author: MADELEINE M. LANDRIEU, Judge. TOBIAS, J.,

text:
    SUCCESSIONS OF Dianna McNabb, Wife of/and Eldridge B. GONZALES.
    No. 2013-CA-0064.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 7, 2013.

      Irl R. Silverstein, David A. Silverstein, The Silverstein Law Firm, APLC, Gretna, LA, for Appellant.
    Jerald N. Andry, Andry & Andry, Jeanne Andry Landry, Arthur W. Landry, Jeanne Andry Landry, LLC, New Orleans, LA, for Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MADELEINE M. LANDRIEU, Judge.

|) Louise Thibodeaux Gonzales appeals the trial court’s May 21, 2012 judgment which dismissed her petition on the grounds of res judicata, finding that the matter had already been adjudicated by means of a prior district court judgment dated October 11, 2010. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Louise Thibodeaux Gonzales [“Ms. Gonzales”] was the wife of Eldridge B. Gonzales, Sr. at the time of his death on October 2, 1982. Cynthia Gonzales Pent-ney, Eldridge’s daughter by his prior marriage to Dianna McNabb, instituted this action in the 34th Judicial District Court for the Parish of St. Bernard on October 8, 1982, by filing a petition to be appointed administratrix of the successions of her father and mother (who had died in 1979), both of whom had died intestate (according to Ms. Pentney’s petition). Ms. Pentney further alleged that the only other child born to her parents was her brother, El-dridge Gonzales, Jr., who was a minor at the time. In November of 1982, Ms. Pent-ney was appointed administratrix.

lain 1983, Ms. Gonzales filed a petition as the surviving spouse of Eldridge Gonzales, Sr., to have the appointment of Ms. Pentney as the administratrix of his estate rescinded. Ms. Gonzales alleged that her husband had left a will designating her as executrix and leaving her a lifetime usu-fruct over his estate, which included their home and the property upon which it was located in St. Bernard Parish. Ms. Gonzales also sought to probate Mr. Gonzales’s statutory will. The record before us contains an order setting the matter for hearing on October 15, 1987. There is a lapse of more than twenty years where nothing appears in the record. The next pleading filed is Ms. Gonzales’s “Petition for Filing and Execution of Statutory Testament and for Usufruct” dated June 28, 2011.

In the interim, on August 5, 2005, Ms. Pentney and her brother (who by then had reached the age of majority) instituted a separate action, No. 105-100, assigned to a different division of the same district court, by filing a “Motion to Terminate Usufruct in Favor of Naked Owners.” In this action, entitled “Eldridge Bernard Gonzales, Jr., et al v. Louise Thibodeaux Gonzales,” the son and daughter of Mr. Gonzales acknowledged that their father’s second wife, Louise Gonzales, had been granted by testament the usufruct over certain immovable property (their family home) of which they were the naked owners. They further alleged that Ms. Gonzales’s usufruct should be terminated due to her abuse, neglect and ^abandonment of the property. On August 21, 2008, the district court entered a default judgment terminating Ms. Gonzales’s usufruct and recognizing the petitioners as full, unencumbered owners of the property. Ms. Gonzales brought a petition to annul the default judgment for lack of proof of service and alternatively, a motion for new trial. Ms. Pentney and her brother filed an exception of no right of action with regard to the petition to annul. A trial on the merits of the motion to terminate the usufruct and the exception of no right of action was held on September 8, 2010. On October 11, 2010, the district court in Case No. 105-100 rendered a written judgment maintaining the exception of no right of action, rejecting Ms. Gonzales’s claim as usufructuary, and recognizing the entitlement of Ms. Pentney and her brother to the full, unencumbered ownership of the property. No appeal was taken from this judgment.

Then, as previously stated, Ms. Gonzales in June of 2011 filed into the instant action (District Court Case No. 42-844, which had been pending since 1982 and dormant since 1987) a petition for the execution of Mr. Gonzales’s statutory will and for recognition of her usufruct over the family home. In her petition, Ms. Gonzales represented that she had lived in the home until it was made uninhabitable by Hurricane Katrina in 2005, and that she was seeking a judgment recognizing her as usufructuary in order to obtain a “Road Home:” grant to rebuild the residence. On August 31, 2011, Ms. Pentney and her brother filed an exception of res judicata based upon the prior judgment issued in Case No. 105-100. The trial court initially denied the exception on January 11, 2012 without giving ^reasons, but allowed the probate of the will to proceed. After a hearing on February 10, 2012, however, the trial court signed a written judgment on May 21, 2012 dismissing Ms. Gonzales’s petition. That judgment first declared that the parties had stipulated that Mr. Gonzales’s will be admitted to probate, and that the court could decide the issue of the ownership of the usufruct. The judgment further stated that: “the Judgment on Rule of October 11, 2010 in matter No. 105-100 of this Court bars the bringing of this action because the matter has been adjudicated and the exception of Res Judi-cata is maintained.”

Ms. Gonzales now appeals that judgment. _

STANDARD OF REVIEW/APPLICABLE LAW

The standard of review of an exception of res judicata requires an appellate court to determine if the trial court’s decision is legally correct or incorrect. R-Plex Enterprises, LLC v. Desvignes, 2010-1387, pp. 2-3 (La.App. 4 Cir. 2/9/11), 61 So.3d 37, 39 (citing Myers v. National Union Fire Ins., 2009-1517, p. 5 (La.App. 4 Cir. 5/19/10), 43 So.3d 207, 210). The Myers court further noted that “a final judgment has the authority of res judicata only as to those issues presented in the pleading and conclusively adjudicated by the court.” Myers, 2009-1517, p. 5, 43 So.3d at 210. The doctrine of res judicata is stricti juris and, accordingly, any doubt concerning the applicability of the principle must be resolved against its application. Id.

The doctrine of res judicata in Louisiana is set forth in La. R.S. 13:4231, which provides, in pertinent part:

| .^Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
* ⅝ * * *
3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The Louisiana Supreme Court has held that five elements must be satisfied for a finding that a second action is precluded by res judicata: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Chevron USA, Inc. v. State, 2007-2469, p. 10 (La.9/8/08), 993 So.2d 187, 194.

ISSUES

Ms. Gonzales asserts that the trial court erred by: (1) re-litigating the issue of res judicata after having denied the exception; (2) rendering judgment on issues that were not properly before it; and (3) maintaining the exception despite a lack of sufficient evidence to support the elements of res judicata as set forth above.

DISCUSSION

Ms. Gonzales first argues that the trial court violated the law of the case doctrine by re-litigating the exception of res judicata after initially denying it, even ^though the defendants had not filed a motion for new trial or a second exception of res judicata. We disagree.

The law of the case doctrine refers to “(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate court rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case.” Bank One, Nat. Ass’n v. Velten, 2004-2001, pp. 5-6 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 458 (quoting Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973)). Unlike the statutory doctrine of res judicata, however, the jurisprudential doctrine of law of the case is a discretionary guide that will not be applied inflexibly. Id., 2004-2001, p. 6, 917 So.2d at 459 (citing Petition of Sewerage and Water Bd., 278 So.2d at 83).

Thus, the law of the case doctrine should not bar reconsideration of a ruling that is palpably erroneous; nor should the doctrine be mechanically applied so as to accomplish manifest injustice. Id. In addition, Louisiana jurisprudence has recognized two other contexts in which the doctrine will not be applied, the first of which is present in the case before us. That is — the law of the case doctrine will not be applied to “supplant the Code of Civil Procedure provision which clearly permits a reconsideration of the overruling of peremptory exceptions.” Id., pp. 6-7, 917 So.2d at 459 (quoting Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 1094, 262 So.2d 328, 332-33). The exception of res judicata is a peremptory exception. See La. C.C.P. art. 927. Article 927 B lists res judicata as one of the 17peremptory exceptions that may be noticed by either the trial or the appellate court on its own motion. Moreover, because the denial of such an exception is an interlocutory ruling, it is not binding on the trial court under the law of the case doctrine. See Babineaux, supra, pp. 1092-93, 262 So.2d at 332. As this court has stated: “It is well-settled that prior to final judgment a district court may, at its discretion and on its own motion, change the result of interlocutory rulings it finds to be erroneous.” VaSalle v. Wal-Mart Stores, Inc., 2001-0462, p. 5 (La.11/28/01), 801 So.2d 331, 334 (citing Babineaux, supra).

We therefore reject Ms. Gonzales’s argument that the trial court was without authority to reconsider and/or reverse its prior ruling denying the exception of res judicata.

