author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Lester JONES.
    No. 2010-KA-0018.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Lester Jones.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| T A twelve-person jury unanimously found Lester Jones guilty of the offense of distribution of cocaine, a violation of La. R.S. 40:967 A(l). He was sentenced as an habitual offender to fifteen years at hard labor. Mr. Jones argues on appeal that the evidence is insufficient to sustain the conviction and that the trial court erred in refusing to declare a mistrial on account of improper closing argument by the prosecutor. Because we conclude that the evidence is sufficient and that the trial court did not abuse its discretion in refusing to declare a mistrial, we affirm the conviction and sentence. We explain our reasons below.

I

At the outset we note that we have independently reviewed the record, as we always do, for any errors patent. See La.C.Cr.P. art. 920. A review of the record reveals one patent error. There is no indication that Mr. Jones waived the mandatory twenty-four hour delay between the denial of his motion for new trial and sentencing. See La.C.Cr.P. art. 873. The failure, however, to observe the 1 .¡twenty-four-hour delay is harmless where the defendant does not complain of his sentence on appeal. See State v. Collins, 584 So.2d 356, 359 (La.App. 4 Cir.1991); see also State v. Riley, 05-1311, pp. 4-5 (La.App. 4 Cir. 9/20/06), 941 So.2d 618, 621; State v. Wheeler, 04-0953, pp. 8-9 (La.App. 4 Cir. 3/9/05), 899 So.2d 84, 89. Mr. Jones has not complained of his sentence on appeal and, therefore, the error is harmless.

II

In this Part we consider whether there is sufficient evidence of guilt beyond a reasonable doubt in order to address Mr. Jones’ specific argument that his conviction cannot stand because the cocaine purchaser, Ronald Rasul, testified that Mr. Jones was not the seller. In considering this argument, we note that Mr. Rasul admits that he had purchased cocaine just before his arrest in this matter. And we also note that William Giblin, qualified as an expert in criminal analysis, testified that he analyzed the rocklike substance that Sergeant Young seized in this case, and it tested positive for cocaine. Thus, Mr. Jones’ argument is limited to whether the evidence supports identifying him as the cocaine seller.

A

Sergeant James Young testified that he routinely checked the area of Constance and Melpomene Streets because of prior drug activity in that area. Sgt. Young, while parked behind a vine-covered fence near the corner, soon saw a group of people standing in the street near the parking lot of an abandoned grocery 1¡¡store in the block. He also observed Mr. Jones standing in front of 934 Melpomene. He testified that Mr. Jones, whose hail' was in dreadlocks, was wearing a white tank top, blue jeans, and a dark blue bandana around his neck. As Sgt. Young watched, he saw a white male with a scruffy beard, whom he later identified as Mr. Rasul, ride up to Mr. Jones on a bike. The two men had a brief conversation, and then Mr. Rasul handed Mr. Jones what appeared to be currency. Mr. Jones held out his left hand, from which Mr. Rasul took a small object. Sgt. Young testified that he was too far away to see what the object was. He stated that Mr. Rasul then rode in Sgt. Young’s direction, with the object he received from Mr. Jones still clenched in his hand.

Believing he had just witnessed a drug transaction, Sgt. Young pulled his car into the road and stopped Mr. Rasul. As Sgt. Young exited his car, Mr. Rasul opened his hand and dropped what appeared to be a rock of crack cocaine. Sgt. Young retrieved the object, handcuffed Mr. Rasul, and arrested him for possession of cocaine. Sgt. Young testified that as he was handcuffing Mr. Rasul, he saw Mr. Jones run up the alley next to 934 Melpomene. He called for backup, describing Mr. Jones and his clothing.

Officer Jemar Goines, after hearing the call for backup, saw Mr. Jones — who fit the description — jump out of a window of a house on the 900 block of Melpomene, jump a fence, and hide under a parked vehicle on the 900 block of Terpsichore Street. Officer Goines stopped Mr. Jones and returned him to Sgt. |4Young, who identified him as the man he saw give the cocaine to Mr. Rasul in exchange for currency. Sgt Young arrested Mr. Jones for distribution of cocaine.

Mr. Rasul testified for the defense that Mr. Jones was not the man who sold him the cocaine. He stated that the seller was Mr. Jones’ height, also had dreadlocks, and wore a white T-shirt. Mr. Rasul testified that about one and a half hours after he was arrested and was sitting in the police car, an officer came out of a residence with Mr. Jones in handcuffs. He stated that the officer held Jones about twenty to thirty feet from where he was sitting. Mr. Rasul testified that he was not really looking at Mr. Jones, and when Sgt. Young asked him if Mr. Jones was the seller, he replied, ‘Yeah, I guess it is.” Mr. Rasul testified that ten minutes later, when the officers put Mr. Jones into a different police car, he saw Jones’ face and realized that Jones was not the man who sold him the cocaine. He testified that he repeatedly tried to tell the officers that Mr. Jones was not the seller, but the officers did not listen to him. He insisted that he did not know Mr. Jones at that time and had never bought cocaine from him. He also denied that Mr. Jones ever threatened him. Mr. Rasul admitted that he was still on probation at the time of the trial. He denied that anyone had paid him to testify on Mr. Jones’ behalf, explaining that he wanted to testify because the charge against Mr. Jones was false. Finally, Mr. Rasul testified that although the man who sold him the cocaine looked similar to Mr. Jones, he knew the man who actually sold him the cocaine, and that man was not Mr. Jones.

|sSgt. Young’s testimony, however, contradicts Mr. Rasul’s assertions. Sgt. Young denied that Mr. Rasul ever told him that Mr. Jones was not the man who sold him the cocaine, although he admitted that he had recently heard that Mr. Rasul denied that Mr. Jones was involved. He stated that when the other officers returned Mr. Jones to the scene, he took Mr. Jones over to Mr. Rasul and asked him if Mr. Jones was the man who sold him the cocaine. Sgt. Young explained that Mr. Rasul was initially hesitant and did not want to look at Mr. Jones, but when he finally did he said, ‘Tes.” Sgt. Young maintained that Mr. Rasul never told him that the seller was not Mr. Jones.

B

The standard of review for sufficiency of evidence applicable to criminal convictions in state courts is set out in Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560:

After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” ... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S., at 362, 92 S.Ct., at 1624-1625.

(bold emphasis in original; italicized emphasis added; ellipsis indicate citations omitted).

The United States Supreme Court has explained that this standard of review for sufficiency of evidence is highly deferential to the factfinder:

|fiThis familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee the fundamental protection of due process of law.

Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original). Thus, “[a] reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review.” State v. Macon, 2006-481, p. 8 (La.6/1/07), 957 So.2d 1280, 1285-1286. “It is not the function of an appellate court to assess credibility or re-weigh the evidence.” Id. The Due Process Clause of the Fourteenth Amendment, the source of the Jackson standard, does not countenance, much less require, that we re-weigh testimony and witness credibility. And “[i]n criminal cases [a court of appeal’s] appellate jurisdiction extends only to questions of law.” La. Const, art. V, § 10(B). See also State v. Barthelemy, 09-0391, p. 11 (La.App. 4 Cir. 2/24/10), 32 So.3d 999.

Therefore, in discharging our review function for sufficiency of evidence, we cannot re-weigh or re-consider any conflicts in the testimony. We must confine ourselves to questions of law except to the extent, and only to the extent, that Jackson mandates otherwise. State v. Gilmore, 10-0059 (La.App. 4 Cir. 10/6/10), 50 So.3d 208.

17Moreover, we specifically discussed the sufficiency standard to be employed when a defendant disputes proof of identity in State v. Stewart, 2004-2219, p. 6 (La.App. 4 Cir. 6/29/05), 909 So.2d 636, 639:

When identity is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893; State v. Woodfork, 99-0859 (La.App. 4 Cir. 5/17/00), 764 So.2d 132. The reviewing court must examine the reliability of an identification according to the test set out in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977):(1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. See State v. Brealy, 2000-2758 (La.App. 4 Cir. 11/7/01), 800 So.2d 1116.

See also State v. Mathieu, 07-0204, p. 16 (La.App. 4 Cir. 2/27/08), 980 So.2d 716, 725.

C

While Mr. Jones is correct that Mr. Rasul denied that Mr. Jones was his dealer, he overlooks that Sgt. James Young likewise contradicted Mr. Rasul. Sgt. Young witnessed the sale and positively identified Mr. Jones as the seller. When the seller fled, Sgt. Young broadcast the seller’s description, which everyone agrees matched Mr. Jones: an African-American male with dreadlocks, wearing a white T-shirt, blue jeans, and a blue bandanna. Moments later Officer Goines, having heard the description, saw Mr. Jones jump out of a window of a residence in the same block where the sale occurred, jump over a fence, and hide under a vehicle. Upon capturing Mr. Jones, Officer Goines brought him to Sgt. Young Rwho immediately identified Mr. Jones as the seller. Moreover, Mr. Rasul admitted that he had identified Mr. Jones as his seller to Sgt. Young at the scene.

