author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Aaron J. LAWRENCE.
    No. 2008-KA-0397.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2009.

      Robert L. Freeman, Jr., District Attorney of Orleans Parish, David S. Pipes, Jr., Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appel-lee.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DAVID S. GORBATY, Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

| STATEMENT OF THE CASE

The appellant, Aaron Lawrence, was charged by bill of information with violations of La. R.S. 40:966(A)(1), to wit, one count of possession of heroin with intent to distribute, and one count of possession with intent to distribute cocaine. The appellant was also charged with a violation of La. R.S. 14:95.1, the crime of being a convicted felon in possession of a firearm.

The appellant entered pleas of not guilty to all charges on March 21, 2007. On March 28, 2007, the court granted the appellant’s motion to sever his case from that of his brother, Jonathan T. Lawrence. All prior motions from the first, dismissed case (467-166 “F”) were adopted into the instant case (467-229 “F”).

The appellant appeared for trial on May 21, 2007, and elected to be tried by a jury. Following the trial, the appellant was found guilty of the lesser included offenses of attempted possession of heroin and attempted possession of cocaine. The jury was unable to reach a verdict on the charge of being a felon in possession of a firearm, and a mistrial was entered as to that count.

pOn May 24, 2007, the appellant filed a motion for a new trial. On June 6, 2007, he filed a motion for post-verdict judgment of acquittal. On June 13, 2007, testimony was taken regarding the appellant’s post-trial motions. On June 20, 2007, the trial court denied the appellant’s post-trial motions. On that same date, the state filed a bill of information charging the appellant as a multiple offender pursuant to La. R.S. 15:529.1.

On August 9, 2007, the appellant appeared for trial on the charge of being a felon in possession of a firearm and was found not guilty. On that same date, the appellant filed a motion to quash the multiple bill. The trial court denied the motion to quash on August 30, 2007.

On September 14, 2007, the appellant appeared for an adjudication hearing on his status as a habitual offender. Following the hearing the trial court found the appellant to be a second offender. As to count one, the attempted possession of heroin, the trial court sentenced the appellant to serve ten years in the custody of the Louisiana Department of Corrections. As to count two, the attempted possession of cocaine, he was sentenced to a term of two years and six months. Both sentences were to be served concurrently without benefit of probation or suspension of sentence.

STATEMENT OF FACTS

In May of 2006, following complaints of drug activity in the 2700 block of Robert Street in New Orleans, Louisiana, New Orleans Police Department (“NOPD”) assigned second district officers John O’Brien and Anthony Polidore to investigate the complaints. On May 13, 2006, while on foot patrol in the area the officers observed an open door on a FEMA trailer. As they approached within [ ^approximately fifteen feet of the trailer they detected the odor of burning marijuana emanating from the trailer door.

The officers approached the front door and announced their presence. The defendant, Aaron Lawrence, exited the trailer door. A second subject, later identified as Jonathan Lawrence, also exited the trailer, and fled the scene by jumping over the wooden porch railing. Officer O’Brien testified on direct examination that he chased the second subject, Jonathan Lawrence, on foot. Jonathan Lawrence temporarily eluded capture but was ultimately arrested.

Officer O’Brien testified that about a half hour later, after giving chase to the second subject, he returned to the trailer. Officer O’Brien climbed the porch steps and observed through the open trailer door what appeared to be either an AK-47 or an SKS assault rifle located approximately six feet away from the threshold of the trailer door. The officer was also able to see two bags containing white powder and two freshly smoked marijuana cigarettes. When Officer O’Brien entered the trailer to retrieve the firearm which was lodged between the trailer wall and a sofa, it was discovered that the weapon contained forty live rounds of ammunition. Officer O’Brien, while in the trailer, also discovered unspecified quantities of heroin, cocaine, a piggy bank containing money, several plastic sandwich bags, and ammunition which matched the caliber of the weapon seized.

Officer Polidore testified that after advising Aaron Lawrence of his Miranda rights, the defendant stated that he was selling drugs because he needed money to support his pregnant girlfriend. On cross-examination, the officer conceded that the statement had not been recorded at the time it was made, included in any police report, nor were there any witnesses to the appellant’s statement. Officer Poli-dore acknowledged that he never saw Aaron Lawrence in possession of any contraband. |4Officer Polidore noted that Officer O’Brien had gathered all of the evidence regarding the contraband.

The defense called Ms. Lottie Irvin, the appellant’s grandmother, as a witness. Ms. Irvin is the owner of the FEMA trailer where the appellant was arrested. She testified that the trailer was parked in front of her residence which was undergoing repairs at the time of the incident. She further testified that she did not actually live in the trailer, but rather allowed various members of her family, including her grandsons, to use the trailer. She also testified that on the day of the arrest, May 13, 2006, she had left money with the appellant to give to the contractor in her absence. Finally, she testified that she had never seen or had knowledge of the existence of drugs or guns in her trailer.

As its final witness, the defense called Mr. Byron Vallery, a contractor, who testified that he had made arrangements to pick up money on the day in question from the appellant for the purpose of buying supplies for the repair work at Ms. Irvin’s home. He testified that when he arrived at the scene, he saw police cars and police officers gathered near the trailer. Realizing that he would not be able to complete his intended task, he left the scene.

At the end of the trial, the defense moved for a directed verdict of acquittal on the grounds that the evidence presented was insufficient to support a conviction. The motion was denied.

ERRORS PATENT

There were no errors patent.

DISCUSSION

ASSIGNMENT OF ERROR # 1

| ¡¿The appellant argues that the trial court erred in denying the appellant’s post-verdict motion of acquittal as the evidence adduced at trial was insufficient to support the verdicts of guilty of attempted possession of heroin and attempted possession of cocaine. Specifically, the appellant asserts that the State failed to establish that the appellant had the requisite intent to possess either substance found in the trailer.'

The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that' all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992). The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra.

This Court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational | (jtriers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987). 98-0011 at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La. App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

The appellant argues in the instant case that no evidence was found which directly linked the appellant to the trailer or its contents except that it was owned by his grandmother, and that therefore, the case against him is entirely circumstantial. The appellant asserts that because testimony elicited at trial revealed that numerous people had access to the trailer; the state’s evidence does not preclude the possibility of his innocence. He cites La. R.S.15:438, which states: “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

The appellant was convicted of attempted possession of heroin and of attempted possession of cocaine. He admitted to possession of those substances after being read his Miranda rights. To support a conviction for possession of any such contraband, the State must prove that a defendant knowingly possessed the 17contraband. State v. Chambers, 563 So.2d 579, 580 (La.App. 4 Cir.1990). The State need not prove that the defendant was in actual possession of the contraband in question; constructive possession is sufficient to support the conviction. See State v. Trahan, 425 So.2d 1222, 1226 (La.1983); see also State v. Cann, 319 So.2d 396, 397 (La.1975).

A person not in physical possession of contraband may have constructive possession when that contraband is under that person’s dominion and control. State v. Jackson, 557 So.2d 1034 (La.App. 4 Cir. 1990). Determination of whether a defendant had constructive possession depends on the circumstances of each case. See also State v. Sykes, 2004-1199, p. 7, (La. App. 4 Cir. 3/9/05), 900 So.2d 156, 162.

The evidence shows not only did the appellant intend to possess the drugs, but that the appellant admitted to the officers that he was selling drugs to support his pregnant girlfriend. He was found in a trailer containing not only heroin, cocaine and marijuana drugs but also drug paraphernalia (plastic bags) arguably indicia of drug distribution. Compounding the problem was a significant amount of cash found on his person. Further, as adduced at trial, is the fact that the officers were in the exact area of the FEMA trailer where the appellant was found while investigating a complaint of drug distribution. Considering all of this evidence in a light most favorable to the prosecution it was clearly established that the appellant had specific intent to possess the narcotics located in the FEMA trailer.

While the appellant may not have been seen in physical possession of the drugs, in light of the above cited jurisprudence the circumstances described clearly place the appellant in possession thereof. There is sufficient evidence to support the jury’s verdict. Therefore, this Court concludes that the trial court correctly ^denied the motion for post-verdict judgment of acquittal. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 2

The appellant argues that the district court erred in limiting the defense’s cross-examination of Officer Polidore, regarding the length of time that he had been on the police force when the instant crime occurred.

During the course of the trial the defense attempted to question Officer Poli-dore concerning his previous testimony, in an unrelated case, in which he had testified that he had been a police officer for one year. The appellant asserts that this statement contradicted his later testimony in which he testified that he had been a police officer for four months. The trail court sustained the States objection to the defendant’s line of questioning.