Secondly, Ms. Gonzales asserts that the trial court erred by rendering judgment on an issue that was not properly before it. She contends that the only issue raised by her petition was the probate of the statutory testament, which had been presented to the court in 1983. She further argues that such probate does not require a hearing, but is automatic under La. C.C.P. art. 2891, which provides:

A notarial testament, a nuncupative testament by public act, and a statutory testament do not need to be proved. Upon production of the testament, the court shall order it filed and executed and this order shall have the effect of probate.

She therefore contends that the trial court erred by reaching the issue of her entitlement to the usufruct.

Ms. Gonzales’s contention that her 2011 petition sought only the probate of her husband’s will is belied by the language of the petition itself. The petition is 18entitled “Petition for Filing and Execution of Statutory Testament and For Usu-fruct.” (Emphasis supplied). It concludes by stating:

WHEREFORE, Petitioner prays that:
1. The attached Last Will and Testament of ELDRIDGE BERNARD GONZALES be ordered filed, registered and admitted to probate, and
2. Petitioner be granted the usufruct for life or remarriage over all of the property of which ELDRIDGE BERNARD GONZALES died possessed and ownership and possession of the disposable portion of the community property of the marriage. (Emphasis supplied).

In view of this language, we do not agree that the sole matter before the trial court was the probate of the will. Moreover, as stated previously, the fact that the trial court had already ruled on the defendants’ exception of res judicata did not preclude the court from reconsidering that ruling. Finally, the transcript of the February 2, 2012 hearing in the trial court reflects that counsel for both parties assented to the trial court’s deciding the issue of res judi-cata, and thus of Ms. Gonzales’s entitlement to the usufruct. The May 21, 2012 judgment confirms that stipulation. We therefore find no merit to the appellant’s argument that the trial court overstepped its authority by deciding issues that were not before it.

Ms. Gonzales’s final argument on appeal is that the trial court erred by concluding, based upon the evidence before it, that the elements of res judicata were satisfied. In considering the issue, the trial court specifically ordered the parties to produce the record of case No. 105-100 for his review. The trial judge then listened to the arguments of counsel, but there was no other evidence offered. After examining the record containing the 2010 judgment, the trial court judge stated from the bench that he was convinced 19that the matter had already been litigated and the “res” had been determined; therefore, the 2010 judgment rejecting Ms. Gonzales’s claim to the usufruct and granting full, unencumbered ownership of the property to the defendants precluded re-litigation of that issue. We find no error in that conclusion.

A mere reading of the October 11, 2010 judgment leaves no doubt that the five elements of res judicata are all present in the instant case: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit (in this case, the ownership of the same exact property) existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence (in this case, the death of Eldridge Gonzales, Sr.) that was the subject matter of the first litigation. See Chevron USA, Inc. v. State, supra. No further evidence was necessary for the trial court to maintain the exception of res judicata. We therefore find no merit to Ms. Gonzales’s final assignment of error.

CONCLUSION

Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED.

TOBIAS, J.,

concurs in the result and assigns reasons.

lil respectfully concur in the majority’s decision to affirm the trial court’s ruling. I write separately, however, because I arrive at the same result following a different form of reasoning.

The records on appeal, being the proceedings in case number 42,884 on the docket of the 34th Judicial District Court for St. Bernard Parish, shows the following timeline of events:

• The successions proceedings were commenced on 8 October 1982 when Cynthia Gonzales Pentley (“Cynthia”) petitioned the court to be the admin-istratrix of the successions of her parents, Dianna McNabb Gonzales (“Dianna”) and Eldridge B. Gonzales (“Eldridge”).
• Letters of administration for both of her parents’ successions were issued by the clerk of court to Cynthia on 5 November 1982. See La. C.C.P. art. 282.
• On 27 May 1983, Louise Thibodeaux Gonzales (“Louise”) filed a petition to probate the last will and testament (in statutory form) of Eldridge dated 25 August 1982, requesting that the letters of administration granted to Cynthia be rescinded. (No indication appears of record that Dianna died testate; therefore, I conclude that an administration of her succession remained proper.)
• On 11 May 1983, in her capacity as administratrix of her parents’ succession, Cynthia filed a motion to cause Louise to turn over all succession property; a hearing on the motion was set for 27 May 1983. It appears that the hearing on the motion was continued without date on 17 May 1983 (and that the notation of the hearing was entered incorrectly on a proposed order that was never signed confirming Louise as testamentary executrix of Eldridge’s estate).
|¾* On 27 May 1983, Louise filed a petition to probate Eldridge’s 25 August 1982 testament and for letters testamentary together with a memorandum in opposition to Cynthia’s motion to turn over Eldridge’s succession property. Cynthia filed an answer to Louise’s petition on 17 June 1983.
• The matter then languished until 26 June 1987, when Cynthia filed a motion to set for trial on the merits. Reasoning from La. C.C.P. arts. 2852, 2853, and 2882 et seq., I conclude that Cynthia was attempting to set for trial the issue of whether Eldridge’s 25 August 1982 testament should be probated. A hearing on the motion was set for 15 October 1987. Apparently no trial occurred.
• The matter bearing case number 42,-884 then languished with no action until 28 June 2011, when Louise filed a petition for filing and execution of El-dridge’s testament of 25 August 1982. On the same day, Louise also filed the obviously Hurricane Katrina damaged original of Eldridge’s testament in the court for probate. The envelope in which the testament is enclosed bears a date of 28 June 2011.
• After the 26 June 1987 filing in case number 42,884, and more specifically on 5 August 2005, Cynthia and her brother, Eldridge Bernard Gonzales, Jr. (“Gonzales Jr.”), filed a new suit in the 34th Judicial District Court, bearing docket number 105,100. This suit was commenced as a “motion” to terminate Louise’s usufruct and alleged that Louise had abandoned the immovable property and dwelling in the Fernandez subdivision of Delacroix Island (hereinafter, “the property”) that had been owned by Dianna and El-dridge, and that Louise had disused, neglected and failed to care for the property to the “real detriment to the naked owners.”
• The record on appeal reflects no service of the 5 August 2005 “motion.” Hurricane Katrina struck the New Orleans area on 29 August 2005.
• On 10 August 2006, Cynthia and Gonzales Jr. filed a motion for default, alleging service of the motion on 22 August 2005. A default was granted on 18 August 2006 and a judgment confirming the default was entered on 21 August 2006; the judgment states that the judgment in case number 42,-884 that granted a life usufruct to Louise was “terminated and extinguished.” Of course, no judgment had been rendered in case number 42,884 granting Louise a life usufruct; and no judgment whatsoever had been rendered in number 42,884. The record does not reflect service of the judgment of 21 August 2006. I take judicial notice that the 21 August 2006 judgment confirming the default was prematurely entered in violation of La. C.C.P. art. 1702 A.
13* Louise filed a petition to annul the judgment on 10 July 2009. Cynthia and Gonzales Jr. filed an answer on 14 September 2009. Louise filed an “answer” to Cynthia’s and Gonzales Jr.’s motion filed on 30 March 2010, together with a motion for summary judgment to nullify the 21 August 2006 judgment and a motion for new trial (which I understand to be an alternative motion for new trial of the 21 August 2006 judgment).
• On 21 August 2010, Cynthia and Gonzales Jr. filed a first amended motion to terminate Louise’s usufruct that acknowledges that the property was community property of Dianna and Eldridge and thus Louise, Cynthia, and Gonzales Jr. were co-usufructuar-ies of the property. Further, Cynthia and Gonzales Jr. filed an exception of no right of action asserting that Louise had no right of action because she was never the usufructuary of the property.
• A “second” amendment of the exception of no right of action (the record reflects no first amendment of the exception) was filed on 21 September 2010 by Cynthia and Gonzales Jr., asserting that no will had been probated in case number 42,884, and that a right to do so prescribed under “LSA-R.S. 6651 [sic].” I understand the statutory reference to mean La. R.S. 9:5648. In 1982, section 5643 read as follows:
A proceeding to probate the purported testament of a deceased person is prescribed by five years, reckoning from the date of the judicial opening of the succession of the deceased.
Effective 1 September 1983, section 5643 was change to read:
The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession, or ten years after the date of death of the testator or testatrix, whichever first occurs.
Effective 15 August 1986, section 5643 was again changed and reads as it does now:
The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession of the deceased.
• The hearing of the peremptory exception of no right of action as amended was held on 1 October 2010 and a judgment rendered that day and signed on 11 October 2010 maintaining the exception, finding that Cynthia and Gonzales Jr. were the owners of the property unburdened by any usu-fruct. No appeal was taken from that judgment and thus it is final and definitive.
• On 28 June 2011, in proceedings 42,-884, Louise filed a petition for execution of the 25 August 1982 testament and to recognize thereunder Louise’s usufruct. Cynthia and Gonzales Jr. filed a peremptory exception of res judicata to the petition that was heard of 6 January 2012. The trial court denied the exception by judgment dated 11 January 2012.
L* A hearing was had on 10 February 2010 on whether Louise could probate Eldridge’s testament. The court ruled on 21 May 2012 that (a) the 25 August 1982 could be probated “subject to what, if anything Louise ..., could be sent into possession” and (b) the court could decide the issue of ownership of the usufruct of the property. Inconsistently, the court further granted Cynthia’s and Gonzales Jr.’s exception of res judicata, because, during the trial, the trial court directed that the record in case number 105,100 be brought to the court for the review. The trial court reviewed that record.
• From the 21 May 2012 judgment, Louise timely and devolutively appealed.

