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

text:
    STATE of Louisiana v. Donald BELL.
    No. 2010-KA-1708.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 20, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Brad Scott, Assistant District Attorneys, New Orleans, LA, for State of Louisiana, Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Donald Bell, Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   MAX N. TOBIAS, JR., Judge.

hOn 7 April 2010, the state filed a bill of information charging Donald Bell, the defendant, with one count of possession of cocaine. Mr. Bell pled not guilty at his arraignment on 9 April 2010. A hearing on his motion to suppress evidence and for a preliminary hearing was held on 12 May 2010 at which the parties submitted the matter on the police and crime lab reports without offering any further testimony or evidence. The court, after hearing oral argument, denied Mr. Bell’s motion to suppress evidence and found probable cause. Mr. Bell, through counsel, gave oral notice of his intent to seek writs. On 11 June 2010, Mr. Bell filed a motion to reconsider the finding of probable cause and the denial of the motion to suppress evidence. The trial court denied the motion, and the defendant again indicated his intention to seek writs. He did in fact file an application for supervisory writs, but the writ application was denied. State v. Bell, 10-0846, unpub. (La.App. 4 Cir. 6/21/10).

On 18 August 2010, Mr. Bell pled guilty to the charge pursuant to State v. Crosby, 338 So.2d 584 (La.1976). On 25 August 2010, the defendant appeared before the trial court and was sentenced to serve seven years at hard labor. Additionally, on 25 August 2010, the state filed a multiple bill against Mr. Bell |2alleging him to be a second offender. He pled guilty to the state’s multiple bill. The trial court vacated the original sentence and resen-tenced the defendant to seven years at hard labor.

STATEMENT OF FACTS

As noted above, this matter never came to trial. Neither the state nor the defendant introduced any testimony at the suppression hearing, submitting the matter solely on the basis of the police and crime lab reports. The police report’s gist sheet reads as follows:

On Thursday, April 1, 2010 at about 10:09 p.m., Officers David Aranda and Kamil Kuczek, 102B, were on patrol near N. Broad St. at St. Philip St.
While traveling eastbound on North Broad Street the officer’s [sic] observed two unknown black males standing on the front left side of Manchu’s Restaurant located at 2660 St. Philip St. The two unknown black males became very nervous upon the officers presence in the area. Due to the rash of burglaries of Manchu’s Restaurant the officer’s [sic] elected to do a pedestrian check. Officer D. Aranda observed both subjects very nervous. For officer’s safety Officer Aranda conducted a frisk of both subjects and upon frisking arrested subject Mr. Donald Bell, Officer Aranda felt a plastic bag substance in the front left pocket of arrested subject Mr. Bell. Armed with the knowledge that narcotics are usually stored in plastic bags, Officer Aranda removed the plastic bag from the front left pocket of arrested subject Bell, and observed the plastic bag to contain two white yellowish rock like substance which appeared to be that of crack cocaine.
The contraband was tested using preliminary drug test kit which yielded a positive result for the presence of cocaine.

Additionally, the narrative sheet states as follows:

On Thursday, April 1, 2010 at about 10:28 PM, Officers Kamil Kuczek and David Aranda, Unit 102B, |sassigned to the First District, had the occasion to arrest subject Donald Bell, b/m, DOB: 12-25/1959 at the intersection of N. Broad St. and St. Philip St. for possession of cocaine. The results of the investigation are as follows:
On the above mentioned date and time the officers were traveling east bound on N. Broad St. in their fully marked police vehicle. As the officers approached the intersection of N. Broad and St. Philip streets the officers observed two unknown black males, later identified as Donald Bell and Philip Beard, b/m, DOB: 07-27-1965, standing on the front left side of the Manchu’s Restaurant located at 2660 Saint Philip street. The officers noticed that the business was closed. The two subjects then noticed the officers presence and appeared to become very nervous and turned away from the officers vehicle. Upon observing the subjects suspicious behavior and believing the subjects were about to leave the area the officers elected to exit their vehicle and conduct a check of the subjects.
The officers were also aware of several burglaries of Manchu’s Restaurants in the First District. Upon exiting his vehicle Officer Aranda observed subject Bell become very nervous. Both subjects were detained near the police vehicle without incident. The subjects advised the officers that they were just drinking wine and hanging out. As Officer Aranda conducted a pad [sic] down of the subject Bell, Officer Aranda immediately felt a piece of plastic containing a hard object in the left front pocket of subject Bell. Armed with the knowledge that narcotics are usually stored in wrapped plastic Officer Aranda removed the plastic bag from the front left pocket of subject Bell, and discovered the plastic to contain two white yellowish rock like substances which appeared to be crack cocaine. Subject Bell was handcuffed (double-locked) and advised of his rights per Miranda by Officer Aranda.
The officers relocated to the First District Station and conducted a preliminary drug test. A sample of the suspected substance was mixed with an approved preliminary test kit by Officer Aranda in accordance with the manufacturer’s instructions. The sample displayed an immediate and unambiguous colorimetric response suggesting the presence of cocaine. Sergeant Malbrue, Unit 120 C, witnessed the test.
|4Subject Bell was transported to Central Lock-Up and booked accordingly. The other subject Philip Beard was checked through the NOPD Motion Computer and found not to be wanted. The subject was released at the scene after it was determined he was not in violation of any crime.
The officers relocated to Central Evidence and Property where the above listed evidence was logged in under receipt number D0128S10.

As previously noted, the trial court denied Mr. Bell’s motion to suppress and found sufficient probable cause to substantiate the state’s charge. Subsequently, Mr. Bell pled guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NUMBER 1

In his sole assignment of error, Mr. Bell argues that his conviction and sentence should be reversed because the trial court erred when it denied his motion to suppress the evidence. Specifically, he argues that the arresting officers lacked reasonable suspicion to conduct an investigatory stop. The defendant contends that the stop was unjustified because it was based on nothing save the fact that he was observed standing in front of a closed restaurant that had previously been burglarized. Further, he asserts his detention was improper because it was based on nothing but the officers’ observation of his nervous behavior and the fact that he and his companion turned away from the officers when they noticed the patrol car. Mr. Bell asserts the officers lacked reasonable suspicion to stop him, and thus the evidence seized pursuant to the stop should have been suppressed. The state argues that an objective evaluation of all the factors known to the officers at the time of the stop indicates that the officers possessed reasonable suspicion to conduct an investigatory stop of Mr. Bell.

|sThe state has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 708 D. A trial court is vested with great discretion when ruling on a motion to suppress and, consequently, the ruling of a trial judge on such a motion will not be disturbed absent an abuse of that discretion. State v. Oliver, 99-1585, p. 4 (La. App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The trial court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard and the trial court’s ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Pham, 01-2199, p. 4 (La. App. 4 Cir. 1/22/03), 839 So.2d 214, 218. Accordingly, “on mixed questions of law and fact, an appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo.” Id. Where the facts are not in dispute, a reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. State v. Anderson, 06-1031, p. 2 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 546.

La.C.Cr.P. art. 215.1 A codifies the U.S. Supreme Court’s authorization of stops based on reasonable suspicion set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and provides:

A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

“Reasonable suspicion” to stop is something less than the probable cause required for an arrest, and a reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s |6rights. State v. Jones, 99-0861, p. 10 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 36-37. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989. In assessing the reasonableness of an investigatory stop, a court must balance the need for the stop against the invasion of privacy that it entails. State v. Carter, 99-0779, p. 6 (La. App. 4 Cir. 11/15/00), 773 So.2d 268, 274. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The detaining officers must have knowledge of specific, articula-ble facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. State v. Dennis, 98-1016, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 296, 299. In reviewing the totality of the circumstances, the officer’s past experience, training, and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Hall, 99-2887, p. 4 (La.App. 4 Cir. 10/4/00), 775 So.2d 52, 57. Deference should be given to the experience of the officers who were present at the time of the incident. State v. Ratliff, 98-0094, p. 3 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254.

In the case at bar, the police report indicates that the arresting officers first observed the defendant standing at night in front of a closed business that had suffered a rash of burglaries. Further, the police report indicates that Mr. Bell and his companion behaved nervously and turned away upon seeing the officers. Contrary to Mr. Bell’s assertion, we find that the officers articulated a rational basis for conducting an investigatory stop of Mr. Bell and the stop was legal.

|7Our jurisprudence recognizes that the reputation of an area is an articu-lable fact upon which an officer can rely and which is relevant in the determination of reasonable suspicion. State v. Temple, 01-1460, p. 5 (La.App. 4 Cir. 6/19/02), 821 So.2d 738, 741. Flight, nervousness, or a startled look at the sight of a police officer may be one of the factors leading to a finding of reasonable cause to perform an investigatory stop under La.C.Cr.P. art. 215.1. Id. Not surprisingly, an individual’s presence in a high crime area, coupled with nervousness, startled behavior, flight, or suspicious actions upon the approach of officers, has been found sufficient to justify an investigatory stop. See State v. Taylor, 363 So.2d 699 (La.1978); State v. White, 27,188 (La.App. 2 Cir. 8/23/95), 660 So.2d 515; State v. Hill, 01-1372 (La.App. 5 Cir. 5/15/02), 821 So.2d 79. Under the facts noted in the police report, the officers in the present matter had reasonable suspicion to conduct an investigatory stop.

