author: PAUL A. BONIN, Judge.

text:
    Arlington C. TUGWELL v. PLAQUEMINES PARISH GOVERNMENT.
    No. 2014-CA-0657.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 2014.

      Arlington C. Tugwell, Sulphur, LA, Plaintiff/Appellant/In Proper Person.

      Rachel E. Linzy, The Kullman Firm, APLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   PAUL A. BONIN, Judge.

1¶ Arlington C. Tugwell seeks review of a decision rendered by the Plaquemines Parish Civil Service Commission affirming the disciplinary action — a five-day suspension — imposed upon him by the Plaque-mines Parish Government for causing a preventable accident that resulted in damage to a Parish owned dump truck. We note at the outset, however, that Mr. Tug-well does not deny the occurrence of the underlying accident, or that it was preventable. Rather, Mr. Tugwell argues that his - punishment was excessive and merits modification. For the reasons that follow, we affirm.

I

In this part'we discuss the facts underlying the Parish’s disciplinary action. The accident at issue occurred on the morning of Friday,. February 14, 2014. At this time, Mr. Tugwell was employed by the Plaquemines Parish Government as a Truck Driver II. Mr. Tugwell’s supervisor, Robert Jackson, instructed Mr. Tug-well to have his dump truck serviced in preparation for a job that was set to begin on the following Monday. Mr. Tugwell’s dump truck was parked tightly |2between two other trucks in the Parish’s vehicle yard. Mr. Jackson suggested to Mr. Tug-well that he first move one of the other trucks in order to make space for him to then move his own dump truck to where it could be serviced. Mr. Tugwell disregarded Mr. Jackson’s advice, ignored the other two trucks, and instead slowly maneuvered his dump truck out from between the trucks and into the service area. After his dump truck was serviced, Mr. Tugwell attempted to return it to its prior position by backing it into place between the two other trucks. On returning, however, Mr. Tug-well backed his dump truck into one of the adjacent trucks and damaged one of his vehicle’s side-view mirrors. It cost the Parish $263.00 to repair the broken mirror and resulted in the dump truck being out of service for several days.

Having found the accident to be preventable, the Parish issued Mr. Tugwell a written notice and suspended him for five days without pay in accordance with its Preventable Accidents/Incidents Policy. Specifically, the Parish enacted the policy on August 6, 2012, in response to an increasing number of backing-up accidents and rear-end collisions. The Parish’s written Policy statement explains its purpose accordingly:

The number of preventable accidents/incidents occurring each week is steadily increasing costing PPG [Plaque-mines Parish Government] thousands of dollars. The money spent on these accidents has a negative impact on PPG’s annual budget. Each dollar spent repairing a third party’s vehicle, a PPG unit that has been damaged by another PPG unit or on a third party bodily injury claim is one less dollar available to spend to provide services to Plaque-mines Parish citizens. While it is understood that accidents happen, many of the recent cases have been preventable, avoidable accidents which occurred thru operator error.

LThe Policy then sets out the consequences for its violation:

From this point forward, any employee who is involved in a preventable backing accident or preventable rear end collision is subject to be counseled by his/her superintendent and given 5 days off without pay. (Emphasis added.)

Mr. Tugwell was given a written copy of this policy and signed a statement on August 14, 2012, verifying that he had read it and understood its terms.

In connection with this policy, the Parish issued Mr. Tugwell a written notice on February 14, 2014, informing him that he was being given a five-day suspension to begin on February 17, 2014. Mr. Tugwell timely moved to appeal his suspension by filing a petition of appeal on February 28, 2014. Mr. Tugwell was then given a hearing before the Plaquemines Parish Civil Service Commission on April 16, 2014. At the hearing, the Parish introduced exhibits and elicited testimony from Mr. Tugwell, Mr. Jackson, and Wanda Buras, the Parish’s Human Resources Manager. Mr. Tugwell represented himself at the hearing, questioned the other witnesses, made a statement on his own behalf, and submitted to cross-examination. In short, Mr. Tugwell did not dispute the occurrence of the underlying accident, or whether it was preventable. Rather, Mr. Tugwell challenged only the severity of his penalty, contending that the nature of the accident warranted a lesser punishment. The Commission took the matter under advisement and denied Mr. Tugwell’s appeal by way of written findings issued on May 29, 2014. Mr. Tugwell then timely appealed the Commission’s findings to this Court.

Ji.II

The appointing authority — the employer of an employee in the classified civil service — is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. See La. Const. art. X, § 8(A); Lapene v. Department of Police, 11-0902, p. 3 (La.App. 4 Cir. 1/25/12); 81 So.3d 998, 1000. “Cause” for dismissal or discipline of such a person includes conduct prejudicial to the public service involved or detrimental to its efficient operation. See Bannister, 95-0404, p. 8, 666 So.2d at 647; Walters v. Department of Police, 454 So.2d 106, 113 (La.1984). The appointing authority has the burden of proving the impairment by a preponderance of the evidence. See La. Const. Art. X, § 8(A); Lapene, 11-0902, p. 3, 81 So.3d at 1000.

Based on the facts presented, a commission determines whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. See La-pene, 11-0902, pp. 3-4, 81 So.3d at 1000. The commission has a duty to decide independently from the facts presented whether the appointing authority has a good | fior lawful cause for taking disciplinary action and, if so, whether the punishment. imposed is commensurate with the dereliction. See Walters, 454 So.2d at 113.

Appellate courts reviewing civil service disciplinary cases are presented with a multifaceted review function. See Bannister, 95-0404, p. 8, 666 So.2d at 647; Walters, 454 So.2d at 113. Initially, deference should be given to the factual conclusions of the civil service commission. See Mathieu, 09-2746, p. 5, 50 So.3d at 1262. A reviewing court should apply the clearly wrong or manifest error rule prescribed generally for review of a commission’s factual findings. See Bannister, 95-0404 at 8, 666 So.2d at 647; Walters, 454 So.2d at 113. Then, the court must evaluate the commission’s imposition of a particular disciplinary action to determine if it is both based on legal cause and is commensurate with the infraction; the court should not modify the commission’s order unless it is arbitrary, capricious, or characterized by an abuse of discretion. See Bannister, supra; Walters, 454 So.2d at 114. “Arbitrary or capricious” means the absence of a rational basis for the action taken, while an “abuse of discretion” generally results from a conclusion reached capriciously or in an arbitrary manner. See Mathieu, 09-2746, p. 5, 50 So.3d at 1263.

Ill

Here, Mr. Tugwell does not contest the Commission’s factual finding that he caused the underlying accident or that it was preventable. Rather, Mr. Tugwell asserts that the discipline imposed upon him—which was based upon the Parish’s Preventable Accidents/Incidents Policy— was excessive and that the Commission | f,erred in upholding his five-day suspension. Mr. Tugwell argued, instead, to the Commission that his punishment should be based on Section 27, Section 1 of the Parish’s Safety Manual, which provides that “corrective disciplinary action ranges from an oral warning up to termination.” The Commission, however, denied Mr. Tug-well’s appeal in light of “the policy in effect at the time of the accident and the damage to Appellant’s truck.” We agree, and conclude that Mr. Tugwell’s five-day suspension stemming from the February 14, 2014 accident was based on legal cause and commensurate with the infraction. We now explain our opinion in more detail.

We note first that the record establishes that the Parish’s discipline of Mr. Tugwell was based on legal cause. The Commission expressly found that Mr. Tug-well’s “accident could easily have been prevented if [he] had moved the adjacent vehicle according to the discussion he had had with his superior.” It further found that this “was an avoidable accident which the policy was designed to eliminate.” The Commission observed that Mr. Tugwell “chose to move his vehicle without taking a reasonable precaution, and must bear the consequences of his decision.” The Commission also found that it cost the Parish $263.00 to repair the broken mirror on Mr. Tugwell’s dump truck and that the dump truck was out of service for several days while awaiting the mirror’s repair. Clearly, the Commission was correct in concluding that Mr. Tugwell’s actions—which resulted in the expenditure of public monies to repair the broken mirror and a loss of vehicle service hours—constituted conduct that was both prejudicial to the public | yservice and detrimental to its efficient operation. See, e.g., Davis v. Department of Police, 590 So.2d 850 (La.App. 4th Cir. 1991), which upheld a police officer’s fifteen-day suspension for causing a preventable automobile accident. The Commission, therefore, correctly concluded that Mr. Tugwell’s discipline was based on legal cause.

We also conclude that the Commission correctly found that the discipline imposed by the Parish upon Mr. Tugwell was commensurate with his dereliction. Noting that the policy at issue came about as a result of “numerous accidents where parish vehicles had been involved in avoidable accidents,” the Commission found that “these accidents had exposed the Parish to serious liability and involved litigation in court.” The Commission also found that “[i]n an attempt to reduce avoidable accidents, the parish instituted a written policy, dated August 6, 2012, where employees would be disciplined with a five-day suspension if they were at fault in an avoidable accident.”