In spite of the unorthodox pleadings and procedures that have been filed and/or taken place in the trial court, I conclude that the result reached by the trial judge and the majority in this appeal is correct.

First, I note that La. C.C.P. art. 2893, following substantially the same history as that of La. R.S. 9:5843, read as follows until 1 September 1983:

The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession, or five years of the judicial opening of the succession on the deceased.

Until 15 August 1986 it read:

The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession, or ten years after the date of death of the testator or testatrix, whichever first occurs.

And it subsequently and now states:

The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession of the deceased.

It therefore follows that Louise cannot probate her late husband’s 25 August 1982 testament.

Second, it is readily apparent that the 25 August 1982 testament was never probated. It was not actually presented to the court for probate until 28 June 2011, and then in a substantially damaged condition as noted above, when it was delivered along with Louise’s petition of the same date. It is obvious that the |5testament has never been probated because La. C.C.P. art. 2882 has never been complied with because the trial judge’s paraph is absent from the face of the testament. La. C.C.P. art. 2893 bars the probate of the 25 August 1982 testament.

Finally, the trial court’s judgment of 11 October 2010 finding, in case number 105,-100, that (a) Louise had no right of action and (b) Cynthia and Gonzales Jr. were the owners of the property unburdened by any usufruct, is entitled to res judicata effect that cannot be set aside under La. R.S. 13:4231 or La. R.S. 13:4232. The entitlement of Louise to a usufruct of the property was definitively determined in the 2011 judgment and cannot be reopened.

      . It is impossible to discern from this record the date on which Ms. Gonzales first presented the will for probate. Her 1983 petition declares that the will is being filed "herewith for probate.” Her 2011 petition states: "On an unknown date, Petitioner did bring the will into this court and the will was examined by the judge and returned to her.” The exhibits to the record include the original 1982 will contained in an envelope dated June 28, 2011, indicating that Ms. Gonzales filed the will with her 2011 petition.

      . The record of case No. 105-100 was considered by the trial court in the instant action and was filed as a supplement to the record on appeal.

      . In her brief the appellant asserts four assignments of error, which we have consolidated into three issues for the purposes of this appeal.

      . Ms. Gonzales suggests in her brief that the elements of res judicata were not met because under the circumstances presented here, it is difficult to determine which action should be considered the "first” suit because the instant case was actually instituted in 1982, before the case that resulted in the judgment upon which the defendants based their exception. We decline to adopt such a hyper-technical interpretation of the judicial elements of res judicata. The fact situation presented here, involving a succession that was opened and then left dormant for more than twenty years, is unusual. For purposes of the exception raised here, we find it to be sufficient that the 2010 judgment preceded the judgment in the instant case, regardless of when each case was filed.

      . 1 note that the proceeding should have been commenced with a petition, not a motion, that required citation and service, for the issue was not a summary matter under La. C.C.P. art. 2591. Although article 2591 allows the use of summary proceedings to annul a probated testament, no testament had been probated. Nevertheless, the improper use of summary proceedings was never raised as an issue per La. C.C.P. art. 926 (the dilatory exception), and thus waived when the parties went to trial on the exception on the motion.

      . Cynthia and Gonzales, Jr. are naked owners of the property.

      . The explanatory note to the enactment of the section states:
      Adopted on the recommendation of the Louisiana State Law Institute to preclude any attack on the constitutionality of Art. 2893, LSA-Code of Civil Procedure, on the grounds that it is substantive rather than procedural.
      La. C.C.P. art. 2893 is discussed further infra.

      . The judgment denying the exception is an interlocutory judgment not reviewable on direct appeal.

      . La. C.C.P. art. 2882 states:
      At the probate hearing the court shall open the testament, if it is enclosed in a sealed envelope, receive proof of the making of the testament as provided in Articles 2883 through 2889, may read the testament to those present, and shall paraph the top and bottom of each page of the testament by inscribing it "ne varietur” over the judicial signature. [Emphasis supplied.]


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kevin TAYLOR.
    No. 2012-KA-0503.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 7, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

|, The defendant, Kevin Taylor, was charged by bill of information with simple burglary of an automobile belonging to Rebecca Paz, a violation of La. R.S. 14:62(A). He pleaded not guilty.

Prior to trial, the State filed a Prieur motion, noticing its intent to offer evidence of the defendant’s previous arrest for stolen property, as well as testimony regarding three other police reports wherein the defendant was arrested and found to be in possession of stolen property taken from several different automobiles. The defendant filed a Notice of Alibi, giving notice of his intent to present John Woods and Luis Lizama as alibi witnesses who would authenticate a time sheet and verify his presence at work on the date of the incident.

After numerous continuances, the case proceeded to a jury trial on January 11, 2011, at which time the defendant’s simple burglary charge was tried with other pending misdemeanor charges. On the first day of the trial, the trial court granted the Prieur motion and denied a request by the defendant for a continuance due to the non-appearance of Woods, his alibi witness.

^Following the trial, the jury returned a unanimous verdict of guilty as to the simple burglary charge. The trial court sentenced the defendant to twelve years at hard labor with credit for time served, to run concurrently with any other sentence.

The State filed a multiple bill of information charging the defendant to be a habitual offender, and the defendant filed a motion to quash the multiple bill. Following a multiple bill hearing, the trial court denied the motion, finding the defendant to be multiple offender. The defendant filed a writ application, seeking review of the trial court’s denial of the motion; this Court denied the writ as untimely. Following a sentencing hearing on the multiple bill, the trial court adjudicated the defendant a multiple offender, vacated his previous sentence and sentenced him to twenty-four years at hard labor with credit for time served, to run concurrently with any other sentence, pursuant to La. R.S. 15:529.1.

The defendant timely appealed.

The testimony of Rebecca Paz established that the previous year, she and her boyfriend were on Clio Street in New Orleans, Louisiana, assisting her boyfriend’s uncle, Greg Surry, with the opening of a restaurant. Paz recalled that when she parked her vehicle, the doors were locked and all of the windows were up. As Paz and her boyfriend were sweeping inside the restaurant, Surry, who lived across the street from the restaurant and had heard the sound of glass breaking, came over and alerted her that someone had broken into her vehicle. Paz testified that she ran outside to find that the window of her car had been smashed Lopen, and that her purse had been taken from her vehicle, which contained her digital camera, prescription medication (Amoxicillin), and In-visalign teeth trays.

Paz did not personally observe the burglary to her vehicle or hear the window break, although she was across the street from where her vehicle was parked at the time. Paz further testified that she did not see anyone running away from the vehicle, but became aware that a person whose name she did not know “said that they were chasing after somebody for me.” She did not observe the person chasing the perpetrator, but observed him coming back down the street. After standing outside for a few minutes, Paz called the police, but she could not recall exactly which items she had reported to the police as being stolen. Paz said that she did not know the defendant and had not given anyone permission to use her car.

Ryan Haigler testified that on the morning of July 18, 2009, around 11:00 a.m., he was at the intersection of Clio and Caron-delet Streets on his apartment balcony, which faced the intersection. While on his balcony, he observed a man sitting on the edge of a planter on the corner of Caron-delet and Clio Streets looking around very suspiciously for about three to four minutes. When asked what was suspicious, Haigler stated that “[p]eople don’t usually stop for a breather at that spot. It’s an unusual position to be sitting on the edge of a plant. And that’s why it took notice— took my notice at that time.” Haigler estimated that the man was approximately twelve feet away and that there was nothing obstructing his view of the man’s face. He recalled that the man was wearing “work clothes” that were “definitely a work uniform” and had a large purple bag. When asked whether he recalled if the man was wearing a vest, Haigler responded, “[the man’s clothing] |4was almost like a blue and — blue pants and maybe a — I don’t know. I can’t say as to a vest, you know. It’s been a while.”

