text:
    In re Clayton Paul SCHNYDER, Jr.
    No. 2011-OB-1698.
    Supreme Court of Louisiana.
    Aug. 31, 2011.
   ON APPLICATION FOR REINSTATEMENT

PER CURIAM.

| t This proceeding arises out of an application for reinstatement filed by petitioner, Clayton Paul Schnyder, Jr., an attorney who is currently suspended from the practice of law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In In re: Schnyder, 05-1463 (La.1/13/06), 918 So.2d 455, we suspended petitioner from the practice of law for one year and one day for his misconduct in handling the legal matters of two clients. In both instances, petitioner failed to communicate with his clients and neglected their cases. Additionally, petitioner settled a lawsuit without the knowledge or consent of his client, and failed to cooperate with the Office of Disciplinary Counsel (“ODC”) in its investigation. In determining that a one year and one day suspension was the appropriate sanction for this misconduct, we observed that petitioner’s “conduct was largely negligent and occurred during a time when he was relatively inexperienced in the practice of law.”

After serving his suspension, petitioner filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC initially indicated |2it would take no position concerning petitioner’s reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

At the hearing, petitioner’s counsel, Donald F. deBoisblanc, advised the committee that he and petitioner had agreed to a proposed plan for improving petitioner’s law practice upon reinstatement. Pursuant to the agreement, petitioner will maintain an office in Mr. deBoisblanc’s law firm, and Mr. deBoisblanc will mentor and assist petitioner with his administrative practices in an effort to improve client communications and case management skills, as well as his professional compliance.

After considering the evidence presented, the hearing committee recommended that petitioner be reinstated to the practice of law. The disciplinary board agreed that petitioner has satisfied the requirements for reinstatement by clear and convincing evidence. However, due to petitioner’s lack of experience in law office management, the board recommended his reinstatement be conditioned upon compliance with a practice plan proposed by petitioner and his counsel for a period of at least one year. The ODC did not object to the board’s recommendation.

DISCUSSION

Petitioner has served the suspension imposed by this court in 2006, and no objections were received to his application for reinstatement. Petitioner has met his burden of proving that he is entitled to be reinstated to the practice of law. Nevertheless, we find further precautions are warranted to insure that the public will be protected upon petitioner’s return to practice. See Supreme Court Rule XIX, § 24(J). Accordingly, we will order that petitioner be conditionally reinstated, subject to a one-year period of supervised probation which incorporates the proposed practice plan. Should petitioner fail to comply with these conditions, |sor should he commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Clayton Paul Schnyder, Jr., Louisiana Bar Roll number 24212, be immediately reinstated to the practice of law in Louisiana, subject to a one-year period of supervised probation which incorporates the proposed practice plan. Should petitioner fail to comply with these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate.

       Chief Justice Kimball not participating in the opinion.


source: Caselaw Access Project

license: Public Domain

text:
    In re Marti GROSJEAN-PEARSON.
    No. 2011-B-1858.
    Supreme Court of Louisiana.
    Sept. 7, 2011.
   ORDER

| ¶ Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Marti Grosjean-Pearson, Louisiana Bar Roll number 29586, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

FOR THE COURT:

/s/ Bernette J. Johnson

/s/ Justice, Supreme Court of Louisiana


text:
    In re James A. WOOD.
    No. 2011-B-1891.
    Supreme Court of Louisiana.
    Sept. 14, 2011.
   ORDER

11 Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, James A. Wood, Louisiana Bar Roll number 13652, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent’s clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

FOR THE COURT:

/s/ John L. Weimer

/s/ Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Rodney Wayne MACON.
    No. 2011-OK-1731.
    Supreme Court of Louisiana.
    Sept. 21, 2011.
   In re Macon, Rodney Wayne; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 112,549; to the Court of Appeal, Second Circuit, No. 46,-696-KA.

Granted.

On July 14, 2011, the Second Circuit transferred this pending appeal to this Court because the dates of the appellant’s conviction, original sentencing, and order of appeal all came before July 1, 1982, and appeal to this Court thus appeared proper as a matter of La. Const, art. 5, § 5(E)(conferring exclusive appellate jurisdiction on the Supreme Court in a criminal case in which the order of appeal was signed before July 1, 1982). However, the present appeal involves the re-sentencing of appellant some 30 years after this Court affirmed his conviction for aggravated rape and sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for a crime committed when appellant was 16 years old. State v. Macon, 394 So.2d 620 (La.1981). In 2010, appellant moved in the district court for resentencing pursuant to the Supreme Court’s recent decision in Graham v. Florida, 560 U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), not as an ancillary | proceeding of his original appeal in 1981, which had long since been final, but as an entirely separate proceeding to correct what appellant contended was an unconstitutional sentence under the Graham decision. Appellant disputes the manner in which the trial court resentenced him pursuant to Graham. He may appeal from that judgment, La.C.Cr.P. art. 912(C)(1)(a defendant may appeal from a judgment which imposes a sentence); State v. Lewis, 350 So.2d 1197, 1198 (La.1977) (“Defendant does have the right to appeal from the imposition of the new sentence.”), and because the order of appeal of that sentence was signed on February 28, 2011, his appeal was properly lodged as an initial matter in the Second Circuit. Cf. State v. Dixon, 610 So.2d 278 (La.App. 3rd Cir. 1992), writ denied, 93-0464 (La.6/24/94), 640 So.2d 1336; State v. Flowers, 598 So.2d 1144 (La.App. 1st Cir.1992). Accordingly, this appeal is transferred back to the Second Circuit to address the merits.


text:
    In re Stephen R. STREETE.
    No. 2011-OB-0212.
    Supreme Court of Louisiana.
    Sept. 21, 2011.
   ORDER

1,Considering the Petition for Reinstatement from Disability Inactive Status filed by respondent, Stephen R. Streete, the response thereto filed by the Office of Disciplinary Counsel, and the findings and recommendation of the hearing committee,

IT IS ORDERED that Stephen R. Streete, Louisiana Bar Roll number 12531, be reinstated to the practice of law, subject to the condition that he must execute a new five-year recovery agreement with the Lawyers Assistance Program. Respondent shall fully and completely adhere to all terms of the recovery agreement, and such other conditions as may be imposed upon him by the Lawyers Assistance Program. The Office of Disciplinary Counsel shall monitor respondent’s compliance with his recovery agreement and notify this court of any violation, which may be grounds for immediately returning respondent to disability inactive status.

/s/ Marcus R. Clark

/s/ Justice, Supreme Court of Louisiana


author: PER CURIAM

text:
    In re Elise M. BEAUCHAMP.
    No. 2011-B-1144.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Elise M. Beauchamp, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1987. In 2002, respondent submitted a petition for consent discipline to this court wherein she admitted that she neglected her clients’ legal matters, failed to communicate with her clients, failed to provide accountings or return unearned fees at the conclusion of her representation of her clients, and failed to expedite litigation. The court accepted the petition for consent discipline and suspended respondent from the practice of law for one year and one day, fully deferred, subject to two years of probation with conditions. In re: Beauchamp, 02-1389 (La.6/13/02), 821 So.2d 1281 (“Beauchamp I ”).

