author: PER CURIAM.

text:
    STATE of Louisiana v. Larry N. LEWIS, Jr.
    No. 2009-KP-1404.
    Supreme Court of Louisiana.
    Oct. 22, 2010.

      James D. Caldwell, Attorney General, Paul D. Comnnick, Jr., District Attorney, Andrea Frances Long, Thomas Stanford Block, Terry Michael Boudreax, Asst. Dist. Attys., for Applicant.
    Julie C. Tizzard Law Offie, Julie Christine Tizzard, New Orleans, for Respondent.
   PER CURIAM.

| tAlthough defendant was only 16 years old when he shot and killed the victim, the state charged him as an adult in the 24th Judicial District Court with the crime of second degree murder in violation of R.S. 14:30.1. See La.Ch.C. art. 305(A)(1). After a bench trial in 2006, the trial court found him guilty of the lesser offense of manslaughter and sentenced him to 30 years imprisonment at hard labor. In 2008, the trial court then granted defendant an out-of-time appeal. The Fifth Circuit affirmed defendant’s conviction for manslaughter but found the term of imprisonment imposed by the trial court excessive, vacated the sentence, and remanded for resentencing. State v. Lewis, 08-1317 (La.App. 5th Cir.5/26/09), 16 So.3d 385 (Rothschild, J., dissenting). Although declining to recommend a specific sentence, the court of appeal observed “that the maximum sentencing range we could affirm for the defendant’s conviction may extend to a 20-year sentence.” Id., OS-1317 at 22, 16 So.3d at 397 (citing La. C.Cr.P. art. |2881.4)(in remanding for re-sentencing an appellate court may give direction to the trial court concerning the proper sentence to impose). We granted the state’s application to consider that decision and reverse because the conclusion of the court of appeal, that defendant’s sentence is disproportionate to the offense, appears fundamentally at odds with its finding that the evidence at trial supported the responsive verdict of manslaughter because it “was sufficient to prove second degree murder.” Lewis, 08-1317 at 13,16 So.3d at 392-93.

It was undisputed at trial that on the afternoon of March 18, 2005, a half day for students at the Metro Outreach Christian Academy in Jefferson Parish, 18-year-old Lionel Crain died from a single gunshot wound to his left temple inflicted by defendant. Defendant and Crain were students at the school, as were their respective friends Isaac Bush and Deverrick Johnson, and they had all gathered at a bus stop after school let out early to discuss smoking the marijuana defendant had in his possession. The boys decided that they needed a cigar to use as a “blunt” and Crain supplied the dollar bill used to make the purchase. The victim then left the scene briefly to check on his girlfriend who worked at a nearby restaurant. When Crain returned, he discovered that Isaac had split the cigar in half. Incensed that his dollar had, in effect, purchased only half of a cigar, Crain stripped off his t-shirt and challenged Isaac Bush to a fight. However, Deverrick Johnson intervened on Crain’s behalf and struck the first blow, punching Bush in the back of his head. Accounts varied as to whether Johnson continued to fight with Bush, or whether Crain then interceded and began swinging at Bush. However, in the end, a 22-caliber handgun concealed in the pocket of Bush’s jacket slipped out and fell to the ground. Defendant, who had watched the fight as a bystander, picked up the gun and in a manner that was sharply disputed at trial, Isfired a single fatal shot into Crain’s left temple. According to Deverrick Johnson, defendant then turned in his direction, looked him in the eye, and asked, “You want some too?”

Johnson and Isaac Bush both testified that defendant brought up his arm, aimed at the victim’s head, and without hesitation fired deliberately in what pathologist Dr. Susan Garcia, who performed the autopsy, described as an intermediate shot of somewhere between 18 and 24 inches from the victim’s left temple, as evidenced by the tell-tale powder stripling around the wound. The track of the wound, from left to right through the victim’s cerebral hemispheres, “was essentially horizontal” and somewhat forward as if the victim’s head had been turned slightly to the right. The pathologist also expressed her opinion that the shot almost certainly had been fired from Crain’s left side because it inflicted the wound to his left temple and that it was therefore highly unlikely that Crain had been advancing on defendant from the front when the weapon discharged. According to the state’s firearms expert, the gun was in good working order and had a normal trigger pull, which meant that “you have to physically pull this trigger to discharge the weapon.” In addition, the expert testified that the gun had a loaded chamber indicator and a cocked indicator, which make it “pretty obvious [when] this weapon is cocked and loaded and ready to fire.”

On the other hand, defendant testified that after Deverrick Johnson knocked Isaac Bush to the ground and the gun spilled out of his friend’s jacket, he picked up the weapon because it threatened everyone. Defendant testified that he had not brought the gun up all of the way and had not fully extended his arm when the weapon discharged accidentally. However, because he and Lionel Crain were approximately the same height, defendant could not account for how the bullet | ¿traveled left to right through the victim’s head on an essentially flat trajectory. Nevertheless, defendant denied aiming the gun at Crain and he testified that the victim was advancing on him, perhaps in an attempt to grab the weapon for himself, when the gun discharged.

At the close of the evidence, the trial court remarked on the “utterly, totally stupid, waste of not one life now .... one definitely gone ... another one that’s potentially gone forever,” and found defendant guilty of the lesser offense and responsive verdict of manslaughter. The court thereby spared defendant from a mandatory life sentence at hard labor without parole that would result from a conviction for second degree murder. La. R.S. 14:30.1(B). However, when it turned to sentencing, the court did not lose sight of the fact that defendant had claimed a human life under circumstances for which only the recklessness and immaturity of youth could account. The court thus noted at sentencing that, “We’re talking about some marijuana and a one dollar cigar,” and that, while “we have a sixteen-year-old tried as an adult,” 16-year-old juveniles:

still think with sixteen-year-old brains. They don’t think with thirty-year-old brains. If they thought with forty-or fifty-year-old brains, they wouldn’t be fighting over a one dollar cigar with marijuana. But a life was lost, a young life that was a value to the people who loved him, and he lost his chance. So I don’t take it lightly at all. I think a sentence which will serve the purpose of justice in this matter, and ... because any lesser sentence ... would deprecate the seriousness of the crime, is thirty years at hard labor.

On appeal, defendant not only challenged his sentence but also argued that the evidence did not support the court’s verdict of manslaughter or any other responsive verdict because the only rational interpretation of the evidence at trial was that he retrieved the gun to insure that no one got hurt and that the weapon then discharged accidentally. Lewis, 08-1317 at 8, 16 So.3d at 390. Addressing that argument first, the court of appeal agreed with the state that because the | r,evidence at trial was sufficient to prove the charged offense of second degree murder, a specific intent homicide, it was also sufficient to support a conviction for manslaughter. In that regard, the court of appeal followed settled jurisprudence that specific intent to kill may be inferred from the act of pointing a gun and firing at a person in close proximity. See, e.g., See State v. Tassin, 536 So.2d 402, 411 (La.1988)(pointing and firing a gun at point-blank range supports an inference of specific intent to kill); State v. Noble, 425 So.2d 734, 736 (La.1983)(same). The court of appeal also applied the settled rule on review of the sufficiency of evidence that “the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on his discretion to the extent necessary to guarantee the fundamental protection of due process of law.” Lewis, 08-1317 at 10, 16 So.3d at 391 (citing State v. Mussall, 523 So.2d 1305, 1309 (La.1988)). Thus, with respect to whether defendant aimed and fired the gun deliberately at the victim’s head from close range, as Derrick Johnson and Isaac Bush testified, or accidentally before he brought the weapon all of the way up, as defendant claimed, the Fifth Circuit could not say that the trial court “was clearly wrong in its evaluation of the witnesses’ testimony and its credibility call.” Id., 08-1317 at 13, 16 So.3d at 392. Given that factual premise, the majority concluded that although defendant did not claim at trial that he had been provoked and fired in the heat of passion, or make any claim on appeal that the evidence otherwise revealed those essentially mitigatory factors which may reduce the degree of a homicide from murder to manslaughter, State v. Lombard, 486 So.2d 106, 110 (La.1986), the evidence at trial supported the verdict of manslaughter because it could have sustained a verdict for second degree murder defined as a specific intent homicide. Lewis, 08-1317 at 10, 16 So.3d at 391 (“When a defendant does not object to a legislatively responsive verdict, the defendant’s conviction will not be reversed, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged.”) (citing State ex rel. Elaire v. Blackburn, 424 So.2d 246, 252 (La.1982)).

