author: GAIDRY, J.

text:
    ODYSSEA VESSELS, INC. v. A & B INDUSTRIES OF MORGAN CITY, INC.
    No. 2011 CA 2009.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 2012.

      C. Gordon Starling, Jr., New Orleans, LA, David M. Thorguson, Morgan City, LA, for Plaintiffs/Appellants Odyssea Vessels, Inc. and Odyssea Marine, Inc.
    Dale P. Martin, Broussard, LA, for De~ fendant/Appellee A & B Industries of Morgan City, Inc.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

|2In this case involving a dispute over a shipbuilding contract, the shipowner appeals a $393,527.00 judgment in favor of the shipbuilder. We affirm.

FACTS AND PROCEDURAL HISTORY

Odyssea Vessels, Inc. (“Odyssea”) solicited bids in the winter of .2005 for the construction of two ninety-four foot vessels. A & B Industries of Morgan City, Inc. (“A & B”) issued a bid quotation in January 2006 of $3,752,000.00 per vessel, with the price to include all steel purchasing, fabrication, piping, electrical, painting, engines, generators, underwater gear, carpentry, fenders and general outfitting. The bid from A & B specifically excluded the towing winch, towing winch engine, and electronics from the per vessel price. Odyssea and A & B subsequently entered into two separate vessel construction contracts (one for Hull # 317 and one for Hull # 318) which provided that for the consideration of $3,752,000.00 per vessel, A & B would furnish all facilities, labor, material, supplies, and equipment (except items required by the plans to be furnished by Odyssea) and perform all work necessary to construct the vessels and deliver the completed vessels and their component parts and systems to Odyssea on or before January 4, 2007. Both contracts contained the following pertinent provisions:

3. TIME FOR COMPLETION OF WORK
The work of [A & B] shall be performed at [A & B’s] facilities in Amelia, Louisiana and shall be prosecuted with due diligence without delay or interruption except as may be caused by Acts of God, inclement weather, labor difficulties or disputes, usual holidays and weekends, fires, accidents, difficulty or delays in obtaining labor, supplies, equipment or machinery or other delays beyond the reasonable control of [A & B] and shall thereafter be completed in every detail and particular on or before the 4th day of 2007.
I sin the event of any such delay, the date of completion shall be extended a period equal to the time lost by reason of any said causes, provided [A & B] shall give prompt notice in writing to [Odyssea] of any such delay, stating the cause thereof.
It is agreed that [A & B] shall not be responsible for any delays in completion of the work of [A & B] associated with any work to be performed by [Odyssea] or any late delivery of any [Odyssea] furnished items. Furthermore, [A & B] will not be liable for any liquidated damages or penalties for failure to complete the work of [A & B] within the specified time.
4. CHANGES AND MODIFICATIONS
Subject to the requirements of other work then pending at the facilities of [A & B], the right is reserved by [Odyssea] to make any deductions from or additions to the said specifications on giving due notice in writing to [A & B]; the cost of any such changes to be agreed upon in advance by [A & B] and [Odys-sea] and added to or deducted from the Contract Price. If any such change shall delay the completion of the work of [A & B], [A & B] shall be allowed additional time sufficient to cover such delay. A statement of the increased or reduced cost, or any additional time required, as aforesaid, shall be submitted to [Odys-sea] by [A & B] and shall be approved by [Odyssea] in writing before any such change is made.

An attachment to contract, signed by representatives of both A & B and Odys-sea provides:

It shall be the understanding of both [A & B] and [Odyssea] that a complete drawing package, complete nest tape package, as well as all regulatory bodies drawing submittals and fees shall be considered owner furnished. [A & B] shall construct this vessel in accordance with the owner furnished drawings and specifications and shall be classed as an ABS Loadline vessel only.

On February 1, 2006, almost a month after the signing of the contracts, John Arceneaux of A & B sent an email to Chuck Denning of Odyssea describing the delays which had already been encountered:

As we are all aware A & B and Odys-sea Vessels signed construction contracts on 1^4-06 for two 94' tugs. At that time we were all under the impression that Entech & Associates would be able to produce the necessary information needed to start the vessel framing construction almost immediately. However, to date 2-1-06 we still have not gotten the necessary information to start the construction process. We have all been | informed through Entech & Associates that they have incurred some engineering setbacks that were unexpected to them. With that being said A & B Industries would just like to formally notify Odyssea Vessels that we will try our best to recover the lost time but would just like to formally inform you of the delays that we are all experiencing.

Then, on April 6, 2006, three months after signing the contracts, Mr. Arceneaux of A & B sent a letter to Mr. Denning of Odyssea identifying additional delays which had occurred or which were anticipated:

We are all aware that Entech & Associates had some delays at the start of this project due to the vessel being enlarged from 90' to 94', as well as recently losing an employee that was in charge of this project. However, we are just in the beginning phases of construction, and we are concerned that we will incur these problems throughout. Another major problem is that in order to keep our production schedule for the two vessels, we have had to release the nc tapes to Metals USA, and they have already started cutting this material. This means that all of the problems we have incurred on the first boat, we will have the same [problems] with the second vessel construction. At this time it is unknown the manhour delay that A & B has incurred being that we have not fixed alt of the problems yet.
Next are the delays in receiving the remainder of the design package. Items still pending are all superstructure, piping, electrical, shafting, and underwater gear, etc. I have asked for this information on numerous occasions, and have been given a number of different dates. Still to date, we have not received any of this information. We need this information as soon as possible due to we have [to] find the price and order the necessary materials.

On May 2, 2006, Mr. Arceneaux wrote another letter to Mr. Denning requesting that Odyssea demand a set completion date from Entech & Associates, and stating:

Please understand that we have been significantly delayed with this project from the very start with not getting the required information on time; as well as the continuing engineering mistakes.... A & B Industries is in need of the remaining package for this project. With the industry growth that has taken place within the last couple of months, materials are getting very difficult to find, get a timely delivery; as well as the prices are increasing dramatically. [W]e cannot stress enough how much we need this information for one, to keep these vessels within budget, and two, to stay on some sort of timely delivery.

|5Another letter from A & B dated June 12, 2006 states that A & B was still waiting for drawings, and that this was a major delay which would ultimately delay the entire project. The letter further states that A & B has contacted Entech & Associates on numerous occasions due to the many problems that had arisen, and asks Odyssea to contact Enteeh & Associates and “ask them to please do whatever it takes to expedite the process as quickly as possible.”

Another letter from A & B dated June 23, 2006 stated that on that date, approximately five and a half months since the contracts were signed, A & B still had not received the remainder of the drawings. The letter also stated that material costs had risen 85% to 40%, and that once A & B finally received all the approved drawings, they would need to meet with Odys-sea to discuss what additional costs would be incurred.

A July 10, 2006 letter from A & B stated that they still had not received the remaining drawings for the hull structure, piping systems, electrical systems, or underwater gear. A & B cautioned that they were in the process of closing up the hulls on the vessels, and once the hull was completely closed up it would be very difficult and costly to install all of the necessary piping. A & B stated that the delivery of the vessels would likely be drastically delayed due to the lack of information.

An August 16, 2006 email from Mr. Ar-ceneaux to Mr. Denning stated that they still had not received the remaining drawings, that the hull of vessel 317 was completely closed up, and that would make it very difficult for the workers to do the work inside the hull. Mr. Arceneaux reiterated that the continual delays created by Enteeh & Associates were disrupting the time frame for construction and again asked for Odyssea’s help in getting Enteeh & Associates to expedite their work so that the project was not further 16delayed. In a second email on that same date, Mr. Ar-ceneaux advised Mr. Denning that Enteeh & Associates had informed A & B that the hull, underwater gear, and some piping drawings had been approved by the ABS, but Enteeh & Associates did not provide the drawings to A & B, and Mr. Arceneaux requested Mr. Denning to contact Enteeh & Associates to obtain the drawings for A & B since Odyssea, not A & B, is Enteeh & Associates’ customer.

Two change orders, numbered 317-01 and 318-01, were prepared by A & B on November 6, 2006 and approved by Odys-sea on November 9, 2006. These change orders stated:

A & B Industries to provide labor, material, and equipment to modify existing quarter bitts. Currently the bitts are constructed as per the provided drawings. Bitts shall be modified as per the design of owner’s representative.

The estimated cost of change orders 317-01 and 318-01 was $7,894.00 each. The change orders noted that no additional time would be added to the schedule based upon the change orders. The change orders were signed by representatives of A & B and Odyssea.

A December 19, 2006 email from Mr. Arceneaux informed Mr. Denning of difficulty in getting an invoice paid as agreed and of more delays in construction due to missing or inadequate drawings and modifications that needed to be made to the vessels. For example, the main engines would not fit through the designed cutouts, so the engines would have to be disassembled and reassembled and “major steps” would have to be taken in cutting the completed main deck cabin to get to the engine room. Mr. Denning replied to this email on December 28, 2006 with “Let’s (sic) discuss after the holidays.”

|7On February 16, 2007, Mr. Arceneaux advised Mr. Denning of his concerns that he had still not received any ABS approved drawings, and that ABS inspectors had informed him that they also had no drawings with which to perform the required inspections. Mr. Arceneaux again asked for Odyssea’s assistance in getting the ABS approved drawings from Entech & Associates.