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

FORMAL CHARGES

Count I — The Dixon Matter

lain September 2007, Taymia Dixon hired respondent to represent her in a child support matter. Ms. Dixon paid respondent $450 for her services, but respondent failed to take any action on Ms. Dixon’s behalf. In an October 30, 2007 e-mail, respondent informed Ms. Dixon that she would refund the unearned fee. However, respondent failed to do so until July 9, 2008, five months after Ms. Dixon filed a disciplinary complaint against her.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.5 (failure to refund an unearned fee), 1.15(d) (failure to timely remit funds to a client or third person), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II — The Hall Matter

In July 2007, Anjelle Hall hired respondent to represent her in a community property partition matter. Ms. Hall paid respondent a total of $3,000 in attorney’s fees and court costs. Thereafter, respondent failed to respond to Ms. Hall’s attempts to contact her. On two occasions when respondent did speak to Ms. Hall, she provided Ms. Hall with false information regarding a court date. Ms. Hall eventually discovered respondent had filed nothing on her behalf. As such, on November 26, 2007, December 6, 2007, and January 2, 2008, she asked respondent for a full refund and the return of her file. Respondent failed to provide the refund Isuntil July 9, 2008, approximately three months after Ms. Hall filed a disciplinary complaint against her.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4 (failure to communicate with a client), 1.5,1.15(d), 8.4(a), and 8.4(c).

Count III — The Ashford Matter

In January 2008, Claudette Ashford hired respondent to represent her in a paternity, custody, and child support matter. Ms. Ashford claimed she began having problems contacting respondent after respondent filed the petition. Ms. Ashford also claimed the matter was continued without date because the opposing party had not been served. She further claimed her last contact with respondent was April 17, 2008. Additionally, Ms. Ashford indicated she sent respondent certified letters requesting a refund, to no avail. Eventually, Ms. Ashford retained new counsel to complete the matter.

Respondent failed to submit a written response to Ms. Ashford’s disciplinary complaint. However, in an April 2009 sworn statement, respondent testified that she never completed the matter because Ms. Ashford failed to remit the entire fee. Respondent also informed Ms. Ashford that she would withdraw from the case but failed to do so. Respondent further testified that she would submit a written response to the complaint and forward Ms. Ashford’s file by April 27, 2009. However, respondent failed to do so.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16 (terminating the representation of a client), 3.2 (failure to make reasonable efforts to expedite litigation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a), and 8.4(c).

\4Count IV — The Fowler Matter

Leah Fowler hired respondent to reopen a succession, paying respondent $2,000 for her services. Ms. Fowler claimed that she thereafter made numerous attempts to contact respondent, to no avail.

Respondent failed to submit a written response to Ms. Fowler’s disciplinary complaint. However, in an April 2009 sworn statement, respondent acknowledged that Ms. Fowler hired her, but she was unable to locate Ms. Fowler’s file. Respondent also claimed she conducted research and reviewed court records related to the succession. Respondent further testified that she would submit a written response to the complaint and forward Ms. Fowler’s file by April 27, 2009. However, respondent failed to do so.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 1.15(a) (safekeeping property of clients or third persons), 1.15(d), 8.1(c), and 8.4(a).

Count V — The Miller Matter

In January 2007, Ina Miller hired respondent to represent her in a child support and visitation matter, paying respondent $1,500. Ms. Miller claimed respondent failed to complete the matter. Ms. Miller also claimed respondent failed to adequately communicate with her, failed to inform her of court dates, changed scheduled court dates without first consulting her, and disconnected her telephone services without notifying her.

Respondent failed to submit a written response to Ms. Miller’s disciplinary complaint and was subpoenaed to provide a sworn statement. In an April 2009 sworn statement, respondent denied Ms. Miller’s allegations of misconduct; however, she failed to provide any evidence to refute said allegations. Respondent | ¡¡further testified that she would submit a written response to the complaint and forward Ms. Miller’s file by May 1, 2009. However, respondent failed to do so.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5,1.15(d), 3.2, 8.1(c), and 8.4(a).

Count VI — The Skinner Matter

In April 2007, Amber Theodore Skinner hired respondent to represent her in a divorce and custody matter. Ms. Skinner paid respondent $1,500 plus court costs. Respondent filed the petition in December 2007. Thereafter, Ms. Skinner reconciled with her husband, but they again separated a few months later. In August 2008, Ms. Skinner and respondent entered into another contract for respondent to proceed with the divorce. At that time, respondent informed Ms. Skinner there were no funds left from the $1,500 retainer. Ms. Skinner claimed she paid respondent an additional $200 in August 2008 and another $250 for court costs. In September 2008, Ms. Skinner terminated respondent’s services and requested a detailed accounting. Ms. Skinner also stated that the court clerk’s office informed her that nothing had been filed since 2007, before she reconciled with her husband. Nevertheless, the $250 check Ms. Skinner issued to respondent for court costs was cashed on September 2, 2008.

In an April 2009 sworn statement, respondent testified that she forwarded a detailed accounting to Ms. Skinner via email, and the accounting showed that Ms. Skinner owed her money. Respondent also testified that she would submit a written response to the complaint as well as documents to substantiate her claim by April 27, 2009. However, respondent failed to do so.

|fiThe ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.5, 1.5(f)(5) (failure to hold disputed funds in trust), 1.15(d), 8.1(c), and 8.4(a).

Count VII — The Hansen Matter

In July 2008, Kristy Hansen hired respondent to represent her in a custody matter. She paid respondent a $900 fee plus an additional $175 for court costs. Ms. Hansen stated that she began having difficulty communicating with respondent in October 2008. Although respondent communicated once with Ms. Hansen via email, she failed to keep Ms. Hansen advised of the status of the matter, including the fact that a scheduled court date had been canceled. Thereafter, Ms. Hansen emailed respondent to request a refund, but respondent failed to respond.

In an April 2009 sworn statement to the ODC, respondent testified that she rendered the services for which she was hired and had no intention of refunding the entire fee. Respondent also testified that she would submit a written response to Ms. Hansen’s disciplinary complaint as well as documents in support of her claim by April 27, 2009. However, respondent failed to do so.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 1.5(f)(5), 1.15(d), 3.2, 8.1(c), and 8.4(a).

Count VIII — The Wooten Matter

Leroy Wooten hired respondent to represent him in a divorce and community property partition matter. Mr. Wooten paid respondent a fixed fee of $3,500 and claimed respondent sufficiently communicated with him until he made his final installment payment. Respondent failed to appear for a scheduled hearing in March 2009, and she was not present when the judgment of divorce was granted |7on June 5, 2009. Mr. Wooten attempted several times to contact respondent, to no avail. Notice of Mr. Wooten’s disciplinary complaint was sent to respondent via certified mail but was returned unclaimed.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.8, 1.4,1.15(d), 8.1(c), and 8.4(a).

Count IX — The Bradley Matter

In September 2007, Craig Bradley hired respondent to represent him in divorce proceedings. Mr. Bradley paid respondent a $1,300 fixed fee plus court costs. When Mr. Bradley and his wife reconciled, respondent returned the $560 check that was designated for court costs. In October 2008, Mr. Bradley again hired respondent to proceed with the divorce. This time, respondent requested a fee of $1,950, subject to a $700 credit, which Mr. Bradley paid. He also provided a $550 check for court costs. Mr. Bradley claimed he last heard from respondent on December 22, 2008, when she informed him she was meeting with opposing counsel the next day. He also claimed that, thereafter, he made numerous attempts to contact respondent, to no avail. Mr. Bradley further claimed that respondent failed to appear for two hearings. Notice of Mr. Bradley’s disciplinary complaint, sent to respondent in April 2009, was returned to the ODC marked “not deliverable as addressed; unable to forward.”

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5,1.15(d), 3.2, 8.1(c), and 8.4(a).

Count X — The Stabinsky Matter

In May 2007, Myer “Buster” Stabinsky hired respondent to represent him in divorce proceedings, paying respondent $1,500. Mr. Stabinsky stated that | ^respondent failed to take any action on his behalf. He also stated that he made numerous attempts to contact respondent, to no avail. Notice of Mr. Stabinsky’s disciplinary complaint, sent to respondent in April 2009, was returned to the ODC marked “unclaimed; unable to forward.”