The appellant contends that the trial court erred in restricting his constitutional right to confront and cross-examine the state’s witnesses, in that Officer Polidore’s responses to the question of his length of service with the NOPD were and are important to establishing his lack of credibility. He argues that because the state’s case rests so heavily upon the credibility of this officer, that credibility should rightly have been open to attack before a jury.

The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. La. Const. Art. 1, § 16, State v. Schexnayder, 96-98, p. 18 (La.App. 5 Cir. 11/26/96), 685 So.2d 357, 358. The main and essential purpose of the confrontation right is to secure, for the opponent, the opportunity of cross-examination. State v. Robinson, 01-0273, p. 5 (La.5/17/02), 817 So.2d 1131, 1135. In addition, the confrontation clause of the Louisiana State Constitution ^affords an accused the right to confront and cross-examine the witnesses against him. Id. Encompassed in the right of confrontation is the right of the accused to impeach a witness for bias or interest. Schnexnayder, 96-98 at 18, 685 So.2d at 368. The right to expose a witness’s motivation in testifying is both a proper and important function of the constitutionally protected right of cross-examination. La. C.E. art. 607(D); State v. Nash, 475 So.2d 752, 755 (La.1985); State v. Chester, 97-2790, p. 15 (La.12/1/98), 724 So.2d 1276, 1286.

An accused is entitled to confront and cross examine the witnesses against him. La. Const, art. 1, § 16. La. C.E. art. 611(B) provides that a witness may be cross-examined on any matter relevant to any issue in the case. Due process affords a defendant the right of full confrontation and cross examination of the State’s witnesses. State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So.2d 198, 201-202.

The trial court has the discretionary power to control the extent of the examination of witnesses as long as the court does not deprive the defendant of his right to effective cross-examination. State v. Hawkins, 96-0766, p. 6 (La.1/14/97), 688 So.2d 473, 479; State v. Robinson, 99-2236, p. 6 (La.App. 4 Cir. 11/29/00), 772 So.2d 966, 971, rev’d on other grounds, 2001-0273 (La.5/17/02), 817 So.2d 1131. It has been held that evidentiary rules may not supercede the fundamental right to present a defense. Id. However, evidence may be excluded if it is irrelevant. See State v. Casey, 99-0023, pp. 18-19 (La.1/26/00), 775 So.2d 1022, 1037. Further, confrontation errors are subject to the harmless error analysis; the verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial was surely unattributable to the error. State v. Broadway, 96-2659, p. 24 (La.10/19/99), 753 So.2d 801, 817.

|inThe trial court has great discretion to control the extent of examination of witnesses. State ex rel. Nicholas v. State, 520 So.2d 377, 380 (La.1988). La. C.E. article 611(A) provides, in pertinent part, that the trial court:

shall exercise reasonable control over the mode and order of the interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.

A witness, on cross-examination, may be questioned on any matter relevant to any issue in the case, including credibility. La. C.E. article 611(B). However, relevant evidence may be excluded if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La. C.E. article 403. All evidence including attacking the credibility of a witness is subject to the balancing test of the La. C.E. article 403. Absent an abuse of discretion, a trial court’s ruling on the scope and extent of cross-examination will not be disturbed on review. State v. Coleman, 406 So.2d 563 (La.1981); State v. Fleming, 574 So.2d 486 (La.App. 4th Cir.1991).

The appellant argues that the trial court erred by not allowing a full examination of Officer Polidore concerning his statements relevant to his time with the NOPD. We do not find that the trial court committed any error in limiting the scope of cross examination. This Court in State v. Legendre, 2005-1469 pp. 9-10, (La.App. 4 Cir. 9/27/06), 942 So.2d 45, 52, has held that:

The proper standard of review is as follows:
The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully | n realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt.... Factors to be considered by the reviewing court include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.”

The trial court found that the defendant was attempting to impeach Officer Poli-dore on a collateral issue and that the limited probative value of impeachment was outweighed by the undue risk of confusion of the issues. The trial court acted within its discretion to limit the defendant’s line of questioning in its attempt to impeach the State’s witness through the used if irrelevant discrepancies in prior testimony. Based upon applicable law and jurisprudence we find that this assignment is without merit.

For the above and foregoing reasons we affirm the appellant’s convictions and sentences.

AFFIRMED.

      . Jonathan T. Lawrence was also charged by bill of information with two counts in violation of La. R.S. 40:966(A)(1).


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Albert J. WILLIAMS.
    No. 2008-KA-1046.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 2009.
    Robert L. Freeman, Jr., District Attorney, Stephen D. Hebert, Assistant District Attorney, New Orleans, LA, for Appellant.
    Michael H. Idoyaga, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge DAVID S. GORBATY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| ,The appellant, the State of Louisiana, appeals the granting of the motion of the defendant, Albert J. Williams to quash the bill of information.

The defendant was arrested on April 3, 2004 and charged by bill of information on April 14, 2004, with the offense of possession of heroin, a violation of La. R.S. 40:966. The underlying facts surrounding the arrest in this case are not relevant as the only issue on this appeal relates to the timeliness of the prosecution.

La.C.Cr.P. art. 578(A)(2) requires that in non-capital felony offenses, such as that with which the defendant is charged, trial must be commenced within two years of prosecution. However, La. C.Cr.P. art. 579 A(l) provides in pertinent part for the interruption of the two year period “for any ... cause beyond the control of the state.” Once the cause of interruption ceases, the two-year time limit begins anew. State v. Rome, 93-1221, p. 2 (La.1/14/94), 630 So.2d 1284, 1287. Hurricane Katrina intervened in the instant case and that has been held to interrupt the La.C.Cr.P. art. 578 A(2) two-year time period. State v. Brazile, 06-1611, p. 4 (La. App. 4 Cir. 5/3/07), 960 So.2d 333, 335-336. In State v. Francis, 07-0480, p. 7 (La.App. 4 Cir. 1/30/08), 977 So.2d 187, 192, June 5, 2006 was found to be the date after Katrina on which the two-year period started to run again. That gave the |2State until June 5, 2008, in which to comply with the two-year time period. Prior to the expiration of that time, on May 15, 2008, the defendant filed a Motion to Quash. La. C.Cr.P. art. 580 provides that the filing of a motion to quash suspends the running of the two-year time period and that the State has a minimum of one year thereafter in which to commence trial. That one-year time period has not yet expired.

The defendant does not seem to dispute these facts. He seems to argue instead that the accumulation of these delays, while valid under statutory law, are unconstitutional under the facts of this case, largely as a violation of the defendant’s right to a speedy trial, i.e., the statutes are unconstitutional as applied to the facts of this case. However, we find no evidence in the record suggesting that the defendant raised constitutional objections in the trial court. The constitutionality of a statute cannot be raised for the first time on appeal. An attack upon the constitutionality of a statute must first be presented in the trial court. Williams v. State, Dept. of Health and Hospitals, 95-0713 (La.1/26/96), 671 So.2d 899, 901-902; State v. Mickel, 07-47, p. 15 (La.App. 5 Cir. 5/29/07), 961 So.2d 516, 526. A party contesting the constitutionality of a statute has a three-tier burden. Williams, supra; Michel, supra. The presentation must be made in the trial court, the unconstitutionality must be specially pleaded, and the grounds for the claim particularized. Williams, supra; Michel, supra.

In the transcript of the June 17, 2008 hearing on the defense motion to quash the trial judge in explaining why she granted the motion explained that the State knew where the defendant was for some period of time (sitting in jail) prior to Katrina and yet failed to prosecute. The ADA attempted to argue that La.C.Cr.P. | sart. 578 allowed two years in which to bring the defendant to trial, which two year period clearly had not elapsed prior to Katrina.

The trial judge stated that:

The defendant was in jail and you all were pretending like you were looking for him and he’s sitting there in jail saying, “Here I am.” And you did nothing. So, I’m granting that Motion to Quash.

