author: EZELL, Judge.

text:
    STATE of Louisiana v. Brandy SMITH.
    No. KA 2008-1030.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      William E. Tilley, District Attorney, Thirtieth Judicial District Court, Leesville, LA, for Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Brandy Smith.
    Terry Wayne Lambright, Assistant District Attorney, Leesville, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

hOn February 19, 2008, the Defendant, Brandy Smith, was charged by bill of information as follows: counts one and three-simple burglary, violations of La. R.S. 14:62; counts two and four-theft of over $500.00, violations of La.R.S. 14:67(B)(1); and, count five-theft of a firearm valued over $500.00, a violation of La.R.S. 14:67. On April 7, 2008, the Defendant pled guilty to theft of over $500.00 in counts two and four and to the reduced charge of attempted theft of a firearm in count five. Counts one and three were dismissed pursuant to the plea agreement. Additionally, the Defendant agreed to make restitution to the Victim in counts two and four. The trial court ordered the State to verify the amount of restitution owed to the Victim within thirty days and to make sure that defense counsel was in agreement to the amount.

The Defendant was sentenced on June 24, 2008. On count two, the Defendant was sentenced to six years at hard labor, four years suspended, and he was ordered to pay a fine of $1,200.00, plus court costs. Upon release, he was to be placed on three years supervised probation, subject to the general and mandatory conditions of La. Code Crim.P. art. 895(A), in addition to the following special conditions: (1) pay fine and costs through a probation officer with a minimum monthly payment of $35.00; and (2) make restitution of $1,250.00 to the Victim, and $781.56 to the insurance company, the amount paid to the Victim for his claim. In count four, the Defendant was sentenced to six years at hard labor, four years suspended, and was ordered to pay a fine of $1,000.00, plus court costs. Upon release, he is to be placed |2on three years supervised probation, subject to the general conditions of probation and the following special conditions: (1) pay fine and costs through a pay plan with a minimum monthly payment of $30.00; and, (2) make restitution to the six victims totaling $4,925.00. In count five, the Defendant was sentenced to four years at hard labor, suspended, and was ordered to pay a fine of $500.00, plus court costs. He was placed on three years supervised probation to begin upon his release on the other sentences. His probation was subject to the general conditions of probation and the special condition that he pay the fine and costs through a pay plan, with a minimum payment of $15.00. A supervision fee of $55.00 while on active supervised probation was also ordered. The sentences on all three counts were ordered to run concurrently with each other.

A motion to reconsider sentence was filed on June 26, 2008, and summarily denied, without reasons, on June 30, 2008. The Defendant is now before this court on appeal, asserting that his sentences for the theft convictions are excessive and that the trial court erred in ordering restitution to the Victim’s insurance company in count two. The Defendant’s sentences for theft over $500.00 are affirmed. However, the provision for restitution to the insurance company as a special condition of probation in count two is vacated.

FACTS

At the Defendant’s guilty plea hearing, the State asserted that on or about July 20, 2007, the Defendant, along with another individual, entered a camp belonging to Scott Dickerson and removed property, including four-wheelers, hunting and camping equipment, farming equipment, and a utility trailer valued at approximately $9,500.00, with the intent of permanently depriving the owner of the property. Also, in July, 2007, the Defendant entered two different mobile homes, without permission]^ the owners, and removed property with a total value of approximately $4,955.00, $3,000.00 of which included nine firearms, with the intent of permanently depriving the owners of the property.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, there is one error patent which will be addressed in assignment of error number two.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the Defendant argues that the sentences imposed for the two theft charges were cruel, unusual, and excessive. Specifically, the Defendant asserts that the record contains little to no evidence that the trial court considered the mitigating and aggravating factors listed in La.Code CrimJP. art. 894.1.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

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

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

|4To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

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

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

As stated in La.R.S. 14:67(B)(1), “Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.” In the instant case, the Defendant’s six-year sentence on each count of theft is just over one-half of the maximum possible sentence, and he received only one-half of the maximum possible fine. Additionally, although the offenses were totally unrelated, the trial court opted for leniency and ordered concurrent sentences. Also, the trial court suspended all but two years of each sentence.

Moreover, the Defendant received significant benefit from his plea agreement which resulted in the dismissal of two counts of simple burglary and the reduction of theft of a firearm to attempted theft of a firearm. Prior to his plea, the Defendant faced up to twelve years, with or without hard labor, and a fine of up to $2,000.00, on each count of simple burglary. See La.R.S. 14:62(B). Additionally, his sentencing exposure for theft of a firearm was significantly reduced.

| sAt sentencing, the trial court reviewed the facts of the offenses, noting not only the theft of property, but also damage to the premises and the fact that some of the items were not recovered. Also, the Defendant urged the trial court to consider the fact that the primary reason most of the items were recovered was because he assisted police by providing information.

Next, the trial court stated for the record the factors considered in sentencing the Defendant as follows:

I considered the Article 894.1 factors and found the following were applicable. There was economic harm to the victim- or victims. There were multiple victims, as I noted, and it was significant and this makes this a little more serious because of that. If you break into someone’s house, typically there is a victim— the owner of the property. In this case because it was a deer camp among other places, the hunters congregated at the camp and so they all had them own items there that belonged to them so that compounds the problem because there’s multiple victims. It, it makes it more significant. There are no substantial grounds which would tend to excuse or justify his criminal conduct nor did he act under strong provocation. He’s twenty-eight years of age. He’s married and has one child. He is in relatively good health but has had two knee surgeries and he has been working as a worker according to the report with Grey Wolf Drilling Company. He has a high school education. He does have a prior criminal record in that on January 23rd, 2004, he committed the offense of simple battery and was given jail time that was suspended and placed on six months supervised probation. Again, on May 8th, 2007 in the 30th Judicial District Court, he was convicted of misdemeanor turkey hunting violations. He was given a fíne and jail time which was suspended and he was placed on two years supervised probation. He has a pending felony grade theft charge in the — in Newton County, Texas — or, it was pending at the time the report was done and the court’s going to note that he was on probation for the misdemeanor turkey violations at the time that these offenses were committed. I noted that there is [sic] a number of victims in this case and, quite frankly, that it’s, it’s caused some traumatization to some of the victims. One of the camps — the camp that was broken into which was privately owned, those folks are selling the camp or had put it up for sell [sic] because the man’s wife, quite frankly, didn’t want to stay there anymore — didn’t feel safe— and I can understand her feelings.

Considering the Defendant’s prior criminal history, the lack of mitigating factors in the commission of the offenses, and the benefit the Defendant received from his plea agreement, we find that the Defendant’s sentences are not excessive. | (;The Defendant did not receive near maximum sentences as claimed, and in fact, all but two years of the Defendant’s sentences were suspended. Additionally, the record clearly reflects that the trial court gave adequate consideration to the mitigating and aggravating factors in the instant case. Accordingly, the Defendant’s sentences for theft over $500.00 are affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error, the Defendant argues that the trial court erred in ordering the payment of restitution in count two to the insurance company for the amount it paid to the insured victim. In support of his argument, the Defendant refers to State v. Perez, 07-229 (La.App. 3 Cir. 10/3/07), 966 So.2d 813. In Perez, the defendant entered a Crosby plea and reserved his right to appeal the issue of payment of restitution to the victims’ insurance companies if the condition was made part of his sentence. At sentencing, the defendant was then ordered to pay restitution as a condition of probation to all of his victims, which included restitution to insurance companies whose insureds were victims of his criminal actions.

On appeal, the defendant argued that the insurance companies are not “victims” for purposes of La.Code Crim.P. art. 895.1. In ruling that restitution may be ordered to compensate the victim only, not the victim’s insurance company, this court reasoned as follows:

Louisiana Code of Criminal Procedure Article 883.2 requires restitution to a victim as part of a defendant’s sentence when there is “an actual pecuniary loss to [the] victim.” Additionally, La.Code Crim.P. art. 895(7) provides for “reasonable reparation or restitution to the aggrieved party for damage or loss” as a condition of probation, and La.Code Crim.P. art. 895.1 provides for “the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense.” (Emphasis added). In State v. Diaz, 615 So.2d 1336, 1337 (La.1993), the supreme court addressed the payment of restitution, stating:
La.Code Crim.Proc. art. 895.1 A authorizes the court, when the victim has suffered any “monetary loss or medical expense,” to order payment of restitution “in a reasonable sum not to exceed the actual pecuniary loss to the victim.” (emphasis added). La. Code Crim.Proc. art. 895.1 B further authorizes the court to order payment “to the victim to compensate him for his loss and inconvenience,” which amount may be in addition to the amounts ordered under Article 895.1 A. These articles focus primarily on restitution for pecuniary losses caused by the criminal activity and not on providing criminal sanctions to enforce collection of civil damages (including non-pecuniary damages). On resentencing the judge should determine a specific (or determinable) reasonable amount of restitution, and should order payment “either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.” La.Code Crim.Proc. art. 895.1 A.
In State v. Devare, 03-610, p. 6 (La.App. 5 Cir. 10/28/03), 860 So.2d 191, 195, the trial court’s restitution order was vacated “because the caselaw and LSA-C.Cr.P. art. 895.1 indicate that restitution may be ordered only to compensate the victim, not the victim’s insurance company.” For these reasons, Defendant should be ordered to pay restitution to his victims only.

