text:
    Schwanda RICHARD v. HSLI AND TOURO INFIRMARY.
    No. 12-CA-873.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      Joseph J. Schilleci, III, Attorney at Law, Metairie, LA, for Plaintiff/App ellee.
    William H. Voigt, Attorney at Law, Gretna, LA, for Defendants/Appellants.
    Panel composed of Judges MARC E. JOHNSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

| ^Appellant, Schwanda Richard, appeals the workers’ compensation judgment denying supplemental earning benefits after January 12, 2012. Touro Infirmary and HSLI (“Touro”) filed an Answer, appealing the calculation of supplemental earnings benefits, penalties and attorney’s fees. For the following reasons, we reverse in part, and affirm in part.

FACTS AND PROCEDURAL HISTORY

There was no live testimony in this case. The parties stipulated to the facts as follows.

Ms. Richard was employed full-time as a cook at Touro. On February 9, 2010, while in the course and scope of employment at Touro, Ms. Richard tripped over a low railing and fell to the floor on her left side. As a result, she sustained injuries to her left shoulder and left elbow. Ms. Richard was treated by Dr. Kevin Watson, an orthopedist, after the accident. She was diagnosed with a radial fracture to the left elbow and a partial thickness tear of the left rotator cuff. Ms. Richard underwent surgery to her left shoulder, several manipulations under anesthesia, physical therapy, injections, and she received prescription medications. Dr. Watson subsequently released her to return to work on April 7, 2011, with a |,^permanent restriction of no overhead lifting. As a result of the accident, Ms. Richard has a permanent restriction of no overhead lifting that resulted in her inability to earn 90% or more of her pre-average weekly wage. Vocational rehabilitation was performed by Touro that established an earning capacity of $9.49 an hour for a 40 hour week for an amount of $379.60 per week effective November 1, 2011.

Touro started paying temporary total disability benefits to Ms. Richard on February 17, 2010, at the rate of $360.96 per week. At the time of the accident, Ms. Richard’s average weekly wage was $553.90. During her period of temporary disability, Ms. Richard was released from her employment with Touro. In October 2010, Touro increased Ms. Richard’s temporary total disability benefits to $369.29 per week and issued a back due payment of $291.55 for miscalculation of temporary total disability benefits. At the same time, Touro issued the initial week of injury waiting period check in the amount of $369.29 to Ms. Richard. When Ms. Richard was released by Dr. Watson to return to work, Touro paid Ms. Richard supplemental earnings benefits from May 2011 through October 2011. On October 27, 2011, Touro modified the amount of supplemental earnings benefits owed to Ms. Richard based on the lowest average wage rate from vocational rehabilitation. Touro offered Ms. Richard a modified version of her pre-injury position to accommodate her permanent restriction. Ms. Richard accepted and started back to work at Tou-ro in the modified position on January 16, 2012, and continues to work in that capacity. Touro increased Ms. Richard’s wages post-accident to her pre-accident wages with Touro subsequent to January 16, 2012.

At the time of her accident, Ms. Richard was also working a full-time, 32 hour job at Xavier University (“Xavier”) as a cook in the cafeteria. The job duties at Xavier were similar to Ms. Richard’s pre-injury job duties at Touro which | included significant overhead lifting. Ms. Richard’s average weekly wage at Xavier was $368.00. She was released from her employment at Xavier during her period of temporary disability. Ms. Richard attempted to return to work at Xavier after she was released by Dr. Watson but was informed that Xavier did not have a job that would accommodate her restriction.

Ms. Richard filed her disputed claim on November 4, 2011, and a supplemental disputed claim on April 18, 2012. Ms. Richard requested supplemental earnings benefits from the date her supplemental earnings benefits were modified (November 2011) until the date she began the modified position with Touro on January 15, 2012. Additionally, Ms. Richard requested supplemental earnings benefits subsequent to January 16, 2012, when she began her modified position with Touro, to the present date.

On July 17, 2012, the workers’ compensation judge issued judgment granting Ms. Richard supplemental earnings benefits in the amount of $1,567.43 per month for the months of November 2011, December 2011, and January 2012, for a total of $4,702.29, subject to a credit in the amount of $1,255.91 in favor of Touro. Ms. Richard’s claim for supplemental earnings benefits subsequent to January 16, 2012 was denied. Touro was ordered to pay penalties and was assessed attorney’s fees for miscalculation of temporary total disability benefits and supplemental earnings benefits, untimely payment of the initial waiting period check and the untimely payment of prescription medication. Ms. Richard’s claim for penalties and attorney’s fees for failure to approve physical therapy was denied.

This appeal by Ms. Richard and Touro followed. Ms. Richard appeals the judgment claiming that the workers’ compensation judge erred in failing to award her supplemental earnings benefits subsequent to January 2012 by incorrectly combining post-accident earning capacity and actual wages earned. Touro appeals |ñclaiming that the workers’ compensation judge erred in her calculations by including two full-time jobs and awarding penalties and attorney’s fees.

STANDARD OF REVIEW

The determination of whether an employee is entitled to workers’ compensation benefits is based on the facts and circumstances of each proceeding, taking into consideration that the laws governing workers’ compensation must be construed liberally in favor of the employee. Alfortish v. Roughneck Construction, LLC, 09-870 (La.App.5 Cir.5/11/10), 40 So.3d 1004, 1007. An appellate court cannot set aside the factual findings of the workers’ compensation judge unless those factual findings are clearly wrong, and the judge has committed manifest error. Id. The appellate court may not merely decide if it would have found the facts of the case differently. Id. The appellate court must determine whether the trial judge’s findings are reasonable, even if the appellate court feels that its own evaluation of the evidence is more reasonable. Id.

DISCUSSION

Ms. Richard claims that she is entitled to supplemental earnings benefits from November 2011 to January 2012. Additionally, Ms. Richard claims she is entitled to supplemental earnings benefits from January 2012 to present due to her inability to return to her second full-time job, even though she returned to work at Tou-ro earning her pre-injury wages. Touro contends that the workers’ compensation judge erred by including the second full-time employment in its calculation of benefits. Touro also challenges the awards of penalties and attorney’s fees.

The purpose of supplemental earnings benefits is to compensate an injured employee for the wage earning capacity he has lost as a result of his accident. Poissenot v. St. Bernard, 09-2793 (La.1/9/11), 56 So.3d 170, 174, citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. If an employee sustains a work-related injury that results in an inability to earn ninety percent (90%) or more of his average pre-injury wage, then the employee is entitled to receive supplemental earnings benefits. La. R.S. 23:1221(3)(a)(i).

Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury caused his inability to earn ninety percent (90%) or more of his average pre-injury wage. Clay v. Our Lady of Lourdes Regional Medical Center, Inc., 11-1897 (La.5/8/12), 93 So.3d 536, 539, citing Poissenot, 56 So.3d at 174; Banks, 696 So.2d at 556. Once an employee meets this burden, the burden shifts to the employer who, in order to defeat the employee’s claim for supplemental earnings benefits, must prove by a preponderance of evidence that the employee is physically able to perform a certain job, and that the job was offered to the employee or was available to the employee in his or the employer’s community or reasonable geographic region. Id.; La. R.S. 23:1221(3)(c)(i); Poissenot, 56 So.3d at 174; Banks, 696 So.2d at 551. If the employer meets this burden, then the employee must establish by clear and convincing evidence that he is unable to engage in any employment. La. R.S. 23:1221(3)(c)(ii); Barton v. Wausau Insurance Company, 545 So.2d 1248, 1252 (La.App. 2 Cir.1989).

Here, Ms. Richard sustained a work-related injury with a permanent restriction of no overhead lifting during her full-time employment with Touro. As a result, she was unable to earn ninety percent (90%) or more of her pre-injury average weekly wage after the period of time when Touro modified her current supplemental earnings benefits amount (October 27, 2011), until she started her modified position with Touro on January 16, 2012. Thus, Ms. Richard satisfied her initial burden of entitlement of supplemental earnings, benefits for November 172011 to January 15, 2012 when she was not working. The burden then shifted to Touro to establish that Ms. Richard was physically able to perform a certain job, and that the job was offered to her or was available in a reasonable geographic region.