On the other hand, the majority on the court of appeal panel found that the record did not support the trial court’s decision to impose a sentence of 30 years at hard labor. The majority conceded at the outset that “[o]n appellate review of sentence, the only relevant question is ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” Lewis, 08-1317 at 15, 16 So.3d at 394 (quoting State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608) (per curiam). However, after conducting a “representative sampling” of cases in which an initial charge of second degree resulted in a conviction for manslaughter, the majority concluded that “[i]n those cases involving a gun, where the courts upheld sentences in the 29 to 40-year range, the circumstances of the crime were more shocking than the defendant’s offense.” Lewis, 08-1317 at 19, 16 So.3d at 396. The majority thus determined that “sentences within the 30-year range or higher are constitutionally acceptable for more serious offenders with less chance of rehabilitation.” Id., 08-1317 at 21, 16 So.3d at 397. Defendant did not belong among those offenders, the majority observed, because there was no evidence of premeditation or “of a plan, scheme, motive, or specific intent formed before the defendant picked up the gun during the fight.” Id., 08-1317 at 21, 16 So.3d at 397. In addition, as opposed to other cases in which the offender fired multiple shots into the victim or fired randomly and wantonly into a crowd of people, id., 08-1317 at 18, 16 So.3d at 395 (citing Instate v. Jones, 05-0735, pp. 10-11 (La.App. 5th Cir.2/27/06), 924 So.2d 1113, 1118-19 (defendant shot victim four times in the face and then fled the state), writ denied, 07-0151 (La.10/26/07), 966 So.2d 567; State v. Weatherspoon, 06-0539, p. 33 (La.App. 5th Cir.12/12/06), 948 So.2d 215, 235-36 (16-year-old offender fired several shots into a crowd killing a 14-year-old boy), writ denied, 07-0462 (La.10/12/07), 965 So.2d 398), in the present case defendant fired only a single shot. Moreover, defendant had no history of violence or any other juvenile offenses. “Given these factors, as well as other cases speaking to this subject,” the majority concluded, “the trial judge abused his discretion in sentencing the defendant to a sentence that was 10 years short of the maximum.” Id., 08-1317 at 21-22, 16 So.3d at 397. The court of appeal thus vacated the sentence, remanded for resentencing, and, in effect, directed the court to impose a sentence not greater than 20 years imprisonment at hard labor.

Dissenting in part, Judge Rothschild, agreed with the majority in affirming defendant’s conviction for manslaughter but disagreed with the decision to vacate defendant’s sentence and remand for resen-tencing. Judge Rothschild found no abuse of the trial court’s sentencing discretion, in large measure for the same reason that he agreed in affirming defendant’s conviction. As the majority had also found, “the evidence presented at trial supported a verdict of second degree murder, which carries a mandatory life sentence. La.R.S. 14:30.1” Lewis, 08-1317 at 2, 16 So.3d at 398 (Rothschild, J., dissenting in part).

We agree with Judge Rothschild that the proper perspective from which to approach sentence review in the present case accords paramount importance to the nature of the conduct proved at trial. While comparative proportionality review taking into account sentences imposed in other similar cases is a ^component of sentence review under La. Const, art. I, § 20, such review serves only to “set[ ] the stage” for the “later inquiry into the nature of the offender and the offense.” State v. Telsee, 425 So.2d 1251, 1254 (La.1983). In considering the nature of the offense, both the trial court and reviewing court may assess whether the crime for which defendant has been convicted adequately describes his conduct when the conviction is for a lesser included responsive offense to the crime charged. State v. Landos, 419 So.2d 475, 478 (La.1982)(“In a case such as this, where the offense to which the defendant has pled guilty inadequately describes his conduct, we find no abuse of the trial court’s great discretion in imposing the maximum sentence possible for the crime to which the guilty plea is entered.”); see also State v. Stevens, 06-0818, p. 5 (La.App. 3rd Cir.1/31/07), 949 So.2d 597, 601 (quoting Lanclos); State v. Waguespadc, 589 So.2d 1079, 1086 (La.App. 1st Cir.1991)(same). This general sentencing principle accommodates Louisiana’s responsive verdict scheme which provides the fact finder, ordinarily a jury in felony cases, the discretion to return verdicts for lesser included offenses against the weight of the evidence presented at trial. State v. Porter, 93-1106, p. 4 (La.7/5/94), 639 So.2d 1137, 1140 (“Treating the jury’s prerogative to return a responsive verdict similar to the jury’s power of nullification, this court has consistently held that the jury must be given the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged offense.”).

In the present case, the fact finder was the trial court, not a jury, and its remarks in returning the verdict of manslaughter reflected its awareness that its verdict would have profound sentencing consequences, as the charged offense of second degree murder carried a mandatory sentence of life imprisonment without 19benefit of parole, probation, or suspension of sentence. That awareness prompted its remark that one life had already been lost and another (ie. defendant’s) hung in the balance. It also apparently prompted the court’s return of a verdict for the lesser offense of manslaughter, thereby accounting for the differences between the brain of a 16-year-old and an adult which may result in different degrees of culpability for the same act. Cf. Graham v. Florida, 560 U.S. —, —, 130 S.Ct. 2011, 2026, 176 L.Ed.2d 825 (2010) (“[Bjecause juveniles have lessened culpability they are less deserving of the most severe punishments .... [Developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.”).

However, the circumstances surrounding the death of Lionel Crain clearly did not compel that result. Mutual combat between two willing antagonists resulting in the death of one of the participants may reduce the culpability of the offense from murder to manslaughter. Lombard, 486 So.2d at 110; see also W.R. LaFave, A.W. Scott, Substantive Criminal Law, § 7.10, pp. 256-57 (1986) (“Where two persons willingly engage in mutual combat, and during the fight one kills the other as the result of an intention to do so formed during the struggle, the homicide has long been held to be manslaughter, and not murder, the notion being that the suddenness of the occasion, rather than some provocation by the victim, mitigates the intentional killing to something less than murder.”); cf. 18 U.S.C. § 1112(a) (defining voluntary manslaughter as the unlawful killing of a human being without malice “[u]pon a sudden quarrel or heat of passion”). Even then, the common law doctrine of “sudden quarrel,” or “chance medley,” as a ground for reducing murder to manslaughter presupposed that neither side sought or took an undue advantage, and in any event did not apply to interve-nors taking up the cause |inof one of the participants. See United States v. Martinez, 988 F.2d 685, 691-96 (7th Cir.1993)(discussing evolution of common law manslaughter, the origins, development, and demise of the “chance medley” doctrine, and the evolution of the heat of passion doctrine defining voluntary manslaughter as a lesser degree of homicide than murder).

In the present case, as described by Deverrick Johnson, the -victim appeared all too willing to fight anybody over the dollar cigar as he ripped off his t-shirt before challenging Isaac Bush to a fistfight. However, in the melee that followed, defendant was not a combatant but a bystander. Defendant acknowledged in his testimony that Lionel Crain did nothing to provoke him, either by hitting him or his lifelong friend, Isaac Bush, as Bush grappled with Deverrick Johnson. Lionel Crain swung at Bush but, as far as defendant could tell from his vantage point, “he ain’t never hit him.” Defendant testified that he approached the victim to make sure Crain did not “jump Isaac,” and “that’s when the gun came out.” However, his claim for what happened next, which he repeated at sentencing, that the gun fired accidentally after he scooped it off the ground, defied the weight of the evidence presented at trial, not only by the eyewitnesses on the scene but also by the state’s experts, that he held Isaac Bush’s gun up near the left temple of Crain’s head when the victim was turned slightly to the right and deliberately pulled the trigger of a weapon cocked and ready to fire, sending the bullet on a flat trajectory through the victim’s brain. Those circumstances, which were bound to increase the odds of a lethal result from a single shot, described the offense of murder, not ^manslaughter. By returning the lesser verdict of manslaughter even against the weight of the evidence that defendant committed a second degree murder, and thereby taking into account that the 16-year-old brain does not work in the same manner as an adult brain, which would presumably grasp the folly of embarking on lethal conflict over a one dollar cigar, the trial court had already accorded full weight to the mitigating circumstance of defendant’s youth when it then turned to the matter of sentence. Nevertheless, Louisiana law allowed for prosecution of defendant as an adult and thus held him accountable, and may hold him accountable, as an adult for the killing of Lionel Crain. Cf. Graham v. Florida, — U.S. at —, 130 S.Ct. at 2027 (For purposes of the Eighth Amendment, which precludes life imprisonment of a juvenile offender for any crime other than murder, “[tjhere is a line between homicide and other serious violent offenses against the individual.”)(internal quotation marks and citation omitted). Viewed from this perspective, the trial court’s sentence of 30 years imprisonment at hard labor may be only 10 years short of the maximum term of imprisonment for the offense of manslaughter for which defendant has been convicted but it falls far short of the life term which the Louisiana legislature has deemed adequate to describe the moral culpability of his conduct.

