author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Kevin LEE.
    No. 2011-KA-0398.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| [After his conviction for possession of cocaine and his sentencing to thirty months, Kevin Lee, the defendant, appealed. On appeal he argues that the trial judge’s decisions in connection with the hearing on his motion to suppress the evidence prevented him from presenting a defense to what he characterizes “an unlawful seizure.”

At the hearing on his motion to suppress the evidence, Mr. Lee objected to the trial judge’s curtailing his cross-examination of the testifying police officers, and he requested that the trial judge recess the hearing or hold it open in order that he could subpoena a non-police witness on his behalf. The trial judge denied his request. Later, right before the commencement of trial, he requested that the trial lajudge reopen the suppression hearing for additional testimony. The trial judge also denied that request.

We have reviewed Mr. Lee’s arguments under an abuse-of-discretion standard. Because we find that the trial judge did not abuse her discretion in the rulings of which Mr. Lee complains, and that the resulting ruling which admitted the seized cocaine at Mr. Lee’s trial was correct, we affirm his conviction and sentence.

We briefly explain our decision below.

I

In this Part we describe the suppression hearing.

A

The only witness to testify at the suppression hearing was police officer Robert Ponson. On direct examination, Officer Ponson explained that on April 24, 2009, he and his partner, Officer Sherman Skipper, responded to a domestic-disturbance dispatch in which they were informed that an ex-boyfriend was refusing to leave a residence and that he was possibly armed with a knife. Upon the officers’ arrival on the scene, Mr. Lee was standing on the sidewalk right next to the steps of Wanda Washington’s house. Ms. Washington, the victim, was standing at the top of her steps in the doorway of her home. Ms. Washington’s daughter, Alexis, was standing in the house near her mother. Ms. Washington and Mr. Lee appeared to be arguing.

The officers learned from Ms. Washington that she had been dating Mr. Lee but had demanded on the day before that he leave her home. On this particular |sday, she had allowed Mr. Lee to return in order to retrieve his belongings. When Mr. Lee refused to leave, Ms. Washington’s daughter telephoned the 9-1-1 operator. She told the operator that she believed Mr. Lee had armed himself with a knife from the kitchen.

Although Alexis heard the discussion between her mother and Officer Ponson, he never spoke directly with her. According to the officer, Ms. Washington herself told Officer Ponson that Mr. Lee was armed with a knife that he had taken form the kitchen and was holding in his waistband. After talking to Ms. Washington, the officers advised Mr. Lee of his Miranda rights and arrested him for disturbing the peace and trespass. Officer Ponson smelled alcohol on Mr. Lee’s breath. Officer Ponson explained that they arrested Mr. Lee under the state statutes and not under the similar municipal ordinances. Officer Pon-son did not believe that Mr. Lee would comply with a directive to leave and not return. Thus, he used his discretion to arrest Mr. Lee rather than issue him a court-appearance summons.

During the cross-examination of Officer Ponson, the prosecution made nine objections, four of which were sustained.

The first sustained objection was to a question seeking whether Officer Ponson’s unit was the first to respond to the scene. The prosecution argued that it had been covered in the preliminary hearing. The trial judge found that it was not relevant to the issue triable at a suppression hearing.

The second sustained objection was to the question, “And you said on direct that you spoke with Miss Washington — the mother and the daughter?” The prosecution asserted that the question had been asked and answered and the trial judge apparently agreed.

UThe third sustained objection was to the question, after it was answered, “Is it true to say that you would not have arrested Mr. Lee had he not raised his voice and got into an argument with you?” Nevertheless the trial judge advised the officer that he did not have to answer the question.

The fourth and final sustained objection was in response to the question whether the officer thought that the crack cocaine felt through a pat-down of Mr. Lee’s front pocket was a weapon. After confirming with the witness that Mr. Lee was under arrest at the time he discovered the crack cocaine in Mr. Lee’s pants’ pockets, the trial judge sustained the objection.

No knife was found on Mr. Lee’s person during the ensuing search of him by Officer Ponson. Four pieces of crack cocaine, however, were retrieved from Mr. Lee’s pockets.

B

At the conclusion of Officer Ponson’s ■testimony, Mr. Lee moved to hold the hearing open. Notably, Mr. Lee did not elect to avail himself of the provision of La.C.Cr.P. art. 70S E(l) to testify at the suppression hearing and contradict Officer Ponson’s version of events. Instead, he argued to the trial judge about the absence of a possible witness, who is not identified on the record. Mr. Lee referenced an off-the-record discussion which had preceded the commencement of the hearing. He admitted that he had not sought to compel the attendance of the witness through the court’s subpoena power but argued that the witness had previously appeared at court and could be expected to appear in response to a subpoena. Mr. Lee offered no explanation for the failure to issue a subpoena. Mr. Lee’s appellate counsel reasonably infers that the unidentified absent person is Ms. Washington.

|fiMr. Lee argued to the trial court that this missing witness, whom we too assume to be Ms. Washington, would contradict Officer Ponson with regard to the facts underlying his decision to arrest rather than issue a summons to Mr. Lee. Mr. Lee further argued that Ms. Washington’s testimony was important as it would cast light on Officer Ponson’s credibility and also because her testimony would produce evidence to the effect that Officer Ponson lacked a sufficient basis to stop the defendant. Mr. Lee contends that Officer Pon-son testified at the hearing that the absent witness had told him something that she did not in fact tell him.

The trial judge denied defendant’s request on the basis that defendant failed to subpoena the witness for the hearing. The trial judge found that there was sufficient evidence to rule on the constitutionality of the search and seizure and denied the motion.

II

In this Part we address the standard by which we review the complaints which are raised by Mr. Lee’s assignment of error. We review the complaints under an abuse-of-discretion standard.

A trial judge’s decision on rulings excluding evidence, even when relevant but outweighed by considerations of waste of time, are entitled to considerable deference and cannot be reversed unless a substantial right of a party has been affected. See La. C.Evid. arts. 103 A(2) and 403. With respect to affecting a substantial right of a party, at the outset of our analysis we emphasize that the evidentiary rulings were made during or in connection with a pretrial hearing. Generally, an accused’s Sixth Amendment rights respecting confrontation, cross-examination,6 compulsion of attendance of witnesses, and presentation of a defense are only implicated in the context of a trial. See Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Similarly, there is a relaxation in suppression hearings of the evidentiary rules which ordinarily govern the conduct of a trial. See State v. Shirley, 08-2106, p. 4 (La.5/5/09), 10 So.3d 224, 227 (“hearsay testimony is admissible in a suppression hearing”).

A trial judge’s decision on a motion for recess, as on a motion for continuance, is also reviewed under an abuse-of-discretion standard. See La.C.Cr.P. art. 712; State v. Warren, 437 So.2d 836, 839 (La.1983). Thus, the decision to grant or deny a recess is within the sound discretion of the trial judge and will not be disturbed absent an abuse of discretion. Id. We also will review Mr. Lee’s motion to reopen the suppression hearing under an abuse-of-discretion standard. See State v. Cole, 434 So.2d 1103 (La.1983).

Because an abuse-of-discretion standard almost always requires an appellate court to defer to the trial court’s admittedly discretionary ruling, in order to obtain a reversal of such a discretionary ruling, a complaining party is usually required to show that the trial judge’s ruling was based upon a mistaken application of law. See Koon v. U.S., 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). When a trial judge’s ruling is based upon a legal mistake, the ruling is no longer entitled to deference by the reviewing court. Id. (“A district court by definition abuses its discretion when it makes an error of law.”).

We turn now to the specifics of this case.

Ill

We consider first the relevancy of the evidence which Mr. Lee seems to be seeking both in his restricted cross-examination and in the prospective testimony of |7Ms. Washington. Because the cocaine was seized without a search warrant, the prosecution bore the burden of proving its admissibility. See La. C. Evid. art. 703 D. The prosecution relied upon the well-delineated exception to the warrant requirement when the seizure results from a search incident to a lawful arrest. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Parker, 06-0053, p. 3 (La.6/16/06), 931 So.2d 353, 355, and State v. Williams, 10-1023, p. 5 (La.App. 4 Cir. 3/16/11), 62 So.3d 244, 246.

Mr. Lee argues that the arrest was not lawful because Officer Ponson should have issued a summons to Mr. Lee for the misdemeanor offenses of disturbing the peace and criminal trespass. See La. C.Cr.P. arts. 211 and 211.1. If Officer Ponson had actually issued a summons to rather than effect an arrest of Mr. Lee, the Chimel exception would not apply. See Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998).