Perez, 966 So.2d at 815-16(alteration in original).

The State concedes that this assignment may have merit, but argues, nonetheless, that the term “victim” is sufficiently encompassing to include an insurance company who has sustained a direct loss by virtue of payment of a claim caused by a criminal’s conduct.

The State asserts that the facts in the jurisprudence cited by the Defendant and this court in Perez are not factually the same as those in the instant case. The State correctly states that in Diaz, 615 So.2d 1336, there is no discussion about insurance companies and whether an insurance company is a victim under facts similar to this case. We note, however, that Diaz was cited for its discussion regarding restitution for pecuniary losses caused by the criminal activity. The court distinguished | srestitution from criminal sanctions for the purpose of enforcing collection of civil damages.

With regard to Devare, 860 So.2d 191, the State correctly points out that unlike the Defendant in the instant case, the defendant did not agree in her plea agreement to pay an insurance company as a victim of her criminal conduct. The defendant there was originally ordered to pay $12,005.44 in restitution to the victim. The State interjected the fact that the victim’s insurance company had paid $11,804.25 to the victim and, thus, was seeking reimbursement. The court subsequently ordered the defendant to reimburse the victim’s insurance company $11,804.25 and pay the balance of the restitution to the victim. On appeal, the court ruled that restitution may be ordered only to compensate the victim and found that the trial judge should have credited the restitution order by the amount that the victim’s insurance company reimbursed the victim.

We find that neither of these cases directly address the issue of whether an insurance company is a victim and, thus, do not support the State’s contention that an insurance company can or should be considered a victim of criminal conduct. Further, the State does not refer to any supporting jurisprudence, nor have we found any jurisprudence to validate the State’s claim. The ruling in Perez, 966 So.2d 813, is directly on point and the provision for restitution to the insurance company in the instant case is vacated.

CONCLUSION

The Defendant’s sentences for theft over $500.00 are affirmed, but the probationary condition ordering restitution to the insurance company as a special condition of probation in count two is vacated.

SENTENCE MODIFIED, AND AS MODIFIED, AFFIRMED.

      . With regard to count five, the bill of information is confusing as it sets forth two separate offenses, theft of a firearm and theft of over $500.00, and then indicates that the offense was in violation of La.R.S. 14:67 (theft of over $500.00). At the Defendant’s guilty plea, the State identified the charge in count five as theft of a firearm and the Defendant pled guilty to the reduced charged of attempted theft of a firearm. As such, the bill of information should have charged the Defendant with theft of a firearm, a violation of La.R.S. 14:67.15. The Defendant does not appeal the conviction or sentence for count five, and thus, the issue is not addressed herein.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Moses Maine JACOBS.
    No. 2008-1068.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant-Appellant, Moses Maine Jacobs.

      James C. Downs, District Attorney, Brian Mosely, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

11 Defendant, Moses Maine Jacobs, appeals his conviction for possession of cocaine, greater than twenty-eight grams and less than two hundred grams, a violation of La.R.S. 40:967(F)(1)(a). For the following reasons, we affirm.

FACTS

On the evening of March 20, 2007, four Alexandria Police officers were patrolling an area known for drug activity in response to complaints made by the residents. The officers saw Defendant standing next to a ear. As they approached, Defendant ran away. Two officers chased and caught him about two blocks from the vehicle. The remaining two officers looked into the vehicle and saw a razor blade, sandwich bags, and a cutting board with what was later determined to be crack cocaine on it on the center of the driver’s seat.

On July 25, 2007, Defendant was charged by bill of information with possession of cocaine, greater than twenty-eight grams and less than two hundred grams, a violation of La.R.S. 40:967(F)(1)(a). A jury found Defendant guilty as charged on February 14, 2008. On March 3, 2008, Defendant was sentenced to serve thirty years at hard labor, five years of that time to be served without benefit of probation, parole or suspension of sentence. Defendant timely filed a pro se Motion to Reconsider Sentence on March 24, 2008, which was summarily denied on March 31, 2008. Defendant is now before this court on appeal, asserting through counsel that the evidence is not sufficient to support his conviction and that the trial court erred in granting the State’s reverse Batson challenge. Defendant also filed a pro se brief, | .¿claiming ineffective assistance of counsel, that he did not receive a fair trial, and that a jury charge was unfair.

DISCUSSION

Errors Patent

All appeals are reviewed for errors patent on the face of the record as set out in La.Code Crim.P. art. 920. After reviewing the record, we find one error patent. However, it requires no action on the part of this court.

The trial court failed to impose a mandatory fine. Louisiana Revised Statutes 40:967(F)(1)(a) provides that:

Any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule II(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.

The trial court’s failure to impose a mandatory fine renders Defendant’s sentence illegally lenient. However, this court will not recognize an illegally lenient sentence claim unless it is raised as error.

Sufficiency of the Evidence.

Defendant argues that the jury’s verdict fails to meet the legal standard for sufficiency of the evidence. The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

To support a conviction for possession of cocaine, the State had to prove that Defendant was in possession of cocaine and that he knowingly possessed it. La.R.S. 40:967. The amount of cocaine is not in dispute.

Although Defendant had no cocaine on his person at the time he was apprehended, the testimony and evidence at trial indicate that he had constructive possession of the cocaine seized in this case. The supreme court in State v. Toups, 01-1875, pp. 3-4 (La.10/15/02), 833 So.2d 910, 913, summarized the law on constructive possession as follows:

A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control it.... Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug....
State v. Trahan, 425 So.2d 1222 (La.1983) (citing State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971)). However, it is well settled that the mere presence in an area where drugs are located or the mere association with one possessing drugs does not constitute constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337; State v. Bell, 566 So.2d 959 (La.1990).
LA determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Hughes, 587 So.2d 31, 43 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1197 (La.1992); see also Bujol v. Cain, 713 F.2d 112 (5 Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984) (listing above factors as well as a sixth factor: “evidence that the area was frequented by drug users”).

The State established that Defendant was in an area frequented by drug users. Corporals Todd Beamon, Clifton Fairbanks, and Chris Cooper with the Alexandria Police Department testified that on March 20, 2007, they were patrolling an area in an unmarked unit to investigate complaints from residents that drugs were being sold. According to Corporals Beam-on and Fairbank, the area was well known for drug activity.

The evidence at trial showed that Defendant had guilty knowledge. The supreme court in State v. Davies, 350 So.2d 586 (La.1977), established that evidence of flight, concealment, and attempt to avoid apprehension is indicative of consciousness of guilt and may be considered by a jury to infer guilt. See also State v. Richards, 06-1553 (La.App. 3 Cir. 5/2/07), 956 So.2d 160, writ denied, 07-1129 (La.12/14/07), 970 So.2d 529. Corporals Beamon and Fairbanks both testified that as they approached Defendant to get a look at him, he ran from the officers until he was physically restrained and handcuffed by Corporal Fairbanks. Based on their experience as officers and the fact that they were in a high crime area, Corporals Beamon and Fairbanks stated that Defendant’s actions indicated to them that he was involved in criminal activity.

IsThe testimony and evidence also established that Defendant had access to the area where the drugs were found and that he was in close proximity to the drugs. Corporals Beamon and Fairbanks testified that when they first arrived and before Defendant ran, they saw him standing next to a vehicle while no one else was nearby. More specifically, Corporal Fairbanks stated that as they approached him, Defendant was walking from the passenger side door toward the front of the vehicle. Corporal Cooper, who stayed behind with the vehicle along with Corporal Kitchen, testified that he did not see anyone else around the vehicle and that the keys were in the lock of the closed passenger side door. Corporal Cooper learned soon thereafter that the vehicle was registered to Defendant.

Corporal Cooper testified that when he walked up to the vehicle, he could see a cutting board on the center of the driver’s seat and what he believed to be crack cocaine on the cutting board, in addition to a razor blade and sandwich bags. Based on his experience and training, Corporal Cooper stated that a cutting board and razor blade are used to cut a patty or cookie of crack cocaine into pieces that are packaged in sandwich bags to be sold. Corporal Cooper’s suspicion with regard to these items was corroborated by the discovery of crack cocaine residue on the cutting board and razor blade seized from Defendant’s vehicle. Further, Corporal Fairbanks estimated that Defendant had between $1,000 to $1,200 on his person when he was apprehended.

In State v. Champagne, 02-1218 (La.6/5/02), 819 So.2d 294, the trial court granted the plaintiffs motion to suppress evidence of cash found on the defendant at the time of his arrest, specifically $2,054.00, and scales and baggies found during a search of his residence. The supreme court reversed, concluding that the evidence [ (¡formed an integral part of the charged offense, possession of 28 grams or more but less than 200 grams of cocaine. The court reasoned that the evidence was independently relevant to establish the defendant’s dominion and control over the cocaine retrieved by the police from the defendant’s residence following his arrest and to prove that he knowingly possessed the cocaine.

Likewise, the cutting board, razor blade, and baggies found in Defendant’s vehicle, and the large sum of cash found on his person, are relevant in establishing that Defendant had dominion and control over the cocaine seized from his vehicle and no evidence was submitted at trial to suggest that the drugs belonged to anyone other than Defendant. Further, Defendant did not dispute ownership of the vehicle. A rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that Defendant was in constructive possession of cocaine and that he knowingly or intentionally possessed it. Accordingly, this assignment of error is without merit.