We therefore find no abuse of its broad sentencing discretion by the trial court in determining that a term of imprisonment less than 30 years at hard labor would deprecate the serious of the offense. The penalty imposed by the court is not grossly disproportionate to the offense in which the victim was killed; nor does it constitute a needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980); cf. Graham, — U.S. at —, 130 S.Ct. at 2028 (“A sentence lacking any legitimate penological justification is by its nature | ^disproportionate to the offense.”). Accordingly, the decision of the court of appeal is affirmed to the extent that it upholds defendant’s conviction for manslaughter but reversed insofar as it vacates the sentence imposed by the trial court. Defendant’s sentence of 30 years imprisonment at hard labor is reinstated and this case is remanded to the trial court for execution of sentence.

DECISION OF COURT OF APPEAL AFFIRMED IN PART REVERSED IN PART; DEFENDANT’S SENTENCE REINSTATED; CASE REMANDED.

      . Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . At sentencing, the victim’s father, Keith Zarders, read a prepared statement into the record in which he recalled his reaction when he and his wife received a call from the school principal that his son had been shot, that it did not look good, and that they should meet him at the hospital. "Being an ex-deputy and military member at the time,” Mr. Zarders explained, “I was wondering where he was shot because being trained in that field of work you're trained to shoot center mass.... I remember saying, Please, God, let it be anywhere but the head. Lionel, being eighteen years old, I felt any other wound, he could sustain.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Terrence Roshun SCOTT.
    No. 2009-K-1658.
    Supreme Court of Louisiana.
    Oct. 22, 2010.

      James D. Caldwell, Attorney General, Walter P. Reed, District Attorney, Kathryn W. Landry, Special Appeal Counsel, for applicant.
    Carll Andrew Perkins, for Respondent.
   PER CURIAM.

|¶ The state charged defendant by bill of information with possession of cocaine with intent to distribute, in violation of La.R.S. 40:967(A)(1), and with the illegal carrying of weapons while in possession of marijuana, in violation of La.R.S. 14:95(E). After trial by jury in May, 2008, defendant was found guilty on the responsive verdicts of attempted possession of cocaine with intent to distribute' and attempted illegal carrying of weapons while in possession of marijuana. The trial court sentenced defendant to concurrent terms of five years imprisonment at hard labor, with two years suspended. On the conviction for attempted possession of cocaine with intent to distribute, the court ordered that defendant serve two years of the executory three-year term of imprisonment without parole, probation, or suspension of sentence. On the conviction for attempted illegal carrying of weapons while in possession of marijuana, the court ordered that defendant serve the entire three-year ex-ecutory term without parole, probation, or suspension of sentence.

¡ ^Defendant appealed and the First Circuit reversed his convictions and sentences after finding that the trial court erred in admitting other crimes evidence and that the error was not harmless. State v. Scott, 08-2418 (La.App. 1st CirR/19/09), 20 So.3d 1089. Specifically, the court of appeal determined that evidence of three prior cocaine transactions ostensibly conducted by defendant in the month which preceded the police raid on the residence in which he was arrested did not form part of the res gestae of the charged crimes and otherwise “had no independent relevancy besides showing a criminal disposition.” Scott, 08-2418 at 8, 20 So.3d at 1095. We granted the state’s application to review that decision, and for the following reasons, we reverse the court of appeal and reinstate defendant’s convictions and sentences.

On the afternoon of April 25, 2007, a combined task force drawn from the Slidell Police Department, including a SWAT team, and the St. Tammany Parish Sheriffs Office, descended on the residence located at 864 Hailey Avenue in Slidell armed with a search warrant for the premises. As detailed in the warrant application and in the evidence presented jurors at trial, the police acted on the basis of three prior sales of rock cocaine they had conducted at the residence on March 13, April 24, and April 25, 2007, the last one occurring shortly before a magistrate authorized the search. Slidell Police Officer Fred Ohler observed the first transaction conducted on March 13, 2007, and St. Tammany Parish Sheriff Office’s Detective Daniel Chauvin conducted the second and third transactions using the same female confidential informant. During the March 13 and April 24 transactions, the officers sat parked in the driveway of the residence in unmarked ears and observed their informant exchange currency for a single rock of cocaine at the doorway which connected the carport of the home with the master bed room. RBoth officers positively identified defendant as the seller. On April 25, Detective Chauvin again parked in the driveway but on this occasion the informant went into the house and the officer could not see what transpired. However, the informant was wired for sound and Chauvin eavesdropped on a conversation in which the informant asked for a second delivery of cocaine and was told that she would receive a cellular phone call within 20 to 30 minutes to confirm that narcotics were available. When the informant returned to the officer’s unmarked police unit, she gave him a rock of cocaine and told him that it came from defendant.

Shortly thereafter, the SWAT team burst through the front door of the residence and found defendant in the master bedroom next to the carport. The officers also found Darlene Charles and two small children in the living room. After securing defendant, the officers searched the master bedroom and found a rock of cocaine wrapped in a plastic baggie on the head board of the bed and some unpack-aged marijuana lying on the bed. Next to the bed, on a fold-up table, the officers observed a box of sandwich bags and two razor blades which appeared coated with a white residue. On the floor next to the bed, they found a wireless phone bill in defendant’s name at the Hailey Street address. In addition, the officers retrieved a small handgun sandwiched between the mattress and box springs of the bed. In a spare room, the officers found on the top shelf of a closet a box filled with currency and several grams of crack cocaine wrapped in plastic. In a pair of sneakers on the floor of the closet, the officers discovered a second semi automatic handgun, fully loaded and with a round chambered. Sergeant Ohler testified that when confronted with this evidence, defendant did not admit to possession of either the drugs of the handguns, but informed the officer that he would “take the ride on this.”

14According to Officer Ohler, the single rock of cocaine found on the head board “was packaged [in] the way that on previous occasions that people have actually distributed crack cocaine to me.... They just basically use the corner of [a normal plastic sandwich bag], tie off the top, and use that.” On the other hand, the officer conceded that a piece of cocaine rolled up in that manner could also have been for personal use. However, the police failed to find in the residence a crack pipe or any other narcotics paraphernalia associated with the smoking of crack cocaine and the officer apprised jurors that the box of sandwich bags on the fold-out table and the razor blades coated with a residue were also consistent with the packaging of cocaine for distribution. As for the cocaine in a shoe box in the spare room, Sergeant Ohler thought the amount “was definitely in my opinion more than [for] personal use.” Although the warrant did not name the owner or occupant of the premises, in his opinion, the wireless phone bill found on the floor of the master bed room “places [defendant] as living there.”

That conclusion, among other opinions offered by the officer, was hotly disputed by Peggy Rudolph, defendant’s sometime girlfriend. According to Ms. Rudolph, she lived at the Hailey Street residence with her four children, including her 20-year-old son, James Rudolph. Peggy Rudolph testified that defendant lived elsewhere in Slidell but would visit her on Hailey Street. Defendant had obtained a cellular telephone for her to use but she paid the bill which, she conceded, came to the Hai-ley Street residence addressed in his name. On April 25, 2007, Rudolph left two of her children in the care of her sister’s friend, Darlene Charles, who had been living there for several days, and went to visit her father confined in the Covington city jail. Worried about her babysitting arrangement with Charles, Rudolph called defendant and asked him to check on her children. Rudolph |Ktestified that she knew nothing about the alleged drug trafficking from her home and told jurors that the gun found in the sneakers on the floor of the spare room closet belonged to Jermaine Cannard, who had been living in the house on March 13, 2007, along with her 20-year-old son who used the spare room.

Defendant also testified and told jurors that he had arrived on Hailey Street barely 10 minutes ahead of the police and that he had had time only to turn on the television and serve himself some chips and dip before the SWAT team burst through the front door. According to defendant, one SWAT member struck him in the jaw when the officers mistook the dip in his mouth for cocaine they thought he might be trying to conceal or destroy. He flatly denied conducting any cocaine sales on March 13, April 24 or April 25, 2007. Defendant also denied possession of the firearms and making any statement to the officers that he would “take the ride.” Defendant confirmed Rudolph’s account for how she acquired a cell phone and why the bill for it came to Hailey Street with his name on it although he lived elsewhere in Slidell. “The 25th I was called there,” he explained to jurors, “and I was there, and I hate I ever came that direction, because wouldn’t none of' this be going on right now if I wouldn’t have pulled in that driveway, and I wouldn’t be the one sitting here right now.”