Thus, it appears to this Court that the trial court did not allow the La.C.Cr.P. art. 578 two-year period in which to bring the defendant to trial to be interrupted by Katrina believing that the State knew where the defendant was and could have tried him sooner. This inference seems to be a reference to La.C.Cr.P. art. 579(A)(1) which provides for interruption of the time period where the defendant absents himself for the purpose of avoiding detection which the defendant did not do in this case. However, this fails to take into account the provisions of La.C.Cr.P. art. 579(A)(2) which allows for interruption of the two-year period “for any other cause beyond the control of the state.” The fact that the State could have tried the defendant sooner is impertinent as long as the State brings the defendant to trial within the time period allowed by La.C.Cr.P. art. 578, subject to the interruptions allowed by La.C.Cr.P. art. 579 and the suspensions allowed by La.C.Cr.P. art. 580. Pursuant to Rome, Brazile and Francis cited, supra, we find that the State is not untimely and that the filing by the defendant of the motion to quash has further extended the time in which the State must commence trial in accordance with La.C.Cr.P. art. 580.

For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this decision.

REMANDED.


author: PAUL A. BONIN, Judge.

text:
    Jerry JACKSON v. M.R. PITTMAN, LLC.
    No. 2008-CA-0966.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2009.

      Joseph G. Albe, New Orleans, LA, for Jerry Jackson.
    Leslie E. Hodge, Lindsey A. Flexer, Timothy Guillory, Brown Sims, P.C., New Orleans, LA, for M.R. Pittman L.L.C., and Gray Insurance Company.
    Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN.
   PAUL A. BONIN, Judge.

11 This is an appeal in a workers’ compensation case by the employer and its insurance carrier from an adjudication of contempt against the insurer only, Gray Insurance Company (“Gray”), for disobedience of an order of the OWC judge and the imposition of fines of $100.00 per day for each day of disobedience of the order. For the reasons we give below, we reverse the judgment, and remand to the OWC for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

The claimant, Jerry Jackson, alleged that he was injured while in the course and scope of his employment with M.R. Pittman, LLC, as a result of an unprovoked attack by a co-employee. The employer and its compensation carrier, Gray, began the payment of benefits, but asserted an affirmative defense of fraud against Mr. Jackson. See La. R.S. 23:1208. Later, Gray discontinued paying benefits to Mr. Jackson and filed a motion for summary judgment on the fraud defense.

Before the hearing on the motion for summary judgment, Mr. Jackson filed a motion to compel the employer to make the requisite provisions for examination and treatment of Mr. Jackson by a neurosurgeon of his choice. The treating 12physician, Dr. Wood, had determined that Mr. Jackson’s injuries should be evaluated by a neurosurgeon. The employer is required by La. R.S. 23:1121(B)(1) to honor such a request from the employee. Gray objected to the motion to compel on the grounds that the motion for summary judgment was pending.

On March 17, 2008, the OWC judge granted the motion to compel and served both the claimant’s attorney and the defense attorneys in the hearing room with her written order. Apparently, counsel for the parties later had informal discussions with each other during which, as claimant’s counsel contends, defense counsel indicated that her clients had no intention of complying with the court order until after a decision by this court on an application for supervisory writs which they intended to file, and, as defense counsel contends, claimant’s counsel advised that he had not yet selected a neurosurgeon. On April 3, 2008, Gray filed its notice of intention to file an application for supervisory writs.

On April 4, 2008, the claimant filed a motion for contempt against the employer in which he specified that he was proceeding under the provisions of La. R.S. 23:1310.7. The employer filed its opposition on April 7, 2008, in which it noted that the time for filing its writ application had not yet expired and that Mr. Jackson had not as yet identified the neurosurgeon of his choice.

By letter dated April 24, 2008 to defense counsel, Mr. Jackson’s counsel asserted that he had been attempting to obtain from defense counsel the identity of the individual for him to contact about making arrangements for the neurosurgeon and that he had been ignored. He went on to identify a neurosurgeon by name for the first time, Dr. Richard Corales.

|sThe following day, April 25, 2008, Gray filed its application in this court for supervisory writs. The OWC judge had not at any time up to this point granted a stay of the execution of her order of March 17, 2008. On May 2, 2008, Gray requested expedited consideration of its pending writ application and requested that this court stay the enforcement of the March 17, 2008 order.

This court denied the request for a stay on May 9, 2008. On May 12, 2008, counsel appeared before the OWC judge for the hearing on the claimant’s motion for contempt. During the hearing counsel for Gray argued three points: (1) since the claimant filed his motion for contempt before the expiration of delays for supervisory relief and before he identified Dr. Co-rales, the motion was premature and would have to be re-filed; (2) even though Dr. Corales had been identified and this court had denied a stay of the enforcement of the order, the order was not enforceable because the writ application was still pending; and (3) their conduct was not wilful, precluding an adjudication of contempt. Gray made clear during the hearing that it had no intention of complying with the March 17th order unless and until this court denied them relief.

On May 27, 2008, the OWC judge issued her decision with written reasons, adjudicated Gray in constructive contempt of court. She also fined Gray $100.00 per day for each day, beginning with March 17, 2008, until it complied with the order compelling examination and treatment by Dr. Corales. In her written reasons, she did not cite the statute upon which she based her fines, and she did not place a limit on the total amount to which the employer would be subjected. From the judge’s decision, Gray suspensively appealed to this court.

|4On May 29, 2008, this court denied the writ application regarding the March 17, 2008 order.

On June 10, 2008, defense counsel notified claimant’s counsel by letter that an appointment for Mr. Jackson with Dr. Co-rales had been confirmed for June 18, 2008.

LEGAL ISSUES ON APPEAL

On appeal, Gray assigns two errors. The first is that its conduct does not constitute constructive contempt. The second is that the penalty imposed by the OWC judge is not an authorized penalty for constructive contempt. The claimant has not appealed.

As we noted earlier Mr. Jackson specified in his motion for contempt that he was proceeding pursuant to the provisions of La. R.S. 23:1310.7, which provides:

A. A workers’ compensation judge shall have the power to enforce any order or judgment he shall deem proper which is issued pursuant to the powers and jurisdiction provided for in this Chapter and the Constitution of Louisiana. This power shall not include the authority to order a person confined.
B.(l) Direct contempt in a workers’ compensation proceeding shall be as defined in Louisiana Code of Civil Procedure Article 222, except that it shall be committed before or in response to a subpoena or summons of a workers’ compensation judge instead of the court. In a case of direct contempt, the workers’ compensation judge may assess a civil fine of up to five hundred dollars for each such contempt violation which shall be payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation.
(2) Constructive contempt in a workers’ compensation proceeding shall be as defined in Louisiana Code of Civil Procedure Article 224, except that it shall be concerning the workers’ compensation judge and hearing procedures instead of the court. In a case of constructive contempt, the workers’ compensation judge may assess a civil fine of up to five hundred dollars for each such contempt violation which shall be payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation.
(3) In any case where the workers’ compensation judge has found a party in direct or constructive contempt, or has | ^imposed sanctions on a party for conduct in connection with the litigation of a claim, the workers’ compensation judge shall issue written reasons in connection with said ruling and shall report such findings to the director on a form promulgated by the director, within thirty days of the ruling.
C. Workers’ compensation judges shall have the authority to issue subpoenas and subpoenas duces tecum as provided in Louisiana Code of Civil Procedure Articles 1351 through 1354. Subpoenas issued pursuant to this Section may be served by certified mail, return receipt requested.
D. Nothing in this Section shall be construed to limit the power of the workers’ compensation judge to encourage compliance with and enforcement of his orders by means other than referral to the district courts for contempt proceedings.
(Emphasis added.)

This statute confers upon an OWC judge the power to punish for constructive contempt. La. R.S. 23:1310.7(A) and (B)(2). Constructive contempt is determined by reference to La. C.C.P. art. 224(2), which provides in pertinent part:

A constructive contempt of court is any contempt other than a direct one.
Any of the following acts constitutes a constructive contempt of court:
(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court;

Section 2 of the article makes clear that “wilful disobedience” of a lawful order is punishable as constructive contempt. There is no question at this point that the March 17, 2008 order was lawful as it is authorized by La. R.S. 23:1121(B)(1) and Gray does not argue otherwise in this appeal.

|(;We first note that the May 27, 2008 order from which this appeal is taken is a final judgment as it imposes sanctions or disciplinary action similar to the provisions of La. C.C.P. art. 1915(A)(6). The 1999 comment to this article states that a judgment imposing sanctions or disciplinary actions is a final appealable judgment. See also Corbello v. Isle of Capri Casino, 04-1633, p. 2 (La.App. 3 Cir. 1/12/05), 892 So.2d 149, 150.