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5,1.15(d), 8.1(c), and 8.4(a).

Count XI — The Sartin Matter

Nathaniel Sartin hired respondent to represent him in divorce proceedings, paying respondent a $450 fixed fee. The divorce petition was filed in April 2003, but the matter was never finalized. Mr. Sartin made several attempts to contact respondent, to no avail. Notice of Mr. Sartin’s disciplinary complaint, sent to respondent in May 2009, was returned to the ODC marked “unclaimed.”

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5,1.15(d), 3.2, 8.1(c), and 8.4(a).

Count XII — The Tefarikis Matter

In August 2008, Christopher Tefarikis hired respondent to represent him in divorce proceedings, paying respondent a $2,500 fee. Mr. Tefarikis received notice of a hearing scheduled for April 9, 2009 and made several attempts to contact respondent prior to the hearing, to no avail. Mr. Tefarikis eventually retained new counsel to complete the matter. Respondent failed to refund any of the fee. Notice of Mr. Tefarikis’s disciplinary complaint, sent to respondent in May 2009, was returned to the ODC marked “unclaimed; unable to forward.”

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.15(d), 3.2, 8.1(c), and 8.4(a).

| fCount XIII — The Riley Matter

Walter Riley hired respondent to represent him in divorce proceedings, paying respondent attorney’s fees and court costs. He stated that the last contact he had with respondent was May 7, 2008. Notice of Mr. Riley’s disciplinary complaint, sent to respondent in August 2009, was returned to the ODC marked “unclaimed; unable to forward.”

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5,1.15(d), 3.2, 8.1(c), and 8.4(a).

DISCIPLINARY PROCEEDINGS

In April 2010, the ODC filed formal charges against respondent. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined the deemed admitted facts are undisputed. Thus, the committee accepted those facts as true and correct. Without explanation, the committee also determined respondent violated Rules 1.3, 1.4, 1.5, 1.15, 1.16, 3.2, 8.1, and 8.4 of the Rules of Professional Conduct.

The committee further determined respondent violated duties owed to her clients, the public, the legal system, and the legal profession. Respondent acted Unknowingly and intentionally, causing harm to her clients. She failed to adequately communicate with her clients and failed to diligently pursue their legal matters. She also failed to return files and refund unearned fees, despite numerous requests. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is disbarment.

The committee found the following aggravating factors present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law (admitted 1987), and indifference to making restitution. The committee found no mitigating factors present.

After considering respondent’s conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, as well as case law involving similar misconduct, the committee recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing the record, the disciplinary board noted that the hearing committee made no specific factual findings. Therefore, the board adopted the deemed admitted factual allegations of the formal charges as the factual findings. Based on those facts, the board determined respondent violated the Rules of Professional Conduct as follows:

Rule 1.3 — Respondent failed to act with reasonable diligence and promptness in all matters, as alleged in the formal charges.

| n Rule 1.4 — Respondent failed to keep her clients reasonably informed about the status of their cases in all matters in which this rule violation was alleged.

Rule 1.5 — Respondent failed to refund unearned fees to her clients in all matters in which this rule violation was alleged.

Rule 1.5(f)(5) — The record does not support the ODC’s contention that respondent failed to deposit disputed funds into a trust account in the Skinner and Hansen matters. Stating that respondent violated this rule, without supporting factual allegations or other evidence, is insufficient to establish a violation of the rule.

Rule 1.15(a) — The record does not support the ODC’s contention that respondent failed to keep the legal fee Ms. Fowler paid separate from respondent’s personal funds. Stating that respondent violated this rule, without supporting factual allegations or other evidence, is insufficient to establish a violation of the rule.

Rule 1.15(d) — Nothing in the record supports a violation of this rule in any of the matters in which it was allegedly violated. The ODC did not submit evidence to prove that respondent, upon receiving funds or property in which her clients or third parties had an interest, failed to promptly deliver the funds or property to said clients or third parties. Stating that respondent violated this rule, without supporting factual allegations or other evidence, is insufficient to establish a violation of the rule.

Rule 1.16 — Respondent failed to properly terminate her representation of Ms. Ashford.

Rule 3.2 — Respondent failed to expedite litigation on behalf of her clients in all matters in which this rule violation was alleged.

Rule 8.1(c) — Respondent failed to cooperate with the ODC in its investigation in all matters in which this rule violation was alleged.

112Rule 8.4(a) — Respondent violated or attempted to violate the Rules of Professional Conduct in all matters, as alleged in the formal charges.

Rule 8.4(c) — Respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in all matters in which this rule violation was alleged.

The board further determined respondent violated duties owed to her clients, the public, the legal system, and the legal profession. The board determined respondent’s conduct was knowing and intentional based on the number of offenses and victims and given the fact that the court disciplined her in Beauchamp I for violating several of the same rules. Respondent caused a great amount of actual injury because numerous clients lost their legal fees and/or had their cases delayed, and respondent failed to make restitution to most of those clients. Respondent also harmed the disciplinary system because it had to expend additional resources to gather information from her when she failed to answer complaints. The board agreed with the committee that the baseline sanction is disbarment. The board also agreed with the aggravating factors found by the committee and agreed that no mitigating factors are present. Additionally, the board found that the aggravating factors of refusal to acknowledge the wrongful nature of the conduct and vulnerability of the victim are present.

After considering respondent’s conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, as well as case law involving similar misconduct, the board recommended respondent be permanently-disbarred.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

| ^DISCUSSION

Bar disciplinary matters fall -within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record of this matter indicates that respondent neglected legal matters, failed to communicate with clients, failed to refund unearned fees, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and failed to cooperate with the ODC in several investigations. Nevertheless, because of the language the ODC used to describe the factual allegations of the formal charges, the record does not provide clear and convincing evidence that respondent violated all of the Rules of Professional Conduct as alleged in the formal charges. Based on the deemed admitted facts, as written in the formal charges, and the other evidence in the record, we find respondent violated the Rules of Professional Conduct as follows:

The Dixon matter—Respondent violated Rules 1.3, 8.4(a), and 8.4(c). Additionally, respondent violated Rule 1.5(f)(5) by failing to timely refund the unearned fee. Because we have already determined respondent violated Rule 1.5(f)(5), it is not necessary to determine whether she also violated Rule 1.15(d) by failing to promptly refund the unearned fee, as Rule 1.5(f)(5) is clearly the more applicable rule.

The Hall matter—Respondent violated Rules 1.3, 1.4, 8.4(a), and 8.4(c). Additionally, respondent violated Rule 1.5(f)(5) by failing to timely refund the unearned fee. Because we have already determined respondent violated Rule 1.5(f)(5), it is not necessary to determine whether she also violated Rule 1.15(d) by failing to promptly refund the unearned fee, as Rule 1.5(f)(5) is clearly the more applicable rule.

The Ashford matter—Respondent violated Rules 1.3, 1.16, 3.2, 8.1(c), 8.4(a), and 8.4(c). However, the record does not support a finding that respondent violated Rule 1.4. The deemed admitted facts amount to nothing more than the client’s allegation that respondent failed to communicate with her. For example, the formal charges allege the client “claims” or the client “advises” of a failure to communicate on respondent’s part. Without either supporting evidence in the record or a more definitive statement of the alleged fact that respondent failed to communicate with her client, we are unable to find a violation of Rule 1.4.