On April 28, 2007, Mr. Arceneaux emailed Marc Molaison of Entech & Associates asking for certain drawings and informing him that those drawings were holding up progress and needed to be addressed.

Change orders 317-02 and 318-02 were prepared by A & B on May 14, 2007. These change orders stated:

A & B Industries is to provide labor, material, and equipment to modify existing stairway leading from the fiddly to the engine room. Currently the stairway is constructed as per the provided drawings. The stairway shall be modified in a way to accommodate the relocation of the winch engine from the engine room space to the fiddly area.

The estimated cost of change orders 317-02 and 318-02 was $9,163.50 each, and the change orders stated that no additional time would be added to the schedule. Although the box signifying approval was checked on both change orders and a representative of Odyssea signed both change orders, there is no date next to the approval on either change order, the signature line for A & B’s representative is blank on both change orders, and the change orders are both marked “NOT PAID.”

Change orders 317-03 and 318-03 were prepared by A & B on May 23, 2007 and approved by Odyssea on May 29, 2007. These change orders stated:

A & B Industries is to provide labor, material, and equipment to return the originally ordered main propulsion shafts and replace with the corrected length of shafts. Also to Rmodify the originally designed tiller arms in order to fit the required steering system.

The estimated cost of change orders 317-OS and 318-03 was $17,969.00 each, and no additional time was added to the schedule based upon those change orders.

On May 25, 2007, Mr. Arceneaux emailed Mr. Denning informing him that he had still not received information requested months before from Entech & Associates. Mr. Arceneaux stated that vessel Hull 318 would be launched no later than June 1, 2007, and if the requested information was not received prior to launch, Odyssea would be responsible for dry-docking the vessel at a later date for completion of that portion of the work.

On June 12, 2007, Mr. Arceneaux again emailed Odyssea asking for help in obtaining delayed drawings from Entech & Associates because the drawings were holding up the machine shop’s work.

On July 5, 2007, apparently in response to complaints from Odyssea regarding the progress of the vessels and a statement by Mr. Denning that Odyssea would have the vessels towed to another yard to be completed, Mr. Arceneaux sent a letter to Mr. Denning outlining the many delays A & B had experienced and stated:

A & B Industries has had to endure a great deal of over cost due to the extended time frame in which it has taken to get to the point of construction we are at now. [A]lmost all associated equipment and materials for these projects have increased in price dramatically.... A & B has multiple other projects under construction at the same time.... [and] some of our vendors as well as our own employees have had to move on to other projects [that do not have these types of delays or problems] due to the delays that have been incurred on these vessels .... [T]he electrical may have to be subcontracted to an outside vendor due to our electrical staff has had to move on to other projects to begin and complete these vessels. This is also a fact for the carpenter crew. This particular vendor can not start the necessary process of interior joiner work until the interior electrical is at least roughed in. This vendor has also had to move on to other projects due to the same delays.
laA & B Industries does not see these vessels being completed in any sort of timely manner due to the delays that have been incurred to date as well as the amount of cost overrun that A & B Industries has had to endure.

The July 5, 2007 letter presented two options to Odyssea: (1) Purchase the remaining balance of the contracts from A & B and remove the vessels to be completed by another vendor; or (2) Re-negotiate the contracts for the vessels to compensate A & B for all delays and costs endured. A meeting was held on July 16, 2007 between A & B and Odyssea to discuss the options presented to Odyssea in the July 5, 2007 letter, and afterwards, Mr. Arceneaux sent a letter to Odyssea containing a proposal for an additional compensation agreement for A & B to complete the vessels.

A surveyor hired by Odyssea inspected the boats on July 31, 2007 and found that the workmanship was in good order and to ABS standards, but speculated that Hull 317 was only 45% to 50% complete and that Hull 318 was only 50% to 55% complete. The surveyor estimated that the vessels would take approximately six months each to be completed at a cost of approximately $1.15 million per vessel.

On September 24, 2007, Odyssea filed suit against A & B, alleging that A & B had breached the contracts by failing to deliver the vessels by January 4, 2007; failing to work with due diligence and without delay or interruption; failing to perform work for which it had been paid; failing to adhere to clause 4 of the contracts regarding changes and modifications; and failing to properly construct the vessels. At the time the suit was filed, Odyssea claimed that it had already paid to A & B $3,564,400.00 per vessel, plus another $71,000.00 for change orders submitted by A & B and approved by Odys-sea, but despite those payments A & B had ceased work on the vessels. Odyssea also alleged that an inspection revealed that the vessels had some lindeficiencies due to A & B’s or its subcontractors’ negligence. Odyssea claimed that it sustained damages as a result of A & B’s breach in the form of increased costs to complete the vessels, loss of profits from the vessels, attorney fees, and costs., Odyssea also requested the issuance of a writ of sequestration directing the sheriff to seize Odys-sea’s property in A & B’s possession. A & B filed a reconventional demand claiming that Odyssea breached the contracts and is liable to A & B for damages arising from the breach. Specifically, A <& B alleges that Odyssey breached the contract by failing to timely provide things it was responsible for furnishing under the contract, resulting in delays, and by terminating the contract based upon the delays which it caused. A & B also asserted a privilege and lien on the vessels.

After a trial, the jury found that Odys-sea, not A & B, breached the contract, and that Odyssea’s breach caused a loss in the amount of $393,527.00 to A & B. Odyssea has appealed the trial court judgment and assigns the following trial court errors on appeal:

1. The court erred in awarding damages for increased costs when the required change orders were not issued.
2. The court erred in awarding damages for delay because the contract provides that the exclusive remedy for delays is an extension of the completion date.
3. The court erred in failing to find that A & B breached the contracts by refusing to complete the contracts without additional payments.
4. The court erred in excluding testimony and limiting cross-examination of witnesses.
|n5. The jury erred in finding that A & B’s delay in completing the work was excusable and not a breach of A & B’s obligations under the contracts.

DISCUSSION

Legal agreements have the effect of law upon the parties, and, as they bind themselves, they shall be held to a full performance of the obligations flowing therefrom. Spohrer v. Spohrer, 610 So.2d 849, 851-52 (La.App. 1st Cir.1992). When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. Spohrer v. Spohrer, 610 So.2d at 852. The rules of interpretation establish that when a clause in a contract is clear and unambiguous, the letter of the clause should not be disregarded under the pretext of pursuing its spirit. Spohrer v. Spohrer, 610 So.2d at 852. Louisiana Civil Code article 2045 defines interpretation of a contract as “the determination of the common intent of the parties.” Lindsey v. Poole, 579 So.2d 1145, 1147 (La.App. 2nd Cir.), writ denied, 588 So.2d 100 (La.1991). Such intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used, and by construing the entirety of the document on a practical, reasonable, and fair basis. Lindsey v. Poole, 579 So.2d at 1147.

Odyssea’s first argument on appeal is that A & B could not be awarded increased costs under the contracts when they did not issue the change orders required by the contracts. The contractual provision calling for change orders is contained in the section entitled “CHANGES AND MODIFICATIONS,” and calls for the preparation of change orders by A & B in the event Odyssea makes deductions from or additions to the specs of the vessels in writing so that the parties can agree on the cost change and any | ^additional time required before the change is made. There is no requirement in the contract that A & B prepare a change order when Odyssea is delayed in delivering owner-furnished items to A & B, nor is there evidence that Odyssea sent a written request to A & B requesting a change in the specs of the vessels to provide for the late delivery of owner-furnished items, i.e., the complete drawing package, the complete nest tape package, as well as all regulatory bodies drawing submittals and fees, as is called for under the contract to prompt the creation of a change order.

Further, there is no requirement in the contract that A & B provide any sort of notice in order to secure an extension of time where the delay results from the untimely provision of owner-furnished items. The first paragraph under the section of the contract regarding time for completion of the work controls delays caused by Acts of God, inclement weather, labor difficulties or disputes, usual holidays and weekends, fires, accidents, difficulty or delays in obtaining labor, supplies, equipment or machinery or other delays beyond the reasonable control of A & B, and provides that A & B is entitled to an extension of the completion date equal to the period of time lost due to the delays, provided A & B gives prompt written notice to Odys-sea of the cause of the delay. The second paragraph of this section controls delays in completion caused by any late delivery of any owner-furnished items. This paragraph provides that A & B is not responsible for these delays and shall not owe any damages for failure to complete the work within the specified time. This paragraph does not have a similar requirement that A & B .give Odyssea notice of the cause of the delay in writing, presumably because the cause of the delay is under Odyssea’s control and therefore known by Odyssea. Thus we do not find that any change orders were required under 113the clear terms of the contract for Odyssea’s delays in delivering owner-furnished items. This assignment of error lacks merit.

