author: DREW, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee, v. Bernard GRANT, Appellant.
    No. 41,745-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.
    Rehearing Denied May 3, 2007.

      Louisiana Appellate Project by Annette Fuller Roach, Counsel for Appellant.
    Bernard Grant Pro Se.
    Paul Joseph Carmouche, Catherine Marion Estopinal, Edwin L. Blewer III, Assistant District Attorneys, Counsel for District Attorney Appellee.
    Before BROWN, DREW and SEXTON (Pro Tempore), JJ.
   DREW, J.

11Bernard Grant was convicted at jury trial for one count of possession of Schedule II CDS with intent to distribute. The trial court sentenced him as a third felony offender to 30 years at hard labor with credit for time served. The defendant now appeals. We affirm in all respects.

FACTS

Agent Chad Denham of the Caddo-Shreveport Narcotics Task Force received information from a certified informant that powder and crack cocaine were being sold from an apartment at 1212 Sprague Street in Shreveport. Based upon this information, Agent Denham instituted surveillance at that address in September 2004.

Agent Denham arranged four separate “controlled buys” of narcotics from this location, in which the certified informant (“C.I.”) was given money and equipped with an audio transmitter. In each instance, the C.I. purchased powder cocaine or crack cocaine, all of which was sold in plastic Baggies containing amounts indicative of personal use. The C.I. bought one or two Baggies each time, paying $10 for 0.1 gram of cocaine and $20 for 0.2 gram. From the audio transmissions, agents determined that a person by the name of Terry Gill was selling narcotics from that residence. Gill died before a search warrant was executed upon the premises. Agents were unable to determine the identity of any other voices of those selling narcotics from that address.

Based upon the information obtained through the controlled buys, Agent Den-ham obtained a search warrant for the residence at 1212 Sprague ^Street, and a special response team from the task force executed the search warrant on February 2, 2005. In approaching the residence, the team secured three or four people who were standing outside the residence; in so doing, the team found marijuana while searching Timothy Cummings. Before searching the residence, the team rammed down the front door, deployed a distraction device, and rapidly entered the residence in a “stick” formation so that they could quickly secure the residence while the occupants were disoriented. Agent Jeff Peters testified that just before the distraction device was deployed, he saw a black male dressed in all black running from the living room to the back of the residence. Agent Peters, along with Agent Troy Skeesick, secured the bathroom, where they found Bernard Grant and Jackie Bos-worth. Agent Peters testified that the defendant was dressed in a black hooded sweatshirt and black pants and that Bos-worth was dressed in a tan shirt or jacket. Agent Denham testified that the defendant and Bosworth were the only people in the residence at the time the special response team entered the house, noting that it would have been impossible for others to escape through the back door because it was boarded.

When Agent Peters entered the bathroom, he saw this defendant drop a plastic bag inside a hole in the wall of the bathroom with his left hand. The plastic bag contained nine small clear plastic bags with crack cocaine and five small blue plastic bags with powder cocaine. Grant had $760 on him when he was searched. The search of the bedroom yielded the | sdiscovery of more crack cocaine and powder cocaine packaged in a similar manner to the narcotics found inside the bathroom, as well as ecstacy tablets.

DISCUSSION

Sufficiency

Defendant argues that:

• the evidence of Agent Peters seeing him in possession of the Baggie for- a few seconds, combined with $760 being found on his person was insufficient to support his conviction for possession of cocaine with intent to distribute;
• the circumstantial evidence of his intent to distribute is insufficient to prove this element under the five factors set out by the Louisiana Supreme Court in State v. House, 325 So.2d 222 (La.1975), and its progeny, because it did not exclude every possible hypothesis of innocence;
• Agent Denham was not qualified as an expert witness and that, therefore, it was inappropriate for him to give an expert opinion on the packaging of controlled substances for sale;
• in the alternative, defendant argues that this court should consider the responsive verdict of cocaine possession because the state failed to prove that he had the intent to distribute;
• Agent Denham’s testimony about what Agent Peters saw in the bathroom was inadmissible hearsay to which his trial counsel should have objected;
• Agent Peters’s testimony was not credible;
• Agent Peters framed him; and
• no rational jury would have convicted ■him on the evidence presented. The state responds that:
• the evidence was sufficient to sustain this conviction;
14* the circumstantial evidence of his intent to distribute was clear;
• defendant waived the claim that Agent Denham was not properly qualified as an expert witness because he failed to raise the claim at trial, but that any such error would have been harmless because the record on appeal shows, that he had the expertise to be qualified as such;
• defendant offered no evidence at trial in support of his claim in Opening statements that he was at that residence playing cards when officers executed the search warrant;
• the evidence excluded the possibility that defendant was possessing the cocaine for personal use because there was' no evidence of crack pipes or other devices to facilitate the use of the crack cocaine; and
• if Grant had bought drugs at the house, then the cash would have been found on Bosworth, instead of the defendant.
Our law on sufficiency is clear.

|sIn order to convict a defendant for possession of a controlled dangerous substance with the intent to distribute, the state must prove beyond a reasonable doubt that the defendant knowingly and intentionally possessed the cocaine and that he did so with the intent to distribute it. State v. Moore, 40,311 (La.App.2d Cir.1/13/06), 920 So.2d 334; State v. Clark, 35,272 (La.App.2d Cir.12/05/01), 803 So.2d 280.

We first consider whether there was sufficient evidence that defendant possessed the contraband. This court has previously found that the testimony of an officer who saw the defendant throw a Baggie, which was later recovered and found to contain contraband, was sufficient to show that the defendant had possession of the contraband. State v. Johnson, 34,-902 (La.App.2d Cir.9/26/01), 796 So.2d 201, writ denied, 2003-2631 (La.11/08/04), 885 So.2d 1124. Agent Peters testified that he saw the defendant drop a plastic Baggie with his left hand into a hole in the wall of the bathroom. The Baggie recovered from inside the wall, according to the testimony of a forensic chemist, contained cocaine.

Defendant argues that Agent Peters only saw him with one Baggie, but that two Baggies were retrieved from the wall; however, the record does not support this factual assertion.

Defendant also now argues that Bos-worth may have handed the plastic Baggie to him to put inside the hole and that he was running away simply to escape the distraction device. However, the record is also devoid of any evidence supporting that argument. On the contrary, Agent Peters’s testimony was direct evidence of defendant possessing the contraband. | (¡While the defendant attacks the credibility of Agent Peters in his pro se brief and argues that no rational jury could have believed his testimony, the appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Therefore, the state presented sufficient evidence from which a rational jury could easily find that the defendant was in possession of cocaine, a Schedule II controlled dangerous substance.

This court must next consider whether there was evidence of defendant’s intent to distribute the contraband. Specific intent may be inferred from the circumstances surrounding the transactions and the actions of the defendant. State v. Allen, 41,548 (La.App.2d Cir.11/15/06), 942 So.2d 1244; State v. Taylor, 24,947 (La.App.2d Cir.6/23/93), 621 So.2d 141, writ denied, 93-2054 (La.2/11/94), 634 So.2d 371. Specific intent may be established solely by circumstantial evidence if every reasonable hypothesis of innocence is excluded. State v. Allen, supra. In State v. Moore, 920 So.2d at 339, this court explained how circumstantial evidence may be used to prove that a defendant possessed the intent to distribute a controlled substance:

When the specific intent to distribute a controlled dangerous substance is based on circumstantial evidence, the state must prove the amount of the substance, and/or the manner in which it was carried was inconsistent with personal use. Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant’s possession which give rise.to reasonable inferences of intent to distrib- ' ute.
The test for determining whether intent to distribute exists includes five factors: (1) packaging in a form usually associated with distribution; ■ (2) evidence of other sales or attempted sales by the defendant; (3) a large amount or quantity of the drug such as to create an inference of intent to distribute; |7(4) expert or other testimony that the amount was inconsistent with personal use; and (5) the existence of any paraphernalia, such as Baggies or scales, evidencing an intent to distribute. Testimony of street value and dosage of a drug is also relevant to the issue of intent. (Citations omitted.)

Mere possession of contraband does not amount to evidence of intent to distribute “unless the quantity is so large that no other inference is possible.” State v. Hearold, 603 So.2d 731 (La.1992). The presence of large sums of cash is also considered circumstantial evidence of the intent to distribute. State v. Johnson, supra.

In the present case, the plastic bag retrieved from inside the wall after defendant put it there was found to contain nine clear plastic Baggies of crack cocaine and five blue plastic Baggies with powder cocaine, each plastic Baggie containing a single dosage amount. The plastic Baggies retrieved from the wall contained four grams of cocaine. During the controlled buys conducted .at that-residence before the search, the C.I. bought crack cocaine and powder cocaine packaged the same way. Although agents had no knowledge of this particular defendant selling cocaine from that address before executing the search warrant, Agent Denham testified that there were unidentifiable voices on the audio recording of those controlled buys. There was no evidence of a card game at the residence, in spite of defendant’s claim made during opening statements. Agent Denham’s testimony regarding the investigation of this residence before the search warrant was executed showed that crack cocaine and powder cocaine were sold from this residence. Upon execution of the |8search warrant, no evidence of crack pipes or other devices facilitating the personal use of crack cocaine was discovered.