Jury Challenges

By this assignment of error, Defendant argues that the trial court erred in granting the State’s reverse Batson challenge and re-seating jurors who had been peremptorily challenged by the defense. Defendant maintains that race neutral reasons were given for the jurors challenged and that no pattern of discrimination was shown.

In State v. Anderson, 06-2987, pp. 41-43 (La.9/9/08), 996 So.2d 978, 1004, the Louisiana Supreme Court restated the well-settled law regarding jury selection and the appellate review of rulings on Batson challenges:

In Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ], the Supreme Court held that an equal protection violation occurs if a party 17exercises a peremptory challenge to exclude a prospective juror on the basis of a person’s race. The Supreme Court reaffirmed its position that racial discrimination by any state in jury selection offends the Equal Protection clause of the 14th Amendment in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Louisiana law codifies the Batson ruling in LSA-C.Cr.P. art. 795. See also State v. Snyder, 1998-1078 (La.9/6/06), 942 So.2d 484, rev’d on other grounds, Snyder v. Louisiana, — U.S. -, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008).
If the defendant makes a prima facie showing of discriminatory strikes, the burden shifts to the state to offer racially-neutral explanations for the challenged members. If the race-neutral explanation is tendered, the trial court must decide, in step three of the Batson analysis, whether the defendant has proven purposeful discrimination. The race-neutral explanation need not be persuasive or even plausible. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 973-974, 163 L.Ed.2d 824 (2006), quoting Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). It will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory challenge. State v. Tyler, 97-0338, at 3 (La.9/9/98), 723 So.2d 939, 942, cert. denied, 526 U.S. 1073, 119 S.Ct. 1472, 143 L.Ed.2d 556 (1999).
The trial court’s findings with regard to a Batson challenge are entitled to great deference on appeal. Id. at 4[, 723 So.2d at 942]; see also, State v. Juniors, 03-2425, p. 28 (La.6/29/05), 915 So.2d 291, 316. When a defendant voices a Batson objection to the State’s exercise of a peremptory challenge, the finding of the absence of discriminatory intent depends upon whether the trial court finds the prosecutor’s race-neutral explanations to be credible. “Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” Miller-El, 537 U.S. at 339, 123 S.Ct. at 1040.
The three-step Batson process which guides the courts’ examination of peremptory challenges for constitutional infirmities has recently been described again by the Supreme Court as follows:
A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a |srace-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Internal quotations and citations omitted.]
Collins, 546 U.S. at 338, 126 S.Ct. at 973-74.

In the instant case, other than the prospective jurors challenged for cause, the first panel included fourteen prospective jurors, three African Americans and eleven Caucasians. Additionally, seven jurors were chosen, one African American and six Caucasians. The State then moved the trial court for a reverse Batson challenge, asserting that in the last round of peremptory challenges, Defendant used seven peremptory challenges, six of which were Caucasians, while the State used none.

The State argued that no race neutral reason existed for Defendant’s exercise of his peremptory challenges to prospective jurors Jennifer Thiels, Loretta Joslin, Donna Kelly, and Cynthia Stockton. The State later withdrew the challenge as to Cynthia Stockton. It further asserted that a prima facia case had been established that Caucasians were excluded predominantly by the exercise of peremptory challenges and asked that Defendant be ordered to provide race neutral reasons for the exclusion of those jurors. Relying on La.Code Crim.P. art. 795, the trial court subsequently ruled in favor of the State and instructed Defendant to give race neutral reasons for excluding those specific jurors.

IsThe issue before this court is whether the State carried its burden of proving purposeful discrimination on the part of Defendant in excluding prospective jurors Jennifer Thiels, Loretta Joslin, and Donna Kelly. In Snyder v. Louisiana, — U.S. -, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), the Supreme Court emphasized that under the third step of the Batson inquiry, the plausibility of the prosecutor’s explanation for a peremptory strike is to be carefully scrutinized by the trial court. The trial court must evaluate the credibility of the prosecutor by assessing “not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Id. at 1208.

“In Miller-El v. Dretke, the Court made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted. 545 U.S. at 239, 125 S.Ct. at 2317.” Snyder, 128 S.Ct. at 1208. Thus, if the record does not support Defendant’s proffered explanation, or if it shows that the proffered explanation is not plausible, an inference of discriminatory intent may be drawn. See also State v. Cheatteam, 07-272 (La.App. 5 Cir. 5/27/08), 986 So.2d 738. Accordingly, we will examine the persuasiveness of the race-neutral explanation given by Defendant for the exclusion of each of these prospective jurors as required by Batson.

Jennifer Thiels

Defendant stated that Jennifer Thiels, a Caucasian female, was excluded because her husband was related to a detective employed by the Alexandria Police Department. Defendant also asserted that Mrs. Thiels’ son had been recently arrested hnin Alexandria on drug charges. Defendant maintained that he did not feel comfortable with Mrs. Thiels serving on the jury.

In response, the State argued that Defendant had accepted other jurors who either were acquainted with or were related to law enforcement personnel or who had relatives that had been recently arrested. The State maintained that Defendant’s explanation for excluding Mrs. Thiels was not race-neutral. The trial court confirmed the accuracy of the State’s assertion and ruled that the reason was not racially neutral. Defendant objected to the trial court’s ruling.

On appeal, Defendant argues, first, that a prospective juror whose family member has been in trouble with the law and/or has a relative in law enforcement are valid race neutral reasons for a peremptory challenge and cites several cases in support of his contention.

Next, Defendant maintains that the fact that he excused one person with a particular characteristic and not another person similarly situated does not in itself show that his explanation was a mere pretext for discrimination. In support of his argument, Defendant cites State v. Elie, 05-1569 (La.7/10/06), 936 So.2d 791. In Elie, the State exercised eight peremptory challenges against African-American jurors. Following voir dire, the defense raised a Batson objection, claiming the State used its peremptory challenges to strike potential jurors based solely upon the fact they were African-American. The trial judge determined that the defendant made a pri-ma facie showing of discriminatory strikes, but denied the defendant’s Batson challenge.

On appeal, the defendant argued that the trial court erred in denying his Batson challenge. In reviewing the State’s peremptory challenges, the supreme court noted |nthe appellate court’s observation that a venire member selected for the jury had young children as did a juror that had been challenged, and stated:

Notwithstanding the appellate court’s observation, the fact jurors of different races share a similar characteristic is not dispositive when deciding whether an explanation has been pretextual. See [State v.] Collier, 553 So.2d [815 (La.1989) ] at 822 (“[T]he fact that a State excuses one person with a particular characteristic ... and not another similarly situated person does not in itself show that the State’s explanation was a mere pretext for discrimination. The accepted juror may have exhibited traits which the State could have reasonably believed would make him desirable as a juror.”) (Emphasis added). As the State argued during voir dire, Jamie Covington, a potential juror with a 13-day-old baby, was not struck because his wife was a stay-at-home mother whereas Ms. Sterling was a single mother, who had a day job, and a teenage son.

Elie, 936 So.2d at 800. Ultimately, the supreme court found that a review of the State’s explanations did not reveal discriminatory intent, and thus, the State was not required to present a persuasive or even plausible explanation for excluding a juror.

Defendant herein does not dispute the State’s assertion that other jurors seated from the panel have similar characteristics to Mrs. Thiels. Additionally, this fact alone, as noted in Elie, is not dispositive in showing that Defendant’s explanation for excluding Mrs. Thiels was a pretext for discrimination. Defendant’s explanation, nonetheless, must be plausible and supported by the record. Snyder, — U.S. -, 128 S.Ct. 1203, 170 L.Ed.2d 175.

During jury selection, Mrs. Thiels testified that her son was arrested eleven years ago for possession of a small amount of marijuana. She also stated that he was convicted in 1997 for attempted unauthorized entry into an uninhabited dwelling. Mrs. Thiels denied being dissatisfied with the defense attorney in this matter and stated that she did not even recall the circumstances.

|12Mrs. Thiels maintained that her son’s convictions would not affect her ability to be fair and impartial in Defendant’s case. She also denied having an axe to grind with the police or the State, and denied the possibility that she would favor Defendant. Lastly, Mrs. Thiels confirmed with the trial court that she could erase her son’s convictions from her “chalkboard” when listening to the evidence and deliberating.

With regard to Mrs. Thiels’ relative in law enforcement, she indicated that her husband’s cousin was Detective Darrell Thiels with the Alexandria Police Department. Mrs. Thiels’ denied the possibility that her relationship with Detective Thiels would interfere with her ability to be fair and impartial in Defendant’s case. Later during voir dire, Mrs. Thiels stated that she would see Detective Thiels about once a month, but sometimes six months might go by without seeing him. Mrs. Thiels also testified that she plays cards with Detective Thiels’ wife and sees her quite often.