Ms. Buras testified before the Commission that since the policy had been in force, preventable accidents had been greatly reduced. Ms. Buras also stated that the policy was applied uniformly to all employees, and that several employees had been disciplined with five-day suspensions for causing avoidable accidents. In his testimony, Mr. Jackson recalled three to four other employees who had received a five-day suspension for causing avoidable accidents. The evidence presented to the Commission, therefore, showed that the Parish applied the policy at issue consistently and uniformly.

| ^Having reviewed the record, it is clear to us that Mr. Tugwell’s actions fall directly within the ambit of the Parish’s Preventable Accidents/Incidents Policy. Mr. Tugwell’s accident was both preventable and of a type sought to be addressed by the Parish’s policy. Moreover, Mr. Tug-well’s actions forced the Parish to expend funds to repair the damage caused by the accident, and resulted in several days of lost use of the dump truck. Clearly, the Parish’s disciplining of Mr. Tugwell was neither arbitrary, capricious, or an abuse of discretion. See, e.g., Harris v. Department of Police, 08-0503 (La.App. 4 Cir. 2/11/09); 6 So.3d 225, where this Court upheld a police officer’s thirty-day suspension for causing a second preventable automobile accident. We, accordingly, conclude that the Commission correctly found that Mr. Tugwell’s discipline was commensurate with the infraction.

DECREE

The decision of the Plaquemines Parish Civil Service Commission upholding the Plaquemines Parish Government’s disciplining of Arlington C. Tugwell is affirmed.

AFFIRMED

      . Civil service provisions in the state constitution and the rules of the civil service commission are designed to protect career public employees from political discrimination by eliminating the "spoils” system. See La. Const. art. X, § 1, et seq.; Mathieu v. New Orleans Public Library, 09-2746, p. 4 (La. 10/19/10); 50 So.3d 1259, 1262. "Equally as important as protection of the employees is the appointing authority’s duty to undertake disciplinary action against an employee for legal cause that impairs the efficiency of the public service.” Mathieu, 09-2746, p. 5, 50 So.3d at 1262. See also Sumling v. Department of Health, 14-1423 (La. 11/7/14); 152 So.3d 134. "Just as great an injustice may arise from suffering the continuance of incompetent or insubordinate classified civil service employees in their positions as from wrongfully terminating the permanently classified civil service employee.” Mathieu, 09-2746, p. 4, 50 So.3d at 1262. Both concerns are fundamental to the purpose of the civil service merit system. See Bannister v. Department of Streets, 95-0404, p. 7 (La. 1/16/96); 666 So.2d 641, 646.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dameion A. GREENBERRY.
    No. 2014-KA-0335.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Chief of Appeals, Andrew M. Pickett, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appel-lee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

12Dameion Greenberry (“Mr. Greenber-ry”) appeals his conviction of sexual battery, a violation of La. R.S. 14:43.1(0(2), and contends that (1) the trial court erred by introducing inadmissible hearsay; (2) the trial court erred when it allowed the State to introduce other crimes evidence; and (3) he was deprived a fair trial due to prosecutorial misconduct during closing arguments. We find that Mr. Greenberry’s statement was admissible pursuant to La. C.E. art. 801(D)(2)(a) as a personal admission and therefore the trial court did not err. We also find the trial court did not abuse its discretion in allowing the State to introduce evidence that Mr. Greenberry violated a protective order as its probative value outweighed any prejudicial effect. Furthermore, this Court finds the prosecutor’s comments do not merit a reversal of Mr. Greenberry’s conviction and sentence, as Mr. Greenberry failed to show any reasonable likelihood that the comments influenced the verdict in this case. Accordingly, we affirm.

PROCEDURAL HISTORY

In July 2011, the- State indicted Mr. Greenberry with one count of sexual battery, a violation of La. R.S. 14:43.1(0(2) and one count of aggravated rape, a | .¡violation of La. R.S. 14:42(A)(4). Thereafter, the State filed its notice of intent to offer “other crimes” evidence.

In July 2013, the State elected to proceed to trial on the sexual battery charge only. At the conclusion of a two-day trial, the twelve-member jury unanimously found Mr. Greenberry guilty as charged.

In November 2013, the trial court sentenced Mr. Greenberry to forty-five years at hard labor, with the first twenty-five years to be served without benefit of parole, probation or suspension of sentence, sentence to be served concurrently with any other sentence, with credit for time served. Also on this date, the defense filed its motion for appeal, and the motions for new trial and reconsideration of sentence were denied.

FACTUAL BACKGROUND

Mr. Greenberry was charged with the sexual abuse of his live-in girlfriend’s ten year old daughter, J.W. The incident which triggered this prosecution occurred in April 2011, when Mr. Greenberry inserted his finger into the victim’s vagina.

Testimony of Victim’s Mother

L.T., the victim’s mother, testified that in addition to the victim, she also had an eight year old son, J.W. L.T. stated that Mr. Greenberry was her ex-boyfriend, |4and that she, the victim, and J.W. moved into his house in 2009. The house had two bedrooms. L.T. and Mr. Greenberry shared one, and the victim and J.W. occupied the other. L.T. said that in 2010, the victim told her that Mr. Greenberry touched her inappropriately. L.T. and the victim confronted Mr. Greenberry with the victim’s accusation, after which she and her children moved into an apartment. Sometime after the move, the victim recanted her accusation against Mr. Green-berry. Shortly after, L.T., the victim and J.W. returned to live with Mr. Greenberry. At that time, L.T. said she was employed, working an early morning shift, and that Mr. Greenberry was unemployed.

L.T. recalled that on April 3, 2011, she left the residence between five and six in the morning to report to work and returned about one or three in the afternoon. In speaking with the victim that afternoon, L.T. learned that the victim and Mr. Greenberry had been in Mr. Greenberry’s bed watching the television. The victim then told her that Mr. Greenberry “had touched her down there.” When L.T. confronted Mr. Greenberry, he told her he did not remember touching the victim. A few days later, the victim told L.T. that the first time Mr. Greenberry touched her, he performed oral sex on her. The victim also informed her that the April B, 2011 incident was the second time Mr. Green-berry touched her and that he digitally penetrated her vagina.

|SL.T. testified that she took the victim to the Child Advocacy Center and met with Ann Troy (“Ms. Troy”), a forensic nurse practitioner specializing in child abuse. L.T. recalled telling Ms. Troy that with regard to the victim’s accusation, Mr. Greenberry said: “It could be true. I was high on drugs. I don’t remember.”

On cross-examination, L.T. denied ever telling Ms. Troy that the victim told Mr. Greenberry to stop, but that he put his leg over her and his hand on her head to restrain her as he touched her. L.T. also denied telling the authorities that the victim told her Mr. Greenberry ordered the victim to roll around on him. Further, L.T. did not remember telling the authorities that the victim said when J.W. entered Mr. Greenberry’s bedroom, the victim followed J.W. back to their bedroom.

When asked about her feelings towards Mr. Greenberry, she stated she was conflicted and that she still had feelings for him. After Mr. Greenberry’s arrest on this charge, he telephoned her from jail, and the two spoke on more than one occasion. L.T. also said that on at least one occasion when Mr. Greenberry phoned her, he asked to speak with the children. L.T. admitted that after Mr. Greenberry’s arrest, she and the victim paid a visit to his then-attorney. The attorney met with the victim alone for a few minutes, after which L.T. entered the room. After the attorney visit, Mr. Greenberry continued to telephone her from jail, and when he did, he asked to speak to the victim; however, she could not recall the victim | f,speaking to him. L.T. said that she still had feelings for Mr. Greenberry, even at the time of trial.

On cross-examination, L.T. remembered meeting with the defense team’s investigator and telling him that she was abused as a child by her mother’s boyfriend.

On re-direct examination, L.T. said that she did not remember Mr. Greenberry blaming the 2011 incident on his being high on drugs. She explained that the notation in Ms. Troy’s notes was her (L.T.’s) comment, not Mr. Greenberry’s.

Testimony of Ann Troy

As part of the NOPD’s investigation, the victim and her younger brother gave recorded statements to the CAC. Ms. Troy, a forensic nurse practitioner specializing in child abuse, interviewed the victim in this case. At trial, Ms. Troy identified the victim’s Children’s Hospital medical records which included an emergency room record for the victim indicating that she was seen on April 5, 2011, noting that the victim presented with the complaint that her stepfather digitally penetrated her vagina two days prior, and that she experienced pain upon urinating. The emergency room personnel performed STD screening — HIV, syphilis, gonorrhea and chlamydia — and assessed the victim’s genital urinary area. Based upon the victim’s complaints, the emergency room personnel contacted the NOPD and Child Protection Services. Thereafter, the victim was referred to |7Children’s Hospital, where Ms. Troy met with the victim in May 2011. Ms. Troy recorded her interview with the victim which was played for the jury.

Ms. Troy indicated at trial that she concluded that the victim gave clear, detailed, spontaneous information about how Mr. Greenberry digitally penetrated her vagina. Ms. Troy did not detect any deception on the part of the victim. The physical examination performed by Ms. Troy indicated normal findings of the victim’s genital area. She explained that the finding was not unusual in this type of sexual abuse, as a child’s body quickly repairs itself.

After interviewing the victim, Ms. Troy spoke to the victim’s mother to gather what information she had concerning the incident.