In State v. Hearold, supra, the court found that the circumstances tended to show that the defendant did not intend to distribute the contraband in his possession when the contraband was found in one package, rather than in a number of smaller packages measured in singles doses, due to the absence of weighing scales, plastic Baggies, or other paraphernalia associated with the measuring or packaging of contraband for distribution, and due to the absence of large sums of cash or weapons, which are commonly seized during drug distribution arrests. Conversely, in the present case, the defendant was found in possession of cocaine packaged in several plastic Baggies containing individual doses, paraphernalia of other unused plastic Baggies was recovered at the residence, and a large sum of cash was found on the defendant. Because it was established that powder cocaine and crack cocaine were sold from this residence, the defendant’s presence there while possessing cocaine packaged for sale and a large sum of money on his person excludes any reasonable hypothesis of innocence -and shows that the manner in which he possessed the cocaine was inconsistent with personal use. Thus, the state presented sufficient evidence from which a rational jury could determine that the defendant had the intent to distribute cocaine. Accordingly, the state presented sufficient evidence to support defendant’s conviction for possession of cocaine with intent to distribute, and there is no need to consider the responsive verdict of possession of cocaine.

| improper Expert Testimony

The defendant alleges that Agent Denham was not properly qualified as an expert in order to give an opinion regarding the manner in which the cocaine was packaged, or that the small bags contained individual dosage amounts. Testimony regarding how the cocaine was packaged when it was bought from this residence and how it was recovered during the search warrant are matters of fact and not matters of opinion because Agent Denham was testifying as to how cocaine from this specific residence was packaged and not how cocaine is packaged in general. Testimony regarding whether the individual plastic Baggies contained individual dosage amounts could be considered expert testimony because it requires specialized knowledge that would assist the trier of fact in understanding the evidence. The contemporaneous objection rule precludes the defendant from raising this issue on appeal due to the fact that he did not object to the issue at trial:

Louisiana’s contemporaneous objection rule provides generally that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” See State v. Thomas, 427 So.2d 428, 483 (La.1982)(on rehearing) (“The contemporaneous objection rule has two purposes: (1) to put the trial judge on notice of the alleged irregularity so that he may cure the problem and (2) to prevent a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection.”).

State v. Knott, 2005-2252 (La.5/05/06), 928 So.2d 534, 535. The courts recognize an exception to this rule when the error is of such significance that it violates fundamental requirements of due process. State v. Ruffins, 41,033 (La.App.2d Cir.9/20/06), 940 So.2d 45.

ImEven so, the Louisiana Supreme Court has found that there is no error in allowing a witness to testify as an expert when he has not been qualified to do so when the record shows that the witness possessed sufficient education and practical experience to have been qualified as an expert by the trial court. See State v. Pelt, 448 So.2d 1294 (La.1984), cert. denied, 469 U.S. 825, 105 S.Ct. 104, 83 L.Ed.2d 48. In the present case, Agent Denham testified that he has been a police officer for more than six years, assigned to the Caddo-Shreve-port Narcotics Task Force for more than three years, and that he has worked undercover for the task force. Accordingly, the record clearly supports that fact that Agent Denham possessed the requisite specialized knowledge in order to offer an expert opinion regarding the dosage amounts in which cocaine is sold.

Impermissible Hearsay

Defendant also argues in his supplemental pro se brief that Agent Den-ham’s testimony regarding what Agent Peters saw was inadmissible hearsay to which his trial counsel should have objected. As noted above, the failure of trial counsel to object precludes appellate review of the issue. See State v. Knott, supra. Even so, Agent Denham’s testimony about Agent Peters seeing defendant drop the plastic Baggie into a hole in the bathroom wall did not constitute inadmissible hearsay. Hearsay is an oral or written assertion, other than the one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(A)(1) and (C). Hearsay evidence is excluded because the value, of the statement relies on the credibility of the out-o£jcourtn asserter, who is not subject to cross-examination and other safeguards of reliability. State v. Zeigler, 40,-673 (La.App.2d Cir.1/25/06), 920 So.2d 949. Hearsay evidence may be admissible under the exceptions provided by the Code of Evidence or other legislation, however. La. C.E. art. 802; State v. Zeigler, supra.

One such exception is when an investigating officer testifies concerning events leading to the arrest of a defendant, the statements made to him by others during the course of the investigation are not hearsay if they are not offered for the truth of the matter asserted, but merely to explain the officer’s actions. State v. Zeigler, supra. Thus, when the officer does not testify with regard to the substance of what another person told him, but with regard to what he did in response to that information, the testimony is not -considered hearsay. State v. Zeigler, supra. Agent Denham testified that he was advised by Agent Peters that he saw defendant throw a package into a hole in the bathroom wall. This statement was then followed by Agent Denham’s testimony about how he looked into the hole and personally observed the plastic Baggie, how he observed Agent Peters retrieve it from inside the wall, and then how he processed the evidence retrieved. Because the statement was made to explain his actions, Agent Denham’s statement, did not constitute inadmissible hearsay.

Further, the erroneous admission of hearsay evidence does not require reversal of the conviction when the error is harmless beyond reasonable doubt. State v. Zeigler, supra. Rather, reversal is mandated only when there is a reasonable possibility that the hearsay evidence might have | ^contributed to the verdict. State v. Zeigler, supra. In the present case, Agent Peters testified that he saw defendant holding the plastic Baggie in his left hand and then dropping it into a hole in the bathroom wall. Therefore, Agent Den-ham’s testimony regarding Agent Peters seeing defendant with the contraband would not warrant reversal of the conviction, even if.it was an erroneous admission of hearsay, because there is no reasonable probability that it contributed to the verdict, in light of Agent Peters’s testimony to the same fact.

Admission of Other Drugs

The defendant argues that:

• the court admitted improper evidence of the powder cocaine, crack cocaine, and ecstacy tablets that were found in the bedroom of the apartment, as well as evidence of the second plastic Baggie recovered from the bathroom, because he was not charged with possessing that contraband;
• no evidence was presented connecting him to that residence or that contraband, nor was there substantial evidence regarding who lived there;
• the state failed to file Prieur notice of its intent to present evidence of other crimes;
• this evidence is not admissible for any purpose allowed under the general exclusionary rule;
• this evidence does not qualify as res ges- . tae, or evidence of integral acts, because there is no connection between him and that evidence; and
• he is entitled to a new trial on the lesser included offense of possession of cocaine.

The state responds that:

• defendant-waived this argument for appellate, review because he made no contemporaneous objection to the admission of the evidence at trial;
|1S* this evidence falls within the res gestae exception to La. C.E. art. 404(B) and, as such, there is no requirement that the state give defendant Prieur notice;
• evidence of the contraband found in the bedroom was res gestae evidence due to the fact that it was giving the jury a more accurate picture of what was found during the search of this residence and, thus, necessary for narrative cohesiveness;
• what was found in the bedroom was not actually evidence of defendant’s other crimes because the state presented evidence that Bosworth lived at that residence and that La. C.E. art. 404(B) does not preclude the state from presenting evidence of someone else’s other crimes; and
• presentation of the contraband found in the bedroom was relevant for proving that the apartment was used for the distribution of narcotics and that the jury could infer that defendant had an intent to distribute narcotics due to his presence there.

The state accurately notes that this issue was not preserved for appellate review by a contemporaneous objection made at the time of the alleged improper admission of evidence. State v. Taylor, 37,356 (La.App.2d Cir.9/26/03), 855 So.2d 958, writ denied, 03-3141 (La.3/19/04), 869 So.2d 848. Even so, we address the issue at this time in the interest of judicial economy because it is relevant in addressing whether trial counsel was ineffective for failing to object to the admission of this evidence, which was also raised in another assignment of error.

Generally, evidence of other crimes committed by the defendant is inadmissible due to the “substantial risk of grave prejudice to the defendant.” State v. Prieur, 277 So.2d 126 (La.1973). Even so, La. C.E. art. 404(B)(1) recognizes that evidence of other crimes, wrongs, or acts of a defendant are admissible as exceptions to the general exclusionary rule when admitted for the purposes of proving motive, opportunity, intent, | ^preparation, plan, knowledge, identity, absence or mistake or accident or when the evidence relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. State v. Roberson, 40,809 (La.App.2d Cir.4/19/06), 929 So.2d 789. Admissibility of evidence of these prior acts has been succinctly set forth in State v. Jackson, 93-0424 (La.10/18/93), 625 So.2d 146, and the state is required to do the following when it seeks to present such evidence: (1) comply with the notice requirements and limiting instructions set out in State v. Prieur, supra; (2) prove by clear and convincing evidence that the other act occurred and was committed by the defendant; (3) show that the evidence falls within one of the La. C.E. art. 404(B) exceptions to the general exclusionary rule and that this exception is relevant to the outcome of the case; and (4) show that the probative value of the evidence outweighs its potential prejudicial value. The trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670..