Although Defendant’s explanation appears to be race-neutral on its face, in light of Mrs. Thiels’ testimony during voir dire, the explanation is not plausible or supported by the record. Mrs. Thiels unequivocally stated that she could be fair and impartial in Defendant’s case despite her son’s brush with the law. Further, nothing in the record suggests otherwise. Additionally, the record reflects that Mrs. Thiels has minimal contact with her husband’s relative, Detective Thiels, and there is no suggestion that her relationship to him would affect her ability to be fair and impartial. Considering the record, in addition to the fact that other jurors seated had similar characteristics to Mrs. Thiels, Defendant’s explanation was not plausible or supported by the record. Accordingly, the trial’s court’s conclusion that Defendant’s explanation |tsfor excluding Mrs. Thiels was a pretext for discrimination will not be disturbed on appeal.

Loretta Joslin

Defendant noted that the home of prospective juror Loretta Joslin, a Caucasian female, was burglarized and that her father had been shot. Defendant also indicated that Ms. Joslin was the secretary at Philadelphia Baptist Church and stated his preference for not having church employees serve on his jury. The State pointed out that Eric Moran, who was seated on the jury, was also a burglary victim and that his father had been shot twenty-five years ago. The State maintained that Defendant did not ask Ms. Joslin any questions about her father’s shooting or about her part-time job as a volunteer secretary at the church. Additionally, the State argued that Ms. Joslin answered every question affirmatively and confirmed her ability to be fair and impartial. The trial court ruled that Defendant did not provide a race-neutral reason to challenge Ms. Joslin and re-seated her on the panel. Defendant then objected to the trial court’s ruling.

On appeal, Defendant does not dispute the State’s assertion that another juror who was accepted has similar characteristics to Ms. Joslin. This fact alone, however, does not prove that Defendant’s explanation for excluding Ms. Joslin was a pretext for discrimination. Accordingly, Defendant’s explanation must be reviewed to determine whether it is plausible and supported by the record. Snyder, — U.S. -, 128 S.Ct. 1203, 170 L.Ed.2d 175.

During voir dire, Ms. Joslin testified that her home had been burglarized about ten years ago, but that her experience would not affect her ability to be fair and impartial in Defendant’s case. Ms. Joslin also stated that her father was shot in their |14home twenty-five years ago. Although no one was arrested for the offense, Ms. Joslin maintained that her ability to be fair and impartial would not be affected.

Ms. Joslin stated that she worked full time at Duncan’s Pest Control as a receptionist and part-time at Philadelphia Baptist Church in the nursery. However, there is no indication in the record that Ms. Joslin’s part-time job in the nursery-at Philadelphia Baptist Church would have any influence on her ability to be fair and impartial in Defendant’s case. The possibility that her part-time nursery job would influence her decision making was not explored by Defendant or the State.

Defendant’s explanation appears to be race-neutral on its face with regard to Ms. Joslin’s past experiences as a victim of crime and her part-time employment in a church nursery. However, Ms. Joslin declared that she could be fair and impartial in Defendant’s case. Additionally, there is no indication in the record of how her part-time employment in a church nursery would affect her ability to be fair and impartial. Therefore, we find that Defendant’s explanation is not plausible or supported by the record. Accordingly, the trial court’s conclusion that Defendant’s explanation for excluding Ms. Joslin was a pretext for discrimination will not be disturbed on appeal.

Donna Kelly

Defendant indicated that the cousin of prospective juror Donna Kelly was employed by either the Calcasieu Parish or Louisiana State Police Department. Again, the trial court found that the explanation was not race neutral because other jurors had relatives employed by a police department. Ms. Kelly was then re-seated on the jury. Defendant did not object to the trial court’s ruling. Pursuant to La. Code Crim.P. art. 841(A), “An irregularity or error cannot be availed of after verdict unless it was hr,objected to at the time of occurrence.” Accordingly, because Defendant failed to object to the trial court’s ruling, he did not preserve his right to appeal the ruling. See also State v. Thompson, 06-474 (La.App. 3 Cir. 11/8/06), 943 So.2d 621, writ denied, 06-2959 (La.9/14/07), 963 So.2d 993.

Barbara Kalil

By this assignment, Defendant argues that the State did not name Barbara Kalil in its reverse Batson challenge, and that any objection to Defendant’s peremptory challenge of Ms. Kalil at this point is waived.

Defendant is correct, as noted above, that the State did not provide the name of Barbara Kalil at the time it raised its reverse Batson challenge. The record reflects that following the trial court’s grant of the State’s reverse Batson challenge as to Loretta Joslin, the trial court then called out Ms. Kalil’s name as the next excluded juror to be examined. The proceeding continued on without an objection at that time by either Defendant, or the State. As we have noted, “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La.Code Crim.P. art. 841(A). Therefore, Defendant waived his right of appellate review as to the trial court’s consideration of Ms. Kalil in response to the State’s reverse Batson’s challenge. La.Code Crim.P. art. 841(A); see also Thompson, 943 So.2d 621.

Ineffective Assistance of Counsel

By this pro se assignment of error, Defendant argues that he did not receive effective assistance of counsel. Defendant asserts that Numa Metoyer was originally appointed to represent him, but later withdrew, and that Darrell Hickman was then appointed. According to Defendant, Mr. Hickman never received his file from Mr. | ifiMetoyer. Further, Defendant states that Mr. Hickman admitted to him that he was not prepared for trial, was not aware of the trial date, and subsequently asked the trial court for a continuance, but that it was denied.

As observed by this court in State v. Lee, 08-456, pp. 8-9 (La.App. 3 Cir. 11/5/08), 996 So.2d 1217, 1223:

Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. When the record is sufficient, however, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy.

In support of his claim in the instant case, Defendant attached a letter written to him from defense counsel, Mr. Hickman, which substantiates Defendant’s claim. This letter, however, is not part of the record and cannot be considered on appeal as evidence to support his claim. Additionally, the record lacks information needed to substantiate Defendant’s claim. More specifically, the record does not contain a written motion to continue trial or a transcript of a hearing on a motion to continue trial, nor does the trial transcript indicate that such a motion was raised prior to the beginning of trial. Accordingly, Defendant’s ineffective assistance claim cannot be resolved on appeal and must be relegated to post-conviction relief.

Justification for Stop

Defendant couches this pro se argument in terms of the insufficiency of the evidence to sustain his conviction. However, the contention in his brief is that the Alexandria Police officers did not have particular justification for an investigatory stop. Defendant acknowledges that defense counsel did not file a motion to suppress and that the issue as to whether officers had the right to chase and arrest him was not | ,7addressed at trial. Therefore, Defendant contends that he received an unfair trial. Because this issue was not raised prior to or during trial and is being raised for the first time on appeal, the issue is not properly before this court. La.Code Crim.P. arts. 703(F) and 841(A); see also State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La.11/22/06), 942 So.2d 553.

Jury Charge

By this assignment of error, Defendant argues that a jury charge was unfair and unconstitutional. In his brief, Defendant addresses the assigned error in a single paragraph as follows:

The State based its entire case upon the fact that the Defendant ran when he saw the police. No opportunity to determine the legality of the infringement of his rights or seizure, yet the jury was instructed to disregard that question as if a Judge has determine this Fact of Law. [sic].

The record reflects that the jury was instructed on this issue as follows:

Whether the police had the right to stop the defendant, chase the defendant, arrest the defendant, is a question of law and not a question of fact. I decide questions of law. You decide questions of fact. Therefore, you, the jury, should not concern itself or deliberate on the question about whether or not the law enforcement officers had the right to stop the defendant when he was arrested on March 20th of 2007....

There is no indication that Defendant objected to this jury charge at the trial court level. Therefore, the matter is not properly before this court at this time. La.Code Crim.P. arts. 801(C) and 841(A). See also State v. Schneider, 07-943 (La.App. 3 Cir. 4/2/08), 981 So.2d 107, writ denied, 08-942 (La.12/12/08), 997 So.2d 558. Accordingly, this issue lacks merit.

| ^CONCLUSION

For the foregoing reasons, Defendant’s conviction is affirmed.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    Pamela MERRIETT v. BUDGET BUILD LUMBER & SUPPLY, INC.
    No. 2008-1090.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Donald J. Anzelmo, Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P., Monroe, Louisiana, for Defendant/Appellee Budget Build Lumber & Supply, Inc.
    George C. Gaiennie, III, Hughes & La-Fleur, Alexandria, Louisiana, for Plaintiff/Appellant Pamela Merriett.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

11 Pamela Merriett appeals a judgment rendered by the Office of Workers’ Compensation (OWC) in her favor and against her employer, Budget Build Lumber & Supply, Inc. (Budget). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Merriett was injured on April 3, 2002, when she twisted her right knee after stepping into a hole in the concrete floor of her workplace. She filed a petition for damages and a disputed claim for compensation with the OWC against Budget and its insurer, Louisiana Retailers Mutual Insurance Company, (hereinafter sometimes referred to collectively as “defendants”) on April 2, 2007. Therein Ms. Merriett assei’ted that she had suffered a work-related accident on April 3, 2002, for which she was receiving weekly benefits, but that defendants had refused to pay for certain of her medical expenses. These included treatment by Dr. Maurice Gremil-lion, her family physician, as well as medication prescribed by him, and the mileage expenses that she had incurred in attempting to get the aforementioned treatment and prescriptions. She further asserted that she had been unable to schedule an appointment with Dr. Robert Haimson, an orthopaedist, regarding a possible knee replacement, because Dr. Haimson’s office required that the insurer schedule all appointments, which it refused to do. In addition, Ms. Merriett requested that she be awarded statutory penalties and attorney fees.