In State v. Hall, supra, we held that investigating officers had reasonable suspicion that the defendant was committing a crime warranting a stop where the officers received citizen complaints of drug activity occurring in front of a particular address. The officers arrived at the address and observed one individual attempting to hand another individual currency. The officer’s experience led him to believe that a drug transaction was occurring; and the individuals became nervous when they saw officers, pulled hands back, and walked away. 99-2887, p. 6, 775 So.2d at 58.

In State v. Sheehan, 97-2386 (La.App. 4 Cir. 12/9/98), 740 So.2d 127, this court held that police officers had reasonable suspicion to stop a suspect on a street |scorner and conduct a pat down search of suspect for weapons, when: (1) the officers received a tip from an anonymous informant that a group of persons on the street corner was selling narcotics; (2) one individual at the corner fled when he saw the police; and (3) the corner was at a location known as a high drug trafficking area.

Further, in State v. Short, 96-1069 (La.App. 4 Cir. 5/7/97), 694 So.2d 549, we held that a police officer had reasonable suspicion to believe that a defendant was engaging in illegal activity that warranted an investigatory stop of the defendant, where the officer observed the defendant and others “dart” into a club at the officer’s approach in area known for criminal activity and drug trafficking and then leave through the club’s rear door.

The police report in the case before us indicates that after having decided to conduct an investigatory stop, the officers elected to conduct a pat-down search of Mr. Bell. If a law enforcement officer has legally stopped a person pursuant to La.C.Cr.P. art. 215.1 A, the officer may frisk the outer clothing of the person if the officer reasonably suspects that he is in danger. La.C.Cr.P. art. 215.1 B. Additionally, if the officer reasonably suspects that the person possesses a dangerous weapon, he may search the person. Id. To frisk a person who has been detained, one must have some basis for fear for one’s safety or fear that the suspect is armed. State v. James, 07-1104, p. 6 (La. App. 4 Cir. 3/5/08), 980 So.2d 750, 754. “The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger.” Id.

|9Our jurisprudence recognizes that the reasonableness of a frisk conducted as part of an otherwise lawful investigatory stop is governed by an objective standard. The Louisiana Supreme Court has observed that, in evaluating an officer’s reasonableness, “[t]he relevant question is not whether the police officer subjectively believes he is in danger, or whether he articulates that subjective belief in his testimony at a suppression hearing.” State v. Dumas, 00-0862, pp. 2-3 (La.5/4/01), 786 So.2d 80, 81-82. Instead, the standard of an officer’s reasonableness to frisk a detainee is whether a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of others was in danger. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In evaluating the reasonableness of the frisk, a court will consider whether an officer’s frisk is “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. 1868. For Fourth Amendment purposes, the line drawn here is based upon an objective basis, and that line may only be crossed by a police officer when that objective basis is clear. State v. Francis, 10-1149 (La.App. 4 Cir. 2/16/11), 60 So.3d 703.

In State v. Sims, 02-2208, p. 3 (La.6/27/03), 851 So.2d 1039, 1043-44, the Court explained that the “officer’s suspicion that he is in danger is not reasonable unless the officer can point to particular facts which led him to believe that the individual was armed and dangerous.” Additionally, “the officer need not establish that it was more probable than not that the detained individual was armed and dangerous.” Id. Rather, the Court explained, “it is sufficient that the officer establish a “substantial possibility” of danger.” Id. To determine the lawfulness of an officer’s frisk of a suspect, “courts must give due weight, not to an officer’s inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable 1 ininferences which he is entitled to draw from the facts in light of his experience.” Id.

In the present case, the police report indicates that the officers observed the defendant and his friend at night, standing in front of a business that had suffered a series of burglaries. Further, the police report indicates that Mr. Bell and his friend appeared nervous and turned away from the officers upon seeing the patrol ear. We find that the officers were justified in conducting a pat-down search of Mr. Bell under the totality of circumstances.

During the course of the pat-down search, Officer Aranda felt a plastic bag containing a hard object in Mr. Bell’s front left pocket. The police report indicates that Officer Aranda took the plastic object from Mr. Bell’s pocket because he knew that narcotics are usually stored in plastic bags.

In State v. Craft, 03-1852, p. 10 (La.App. 4 Cir. 3/10/04), 870 So.2d 359, 366, we summarized the jurisprudence of the “plain feel” exception as follows:

[E]vidence discovered during a lawful investigatory frisk may be seized under the “plain feel” exception to the warrant requirement, as explained in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). However, just as the “plain view” doctrine requires that an object’s incriminating character be immediately obvious when seen, the “plain feel” doctrine requires the tactile discovery of “an object whose contour or mass makes its identity immediately apparent.” Dickerson at 375, 113 S.Ct. at 2137, 124 L.Ed.2d at 346. Thus, in State v. Parker, 622 So.2d 791 (La.App. 4th Cir.), writ, denied, 627 So.2d 660 (La.1993), the seizure of a matchbox containing cocaine detected during a pat-down search was found not to fall within the “plain feel” exception because there was no evidence that a matchbox’s shape was identifiable as contraband. In contrast, in State v. Stevens, 95-501 (La.App. 5th Cir.3/26/96), 672 So.2d 986, the seizure of drugs in a matchbox detected during a lawful pat-down was upheld because the officer testified that her prior experience indicated that most street-level crack dealers Incarried their drugs in a matchbox. Similarly, where testimony establishes that an object detected during a pat-down was immediately identifiable as a “crack pipe,” suppression of the cocaine residue contained within the pipe is not required. State v. Lavigne, 95-0204, at p. 9 [ (La.App. 4th Cir.5/22/96) ], 675 So.2d [771] at 778; State v. Livings, 95-251, pp. 5-6 (La.App. 3d Cir.11/15/95), 664 So.2d 729, 733, writ, denied, 95-2906 (La.2/28/96), 668 So.2d 367.

In State v. Francois, 00-1039 (La.App. 4 Cir. 1/10/01), 778 So.2d 673, the officers decided to conduct a pat-down frisk of the defendant under circumstances similar to the present matter. Specifically, the frisking officer testified: “As we approached him-as he was now at the-what would be the uptown lake corner of the intersection with another subject-he appeared real nervous, fidgety. Because of the time of night, the reputation of the area, how nervous he appeared, I decided to conduct a protective pat-down search for my own protection.” Id., p. 5, 778 So.2d at 677. Further, the investigating officer testified that he discovered the contraband during a frisk, stating: “[a]s I patted the general area of his buttocks, I felt an object, which I immediately recognized without manipulating it to be a small packet of crack cocaine.” This Court held that the seizure fell under the “plain feel” exception. Id.

In State v. Bradley, 03-1518 (La.App. 4 Cir. 1/28/04), 867 So.2d 31, the officers stopped a defendant after observing activity consistent with drug transactions. In addition to challenging the validity of the stop, the defendant argued that the officer’s search of him exceeded that of a lawful protective pat-down. Finding no merit to that argument, we relied upon the officer’s testimony that when he frisked the defendant for weapons, he felt a bulge in the defendant’s pocket. The officer more precisely described this bulge as objects sliding around that, based on his experience, felt like the plastic bags commonly used for 112packaging drugs. Finding the “plain feel” exception applicable, this court held that given the officer’s testimony that during the lawful frisk he felt an object that was immediately apparent to him, based on his experience and observations, to be drugs; the drugs were lawfully seized.

We find that the crack cocaine was lawfully seized from Mr. Bell pursuant to the “plain feel” exception. Officer Aranda testified that he felt what he described as a hard object inside of a plastic substance. The police report provides that Officer Ar-anda knew that narcotics are often stored in wrapped plastic. Thus, Officer Aranda took the plastic substance from Mr. Bell’s pocket because he suspected that it contained narcotics. It is clear from the police report that Officer Aranda’s removal of the bag was based on his knowledge that narcotics are usually stored in plastic bags. Accordingly, the trial court did not err when it denied the defendant’s motion to suppress. The assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Donald Bell.

AFFIRMED.

      . The arresting police officers failed to appear for the hearing.

      . The reports are hearsay under La. C.E. art. 803(8)(b) and would be inadmissible in evidence but for the agreement of counsel as to admissibility. Hearsay evidence is admissible at a probable cause hearing. Live testimony at a hearings addressing probable cause is preferred.

      . We note the reference to multiple Machu’s Restaurants, where other parts of the narrative and the gist refer to a singular Manchu's Restaurant.

      . Cf. footnote 3 above.

      . Mr. Bell cites to several cases wherein courts found investigatory stops unreasonable. He makes much of the fact that the officers did not observe him engaging in any criminal activity. However, the record shows that the property at which Mr. Bell was stopped had suffered a series of burglaries. Thus, none of Mr. Bell's cited cases is on point factually with the case at bar.

      . Mr. Bell does not challenge the legality of the pat-down search or the subsequent plain feel seizure of the crack cocaine from his pocket.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Karma LANDFAIR.
    No. 2010-KA-1693.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 20, 2011.