Amplifying on that statement, defense counsel argued to jurors at the close of the case that defendant was “what you call on the street, a duck. A person who was set up. Not necessarily by the police but he was set up.” The confidential informant’s wire had picked up several voices during the April 25 transaction inside 864 Hailey and counsel suggested to jurors that two of the voices belonged to Rudolph and her 20-year-old son. “[B]ut all of a sudden,” counsel argued, “Peggy goes to the jail .... [her son] leaves, and she makes a call to her baby’s | fidaddy. We’ve left the kids all alone. Come on over to the house. He gets to the house, ten minutes after he’s there, the door comes crashing in.” Counsel did not dispute that prior drug sales occurred at the residence but challenged jurors to consider on the basis of the recordings made from the informant’s wire as she took delivery of the cocaine whether defendant, or Peggy Rudolph’s adult son, had conducted the transactions.

The state first mentioned the prior sales at the Hailey Street residence during its opening remarks outlining what jurors would hear in the course of the trial. At the close of the prosecutor’s remarks, defense counsel moved for a mistrial on grounds that defendant was “not on trial for any distributions” and that the defense had not received prior notice of the state’s intent to introduce the evidence. In arguing the motion, the state observed that the prior sales were part of the case, “one of the probable causes to go in the house,” and that the crimes were “also part of the intent-part of the res gestae.” The trial court denied the motion without giving any reasons but in its general charge at the close of the case, the court instructed jurors that “[t]he sole purpose which such evidence may be considered is whether it tends to show, that the accused possessed the requisite specific intent to commit a crime on a later occasion, or to show such thing[s] as motive, opportunity, preparation, plan, or absence of mistake or accident.”

On appeal, the First Circuit concluded on the basis of its review of the record that the state had in fact given the defense pretrial notice in discovery of its intent to use other crimes evidence. However, particularly with regard to the first sale which “occurred almost one and a half months prior to the execution of the search warrant,” the court of appeal determined that the state had failed to establish for purposes of Louisiana’s broad res gestae doctrine that “the ‘other 17crimes’ were necessary incidents or immediate concomitants of the charged offenses, or that it formed, in conjunction with the charged offenses, one continuous transaction.” Scott, 08-2418 at 8, 20 So.3d at 1095. The state thereby had failed to show that the other crimes “were related and intertwined with the charged offenses to such an extent that the State could not have accurately presented its case without reference to them.” Id. (citing State v. Addison, 551 So.2d 687, 691-92 (La.App. 1st Cir.1989), writ denied, 573 So.2d 1116 (La.1991)). The court of appeal further found that given the defense of the case, which “it would seem, amounted to nothing more than a blanket denial of [defendant] being in possession of drugs or the gun,” and “[i]n the absence of a defense that the act was done without knowledge of the illegality of the substance, or that, while he may have possessed the drugs, there was no intent to distribute them,” intent and guilty knowledge “were not genuine matters at issue herein.” Id. (citing State v. Frederick, 340 So.2d 1353, 1355 (La.1976)). As there was no other independently relevant basis for admitting the evidence, e.g., identity, the First Circuit concluded that the trial court erred in admitting evidence of the three prior cocaine sales and that the error was not harmless. Scott, 08-2418 at 9-10, 20 So.3d at 1096 (“Since the defendant made no inculpatory statements upon his arrest, and since several other people were living in the house during the time period of the drug sales, including two other men besides the defendant, it cannot be ruled out that the jury decided the defendant was a bad man who had committed other drug offenses in the past. Both of the jury’s responsive verdicts of the attempted charged offenses seem to suggest the lack of a strong evidentiary case presented by the State.”) (citation omitted).

|8We need not address here the court of appeal’s finding that all three of the prior drug transactions, even the one occurring on April 25, 2007 shortly before execution of the search warrant at the Hailey Street address, did not form integral components of the charged offenses such that “ ‘the purpose served by admission of other crimes evidence [was] not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). Even assuming, arguendo, that the three prior sales at the Hailey street address did not form part of the res gestae, they were plainly relevant to the question of whether defendant, assuming further that he had actual or constructive possession of the contraband in the residence, intended to distribute the cocaine, an essential element of the offense charged. State v. Elzie, 343 So.2d 712, 714 (La.1977) (“[T]o convict the accused the state was required to prove beyond a reasonable doubt not only that he possessed the cocaine found on his premises, but also that he did so with the specific subjective intention of possessing it in order to distribute it.”); see, e.g., State v. Knighten, 07-1061, pp. 1-2 (La.11/16/07), 968 So.2d 720, 721 (evidence of prior sales to informant admissible to prove an essential element of the crime charged, possession of marijuana with intent to distribute); State v. Grey, 408 So.2d 1239, 1241-42 (La.1982) (same). The prior sales at the Hailey Street address provided jurors with an evidentiary basis for assessing Sergeant Ohler’s opinion that even the single rock of cocaine found wrapped in plastic on the headboard of the bed in the master bedroom where the police arrested defendant was intended for sale, as was the cocaine found in the spare room closet, as evidenced also by the box of plastic baggies and razor blades ^observed on the fold-out table next to the bed, and by the absence of any paraphernalia associated with the smoking of crack cocaine in the home. See State v. Hearold, 603 So.2d 731, 735 (La.1992)(factors in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance include: (1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution; (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in defendant’s possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute) (citing State v. House, 325 So.2d 222 (La.1975)).

To this extent, the court of appeal erred in relying on our decision in Frederick, which involved distribution of marijuana, an offense in which “[t]he requisite general criminal intent is established by mere proof of the voluntary distribution.” Frederick, 340 So.2d at 1355. In the present case, and unlike the circumstances in Frederick, the question of whether defendant held the cocaine for sale was a “real and genuine matter[] at issue, independent of the defendant’s general claim of innocence posed by his plea of not guilty.” Id. In addition, the court of appeal’s reliance on Addison for the proposition that the prior sales at the Hailey Street address did not form part of the res gestae, was also ultimately misplaced. The First Circuit went on to hold in Addison that the prior sale at issue, although not part of the res gestae of the charged crime of possession of pentazocine with intent to distribute, was nevertheless relevant and admissible on the question of intent, and that the prosecutor therefore did not err by referring to |10it in her opening remarks to the jury although she ultimately decided not to introduce any such evidence. Addison, 551 So.2d at 692 (citing Grey).

Evidence of the prior sales was also relevant for another purpose. Defendant sought to dissociate himself from the Hai-ley Street address to the greatest extent possible, portraying himself as a sometime visitor and thus someone who would not likely have had either actual or constructive possession of the cocaine or the firearms found in the residence. Evidence that the surveillance team had personally observed defendant at the residence on March 18 and then again a month later on April 24 underscored the opinion of Sergeant Ohler that the cellular phone bill addressed to defendant at the Hailey Street address and found on the floor of the master bedroom next to defendant on the bed where the officers found him meant that he lived there, increasing the odds that he possessed the cocaine and firearms, and thus directly contradicted the testimony offered by defendant and Peggy Rudolph and their innocent explanation for why defendant’s name appeared on the bill. See State v. Constantine, 364 So.2d 1011, 1014 (La.1978)(“Matters which are ... logically relevant to issues before the jury should not be excluded merely because they show the accused has committed other offenses.”); see also 1 McCormick on Evidence, p. 672 (5th ed., 1999, John W. Strong, ed.) (The task before the trial court in assessing the admissibility of other crimes evidence “is not merely one of pigeonholing but of classifying and then balancing.”).