Mr. Jones contends that Sgt. Young’s identification of him is not credible. He points to the fact that Sgt. Young estimated that he was one hundred feet from the hand-to-hand transaction when he observed it, and he argues that other men on the scene were dressed similarly to him and had dreadlocks. More importantly, he points to Mr. Rasul’s testimony that he was not the seller; rather, Mr. Rasul testified that the seller was someone else he knew and who was not in court during Mr. Jones’ trial. Mr. Rasul also explained that although he initially told Sgt. Young that Mr. Jones was the seller, he was not really paying attention when he did so, and he insisted that he recanted this identification once he got a good look at Mr. Jones, whom he did not know. This testimony was countered by Sgt. Young, who denied that Mr. Rasul ever told him that Mr. Jones was not the seller.

The jury as factfinder was left with contradictory testimony that it resolved in the prosecution’s favor. That is the jury’s proper function. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that Mr. Jones sold the cocaine to Mr. Rasul. Therefore, there is sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Mr. Jones is guilty of distribution of cocaine.

Ill

In this Part we consider Mr. Jones’ second assignment of error that the trial court erred by refusing to grant a mistrial based upon prejudicial argument by the prosecutor during closing argument. Specifically, he asserts that the prosecutor’s reference to Mr. Rasul’s fear of retaliation by him if Mr. Rasul identified him as the seller violated his right to a fair trial. We disagree.

| ;,La.C.Cr.P. art. 774 provides that the scope of closing argument “shall be confined to the evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” Closing argument “shall not appeal to prejudice,” and the prosecution’s rebuttal argument “shall be confined to answering the argument of the defendant.” While prosecutors may not refer to personal experience or turn their argument into a plebiscite on crime, prosecutors nonetheless have “wide latitude in choosing closing argument tactics.” State v. Clark, 01-2087, p. 15 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, 1183. See also State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022.

Even where a prosecutor’s argument has exceeded the scope of Article 774 or is deemed to be improper, a reviewing court should credit the good sense and fairmindedness of the jurors who have heard the evidence. State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703; Clark, supra; State v. Ricard, 98-2278, 99-0424 (La.App. 4 Cir. 1/19/00), 751 So.2d 393. In addition, “a reviewing court will not reverse a conviction unless ‘thoroughly convinced’ that the argument influenced the jury and contributed to the verdict.” Clark, 828 So.2d at 1173. See also State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583; Casey, supra; State v. Wiltz, 2008-1441 (La.App. 4 Cir. 12/16/09), 28 So.3d 554. As the Court noted in Draughn: “Mistrial is a drastic remedy, and the determination of whether prejudice to the defendant has resulted from the prosecutor’s comments lies in the sound discretion of the trial judge. State v. Leonard, 2005-1382, p. 11 (La.6/16/06), 932 So.2d 660, 667. Moreover, a trial judge has broad discretion in controlling the scope of closing argument. State v. Prestridge, 399 So.2d 564, 580 (La.1981).” Draughn, 950 So.2d at 614.

linMr. Jones’ assignment of error relates to argument by the prosecutor on rebuttal concerning Mr. Rasul’s supposed fear of Mr. Jones that led him to testify on Mr. Jones’ behalf. During the defense closing argument, counsel discussed Mr. Rasul’s testimony that exculpated Mr. Jones. Counsel stated that Mr. Rasul was still on probation for his cocaine charge, and his probation could be revoked if the prosecution were to charge him with perjury. Counsel then stated:

So what does he gain by coming here to testify? He told you, “I don’t want this man to take something that he didn’t do.” That’s what he said. You may hear testimony later on — not testimony, argument later on that he was scared because this, that and the other. Mr. Jones contacted him, and he may have been afraid because of that. But I brought that out in redirect; just the questions like, since they both were on the same charge, he pled guilty. He really didn’t owe this man anything. If anything, that if he was scared that the man actually was the one that was doing it, he wouldn’t show up. He would definitely go to jail, if he did it. But he said this isn’t the man.

During rebuttal, the prosecutor responded:

Let’s talk about [Mr. Rasul’s testimony] a little bit. Mr. Rasul admits that he still lives in the same neighborhood. He stays in the same neighborhood. We can certainly understand why he would come into court today and say that’s not him. That makes sense, and the police officer told you in his testimony that he was scared. He was scared at first to identify him. He wasn’t hesitant. There was no doubt in his mind that he was scared. And we can understand that. And we can certainly understand why he would come in here, in court today while he lives on the street in that neighborhood and testify for this man, his dealer. There are several reasons. We talked about those in voir dire, too ... What is he afraid of? Retaliation. Isn’t it reasonable to understand why he might come in here and change his mind today? And let’s think about it. Moments after the incident, within moments he says that’s the guy, and we talked about that in voir dire. If somebody said, well, if that’s when you’re not thinking about the consequences is your reaction [sic]. He’s already been busted. He’s admitted it. He’s got the rock. He admits he bought it. In He says, that’s the guy. Years later, he comes to court after thinking about that, and after thinking about the consequences of his actions—
BY THE WITNESS (Mr. Rasul):
Ma'am, I told the officer—
BY THE COURT:
Sir, sir, sir, Mr. Rasul — Miss Cass, escort him out, please. You can proceed.
BY THE PROSECUTOR:
The man lives on the street in the same area. Do you believe that he would come into court and point him out in open court and say, that’s my dealer. That doesn’t make any sense at all. And it’s unfortunate, the situation that Mr. Rasul is in. It truly is sad that he has to come into court today and testify on this man’s behalf; the man who calls him up and tells him when to be in court. And he has to live day-to-day at his demand. Be in court tomorrow. You’re going to be testifying. That’s unfortunate for Mr. Rasul. You have to look at what’s reasonable to believe. Is it reasonable to believe that he’s going to come into court today and point to his dealer? Is it reasonable to believe he did it right after, moments after? And think about it. He pled guilty as charged. He was already found with the rock. He admitted he had just bought the rock. It’s over for him. He has nothing to gain from the State. At that point when he identified the defendant, he’s already admitted to it and been found in possession of it. The only thing he has to lose now is his life. And you have to ask yourself what is reasonable to believe.

At the close of argument, out of the jury’s presence, defense counsel moved for a mistrial:

BY DEFENSE COUNSEL:
Your Honor, based on the outburst that occurred during that closing, plus I’m asking — filing a motion or asking for a mistrial be [sic] declared in this case for the following reason: The State made — after the outburst from Mr. Ra-sul as it relates to things that the State was saying during closing, I believe that actually prejudiced | iamy client with the outburst, and highly prejudices my client. And after the outburst, the State went further and made the suggestion that he was testifying because he was scared. And the State made that statement directly after the outburst. And almost left poor Mr. Rasul — he’s homeless. He’s living in that area, and the reason why he testified is basically because he’s terrified. Now, in and of itself, if we didn’t have the outburst, I wouldn’t be standing here filing a motion for a mistrial. But in combination with the outburst and the comments from the State after that piling on, I believe that prejudiced my client as it relates to getting a fair trial. And for these reasons, I ask for a mistrial.
BY THE PROSECUTOR:
And, Your Honor, a brief response. If anything, the outburst helped the Defense. The man stood up and screamed, “No. That’s not it. I told them five minutes after.” So I don’t see how the outburst possibly helps the State at all. If anything, it allows the Defense to kind of jump back in during the rebuttal close. It’s not grounds for a mistrial. The man jumped up, I’ll argue for the defense, and was asked to leave. ’
BY THE COURT:
I just want to note for the record that even in your closing, [defense counsel’s name], you indicated that the State may argue that Mr. Rasul was scared, in your closing argument. And Mr. Rasul was, in fact, a defense witness. So at this time I am going to deny your motion for a mistrial, and I note your objection.

Mr. Jones now argues that the prosecutor’s comments deprived him of a fair trial because they destroyed the credibility of his sole witness, who testified that Mr. Jones was not the person who sold him the cocaine. Mr. Jones asserts that the argument painted Mr. Rasul as a pitiful, weak character who only exculpated Mr. Jones because he was afraid for his life. He points out that, contrary to the prosecutor’s remarks, Mr. Jones merely advised Mr. Rasul of the trial date because the case had been reset earlier, and Mr. Rasul had not received notice of the new date. He further argues that the prosecutor’s argument falsely summarized the | iatestimony at trial concerning Mr. Rasul’s alleged fear of Mr. Jones. He correctly notes that Sgt. Young did not testify that Mr. Rasul did not look at Mr. Jones because he was afraid. Instead, Sgt. Young used the term “very hesitant” when describing Mr. Rasul’s reluctance to look at Mr. Jones, noting that “[h]e didn’t want to even look.” When the prosecutor asked why that was, defense counsel objected, and the court sustained the objection because the answer would be speculative. Mr. Jones further asserts that the prosecutor falsely stated that Mr. Rasul testified because he was in fear of his life. He points out that Mr. Rasul denied that anyone had threatened him in order to get him to testify on Mr. Jones’ behalf.