Haigler observed the man get up and pick up his belongings and walk toward the direction of the victim’s automobile, which was parked in front of another apartment building that was across the street from his building, and “around the corner just a bit.” Immediately thereafter, he “heard a smash, a window break, something of the sort.” Haigler claimed that he was unable to see the window break because the man had crossed over to Clio Street where he could no longer see him from the balcony.

After hearing the smash of glass, Hai-gler ran downstairs and out of his apartment building, at which time he observed “the purple bag kind of going around the corner.” He estimated that it took him about thirty seconds to run from his balcony to the area in front of his apartment building, where he noticed that the man, heading against traffic on Carondelet Street, had “gone up by Martin Luther King by that point” and was “moving at a fast pace.” Haigler was unable to keep up with the perpetrator because he was barefoot. At that point, he relocated back to Paz’s vehicle and spoke to Paz. Haigler also spoke to police that same day regarding the incident. When asked if he recalled giving the police a description of the perpetrator as having short hair and a medium build, Haigler responded that he was not sure, stating, “I mean, short hair, yeah. Definitely like extremely short hair, if any at all.”

On August 28, 2009, Haigler was shown a photographic lineup by police, which he identified in court. He also identified the defendant in open court. According to Haigler, he immediately identified the defendant from the lineup and |fisigned the back of the photograph. He said that the officers never indicated which photograph he should choose from the lineup or offered him anything for making an identification, nor did they threaten, coerce, or intimidate him into making an identification.

Rebecca Begtrup, another victim of an automobile burglary, testified at trial and confirmed that her car window had been smashed in and that her cell phone charger, some currency, and some compact discs had been taken from her vehicle. Begtrup identified the items in open court and confirmed that she did not know the defendant or give him permission to enter her vehicle.

Officer Edward Davis testified that on June 28, 2009, he responded to the call of an automobile burglary that had been reported by Lauren Archer, meeting her at Tulane University, her place of employment. Archer reported that the automobile burglary had occurred on Delechaise Street. Officer Davis observed that the driver’s side front window was shattered. He played no role in the follow-up investigation of the burglary.

Christine Vo, the manager of the Magazine Street Pawn Shop, testified regarding the procedure used when an individual pawns an item at the shop. When an individual pawns an item, after a price is agreed upon, the customer must present a valid form of identification, and a receipt is generated listing the customer’s name and address. Vo authenticated a receipt in defendant’s name for a pawned Husqvarna model 445 chainsaw, including the serial number. The address listed for the defendant on the receipt was 8314 Chippewa Street, and receipt was signed by both the defendant and an employee of the pawn shop. | r,Although she recalled the transaction taking place, Vo did not specifically recall the defendant by his face and did not know if he had been a prior customer.

Det. Robert Barrere investigated the report of a burglary from a truck on Erato Street wherein a Husqvarna chainsaw and other items were stolen from the vehicle. As part of his investigation, Det. Barrere contacted the Magazine Street Pawn Shop, as well as other pawn shops, and learned that a Husqvarna chainsaw had been pawned at the Magazine Street Pawn Shop on the date that the burglary reportedly occurred. Det. Barrere was ultimately able to determine that the pawned chainsaw was the same chainsaw that was stolen from the truck in the Erato Street burglary, and he returned the chainsaw to its owner.

In addition to the Husqvarna chainsaw, other items were reported as stolen from the vehicle. Therefore, Det. Barrere and his supervisor relocated to the address listed on the Magazine Street Pawn Shop receipt as belonging to the defendant. After advising defendant’s mother, May Bell Taylor, that they were investigating a burglary, Ms. Taylor gave the officers permission to search the residence and directed them to the room used by the defendant. During the search, the officers observed numerous items that previously had been reported as stolen in the Sixth District area. The items included a Cobra radar detector; a cell phone charger that had been reported stolen by Rebecca Begtrup; a Saturn Ion CD case with the name Begtrup written on it; numerous credit cards bearing the name Lauren M. Archer; numerous gift cards; student identification cards and a health card in Rebecca Paz’s name; and a prescription pill bottle bearing Rebecca Paz’s name.

17After reviewing the police report that had been prepared by the responding officer, Det. Barrere subsequently compiled a six-person photographic lineup that included a photograph of the defendant and relocated to Haigler’s apartment building with Det. Matthew McCleary on August 28, 2009. Det. Barrere corroborated Haigler’s testimony regarding his immediate identification of the defendant from the photographic lineup.

Det. Barrere further testified that after meeting with Haigler for the photographic lineup identification, he relocated to the police station to prepare paperwork necessary to arrest defendant for simple burglary. Although he was not a responding officer on July 18, 2009, Det. Barrere read the report prepared by Officer Harper, the officer who initially handled the incident, before preparing his supplemental report. In the supplemental report regarding the burglary, Det. Barrere indicated that Hai-gler had provided a description of the defendant. However, because Det. Barrere was not a responding officer on the date of the burglary of Paz’s vehicle, he obtained Haigler’s description of the perpetrator from Sgt. Christopher Kalka, who spoke to Haigler at the scene. He recalled that his description of the perpetrator was “a black male, late 30’s, early 40’s. I don’t recall the clothing. I believe, you know, like a work vest, fluorescent work vest.”

When asked where he heard the term “work vest,” Det. Barrere responded that he believed he heard it from Sgt. Kalka pursuant to Sgt. Kalka’s interview with Haigler at the scene. Det. Barrere could not specifically recall whether there was a mention in the initial report of a fluorescent work vest, and he testified that to his knowledge, there was not mention of a fluorescent work vest in the initial report.

|sSgt. Christopher Kalka testified that he investigated an automobile burglary on July 18, 2009, and spoke to Haigler pursuant to his investigation. Sgt. Kalka’s recollection of Haigler’s description of the perpetrator was “a black male, very short hair, medium build, with dark brown complexion. He was wearing a navy blue basketball jersey, maybe like a LeBron James, Cleveland Cavaliers, basketball jersey, and jeans. But on top of the jersey, he wore a fluorescent yellow-like a work vest.” Sgt. Kalka further testified that he participated in the search of defendant’s residence, at which time “four fluorescent yellow work vests” were discovered.

Sgt. Kalka confirmed that although he reported to the scene at the time of the incident, Officer Harper wrote the initial incident report. Counsel for the defendant read in open court the description of the perpetrator in the initial police report, which did not specifically include a reference to a fluorescent work vest. Sgt. Kal-ka was also presented with a copy of a Sixth District crime bulletin attached to Officer Harper’s initial report. Sgt. Kalka testified that the purpose of this bulletin was to list missing property, to be on the lookout, and “just to notify everyone of some of the identifiable property that was taken and any perpetrator descriptions.” Sgt. Kalka read the description of the perpetrator in the bulletin in open court:

Okay. The only fields that are filled in [on the crime bulletin] are “Black male, medium build.” And the clothing description is listed as, “Blue sports jersey, blue jeans, short hair, with a backpack.” Height, weight, complexion, age, all of those, were left blank.

| aAfter the State rested, the defense called Luis Lizama, the Division Manager for IESI Southshore, a waste collection company. He confirmed that he knew the defendant, who was employed through a temporary agency with which IESI contracted. Although Lizama could not recall if the defendant was working on July 18, 2009, he confirmed that the defendant was employed by IESI on that date. He was not certain how long the defendant was employed by IESI.

Lizama further testified that he was not familiar with the defendant’s individual work schedule, and that he had no independent recollection or firsthand knowledge of the defendant working on July 18, 2009. He testified that waste collection trucks begin any one of sixty-five routes at various times of the morning and at different locations, generally six days per week, and that a shift is generally eight to ten hours. The routes encompass various municipalities in Jefferson Parish and St. Charles Parish; IESI did not provide service to New Orleans. After stopping at a landfill, the trucks return to the IESI facility at 500 Bridge City Avenue.