Prior to the March 14, 2008 trial of this matter, the parties stipulated that Ms. Merriett was injured in an accident within the course and scope of her employment and that indemnity benefits were being paid. On the morning of trial, the parties additionally stipulated that Ms. Merriett’s average weekly wage was |2$429.88 and that her workers’ compensation rate was $286.59. Following the trial, the matter was taken under advisement. The workers’ compensation judge (WCJ) rendered her decision in open court on May 28, 2008, and a written judgment was signed on June 4, 2008. It provided that “there be judgment herein in favor of claimant, PAMELA MERRIETT, for indemnity benefits, medical expenses, and mileage expenses but only for the period of April 3, 2002 through July 6, 2002.” All of Ms. Merriett’s remaining claims were denied, and the matter was dismissed with prejudice.

Ms. Merriett now appeals, assigning the following errors:

1. The WCJ erred in finding that plaintiffs disability ended on July 7, 2002.
2. The WCJ erred in denying plaintiffs claims for medical expenses.
3. The WCJ erred in denying plaintiffs claims for penalties and attorney fees.
4. The WCJ erred in refusing to award plaintiff treatment and disability benefits for her left knee and back.

DISCUSSION

The Louisiana Supreme Court set out the standard of review to be employed in workers’ compensation cases in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (citations omitted):

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error — clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.

This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable Devaluations of credibility.” Central Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that the mere existence of a pre-existing condition alone does not foreclose the receipt of workers’ compensation benefits where there is evidence that the on-the-job accident aggravated or accelerated the claimant’s pre-existing condition. Bush v. Avoyelles Progress Action Comm., 07-685 (La.App. 3 Cir. 10/31/07), 970 So.2d 63.

In its ruling, the WCJ stated:

This court is persuaded that claimant had a pre-existing degenerative arthritic condition prior to April 3rd, 2002. This court is also persuaded that her preexisting condition was in fact aggravated by the occurrence of an accident when claimant stepped into a hole, twisting her right knee, while working in the course and scope of her employment with defendant.
[W]hile this Court finds that claimant was involved in a work-related accident on April 3, 2002, this Court also finds that the injury resulting from that occurrence resolved and any additional problems involving claimant’s right knee [are] due to her pre-existing degenerative arthritic condition and her non-work-related fall of July 2002.
There was no objective evidence proving a correlation between claimant’s April 2002 accident and her complaints of left knee, back, neck, shoulder and arm pain. Her individual testimony and allegations are insufficient to meet her burden of proving causation in regard to complaints from those areas. This Court has found substantial evidence of claimant’s lack of credibility and her testimony regarding a correlation cannot form the basis for a decision in her favor.

1 ¿Assignment of Error No. 1

Ms. Merriett claims that the WCJ erred in finding that her disability ended on July 7, 2002. We have reviewed the record in its entirety and find that it supports the WCJ’s finding that, although Ms. Merriett was injured in an April 3, 2002 work-related accident, any disability resulting therefrom had resolved before she re-injured her knee on July 6, 2002, when she slipped in her carport due to condensation.

Ms. Merriett testified that before working at Budget, she and her husband had owned a metal roofing business. She stated that she had injured both of her knees in 2001 when she was pushing metal sheets up to her husband, and that she had sought treatment with Dr. Gremillion. His notes indicated that she had pain in both knees at her March 14, 2001 visit. He "wrote several prescriptions for Ms. Merriett and ordered her to stay off of her knees.

According to Ms. Merriett, she called Dr. Gremillion’s office on the date that she was injured, and she was prescribed pain medications and advised to stay off of the injured knee. She had nevertheless continued to work as usual and had not actually been examined by a physician in relation to the accident until she sought treatment at defendants’ request from Dr. John Passman, an orthopaedist and the partner of Dr. Haimson, on May 16, 2002. Dr. Passman was of the opinion that Ms. Mer-riett had suffered a collateral ligament sprain. His notes from her May 30, 2002 visit indicated that although Ms. Merriett still had some tenderness in her right knee, her condition was improving, and he expected her injury to resolve in six weeks. He released her to light duty for three weeks and noted that she should be able to return to full duty thereafter. Ms. Merriett made no complaints of right knee pain when she saw Dr. Passman again on June 20, 2002, despite her having told him | ¡¿hat she had “been on increased work.” As correctly noted by the WCJ, it was not until Ms. Merriett’s July 11, 2002 visit with Dr. Passman, less than a week after her July 6, 2002 fall, that it was recommended that she undergo an MRI and that she consider the possibility of surgery if her symptoms were to persist.

Dr. Haimson stated in his deposition that he had taken over the care of Ms. Merriett from his partner, Dr. Passman, after Dr. Passman recommended that she may need surgery. He performed arthroscopic surgery on her right knee on October 22, 2002. In response to a question posed by defendants’ attorney, Dr. Haim-son stated that there was nothing in his office records to indicate that Ms. Merriett had experienced any problems with her knee prior to April of 2002. He also referred to a letter that he had written on September 1, 2004, which indicated his then opinion that “she had pre-existing arthritic changes that were probably aggravated by the injury that she had.” Dr. Haimson further stated that “in terms of disability, ... it was my opinion in 2004 that you could attribute ongoing problems she was having to the arthritis that she had in her knee.”

Dr. Joe Morgan, whom Ms. Merriett had also seen at defendants’ request in August of 2004, noted that the medical records that he had reviewed indicated that Ms. Merriett suffered from degenerative arthritis that existed prior to her April 2002 injury at Budget. He opined that the accident caused a temporary aggravation of that pre-existing condition that should have resolved within one or two months. In his deposition, Dr. Morgan stated that he had specifically asked Ms. Merriett whether she had been previously treated for knee problems and that she had denied having any prior knee injuries.

1 ¡¡The WCJ’s assessment that Ms. Mer-riett lacked credibility is reasonable and is supported by the record, as are the factual findings made by the WCJ. The WCJ did not err in determining that Ms. Merriett’s disability ended on July 7, 2002. Ms. Mer-riett’s first assignment of error is without merit.

Assignment of Error No. 4

Ms. Merriett asserts that the WCJ erred in refusing to award treatment and disability benefits for her left knee and back complaints. She insists that the problems in those areas occurred as a result of her right knee injury, which caused her to limp and to develop a compensating gait.

Dr. Haimson stated in his deposition that, given the fact that Ms. Merriett had sought treatment from Dr. Gremillion in March of 2001 for bilateral knee complaints, he believed that she probably was getting arthritis in both of her knees in 2001. According to his notes of October 18, 2004, his treatment of Ms. Merriett up until that time was mainly focused on her right knee. He had no recollection of Ms. Merriett ever developing a limp. In response to questioning by Ms. Merriett’s attorney as to whether he thought there was any relationship between the April 2002 knee injury and her limping and the symptoms in her back, Dr. Haimson stated only that it was possible. We note that the first mention of any complaint relating to back pain does not appear until Ms. Merriett’s March 24, 2003 visit with Dr. Haimson.

Dr. Morgan noted that Ms. Merriett had shown some exaggeration in her complaints. Upon examination, he found nothing abnormal in her back, and he made no findings consistent with her subjective complaints of occasional left knee pain. Dr. Morgan was of the opinion that she had spondylosis (degenerative disease) in her lumbar spine that was not related to the accident in question. According to his notes 17from Ms. Merriett’s March 4, 2006 visit, she had begun using a cane to walk in November of 2002.

Given our previous finding that the WCJ did not err in finding that Ms. Merriett’s disability ended on July 7, 2002, combined with the fact that medical records and testimony indicate that Ms. Merriett made no complaints regarding her left knee or back until well after her disability ended, we find no error in the WCJ’s refusal to award Ms. Merriett treatment and disability benefits relating to her left knee and back. Ms. Merriett’s fourth assignment of error lacks merit.

Assignments of Error Nos. 2 and 3

Ms. Merriett claims that the WCJ erred in denying her claim for medical expenses related to her treatment by Dr. Gremillion and in refusing to award her damages for defendants’ refusal to authorize an appointment with Dr. Haimson regarding a possible knee replacement. She further claims that the WJC erred in denying her request for penalties and attorney fees.

We have thoroughly reviewed Ms. Mer-riett’s testimony, as well as Dr. Gremil-lion’s records, which are contained in Exhibit P-1, and the demand letters and correspondence sent to defendants’ attorney by Ms. Merriett’s attorney, which encompass Exhibit P-5. None of the outstanding medical bills or requests for payment of prescriptions or mileage are dated prior to July 7, 2002, the date upon which Ms. Merriett’s disability ended. In addition, the appointment that she sought to have scheduled with Dr. Haimson was in 2007, years after her disability related to her April 2002 accident ended. Accordingly, we find no error in the WCJ’s refusal to award the requested medical expenses. Because those expenses were properly | ^denied, defendants likewise cannot be held liable for refusing to pay Ms. Merriett’s medical expenses that were unrelated to her April 3, 2002 accident. The WCJ did not err in denying Ms. Merriett’s claim for penalties and attorney fees.