Mr. Jones asserts that the prosecutor’s argument exceeded the facts presented at trial. This court has refused, however, to reverse defendants’ conviction where the prosecutor’s argument included facts that were not adduced during testimony. See State v. Anthony, 08-1031 (La.App. 4 Cir. 11/19/08), 862 So.2d 124 (noting that the prosecution’s argument was clearly speculation rather than a reference to facts known to the prosecutor but not brought out at trial). This court was not thoroughly convinced, given the common sense and fairmindedness of the jury, that the prosecutor’s argument contributed to the verdict or influenced the jury. See also State v. Plaisance, 00-1858 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172 (the prosecutor referred to blood on a seatbelt, a fact not adduced at trial). This court rejected the defendant’s claim that this argument merited reversal of his conviction.

Defense counsel at trial admitted that the prosecutor’s statements, by themselves, would not have been a basis for a mistrial. He argued nonetheless that these statements, when added to Mr. Ra-sul’s outburst, unduly prejudiced Mr. 114Jones. It is difficult to see, however, how Mr. Rasul’s outburst would have prejudiced Mr. Jones; if anything, it reinforced defense counsel’s earlier argument that the prosecution would try to impeach Mr. Rasul’s testimony by arguing that it was the product of fear. In any event, most of the prosecutor’s argument detailed above was an arguable interpretation of the testimony adduced at trial. Mr. Ra-sul’s testimony implied that he bought drugs in the area before the date of his arrest; he admitted that he had been to the house before, and he stated that when he first rode up to the house, he “just went there to see if somebody was there. They’re not always there.” He admitted that although he was homeless, he stayed in the area of his arrest. He admitted that he had frequented the area for thirty years. He also admitted that he had a prior conviction for distribution of an unnamed drug, a conviction that occurred in the 1980s. Thus, there was a basis for the prosecutor’s statements that Mr. Rasul would not want to correctly identify his dealer, especially if he was on probation and was staying in the neighborhood where the drug sale occurred.

The most powerful statement that the prosecutor made was that the only thing that Mr. Rasul had to lose at this point was his life. Although this is considerable exaggeration, the jury was fully aware of Mr. Rasul’s denial that he was testifying on Mr. Jones’ behalf for any other reason except that he was not the person who sold the cocaine to Mr. Rasul. In addition, just prior to the prosecutor making this statement, Mr. Rasul re-emphasized this testimony by jumping up during the prosecution’s closing argument to dispute the prosecutor’s comments that he testified out of fear. Giving credit to. the good sense and fairmindedness of the jurors who had heard the evidence adduced at trial, Mr. Jones has failed to meet his burden of “thoroughly showing” that the prosecutor’s statements influenced the | K¡jury and contributed to the verdict. Therefore, he has failed to show that the trial court abused its discretion in denying his motion for mistrial.

DECREE

Accordingly, we affirm the conviction and sentence of Lester Jones.

AFFIRMED.

      . We granted Mr. Jones additional time within which to supplement pro se his counsel’s brief, but he did not file supplemental brief.

      . Mr. Rasul entered a plea of guilty to possession of cocaine as a result of his arrest in this matter.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Wesley BOLTON v. SEA MAR WAREHOUSING AND LOGISTICS, INC. and ABC Insurance Company.
    No. 2010-CA-0286.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 2010.

      Salvador M. Brocato, III, Law Office of Salvador M. Brocato, III, APLC, Metairie, LA, for Wesley Bolton.
    Douglas R. Holmes, Charles D. Marshall III, Chaffe McCall, L.L.P., New Orleans, LA, for Sea Mar Warehousing and Logistics, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

11 This appeal arises from a one vehicle accident wherein an eighteen wheeler hauling lumber turned over. The driver, who died prior to trial, filed suit against the company responsible for loading the trailer. The trial court found that the plaintiff failed to prove negligence on the part of the company that loaded the trailer. We find that the trial court did not commit manifest error and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Wesley Bolton was a truck driver for Midtown Trucking and was hauling a load of lumber away from Sea-Mar Warehousing and Logistics, Inc. (“Sea-Mar”). As Mr. Bolton was negotiating a turn on St. Bernard Highway, his truck fell over onto the right side and allegedly caused Mr. Bolton physical injuries and damage to his truck.

Mr. Bolton filed a petition for damages against Sea-Mar and its insurer, Mt. Haw-ley Insurance Company (“Hawley”). He alleged that the load of lumber was improperly loaded by Sea Mar, which caused a load shift to topple the truck. A petition of intervention was then filed by the Louisiana Commerce and Trade Association Self-Insurer’s Fund (“LCTASF”) as the workers’ compensation |aprovider for Midtown Trucking. Mr. Bolton subsequently passed away. Melanie Dillon, the mother and tutrix of Amya Bolton, Mr. Bolton’s sole descendant and hem, filed a supplemental and amended petition to substitute for Mr. Bolton in the proceedings.

Sea-Mar then filed a motion for summary judgment, alleging that the accident was caused solely by Mr. Bolton’s negligence, which the trial court denied. Following a judge trial, the trial judge found in favor of Sea-Mar and dismissed all claims. LCTASF’s intervention was also dismissed because the trial court found that Mr. Bolton did not prove Sea-Mar’s alleged negligence. Mr. Bolton’s devolu-tive appeal followed.

Mr. Bolton alleges that the trial court erred in not applying the doctrine of res ipsa loquitur and by finding that Mr. Bolton failed to prove the alleged negligence of Sea-Mar.

STANDARD OF REVIEW

The manifestly erroneous or clearly wrong standard of review is utilized when reviewing findings of fact made by the trial judge. S.J. v. Lafayette Parish Sch. Bd., 09-2195, p. 12 (La.7/6/10), 41 So.3d 1119, 1127. “Reversing the ... factual findings requires that we find that no reasonable factual basis exists for the trial court’s findings and that the findings are clearly wrong or ‘manifestly erroneous’ according to the record”. Dahan Novelties & Co., LLC v. Ohio Cas. Ins. Co., 10-0626, p. 1 (La.App. 4 Cir. 10/20/10), 51 So.3d 129, quoting Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “[W]here two permissible views of the evidence exist, the factfinder’s choice between them |scannot be manifestly erroneous or clearly wrong.” Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 883 (La.1993).

“When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). “[Ojnly the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Id. However, when “documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story,” manifest error may be found. S.J., 09-2195, p. 13, 41 So.3d at 1127. If “a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Rosell, 549 So.2d at 845.

PROOF OF NEGLIGENCE

Mr. Bolton alleges that there was “more than sufficient evidence” to support the negligence claim against Sea-Mar and that the trial court should have accepted his expert’s testimony “wholly.” These assignments of error are based on the premise that the trial judge erred by finding that Mr. Bolton failed to prove Sea-Mar’s negligence.

Gary Adams, a St. Bernard Parish Sheriffs Officer, arrived at the scene of the accident to find Mr. Bolton’s truck lying on its side with a portion of the truck on the train tracks and no measurable skid marks. Mr. Adams testified that the speed limit prior to the turn was thirty five miles per hour. However, the speed |4Iimit in the turn was fifteen miles per hour and a triangular sign with an arrow pointing to the left indicated as such. Mr. Adams stated that Mr. Bolton indicated that he was driving thirty five miles per hour. Additionally, Mr. Bolton completed an official statement regarding the accident wherein he stated that he was driving thirty five miles per hour. Mr. Adams did not issue any citations, but stated that he could have written “a number of them” including a citation for careless operation. However, Mr. Adams testified that he usually does not write citations when there is no major property damage or major bodily injuries. Mr. Adams testified that the decision to issue Mr. Bolton a citation was within his discretion.

Wayne Winkler, Mr. Bolton’s expert in accident investigation and reconstruction, testified that, after reviewing the evidence, he believed that Mr. Bolton’s truck was traveling at a relatively low speed or stopped when it turned over. Mr. Winkler stated that if Mr. Bolton entered the curve going thirty five miles per hour, then his truck would have immediately rolled and continued to slide. Additionally, Mr. Winkler believed that the truck was loaded heavier on the right side, which would have increased the propensity for the trailer to roll onto its right side at a lower speed. Overall, Mr. Winkler concluded that “the truck and trailer were traveling well less than 15 miles per hour at the point that it rolled over and came in contact with the ground.” Mr. Winkler found that, more probable than not, Mr. Bolton’s operation of the truck was not the cause of the accident. Instead, Mr. Winkler testified that the sole cause of the accident was an insufficient support of the load of lumber.