The appellate standard of review for sanctions imposed pursuant to La. C.C.P. art. 863, analogous to an OWC judge’s factual determination that La. R.S. 23:1310.7 was violated, is subject to the “manifest error” or “clearly wrong” standard. Borne v. New Orleans Health Care, Inc., 616 So.2d 236, 239 (La.App. 4 Cir. 1993). However, a finding as to sanctiona-ble behavior may be reversed if the record does not support the determination. Id. Further, statutes which provide for sanctions must be strictly construed. Langley v. Petro Star Corp. of La., 01-0198, p. 4 (La.6/29/01), 792 So.2d 721, 723. See also Williams v. Rush Masonry, Inc., 98-2771, p. 9 (La.6/29/99), 737 So.2d 41, 46.

The Louisiana Supreme Court in Rhodes v. Lewis, 01-1989, pp. 7-8 (La.5/14/02), 817 So.2d 64, 69, stated:

The purpose of the Workers’ Compensation Act is to set up a court-administrated system to aid injured workmen by relatively informal and flexible proceedings that are to be interpreted liberally in favor of workmen. Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99), 748 So.2d 399; Landreneau v. Liberty Mut. Ins. Co., 309 So.2d 283 (La.1975). The Louisiana Constitution and the Workers’ Compensation Act were amended, and the district courts were divested of jurisdiction over claims arising out of the Workers’ Compensation Act. The OWC was empowered to resolve disputes and issue orders regarding workers’ compensation claims. The purpose of the changes were to provide a speedy resolution to workers’ compensation claims and a sunft recourse for injured workers. See Kelly v. CNA Insurance Co., 98-0454 (La.3/12/99), 729 So.2d 1033.
(Emphasis added.)

17Pefense counsel for Gray must know that under Rule 4-4 of the Uniform Rules of the Courts of Appeal, there is no automatic stay of proceedings. The mere filing of an application for supervisory relief does not stay the enforcement of the order under review.

Therefore, at all times from March 17, 2008 until June 10, 2008, Gray was required to obey the order of the OWC judge, if it could. Although Gray made it clear that it had no intention of obeying the order until after this court acted on the writ application, the order provided only that it “shall approve and pay for a medical evaluation with a neurosurgeon chosen by Claimant.” It is certain Gray never asked the claimant to identify the neurosurgeon so that it could comply with the order. And it is also true that Gray never cooperated with the claimant’s counsel in identifying anyone with whom he could make the necessary arrangements.

Gray’s argument that it was unable to comply with the OWC judge’s order is undercut by its ongoing failure to comply when it finally received the doctor’s identity, when it was notified that its request for a stay had been denied by this court, when it appeared before the OWC judge for the contempt hearing, or when it was notified that this court had denied its writ application. Each of these events corroborates that Gray’s disobedience was wilful. It is clear that the March 17, 2008 order was not obeyed for another two weeks after the OWC judge adjudged |sGray in contempt and for another ten days after this court denied the review the appellants claimed they were awaiting before compliance. These proceedings, as well as the contradictory hearing on the motion for contempt, support the OWC judge’s determination that the employer’s conduct was sanctionable.

Under these facts we conclude that the OWC judge was not manifestly erroneous in finding that Gray’s disobedience to her lawful order was wilful and, as such, would be contemptuous. However, we turn now to whether the finding of constructive contempt was the appropriate means of enforcing compliance with her March 17, 2008 order.

As we observed earlier, the OWC judge in her written reasons did not cite the legal authority for the penalty assessed. We first note that the claimant expressly based his motion for contempt on La. R.S. 23:1310.7. The applicable section for punishment of constructive contempt, as we have already seen, is section (B)(2). The maximum penalty for each act of constructive contempt is $500.00, payable to Kids Chance Scholarship Fund, Louisiana Bar Foundation. In its second assignment of error, Gray urges that the penalty imposed by the OWC judge exceeded her authority. Mr. Jackson, to the contrary, argues that the $100.00 per day fine assessed against the defendants is well within the statutory maximum. He suggests that the OWC judge implicitly considered each day of violation of her order as a separate act of contempt. Mr. Jackson relies upon City of Kenner v. Jumonville, 97-125, 97-210, 97-602, p. 19 (La.App. 5 Cir. 8/27/97), 701 So.2d 223, 233, as support for the proposition that each day of violation constitutes a separate act of contempt, punishable up to the limit of $500.00 per day. However, | %City of Kenner was decided under a different statute, namely La. R.S. 13:4611. That statute is not applicable to orders of an OWC judge. It is restricted to the orders of judges in the judicial branch of government, which judges are specified in the statute itself. The rules and regulations of the OWC expressly provide that contempt is to be handled exclusively under La. R.S. 23:1310.7. See LAC 40:5535(B) and 5537.

We find nothing in La. R.S. 23:1310.7 which expressly prohibits the accrual of fines for separate acts of contempt and note that, in general, the law in this state clearly recognizes the validity of contempt judgments that assess a per day contempt fine for non-compliance. Parish of Jefferson v. Muhammad, 96-572 (La.App. 5 Cir. 12/11/96), 686 So.2d 905.

In this case, Gray was represented by legal counsel. It was put on notice as to the treatment that the claimant sought. The contempt hearing was held nearly two months after the March 17, 2008 order, and Gray had been given more than adequate notice that it was expected to comply with that. Gray had an opportunity to explain and defend its refusal to comply with a lawful order. Mr. Jackson’s first motion, filed on February 26, 2008, which resulted in the March 17, 2008 order, cited case law placing Gray on notice that the authorization for a medical evaluation was owed to the claimant, the possibility that it may be held in | incontempt, and that it may owe attorney’s fees if it did not comply with the statute.

The purpose or objective of imposing fines is not to be punitive, but to cause a party to remedy the violation. A party “can avoid paying the fine simply by performing the affirmative act required by the court’s order.” Champagne v. Champagne, 541 So.2d 933, 936 (La.App. 5 Cir. 1989).

Gray relies on the case of Lang v. Asten, Inc., 05-1119 (La.1/13/06), 918 So.2d 453. Lang is distinguishable. In Lang, an insurance company was ordered to comply with an order to provide a defense to an alleged insured. When it refused, the district court, without affording the insurance company an opportunity to show cause at a contradictory hearing, found the insurer in contempt of court. Here the OWC judge made a finding of wilful disobedience only after notice and a hearing. In Lang, the Supreme Court noted that the insurance company had sought a new trial and an appeal from the ruling ordering the defense. While Gray sought review, it failed to comply promptly even after its writ application and request for stay were denied.

Therefore, we find that, after notice and hearing, the OWC judge was not manifestly erroneous in concluding that Gray wil-fully refused to comply with her March 17, 2008 order.

However, we find that a specific statute governs this situation. La. R.S. 23:1201(F) provides:

Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an \uamount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
(3) Except as provided in Paragraph (4)of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.
(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.
(5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance.
(Emphasis added.)

Thus, while we agree that La. R.S. 23:1310.7 regarding constructive contempt could deal with the problem presented by Gray’s conduct, we find that [12under the facts and circumstances of this case, La. R.S. 23:1201(F) specifically deals with this situation. “It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter, the statute specifically directed to the matter at issue must prevail as an exception to the more general statute.” Fontenot v. Reddell Vidrine Water District, 02-0439, p. 20 (La.1/14/03), 836 So.2d 14, 28. When the two statutes are penal in nature and requiring of strict construction, Johnson v. City of New Orleans Police Department, 08-0269, p. 1 n. 1 (La.App. 4 Cir. 1/14/09), 4 So.3d 114, the need to apply the more specific statute is that much more compelling. We, therefore, determine that the OWC judge erred as a matter of law in applying the general statute on contempt, if that is what she did, rather than the statute which specifically applies to the conduct of Gray in this case.

There is no prejudice to Gray in this determination. In fact, Gray alternatively argues that this is the statute that applies. A very similar case is Nelson v. Windmill Nursery of La., L.L.C., 04-1941 (La.App. 1 Cir. 9/23/05), 923 So.2d 709, writ denied, 05-2294 (La.3/10/06), 925 So.2d 516, where the First Circuit imposed sanctions pursuant to La. R.S. 23:1201(F) for the failure to authorize medical treatment pursuant to La. R.S. 23:1121(B)(1).