Article 211, which is applicable to the disturbing the peace charge, permits a peace officer to issue a summons under certain conditions. Article 211.1, which governs the criminal trespass charge, mandates the issuance of a summons instead of making an arrest if the officer (1) has reasonable grounds to believe that the person will appear upon summons and (2) has no reasonable grounds to believe that the person will cause personal injury or property damage. But even when an arrest for trespassing is prohibited by state law, an officer does not violate a person’s Fourth Amendment protections by making an arrest based on probable cause. See Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). “A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.” Id. at 174, 128 S.Ct. 1598. Thus, even if Mr. Lee could establish that Officer Ponson violated the mandate of Article 211.1, it would | «only be a violation of state law, and “it is not the province of the Fourth Amendment to enforce state law.” Id. at 178, 128 S.Ct. 1598.

The relevant and dispositive issue at the suppression hearing in this case, then, is whether the police officers had probable cause to arrest Mr. Lee for criminal trespass. If the officers had probable cause for the arrest, “the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.” Id. (emphasis supplied).

IV

With the dispositive issue before us, we consider the merits of each trial court ruling about which Mr. Lee complains.

A

The first is the trial judge’s refusal to recess the suppression hearing (or to reopen it on the morning of trial) in order to obtain the presence of the unidentified witness whom we assume to be Ms. Washington, the girlfriend of Mr. Lee. At the outset we note that Mr. Lee made no offer of proof concerning the facts about which he expected Ms. Washington to testify. See La.C.Cr.P. art. 709 A(l). And he surely failed to provide any “[fjacts showing due diligence used in an effort to procure attendance of the witness.” See La. C.Cr.P. art. 709 A(3). Thus, there is no question that the trial judge did not abuse her discretion under La.C.Cr.P. art. 712 to deny either the recess of the suppression hearing or the re-opening of the hearing.

Nonetheless, in this case we are able to consider the testimony of Ms. Washington and others. A review on appeal of a trial court’s ruling on a motion to suppress is not limited to evidence adduced at the hearing on the motion to suppress; we also may consider any pertinent evidence introduced at trial. State v. Craft, 03-1852 (La.App. 4 Cir. 3/10/04), 870 So.2d 359; State v. Nogess, 98-0670 (La.App. 4 Cir. 3/3/99), 729 So.2d 132.

Ms. Washington testified at trial that she had known Mr. Lee since the two were children. She stated that prior to the day the police were called, Mr. Lee had been her boyfriend for eight or nine months and had been living at her house. On the day in question she asked Mr. Lee to leave her house, but he refused. He had been drinking. She did not see him with a knife. She stated that she was not really arguing with him; she just wanted him to leave, which is what she told the police when they arrived.

The criminal trespass statute provides inter alia that “[n]o person shall remain in or upon property, movable or immovable, owned by another without express, legal, or implied authorization.” La. R.S. 14:63 C.

Thus, on the dispositive issue, Ms. Washington’s trial testimony supported Officer Ponson’s hearing testimony that he had probable cause to arrest Mr. Lee for trespassing on Ms. Washington’s property. Also, Officer Skipper testified that when he and Officer Ponson arrived on the scene they spoke with Ms. Washington. She was standing in the doorway arguing with Mr. Lee. They separated the two to find out what was going on. According to Officer Skipper, Mr. Lee was irate, and while using profane language he stated that he just wanted to talk to Ms. Washington and that he was not leaving until she talked to him. The officers detected the strong odor of alcohol emanating from the defendant’s breath, pores, and clothing.

Ms. Washington’s daughter, Alexis, also testified at trial that Mr. Lee and her mother had been together for many years. She telephoned 9-1-1 because her | ^mother kept asking Mr. Lee to leave and he would not. She believed that he had taken a knife from the kitchen.

In light of all of the trial testimony along with the hearing testimony and of the controlling law, Mr. Lee simply is unable to demonstrate to us that the trial court’s refusal to either recess or re-open the suppression hearing would have resulted in the suppression of the cocaine seized from him incidental to his arrest for disturbing the peace or criminal trespass.

B

We now consider the trial court’s rulings on the four sustained objections which we particularly described in Part I-A, ante.

The first question sought information from Officer Ponson whether his police unit was the first to arrive at Ms. Washington’s home. The trial judge ruled that the question sought irrelevant information. See La. C. Evid. art. 401 (“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”) The relevant issue at this suppression hearing was whether Mr. Lee was lawfully arrested. The trial judge did not abuse her discretion in sustaining this objection.

The second sought information confirming whether Officer Ponson testified on direct that he spoke with Ms. Washington and her daughter. The trial judge does not abuse her discretion by sustaining the objection based on considerations of wasting time. See La. C. Evid. art. 403.

The third sought to inquire into Officer Ponson’s subjective motive for arresting Mr. Lee. Probable cause for arrest is determined from objective facts. U.S. v. Ross, 456 U.S. 798, 808, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). An arresting officer’s subjective motive for making the arrest is not relevant. Whren v. U.S., 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “Evidence which is not relevant is not admissible.” La. C. Evid. art. 402. The trial judge did not abuse her discretion by excluding irrelevant evidence.

The fourth sought to learn whether the officer thought the cocaine in Mr. Lee’s pocket was a weapon. The prosecution was not relying upon the warrant exception which allows for a limited weapons search in connection with a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Francis, 10-1149, pp. 7-8 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 710 (“Importantly, we do not confuse the automatic search authorized incident to a lawful arrest as an analogue for the frisk that accompanies a Terry stop.”) The question did not seek relevant evidence and there was no abuse of discretion in excluding such irrelevant evidence.

On each objection we conclude that the trial judge did not abuse her discretion in excluding the evidence.

CONCLUSION

We conclude that the trial judge did not abuse her discretion in denying Mr. Lee a recess of the suppression hearing or in refusing to re-open the hearing on the morning of the trial. We further conclude that the trial judge did not abuse her discretion in sustaining the prosecution’s objections. Thus, we conclude that the trial judge’s rulings did not prevent Mr. Lee from presenting a defense to the officer’s seizure of the cocaine from his person. Moreover, we conclude that the cocaine, contrary to Mr. Lee’s contention, was constitutionally seized incidental to a lawful arrest and was properly admitted in his trial on charges of possession of cocaine. Mr. Lee does not contest that he was unlawfully in possession of the cocaine and he does not contest the sentence imposed.

| ^DECREE

We affirm the conviction of Kevin Lee for unlawful possession of cocaine and affirm his sentence of imprisonment in the custody of the corrections department for thirty months, credit for time served.

AFFIRMED

      . See La. R.S. 40:967 C(2) and La. R.S. 40:964 Schedule II A(4).

      . Mr. Lee admitted to being an habitual offender and his sentence under La. R.S. 15:529.1 A(l).

      . The defendant’s single assignment of error is that ”[t]he trial judge erred in limiting cross examination at the suppression hearing, declining to hold the motion open for additional testimony and in denying defense counsel’s request to reopen the hearing because of the erroneous rulings. The rulings precluded Kevin's Lee's right to present a defense to an unlawful seizure.”

      . Mr. Lee stipulated that the seized substance tested positive for cocaine, as reported by the state’s chemist.

      . We have, as we always do, inspected the record for errors patent and have detected none. See La.C.Cr.P. art. 920(2).

      . Just before the commencement of trial, Mr. Lee re-urged his request to re-open the suppression hearing. The trial judge again denied his motion.


source: Caselaw Access Project

license: Public Domain

text:
    PROCTOR’S LANDING PROPERTY OWNERS ASSOCIATION, INC. v. Ryan A. LEOPOLD.
    No. 2011-CA-0668.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2012.

      G. Frederick Seemann, Law Office of G. Frederick Seemann, Attorney at Law, LLC, Lafayette, LA, Paul A. Tabary, III, Tabary and Borne, LLC, Chalmette, LA, for Plaintiff/Appellant.
    Gilbert V. Andry, IV, The Andry Law Firm, L.L.C., New Orleans, LA, for Defendant/Appeüant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

hThe Proctor’s Landing Property Owners’ Association sought injunctive relief against Leopold Holdings, LLC, the owner of a lot in the Proctor’s Landing subdivision in St. Bernard Parish. The Association contended that the Company was violating two of the subdivision’s building restrictions. The first violation involved the placing, maintaining, and improving of a small storage shed on the Company’s lot; the Association demanded its demolition or removal. The second violation involved the conducting and operating of a business on the Company’s property; the Association demanded that the business be discontinued and prohibited.

The Company argues that a storage shed is not covered by the building restrictions, yet agrees that if it is covered its storage shed constitutes a violation of the building standards and improvements restrictions. But, the Company then contends that because the storage shed was visible and obvious for more than two years before the Association filed its suit, the Association’s suit is prescribed. Its exception of prescription, however, was overruled by the trial court. One basis for the trial court’s decision was that the Company had acknowledged within two years of the first placement of the storage shed the Association’s right to enforce the building restriction and thereby interrupted the applicable two-year prescriptive | ¿period. After a trial on the merits, the trial court incorporated its findings on the prescriptive exception, granted injunctive relief on the shed claim, and ordered that the shed be removed or demolished within sixty days. The Company suspensively appealed from the part of the judgment ordering the shed’s removal. See La. C.C.P. ART. 3601 B.