Odyssea next argues that the court erred in awarding damages to A & B for Odyssea’s breach of the contract because the exclusive remedy provided by the contract for Odyssea’s failure to timely deliver owner-furnished items was an extension of time for A & B to complete the work. In fact, what the contract states is that A & B will not be responsible for delays caused by Odyssea and will not be liable for any liquidated damages or penalties for failure to complete the work on schedule. A & B argues that merely providing an extension of time when Odyssea dragged the project on indefinitely by failing to timely furnish necessary materials would not fully compensate A & B for lost time and increased labor and material costs. If the parties intended to limit Odyssea’s liability for causing delays to simply an extension of time, they could certainly have done so. They did not. Louisiana Civil Code article 1994 provides that an obligor is liable for damages caused by his failure to perform which results from nonperformance, defective performance, or delay in performance. Damages for failure to perform are measured by the loss sustained by the obligee and the profit of which he has been deprived. Since the contracts contain no expression of the parties’ intent to limit Odyssea’s liability for failure to perform, we find no error in the court’s award of damages as provided by the Civil Code for Odyssea’s failure.

Odyssea next argues that the court erred in failing to find that A & B breached the contracts when it refused to complete the lump sum contracts without additional payments. Odyssea argues that since A & B bid and contracted to build the vessels for a lump sum, it was a breach of those contracts to refuse to complete the vessels for the agreed-upon lump sum 114price. We disagree. As the jury concluded and we agree, Odyssea breached the contracts when it failed to timely provide the owner-furnished items under the terms of the contract; afterwards, when Odyssea threatened to take the vessels elsewhere to be completed because they were not finished by the completion date in the contracts, A & B did not breach the contracts when it sought to modify the parties’ agreements so that the vessels could be completed at A & B’s shipyard. The evidence supports A & B’s assertion that this proposal by A & B was an attempt to resolve the parties’ differences, rather than an attempt to extract more money from the shipowner. Thus, we find no error in the jury’s finding that A & B did not breach the contracts.

Odyssea’s next argument is that the court erred in excluding the testimony of Odyssea’s witness, David McRae. Mr. McRae was the general manager of a company, C & E, that had contracted with A & B for the construction of a vessel for a lump sum price during the same time period A & B was constructing the vessels for Odyssea. Odyssea alleges that Mr. McRae would have testified that A & B had all of the necessary drawings at the commencement of the contract to build C & E’s vessel, and that only a few change orders were issued, but that A & B still requested an increase in the lump sum price to complete the vessel and also delivered the vessel after the agreed-upon completion date. Odyssea alleges that Mr. McRae would have testified that it was his opinion that A & B’s delays with C & E’s vessel were due to A & B’s insufficient manpower and inability to complete all of the jobs undertaken at the time. Mr. McRae also would have testified to his belief that the real reason A & B was not working on C & E’s vessel was that they had underbid the contract and were losing money. A & B filed a motion in limine to exclude Mr. McRae’s testimony on the grounds that any delays or extra charges in the construction of C & E’s vessel were not relevant to | TSOdyssea’s claims against A & B. In considering the motion, the trial court asked whether “the only thing he’s going to talk about is the delay on [C & E’s] project and the nature of [C & E’s] project,” and Odyssea’s attorney answered yes. The trial court then granted the motion and excluded Mr. McRae’s testimony.

Generally, the trial court is granted broad discretion on its evidentiary rulings, and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Turner v. Ostrowe, 01-1935, p. 5 (La.App. 1 Cir. 9/27/02), 828 So.2d 1212, 1216, writ denied, 02-2940 (La.2/7/03), 836 So.2d 107. Except as otherwise provided by law, all relevant evidence is admissible. LSA-C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. LSA-C.E. art. 401. Whether evidence is relevant is within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. Boudreaux v. Mid-Continent Cas. Co., 05-2453, p. 8 (La.App. 1 Cir. 11/3/06), 950 So.2d 839, 845, writ denied, 06-2775 (La.1/26/07), 948 So.2d 171.

Odyssea claims that Mr. McRae’s testimony about what happened with C & E’s vessel was relevant to prove that the true reason A & B was delayed in constructing the vessels for Odyssea was not the untimely delivery of the plans, but rather that Odyssea was understaffed and stopped working on the vessels because they were not producing enough profit. We find no abuse of discretion in the trial court’s decision to exclude this testimony as irrelevant.

Odyssea next argues that the court erred in limiting its cross-examination of Mr. Arceneaux about the reasons for the delays on C & E’s |lfiproject. The court allowed Odyssea’s attorney to question Mr. Arceneaux about whether the C & E vessel was delivered-on time or if it was substantially late; after Mr. Arceneaux testified that the C & E vessel was delivered substantially late, the court did not allow Odyssea to question him any further about the reasons for the delays on the C & E vessel. Odyssea argues on appeal that the evidence it sought to elicit on cross-examination was relevant for the same reasons Mr. McRae’s testimony was relevant. Just as with Mr. McRae’s testimony, we find no abuse of discretion in the trial court’s determination that this evidence concerning C & E’s vessel was not relevant to the claims between Odyssea and A & B. These assignments of error are without merit.

CONCLUSION

For the reasons set forth hereinabove, the judgment in favor of A & B and against Odyssea is affirmed. Costs of this appeal are assessed to plaintiff, Odyssea Vessels, Inc.

AFFIRMED.

      . A writ of sequestration was issued, and the vessels were returned to Odyssea.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, Plaintiff-Appellee v. Angela Bonnette BISCOMB, et al., Defendants-Appellants.
    No. 47,223-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Woodard and Clement, by Russell A. Woodard, for Defendants Appellants, Rebel Transport, Inc. and Rebel Transportation Brokerage, Inc.
    Bernard L. Knobloch, Jr., Louisiana Department of Transportation and Development, Baton Rouge, LA, for Plaintiff-Ap-pellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   GASKINS, J.

|, This appeal concerns expropriation of property in Lincoln Parish for a state highway project. A jury found that the defendants, ' trucking companies which leased the expropriated property, had suffered no compensable business or economic losses due to the taking and construction. The defendants appeal. We affirm.

FACTS

In September 2005, the State of Louisiana, Department of Transportation and Development (DOTD), filed an expropriation suit against landowner Angela Bon-nette Biscomb and her two lessees, Rebel Transport, Inc., and Rebel Transportation Brokerage, Inc. DOTD asserted that the property sought was needed for a construction project on Highway 167 in Lincoln Parish. According to DOTD’s petition, there were no buildings located on the property at issue; the only improvements situated there were concrete parking and drives, a sign and a water lateral. DOTD asserted that just compensation for the taking would be SST^OO. An order of expropriation was signed on September 21, 2005, directing DOTD to deposit $57,700 into the registry of the court. An order allowing the defendants to withdraw the money was signed in February 2006.

The defendants filed an answer on September 13, 2006, in which they asserted that just compensation would be $475,000. This sum includes a total of $275,000 for Ms. Biscomb ($75,000 for value of the part taken and $200,000 for severance damages to the remainder), $150,000 for Rebel Transport, Inc., and $50,000 for Rebel Transportation Brokerage, Inc. In a | gfirst amending answer, they raised this amount to $1,275,000. They arrived at this figure by increasing the damages to Rebel Transport, Inc., to $750,000 and the damages to Rebel Transportation Brokerage, Inc., to $250,000.

In May 2010, DOTD and Ms. Biscomb entered into a settlement whereby she received a total of $125,243.29 (the $57,700 already withdrawn, plus an additional $67,543.29). They filed a joint petition to allow Ms. Biscomb to withdraw the additional $67,543.29, which had been deposited into the registry of the court. Judgment so ordering was signed on May 28, 2010. The rights of the two remaining defendants (hereinafter collectively referred to as “Rebel”) were reserved.

A settlement was reached with Rebel whereby DOTD would pay $225,000, along with permitting the continued occupancy of the property by Rebel until January 1, 2012, arid granting forgiveness of any rent due to DOTD for the occupancy of the property until that date. This settlement applied to all of Rebel’s claims except its claim for “other economic losses.” Judgment in conformity with the settlement was signed on July 27, 2011.

Trial on the issue of Rebel’s “other economic losses” began on June 27, 2011. Testifying for Rebel were its owner, Walter Troy Biscomb, and Don McGehee, Rebel’s CPA. Serving as a witness for DOTD was Michael A. Daigle, a CPA certified in financial forensics. The jury found that Rebel suffered no compensable business or economic losses due to the taking and construction. The trial court assessed court costs on or before |s June 15, 2011, against DOTD. Court costs after that date were assessed against Rebel. Judgment was signed August 26, 2011.

Appeal was takeri from this judgment by Rebel.

LAW

The owner of expropriated property must prove by a preponderance of evidence a business loss due to the expropriation to be compensated for the loss. Additionally, the fact finder’s determination as to the amount of business loss due to an expropriation is a factual determination subject to the manifest error standard of review. State, Department of Transportation and Development v. G & B Oil Products, Inc., 1999-1248 (La.App.3d Cir.6/21/00), 762 So.2d 1123, writ denied, 2000-2196 (La.10/27/00), 772 So.2d 649.