Evidence of integral acts, or res gestae, is admissible under La. C.E. 404(B)(1) without requiring the state to give Prieur notice or the trial court conducting a Prieur hearing. State v. Boyd, 359 So.2d 931 (La.1978); State v. Mandosia, 36,827 (La.App.2d Cir.4/09/03), 842 So.2d 1252. Evidence of integral acts, or res gestae, is admissible so that evidence may be presented in context of the circumstances:

This court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to hssuch an extent that the state could not have accurately presented its case without reference to it. In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. (Citations omitted.)

State v. Brewington, 601 So.2d 656, 657 (La.1992). The “res gestae” doctrine includes testimony of witnesses regarding what they heard or observed before, during, or after the commission of the crime, including utterances or declarations, if a continuous chain of events is evident under the circumstances. State v. Lowery, 33,905 (La.App.2d Cir.2/28/01), 781 So.2d 713, writ denied, 2001-1041 (La.2/22/02), 809 So.2d 978 (internal citations omitted) (emphasis added). “The test of integral act evidence is not simply whether the state might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive its case of narrative momentum and cohesiveness, with power not only to support conclusions, but to sustain the willingness of jurors to draw the inference, whatever they may be, necessary to reach an honest verdict.” State v. Gaddis, 35,661 (La.App.2d Cir.3/14/03), 839 So.2d 1258, writ denied, 03-1275 (La.5/14/04), 872 So.2d 519, cert. denied 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487.

Defendant asserts that there was a second plastic Baggie found in the bathroom wall; however, the record does not support this factual assertion. Agent Denham testified that contraband found in the bedroom contained powder cocaine and crack cocaine packaged in a similar manner to the contraband retrieved from the bathroom wall. Agent Denham further testified that Bosworth admitted living at the apartment and that he had keys to the apartment on him at the time of his arrest. The evidence of the [^contraband seized from the bedroom was presented in the context of proving that narcotics had been found in an apartment that were believed to be used for narcotics distribution. While the contraband found in the bedroom was not construed as belonging to the defendant, it did provide for the jury information from which they could further infer that the apartment was a place for drug distribution. Therefore, it was discovered in the continuous chain of events surrounding the discovery of the defendant being in possession of powder cocaine and crack cocaine that had been packaged for sale, and exclusion of this evidence would have deprived the state of presenting its evidence with narrative cohesiveness. The presence of the other contraband, even though not directly linked to the defendant, helped the state prove that this apartment was used in drug distribution and helped the jury draw inferences as to the defendant’s intention for being there at that time. Therefore, admission of the contraband found in the bedroom was proper under the integral acts, or res ges-tae, exception to the general exclusionary rule of La. C.E. art. 404(B).

The defendant argues that the contraband found in the bedroom could not be considered res gestae evidence because it was not tied to him, and the state argues that the contraband from the bedroom is not evidence of his “other crimes,” but is evidence of Bosworth’s criminal activity. Thus, if the contraband from the bedroom is not actually evidence of defendant’s “other crimes,” then he is not entitled to the La. C.E. art. 404(B) protection against “other crimes” evidence in relation to that contraband because other circuits have specifically found that “the prohibition against other crimes evidence 117pertains to other crimes by the defendant, not other crimes of someone else.” State v. Buffington, 1997-2423 (La.App. 4th Cir.2/17/99), 731 So.2d 340. The probative value of this evidence far outweighed any prejudice.

Improper Severance

The state originally filed a bill of information jointly charging defendant and Bosworth with possession of Schedule II CDS with intent to distribute; however, the state later filed an amended bill of information charging defendant individually for the same offense.

The defendant argues that:

• severing his trial from that of Bosworth was improper because there was no hearing conducted for the state to explain why it was asking for the severance;
• allowing the state to sever the cases for trial gave it an unfair advantage; and
• he was prejudiced by the severance because a joint trial would have allowed the jury to see the whole picture and hear evidence regarding Bosworth’s connection to the apartment and the contraband found in the bedroom.

The state argues that this issue was not properly preserved before this court for appellate review because defendant failed to object to the severance before the trial court. Even so, the state argues that this assignment of error has no merit because the state has the authority to determine how and when it will prosecute a case. In response to defendant’s claim of prejudice, the state argues that:

• there was evidence at his trial showing that Bosworth lived at the apartment;
• no effort was made to link defendant to the contraband found in the bedroom; and
|1S* defendant fails to allege how he would have otherwise benefitted from a joint trial with Bosworth.

The defendant’s failure to raise an objection regarding the severance to the trial court precludes him from raising this issue on appeal. State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673. Even so, the issue is without merit because La. C. Cr. P. art. 704 states in pertinent part that “jointly indicted defendants shall be tried jointly unless: (1) The state elects to try them separately....” Article 704 only requires the trial court to conduct a hearing on a motion to sever when the defendant moves for the severance. Therefore, the fact that the trial court did not conduct a hearing on the state’s motion to sever does not constitute error.

In State v. Lawrence, 40,278 (La.App.2d Cir.3/15/06), 925 So.2d 727, the defendant argued that the state’s decision to sever his trial from that of a co-defendant denied him the right to a fair trial and due process. In considering the defendant’s claim, this court found no error in the state’s action in light of La. C. Cr. P. art. 704 specifically allowing the state to sever the trials of jointly indicted defendants and La. C. Cr. P. art. 61, which provides that, “Subject to the supervision of the attorney general, as provided by Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in the district, and determines whom, when, and how he will prosecute.” State v. Lawrence, supra.

Further, defendant’s claim that the state had an unfair advantage because a joint trial would have allowed evidence regarding Bosworth’s connection to the apartment and contraband in the bedroom is without merit. |19When asked if any attempts were made to determine who had dominion over the apartment, Agent Den-ham testified that Bosworth admitted to being the caretaker of the apartment and that he had keys to the residence on this person at the time he was searched. Defendant failed to allege any other source of prejudice by the severance, and La. C. Cr. P. art. 704 clearly gives the state the discretion to try jointly indicted defendants separately without permission from the trial court.

Assertion of Fifth Amendment Privileges by Bosworth and Cummings

Out of the presence of the jury, both Jackie Bosworth and Timothy Cummings appeared before the trial court with their attorneys and stated they did not wish to testify because they were asserting their Fifth Amendment privilege against self-incrimination. Defendant did not object when those witnesses asserted their right to take the Fifth Amendment, but requested that the fact be made known to the jury; however, he did not request a particular manner in which the information should be made known to the jury. After the defendant and state argued this issue, the trial court ruled that it would not allow the defendant to call those witnesses for the purpose of asserting their Fifth Amendment right against self-incrimination before the jury..

The defendant argues that:

• the trial court erred in allowing Jackie Bosworth and Timothy Cummings to assert a blank Fifth Amendment privilege against self-incrimination by refusing to testify;
• he should have been allowed to question them on topics that would not have violated their right against self-incrimination, such as whether or not they lived at that residence and for how long, whether defendant was a frequent visitor to that residence, who lived at that 12nresidence, and whether any of them paid bills for that residence or received mail there;
• this would have allowed him to show that he had no connection to the other drugs found in the apartment or to the apartment itself; and
• Bosworth and Cummings could have asserted their Fifth Amendment privilege against self-incrimination on a question-by-question basis if incriminating questions were asked while still allowing him to elicit information helpful to his defense.

The state responds that:

• the failure of an objection to the foregoing at trial precludes him from raising the issue on appeal; and
• the questions that defendant now suggests that he may have asked would have likely been incriminating to those witnesses and, thus, they would have had the right to .assert their Fifth Amendment rights in regard to those questions anyway.

The contemporaneous objection rule generally provides that “ ‘[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.’ ” State v. Knott, supra, quoting State v. Thomas, 427 So.2d 428, 432 (La.1982). Since the defendant did not object to these witnesses’ assertion of a blanket Fifth Amendment privilege, the issue is precluded from appellate review.

Even so, there was no error on this issue. When balancing the tension between a witness’s Fifth Amendment privilege against self-incrimination and a defendant’s Sixth Amendment right to present a defense, the Louisiana Supreme Court has consistently recognized the witness’s right not to incriminate himself. State v. Haddad, 1999-1272 (La.2/29/00), 767 So.2d 682, cert. denied, 531 U.S. 1070, 121 S.Ct. 757, 148 L.Ed.2d 660, citing State v. Brown, 514 So.2d 99 (La.1987), cert. denied 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216. The witness may only do so “in response to questions |21‘where the defendant has reasonable cause to apprehend danger from a direct answer.’ ” State v. Brown, supra.

The proper method for witnesses to invoke their Fifth Amendment right against self-incrimination is to answer the questions on the witness stand except when it is evident from the implication of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. State v. Brown, supra.

Even so, “a blanket Fifth Amendment privilege is permissible when the witness is charged with participating in the same crime for which the defendant is being tried, and when it is apparent that the inquiry will be devoted to subject matter that would raise in the witness reasonable cause to apprehend danger from a direct answer or an explanation as to why one cannot be given.” State v. Bright, 1998-0398 (La.04/11/00), 776 So.2d 1134. Further, “[i]t is improper for either side to call a witness, knowing that the witness will assert a privilege, solely to impress upon jurors the fact that the privilege is being claimed.” Id., 1998-0398 at p. 39, 776 So.2d at 1156.