The Fowler matter — Respondent violated Rules 1.3, 8.1(c), and 8.4(a). Additionally, respondent violated Rule 1.5(f)(5) by failing to refund the unearned fee. Because we have already determined respondent violated Rule 1.5(f)(5), it is not necessary to determine whether she also violated Rule 1.15(d) by failing to refund the unearned fee, as Rule 1.5(f)(5) is clearly the more applicable rule. Furthermore, the record does not support a finding that respondent violated Rule 1.4. The deemed admitted facts amount to nothing more than the client’s | ir,allegation that respondent failed to communicate with her. For example, the formal charges allege the client “claims” a failure to communicate on respondent’s part. However, respondent denied this allegation in her sworn statement. Therefore, the record merely supports a finding that a factual dispute exists regarding whether respondent failed to communicate with her client. Without either supporting evidence in the record or a more definitive statement of the alleged fact that respondent failed to communicate with her client, we are unable to find a violation of Rule 1.4. Further, there is neither a factual allegation in the formal charges nor evidence in the record that respondent failed to hold the client’s property separate from her own; thus, we are unable to find a violation of Rule 1.15(a).

The Miller matter — Respondent violated Rules 8.1(c) and 8.4(a). There is insufficient evidence in the record to find a violation of Rules 1.3, 1.4, 1.5(f)(5), 1.15(d), and 3.2. The formal charges allege the client “claims” or “states” that respondent failed to communicate with her and failed to complete the legal matter. However, respondent denied these allegations in her sworn statement. Therefore, the record merely supports a finding that a factual dispute exists regarding whether respondent failed to communicate with her client and neglected her client’s legal matter. Without either supporting evidence in the record or more definitive statements of the alleged facts that respondent failed to communicate with her client, neglected the legal matter, failed to refund an unearned fee, and failed to promptly deliver funds to her client, we are unable to find additional violations of the Rules of Professional Conduct.

The Skinner matter — Respondent violated Rules 8.1(c) and 8.4(a). Additionally, respondent violated Rule 1.5(f)(5) by failing to refund the unearned fee. Because we have already determined respondent violated Rule 1.5(f)(5), it is not necessary to determine whether she also violated Rule 1.15(d) by failing to 11 f,refund the unearned fee, as Rule 1.5(f)(5) is clearly the more applicable rule. Furthermore, there is neither a factual allegation in the formal charges nor evidence in the record that respondent neglected her client’s legal matter; thus, we are unable to find a violation of Rule 1.3.

The Hansen matter — Respondent violated Rules 1.3, 1.4, 3.2, 8.1(c), and 8.4(d). Additionally, respondent violated Rule 1.5(f)(5) by failing to refund the unearned fee. Because we have already determined respondent violated Rule 1.5(f)(5), it is not necessary to determine whether she also violated Rule 1.15(d) by failing to refund the unearned fee, as Rule 1.5(f)(5) is clearly the more applicable rule.

The Wooten matter — Respondent violated Rules 1.3, 1.4, 8.1(c), and 8.4(a). However, there is neither a factual allegation in the formal charges nor evidence in the record that respondent failed to promptly deliver funds to her client; thus, we are unable to find a violation of Rule 1.15(d).

The Bradley matter — Respondent violated Rules 8.1(c) and 8.4(a). There is insufficient evidence in the record to find a violation of Rules 1.3, 1.4, 1.5(f)(5), 1.15(d), and 3.2. The formal charges allege the client “claims” or “states” that respondent failed to communicate with him and failed to appear for two hearings in his legal matter. Without either supporting evidence in the record or more definitive statements of the alleged facts that respondent failed to communicate with her client, neglected the legal matter, failed to refund an unearned fee, and failed to promptly deliver funds to the client, we are unable to find additional violations of the Rules of Professional Conduct.

The Stabinsky matter — Respondent violated Rules 8.1(c) and 8.4(a). There is insufficient evidence in the record to find a violation of Rules 1.3, 1.4, 1.5(f)(5), and 1.15(d). The formal charges allege the client “states” that respondent failed to communicate with him and failed to take any action on his behalf. Without either | ^supporting evidence in the record or more definitive statements of the alleged facts that respondent failed to communicate with her client, neglected the legal matter, failed to refund an unearned fee, and failed to promptly deliver funds to the client, we are unable to find additional violations of the Rules of Professional Conduct.

The Sartin matter — Respondent violated Rules 1.3, 1.4, 3.2, 8.1(c), and 8.4(a). Additionally, respondent violated Rule 1.5(f)(5) by failing to refund the unearned fee. Because we have already determined respondent violated Rule 1.5(f)(5), it is not necessary to determine whether she also violated Rule 1.15(d) by failing to refund the unearned fee, as Rule 1.5(f)(5) is clearly the more applicable rule.

The Tefarikis matter — Respondent violated Rules 1.3, 1.4, 3.2, 8.1(c), and 8.4(a). Additionally, although not specifically listed in the alleged rule violations, the deemed facts reveal that respondent violated Rule 1.5(f)(5) by failing to refund the unearned fee. Because we have already determined respondent violated Rule 1.5(f)(5), it is not necessary to determine whether she also violated Rule 1.15(d) by failing to refund the unearned fee, as Rule 1.5(f)(5) is clearly the more applicable rule.

The Riley matter — Respondent violated Rules 8.1(c) and 8.4(a). There is insufficient evidence in the record to find a violation of Rules 1.3, 1.4, 1.5(f)(5), 1.15(d), and 3.2. The formal charges allege the client “states” that respondent last contacted him on May 7, 2008. Without either supporting evidence in the record or more definitive statements of the alleged facts that respondent failed to communicate with her client, neglected the legal matter, failed to refund an unearned fee, and failed to promptly deliver funds to the client, we are unable to find additional violations of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining |i8a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly and intentionally violated duties owed to her clients and the legal profession. She caused harm to her clients and the attorney disciplinary system. The baseline sanction for this type of misconduct is disbarment.

Several aggravating factors are present, including prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. We agree with the hearing committee and the disciplinary board that no mitigating factors are present.

We also agree that permanent disbarment is the appropriate sanction in this case. Based on the proven facts, respondent failed to timely refund unearned fees and unused costs totaling $11,425. Of that amount, respondent still has not refunded a total of $7,975 to several clients. Therefore, we find respondent’s conduct amounts to repeated or multiple instances of intentional conversion of client funds with substantial harm as required by Guideline 1 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E.

| Accordingly, we will adopt the disciplinary board’s recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Elise M. Beauchamp, Louisiana Bar Roll number 18108, be stricken from the roll of attorneys and that her license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . Respondent has been ineligible to practice law since 2009 for failing to pay bar dues and the disciplinary assessment, failing to fulfill mandatory continuing legal education requirements, and failing to file trust account disclosure statements.

      . Subsection (f)(5) of Rule 1.5 specifically references an attorney's duty to refund an unearned fee. As such, it would have been more appropriate for the ODC to allege a violation of Rule 1.5(f)(5) with respect to respondent’s failure to refund an unearned fee. All subsequent references to Rule 1.5 in the formal charges are also based on respondent’s failure to refund an unearned fee and, thus, would be more correctly stated as alleged violations of Rule 1.5(f)(5).

      . The hearing committee had also recommended permanent disbarment based upon Guideline 9, which applies to instances of serious attorney misconduct which are preceded by suspension or disbarment for prior instances of serious attorney misconduct. However, as the disciplinary board correctly noted, respondent's prior discipline in Beau-champ I resulted in a fully deferred suspension, and therefore was not "serious attorney misconduct” as defined by Guideline 9.


text:
    In re Appeal of DECISION OF DISCIPLINARY BOARD NO. 10-PDB-115.
    No. 2011-OB-0905.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Roberts, Lourele; — Plaintiff; Applying For Appeal of Decision of the Disciplinary Board Office of Disciplinary Board, No. 10-PDB-115.


text:
    In re Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 10-PDB-123.
    No. 2011-OB-0957.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Williams, James F.; — Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 10-PDB-123.