The Company also contends that the activities it was conducting on or from its exclusively residential-use lot, primarily the leasing of four boat slips and the use of the storage shed’s facilities, did not constitute the carrying-on of a business, which is prohibited by the specified uses allowed for the lot. Finding that the Association did not carry its burden of proof that a business was being conducted on the Company’s lot, the trial court denied injunctive relief. The Association devolutively appealed from that part of the judgment. See First Bank and Trust v. Duwell, 11-0104, p. 3 (La.App. 4 Cir. 5/18/11), 70 So.3d 15, 18.

We agree with the trial court that the Association’s cause of action is not prescribed and affirm the mandatory injunction decreeing the demolition or removal of the storage shed within sixty days of the finality of this judgment. The trial court’s finding that the Company acknowledged the right of the Association to enforce the building restriction within two years of the construction of the storage shed is neither clearly -wrong nor unreasonable.

The trial court was clearly wrong, however, when it found that the Association did not satisfy its burden to establish that the Company was conducting a business in violation of the subdivision’s use restrictions. Accordingly, we reverse that part of the judgment and remand to the trial court for it to issue an injunction discontinuing the Company’s current use of the lot for business purposes and prohibiting its future use for the carrying-on of a business.

|sWe explain our decision in greater detail below.

I

We begin our discussion with a consideration of the controlling legal principles applicable to building restrictions.

“Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements.” La. Civil Code ART. 775. “Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovable.” La. Civil Code Art. 776. Here, the Proctor’s Landing subdivision, which was established by juridical act, is located in the Shell Beach community in St. Bernard Parish and consists of twenty-six condominium units as well as eighty-two lots on which residential dwellings may be constructed. The Association declared its covenants, restrictions and servitudes and recorded them on August 2, 1995, and amended them thereafter. There is also no dispute that the general plan satisfies the legal requirement that it “must be feasible and capable of being preserved.” La. Civil Code Art. 775.

“Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable.” La. Civil Code Art. 783. “Apart from the rule of strict interpretation, documents establishing building restrictions are subject to the general rules of the Louisiana Civil Code of 1870 governing the interpretation of juridical acts.” La. Civil Code Art. 783 cmt. (c). (See also, generally, La. Civil Code Arts. 2045-2057.) “Words used are to be understood in the common and usual signification.” Id.

14As the general plan is the private law of the parties, when the words of the general plan “are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” See La. Civil Code Art. 2046. If the questioned provision regarding termination of the building restriction is unambiguous, then its interpretation is a question of law and not of fact. See New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 09-1433, p. 9 (La.App. 4 Cir. 5/26/10), 40 So.3d 394, 401.

Building restrictions, once established, are terminated as provided by Title V of Book II of the Civil Code. See La. Civil Code Art. 776. Title V provides inter alia that building restrictions “may terminate or be terminated, as provided in the act that establishes them.” La. Civil Code Art. 780.

More importantly for the purposes of this dispute, a building restriction may be terminated by the effects of liberative prescription. “No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation.” La. Civil Code ÁRT. 781. “After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.” Id.

Thus, unless a building restriction has terminated, it “may be enforced by mandatory and prohibitory injunctions without regard to the limitations of Article 3601 of the Code of Civil Procedure.” La. Civil Code Art. 779. That is, the plaintiff need not show that “irreparable injury, loss, or damage may otherwise | ¡¡result” in the absence of the injunctive relief. La. C.C.P. Art. 3601. Moreover, “[bjuilding restrictions may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan.” La. Civil Code Art. 778. Under this general plan, a lot owner may be required to remove or correct work which does not comply with approved plans and specifications.

The trial court also based its prescription ruling on the observation that the Leopold brothers informed the Association that they had every intention of building a camp on the property, and that these communications served to interrupt the running of prescription under La. Civil Code art. 781. Specifically, La. Civil Code art. 3464 sets out the applicable rule on interruption, and states: “Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.” See also Diefenthal v. Longue Vue Management Corp., 561 So.2d 44, 55 (La.1990); Walters v. Besse, 94-67, p. 3 (La.App. 3 Cir. 10/5/94), 643 So.2d 398, 400.

With these general legal precepts before us, we turn in the following Parts to a consideration of the two specific building restrictions in question and their enforceability by the Association.

II

In this Part, we explain why the Association’s action for a mandatory injunction requiring the demolition of the shed is not prescribed.

As stated earlier, the Company argued that the building restrictions do not control an accessory building, such as the storage shed in this matter. We would agree if the shed in this case were an accessory building. But it is not. It is the sole, principal building on the site, and, by the time of trial, it was obvious that the | (¡Company had no realizable plan for the construction of a required residence to which its shed would be accessory. Thus, at the outset, we conclude that the trial judge was not clearly wrong after conducting a trial on the merits when it concluded that this storage shed was governed by the building restrictions. And the Company agrees that, if the building restrictions apply to and govern the storage shed on its lot, the shed violates the specific building standard required by the general plan. But the Company argues that the restriction is no longer enforceable because it has been terminated by the two-year liberative prescriptive period.

In order to fully consider the Company’s argument on prescription, we first describe the placement and subsequent improvements to the shed and then describe the interactions and exchanges between the Company and the Association. We finally conclude that the trial judge’s finding that the restriction has not terminated by prescription is not clearly wrong and is reasonable. Therefore, the restriction is properly enforced by a mandatory injunction requiring demolition of the shed.

A

Proctor’s Landing Subdivision is designed as a restricted residential neighborhood in the Shell Beach community. Except for a very few, the lots are available only for single-family houses or camps. The Company acquired Lot 16A in the subdivision subject, of course, to the existing building restrictions. Lot 16A is a waterfront lot and is suitable for boat storage and launching for sport fishing.

In April 2007, the Company purchased a pre-fabrieated storage shed from Home Depot and had it delivered to its lot. The shed is less than 1,000 square feet and cost about $3,400. Initially, the shed was placed on a twenty-four inch high cinder-block foundation with three steps and with no handrails. Attached to the top |7of the shed were 2x4 strips of lumber from which wire cables anchored the shed to the ground. Inside the shed was an ice machine. A permanent pole provided electricity to the property. The Company never applied for a building permit from the parish for the initial installation.

In 2008, Hurricane Gustav damaged the shed by flooding it with five feet of water and shifting it off its foundation. Subsequently, the Company hired a contractor to replace the cinder blocks with sunken pilings, raise the structure forty-eight inches off the ground, reset the shed on the pilings, and install heavier cables and metal banding. The construction company built two new set of stairs with railings and landings, one on each end of the shed. The shed’s electrical system was rewired. The post-hurricane repairs cost more than the initial cost of the building and were completed by the end of 2008.

The Association did not file its suit until July 15, 2009.

One building restriction was that no new construction or improvements could be undertaken on the lot unless reviewed and improved by the Association before obtaining a parish building permit. Another restriction was that the minimum area requirements for residential structures shall be one thousand (1000) square feet of living area, including screened porches. Even though the shed was never intended to be a dwelling, there is no doubt that the Company failed to obtain authorization for its placement on the property or for the post-Gustav improvements.

B

The Association requested the Company and its members, who are the brothers Ryan and Regan Leopold, as well as several other property owners in the subdivision, to move small sheds off otherwise vacant lots. In 2009, former Board | ^President Pat Pescay asked the Company both verbally and in writing to move the shed by January 2009. At trial, Mr. Pes-cay explained that the Association had circulated a letter among the property owners informing them that post-Katrina sheds had to be removed from Proctor’s Landing property by January of 2009.

Additionally, board member Ted Kam-pen, who is a property owner in the subdivision, asked the Company to move the shed in the wake of Hurricane Gustav. Kampen further noted that the present lawsuit was filed within two years of the letters referred to by Mr. Pescay.

Significantly, the Leopold brothers as the Company’s representatives acknowledged to Association representatives and neighbors that they planned to build a permanent camp when they could afford to do so. For example, Regan Leopold in a March 12, 2009, e-mail to Mr. Pescay discussed plans to develop the lot. He noted that he and his brother had planned to build a “large, beautiful home” on the property, but that their plans were derailed by the 2008 financial crisis. Regan also expressed hope that he and his brother would soon get back on course towards building a camp.

Further, Larry Caldarera, a former Proctor’s Landing property owner and Treasurer for the Association, testified on cross-examination about the Company’s representations to the Board of Directors. Specifically, Caldarera stated that the Leopold brothers had told him that the shed was temporary. Caldarera also testified that he spoke with the Leopold brothers in the spring of 2009, and that they told him that they did not intend to build a camp on their property because of economic difficulties. The Leopolds further told Calda-rera that they had a camp in nearby Reg-gio, Louisiana, and that they no longer needed to have a camp on their 19Proctor’s Landing lot. Caldarera subsequently concluded that the Company did not intend to move the shed.