Finally, although it reversed defendant’s convictions and sentences on what it perceived as error in admitting evidence of the prior drug sales, the court of appeal considered defendant’s remaining assignments of error, including one in which he complained about the state’s cross-examination of him with respect to his lnprior record. In his direct testimony, defendant acknowledged that he had been previously convicted of possession of marijuana. On cross-examination, the prosecutor used assertive questions to place before jurors evidence that the arrest leading to his conviction for marijuana had also involved a gun. Defense counsel immediately objected to the firearm reference as irrelevant and prejudicial, prompting the trial court to admonish the jury to disregard the remark. At the close of the evidence, defense counsel then moved for a mistrial “based on the questions asked by the prosecutor relating to the prior arrest for which he had not been convicted, the gun charge, that she put before the jury.” The trial court denied the motion on grounds that it had agreed with the objection and admonished the jury to disregard the reference and “that’s sufficient.” The court of appeal agreed with defendant that “whether it was a drug arrest while the defendant was carrying a gun or a gun charge subsequently dropped, the reference to an ostensible gun charge or arrest was improper.” Scott, 08-2418 at 14, 20 So.3d at 1099; cf. La.C.E. art. 609.1(B) (“Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.”). The First Circuit further determined that defendant had not invited that line of cross-examination and that the admonition by the trial court to the jury was not, in fact, sufficient to prevent a mistrial. Scott, 08-2418 at 15, 20 So.3d at 1099 (citing La.C.Cr.P. art. 772(2)). Nevertheless, because the court of appeal was reversing defendant’s convictions and sentences on other grounds, the First Circuit found that “it serves no purpose to consider this matter further.” Id., 08-2418 at 16, 20 So.3d at 1100.

| ^Reasonable jurors might well have drawn a parallel between the crime charged in the present case, the illegal carrying of a firearm while in possession of a controlled substances, to the apparent circumstances of the prior arrest involving marijuana and a gun, and thereby concluded that the reference to the firearm was to another prior crime for which defendant had not been convicted. However, we find it unnecessary to remand this case to the court of appeal to consider whether, in light of our disposition of the issue regarding evidence of the prior sales at the Hai-ley Street address, the prosecutor’s cross-examination of defendant affords an independent basis for reversing his convictions and sentences. Even assuming that the prosecutor placed inadmissible other crimes evidence before jurors regarding the prior firearm possession, and that the court’s admonition was not thus sufficient to cure the error, violations of La.C.Cr.P. art. 770(2) remain subject to harmless-error analysis. State v. Johnson, 94-1379, pp. 15-16 (La.11/27/95), 664 So.2d 94, 101 (as with any other trial error, violations of art. 770(2)are subject to harmless error analysis under the reasonable doubt standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). In the present case, despite evidence that would have sustained convictions for the charged crimes, the jury returned lesser verdicts of attempt on each count. As noted by the court of appeal, the lesser verdicts appear to reflect reservations about the strength of the state’s case that defendant had constructive possession of cocaine and the firearms. The court of appeal considered that the jury’s apparent perception of evidentiary weaknesses in the state’s case meant that the references to defendant’sjjgprior crimes could not be harmless. However, we think it clear that, at least with respect to the reference to the prior firearm possession, return of the lesser verdicts indicates the jury had not been lured by improper evidence of defendant’s character “into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650,136 L.Ed.2d 574 (1997). We therefore find that any error in denying the motion for a mistrial was harmless.

Accordingly, the decision of the court of appeal is reversed, defendant’s convictions and sentences are reinstated, and this case is remanded to the district court for execution of sentence.

DECISION OF COURT OF APPEAL REVERSED; DEFENDANT’S CONVICTIONS AND SENTENCES REINSTATED; CASE REMANDED.

      . Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . The matter of constructive possession of the firearms was of particular concern to jurors, as they interrupted their deliberations with a question to the court whether defendant had "to be aware of the presence of a firearm to be in control of a firearm.” The question led the court to give jurors an additional instruction on constructive possession, i.e., that a person "may be in constructive possession of a gun even though it is not in his physical custody if it is subject to his dominion and control.”


text:
    Eric J. ELLIOTT v. Carrie Barber ELLIOTT.
    No. 2010-CJ-2260.
    Supreme Court of Louisiana.
    Oct. 27, 2010.
   In re Elliott, Carrie Barber; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Pointe Coupee, 18th Judicial District Court Div. A, No. 35,557; to the Court of Appeal, First Circuit, No. 2010 CU 0755.

Denied.


text:
    Willard A. EASTIN, Jr., Henry Monroe, Donald D. Runge, Louis Anthony Frost, Charles K. Ohlmeyer, Iii, Robert Martin Braniff, Sr., William C. Owens, Jr. and William K. Carney v. ENTERGY CORPORATION, Richard A. Cuicchi, Albert C. King, Ramon Baulhay, William O. Van As, William Brewer, George Bartlett, Ronnie Beam, and Charles Kelly.
    No. 2010-C-2261.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Braniff Sr., Robert Martin; Carney, William K.; Eastin Jr., Willard A. et al.; Frost, Louis Anthony; Hickman, Willie; Monroe, Henry; Ohlmeyer III, Charles K.; Owens Jr., William C; Runge, Donald D.; —Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 456-981; to the Court of Appeal, Fifth Circuit, Nos. 09-CA-293, 10-C-849.

Denied. Untimely.


text:
    Willard A. EASTIN, Jr., Henry Monroe, Donald D. Runge, Louis Anthony Frost, Charles K. Ohlmeyer, III, Robert Martin Braniff, Sr., William C. Owens, Jr. And William K. Carney v. ENTERGY CORPORATION, Richard A. Cuicchi, Albert C. King, Ramon Baulmay, William O. Van As, William Brewer, George Bartlett, Ronnie Beam, and Charles Kelly.
    No. 2010-C-2252.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Braniff Sr., Robert Martin; Carney, William K.; Eastin Jr., Willard A. et al.; Frost, Louis Anthony; Hickman, Willie; Monroe, Henry; Ohlmeyer III, Charles K.; Owens Jr., William C; Runge, Donald D.; —Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 456-981; to the Court of Appeal, Fifth Circuit, No. 09-CA-298.

Denied. Untimely.


text:
    Peterson M. YOKUM, et al. v. NICHOLAS S. KARNO II, INC., d/b/a Old Opera House, et al.
    No. 2010-CC-2176.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Anderson, Polly Elizabeth; French Quarter Citizens for the Preservation of Residential Quality; Vieux Carre Property Owners, Residents & Associates Inc.; Yokum, Peterson M. et al.; —Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 09-6340; to the Court of Appeal, Fourth Circuit, No. 2010-C-0357.

Granted. For the reasons assigned by the dissenting judge, we conclude relators’ application for supervisory writs was filed timely. Accordingly, the case is remanded to the court of appeal for consideration on the merits.


text:
    SUCCESSION OF Eugene Bernard STAMM Lindsay Stamm Shapiro and Elisabeth Harris Stamm v. Mary Virginia Darmstadter.
    No. 2010-C-1896.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Darmstadter, Mary Virginia; — Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Orleans, Civil District Court Div. L, Nos. 2006-1501, 2006-12133; to the Court of Appeal, Fourth Circuit, Nos. 2009-CA-1469, 2009-CA-1470.

Denied.


text:
    ARTHUR J. GALLAGHER RISK MANAGEMENT SERVICES, INC. v. Louis Michael TODD.
    No. 2010-C-1897.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Todd, Louis Michael; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2009-3950; to the Court of Appeal, Third Circuit, No. 10-41.

Denied.


text:
    Charles McCALL v. CITY OF ALEXANDRIA.
    No. 2010-C-1900.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re McCall, Charles; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 235,808; to the Court of Appeal, Third Circuit, No. 10-82.

Denied.


text:
    Ryan GEORGE v. Horace McBRIDE, et al.
    No. 2010-C-1894.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re George, Ryan; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 07-C-2216-A; to the Court of Appeal, Third Circuit, No. 10-0042.

Denied.


text:
    Virginia PEOPLES, et ux. v. FRED’S STORES OF TENNESSEE, INC.
    No. 2010-C-1882.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Fred’s Store of Tennessee Inc.; — Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Rapides, 9th Judicial District Court Div. C, No. 221,709; to the Court of Appeal, Third Circuit, No. CA 09-1270.

Denied.


text:
    Frederick WINCHESTER v. BALTIMORE AIRCOIL COMPANY, INC., et al.
    No. 2010-C-1881.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Winchester, Frederick; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2000-11187; to the Court of Appeal, Fourth Circuit, No. 2009-CA-1672.

Denied.


text:
    CONSTRUCTION AFFILIATES, INC. v. Bonny Barry PULLEN, Wife of/and Bailey P. Pullen.
    No. 2010-C-1850.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Construction Affiliates Inc.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 2007-10225; to the Court of Appeal, First Circuit, No. 2009 CA 1418.