      Leon A. Cannizzaro, Jr., Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

[,The defendant-appellant, Karma Landfair, appeals his conviction for first degree robbery, his adjudication as a fourth offender, and his sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence. He assigns no error as to the conviction for first degree robbery, and as there are no errors patent that require reversal of that conviction, his conviction is affirmed. Furthermore, for the reasons set forth below, his adjudication and life sentence as a fourth offender pursuant to La. R.S. 15:529.1 are affirmed.

PROCEDURAL HISTORY OF THE CASE

On January 24, 2008, the State filed a bill of information charging the defendant with one count of violating La. R.S. 14:64 relative to armed robbery. The defendant entered a not guilty plea at arraignment. At a motion hearing held on December 10, 2008, the court heard testimony in connection with the defendant’s motion to suppress his statement. The court denied the motion on January 7, 2009. A jury trial commenced on March 3, 2010 and concluded the following day when the twelve-person jury returned a responsive verdict of guilty of violating La. R.S. 14:64.1, first degree robbery. On March 31, 2010 the court sentenced the defendant to thirty years at hard labor. The State then filed a multiple bill of information charging the defendant as a fourth offender, and on [ 2June 18, 2010, the defendant filed a motion to quash the bill. The trial court conducted a hearing on the multiple bill on August 26, 2010. After finding that the State had proved the allegations in the bill, the court vacated the prior sentence it had imposed and resentenced the defendant to serve life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. This appeal followed.

STATEMENT OF THE FACTS

On November 24, 2007, Ms. Leshay Sha-bazz was working at the Empress Hotel located at 1317 Ursulines Street. Near the end of her shift, at approximately 10:00 p.m., a man wearing a mask and carrying a gun knocked on the counter which separated the office area from guests. The man jumped over the counter and demanded keys. When she handed him one set, he demanded a different key: the one Ms. Shabazz used to secure the hotel’s money while she was on her shift. Ms. Shabazz realized that she had seen the man off and on throughout the day and that he both worked and lived at the hotel. She knew his first name only as Karma.

Detective Robbie Bangham and his partner, Officer Amon Clavo, heard the radio dispatch of the robbery at the hotel. Included in the dispatch was a description of the perpetrator being a black male, six feet tall, wearing all black clothing, and silver tennis shoes. At the time of the dispatch, the officers were on patrol approximately five blocks from the hotel and began to canvass the area. When they reached the 1300 block of Governor Nicholls, which was one block from the hotel, they saw the defendant exiting an alleyway which led toward the back of the Empress Hotel. The defendant was wearing blue jeans, a white t-shirt, and silver tennis shoes. The officers stopped the defendant and asked him why he was coming out of the alley. The defendant was unable to give a reason and | ¡¡became obviously nervous. The officers transported the defendant to the hotel, where other detectives had arrived to investigate the robbery.

Lt. Errol Foy, the First District Investigative Unit Commander, was one of the officers who responded to the robbery. Under his direction, officers viewed the hotel’s surveillance tape which showed the robbery. Because of the mask, the man’s face was not visible on the video. However, the defendant’s tennis shoes clearly matched those the perpetrator was wearing. The defendant was advised of his rights and confronted with the evidence. The defendant admitted to having committed the robbery. Lt. Foy then arranged for the defendant to give a videotaped statement. Both the surveillance video and the taped statement were introduced at the trial. The money stolen in the robbery was found in the defendant’s shoes.

During his taped confession, the defendant described the place where he had disposed of the gun and the black shirt he wore over his t-shirt. He then accompanied officers to the location and pointed out where the evidence was, which included the shirt and the gun, which was used in the robbery. In his taped statement the defendant expressed remorse for the crime and blamed it on his drug addiction.

The defendant testified on his own behalf. He claimed that he was walking from a friend’s house when he was stopped by “Officer Robbie” who hit him in the face until Officer Clavo intervened. Next, according to the defendant, the officers returned him to the hotel, took his shoes inside, came back, and hit him in the face with a shoe, saying he had lied. The defendant said other officers also pushed him around while asking about the gun. The defendant claimed that he was told what to say to the camera during the taped confession, and that he and his girl-friendjjwere threatened. He testified that the money found in his shoe came from winning at the casino.

Det. Bangham and Officer Clavo testified at the trial that the defendant did not resist during his apprehension. They denied ever hitting him.

The defendant admitted that he had a criminal history involving cocaine. During cross-examination, he admitted that he had been convicted of distribution of cocaine once and had been convicted of possession of cocaine with the intent to distribute three times. When asked if he had a cocaine use problem or a “cocaine dealing problem,” the defendant stated, “That’s what I was, a dealer.” On redirect, the defendant testified that he pled guilty to all of the offenses involving cocaine, but that he was not pleading guilty to the armed robbery charge because he did not do it.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error the appellant asserts that the trial court should not have found him to be a fourth offender. In connection with this assignment, the appellant makes four arguments, which will be addressed separately.

Louisiana Constitution Requires Grand Jury Indictment

The appellant asserts that his Due Process rights were violated at the multiple bill hearing because he was exposed to a mandatory life sentence if adjudicated a fourth offender, and in fact received a life sentence. Therefore, he contends, he should have been charged by grand jury indictment for both the original substantive offense of armed robbery and as a fourth offender under La. R.S. 15:529.1. In support of his argument, he cites Article I, Section 15 of the ^Louisiana Constitution of 1974 which provides that, for a crime punishable by life imprisonment, prosecution must be instituted by a grand jury indictment.

This same argument has been asserted and found to be without merit multiple times by this Court. For example, in State v. Vincent, 2010-0764, pp. 9-10 (La. App. 4 Cir. 1/19/11), 56 So.3d 408, 414-15, this Court explained that

[T]he Louisiana Constitution of 1974 does not require that the District Attorney institute proceedings by a bill of indictment where the maximum penalty for the charge is less than life imprisonment. The constitution mandates that prosecution of felonies be initiated by indictment or information applies only to the substantive crime for which the accused is charged. La. Const.1974, art. I, § 15; La.C.Cr.P. art. 382. In State v. Alexander, 325 So.2d 777, 779 (La.1976), quoting State v. Jackson, 298 So.2d 777 (La.1974), the Court reasoned that the “(bill of) information [charging the defendant as a multiple offender] does not charge a crime but is merely the method of informing the sentencing court of the circumstances and requesting an enhancement of penalty.” Thus, the enhanced penalty proceeding does not charge the defendant with a crime; consequently no indictment is necessary. Id. Moreover, the charging instrument is dependent upon the classification of the substantive crime charged, not the enhanced penalty to which an individual may be subject upon conviction. Id. In State v. Tassin, 08-0752, p. 9 (La.App. 3 Cir. 11 /5/08), 998 So.2d 278, 285, writ denied 08-2909 (La.9/18/09), 17 So.3d 385, the defendant asserted that the State v. Alexander needed to be reconsidered in light of U.S. v. Booker, 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621] (2005). The court reasoned that Booker was not applicable because it did not address a recidivism statute. Id. at 238 [125 S.Ct. 738]. Thus, the Tassin court concluded that State v. Alexander was still “good law.”

Because the appellant was charged with violating La. R.S. 14:64, which carries a maximum penalty of ninety-nine years and not life imprisonment, there was no requirement that the prosecution be instituted by grand jury indictment.

Right to Trial by Jury

The appellant asserts next that under the Fourteenth and the Sixth Amendments to the U.S. Constitution, he was entitled to have a jury decide if he is a multiple offender. He argues that the United States Supreme Court cases of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Shepard v. |6 U.S., 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), provide only that the bare existence of a prior conviction does not need to be determined by a jury. Anything else, such as the identity of a defendant as the person who was previously convicted, must be decided by a jury-

Again, the argument that a defendant is entitled to a jury trial in connection with a multiple offender proceeding pursuant to La. R.S. 15:529.1 has been rejected multiple times, including by this Court in Vincent, 2010-0764, pp. 10-11, 56 So.3d at 415; State v. Juengain, 2009-0425, p. 11 (La. App. 4 Cir. 1/20/10), 41 So.3d 499, 506-07; and State v. Smith, 2005-0375, pp. 3-5 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, 839-840. The appellant cites no new jurisprudence from the Louisiana Supreme Court or the United States Supreme Court that casts doubt on these decisions. This argument has no merit.

Furthermore, the issue of the right to a jury trial was not raised at the multiple offender hearing or prior to the hearing in the motion to quash the multiple bill. No motion to reconsider sentence was filed. Thus, the issue was not preserved for future review. See State v. Smith, 2007-1432, pp. 4-5 (La.App. 4 Cir. 7/2/08), 989 So.2d 816, 819.

Proof of Elements of La. R.S. 15:529.1

In addition to the alleged denial of his constitutional rights discussed above, the appellant argues that the State failed to provide sufficient proof at the hearing to establish that he was the person convicted in the predicate cases listed in the multiple bill and that the guilty pleas given in the predicate cases were validly made. However, the record demonstrates that there were no objections to the State’s proof on these issues. Furthermore, although a motion to quash the multiple bill was filed, the basis for the motion was that the State was improperly 17using convictions entered on the same date to multiple bill him. No other written response or objections were made to the predicate convictions. As such, the appellant failed to preserve his claims that the State did not prove his identity and the validity of the prior pleas.