The defendant testified that he stayed with his mother at her house from time to time and confirmed that he was staying at his mother’s residence on August 28, 2009. The defendant confirmed that he pawned the chainsaw, but maintained that |1(lhe found the chainsaw in the garbage in Ken-ner near a school, but could not recall the name of the school. The defendant insisted that he would not have pawned the chainsaw if he had been aware that it was stolen. When asked where he stored the chainsaw upon retrieving it from the trash pile, the defendant stated that the truck had “a little box on the side, on the side of the truck where we could store our stuff.” He denied breaking into a vehicle at Car-ondelet and Clio Streets. When questioned regarding the items belonging to Rebecca Paz that were recovered at his mother’s house, the defendant testified that he had no idea how the items got there.

The defendant testified that on July 18, 2009, he was employed with AMI, a temporary service agency; that AMI had a contract with IESI; and that he was “on the Kenner route” and had reported to work at approximately 4:30 or 5:00 a.m. for his shift, which lasted four to five hours. The defendant testified that to work for IESI, he was required to fill out a time sheet, and to sign in and out; however, sometimes the driver would sign the time sheet. When questioned regarding his uniform, the defendant testified that he could wear whatever he wanted, except that “we must wear a vest. If we don’t, we cannot ride on that truck.”

The defendant confirmed that he had been convicted of other felonies, including a theft conviction in 1989; a conviction for burglary of an automobile in a 1994 incident; and a “conviction in 2008 dealing with heroin.”

The defense rested; however, defense counsel requested a continuance until John Woods could appear, which the trial court denied.

A review of the record evidences no errors patent.

InThe defendant’s third pro se assignment of error alleges that the evidence was insufficient to support his conviction. Accordingly, this assignment of error will be discussed first.

When reviewing the sufficiency of the evidence to support a conviction, this Court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which dictates that to affirm a conviction “the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 2002-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79. Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291, 1293.

When there is conflicting testimony about factual matters, the resolution of which depends upon a determination of credibility of the witness, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 94-1895 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078. The trier of fact determines the weight to be given the evidence presented. It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Helou, 2002-2302, p. 5 (La.10/23/03), 857 So.2d 1024, 1027.

| i2A fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Jackson v. Virginia, supra, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573-74. Where rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all evidence most favorable to the prosecution must be adopted on review. Only irrational decisions to convict by the trier of fact will be overturned. See State v. Mussall, 523 So.2d 1305, 1310 (La.1988).

Simple burglary is defined as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60.” This Court has recognized that “[t]o convict a defendant of simple burglary, the state must prove beyond a reasonable doubt that the defendant entered the structure or vehicle without authorization and had the specific intent to commit a felony or theft therein.” State v. Smith, 2006-0318, p. 5 (La.App. 4 Cir. 11/21/06), 946 So.2d 218, 221 (citing State v. Ewens, 98-1096 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 93). “Specific intent is a state of mind that need not be proven as fact but may be inferred from circumstances and the actions of the defendant.” State v. Smith, 2006-0318, p. 5, 946 So.2d at 221 (citing State v. Bailey, 00-1398 (La.App. 5 Cir. 2/14/01), 782 So.2d 22, 24).

11sThe defendant argues that Hai-gler’s testimony was unreliable, as he testified that he did not see the actual breaking of the car window, but only that he heard a smash and window breaking and investigated the noise. The defendant submits that La. R.S. 14:62 provides that the elements of simple burglary that must be proven are 1) entry into a structure; 2) that was unauthorized; and 3) the specific intent to commit a felony or theft therein. The defendant argues that Haigler’s testimony wherein he stated that he observed someone meeting the defendant’s description sitting across the street from his home was insufficient to establish that the defendant was the same person who burglarized Paz’s automobile. Furthermore, the defendant argues that the fact that Haigler testified that he saw a person with the defendant’s description running away from Paz’s vehicle after the sound of glass breaking was insufficient to establish that the defendant entered Paz’s vehicle.

The defendant further argues that when evidence is circumstantial, it must exclude every reasonable hypothesis of innocence. Defendant contends that this case is distinguishable from State v. Conner, 2008-0473, p. 6 (La.App. 4 Cir. 10/1/08), 996 So.2d 564, 568, wherein the victim testified that she witnessed the defendant smash her car window, reach into her car, and remove the bag that was on the seat next to her.

In this case, the State presented the jury with testimony from Haigler, who testified that at the time of the incident he was at the intersection of Clio and Caron-delet Streets on his apartment balcony, which faced the intersection. While on his balcony, Haigler observed, from only twelve feet away, “a man sitting on the edge of a planter on the corner of Caron-delet and Clio looking around, you 114know, very suspiciously” for about three to four minutes. Notably, Haigler testified that he had an unobstructed view of the man’s face for the three to four minute period that he was watching the man. Haigler recalled that the man was wearing “work clothes” that were “definitely a work uniform” and that the man was carrying a large purple bag.

Haigler observed the man stand up with his belongings and walk towards the direction of Paz’s automobile, which was parked in front of a building that was across the street and “around the corner just a bit.” Immediately thereafter, Hai-gler “heard a smash, a window break,” but could not see the man at the moment of the window breaking because the man had moved out of his line of vision. Haigler testified that after hearing the smash of glass, he ran downstairs and out of his apartment building, at which time he observed “the purple bag kind of going around the corner” at a fast pace and heading against traffic on Carondelet Street towards Martin Luther King Boulevard.

Upon being shown a photographic lineup by the police, Haigler immediately identified the defendant as the man he observed sitting suspiciously on the planter before hearing the sound of glass breaking. Hai-gler also made an identification of the defendant in open court at trial.

Additionally, the State presented the jury with evidence of items that Paz had specifically reported as stolen from her vehicle that were discovered during the detectives’ search of defendant’s room, including student identification cards, a health card, and a prescription pill bottle bearing Rebecca Paz’s name, as well as various other items that had been reported as stolen in other recent automobile burglaries. Considering the evidence presented to the jury at trial, viewed in a light 115most favorable to the State, the jury could conclude that the defendant was guilty of simple burglary of Paz’s automobile. See State v. Conner, 2008-0473, p. 6, 996 So.2d at 568. This assignment of error lacks merit.

In the first assignment of error, the defendant asserts that the trial court abused its discretion in denying a continuance due to the absence of John Woods, his alibi witness.

La.C.Cr.P. art. 707 governs motions for continuances in criminal cases and provides:

A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.

La.C.Cr.P. art. 709 governs the procedure for a motion for continuance based upon the absence of a witness and provides, in pertinent part:

A. A motion for a continuance based upon the absence of a witness shall state all of the following:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

| ,fiLa.C.Cr.P. art. 712 provides that “[a] motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.”

In State v. Duplessis, this Court recognized that for a defendant to demonstrate prejudicial error, a defendant must demonstrate that the absent witness’ testimony would have been favorable to the defense as well as the possibility of a different result if the witness were to testify:

The right of a defendant to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. This right is embodied in both the federal and state constitutions and in this state’s statutory law. State v. Lee, 446 So.2d 334 (La.App. 4th Cir.1984); United States Constitution, Amendment 6; La. Const. Art. I, sec. 16 (1974); La.C.Cr.P. art. 731.
However, in State v. Nicholas, 97-1991 (La.App. 4 Cir. 4/28/99), 735 So.2d 790, this Court stated that this right does not exist in a vacuum, and a defendant’s inability to obtain service of requested subpoenas will not be grounds for reversal of his conviction or new trial in each and every case. In order for a defendant to show prejudicial error, he must demonstrate that the testimony of the absent witness would be favorable to the defense and would indicate the possibility of a different result if the witness were to testify. See also, State v. Green, 448 So.2d 782 (La.App. 2 Cir.1984).
Prejudicial error arises where the absent witness is “vital” to the defense. State v. Peterson, 619 So.2d 786, 790 (La.App. 4 Cir.1993).

State v. Duplessis, 2000-2122, pp. 12-13 (La.App. 4 Cir. 3/28/01), 785 So.2d 939, 947 (emphasis added).

| ,7As previously noted, counsel for the defendant moved for a continuance after the sidebar conference during Lizama’s testimony, at which time the trial court sustained the objection to the introduction of an unauthenticated document. However, defense counsel did not indicate on the record specifically which witness was needed to authenticate the document:

[Counsel for the defendant]:
Is there a ruling of the Court on this issue?
THE COURT:
The Court [is] going to sustain the State’s objection to that document.
[Counsel for the defendant]:
Your Honor, I would ask that the trial be continued until we can get someone here [to] authenticate the document.
THE COURT:
All right. The Court is going to deny the request for a continuance.
[Counsel for the defendant]:
And I will also put my intent to seek a supervisory writ in this matter, your Honor, and request a stay of these proceedings..
THE COURT:
Notice of intent to take writs noted. Stay denied.
[Counsel for the defendant]:
Okay. And note the defense’s objection, your Honor.
THE COURT:
Defense objection is noted.