Mr. Bolton’s redacted deposition was used in lieu of live testimony due to his untimely passing prior to trial. He stated that he had approximately five years of experience of driving eighteen wheelers after attending Diesel Driving [ ¡Academy. Mr. Bolton testified that he was not drinking nor using illegal drugs on the day of the accident. He stated that the lumber was loaded from the front to the back with an open space in the middle and that he did not notice anything out of the ordinary about the way the lumber was loaded. In the deposition, Mr. Bolton testified that he was driving thirty five miles an hour prior to the turn, but began to slow down before the turn. He stated that his estimated speed at the beginning of the turn was between twelve and fifteen miles per hour. However, Mr. Bolton’s signed statement from the scene of the accident stated: “I was coming down St. Bernard Highway going 35 mphs [sic]. When my truck shifted to the right, [sic] And feel [sic] on the right side.”

Sea-Mar called Angella Bauer, a past office manager and terminal dispatcher for Sea-Mar, who testified that the truck drivers are responsible for checking the trailer to ensure it is loaded correctly.

Keith Arabie, a Sea-Mar warehouse supervisor from 2002-2005, loaded Mr. Bolton’s trailer on the day of the accident. Mr. Arabie testified that Mr. Bolton’s load of lumber consisted of three bundles across and two bundles high of 2 x 10s. He stated that the way he loaded the truck, the lumber could not have shifted more than an inch or two and, like Ms. Bauer, stated that drivers are required to check their loads. Mr. Arabie testified that he loads the trailers so that the weight is evenly distributed. However, he did not have paperwork to document the trailer’s contents because it was destroyed in Hurricane Katrina.

Dennis Papaleo, Sr., the vice-president of Sea-Mar, went to the scene of the accident. Mr. Papaleo testified that he neither saw the load nor gave instructions on how to reset the load. However, Mr. Pa-paleo stated that he told the employees to do whatever had to be done to fix the load for another truck. Again, he |fireiterated that he never told Mr. Arabie specifically how to reset the load. Mr. Papaleo testified that Mr. Arabie would be able to calculate the weight distribution and safety of the load to avoid load shifting due to training. As to the picture of the load of lumber after the accident, Mr. Papaleo stated that some of the boards were displaced and/or removed because the wrecker employees had to move some of the boards to stabilize the trailer for the drive back to Sea-Mar’s facility.

The trial judge stated, in his reasons for judgment, that Mr. Bolton was “unable to prove negligence on the part of the Defendant, Sea Mar by a preponderance of evidence.” As to Sea-Mar’s alleged negligence, the trial judge stated, “[wjhile an unbalanced load may have caused the trailer to tip, this is not evidence that the lumber was not properly loaded by defendant, Sea Mar.” The trial judge further weighed and opined on the contradictory testimony of Mr. Winkler and Mr. Arabie regarding the configuration of the load of lumber. Mr. Arabie was found to be a credible witness. Great deference is given to the credibility of witness’ because the trial court is in a more opportune position to judge credibility based on mannerisms, intonation, and behavior. Finally, the trial judge stated:

[ajfter trial it is simply not clear what caused the load to be unbalanced. Whether the unbalanced load resulted from improper loading, improper driving, traffic conditions, road condition and/or a combination of any of the foregoing is simply speculation. Accordingly, plaintiff has not met the burden of proof imposed by law.

This Court’s review of the record reveals that the trial judge’s factual conclusions were reasonable. The trial judge heard the conflicting testimony of Mr. Winkler and Mr. Arabie as to the loading of Mr. Bolton’s load of lumber. The |7trial judge was also presented with an official statement signed by Mr. Bolton stating that he was speeding before the accident. However, Mr. Bolton, in his deposition testimony, stated that he was driving around twelve to fifteen miles per hour going into the turn before the accident. Given the testimony and evidence, we cannot say that the trial court committed manifest error in finding that Mr. Bolton failed to prove Sea-Mar’s negligence.

RES IPSA

Mr. Bolton alleges that the trial judge erred by refusing to apply the doctrine of res ipsa loquitur and by failing to mention res ipsa loquitur in its reasons for judgment.

The doctrine of res ipsa loquitur means “the thing speaks for itself.” Certain Underwriters at Lloyd’s, London v. Wallace, 03-2027, p. 8 (La.App. 4 Cir. 8/25/04), 882 So.2d 1173, 1178. “Res ipsa is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant if the facts indicate the defendant’s negligence, more probably than not, caused the injury.” Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La.1992). Res ipsa loquitur “must be sparingly applied.” Id. Applying res ipsa lo-quitur requires three elements:

1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence by defendant; 2) the defendant had exclusive control of the thing causing the damage; and 3) the only reasonable and fair conclusion is that the accident was due to the defendant’s breach of a duty.

Small v. Baloise Ins. Co. of Am., 96-2484, p. 12 (La.App. 4 Cir. 3/18/98), 753 So.2d 234, 242.

First, the facts surrounding the accident were not unusual. Second, Sea-Mar did not have exclusive control over the load of lumber once Mr. Bolton left the facility. Third, there were other explanations for the accident, such as Mr. Bolton’s disputed speed.

The trial judge stated, in his reasons for judgment, that “the accident must be attributed to something other than a load shift.” Further, the trial judge opined that “[wjhether the unbalanced load resulted from improper loading, improper driving, traffic conditions, road conditions and/or a combination of any of the foregoing is simply speculation.” Given this reasonable finding based upon the conflicting evidence of Mr. Bolton’s speed entering the turn and how the lumber was loaded, we do not find that the trial court erred because res ipsa loquitur was not a proper adjudication under the facts and circumstances of this case.

DECREE

For the above mentioned reasons, we find that the trial court did not commit manifest error and affirm.

AFFIRMED.

ARMSTRONG, C.J., Concurs.

      . LCTASF sought indemnification out of Mr. Bolton's possible monetary recovery if his claims were successful.

      . This Court is aware that Amya Bolton took the place of Mr. Bolton after his death. However, we continue to utilize his name throughout this opinion to avoid confusion.

      . Mr. Adams is now retired.

      . Mr. Bolton attempted to impeach this testimony with Mr. Arabie's deposition wherein he stated that he gave instructions.

      . This Court notes that a trial court’s silence as to part of a plaintiff’s claim constitutes a rejection of that part of the claim. Brady v. Am. Ins. Co., 198 So.2d 907, 914 (La.App. 4th Cir.1967). Thus, this argument is without merit.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Bronson BURTON.
    No. 2010-KA-0312.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for the State/Ap-pellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|, The sole issue in this appeal is whether the defendant’s sentence should be vacated and the matter remanded for resentencing. After review of the record in light of the applicable law and arguments of the parties, we vacate the defendant’s sentence and remand for resentencing.

Relevant Facts and Procedural History

In January 2009, as a result of citizen complaints of narcotics trafficking, Detective Clarence Gray of the New Orleans Police Department (NOPD) was conducting surveillance of a residence at 1233 Spain Street at approximately 2 a.m. when he observed a vehicle drive up, blow the horn, and the defendant emerge from the rear passenger seat. After observing what appeared to be a narcotic transaction, Detective Gray radioed to a marked police unit to conduct an investigatory stop of the vehicle. Upon stopping the vehicle, Detectives Victor Gant and Lawrence Jones directed a searchlight into the vehicle and observed the defendant moving back and forth in what appeared to be an attempt to hide his face. Accordingly, the officers ordered the front seat occupants to keep their hands in the air and ordered the defendant out of the car. When the defendant exited the Rear, Detective Jones observed two individually wrapped pieces of a hard white substance which later tested positive for cocaine on the floorboard where the defendant had been seated. Detective Gray arrived shortly thereafter and identified the defendant as the person who purchased the drugs in front of 1238 Spain Street.

The defendant was charged by bill of information with one count of possession of cocaine, a violation of La.Rev.Stat. 40:967. He pleaded not guilty and was tried by a jury in June 2009. The defendant testified on his own behalf at trial, conceding that Detective Gray witnessed a narcotic transaction but insisting that he purchased marijuana not cocaine and that the cocaine found in the vehicle did not belong to him. The defendant was found guilty as charged and the defendant’s sentencing hearing was held on June 23, 2009. At the sentencing hearing, the State informed the court that the defendant had a prior conviction for theft in Texas but was unable to specify the amount of the theft or whether the conviction was for felony theft or misdemeanor theft. The State did not file a multiple bill based on this prior conviction. The trial judge sentenced the defendant to serve three years at hard labor. In response to a request for reasons for the sentence, the trial judge stated as follows:

Each judge has their own mind, make their own decision, and I have decided that the sentence that I will, that I have imposed against Mr. Burton will be three years in the Department of Corrections. Okay? I can leave it up to you and Mr. Burton to figure out what was in my head as to why I decided on three years.

laThe defendant appeals this sentence, arguing that resentencing is required because the district court refused to give reasons for its sentence, thereby rendering it impossible for the defendant to challenge his sentence on excessiveness grounds.