In State v. Cossee, 95-2218 (La.App. 4 Cir. 7/24/96), 678 So.2d 72, this Court discussed the procedural requirements for objecting to the sufficiency of State’s evidence regarding a defendant’s prior convictions:

Following the Louisiana Supreme Court decision in State v. Shelton, 621 So.2d 769 (La.1993), the Louisiana Legislature amended La. R.S. 15:529.1(D)(1)(b) to place the burden of challenging a predicate conviction in a multiple bill proceeding on the defendant. That subsection now provides, in pertinent part:
Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack a sentence.

Cossee, 95-2218, p. 2, 678 So.2d at 73 [Emphasis added]. See also State v. Randall, 2010-0027 (La.App. 4 Cir. 10/27/10), 51 So.3d 799.

The motion to quash the multiple bill was filed on June 18, 2010. In it, the defendant averred that, “The State of Louisiana has violated this Defendants [sic] rights and that it is using several convictions to which defendant pled guilty to at | S[sic] the same time.” Also, in the motion, defendant contended, “There is recently legal authority in support of Defendant’s claim which Defendant will submit and argue in a Memorandum of Law.” (Id.) The record does not contain a supporting memorandum.

At the multiple bill hearing after the fingerprint expert, Officer Joseph Pollard, testified on direct examination, defense counsel cross-examined Officer Pollard on whether he had “any knowledge of whether this is [sic] arrests, convictions, each of these particular instances stems from an arrest and a conviction in sequence, or just all pleaded at one time?” Counsel did not question Officer Pollard regarding his testimony on the identity of the defendant as the person previously convicted. Furthermore, after Officer Pollard finished his testimony and the State offered its in glo-bo exhibits S-l through S-4, defense counsel stated that he had no objections.

Defense counsel argued only that “traditional law suggests that we would have arrest, conviction; arrest, conviction; arrest conviction; a three strikes you out.” The trial court responded that, “It used to be that way.” (Id.) Defense counsel argued that the defendant’s prior convictions were not crimes of violence, but rather were narcotics offenses, and petitioned the court to exercise its discretion to impose a sentence less than the mandatory life imprisonment. Defense counsel next asked the court to consider modifying the jury verdict to attempted first degree robbery so that “it would not be a crime of violence conviction” and thus would not require a mandatory life sentence.

At no time did defense counsel argue that there was any defect in the validity of the prior guilty pleas or that the State had failed to prove that the defendant had been previously convicted in the cases alleged in the multiple bill of 19information. The only formal objection made was a general objection made after the trial court found the defendant to be a fourth offender, set aside the prior sentence, and refused to impose a sentence below the statutory minimum after considering defense counsel’s argument that the defendant’s prior drug offenses justified a lesser sentence. No oral or written motion to reconsider sentence was filed.

At trial, the defendant admitted that previously he had pled guilty to distribution of cocaine and had pled guilty to possession of cocaine three times. Furthermore, the sentencing transcript of March 31, 2010 reflects that the State intended to go forward with the multiple bill hearing on that date. Defense counsel indicated that he wanted a continuance because the defendant was facing a life sentence, and the court granted it. The prosecutor asked that the defendant be fingerprinted, which he was. The prosecutor also stated that the defendant had five prior convictions, but the State had only listed three in the multiple bill of information. He then asked that the record “reflect that the State has turned over five cert packs on Mr. Landfair, and which Mr. Pryor said he will review.” The court set the multiple bill hearing for April 21, 2010, which was continued several times. Defense counsel filed the written motion to quash the multiple bill on June 18, 2010, two months after he received copies of the State’s evidence of the prior convictions, and two months before the hearing was held on August 26, 2010.

The prior convictions alleged in the multiple bill of information were all from the Twenty-Fourth Judicial District Court for the Parish of Jefferson. They | ¡ (¡included the following: (1) in case number 97-0241, a plea of guilty as charged to possession of cocaine with the intent to distribute on April 15, 1997; (2) in case number 95-4684, a plea of guilty as charged to possession of cocaine with intent to distribute on September 13, 1995; and (3) in case number 97-6166, a plea of guilty as charged to possession of cocaine with the intent to distribute on December 2, 1997. At the multiple bill hearing, the State introduced certified documents from each of these cases. S-2, case number 97-0241, consisted of a bill of information, a set of fingerprints, an executed waiver of rights form, and a minute entry, all bearing the date April 15, 1997 and the defendant’s name. The waiver form is also signed by Karma Landfair, defense counsel, and the trial judge. The minute entry reflects that the defendant was present with counsel, that the court advised him of his rights, and that a waiver of rights form was executed and filed into the record. All of the documents except the fingerprints bear the case number 97-0241.

Similarly, S-3, consisting of documents from case number 95-4684, and S-4, consisting of documents from case number 97-6166, reflect the defendant’s name on each document, including an executed “waiver of rights form” for each case; minute entries reflecting the presence of defendant and counsel and the execution and filing of waiver of rights forms and guilty pleas to possession of cocaine with the intent to distribute. All of the documents in the packets marked S-3 and S-4 reflect the dates of the guilty pleas, September 13,1995 and December 2, 1997, respectively-

It is clear from the record that the State provided copies of the evidence of the prior guilty pleas in ample time for the defense to file written objections. The only written objection pertained to the sequencing of the prior arrests and convictions, which is discussed infra, and not to the validity of the prior pleas. Nonobjection or argument as to the sufficiency of the evidence to prove the defendant’s identity as the person previously convicted in case numbers 97-0241, 95-4684, and 97-6166 was made at the hearing. Accordingly, we find that the appellant did not preserve these issues for appellate review. See State v. Randall, 2010-0027 (La.App. 4 Cir. 10/27/10), 51 So.3d 799, in which this Court refused to consider whether the State provided sufficient evidence of the discharge date from the prior convictions because the issue had not been preserved for appellate review, despite the filing of a formal motion to quash.

In the instant case, subsequent defense counsel then filed another motion to quash the multiple bill and a motion for discovery. In these pleadings, the defendant complained that the State had not turned over copies of its documentary evidence, including proof of the discharge date, and that the lapse of time since the filing of the multiple bill violated the defendant’s right to a speedy trial. After the filing of these pleadings, but prior to the hearing, the State gave the defense counsel copies of the certified documents from the prior convictions which it intended to introduce at the multiple bill hearing. On the date of the hearing, defense counsel stated on the record that he was prepared to go forward and indicated he had received the discovery requested; no new written objections were filed. At the hearing, the only defense objections were to the State’s failure to formally file its evidence prior to resting its case and to the adjudication itself on the grounds that the defendant had been denied the right to a speedy trial, including that the defendant had by then been released from prison on the original sentence.

In concluding that appellate review was precluded, this Court stated that the review of the record “establishes clearly that trial counsel made certain specific objections at the multiple bill hearing but elected to make none as to the alleged 112lack of proof of a discharge date. The lack of objection on this issue precludes review on appeal.” Randall, p. 11, 51 So.3d at 806. See also State v. Juengain, 2009-0425 (La. App. 4 Cir. 1/20/10), 41 So.3d 499, 506-07.

Sequencing of Convictions

As argued by defense counsel in the trial court, the appellant argues that his prior convictions did not occur in the proper chronological sequence of offense and conviction, then a subsequent offense and conviction, and so forth, such that he could be adjudicated a fourth offender.

The State’s exhibits from the multiple bill hearing show that the defendant committed the first offense on June 8, 1995. It was charged under case number 97-6166, and the defendant pled guilty on December 2, 1997. The defendant committed the second offense on August 22, 1995; it was charged under case number 95-4684, and the defendant pled guilty on September 13, 1995. He committed the third offense on September 25, 1996; it was charged under case number 97-0241, and the defendant entered his guilty plea on April 15, 1997. Thus, according to the State’s exhibits, the defendant’s guilty plea to the earliest of the three offenses was entered on December 2,1997, after he had committed his other crimes and pled guilty to them. Appellant argues that La. R.S. 15:529.1 requires a defendant to have been convicted of an offense before he commits the next offense in order to be adjudicated a habitual offender. The reason for this sequential requirement, according to the appellant, is that the purpose behind La. R.S. 15:529.1 is to deter recidivism, and not to follow a strict sequencing requirement does not serve that purpose.

The Habitual Offender Law, La. R.S. 15:529.1, provides in pertinent part:

|1SA. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
B. It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as and adjudged to be a third offender, or that an offender has been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime. Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.