After the victim’s mother testified, the State recalled Ms. Troy as a rebuttal witness. Ms. Troy indicated that part of her assessment of child abuse is speaking with the parent or guardian who presented the child for assessment. In this case, Ms. Troy spoke with the victim’s mother, out of the victim’s presence. She identified the notes she took during her conversation with the victim’s mother. The notes indicated that the victim’s mother told Ms. Troy that the victim told her that Mr. Greenberry inserted his finger into her vagina, and that he was sweating profusely when doing so. Further, Ms. Troy’s notes indicated that when she asked the victim’s mother what she did in reaction to the victim’s admission, the mother indicated that she confronted Mr. Greenberry and that he said: She’s probably not lying, but I don’t remember. “Did cocaine.”

| ¿Testimony of the Victim

At trial, the victim testified that J.W. was her younger brother; L.T. was her mother; and that the three of them no longer lived with Mr. Greenberry. She identified Mr. Greenberry as a friend of her mother and said that she, J.W. and L.T. lived with Mr. Greenberry in his house for a while. The victim testified that Mr. Greenberry and L.T. shared a bedroom, and the victim and J.W. slept in another bedroom.

When questioned about what happened to her, the victim stated: “I don’t feel comfortable saying it.” The victim remembered going to the CAC and speaking with someone there, and that the conversation was recorded. The State played the recording during which the victim identified herself. Further, she said that everything she said on the recording was true. After playing the interview for the jury, the State asked the victim what happened to her while she and her family lived with Mr. Greenberry. She responded that “something happened twice.”

She explained that the second incident occurred when she and Mr. Greenberry were in his bed under .the covers. Again, the victim could not verbalize what happened to her but did say that after it happened, she felt mad. With regard to the first incident, the victim stated she and Mr. Greenberry were in the kitchen. On that occasion, she told her mother what happened, and her mother was angry, spoke to Mr. Greenberry, and thereafter took her to the hospital. The victim recalled telling someone that the first incident did not happen but also said that was a lie. She explained that she told the lie because she wanted her mom and | nbiological father back together. The victim said that after the first incident, her mom was sad and crying, which upset her.

During cross-examination, the victim testified that after she told her mother what happened between her and Mr. Greenberry in the kitchen, she and her brother moved to their grandmother’s house for a while before returning to Mr. Greenberry’s house.

Testimony of Victim’s Brother

J.W., the victim’s eight year old brother, testified that Mr. Greenberry was his “stepfather.” He said that although he, his mother and the victim did not live with Mr. Greenberry at the time of trial, they had resided at his house for a few months. J.W. said he saw the victim and Mr. Greenberry in Mr. Greenberry’s bed on one occasion, and he said he thought that was weird because Mr. Greenberry was a grown man, while the victim was just a little girl.

The State then played J.W.’s interview conducted at the CAC wherein he explained to the interviewer that he witnessed his sister and-Mr. Greenberry in the bed together on the date of the incident.

Under cross-examination, J.W. testified that the day he saw the victim and Mr. Greenberry in bed, Mr. Greenberry was at the head of the bed, and the victim was at the foot of the bed. As J.W. left Mr. Greenberry’s bedroom, the victim got up and followed him into their bedroom.

| inTestimony of Mr. Greenberry

The defense called Mr. Greenberry to testify. L.T. and her two children lived with Mr. Greenberry in his house for approximately two years and were engaged to be married at one time. During the time L.T. and her children lived with him, the children viewed him as a father figure. He played with the children, did laundry and cooked for them. He said he was shocked when L.T. confronted him about the victim’s claim that he had abused her. He even requested that L.T. take the victim to the hospital for testing to disprove the accusation. He recalled that L.T. had mentioned to him that as a child she was sexually abused by her mother’s boyfriend, and that she frequently counseled the victim about what she should do if she were touched inappropriately.

Mr. Greenberry testified that he attended a family party until the early morning hours on the day of the incident and had been drinking. When he returned home, L.T. was preparing to leave for work, and she told him he would have to babysit her children. On that day, J.W. was punished and could not watch television, so Mr. Greenberry told the victim she could watch television in his room, which she did.

Referencing the jailhouse calls played for the jury, Mr. Greenberry acknowledged that on one of the calls he is heard to ask his mother to retrieve his gun. He stated he was concerned that the weapon might be stolen from his house during his absence. He said that during one call, he told his mother he was on drugs on the date of the incident, but that he was referring to his dependency onJ^Vicodin as a result of a knee injury. He further testified that his comment during one of the calls, that it was his fault not L.T.’s, referred to his bad habits, none of which L.T. shared. He also admitted lying to the police about his address when they contacted him to set up an appointment to speak with him. He explained that he just moved into his house and wanted to make sure it was presentable before he met with officers. Finally, he emphatically denied abusing the victim.

On cross-examination, Mr. Greenberry identified an Order of Protection bearing his signature, mandating that he not contact the victim or the victim’s family. He testified that he spoke with L.T. several times from jail and may have asked to speak with the victim, but he denied ever speaking with her. The State played a portion of Mr. Greenberry’s jailhouse calls in which he called L.T. a couple months prior to trial and told her to put the children on the phone.

Testimony of Magistrate Commissioner Robert Blackburn

The State then called Magistrate Commissioner Robert Blackburn as a rebuttal witness, who testified that one of his duties was authorizing the issuance of orders of protection. In the course of issuing a protective order, Commissioner Blackburn testified that he reviews with an accused the restrictions imposed by the protective order. The magistrate identified the protective order he signed in this case mandating that Mr. Greenberry have no contact with the victim or the victim’s mother, and that he not possess a firearm. He noted Mr. Greenberry’s signature on the fourth page of the order.

1 ^During cross-examination, Commissioner Blackburn explained that a stay-away order is issued for six months duration. He noted that the order in Mr. Greenberry’s case expired in December 2011, but he indicated that stay-away orders are usually intended to remain in effect until the resolution of a criminal prosecution.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

INADMISSIBLE HEARSAY

In his first assignment of error, Mr. Greenberry contends the trial judge abused her discretion by allowing the State to introduce inadmissible hearsay. Mr. Greenberry objects to the introduction of Ms. Troy’s unredacted report in which she made a handwritten notation that the victim’s mother said Mr. Greenberry told her: “[The victim’s] probably not lying [about the incident]. But I don’t remember. Did cocaine.”

Prior to trial, the defense filed a motion in limine, urging among other things, that the State be prohibited from introducing any physical or testimonial evidence regarding any rumors or innuendos concerning Mr. Greenberry’s past use of cocaine. To that end, the defense sought redaction of those portions of the victim’s medical reports referencing Mr. Greenberry’s drug use, in this case Ms. Troy’s handwritten notation.

At the pre-trial hearing on the defense motion, the State argued that it intended to introduce the statement as both proof of Mr. Greenberry’s state of mind |iaand as inculpatory evidence. Further, the State argued that it had provided the defense with notice pursuant to La.C.Cr.P. arts. 767 and 768. The trial judge denied the motion in limine and noted that she “perceive[d Ms. Troy’s notation] as a' double hearsay issue.”

On appeal, Mr. Greenberry claims that because Ms. Troy’s handwritten notation was not related to medical treatment or diagnosis, nor introduced as a statement against interest, and because his admission as to the use of drugs and that he could have abused the victim is not corroborated by any other evidence as required by La. C.E. art. 801(D)(1)(a), the notation was inadmissible hearsay.

Hearsay is defined by La. C.E. art. 801(C) as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” Generally, pursuant to La. C.E. art. 802 hearsay is excluded, “unless specifically provided by the Code of Evidence or other legislation ... because the value a jury places on a statement depends upon its declarant, and the defendant cannot challenge the declarant’s credibility by cross-examination or other safeguards of reliability if the declarant is not present at trial.” State v. Smith, 11-0091, p. 13 (La. App. 4 Cir. 7/11/12), 96 So.3d 678, 687; State v. Martin, 458 So.2d 454, 460 (La. 1984).

“A trial court’s ruling as to the admissibility of evidence will not be disturbed absent a clear abuse of discretion.” State v. Cyrus, 11-1175, p. 20 (La.App. 4 Cir. 7/5/12), 97 So.3d 554, 565. Also, “[a] trial court is vested with much discretion in determining whether the probative value of relevant evidence is 114substantially outweighed by its prejudicial effect” under La. C.E. art. 403. State v. White, 09-0025, p. 9 (La.App. 4 Cir. 9/16/09), 22 So.3d 197, 204.

A defendant’s own statement is not hearsay. See State v. Strickland, 94-0025, p. 22 (La.11/1/96), 683 So.2d 218, 229. In this case, L.T. initially testified that Mr.. Greenberry made the statement to her, and that she in turn relayed the information to Ms. Troy. Ms. Troy testified that L.T. told her that Mr. Greenberry made this admission. Mr. Greenberry’s statement was admissible under La. C.E. art. 801(D)(2)(a) as a personal admission. He testified at trial and denied making the statement. The complained-of testimony was not hearsay.