Leave to appeal denied.


text:
    Appeal of DECISION OF the DISCIPLINARY BOARD NO. 2011-ADMIN-16.
    No. 2011-OB-1358.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Nelson, Henry; — Plaintiff; Applying For None, No. 2011-ADMIN-16.

Denied.


text:
    In re Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 10-PDB-129.
    No. 2011-OB-1257.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Lisotta, Terry M.; — Plaintiff; Applying For Appeal of Decision of the Disciplinary Board Office of Disciplinary Board, No. 10-PDB-129.

Leave to appeal denied.


text:
    In re Appeal of the DECISION OF the BOARD NO. 10-PDB-083.
    No. 2011-OB-1007.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Blanson, Otis; — Plaintiff; Applying For Appeal of the Decision of the Board Office of Disciplinary Board, No. 10-PDB-083.

Leave to appeal denied.


text:
    Cannie JORDAN v. RAPIDES REGIONAL MEDICAL CENTER, et al.
    No. 2011-CC-1000.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Board of Supervisors of Louisiana State University and Agricultural and Mechanical College; LSU Family Practice Residency Program — Alexandria et al.; LSU Health Sciences — Shreveport D/B/A; State of Louisiana; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. G, No. 238,992-G; to the Court of Appeal, Third Circuit, Nos. CW 11-00035, CW 11-00039.

Denied. See Burnett v. James Construction Group, 10-2608 (La.7/1/11), 66 So.3d 482, and Whitley v. State of Louisiana, 11-0040 (La.7/1/11), 66 So.3d 470.


text:
    Franklin WELZBACHER v. Jim McCLAIN, XYZ Insurance Company, Bobby Dyson, and ABC Insurance Company.
    No. 2011-CC-1153.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re McClain, Patrick; State Farm Fire and Casualty Company;—Defendants); Applying For Supervisory and/or Remedial Writs, Parish of Desoto, 42nd Judicial District Court Div. B, No. 71454; to the Court of Appeal, Second Circuit, No. 46569-CW.

Denied.


text:
    STATE ex rel. Ronald K. BURD v. Hon. Frank J. SHEA, Judge Criminal District Court Parish of Orleans Section “G” State of Louisiana.
    No. 1987-KH-1581.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Burd, Ronald K; — Plaintiff; Applying for Motion to Enforce this Court’s Order dated July 24, 1987; Parish of Orleans, Criminal District Court, Div. G, No. 276-296.

Denied. Moot. The district court has acted.


text:
    STATE ex rel. Ronald K. BURD v. Hon. Frank J. SHEA, Judge et al.
    No. 1987-KH-2290.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Burd, Ronald K.; — Plaintiff; Applying for Motion to Enforce this Court’s Order dated January 15, 1988; Parish of Orleans, Criminal District Court, Div. G, No. 276-296.

Denied. Moot. The district court has acted.


text:
    STATE ex rel. Ronald K. BURD v. STATE of Louisiana.
    No. 1988-KH-1532.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Burd, Ronald K; — Plaintiff; Applying for Motion to Enforce this Court’s Order dated October 28, 1988; Parish of Orleans, Criminal District Court, Div. G, No. 276-296.

Denied. Moot. The district court has acted.


text:
    STATE of Louisiana v. Ronald K. BURD.
    No. 1989-KH-2026.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Burd, Ronald K; — Defendant; Applying for Motion to Enforce this Court’s Order dated February 2, 1990; Parish of Orleans, Criminal District Court, Div. G, No. 276-296.

Denied. Moot. The district court has acted.


text:
    STATE of Louisiana v. Carlos VARGAS-ALCERRECA.
    No. 2011-KD-2003.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re Vargas-Alcerreea, Carlos; — Defendant; Applying for Reconsideration of this Court’s action dated September 15, 2011; Parish of Orleans, Criminal District Court Div. E, No. 502-586; to the Court of Appeal, Fourth Circuit No. 2011-K-1279.

Stay denied. Rehearing denied.


text:
    STATE of Louisiana v. Cassie POREE et al.
    No. 2011-KD-1972.
    Supreme Court of Louisiana.
    Sept. 16, 2011.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 497-510; to the Court of Appeal, Fourth Circuit, No. 2011-K-1215.

Stay Denied; Writ Denied.


text:
    STATE of Louisiana v. Carlos VARGAS-ALCERRECA.
    No. 2011-KK-2029.
    Supreme Court of Louisiana.
    Sept. 19, 2011.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 502-586; to the Court of Appeal, Fourth Circuit, No. 2011-KM-1316.

Denied.

KNOLL, J., would grant.


text:
    STATE of Louisiana v. Carlos VARGAS-ALCERRECA.
    No. 2011-KK-2031.
    Supreme Court of Louisiana.
    Sept. 20, 2011.
   In re Vargas-Alcerreca, Carlos; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 502-586; to the Court of Appeal, Fourth Circuit, No. 2011-KM-1316.

Denied on the showing made.

JOHNSON, J., would deny.


text:
    STATE of Louisiana v. Carlos VARGAS-ALCERRECA.
    No. 2011-KK-2037.
    Supreme Court of Louisiana.
    Sept. 20, 2011.
   In re Vargas-Alcerreca, Carlos; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 502-586; to the Court of Appeal, Fourth Circuit, No. 2011-K-1320.

Denied.


text:
    STATE of Louisiana v. George PRYOR.
    No. 2011-KK-2004.
    Supreme Court of Louisiana.
    Sept. 21, 2011.
   In re Pryor, George; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 504-764; to the Court of Appeal, Fourth Circuit, No. 2011-K-126S.

Denied.


text:
    STATE of Louisiana v. James HAYES.
    No. 2011-KK-1932.
    Supreme Court of Louisiana.
    Sept. 22, 2011.
   In re Hayes, James; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 11-2071; to the Court of Appeal, Fifth Circuit, No. 11-K-795.

Stay denied; writ denied.


text:
    SUCCESSION OF Booker T. WASHINGTON, et al.
    No. 2011-OC-2042.
    Supreme Court of Louisiana.
    Sept. 22, 2011.
   In re Riley, Gwendolyn; Washington-Chereme, Glenda; — Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 11170; to the Court of Appeal, Third Circuit, No. 11-00560-CA.

Stay denied; writ denied.


text:
    STATE of Louisiana v. Carlos VARGAS-ALCERRECA.
    No. 2011-KK-2059.
    Supreme Court of Louisiana.
    Sept. 22, 2011.
   In re Vargas-AIcerreca, Carlos; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 502-586; to the Court of Appeal, Fourth Circuit, No. 2011-K-1323.

Stay Denied; Writ Denied.


text:
    STATE of Louisiana v. Darryl GRIFFIN.
    No. 2011-KH-1227.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re State of Louisiana; — Plaintiff; Applying for Rehearing, Parish of Orleans, Criminal District Court Div. J, No. 479-359; to the Court of Appeal, Fourth Circuit, No. 2011-K-0329.

Rehearing denied.