Denied.


text:
    Wayland EZEB v. SANDOZ PHARMACEUTICALS, State of Louisiana, Patrick Dowling, M.D., Robert H. Miles, M.D., Glenn B. Ruffin, M.D., Gregory S. Ferriss, M.D., CPC Coliseum Medical Center, Touro Infirmary, Children’s Hospital, Caremart Homecare, et al.
    No. 2010-C-1872.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Novartis Pharmaceticals Corp. F/K/A; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 92-20622; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0821.

Denied.


text:
    WOLFE WORLD, LLC, d.b.a. Wolfman Construction v. Eric STUMPF.
    No. 2010-C-1834.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Stumpf, Eric; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 07-7301; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0209.

Denied.


text:
    Christopher CORNELIUS v. DEPARTMENT OF POLICE.
    No. 2010-C-1835.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Cornelius, Christopher; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil Service Commission, No. 7508; to the Court of Appeal, Fourth Circuit, No. 2009-CA-1459.

Denied.


text:
    TEC REALTORS, INC. d/b/a Coldwell Banker Commercial TEC Realtors v. D & L FAIRWAY PROPERTY MANAGEMENT, L.L.C., Alfred B. Dempsey, and Shearn N. Lemoine.
    No. 2010-C-1841.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re D & L Fairway Property Management L.L.C. et al.; Dempsey, Alfred B. et al.; Lemoine, Shearn N.; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 2007-16706; to the Court of Appeal, First Circuit, No. 2009 CA 2145.

Denied.


text:
    Andre ALEXANDER, et al. v. The ESTATE OF Maurice B. McNEAL, et al. Althea Dupar, et al. v. The Estate of Maurice B. McNeal, et al.
    No. 2010-C-1807.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Republic Vanguard Insurance Company; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. A, Nos. 2008-1592-A, 2008-1993; to the Court of Appeal, Third Circuit, Nos. 10-66, 10-67.

Denied.

VICTORY, J., would grant.


text:
    Lisa ALFANO, et al. v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, et al.
    No. 2010-C-1809.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Lafayette City-Parish Consolidated Government et al.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. A, No. C-2008 4583 A; to the Court of Appeal, Third Circuit, No. 09-1428.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    SOUTH EAST AUTO DEALERS RENTAL ASSOCIATION, INC. v. EZ RENT TO OWN, INC.
    No. 2010-C-1810.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re EZ Rent To Own, Inc.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2007-694; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0011.

Denied.


text:
    Angela LEONARDS v. CARMICHAEL’S CASHWAY PHARMACY, INC.
    No. 2010-C-1738.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Carmichael’s Cashway Pharmacy, Inc., et al.; Louisiana Retailers Mutual Insurance Company; —Defendant(s); Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation, District # 04, No. 07-05204; to the Court of Appeal, Third Circuit, No. 09-1424.

Denied.

VICTORY, J., would grant.


text:
    Kathleen C. PFEFFERLE, et al. v. HAYNES BEST WESTERN OF ALEXANDRIA, et al.
    No. 2010-C-1582.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Evanston Insurance Company; Haynes Best Western of Alexandria, et al.; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Rap-ides, 9th Judicial District Court Div. F, No. 226,737; to the Court of Appeal, Third Circuit, No. 09-999.

Denied.

VICTORY, GUIDRY and CLARK, JJ., would grant.


text:
    Alisa SIMON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 2010-C-1613.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Nondestructive and Visual Inspection, Inc.; Poche, Travis; State Farm Mutual Automobile Insurance Company, et al.; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Calca-sieu, 14th Judicial District Court Div. D, No. 2003^4288; to the Court of Appeal, Third Circuit, No. 09-1083.

Denied.

VICTORY, J., would grant.


text:
    Tasha TINGLE, et al. v. AMERICAN HOME ASSURANCE COMPANY, et al. Levi J. Tingle, et al. v. American Home Assurance Company, et al.
    No. 2010-C-1580.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Tingle, Tasha et al.; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, Nos. 2006-5168, 2007-1073; to the Court of Appeal, Third Circuit, Nos. 10-71,10-72.

Denied.


text:
    Tasha TINGLE, et al. v. AMERICAN HOME ASSURANCE COMPANY, et al. Levi J. Tingle, et al. v. American Home Assurance Company, et al.
    No. 2010-C-1578.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Tingle, Levi J. et al.; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, Nos. 2007-1073, 2006-5168; to the Court of Appeal, Third Circuit, Nos. 10-72,10-71.

Denied.


text:
    Tasha TINGLE, et al. v. AMERICAN HOME ASSURANCE COMPANY, et al. Levi J. Tingle, et al. v. American Home Assurance Company, et al.
    No. 2010-C-1564.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re G.B. Boots Smith Corp.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, Nos. 2007-1073, 2006-5168; to the Court of Appeal, Third Circuit, Nos. 10-72,10-71.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    Tasha TINGLE, et al. v. AMERICAN HOME ASSURANCE COMPANY, et al. Levi J. Tingle, et al. v. American Home Assurance Company, et al.
    No. 2010-C-1563.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Montgomery, Brian S.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, Nos. 2006-5168, 2007-1073; to the Court of Appeal, Third Circuit, Nos. 10-71,10-72.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    Tasha TINGLE, et al. v. AMERICAN HOME ASSURANCE COMPANY, et al. Levi J. Tingle, et al. v. American Home Assurance Company, et al.
    No. 2010-C-1562.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Colony National Insurance Co.; — Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, Nos. 2007-1073, 2006-5168; to the Court of Appeal, Third Circuit, Nos. 10-71,10-72.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    STATE of Louisiana v. Michael WOODS.
    No. 2010-KO-0784.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Woods, Michael; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 07-4163; to the Court of Appeal, Fifth Circuit, No. 09-KA-399.

Denied.


text:
    STATE of Louisiana v. Mason GODFREY.
    No. 2010-K-0758.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 16,993-05; to the Court of Appeal, Third Circuit, Nos. 08-828, 08-1231.

Denied.


text:
    STATE of Louisiana v. Jason REYNOLDS.
    No. 2010-K-0738.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Reynolds, Jason; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 477-726; to the Court of Appeal, Fourth Circuit, No. 2009-KA-1287.

Denied.


text:
    STATE of Louisiana v. Keith BARTHELEMY.
    No. 2010-KO-0706.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Barthelemy, Keith; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 434-488; to the Court of Appeal, Fourth Circuit, No. 2009-KA-0391.

Denied.


text:
    STATE of Louisiana v. Joseph D. DEE.
    No. 2010-KO-0705.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Dee, Joseph D.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 08-609; to the Court of Appeal, Fifth Circuit, No. 09-KA-712.

Denied.


text:
    STATE of Louisiana v. Robert Darnell QUEEN, Sr.
    No. 2010-KO-0625.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Queen Sr., Robert Darnell; — Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Terrebonne, 82nd Judicial District Court Div. E, No. 454,133; to the Court of Appeal, First Circuit, No. 2009 KA1373.

Denied.


text:
    STATE ex rel. Broadus Darneal DAVIS v. STATE of Louisiana.
    No. 2009-KH-2496.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Davis, Broadus Darneal; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Sabine, 11th Judicial District Court Div., No. 63500B; to the Court of Appeal, Third Circuit, No. 09-72.

Denied.


text:
    Derrick L. WASHINGTON v. Richard L. STALDER, Secretary Department of Public Safety and Corrections, Division of Probation and Parole.
    No. 2009-CI-2446.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Washington, Derrick L.; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 558,065; to the Court of Appeal, First Circuit, No. 2008 CA 2393.

Denied.


text:
    STATE ex rel. Larry McKinley CLAIBORNE v. STATE of Louisiana.
    No. 2009-KH-2433.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Claiborne, Larry McKinley; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 05-06-0579; to the Court of Appeal, First Circuit, No. 2009 KA 0597.

Denied.


text:
    Gina SWIFT v. JUVENILE COURT, Mrs. Emma Hamer, Mr. John Hamer, Kimberly Morgan, and Attorney General(’s) Office.
    No. 2010-C-1139.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Swift, Gina; —Plaintiff(s); Applying for Reconsideration of this Courts action dated September 17, 2010; Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. C545665; to the Court of Appeal, Third Circuit, No. 09-1182.

Reconsideration not considered. See Louisiana Supreme Court Rule IX, section 6.


text:
    J-W POWER COMPANY v. STATE of Louisiana Through The DEPARTMENT OF REVENUE & TAXATION.
    No. 2010-C-1598.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Bridges Secy., Cynthia; Louisiana State of et al.; Revenue and Taxation Dept. of; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 530,238; to the Court of Appeal, First Circuit, No. 2009-CA-23B0.