While the daily penalty assessment of $50 is less than the amount of the daily fine of $100 assessed by the OWC judge, it is payable to Mr. Jackson, who was the person deprived of the required medical services and whose case resolution was improperly delayed by Gray. Also, this specific statute provides for the award of attorney’s fees, unlike the general contempt statute which does not.

| i-jWe, therefore, remand the matter to the OWC judge for the sole purpose of her making the proper calculations on the assessment of penalties and the attorney’s fees provided under La. R.S. 2S:1201(F). In remanding the matter, we instruct the OWC judge that the only number of calendar days for which an assessment can be made is the undisputed period of time from the date on which Mr. Jackson identified Dr. Corales by name (April 24, 2008), until the letter authorizing the medical evaluation from defendants’ counsel (June 10, 2008).

DECREE

For the foregoing reasons, we reverse the OWC judgment dated May 27, 2008 and remand the matter to the Office of Workers’ Compensation, 8th District, for further proceedings consistent with this opinion. We further direct the OWC judge to render judgment on the remanded issues simultaneous with the judgment on the trial of the merits, if that judgment has not yet been rendered.

REVERSED AND REMANDED.

      . In general in this opinion we will refer to Gray, which reference does not necessarily exclude Pittman, the employer. While one or the other may have been cited or ordered, the other explicitly joined to oppose the motion, or seek review, or file the appeal. We note that in the judgment appealed, the OWC judge made a finding as to the carrier, exclusively and specifically.

      . After the events of giving rise to this appeal, the employer by consent judgment dated June 26, 2008, abandoned this defense and agreed that it would not be urged at the trial on the merits.

      . The return date given was April 25, 2008.

      . This record is unclear whether Gray ever requested a stay from the OWC judge. In the associated writ, 2008-C-0513, the OWC judge denied the defendant's request for a stay on April 8, 2008.

      . Those earlier proceedings are in case 2008-C-0513.

      . La. R.S. 23:1121(B)(1) provides in pertinent part: “The employee shall have the right to select one treating physician in any field or specialty.... The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.”

      . Rule 4-4(A): “When an application for writs is sought, further proceedings may be stayed at the trial court's discretion. Any request for a stay of proceedings should be presented first to the trial court. The filing of, or the granting of, a writ application does not stay further proceedings unless the trial court or appellate court expressly orders otherwise.” In Gray’s memo to the OWC dated April 3, 2008, counsel cited Rules 4-2 and 4-3, which indicates that familiarity with the Uniform Rules and their provisions.

      . Gray urges in its brief that La. R.S. 13:4611 should be applied. We, of course, reject that contention.

      . An OWC judge is not a member of the judicial branch, but is employed in the executive branch under the supervision of the Director of the Office of Workers’ Compensation. See La. R.S. 23:1310.1(A)-(D), 1310.2, and 1310.6.

      . In Muhammad, a homeowner, appearing in proper person, was put on written notice of the permits and repairs he was required to comply with pursuant to Parish Code. The homeowner was given a period of time to comply and put on clear notice that he would be subject to fines if he did not comply. The homeowner was given numerous opportunities to comply. He did not and the judge assessed a $100 per day fine. The trial court finding was affirmed.

      . At the contempt hearing, separate counsel came to argue in place of lead defense counsel, as well as act as counsel for lead defense counsel, who was also present.

      . The case cited in claimant’s original motion, as well as in the claimant’s brief, is Nelson v. Windmill Nursery of La., L.L.C., 04-1941 (La.App. 1 Cir. 9/23/05), 923 So.2d 709, writ denied, 05-2294 (La.3/10/06), 925 So.2d 516.

      . An award of attorney’s fees in a workers’ compensation case, while penal in nature, is intended to discourage indifference and undesirable conduct by employers and insurers. Moore v. City of New Orleans, 02-1036, p. 13 (La.App. 4 Cir. 1/29/03), 839 So.2d 380, 389, citing Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46. See also Fontenot v. Reddell Vidrine Water District, 02-0439, p. 14 (La.1/14/03), 836 So.2d 14, 24.

      . If the OWC judge finds that the $50 daily assessment is the greater of the penalties, then the maximum amount which can be assessed is $2,000.

      . This would help to avoid piecemeal appeals.


author: MAX N. TOBIAS, JR., Judge. BONIN, J.,

text:
    STATE of Louisiana v. Tony GAINES.
    No. 2008-KA-0967.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2009.

      Robert L. Freeman, Jr., District Attorney, Rachel Luck Africk, Assistant District Attorney, New Orleans, LA, for appellant.
    Harry S. Hardin III, Avery B. Pardee, Jones Walker Waechter Poitevent Carrere & Denegre, LLP, New Orleans, LA, for defendant/appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

hOn 20 March 2007, the defendant, Tony Gaines (“Gaines”), was charged with possession of heroin. A plea of not guilty was entered on 30 March 2007. On 30 November 2007, counsel was appointed and several pretrial motions were filed. A hearing on motions was held on 18 January 2008; the district court found probable cause and denied the motion to suppress the evidence. On 1 and 22 February 2008, the defense filed a motion for subpoena duces tecum. Gaines’ trial that was scheduled for 3 March 2008 was continued at the request of the defense because it had yet to receive a response to the motion for subpoena duces tecum. Trial was then rescheduled for 24 April 2008. On 14 March 2008, the defense filed a motion to quash the bill of information, asserting that Gaines’ constitutional right to a speedy trial was violated. The trial court granted the motion on 11 April 2008, and the state’s timely motion to appeal the ruling was granted on 14 April 2008.

FACTS

Because this appeal pertains to the granting of a motion to quash based upon the denial of the right to a speedy trial, the facts relating to Gaines’ arrest are not pertinent.

19,DISCUSSION

The only issue in this appeal is whether the district court erred when it granted Gaines’ motion to quash the indictment. In the motion and supporting memorandum, he argued that his constitutional right to a speedy trial had been violated.

In State v. Batiste, 05-1571, pp. 6-7 (La.10/17/06), 939 So.2d 1245, 1250, the Court discussed the legal principles which pertain to a claim that a defendant’s constitutional right to speedy trial has been denied:

The constitutional right to a speedy trial is imposed upon the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967). The underlying purpose of this constitutional right is to protect a defendant’s interest in preventing pretrial incarceration, limiting possible impairment of his defense, and minimizing his anxiety and concern. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972). The Supreme Court has set forth the following four factors for courts to consider in determining whether a defendant’s right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s assertion of his right to speedy trial; and (4) the prejudice to the accused resulting from the delay. Id. at 531-532, 92 S.Ct. at 2192-93; see also State v. Reaves, 376 So.2d 136 (La.1979) (adopting Barker factors). The specific circumstances of a case will determine the weight to be ascribed to the length of and reason for the delay because “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” [State v.] Reaves, 376 So.2d at 138 (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192).

The United States Supreme Court made the following observations concerning a defendant’s Sixth Amendment right to a speedy trial in Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972):

| ^Finally, and perhaps most importantly, the right to a speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial. If, for example, the State moves for a 60-day continuance, granting that continuance is not a violation of the right to speedy trial unless the circumstances of the case are such that further delay would endanger the value the right protects. It is impossible to do more than generalize about when those circumstances exist.... Thus, as we recognized in Beavers v. Haubert, ... [198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905)], any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case: “The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights of a defendant. It does not preclude the rights of public justice.” 198 U.S. at 87, 25 S.Ct. at 576, 49 L.Ed. 950.
The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.

Barker, 407 U.S. at 522-23, 92 S.Ct. at 2187-2188.

In addition, the first of the four Barker v. Wingo factors, the length of the delay, is the “triggering mechanism,” and if the length of the delay is not “presumptively prejudicial,” the court need not inquire into the other three Barker factors. See State v. Scott, 04-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843; State v. Santiago, 03-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671.

In the case at bar, Gaines was arrested on 10 January 2007. The bill of information was filed on 20 March 2007. The motion to quash was filed on 14 |4March 2008, and the court granted the motion on 11 April 2008. Thus, the delay from Games’ arrest to dismissal was approximately fifteen months, and the delay from the institution of prosecution to dismissal was approximately thirteen months.

Most cases discussing whether the time limits are presumptively prejudicial considered the time between the filing of the bill of information or indictment and the granting of the motion to quash. In State v. Leban, 611 So.2d 165 (La.App. 4th Cir. 1992), the state appealed the quashing of an arson charge against the defendant. This court found the sixteen-month delay between the filing of the bill and the quashing of the charge to be presumptively prejudicial, thereby triggering consideration of the three remaining Barker factors. In State v. Johnson, 622 So.2d 845 (La.App. 4th Cir.1993), a delay of twenty-two months was found not to be excessive. This court in State v. Brown, 93-0666 (La. App. 4 Cir. 7/27/94), 641 So.2d 687, did not specifically state that nineteen months was presumptively prejudicial, but we nevertheless considered all the Barker factors. This court reversed the granting of the motion to quash, finding that the defendant did not show any prejudice resulting from the nineteen-month delay. The Louisiana Supreme Court in State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, found that a twenty-two-month delay was presumptively prejudicial but the defendant’s right to a speedy trial was still not violated. Again, here, the delay between the filing of the bill of information and the granting of the motion to quash was only thirteen months and not prejudicial when compared to the cases cited above.