The Association also elicited similar testimony from Ted Kampen, who testified that he also recalled hearing the Leopold brothers make similar assertions regarding its intentions. Specifically, Kampen testified that he recalled hearing the Leo-polds state at a meeting that they intended to build on the property, but they were on hard times. Kampen accepted the Leo-polds’ assertions, noting that “the general consensus always was people had these things during construction.” Later, the trial judge asked several follow-up questions of Kampen regarding his recollections of the Leopolds’ intentions. Kampen stated that his recollections were based on his direct observations of the Leopolds at a general membership meeting.

Thus, the evidence in the record indicates that the Association properly protested the presence of the Company’s shed on Lot 16A, that the Leopold brothers’ recurring assurances in response to the Association’s requests constitute acknowledgment sufficient to interrupt prescription, and that the Association filed suit within two years of the Leopold’s assurances. Accordingly, we conclude that it was reasonable, based on the testimony and evidence, for the trial court to find that the Association’s suit was not prescribed. Therefore, we affirm the trial court’s denial of the defendant’s exception of prescription.

C

An exception of prescription is a peremptory exception, which a defendant may raise at any time prior to the matter’s submission after trial. La. C.C.P. ARTS. 927 and 928(B). Evidence may be introduced at the trial of all peremptory exceptions, except the objection of no cause of action. La. C.C.P. ART. 931. The trial |incourt is not bound to accept as true the allegations of plaintiffs petition in its trial of the peremptory exception. Bowers v. Orleans Parish School Bd., 95-2530 (La.App. 4 Cir. 5/29/96), 694 So.2d 967, 972. When evidence is introduced and evaluated at the trial of a peremptory exception, an appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions. Id.; Davis v. Hibernia Nat. Bank, 98-1164 (La.App. 4 Cir. 2/24/99), 732 So.2d 61, 63.

The standard of review of a trial court’s finding of facts supporting prescription is that the appellate court should not disturb the finding of the trial court unless it is clearly wrong. In re Medical Review Proceedings of Ivon, 01-1296 (La.App. 4 Cir. 3/13/02), 813 So.2d 532, 536. In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Board of Com’rs v. Estate of Smith, 03-1949 (La.App. 4 Cir. 9/2/04), 881 So.2d 811, 815. Further, the standard controlling the review of a peremptory exception of prescription requires that this Court strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Id.

Ill

In this Part, we consider whether the specified use restriction in the Act is unambiguous and then describe the activities in which the Company engages. We then explain that we agree with the trial judge that as a matter of law the specified use restriction is unambiguous and enforceable, but find that the trial judge was clearly wrong in finding that those activities did not violate the specific restriction. We conclude this Part with remand instructions to the trial court to issue an appropriate prohibitory injunction.

JllA

The focal provision of the covenant is in Article VII:

7.2: Each lot ... deemed as a residential Lot, shall be used for residential purposes only, and no trade or business of any kind may be carried on therein ... No more than one (1) dwelling shall be located on any herein deemed residential Lot, or combination of Lots. The use of a portion of a dwelling as an office by an owner shall not be considered a violation of this covenant if such use does not create regular customer, client, of [sic] employee traffic. The use of a dwelling or portion thereof for business meetings, entertainment, or the enjoyment or business of the owner’s employees, trustees, agents, clients, or customers shall not be considered a violation of this covenant if such use does not create regular customer, client or employee traffic.

In the trial court, the Company argued that the foregoing language is ambiguous because the covenant does not define “business.” The Company has not pressed this argument in response to the Association’s assignment of error. Nevertheless, an examination of the parties’ arguments to the trial court indicates that the ambiguity of the phrase was less at issue than was the scope of its sweep. The applicable covenant articles indicate that the Company’s lot was intended for residential use only, and that business activity of any kind was prohibited. At issue, then, was whether the Company’s use of its lot could be classified as trade or business of any kind. Accordingly, we must first examine the phrase within the context of the covenant before we can ascertain whether the trial court’s ruling was manifestly erroneous.

Building restrictions are to be strictly construed. Cashio v. Shoriak, 481 So.2d 1013 (La.1986). The intent of building restrictions must be ascertained according to the words therein, their usual meaning and with consideration of the 112context of the words in the document. Payne v. Melancon, 34,667 (La.App. 2 Cir. 9/17/01), 793 So.2d 1286. If the instrument purporting to create a building restriction is susceptible to more than one reasonable interpretation, thereby creating ambiguity and doubt as to the subdivider’s intent, the interpretation that least restricts the property will apply. Head v. Gray, 41,290 (La.App. 2 Cir. 8/23/06), 938 So.2d 1084. Apart from the rule of strict interpretation, documents establishing building restrictions are subject to the general rules of the Louisiana Civil Code governing the interpretation of juridical acts. Cashio, 481 So.2d at 1015.

The Civil Code provides that the “words of a contract must be given their generally prevailing meaning.” La. Civil Code Art. 2047. Further, words of art and technical terms “must be given their technical meaning when the contract involves a technical matter.” Id. Additionally, “words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract.” La. Civil Code Art. 2048. Moreover, “a provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective.” La. Civil Code Art. 2049. Nevertheless, the fact that a term is not defined in a contract itself does not alone make that term ambiguous. Burmaster v. Plaquemines Parish Government, 10-1543, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 312, 317. Further, each provision in a contract must be interpreted in light of the other provisions so that each provision is given the meaning suggested by the contract as a whole. La. Civil Code Art. 2050.

| ^Section 7.2 of the covenant provides, in pertinent part that each “lot ... deemed as a residential Lot, shall be used for residential purposes only, and no trade or business of any kind may be carried on therein.” The phrase “trade or business of any kind” is not defined in the covenant. However, Black’s Law Dictionary (8th Ed.) defines the word “trade” accordingly: 1) the business of buying and selling or bartering goods or services; commerce; 2) a transaction or swap; 3) a business or industry occupation; a craft or profession. Further, Black’s Law Dictionary (8th Ed.) defines “business” variously: 1) a commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain; 2) commercial enterprises; 3) commercial transactions. Further, Black’s Law Dictionary (4th Ed.) defines the phrase “carry on trade or business” accordingly: “To conduct, prosecute or continue a particular avocation or business as a continuous operation or permanent vocation.” Similarly, the American Heritage Dictionary (2nd College Edition), in discussing the various meanings of the word “business,” notes that it “pertains broadly to all gainful activity.”

Although the phrase has a broad scope, it appears to be limited somewhat when read in conjunction with other provisions in the covenants. For example, Section 7.2 allows a lot owner to use a portion of their dwelling as an office, provided that the use does not create “regular customer, client, or employee traffic.” Section 7.2 also permits a lot owner to use a portion of their lot for business meetings, entertainment, or the enjoyment or business of the owner’s employees, trustees, agents, clients, or customers provided the use “does not create regular customer, client or employee traffic.” On the other hand, the covenants prohibit the construction of condominiums on all but Lots 83-A and 83B. | j4Similarly, the covenant prohibits the construction of more than one dwelling per lot on all lots except Lots 82 and 83-C. Lot 9 has been set aside for the construction of a waterway. All other lots are dedicated to single dwelling, residential use. Further, Section 9.3 flatly prohibits commercial farming, fishing, gardening, and animal husbandry. Thus, the Company’s lot is designated solely for single dwelling, residential use. In other words, the covenant permits a lot owner to use its property for limited, sporadic business purposes provided such use does not result in regular traffic to and from the lot. It appears, then, that Section 7.2’s prohibition on trade or business of any kind is meant to protect the residential nature of the Company’s lot by insuring that nonresidential uses do not subvert the residential nature of its designation. Thus, the phrase “trade or business of any kind,” as used in Section 7.2 of the covenant, should be read to prohibit all gainful activity, except for the type of previously described residentially based business activities that do not result in regular traffic.

B

The Company also conducted business activities on its lot. The Company constructed five boat slips, leased out four of the slips, and shared the launch and hoist facilities, ice machine, electricity, and fish-cleaning area with its tenants. The Company’s corporate representatives denied that it was seeking to operate a business on the lot. Rather, the representatives described the lot as a “camp,” a way for them and their friends to enjoy the outdoors, the camaraderie of friends, and water sports in the St. Bernard area. The Company also contends that the club was a private, unadvertised association of old friends and fishing buddies, and annual sums paid to the LLC for the slip rentals and use of the facilities served to defray expenses. The record indicates that the Company listed the sums received hsfrom the tenants as rental income and depreciated the property and equipment on its tax returns. The Company had no employees for whom W-2’s were issued, nor did it issue K-l forms to the slip lessees.