A lessee’s business losses, if proved to have been caused by the State’s taking or damaging of property, are com-pensable under the “full extent of his loss” measure of recovery. State, DOTD v. Morein, 628 So.2d 1191 (La.App. 3d Cir.1993); Packard’s Western Store, Inc. v. State, Department of Transportation and Development, 618 So.2d 1166 (La.App. 2d Cir.1993), writ denied, 629 So.2d 345 (La.1993). A claimant must prove, by a preponderance of the evidence, that an actual loss was sustained by the business because of the taking. Ardoin v. State, Department of Transportation & Development, 96-63 (La.App.3d Cir.8/14/96), 679 So.2d 928, writ denied, 96-2280 (La.11/15/96), 682 So.2d 775.

A court of appeal may not set aside a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong; where there is ^conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, (La.1989).

Before a factfinder’s verdict may be reversed, there must be evidence within the record such that a reasonable factual basis does not exist for the verdict, and the record establishes the verdict is manifestly erroneous. Stobart v. State Through Department of Transportation and Development, 617 So.2d 880 (La.1993). An appellate court should not upset factual findings of a trial court absent manifest error or unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); State, Department of Transportation & Development v. Schwegmann Westside Expressway, Inc., 95-1261 (La.3/1/96), 669 So.2d 1172.

It is the duty of the trier of fact to weigh credibility and to accept or reject all or part of a witness’s testimony. Marshall v. Caddo Parish School Board, 32,373 (La.App.2d Cir.10/29/99), 743 So.2d 943. Where there are two permissible views of the evidence, the factfinder’s choice cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through Department of Transportation and Development, supra.

Credibility determinations are for the trier of fact, even as to the evaluation of expert witness testimony. Green v. KMart Corporation, 2003-2495 (La.5/25/04), 874 So.2d 838; Wilkerson v. Wilkerson, 42,324 (La.App.2d Cir.8/15/07), 962 So.2d 1137. A factfinder may accept or reject the opinion expressed by an expert, in whole or in part. The effect |fiand weight to be given to expert testimony rests within the broad discretion of the trier of fact. Marsh v. USAgencies Casualty Insurance Company, 42,176 (La.App.2d Cir.5/16/07), 957 So.2d 901, writ denied, 2007-1286 (La.10/26/07), 966 So.2d 575.

The trier of fact is charged with determining what credibility it assigns to expert witnesses and then deciding which expert among those testifying that it finds more credible. Starr v. State ex rel. Department of Transportation and Development, 46,226 (La.App.2d Cir.6/17/11), 70 So.3d 128, writs denied, 2011-1835, 2011-1952, 2011-1625 (La.10/21/11), 73 So.3d 386-388. When findings are based on determinations regarding the credibility of witnesses, lay and expert alike, the manifest error standard demands great deference to the trier of fact’s findings. Starr v. State ex rel. Department of Transportation and Development, supra; Rosell v. ESCO, supra.

DISCUSSION

The jury as trier of fact was presented with the testimony of two CPAs who were accepted by the trial court as expert witnesses. Mr. McGehee, Rebel’s witness, began working for Rebel in 2007; he prepared tax returns and gave tax and financial advice. He admitted on cross-examination that he had no special training in business valuation or estimation or forensic accounting. Whereas Mr. McGehee was accepted as an expert in certified public accounting, Mr. Daigle, DOTD’s witness, was qualified as an expert in forensic accounting. He was engaged by DOTD to undertake an analysis of Rebel’s financial operating history to see if he 16could determine whether there was a relationship between its financial operations and the taking.

In their ■ testimony, Mr. Biscomb, the owner of Rebel, and Mr. McGehee testified that they could not relate Rebel’s post-taking financial losses to any factor but the taking. However, Mr. Daigle opined that the primary reason for the dramatic loss of revenue was the collapse of the building industry in the United States. He based this upon the fact that about 95 percent of Rebel’s business was moving building materials used in constructing houses. He concluded that Rebel suffered no real loss as a result of the taking of the property.

The figures indicate that the Rebel companies had a history of fluctuations in their gross sales and revenues even before the highway construction work. For example, gross profits for Rebel Transport went from $937,000 in 2002 to $439,000 in 2004 to $657,000 in 2009. Gross profits for Rebel Brokerage went from $281,000 in 2002 to a loss of $11,576 in 2004 to a profit of $363,000 in 2008.

Rebel assailed Mr. Daigle’s testimony on a variety of bases — he had testified for DOTD numerous times since 1983 and he had never worked for a trucking company. Additionally, Rebel pointed out that Mr. Daigle had never testified as an expert in analyzing the trucking industry. Rebel argued that the jury should have accepted the testimony of its witnesses, Mr. McGe-hee, a CPA who was intimately familiar with Rebel’s finances, and Mr. Biscomb, the owner of Rebel. However, we note that the jury may have inferred a lack of impartiality on Mr. McGehee’s part due to his working ^relationship with Rebel, the factor most heavily cited by Rebel as making his testimony more credible than that of Mr. Daigle. The same is potentially true of Mr. Biscomb, whose companies would have gained financially from a jury award against DOTD. It is possible that the jury may have found Mr. Daigle’s background in forensic accounting more impressive and his lack of prior association with Rebel more indicative of an unbiased evaluation.

At any rate, it is the province of the jury to determine the credibility of a witness and to decide what weight to give testimony. In the absence of manifest error, the appellate court is required to give great deference to the jury’s decision. Where there is a conflict in the testimony, reasonable evaluations of credibility should not be disturbed on appeal. Faced with conflicting expert testimony, the jury chose to believe the testimony of DOTD’s expert. Based upon our review of the record, we are unable to say that the jury was manifestly erroneous in finding that Rebel failed to prove that it sustained compensa-ble economic losses as a result of DOTD’s taking and construction on Highway 167.

Rebel also argues that the following joint stipulation between the parties should resolve the matter in its favor:

Stipulation No. 2 — It is agreed by the parties hereto that it is in the best economic interest of Rebel Transport, Inc. and Rebel Transportation Brokerage, Inc. that as a result of the taking, and the effect of the highway design as completed, they relocate from the location they occupied on September 21, 2005.

IsDOTD maintains that the stipulation merely stated its agreement that it was in Rebel’s best interest to relocate and asserts that Rebel’s claim for relocation costs had been settled. The stipulation does not state that DOTD agreed that Rebel suffered any “other economic losses,” the issue litigated in the instant trial.

We agree with DOTD that the stipulation is not dispositive of the issues presented in the matter on appeal.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellants, Rebel Transport, Inc., and Rebel Transportation Brokerage, Inc.

AFFIRMED.

      . This figure included $935 for the value of the land, $7,268 for the value of the improvements, and $49,497 for damages,

      . We note that during a discussion between counsel and the trial judge at the beginning of trial, DOTD counsel stated without objection: "The value of the part taken has been settled and compensation paid. Severance damages have been essentially eliminated. What remains is other economic loss.... We have settled the amount that would be paid to reestablish the business in a new location.”


author: LOLLEY, J.

text:
    AAKAL LODGING, L.L.C., Plaintiff-Appellant v. AMERICAN EXPRESS, et al., Defendants-Appellees.
    No. 47,219-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Devan Pardue, Springfield, LA, for Appellant.
    McGlinchey Stafford, Baton Rouge, LA, by Michael D. Ferachi, for Appellee BA Merchant Services, L.L.C.
    Sessions, Fishman, Nathan & Israel, Metairie, LA, by Kevin G. Barreca, Lewis
    S.Joanen, for Appellee American Express Travel Related Services Co., Inc.
    Walter W. White, for Appellee American Recovery Services Inc. of California.
    John O. Hayter, III, Shreveport, LA, for Appellees Business Payment Systems-Mid States, Inc. and Jeffery E. Dethlefsen.
    Lori Kropp, for Appellee Cornerstone Business Resources, L.L.C.
    Tina Stanley, Pro Se.
    Before STEWART, DREW and LOLLEY, JJ.
   LOLLEY, J.

11 Aakal Lodging, L.L.C. (“Aakal”) appeals the judgment of the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, wherein the trial court dismissed Aakal’s claim against American Express Travel Related Services Company, Inc. (“Amex”) and BA Merchant Services, L.L.C. (“BA Merchant”). For the following reasons, we affirm the trial court’s judgments.

FACTS

Aakal, the owner and operator of the Rodeway Inn & Suites (the “hotel”) located in Bossier Parish, signed a merchant service agreement in which Cornerstone Business Resources, L.L.C. agreed to accept credit card transactions from Aakal’s hotel guests. Starting in September 2008, an employee of the hotel began placing fraudulent charges on the credit cards of hotel guests. The fraudulent activity continued until December 2008, at which point one of the card holders brought the fraud to the attention of Amex. Amex removed the fraudulent charges from the card holders’ accounts and sought recovery of the funds provided to Aakal which resulted from the employee’s fraud. Aakal agreed to repay Amex, in monthly installments, a total of $200,000.00.