At trial, Touro submitted the vocational rehabilitation case management records of Younger & Associates prepared by Jeannie Lillis, who performed an initial interview and assessment of Ms. Richard on April 1, 2011. In August 2011, Ms. Richard was sent a list of available jobs based on her interests and skills determined by the vocational testing and considering her permanent restriction. Ms. Lillis scheduled a conference with Ms. Richard’s treating physician, Dr. Kevin Watson, and Ms. Richard was invited to participate, but failed to attend. At the conference, Dr. Watson was provided with an updated proposed list of available jobs. He signed and approved all available jobs for Ms. Richard’s pursuit. On October 26, 2011, Ms. Lillis sent Ms. Richard a copy of the jobs approved by Dr. Watson.

The stipulated evidence presented on Ms. Richard’s entitlement to benefits is limited. Ms. Richard did not contest the geographical region or availability of the jobs sent to her by Ms. Lillis. The available jobs approved by Dr. Watson were sedentary or desk-type jobs which did not conflict with her permanent restriction of no overhead lifting. The available jobs stated the position, location, wage, hours, and description of the job. Touro therefore showed by a preponderance of that evidence that reasonably available jobs in Ms. Richard’s geographic region were offered. The burden then shifted back to Ms. Richard to show by clear and convincing evidence that she was unable to engage in any employment.

In her reasons for judgment, with which we agree, the workers’ compensation judge clearly stated, “Ms. Richard offered no evidence that these [¿jobs were unavailable or did not fit her physical limitations.” Yet the workers’ compensation judge inexplicably went on to calculate and award supplemental earnings benefits. Since the workers’ compensation judge found, as we do, that Ms. Richard offered no evidence (or stipulation) to meet the clear and convincing burden of proof that she was unable to engage in any employment during the time period of November 2011 through January 2012, she is not entitled to supplemental earnings benefits for this time period. Further, in the absence of any evidence or stipulated fact to support her burden, any inference of fact to the contrary would be clearly and manifestly erroneous.

Considering the stipulated facts, the workers’ compensation judge’s award of supplemental earnings benefits for November 2011 through January 2012 was unreasonable and manifestly erroneous. Accordingly, we reverse that part of the judgment that awarded Ms. Richard supplemental earnings benefits for November 2011 through January 2012. We therefore need not address Touro’s issue of whether the trial court erred in calculating those benefits.

Regarding the claim for supplemental earnings benefits from January 16, 2012 to the present, Ms. Richard argues that although Touro established the reasonable availability of jobs through vocational rehabilitation, it was not sufficient. If Ms. Richard had obtained one of the jobs found through vocational rehabilitation, she would not have been able to return to Touro in January due to conflicts with the hourly requirements of both jobs. Ms. Richard argues that Touro has the burden to show available jobs and hours that do not conflict with her modified job at Touro effective January 16, 2012. Ms. Richard argues that she did attempt to return to work at Xavier where her hours would not conflict with Touro’s, but her permanent restriction could not be accommodated and she was not rehired by Xavier.

|9The workers’ compensation judge relied on Phillips v. United Parcel Service, 28,110 (La.App. 2 Cir. 2/28/96), 669 So.2d 1375, to calculate and award supplemental earnings benefits; however, Phillips is factually and legally distinguishable from the present case. In Phillips, the claimant was injured while working at his part-time job with UPS, but was able to maintain working at his full-time job at a bank. Id. When an employee is injured during his part-time employment and incurs a loss in a successive part-time or full-time employment, then the wages of the second job (up to the forty-hour maximum) must “either be included in, or excluded from, both portions of the pre- and post-accident wage comparison.” Id. at 1377-1379. Here, Ms. Richard was injured while employed at her full-time job with Touro. She is not entitled to any calculation based on her second full-time job with Xavier. See Guillory v. Interstate Hotels & Resorts, 05-650 (La.App. 3 Cir. 12/30/05), 918 So.2d 550.

Ms. Richard failed to establish that she was unable to earn ninety percent (90%) or more of her average pre-injury wage. The record shows that Ms. Richard returned to her actual wages with Touro on January 16, 2012. We find that the workers’ compensation judge was not manifestly erroneous in denying supplemental earnings benefits for the period of time subsequent to January 16, 2012.

Touro appeals arguing that the workers’ compensation court erred in awarding penalties and attorney’s fees for its failure to properly calculate Ms. Richard’s temporary total disability benefits, untimely payment of the initial waiting period check, and untimely payment of prescription medication.

La. R.S. 23:1201(F) imposes a penalty for “failure to provide payment.” Penalties will not be imposed if they are “reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no |incontrol.” Id. The determination of whether an employer or insurer should be cast with penalties and attorney’s fees is a question of fact. Factual findings are subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181, 1188-1189; Redder v. Giorlando’s Restaurant Corporation, 07-658 (La.App. 5 Cir. 2/6/08), 979 So.2d 512, 516.

A review of the record reveals that Touro failed to pay Ms. Richard the correct amount of temporary total disability benefits from February 2010 to October 2010 and failed to timely pay Ms. Richard’s initial waiting period check. Touro argues that because its new adjustor found the errors and immediately corrected them without demand from Ms. Richard, it was not subject to imposition of penalties and attorney’s fees. Generally, penalties are not imposed for simple miscalculations of benefits, but penalties and attorney’s fees have been imposed where the insurer gathers incomplete data in preparing the claim. Stegall v. J. & J Exterminating, 94-1279 (La.App. 3 Cir. 3/1/95), 651 So.2d 400, 403. Here, upon receiving Ms. Richard’s claims file, Touro’s second adjustor immediately noticed the error in calculation and that Ms. Richard never received her initial waiting period check. Touro’s first adjustor clearly gathered incomplete data in preparing the claim. Touro failed to offer evidence that the discrepancy was beyond its control or that Ms. Richard’s right to those benefits was reasonably controverted. The workers’ compensation judge was not manifestly erroneous in awarding Ms. Richard penalties in the amount $2,000.00 for Touro’s failure to pay the correct amount of temporary total disability benefits and awarding $2,000.00 for Touro’s failure to timely pay the initial waiting period check. The workers’ compensation judge’s award of attorney’s fees in the amount of $250.00 for each penalty, for a Intotal of $500.00, is reasonable and not manifestly erroneous. We therefore affirm the award of penalties and attorney’s fees for each of these violations.

Because we find that Ms. Richard did not prove entitlement to supplemental earnings benefits from November 2011 to January 2012 and from the period of time subsequent to January 16, 2012, we find the workers’ compensation judge’s award of a $2,000.00 penalty for miscalculation of pre-injury average monthly wages and award of attorney’s fees in the amount $2,000.00 was manifestly erroneous. Accordingly, we reverse that portion of the judgment awarding this penalty and attorney’s fee to Ms. Richard for miscalculation of pre-injury average monthly wages.

La. R.S. 23:1201(E) provides that medical benefits shall be paid within sixty days after the employer or insurer receives written notice. The facts established that Touro paid two invoices from its Third Party Pharmaceutical Provider, ExpressScripts, more than sixty days after Touro received the invoices. However, there are no facts in evidence that Ms. Richard did not receive her medications timely or that she was required to pay for those medications at the time she received them. The workers’ compensation judge was manifestly erroneous in assessing a $2,000.00 penalty and attorney’s fee of $250.00 against Touro for failing to pay the two invoices. We therefore reverse this portion of the judgment awarding this penalty and attorney’s fee to Ms. Richard for failing to timely pay medical benefits within sixty days.

CONCLUSION:

For the above stated reasons, we reverse that portion of the judgment which awarded Ms. Richard supplemental earnings benefits for November 2011 to January 2012; penalties and attorney’s fees in the amount of $4,000.00 for miscalculation of pre-injury average monthly wages; and untimely payment of | ^prescription medications in the amount of $2,250.00. We affirm that portion of the judgment that denied supplemental earnings benefits for the time period after January 16, 2012, and penalties in the amount of $4,000.00 for miscalculation of temporary total disability benefits and untimely payment of the initial waiting period check, and attorney’s fees of $500.00 for these penalties. Costs are assessed equally between the parties.