Nevertheless, even if the admission of the statement was erroneous, the admission of hearsay testimony is subject to a harmless error analysis. State v. Hugle, 11-1121, p. 19 (La.App. 4 Cir. 11/7/12), 104 So.3d 598, 613, citing State v. Wille, 559 So.2d 1321, 1331 (La.1990). The test for determining harmless error is whether the reviewing court may conclude the error was harmless beyond a reasonable doubt, in other words, was the guilty verdict actually rendered unattributable to the error. See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

On appeal and review of the record in this matter, even in the absence of the handwritten notation, there was sufficient evidence to convict Mr. Greenberry. | isL.T. testified that the victim complained to her that Mr. Greenberry digitally penetrated her vagina. The victim testified that Mr. Greenberry abused her, and she verified that the recording of her CAC interview was correct. J.W., the victim’s younger brother, corroborated that the victim and Mr. Greenberry were in bed together the day the incident occurred. In light of the evidence of Mr. Greenberry’s guilt, it is unlikely the complained-of- admission contributed to the jury’s verdict of guilty. This assignment of error is merit-less.

PRIEUR EVIDENCE

Additionally, Mr. Greenberry avers that the trial court impermissibly allowed the State to introduce “other crimes” evidence, specifically that Mr. Greenberry violated a protective order when he telephoned the victim’s mother from jail. Mr. Greenberry contends that the prohibition against his contacting the victim’s mother was a stay-away order instituted as a condition of bail, enumerating his obligations upon release from pretrial custody, which ultimately did not occur. He also argues that the order expired .prior to the time he contacted L.T., asking to speak to the children.

Generally, evidence of other crimes, wrongs, or acts committed by the defendant is inadmissible due to the “substantial risk of grave prejudice to the defendant.” State v. Prieur, 277 So.2d 126, 128 (La.1973). Under La. C.E. art. 404(B)(1), however, such evidence may be admitted for the purpose of showing “motive, opportunity, intent, preparation, plan, knowledge.... ” Evidence of other bad acts is not admissible simply to prove the bad character of the accused. La. |1fiC.E. art. 404(B)(1). Furthermore, the other crimes evidence must tend to prove a material fact genuinely at issue, and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Hatcher, 372 So.2d 1024, 1033 (La.1979).

Although a criminal defendant’s prior bad acts may be relevant and otherwise admissible under La. C.E. art. 404(B), the court must still balance the probative value of the other crimes, wrongs or acts evidence against its prejudicial effects before the evidence can be admitted. La. C.E. art. 403. “The probative value of the evidence must outweigh its prejudicial effect of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” State v. Henderson, 12-2422, p. 2 (La.1/4/13), 107 So.3d 566, 567-568.

“A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect.” State v. Henry, 11-1137, p. 9 (La.App. 4 Cir. 10/24/12), 102 So.3d 1016, 1022 writ denied, 12-2520 (La.4/26/13), 112 So.3d 838. “A trial court’s ruling as to the admissibility of evidence will not be disturbed absent a clear abuse of discretion.” State v. Williams, 12-0252, p. 20 (La.App. 4 Cir. 4/17/13), 115 So.3d 600, 611. Neither of Mr. Greenberry’s arguments under this assignment is persuasive. The document at issue is styled “Uniform Abuse Prevention Order”, and its purpose is clearly indicated to be prevention of abuse of the victim. The fact that the order also places restrictive conditions upon Mr. Greenberry in the |17event of release on bail is an extension of its protective intent. So long as Mr. Greenberry remained in custody, a “protective order” was not necessary. Moreover, nothing in the order, contrary to Mr. Greenberry’s contention, leads this Court to conclude that the recited restrictions were applicable only upon Mr. Greenberry’s release from custody. The stay-away order instituted as a condition of bail was sufficient to constitute a protective order under La. R.S. 14:79(A)(3). Under this portion of La. R.S. 14:79, there were no requirements for the entry or registry of an Abuse Prevention Order. The evidence shows that Mr. Greenberry had notice that he was under a court order to stay away and refrain from contacting the victim, and that he violated that order.

Mr. Greenberry’s claim that he did not contact L.T. until after the order expired in December 2011, is not supported by the record. Though she could not specify dates and times, L.T. did verify that Mr. Greenberry called her after his arrest and asked to speak to J.W. and the victim. Moreover, when asked about such calls, Mr. Greenberry did not deny making them. Instead, he stated: “I might have [done so].”

Even if the trial court erred in admitting evidence of “other crimes” or “bad acts”, the erroneous admission of other crimes evidence is subject to a harmless-error analysis. See State v. Maise, 00-1158, p. 8-9 (La.1/15/02), 805 So.2d 1141, 1147-48. An error is harmless if the jury’s verdict actually rendered at trial was “surely unattributable to the error.” Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081.

|1sAs discussed previously, there was substantial evidence of Mr. Greenberry’s guilt for the sexual battery of a juvenile in this case, and the evidence concerning the protective order did not contribute to the verdict. This assignment is without merit.

PROSECUTORIAL MISCONDUCT

In his final assignment, Mr. Greenberry claims he was deprived of a fair trial because of prosecutorial misconduct during closing argument. The scope of closing arguments of either defense counsel or the State, as provided in La. C.Cr.P. art. 774, shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and the law applicable to the case. The argument shall not appeal to prejudice. The State’s rebuttal shall be confined to answering the argument of the defendant.

In reviewing claims of improper arguments, Louisiana jurisprudence maintains that a prosecutor has wide latitude when making closing arguments, and that the trial court has broad discretion in controlling the scope of those arguments. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036. “[E]ven if the prosecutor exceeds these bounds, the court will not reverse a conviction unless ‘thoroughly convinced’ that the argument influenced the jury and contributed to the verdict.” Id., 99-0023, p. 17, 775 So.2d at 1036. “[P]rosecutorial misconduct must be so pronounced and persistent that it casts serious doubts upon the correctness of the jury’s verdict.” United States v. Rodriguez, 43 F.3d 117,124 (5th Cir.1995). The “reviewing court should accord credit to the good sense and fair-mindedness [19of the jury that heard the evidence.” Henry, 11-1137, p. 15 (La.App. 4 Cir. 10/24/12), 102 So.Sd 1016,1025.

Mr. Greenberry cites three instances of alleged prosecutorial misconduct during closing argument. He claims the prosecutor prejudicially referred to him as a “predator” and repeatedly told the jurors that they were “the only ones who could protect the victim from' the defendant.” The following occurred during closing arguments:

ADA: ... [the victim] goes to her mother when she was nine years old and says, [the defendant] touched me in my private part. Cries out to her mother. Her mother doesn’t protect her, but takes her in front of this predator ... Defense: Objection. Improper close is a violation of Article 774.
Court: Objection overruled.
ADA: Takes her in front of that predator and told her to repeat what she had just said. She goes and cries to somebody she thinks is going to protect her, but doesn’t get that protection.
ADA: ... and you heard from Ann Troy the cyclical sad nature of molestation. It is not a surprise to me that her mother chose to date a child predator. Defense: Objection ... violation of [La. C.E. art.] 774 ...
Court: Overruled.
ADA: It is absolutely no surprise that her mother went into the arms of a child predator. Having gone through this ... Defense: Renew objection ...
ADA: ... And, ladies and gentlemen. I go back to [the victim’s mother] because she is really part of the sad story for [the victim]. She is a woman who thinks that she protects her children. Yet you saw (sic) the testimony, the' victim cried out to her once. She should have known as a child abuse victim herself that that was enough. But she kept her child in the home_with a predator.
| j>ftADA: ... Momma’s not the one who called the police. Momma didn’t want her boyfriend arrested. I played a jail call for you from two months ago when she’s on the phone telling [the defendant]that [she] loves him. There really is no one left to protect this child.
And I’m speaking to all the mothers on this jury today. You in your gut know that [the victim’s mother] is not going to protect this child from [the defendant]. Each and every one of you mothers know that. There is no one left to protect this child but the thirteen of you are the only things that stand between [the victim] and [the defendant]. The thirteen of you are the only ones that can keep [the defendant] away from [the victim].
He is a man who was drug raged that April 3, 2011, morning on cocaine, had gone out drinking all night -long, had come home and saw his opportunity to do what he did. And this is a man that ... [the victim’s mother] said she still loved.
Ladies and gentlemen, the case is yours now. It is your duty to reach a verdict in the case. And as I indicated that the thirteen of you are now the sole protectors of. [the victim]. You all decide [the defendant’s] fate. But you also decide [the victim’s] fate.

After the prosecution completed its closing argument, the defendant moved for mistrial based on the foregoing comments. Upon motion of a defendant a mistrial shall be ordered when prejudicial conduct in or outside the courtroom makes it “impossible for the defendant to obtain a fair trial.” La.C.Cr.P. art. 775. However, a “[m]istrial is an extreme remedy and, except for instances in which the mandatory mistrial provisions of La.C.Cr.P. art. 770 are applicable, should only be used when substantial prejudice to the defendant is shown.” State v. Burton, 09-0826, p. 10 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, 1080 (quoting State v. Castleberry, 98-1388, p. 22 (La.4/13/99), 758 So.2d 749, 768). “[A] trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial.” State v. Leonard, 05-1382, p. 11 (La.6/16/06), 932 So.2d 660, 667. A trial court’s decision as to whether actual prejudice has occurred and whether a mistrial is warranted will not be overturned on appeal absent an abuse of that discretion. State v. Maxwell, 11-0564, p. 25 (La.App. 4 Cir. 12/21/11), 83 So.3d 113, 128.

121Mr. Greenberry cites State v. Moore, 414 So.2d 340, 347 (La.1982), as support for his argument that the prosecutor’s argument in this case, that the jury was responsible for protecting the life of the victim and so the jury should vote guilty, was improper and entitled him to a mistrial.