Immediately prior to the close of trial, counsel for the defendant orally moved for a continuance specifically due to John Woods’ absence:

[Counsel for the defendant]:
If Mr. Woods hasn’t checked in, then I have no further witnesses, your Hon- or.
| iSThe Court:
Defense rests, subject to its introduction of its documents, D-One and Two?
[Counsel for the defendant]:
Yeah. And I would once again request a continuance and to leave the case open until I can have a chance to have Mr. Woods appear.
The Court:
Motion for continuance is denied. Has Mr. Woods checked in personally today?
[Counsel for the defendant]:
Not to me.
The Court:
All right.
[Counsel for the defendant]:
If Mr. Woods [has] checkfed] in with anyone, I don’t know.
The Court:
State, any witnesses in rebuttal?

After the close of trial and the jurors had been excused from the courtroom, the trial court allowed defense counsel to indicate on the record the need for John Woods’ testimony, which had apparently been discussed at the sidebar conference during Luis Lizama’s testimony:

THE COURT:
All right. We’ll finish the judge trial [on the misdemeanor charges] on the 28th. And just preserving something, we did it at sidebar during the trial, but just to make the record complete out of the presence — now that the jury has been dismissed — regarding the proffer of D-Three, that being the time sheet. And just allowing you to put something and the record and the State to counter that, so that the record bears out on appeal—
[Counsel for the defendant]:
Yes, your Honor. Thank you. The defense had intended, obviously, to present an alibi witness. That alibi witness was to be verified by a time sheet showing that he was at work at the time. That hatime sheet was authored by a man named John Woods, who was under subpoena to be here today. He’s been under subpoena since August to show up.
I believe he did show up once early on in the trial setting. However, he did not show up today. His mother came in and said that he hasn’t been home for a few days. She hasn’t seen him.
I requested a continuance or a stay of the proceedings until such time as we could get him properly served and brought to court. This was a crucial piece of evidence that would have established an alibi for Mr. Taylor. And I attempted to get that time sheet in through another employee, a manager of the company named Luis Liza[m]a. The Court denied my request to do so.
So what — we object to the Court’s ruling on that. I do intend to seek a writ pre-sentencing. And that’s my record.

After the State presented its arguments, the trial court stated its reasons for sustaining the State’s objection to the document, which was not an original copy of the document and had a handwritten date, but no year:

And the Court’s ruling was based on that, its review of the proffered document, that being a time sheet [R. 59-60]. It was not an original. It looked like a Xeroxed filled-in sheet. It did not even have a year on it. It had handwritten “July 18th,” but no year on it.
And, again, Mr. Liza[m]a could not testify that he was either the bookkeeper or the time sheet custodian or any other type of link to the document which would, A, verify that that document was, in fact, an IESI or a temp agency document and [B,] that that document had been generated by the agency.
And, therefore, without any foundation for its admissibility, the Court sustained the State’s objection to that document being put before the jury, as the Court felt it would mislead or confuse the jury. And, again, there was no foundation for its being validated or authenticated as a true document from that company.

The defendant argues that the requirements of La.C.Cr.P. art. 709 are met because John Woods’ status as an alibi witness satisfies the first requirement of the Article (the motion shall state facts to which the absent witness is expected to 120testify, the materiality of same, and the necessity for the witness’ presence at trial), while the fact that Woods was subpoenaed for trial satisfies the latter two requirements (facts demonstrating that the witness will be available at the time to which trial is deferred and facts showing due diligence was used in the effort to procure the attendance of the absent witness). The defendant argues that the trial court’s denial of his request for a continuance without reasons violated his Sixth Amendment right to compulsory process as well as a right to a fair trial.

The State contends that in orally requesting a continuance, the defendant failed to state the substance of Woods’ expected testimony and therefore did not demonstrate either the materiality of his testimony or the necessity of Woods’ presence at trial. Additionally, the State contends that the defendant did not establish a reasonable probability that Woods would be available at the time that the trial would have been continued, nor did the defendant establish due diligence in his efforts to procure Woods’ presence for trial. Accordingly, the State submits that the trial court did not abuse its discretion in denying the defendant’s request for a continuance.

A review of the record indicates that the defendant failed to meet all three of the requirements of La.C.Cr.P. art. 709. Although counsel for the defendant represented to the court that Woods was an alibi witness, and arguably set forth “[fjacts to which [ Mr. Woods] is expected to testify,” as well as the alleged “materiality of the testimony and the necessity for the presence of [Mr. Woods] at the trial,” the other two elements of the Article were not met in this case. See La.C.Cr.P. art. 709.

| ⅞1 Specifically, La. C.Cr.P. art. 709(A)(8) was not met because the defendant did not demonstrate to the trial court “[fjacts showing due diligence used in an effort to procure [his] attendance.” Id. The record indicates that one writ of instanter for Woods was filed on either August 20, 2010, or August 28, 2010, for the original August 25, 2010 trial date, and that a second writ of instanter for Woods was filed on January 11, 2011, the date of trial. However, this evidence alone is insufficient to demonstrate due diligence to procure Woods’ attendance at the January 11, 2011 trial pursuant to La. C.Cr.P. art. 709.

In State v. Plaisance, this Court considered whether a trial court erred in denying a defendant’s oral motion for a two-day recess, after the close of the State’s case, to secure the attendance of a witness for the defense who was purportedly to testify in rebuttal of the State’s introduction of good character evidence of the victim. State v. Plaisance, 2000-1858, p. 28 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1193. The witness had left the state, and the defendant was unable to secure the witness’ presence at trial. Id. Although the record did not evidence that the defendant moved for a recess at trial, for purposes of appeal, the Plaisance Court assumed that the motion had been made, holding that the defendant did not demonstrate that the trial court abused its discretion in denying the defendant’s motion for a recess:

The record reflects that at the sentencing hearing the trial court initially considered the defendant’s motion for a new trial, at which defense counsel acknowledged that the witness had been subpoenaed for trial, but failed to appear. Defense counsel offered no explanation for the witness’s absence and failed to show that he had used due diligence to procure his attendance at trial. In view of this, we find the defendant failed to demonstrate a sufficient showing under La. C.Cr.P. art. 709 to justify the granting of a two-day recess to secure the witness.

Id. at p. 29, 811 So.2d at 1193 (emphasis added).

Likewise, in this case, the defendant offered no explanation for Woods’ absence, and the record suggests that neither defense counsel nor Woods’ mother could locate Woods. Defense counsel represented that Woods’ mother indicated that she had not seen him for days and had no knowledge as to Woods’ whereabouts. Accordingly, La. C.Cr.P. art. 709(A)(2) was not met because this alleged information from Woods’ mother does not establish “[fjacts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.” Thus, the record indicates that even if a continuance were granted, it is unlikely that Woods would have been available on the date to which the trial was deferred.

Furthermore, even assuming that as an alibi witness, Woods’ testimony would have been favorable to the defense, the defendant did not demonstrate prejudicial error due to the denial of the continuance because the defendant did not establish that Woods’ testimony would “indicate the possibility of a different result if [Mr. Woods] were to testify.” See State v. Duplessis, 2000-2122, p. 13, 785 So.2d at 947. Even assuming arguendo that Woods would testify that the defendant was at work at the time the burglary occurred, considering Haigler’s aforementioned testimony together with the fact that items belonging to Rebecca Paz that had previously been reported stolen from her automobile were recovered |¾⅛ the defendant’s bedroom, the defendant has not established that Woods’ testimony would have indicated the possibility of a different result.

Finally, even if the trial court abused its discretion in denying the defense’s request for a continuance, it is subject to a harmless error standard of review because any error arguably did not contribute to the jury’s verdict in this case. As the Louisiana Supreme Court noted in State v. Haddad:

Harmless error analysis begins with the premise that the evidence is otherwise sufficient to sustain the conviction if viewed from the perspective of a rational factfinder and asks whether beyond a reasonable doubt the error could not have contributed to the verdict actually returned by the defendant’s jury. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). In that case, the United States Supreme Court stated:
The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.
Id. at 2081.

State v. Haddad, 1999-1272 (La.2/29/00), 767 So.2d 682, 689. Given the testimony adduced at trial, the failure to grant the continuance did not contribute to the verdict.