REVERSED IN PART, AND AFFIRMED IN PART

      . Ms. Richard’s original appeal alleged assignments of error related to the denial of physical therapy and the amount of penalties and attorney’s fees assessed. Ms. Richard, in her brief to the court, withdrew those claims from the appeal.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    Wade Joseph SCHEXNAYDER v. YOLANDE SCHEXNAYDER & SON, INC., Melissa Duhe Schexnayder, and Matt Milazzo.
    No. 12-CA-885.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      Lanny R. Zatzkis, Karen D. McCarthy, Yvette A. D’Aunoy, Attorneys at Law, New Orleans, LA, for PlaintiffAppellee.
    Charles P. Ciaccio, Attorney' at Law, Kenner, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON and STEPHEN J. WINDHORST.
   MARC E. JOHNSON, Judge.

|2Pefendant, Melissa Schexnayder, appeals the trial court’s granting of a writ quo warranto in favor of plaintiff, Wade Schexnayder, in which the trial court determined that Ms. Schexnayder did not carry her burden of proving she had authority to hold the office of president of Yolande Schexnayder & Son, Inc. (“YSS”), and that Mr. Schexnayder continues to have the voting rights of 7,500 shares of stock that were the subject of an Act of Donation to Ms. Schexnayder in 2008. For the reasons that follow, we affirm.

FACTS & PROCEDURAL HISTORY

YSS, which is in the business of selling clay and dirt material, is a closely held corporation that was incorporated in September 1989 by plaintiffs grandfather, Yo-lande Schexnayder, and Yolande’s son, Carroll Schexnayder. At the time of incorporation, YSS issued 5,000 shares of stock to Yolande and his wife Beatrice, and 5,000 shares of stock to Carroll and his wife Sharleen. In 1992, both Yolande and Carroll donated 2,500 shares of their YSS stock to Mr. |3Schexnayder for a total of 5,000 shares. Later, in 2007, Yolande made a second donation of 2,500 shares of stock to Mr. Schexnayder, giving him a total of 7,500 shares in YSS.

On September 22, 2008, Mr. Schexnay-der executed an Act of Donation donating all of his separate property, including his interest in YSS, to Ms. Schexnayder with the stipulation that the donated property “form part of the community existing between the Donor and the Donee.” Thereafter, in 2009, Mr. Schexnayder purchased an additional 5,833.34 shares of YSS stock from relatives who had inherited the shares from their parents. And, in 2010, both Mr. and Mrs. Schexnayder purchased 1,666.68 shares of YSS stock from various relatives.

Between February 2008 and January 2012, Mr. Schexnayder was the president of YSS and ran the day-to-day operations of the business. At the same time Mr. Schexnayder became president, he used his shares to vote Ms. Schexnayder to the board of directors.

On December 22, 2011, Ms. Schexnay-der, as Secretary/Treasurer of YSS, issued a Notice of Meeting of the Shareholders and Board of Directors of YSS set for January 5, 2012. At the shareholders’ meeting, YSS’s corporate attorney advised that upon review of several documents, including the 2008 Act of Donation by Mr. Schexnayder to Ms. Schexnayder, he determined that Ms. Schexnayder was the owner of 11,250, or 75%, shares of YSS stock, and Mr. Schexnayder was the owner of 3,750 shares, or 25%, shares of YSS stock. According to Mr. Schexnayder, he objected to this determination but his objection was not noted in the minutes of the meeting. Thereafter, a new board of directors [4was elected, which included Mr. Schexnayder, Ms. Schexnayder and Matt Milazzo, who was present through a proxy and was elected to the board solely through Ms. Schexnayder’s votes.

Immediately after the shareholders meeting, a meeting of the board of directors was held. During the meeting, Mr. Schexnayder was removed as President of YSS, and Ms. Schexnayder was elected president through her votes and those of Mr. Milazzo by proxy. Ms. Schexnayder also used her votes and those of Mr. Milazzo by proxy to elect herself as Treasurer of YSS.

On February 7, 2012, Mr. Schexnayder filed a Petition for Mandamus and Quo Warranto, for Temporary Restraining Order and for Injunctive Relief claiming, among other things, that Ms. Schexnayder wrongfully usurped control of YSS. He sought issuance of a writ of quo warranto be issued to force Ms. Schexnayder to explain by what authority she acted in removing him as president of YSS and voting herself in as president and her brother-in-law, Matt Milazzo, in as a director. Mr. Schexnayder further sought to enjoin Ms. Schexnayder from further acting as a YSS officer.

A show cause hearing was held on May 21, 2012. At the conclusion of the hearing, the trial court determined that Ms. Schex-nayder had not carried her burden of proving that she had the right to vote the 7,500 shares of stock that were donated to her in 2008, and thus had not shown she had the right to vote herself as President and Treasurer of YSS. The trial court noted that the 2008 donation clearly stated the stocks were to be community property and made no reference to voting rights. It further noted the stock certificates for the 7,500 shares were still in Mr. Schexnay-der’s name, and there had been no request to transfer the stock certificates to Ms. Schexnayder’s name, despite the passage of more than three years from the act of donation to the January 2012 meeting. As such, the trial 15court granted the writ quo warranto in favor of Mr. Schexnayder and found he continues to have the voting rights to the 7,500 shares of stock he donated to Ms. Schexnayder.

ISSUE

On appeal, Ms. Schexnayder challenges the trial court’s determination that the Act of Donation did not transfer the voting rights of the 7,500 shares of stock. She maintains that the voting rights were included in the donation of the stock and that Mr. Schexnayder would have had to have made a specific reservation in the donation in order to retain those voting rights, which he did not do. She also contends the trial court erred in relying on parole evidence, specifically the conduct of the parties after the act of donation, to determine the intent of the parties regarding the voting rights of the donated shares.

LAW & ANALYSIS

The proper procedure to contest title to an office in a private corporation is a writ of quo warranto. Canedo v. Vicari, 11-1116 (La.App. 5 Cir. 5/8/12); 99 So.3d 64, 68. A writ of quo warranto directs an individual to show by what authority he or she claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. La. C.C.P. art. 3901. If the court determines that a person is holding an office without authority, the judgment shall forbid him to do so. The judgment may further declare who is entitled to the office or may direct an election when necessary. La. C.C.P. art. 3902. However, if it is determined that a person holds office by virtue of a valid election, the inquiry ceases, and the writ should be dismissed. Canedo, supra. The respondent in a quo warranto proceeding has the burden of showing by what authority he or she claims or holds office in the corporation. Id.

|fiMs. Schexnayder claimed she validly held the office of president by virtue of an election by the board of directors in which she held the majority of voting shares through the voting rights of 7,500 shares of stock that were donated to her by Mr. Schexnayder in 2008. The 2008 Act of Donation states, in pertinent part:

WADE J. SCHEXNAYDER, SR., a person of the full age of majority, domiciled in the Parish of St. James, State of Louisiana [“Donor”], who declared that, in consideration of the love and affection which he bears to his spouse, Melissa D. Schexnayder, he does, by these presents, make a gift and donation inter vivos, UNTO said:
MELISSA D. SCHEXNAYDER [“Donee”], hereby appearing for the purpose of accepting the same of the following:
All of Donor’s separate property, including, but not limited to, bank accounts, brokerage accounts, publicly traded securities, annuities, life insurance, all of Donor’s interests in the Successions of Yolande and Beatrice Schexnayder, the Succession of Carroll Schexnayder, Sr., and all of Donor’s right, title and interest in and to the following entities: Yolande Schex-nayder & Son, Inc., Schexnayder Industrial Services, Inc., Schexnayder Holdings, L.L.C., Belle Vue Estates and Acadia Development Corporation.
TO HAVE AND TO HOLD unto the said Donee, her heirs and assigns, forever, SUBJECT, HOWEVER, TO THE FOLLOWING STIPULATION: The donated, property shall form part of the community existing between the Donor and the Donee.

[Emphasis in original.]