Discussion

Article I, section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. La. Const, art. I, 20; State v. Landry, 03-167, p. 7 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239-1240 (sentence is constitutionally excessive if it is grossly out of proportion to the severity of the crime and is nothing more than purposeless imposition of pain and suffering). A trial judge has broad discretion in imposition of sentences within statutory limits but shall, pursuant to La.Code Crim. Proc. art. 894, 1(C), “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La.Code Crim. Proc. art. 894.1(C). Even a sentence within the statutory limit may violate a defendant’s constitutional right against excessive punishment, Id.; State v. Dorthey, 623 So.2d 1276, 1280 (La.1993), and, accordingly, imposition of a sentence, even those within the statutory limit, may be reviewed on appeal. State v. Caston, 477 So.2d 868 (La.App. 4th Cir. 1985). Although rigid compliance with Article 894.1 has been deemed unnecessary where the record clearly shows an adequate factual basis for the sentence imposed, the record should reflect the considerations taken into account by the trial court in determining the sentence to aid the reviewing court in determining whether the sentence is warranted in light of the particular circumstances of the case. See State v. Quebedeaux, 424 So.2d 1009 (1982); State v. Lanclos, 419 So.2d 475 (La.1982).

|4In this case, the maximum sentence for the convicted offense is five years at hard labor and the defendant was sentenced to three years. It is problematic as to whether the defendant and his counsel could “figure out” what was in the judge’s “head as to why [she] decided on three years,” but clearly we, as a court of record, have no capability for figuring out what is in a judge’s head unless it is articulated in the record. The judge failed to provide us with a factual basis for the sentence and the only evidence in the record indicates that the defendant was twenty-one years old at sentencing and the State did not multiple-bill him based on an ambiguous theft conviction in Texas. Clearly, it is impossible for this court to determine whether the sentence imposed is constitutionally excessive for this particular defendant.

Conclusion

The defendant’s conviction is affirmed, the sentence is set aside, and the case is remanded to the district court for resen-tencing in accordance with the provisions of La.Code Crim. Proc. art. 894.1(C).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . The State suggests that the defendant’s testimony (that he purchased marijuana not cocaine) was "an outrageous lie” sufficient to support the sentence imposed. However, because the defendant's credibility alone is an insufficient basis for imposition of sentence, see State v. Smith, 407 So.2d 652, 657 (La.1981), we find little merit in this suggestion.


text:
    STATE in the Interest of D.R.
    No. 2010-CA-0404.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 2010.
    Rehearing Denied Jan. 5, 2011.

      Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, D.R.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge, EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

11 This is third of three appeals to this court by the same child, D.R.

D.R. was adjudicated a delinquent child for a violation of La. R.S. 14:95 E, possession of a firearm while in possession of a controlled dangerous substance. The juvenile judge in the judgment of disposition committed D.R. to the custody of the Department of Public Safety and Corrections for two years two months, credit for time served. D.R. appeals his adjudication as a delinquent child on the grounds that the evidence is insufficient to sustain the adjudication, that the trial judge failed to apply the relevant law, and that the trial judge went outside the evidentiary record in order to find that the State had proven its charge against D.R. beyond a reasonable doubt. D.R. also appeals the judgment of disposition committing him for a period exceeding the maximum period allowed by law. See La. Ch.C. arts. 380 B and 331 A.

Because we conclude that the juvenile judge committed legal error in considering a fact not introduced into evidence and failed to properly instruct himself on the law when requested by D.R., we reverse the adjudication and |2remand the matter for a new trial. This result pretermits a consideration of the assignment of error pertaining to insufficiency of evidence as well as a consideration of the assignment of error pertaining to an indeterminate period of commitment. We explain our reasoning below.

I

La. R.S. 14:95 E provides that possession by an adult of any firearm while in possession of a controlled dangerous substance shall be punished at hard labor. ‘“Felony-grade delinquent act’ means an offense that if committed by an adult, may be punished by death or by imprisonment at hard labor.” La. Ch.C. art. 804(5); see also La. R.S. 14:2 A(4) (defining a felony as “any crime for which an offender may be sentenced to death or imprisonment at hard labor.”) Marijuana is classified as a Schedule I non-narcotic controlled dangerous substance. See La. R.S. 40:964, Schedule I, C(19). The State must prove all of the essential elements of § 95 E beyond a reasonable doubt in order to adjudicate D.R. delinquent. See In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see also La. Ch.C. art. 883.

For the court to adjudicate D.R. a delinquent for violating La. R.S. 14:95 E, the prosecution must prove beyond a reasonable doubt that D.R. “(1) knowingly or intentionally possessed any firearm or other instrumentality customarily used o[r] intended for probable use as a dangerous weapon, while at the same time (2) knowingly or intentionally possessing a controlled dangerous substance.” State v. Thompson, 06-0474, p. 2 (La.App. 3 Cir. 11/8/06), 943 So.2d 621, 623. “Possession” under La. 14:95 E includes both actual and constructive possession. State v. Blanchard, 99-3439, p. 6 (La.1/18/01), 776 So.2d 1165, 1170.

IgD.R.’s great aunt and legal guardian, Sadie Thomas, had become concerned about her nephew after observing one of his friends remove a flat-screen television from her backyard. She suspected that D.R. was harboring contraband in his bedroom of their home. Ms. Thomas went to the police station to request that D.R.’s room be searched. While D.R. was attending school, with Ms. Thomas’ written consent, detectives searched D.R.’s bedroom. The detectives found a cigar box containing five bags of marijuana on one dresser and a loaded .22 caliber handgun on another dresser. The uncontroverted testimony was that the bedroom was used exclusively by D.R.

The juvenile judge adjudicated D.R. a delinquent for the possession of a firearm and narcotics.

II

In this part we turn to a consideration of the two legal errors which resulted in D.R.’s adjudication and require reversal and remand.

A

At the close of the evidence but before the adjudication, the defense presented argument requesting the judge to consider that D.R.’s absence from the home at the time of the search precluded a finding that he was in constructive possession of the marijuana and the firearm, pursuant to State v. Blanchard, supra. The Louisiana Supreme Court in Blanchard set forth the standard for the element of “possession” under La. R.S. 14:95 E:

[W]e find that under La. R.S. 14:95(E), when it cannot be established that the defendant was using or in actual possession of a firearm or that a firearm was within his or her immediate control, the state must prove more tha[n] mere possession of the firearm. It must prove some connection between the firearm possession and the drug offense.

Blanchard, 776 So.2d at 1173. Accordingly, the prosecution must establish a “nexus” between the firearm and the drug offense in order to prove the constructive possession of the marijuana and firearm. See Blanchard, 776 So.2d at 1173. This connection may be established by evidence of (1) the type of firearm involved; (2) the type of controlled dangerous substance involved; (3) the quantity of drugs involved; (4) the proximity of the firearm to the drugs; (5) whether the firearm was loaded; and (6) any other relevant evidence. Id. The Louisiana Supreme Court reversed the defendant’s conviction because the jury was not properly instructed that the state must prove some connection between the firearm and the marijuana found in his home. Blanchard, 776 So.2d at 1174.

In this case, the defense argued to the juvenile judge that the prosecution had not established constructive possession under the Blanchard standard. The judge denied that Blanchard applied due to factual differences between the cases, noting that Blanchard was an adult offender who had been arrested prior to the search of his home. The juvenile judge refused to consider the applicable legal standard before adjudicating D.R. delinquent, and he, accordingly, did not determine one way or the other whether the prosecution had established a nexus between the marijuana and the firearm sufficient to support a finding that D.R. was in constructive possession of both items.

Juvenile delinquency adjudications are tried before a judge only, see La. Ch.C. art. 882, but the parties may request that the judge instruct himself as to the applicable legal principles in the matter. State v. Reeves, 342 So.2d 605, 608 (La.1977); See also Jackson v. Virginia, 443 U.S. 307, 316-317, n. 8, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (noting that the trier of fact was a judge rather than a jury and that the judge deemed |fihimself “properly instructed.”). “A judge in a bench trial is not required to charge himself on the applicable law, since he is presumed to know it, unless one of the parties timely requests that he do so and provides him with the requested written charges.” State v. Pizzalato, 93-1415 (LaApp. 1 Cir. 10/7/94), 644 So.2d 712, 715 (emphasis added). If the judge agrees to instruct himself, the charges need not be written. State v. Dominguez, 230 La. 371, 88 So.2d 660, 663 (1956).