DISPOSITION

For the foregoing reasons, the judgment of the OWC is affirmed in its entirety. All costs of this appeal are assessed to Pamela Merriett.

AFFIRMED.

      . Because Ms. Merriett discusses these two assignments of error together in her appellate brief, we will address them simultaneously in this opinion as well.


author: PETERS, J.

text:
    SUCCESSION OF David JONES, Jr. a/k/a David Jones, III a/k/a David Jones.
    No. 2008-1088.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    Rehearing Denied April 22, 2009.

      William F. Henderson, Attorney at Law, Alexandria, LA, for Plaintiff/Appellant, Harriett Boyer Jones.
    Ricky L. Sooter, George I. Fine, Pro-vosty, Sadler, deLaunay, Fiorenza & So-bel, Alexandria, LA, for Defendant/Appel-lee, Ethel Jones.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   PETERS, J.

| jThis litigation involves, in part, the determination of the marital status of David Jones, Jr., who is now deceased. Two women, Harriett Boyer Jones (Harriett) and Ethel LeDuff Jones (Ethel), both claim to have been his legal spouse and entitled to all legal rights arising from that status. The trial court declared Ethel to be the sole surviving spouse, and Harriett has appealed that determination. For the following reasons, we reverse the trial court judgment, designate Harriett as David Jones, Jr.’s legal surviving spouse, but recognize Ethel as his putative spouse. We remand the matter to the trial court for it to determine the proper disposition of the assets of the estate of David Jones, Jr. in accordance with law.

DISCUSSION OF THE RECORD

Certain facts are not in dispute. David Jones, Jr. (David) and Harriett were married in Bexar County, Texas on October 8, 1956, and three children were born of that marriage: Carol Ann, David Allen, and June René. All of these children are now competent majors. David and Harriett were divorced on February 24, 1976. David had made a career of the military and was stationed in Missouri at the time of the divorce.

After the divorce, Harriett returned to her family in Houston, Harris County, Texas. Thereafter, David retired from the military and returned with his son to live on family property in Alexandria, Rapides Parish, Louisiana. Still, he maintained communications with his former wife. In fact, on April 12, 1978, David and Harriett remarried in Houston.

The second marriage did not last. Four months later, on September 12, 1978, David filed a petition against Harriett seeking to be awarded a separation 12from bed and board. In his petition, David, who was represented by counsel, sought and obtained the appointment of an attorney to represent his absentee wife. The attorney appointed to represent Harriett filed an answer to the petition on October 5, 1978. In that answer, the attorney attached a letter he had received from Harriett in response to his correspondence to her. In her letter, Harriett asserted that she contested the suit for separation from bed and board because the assertions made by her husband were false; that she had resided in Houston for one year prior to the date of the letter (September 28, 1978); that she was currently residing in an apartment leased for her by David; that she had not left Houston for any reason during 1978; that David had separated from her; and that David was guilty of adultery.

In response, David filed a supplemental and amending petition on February 2, 1979, wherein he acknowledged that the marriage took place in Houston, and not Rapides Parish, but argued that because he and Harriett never lived together thereafter, he should be awarded an annulment of that marriage. In the alternative, he maintained his request for a separation from bed and board.

Because of the physical incapacity of the attorney appointed to represent Harriett, a second attorney was appointed to represent her as an absentee. This appointment was made by the trial court on April 18, 1979. On May 1, 1979, that attorney filed an answer to the supplemental and amending petition wherein he reiterated the previously filed answer. A subsequent pleading filed by the appointed attorney on September 21, 1979, reflected that he had forwarded a copy |sof the supplemental and amending petition to Harriett, but that it was returned as not deliverable. This pleading represents the last filing in the suit record.

David and Ethel were married in Man-sura, Avoyelles Parish, Louisiana, on April 8, 1983, and lived together as husband and wife in Rapides Parish until David’s death on March 31, 2005. After David’s death, Ethel filed a petition to probate his statutory testament and to be named executrix of his succession. On April 25, 2006, Harriett filed a petition seeking to have Ethel’s marriage to David declared absolutely null and to be placed in possession of her share of the community property belonging to her as David’s surviving spouse. The trial of this issue resulted in a trial court judgment declaring Ethel to be David’s legal wife and surviving spouse and recognizing her as the individual entitled to all legal rights associated with that status. This judgment gave rise to the appeal now before us.

OPINION

Harriett’s five assignments of error can be reduced to two arguments: (1) the trial court erred in finding that Ethel was David’s legal wife, and (2) the trial court erred in failing to admit into evidence search certificates from Harris County, Texas and Avoyelles Parish and Rapides Parish, Louisiana. We will address the evidentiary issue first.

Evidentiary Ruling

After her father’s death, June René searched the public records of Harris County, Avoyelles Parish, and Rapides Parish, seeking evidence of a second divorce by her father from her mother. At trial, Harriett sought to introduce three documents, obtained by June René from the Custodian of Records from each location, which purported to show that no divorce records existed. Ethel objected pto the introduction of these documents because Harriett had not included them on her pre-trial list. While acknowledging that they were not listed on the pre-trial exhibit list, Harriett asserts that they should have been admitted because they were already in the record, having been made a part of her prior motion for partial summary judgment. The trial court noted that it had a problem with the lack of notice, and Harriett made a proffer of these documents.

The trial court is given vast discretion in its evidentiary rulings, and its decision to admit or exclude evidence will not be reversed on appeal in the absence of an abuse of discretion. Bellsouth Telecomm., Inc. v. City of Lafayette, 05-1478, 05-1505 (La.App. 3 Cir. 1/5/06), 919 So.2d 844. After reviewing the proffered evidence and the record, we find no abuse of discretion on the part of trial court in excluding the documents from evidence. At the same time, we note that although the actual documents were not introduced into the record, the information they contained was elicited from June René’s testimony as to the actions she took in furtherance of her search and the answers she received by contacting the three custodial offices.

“Second in Time ” Marriage

As a general rule, “[a] marriage is absolutely null when contracted without a marriage ceremony, by procuration, or in violation of an impediment.” La.Civ.Code art. 94. An existing marriage qualifies as such an impediment. La.Civ.Code art. 88. Furthermore, “[a] judicial declaration of nullity is not required, but an action to recognize the nullity may be brought by any interested person.” La.Civ.Code art. 94.

pAn exception to the general rule is the “second in time” marriage presumption as set forth by the supreme court in Lands v. Equitable Life Assurance Society of U.S., 239 La. 782, 120 So.2d 74 (1960). After quoting extensively from 35 Am.Jur., Marriage, Sections 195 and 197, with regard to the “second in time” marriage presumption, the supreme court stated:

We are in full accord with the majority view that a presumption exists as to the validity of a second marriage and that the burden of proof to show that it is a nullity is on the party attacking it. We do not think, however, that this presumption should be available to one who has deserted or abandoned a spouse of a prior marriage in another state and subsequently in this state remarries in bad faith and without reason to believe that the first marriage has been dissolved by death, divorce, or annulment. Whether a party in such a case is innocent and in good faith must depend upon the circumstances and facts of each case, and where innocence or good faith is once established, the burden of proof to show that the first marriage is still in existence is on the party attacking the second marriage. However, in such a case if bad faith is shown, the burden of proof to show that the first marriage was dissolved by death, divorce, or annulment prior to the second mai'riage is on the party whose marriage is under attack.
We are mindful that as a general rule of law when a man and a woman marry and live together as husband and wife, they are presumed to have contracted the marriage in good faith. As we view the matter, however, for a party to a second marriage to be able to avail himself of the presumption of validity of such a marriage where it is shown that he has deserted his first spouse in another state, he must show that he entered into the second marriage in good faith.

Id. at 76-77 (footnote omitted).

In Gathright v. Smith, 368 So.2d 679, 683 (La.1978) (footnote omitted), the supreme court reiterated the holding of Lands:

Hence, the holding of Lands is the following: (1) there is a presumption of the validity of a second marriage and the burden of proving invalidity is upon the party attacking it, (2) the presumption of validity does not run in favor of a spouse who has been shown to have a prior undissolved marriage, unless that spouse can show that he or she contracted the subsequent marriage in good faith.

|r,In its Written Reasons for Judgment, the trial court stated that a key issue before it was “the good faith of both Colonel Jones and Ethel LeDuff Jones, and whether they had an honest and reasonable belief that their marriage was entered into in good faith by either or both of them.” We disagree with the manner in which the trial court couched the issue. The issue of good faith should not have entered into the equation. It does not become an issue, according to the decision in Lands, unless the party attempting to rely on the presumption was the party with the prior undissolved marriage. In this case, it was David, not Ethel, with the alleged prior undissolved marriage. Ethel’s marriage, according to the decision in Lands, is presumed to be valid, and the burden of attacking its validity lies with Harriett.

Because the trial court’s legal error applying the wrong burden of proof interdicted its finding on whether the decedent’s marriage to Ethel was absolutely null, the manifest error standard of review does not apply. Accordingly, we will now conduct a de novo review on this issue. Lanningham v. Walton, 06-1103 (La.App. 3 Cir. 2/7/07), 950 So.2d 922.

