. Therefore, defendant received the mandatory minimum sentence of imprisonment at hard labor for 15 years.

Defendant argues that his sentence was excessive because he was a nonviolent offender. However, a defendant’s record of non-violent offenses cannot be the sole reason, or even the major reason, for declaring a mandatory minimum sentence excessive. State v. Johnson, supra at 676. Additionally, defendant argues that his sentence is excessive considering the small amount of cocaine he sold. This reason has been rejected as an exceptional circumstance to justify a downward departure from the minimum sentence mandated by the Habitual Offender Statute. State v. Fleming, 04-1218 (La.App. 5 Cir. 4/26/05), 902 So.2d 451, 460.

In the instant case, we , note that the trial judge stated prior to sentencing that the statute “mandates” that he “must” sentence defendant to the mandatory minimum sentence. The record in this case reflects that defendant did not move for a downward deviation from the mandatory minimum sentence under Dorthey at sentencing. And, defendant offered no evidence that he was exceptional or that his 117circumstances were unusual enough to rebut the mandatory minimum sentence was constitutional and not excessive. See State v. Fisher, 03-326 (La.App. 5 Cir. 7/29/03), 852 So.2d 1075, 1084-1086, writ denied, 2003-2545 (La.5/14/04), 872 So.2d 510 and State v. Harbor, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 225-228, writ denied, 2002-1489 (La.5/9/03), 843 So.2d 388.

We find that the trial court did not abuse its discretion in sentencing defendant to the mandatory minimum sentence of 15 years.

In his fourth pro se allegation of error, defendant argues that he was denied effective assistance of counsel at the multiple bill and sentencing hearings. He specifically argues that defense counsel only had an approximately twenty minute recess to review the documents introduced by the state at the multiple bill hearing, and that twenty minutes was inadequate for counsel to examine the evidence and defend against it.

At the multiple bill hearing, the state called Lt. Patricia Adams who was qualified as an expert in the field of fingerprint taking and identification. During the direct examination of Lt. Adams, the state asked whether she had pulled the arrest register of defendant from his 1992 conviction. Defense counsel objected to the documents that the state was about to present because that day was the first day she had seen those documents. She further noted that those documents had that day’s date on them, and that she had filed motions requesting copies of all documents that were to be used at the multiple bill hearing.

The state responded that Lt. Adams had to order those particular documents, and that it had just received them as well. The trial judge asked defense counsel what relief she was seeking. Defense counsel responded that she objected to those documents being introduced that day because she had not had a chance to review 11sthem. The trial judge stated that he was going to allow the defense to examine the documents, and that he would then hear whatever concerns the defense had.

After other matters were taken up, the trial judge returned to defendant’s ease. He stated for the record that defense counsel had had an opportunity to review the documents, and he noted that an objection was still before him. Defense counsel said that, after reviewing the document, she would withdraw that objection.

Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. McDonald, 04-550 (La.App. 5 Cir. 11/16/04), 889 So.2d 1039, 1042, writ denied, 04-3088 (La.4/1/05), 897 So.2d 599. To establish a claim for ineffective assistance of counsel, a defendant must demonstrate (1) that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that his counsel’s errors or omissions resulted in prejudice so great as to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. LaCaze, 99-0584 (La.1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). To show prejudice, the defendant must demonstrate that, but for his counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, supra. An error is prejudicial if it was so serious as to deprive the defendant of a fair trial or a trial with a reliable result. Id.; State v. Washington, 03-1135 (La. App. 5 Cir. 1/27/04), 866 So.2d 973, 983.

The Sixth Amendment does not guarantee errorless counsel or counsel judged ineffective by hindsight. State v. LaCaze, supra at 1078-1079. When assessing ineffective assistance claims, because there is no precise definition of | ^reasonably effective assistance of counsel, these claims are assessed on the facts of the particular case as seen from the counsel’s perspective at the time. Id. As a result, there is a strong presumption that the conduct of counsel will fall within the wide range of reasonable professional assistance. State v. LaCaze, supra at 1079.

Rather than on direct appeal, a claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full eviden-tiary hearing can be conducted. State v. Washington, supra at 983. However, when the record contains sufficient evidence to rule on the claim’s merits and the issue is properly raised on appeal by assignment of error, it may be addressed in the interest of judicial economy. State v. McDonald, supra at 1042. We find that the record is sufficient to rule on the merits of defendant’s claim.

After a review of the record, we find that defendant has not demonstrated that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms or that his counsel’s errors or omissions resulted in prejudice so great as to undermine confidence in the outcome. In fact, the record shows that, after the multiple bill hearing, the trial judge found defendant to be a second felony offender rather than a third felony offender as the state had sought. Accordingly, we find this allegation to be without merit.

In his sixth pro se allegation of error, defendant argues that the trial court erred by not producing a complete record of the trial. He contends that the record is missing the voir dire examination and complete jury selection process, and opening and closing arguments of the state and the defense. He claims that the incomplete record prevents him from adequately and effectively conducting a review of his case, and that it prevents this Court from conducting an adequate appellate review.

12nThe record indicates that voir dire and opening statements were not transcribed. The record also indicates that the court reporter noted that the state and the defense presented their closing arguments without objection, that the defense objected to the state’s rebuttal argument, and that the court reporter presented that portion of the rebuttal argument with the court’s ruling.

In State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238, 1261, cert. denied, — U.S. -, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005), the Louisiana Supreme Court discussed the issue regarding incomplete records on appeal (footnote added):

Although this Court has found reversible error when material portions of the trial record were unavailable or incomplete, “[a] slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal w[ill] not cause ...” reversal of a defendant’s conviction. Castleberry, 98-1388 at p. 29, 758 So.2d at 773. Moreover, a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts. Id. (holding that the defendant failed to show any prejudice resulting from bench conferences not being transcribed and, therefore, there was no reversible error).

In the instant case, an examination of the record indicates that neither defendant’s appellate counsel nor defendant has pointed out any errors that occurred during voir dire or in opening or closing statements that would necessitate a review of those portions of the record by either defendant or this panel. Thus, defendant has not shown any prejudice based on the missing portions of the transcript.

In his last counseled allegation of error, defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with 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) regardless of whether defendant makes such a request. The review reveals one error patent in this case.

The transcript indicates that the trial judge ordered that the first two years of the enhanced sentence be served without benefit of parole, probation, or suspension of sentence, and that the balance of the sentence was to be served without benefit of probation or suspension of sentence. The commitment dated March 2, 2005 indicates that the enhanced sentence was to be served without benefit of probation or suspension of sentence. The minute entry of that same date indicates that the first two years of the enhanced sentence was to be served without benefit of parole, probation, or suspension of sentence. When there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand to allow the trial judge to correct the commitment and the minute entry to be consistent with the transcript. State v. Sam, 05-88 (La.App. 5 Cir. 5/31/05), 905 So.2d 379, 387.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed. This matter is remanded for further proceedings consistent with this opinion.

AFFIRMED; REMANDED.

      . State v. Castleberry, 1998-1388 (La.4/13/99), 758 So.2d 749, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999).