Granted.


author: DREW, J.

text:
    Raymond L. FAIRCLOTH, Plaintiff-Appellant v. Diane J. FAIRCLOTH, Defendant-Appellee.
    No. 45,673-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.
    Hammer & Huckabay, LTD (A.P.L.C.) by Charles H. Hammer, III, for Appellant.
    Jack W. Slaid, Attorney at Law, L.L.C. by Jack W. Slaid, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   DREW, J.

|, Raymond Faircloth appeals the granting of a judgment in favor of his former wife, Diane Faircloth, annulling a default judgment that partitioned some of their community property.

We affirm.

FACTS

On January 18, 2007, Raymond filed a petition in Bossier Parish for a La. C.C. art. 103(1) divorce and for partition of community property. The order attached to the petition directed the parties to file a sworn detailed descriptive list within 45 days, and then to concur with or traverse the other party’s detailed descriptive list within 60 days of the date of service of the last filed detailed descriptive list.

Domiciliary service of the petition was made on Diane’s daughter in Bienville Parish on February 7, 2007. A preliminary default was entered on May 18, 2007. The divorce was granted by a default judgment that was confirmed on May 24, 2007. Service of that judgment was made by domiciliary service on Diane’s mother in Bien-ville Parish on June 5, 2007.

Raymond filed his detailed descriptive list on July 12, 2007. On that same date, a preliminary default judgment concerning the partition of community property and settlement of claims was confirmed. This judgment was signed on July 20, 2007. Raymond was awarded- the ownership of the matrimonial domicile and two vehicles, and he was made responsible for the debts on the home and the vehicles. Raymond was also | ¡.made responsible for the debt on a credit card. The judgment did not affect any interest that either party may have in the other party’s retirement plan.

Domiciliary service of the judgment confirming the default on the partition was made on Diane’s mother in Bienville Parish on July 31, 2007. On July 21, 2008, Diane filed a petition to annul the July 20, 2007, judgment. She contended that the partition did not comply with La. R.S. 9:2801 because Raymond’s detailed descriptive list was not submitted within 45 days of the filing date of the petition for partition, as ordered by the trial court. She further contended that prior to the confirmation of the default she was not served with Raymond’s detailed descriptive list or given the opportunity to concur or traverse it in accordance with La. R.S. 9:2801(A)(2).

Raymond answered the petition to annul. He also filed the exception of no cause of action, in which he noted that when he propounded an interrogatory asking Diane why she had not filed an answer or participated in the partition proceeding, she responded that all documents were in Raymond’s personal safe.

On March 11, 2009, the trial court granted the petition to annul and denied Raymond’s exception. Raymond filed a motion for new trial, which was denied. Raymond now appeals.

^DISCUSSION

At issue is whether the default judgment was valid even though Raymond failed to comply with the provisions of La. R.S. 9:2801.

La. R.S. 9:2801 sets forth the procedure through which community property is partitioned when the spouses cannot agree on partition of the community property. It provides in relevant parts:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules:
(l)(a) Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. For good cause shown, the court may extend the time period for filing a detailed descriptive list. If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown, extend the time period for filing a sworn detailed descriptive list. If the court grants the request, no traversal shall be allowed.
(b) Each party shall affirm under oath that the detailed descriptive list filed by that party contains all of the community assets and liabilities then known to that party. Amendments to the descriptive lists shall be permitted. No inventory shall be required.
(2) Within sixty days of the date of service of the last filed detailed descriptive list, each party shall either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party. For good cause shown, the court may extend |-4the time period for a party to traverse or concur in the detailed descriptive list of the other party. The trial of the traverses may be by summary procedure. At the trial of the traverses, the court shall determine the community assets and liabilities; the valuation of assets shall be determined at the trial on the merits. The court, in its discretion, may by ordinary procedure try and determine at one hearing all issues, including those raised in the traverses.

Raymond argues that because Diane failed to file an answer, he was not obligated to comply with La. R.S. 9:2801 before having the community property judicially partitioned through a default judgment. In making his argument, he relies on Strickland v. Strickland, 44,185 (La.App.2d Cir.4/8/09), 7 So.3d 1282, in which this court held that a suit for partition of community property could be taken up as a confirmation of a default judgment instead of by a rule to show cause. However, Strickland can be distinguished on its facts.

Rebecca Strickland filed her detailed descriptive list with her petition for partition of the community property. Mark Strickland neither answered the partition nor filed a detailed descriptive list within 45 days of service of the petition. Rebecca Strickland entered a preliminary default judgment approximately 74 days after Mark Strickland had been served, and the default judgment was subsequently confirmed. Upon receiving a copy of the judgment, Mark Strickland hired counsel who immediately filed a motion for new trial, which the trial court denied.

Here, Diane was never given an opportunity to traverse Raymond’s detailed descriptive list. Raymond did not file his detailed descriptive list|Bwith the petition. More significantly, Raymond failed to file his list within the 45-day period ordered by the court, and, in fact, filed it on the same day that the default judgment was confirmed. We note that the default judgment was confirmed by a judge other than the one to whom the matter was originally assigned. Notably, the original judge subsequently granted the petition to annul.

La. C.C.P. art. 2002(A)(2) provides that a final judgment shall be annulled if it is rendered against a defendant against whom a valid judgment by default has not been taken. Raymond did not follow the mandatory procedural requirements of La. R.S. 9:2801 by filing his detailed descriptive list timely and allowing Diane the opportunity either to concur or traverse. The preliminary default is therefore invalid. The judgment confirming the default based on an invalid preliminary default is an absolute nullity. See Bible v. Bible, 2003-2793 (La.App. 1st Cir.9/17/04), 895 So.2d 547, writ denied, 2005-1081 (La.6/17/05), 904 So.2d 700. The trial court properly granted the petition to annul.

DECREE

At Raymond Faircloth’s cost, the judgment granting the petition to annul is AFFIRMED.

      . Raymond apparently later donated one of the vehicles to Diane.

      . On June 29, 2009, Raymond filed his traversal of Diane’s detailed descriptive list, which she apparently filed after the motion for new trial was filed.

      . The order attached to the petition directed the parties to file their detailed descriptive lists within 45 days.

      . The petition asserted that Raymond was unable to file it at the time because he needed to complete discovery to determine the existence, identity, and value of community assets and liabilities.


author: LOLLEY, J.

text:
    Sammy M. HUNTER, Plaintiff-Appellant, v. JAMES MACHINE WORKS, INC., Defendant-Appellee.
    No. 45,538-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2010.

      J. Whitney Pesnell, Shreveport, Louisiana, for Appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, by Christopher S. Mann, New Orleans, Louisiana, for Appel-lee.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

h Sammy Mark Hunter appeals a judgment by the Office of Worker’s Compensation for the State of Louisiana (“OWC”), which dismissed Hunter’s claims for additional wage benefits, penalties, and attorney’s fees from his previous employer, James Machine Works, L.L.C. (“JMW”). The judgment was entered in response to JMW’s motion for the involuntary dismissal of Hunter’s claims at the close of his case. For the following reasons, we affirm the OWC’s judgment.

Facts

On June 15, 2007, Hunter, an employee at JMW, injured his left foot in a work-related accident. Shortly after the accident, JMW began paying worker’s compensation benefits to Hunter. After three weeks of benefits had been paid, JMW increased the benefits and began paying Hunter $377.44 per week, which it continues to do. Hunter claims that he informed JMW that it was miscalculating his benefits, because the information used to calculate his average weekly wages for the four week period of time immediately preceding the accident was incomplete and erroneous.

Hunter states that JMW refused to recalculate his benefits, so on August 16, 2008, he filed his Disputed Claim for Compensation with the OWC. In his claim, Hunter sought additional benefits, along with penalties and attorney’s fees. As to his wage benefits, there are two specific issues that Hunter advanced. Namely, he claimed that JMW’s wage information was inaccurate because it did not include: (1) the first 40 hours that Hunter claimed he worked for JMW between May 28 and June 3, 2007 (the third |2week of the four-week period immediately preceding the week of his injury); and (2) wages or income that Hunter earned through other employment as a result of his landscap-ingdawn service business.

The matter was set for trial on November 12, 2009. Some of the facts stipulated by the parties at the outset were:

1) Hunter was employed by JMW on the date of his accident;
2) Hunter was injured on June 15, 2007, while in the course and scope of his employment;
3) Hunter had been temporarily and totally disabled since the date of the accident until the date of the trial, and he was entitled to temporary and total disability benefits as a result; and
4) With the exception of the first three weeks following the accident, JMW had paid Hunter benefits in the amount of $377.44 per week.