For many years, La. R.S. 15:529.1 had been interpreted by the Louisiana Supreme Court to include a sequencing requirement which was described as follows: “The sequence necessary for enhancement of sentencing under the Habitual Offender Law is commission of crime, or crimes, followed by conviction (equals a first offender), then commission of another crime, or crimes, followed by conviction (equals a second offender), and so forth.” State ex rel. Mims v. Butler, 601 So.2d 649, 651 n. 4 (La.1992). This interpretation was overruled by the Louisiana Supreme Court in State v. Johnson, 2003-2993 (La.10/19/04), 884 So.2d 568. In Johnson, two of the defendant’s prior three convictions were entered on the same day, and the court was directly presented with the issue of whether to continue to interpret La. R.S. 15:529.1 B as incorporating a sequential requirement for enhanced penalties in the sentencing of multiple offenders. The court found that Act 688 of 1982 removed the sequential requirement of La. R.S. 15:529.1 and legislatively repudiated the rule of law the court had pronounced in State ex rel. Jackson v. Henderson, 283 So.2d 210 (La.1973). In overruling its contrary decision in Mims, the court held that the only “sequencing” requirement in La. | UR.S. 15:529.1 is that “the subsequent felony must be committed after the predicate conviction or convictions.” Johnson, 2003-2993, p. 18, 884 So.2d at 578.

Appellant attempts to distinguish Johnson, noting that in response to its holding, the legislature by Acts 2005, No. 218, § 1, amended La. R.S. 15:529.1 to add the second sentence of Paragraph B: “Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.” (October 19, 2004 is the date of the Johnson decision.) The appellant argues that, because all three of his predicate convictions occurred prior to October 19, 2004, the pre-Johnson sequencing rule applies.

Appellant’s argument is without merit. First, there is nothing in the added text to indicate that the legislature was attempting to reinstate a strict offense, conviction, offense, conviction sequencing requirement. If that was the goal, the legislature could simply have added back the language which existed from 1956 until the 1982 amendment to La. R.S. 15:529.1, the removal of which resulted in the Supreme Court in Mims inserting a jurisprudential requirement in place of the clear statutory one. As the court explained in Mims:

[T]he Legislature by Act 312 of 1956 engrafted a paragraph onto § 529.1 which contained the pre-1982 version of B. The new paragraph (Section B) of Act 312 of 1956 contained two sentences. The first sentence provided:
It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as, and adjudged to be, a third offender, or that an offender have been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime.
This sentence clarifies, one might say, favorably to the prosecutor, that, in order to be charged as a multiple offender, a felon need not have been so labeled, and so adjudged, previously.
|1fiThe second sentence stated:
Provided, however, that the offender shall be deemed a second offender only if the crime resulting in the second conviction shall have been committed after his first conviction; that one shall be deemed a third offender under this Section only if the crime resulting in the third conviction shall have been committed after his conviction for a crime which in fact caused him to be a second offender in the prior instance; and that one shall be deemed to be a fourth offender under this Section only if the crime resulting in the fourth conviction shall have been committed after his conviction for a crime which in fact caused him to be a third offender, whether or not he was adjudged to be a third offender in the prior instance, (emphasis added)
The jurisprudence interpreting this statute in the interim between 1956 and the 1982 amendment consistently held that under the Habitual Offender Law, second offender status could only result from an offense committed after a first conviction, and third offender status after a conviction which would have qualified as a second offender conviction, and so on. [Citations omitted.]
In Act 688 of 1982, the Legislature amended the habitual offender statute. They made only some minor changes, while repealing the second sentence of

State ex rel. Mims v. Butler, 601 So.2d at 652-58.

It is more probable that the legislature’s decision in 2005 to add the second sentence to Paragraph B, by which the legislature limited the retroactive effect of the Johnson decision to predicate convictions entered on the same day after Johnson was rendered, was motivated by concern that to do otherwise would result in successful attacks on prior guilty plea bargains. See Mims, 601 So.2d at 658, n. 6. Those considerations are not applicable to the defendant as he entered each of his guilty pleas on separate dates. In fact, one was entered two years before the others. There is nothing to [ 1ñsuggest that he entered his guilty pleas under the belief that they could not all be used to support a future multiple offender adjudication. Furthermore, in case number 97-6166, the last predicate case in which the defendant pled guilty, the waiver of rights form and the minute entry show that the State agreed not to file a multiple bill. This agreement suggests that the defendant was well aware by then of the possibility at least that he had earlier convictions which would make him eligible for an adjudication as a habitual offender.

On its face, the 2005 amendment to La. R.S. 15:529.1 does not apply to the predicate convictions used to prove that the appellant is a fourth offender. Those convictions were not entered on the same day, and the instant offense was committed after his three prior separate convictions for possession of cocaine with intent to distribute. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, appellant asserts that his life sentence is excessive. Specifically, he argues that the trial court abused its discretion when it sentenced him to the life sentence mandated by La. R.S. 15:529.1 without any inquiry as to whether the sentence was excessive under the facts of the case and the defendant’s history of drug offenses, as required by State v. Dorthey, 623 So.2d 1276 (La.1993).

The initial issue to be addressed is whether this claim was preserved for review. The sentencing transcript reflects that after the court found the defendant to be a fourth offender and imposed the sentence, defense counsel simply noted his objection without specifying that he was objecting to the [17sentence as excessive. No motion to reconsider the sentence was filed. However, prior to the court imposing sentence, defense counsel argued that the trial court should not impose the mandatory life sentence because the defendant’s prior convictions were not crimes of violence.

This court has found that a simple objection lodged after sentencing was sufficient to preserve the bare claim of constitutional excessiveness. State v. Miller, 2000-0218 (La.App. 4 Cir. 7/25/01), 792 So.2d 104; State v. Thompson, 98-0988 (La.App. 4 Cir. 1/26/00), 752 So.2d 293.

In light of defense counsel’s specific argument to the trial court prior to sentencing, and the court’s acknowledgement of counsel’s argument, which is further discussed infra, we find that the issue was preserved for review.

The standard for review of a claim that a mandatory sentence imposed under La. R.S. 15:529.1 is excessive is well-settled and was set forth recently in State v. Phillips, 2010-0582 (La.App. 4 Cir. 2/17/11), 61 So.3d 130:

In State v. Rice, 2001-0215, p. 5-6, (La.App. 4 Cir. 1/16/02), 807 So.2d 350, 354, this court reviewed the nature of the habitual felony offender sentencing scheme and the standard for departing from it:
Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). However, the entire Habitual Offender Law has been held constitutional, and, thus, the minimum sentences it imposes upon habitual offenders are also presumed to be constitutional. Johnson, 97-1906, pp. 5-6, 709 So.2d at 675; see also State v. Young, 94-1636, p. 5 (La.App. 4 |18Cir. 10/26/95), 663 So.2d 525, 527. There must be substantial evidence to rebut the presumption of constitutionality. State v. Francis, 96-2389, p. 7 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must show by clear and convincing evidence that he is exceptional, which in this context means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343; Johnson, 97-1906, p. 8, 709 So.2d at 677. “Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” Id.

Phillips, 2010-0582, pp. 6-7, 61 So.3d at 134-135.

Defense counsel urged the trial court to use its discretion under Dorthey to impose a sentence less that the mandatory one of life imprisonment because the defendant’s prior convictions were “only drug charges” and not crimes of violence. The court refused to do so, stating:

Mr. Landfair, in light of your criminal history and what the jury found you guilty of, I do not find that this case is worthy of me going below the life mandatory sentence. I don’t find that he is a candidate for me to go below a life sentence pursuant to Dorthey. I have considered your arguments, Mr. Pryor, and I’m sentencing your client to life imprisonment....

Although the State originally charged the defendant with armed robbery, a violation of La. R.S. 14:64, the jury returned a verdict of guilty of first degree robbery, a violation of La. R.S. 14:64.1, and a crime of violence pursuant to La. R.S. 14:2(B)(22). As to the criminal history considered by the trial court, at the multiple bill hearing the fingerprint expert matched the defendant’s fingerprints with those on the certified documents from all five of the defendant’s prior felony 119convictions, not just the three alleged in the multiple bill of information. The court had the opportunity therefore to learn the nature of all of the defendant’s prior felony convictions.

Appellant contends that the life sentence is excessive because his “record of repeat drug convictions proves his substance abuse problem.” In further support of this argument, he cites to cases wherein mandatory sentences were found to be constitutionally excessive because the defendants were drug addicts. However, in those cases, the convictions that led to life sentences were for distribution of small amounts of cocaine in support of their addiction, and there were no crimes of violence in the defendants’ criminal records. See State v. Burns, 97-1533 (La.App. 4 Cir. 11/10/98), 723 So.2d 1013, and State v. Stevenson, 99-2824 (La.App. 4 Cir. 3/15/00), 757 So.2d 872. Also, in the Dor-they case itself, a twenty-year mandatory minimum sentence was ruled potentially excessive given that the defendant was a twenty-seven year old crack addict with three prior convictions for simple possession of cocaine.

There are multiple flaws in the appellant’s argument that his circumstances are the same as those of the defendants in Burns, Stevenson, and Dorthey. First, his three prior convictions were not for simple possession of cocaine, which would be consistent with a drug addiction. Rather, they were all for possession with the intent to distribute. In fact, during his trial testimony, he stated that he was not a drug addict when asked if he had a “cocaine use problem,” but rather he stated | ^instead that he had been “a dealer.” In his brief, defendant asserts that he was cooperative and remorseful, blaming the crime on his addiction. However, this was not manifested at the time of his arrest and confession. He fails to acknowledge that he was not remorseful at trial, instead claiming that the police forced him into making the confession. He denied committing the offense or that he was a drug addict, claiming instead that the money found in his possession was won at the casino.