In a bench trial, the method of preserving an issue of law for appellate review is to “request the judge charge himself before the verdict as to the disputed issue of law, La.C.Cr.P. art. 781, and to object if it is incorrect, La.C.Cr.P. art. 841, or if the trial court refuses to give a special charge correctly stating the law, La. C.Cr.P. art. 807.” Reeves, 342 So.2d at 608 (citations omitted). The Louisiana Supreme Court has held that, in the absence of such procedures, “the question of whether the trial judge decided the defendant’s guilt on the basis of an incorrect appreciation of the applicable legal principles is not determinable.” Reeves, supra; see also State v. Strickland, 398 So.2d 1062, 1066 (La.1981).

Here, the defense orally requested that the trial judge apply the proper legal principles in finding a violation of R.S. 14:95 E, pursuant to State v. Blanchard. The trial judge refused, erroneously citing factual differences between the cases. In State v. Franques, 156 La. 462, 100 So. 682, 684 (1924), the Louisiana Supreme Court set forth guidance on this issue, stating:

But in a criminal case, where a requested charge is refused by a trial judge on the ground that it is not applicable to the facts, and the facts clearly show that the charge is applicable, the ruling of the trial judge is not only erroneous, but it is highly prejudicial to the accused, and the question of the applicability of the charge to the facts becomes a question of law, in the decision of which we will review the facts for the sole purpose of determining such question.

|rrA. defendant’s right to submit special written charges to the trial judge in a bench trial serves the purpose of enabling an accused person to “have the propositions of law reviewed by the appellate court in case of an adverse ruling by the trial judge.” State v. Pilcher, 161 La. 135, 108 So. 312, 313 (1926).

Although the defense did not utilize any of the preferred practices for preserving such an error, the juvenile judge clearly failed to grasp the proper legal principles in this case when he disclaimed Blanchard’s pertinence outright and rejected its application to these facts. On that account, the finder of fact in this case rendered judgment without applying the relevant law and determining the facts thereunder. The juvenile judge thus failed to consider whether the prosecution had provided facts and evidence to establish a “nexus” between the marijuana and the gun sufficient to meet its burden under La. R.S. 14:95 E when possession is only constructive and not actual.

B

We now explain how the juvenile judge erred in considering as evidence the fact that D.R. had admitted, in a separate matter before the same judge, that he was a marijuana smoker. At the close of D.R.’s adjudication hearing in this matter, as part of his reasons for adjudicating D.R. delinquent, the juvenile judge stated: “I’m going to note for Defense that [D.R.] did in the earlier case admit to having smoked marijuana beginning in about March of '09 and this does include a time period for which he has admitted to being a marijuana smoker.” This reference to D.R.’s admission in another case is the only explicit finding by the trial judge on the issue of use or possession. As noted above, D.R. had multiple cases, which were not consolidated, before the same judge. The facts of D.R.’s prior ^adjudication were not in evidence in the present matter. See La. C.E. art. 404 B(l). The adjudication transcript reveals that, instead of evaluating the facts in evidence, the judge seems to have used D.R.’s statements in an unrelated case to find that he was in constructive possession of marijuana. The juvenile judge improperly considered facts not in evidence to inform his finding of the element of possession.

We first note that the scope of our review in juvenile delinquency matters extends to both the law and the facts. State in Interest of Batiste, 367 So.2d 784, 788 (La.1979); see also State in the Interest of D.R., 10-0405 (La.App. 4 Cir. 10/13/10), 50 So.2d 927 (for a complete discussion of the standard of review in juvenile delinquency cases). We also note, generally, that a finder of fact cannot consider evidence outside the record in making its findings. Nail v. Clavier, 99-0588, p. 6 (La.App. 3 Cir. 11/10/99), 745 So.2d 1221, 1224; Burdis v. Lafourche Parish Police Jury, 618 So.2d 971, 976 (La.App. 1st Cir.1993). Additionally, Article 881 A of the Children’s Code states that “The adjudication hearing in delinquency proceedings shall be conducted according to the provisions of the Code of Evidence applicable to criminal cases.”

The adjudication of delinquency for an offense, which may result in deprivation of a youth’s liberty, “must be based on admissible evidence constituting proof beyond a reasonable doubt.” State in the Interest of Simmons, 299 So.2d 906, 908 (La.App. 3d Cir.1974) (citations omitted) (emphasis added). In Simmons, the appellate court reversed a delinquency adjudication in which a report containing hearsay, opinion, and otherwise inadmissible evidence appeared in the record. Simmons, 299 So.2d at 908-909. Even though the appellate court noted that the juvenile judge “did his utmost to avoid consideration of the information in this report in considering the guilt or innocence of appellant,” the Iscourt nonetheless found its receipt by the trier of fact to be reversible error. Simmons, 299 So.2d at 909. “Absent any contrary indication we must conclude that whatever is in the record was considered by the trial judge,” the court stated. Id. “Since the report contains inadmissible and prejudicial evidence, th[]e proceeding is stricken with nullity and the commitment must be set aside.” Id.

This principle of controlling admissible evidence protects a criminal defendant’s due process rights, whether trial is before a judge or jury. “It is essential that all facts considered by the jury are produced in the courtroom with full protection of defendant’s rights to confrontation and due process.” State v. Sinegal, 393 So.2d 684, 686 (La.1981). “A juror is expected to draw upon his general knowledge and experience in deciding the case ... However, he should not consider facts relating to the case unless introduced at trial under constitutional and legal standards.” State v. Graham, 422 So.2d 123, 132 (La.1982) (citing to Sinegal, supra).

Here, the trial judge on his own imported into this case the fact that D.R. had, in a separate matter, admitted to marijuana use. The cases had not been consolidated, and in this case there was no testimony or otherwise admissible evidence to establish that fact. The trial judge used D.R.’s admission as a basis for finding that he was in knowing possession of the marijuana-a necessary element of the charged offense.

C

We have the constitutional authority in a delinquency proceeding to review both facts and law, and, when the factfin-der has committed legal error which contributes to and interdicts its decision, we have the authority to review the facts de novo:

laA legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo.

Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993) (emphasis added). Accordingly, when one or more legal errors of the trial court interdict the fact-finding process, the manifest error standard is no longer applicable, and if the record is otherwise complete, our court should make its own independent review of the record and determine a preponderance of the evidence de novo. Barriere Constr. Co., Inc., v. Systems Contractors Corp., 99-2869, pp. 4-5 (La.App. 4 Cir. 5/17/00), 764 So.2d 127, 130.

However, we decline to engage in a de novo review. While the juvenile’s judge’s refusal to consider the proper legal standard precluded the fact-intensive inquiry that Blanchard requires, we find that remand to the juvenile court is necessary for two reasons. First, whereas in a juvenile delinquency proceeding the juvenile judge must adjudicate the juvenile delinquent beyond a reasonable doubt, the cases encouraging de novo review on appeal instruct the appellate court to “determine a preponderance of the evidence.” See Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 747; McLean v. Hunter, 495 So.2d 1298 (La.1986); Barriere, supra. Second, the trial judge failed to determine whether the prosecution had sufficiently developed the facts necessary to adjudicate D.R. delinquent beyond a reasonable doubt, thus depriving our court of the ability to make a determination either way. See Jones v. Black, 95-2530 (La.6/28/96), 676 So.2d 1067 (remand is necessary where the weight of the evidence]^ so nearly equal that a first-hand view of the witnesses is necessary to a fair resolution of the evidence). Moreover, the legal errors here were neither caused by nor contributed to by the prosecution. The prosecution did not object to D.R.’s request that the juvenile judge apply State v. Blanchard and did not ask the juvenile judge to consider evidence which had not been introduced.

Accordingly, we reverse the adjudication of D.R. as a delinquent, but remand the matter to the juvenile court for further proceedings. Under these circumstances, allowing a properly instructed factfinder, who is considering nothing but the evidence before it, is a more prudent and likely more reliable course of action.

REMAND INSTRUCTIONS

On remand, if the prosecution elects to re-try D.R., the juvenile judge shall charge himself with the following principle of law:

Under La. R.S. 14:95 E, when it cannot be established that the defendant was using or in actual possession of a firearm or that a firearm was within his immediate control, the state must prove more than mere possession of the firearm. It must prove some connection or ‘nexus’ between the firearm possession and the drug offense. This connection might be established by the following evidence: (1) the type of firearm involved; (2) the type of controlled dangerous substance involved; (8) the quantity of drugs involved; (4) the proximity of the firearm to the drugs; (5) whether the firearm is loaded; and (6) any other relevant evidence.