Although we do not find the delay in this case to be prejudicial, we find it appropriate to consider the remaining Barker factors, recognizing that a reviewing court might find them appropriately considered.

|fiThe foremost reason causing the delay in the proceedings against Gaines was the failure of the district court to appoint counsel until 30 November 2007. Gaines argued in his motion to quash that the delay was the fault of the state because the state failed to adequately fund the Orleans Public Defender’s Office. Notably, five continuances occurred during the period in which Gaines was without counsel: 30 April 2007, 7 May 2007, 8 June 2007, 10 August 2007, and 28 September 2007. The state counters that the fault should be placed on the public defender’s office for filing the motion to withdraw as counsel.

Gaines also asserted in his motion to quash that the state caused delays with discovery. The record shows that in response to the supplemental motion for discovery filed by the defense, the state indicated that it did not have in its possession certain items that the defense sought and informed the defense that it should file a subpoena duces tecum with the police department. The trial court agreed. Apparently the clerk of the district court delayed forwarding the subpoena to the sheriff to be served on the police department. After receiving the subpoena, the police department did not respond immediately. Gaines argues that the delays caused by the clerk and the police department should be attributed to the state. However, we find no Louisiana case that specifically attributes either delay to the state.

Gaines cites only one case, State v. Van Dyke, 03-437 (La.App. 3 Cir. 10/1/03), 856 So.2d 187, in support of his contention that the failure to appoint counsel should be attributed to the state. The Van Dyke case involved the | (¡difficulty in securing capital certified counsel to represent the defendant because of a lack of funding. Without specifically holding that the problems securing certified counsel were attributable to the state, the Third Circuit noted that most of the delays were attributable to the defense because of the numerous defense motions that were filed. It also found that the defendant did not timely assert his right to a speedy trial and that he did not show that he was prejudiced by the six years, five months delay. Thus, the district court’s judgment granting the motion to quash was reversed.

Even assuming that both delays are attributable to the state, the delay in this case is not as egregious as those in the cases cited above. Also, once counsel was appointed, some of the delay was caused by the filing of pretrial motions, including a supplemental motion for discovery and an application for subpoena duces tecum.

Regarding whether Gaines asserted his right to a speedy trial, the record shows, and the state concedes, that Gaines timely invoked his right to a speedy trial.

The final factor to consider is whether Gaines was prejudiced by the delay. In this regard, he argues that he does not have to make any specific showing of prejudice. Instead he argues that prejudice is shown by the simple fact that he was deprived of his right to counsel for eight months post-arraignment when an effective investigation may have been made. He likens his case to that of State ex rel. Miller v. Craft, 337 So.2d 1191 (La.1976). In Craft, the state moved ex -parte to secure determination of the defendant’s mental capacity prior to formally | charging him, but failed to bring the examination to a timely conclusion. Though the trial court signed the order in May of 1974, he remained incarcerated for nearly two years without being transferred to the forensic facility, as ordered, to have an examination performed. Counsel was not appointed until after the defendant was formally charged in February of 1976. In finding that the defendant’s right to a speedy trial had been violated, the court found that the state was solely responsible for the delay. The court also noted that physicians, who finally examined the defendant in 1976, found that he was disoriented and confused as to why he was in prison and that he was mentally retarded. The court speculated on the anxiety suffered by the defendant, who was of low intelligence and never formally charged. It also noted that because no counsel was appointed during that nearly two-year period, no investigation was conducted to exonerate him from the crime; the defendant indicated that within that two-year period, he had forgotten the names of people who might have been able to assist him with his defense.

The circumstances in the case at bar are distinguishable. Here, Gaines was formally charged, and there is no evidence that he did not understand the reason for his incarceration. Also, he was released on bond for at least three months during that eight-month, post-arraignment delay. The only anxiety he alleges to have suffered pertained to when counsel would be appointed counsel. Unlike in Craft, Gaines has not asserted that any particular evidence was lost or that he is unable to locate any potential defense witnesses because of the delay.

Gaines also cites State v. Harris, 03-0524 (La.App. 4 Cir. 9/10/03), 857 So.2d 16, in support of his premise that he need not show any specific prejudice; _[¿however, that case is considerably different from the case here. In Hams, the trial court attributed a twenty-four-month delay to the state because it was unable to get its witnesses to appear. On the last scheduled trial date in the original case, it moved for a continuance for this same reason; the trial court denied the motion and the state nolle prosequied the charges only to reinstitute them in another case. This court affirmed the trial court’s granting of the motion to quash because of the lack of preparedness by the state and numerous continuances it requested despite the lack of information on the defendant from which it could determine whether prejudice was shown. Here, the record does not show that the state sought to intentionally delay Gaines’ case because it was unprepared.

In sum, after reviewing the Barker factors, we find that the district court erred by granting the motion to quash. The delay in this case is not flagrant, and some of the delay is attributable to the defense. Further, Gaines has not shown that he was prejudiced by the delays.

CONCLUSION

We reverse the judgment of the trial court’s ruling dismissing the case against Gaines. We reinstate the case against Gaines and remand the matter to the trial court for further proceedings.

REVERSED AND REMANDED.

BONIN, J., dissents with reasons.

BONIN, J.,

dissents with reasons.

hi respectfully dissent from the reversal of the trial court’s ruling granting the defendant’s motion to quash. The majority’s evaluation of whether Gaines’ right to a speedy trial was violated ignores two essential considerations. First, in the proper allocation of trial court and intermediate appellate court functions, we are to apply the “abuse of discretion” standard to the trial court’s discretionary decision. State v. Love, 00-3347, p. 9-10 (La.5/23/03), 847 So.2d 1198, 1206-1207. Second, the facts relating to Gaines’ arrest, and the ensuing charges, are highly pertinent, but not treated in the majority’s review of the trial court’s discretionary decision.

The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) discussed one factor, “length of delay”, in evaluating a claim that a defendant was denied his Sixth Amendment right to a “speedy trial” as follows:

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex charge.
(all emphasis added)

|2Mr. Gaines was charged with simple possession of heroin, a violation of La. R.S. 40:966(C)(1). There were two police officers, Detectives Leonard Davis and Tommie Felix involved in the chase and arrest of Mr. Gaines. As a result of their search of Mr. Gaines incident to his arrest, they obtained 2 plastic bags, which contained 0.9 grams of heroin. The only other evidence necessary for the prosecution was the criminalist report for which the prosecution gave notice of its intention to use pursuant to La. R.S. 15:499 et seq. in lieu of live testimony of the testing laboratory personnel. We see that this is about as “ordinary” a street crime as they come. It is surely not a “complex” charge.

State v. Reaves, 376 So.2d 136, 138 (La.1979) is instructive on length of delay in a simple case:

Reaves was not subjected to an extremely long delay. He filed his motion to quash after only three and one-half months from the filing of the original bill of information. However, the mere length of the delay does not determine the speedy trial issue. Since this case involves a simple misdemeanor offense, possession of a single marijuana cigarette, the constitution tolerates relatively brief delays. Barker, supra.; Alfred, supra. Accordingly, we must examine the peculiar circumstances of the case to find if the length of the delay and the closely related factor, the reason for the delay, provoke a speedy trial inquiry. Barker, supra.; Alfred, supra.
(emphasis added)

Of course, this is a felony case, but the proof required in this case is not materially more difficult or complex than the simple marijuana case. We are, therefore, still in the realm of the constitution tolerating relatively brief delays.

Our inquiry should then turn to what is a “presumptively prejudicial”, Barker, supra, in an ordinary street crime involving possession of a small amount of heroin. As a guide only, the ABA Standards for Criminal Justice, Third Edition, for “Speedy Trial and Timely Resolution of Criminal Cases” suggests at Standard 12-2.1(b) the following:

ls(b) The presumptive speedy trial limit for persons held in pretrial detention should be [90] days from the date of the defendant’s first appearance in court after the filing of the a charging instrument. The presumptive limit for persons who are on pretrial release should be [180] days from the date of the defendant’s first appearance in court after either the filing of any charging instrument or the issuance of a citation or summons. Shorter presumptive speedy trial time limits should be set for persons charged with minor offenses.