In the second assignment of error, the defendant argues that the trial court abused its discretion in allowing evidence of his other crimes before the jury that was introduced because the misdemeanor charges were being tried at the same time as the simple burglary charge.

“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. Odenbaugh, 2010-0268, p. 52 (La.12/6/11), 82 So.3d 215, 250, reh’g denied (Jan. 20, 2012), cert. denied, — U.S. -, 133 S.Ct. 410, 184 L.Ed.2d 51 (U.S.2012) (quoting State v. Prieur, 277 So.2d 126, 128 (La.1973)). With regard to the introduction of other crimes evidence, La. C.E. art. 404(B)(1) provides:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal ease shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The Louisiana Supreme Court has held that “the introduction of inadmissible other crimes evidence results in a trial error subject to harmless error analysis.” State v. Johnson, 94-1379, p. 17 (La.11/27/95), 664 So.2d 94, 102; see also State v. Smith, 2011-0091, p. 28 (La.App. 4 Cir. 7/11/12), 96 So.3d 678, 695, reh’g denied (Aug. 16, 2012); State v. Bentley, 2002-1564, p. 3 (La.App. 4 Cir. 3/12/03), 844 So.2d 149, 152. If an error is made by the trial court, a reviewing court will consider “whether the guilty verdict was surely unattributable to the error’ ” to determine whether the error is harmless. State v. Robertson, 2006-1537, p. 9 (La.1/16/08), 988 So.2d 166, 172 (quoting State v. Johnson, 94-1379, p. 17 (La.11/27/95), 664 So.2d 94, 102; Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).

In this case, the defendant concedes in his brief that his only objection at trial to the similar crimes evidence was that the jury be instructed on the issue of other crimes evidence. The colloquy regarding the introduction of other crimes evidence occurred at trial as follows:

[^[Counsel for the state]:
The second issue, Judge, with regard to the trial, the State filed a Prieur notice long ago. The record did not reflect a ruling, and I just wanted to confirm that the — that that had been granted, seeking to introduce the res gestae of the possessions of stolen property at the house.
[Counsel for defendant]:
And, Judge, the only objection I would have is that if evidence is allowed to come in that there be a limiting instruction specifically on the issue of the other crimes evidence. [emphasis added]
The Court:
I will have that in my standard instruction.
[Counsel for defendant]:
Thank you, Judge.
The Court:
Well, 12/22/10, [the State] filed a [Pri-eur] notice. And I was closed as of December the 17th. So if you — you’re saying there’s no ruling because I wasn’t here on December 22nd, right?
⅜ * * *
I got you. Okay. All right. The Court’s going to grant the State’s intent to use evidence of similar crimes, that specifically being the other items [stolen from other automobiles]. And the Court will have a limiting instruction to the jury.

The State argues that the defendant’s possession of stolen property from other vehicles was not introduced to establish the defendant’s bad character, but was introduced to prove his commission of the misdemeanor charges that were tried in the same proceeding as the simple burglary charge. The State contends that the defendant did not object to the misdemeanor and felony charges being tried together or attempt to sever the misdemeanor charges. Because the evidence of stolen property from other vehicles provides context of happenings near in time [ 2f¡and place, the State argues that the trial court did not abuse its discretion in admitting the other crimes evidence.

In State v. Malvoisin, this Court quoted the Louisiana Supreme Court’s holding in State v. Brewington that evidence of other crimes is properly admitted if such evidence is so intertwined to the charged offense that the State could not have accurately presented its case without reference to the other crimes:

Evidence of other crimes is admissible when it is related and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to it. State v. Brewington, 601 So.2d 656 (La.1992).
The concomitant other crimes do not affect the defendant’s character because they were done, if at all, as parts of a whole; thus, the trier of fact will attribute either all of the criminal conduct to the defendant or none of it. Id. Additionally, because of the close connection in time and location, the defendant is unlikely to be unfairly surprised. Id.

In State v. Brewington, 601 So.2d at 657, the Court stated:

This court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. State v. Boyd, 359 So.2d 931, 942 (La.1978); State v. Clift, 339 So.2d 755, 760 (La.1976). In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. McCormick, Law of Evidence 448 (2d ed. 1972). The concomitant other crimes do not affect the accused’s character, because they were done, if at all, as parts of a whole; therefore, the trier of fact will attribute all of the criminal conduct to the defendant or none of it. And, because of the close connection in time and location, the defendant is unlikely to be unfairly surprised. 1 Wigmore, Evidence Sec. 218 (3d ed. 1940). State v. Haarala, 398 So.2d 1093, 1097 (La.1981).

State v. Malvoisin, 2000-0485, pp. 5-6 (La.App. 4 Cir. 1/24/01), 779 So.2d 73, 77.

Similarly, in this case, the similar crimes evidence was intertwined with the simple burglary charge, as the detectives’ search of the defendant’s room in his mother’s home was conducted pursuant to the investigation of the stolen chainsaw recovered from the Magazine Street Pawn Shop. The detectives’ search of the defendant’s room revealed evidence of property that had been stolen from the victim in the instant ease, Rebecca Paz, as well as property that had been reported stolen in numerous other burglaries. Thus, we do not find that the trial court abused its discretion in allowing the similar crimes evidence, and that even assuming the trial court had abused its discretion, the guilty verdict was, beyond a reasonable doubt, “surely unattributable” to the admission of such evidence, as evidence of Rebecca Paz’s stolen property was discovered in the defendant’s room. See State v. Robertson, 2006-1537, p. 9, 988 So.2d at 172.

The defendant’s first pro se assignment of error is that the trial court erred in denying his request for a continuance. For the reasons previously stated with regard to counseled assignment of error number one, this assignment of error lacks merit.

The defendant’s second pro se assignment of error is that the trial court erred in admitting other crimes evidence. For the reasons discussed in counseled assignment of error number two, this assignment of error lacks merit.

The defendant’s fourth and final pro se assignment of error is that he was denied his Sixth Amendment right to confront and cross-examine his accusers. The defendant argues that Officer Davis and Det. Barrere testified regarding the | ^defendant’s other crimes, but “[t]he alleged victims of these other crimes were never produced by the prosecution.” The defendant further argues that with regard to Vo’s testimony, “no one testified to ownership of any chainsaw, or that it was stolen” and that the jury was confused because “all of the crimes were tied together.” The defendant also contends that because the State’s case rested upon unproven other crimes and hearsay evidence, he was denied the right to receive a fair trial.

For the reasons discussed in counseled assignment of error number two, this assignment of error lacks merit. Additionally, although the State was not obligated to produce testimony from the burglary victims, the State presented testimony of Rebecca Begtrup, one of the victims of an automobile burglary that is not the subject of this appeal. With regard to the chainsaw, Det. Barrere testified that the chainsaw reported stolen matched the chainsaw pawned by the defendant. Finally, contrary to the defendant’s assertions, the State presented evidence and testimony regarding the simple burglary in the instant case, including testimony from the victim, Rebecca Paz. As for any alleged hearsay connected to the other burglaries, there was no objection to this evidence on the basis of hearsay. Thus, any alleged error was not preserved for appeal pursuant to La. C.Cr.P. art. 841.

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

AFFIRMED

      . The case number for the misdemeanor charges was 491-770. These counts were the subject of the State's Prieur notice.

      . The trial court acknowledged that the pre-sentence investigation revealed an extensive criminal record, including a juvenile conviction for armed robbery in 1971 for which defendant received juvenile life.

      . See State v. Taylor, 2011-K-1077 (La.App. 4 Cir. 8/12/11), unpub.

      .Paz testified that she could not recall the exact date of the automobile burglary, which occurred on July 18, 2009. She also could not recall what time that the incident occurred.

      . The description of the perpetrator in the initial police report was “[a]n unidentified black male wearing a blue sports jersey and blue jeans.”

      . Counsel for the defendant approached the bench with a document, and a bench conference ensued. The State objected to the document, and the trial court sustained the objection. Counsel for the defendant requested that the trial be continued "until we can get someone here ... [to] authenticate the document.” The trial court denied the request. Counsel for the defendant noticed intent to seek supervisory writs and requested a stay, which the trial court denied, noting the intent to take a writ. There is no evidence that a writ was ultimately taken from the denial of the request for a continuance. Counsel for the defendant proffered the document as Defense Exhibit Three. After the close of the trial and the jurors were excused, counsel for the defendant noted an objection for the record, indicating that the unauthenticated document that was the subject of the State’s objection was a time sheet purportedly verifying the defendant’s presence at work on the date of the incident.