Blanchard, supra.

InDECREE

Accordingly, for the above reasons, we reverse the adjudication and disposition and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED

LOMBARD, J., Concurs.

Iil concur in the results.

      . The other two appeals are State in the Interest of D.R., 10-0405 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, and State in the Interest of D.R., 10-0406 (La.App.4 Cir. 10/20/10), 51 So.3d 121.

      . See La. Ch.C. art. 804(1) and (3).

      .The commitment was to run "concurrent” with two others. The periods of time served pre-disposition judgment are July 27, 2009 through August 5, 2009 and October 14, 2009 through January 6, 2010.

      . We do, however, note that the identical issue relative to the commitment was presented and decided in D.R.’s companion appeal: State in the Interest of D.R., 10-0406 (La.App. 4 Cir. 10/13/10), 51 So.3d 121.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Keith BOURGEOIS and Melton Wilson v. LOUISIANA STATE RACING COMMISSION.
    No. 2010-CA-0573.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2010.

      Sean D. Alfortish, Law Office of Sean D. Alfortish, APLC, Kenner, LA, for Plaintiff/Appellant, Keith Bourgeois.
    James D. “Buddy” Caldwell, Attorney General, Kim Raines Chatelain, Assistant Attorney General, Louisiana State Racing Commission, New Orleans, LA, for Defendant/Appellee the Louisiana State Racing Commission.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge TERRI F. LOVE).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| iPlaintiffs-Appellants, Keith Bourgeois and Melton Wilson, professional horse trainers, appeal a January 5, 2010 judgment entitled “Decision on Judicial Review of Adjudication of the Louisiana State Racing Commission” rendered in the Civil District Court of the Parish of Orleans, affirming an adjudication of the defendant-appellee, Louisiana State Racing Commission (“LSRC”) fining both appellants $1,500.00 and suspending their licenses as horse trainers for six months, based on findings that they had each raced a horse which tested post-race positive for a long lasting tranquilizer, Fluphenazine, in violation of the rules of racing.

Neither appellant disputes the Fluphe-nazine post-race positive test results. Neither appellant disputes that Fluphenazine is what is referred to as a “Class II” drug under La. Ad.Code 35:1.1797, Penalty Guidelines. Because of its long lasting qualities, Fluphenazine is sometimes referred to in racing circles as a “30-day” tranquilizer.

Mr. Bourgeois does not deny knowing that a long lasting “30-day” tranquilizer had been administered on April 15, 2008, to Diamondmint Deputy, a horse Mr. Bourgeois was training, within fourteen days of running in and winning 12a race at Evangeline Downs on May 2, 2008; but he contends that he did not know the name or nature of the medication.

Pursuant to a hearing, the Evangeline Downs board of racing stewards issued ruling ED 16683, suspending Mr. Bourgeois for six months and referred the case to the LSRC for further action based on the following Rules of Racing:

La. Ad.Code 35:1.1795, Classification of Foreign Substances by Category;
La. Ad.Code 35:1.1797, Penalty Guidelines ;
La. Ad.Code 35:1.1727, Drug Which Affects Performance; Guarding Horse ;
La. Ad.Code 35:1.1729, State Chemist Report,
La. Ad.Code 35:1.1735, Trainers Responsible for Condition of Horse ;
La. Ad.Code 35:1.1737, When Horse Found Druggedl ,
[sLa. Ad.Code 35:1.1505, Non-Steroidal and/or Anti-Inflammatory Medication.”

Of these, La. Ad.Code 35:1.1735, Trainers Responsible for Condition of Horse, which makes the trainer the “absolute insurer of the condition of the horses he enters regardless of acts of third parties,” and further provides that, “[tjrainers and/or assistant trainers are presumed to know the rules of the commission,” is probably of greatest significance to this case. It echoes the language of La. R.S. 4:150 which declares trainers to be the “absolute insurer of the condition of the horses he enters regardless of acts of third parties.”

Mr. Wilson does not deny that on April 17, 2008, he requested his veterinarian, Dr. Craig Schwartz, to administer a 30-day tranquilizer to Tru Nac, a horse he was training, but contends that he was not present when the horse was examined and medicated. He also denies knowing that the tranquilizer that the veterinarian administered was Fluphenazine. On May 5, 2008, less than twenty days later, Tru Nac ran in and won a race at Evangeline Downs The Evangeline Downs board of racing stewards issued ruling ED 16662 against Mr. Wilson, suspending him for six months and referred him to the LSRC for further action pursuant to La. Ad.Code 35:1.1795, Classification of Foreign Substances, supra, and La. Ad.Code 35:1.1797, Penalty Guidelines, supra. Mr. Wilson did not appeal the decision of the stewards to the LSRC, but it came before the LSRC having been referred by the stewards for further action.

14After separate de novo hearings regarding each appellant, the LSRC affirmed the stewards’ findings and suspended both Mr. Wilson and Mr. Bourgeois for six months and imposed a fine of $1,500.00 on each. On December 8, 2008, both instituted appeals from the LSRC decisions in the 27th Judicial District Court for the Parish of St. Landry. On July 20, 2009, based on exceptions of venue and lack of subject matter jurisdiction, the case was transferred to the Civil District Court for the Parish of Orleans as the domicile of the LSRC. The district court did not take live testimony, relying instead on the transcripts of the hearings before the LSRC. Therefore, testimony referred to hereinafter is testimony received by the LSRC and not the district court.

State Chemist Dr. Stephen Barker testified that the problem with Fluphenazine from a racing perspective (disregarding the risks of possible side effects) is that:

[T]he ability to tranquilize a horse, to calm it down, to keep it from washing out, gives that horse an advantage over all of the other horses that do not contain such a substance.

Dr. Barker also testified that Category I and II drugs are “banned.” He further testified that he felt that at no time would a thirty-day tranquilizer be proper “when the horse is stabled on a racetrack.” He went on to testify that tranquilizers such as Acepromazine which has a 24-hour withdrawal period are permitted.

Mr. Brook Hawkins, a state steward at Evangeline Downs testified that it was his opinion that Fluphenizine was not a banned substance, but one that was prohibited in post-race test results. However, he testified further that on this issue he would defer to Dr. Barker as the expert. In any event, all agree that a post-race test result that is positive for Fluphenazine is prohibited.

| ^Review of a final agency decision is governed by La. R.S. 49:964. An aggrieved party may appeal to the district court as was done in this case. La. R.S. 49:964. In hearing the appeal, the district court’s standard of review is set forth in La. R.S. 49:964 G:

G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

An agency’s action is presumed to be legitimate, and review of an agency decision is limited to determining the reasonableness of the action. Reaux v. La. Board of Medical Examiners, 02-0906, p. 2 (La.App. 4 Cir. 5/21/03), 850 So.2d 723,726. As this Court explained:

The standard of appellate review of a decision by an administrative agency is distinct from and narrower than Rthat which pertains to general appellate jurisdiction over civil and criminal appeals. Considerable latitude must be afforded administrative agencies to perform functions delegated to them under the law, and courts should not intervene unless the administrative agencies’s conduct is clearly unreasonable and arbitrary ... An administrative agency’s proceedings and decisions are presumed to be legitimate and correct, and the burden is on the appellant to demonstrate the grounds for reversal or modification.

Id.

Thus, the burden is on the appellants to show that the LSRC abused its discretion.

In Cathey v. Louisiana State Racing Com’n, 03-0923, p. 7 (La.App. 4 Cir. 9/24/03), 855 So.2d 414, 418, this Court explained the standard of review in a case arising out of a State Racing Commission decision:

At the hearing to review the State Racing Commission’s decision, the trial court heard argument of counsel only. No live witness testimony was presented. The credibility calls by the State Racing Commission are therefore entitled to “due regard” as the Commission had the advantage of first-hand observation of the demeanor of witnesses and the reviewing court did not. Angelle v. Louisiana State Racing Commission, 2002-0610, 2002-0611, p. 4 (La.App. 4 Cir. 9/25/02), 828 So.2d 1153, 1156. A complete reading of the trial court’s Reasons for Judgment in this case reveals that the trial court acknowledged the correct standard of review pursuant to La. R.S. 49:964(G)(6), but did not give due regard to the State Racing Commission’s determination of credibility issues. The trial court found credible the statements of Mr. Cathey and his witnesses, whereas the State Racing Commission did not. In light of the standard of review discussed herein, we find the decision of the trial court to be in error.

Id.

In Cathey, this Court reversed the trial court for failing to show “due regard” for the credibility calls of the State Racing Commission. In reviewing the appellate decision of the district court the standard of review is as follows:

17When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court. Once a final judgment is rendered by the district court, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Maraist v. Alton Ochsner Medical Foundation, 2002-2677 (La.App. 1 Cir. 5/26/04), 879 So.2d 815. Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the district court.