Harriett testified that she never received notice of any divorce, and that she considered herself married to David. Harriett, David Allen, and June René all testified that David visited them in Houston after he returned to Louisiana. Initially, the visits were once or twice per week, but occurred less and less as the years passed. Harriett claimed to have spoken to him monthly by telephone, and the children testified that they only learned of David’s marriage to Ethel after his death.

Vivian Bennett, David’s sister, testified that, although she spoke to her brother on a daily basis, she had no knowledge of his divorce from Harriett, the 17remarriage, or the petition for separation from bed and board. Darrell Woods, an employee of David’s, testified that David told him that he was married to Harriett, but never mentioned divorce. Although he knew of Ethel, he said that David never referred to her as his wife.

With regard to the search for a divorce judgment, Harriett clearly established that she and David were married a second time on April 12, 1978, and that she remained domiciled in Harris County, Texas, from that day forward. Her evidence further establishes that David remained domiciled in Rapides Parish, Louisiana, from that day until his death. David’s 1978 petition for separation from bed and board lists his domicile as Rapides Parish; all of his employment contracts with the Rapides Parish School Board, for whom he taught from 1979 through 2002, lists his address as Rapides Parish; and his sister, Vivian Bennett, testified that David lived on family property in Rapides Parish from his 1977 retirement from the military through the time of his death.

While there does exist evidence that David had connections to other parishes within the state and even resided overnight or for days at a time in these locales, he had only one domicile — -Rapides Parish. “The terms residence and domicile are not synonymous, and although a person can have several residences, that person can have only one domicile.” Smith v. Goins, 08-938, p. 5 (La.App. 3 Cir. 7/30/08), 994 So.2d 591, 593, writ denied, 08-1756 (La.8/4/08), 988 So.2d 244.

An action for divorce must be brought in one of only three locations: the parish of either party’s domicile or the parish of the last matrimonial domicile. La.Code Civ.P. art. 3941(A). Additionally, venue in a divorce action is jurisdictional and may not be waived by either party. La.Code Civ.P. art. 3941(B); Treadwell v. Treadwell, 41,130 (La.App. 2 Cir. 6/28/06), 935 So.2d 740. Thus, a judgment rendered in an improper venue is an absolute nullity. Id.

Because venue is jurisdictional in a divorce action, we reject Ethel’s argument that in order for Harriett to satisfy her burden of proof, she must search even those places to which David traveled overnight. The only location in Louisiana wherein David could have obtained a divorce was Rapides Parish, his domicile. The only other place he could have obtained a divorce was Harris County, Texas, Harriett’s domicile. Harriett successfully established that David did not obtain a divorce in either location.

After reviewing the evidence, we find that Harriett has satisfactorily proven that her 1978 marriage to David had not been dissolved prior to his 1983 marriage to Ethel. Thus, we find that the trial court erred in concluding that Ethel’s marriage to David was not null and void.

Putative Spouse Issue

Our inquiry does not end with our conclusion that the trial court erred in rendering judgment in Ethel’s favor. Having found that the marriage between David and Ethel was absolutely null, we must next determine whether Ethel was in good faith in contracting the marriage such that she acquired putative spouse status.

Louisiana Civil Code Article 96 provides:

An absolutely null marriage nevertheless produces civil effects in favor of a party who contracted it in good faith for as long as that party remains in good faith.
When the cause of the nullity is one party’s prior undissolved marriage, the civil effects continue in favor of the other party, regardless of whether the latter remains in good faith, until the marriage is pronounced null or the latter party contracts a valid marriage.
IsA marriage contracted by a party in good faith produces civil effects in favor of a child of the parties.
A purported marriage between parties of the same sex does not produce any civil effects.

The “good faith” necessitated by La.Civ.Code art. 96 was discussed in Alfonso v. Alfonso, 99-261, p. 5 (La.App. 5 Cir. 7/27/99), 739 So.2d 946, 948-49:

“Good faith” is defined as an honest and reasonable belief that the marriage was valid and that no legal impediment to it existed. Saacks v. Saacks, 96-736 (La.App. 5 Cir. 1/28/97), 688 So.2d 673. “Good faith” consists of being ignorant of the cause which prevents the formation of the marriage, or being ignorant of the defects in the celebration which caused the nullity. Saacks v. Saacks, supra; Rebouche v. Anderson, 505 So.2d 808 (La.App. 2 Cir.1987), writ denied, 507 So.2d 228 (La.1987). The question of whether a party is in good faith is subjective, and depends on all the circumstances present in a given case. Saacks v. Saacks, supra; In Re Succession of Gordon, 461 So.2d 357 (La.App. 2 Cir.1984), writ denied, 464 So.2d 319 (La.1985). Although the good faith analysis test incorporates the objective elements of reasonableness, the inquiry is essentially a subjective one. Saacks v. Saacks, supra; Rebouche v. Anderson, supra.

Whether good faith exists is a factual question, and subject to the manifest error/clearly wrong standard of review. Id. In this matter, we find no manifest error in the trial court’s factual determination that Ethel was in good faith in entering into, and maintaining, the marriage with David.

The evidence establishes that Ethel is a Rapides Parish native and was thrice married and divorced before her marriage to David. She and David began dating shortly after her return from Alaska in 1978. They began cohabiting in 1979, and were married in Avoyelles Parish on April 8, 1983. Ethel testified that she knew David had been previously married and divorced, but first learned of his second marriage to Harriett following his death in 2005, when she was informed of Harriett’s challenge to her receipt of surviving spousal benefits by the military. | inShe claimed to have no knowledge of the specifics or timing of David’s first divorce, but was aware that he had three children. She had met the children but had never met or spoken with Harriett.

Ethel explained that she and David were married in Avoyelles Parish because they did not want to draw any attention to the ceremony, given the fact that they had been living together for such a long period. Ethel and David bought, sold, and mortgaged property as husband and wife. Additionally, David enrolled her as his spouse for benefits through his employment with the Rapides Parish School Board, as the beneficiary of his life insurance policy, and as the beneficiary of his Army pension.

David Allen and June René both testified that they told Ethel their parents were still married. David Allen stated that he met Ethel in Alexandria prior to his father retiring from the military, and after he moved to Alexandria, he babysat her children approximately once a month while she and his father went out. Sometime thereafter, he moved to Houston, and he and his sister met Ethel while visiting their father in Rapides Parish in 1981. According to David Allen, Ethel hugged both of them and told them that she was going to be their step-mother. He testified that he became angry and informed Ethel that he already had a mother. According to David Allen, when he made this statement, David became upset and professed to not know what he was talking about. Thereafter, David Allen claimed, he never again spoke to Ethel until after his father’s death.

June René’s testimony concerning the 1981 incident paralleled her brother’s. She also responded to Ethel’s comment by stating that she already had a mother and that her father already had a wife.

InThe trial court found that Ethel was in good faith in entering into and throughout her marriage to David. With regard to the statements of David Allen and June René that they already had a mother, the trial court concluded that these statements failed to contain “any certain or authoritative knowledge of some legal impediment that would have prompted further investigation.”

After reviewing the record, we cannot say that the trial court was clearly wrong in finding that Ethel was in good faith when she entered into and throughout her marriage to David. Accordingly, we find no error in its finding that she is entitled to putative spouse status.

As David’s putative wife, Ethel is entitled to share in the civil effects of the putative community of acquets and gains which existed between them. La.Civ.Code art. 96. Furthermore, as the marriage between Harriett and David was valid, a legal community of acquets and gains still existed between them. Thus, both communities co-existed between April 8, 1983 and March 31, 2005. In a similar scenario, the court in In re Succession of Gordon, 461 So.2d 357 (La.App. 2 Cir.1984), writ denied, 464 So.2d 319 (La.1985), citing the supreme court’s opinion in Prince v. Hopson, 230 La. 575, 89 So.2d 128 (1956), divided the community property so that the legal and putative spouses each received a one-fourth interest and the decedent’s heirs received a one-half interest. We agree that this manner of division would be most equitable. Accordingly, we remand the matter so that the trial court can continue with the division of community property in accordance with our determination.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court. We now render judgment declaring that Harnett Boyer Jones is the sole surviving 112spouse of David Jones, Jr. and declaring the marriage of David Jones, Jr. and Ethel LeDuff Jones null and void. We further render judgment declaring that Ethel LeDuff Jones was the putative spouse of David Jones, Jr. and is entitled to the civil effects arising from their marriage as that status allows. We remand the matter to the trial court for further proceedings consistent with this opinion. We assess the costs of these proceedings equally between Harriett Boyer Jones and Ethel LeDuff Jones.

REVERSED, RENDERED, AND REMANDED.

      . The petition implies that the parties were married on April 12, 1978, in Rapides Parish and physically separated the same day. It further implies that Harriett was in Rapides Parish, but immediately after the marriage, "packed her belongings and went back to Houston, Texas.” However, it does not specifically state that the parties were married in Rapides Parish, and títere is no dispute but that the second marriage occurred in Houston.

      . The trial court did not directly rule on the admissibility of the documents, but by accepting them as a proffer, it is assumed that the trial court sustained Ethel's objection.


author: THIBODEAUX, Chief Judge.

text:
    Mitchell R. CREDEUR, et ux. v. CHAMPION HOMES OF BOAZ, INC., et al.
    No. 2008-1096.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    Rehearing Denied April 15, 2009.