In the present case, both Jackie Bos-worth and Timothy Cummings were arrested at the same time as defendant. Bosworth was apprehended with defendant in the bathroom of the apartment, and both were initially charged in the same bill of information with possession of Schedule II CDS with intent to distribute. Cummings was arrested in the front yard because he had marijuana on his person when the special response team was | ¡.¿securing those outside the residence before searching inside. Defendant alleges that Bosworth and Cummings should have been made to testify and assert their Fifth Amendment privilege only when asked questions for which the answers or failure to answer would be self-incriminating; defendant also alleges that this would have permitted him to ask them questions regarding who lived at the apartment and whether defendant was frequently there. Under the circumstances of this case, however, the state was presenting evidence to show that this apartment was frequently used for narcotics distribution in order for the jury to infer that those who were there were involved in narcotics distribution. Thus, questions regarding who lived in and frequented the apartment could very likely be self-incriminating. The trial court did not err in allowing Bosworth and Cummings to assert a blanket Fifth Amendment privilege.

Ineffective Assistance of Counsel

Defendant claims his counsel was deficient by:

• not filing pretrial motions to contest the admissibility at trial of the other drugs found in the residence or to contest the severance of the jointly charged defendants, nor objecting to these actions at trial;
• not objecting to the blanket assertions of Fifth Amendment privileges by Jackie Bosworth or Timothy Cummings;
• not filing the proper post-trial motions to preserve the sufficiency of the evidence issue;
• failing to object to the alleged hearsay testimony of Agent Denham regarding Agent Peters seeing defendant drop a plastic Baggie into a hole in the bathroom wall; and
• eliciting information on cross-examination from Agent Denham, who knew defendant before this arrest from another pending case against him.

12SThe state argues that the failure to file a motion for post verdict judgment of acquittal does not preclude the defendant from appellate review of the sufficiency of the evidence. The state also argues that the defendant failed to prove how he was prejudiced by the other alleged errors or otherwise deprived of a fair trial.

At the appellate level, the law on reviewing allegations of ineffective assistance of counsel is well settled.

124This court considers claims regarding the sufficiency of evidence even when the defendant fails to file a motion for post verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821. State v. Henson, 38,820 (La.App.2d Cir.9/22/04), 882 So.2d 670. Therefore, trial counsel was not ineffective for failing to file a motion for post verdict judgment of acquittal because this did not preclude the defendant from appellate review regarding the sufficiency of the evidence.

Further, there is no merit to defendant’s claim that trial counsel was ineffective for failing to make the proper objections or file the proper motions to preserve for appellate review the alleged errors in Assignments of Error 2^4 or counsel’s failure to object to the alleged hearsay. In State v. Allen, 2003-2418 (La.6/29/05), 913 So.2d 788, cert. denied — U.S. —, 126 S.Ct. 2023, 164 L.Ed.2d 787, the Louisiana Supreme Court stated that “the failure to object to a valid error may be the proper subject of a post conviction claim of ineffective assistance of counsel.” Conversely, the failure to object to invalid errors may not be the proper subject of a claim of ineffective assistance of counsel. In State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108, cert. denied — U.S. —, 127 S.Ct. 1279, 167 L.Ed.2d 100, the court found that the failure to object to the admission of a recorded telephone conversation did not constitute ineffective assistance of counsel because there was no legal basis for counsel to contest its admissibility. In State v. King, 41,084 (La.App.2d Cir.6/30/06), 935 So.2d 815, writ denied, 06-1803 (La.2/16/07) 949 So.2d 411, this court found that counsel’s failure to object to the trial court’s refusal to give a self-defense jury instruction did not constitute ineffective assistance of counsel laBbecause exclusion of that jury instruction was harmless error. In State v. Lane, supra, this court found that trial counsel’s failure to object to the jury instructions was not ineffective assistance of counsel when the jury instructions were properly given.

Defendant would not have been entitled to relief on any of the previous claims, even if they had been preserved for appellate review. Thus, defense counsel’s failure to object was not prejudicial to defendant. Further, defense counsel’s failure to object over meritless claims is not ineffective assistance of counsel.

Defendant also alleges that trial counsel was ineffective for eliciting information on cross-examination of Agent Denham that he knew defendant before this arrest due to another pending case against him. Defendant alleged that this was impermissible and prejudicial evidence of other crimes. In support of this argument, defendant first cites counsel’s opening statement, wherein counsel stated that “Agent Denham recognized Bernard Grant from an encounter of several, several months prior to that.” The context of the opening statement in which counsel said this, however, indicates that counsel was trying to communicate to the jury his argument that law enforcement was unfairly harassing defendant during the execution of the search warrant. Later during direct examination, Agent Denham referred to defendant as “Bernard Cummings” instead of “Bernard Grant.” At this point, defense counsel objected that there was no foundation about an alias, and the trial court heard arguments about whether testimony that defendant was known by different names was prejudicial. The state ^explained that it wanted the jury to know that defendant was known by both names for the purpose of explaining why the name “Bernard Cummings” was listed on an investigation document and to prove identity.

During cross-examination of Agent Den-ham, this exchange took place:

DEFENSE COUNSEL: At any time did you have any kind of a confrontation or any discussion with Bernard Grant in the front yard?
AGENT DENHAM: It’s possible, yes.
DEFENSE COUNSEL: Well, as a result of that conversation was there some discussion between you and Mr. Grant about what his true name was?
AGENT DENHAM: It’s possible, yes. I have had dealings with Mr. Grant before, if that’s where you are going?
DEFENSE COUNSEL: What circumstances gave rise to your having dealings with Mr. Grant before?
AGENT DENHAM: It had to do with another case pending against him.
DEFENSE COUNSEL: So you knew Mr. Grant?
AGENT DENHAM: Yes, sir.

It appears from the context of the opening statement that this line of questioning was aimed at showing the harassment Mr. Grant had allegedly suffered. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. See State v. Moore, supra. No evidence was presented as to specific offenses committed by defendant, nor | ?7did the state seek to introduce other crimes evidence. We find no prejudice from the oblique reference herein about the other case, certainly not to the extent that it undermines the fairness of his trial or validity of his conviction. In the absence of such prejudice, it must be presumed that counsel was exercising professional judgment.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

BROWN, C.J., concurs with written reasons.

BROWN, Chief Judge,

Concurring.

|J fully agree in the affirmation of this case; however, I find that the language in the opinion concerning the state’s burden of proof in a possession with intent to sell case could be misinterpreted. In particular, the statement in the opinion that ‘When the specific intent to distribute ... is based on circumstantial evidence, the state must prove the amount of the substance and/or the manner in which it was carried was inconsistent with personal use.” Obviously, possession can be shown by direct evidence, but intent is a condition of mind which must be inferred from the circumstances.

The burden of proof of the intent to distribute was clearly set forth in State v. Hearold, 603 So.2d at 735, 736 as follows:

In the absence of circumstances from which an intent to distribute may be inferred, mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible. (Emphasis added).

There is no “threshold” requirement for the state to prove that the amount of the substance and/or the manner in which it was carried was “inconsistent with personal use.” The relevant inquiry in a possession with intent case is whether, considering all relevant evidence, circumstantial and direct, an intent to distribute has been shown.

In this case, the surrounding circumstances as set out in the opinion easily supports the inference of intent to distribute, even though, the amount standing alone could also be consistent with personal use.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, DREW and SEXTON (Pro Tempore), JJ.

Rehearing denied. Request for en banc consideration also denied.

      . Certified informants are registered with the Shreveport Police Department, have been through a background check, and are given money in exchange for information.

      . "Ecstacy” is the common name for methy-lenedioxymethamphetaime, which is a Schedule II CDS.

      . An explosive device which disorients with loud noise and a bright flash of light.

      . The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/05/99),. 737 So.2d 747. In the absence of internal contradictions or irreconcilable conflict with physical evidence, the testimony of one witness is sufficient support for a requisite factual conclusion if that witness is believed by the trier of fact. State v. Jones, 31,613 (La.App.2d Cir.4/01/99), 733 So.2d 127, writ denied, 1999-1185 (La. 10/01/99), 748 So.2d 434.
      This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La. 10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90.

      . Claims of ineffective assistance of counsel are more properly raised in an application for post conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Lane, 40,816 (La.App.2d Cir.4/12/06), 927 So.2d 659, writ denied, 2006-1453 (La.12/15/06), 944 So.2d 1283. When the record is sufficient, however, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Lane, supra. Therefore, in the interest of judicial economy, these claims of ineffective assistance can be addressed on appeal because the record is sufficient for resolving them.
      The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. See State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.2052, 80 L.Ed.2d 674 (1984). To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. See Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. See State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991).
      Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. See Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. See Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La. 11/03/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusoiy charges will not suffice. See Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/03/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03), 845 So.2d 1067.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Michelle Repass BINGHAM, Plaintiff-Appellee v. Donald Jason BINGHAM, Defendant-Appellant.
    No. 42,140-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.