C

In this part, we consider the assignment of error by the Association: whether the trial court correctly found that the Association failed to prove that the Company’s use of Lot 16A as a sports camp was a business violative of the Association’s covenants and restrictions. This Court reviews findings of fact under the manifest error standard of review. Fairway Estates Homeowners Ass’n, Inc. v. Jordan, 08-0949, p. 4 (La.App. 4 Cir. 5/20/09), 15 So.3d 1011, 1014. We may not set aside a district court’s finding of fact unless it is clearly wrong. We must be cautious not to reweigh the evidence or substitute our own findings, and where there are two permissible views of the evidence, the fact finder’s choice cannot be manifestly erroneous or clearly wrong. Bass, Ltd. v. Gerald, 06-1125, p. 3 (La.App. 3 Cir. 3/7/07), 954 So.2d 243, 246.

A review of the trial court’s reasons for judgment reveals that it accepted the testimony of Regan Leopold when he testified that the Company’s lot was for sports and outdoor pleasure, not financial gain. Nevertheless, the record indicates that the Company’s lot was intended by covenant to be used solely for residential purposes. The record also indicates, however, that the Company has used its lot for anything but residential purposes. Indeed, the Company has yet to build any type of residence or camp on the lot. Further, the record establishes that the Company leased out four of its five boat slips. Additionally, the record reveals that the Company listed the sums received from its tenants as rental income on its tax 11 (¡returns. Further, the Association established that the LLC depreciated the cost of the shed, the pier, the boat hoists, the ice machine, and other miscellaneous items.

Moreover, Pat Pescay testified to the association receiving complaints from three neighbors on Blackbeard Key about the Company’s activities on the lot:

... and we had complaints we had from people in the subdivision that they were running a business there, having boats go in and out, and traffic that wasn’t conducive to what we felt the amendments were stated for, for families to enjoy the surroundings and the premises and they had people going in there who we felt or the residents felt were conducting a business.

Thus, it is reasonable to infer that the tenants’ presence on the Company’s lot was sufficiently regular and ubiquitous to garner attention from neighbors. Regardless of Regan Leopold’s testimony, it is clear from the record that the Leopold brothers set up the LLC, configured the property, and leased out boat slips to either subsidize or offset the costs of operating a hunting/fishing camp. Clearly, the Company used its lot in a gainful, commercial manner that was incompatible with its residential designation. Therefore, we conclude that the trial court was clearly wrong in holding as a matter of fact and law that the Association failed to meet its burden of proving by a preponderance of the evidence that the Company was conducting business on Lot 16A.

REMAND INSTRUCTIONS

Within thirty days of the finality of this judgment, the district court, after notice and contradictory hearing, shall issue without bond a permanent injunction ordering that the defendants, their agents, tenants, assigns, and/or successors, cease all business and commercial operations or activities on Lot 16A, including but not limited to the direct or indirect leasing of boat slips, boat hoists, ice machine and |17any other amenities, and further to restrain and prohibit the use of Lot 16A for business or commercial purposes in the future.

DECREE

We affirm that part of the trial court’s judgment issuing the mandatory injunction to Leopold Holdings, LLC, to remove or demolish the shed within sixty days of the date of a final judgment.

We reverse that part of the trial court’s judgment denying an injunction to permanently prohibit and restrain Leopold Holdings, LLC, from operating a business on Lot 16A, including the leasing of boat slips and the compensated use of any facilities, and remand with instructions to the trial court for the issuance of a prohibitory injunction.

All costs assessed to Leopold Holdings, LLC. See La. C.C.P. ART. 2164.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

      . See C.O.B. 588, Folio 554, St. Bernard Parish, State of Louisiana. An Amended and Restated Declaration of Covenants was made and filed on June 7, 2004, and recorded in C.O.B. 758, Folio 584, St. Bernard Parish, State of Louisiana, in order to correct discrepancies in the original documents filed on July 31, 1995.

      . La. Civil Code Arts. 775-783.

      . In general, an injunction will issue only in its prohibitory form, but when a defendant obstructs plaintiff in the enjoyment of a real right, the latter may be entitled to a prohibitory injunction restraining the disturbance and also to a mandatory injunction for the removal of the obstruction or to undo what has been illegally done. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270, pp. 6-7 (La.App. 1 Cir. 3/24/05), 906 So.2d 660, 664.

      . Building restrictions are juridical acts. La. Civil Code Art. 776.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Michael D. PATTERSON.
    No. 11-892.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Michael D. Patterson.
    J. Reed Walters, District Attorney, Twenty-Eighth Judicial District, Jena, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

_JjIn this criminal case, Defendant, Michael D. Patterson, was convicted of five counts of distribution of methamphetamine and sentenced to five years at hard labor on each count to run consecutively to each other. He appeals his convictions and sentences, alleging insufficiency of the evidence, trial court error in denying his motions for new trial, trial court error in allowing evidence of other erimes/bad acts, and excessive sentence. For the following reasons, we affirm Defendant’s convictions, we affirm Defendant’s sentences as amended, and we remand with instructions to amend the minutes.

FACTS AND PROCEDURAL HISTORY

Samantha Jones was married to Defendant’s cousin before she was caught selling methamphetamine to an Alcohol, Tobacco, and Firearms agent and charged with two counts of distribution of methamphetamine. Trooper Charles Turnage of the Louisiana State Police asked Jones “if she would be willing to cooperate with law enforcement and provide to [them] who her source was.” In exchange for her cooperation, Trooper Turnage “would speak to [the district attorney’s office] on her behalf.” As a result of that agreement, Jones served as a confidential informant in Operation Third Option, an undercover operation in LaSalle Parish.

Operation Third Option began in the latter part of 2007 and concluded around July of 2009. On five different occasions as part of that operation, Jones met with authorities before making drug purchases from Defendant. She began with a telephone call to Defendant to arrange for each purchase. Her person and her vehicle were searched to insure she took no illegal substances or weapons into the operation. On the first two occasions, March 10 and March 16, 2009, Jones |2was equipped with an audio device. The police “got good audio” on the first buy, but the equipment failed on the second buy. On the third occasion, March 24, 2009, authorities had video but no audio. On the final two buys, they had both audio and video. Recordings from the buys on March 10, March 24, and July 6, 2009, were introduced into evidence at trial and played to the jury.

Jones testified that the tapes showed accurate representations of what occurred during each buy. During the first four buys, she “would tell [Defendant] what [s]he wanted[,] and he’d go around behind the house and then he’d come back with it.” For the last buy, she went inside his house. Each time, she took her methamphetamine purchase back to Trooper Tur-nage and Robert Terral, the chief narcotics officer of the LaSalle Parish Sheriffs Office. Four of the transactions were for three hundred dollars each, and one transaction was for one hundred dollars. Several defendants were involved in the operation. Each substance Jones purchased from Defendant was subjected to laboratory analysis and identified as methamphetamine as per the testimony at trial of Alex King of the North Louisiana Crime Lab. Jones stated that she worked with Trooper Turnage and Officer Terral “[t]o try to get help with [her] charges.”

Defendant was tried and convicted by a jury of five counts of distribution of methamphetamine on January 26, 2011. He was originally sentenced on March 1, 2011, to five years at hard labor on each count, with the first two years of each sentence to be served without benefit of parole, probation, or suspension of sentence, and with the sentences to run consecutively. However, at the hearing on Defendant’s motion for reconsideration of his sentence on April 13, 2011, the trial court amended his sentences to five years at hard labor on each count, with the | ^sentences to run consecutively. Defendant now appeals his convictions and sentences.

ERRORS PATENT

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

During the sentencing proceeding, the trial court ordered Defendant to participate in and complete a GED program at the institution where he is to be housed. For distribution of methamphetamine, La. R.S. 40:967 carries a sentence of imprisonment at hard labor for not less than two nor more than thirty years and a potential fine of not more than fifty thousand dollars. The statute does not provide for completion of a GED program as part of the penalty. Additionally, we know of no statute or jurisprudence authorizing the imposition of such a condition when the defendant is not placed on probation. However, this court addressed a similar issue in State v. Webre, 09-351, p. 8 (La.App. 3 Cir. 11/4/09), 21 So.3d 1154, 1159:

In State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694, this court vacated, as an error patent, the portion of the defendant’s penalty requiring him to participate in a substance abuse program. Whether this condition was imposed as part of his sentence for negligent homicide or his sentence for driving while intoxicated was not clear. Nevertheless, the court observed that “[n]either statute allows the trial court to require participation in a substance abuse program, absent part of the sentence being subject to probation requirements.” Id. at 696. Because Gregrich was not placed on probation, this court held that the trial court’s order to attend substance abuse evaluations was illegal. Id.
Here, the trial court ordered Defendant to undergo drug treatment if the Department of Corrections could accommodate him. The court did not suspend Defendant’s sentence, nor was he placed on probation. Thus, as in Gregrich, the court’s order to undergo drug treatment without placing Defendant on probation was illegal.
This court also noted in Gregrich that, under La.Code Crim.P. art. 882(A), an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review, |4“when such correction does not involve the exercise of sentencing discretion,” quoting State v. Fraser, 484 So.2d 122 (La.1986). Accordingly, we amend the sentence imposed by the trial court to delete that portion requiring participation in drug treatment.