KNOLL and CLARK, JJ., would grant rehearing.


text:
    Pam JONES, in her Capacity as Assessor of Lincoln Parish v. SOUTHERN NATURAL GAS CO. Rich Bailey, in his Capacity as Assessor of Ouachita Parish v. ANR Pipeline, Southern Natural Gas Co. and Tennessee Gas Pipeline Co. Mary T. “Terry” Baker, in her Capacity as Assessor for Union Parish v. Tennessee Gas Pipeline Company.
    No. 2011-C-1242.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re ANR Pipeline Company, et al.; Southern Natural Gas Company; Tennessee Gas Pipeline Company; — Defendant(s); Applying For Writ of Certiorari and/or Review 3rd Judicial District Court Divs. C, A, Nos. 53,999, 43,464, 2009-4304; to the Court of Appeal, Second Circuit, Nos. 46,-347-CA, 46,348-CA, 46,351-CA.

Not considered, not timely filed.


text:
    Gary P. JAMERSON v. Louisiana Department of Corrections Secretary, James LeBLANC & Burl Cain, Warden, Louisiana State Penitentiary.
    No. 2010-CI-1326.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Jamerson, Gary P.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 562,984; to the Court of Appeal, First Circuit, No. 2009 CA 2238.

Denied.


text:
    STATE ex rel. Paul CARTER v. STATE of Louisiana.
    No. 2010-KH-1523.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Carter, Paul; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 106340; to the Court of Appeal, Third Circuit, No. KH 10-00133.

Denied.


text:
    Robert Kevin McCARTNEY v. Helen WASHINGTON, Jackie Johnson, Tommy Garrett, Warden Jerry Goodwin, Ray Hanson, Warden, James LeBlanc, Secretary Department of Corrections and Linda Ramsey, Screening Officer.
    No. 2010-CI-1536.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re McCartney, Robert Kevin;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 578,054; to the Court of Appeal, First Circuit, No. 2009 CA 2093.

Denied.


text:
    STATE ex rel. Robert C. JONES v. STATE of Louisiana.
    No. 2010-KH-1566.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Jones, Robert C.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. C, No. 09-F1309-2; to the Court of Appeal, Second Circuit, No. 45,-723-KW.

Denied. Moot.


text:
    STATE ex rel. Keith A. DOYLE v. STATE of Louisiana.
    No. 2010-KH-1594.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Doyle, Keith A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. A, Nos. CR 77006, 7612008; to the Court of Appeal, Third Circuit, No. KH 10-00249.

Denied.


text:
    STATE ex rel. Rickey GIPSON v. STATE of Louisiana.
    No. 2010-KH-1714.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Gipson, Rickey; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 145,576; to the Court of Appeal, Second Circuit, No. 45,-737-KH.

Denied.


text:
    STATE ex rel. John BROOKS v. STATE of Louisiana.
    No. 2010-KH-1783.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Brooks, John; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 318-415; to the Court of Appeal, Fourth Circuit, No. 2010-K-0935.

Denied.


text:
    STATE ex rel. Willie BROWN, Jr. v. STATE of Louisiana.
    No. 2010-KH-1792.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Brown Jr., Willie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 85-1284; to the Court of Appeal, Third Circuit, No. KH 10-00306.

Denied.


text:
    STATE ex rel. David W. BELSETH v. STATE of Louisiana.
    No. 2010-KH-1847.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Belseth, David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. A, No. 08 CR3 99838; to the Court of Appeal, First Circuit, No. 2010 KA 0018.

Denied.


text:
    STATE ex rel. Richard LAY v. STATE of Louisiana.
    No. 2010-KH-2024.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Lay, Richard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 383759; to the Court of Appeal, First Circuit, No. 2010 KW 1147.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Richard LAY v. STATE of Louisiana.
    No. 2010-KH-2025.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Lay, Richard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 197086; to the Court of Appeal, First Circuit, No. 2010 KW 0785.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2897 (La.10/15/10), 45 So.3d 1030.

WEIMER, J., recused.


text:
    STATE ex rel. Larry A. BROYARD v. STATE of Louisiana.
    No. 2010-KH-2032.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Broyard, Larry A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 349-922; to the Court of Appeal, Fourth Circuit, No. 2010-K-1068.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Shannon HURD v. STATE of Louisiana.
    No. 2010-KH-2053.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Hurd, Shannon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 03-5616; to the Court of Appeal, Fifth Circuit, No. 10-KH-626.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Wilbert BRADLEY v. STATE of Louisiana.
    No. 2010-KH-2054.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Bradley, Wilbert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 04-89-0980; to the Court of Appeal, First Circuit, No. 2010 KW1016.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2880 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Derrick PIERRE v. STATE of Louisiana.
    No. 2010-KH-2056.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Pierre, Derrick; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 06970846; to the Court of Appeal, First Circuit, No. 2010 CW 1054.

Writ denied; relator’s request for a cost estimate for the reproduction of his district attorney’s file must be addressed to the records’ custodian. R.S. 44:31; State ex rel. McKnight v. State, 98-2258 (La.App. 1st Cir.12/3/98), 742 So.2d 894.

WEIMER, J., recused.


text:
    STATE ex rel. Raythail WOMACK v. STATE of Louisiana.
    No. 2010-KH-2057.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Womack, Raythail; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 576,154; to the Court of Appeal, First Circuit, No. 2010 CW 0398.

Denied.


text:
    STATE ex rel. William C. RICHARDSON v. STATE of Louisiana.
    No. 2010-KH-2085.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Richardson, William C.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 168.960; to the Court of Appeal, Second Circuit, No. 45,-845-KH.

Denied.


text:
    STATE ex rel. James McCRANEY v. STATE of Louisiana.
    No. 2010-KH-2086.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re McCraney, James; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 00-5709; to the Court of Appeal, Fifth Circuit, No. 10-WR-269.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Eddie LANG v. STATE of Louisiana.
    No. 2010-KH-2088.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Lang, Eddie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. D, No. 04-1059F; to the Court of Appeal, Second Circuit, No. 45,823-KH.

Denied.


text:
    STATE ex rel. Stephen WINDSOR v. STATE of Louisiana.
    No. 2010-KH-2089.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Windsor, Stephen; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 389-171; to the Court of Appeal, Fourth Circuit, No. 2010-K-1101.

Denied.


text:
    STATE ex rel. Bobby R. HENDERSON v. STATE of Louisiana.
    No. 2010-KH-2090.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Henderson, Bobby R.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 16187; to the Court of Appeal, Second Circuit, No. 45,-880-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Eddie STIRGUS v. STATE of Louisiana.
    No. 2010-KH-2096.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Stirgus, Eddie; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 08-2238; to the Court of Appeal, Fifth Circuit, Nos. 10-KH-329,10-KH-605.

Denied.


text:
    STATE ex rel. Cedrick E. EVANS v. STATE of Louisiana.
    No. 2010-KH-2098.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Evans, Cedrick E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 269622; to the Court of Appeal, First Circuit, No. 2010 KW 1043.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030; State v. Thomas, 08-2912, (La.10/16/09), 19 So.3d 466.


text:
    STATE ex rel. Earnest BLAND v. STATE of Louisiana.
    No. 2010-KH-2103.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Bland, Earnest; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. B, No. 09-3251; to the Court of Appeal, Third Circuit, No. 09-1519.

Denied.


text:
    Arthur Ray ROBINSON v. James M. LEBLANC, et al.
    No. 2010-CI-2141.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Robinson, Arthur Ray; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. 20730; to the Court of Appeal, First Circuit, No. 2010 CW 0815.

Denied.


text:
    STATE ex rel. James Earl FRANKLIN v. STATE of Louisiana.
    No. 2010-KH-2142.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Franklin, James Earl; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. C, No. 54,574; to the Court of Appeal, Second Circuit, No. 45,-856-KH.