In Moore, the prosecutor stated:

... Today we’re here also to protect the innocence and the future victims of crime. Dennis Sloan is not an innocent person, neither is Arthur Stewart, Jr. and by no means is this defendant today, Alvin R. Moore, Jr. Let’s not forget who is the innocent party in this case. It’s Jo Ann Wilson, her child, Regina, her husband, Aaron, her mother and father and sister. They are the innocent victims of this tragic and terrible crime. Let’s not forget about these people because that’s what justice is about, not to forget about them.
She’s the innocent victim of this crime. And justice requires that you vote guilty and you vote for life when you do. The life of every one of us to walk the streets from this type of people. We’re voting for our lives, the lives of our families to be free from this type of activity. Thank you.

Although the foregoing comments are similar to those made by the prosecutor in this case, and the Supreme Court in Moore noted: “A prosecutor should avoid remarks predicting societal costs and consequences of a not guilty verdict”, the court concluded that in light of the overwhelming evidence of Moore’s guilt, it was unlikely the prosecutor’s argument contributed to the verdict. Id., 414 So.2d at 347. Similarly, the evidence of Mr. Greenber-ry’s guilt is overwhelming, and he failed to show how the prosecutor’s argument contributed to the verdict.

In Henry, supra, this Court held that the prosecutor’s reference to the defendant as a predator did not rise to the level of prosecutorial misconduct. Moreover, in State v. Kennedy, 05-1981 (La.5/22/07), 957 So.2d 757, the ^defendant argued that the prosecution made inappropriate comments during closing: (1) asking the jury to convict the defendant to protect the victim, and (2) calling the defendant a monster. The Supreme Court concluded that those remarks did not influence the jury or contribute to the verdict.

In the instant case, the bulk of the State’s arguments were fair statements of the evidence admitted and the lack of evidence to corroborate the defense’s theory of the case. Reading the prosecutor’s argument as a whole, and considering the entirety of the record, nothing Mr. Green-berry claims indicates that these remarks so influenced the jury that they contributed to the verdict. Given the traditional breadth accorded the scope of closing arguments by this Court, none of the comments would either individually or collectively merit reversing Mr. Greenberry’s conviction and sentence. See State v. Bridgewater, 00-1529, p. 33 (La.1/15/02), 823 So.2d 877, 903 (“animal” and “coldblooded killer” on the hunt for prey did not contribute to the guilty verdict). Because Mr. Greenberry failed to show any reasonable likelihood that the prosecutor’s comments influenced the verdict in this case, this assignment has no merit.

DECREE

For the foregoing reasons, we affirm Mr. Greenberry’s conviction and sentence.

AFFIRMED.

      . The victim’s date of birth is September 24, 2000.

      . The ten year old victim will be referred to herein as the "victim” to protect her privacy.
        See Rule 5-2 of the Uniform Rules — Courts of Appeal. Additionally, the victim's eight year old brother and the victim’s mother will also be referred to by their initials. J.W. and L.T., respectively, to protect their privacy.

      . The incident occurring on April 3, 2011, is the subject matter of the present appeal.

      . The Child Advocacy Center ("CAC”) is an organization that performs forensic interviews in child abuse cases. The CAC conducts the forensic interviews in a child-friendly environment to limit the number of times the child is interviewed by authorities and exposed to trauma during the investigative process.

      . La. C.E. Art. 801(D)(2)(a) provides in pertinent part:
      Statements which are not hearsay. A statement is not hearsay if ... [i]n a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness’ attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement.


author: COOKS, J. AMY, J.,

text:
    HOLLOWAY DRILLING EQUIPMENT, INC., et al. v. Danielle BODIN, et al.
    No. 14-248.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 26, 2014.
    Rehearing Denied Jan. 14, 2015.
    L. Clayton Burgess, Lafayette, LA, for Appellant, Holloway Drilling Equip., Inc.
    William E. Wright, Jr., Charlotte C. Meade, Deutsch, Kerrigan & Stiles, LLP, New Orleans, LA; for Appellee, Gregory Inzerella.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, MARC T. AMY, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   COOKS, J.

L FACTS AND PROCEDURAL HISTORY

Danielle Bodin (Bodin) was employed as a bookkeeper and runner by Holloway Drilling Equipment, Inc. and Holloway Equipment Rentals, Inc. (collectively “Holloway”) from 2002 to 2010. Holloway employed the CPA firm, Inzarella, Feldman and Pourciau, APC (Inzarella Firm) as its accounting firm during the years of Bo-din’s employment until Holloway terminated the Inzarella Firm’s employment in 2008. After ending its relationship with the Inzarella Firm, Holloway discovered a large discrepancy in the final bill from the Inzarella Firm. As a result, a dispute arose between Holloway and the Inzarella Firm regarding the final fee charged by the Inzarella Firm for its accounting services to Holloway. On March 26, 2009, Holloway and the Inzarella Firm signed a Receipt and Release Agreement resolving the billing dispute. The parties agreed that Holloway would pay, and the Inzarella Firm would accept, the sum of $12,000.00 as a full and complete payment of any monies owed by Holloway to the Inzarella Firm for its services. The Inzarella Firm claimed Holloway owed it $28,737.99 for its services. The Agreement was notarized by Bodin and was signed by Gregory J. Inzarella as President of the Inzarella Firm, and Rickey A. Holloway, as President of Holloway Drilling.

On March 11, 2010, Holloway filed suit against Bodin, her husband, Kyle Bodin (Kyle), and their business enterprise, Butterfly Bodies, LLC. Holloway alleged that Bodin, with the knowledge and assistance of her husband Kyle, had embezzled substantial sums of money from Holloway while in its employ. On February 7, 2011, Holloway amended its petition to add Iberia Bank Corporation as a defendant. On February 28, 2011, Holloway again filed a Supplemental and | ⅞Amended Petition adding as defendants “Eric Broussard, Individually, Inzarella, Feldman and Purciau, A Professional Corporation[,] and John W. Wright, Ltd., A certified Public Accounting Corporation.” Holloway alleged that Broussard, acting “individually and/or in the course and scope of his employment with Inzarella, Feldman and Purciau,” from “late 2002 through December 2008,” and “individually and/or in the course and scope of his employment with Wright from January 2009 through March, 2010,” as accountant for Holloway, had cooperated with and helped Bodin and her husband steal substantial sums of money from Holloway.

On April 19, 2011, the Inzarella Firm filed an exception of Res Judicata which was granted by the trial court. The trial court’s judgment granting the Inzarella Firm’s exception of res judicata was affirmed on appeal before this court in Holloway Drilling Equipment, Inc. v. Bodin, 12-355 (La.App. 3 Cir. 11/7/12) 107 So.3d 699, writ not considered, 13-251 (La.3/8/13), 109 So.3d 353.

On March 7, 2012, while the Inzarella Firm’s appeal was pending in this court, Holloway filed its Fourth Supplemental and Amending Petition adding Gregory In-zarella, individually, as a defendant in the matter alleging that he “as the owner and managing partner of the Inzarella Firm” acted “negligently and/or intentionally in assisting [Bodin] and/or [Eric] Broussard in” embezzling money from Holloway. On April 2, 2012, Gregory Inzarella, individually, filed a Peremptory Exception of Res Judicata asserting that the Receipt and Release Agreement of March 2009, bars Holloway’s action against him, individually, essentially for the same reasons this court found it barred recovery against the Inza-rella Firm. Holloway appeals, asserting the trial court erred in sustaining | ^Gregory Inzarella’s exception of res judi-cata and dismissing the action against him with prejudice.

LAW AND ANALYSIS

We have reviewed the trial court’s ruling on the exception of res judi-cata under the manifest error standard of review. State ex rel. Sabine River Auth. v. Meyer & Assocs., Inc., 07-214, 07-215 (La.App. 3 Cir. 10/3/07), 967 So.2d 585. After a thorough review of the law and jurisprudence, and a careful consideration of our learned colleague Judge John Saunders’ dissent in Holloway Drilling Equipment, 107 So.3d at 710-12, we conclude that we cannot agree with the majority’s finding and its reasoning in that opinion.

The language in the Receipt and Release Agreement made between Holloway and the Inzarella Firm in March 2009, which resolved the dispute over the final bill for the Inzarella Firms’ accounting services provided to Holloway, appears in the record as follows (emphasis added):

WHEREAS, IF & P has performed professional accounting services for CLIENT [Holloway] and for which IF & P has charged CLIENT the sum of $23,737.99 for said services; and
WHEREAS, CLIENT has disputed the amount of the said charges; IF & P does hereby accept the sum of $12,000.00, hereby paid and gives full acquitance for the same and for any further compensation arising out of its performance of professional accounting services heretofore completed.
As consideration thereof, the parties herein specifically release, acquit and forever discharge each other party, their agents, employee and assigns, from any and all actions, causes of action, or claims of every character, nature and kind, whatsoever, known or unknown^ past, present and future and all related expenses in connection with or arising from the relationship previously existing between the parties.
The parties enter into this compromise, receipt and release in order to put this matter to a full and final end and that the terms of the Receipt and Release are contractual and not a mere recital, and the [ ¿parties do hereby acknowledge that each fully understands the contents and ramifications of same.