      Jill B. Goudeau, Monroe, for Appellant.
    Stephen A. Jefferson, Monroe, for Ap-pellee.
    Before BROWN, GASKINS, and LOLLEY, JJ.
   BROWN, Chief Judge.

hThe parties in this domestic action, Jason and Michelle Bingham, divorced in 2000. They had two daughters, Harmony, age three, and Vanessa, age two. The parents agreed to shared custody with the mother having the two children from morning to evening and the father from evening to morning. No child support was to be paid by either party. A judgment was signed to that effect. In 2003, because the girls had started school, Jason found the daily exchange unworkable. He approached Michelle to modify the arrangement from a daily exchange to alternating weeks and she agreed. No court order modifying the original custody plan was sought or obtained. In 2004, Michelle filed this action to modify the original judgment of custody and for child support. Jason responded by urging the court to “recognize and adopt the plan (alternating weeks) which is in effect, and has been agreed upon by the parties.” After considering the best interest of the children, the trial court modified the original custody judgment to award Michelle physical custody during the school year and Jason physical custody during the summer break subject to specified visitation. Michelle was also awarded child support.

Jason has appealed seeking reversal of the trial court’s custody award and its order for him to pay $860 per month in child support. For the reasons assigned below, the judgment of the trial court is hereby affirmed.

Discussion

Custody

La. C.C. article 131 provides that custody should be awarded based on the best interest of the child. Joint custody is preferred unless it is shown 12by clear and convincing evidence that sole custody is in the best interest of the child. La. C.C. article 132. Parents have the right to contract with each other as to custody and control of their children. Even so, the best interest of the child is the overriding test whether in initially setting or modifying custody. La. C.C. art. 132 provides in part:

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. (Emphasis added).

It is precisely for the reason that the child is not represented that the Louisiana Civil Code injects a duty on the court to protect the child’s interest. Courts, however, are universally willing to decide questions of custody based on the agreement reached by the parents. When custody is in conjunction with or after a divorce action, the child is not usually represented and unless there have been some proceedings in court, the trial judge has no information or knowledge concerning the child’s best interest. As in this case, the judge simply signs as a judgment the custody implementation plan prepared by -the parties.

Because of concerns with judicial economy and stability in custody arrangements, the jurisprudence has added a change of circumstance rule in actions to modify or change an initial custody judgment. If there is |an original award of custody, without litigation of the child’s best interest, i.e., a stipulated rather than a considered judgment, then a request to modify custody requires two issues to be determined in chronological order: (a) whether there has been a material change in circumstances since the original award; and if so, (b) whether the best interest of the child would be served Uby a modification or change in custody. Without a material or significant change in circumstances, there can be no modification of the custody award. Evans v. Lungrin, 97-0541 (La.02/06/98), 708 So.2d 731; Masters v. Masters, 33,438 (La.App. 2d Cir.04/05/00), 756 So.2d 1196, writ denied, 01-3096 (La.12/07/01), 803 So.2d 975.

In his appeal, Jason questions the trial court’s finding of a material change in circumstances. In this case, however, both parents sought to modify the original custody plan which provided for exchange of the children on a daily schedule. The father requested that the court adopt the arrangement that the parties were actually following while the mother asked the court to impose a more “traditional” custody arrangement. Thus, both parties sought modification of the original custody judgment. Under these circumstances, we find that there is no permanent, court-sanctioned custody plan and that this case is in the posture of an initial custody determination where proof of a change in circumstance is not required.

|4It is undisputed that both parties were remarried, Michelle to Michael Smith and Jason to Melissa Bingham. In addition to Harmony and Vanessa, Michelle has one daughter, Rachel, with her new husband. Rachel was three years old at the time of the trial. Jason and Melissa also have a daughter, Kaitlin. Additionally, Melissa has a son, Gavin, from a previous relationship whom Jason has adopted.

Both Harmony and Vanessa refer to Melissa Bingham as “mom” as per Melissa’s instructions, supposedly so as not to confuse Kaitlin. Both girls testified that they know that Melissa is their stepmother.

In the instant case, Michelle’s request for a school-year based custody plan focused in part on the fact that she was no longer employed and could provide a more stable environment for the children during the school year. Her request was also based in part on the deleterious effects of the existing custody arrangement due to the lack of communication between herself and Jason. She questions Jason’s new wife’s unwillingness to respect the boundaries of a stepparent.

The trial court agreed with Michelle’s allegation that communication between the parties is less than ideal. For example, we concur with the trial court that the failure of Jason and his wife to communicate with Michelle before cutting the children’s hair was insensitive. More significant, however, is that the exchanges of the children took place at a convenience store where the children would go to the restroom and change out of the clothes they arrived wearing and into clothes provided by the parent picking them up. This practice was instituted at the request of Jason because of his | ¡^concern that he might not get back the clothes the children were wearing when he dropped them off with their mother. The children in testimony to the trial judge noted this inconvenience.

Further, Jason admitted that he called the Office of Family Services to inquire about whether certain foods being provided by Michelle for breakfast were appropriate for children. This triggered an investigation by the OFS which was closed as a “false call.”

The children were called to testify by their father, but did so outside the presence of their parents. Both are excellent students and stated that they like the seven-day rotation schedule and did not want to spend extended periods of time away from their father. The trial court noted that the girls brought written notes with talking “points.” It was Jason Bingham who insisted on the girls testifying, and the court believed that he had coached the girls concerning their testimony.

After considering all of Jason’s arguments on this issue, along with the record before us and the applicable law, we cannot find an abuse of the trial court’s discretion. While it is not established that the home of either parent is deleterious to the children, and in fact the opposite appears to be the case, granting Michelle Smith primary custody during the school year and Jason Bingham primary custody during the summer is a reasonable solution to the communication problems between the parents. Further, the parents live close enough to each other to allow Jason convenient visitation with the children during the school year and full opportunity to join in school and extracurricular functions. Accordingly, we find no abuse of the | fitrial court’s discretion or manifest error in the modification of the custody arrangement.

We also reject Jason’s argument that the trial court applied a maternal preference standard. In its reasons for judgment, the trial court made the following observation:

The custody plan the court will order, as detailed below, is a more traditional school-year based custody plan, where the children will be in the primary custody of their mother during the school year and in the primary custody of the father during the summers.

The phrase “more traditional” references the fact that the plan decided by the court is governed by the school schedule. In this case, Michelle is the stay-at-home parent and available for all the issues confronting elementary school-aged children. Jason, on the other hand, is at work when the children are in school and returning home from school.

Visitation Schedule

Alternatively, Jason argues that the holiday visitation schedule implemented by the trial court should be modified to ensure that each party has an equal amount of time during the holidays, and he also urges that he should be awarded more visitation during the school year.

The holidays of Thanksgiving, Christmas, and spring break are divided into two periods with each parent receiving in alternating years either the first or the second period of each holiday. Accordingly, while Jason may have received the shorter part of the Christmas holidays one year, he will receive the longer portion the following year. That being the case, in |7the long run each parent will receive approximately the same amount of time with the children during their school breaks.

Jason also argues that he should be given more visitation during the school year, citing this court’s opinion in Collins v. Collins, 36,629 (La.App. 2d Cir.10/23/02), 830 So.2d 448, in which we amended a visitation custody schedule similar to the one in the present case by increasing the father’s school-year visitation. In Collins, supra, the facts presented allowed this court to conclude that the parents showed a willingness to foster a close and loving relationship between their daughters and each other and demonstrated that they could work together without acrimony for the benefit of their children’s care and well-being. That is not the case here. To the contrary, the record supports the trial court’s finding that a communication breakdown existed between the parents that could potentially harm the children. To grant Jason’s request for more visitation during the school year could exacerbate the very communication problems the trial court intended to ameliorate.

Child Support

Since we have not amended the judgment to provide for shared custody, we need not address Jason’s assignment of error regarding the calculation of child support under La. R.S. 9:315.9. He has, however, also assigned error to the amount of income the trial court imputed to Michelle Smith in its calculation of the child support obligation.

La. R.S. 9:315(C)(5)(c) provides:

(c) The court may also consider as income the benefits a party derives from expense-sharing or other sources; however, in ^determining the benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses. (Emphasis added.)

The language is permissive, not mandatory. As such, it is within the trial court’s discretion to include or disallow alleged expense-sharing benefits and its determination will not be disturbed absent an abuse of that discretion. Evans v. Evans, 36,731 (La.App. 2d Cir.11/06/02), 830 So.2d 591. In the present case, Jason did not present evidence to demonstrate the amount of Michelle’s husband’s, income that was used to reduce her actual expenses. Thus, we are unable to find any abuse of the trial court’s discretion.

Pursuant to La. R.S. 9:315.11, if a party is voluntarily unemployed or underemployed, child support shall be based on a determination of income earning potential, unless the party is mentally or physically incapacitated. Gardner v. Gardner, 41,655 (La.App. 2d Cir.12/27/06), 946 So.2d 321.

The parties’ children are in elementary school and the fact that Michelle would be at home was a factor in making her the primary domiciliary parent during the school year. Prior to her decision to stay home with the children, Michelle’s work history was inconsistent. Although not her last employment, Michelle had worked with State Farm in Columbia, Louisiana, making $12 an hour plus commission. Her job required a long commute, over 30 miles each way. There was no showing of what work was available where she currently lived. The trial judge imputed to her an earning potential of $8 per hour. We find no abuse of [¡¡discretion in the amount of income imputed to Michelle by the trial court for purposes of child support calculations.