Denied. State ex rel. Bernard v. Cr. D.C, 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175.


text:
    STATE ex rel. Iley DOTCH v. STATE of Louisiana.
    No. 2010-KH-2155.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Dotch, Iley; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 78,145.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. John HARDEMAN v. STATE of Louisiana.
    No. 2010-KH-2158.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Hardeman, John; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 420,579; to the Court of Appeal, First Circuit, No. 2010 KW 0940.

Denied.


text:
    STATE ex rel. Mike SILVO v. STATE of Louisiana.
    No. 2011-KH-0187.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Silvo, Mike; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 286137; to the Court of Appeal, First Circuit, No. 2010 KW 1632.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.

WEIMER, J., recused.


text:
    Berta JEFFERSON, Wife of/and Leon J. Jefferson, Jr. v. AMF BOWLING CENTERS, INC. d/b/a All Star Lanes.
    No. 2011-CC-1070.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re All Star Lanes; AMF Bowling Centers Inc. d/b/a; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 656056; to the Court of Appeal, Fifth Circuit, No. 11-C-2.

Granted in part. The portion of the court of appeal’s judgment reversing the granting of partial summary judgment on plaintiffs’ merchant and strict liability claims is vacated and set aside. In the absence of an application by plaintiff, these issues were not properly before the court of appeal. See Walker v. Clarendon National Ins. Co., 01-2338 (La.12/14/01), 802 So.2d 1285. In all other respects, the application is denied.


text:
    Jerry Wayne BENOIT v. TURNER INDUSTRIES GROUP, LLC.
    No. 2011-C-1130.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Turner Industries Group, LLC;— Defendant; Applying For Writ of Certio-rari and/or Review Office of Workers’ Compensation District 03, No. 06-06963; to the Court of Appeal, Third Circuit, No. 10-1460.

Granted.


text:
    McLANE SOUTHERN, INC. v. Cynthia BRIDGES, Secretary of the Department of Revenue of the State of Louisiana.
    No. 2011-C-1141.
    Supreme Court of Louisiana.
    Sept. 23, 2011.
   In re Bridges, Secretary Cynthia et al.; Louisiana Department of Revenue; State of Louisiana; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. C550358; to the Court of Appeal, First Circuit, No. 2010 CA1259.

Granted.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Anson Orlando HEARD, Appellant.
    No. 46,230-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Larry English, English & Associates, LLC, Shreveport, LA, for Appellant.
    Charles R. Scott, District Attorney, Ben Langford, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

11 Anson Orlando Heard was convicted after a bench trial of possession of a firearm by a convicted felon. He was sentenced to 12 years’ imprisonment at hard labor without the benefit of parole, probation or suspension of sentence and a $1,000 fine. The sentence was ordered to be served consecutive to any other sentence the defendant is obligated to serve. Heard appeals his conviction. We affirm.

Facts

On October 10, 2007, the state filed a bill of information charging Heard with one count of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. The weapon was found in Heard’s vehicle following a traffic stop on the evening of September 1, 2007. Prior to trial, Heard filed a motion to suppress all items seized from his vehicle, as well as any photographs of or latent fingerprints taken from those items, on the basis that they were obtained in violation of his constitutional rights.

At an initial hearing on the motion to suppress, the state presented the testimony of Caddo Sheriffs Deputy John Witham and Shreveport Police Corporal Rosado. Witham and Rosado were patrolling in a high crime area of Shreveport when they encountered the defendant’s vehicle at the intersection of Freddie and Caldwell Streets. The music coming from the vehicle was very loud, so the officers initiated a traffic stop. As they pulled behind the vehicle and activated the patrol units’ lights, they noticed Heard making sudden movements between the driver’s side door and the center console of the vehicle as though moving something from one area to the pother. Accordingly, Deputy Witham asked Heard to step out of the vehicle and conducted an officer safety patdown search. As the defendant exited the vehicle, Deputy Witham observed a large amount of cash in the side pocket of the driver’s side door. At the same time, Officer Rosado approached from the passenger side of the vehicle and conducted a search of the front compartment. Officer Rosado testified that he did not open the door on the passenger’s side but was able to reach in and open the center console between the seats. Officer Rosado found in the console a Bryco .380 caliber semiautomatic handgun. When the officers confirmed that Heard had a prior felony conviction, they placed him under arrest.

Heard testified at the motion to suppress and confirmed that the reason given by the officers for his stop was that his music was too loud. He stated that he did not give consent for the search of his vehicle and that the console in the vehicle was closed. He testified that his “fidgeting” was him placing the vehicle in park and removing his seatbelt, and that the money in the driver’s side door was bond money he and his mother were raising to bail his brother out of jail. The court denied the motion to suppress, finding that the search was limited to the front compartment of the vehicle and therefore reasonable in light of the defendant’s furtive movement within the vehicle and the high crime nature of the area where the stop took place.

The matter was scheduled for trial on September 9, 2009. However, at the outset of the proceedings, Heard re-urged his motion to suppress in light of the United States Supreme Court’s recent decision in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), regarding searches incident to lawful arrests. The court proceeded with the motion to suppress and again heard testimony from Deputy Witham and Agent Rosado. Their testimony was substantively indistinguishable from the testimony on the prior motion to suppress with a couple of exceptions. When asked by the trial court about Heard’s demeanor during the stop, Agent Rosado described him as “nervous” and “uncooperative.” Both officers were also asked whether the defendant was handcuffed at the time his vehicle was searched in light of Heard’s reliance on Arizona v. Gant, supra, raised the potential relevance of that fact. Both testified Heard was not handcuffed.

After taking the matter under advisement, the trial court issued a written ruling in which it distinguished the holding in Arizona v. Gant, supra, both on the fact that the instant case did not involve a search incident to an arrest and the fact that Heard was not handcuffed at the time of the search of the vehicle. Finding that the search was reasonable as a protective search of the passenger compartment of a motor vehicle during an investigatory stop, the court again denied the motion suppress.

Heard came for trial on May 6, 2010. Prior to the taking of testimony, Heard stipulated to a prior felony conviction of simple burglary of an inhabited dwelling which was obtained via a guilty plea entered on June 4, 1998. Agent Rosado testified regarding the traffic stop, the discovery of the handgun and Heard’s arrest.

|4Heard testified that the vehicle belonged to his sister and that she had dropped it off at his mother’s home, where he resided, on the morning of the day of his arrest. Sometime between 11:00 a.m. and noon, Heard, his cousin, Jahari Laws, and his friend, Michael Lee, got in the vehicle to go to the store to buy some candy and chips. They then returned to the defendant’s home where Laws and Lee got out of the vehicle. Heard then traveled alone in the vehicle to his “cousin’s” house. He was on his way back when police pulled him over for loud music. He testified that he did not have his music turned up loud and made no movements, furtive or otherwise, within the vehicle. He testified that the console within the vehicle was closed at all times and that he had no idea there was a gun in there. Heard testified on one occasion that he had no knowledge of whose gun it was and on another that Laws had claimed to have put the gun in the console.

Heard’s mother testified that money found in the vehicle was money she had given the defendant to bail her other son out of jail. She further testified that the vehicle belonged to her daughter Madeline and that Heard never drove the vehicle. Madeline testified that she had dropped the car off at her mother’s home before leaving for Georgia with her fiancé. She did so in the event anyone needed to drive it, although it was her testimony that Heard had never driven her car.

Jahari Laws testified that he owned the handgun found in the car. He had purchased it for $50 several months prior to September 1, 2007, from an individual whose name he did not recall. He said that while visiting Heard, | -Jhey both got in Heard’s sister’s vehicle and went to the store. Laws, with the gun in his pocket, remained in the vehicle while Heard entered the store. Laws then decided he would go in the store too and put the gun in the center console. When they got back to the defendant’s home, Laws forgot to remove the gun from the console before the defendant left again.