Other sources of guidance are the case disposition time standards which the Conference of Chief Justices and the Conference of State Court Administrators have adopted. Both conferences adopted a 180 day disposition from arrest to trial standard for felonies.

Turning to the “closely related factor, the reason for the delay,” we cannot ignore that the primary cause for the delay in Mr. Gaines’ case was the failure of the trial court to appoint counsel for Mr. Gaines until eight months after his arraignment. This failure was a violation of the Supreme Court’s clear directive in State v. Citizen, 04-1841 (La.4/1/05), 898 So.2d 325. Acting on a writ application from the prosecution, our court on August 16, 2007 ordered the trial court to appoint counsel for Mr. Gaines and others. State v. Kenneth Edwards, 07-0488 (La.App. 4 Cir. 8/16/07) (unpublished). The trial court finally provided counsel to Mr. Gaines about three months after our order.

The other delays from then until the trial judge granted the motion to quash which are wholly unattributable to the defendant were those caused by the failure of the clerk’s office to properly cause the issuance of a subpoena duces tecum when Mr. Gaines’ counsel requested it the first time, and by the police department’s documented indifference to producing the subpoenaed materials. In my review of the record, I detect no “deliberate attempt [by the prosecution] to delay the trial in order to hamper the defense”. Barker, 407 U.S. at 581, 92 S.Ct. 2182.

|4A third factor which is to be weighed is “the defendant’s assertion of his right” to a speedy trial. The trial court, the prosecution, and the majority opinion all acknowledge that Mr. Gaines did timely assert his desire for a speedy trial. The record contains his uncounselled handwritten motion forwarded to the district court from Orleans Parish Prison, where he was incarcerated. In it he states that he has been in custody since January 10, 2007, longer than the sixty days permitted by La. C.Cr.P. art. 701. The motion is signed but undated. However, it contains a handwritten notation, also undated, to a court officer: “Otis — This RTSC [Rule to Show Cause] was reset on 3/12 to 6-15-07 Guy is still in jail.” Later, his court appointed counsel reasserted the demand.

A fourth factor is “prejudice to the defendant”. As the majority opinion notes, Mr. Gaines was brought into court five times in the period between his arraignment and the appointment of counsel. Comparably to Reaves, 376 So.2d at 139, “the requirement of prejudice is not as stringent as it could be in a case of a more serious or violent crime.” A defendant bears burdens “by repeated, futile court appearances [which] may ultimately force him to plead guilty in order to maintain his job and peace of mind.” Id. “[E]ven if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.” Barker, 407 U.S. at 533, 92 S.Ct. 2182. While the majority opinion correctly notes that State ex rel Miller v. Craft, 337 So.2d 1191, 1195 (La.1976) is distinguishable, nonetheless Mr. Gaines like the citizen in Craft, was “without appointed counsel” for much of the period of delay. Courts recognize the pitfalls of an uneounselled defendant attempting to compete against experienced prosecutors and navigating technical rules of evidence and procedure, and customarily discourage a defendant from representing himself. See \ State v. Strain, 585 So.2d 540, 543 fn. 3 (La.1991). “[T]o deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself.” Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). His anxiety at court appearances while unrepresented ought to be easily understood. While the period of delay was not as long for Mr. Gaines, neither were his charges as serious as aggravated burglary, which was the offense charged in Craft.

Returning to Barker, 407 U.S. at 534, 92 S.Ct. 2182, we are further instructed in the proper methodology in considering these four factors along with others:

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.
(emphasis added)

A presumptive time limit for speedy trial only means that period of time, exclusive of excusable delays, such as absence of witnesses, competency proceedings, defense continuances, or the defendant’s failure to appear. Complex cases are also deserving of extended presumptive periods. In this simple felony case for the prosecution, Mr. Gaines was without representation after indictment, much less after arrest and incarceration, for a period exceeding the recommended time period for all non-complex felony cases, including those of a much more serious nature than simple possession of 0.9 grams of heroin. Allowing Mr. Gaines to be unrepresented by counsel for such an extended period when the “guy,” all by himself, is calling out from the jail to the court for relief under | (¡Louisiana’s so-called speedy trial statute supports the trial judge’s exercise of discretion to quash the indictment and dismiss the charge against him.

As our court noted in applying the Love, supra, standard of review we are to conduct “an examination of the entire record in order to discern whether there was ‘palpable abuse’ on the part of the trial court in granting the motion to quash. State v. Harris, 03-0524, p. 5 (La.App. 4 Cir. 9/10/03), 857 So.2d 16,18. Harris also involved a simple possession of heroin charge. After its examination of the entire record, the Harris court concluded that the trial judge had not abused his discretion. The trial judge in this case, in my view, did not abuse his discretion and we should uphold his decision.

I, therefore, respectfully dissent.

BONIN, J., dissents with reasons.

      . Gaines posted bond on 10 May 2007 and was not in custody through at least 10 August 2007. On the scheduled court dates of 8 June 2007 and 10 August 2007, he appeared in court without counsel.

      . As noted, the only defense continuance requested was because it had yet to receive a response to the subpoena duces tecum.

      . Gaines asserted his right to a speedy trial sometime in March 2007 by filing a motion and again on 30 November 2007.

      . The sentence for this offense is fully suspen-dible.

      . Det. Felix has since died in a traffic accident on the St. Claude bridge.

      . The information is gleaned from the police gist contained in the record and the prosecution’s pleadings.

      . Source: The National Center for State Courts, "Caseflow Management: The Heart of Court Management in the New Milleni-um," by David C. Steelman et ah, p. 158. I readily acknowledge that neither of these sources, nor for that matter the ABA Standards, purport to be declaring constitutional requirements, but rather standards for case dispositions. But they are useful in assessing impermissible constitutional delays.

      . Three of these times were after he posted financial bail.

      . See Barker, 407 U.S. at 531, 92 S.Ct. 2182: “a valid reason, such as a missing witness, should serve to justify appropriate delay.” Also, see ABA Speedy Trial Standard 12-2.3 "Excluded periods”.

      . ABA Speedy Trial Standard 12-2.1(d).

      .La.C.Cr.P. art. 701.

      . In Harris the delay was longer and the prosecution was culpable for the delay. However, as each speedy trial inquiry is particularized, I do not consider, and the decision does not purport to establish, that the delay in Harris was the minimum period of delay permissible in a simple possession of heroin case to "trigger” the speedy trial inquiry-


author: MICHAEL E. KIRBY, Judge. MURRAY, J.,

text:
    STATE of Louisiana in the Interest of D.J. c/w State of Louisiana in the Interest of R.N.
    Nos. 2008-CA-0786, 2008-CA-0981.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2009.

      Keva Landrum-Johnson, District Attorney, Robert L. Freeman, Jr., District Attorney, Natasha Jack, Assistant District Attorney, New Orleans, LA, for Appellant.
    John Adcock, Juvenile Regional Services, New Orleans, LA, for D.J.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

hOn our own motion, we consolidate these two juvenile matters because they involve the same legal issue. In both cases, the State of Louisiana appeals trial court judgments granting motions to quash filed by the defendants. We affirm for reasons that follow.

Procedural History for defendant, D.J.

On April 13, 2008, the State filed a delinquency petition in Juvenile Court charging D.J. with two counts of illegal carrying of weapons, violations of La. R.S. 14:95, and one count of resisting an officer, a violation of La. R.S. 14:108. On May 13, 2008, the State filed an amended petition, changing the two counts of illegal carrying of weapons to two counts of illegal possession of a handgun by a juvenile, in violation of La. R.S. 14:95.8. D.J. filed a motion to quash the two counts of La. R.S. 14:95.8, arguing that these offenses cannot be the basis of a delinquency petition. The trial court granted the motion to quash, and the State appealed.

_[aProcedural History for defendant, R.N.

On June 27, 2008, the State filed a petition against R.N. asserting two counts: illegal possession of a handgun by a juvenile, La. R.S. 14:95.8, and resisting an officer, La. R.S. 14:108. On June 30, 2008, R.N. appeared for a pretrial conference and entered a denial of the charges. On that same date, R.N. filed a motion to quash the first count, illegal possession of a handgun by a juvenile in violation of La. R.S. 14:95.8. R.N. argued that La. R.S. 14:95.8 is not a charge that meets the definition of a delinquent act under La. Ch.C. art. 804(3). Agreeing with R.N., the juvenile court granted the motion to quash. From this judgment, the State appealed.