No one disputes that this Act of Donation included the 7,500 shares of YSS stock that Mr. Schexnayder owned as his separate property. However, the parties dispute the effect of this donation. Ms. Schexnayder argues that this Act of Donation gave her the exclusive right to vote all 7,500 shares. Conversely, Mr. Schexnay-der contends the Act of Donation only gave Ms. Schexnayder an undivided one-half interest in the 7,500 shares of stock and not any real rights, such as voting rights.

j 7Under La.- R.S. 12:601, the person in whose name a stock certificate is issued is the legal owner, and a corporation and its officers are bound to recognize as legal owner only the person in whose name a stock certificate is issued. While a stock certificate is prima facie evidence of ownership, actual ownership may be determined from the facts and circumstances of a case. Ackel v. Ackel, 595 So.2d 739, 741 (La.App. 5th Cir.1992). Only shareholders of record on the books of the corporation are entitled to vote at meetings, unless otherwise provided in the articles of incorporation. La. R.S. 12:75; Pollock v. Pollock Engineering Co., Inc., 365 So.2d 1186, 1189 (La.App. 3rd Cir.1978).

In this case, Mr. Schexnayder’s name appears on a 1992 stock certificate for 5,000 shares. Additionally, the evidence shows a valid donation of 2,500 shares of stock from Yolande to Mr. Schexnayder in 2007 with reference to a 1989 stock certificate, which was admitted into evidence. Although Mr. Schexnayder’s name does not appear on the 1989 stock certificate for the 2,500 shares, the record shows a valid transfer of the stock ownership to Mr. Schexnayder. See In re Interdiction of Vicknair, 01-902 (La.App. 1 Cir. 6/21/02); 822 So.2d 46, 51. The record shows that Ms. Schexnayder’s name does not appear on either of the stock certificates relating to these 7,500 shares. Thus, we must determine the effect the 2008 Act of Donation had on the stock ownership.

Under La. C.C. art. 2343.1, “[t]he transfer by a spouse to the other spouse of a thing forming part of his separate property, with the stipulation that it shall be part of the community, transforms the thing into community property.” [Emphasis added.] Comment (b) of this Article explains that, “[i]n effect, the transferor conveys to the other spouse one-half of what he owns and retains the other half as co-owner under the regime of acquets and gains.” Under the general principles of lacommunity property, “[e]ach spouse owns a present undivided one-half interest in the community property.” La. C.C. art. 2336.

Contrary to Ms. Schexnayder’s position that the Act of Donation gave her the 7,500 shares of YSS stock unencumbered as her separate property, we find that the clear and unambiguous language of the 2008 Act of Donation, indisputably made the 7,500 shares of stock a part of the community. As such, Ms. Schexnay-der owned an undivided one-half interest in the shares.

Generally, either spouse acting alone may manage, control, or dispose of community property unless otherwise provided by law. La. C.C. art. 2346. Under La. C.C. art. 2351, each spouse has the exclusive right to manage, alienate or encumber moveables issued or registered in his name. Shares of stock are incorporeal movables, and shares of stock issued in the name of a spouse are subject to management by that spouse exclusively. La. C.C. art. 473; Champagne v. Champagne, 07-1078 (La.App. 1 Cir. 6/27/08); 992 So.2d 1072, 1075; Rao v. Rao, 05-0059 (La.App. 1 Cir. 11/4/05); 927 So.2d 356, 366, writ denied, 05-2453 (La.3/24/06); 925 So.2d 1232.

In Pollock, supra, a wife filed a writ of mandamus after her divorce claiming she was the owner of one-half of the 80 shares of stock of the defendant corporation. The wife sought an order to force the corporation to cancel the stock certificates in the name of her ex-husband and to issue a new stock certificate showing her as owner of half of the shares, or 40 shares. The trial court found the 80 shares of stock were community property and refused to order the corporation to issue a new certificate for 40 shares in the wife’s name because there had been no partition of the community. However, the trial court ordered the corporation to recognize the wife as the owner in indivisión with her husband and to afford her all 13the rights accompanying such ownership, including the right to vote at shareholder meetings.

The appellate court found the trial court correctly determined that upon dissolution of the community by divorce, Mr. and Mrs. Pollock became owners in indivisión of an undivided one-half interest in the 80 shares of stock. However, the appellate court found the trial court erred in ordering the corporation to afford the wife all the rights and privileges of a stockholder. Citing La. R.S. 12:601 and 12:75, the court explained that the wife, as co-owner in indivisión of the stock, was not entitled to any of the rights of a shareholder. The court noted that the wife’s remedy was to have the community partitioned.

In the present case, as previously stated, Ms. Schexnayder owned the 7,500 shares of stock in indivisión with Mr. Schexnayder by virtue of the donation of the stock to the community. However, like Pollock, her ownership interest in the stock did not give her autonomous control over the stock. See also In re Succession of Moss, 00-62 (La.App. 3 Cir. 6/21/00); 769 So.2d 614, 621, writ denied, 00-2834 (La. 12/8/00); 776 So.2d 462. Rather, Mr. Schexnayder, in whose name the stock certificates are issued and to whom the shares were transferred, retains exclusive management rights relating to the 7,500 shares, as well as the right to vote the shares under La. R.S. 12:75. As explained in Pollock, Ms. Schexnayder’s undivided one-half ownership interest in the shares by mere virtue of the shares having been donated to the community does not give her all the rights afforded to a shareholder, including the right to vote the shares.

Accordingly, we find the district court correctly determined Ms. Schexnayder did not properly hold the office of President of YSS because she did not have the right to vote the 7,500 shares that were in Mr. Schexnayder’s name. |1ftAs such, Ms. Schexnayder’s vote, using the 7,500 shares to vote herself in as president, was invalid.

DECREE

For these reasons, we find the district court did not err in granting the writ quo warranto in favor of plaintiff, Wade Schex-nayder, and determining that Mr. Schex-nayder retained the right to vote the 7,500 shares of YSS stock. Accordingly, the trial court’s June 5, 2012 judgment is affirmed. Defendant, Melissa Schexnayder, is to bear the costs of this appeal.

AFFIRMED

      . At some point, an additional 5,000 shares of stock were issued giving YSS a total of 15,000 shares of stock. It appears the extra 5,000 stocks were issued in 1992-equally to Yolande and Beatrice, and Carroll and Sharleen, who in turn donated the 5,000 shares to Mr. Schexnayder. Thus, in 1992, Yolande and Beatrice owned 5,000 shares, Carroll and Sharleen owned 5,000 shares, and Mr. Schex-nayder owned 5,000 shares. Of note, the original stock register book was lost or destroyed at some point after Hurricane Katrina and a new register book was not put in place until January 2010.

      . The Articles of Incorporation for YSS are not in evidence, and neither party argues these articles contain different voting provisions than provided for in La. R.S. 12:75.

      . The record indicates Mr. and Ms. Schexnay-der are currently in divorce proceedings. Upon termination of the community, the entire community may be partitioned, including the 7,500 shares of YSS stock.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Mark DUFOUR and Pierre Carmouche v. DOW CHEMICAL COMPANY.
    No. 12-CA-912.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      Kevin Tucker, Attorney at Law, Metair-ie, LA, for Plaintiffs/Appellants.
    Chet D. Traylor, Donesia D. Turner, Corwin St. Raymond, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.

      Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and STEPHEN J. WINDHORST.
   FREDERICKA HOMBERG WICKER, Judge.

12Plaintiffs appeal the trial court’s judgment dismissing their claims against defendant for failure to respond to discovery. Because we find the trial judge abused her discretion in dismissing plaintiffs’ claims, we vacate that portion of the judgment and remand this matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This litigation arises out of a July 7, 2009 ethyl acrylate release at a chemical facility in St. Charles Parish and concerns the claims of 72 individual plaintiffs (the “Guarino plaintiffs”) represented by attorney Kevin Tucker. The narrow issue presented to this Court is whether the trial judge abused her discretion in dismissing the 72 Guarino plaintiffs’ claims for failure to respond to discovery propounded by one defendant, the State of Louisiana through the Department of Environmental Quality (DEQ).

|3On January 26, 2012, DEQ filed a motion to compel discovery, alleging that interrogatories and requests for production of documents had been propounded upon plaintiffs through their attorney, Kevin Tucker, on August 18, 2011, but that plaintiffs had failed to respond to the discovery requests. On March 2, 2012, the trial judge signed a Consent Judgment between the parties ordering plaintiffs to provide full and complete responses to DEQ’s discovery requests by March 12, 2012, and that “the claims of any plaintiff who fails to comply with this Consent Judgment will be dismissed with prejudice.” Both counsel for DEQ and Tucker signed the consent judgment issued by the court. The judgment does not contain plaintiffs’ individual signatures.