Aakal paid the agreed upon installments to Amex until April 20, 2011, when Aakal brought a claim against Amex and BA Merchant, among others, claiming that the failure of Amex and BA Merchant to maintain the proper safeguards to prevent the fraudulent activity resulted in the damage to Aakal. Prior to trial, both Amex and BA Merchant filed peremptory [2exceptions of prescription. The trial court granted both parties’ exceptions. This appeal followed.

DISCUSSION

As its first and only assignment of error, Aakal argues that the trial court erred in granting Amex’s and BA Merchant’s exceptions of prescription. Specifically, Aakal asserts that it alleged claims for breach of contractual obligations and, therefore, the proper prescriptive period was ten years as opposed to the one-year prescriptive period for claims sounding in tort which the trial court applied. In support of this argument, Aakal states that the first line of the second paragraph of its petition determined the claim as one for breach of contract. The line of the petition reads as follows:

On or about the 27th day of June, 2006, plaintiff entered into a contract, in the Parish of Bossier, with Cornerstone Business Resources, L.L.C. through its agents, Business Payment Systems-Mid States, Inc. and Jeffery E. Dethlefsen to accept various credit cards from its hotel guests.

Generally, the party pleading an exception of prescription has the burden of proving the facts supporting the exception unless prescription is ^evident on the face of the pleading. Taylor v. Broomfield, 46,590 (La.App.2d Cir.09/21/11), 73 So.3d 485. The applicable prescriptive period is determined by the character of the action disclosed in the pleadings. Johnson v. Ledoux, 42,090 (La.App.2d Cir.05/16/07), 957 So.2d 911, writ denied, 2007-1482 (La.10/05/07), 964 So.2d 946.

Delictual actions are subject to a liberative prescription of one year from the day injury or damage is sustained. La. C.C. art. 3492. A personal action is sub-jeet to a liberative prescription of 10 years. La. C.C. art. 3499. The standard controlling review of a peremptory exception of prescription requires the court of appeal to strictly construe the statute against prescription, and in favor of the claim that is said to be extinguished. Reggio v. E.T.I., 2007-1443 (La.12/12/08), 15 So.3d 951.

Here, Aakal has alleged a cause of action sounding in tort. Although Aakal insists that its relationship with Amex and BA Merchant is contractual, Aakal’s petition never set forth particular facts satisfying the elements of a contract. Nor did Aakal provide a factual basis proving that either Amex or BA Merchant was a party to the merchant service agreement or that they owed any contractual obligation to Aakal. The petition only alleges that “defendants breached their duty to plaintiff in failing to maintain proper safeguards to prevent the allegedly fraudulent activity that damaged plaintiff and its customers,” thus asserting a claim in tort. Aakal became aware of the injury in December 2008, and continued to repay Amex for the resulting damages until April 20, 2011, when Aakal filed its claim — well past the one-year prescriptive period that accrued in December 142009. The trial court properly held that the facts alleged in the petition characterize the claim as a delictual action and properly applied the applicable one-year liberative prescription period in dismissing Aakal’s claims. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed. Costs of this appeal are assessed to Aakal Lodging, L.L.C.

AFFIRMED.

      . Amex has argued for dismissal of this matter based upon Aakal's placing the wrong date for the judgment it intended to appeal in its "Motion for Appeal.” Louisiana C.C.P. art. 5051 provides:
      The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.
      There is long standing judicial precedent, reflecting the intent of La. C.C.P. art. 5051, which holds that appeals are favored by the courts and should be dismissed only for substantial causes and not for a mere technicality. U.S. Fire Ins. Co. v. Swann, 424 So.2d 240 (La.1982). On August 30, 2011, the trial court issued a final judgment granting the peremptory exception for prescription filed by Amex and dismissing all claims against Amex based upon the reasons set forth in “the opinion/order issued by this Court and entered on August 2, 2011.” It is evident that Aakal was referencing the final judgment when it requested an appeal for the opinion/order rendered on August 2, 2011. Therefore, this court does have jurisdiction to review the trial court's judgment concerning Amex's exception of prescription.


author: SEXTON, Judge Pro Tem.

text:
    Virginia EVANS, Plaintiff-Appellant v. LAKE BETHLEHEM BAPTIST CHURCH, Defendant-Appellee.
    No. 47,280-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2012.

      Simmons, Morris & Carroll, L.L.C., Shreveport, LA, by Justin C. Dewett, B. Trey Morris, for Appellant.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Brian A. Homza, Michael D. Simon, for Appellee.
    Before GASKINS, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| ¶ Plaintiff Virginia Evans appeals the trial court’s judgment in favor of Lake Bethlehem Baptist Church (“the Church”) finding that she failed to prove by a preponderance of the' evidence that she had an actionable claim against the Church or that the Church breached any obligation owed to her for alleged damage to her son’s gravestone. For the reasons stated herein, we affirm.

FACTS

Mrs. Evans’ son died in 1986. Mrs. Evans was a member of the congregation of the Church and was allowed, under Church practice, to bury her son in the cemetery on the Church’s grounds. Mrs. Evans paid for the headstone and service, but the land and burial'were provided at no charge. Pastor Dennis Everett testified that the cemetery is not a perpetual care cemetery. The families of the ■ deceased persons buried there are the caretakers of the graves and Mrs. Evans ad7 mitted such in her testimony.

On May 25, 2009, Mrs. Evans visited her son’s gravesite and found that the headstone and flowers she had placed on the grave had been disturbed and there were tractor tire tracks around the gravesite. The Church had been doing landscaping and beautification work in the cemetery and two- trees near Mrs. Evans’ son’s grave had been removed. There had also been several storms recently that had caused some damage to other gravesites (not the Evans site). Apparently, the headstone had been taken off of its base and laid to the side so that it would not be damaged while the work was ongoing. Mrs. Evans, however, claims that the headstone was broken and tossed aside into some bushes a distance away from the 12gravesite. There is no allegation that the grave itself was disturbed — just the headstone and flowers. Mrs. Evans further claimed that no one from the Church would respond to her claims of distress concerning the condition of the cemetery; and she, therefore, alerted the police, media and the state entity that oversees graveyards. The record reflects that the Church ceased all activity at the cemetery pending the assessment by the state. Ultimately, the state found no problems with the Church’s activities in the cemetery. The cleanup was completed and Mrs. Evans’ son’s gravesite is currently in its original condition.

Mrs. Evans, however, sued the Church for property damage and mental anguish. The trial judge found no “breach of any obligation or any fault for damages” on the part of the Church and dismissed Mrs. Evans’ claims with prejudice. This appeal ensued.

DISCUSSION

Regardless of the title to the land itself, when a plot of ground is set apart and used for cemetery purposes, it becomes dedicated to use for such purposes. Thomas v. Mobley, 118 So.2d 476 (La.App. 1st Cir.1960). Further, the relatives of those interred therein may be entitled to damages for profanation of the grounds, as well as to injunctive relief to protect the graves and their burial and visitation rights related thereto. Id. We note that relatives of persons buried in a particular dedicated cemetery have a sentimental interest in the area as a whole and such ground should remain free from desecration. While plaintiffs may not own, in a strict legal sense, an interest in the cemetery, they do have a “species of interest or form of lstitle therein” Locke v. Lester, 78 So.2d 14 (La.App. 2d Cir.1955), citing with approval, Choppin v. Labranche, 48 La.Ann. 1217, 20 So. 681, 33 L.R.A. 133 (1896).

Significantly, in the case sub judice, there was no perpetual care agreement or arrangement between the Church and Mrs. Evans regarding the continued maintenance of her son’s gravesite. Pastor Everett testified that the Church is not a perpetual care cemetery and that relatives of the persons interred there are responsible for costs of burial, marker and upkeep of the gravesite. The plot of land is provided as a benefit of membership in the Church. Mrs. Evans admitted in her testimony that she is the caretaker of the gravesite. However, according to the testimony of Pastor Everett and David Allen, who is responsible for grounds maintenance of the cemetery, the Church does maintain the cemetery by mowing, trimming, cleaning up after severe weather and performing general beautification work.

Specifically, the photographs in the record support the testimony of Mr. Allen that storm cleanup and tree removal was ongoing at the time Mrs. Evans visited the cemetery and was disturbed by her observation. Mr. Allen testified that it was common practice to lay the headstones to the side while the work was ongoing so that they would not be harmed. While it is evident that Mrs. Evans has suffered from anxiety and other disorders in the past and was upset by seeing the disturbance of her son’s gravestone, we cannot say that the cleanup activity by the Church was the type of profanation or desecration for which the law provides a remedy. Like the trial judge, we find no breach of any duty owed to Mrs. Evans. Indeed, the 14photographs and testimony reflect that Mrs. Evans’ son’s gravestone was replaced upon completion of the work and the cemetery has been restored to its prior condition.

CONCLUSION

For the foregoing reasons, the judgment in favor of Lake Bethlehem Baptist Church and against Virginia Evans dismissing Mrs. Evans’ claims with prejudice is affirmed. Costs of appeal are assessed to Mrs. Virginia Evans.

AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Morgan KING, Appellant.
    No. 47,207-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2012.
    Rehearing Denied Aug. 2, 2012.

      Frank E. Brown, Jr., Shreveport, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Brady D. O’Callaghan, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and SEXTON (Pro Tempore), JJ.
   WILLIAMS, J.

I,The defendant, Morgan King, was charged by biil of information with perjury and filing a false public record, violations of LSA-R.S. 14:123 and LSA-R.S. 14:133. Following a jury trial, the defendant was convicted as charged. He was sentenced to serve four years in prison at hard labor for each count; the sentences were ordered to be served concurrently. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

On May 17, 2006, a Shreveport police officer, Freddie Clinton, called in a “10-18” to dispatch, requesting immediate assistance on Broadway Avenue in Shreveport, Louisiana. Officer Clinton reported that a woman, who was later identified as Arlecia McDonald, was being chased in her vehicle by a man who was later identified as McDonald’s ex-boyfriend, Raymond Darnell. Ultimately, Darnell, who was driving a green sports utility vehicle (“SUV”), forced McDonald from the road. McDonald’s car struck a telephone pole and caught fire. Darnell exited the SUV, leaving the vehicle traveling on the road unmanned, and began chasing McDonald with a shotgun. McDonald ran to Officer Clinton, yelling that Darnell was carrying a shotgun. Officer Clinton ordered Darnell to stop and to put his weapon down or on the ground. Darnell fired at least one shot at McDonald and Officer Clinton. Officer Clinton returned fire as he and McDonald took cover near or behind his police vehicle. While Officer Clinton was reloading his weapon, Darnell ran around the front of the officer’s vehicle, shot McDonald and began striking her with the shotgun. Officer Josh |2Feliciano arrived on the scene and fired several gun shots at Darnell, striking him in the chest and knocking him to the ground. After a struggle, the two police officers managed to handcuff Darnell.

Meanwhile, the defendant, then a Shreveport police officer, responded to the 10-18 call. Videotapes admitted into evidence showed when the defendant arrived on Broadway Avenue, he did not immediately drive up to the scene of the shooting. Instead, after he had heard several gunshots, he waited at a distance down the street until the shooting ceased. When the defendant finally drove to the scene, he activated his emergency police lights and exited his vehicle. He quickly walked around the scene, observed McDonald lying on the ground bleeding and Officers Clinton and Feliciano struggling to subdue Darnell. The defendant ran back to his police vehicle and drove away. He never attempted to assist the officers or render aid to McDonald. Additionally, the defendant never filed a police report to document his presence at the scene of the shootings. In fact, he prepared a “stoolie” sheet, in which he reported that he was in another area of the city at the time of the incident. The Shreveport Police Department (“SPD”) later terminated the defendant for his actions.

Subsequently, Darnell was convicted of one count of attempted first degree murder and one count of attempted second degree murder. ^Following his conviction, Darnell filed a motion for new trial, alleging that a third police officer, the defendant, was a witness to the shooting. Darnell argued that the videotape from the defendant’s dash camera contained exculpatory evidence which the state had failed to turn over to Darnell prior to his trial.

On February 12, 2007, the defendant was subpoenaed to testify at the hearing on Darnell’s motion for new trial. During the hearing, the defendant testified that he activated his emergency lights as he turned onto Broadway Avenue. He also testified that he waited by Darnell’s SUV because he believed Officers Clinton and Feliciano were shooting at the SUV. The defendant further testified that he left the scene because Darnell was being handcuffed and he believed the scene was under control. He stated that after he left Broadway Avenue, he radioed dispatch to inform the officers on the scene that he was responding to another call. The defendant claimed that Captain Larry Lewis had authorized him to leave the scene of the shooting because protocol required him to obtain permission prior to leaving a scene. The defendant also testified that when he left the scene, he saw that the Shreveport Fire Department had been dispatched and emergency assistance was in close proximity to the scene. Additionally, the defendant testified that he did not write a police report because he was not directed to do so.

|4Puring cross-examination, the defendant was shown the videotapes from the dash cameras of the vehicles operated by Officers Clinton and Feliciano. The defendant admitted that he was the police officer depicted in the videotapes. Much of the defendant’s testimony was directly contradicted by the videotapes and the testimony of several of his superior police officers. Specifically, the videotapes showed: (1) the defendant did not activate his emergency lights as he turned onto Broadway Avenue; he did not turn his lights on until he arrived at the scene of the shooting (after the shooting stopped); (2) the defendant did not wait by Darnell’s SUV during the shooting; Darnell’s vehicle had already left the roadway at the time of the shooting; (3) the fire department was not in the immediate vicinity when the defendant left the scene; Officer Clinton was heard requesting the fire department to provide assistance after the defendant left the scene; (4) Darnell was not in handcuffs when the defendant left the scene; the officers were still struggling to subdue Darnell when the defendant walked away.

Additionally, Captain Lewis testified that he responded to Officer Clinton’s call and was the supervising officer on the scene that night. Captain Lewis also testified that he never had contact with the defendant that night and never gave the defendant permission to leave the scene.

The evidence also showed that the defendant prepared a stoolie sheet, documenting his activities that evening. The defendant’s stoolie sheet did not mention his presence at the scene of the shooting on Broadway Avenue. Instead, the defendant documented that he was on Dan-dridge Street at the jfitime of the crime. The defendant testified that his stoolie sheet was “incomplete” because it did not indicate that he was at the scene of the shooting. He explained that, in drafting his stoolie sheet, he used the radio calls made by him during his shift, via a computer, as a reference. He stated that the computer did not show his presence on Broadway Avenue that day; therefore, he did not document it. When questioned about his failure to complete a police report that night, the defendant testified that he made a “mistake” and that his superior officers did not direct him to write a police report. The defendant denied deliberately concealing the fact that he was at the scene of the shooting, and he maintained that his testimony was truthful.

On April 11, 2007, the state filed a bill of information charging the defendant with one count of perjury and one count of filing a false public record. On March 23, 2011, the state filed an amended bill of information charging the defendant with the same offenses.

A jury trial commenced on March 24, 2011, and the defendant was convicted as charged. He was sentenced to serve four years at hard labor for each count; the sentences were ordered to be served concurrently. The trial court denied the defendant’s motions for post-verdict judgment of acquittal, new trial and reconsideration of the sentences.

The defendant now appeals.

DISCUSSION

Sufficiency of the Evidence — Perjury

RThe defendant contends the trial court erred in denying his motion for new trial, as the evidence was insufficient to prove that he was guilty, beyond a reasonable doubt, of perjury. He argues that when he testified in the Darnell matter, he “honestly and mistakenly” believed that he was being truthful. The. defendant maintains that he did not intentionally make any false statements and that there is simply “a difference of opinion” regarding the events which took place on May 17, 2006.

In reviewing the sufficiency of the evidence to support a conviction, the reviewing court must determine whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes charged were proved beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The trier of fact is charged to make a credibility determination and |7may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert, denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607; State v. Lott, 535 So.2d 963 (La.App.2d Cir.1988).

LSA-R.S. 14:123 provides, in pertinent part:

A. Perjury is the intentional making of a false written or oral statement in or for use in a judicial proceeding!)] In order to constitute perjury the false statement must be made under sanction of oath ... and must relate to matter material to the issue or question in controversy.
|SB. It is a necessary element of the offense that the accused knew the statement to be false, but an unqualified statement of that which one does not know or definitely believe to be true is equivalent to a statement of that which he knows to be false.

Materiality of false testimony is a matter of law to be determined by 'the court; it is not a factual question to be determined by the jury. State v. West, 419 So.2d 868 (La.1982); State v. Occhi pinti, 358 So.2d 1209 (La.1978). To determine when a statement is “material,” Louisiana courts have turned to cases interpreting the federal perjury statute. See, State v. Louviere, 594 So.2d 1067 (La.App. 3d Cir.1992); State v. Marrero, 525 So.2d 203 (La.App. 5th Cir.1988). In State v. Marrero, supra, citing United States v. Giarratano, 622 F.2d 153, 156 (5th Cir.1980), the court explained:

The test for materiality is a broad one— whether the false testimony was capable of influencing the tribunal on the issue before it. Furthermore, we have held that ‘the statements need not be material to any particular issue but may be material to any proper matter of inquiry.’