Furthermore, the instant conviction for first degree robbery is a crime of violence. La. R.S. 14:64.1, 14:2(B)(22). Thus, the appellant’s assertion that he “has not been involved with weapons or violent offenses” is not accurate.

Notably, the defendant committed his offense after the effective date of the 2001 amendment reducing the mandatory minimum sentence for habitual offenders. Thus, even after the legislature decided to reduce sentences for a variety of offenses and offenders by passing Acts 2001, No. 403, a life sentence was still the minimum that could be imposed on the defendant under La. R.S. 15:529.1(A)(4)(b). The instant conviction is for a crime of violence and all three of his prior felony convictions were violations of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more. See La. R.S. 40:967(B). Moreover, pursuant to La. R.S. 15:529.1(A)(3)(b), even if the defendant had only been convicted of two prior violations of La. R.S. 40:967(A) relative to possession of cocaine with the intent to distribute, the legislature had still determined that a mandatory life sentence would be appropriate.

^Despite his attempt to present mitigating factors, the record fails to provide evidence that there were exceptional circumstances that would justify a downward departure from the mandatory term of life imprisonment. See State v. Williams, 2005-0176 (La.App. 4 Cir. 5/3/06), 932 So.2d 693. This assignment of error has no merit.

CONCLUSION

Accordingly, for the foregoing reasons, the appellant’s conviction and sentence are affirmed.

AFFIRMED

      . The fingerprints taken that date were introduced at the multiple bill hearing as S-l. Officer Pollard testified that he compared the fingerprints which he took from the defendant on March 31, 2010 to each of the set of fingerprints contained in State’s exhibits S-2, S-3, and S-4, and that all were those of the defendant, Karma Landfair.

      . The State earlier had stated that it felt constrained to only charge that the defendant was a fourth offender because the blank multiple bill of information form it used only had spaces to allege that a defendant is a fourth offender.

      . The record does not indicate what the other two convictions were, except that the defendant at trial admitted he had a prior conviction for distribution of cocaine. The predicate convictions in the multiple bill are all for possession of cocaine with the intent to distribute.

        . Burns, Stevenson, and Dorthey preceded the 2001 revisions to the mandatory minimum sentences for multiple offenders.


text:
    Roberto DURAN v. TURNER INDUSTRIES GROUP, LLC.
    No. 2011-CA-0210.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 20, 2011.

      Laurie W. Maschek, Laurie W. Mas-chek, Attorney at Law, LLC, Slidell, LA, for Plaintiff/Appellant.
    F. Dominic Amato, Charles J. Duhe, Jr., Taylor Wellons Politz & Duhe, APLC, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

h Roberto Duran appeals a judgment of the Office of Workers’ Compensation wherein his claim for workers’ compensation was denied. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Roberto Duran was employed by Turner Industries Group, LLC (hereinafter “Turner”), as a scaffold builder. He alleged in his disputed claim for compensation that he injured his right side and back while at work on January 15, 2008. On that date he was disassembling scaffolding at the Cytec plant in Waggaman, Louisiana, and claimed that as he handed a board down to a co-worker, he felt a pain in his back, paused briefly, but continued working. Mr. Duran claimed that later he was in extreme pain and sought treatment at Tulane Medical Center on January 16, where he reported pain in his right flank and back. The claim states that he reported the accident to Billy Thompson, his supervisor, on January 17, 2008.

[¿Turner responded to the claim stating that Mr. Duran did not have an accident at work. Mr. Duran waived his right to mediation. The case was tried on August 12-13, 2010.

Mr. Duran’s counsel moved for an expedited hearing on a motion to have Turner authorize initial choice of physician. In the supporting memorandum, Mr. Duran claimed that on January 17, Turner’s safety officer, Marshall O’Neill, took him to a clinic in Baton Rouge to be evaluated. According to Mr. Duran, Dr. Charles Tes-sier diagnosed a possible muscular strain. Mr. Duran claimed that he was unable to work at that point, and sought treatment from Dr. Samuel Greenberg, who provided a course of treatment including weekly therapy. Dr. Greenberg requested Turner to pay for an MRI of Mr. Duran’s lumbar spine, but Turner refused. In December of 2008, Turner authorized Mr. Duran to see Dr. Reyes, an orthopedist.

According to Mr. Duran, Marshall O’Neill, Turner’s safety man, transported him to the doctor’s office, and told the doctor that Mr. Duran’s accident was on January 9, 2008. Dr. Tessier prescribed Ibuprofen 800 mg to Mr. Duran. According to Mr. Duran, O’Neill took the prescription from him and told him to take Aleve instead.

Sherman Brown, the site manager for Turner, testified that Garin James, one of Mr. Duran’s co-workers, wrote January 10, 2008, as the date of the alleged incident on his report, because that is the date given to Marshall O’Neill by Mr. Duran.

| ¡¡Medical records from Tulane Medical Center, where Mr. Duran sought treatment on January 16, 2008, indicated that his complaints of flank and back pain had begun three weeks prior. Mr. Duran disputed this at trial, stating that he did not think the medical staff at Tulane could understand him , and that he did not understand their questions. The medical records do not reflect that Mr. Duran’s injuries were work-related.

At trial, Mr. Duran testified that he told both of his co-workers, Garin James and Manuel Concepcion, about his work accident immediately after it happened. He then testified that he told them about the accident on January 17, when they were all called to the safety office. His explanation for why he and Turner employees disagreed about the date of the alleged accident was that no one could understand him.

LAW AND ANALYSIS:

The main question to be answered in this appeal is whether a work-related accident occurred. According to the trier-of-fact, one did not. Because the alleged accident was unwitnessed, the court had to decide whether the evidence presented by Mr. Duran established that it was more probable than not that an accident occurred. It is well-established that an allegedly injured employee’s testimony alone may be sufficient to discharge his burden of proof, but only if two elements are satisfied: 1) no other evidence discredits or casts serious doubt upon the employee’s version of the incident; and 2) the employee’s testimony is | ¿corroborated by the circumstances following the alleged incident. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992)(citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979)).

In its judgment, the trial court stated that it did not find Mr. Duran to be a credible witness. As the trial court noted, it is undisputed that the alleged accident was unwitnessed. Thus, Mr. Duran’s testimony and the circumstances following the alleged accident must be weighed to determine if he has carried his burden of proof. The trial court must accept a witness’s uncontradicted testimony, even if the witness is the plaintiff, absent circumstances casting suspicion on the reliability of the testimony. Bruno, 593 So.2d at 361 (citing West v. Bayou Vista Manor, Inc., 371 So.2d at 1147; and Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987)).

The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has carried his burden of proof are factual determinations that may not be disturbed on review absent a showing of manifest error. Bruno, 593 So.2d at 361 (citing Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La. App. 2d Cir.1988)). If a trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

The crux of the plaintiffs case is that because of a language barrier, i.e., he speaks, reads and writes Spanish, the information that he gave to the various safety personnel and supervisors at Turner, his co-workers on the job, and the various | ¡¡doctors who treated him, was lost in interpretation. The evidence does not support this conclusion.

Garin James, a co-worker of Mr. Duran, testified at trial that he had not witnessed the plaintiff injure himself on any date in January. He was requested to write a statement about whether he witnessed an accident on January 10, a date which Mr. Duran contends is not the date of his injury. In his statement, Mr. James denied that the plaintiff grabbed at his back or told him that he was injured on January 10, 2008. The plaintiffs attorney repeatedly asked Mr. James if he had been coached or supplied with the words to write on his statement. Mr. James was steadfast in his answer that the statement was true and correct based on his recollection. Mr. James testified that although Mr. Duran spoke “broken” English, they had numerous conversations while working together. It was Mr. James opinion that the plaintiff understood what was being said.

Another co-worker, Manuel Concepcion, who was deceased at the time of trial, also completed a statement in which he reported that he did not witness Roberto Duran injure himself at work on January 10, 2008.

Billy Thompson, one of the two possible men the plaintiff said he spoke with to report his absence from work on January 16, testified that he had no recollection of ever speaking to the plaintiff on the phone about missing work because of a work-related accident. He also testified that he had conversations in English with Mr. Duran while at work and had no reason to believe Mr. Duran did not understand what was being said. Although Mr. Thompson participated in the | (¡investigation of the plaintiffs alleged accident, he denied that he coached either Garin James or Manuel Concepcion about what to write in their statements.

Danny Eddings, an area health and safety manager for Turner, had worked with the plaintiff at another company before working for Turner. He testified that he had numerous conversations with the plaintiff in English at both jobs. He stated that the plaintiff told him on January 17, 2008, that he had hurt himself but that it was not work-related.

Similarly, Lionel Dubea, a Turner support craft supervisor, testified that he had conversations with Mr. Duran in English. He also participated in the investigation of the alleged accident, and denied coaching Mr. Duran’s two co-workers on what to write in their statements. He testified that sometimes worker witnesses would write a draft statement, and then write a final statement after it was “cleaned up” for grammar, spelling, etc. To his knowledge, the draft statements would be kept in the investigation file. He did not know for a fact whether James and Concepcion had re-written their statements.