The record indicates that on March 9, 2012, Tucker forwarded plaintiffs’ discovery responses to counsel for DEQ. However, DEQ argues that plaintiffs failed to provide full and complete responses as required by the Consent Judgment. DEQ does not dispute that Tucker, on behalf of plaintiffs, submitted documents in responses to discovery; rather, DEQ complains only that Tucker failed to provide a response to one Request for Production of Documents, which requested that each plaintiff execute and submit a medical authorization form. The Requests for Production of Documents propounded by DEQ required that plaintiffs execute the “enclosed” medical authorization form. DEQ asserts that plaintiffs submitted outdated medical authorization forms, which released plaintiffs’ medical records to their counsel, Tucker, and not to counsel for DEQ. On March 16, 2012, counsel for DEQ forwarded correspondence to Tucker indicating that plaintiffs’ responses were incomplete and attached medical authorization forms for plaintiffs to execute. |4In this March 16, 2012 correspondence, DEQ demanded that each of the 72 plaintiffs execute the provided forms by March 23, 2012, to avoid the filing of a motion to dismiss.

On June 8, 2012, DEQ filed a “Motion to Dismiss with Prejudice for Failure to Comply with Consent Judgment Regarding Discovery,” asserting that it still had not received satisfactory discovery responses. In its motion and in this appeal, DEQ acknowledges that plaintiffs did in fact provide responses to discovery; however, DEQ complains that plaintiffs failed to provide valid executed medical authorization forms as requested in the discovery propounded upon plaintiffs. In their opposition to DEQ’s motion, plaintiffs argued their suit should not be dismissed because they did in fact provide timely discovery responses and any lack of diligence in providing full and complete responses is the fault of their counsel, not the plaintiffs individually.

On July 10, 2012, the trial judge issued a judgment granting DEQ’s motion, dismissing the 72 Guarino plaintiffs’ claims against DEQ and further assessed costs and attorney fees associated with the Motion to Compel and Motion to Dismiss against plaintiffs’ counsel. On appeal, plaintiffs allege that the trial judge abused her discretion in dismissing their claims for failure to respond to discovery where the evidence shows that the failure to respond is attributable to plaintiffs’ counsel and not the plaintiffs individually. We agree.

DISCUSSION

La. C.C.P. art. 1471(A) sets forth the sanctions a trial court may impose against a party for failure to comply with discovery orders and provides in pertinent part:

Uf a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others any of the following:
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

The trial court has much discretion in selecting the appropriate sanctions for failure to comply with discovery orders and a judgment granting a sanction will not be disturbed on appeal absent a clear abuse of that discretion. Coleman v. Asplundh Tree Expert Co., 01-1297 (La.App. 5 Cir. 3/26/02), 815 So.2d 268, 270; Hutchinson v. Westport Ins. Corp., 04-1592 (La.11/8/04), 886 So.2d 438, 440. Dismissal of a claim with prejudice, however, is a harsh sanction that should only be imposed in extreme circumstances and only after the litigant has been afforded the opportunity to be heard. Black v. Comfort, 08-239 (La.App. 5 Cir. 10/28/08), 996 So.2d 1187, 1189. In Horton v. McCary, the Louisiana Supreme Court adopted from the federal courts the following four factors to consider before taking the drastic action of dismissal: 1) whether the violation was willful or resulted from an inability to comply; 2) whether less drastic sanctions would be effective; 3) whether the violations prejudiced the opposing party’s trial preparation; and 4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.

Dismissal of a claim with prejudice is generally reserved for those cases in which the client, as well as the attorney, is at fault in failing to respond to discovery. Allen v. Smith, 390 So.2d 1300 (La.1980). To warrant dismissal of a lawsuit for failure to respond to court-ordered discovery, “the record must show that the noncompliance was due to willfulness, bad faith, or fault of the party |fihimself, as opposed to his counsel.” Comfort, 996 So.2d at 1189. This Court has specifically held that “[i]f the record does not contain evidence of the plaintiffs fault, rather than just his counsel’s fault, in failing to comply with discovery, the trial court abuses the wide discretion afforded it by the discovery statutes if it grants dismissal of plaintiffs lawsuit.” Id. at 1190.

We find that the record in this case does not contain any evidence to indicate that plaintiffs themselves willfully refused to respond to discovery and thus we find the trial judge abused her discretion in dismissing plaintiffs’ claims. First, the record reflects that the Guarino plaintiffs did not individually sign the Consent Judgment. Furthermore, at the hearing on DEQ’s motion to dismiss, plaintiffs’ counsel admitted that he did not even attempt to have plaintiffs execute the provided medical authorization forms. Moreover, the record shows that some of the plaintiffs appeared for the hearing and that neither plaintiffs’ counsel nor the trial judge asked those plaintiffs — who were present in the courtroom — to execute the forms at that time or questioned plaintiffs regarding their failure to execute the forms. There is no evidence to show that plaintiffs individually were aware of the discovery deadline or requirements yet willfully refused to comply. We find that the trial judge exceeded her discretion by imposing the ultimate sanction of dismissal with prejudice; the record before this Court is devoid of any evidence to support a finding that the failure to respond satisfactorily to discovery is due to plaintiffs’ willfulness, bad faith, or fault. Accordingly, we vacate that portion of the judgment dismissing the Guarino plaintiffs’ claims against DEQ and remand this matter to the trial court for further proceedings consistent with this opinion.

17The record, however, does support the trial court’s imposition of attorney fees and costs associated with the motion to compel and motion to dismiss against Tucker. At the hearing on DEQ’s motion to dismiss, Tucker offered no valid argument as to why he failed to provide the executed medical authorization forms or timely object to the relevance of the requested forms. Accordingly, we affirm that portion of the trial court judgment imposing costs and attorney fees against Tucker.

CONCLUSION

For the reasons provided herein, we affirm that portion of the July 10, 2012 trial court judgment assessing costs and attorney fees against Tucker and vacate that portion of the judgment dismissing plaintiffs’ claims. This matter is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; VACATED IN PART; REMANDED

      . As a result of the toxic release, seventeen lawsuits were filed. Of those seventeen lawsuits, twelve suits involved individually joined plaintiffs (the “Mass Joinder Plaintiffs"); the trial court classified the other five suits as class action suits (the "Class Action plaintiffs”). The trial court consolidated the twelve Mass Joinder Plaintiffs’ suits. The judgment appealed from only concerns the 72 individually joined Guarino plaintiffs in their suit against DEQ.

      . The record further reflects that a Rule 10.1 discovery conference took place on October 12, 2011, and on that date, plaintiffs’ counsel agreed to provide responses to discovery within thirty (30) days.

      .Tucker asserts that he submitted over 900 documents in response to DEQ’s discovery requests. Those responses are not provided in the designated record before us. However, DEQ does not dispute Tucker's assertion and at the hearing on the motion to dismiss, DEQ’s counsel acknowledged that plaintiffs "did respond to discovery.”

      . At the hearing on DEQ's motion to dismiss, Tucker argued that the discovery requests did not contain "enclosed” medical authorization forms as indicated.

      . DEQ had filed a motion to dismiss previously on April 25, 2012, which the trial court set for hearing on May 31, 2012. However, DEQ asserts that service had not been effected upon plaintiffs’ counsel prior to the hearing date. Accordingly, the trial court reset the hearing date to June 25, 2012.

      . 93-2315, pp. 10-11 (La.4/11/94), 635 So.2d 199, 203.

      . At the hearing on its motion to dismiss, counsel for DEQ argued that 57 of the 72 plaintiffs had been served with DEQ’s motion to dismiss. However, counsel acknowledged that each and every plaintiff had not been served with the consent judgment or motion to dismiss.

      . Tucker does not brief any assignment of error concerning this portion of the trial court judgment. Our review of the record, however, supports the trial court's assessment of costs and fees associated with the motion to compel and motion to dismiss.