In finding Heard guilty as charged, the trial judge found the evidence presented regarding Heard’s furtive movements between the driver’s side door and the center of the vehicle during the initial stop and the relatively small size of the center console in relation to the size of the gun as sufficient to establish at a minimum constructive possession of a firearm. The court also expressly found that the testimony of Heard, his mother, his sister and Jahari Laws was not credible. On June 1, 2010, Heard received a sentence of 12 years at hard labor without the benefit of parole, probation or suspension of sentence and a fine of $1,000 plus court costs. The instant appeal followed.

Discussion

Because Heard’s second assignment of error raises sufficiency of the evidence, it will be considered first since it may entitle the accused to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). See also, State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, unit denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Heard argues that the trial court erred in finding that he possessed the weapon because the state failed to present any evidence of actual possession [6or knowledge of its presence. Heard points to the officer’s testimony that the weapon was not visible until the officer opened the console and the officer’s admission that he never saw Heard open the console. Additionally, Heard points to the testimony of Laws for an explanation of the weapon’s presence in the vehicle.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, unit denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, unit denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529. See also, State v. Bowie, 43,374 (La.App.2d Cir.9/24/08), 997 So.2d 36, writ denied, OS-2639 (La.5/22/09), 9 So.3d 141 (same deference applies to bench trial).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La. App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 07-2053 (La.3/7/08), 977 So.2d 896.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566 and 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one |switness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La. App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35.

In order to establish the crime of possession of a firearm by a convicted felon, the state must prove the following elements: (1) possession of a firearm; (2) conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269, 271 (La.1983). Whether the proof is sufficient to establish possession under La. R.S. 14:95.1 turns on the facts of each case. Further, guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. State v. Johnson, 03-1228 (La.4/14/04), 870 So.2d 995, 998.

Constructive possession of a firearm occurs when the firearm is subject to the offender’s dominion and control. Louisiana cases hold that a defendant’s dominion and control over a weapon constitutes constructive possession even if it is only temporary and even if the control is shared. However, mere presence of a defendant in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession. Johnson, supra, 870 So.2d at 998-99.

In this case, the only issue raised regarding the sufficiency of the evidence is whether defendant had constructive possession of the handgun. [¡¡The state sought to show Heard’s actual and/or constructive possession of the gun upon the stop of the vehicle in which he was the sole occupant. In addition to being the only occupant of the vehicle, defendant was observed by Agent Rosado making furtive movements between the side door and center of the front passenger compartment of the vehicle. When Heard took the stand in his own defense, he offered no explanation for the large amount of cash found in the vehicle and denied making any movements within the vehicle. The trial judge rejected Heard’s testimony which directly contradicted that of Agent Rosado.

Likewise, the judge rejected the dubious testimony of Heard’s cousin, Jahari Laws, who claimed to have occupied the vehicle for approximately five minutes, in which time he placed a gun in the center console without the defendant’s knowledge and then forgot to retrieve it when he exited the vehicle. The time that Laws was in the vehicle according to Heard’s account would have been seven to eight hours before the traffic stop which occurred as Heard was later returning alone from his cousin’s house.

When viewed in the light most favorable to the state, this circumstantial evidence was sufficient to show beyond a reasonable doubt that Heard, who took control of his sister’s vehicle, was aware of the firearm and, consequently, had constructive possession of the weapon. Accordingly, this assignment of error has no merit.

Heard next argues that the trial court erred in denying the motion to suppress, claiming that the search of his vehicle was in violation of his Fourth and Fourteenth Amendment rights to be free from unreasonable |insearch and seizure. Heard argues that he clearly would not have felt free to leave while surrounded by officers at the back of the vehicle. Thus, he was placed under arrest. He argues that such arrest therefore resulted in a prohibited search of his vehicle under Arizona v. Gant, supra.

The right of every person to be secure in his person, house, papers and effects, against unreasonable searches and seizures, is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Tatum, 466 So.2d 29 (La.1985); State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168.

The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrantless searches under special circumstances. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the | nwarrant requirement. La. C. Cr. P. art. 703(D); State v. Johnson, 32,384 (La. App.2d Cir.9/22/99), 748 So.2d 31.

A lawful detention for questioning does not automatically give the officer authority to conduct a pat-down for weapons. State v. Sims, 02-2208 (La.6/27/03), 851 So.2d 1039. As the United States Supreme Court articulated in Terry v. Ohio, supra, “Even after a lawful investigatory stop, a police officer is justified in frisking the subject only under circumstances where a reasonably prudent man ... would be warranted in the belief that his safety or that of others was in danger.” Id., 392 U.S. at 27, 88 S.Ct. 1868.

In Michigan v. Long, 463 U.S. 1032,103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the rationale of Terry was extended to permit limited searches of the vehicle’s passenger compartment where a police officer has a reasonable belief based on “specific or ar-ticulable facts, which taken with rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. The United States Supreme Court held that a warrantless search of the passenger compartment of a vehicle is permissible if limited to those areas in which a weapon may have been hidden, if the officer possesses a reasonable belief “based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and the suspect may gain immediate control of weapons.” Id., 463 U.S. at 1049, 103 S.Ct. 3469. The Court noted that investigative detentions involving vehicles are especially fraught with danger to officers and rejected the lower court’s [12belief that it was unreasonable to suspect defendant could injure the officers because he was under their control and could not gain access to weapons in the vehicle. The Court reasoned that a suspect could break away from officer control and retrieve a weapon from the vehicle. Moreover, if the suspect is not arrested, he or she may be permitted to reenter the vehicle and have access to weapons, in which case the officer is particularly vulnerable because an arrest has not been made. Id., 463 U.S. at 1052, 103 S.Ct. 3469.

The Supreme Court’s recent decision in Arizona v. Gant, supra, on the other hand, revisited its prior opinion in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and noted that Belton had “been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Arizona v. Gant, 129 S.Ct. at 1718. The Court “rejected] this reading of Belton and h[e]ld that ... police [are authorized] to search a vehicle incident to a recent occupant’s arrest only when the arrestee [was] unsecured and within reaching distance of the passenger compartment at the time of the search.” Id. at 1719. Also noteworthy, however, the Court recognized the continuing viability of its holding in Michigan v. Long, supra, which it noted “permits an officer to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is ‘dangerous’ and might access the vehicle to ‘gain immediate control of weapons.’ ” Arizona v. Gant, supra, 129 S.Ct. at 1721.

| 1sThe evidence at the hearing on the motion to suppress showed that an investigative stop occurred which could have resulted in a minor traffic or other offense for the disturbance created by Heard’s loud music. The officers simply could have warned the defendant because of this minor offense. Heard does not dispute that a lawful traffic stop occurred or that enforcement officers are always justified in ordering the occupants out of a stopped vehicle. See, Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); and State v. Landry, 588 So.2d 345 (La.1991).

With the minor nature of the traffic stop and the attendant circumstances raising issues of safety, the search of the passenger compartment which then occurred clearly falls within the allowance under Michigan v. Long, supra, for an officer’s protective search. The defendant would be expected to reenter the vehicle, and yet the officers had observed specific facts providing them reasonable concern for their safety. The stop was made in a high crime area where patrols had recently been increased as a result of gun violence. Heard had exhibited furtive movements within the vehicle upon the stop. Heard was acting nervous when ordered out of the vehicle, and the officers noticed a large amount of cash in the side door pocket. Under these circumstances, the protective search for weapons was reasonable. The trial court’s denial of the motion to suppress was not error.

| uDecree

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.