Jason’s argument that the structure of the child support payments should be modified to allow him to pay a reduced amount during the year with the difference to be made up when he receives his year-end bonus is unpersuasive. The need to cover the recurring expenses associated with the raising of children outweighs Jason’s concerns regarding the timing of his compensation. As the trial court pointed out' in rejecting Jason’s motion for new trial on this issue, he can set aside that portion of his year-end bonus which will be necessary to pay his child support obligation during the following year.

Conclusion

For the foregoing reasons, the trial court judgment of September 14, 2006, is affirmed. Costs of this appeal are to be borne by defendant, Donald Jason Bing-ham.

AFFIRMED.

      . In custody disputes seeking modification of a considered or litigated decree, the standard set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), requires the party seeking the change to prove that the continuation of the present custody is so deleterious to the child as to justify modification or to prove by clear and convincing evidence that any harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child.

      . We note that the trial court found that the children’s circumstances had changed in that they were now in school; however, they had been in school for more than three years before this matter was heard. The court also found the mother’s circumstances had changed in that she had remarried, had another child, and no longer worked. As a stay-at-home mom, she would be there when the children were let out of school.
      An inflexible application of the change in circumstance rule could lock children into a bad situation when the parties stipulate custody to an unsuitable parent or in an unsuitable manner. In this case, custody has remained unchanged but inadequate since its inception. The trial court’s pragmatical approach provided an adequate solution.


author: MOORE, J.

text:
    Jerry WALKER on Behalf of His Minor Child, Brandon Thompson WALKER, Plaintiff-Appellee v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 42,051-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.

      Casten & Pearce, by Marshall R. Pearce, Shreveport, for Appellant.
    Wade Visconte, Shreveport, The Law Office of Kirby D. Kelly, by H. Dean Lucius, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   MOORE, J.

LState Farm, the UM carrier for plaintiff Jerry Walker, appeals a summary judgment finding that Louisiana law applied to the claim and that State Farm’s UM policy provided coverage despite its “anti-stacking” provision. We reverse and render.

Procedural Background

The accident occurred on July 13, 2004. Eleven-year-old Brandon Walker was riding as a passenger in Charles Cleveland’s 2003 Chevy Impala. Cleveland was driving north on Hwy. 71 in north Caddo Parish when Michelle Thomas, driving south in her 2001 Honda Civic, tried to pass an 18-wheeler. She failed to negotiate the pass and instead collided head-on with the Impala. Brandon was seriously injured.

Brandon, his father Jerry Walker, and Cleveland are all residents of Texarkana, Arkansas. Both the Walkers and Cleveland had auto insurance policies, with UM coverage, issued in Arkansas. The record does not disclose where Ms. Thomas lives.

Acting on behalf of his son, Jerry Walker settled with Cleveland’s UM carrier, Progressive Insurance Co., for the policy limit of $100,000 plus $5,000 med-pay, and released those parties. He also settled with Ms. Thomas’s liability carrier, Southern Farm Bureau, for $15,186.78 and released those parties.

He then filed the instant suit in the First Judicial District Court against his own UM carrier, State Farm, for UM benefits, penalties and attorney fees. State Farm’s UM limit was $25,000.

| ?,State Farm moved for summary judgment, contending that under Arkansas law, an insurer may preclude stacking of UM policies and that the policy issued to Walker did so, specifically and unambiguously:

If There Is Other Underinsured Motor Vehicle Coverage

1. If underinsured motor vehicle coverage for bodily injury is available to an insured from more than one policy provided by us or by any other insurer, the total limit of liability available from all policies provided by all insurers shall not exceed the limit of liability of the single policy providing the highest limit of liability. This is the most that will be paid regardless of the number of policies involved, persons covered, claims made, vehicles insured, premiums paid or vehicles involved in the accident.
2. Subject to item 1 above, any coverage applicable under this policy shall apply:
a. on a primary basis if the insured sustains bodily injury while occu pying your car, or while not occupying a motor vehicle or trailer.
b. on an excess basis if the insured sustains bodily injury while occupying a vehicle not owned by or leased to you, your spouse, or any relative. * * *
3. Subject to items 1 and 2 above, if this policy and one or more other policies provide coverage for bodily injury:
a. on a primary basis, * * *
b. on an excess basis, we are liable only for our share. Our share is that percent of the damages payable on an excess basis that the limit of liability of this policy bears to the total of all applicable underinsured motor vehicle coverage provided on an excess basis.

(Policy Pages 17-18; defined terms emphasized in the original). In support, it attached a certified copy of the policy.

Walker filed his own motion for summary judgment, contending that under the choice-of-law analysis of La. C.C. arts. 3515 and 3537, Louisiana |slaw applied. He conceded that Louisiana law generally prohibits recovering damages from more than one UM policy, but the guest passenger exception of La. R.S. 22:680(l)(c)(i, ii) permitted it in this case. Alternatively, he contended that even under Arkansas law, State Farm’s anti-stacking provision was unenforceable because it was ambiguous, conflicting and against public policy. In support, he attached certified copies of the release executed with Ms. Thomas and her insurer, as well as Brandon’s medical records.

The parties submitted the matter on briefs. The court stated on the record that Walker “obtained payment from the alleged tortfeasor and a partial payment from an uninsured motorist or underin-sured motorist and seeks in effect to stack uninsured motorist coverage.” Further, “Louisiana law applies to this particular controversy and * * * as State Farm provides uninsured or underinsured protection!,] the plaintiffs motion for summary judgment is granted.” Finally, “The defendant’s motion for summary judgment is denied for the same reason; that is, that Louisiana applies, the Louisiana law provides for stacking under these circumstances of underinsured or uninsured motorist coverage.” Despite State Farm’s request pursuant to La. C.C.P. art. 1917, the court declined to give reasons for these conclusions. The court rendered judgment granting Walker’s motion and denying State Farm’s, and certified it as immediately appealable.

State Farm has appealed, urging by two assignments of error that the district court erred in applying Louisiana law; alternatively, it argues that |4even if Louisiana law applies, it does not require stacking.

Standard of Review

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Hill v. Shelter Mutual Ins. Co., 2005-1783 (La.7/10/06), 935 So.2d 691. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The interpretation of an insurance contract is usually a legal question that can be properly resolved by motion for summary judgment. Robinson v. Heard, 2001-1697 (La.2/26/02), 809 So.2d 943.

Discussion: Comparison of UM Laws

By its first assignment of error, State Farm urges the district court erred in applying Louisiana law to an Arkansas automobile insurance policy providing uninsured and underinsured motorist coverage to an Arkansas resident involved in an accident in Louisiana. It contends that there is a genuine difference between the UM laws of Louisiana and Arkansas, and that under the factors of La. C.C. arts. 3515 and 3537, Arkansas’s interests would be more seriously impaired should its laws not be applied. It cites numerous cases in which out-of-state plaintiffs, with insurance policies issued in their home states, were injured in auto accidents in Louisiana and made claims on their UM provisions; most often, the courts have applied the |5other state’s law to the claim. See, e.g., Champagne v. Ward, 2003-3211 (La.1/19/05), 893 So.2d 773. Finally, it submits that Louisiana’s policy interests have been mitigated since Walker recovered and settled with the tortfeasor and collected UM policy limits from his host driver.

Walker responds that Louisiana has a strong public policy to promote full recovery for innocent victims of auto accidents on its highways by mandating liability coverage and making UM coverage available. Martin v. Champion Ins. Co., 95-0030 (La.6/30/95), 656 So.2d 991. He contends that with this strong public policy and numerous factual connections between the accident and the state, Louisiana’s interests would be most seriously impaired were its law not applied.

In Champagne v. Ward, supra, the supreme court held that the starting point in a multistate case was first to determine whether there was a difference between Louisiana’s UM law and that of the other state and then to determine which state’s law applied by employing the choice-of-law methodology codified in C.C. arts. 3515 and 3537.

The Arkansas statute regulating the provision of underinsured motorist coverage,. A.C.A. § 23-89-209, is silent on the issue of stacking. Ross v. United Services Auto. Ass’n, 320 Ark. 604, 899 S.W.2d 53 (1995). Although stacking of UM coverages is not prohibited by statute, it may be precluded by an applicable anti-stacking clause in the policy. Kanning v. Allstate Ins. Cos., 67 Ark.App. 135, 992 S.W.2d 831 (1999); Whitney v. Shelter Mutual Ins., 383 F.Supp.2d 1112 (W.D.Ark.2004). Arkansas public policy does not favor stacking. Chamberlin v. State Farm Mut. Auto. |6Ins. Co., 343 Ark. 392, 36 S.W.3d 281 (2001). The availability of stacking is purely a matter of reading the contract to determine its contents. Whitney v. Shelter Mutual Ins., supra. The policy provision quoted above would appear to prohibit stacking in this case.