      . At the hearing on the motion to dismiss, Tucker asserted that 46 of the 72 Guarino plaintiffs have not asserted medical injury claims against DEQ and thus argued that the requested medical authorization forms are irrelevant to those 46 plaintiffs' claims. The record however does not reflect whether Tucker objected to the relevance of the requested forms in plaintiffs’ written discovery responses.


author: HANS J. LILJEBERG, Judge.

text:
    STATE of Louisiana v. Maurice FLORANT.
    No. 12-KA-736.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Vincent J. Paciera, Jr., David B. Wheeler, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    James A. Williams, Roger W. Jordan, Jr., Attorneys at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2On May 9, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Maurice Florant, with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. On May 10, 2011, defendant pleaded not guilty. On October 25, 2011, a 12-person jury found defendant guilty as charged. On January 4, 2012, the trial court sentenced defendant to imprisonment at hard labor for a term of 15 years without benefit of parole, probation, or suspension of sentence. Defendant’s motion for appeal was granted and the trial court subsequently denied defendant’s motion to reconsider sentence. This appeal follows.

| ¿FACTS

On April 2-3, 2011, Officer Francisco Campos of the Gretna Police Department was on night patrol from 7:00 p.m. to 7:00 a.m. That evening, Officer Campos was patrolling the 1200 block of Burmaster Street in Gretna, Louisiana, an area he had patrolled “for the better part of three years.” In the area is Club J’s, a nightclub known for criminal activity, including gun and narcotics-related offenses. At approximately 2:55 a.m., Officer Campos observed a vehicle exit a parking lot in the area of Club J’s at a high rate of speed and continue down Burmaster Street, unable to stay within its lane. In response, Officer Campos initiated a traffic stop of the vehicle. The vehicle pulled over “relatively quickly” and the officer observed three people inside, prompting him to call for backup.

Upon Officer Campos’ request, the driver of the vehicle provided a Louisiana identification card, identifying him to be co-defendant, Myron Soublet. While conversing with Soublet, Officer Campos observed a firearm next to Soublet’s right leg, tucked into the seat. The officer informed the other officers that a firearm was present and ordered the occupants of the vehicle to make their hands visible. Officer Campos, with the assistance of three officers, removed the occupants from the vehicle. The driver was removed first, patted down, and detained near the rear of the vehicle. Next, Sergeant Scott Zemlick removed the defendant, who was seated in the front seat. Upon doing so, Sergeant Zemlick observed in plain view a firearm on the passenger seat. He testified that he noticed “where the seat kind of makes an ‘L’ there was a two-tone pistol with the barrel pointing towards the door and the grip of the handgun facing up towards the headrest in the crack of the seat.” Officer Campos then walked to the passenger side of the vehicle, where he observed the firearm in plain view on the front passenger seat. Finally, Officer Campos removed the backseat passenger and |4observed a third firearm on the backseat. Defendant and backseat passenger were additionally patted down and detained near the rear of the vehicle.

Officer Campos ran checks on each subject that revealed each had open attachments for his arrest. The check additionally revealed that defendant was previously convicted of manslaughter. Each subject was advised of his Miranda rights and placed under arrest.

Three semi-automatic pistols were retrieved from the vehicle. A Hi-Point .380 pistol was retrieved from the front seat, a Taurus .45 pistol from the front passenger seat, and a Springfield 9mm pistol from the backseat. Each was loaded with multiple rounds.

For the defense, Teniska Smothers-Singleton testified that on the night of April 2, 2011 and early morning of April 3, 2011, she went to Club J’s with Myron Soublet and his friend, Charles. Defendant was not with them. The three friends went to the club in a vehicle that Myron was driving. Ms. Singleton rode in the front passenger seat of the vehicle with her Taurus semiautomatic handgun in her possession. Ms. Singleton testified that she purchased the handgun at BJ’s Pawn Shop in January 2011. When they arrived at the club, she left the handgun under the front passenger seat. Later that evening, when the three friends left Club J’s, Ms. Singleton rode in the vehicle with Myron and Charles. However, when an intoxicated friend pulled up next to them, Ms. Singleton exited Myron’s vehicle and drove her friend’s vehicle, leaving her handgun under the front passenger seat of Myron’s vehicle. Ms. Singleton later learned that Myron and Charles were joined by defendant and that all three were arrested.

\ .DISCUSSION

Assignment of Error Number Three

In defendant’s third assignment of error, he argues that the evidence was insufficient to support his conviction of possession of a firearm by a convicted felon. Specifically, he contends that the State failed to present evidence that he possessed the weapon and that he had the requisite intent to possess it.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, 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 have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

The requirement that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to “the actual trier of fact’s |firational credibility calls, evidence weighing and inference drawing.” State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297 (quoting State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50, 56). “The reviewing court is not permitted ‘to decide whether it believes the witness or whether the conviction is contrary to the weight of the evidence.’ ” Id. It is not the appellate court’s function to re-evaluate the credibility of witnesses or reweigh the evidence. Id.

Defendant was charged with and convicted of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. That statute provides, in pertinent part, that “[i]t is unlawful for any person who has been convicted of a crime of violence as defined in La. R.S. 14:2(B) which is a felony ... to possess a firearm or carry a concealed weapon.” La. R.S. 14:95.1(A). To support a conviction under La. R.S. 14:95.1, the State must prove that the defendant possessed the firearm, that the defendant has a prior conviction for an enumerated felony, that the defendant possessed the firearm within ten years of the prior conviction, and that the defendant had the general intent to commit the crime. State v. Hernandez, 11-146, p. 5 (La.App. 5 Cir. 11/29/11), 82 So.3d 327, 331, writ denied sub nom., State ex rel. Hernandez v. State, 12-33 (La.8/22/12), 97 So.3d 357.

At trial, the State and defense stipulated that defendant was previously convicted of manslaughter on May 12, 2009 and was sentenced to five years imprisonment. Thus, on appeal, defendant does not challenge the evidence regarding his prior conviction or the ten-year cleansing period, but disputes the sufficiency of the evidence regarding the elements of possession and intent.

Actual possession of a firearm is not necessary to satisfy the possession element of La. R.S. 14:95.1; constructive possession is sufficient. Hernandez, 11-146 at 6, 82 So.3d at 331. Constructive possession is a legal term describing the situation in which a person who is not in actual possession of an object can nevertheless be considered in legal possession of the thing if it is subject to his dominion and control. Id. A person’s dominion over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. Id. However, mere presence in an area where a firearm is found, or mere association with an individual found to be in possession of a firearm, does not necessarily establish possession. Id. In addition, jurisprudence has added an aspect of awareness to the offense. Hernandez, supra. Therefore, the State must also prove that the offender knew that a firearm was in his presence and that the offender had the general criminal intent to possess the weapon. Id.

For instance, in State v. Storks, 02-754, p. 9 (La.App. 5 Cir. 12/30/02), 836 So.2d 638, 643, this Court upheld the defendant’s conviction for attempted possession of a firearm by a convicted felon. There, during a traffic stop, three individuals were removed from the stopped vehicle. Id., 02-754 at 3, 836 So.3d at 639. Upon their exit, one of the officers noticed a handgun in the middle of the rear seat where two passengers were seated, one of whom was the defendant. Id. On appeal, this Court determined that because the defendant was seated right next to the gun, he would have noticed it or hit it with his hand. Id., 02-754 at 8, 836 So.2d at 642. “[T]he gun was visible to the defendant and was within his reach and easily accessible.” Id. Thus, this Court concluded that the evidence was sufficient for a jury to find that the defendant was aware of the gun and that the |sgun was under his dominion and control such that he constructively possessed the gun with a general intent to possess it. Id., 02-754 at 9, 836 So.2d at 642-3.

Also, in State v. Allen, 12-412, pp. 1-4 (La.10/26/12), 101 So.3d 41, 42-4, the Louisiana Supreme Court upheld the defendant’s conviction of possession of a firearm by a convicted felon where the weapon was found under the backseat of the vehicle that the defendant was driving. The court determined the evidence was sufficient to convict despite testimony from the defendant’s girlfriend that she owned the vehicle and the weapon, and that she had placed the weapon under the backseat cushion without the defendant’s knowledge. Id.