      M. Terrance Hoychick, Eunice, LA, for Plaintiffs/Appellants — Mitchell R. Credeur and Naomi Credeur.
    Steven J. Bienvenu, Dauzat, Falgoust, Caviness, and Bienvenu, L.L.P., Opelou-sas, LA, for Defendant/Appellee — Jim Tat-man’s Mobile Homes, Inc.
    Lamont Paul Domingue, Voorhies & Labbe, Lafayette, LA, for Defendants/Ap-pellees — Champion Homes of Boaz, Inc. and Chandeleur Homes, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

1 iPIaintiffs-appellants, Mitchell R. Cred-eur and Naomi Credeur, individually and on behalf of their minor child, Marissa Credeur, assert that the trial court erred by granting an exception of prescription in favor of a mobile home seller, Jim Tat-man’s Mobile Homes, Inc. (Tatman’s). Although the Credeurs alleged that Tatman’s secured and installed the component parts necessary for a complete manufactured home, the trial court found that Tatman’s was not a manufacturer but only a seller in good faith. Therefore, the trial court applied the four-year prescription, barring the Credeurs’ cause of action in redhibition. Because a retailer who installs a component part of a structure to make that structure usable is held to the same standard as a manufacturer, the correct prescriptive period here was one year from the discovery of the defect. Because the Credeurs filed a petition claiming that Tat-man’s installed the component parts that made their home defective less than one year after their discovery of the defect, their action for redhibition was timely. Therefore, we reverse.

I.

ISSUE

We shall consider whether for the purposes of prescription in a redhibition action, the retailer of a mobile home can be held to the same standard as a manufacturer and, thus, be imputed with knowledge of the redhibitory defect in a mobile home it sold, where the plaintiffs alleged that the retailer secured and installed component parts necessary to complete the mobile home.

_kH-

FACTS

On April 29, 1999, the Credeurs bought a mobile home from Tatman’s. More than seven years after the purchase, the Cred-eurs noticed that a corner of their ceiling was discolored, soft, and damp. Since then, the Credeurs maintained that the mold and moisture have spread throughout their home and led to various health problems in the family. After the unsuccessful attempts to obtain necessary repairs from Tatman’s, the Credeurs filed this suit against Tatman’s and Champion Homes of Boaz, Inc. f/d/b/a Chandeleur Homes, Inc. (Champion), the original manufacturer of the mobile home.

Tatman’s filed an exception of prescription, stating that the Credeurs provided no evidence that would suggest that Tatman’s knew of any defect in the home at the time it sold the home to the Credeurs. Thus, Tatman’s argued, the Credeurs’ action for redhibition prescribed four years from the day of delivery of the mobile home to the Credeurs. Tatman’s maintained that because the Credeurs filed suit more than seven years after the sale, the action was barred.

The Credeurs, on the other hand, asserted that the correct prescriptive period for their redhibition cause of action was one year from the date of the discovery of the defect. The Credeurs argued that because they alleged that Tatman’s secured and installed component parts necessary to complete the mobile home in question, Tat-man’s was a manufacturer and was solidarity liable to the Credeurs.

The trial court held that Tatman’s was not a manufacturer but a good faith seller, to whom the four-year prescriptive period applied. Thus, the trial court dismissed the Credeurs’ claims against Tatman’s, and the Credeurs appealed.

_kIIL

STANDARD OF REVIEW

The manifest error standard of review applies to an appellate court’s consideration of an exception of prescription. Strahan v. Sabine Ret. & Rehab. Ctr., Inc., 07-1607 (La.App. 3 Cir. 4/30/08), 981 So.2d 287. We must bear in mind, however, that an appellate court must strictly construe the statutes against prescription and in favor of the extinguished claim. Id.

rv.

LAW AND DISCUSSION

The action for redhibition against a good faith seller prescribes in four years from the delivery date of the thing sold to the buyer, or in one year from the buyer’s discovery of the defect, whichever occurs first. La.Civ.Code art. 2534(A)(1). On the other hand, an action for redhibition against a seller who knew or is presumed to have known of the defect in the thing sold, prescribes in one year from the day of the buyer’s discovery of the defect. La.Civ.Code art. 2534(B). “[A] manufacturer is conclusively presumed to have knowledge of defects in the object it produces.” Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1126 (La.1992). Thus, a manufacturer is deemed to be a bad faith seller. Id.; Gupta v. Moss, 97-172 (La.App. 3 Cir. 6/18/97), 698 So.2d 13. Where a retailer sells and, as a part of the sale, installs a thing, and that installation is defective, the seller is held to the same standard as a manufacturer and is presumed to have known of the defect in the installation. See Rey v. Cuccia, 298 So.2d 840 (La.1974).

The party who pleads the peremptory exception of prescription has the burden of proof. In re Succession of Comeaux, 04-1335 (La.App. 3 Cir. 3/2/05), 896 So.2d 1223. On the other hand, if on the face of the pleadings it appears that ^prescription has run, the burden shifts to the opposing party to prove interruption or suspension of prescription. Id. Our sister jurisdiction has further held that in an action for redhibition, it is not enough to simply allege that the seller was in bad faith. Ins. Storage Pool, Inc. v. Parish Nat’l Bank, 97-2757 (La.App. 1 Cir. 5/14/99), 732 So.2d 815. Thus, if the buyer alleges that the seller knew of the defect in the thing sold, to get the benefits of the one year prescription from the date of discovery, the buyer needs to submit evidence to prove the seller’s knowledge, provided it appears on the face of the pleadings that prescription has run. Id.

Although past litigants brought up the issue of whether, under certain circumstances, a retailer can be held to the same standard as a manufacturer, this court has not had the necessity to resolve this issue until now. See Gradney v. Chandeleur Homes, Inc., 04-1546 (La.App. 3 Cir. 4/6/05), 900 So.2d 282; Dalme v. Blockers Manufactured Homes, Inc., 00-244 (La.App. 3 Cir. 1/25/01), 779 So.2d 1014, writ denied, 01-1246 (La.6/15/01), 793 So.2d 1248. Our review of the statutes and jurisprudence leads us to the conclusion that a retailer who actively participates in the construction, assembly, or installation of the component parts that are essential for the structure to become usable for its intended purpose, and this end structure has a redhibitory defect, the retailer is held to the same standard as the manufacturer, i.e., he is presumed to be a bad faith seller. A seller who receives component parts of a structure and then assembles them into a complete whole is, in fact, a seller who is the actual maker of the complete whole. Thus, if the whole has a redhibitory defect, this seller is presumed to be in bad faith.

Here, the Credeurs did not simply allege that Tatman’s knew of the defects in the mobile home it sold. The Credeurs alleged that Tatman’s installed the component parts of the home. Tatman’s has not denied this allegation. If that | .^installation was defective, then Tatman’s is conclusively presumed to be a bad faith seller. Moreover, because Tatman’s is the seller who allegedly installed component parts of the mobile home, Tatman’s became the actual maker of the complete mobile home the Credeurs received. This, in turn, makes Tatman’s a seller in bad faith. Thus, it is evident on the face of the pleading that the applicable prescriptive period is one year from the date of discovery of the defect, and not four years from the date of delivery.

The trial court’s reliance on Gupta, 698 So.2d 13, for the proposition that Tatman’s cannot be presumed to be a bad faith seller because it was not the actual maker of the home nor did it hold out the home as its own, is misplaced. In Gupta, the plaintiffs tried to sue the homeowners for the defects in a brick house that the homeowners hired a contractor to design and build. Id. There was deposition testimony that the contractor built the whole house and that the homeowners’ participation in that process was typical of most homeowners, i.e., monitoring of construction and voicing of preferences. There was no evidence that the homeowners actually participated in the building of the house. Id. Therefore, this court ruled that the homeowner was not a manufacturer for the purposes of prescription. Id.

Unlike the sellers in Gupta, who merely observed the construction of their home, the Credeurs alleged that Tatman’s actually installed the component parts of their home. Therefore, the trial court’s reliance on Gupta was in error.

Because it appears from the Credeurs’ petition that the one year from the date of discovery prescriptive period applies, the burden of establishing that the Credeurs’ claims against Tatman’s have prescribed remained with Tatman’s. | ^Tatman’s failed to carry this burden. Therefore, the trial court’s dismissal of Tatman’s from the litigation was in error.

V.

CONCLUSION

The trial court’s grant of Tatman’s exception of prescription is reversed. The costs of this appeal are assessed to Jim Tatman’s Mobile Homes, Inc.

REVERSED.

      . The Credeurs also asserted a breach of warranty claim, stating that the home they bought was not of the kind and quality Tat-man’s represented to them. The Credeurs argue that this cause of action has a ten-year prescriptive period and, therefore, is timely. Because we conclude that the trial court erroneously granted Tatman's exception of prescription in the Credeurs’ redhibition claim, we need not consider the Credeurs' breach of warranty argument.

      . In their briefs, the parties focused on whether Tatman's and Champion could be considered solidary obligors. At this point, the case presents an issue of prescription and not of the nature of the obligation. Therefore, this court need not address whether or not Tatman's and Champioh will be solidarily liable for the damages.