The Louisiana statute mandating uninsured motorist coverage, La. R.S. 22:680, specifically addresses stacking:

(l)(c)(i) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subpara-graph (l)(a) of this Section, then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance, and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; however, with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
(ii) With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, the following priorities under uninsured motorist coverage shall apply:
(aa) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(bb) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

In short, Louisiana law generally prohibits stacking; an exception applies, however, under Subparagraph (l)(c)(ii), if the injured party was occupying a vehicle not owned by him, his resident spouse or resident relative, there was UM coverage (primary) on the occupied vehicle, and at |7least one other UM coverage was available to the injured party who has not yet been fully compensated for his damages. See William Shelby McKenzie and H. Alston Johnson III, Insurance Law and Practice, 3 ed. (Thomson/West ©2006), § 122. Iri short, the exception to the general anti-stacking provision would appear to apply to Brandon and permit him to stack the State Farm UM provision.

State Farm contends that another provision of R.S. 22:680 negates the application of this exception because the accident did not involve a resident of Louisiana:

(l)(a)(iii) This Subparagraph and its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.

This provision, however, applies only to “This Subparagraph,” which obviously refers to Subparagraph (l)(a) of Section 680. Had the legislature intended the residency requirement to apply to the portion of the statute designated as (l)(c), it would have referred to “This Subsection.” We do not find that the residency requirement of (l)(a)(iii) negates the anti-stacking exclusion provided by (l)(c)(i).

Because Arkansas law would prohibit stacking and Louisiana law would allow it in this case, we must conduct a choice-of-law analysis.

Choice of Law

An issue in a case having contacts with other states is governed by the law of the state “whose policies would be most seriously impaired if its laws were not applied to that issue.” La. C.C. arts. 3515, 3537. Article 3515 states the general rule of conflicts. Rains v. Jones, 38,977 (La.App. 2 Cir. 12/22/04), 890 So.2d 747, writ denied, 2005-0185 (La.4/1/05), 897 So.2d 605. Article 3537 is more specific, pertaining to conventional obligations:

That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by another.

Article 3537 has been applied to choice-of-law issues involving UM' coverage. Champagne v. Ward, supra; Rains v. Jones, supra; Adams v. Thomason, 32,728 (La.App. 2 Cir. 3/1/00), 753 So.2d 416, writ denied, 2000-1221 (La.6/16/00), 764 So.2d 965.

The policies and interests of Louisiana differ from those of Arkansas in this case. Walker correctly argues that Louisiana jurisprudence expresses a strong public policy favoring full recovery by innocent victims of uninsured motorists. Champagne v. Ward, supra; Martin v. Champion Ins. Co., supra. However, Louisiana also recognizes the interest of other states in regulating their own insurance industries and related contractual obligations. Champagne v. Ward, supra; Montgomery v. Farmers Texas County Ins. Co., 34,628 (La.App. 2 Cir. 5/9/01), 786 So.2d 306; Zuviceh v. Nationwide Ins. Co., 2000-0773 (La.App. 1 Cir. 5/11/01), 786 So.2d 340, writ denied, 2001-2141 (La.11/9/01), 801 So.2d 373. As the court recognized in Champagne, “The integrity of the contract is a substantial and real interest. The fact that Congress has allowed fifty states to have their |9own uniform system of regulations governing insurance strongly suggests this is a legitimate public purpose.” Champagne, supra, at p. 26, 893 So.2d at 788.

The contacts of Louisiana to the parties and the contract are tenuous at best. The accident obviously occurred in north Cad-do Parish. However, both Brandon, the injured party, and Cleveland, his host driver, were residents of Arkansas. Both Cleveland’s UM policy, written by Progressive Insurance, and Walker’s, written by State Farm, were issued in Arkansas. This court has recognized that out-of-state drivers and their insurers do not change their mutual intent to be governed by the laws of their own states simply by the fortuity of suffering an accident while driving through Louisiana. Rains v. Jones, supra. In fact, most cases in which the only connection to Louisiana is the happenstance that the accident occurred here result in the application of the other state’s law. Champagne v. Ward, supra; Rains v. Jones, supra, and the cases discussed therein; Zuviceh v. Nationwide Ins. Co., supra.

Walker argues that State Farm does business in Louisiana as well as Arkansas, and thus could reasonably expect that various Louisiana laws would be applied to its policies. Dunlap v. Hartford Ins. Co., 2004-0725 (La.App. 1 Cir. 3/24/05), 907 So.2d 122. Further, neither State Farm nor any major insurer could comply with the varying insurance laws of all 50 states; hence, the insurer must expect that its policy would be subject to interpretation under the law of any state in which an accident occurs. Boutte v. Fireman’s Fund County Mut. Ins. Co., 2006-34 (La. App. 3 Cir. 5/10/06), |10930 So.2d 305, writs denied, 2006-1482, 2006-1484 (La.9/29/06), 937 So.2d 864. These cases, however, presented more compelling contacts between Louisiana and the parties: both plaintiffs were Louisiana residents making claims on UM policies affecting vehicles that were garaged in Louisiana. In fact, the Boutte court carefully distinguished the case from Champagne v. Ward, supra, on this basis. The same considerations simply are not present in the instant case.

Finally, Walker argues that other factors prove a strong contact between Louisiana and the case: Brandon received much of his medical care at LSU Health Sciences Center and Shriners’ Hospital, and Walker applied to the First JDC for approval of Brandon’s settlement. We note, however, that Walker already settled with both the liability earner and with Cleveland’s UM carrier. At least one court has held that this circumstance mitigates Louisiana’s interest in providing UM coverage for innocent accident victims. Palm v. Stewart, 2003-0594 (La.App. 3 Cir. 11/5/03), 858 So.2d 790. Walker’s choice of healthcare providers for his son, and his selection of a Louisiana court to homologate a settlement, do not alter the finding under Art. 3537 that Arkansas’s interests would be most seriously impaired if the State Farm policy were subjected to Louisiana law.

The district court erred in applying Louisiana law to the case.

Construction of the Policy

By its first assignment of error, State Farm further urges that its anti-stacking provision, quoted above, is clear and unambiguous. It submits that its own UM coverage was excess to the primary coverage afforded by |n Progressive and did not exceed Progressive’s limit, so it (State Farm) has no further obligation.

Walker responds that the policy is ambiguous on various grounds and contrary to public policy; as a result, the anti-stacking provision cannot be enforced.

The Arkansas Supreme Court recently reiterated the rules applicable to the construction of insurance policies:

The law regarding the construction of an insurance contract is well settled. Once it is determined that coverage exists, it then must be determined whether the exclusionary language within the policy eliminates coverage. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. Id. If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001). On the other hand, if the language is ambiguous, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Harasyn v. St. Paul Guardian Ins. Co., 349 Ark. 9, 75 S.W.3d 696 (2002). Whether the language of the policy is ambiguous is a question of law to be resolved by the court. Id. The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid. Southern Farm Bur. Cas. Ins. Co. v. Williams, 260 Ark. 659, 543 S.W.2d 467 (1976).

Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, at 351, 166 S.W.3d 556, at 560-561 (2004).

Moreover, as a general rule, the specific provisions of a contract control the general provisions. Taylor v. Hinkle, 360 Ark. 121, 200 S.W.3d|12387 (2004); Dean v. Colonia Underwriters Ins. Co., 52 Ark. App. 91, 915 S.W.2d 728 (1996).

The “Other Underinsured” provision quoted above, ¶ 1, states that the “total limit of liability available from all policies provided by all insurers shall not exceed the limit of liability of the single policy providing the highest limit of liability.” Further, “This is the most that will be paid regardless of the number of policies involved, persons covered, claims made, vehicles insured, premiums paid or vehicles involved in the accident.” Notably, Brandon has already received the highest UM limit available. Under ¶ 2(b), State Farm’s coverage is clearly excess to that of Progressive; under ¶ 3(b), State Farm’s UM limit of $25,000 does not exceed Progressive’s limit of $100,000. The only reasonable reading of these provisions is that State Farm will not stack its UM coverage in this case. This clear and unambiguous statement precluding the stacking of UM coverages is substantially similar to anti-stacking provisions upheld and applied in Shelter Mutual Ins. Co. v. Williams, 69 Ark.App. 35, 9 S.W.3d 545 (2000), and Barnhill v. Farm Bureau Mut. Ins. Co. of Ark. 12 Ark.App. 123, 671 S.W.2d 233, aff'd, 284 Ark. 219, 681 S.W.2d 341 (1984).

Walker argues that several other provisions of the policy conflict with this and mandate a finding of coverage. He first cites the “Motor Vehicle Compulsory Insurance Law or Financial Responsibility Law,” Policy Page 10, ¶ 1, and contends that if an insured is .in another state or Canada and, as a nonresident, “becomes subject to its motor vehicle compulsory insurance,” | isthen “the policy will be interpreted to give the coverage required by the law” and “the coverage so given replaces any coverage of its policy to the extent required by the law[.]” However, this paragraph applies by its own terms only to “an insured under the liability coverage” (emphasis added), not to uninsured or .underinsured coverage. This provision does not make the anti-stacking language ambiguous.