In the instant case, the officers’ testimony indicates that defendant was sitting atop the firearm which had been stuffed into the crack of the seat. Although Ms. Singleton testified that it was her gun and that she had placed it under the front passenger seat without defendant’s knowledge, the supreme court’s decision in Allen makes clear that such facts do not preclude a finding that the firearm was subject to defendant’s dominion and control. Additionally, even if the jury believed Ms. Singleton left the weapon under the seat, the evidence indicates that the weapon was moved since it was ultimately discovered on the seat. Given the fact that defendant occupied the seat, it would be reasonable for a trier of fact to infer that defendant moved the gun. But, regardless of how the gun came to be on the seat, because defendant was essentially sitting on top of the weapon, a rational trier of fact could find defendant was aware of its presence, had easy access to it, |nand intended to possess it. Furthermore, the evidence does not indicate that the weapon was under the dominion and control of another occupant of the vehicle since the two other occupants each had a gun within their immediate control.

Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could find beyond a reasonable doubt that defendant was aware of the gun’s presence and that the gun was under his dominion and control, such that he constructively possessed the gun with a general intent to possess it.

This assignment of error lacks merit.

Assignment of Error Number One

In defendant’s first assignment of error, he argues that the State committed purposeful discrimination during jury selection when the prosecutor systematically struck African-American jurors without giving plausible race-neutral reasons for the strikes. As a result, defendant contends he is entitled to a new trial.

The Louisiana Constitution provides that an accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily and the number of challenges shall be fixed by law. La. Const. Art. 1, § 17. “In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant.” La.C.Cr.P. art. 799.

The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination on the basis of race in the exercise of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Batson decision is codified in La.C.Cr.P. art. 795(C), which provides that no peremptory challenge made by the State or the defendant shall be based solely upon the race of the juror. State v. Massey, 11-357, p. 20 (La.App. 5 Cir. 3/27/12), 91 So.3d 453, 467, writ denied sub nom., State ex rel. Massey v. State, 12 911 (La.9/21/12), 98 So.3d 332. Article 795(C) further provides that if an objection is made that the State or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory race neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Id., 11-357 at 20-1, 91 So.3d at 467.

In Batson, the United States Supreme Court established a three-step analysis to be applied when addressing a claim that peremptory challenges of prospective jurors were based on race. Massey, 11-357 at 21, 91 So.3d at 467. Under Batson and its progeny, the defendant challenging the peremptory strike must first establish a prima facie case of purposeful discrimination. Id. 11-357 at 21, 91 So.3d at 467-8. Second, if a prima facie showing is made, the burden shifts to the State to articulate a neutral explanation for the challenge. Id. 11-357 at 21, 91 So.3d at 468. Third, the trial court then must determine if the defendant has carried the ultimate burden of proving purposeful discrimination. Id.

In the first step, to establish a prima facie case, the defendant must show: (1) the prosecutor’s challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the prosecutor struck the venire person on account of his being a member of that cognizable group. Massey, supra. This three-prong showing by the defendant gives rise to “the necessary inference of purposeful discrimination” by the prosecutor. Id. “The inference is ‘necessary’ because if such an inference cannot be drawn from the evidence presented by the defendant, he is unable to make a prima facie case of purposeful discrimination and his Batson challenge expires at the threshold.” Id. If the trial court determines the defendant failed to establish the threshold requirement of a prima facie case, |uthen the analysis is at an end and the burden never shifts to the prosecutor to articulate neutral reasons. Id.

However, a trial judge’s demand that a prosecutor justify his peremptory strikes is tantamount to a finding that the defense has produced enough evidence to support an inference of discriminatory purpose. Massey, 11-357 at 22, 91 So.3d at 468. In any case, after the State offers a race-neutral explanation for the peremptory challenge, and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie showing becomes moot. Id.

In determining whether the defendant has established a prima facie case of purposeful discrimination in the State’s use of its peremptory challenges, the trial court should consider all relevant circumstances, including any pattern of strikes by the State against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of the peremptory strikes was motivated by impermissible considerations, the composition of the venire and the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination. Massey, supra. “The overall racial ... composition of the venire and the jury ultimately seated is a significant factor often considered in determining whether a prima facie ease has been established because it provides a ‘point of reference.’ ” Id. (quoting State v. Holand, 10-325, pp. 10-1 (La.App. 4 Cir. 4/18/11), 64 So.3d 330, 336).

If the prima facie showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Massey, supra. This second step does not demand an explanation that is persuasive, or even plausible. Id. (citing Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per curiam)). The race-neutral explanation must be one 112that is clear, reasonably specific, legitimate and related to the ease at bar. Id. At the second step of the Batson inquiry, the issue is the facial validity of the prosecutor’s explanation. Id., 11-357 at 23, 91 So.3d at 468 (citing Purkett, supra). Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral. Id.

Then, at the third step, the trial court must determine whether the defendant has established purposeful discrimination. Massey, 11-357 at 23, 91 So.3d at 469. It is at this third step that implausible explanations offered by the prosecution “may (and probably will) be found to be pretexts for purposeful discrimination.” Id. (quoting Purkett, 514 U.S. at 768, 115 S.Ct. at 1771). This final step of Batson involves evaluating the persuasiveness of the justification proffered, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Id. (citing Purkett, 514 U.S. at 768, 115 S.Ct. at 1771). In determining whether a defendant has met his burden of showing purposeful racial discrimination in the State’s exercise of peremptory challenges, the proper question is whether the proof offered by the defendant, when weighed against the State’s proffered race-neutral reasons, is strong enough to convince the trier of fact that the claimed discriminatory intent is present. Id. Thus, the focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. Id. The Supreme Court has held “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Id., 11-357 at 23-4, 91 So.3d at 469 (quoting Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005)).

11<,A trial judge’s findings on a claim of purposeful discrimination are entitled to great deference by the reviewing court because they depend largely on credibility evaluations. Massey, 11-357 at 24, 91 So.3d at 469. Credibility can be measured by factors including the prosecutor’s demeanor, how reasonable or how improbable the explanations are, and whether the proffered reason has some basis in accepted trial strategy. Id. Because the trial judge has the advantage of observing the characteristics and demeanor of the attorneys and prospective jurors, the trial court occupies the best position for deciding whether a discriminatory objective underlies the peremptory challenges. Id. Indeed, “[t]he trial court plays a unique role in the dynamics of a voir dire, for it is the court that observes firsthand the demean- or of the attorneys and venire persons, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript.” Id. (quoting State v. Juniors, 03-2425, p. 32 (La.6/29/05), 915 So.2d 291, 319, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006)). As a result, “[o]n appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” Id. (quoting Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008)).

The Supreme Court subsequently affirmed and applied the three-part Batson test in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) and Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). In Miller-El, the Supreme Court emphasized the trial judge’s responsibility to assess the plausibility of the prosecutor’s proffered race-neutral reason “in light of all evidence with a bearing on it.” Massey, 11-357 at 24-5, 91 So.3d at 469-70 (quoting Miller-El, 545 U.S. at 251-2, 125 S.Ct. at 2331-2). The Miller-El Court further stated:

|14A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.

Miller-El, 545 U.S. at 252, 125 S.Ct. at 2332.

Subsequently, in discussing the third step of the Batson inquiry in Snyder, the Supreme Court stressed the trial judge’s pivotal role in determining the plausibility of the State’s race-neutral explanation. Massey, 11-357 at 25, 91 So.3d at 470. The Supreme Court explained that the third step requires the trial court to evaluate the prosecutor’s credibility by assessing “not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Id. (quoting Snyder, 552 U.S. at 477, 128 S.Ct. at 1208). Referencing its earlier decision in Miller-El, the Supreme Court again stressed that “all of the circumstances that bear upon the issue of racial animosity must be consulted” in determining whether the explanation given for the strike is convincingly race-neutral. Id. (citing Snyder, supra).