At the conclusion of Hunter’s case, JMW moved for an involuntary dismissal on the grounds that Hunter had failed to prove he was entitled to relief. The OWC sustained. JMW’s motion and dismissed Hunter’s claims with prejudice, stating that Hunter had failed to carry his burden of proof. This appeal by Hunter ensued.

Discussion

Hunter brings one assignment of error on appeal, arguing that the OWC erred when it granted JMW’s motion for involuntary dismissal. He maintains that there are 19 issues presented for review, only several of which he actually briefed. Initially, Hunter argues that the OWC’s findings | sare not entitled to deference and review under the manifest error standard, because, here, the OWC’s judgment was predicated upon an erroneous interpretation and application of law.

Ordinarily, the factual findings of the OWC are subject to manifest error review. Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275, 287; Key v. Monroe City School Bd., 45,096 (La.App.2d Cir.03/10/10), 32 So.3d 1144. In this case Hunter argues that the OWC’s determination was legal error and should not be reviewed under the manifest error/clearly wrong standard of review and instead this court should apply a de novo review of this matter. We do not believe the OWC’s conclusion in this case was based on an erroneous legal interpretation and application of law. On this record, we find no basis for a de novo review and instead have applied the manifest error standard.

In the case sub judice, upon the conclusion of Hunter’s case, JMW moved for an involuntary dismissal pursuant to La. C.C.P. art. 1672(B), which states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Provided that the plaintiff has completed the presentation of his case, an involuntary dismissal may be granted in a workers’ compensation ease. Taylor v. Tommie’s Gaming, 2004-2254 (La.05/24/05), 902 So.2d 380; Dick v. B & B Cut Stone Co., L.L.C, 40,441 (La.App.2d Cir.12/14/05), 917 So.2d 1191.

A motion for involuntary dismissal requires the trial court to evaluate all the evidence presented by the plaintiff and render a decision based upon a preponderance of the evidence. Gray v. City of Monroe, 41,087 (La.App.2d Cir.05/17/06), 930 So.2d 1148. Proof by a preponderance of the evidence means that the evidence, taken as a whole, shows that the fact or cause sought to be proved is more probable than not. Crowell v. City of Alexandria, 558 So.2d 216 (La.1990); Bartley v. Fondren, 43,779 (La.App.2d Cir.12/03/08), 999 So.2d 146. A plaintiff is entitled to no special inferences in his favor, but “uncon-troverted testimony should be taken as true to establish a fact for which it is offered absent circumstances in the record casting suspicion on the reliability of the testimony and a sound reason for its rejection.” Johnson v. Insurance Co. of North America, 454 So.2d 1113 (La.1984); Bartley v. Fondren, supra. The appellate court should not reverse an involuntary dismissal in the absence of manifest error, and there is no manifest error if there is a reasonable factual basis for the finding of the trial court. Bartley v. Fondren, supra; Gray v. City of Monroe, supra.

Here, there was only one issue before the OWC, and that was the accuracy of the calculation by JMW of Hunter’s average weekly wage, which Hunter argued was incorrectly calculated for two reasons. First, he claimed that JMW had not included all of the wages he had earned for work performed at JMW during the week of May 28 to June 3, 2007. Second, he | ¡¡claimed that JMW did not include income he earned from “moonlighting” with his lawn and landscaping business during the four weeks preceding his workplace accident. After hearing Hunter’s evidence at the trial of the matter, the OWC properly granted JMWs motion for an involuntary dismissal, which finding we believe had a reasonable factual basis.

As to the claim that JMW failed to include all of Hunter’s wages for the week beginning May 28, 2007, Hunter maintains that although JMWs payroll records indicate he only worked 12.5 hours that week (notes in the payroll records indicate that he had been sick that week), he actually worked an entire 40 hour week along with several hours of overtime. On this issue, the OWC noted the following:

[H]e indicates — once again, he uses this word, “probably” worked eighteen hours overtime. I can’t deal with probabilities. I can’t rule on probabilities and I can’t rule on, “I think this is what happened.” The only thing that I can rely on is the proof that is presented to me, documentation. James Machine Works has provided me with that documentation. Their documentation shows for that week, he worked twelve and half hours. It is unfortunate, it appears that he worked full weeks and overtime all but that week, and that week is included in his computation for his average weekly wage. And so, it is unfortunate, but without the documentation, I cannot rule in his favor.

At trial, a representative of JMW, Susan Weaver, testified that its payroll records indicated the following for the week of May 28, 2007, regarding hours worked by Hunter:

Monday, no work due to Memorial Day;
Tuesday, no work, “called in”;
Wednesday, worked 4.5 and “went home sick”;
| fiThursday, no work, “sick”; and,
Friday, worked 8 hours.

Weaver testified that the payroll records were transcribed from Hunter’s original time cards, which according to company policy had been discarded after three months. Thus, according to Weaver, JMWs payroll records indicated that Hunter worked only a total of 12.5 hours for the week of May 28th, which number of hours was used to calculate Hunter’s average weekly wage as dictated by La. R.S. 23:1021(12)(a). The only evidence Hunter had to refute JMW’s documentary evidence was the testimony by him and his wife, Queenie Mae Turner Hunter, that he indeed worked a full week starting May-28, 2007, in addition to overtime hours.

To support his claim, Hunter and his wife testified that JMW issued two checks to Hunter for that week, representing his regular wages and his overtime wages. Hunter could not produce copies of the checks he claimed that JMW issued to him, with both of them recalling that Hunter gave the checks to Queenie Mae to cash. However, despite the Hunters’ recollections, JMW offered evidence of its check history, which indicated that only one check had been issued to Hunter on June 5, 2007, for the week of May 28th, and that check corresponded with the number of hours of work (12.5) as reflected on JMW’s payroll records for Hunter. Considering the evidence before the OWC — i.e., JMWs documentary payroll evidence and check history versus the Hunters’ imprecise recollections-the OWC was not unreasonable in concluding that the preponderance of the evidence did not weigh in Hunter’s favor on this issue.

[7As to the income attributed to Hunter’s landscaping business, we have no reason to doubt that prior to Hunter’s workplace accident he conducted an active lawn and landscaping business on his off-hours from JMW. Nevertheless, Hunter was unable to provide any proof (other than self-serving testimony to the contrary) of the income generated by that business, specifically for the four-week period prior to his accident. The OWC correctly noted:

He may have worked every day in lawn service between May and June. He may have earned five to six hundred dollars ... a week. He may have. But there is no documentation showing it. And whenever he testified, he always said, “probably, about, maybe,” which means it is speculative, which means he has no basis for saying that. He remembers some of the people he worked for. He thinks he worked for them on some Saturdays, some Sundays. He can’t remember how much he charged them. I can’t pick a figure out of the hat and say this is how much he earned. He has to prove how much he earned. He did not do that.

At the trial, Hunter could only offer vague descriptions of the work he performed, a handful of nebulous clients, vacillating dates of service, and unsure and varying amounts of fees paid by those clients. To make matters worse, Hunter testified that he never reported the income to the Internal Revenue Service or the Louisiana Department of Revenue. Obviously, the evidence offered by Hunter certainly did not rise to the level of proof required to dispute the calculation by JMW of Hunter’s average weekly wage, as Hunter provided barely any proof at all. Again, the OWC was not in error in concluding that Hunter failed to prove his claim by a preponderance of the evidence as to this issue.

|sHere, the only evidence offered by Hunter in support of his claim regarding the calculation of his average weekly wage was testimony by him and his wife. Unfortunately for Hunter, that evidence fell far short of the documentary evidence provided by JMW regarding its payroll for the week in question. Further, as to the lawn business, his only evidence was testimony by him and a relative who had assisted him with the landscaping work. Again, this scant and vague evidence lacked the certainty needed to prove his case. As to both issues, Hunter simply failed to prove by a preponderance of the evidence that JMW had miscalculated his average weekly wage. Therefore, the OWC was not in error in granting JMW’s motion for involuntary dismissal at the close of Hunter’s case.

Conclusion

Considering the foregoing, the judgment of the OWC granting James Machine Works’ motion- for involuntary dismissal is affirmed. All costs of this appeal are assessed to the claimant, Sammy Mark Hunter.

AFFIRMED.

      . Hunter also sought vocational rehabilitation benefits, which the OWC considered "premature” at the trial and did not further address. That issue is not on appeal.