Mr. Dubea personally questioned Mr. Duran on January 17 about the accident. He testified that the plaintiff told him the accident occurred on January 10, 2008. Although he felt Mr. Duran could understand his questions based on his responses, he brought in an interpreter to verify what the plaintiff was saying. Mr. Duran told the interpreter in Spanish what happened, the interpreter would repeat in English, and Mr. Dubea would write it down. Mr. Duran was allowed to make both a rough and final draft, both of which were contained in the file.

|7In addition to the various versions of the alleged injury and the different dates on which it allegedly occurred, Mr. Duran himself in depositions and trial testimony gave conflicting stories. In his statement given on January 22, 2008, and signed by him, he stated that he injured himself when passing scaffolding down to his coworker, Garin James. However, he reported to Dr. Greenberg, a physician his attorney recommended, that he was injured when he lifted a heavy board and tried to walk with it.

After reviewing the record evidence, trial testimony and findings of fact made by the trier-of-fact, this Court cannot say that the trial court was manifestly erroneous in dismissing Mr. Duran’s claims. The record is replete with contradictions that cast serious doubt on Mr. Duran’s version of the accident to which he testified at trial. Furthermore, the trial court was in the better position to evaluate the credibility of the witnesses, and did not find Mr. Duran to be credible.

Accordingly, for the reasons set forth herein, we affirm the judgment of the trial court.

AFFIRMED

      . The medical records from Tulane Medical Center reflect that a box was checked indicating no interpreter was needed.


author: McClendon, j.

text:
    STONEGATE HOMEOWNERS CIVIC ASSOCIATION v. CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE, Department of Public Works for the City of Baton Rouge/Parish of East Baton Rouge, City Parish Planning Commission for the Parish of East Baton Rouge, Wooddale Plaza Corporation, D.M. “Mike” Ferrell, Ed McGehee, Dawson Engineers, Inc., Cloy Construction Company, Inc. & Stadium Square, Ltd.
    No. 2011 CA 0028.
    Court of Appeal of Louisiana, First Circuit.
    July 26, 2011.
    Jeffrey S. Wittenbrink, Baton Rouge, LA, for Plaintiff/Appellant Stonegate Homeowners Civic Association.
    Gwendolyn K. Brown, Baton Rouge, LA, for Defendant/Appellee City of Baton Rouge/Parish of East Baton Rouge.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

12Plaintiffs appeal a trial court judgment dismissing their case as abandoned For the reasons that follow, we grant the defendants’ motion to dismiss the plaintiffs’ appeal as untimely.

FACTS AND PROCEDURAL HISTORY

Stonegate is a subdivision located in Baton Rouge, Louisiana. Plaintiff Stonegate Homeowner’s Civic Association originally filed suit in 1987 against several defendants, including the contractor that constructed the infrastructure improvements, engineer and subcontractors, as well as the City of Baton Rouge/Parish of East Baton Rouge (City/Parish), alleging that the sewage drains in the streets were caving in and that the streets were not being maintained by any of the defendants. Stone-gate Homeowner’s Civic Association later amended its petition to name additional plaintiffs, who were all residents in the Stonegate subdivision. We will refer to the plaintiffs collectively as “Stonegate.”

All defendants, except the City/Parish, were later dismissed from the litigation. Stonegate has maintained its suit against the City/Parish with claims that the streets, sewers, and storm drainage in the subdivision were accepted for public maintenance by the City/Parish.

A trial on the merits commenced on January 28, 2001. At the conclusion of Stonegate’s presentation of evidence, the City/Parish made an oral motion for involuntary dismissal, which the trial court granted. On December 20, 2002, this court found that the “trial court manifestly erred in its grant of an involuntary dismissal.” Stonegate Homeowners Civic Ass’n v. City of Baton Rouge/Parish of East Baton Rouge, 01-2883, p. 6 (La.App. 1 Cir. 12/20/02), 836 So.2d 440, 444, writ denied, 03-0786 (La.5/9/03), 843 So.2d 407. This court reversed the grant of the involuntary dismissal and remanded the matter “to the trial court to allow the City/Parish the opportunity to present countervailing evidence at a full trial of this matter.” Id.

In accord with this court’s instructions, a full trial on the merits was held on October 31, 2006. The matter was taken under advisement and the court bordered post-trial memoranda. The trial court ordered Stonegate to file its memorandum by November 15, 2006, the City/Parish to file its memorandum by November 30, 2006, and Stonegate to file any rebuttal, if necessary, by December 8, 2006.

No further action was taken until November 16, 2009, when Stonegate submitted a post-trial memorandum to the trial court. In response, on May 26, 2010, the City/Parish filed a Motion to Dismiss Suit on Grounds of Abandonment. On June 15, 2010, the district court dismissed the suit as abandoned. Notice of judgment was served, by personal service, on counsel of record for Stonegate on June 23, 2010.

Stonegate did not file a motion to set aside the dismissal based on abandonment, nor did it file a motion for new trial or judgment notwithstanding the verdict. On September 15, 2010, Stonegate filed a Motion and Order for Devolutive Appeal. In its appeal, Stonegate asserts that the trial court erred in dismissing the case as abandoned after it had been submitted for decision.

TIMELINESS OF APPEAL

The City/Parish has filed a motion to dismiss Stonegate’s appeal as untimely. Because Stonegate did not file a motion for new trial or judgment notwithstanding the verdict, the City/Parish avers that LSA-C.C.P. art. 2087 applies herein and requires that a devolutive appeal be sought within sixty days of “[t]he expiration of the delay for applying for a new trial or judgment notwithstanding the verdict.” LSA-C.C.P. art. 2087 A(1). The City/Parish avers that Stonegate’s motion for new trial or judgment notwithstanding the verdict had to be filed by July 2, 2010. See LSA. C.C.P. art. 1974. Because no such motion was filed, the City/Parish asserts that Stonegate had sixty days from July 2, 2010 to appeal. The City/Parish concludes that the underlying appeal filed on September 15, 2010, after the expiration of said sixty days, is untimely.

|4In addition to LSA-C.C.P. art. 2087, we note that LSA-C.C.P. art. 561 provides, in pertinent part:

(4) A motion to set aside a dismissal [based on abandonment] may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1918(A) and shall file a certificate pursuant to Article 1913(D).
(5) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial.

Stonegate appears to argue that pursuant to LSA-C.C.P. art. 561, it had ninety days to appeal the judgment, asserting that the 30-day and 60-day time limits referenced in subparagraphs 4 and 5 above should be tacked together. We disagree. Because Stonegate did not file a motion to set aside the trial court’s dismissal, the clear language of LSA-C.C.P. art. 561 A(5) required that Stonegate file its notice of appeal “within sixty days of the date of the sheriffs service of the order of dismissal.” As noted above, the sheriff personally served Stonegate with a judgment of dismissal on June 23, 2010. As such, the September 15, 2010 notice of appeal was beyond the sixty days required by law. Therefore, Stonegate’s appeal is untimely. Having so found, we do not address the merits of the appeal.

For the foregoing reasons, we grant the City/Parish’s motion to dismiss Stonegate’s appeal. Additionally, we note that the City/Parish had filed a motion to supplement the record with the Notice of Service of Judgment and with the Three-Year Certificate prepared by a deputy clerk of court. However, after the City/Parish filed its motion, the referenced materials were supplemented by the district court and filed into the record. Therefore, we deny the City/Parish’s | ¡¡motion to supplement the record as moot. Costs of this appeal are assessed against Stonegate.

MOTION TO SUPPLEMENT APPELLATE RECORD DENIED AS MOOT; MOTION TO DISMISS APPEAL GRANTED.

      . We note that the district court judge sitting at the time of the October 31, 2006 trial had retired by the time the post-trial memorandum was filed.

      . Although the notice indicates that Stonegate was served with a "Motion to Dismiss Suit on Grounds of Abandonment” as opposed to a judgment of dismissal, Stonegate does not dispute that the judgment of dismissal was attached to the notice. Stonegate, in its motion for devolutive appeal, acknowledged that the "[njotice of the judgment of abandonment was served on plaintiffs on June 23, 2010.”


author: PAINTER, Judge. THIBODEAUX, Chief Judge,

text:
    Wendy Hicks HAGAN v. Robert Gene HAGAN.
    No. 10-1432.
    Court of Appeal of Louisiana, Third Circuit.
    July 27, 2011.

      Robert Gene Hagan, In Proper Person, Leesville, LA, for Defendant/Appellee.
    E. Grey Burnes-Talley, Attorney at Law, Alexandria, LA, for Plaintiff/Appellant, Wendy Hicks Hagan.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

11 Plaintiff/Appellant, Wendy Hicks Ha-gan, appeals the trial court’s calculation of her former husband’s gross monthly income and the trial judge’s determination that he would be able to claim one of their three children as a dependent on his income tax returns. We affirm the trial court’s judgment in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

Wendy Hicks Hagan and Robert Gene Hagan were married on January 4, 1997. Three children were born of the marriage. The parties separated on February 17, 2008, and Wendy filed a petition for divorce on May 22, 2008. During the course of the proceedings, the parties agreed to joint custody with Wendy being designated the domiciliary parent. On June 26, 2008, Robert was ordered to pay $1,402.65 per month in child support. A final judgment of divorce was rendered in open court on October 15, 2009, and signed on March 4, 2010.