The Louisiana Civil Code in Title XVII, entitled “Compromise,” defines and governs agreements such as the Receipt and Release Agreement signed by Holloway and the Inzarella Firm in 2009. Louisiana Civil Code Article 3076 (emphasis added) provides, “A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.” The revision comment(b) — 2007, which follows the article, states “Under this article, a compromise must clearly express the rights that the parties intended to settle.” By its express terms, this compromise agreement was for the sole purpose of amicably resolving a disputed bill for accounting services rendered by the Inzarella Firm to Holloway. The agreement clearly sets forth the singular basis for this compromise agreement, i.e., the disputed amount charged by the Inzarella Firm for its accounting services to Holloway. The agreement specifically refers to this singular billing dispute as “this matter” in describing the reason the parties were entering into this compromise agreement, i.e., to resolve a specifically identified dispute over the final amount owed to the Inzarella Firm for its services after Holloway discharged it. The broad language in the compromise agreement cannot rightly be employed, as our colleagues in the majority in Holloway Drilling Equipment, 107 So.3d 699-710, did, to include Holloway’s claims arising out of a criminal conspiracy to embezzle nearly two million dollars from Holloway. That matter is an entirely separate and distinct “matter” which is completely outside, separate and distinct from, the “matter” clearly identified within the four corners of the compromise Agreement at issue.

[KIn Reyes-Ramirez v. Progessive Security Insurance Co., 08-374, p. 3-4 (La.App. 3 Cir. 11/5/08), 996 So.2d 1213, 1216 (alterations in original) (emphasis added), writ denied, 08-2877 (La.2/6/09), 999 So.2d 784, this court discussed transaction and compromise and the manner in which a court determines the scope or extent of a compromise agreement:

A transaction or compromise, which is a contract which settles a dispute, can serve as the basis for an exception of res judicata. La. Civ.Code art. 3071; Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741. “A compromise settles only those differences that the parties clearly intended to settle.” La. Civ.Code art. 3076. Being a contract, a compromise is interpreted by determining the common' intent of the parties. La. Civ.Code art. 2045; Brown, 630 So.2d 741. ' “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046.
In Brown, 630 So.2d at 748 (citation omitted), the supreme court explained how a court determines the extent of a compromise agreement pursuant to La. Civ.Code art. 3073:
[A] compromise agreement extends only to those matters that the parties expressly intended to settle and ... the scope of the transaction cannot be extended by implication. More precisely, LSA-C.C. Art. 3073 set[s] forth the following four factors to be considered in determining the scope of a compromise instrument:
[1] Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties,
[2] whether it be explained in a general or particular manner,
| rJ3] unless it be the necessary consequence of what is expressed; and
[4] they do not extend to differences which the parties never intended to include in them.
The supreme court then observed that “the intent which the words of the compromise instrument express in light of the surrounding circumstances at the time of execution of the agreement is controlling.” Id.

It would indeed lead to an absurd consequence if the Receipt and Release agreement signed in 2009, which describes the matter being resolved as a billing dispute which arose when Holloway terminated the services of the Inzarella Firm in 2008, is interpreted as evidencing Holloway’s intent to release the Inzarella Firm, “its employee, agents and assigns,” from all liability arising as a result of Gregory In-zarella’s alleged participation in a scheme to steal nearly two million dollars from it. The wording of the Receipt and Release at issue indicates only that the parties intended to resolve the disputed bill and any cause of action or claim Holloway might have, known or unknown, regarding the disputed final bill. Nothing in the wording of the compromise agreement evidences any intention by Holloway to accept the Inzarella Firm’s agreement to settle its claim against Holloway in exchange for Holloway’s claim against Gregory Inzarella for participating in the criminal theft of nearly two million dollars from Holloway. That the two matters are distinctly different is too obvious for further comment.

Judge Saunders understood the application of Brown’s directions and the interplay between our Civil Code’s provisions regarding compromise agreements specifically, and contracts in general, along with the basis for a finding of res judicata. Judge Saunders explained as follows (emphasis added):

17A compromise agreement is the law between the parties and must be interpreted according to the parties’ intent. It follows that the compromise instrument is governed by the same general rules of construction applicable to contracts.
When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. [Louisiana Civil Code] Article 2046 emphasizes that the process involves no further interpretation, as opposed to no interpretation at all. Because a compromise extends only to those matters the parties intended to settle, the scope of the transaction cannot be extended by implication. In applying this rule of construction, courts are guided by the general principle that the contract must be considered as a whole and in light of attending events and circumstances.
The basis for barring a suit due to a compromise or settlement is res judica-ta.
[U]nder La. R.S. 13:4231, as amended in 1990 effective January 1, 1991, res judi-cata bars relitigation of a subject matter arising from the same transaction or occurrence of a previous suit. Thus, the chief inquiry is whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action.

Terrebonne Fuel & Lube, Inc. v. Placid Refining Company, 95-654, 95-671, p. 12 (La.1/16/96), 666 So.2d 624, 632. Holloway Drilling Equipment, 107 So.3d at 710-11 (alterations in original) (quoting Ortego v. State Dept. of Transp. & Dev., 06-1322. p. 7 (La.2/25/97), 689 So.2d 1358, 1363-64 (citations omitted)).

We, like Judge Saunders, recognize that Holloway in no way intended to settle its claims against Gregory Inzarella for his alleged participation in the criminal theft of its money when it agreed that it only owed the Inzarella Firm $12,000.00 for its services rather than the $23,737.99 originally claimed. Clearly the subject of the compromise settlement of 2009, and the subject of Holloway’s lawsuit against Gregory Inzarella and others does not arise out of the same transaction or occurrence. Likewise, we agree with the eloquent expression by | Judge Saunders that to allow the compromise agreement signed in 2009, to constitute res judicata barring Holloway’s claims raised in its suit commencing in 2010, is to “condone criminal activity” and “runs afoul [of] public policy considerations, the State’s clean hands doctrine, and the statutory and jurisprudential prec-edente]” We note the fact that the very Receipt and Release Agreement which Gregory Inzarella asserts as a bar to Hol-loways’ claims against him was signed by him, in his capacity as President of the Inzarella Firm, even while allegedly knowing he had participated in and covered up the theft of large sums of money from Holloway. We note too, the unsettling irony, and later admission by Bodin that she notarized the very Receipt and Release Agreement at issue knowing also at the time that she and her alleged accomplices had stolen large sums of money from Holloway by using their various positions of trust and access. For the reasons stated, we reverse the judgment of the trial court and remand the matter for further proceedings.

REVERSED AND REMANDED.

AMY, J., dissents and assigns reasons.

CONERY, J., dissents for reasons assigned by Judge AMY.

AMY, J.,

dissenting.

|,1 respectfully dissent from the majority opinion as I would affirm the trial court’s ruling on the exception of res judicata in light of Holloway Drilling Equipment, Inc. v. Bodin, 12-355 (La.App. 3 Cir. 11/7/12), 107 So.3d 699, writ not considered, 13-251 (La.3/8/13), 109 So.3d 353. Given the broad language of the receipt and release agreement, as discussed in that underlying appeal, I find no distinction between the earlier proceeding and this matter brought against the defendant in his individual capacity.


author: .DREW, J.

text:
    Lillie TACKER, Individually and on behalf of her minor Child, Chloie Yvainne Tacker, Plaintiff-Appellant v. LOUISIANA FARM BUREAU INSURANCE COMPANY and Pinky Tell, Defendant-Appellee.
    No. 49,522-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 26, 2014.

      Street & Street, Monroe, LA, by C. Daniel Street, for Appellant, Lillie Tacker, individually and on behalf of her minor child, Chloie Yvainne Tacker.
    Cotton, Bolton, Hoychick & Doughty, L.L.P., Rayville, LA, by John B. Hoychick, for Appellees, Louisiana Farm Bureau Casualty Insurance Company, Pinky Tell, Johnny Tell, and Jonvontae Tell.
    Before STEWART,' DREW and MOORE, JJ.
   .DREW, J.

liThe sole issue in this appeal is whether the trial court erred in rejecting Lillie Tacker’s claim for damages suffered in a motor vehicle accident. The trial court found that Tacker lacked credibility and failed to meet her burden of proof that she sustained any injuries in the wreck.

For the following reasons, the judgment is reversed in part and plaintiff is awarded special damages incurred on the date of this accident and modest general damages for her soft tissue injury. The judgment is affirmed in all other respects.

On November 2, 2010, Lillie Tacker and her minor child were in an automobile collision which was caused by the sole negligence of the other driver, Jonvontae Tell. Tell was driving a 1991 Geo south on Pelican Drive (the inferior street) and disregarded a stop sign as he entered North Main Street (the superior street) in Homer. Tacker was driving a 1992 Chevrolet pickup truck west on North Main and was struck by Tell’s. vehicle. The trial court correctly ruled that the accident resulted solely from the negligence of Tell. That ruling was not appealed and causation is not at issue in this appeal.

Plaintiffs lack of credibility is well supported throughout this record. Nonetheless, the record also reveals emergency room records from the date of the accident documenting that the attending physician observed muscle spasm and prescribed pain medications for her. For this reason, the | ¿judgment is reversed in part to award plaintiff $832.00 for medical expenses incurred the day of the accident and $1,500.00 for soft tissue injury sustained in the accident.