In granting D.J.’s motion to quash, the trial court stated:

I’m going to grant your motion to quash. I note the State’s objection. I’m granting the motion to quash on the basis that 14:95.8 does not qualify as a charge for which a matter may be proceeded against for delinquency in that the statute, in the first sentence says, “It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person.” And the Children’s Code defines a delinquent act as that which, if committed by an adult, delinquent act under Article 804(3) means, “An act committed by a child of ten years of age or older which if committed by an adult is designated an offense under the statutes or ordinances of this state.” As no adult can be charged with 95.8 I’m going to grant the motion to quash. I’ll dismiss it without prejudice. Obviously, the State is still within the time to re-file an alternative charge.

lain granting R.N.’s motion to quash, the trial court stated:

The specific action proscribed by R.S. 14:95.8 is the knowing possession of a handgun by a person who has not attained seventeen years. Thus, a person who has attained seventeen years, i.e., an adult, cannot be charged with violating this statute.
The definition of a delinquent act precludes the state from prosecuting a juvenile via a delinquency petition with any charge that would not be an offense under Louisiana’s criminal statutes if committed by an adult.
By its plain words, R.S. 14:95.8 only applies to persons under the age of seventeen. It does not establish an offense under the criminal statutes of Louisiana for which an adult can be prosecuted. Therefore, R.S. 14:95.8 cannot form the basis for a delinquency charge pursuant to Ch.C. Art. 804(3).

The State appealed in both cases, arguing that the trial court erred by granting motions to quash based on La. R.S. 14:95.8, illegal possession of a handgun by a juvenile, not being an act that can be pursued in juvenile court as a delinquent act. La. R.S. 14:95.8 states, in pertinent part, “It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person.” La. Children’s Code article 804.3, in pertinent part, defines a “delinquent act” as “an act committed by a child of ten years of age or older which if committed by an adult is designated an offense under the statutes or ordinances of this state.”

The State’s position is that La. R.S. 14:95.8 is a subpart of La. R.S. 14:95, illegal carrying of weapons, and therefore, La. R.S. 14:95 is the “adult charge,” which allows violations of La. R.S. 14:95.8 to be adjudicated in delinquency proceedings. In further support of its argument that a charge of a violation of |,tLa. R.S. 14:95.8 can be adjudicated as a delinquent matter in Juvenile Court, the State notes that statutes are presumed constitutional, and La. R.S. 14:95.8 • has not been declared unconstitutional.

La. R.S. 14:95(A) lists five circumstances meeting the definition of illegal carrying of a weapon. The circumstance applicable to this case is set forth in La. R.S. 14:95(A)(1), which includes in the definition of illegal carrying of a weapon “[t]he intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person.” In a case involving the nearly identically worded predecessor of the current La. R.S. 14:95(A)(1), the Louisiana Supreme Court stated in State v. Davis, 214 La. 885, 39 So.2d 164 (1949), “It will be noted that the gravamen of the offense is the concealment on one’s person of an instrumentality customarily used as a dangerous weapon, and not the carrying of an instrument which might be so used.” Id. At 214 La. 885, 39 So.2d 164-165. (Emphasis ours.)

We find that there is a major distinction between the adult offense condemned by La. R.S. 14:95(A)(1), carrying a concealed weapon, and the offense sub judiee, La. R.S. 14:95.8, which condemns merely the knowing possession of a handgun by a person under seventeen. Specifically, under the “adult” statute, carrying and possession are allowed as long as the weapon is not concealed, while under the “juvenile” statute, any possession is outlawed, whether concealed or not.

|fiWe do not find that the other four circumstances listed in La. R.S. 14:95(A) apply in either case before us. La. R.S. 14:95(A)(2) pertains only to ownership, possession, custody or use of a firearm by an enemy alien. La. R.S. 14:95(A)(3) deals with explosives and burglar tools. La. R.S. 14:95(A)(4) deals with knives and blades. La. R.S. 14:95(A)(5) involves the use of dangerous weapons on school grounds. There is no indication in the records before us that any of the circumstances listed in La. R.S. 14:95(A)(2) through (5) were present in either of these consolidated cases.

Thus, we conclude that none of the operative provisions of La. R.S. 14:95(A) condemn what is prohibited by La. R.S. 14:95.8(A), i.e. the mere knowing possession of a handgun, concealed or unconcealed, on someone’s person. We find that the trial court correctly found that because an adult cannot be charged with a violation of La. R.S. 14:95.8, a delinquency proceeding in Juvenile Court cannot be based on a violation of that statute. We further note that criminal statutes are construed stricti juris, with ambiguities resolved in favor of the accused. State v. Shreveport News Agency, Inc., 287 So.2d 464 (La.1973).

For the reasons stated above, we affirm the trial court’s granting of the motions to quash filed by D.J. and R.N.

AFFIRMED.

MURRAY, J., concurs with reasons.

MURRAY, J.,

concurs with reasons.

Li agree with the majority opinion and the juvenile court judge that a juvenile cannot be declared delinquent for violation of La. R.S. 14:95.8 because that statute criminalizes the mere intentional possession of a handgun by a juvenile. Because an adult generally cannot be charged with the mere intentional possession of a handgun, this conduct does not fit the parameters of the statutory definition of delinquency set forth in La. Ch. C. art. 804(3). Article 804(3) defines a “delinquent act” to mean “an act committed by a child of ten years of age or older which if committed by an adult is designated an offense under the statutes or ordinances of this state.”

It is within the Legislature’s prerogative to establish that it is illegal for a person under the age of seventeen to possess a handgun. Not allowing a person under the age of seventeen to possess a handgun serves a legitimate governmental interest. By creating an exception for circumstances in which that interest is not implicated, such as those recognized in La. R.S. 14:95.8(0, the Legislature has acted in the least restrictive manner. The statute, therefore, is not unconstitutional. However, the Legislature has failed to provide any consequences for the violation |2of La. R.S. 14:95.8 other than a “family in need of services” (FINS) adjudication under La. Ch. C. art. 730. Two of the grounds for a FINS adjudication apply to the delinquency cases at issue in these appeals:

(5) That a child has committed an offense applicable only to children.
(10) That a child is found in possession of a handgun or semiautomatic handgun under circumstances that reasonably tend to exclude any lawful purpose.

La. Ch. C. art. 730. See State ex rel. S.D., 01-670, p. 3 (La.App. 5th Cir.1/29/02), 807 So.2d 1138, 1148 (Daley, J., eoncur-ringXpointing out that “[t]he Juvenile Judge has the option, in the context of delinquency proceeding, of adjudicating the family to be in need of services, so long as the adjudication is warranted under LSA-Ch.C. art. 730”)

Given the current definition of delinquency, I agree with the result reached by the majority in these consolidated cases. A different result would require the Legislature to carve out an exception to the definition of delinquency or to criminalize the possession of a handgun by an adult. As counsel of D.J. points out, the Legislature could “change La. R.S. 14:95.8 so that it falls under a juvenile court’s delinquency jurisdiction.” For these reasons, I concur.

      . The terms “carrying” and "possession” are not defined in the statutes at issue. We are not satisfied that they are synonymous in the contexts used. “Carrying” connotes a movement while supporting something, or transportation. See Webster's Ninth New Collegiate Dictionary. "Possession,” on the other hand, refers to the act of having or taking something into control. Id. See also State v. Trahan, 425 So.2d 1222 (La.1983), (dealing with possession of drugs), and State v. Mercadel, 503 So.2d 608 (La.App. 4 Cir.1987), (dealing with illegal possession of stolen things.)

      . The constitutionality of La. R.S. 14:95.8 is not before this Court in either of these cases.

      . Under certain circumstances an adult can be charged with mere possession of a handgun. See La. R.S. 14:95.1 (possession of a firearm by a felon); La. R.S. 14:95.2 (possession of a firearm on school property or in a firearm-free zone); La. R.S. 14:95.5 (possession of a firearm on premises of alcoholic beverage outlet); La. R.S. 14:95.7 (possession of a firearm with obliterated serial number). An area of overlap thus exists between the conduct criminalized under La. R.S. 14:95.8 and the conduct for which an adult can be charged. There is no evidence in the record that either of these two consolidated cases falls within that area of overlap.