In the instant case, the evidence adduced from the testimony of Assistant District Attorney Lea Hall, Jr., Officer Clinton, Officer Feliciano, Lieutenant Don Otis and Captain Larry Lewis shows that the defendant made false statements during a judicial proceeding, namely the hearing on Raymond Darnell’s motion for new trial. Specifically, Hall testified at length with regard to the defendant’s testimony at the hearing in the Darnell case. The defendant clearly stated that he activated his emergency lights and dash camera when he pulled around the corner from Cleveland Street to Broadway Avenue. Officer Feliciano testified that he only heard the 19defendant’s siren and saw the defendant’s emergency lights after the defendant drove up to the scene. The videotapes from the dash cameras of the vehicles of Officers Feliciano and Clinton support Officer Feliciano’s testimony. The defendant also testified at Darnell’s motion for new trial that the scene was secure when he left. However, both Officer Clinton and Officer Feliciano testified otherwise. Their testimony is corroborated by the videotape from Officer Felici-ano’s dash camera, which revealed that Officers Feliciano and Clinton were still struggling to secure Darnell when the defendant appeared then left the scene. Furthermore, the video reveals that McDonald was alone on the pavement suffering from a gunshot wound and the defendant never offered her assistance.

Additionally, the defendant testified that Captain Lewis, the defendant’s supervisor at the time, told him that he could leave the scene of the shooting. However, Captain Lewis testified that he never told the defendant he could leave. The defendant also stated that Lieutenant Otis told him that the videotape from his dash camera was “mysteriously” erased; however, at the defendant’s trial, Lieutenant Otis denied making that statement.

The defendant also testified at the hearing that he saw fire trucks and heard their sirens as he was leaving the shooting scene; however, the videotapes and the testimony of Officers Clinton and Feliciano directly contradicted the defendant’s testimony. Officer Clinton could be heard on the video requesting the fire department to respond immediately as the defendant left the scene. A fire truck did not arrive until approximately four |inminutes after the defendant left the scene.

After reviewing the record in its entirety, in a light most favorable to the prosecution, we find that sufficient evidence existed to prove that the defendant made multiple false oral statements in a judicial proceeding. The statements made by the defendant related to matter material to the issue in controversy, ie., whether the state withheld exculpatory evidence in the Darnell matter, thus entitling Darnell to a new trial. As a result of the defendant’s actions and subsequent attempt to cover up his actions, any evidence from his dash camera was ultimately destroyed. This assignment lacks merit. Sufficiency of the Evidence — Filing a False Public Record

The defendant also contends the evidence was insufficient to support his conviction for filing a false public record. He argues that he did not intentionally conceal his whereabouts on the stoolie sheet dated May 17, 2006. He also argues that the state failed to prove that the stoolie report is a “public” document, as required for a conviction of filing a false public record.

LSA-R.S. 14:133 provides, in pertinent part:

A. Filing false public records is the filing or depositing for record in any public office or with any public official, or the maintaining as required by law, regulation, or rule, with knowledge of its falsity, of any of the following:
(3) Any document containing a false statement or false representation of a material fact.

The elements of the crime of filing or maintaining false public records are: (1) the defendant files or deposits for record in any public office or with any public official, (2) with knowledge of its falsity, (3)

_|¿iany document containing a false statement or false representation of a material fact. State v. Odom, 2007-0516 (La.App.lst Cir.7/31/08), 993 So.2d 663; State v. Lafear, 2007-621 (La.App.3d Cir.10/31/07), 970 So.2d 98.

LSA-R.S. 14:133 does not require that the record filed be “public”; however, the record must be filed or deposited, with knowledge of its falsity, “in any public office or with any public officer.” State v. Salat, 95-0072 (La.App.lst Cir.4/4/96), 672 So.2d 333, writ denied, 96-1116 (La.10/4/96), 679 So.2d 1378. LSA-R.S. 14:133 is not limited to the filing of documents defined as “public records” in LSA-R.S. 44:1(A)(2).

In the instant case, during Darnell’s hearing, the defendant admitted that he filed a stoolie sheet with the SPD and that the stoolie sheet was incorrect. Lieutenant Cunningham testified that he investigated the defendant’s involvement in the shooting and verified that the defendant’s stoolie report falsely stated that the defendant was not on Broadway Avenue on the evening of May 17, 2006.

We find that the evidence was sufficient to support the defendant’s conviction for filing or depositing a false public record. The stoolie sheet, prepared by the defendant, did not document his presence at the shooting on Broadway Avenue. Rather, the defendant falsely documented that he was elsewhere at the time of the shooting. The defendant knew that the report contained false information, yet he deposited the report with the police department, a public office within the meaning of the statute. This assignment lacks merit.

_[i2Jury Instructions

Next, the defendant contends the trial court erred in failing to instruct the jury that the jury was required to find that the statements made by the defendant were material to the issue or question in controversy. The court instructed the jury as follows:

As respect to count number two, he on or about February 17, 2007 made false statements in a judicial proceeding, which [were] material to an issue in controversy.

However, the trial court failed to define “material” for the jury.

As stated above, “materiality of false testimony is a matter of law to be determined by the court; it is not a factual question to be determined by the jury.”

State v. West, supra. Additionally, LSA-C.Cr.P. art. 841(A) provides:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

The contemporaneous objection rule prevents “a defendant from gambling for a favorable verdict and then, upon conviction, resorting to appeal on errors which either could have been avoided or corrected at the time or should have put an immediate halt to the proceedings.” State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, 368-69.

In the instant case, the record reveals that before the jury entered the courtroom, the state raised a legal issue concerning the perjury charge. Specifically, the state explained that it had uncovered jurisprudence which llsheld that the trial court, and not the jury, was charged with determining whether a defendant’s false statements were material to an issue or controversy in the underlying litigation. After a short break, the trial court noted its review of State v. West, supra, noted that the case was still “good law,” and found that it (the court) would determine whether the alleged false statements made by the defendant were material to an issue or question in controversy in the underlying proceeding. The defense then requested, and the state agreed, not to present the question of materiality to the jury in any regard. Thus, the jury would determine only whether the defendant made any false statements, and only then would the trial court determine whether the false statements were material to the issue in the underlying proceeding.

Following voir dire, the trial court again clarified that the jury would not determine the materiality of the defendant’s alleged false statement(s). The defense agreed not to object to questions asked by the state relating to the materiality because the state had an obligation to prove materiality for the trial court.

Our review of the record reveals that the defendant did not object to the jury instructions either prior to or during the jury deliberations. In fact, defense counsel specifically stated that the defense had no objection to the jury instructions. During the trial, the defendant undoubtedly chose not to object to the jury instructions because they were favorable to him (the instructions charged the jury with finding that the statements were material in order to convict the defendant of perjury). Therefore, the defendant cannot raise the issue now on appeal. See, LSA-C.Cr.P. art. 841(A). To 114allow the defendant to do so would undermine the purpose of Art. 841(A). This assignment lacks merit.

Evidentiary Ruling — Testimony of Assistant District Attorney Hall

The defendant contends the trial court erred in allowing Hall, the prosecutor in the Darnell matter, to testify during the defendant’s trial. The defendant argues that Hall was “upset” because Darnell had accused Hall of violating Brady, therefore, Hall set out to prove that the defendant lied during his testimony in the Darnell matter. The defendant also argues that the trial court erred in allowing Hall, who was an expert witness, to give an opinion regarding the defendant’s guilt or innocence, in violation of LSA-C.E. art. 704.

A prosecuting attorney is a competent witness, even in the dual role of prosecutor and witness. State v. Miller, 391 So.2d 1159 (La.1980). In State v. Miller, supra, a witness to a crime was called as a witness for the state. During his testimony, the witness denied that the defendant was one of the assailants. Thereafter, one of the assistant district attorneys handling the case took the stand as an impeachment witness. He testified that the witness, on two prior occasions, had identified the defendant as one of the assailants. After testifying, the assistant district attorney resumed his role as prosecutor. The Louisiana Supreme Court stated:

Of course district attorneys should avoid the dual role of prosecutor and witness. The general rule, governing all lawyers, prohibits testimony by attorneys who are [^engaged in the trial of the case [e]xcept in isolated circumstances. Even stronger reasons weigh against testimony by a prosecutor.
* * *
Here, however, even if we should find the ruling of the trial judge to have been erroneous, the error was harmless. Foremost, [the witness] himself indicated in his testimony that he said what he did because to do otherwise was dangerous. Next, the prosecution did nothing more than reveal facts which tended to impeach [the witnesses testimony.
We find that [the assistant district attorney]’s failure to withdraw from the trial after testifying did not prejudice the defendant.

Id. at 1163-64.

In State v. Wilson, 602 So.2d 779 (La.App. 2d Cir.1992), the testimony of a juvenile codefendant contradicted pretrial statements made to the prosecution. Thereafter, an assistant district attorney testified as an impeachment witness. This court held that the trial court did not err in allowing the assistant district attorney to testify, noting that the assistant district attorney “was not the prosecuting attorney and did not assume a dual role.” Id. at 782.

In the instant case, we must note that Hall was not the prosecuting attorney in the defendant’s trial; thus, he did not assume a dual role. Additionally, the defendant failed to object to Hall’s testimony at trial. Therefore, he is precluded from raising the issue on appeal. LSA-C.Cr.P. art. 841. This assignment lacks merit. Fifth Amendment Right Against Self-Incrimination

The defendant also contends the trial court erred in permitting the state to introduce into evidence his testimony from the Darnell hearing. He |16argues that when he testified at the hearing, he was not granted immunity and he had not been advised of his right against self-incrimination.