Smith v. State Dept. of Health and Hospitals, pp. 4-5 (La.App. 2 Cir. 3/2/05), 895 So.2d 735, 739.

Here, the facts are not disputed, and the preponderance of evidence supporting the Commission’s decision is unequivocal. Appellants, Mr. Bourgeois and Mr. Wilson, admitted under oath to directing and authorizing their horses, Diamondmint Deputy and Tru Nac, respectively, to be treated with a “30-day” tranquilizer. At the time, the horses were not entered to race. However, and knowing the horses had been treated with a “30-day” tranquilizer, appellants, Mr. Bourgeois and Mr. Wilson, entered the horses to compete and permitted them to race less than twenty days later. The burden is on the appellants to show that the trial judge abused her discretion.

The trial court judgment, which incorporates written reasons for judgment, cites La. R.S. 4:150 which provides in paragraph “A” that the trainer is “responsible for and [is] the absolute insurer of the condition of the horse he enters regardless of the acts of third parties.” Therefore, assuming for purposes of argument, that the veterinarians in this case were the responsible parties in fact and that neither of the plaintiffs-trainers in this case were aware that Fluphenizine was |sadministered to their horses and/or was a prohibited substance, under La. R.S. 4:150 A they still were responsible parties as a matter of law regardless of what they may have known or their good faith.

The trial court decision also cites the racing code, La. Ad.Code 35:1.1735 to the same effect and notes that this codal provision specifically creates a presumption that trainers know the rules of the Commission.

However, in applying these standards in this case the trial court states that: “Unfortunately, in this case, unfair consequences result.” The trial court decision goes on to note that “the penalty imposed was the statutory minimum ...”

Mr. Bourgeois admitted that he knew that Diamondmint Deputy was given a “30-day” tranquilizer and Mr. Wilson admitted that he specifically requested such a tranquilizer for Tru Nac.

Holding the trainer responsible as the absolute insurer of the condition of a horse has long been recognized as essential to maintaining the integrity of the sport. As this Court explained:

“[A] trainer voluntarily applies for a license, and upon approval by the Commission, he subjects himself to certain terms and conditions such as the absolute insurer rule which might be inappropriate in other situations. The relationship between the Commission and trainers, owners, jockeys and others is analogous to a contractual commitment with each party agreeing not to race a horse that has been stimulated by drugs, no matter who administers the drugs.” [Citations omitted.]

Arrington v. La. State Racing Commission, 482 So.2d 200, 202 (La.App. 4 Cir.1986).

|nIn Owens v. La. State Racing Commission, 466 So.2d 764 (La.App. 4 Cir.1985), this Court adopted and quoted the reasoning of Briley v. Louisiana State Racing Commission, 410 So.2d 802, 805-806 (La.App. 3 Cir.1982), as follows:

The governmental interest is to insure honest and safe races as well as to protect the integrity of the industry and its source of revenues generated from the activity. The burden being placed on the trainers, who have control of the horses before and after the race, is not so onerous as to be unconstitutional. When one weighs the control of the trainer, his grooms and jockey and their ability to prevent tampering with the horse, with the safety and integrity of the industry and public fisc, no one is in a better position to bear the obligation than the trainer. A substantial governmental purpose is served. To merely disqualify the horse and not penalize the trainer would not, in all likelihood, give much impetus in preventing the drugging of horses. However harsh the rule, it is applied equally to all trainers and therefore is not unconstitutional in its application.

Id. Owens was cited by this Court and followed in Segura v. La. State Racing Commission, 577 So.2d 1031, 1034 (La.App. 4 Cir.1991).

The use of a stimulant, depressant, or anesthetic in a manner that might affect or tend to affect the racing performance of a horse is prohibited. La.Ad.Code 35:1.1717. The presence of a Category II medication in a post-race analysis reported by the state chemist is prima facie evidence that there has been a violation of the Rules of Racing. Fluphenazine is a Category II medication. State Chemist Dr. Stephen Barker testified that the trainers should never have authorized the horses be treated with a 30-day tranquilizer if the trainers intended to run the horses in fourteen days. Dr. Barker explained that Fluphe-nazine is classified as a Category II substance because (1) of its high potential for abuse and (2) known pharmacological qualities as a long lasting tranquilizer. The potential for abuse, Dr. Barker testified, lies in the drug’s calming effect, “[sjedat-ing nervous- horses | ingives those horses an advantage over other, lets say, nervous horses that didn’t receive it or just over other horses in general. It does tend to focus their attention, keeps them from washing out, so that they have more stamina.”

Knowingly racing horses less than twenty days after the administration of a drug which was known to be effective for at least three weeks was a valid factor supporting the LSRC’s decision not to reduce the penalty below the recommended minimum.

The Commission’s deliberations are in the record. Commissioner Payton Coving-ton expressed the view that the interest of racing is best served in affirming the responsibility placed upon trainers as the absolute insurer of the condition of horses entered to race. Thereafter, Commissioner Covington made a motion that Bourgeois be suspended for six months and fined $1,500. As the motion was being made, Commissioner Covington opined: “Isn’t that the minimum we can do?” To which Mr. Charles Gardiner, Executive Director of the Commission, responded: “That is the guidelines. That is what the guidelines say, but, of course, the commission is at its pleasure to do what it want[s] to do.”

Having been expressly admonished that the minimum penalty provided by the Rules of Racing was merely a guideline, Commissioner Kenneth Romero promptly responded, “I think we ought to accept the steward’s ruling and fine him ...” This sentiment was echoed by Commissioner Brian Krantz, “I think the minimum guideline is in line with a motion that I could accept.”

Therefore, the record does not support the argument that the LSRC failed to understand that they could deviate from the penalty mínimums.

|nWhile La. Ad.Code 35:1.1797 requires the Commissioners to “state in their ruling” any mitigating factors that they find, there is no requirement that they set forth the absence of any mitigating factors.

Therefore, considering that the record shows as undisputed facts that the post-race test results were positive for Flu-phenizine; that the appellants requested and/or knew of the administration of a 30-day tranquilizer within less than three weeks of the races in question; that Flu-phenazine is a Category II substance; and that, as a matter of law, the appellants as trainers are the absolute insurers of the condition of the horses they race, regardless of the acts of third parties, we can find no basis in the record to find that either the district court or the LSRC abused their discretion or acted in any arbitrary or capricious manner in imposing the recommended minimum sentence under the guidelines. To put it another way, we can find no basis in the record to conclude that either the district court or the LSRC abused their discretion or acted in any arbitrary or capricious manner in failing to deviate downward from the recommended minimum set forth in the guidelines.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . This regulation states in pertinent part that: B. Known and identified prohibited drugs and substances are classified and listed according to their appropriate class as defined in the Association of Racing Commissioners International, Inc. Drug Testing and Quality Assurance Program's Uniform Classification Guidelines for Foreign Substances.

      . This regulation states in pertinent part that:
      A. Upon finding a violation by a permittee of prohibited medication rules, of prohibited substance rules, or of improper or excessive use of permitted medications, the stewards, or the commission, shall consider the classification level as set forth in § 1795 and will, in the absence of mitigating or aggravating circumstances, endeavor to impose penalties and disciplinary measures consistent with the recommended guidelines contained herein. Whenever a majority of the stewards find or conclude that there are mitigating or aggravating circumstances, they should so state in their ruling such finding or conclusion, and should impose the penalty which they find is appropriate under the circumstances to the extent of their authority or, if necessary, refer the matter to the commission with specific recommendation for further action.
      B. The recommended guidelines for a violation of each classification level are as follows:

      2.Class II: suspension of license for a period of not less than six months and not more than one year and a fine of not less than $1,500 and not more than $2,500. The purse shall be redistributed.

      .No person shall administer, or cause or knowingly permit to be administered, or connive at the administration of any drug no permitted by Chapter 15 to any horse to be entered or entered for a race. Every owner, trainer or groom must guard, or cause to be guarded, each horse owned, trained or attended by him in such manner as to prevent any person or persons from administering to the horse, by any method, any drug, not permitted by Chapter 15.

      . This regulation states in pertinent part that: [The State Chemist report] shall ... be taken as prima facie evidence that the owner and/or trainer and/or groom has been negligent in handling the horse.

      . This regulation states that: A. The trainer and/or assistant trainer shall be responsible for and be the absolute insurer of the condition of the horses he enters regardless of acts of third parties. Trainers and/or assistant trainers are presumed to know the rules of the commission.

      . This regulation states that the trainer may be penalized "if the stewards conclude that the prohibited drug or substance ... could have produced analgesia in, stimulated or depressed the horse ...”