We find that the portion of the sentence requiring Defendant to participate in and complete a GED program is illegal. Accordingly, we amend the sentence imposed by the trial court to delete the portion requiring participation in and completion of a GED program. Additionally, we instruct the trial court to make an entry in the minutes reflecting this amendment.

ASSIGNMENTS OF ERROR

The Defendant assigns the following five errors:

I.
The evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove beyond a reasonable doubt that Michael Patterson distributed methamphetamine to Samantha Jones on five separate occasions in 2009.
II.
The trial court erred in denying the two requested motions for mistrial. As a result, Appellant was denied a fair trial as guaranteed to him by both the Sixth Amendment to the United States Constitution and [La. Const, art. 1], § 16.
III.
The trial court erred in denying the Motion for New Trial and in assuring that Appellant received a fair trial as guaranteed to him by both the Sixth Amendment of the United States Constitution and [La. Const, art. 1], § 16.
IV.
The trial court erred in permitting the State to question Trooper Turnage and Robert Terral concerning “Operation Third Option” aka “Operation Option Three” as this reference not only permitted evidence of other crimes/bad acts by others, it improperly linked Appellant to the investigation of criminal activity. This testimony deprived Appellant of a fair trial as guaranteed by both the Sixth Amendment of the United States Constitution and [La. Const, art. 1], § 16.
JlV-
The trial court failed to sufficiently consider and weigh the factors set forth in [La.Code Crim.P.] art. 894.1, resulting in the imposition of sentences which violate the Eighth Amendment of the Constitution of the United States and [La. Const, art. 1], § 20, as they are nothing more than cruel and unusual punishment and, thus, excessive.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the evidence was insufficient to convict him of distribution of methamphetamine. The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville, 448 So.2d 676 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. See State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. See State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. -, -, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ] (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378.

It is unlawful to knowingly or intentionally distribute methamphetamine, a Schedule II controlled dangerous substance. See La.R.S. 40:964(C) and La.R.S. 40:967(A). Defendant argues Jones was not a credible witness, and neither Trooper Turnage nor Officer Terral had personal knowledge of a drug deal between Jones and Defendant.

The jury had the opportunity to observe Jones and to evaluate her credibility. Jones testified that she made arranged purchases of methamphetamine from Defendant on five occasions as discussed earlier herein. Trooper Turnage and Officer Terral supported her testimony with details about the monitoring of her purchases from Defendant. This testimony, if true, is sufficient to convict Defendant, and the jury obviously believed that it was. This assignment of error is without merit.

^ASSIGNMENT OF ERROR NUMBER TWO

During the trial, Defendant made two motions for mistrial, and the trial court denied them both. The first motion was based on a comment made by a potential juror who was ultimately placed on the jury.

Defendant claims the issue is not whether this juror was erroneously allowed on the jury, but rather, that his comments during voir dire tainted all the other potential jurors who heard those comments. He argues the trial judge should have granted the motion for mistrial under La. Code Crim.P. art. 771 because an admonition was insufficient.

Louisiana Code of Criminal Procedure Article 771 provides the trial court should issue an admonition “to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant....” The admonition pertains to such a remark made “by a witness or person other than the judge, district attorney, or a court official_” La.Code Crim.P. art. 771(2). However, the article also allows the trial judge to grant a defendant’s motion for mistrial if he “is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

During voir dire, the juror indicated that he knew Defendant, but that he could be fair and impartial. When asked whether there was any “personal, business, family or health reason ... why [the juror could not] serve as an impartial juror,” this juror replied, “[t]he only dealings I had with [Defendant] is just through jail ministries.” Defendant made no objection at that time.

|8When the State asked the juror how long he had been involved in the jail ministry, the juror indicated “[e]ight years.” He then volunteered:

I was, about a year or so I was inactive, but here recently I’ve been back in it. But that was my first acquaintance with him, I believe, back in — I was trying to think I met him back, in, I believe. I’m pretty sure I’ve got the right person. Pretty sure.

At that point, defense counsel asked for a mistrial “because [his] client’s never been in jail. Never been in the prison ministry.” The State’s counsel indicated he “was flabbergasted” at the juror’s remark and feared it had infected the jury.

The trial judge recessed court to research the issue and determined a mistrial was not warranted based on La.Code Crim.P. arts. 770, 771, and 775. He then admonished the twelve people in the jury box being examined at the time the remark was made:

[I]n regards to the comments made by [the juror] in answer to his questions, that, for the record, there’s no conclusive information as to whether or not [Defendant] was ever or not incarcerated, for whatever reason, and the fact that he may or may not have ever been incarcerated for anything, whether it be these charges or otherwise, that has no bearing or impact upon the guilt or innocence of [Defendant] in this regard. Therefore, any comments that were made in regards to the possibility, because I don’t think it was conclusively shown, they said “maybe” that [the juror] was involved with [Defendant] in a ministry, prison ministry or what have you, should be basically ignored as far as any determination as to the guilt or innocence of [Defendant] in these proceedings.

The juror was further questioned about his thoughts that he might know Defendant from his prison ministry:

I’m, [sic] this is where I was at when I made that statement. There was [sic] people sitting here[,] and they was [sic] asking how they knew him[,] and in my mind, I’m sitting here thinking: I’m pretty sure I met [Defendant], It might not have been him, but in my mind, I’m sitting here thinking, that’s the only acquaintance other than, I’ve seen him[.] I’ve seen [Defendant] in Wal-Mart, you know. But my first account [sic] was not at Wal-Mart, I’m — at the end of the day, if the man’s never spent one night in jail, I’m a wrong man.
19 If he’s ever spent one night, I’m pretty sure I met him.
If he’s never been in jail, I didn’t meet him there.

Defense counsel challenged this juror for cause, but the trial judge denied the request. Defendant did not exercise a peremptory challenge on this juror, and he was ultimately placed on the jury. Defendant did not use all of his peremptory challenges.

Admonition is the preferred remedy over mistrial, and the trial court’s decision to deny a motion for mistrial and admonish the jury will not be disturbed absent an abuse of discretion. See State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied, 06-186 (La.6/23/06), 930 So.2d 973, cert. denied, 549 U.S. 1052, 127 S.Ct. 668, 166 L.Ed.2d 514 (2006) (citing State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983) and State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443). Even if the motion for mistrial was erroneously denied, this court should review the matter under a harmless error analysis. See State v. Knight, 45,231 (La.App. 2 Cir. 5/19/10), 36 So.3d 1163, writ denied, 10-1425 (La.1/14/11), 52 So.3d 899 (citing State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94).

We find the evidence was sufficient to convict Defendant of five counts of distribution of methamphetamine without the comments about Defendant’s possible prior incarceration. Thus, we find the denial of the motion for mistrial on the basis of the juror’s comments is, if any error at all, a harmless one that did not affect the outcome of the trial. “Trial error is harmless where the verdict rendered is ‘surely unattributable to the error.’ ” Knight, 36 So.3d at 1172 (quoting Johnson, 644 So.2d at 102).

| t [Defendant's second motion for mistrial was based on defense counsel’s observation of two jurors who appeared to be asleep. Counsel remarked to the trial judge, “[T]he other thing I want to point out to the [c]ourt, I guess I probably should make a mistrial motion on it, though, is the juror in the seat here in this corner ... [t]hen the one over here in the back ... I think [they] were sleeping during the....” The trial judge indicated he had not noticed this, and defense counsel responded, “[b]ut I need to let you know and make a motion anyway.”

The trial judge never ruled on this motion. Defense counsel never asked for a ruling or objected to the lack of a ruling on the motion. However, because the trial progressed, we find that the trial court impliedly denied the motion for mistrial. See State v. Johnson, 05-180 (La.App. 5 Cir. 11/29/05), 917 So.2d 576, writ denied, 06-1254 (La.12/15/06), 944 So.2d 1282.

The fact that a juror may “briefly doze off’ does not necessarily require a mistrial. State v. Cass, 356 So.2d 396, 398 (La.1977). Here, it is impossible to determine whether either of the jurors to whom Defendant referred was impaired, or if either was impaired at all. The record shows simply that defense counsel thought two jurors were asleep. He submitted no evidence beyond his one comment to support his objection, and he never asked for a ruling or for argument on his motion. Consequently, this argument is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends he is entitled to a new trial because the trial judge’s comments on the evidence on two occasions during trial prohibited him from receiving a fair trial. Defense counsel objected during the State’s closing argument, contending the State misstated some of the evidence. The State’s attorney commented, “I don’t recall [witness Samantha Jones] saying she got arrested in Baton Rouge. In fact, I recall her saying, [‘] No, I wasn’t. They talked Into me, but I wasn’t arrested!’]” When defense counsel objected on grounds “that’s in Officer’s [sic] Turnage’s report,” the trial judge commented:

It may be in Officer Turnage’s report, but that’s exactly what Ms. Jones said. But if there’s other, if there’s other evidence to [sic] that type[,] you’ve brought it out, but as far what, the recitation of what Ms. Jones said, that’s what she said because I remember that specifically from my notes.