Next, he quotes a large portion of State Farm’s policy, “Underinsured Motor Vehicle—Coverage W,” Policy Pages 13-14, to contend that they are generally ambiguous: “It is hard to imagine a layman-insured having the understanding of the coverages provided under the UIM policy.” We have closely examined this long passage of the policy and do not find that it causes any ambiguity. Coverage W establishes State Farm’s obligation to pay underinsured losses; the “Other Underin-sured” or anti-stacking provision merely creates an exclusion to coverage. This arrangement of general and special provisions does not make the contract ambiguous. Taylor v. Hinkle, supra; Dean v. Colonia Underwriters Ins. Co., supra.

Finally, Walker contends that to enforce the anti-stacking provision would contravene public policy. In support, he cites the dissent in Chamberlin v. State Farm, supra, and argues that because he paid a UM premium, however small, he had a reasonable expectation of coverage. We will readily concede the eloquence of Justice Thornton’s dissent, but it was nevertheless only a dissent: it does not express the view of the court. We also recognize the apparent inequity of allowing State Farm to collect a premium for UM coverage and then withhold the benefit if other UM 114coverage is available. However, the policy bluntly sets a limit on total UM coverage “regardless of * * * premiums paid[.]” This court is without authority to rewrite a clear and unambiguous exclusion.

State Farm’s position has merit. The district court erred in finding that State Farm had any further obligation of UM coverage. The judgment will be reversed.

Conclusion

Finding merit in State Farm’s first assignment of error, we pretermit any considering of its second assignment, which addressed the application of Louisiana law. For the reasons expressed, the summary judgment in favor of Jerry Walker is reversed, and State Farm’s opposing motion for summary judgment is granted. All costs are. to be paid by Jerry Walker.

REVERSED AND RENDERED.

      . The remainder of the $50,000 policy was allocated between the other four occupants of the Impala, including Charles Cleveland.

      . This is incorrect; to be precise, Walker obtained full payment from Cleveland’s UM carrier and only a partial payment from the tortfeasor’s liability carrier.


author: DREW, J.

text:
    Katie P. WALDRIP and James Waldrip, Plaintiffs-Appellants v. L.Y., P.Y., Kimberly Buchberger and Kevin Buchberger, Defendants-Appellees.
    No. 42,066-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.
    Rehearing Denied May 3, 2007.
    Joel Lea Pearce, Shreveport, for Appellants, Katie P. Waldrip and James Wal-drip.
    Lemle & Kelleher, L.L.P. by Dale G. Cox, Shreveport, Counsel for Appellee Allstate Insurance Company.
    Zelda Wynee Tucker, Shreveport, for Appellees L.Y. and P.Y.
    Charles Joseph Neupert, Jr., for Appel-lees Kimberly Buchberger and Kevin Buchberger.
    Before WILLIAMS, DREW and MOORE, JJ.
   DREW, J.

|! Seeking damages for injuries inflicted on his day care teacher by a disturbed student, plaintiffs, Katie Waldrip and her husband, James Waldrip, appealed a summary judgment in favor of the defendant, Allstate Insurance Company. The Allstate homeowners’ policy excluded coverage for intentional acts. The trial court’s grant of summary judgment is affirmed.

FACTS

Defendants, L.Y. and P.Y., are the parents of B.Y., who was an eight-year-old student at a day care center run by defendants, Kimberly and Kevin Buchberger. B.Y. suffered from emotional problems, including “rage attacks.” He had stomped on several children at the day care center prior to the incident in question herein.

B.Y. attacked his teacher, Katie Wal-drip, twice. First, B.Y. pushed a chair into Ms. Waldrip’s leg, causing her to fall over a desk. On the second occasion, B.Y. hid behind two swinging doors and struck Ms. Waldrip in the back with a metal rod as she passed through the doors. Allegedly as a result of her injuries, Ms. Waldrip had to have surgery.

In April 2004, Ms. Waldrip and her husband sued L.Y. and P.Y., as well as Kimberly and Kevin Buchberger. In September 2004, the Waldrips added as a defendant Allstate Insurance Company, which provided homeowners’ coverage for Mr. and Mrs. Y. Allstate then filed a motion for summary judgment in January 2006 on the grounds that its insurance policy excluded liability coverage for the intentional acts of B.Y., the vicarious | pliability of his parents, or their independent acts of negligence. The trial court subsequently granted summary judgment, indicating that the depositions showed that B.Y.’s actions were intentional. Thus, coverage was excluded pursuant to the intentional act exclusion in Allstate’s policy. This appeal followed.

DISCUSSION

The exclusionary provision of Allstate’s policy states:

We do not cover any bodily injury or property damage intended by or which may reasonably be expected to result from the intentional or criminal acts or omissions of an insured person. This exclusion applies even if:
a. Such insured person lacks the mental capacity to' govern his or her conduct;
b. Such bodily injury or property damage is of a different kind or degree than intended or reasonably expected;
c. Such bodily injury or property damage is sustained by a different person than intended or reasonably expected.

Without question, B.Y. and his parents were “insured persons” under the policy.

An essentially identical exclusion for intentional acts was at issue in Bridgefield Cas. Ins. Co. v. Tripp, 41,483 (La.App. 2d Cir.11/9/06), 943 So.2d 632. Citing Hill v. Shelter Mut. Ins. Co., 2005-1783 (La.7/10/06), 935 So.2d 691, this court stated that insurance policies are contracts between the parties and are to be interpreted using the general rules of interpretation of contracts found in the Civil Code. When words in the policy are clear and explicit and lead to no absurd outcome, the policy is to | sbe enforced as written. Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is resolved in favor of the insured. However, this strict exclusionary language makes subjective intent irrelevant if injury results from an intentional act. Bridgefield, supra.

Under the language of the policy exclusion, losses due to Ms. Waldrip’s injuries would be excluded from coverage if those injuries either were intended by B.Y., or were injuries that may reasonably be expected to result from B.Y.’s intentional acts. Furthermore, the exclusion would apply even if B.Y. lacked the mental capacity to govern his conduct, and would apply even if Ms. Waldrip’s injuries were of a different kind or degree than intended or reasonably expected.

In her deposition, Ms. Waldrip unequivocally testified that B.Y. intended to ram her with the chair and intended to hit her with the metal rod. Furthermore, in his deposition, B.Y. simply denied remembering ever striking anyone at the day care. On the other hand, although he denied ever intending to injure anyone, he admitted that on occasions when he did hit or strike someone, he did not do it by accident, but intended to do it.

On appeal, the Waldrips point out that in their amending petition adding Allstate as a defendant, they had alleged that liability was predicated on the “independent acts of negligence and for the negligent acts and other acts of the minor child.” They further argue that B.Y. repeatedly denied intentionally hitting, striking, or injuring Ms. Waldrip, and they assert that the question of whether B.Y. intentionally, hit, struck, or injured Ms. Waldrip is a genuine issue of material fact that precluded the granting of | ¿Allstate’s motion for summary judgment. In this regard, the Waldrips asserted that summary judgment “simply cannot be granted in tort matters involving questions of intent or the credibility of witnesses.” They cite the Louisiana Supreme Court’s opinion in Penalber v. Blount, 550 So.2d 577 (La.1989), for the proposition that summary judgment is rarely appropriate for determinations based on subjective facts. While it is true that subjective matters such as intent ordinarily are not matters ripe for summary judgment, there are exceptions, and this case is such an exception.

Summary judgment shall be rendered forthwith when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof with respect to summary judgment remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more of the elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Penalber, supra.

15In the instant case, Allstate bore the burden of proof for summary judgment. However, once Allstate showed that its policy excluded coverage for intentional acts of an insured, and also placed on file the deposition testimony of Ms. Waldrip, who unequivocally stated that B.Y.’s acts were intentional, the burden of going forward shifted to the plaintiffs to rebut this evidence sufficiently to show the existence of a genuine issue of material fact. Review of the record shows that the plaintiffs were unsuccessful in this regard.

Although it is true that B.Y. stated in his deposition that he never intended to hurt Ms. Waldrip, the previously quoted language of Allstate’s exclusion applies not only to bodily injury intended by an insured, but also to bodily injury that may reasonably be expected to result from an intentional act. Thus, if the evidence shows that B.Y. intended to ram the chair into Ms. Waldrip and to strike her with the metal rod, and if resulting injuries are of the type that may reasonably be expected tó result from such intentional acts, the exclusion applies. Furthermore, the exclusionary language goes even further to specifically state that the exclusion applies even if the bodily injury is of a different kind or degree than intended or reasonably expected. Under this objective standard, the evidence of B.Y.’s actions placed the alleged injuries squarely within the exclusionary language, B.Y.’s denial of any intent to hurt Ms. Waldrip notwithstanding. The acts of ramming a chair into someone and striking her with a metal rod are not acts that ordinarily would occur by accident, and Ms. Waldrip testified the acts were not accidental, but intentional. Furthermore, as noted | ¿previously, B.Y. testified in his deposition that he remembered nothing about the incidents; thus, he did not deny that the incidents occurred and, indeed, no one is questioning that B.Y. committed the acts that allegedly injured Ms. Waldrip.

DECREE

The judgment of the trial court is hereby affirmed at plaintiffs’ costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

GASKINS and LOLLEY, JJ., would grant a rehearing.

      . Initials are used throughout, in lieu of using ' the name of the child and his parents.