TRIAL AND EVIDENCE

The trial took place on February 7, 2014. The trial court found the accident was caused by Tell’s failure to yield and that Tacker was not at fault in the accident. Tacker presented special medical damages of $11,968.30 and sought damages for pain and suffering.

Plaintiff was in a second car crash on April 11, 2011. She complained of the sanie injuries from each wreck, though she also claimed that her chest was crushed in this second wreck. The medical records and X-ray showed no fractures.

Tacker often sought treatment at the emergency rooms (ER) of the Homer and Minden hospitals in the weeks between the two wrecks. During these visits, she never complained of injuries from the first wreck.

A review of the deposition testimony of the directors of the ERs at the Minden and Homer hospitals belies Tacker’s arguments on appeal that her evidence establishes her residual injuries from the accident at issue.

| sDr. Max Stell, director of the ER at Minden Medical Center, testified that on September 6, 2010, Tacker (who had a history of chronic headaches) sought relief for an acute headache with nausea and spotted vision at the Minden ER. Medical personnel administered to Tacker injections of Toradol (pain), Zofran (nausea), and Stadol (pain) plus a Lortab and a prescription for Lortab 7.5 mg (pain medication).

Dr. Donald Scott Haynes, director of the ER at Homer Memorial Hospital, testified that on November 2, 2010, the day of the collision, Tacker complained her neck, shoulders, and back were stiff and she was having difficulty moving her neck. She had neck pain and pain across her shoulders and in her mid-back. The attending physician observed no apparent injuries and found no abnormalities in a series of X-rays and the neurological exams. Following a diagnosis of cervical spasm, Tack: er was administered an injection of Tora-dol (nonsteroidal anti-inflammatory pain medicine) and prescribed Lortab with one refill and Flexeril (muscle relaxant).

Tacker went to the Minden ER on November 17, 2010, with complaints of severe lower abdominal cramping and pain, but no mention of neck or back pain. During this visit, the record noted discrepancies in information plaintiff told to the nurse (medication previously prescribed not helping) and the doctor. Tacker had been given a prescription for Lortab 10s five days previously but stated they were not working. The patient stated that “the Lortab 10s work fine when I can get enough of them in my |4system.” Dr. Stell stated Tacker exhibited red flags for “chronic pain” and “drug seeking behavior.”

The ER visits were continuing events.

Dr. Stell concluded that none of Tacker’s visits to the Minden ER were related to trauma or a vehicular accident. Any neck pain was related to |sher history of headache predating the wreck in question. He further attributed any back pain to her menstrual problems.

DISCUSSION

In Smith v. City of Shreveport, 46,596 (La.App.2d Cir.9/21/11), 73 So.3d 496, this court stated that Louisiana courts of appeal apply the manifest error standard of review in civil cases. The trial court’s findings of fact may not be set aside on appeal unless clearly wrong or manifestly erroneous, even where the court of appeal is convinced that it would have weighed the evidence differently and reached a different result. The issue to be resolved is not whether the trier of fact was right or wrong, but whether its factual conclusions were reasonable. If there are two permissible views of the evidence, the fact finder’s choice cannot be manifestly erroneous or clearly wrong. See, Rosell v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993).

While this court agrees with the trial court’s assessment that Tacker lacked credibility, we cannot overlook that on the day of the accident, the attending physician found no visible injuries but did treat Tacker as having sustained soft tissue injuries. Tacker sought no further medical attention for these injuries even though she frequently appeared in the ERs of Minden and Homer. She did not establish that any continuation of pain from these soft tissue injuries.

Based upon Tacker’s history of dissembling, the trial court denied her any recovery. While we certainly understand this action of the trial court, |6we are constrained to find that the court was clearly wrong on this issue. Tacker did, in fact, suffer some injuries in an accident not of her making. Considering the totality of this-record, we find that plaintiff is entitled to a minimal award.

Accordingly, we reverse the trial court in part. We award the plaintiff $832.00 for medical expenses incurred on November 2, 2010, the date of the accident. We further award $1,500.00 for soft tissue injuries suffered that date.

In all other respects, the judgment of the trial court is affirmed.

CONCLUSION

The trial court judgment is reversed in part to award special damages of $832.00 for medical expenses incurred the day of the first wreck. We also award $1,500.00 to compensate for any soft tissue injury sustained in the first wreck.

DECREE

With costs of the appeal assessed against the defendants, the judgment is REVERSED IN PART, AMENDED, AND, AS AMENDED, AFFIRMED.

      . Initially, Tacker sued for damages on her behalf and that of her minor child. Issues concerning the child were settled prior to the trial and are not before this court.

      . Named defendants were the owner of the Tell vehicle (Pinky Tell) and her insurer, Louisiana Farm Bureau Casualty Insurance Company. Subsequently, the driver and his father, Johnny Tell, were added as defendants.

      . On the date of the accident, Tacker incurred medical bills of $832.00 at the Homer ER.

      . Plaintiff damaged her credibility by securing a continuance of an earlier trial date by falsely alleging that her grandmother was dying. Plaintiff’s mother testified at trial that neither her mother, plaintiff’s paternal grandmother, nor anyone else that she knew of had been ill.

      . The trial court found that the second accident was much more serious than the first.

      . Tacker returned to the Minden ER on January 15, 2011, for stomach and low back pain associated with her menstrual cycle, plus chronic UTI.
      On February 9, 2011, Tacker again went to the Minden ER with menstrual cramping, for which she was given medication. At neither visit did she refer to neck pain or the November 2, 2010, motor vehicle accident.
      Tacker reported a headache "all over” beginning three days prior to her visit to the Minden ER on February 28, 2011. Tacker reported her past history to be occasional headaches and depression and did not report the wreck in November. At this visit, Tacker left prior to getting medication or discharge papers.
      On March 6, 2011, Tacker went to the Min-den ER and reported that she woke up with a headache and had a history of migraines, but made no mention of the auto accident. She received an injection of Demerol and Compa-zine.
      March 8, 2011: Tacker went to Homer ER, where she was diagnosed with a UTI and low back pain. She refused the offered injection of Toradol, stating that she did not want another shot in here and "that’s not gonna work,” according to the nurse’s notes.
      April 11, 2011: Tacker visited Homer ER, where she reported a motor vehicle collision, with neck, head and chest pain. The exam revealed no apparent injury but she was cautioned that soreness and stiffness might develop over the next two days. Hospital personnel injected Tacker with Demerol, a narcotic pain reliever, and prescribed a muscle relaxant.
      June 3, 2011: Tacker went to Homer ER with back pain, for which she was given a corticosteriod shot and prescribed a narcotic pain reliever.
      June 12, 2011: Again Tacker visited the Homer ER with headache, nausea, vomiting and back pain. Tacker receive a shot of narcotic Demerol for pain and Vistaril for nausea plus a Toradol shot, which is for pain and anti-inflammation.
      June 13, 2011: Tacker complained of nausea, vomiting and three-day-long headache at the Minden Medical Center ER with a past history of anxiety and headaches. She did not report back pain. Dr. Stell associated the reported neck pain with her headache. Tacker did not report either car accident. She was discharged with a prescription of Compa-zine for chronic complaints.
      July 25, 2012: She presented at the Minden Medical Center ER with pelvic pain associated with a hysterectomy. Tacker had pelvic pain, for which she was given a Lortab and discharged with medication for a chronic UTI.
      October 6, 2011: Tacker returned to the Homer ER with back pain, reporting that she was waiting for the results of an MRI set up by her lawyer. She was prescribed muscle relaxers and anti-inflammatories.
      December 28, 2011: Complaining of neck and upper back pain since injury in a November 2010 car crash, Tacker went to the Homer ER. She was prescribed Toradol and Ativan for muscle spasm.
      January 20, 2012: At the Homer ER, Tacker complained of back pain from a motor vehicle accident a year ago. She receive prescriptions for narcotic pain medication, muscle relaxers, and corticosterioid medicine for inflamation.


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Rickey JACKSON.
    No. 2014-KA-0655.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   DANIEL L. DYSART, Judge.

liThe State of Louisiana appeals a ruling of the trial court, which quashed the bill of information charging the defendant, Rickey Jackson, with one count of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. For the reasons that follow, we reverse the ruling of the trial court and remand for further proceedings.

BACKGROUND:

Rickey Jackson was arrested on August 24, 2012. A security guard detained him outside of an uptown bar after Jackson was observed standing on the corner near the bar holding a gun. Pursuant to 911 calls and a dispatch, a NOPD officer arrived on the scene several minutes later and found the defendant handcuffed by the guard. The guard had seized the gun from the defendant, and gave it to the officer when he arrived. The officer was unable to cock the gun to unload it at the scene. Later, personnel at Central Evidence and Property dismantled the gun with tools, and removed one spent casing. It was determined that there was no live ammunition in the gun.

The trial court heard testimony from the arresting officer at the preliminary hearing on December 12, 2012, and took the matter under advisement. Prior to the 1 gcourt’s ruling, the defendant filed a “Motion to Declare La. R.S. 14:95.1 Unconstitutional.” The defendant argued, that Louisiana’s felon dispossession law embodied in La. R.S. 14:95.1, did not pass strict scrutiny as provided for by the Louisiana Constitution, and that, therefore, the entire statute was constitutionally invalid.