Defense counsel again noted his objection.

A trial judge “shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.” La. Code Crim.P. art. 772. The purpose of this rule is:

to safeguard the role of the jury as the sole judge of the facts on the issue of guilt or innocence. State v. Hodgeson, 305 So.2d 421 (La.1974). Thus, if the effect of a comment is to permit a reasonable inference that it expresses or implies the judge’s opinion as to the defendant’s innocence or guilt, this constitutes a violation of the defendant’s statutory right to no-comment and thus requires reversal. State v. Green, 231 La. 1058, 93 So.2d 657 (1957). To constitute reversible error, however, the effect of the improper comment must be such as to have influenced the jury and contributed to the verdict. State v. Johnson, 438 So.2d 1091 (La.1983).

State v. Grainer, 02-703, p. 16 (La.App. 4 Cir. 12/4/02), 834 So.2d 555, 565-66, writ denied, 03-152 (La.10/10/03), 855 So.2d 325.

Here, the trial judge’s comments referred to Jones’ testimony about whether she had been arrested in Baton Rouge, an issue not related to Defendant’s guilt or innocence. Defendant argues the trial judge’s comments implied he “had resolved Ms. Jones’ credibility favorably.” While the trial judge may have repeated a portion of Jones’ testimony, he made no comment about whether the testimony he recalled was true, only that this was what he recalled the testimony to be. Thus, we find the trial judge’s comments, while perhaps out of sync with La.Code Crim.P. 112art. 772, were not of a nature that influenced the jury, contributed to the verdict, or had any effect on the ultimate issue of Defendant’s guilt.

In a second instance, the State sought to introduce video evidence of Jones’s April 8, 2009 methamphetamine purchase from Defendant. Defendant objected on grounds the video did not “show his actual image or his voice identification.” The trial judge then commented and instructed the jury:

The only problem I have with [the video] is, is I’m not sure it’s an accurate representation because the stupid video doesn’t look like it was actually running. It was messed up on [sic]. I don’t think that this regards Ms. Jones' testimony previously, however, I don’t think that that video is an accurate representation of what went on because of the way the voice went with the video. I’m going to sustain the objection as to the video only. However, you’re not supposed to disregard any testimony that Ms. Jones has rendered in regards to the—what day was this—the April 8, 2009[] alleged purchase.

Again, defense counsel noted his objection. Defendant argues the instruction to the jury to not disregard Jones’ testimony calls for a new trial.

We find that this instruction was not a “comment upon the facts of the case” as defined by La. Code Crim.P. art. 772. While the trial judge instructed the jury to not disregard Jones’s testimony, he did not instruct the jury to regard her testimony as true. Likewise, his remarks did not concern the guilt, vel non, of Defendant. See State v. Colligan, 95-880 (La.App. 3 Cir. 8/7/96), 679 So.2d 184. Further, the trial judge instructed the jury members immediately prior to deliberation that they were “the judges of the facts on the question of the guilt or innocence of the accused.” We find that the trial judge did not imply or suggest any opinion about Jones’s credibility, but simply instructed the jury to consider her testimony about the April 8, 2009 purchase. This assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends the reference by Trooper Turnage and Officer Terral to Operation Third Option, the undercover drug investigation, improperly allowed 11sevidence of other crimes to be admitted against him. No objection was made during Officer Terral’s testimony about the investigation. Thus, this court may not consider this argument as it pertains to him. See La.Code Crim.P. art. 841.

Trooper Turnage, called as the State’s witness, identified himself as the lead case agent in Operation Third Option and testified about other law enforcement agencies involved. Then he was asked, “[b]riefly tell us what took place in terms of the organizational operation, so to speak, of Operation Third Option.” At that point, defense counsel made his only objection during this line of questioning. Questioning about the operation continued, and Trooper Turnage testified Defendant and Jones were both involved in the operation. Again, no further objection was made. Accordingly, we find this court may only consider whether the single request to tell “what took place in terms of the organizational operation” improperly referenced other crimes. La.Code Crim.P. art. 841.

The fifth circuit addressed a similar issue in State v. Dee, 09-712 (La.App. 5 Cir. 2/23/10), 34 So.3d 892, writ denied, 10-705 (La.10/29/10), 48 So.3d 1097. In Dee, a detective testified he was participating in a narcotics investigation at a motel, and the defendant was a target in the investigation. The detective confirmed his sole purpose in being at the motel was the defendant, who complained on appeal that this testimony improperly referred to other crimes evidence “because it led the jury to believe that he was a career drug dealer.” Id. at 902. The fifth circuit determined the challenged testimony was not evidence of other crimes and did not imply the defendant had committed other crimes in the past. “Rather it simply describe[d] information regarding the matter defendant was currently on trial for.” Id.

Likewise, we find that a description of the “organizational operation” of the investigation here does not constitute evidence of other crimes committed by | uDefendant. The only question to which Defendant objected made reference only to the organization of the operation, not to Defendant. The trial judge overruled Defendant’s objection “because I haven’t heard anything about going into any other crimes evidence or anything else. I think this is more of a structural aspect about how it was determined.” We find the trial judge was correct in his reasoning. Nothing at that point of the questioning referred to other crimes evidence. Objection to any further testimony was not preserved for appellate purposes. See La.Code CrimJP. art. 841. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant argues the trial court inadequately considered the factors of La.Code Crim.P. art. 894.1 and imposed an excessive sentence. This court has set out a standard to be used in reviewing excessive sentence claims:

[Louisiana Constitution Article 1], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

|1B[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Applying the Smith factors, the trial judge reviewed the factors of La.Code Crim.P. art. 894.1 and noted Defendant was “generous with [his] time and generous with [his] money for youth activities in [the] community.” He was “a first time felony offender,” but he was convicted on five counts. Defendant’s pre-sentencing report indicated a prior misdemeanor conviction for carrying a weapon as a student on school property many years prior. He was “with the same woman for over [seventeen] years” and had three children— ages sixteen, thirteen, and four at the time of sentencing. His youngest child has Downs Syndrome. However, the trial judge noted he had no evidence of the extent to which Defendant’s family relied on him for support. And, even though Defendant expressed the desire to “finish raising [his] kids,” he provided a poor role model by distributing drugs.

The trial judge considered Defendant to be “a member of productive society if [he] should so choose,” since he had operated a local car wash for approximately eleven years. However, the trial judge also noted Defendant “did not make one mistake,” he made five mistakes over a four-to-five-month time period. As the crimes were drug crimes, the trial judge did not consider Defendant’s offenses to be “victimless cases.” Rather, the trial judge considered distribution of 11fimethamphetamine to be “one of the most reprehensible crimes in our society.” Even though Defendant sold methamphetamine only to Jones, and only at her instigation, he did so not knowing whether the drugs were only for her personal use or whether she intended to sell them to others. The trial judge found Defendant’s actions to be “a pattern of conduct that must be broken.” He believed “a lesser sentence would deprecate the seriousness of the offense[s] charged.”

Defendant was exposed to a potential sentence of two to thirty years at hard labor and a fifty thousand dollar fine on each of the five counts. See La.R.S. 40:967(B). Thus, his sentence of five years at hard labor on each count falls in the lower range of sentencing. However, the trial judge ordered the sentences to be served consecutively so that Defendant’s sentences total twenty-five years at hard labor. Nevertheless, his sentencing exposure was one hundred and fifty years.

Sentences for multiple offenses “constituting parts of a common scheme or plan ... shall be served concurrently unless the court expressly directs that some or all be served consecutively.” La.Code Crim.P. art. 883. The trial judge determined Defendant’s five offenses constituted a pattern or lifestyle. He expressly directed the five terms to run consecutively, satisfying the exception of La. Code Crim.P. art. 883.

This court has previously held that imposing consecutive sentence[s] for offenses occurring on separate dates and under different circumstances did not constitute an abuse of discretion. State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682. The fifth circuit has held that consecutive sentences are indicated for offenses occurring on different dates and locations. State v. Wilson, 99-105 (La.App. 5 Cir. 7/27/99), 742 So.2d 957, writ denied, 99-2583 (La.2/11/00), 754 So.2d 935. The fifth circuit has applied this holding to distribution of cocaine occurring on different days. State v. Dillon, 01-906 (La.App. 5 Cir. 2/26/02), 812 So.2d 770, writ denied, 02-1189 (La.4/21/03), 841 So.2d 779.

State v. Chaisson, 09-119, p. 28 (La.App. 3 Cir. 10/7/09), 20 So.3d 1166, 1184.

InConsidering the reasons given by the trial judge and the application of the Smith factors, we find Defendant’s sentences are not excessive. This assignment of error also lacks merit.