The Fifth Amendment to the United States Constitution states, “[N]o person shall be compelled in any criminal case to be a witness against himself.” See also, La. Const. Art. 1, § 16. The prohibition against self-incrimination not only permits a person to refuse to testify against himself at a criminal trial in which he or she is a defendant, but also privileges him or her to refrain from answering official questions addressed to him or her in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him or her in future criminal proceedings. Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984); Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973).

In Minnesota v. Murphy, supra, the Court explained how the privilege against self-incrimination extends to witnesses:

[I]t is that a witness confronted with ' questions that the government should reasonably expect to elicit incriminating evidence ordinarily must assert the privilege rather than answer if he desires not to incriminate himself. If he asserts the privilege, he ‘may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him’ in a subsequent criminal proceeding. But if he chooses to answer, his choice is considered to be voluntary since he was free to claim the privilege and would suffer no penalty as the result of his decision to do so.

Id,., 465 U.S. at 429, 104 S.Ct. 1136 (internal citations omitted) (emphasis in original).

In the instant case, the defendant was not being interrogated in a 117custodial environment when he testified at Darnell’s hearing. Thus, the trial court was not obligated to inform the defendant of his right against self-incrimination prior to his testimony. See, Minnesota v. Murphy, supra. Additionally, the defendant was free to assert his privilege against self-incrimination at any time during the hearing. He opted not to do so and freely answered questions. Therefore, the defendant waived his right to assert the privilege.

Furthermore, during his trial, the defendant did not object to the use of his previous testimony. Thus, he is precluded from raising the issue in this appeal. See, LSA-C.Cr.P. art. 841(A).

Evidentiary Ruling — Testimony from Disciplinary Proceeding

In his sixth assignment of error, the defendant contends the “trial court erred in permitting testimony of defendant’s disciplinary proceeding and termination from the Shreveport Police Department as the underlying motivation to commit perjury.” However, the defendant did not brief that argument.

URCA Rule 2-12.4 provides, in pertinent part:

All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.

As stated above, the defendant put forth no argument to support this assignment of error in his brief. Therefore, this assignment of error is deemed abandoned. See, State v. Jones, 44,036 (La.App.2d Cir.4/15/09), 8 So.3d 845. Furthermore, during his trial, the defendant did not object to the testimony elicited concerning his disciplinary hearing. Therefore, he is | ^prohibited from raising the argument on appeal. See, LSA-C.Cr.P. art. 841(A).

Excessive Sentence

The defendant contends the sentence imposed was excessive, and the trial court erred in failing to reconsider a modification of the sentence. The defendant argues that the court should have imposed a suspended sentence because he is a first offender, his crimes of conviction were nonviolent and his conduct had no effect on Darnell’s conviction. Furthermore, he argues that the trial court failed to give adequate weight to mitigating circumstances because the court was “influenced by its personal beliefs.”

The test imposed by the reviewing court in determining the exees-siveness of a sentence is two pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56; State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a [19needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Swayzer, supra.

A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence will not be set aside as excessive. Id., citing State v. Square, 433 So.2d 104 (La.1983).

Whoever commits the crime of filing false public records shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than $5,000, or both. LSA-R.S. 14:133(C). When perjury is committed in all other cases in which any other sentence may be imposed, the offender shall be fined not more than ten thousand dollars or imprisoned at hard labor for not more than five years, or both. LSA-R.S. 14:123(C)(3).

In State v. Bailey, 494 So.2d 1199, 1202 (La.App. 5th Cir.1986), writ denied, 496 So.2d 351 (La.1986), the court determined that the maximum sentence of five years was not excessive where the defendant’s perjured testimony “frustrated efforts of law enforcement officials to bring the suspected murderer to trial,” despite the fact that the defendant was a single mother and had been previously convicted of only two minor offenses.

In the instant case, a sentencing hearing was held on April 21, 2011. |2nPuring the hearing, several witnesses testified.

Reverend Nathaniel Davis testified that he had known the defendant for approximately two years. He stated that the defendant is a “real nice person, always cheerful, and always ... dutiful about helping his fellow man.”

Tracy Jamerson Harris, a principal at Creswell Elementary School, testified that she had known the defendant approximately three years. She stated that the defendant volunteered to help the young boys’ basketball team.

LaShonda King, the defendant’s ex-wife, testified that she and the defendant were married over 13 years. She described the defendant as “an excellent father” of their 12-year-old daughter. She also stated that the defendant and his daughter were “inseparable.” Ms. King also testified that the defendant loved his job as a police officer and he would have never done anything to jeopardize his family or to put anyone else in harm’s way.

Edward Fuller, a retired Shreveport police officer, testified that he had known the defendant for more than 12 years. He described the defendant as a “very good person” who should not serve jail time for his convictions.

Officer King, the defendant’s brother, testified that he is a retired Shreveport police officer. He expressed his belief that the defendant did nothing wrong and that the defendant is a good candidate for probation or a suspended sentence.

The state called Officer Feliciano as a rebuttal witness. Officer | ⅞1 Feliciano testified that the defendant’s actions on the night of May 17, 2006, were “unbecoming of what [police officers are] trained to do, protect the citizens of the City of Shreveport.” He stated that the defendant’s actions, particularly failing to render assistance to McDonald, “showed other citizens that maybe they can’t rely on the police to be there for them[.]”

Our review of the record indicates that the trial court adequately considered the factors set forth in LSA-C.Cr.P. art. 894.1. Specifically, the trial court noted its consideration of the testimony from the witnesses during the sentencing hearing and stated its reasons for sentencing the defendant, including the fact that a lesser sentence would deprecate the seriousness of the defendant’s actions. Furthermore, the trial court stated that even after being confronted with the videotapes, the defendant was given multiple opportunities to change his testimony and testify truthfully. Yet, the defendant continued to make false statements. The court also pointed out that the defendant had expressed no remorse for his actions, and maintained that he had done nothing wrong throughout his trial and sentencing hearing. The court stated, “[P]erjury is a continuing and defiant crime and one which this defendant to this day is continuing in his defiance with regard to the perjury he committed in a very, very serious offense.” The trial court explained that its sentence was based on the egregious actions of the defendant, in particular the fact that his false testimony could have caused Darnell, a violent offender, to go free. The court stated, “His actions as a police officer absolutely underminefd] the integrity of this court system, the integrity of law enforcement, and quite frankly [were] just despicable.”

| gs>The trial court also considered the applicable mitigating factors, such as the defendant’s status as a first offender, his familial obligations and his participation in community service. The court noted that the defendant had no prior history of criminal activity and that his conduct was “unlikely’ to recur. The court also noted that the defendant and his daughter had a “close relationship” and stated that it is “very painful” to sentence defendants to prison when they have children who need them. However, the court again noted the seriousness of the offenses committed.

The defendant was sentenced to serve four years on each offense to run concurrently. The trial court had the discretion to sentence the defendant up to five years at hard labor on each count. The defendant received a substantial benefit from the trial court’s decision to order the sentences to run concurrently. Given the nature of these offenses, the breach of public trust by this former police officer and the possible consequences of the defendant’s actions, we find that the sentences imposed were not grossly disproportionate to the crimes committed. This assignment lacks merit.

Errors Patent

We have examined this record for errors patent as required by LSA-C.Cr.P. art. 920. We have found none.

CONCLUSION

For the reasons set forth .herein, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, MOORE, LOLLEY and SEXTON (Pro Tempore), JJ.

Rehearing denied.

      . "10-18” is a police communication code used by dispatch or an officer to call any available police units to respond immediately.

      . A stoolie sheet is a document that police officers are required to complete during the course of their shift. The document memorializes where an officer has been and what he or she has done during the shift. The stoolie sheet is written in the officer's own handwriting.

      . See, State v. Darnell, 43,048 (La.App.2d Cir.8/13/08), 988 So.2d 870, writ not considered, 2008-2258 (La.5/1/09), 6 So.3d 803, reconsideration denied, 2008-2258 (La.5/29/09), 9 So.3d 154.

      .The Shreveport police vehicles were equipped with a MVS system, whereby the video cameras are activated when the police officer activates the vehicle’s emergency lights. The testimony revealed that police officers are responsible for filing the necessary paperwork to demonstrate that a video recording from their vehicles should be saved. If the officer does so, the videotape is removed from the vehicle, placed in a tape vault and stored in the property room. If the defendant never filed the paperwork, then the information from the defendant’s dash camera was likely recycled.

      . The first bill of information was signed by Lea Hall, Jr., the prosecutor in the Darnell matter. Hall later testified as a witness for the state in the instant matter. The amended bill was signed by Brady O’Callaghan, the assistant district attorney who prosecuted the defendant in this matter.

      . The defendant also argues that Hall violated Rules of Professional Conduct: Rule 3.7 by testifying at the defendant's trial. However, any alleged violations of the Rules of Professional Conduct are matters which should be addressed by the Office of Disciplinary Counsel and the Louisiana Supreme Court. Therefore, that argument will not be addressed in this opinion.