At the hearing on January 18, 2013, the trial court found no probable cause holding that the weapon in question was inoperable. The trial court then quashed the bill of information finding that “... they [the State] didn’t use proper scrutiny in regard to this case.”

On January 25, 2013, the State filed a motion, requesting the court to reconsider its ruling, arguing that there is no requirement that a firearm be operable, and that the attorney general was not served as required when a defendant challenges the constitutionality of a state statute.

The trial court granted the motion to reconsider. The State filed a memorandum in opposition to the defendant’s motion to quash on March 8, 2013. On that same date, after hearing additional oral argument, the trial court reaffirmed its original ruling quashing the indictment, stating:

I am going to do exactly what I did in the other case, because I don’t think that the Statute [La. R.S. 14:95.1], itself, on its face, is unconstitutional. I think what it says is that you must use strict scrutiny. I think in this particular case you have a non-operative gun, and you have an amendment passed by the people of strict scrutiny, and I think that strict scrutiny applies here. So I would quash it because of these particular facts, and not the Statute as a whole.

This appeal followed.

1 .DISCUSSION:

A. Standard of Review:

Although a trial court’s ruling on a motion to quash will generally not be reversed absent an abuse of discretion, a trial court’s legal findings are subject to a de novo standard of review. State v. Hall, 13-0453, p. 11 (La.App. 4 Cir. 10/09/13), 127 So.3d 30, 39 (citing State v. Batiste, 05-1571, p. 9 (La.10/17/06), 939 So.2d 1245, 1251); State v. Smith, 99-0606, p. 3 (La.7/6/00), 766 So.2d 501, 504; State v. M.C., 10-1107, p. 10 (La.App. 4 Cir. 2/18/11), 60 So.3d 1264, 1270-71; State v. Roach, 10-0991, p. 4 (La.App. 1 Cir. 12/22/10), 68 So.3d 558, 560. The interpretation of a constitutional issue of law is reviewed de novo. Smith, 99-0606, p. 3, 766 So.2d at 504. However, in reviewing rulings on motions to quash where there are mixed questions of fact and law, a trial judge’s ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion. Hall, 13-0453, p. 11,127 So.3d at 39 (citing State v. Tran, 12-1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673, n. 3).

In the present case, the trial court’s decision to quash the bill of information was based on the 2012 amendment to La. Const. Art. 1, § 11 and La. R.S. 14:95.1 as applied to Jackson and the “particular facts” before it. The trial court specifically noted it was quashing the bill because La. R.S. 14:95.1 is subject to strict scrutiny review pursuant to the recent amendment and because the firearm was “non-operative.” The trial court additionally noted that it would not consider the defendant’s predicate offense of possession with intent to distribute cocaine because the conviction was over ten years old.

However, neither the State nor Jackson contest that Jackson was in possession of a firearm nor do they contest that the firearm was non-functional. |4Thus, as the operative facts were uncontested, the trial court’s ruling was not based on its findings of fact. See State v. Dixon, 13-0396, p. 7 (La. 4 Cir. 7/2/14), 146 So.3d 662, 666. Moreover, the Louisiana Supreme Court has reviewed “as applied” constitutional challenges under the de novo standard of review. See, State v. Draughter, 13-0914, pp. 4, 12 (La.12/10/13), 130 So.3d 855, 860, 865 (reviewing the defendant’s facial and as applied challenge to La. R.S. 14:95.1 de novo); State v. Eberhardt, 13-2306, p. 4 (La.7/1/14), 145 So.3d 377, 380, (in a consolidated case the Louisiana Supreme Court applied a de novo standard in addressing whether La. R.S. 14:95.1 is unconstitutional on its face and whether La. R.S. 14:95.1 is unconstitutional as applied to the defendants’ individual circumstances). As such, precedent requires that the de novo standard of review be applied to the case at bar.

B. Assignment of Error:

The State argues in its sole assignment of error that the trial court erred in granting the defendant’s motion to quash. We first note that the defendant did not submit a motion to quash to the trial court for consideration. Rather, the defendant filed a motion challenging the constitutionality of La. R.S. 14:95.1, arguing that the statute violated the 2012 amendment to Art. 1, § 11 of the Louisiana Constitution, which provides for a citizen’s right to keep and bear arms.

Irrespective of whether the defendant filed the motion to quash, the effect of the trial court’s ruling is that the bill of information was set aside, and the charges against the defendant were dismissed.

The State argues that the issue of whether La. R.S. 14:95.1 is unconstitutional as applied to this defendant was not before the trial court. The defendant agreed, stating in his appellee brief, “... in light of Hatton and Camese, [sthe district court could not find that § 14.95.1 is unconstitutional as applied in this case.”

In State v. Hatton, 07-2377 (La.7/1/08), 985 So.2d 709, the defendant filed a motion to quash in which he raised two constitutional challenges, one as to equal protection and one as to derogation of the right to present a defense. The trial court granted the motion, but on the ground that the statute violated the defendant’s rights of access to the courts and of the accused.

The Supreme Court granted the State’s writ, and prior to addressing whether the trial court had erred, discussed whether the constitutionality was properly raised in the trial court. The Court reiterated a previously established three-step analysis that must be employed to consider a constitutional challenge:

First, a party must raise the unconstitutionality in the trial court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of unconstitutionality must be particularized. Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-865. The purpose of these procedural rules is to afford interested parties sufficient time to brief and prepare arguments defending the constitutionality of the challenged statute. State v. Schoening, 00-0903, p. 3 (La.10/17/00), 770 So.2d 762, 764 (citing Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 865). The opportunity to fully brief and argue the constitutional issues provides the trial court with thoughtful and complete arguments relating to the issue of constitutionality and furnishes reviewing courts with an adequate record upon which to consider the constitutionality of the statute. Id.

Id., 07-2377, pp. 14-15, 985 So.2d at 719.

The Court went on to explain that the grounds for the challenge must be raised in a pleading and that the grounds must be particularized. Thus, “to properly confect a constitutional challenge, a party must raise the constitutional | tissue in the trial court by raising the unconstitutionality and the grounds outlining the basis of the alleged unconstitutionality in a pleading.” Id., 07-2377, p. 16, 985 So.2d at 720. Further, to allow the trial court to raise a challenge on its own or to allow a defendant to raise a challenge for the first time on appeal, denies the parties the opportunity to brief and argue the constitutional grounds. See Hatton, 07-2377, p. 18, 985 So.2d at 721. After finding that the defendant had properly raised his two constitutional challenges (equal protection and the right to present a defense), the Court found that the two constitutional bases on which the trial court based its ruling were not properly before it, as neither of those grounds were properly raised by the defendant in his motion to quash. Because the trial court’s ruling was based upon constitutional grounds not raised by the defendant, the Supreme Court held that the trial court erred in granting the motion to quash. Id., 07-2377, p. 17, 985 So.2d at 721.

The Supreme Court also addressed the issue of properly raising a constitutional challenge in State v. Camese, 11-2534 (La.9/12/12), 99 So.3d 636. In Camese, the trial court sua sponte raised and decided a constitutional challenge in favor of the defendant. Again, the Supreme Court found that because no party had raised a challenge, there was no opportunity to prepare and argue the issue before the trial court. The Court again ruled that it was error for the trial court to raise the issue on its own motion. Id., 11-2534, pp.

Here, the trial court found that the statute was not unconstitutional per se, but was unconstitutional as it applied to the facts of this case. The defendant argued that the statute was unconstitutional as it applied to him, but based on the 17fact that the predicate offense, possession with intent to distribute cocaine, was a non-violent offense. The trial court based its ruling on the fact that the gun in this case was non-functional.

Therefore, we find that the trial court improperly relied on grounds not raised by the defendant in finding the statute unconstitutional, and based on the prior rulings in Hatton and Camese, the trial court erred in quashing the bill of information.

Accordingly, we reverse the ruling of the trial court, and remand this matter for further proceedings.

REVERSED AND REMANDED.

      . The basis for the trial court’s ruling was that the defendant was deprived of his "constitutional right to access the courts” and "rights of the accused.”

      . Louisiana courts have held that La. R.S. 14:95.1 does not require that a firearm be operable at the time of the arrest for possession. See, State v. Loper, 10-0582, p. 5 (La. App. 1 Cir. 10/29/10), 48 So.3d 1263, 1267; State v. Felder, 36,228, p. 4 (La.App. 2 Cir. 8/14/02), 823 So.2d 1107, 1110; State v. Hill, 562 So.2d 12, 14 (La.App. 5 Cir. 1990).

      . The defendant raised the "as applied” challenge orally at the March 8, 2014 hearing. Thus, the challenge was not raised in a pleading, and the State did not have the opportunity to brief and prepare an argument.

      .This Court recently decided State v. Dixon, 13-0396 (La.App. 4 Cir. 7/2/14), 146 So.3d 662, in which it was held that La. R.S. 14:95.1 survives strict scrutiny and is not an unconstitutional infringement on a defendant’s right to bear arms, as it is narrowly drawn to achieve a public safety interest. Also see, State In Interest of J.M., 13-1717 (La.1/28/14), 144 So.3d 853; State v. Draughted 13-0914 (La. 12/10/13), 130 So.3d 855.