DISPOSITION

We amend the sentences imposed upon Defendant by the trial court to delete that portion of the sentences requiring participation in and completion of a GED program. Additionally, we instruct the trial court to make an entry in the minutes reflecting this amendment. In all other respects, Defendant’s convictions and sentences are affirmed.

CONVICTIONS AFFIRMED, SENTENCES AFFIRMED AS AMENDED, REMANDED WITH INSTRUCTIONS.

      . The purchases were made from Defendant on March 10, 2009, March 16, 2009, March 24, 2009, April 8, 2009, and July 6, 2009.

      . The trial court ruled that the April 8, 2009 video was not “an accurate representation of what went on because of the way the voice went with the video” and sustained Defendant's objection to its admission into evidence.

      . Defendant's brief erroneously refers to "the admonition article” as La.Code Crim.P. art. 772 instead of La.Code Crim.P. art. 771.


author: PAINTER, Judge.

text:
    Stacey SCHOEFFLER v. ECOLAB, INC.
    No. 11-1131.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Kevin L. Camel, Jason R. Bell, Lake Charles, LA, for Plaintiff/Appellant, Stacey Schoeffler.
    Elizabeth Heinen, Lafayette, LA, for Defendant/Appellee, Ecolab, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

^Claimant, Stacey Schoeffler, appeals the judgment of the Workers’ Compensation judge (WCJ) that he is not entitled to benefits arising out of an alleged accident or accidents which occurred while he was employed by Ecolab, Inc.

FACTS

Claimant was employed by Ecolab from February 1990 through May 2009. He worked first as a service technician doing pest control for commercial establishments. After a time, he was promoted to service supervisor and later to district manager. As such, he supervised about ten technicians and filled vacant routes himself. He alleges that in March 2008, while filling a vacant route, he injured his lower back while doing a pest control treatment at Delta Downs Casino in Vin-ton, Louisiana. He reported the accident to the human resources office at Ecolab and continued to work both as district manager and as a fill-in technician. In November 2008, again at Delta Downs Casino, Claimant again injured his back and again reported the incident to human resources. He never missed any work as a result of either accident but continued to work until he was terminated in May 2009.

At the hearing, Claimant testified that his supervisor told him he was being terminated due to failure to timely file his monthly reports. However, he felt that he was terminated due to his health problems and his refusal to accept a demotion to service technician. After being terminated, he began his own pest control business. He worked many fewer accounts, due, at least partially, to his physical limitations.

In August 2009, Claimant filed a disputed claim for compensation seeking supplemental earnings benefits and medical benefits. A hearing was |2held on February 14, 2011. The WCJ, in oral reasons for judgment, found that Claimant had not proven that either the March or the November 2008 accident caused his current condition, either by medical evidence or by his own uncontradicted testimony. Claimant appeals.

DISCUSSION

The WCJ, in his oral reasons for judgment explained his decision as follows:

Both of these alleged accidents were unwitnessed. And, of course, in such cases, the Court can accept as true the testimony of the claimant, absent any circumstances casting suspicion on the reliability of that testimony.
The scenario Mr. Schoeffler presents to the court does, in and of itself, evoke, if not suspicion, then at least enough skepticism to warrant careful examination of the facts here. To readily accept that one person might have two disabling accidents, both of which were private affairs, requires a challenge to belief, but the situation is not so far-fetched to be dismissed out of hand. But Mr. Schoeffler does seem to add a new depth and dimension to the term “coincidence”.
He asks the Court to believe that an employee working in dozens and dozens of buildings in a territory stretching from New Orleans to the Texas border had two separate accidents affecting the same part of his body and both occurring in the same city and in the same casino just months apart.
Now, it’s fair to say that this sequence of events lies a good ways outside of the accepted boundaries of what is generally considered to be a conventional workers’ compensation scenario. That’s not to say it’s untrue; however, Mr. Schoef-fler’s rather unique story, in order to be accepted as either viable or accurate, needs to be accompanied by some substantial proof, buttressed by compelling medical evidence and discernibly credible testimony.
Now, while the perceived credibility of a claimant at trial is no doubt one of the least reliable evaluators in determining the validity of a workers’ compensation claim, in situations involving unwit-nessed accidents, credibility is simply essential. Now, it’s not at all uncommon for an injured worker to have less than perfect recall as to the exact circumstances surrounding or following an accident. And the jurisprudence makes allowances for that particular human failing. And it’s not |sunheard of for a claimant, under intense, pointed questioning by an experienced defense attorney to give answers that are at some variance with the testimony given later on the stand at trial.
But that having been said, a claimant still must establish more than the mere possibility that a work event produced disability.
The primary question here is, “did either or both of these incidents result from Mr. Schoeffler’s being disabled to the point where he was unable to engage in any employment or self-employment?” The answer, both the live testimony and otherwise, indicates that he never missed work or a paycheck for that matter after either accident. Rather, he was fired, not for flagging physical prowess, but for what he called code of conduct issues.
I gather from his testimony that he did not provide the company’s headquarters with standard reports that were an essential part of his managerial duties. There was no evidence at all to suggest that his employer fired him in order to dodge a workers’ compensation claim. It appears to be a straight out termination for cause.
After he was fired, he started his own company, doing precisely the same type of work that he did for Ecolab. The term “temporary total disability” does not seem to be a particularly apt descriptor for this particular scenario.
I suppose, in an expansive moment, one could consider that his November 17 incident was an exacerbation of his earlier March 10th injury, redefining his cause as a “developing injury”. But that’s a leap even Mr. Schoeffler cannot make. He referred to the November injury as a quote, “one day flare-up” of the earlier accident. The term “flareup” is not a technical medical term; but if it were, I’m pretty sure it would not be used interchangeably with the term “subsequent accident” or even “exacerbation”.
And even if it were, the fact remains he just didn’t miss work.
I listened carefully at length to his testimony and reread the transcript. Try as I might, I cannot meaningfully juxtapose his live testimony with the deposition he gave earlier, even allowing for memory lapses. And the medical records don’t seem to mesh either with the testimony or the transcript.
I just do not see how he could have possibly not remembered, when asked directly, that he had been regularly, | ^faithfully taking painkillers, Hydroco-done to be exact, for many years before the accident.
And, looking at the medical records, it occurs to me that Mr. Schoeffler proba-
bly was not at all times stringently accurate with the information he gave his treating and examining physicians. At one time or the other, he gave more than one version of practically everything he said happened to him.
But on a more fundamental basis, I am hard-pressed to understand his rationale for asking for indemnity payments when he himself testified he didn’t miss any work. And even after he was fired, he kept on working doing the same job that he says he was disabled from.
Putting all this data and documents into some coherent package, it seems that Mr. Schoeffler was injured to some degree or another in March of 2008 and more than likely had a flare-up in November. And if that’s the case, and it certainly looks to be, the petition for medical benefits have simply prescribed.
I am not without sympathy for this man. I do not think he is overtly dishonest. He is not engaged in some nefarious attempt to illegally obtain workers’ compensation benefits.
He sounds more confused than conniving. He has obviously many serious physical problems. But he has not proven that either the March 10, 2008, or the November 17, 2008 incident caused his current condition, either by medical evidence or by his own uncontradicted testimony.
The statutory admonition to liberally construe workers’ compensation law in favor of an injured worker simply cannot be stretched wide enough for the most sympathetic, fair-minded person to find merit in his claim.
Accordingly, the claim is dismissed in its entirety.

As this court stated in Russell v. H & H Metal Contractors, Inc., 11-27, p. 9 (La.App. 3 Cir. 6/1/11) 65 So.3d 806, 814:

[A] workers’ compensation judge’s factual findings, including the credibility of the employee’s testimony and whether the employee met his burden of proof, are not to be disturbed on appeal absent manifest error. Rivers v. Bo Ezernack Hauling Contractor, Inc., 09-991 (La.App. 3 Cir. 3/10/10), 32 So.3d 1091, writ denied, 10-807 (La.6/4/10), 38 So.3d 309.

UThe WCJ’s decision herein is based primarily on a credibility evaluation. After reviewing the record herein, we find that it supports his evaluation of Claimant’s credibility. Claimant gave different answers in the deposition, at the hearing, and even within the space of the hearing. Based on the records of the treating physicians, he apparently gave different information to each of his doctors. Further, while Claimant asserts that he is entitled to medical benefits, including payment for an MRI ordered by Dr. Randy Miller, we cannot find sufficient support in the medical records to establish a link between the services and the injuries sustained. As a result, we cannot say that the WCJ erred manifestly in finding that Claimant did not carry his burden of proof herein. Accordingly, the judgment of the WCJ is affirmed.

CONCLUSION

For these reasons, the judgment of the WCJ dismissing Claimant’s action is affirmed. Costs of this appeal are assessed to Claimant, Stacey Schoeffler.

AFFIRMED.