At that time, the parties entered into a stipulation concerning the partition of the community, child support in the amount of $1,821.07 per month, and that Robert would be allowed to claim one child as a dependent on his income tax return. The parties could not agree on language for the judgment because Robert indicated that he did not intend to include his thrift savings plan in his retirement. Wendy argued that the thrift savings plan should be included. Robert filed a motion for clarification. The trial judge then found that there was no valid stipulation and vacated the October 15, 2009 judgment on the stipulated matters. Accordingly, he set a hearing for July 1, 2010, to determine all pending matters. Following that hearing, the trial court set child support at $1,561.28 per month and allowed Robert to claim one of the three children as a tax deduction. Written reasons for its ruling were signed on August 9, 2010.

Wendy now appeals, asserting that the trial judge erred in the calculation of Robert’s gross monthly income, in allowing him to claim one of the three minor children as a dependent on his income tax return, and in not awarding her some 12compensation for the loss of the tax deduction for one child. For the following reasons, we affirm.

DISCUSSION

Wendy argues that the trial court erred in finding that Robert’s gross monthly income was $6,707.27. She would have us find that his gross monthly income is $7,147.33 to include $260.00 per month for refereeing basketball games and $200.00 per month in benefits derived from sharing expenses with his live-in girlfriend. We note, however, that Wendy does not pray for an adjustment in the amount of child support, only for an adjustment in the value of his gross monthly income.

“The determination of the amount of [a parent’s] gross monthly income is a finding of fact subject to manifest error review, and one which cannot be set aside by a reviewing court unless it is clearly wrong or manifestly erroneous.” Murphy v. Murphy, 04-1332, p. 3 (La.App. 3 Cir. 2/2/05), 894 So.2d 542, 545, writ denied, 05-983 (La.11/28/05), 916 So.2d 144 (citing Piccione v. Piccione, 01-1086, p. 5 (La.App. 3 Cir. 5/22/02) 824 So.2d 427). Furthermore, “it is within a trial court’s broad discretion to determine which figures are proper to calculate the amount of [ ] monthly gross income.” Id. (citing Templeton v. Templeton, 00-0536 (La.App. 1 Cir. 12/22/00), 774 So.2d 1257).

3 ? serves as a referee for high school basketball games on a seasonal basis. He testified that basketball season is about six months long. He further testified that he is called, on average, once a week to referee but that he is not guáran-teed any certain amount of work. He is paid $30.00 per game. The trial judge used a figure of $50.00 per month in its calculation of Robert’s monthly gross income. Based on the fact that the work is seasonal and unpredictable, we find no manifest error in the trial judge’s finding in this regard.

Wendy also argues that the trial judge erred in not considering the money saved by Robert by sharing living expenses. She would have us include an additional $200.00 per month in his monthly gross income. Louisiana Revised Statutes 9:315(C)(5)(c) provides that the court “may also consider as income the benefits a Isparty derives from expense-sharing.” (Emphasis added.) As the language of the statute is permissive rather than mandatory, “[i]t is within the discretion of the trial court to include or disallow such alleged ‘benefits.’ ” State, Dep’t of Soc. Servs. ex rel. Clark v. Ruiz, 04-1064, p. 10 (La.App. 5 Cir. 2/15/05), 898 So.2d 514, 520.

Robert testified that he pays his girlfriend $250.00 per month in rent and helps out with the utilities from time to time. He further testified that it would probably cost him about $400.00 to $450.00 per month plus utilities to live elsewhere. The trial judge did not include any amount saved by expense-sharing in his calculation of Robert’s monthly gross income, and we find no error in this decision.

Wendy next argues that the trial judge erred in allowing Robert to claim one of the three children as a dependent on his income tax return. Louisiana Revised Statutes 9:315.18(A) provides that there is a presumption that the domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. However, La. R.S. 9:315.18(B)(1) provides that:

The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obli-gor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.

Wendy asserts that, pursuant to La.R.S. 9:315.18(B)(1), Robert, as the non-domiciliary party, had to prove three things: (1) that he was not in arrears for child support; (2) that the award would substantially benefit him; and (3) that the award would not significantly harm Wendy. Wendy claims that Robert was in arrears as proven by trial court’s prior ruling finding him in contempt for not paying child support prior to May of 2009; that he did not prove any substantial benefit to himself; and that the loss of the tax deduction would significantly harm Wendy because it would reduce her net tax refund by $1,545.00.

|4The record reflects that Robert’s child support contribution is 67.53% of the total child support obligation and that he is not presently in arrears on his obligation. Colleen Keller, who has prepared tax returns for the Hagans for several years, testified that, for the year 2008, if Wendy claimed all three children her federal refund would be $6,326.00 and that she would owe the State $36.00; however, if Wendy claimed only two of the children, her federal refund would be $4,801.00 and that she would owe the State $56.00. She also testified that while she did not make the same calculations to determine the impact on Robert, there could be a bigger difference to Robert than to Wendy but that all kinds of variables figured into the calculation.

With respect to the decision to award a parent the right to claim a child as a deduction for tax purposes, the trial judge’s order is generally “entitled to great weight and will not be disturbed on appeal absent clear abuse of discretion.” Westcott v. Westcott, 04-2298, p. 4 (La.App. 1 Cir. 11/4/05), 927 So.2d 377, 379. The trial judge stated that the evidence showed that to allocate all three deduc tions to Robert would substantially benefit him but significantly harm Wendy but that to allocate one deduction to Robert would not significantly harm Wendy. The trial judge, therefore, ordered that Wendy could claim two of the children and that Robert could claim one of the children each year beginning with the year 2010. We do not find an abuse of the trial judge’s discretion in this regard.

Wendy finally argues that the trial judge should have awarded her some form of compensation for the loss of the tax deduction. She cites two fourth circuit cases, Rovira v. Mire, 587 So.2d 149 (La. App. 4 Cir.1991) and Zatzkis v. Zatzkis, 632 So.2d 307 (La.App. 4 Cir.1993), writs denied, 94-157, 94-993 (La.6/24/94), 640 So.2d 1340, 1341, for this proposition. However, under the “law of the circuit” rule, these cases are persuasive rather than controlling authority. We find nothing in the statutes requiring an award of such compensation. “[T]he standard of review in a child support case is manifest error. Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error.” State, Dep’t of Soc. Servs. ex rel. D.F. v. L.T., 05-1965, p. 4 (La.7/6/06), 934 So.2d 687, 690.

Ijn this case, we find no abuse of discretion or manifest error in the trial judge’s determination of the amount of child support to be paid by Robert, in its allowing Robert to claim one of the three children as a dependent on his income tax returns, or in its declining to award any amount in compensation for the loss of the tax deduction for one child to Wendy.

DECREE

For all of the foregoing reasons, we affirm the trial judge’s rulings. Costs of this appeal are assessed to Plaintiff/Appellant, Wendy Hicks Hagan.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting in part.

hi disagree that Robert is entitled to claim one of the three children as a dependent on his tax return. Louisiana Revised Statutes 9:315.18(A) states that it is a presumption in Louisiana that the domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. The statute provides that a non-domiciliary party, such as Robert, could claim the tax deductions under the following circumstances:

B(l) The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obligor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.

La.R.S. 9:315.18.

This court has held that an allocation of tax exemptions to a non-custodial parent is a deviation from child support guidelines for which the trial judge must give written reasons. Greene v. Greene, 93-789 (La. App. 3 Cir. 3/2/94), 634 So.2d 1286, amended 638 So.2d 1245. Moreover, the fifth circuit recently held that 12“the party seeking to have the dependent deduction taken away from a domiciliary parent has the burden of proving that no arrearages are owed and that it would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.” State Dep’t. of Soc. Servs. v. Mason, 09-1088, p. 8 (La.App. 5 Cir. 6/29/10), 44 So.3d 744, 749 (citing State ex rel. Dillashaw v. Brinson, 02-896 (La.App. 1 Cir. 4/2/03), 843 So.2d 1154).

Here, Robert’s child support contribution is greater than fifty percent, and the record indicates that he is not in arrearag-es on his obligations. Thus, the issue of tax deductions hinges on whether awarding the deduction to Robert would help Robert without significantly harming Wendy. It was incumbent on Robert to introduce evidence showing that the state and federal income tax deductions would substantially benefit him without substantially harming Wendy. He did not. Robert neither presented sworn testimony nor introduced exhibits such as his tax returns. In contrast, Wendy offered both the sworn testimony of her accountant as well as detailed tax scenarios showing the harm caused to Wendy by the award of the tax deductions to Robert. While the trial court articulated that evidence existed that established that allocation of one deduction to Robert would not significantly harm Wendy, I find that the record is devoid of such evidence. Thus, I would reverse the trial court’s award of the tax deduction of Alaina Hagan to Robert Hagan.

For the foregoing reasons, I respectfully dissent in part.