      .His uncle, Charles Taylor, and his uncle’s girlfriend would also stay at the house occasionally. The defendant denied that it was "his room” and testified that he slept in the living room. The State showed Defendant Exhibit Twenty-two, which consisted of the papers bearing defendant's name which were recovered from the bedroom, at which time the defendant confirmed that they were his papers. Id. When asked if someone else had gathered all the stolen items belonging to different individuals and brought them to his room on Chippewa Street, the defendant responded, "I don’t know” and insisted that he was at work that day.

      . La. R.S. 14:62(A). La. R.S. 14:60 governs aggravated burglary and provides as follows:
      Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
      (1) Is armed with a dangerous weapon; or
      (2) After entering arms himself with a dangerous weapon; or
      (3)Commits a battery upon any person while in such place, or in entering or leaving such place.
      Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.

      . La. C.Cr.P. art. 708 provides:
      A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.
      In any event, however, ‘‘[a] motion for a recess is evaluated by the same standards as a motion for a continuance.” State v. Plaisance, 2000-1858, p. 29 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1193 (citing State v. Hodges, 98-0513 (La.App. 4 Cir. 11/17/99), 749 So.2d 732, 739).

      . The record indicates no writ was taken on the denial of the motion for a continuance.

      . Writs of instanter were also filed to command Luis Lizama's presence at trial.

      . The State argues that the defendant failed to object to the trial court's denial of his continuance and that pursuant to La. C.Cr.P. art. 841, the issue is not preserved for appeal. However, the trial transcript evidences that defense counsel objected to the trial court’s denial of the request for a continuance after the sidebar conference, during which time defense counsel indicated a need for a continuance to secure Woods' presence and testimony at trial.


author: McDonald, j.

text:
    Robert CONERLY v. TRIAD NITROGEN.
    No. 2012 CA 2032.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 14, 2013.
    Rehearing Denied Sept. 16, 2013.

      Lee Ann Archer, Lake Charles, Louisiana and Malcolm J. Dugas, Jr., William E. LeBlanc, Donaldsonville, Louisiana, for Plaintiff/Appellant Robert Conerly.
    Frank R. Whiteley, New Orleans, Louisiana, for Defendant/Appellee Triad Nitrogen.
    Before KUHN, PETTIGREW, and McDonald, jj.
   McDonald, j.

li>This is an appeal of a determination in workers’ compensation that plaintiff is not entitled to total, permanent disability benefits. For the following reasons, we reverse in part and affirm in part.

FACTS

Plaintiff, Robert Conerly, began working for Triad Nitrogen in 1971. In 1998 he injured his right knee on the job, but continued working. He injured his lower back while working in May 2000, and could not work thereafter. He began receiving total, temporary disability benefits that were terminated in May 2010. He continues to get accident related medical benefits.

On January 26, 2012, a trial was held to determine if Mr. Conerly was totally and permanently disabled as of May 2010. At the conclusion of the hearing, the workers’ compensation judge found that Mr. Conerly had not met his burden of proving he was physically unable to engage in any form of employment. Therefore, the judge concluded he was not entitled to receive permanent, total disability benefits in accordance with La. R.S. 23:1221(2)(C).

DISCUSSION

The workers’ compensation judge relied on the testimony of two doctors, familiar with Mr. Conerly’s history, who had evaluated his current condition and found that he was capable of engaging in light or sedentary employment. Mr. Conerly continues to have pain in his neck, back, and knee, even after a total knee replacement. At the time of trial, he was continuing to see Dr. Sandra Weitz for pain management and also taking a number of medications for pain. His wife, Adreinne, testified that her husband was very forgetful and slept a lot more when taking the prescribed medicine, some of which are narcotics.

There was also testimony from Thomas J. Meunier, Jr., a licensed vocational rehabilitation counselor, on Mr. Conerly’s behalf. In addition to his experience as |aa vocational rehabilitation counselor, Mr. Meunier had reviewed the office notes of Dr. R. Bryan Griffith and Dr. Weitz, who provided the opinions the court relied on, as well as the office notes of a number of other physicians who had seen Mr. Conerly. It was his opinion, considering Mr. Conerly’s vocational medical profile, that it was not likely Mr. Conerly could find employment.

He noted that Mr. Conerly was 68 years old, had a high school education, severe functional limitations, and no transferrable skills. Although his treating physicians released him to sedentary or part-time light work, the counselor opined that regardless of his motivation, Mr. Conerly is not likely to find employment. He advised that even setting aside skill level, sedentary jobs represent only about 10 percent of the labor market. The incidence of part-time sedentary jobs is even smaller at an unskilled level. Further, several employment options, for example, a security guard, are not available because of Mr. Conerly’s use of narcotic medications. Additionally, his need to sit or stand at will, restricted his availability. All relevant factors considered, the vocational rehabilitation specialist considered Mr. Conerly unemployable.

In the permanent, total disability context, the burden is entirely on the claimant to prove his incapacity of performing any work. Tillery v. State, Dept. of Public Safety and Corrections, 2007-1228 (La.App. 1 Cir 2/8/08), 984 So.2d 742, 744; See La. R.S. 28:1221(2). A reviewing court evaluates factual findings under the manifest error standard. Brown v. A M Logging, 2010-1440 (La.App. 1 Cir. 8/4/11), 76 So.3d 486, 493. The supreme court noted that legislation was enacted in 1983 to tighten the standard for receiving permanent, total disability in rendering its decision in Comeaux v. City of Crowley, 2001-0032 (La.7/3/01), 793 So.2d 1215. The issue here, as in Comeaux, was whether a decision regarding disability should be limited only to evidence of claimant’s physical condition or whether a totality of factors should be considered.

14While the workers’ compensation judge here cited Comeaux and recognized that the standard for determining entitlement to benefits was “totality of circumstances,” she believed the jurisprudence established lack of education as the factor most often cited in determining employability. More importantly, she believed that for a claimant to be entitled to permanent, total disability it was necessary that they prove that even with retraining, they were incapable of performing work.

Comeaux established that the workers’ compensation court should consider the totality of circumstances rather than only the physical abilities of a claimant. In the case before us, two treating physicians were of the opinion that Mr. Conerly could return to work in a light or sedentary work environment. However, while he does have a high school education and a strong work ethic, he has restrictions that make him an unlikely candidate for employment. He was 68 years old at the time of trial and had functional restrictions due to neck, back, and knee problems that prohibited him from sitting or standing for long periods. Also, intermittent flare-ups and his reliance on narcotic medications to relieve his pain, negatively affected his reliability. Further, there was no indication that Mr. Conerly’s symptoms would decrease in the future. Therefore, we reverse the office of workers’ compensation’s denial of permanent, total disability. We find that the totality of circumstances facing Mr. Conerly, and the unlikelihood of his improving, entitle him to permanent, total disability benefits.

In addition to appealing the decision of the workers’ compensation judge’s determination denying Mr. Conerly permanent, total disability, his brief assigned error to several other decisions of the judge. It was argued that it was error not to award penalties and attorney fees against the employer. However, we find no error in the workers’ compensation judge’s determination that employer’s discontinuance of benefits was not arbitrary and capricious. The claimant had | .¡received the maximum benefit allowed by law. Thus, the discontinuance of benefits was due to conditions over which the employer or insurer had no control. Therefore, we do not award penalties or attorney fees. See La R.S. 23:1201.

The decision of the Office of Worker’s Compensation to assess 50% of the costs to Mr. Conerly was also challenged. The assessment of costs is left to the “sound discretion” of the judge. We find no error regarding costs. See La. R.S. 23:1310.9

Mr. Conerly also assigned error to the judge’s decision to exclude charts containing medical evidence. Since this court has made the decision that Mr. Conerly is entitled to benefits based on the evidence in the record, we find that this issue is moot.

CONCLUSION

Reviewing the record under the manifest error standard, and considering the relevant law and jurisprudence, we find that Mr. Conerly meets the legal requirements to receive permanent, total disability benefits. We agree with the workers’ compensation judge that the employer’s termination of benefits in this case was not arbitrary and capricious; therefore, we decline to award penalties and attorney fees. Accordingly, that portion of the judgment of the workers’ compensation court that dismissed the claim for indemnity benefits is reversed, and claimant, Robert Conerly, is ordered to receive permanent, total disability benefits retroactive to May 2010. In other respects, the judgment is affirmed. Appeal costs are assessed to Triad Nitrogen.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

KUHN, J., concurs.