In the present case, the record indicates that the trial court called two venire panels. During the first venire, after the State exercised three peremptory challenges as to prospective jurors Billy Gip-son (Caucasian male), Wanda Hatfield (African-American female), and Felicia Strahan (African-American female), the defense raised a Batson challenge to the consecutive striking of two African-Americans. When prompted to provide a race-neutral reason for striking Ms. Hatfield, the State offered that “she works for Social Services and is more likely to be liberal and forgiving.” For Ms. Strahan, the State offered that “she’s a teacher, more likely to be liberal and forgiving.” And, because “teachers want to hear both sides, teachers want to hear more than one witness,” the State “generally cut[s] all | ^teachers ... whether they’re white or black.” The trial court found these reasons to be sufficiently race-neutral.

The State subsequently exercised two more peremptory challenges for prospective jurors Kimberly Kelly (Caucasian female) and Jocelyn Robinson (African-American female). The defense raised another Batson challenge to the striking of Ms. Robinson. Although not prompted by the court, the State offered its justification for striking Ms. Robinson on the fact that she stated “she would need more than just an identification^] [sjhe’d want to see more evidence other than just witness testimony.” The trial court found this to be a race-neutral reason.

The State then exercised its sixth peremptory challenge for prospective juror Ronald Miller (African-American male). As this was the fourth African-American to be struck, the defense raised its third Batson challenge. The court requested the State to provide a race-neutral reason for striking Mr. Miller. The State explained that Mr. Miller was struck because “he said he needed more reasons ... he needed more than one witness.” Also, the State explained that Mr. Miller was “wearing sunglasses all during the proceedings[;] ... he just doesn’t seem to have respect for the Court.” The trial court found the State had provided a race-neutral reason.

The State exercised its seventh and final peremptory challenge against prospective juror Nieli Hebert (race not identified). The State did not exercise any peremptory challenges during the second venire. At the conclusion of voir dire, the 12-person petit jury that was empaneled included two African-American males.

Prospective Jurors Wanda Hatfield and Felicia Strahan

Defendant raised a Batson challenge to the peremptory strikes of pi'o-spective jurors Wanda Hatfield and Felicia Strahan on the basis that these two African-Americans were struck consecutively. Regardless of whether this amounted to relevant circumstances sufficient to raise an inference that the | ir,prosecutor struck these prospective jurors on the basis of their race, a trial judge’s demand that a prosecutor justify his peremptory strikes is tantamount to a finding that the defense has produced enough evidence to support an inference of discriminatory purpose. Massey, supra. Accordingly, here, when the court requested race-neutral reasons for these strikes, the court implicitly found the third prong for establishing prima fa-cie purposeful discrimination had been satisfied. As a result, the burden shifted to the State to articulate a race-neutral explanation for the challenge. Regarding Ms. Hatfield, the State explained she was struck because “she works for Social Services and is more likely to be liberal and forgiving.” For Ms. Strahan, the State explained she was struck because “she’s a teacher, more likely to be liberal and forgiving.” And, because “teachers want to hear both sides, teachers want to hear more than one witness,” the State “generally cut[s] all teachers ... whether they’re white or black.”

The Louisiana Supreme Court has recognized that a prospective juror’s employment field may be a sufficiently race-neutral reason for a peremptory strike. State v. Jacobs, 09-1304 (La.4/5/10), 32 So.3d 227, 235, reh’g granted in part, 09-1304 (La.6/18/10), 37 So.3d 994 (“Prosecutors often have prejudices against having persons with certain jobs on the jury, i.e. teachers, ministers, accountants, etc.”); accord State v. Alexander, 03-1291, p. 9 (La.App. 5 Cir. 3/30/04), 871 So.2d 483, 489, writ denied, 04-1063 (La.10/1/04), 883 So.2d 1007 (finding denial of a Batson challenge was not an abuse of discretion when prosecutor based his challenge on the prospective juror’s employment with the Department of Social Services); State v. Duplessy, 03-185, pp. 7-8 (La.App. 5 Cir. 7/29/03), 853 So.2d 77, 81-2, writ denied, 03-2416 (La.2/6/04), 865 So.2d 739 (finding denial of a Batson challenge was not an abuse of discretion when prosecutor based his challenge on the prospective juror’s occupation as a social worker at Ri-varde |17.Juvenile Detention Center, and might feel more biased toward rehabilitation than punishment); State v. Wilson, 09-170, pp. 12-3 (La.App. 5 Cir. 11/10/09), 28 So.3d 394, 405, writ denied, 09-2699 (La.6/4/10), 38 So.3d 299 (finding denial of a Batson challenge was not an abuse of discretion when prosecutor based his challenge on the prospective juror’s occupation as a teacher as well as the fact that the prospective juror had a family member who had been arrested for a domestic dispute); State v. Toussaint, 98-1214, p. 8 (La.App. 5 Cir. 5/19/99), 734 So.2d 961, 965, writ denied sub nom., State v. Touissant, 750 So.2d 980 (La.11/24/99) (finding denial of a Batson challenge was not an abuse of discretion when prosecutor based his challenge on the prospective juror’s occupation as a history teacher, the fact that there was already one history teacher on the jury, and the prosecution did not want another one).

Here, the State explained that it struck Ms. Hatfield and Ms. Strahan on account of their employment fields, which are indicative of a liberal and forgiving temperament. Weighing the State’s race-neutral explanation against defendant’s prima facie showing, the trial court was evidently not satisfied that defendant had carried his burden in showing purposeful discrimination. Therefore, in view of the foregoing, and giving great deference to the trial court, we conclude that the trial court properly rejected defendant’s Batson challenge regarding Wanda Hatfield and Felicia Strahan.

Prospective Juror Jocelyn Robinson

Defendant’s next Batson challenge was in response to the State’s peremptory strike of prospective juror Jocelyn Robinson. Despite not being prompted by the court to provide a race-neutral explanation, the State explained it struck Ms. Robinson because she had stated witness testimony alone would be | ^insufficient for her to find guilt beyond a reasonable doubt; she would want to see additional evidence.

Although it appears no Louisiana court has addressed this precise issue, other courts have found that a prospective juror’s holding the State to a higher burden of proof is a valid race-neutral reason for a peremptory strike. See State v. Kendall, 123 Conn.App. 625, 2 A.3d 990, 1018 (2010); Blanton v. State, 886 So.2d 850, 874 (Ala.Crim.App.2003), cert. denied, 886 So.2d 886 (Ala.2004), cert. denied, Blanton v. Alabama, 543 U.S. 878, 125 S.Ct. 119, 160 L.Ed.2d 131 (2004).

Here, the trial court did not find that defendant carried his burden in showing purposeful discrimination on the basis of Ms. Robinson’s race, finding the State’s explanation to be race-neutral. We agree with the trial court’s finding and further find that the trial court properly upheld the State’s exercise of its peremptory challenge as to Ms. Robinson.

For the first time on appeal, defendant asserts that Ms. Robinson was struck on account of her race because another prospective juror, Nicholas Tartaglia (presumably a Caucasian male), was retained on the petit jury despite offering an answer similar to Ms. Robinson’s regarding the State’s burden of proof. Because this assertion of discrimination was not presented to the trial court in his original prima facie showing, he cannot now present it for the first time on appeal. La.C.Cr.P. art. 841. However, even had defendant presented this argument to the trial court at the time of his Batson challenge, the record reflects that Mr. Tartaglia’s |1fland Ms. Robinson’s responses were not the same as to show that Ms. Robinson was struck on the basis of race.

During voir dire, the prosecutor asked the venire panel: “[I]f you agreed and you believed what [a witness was] saying, you did not think [the witness] was lying, you thought [the witness] was telling the truth, would you still need something else?” Prospective juror Jocelyn Robinson responded as follows:

MS. ROBINSON:
I would need a little more, even though I probably would believe them, but I would need more like a witness or some kind of evidence showing that, you know—
[STATE]:
Physical evidence?
MS. ROBINSON:
Yes.
[STATE]:
All right. That’s what you would want to see?
MS. ROBINSON:
Yeah.

Prospective juror Nicholas Tartaglia responded: “A little bit. Beyond a reasonable doubt I’d like a little bit more, but I mean if your question is a hundred percent you believe that person, then you could go off of that.” Mr. Tartaglia was retained on the petit jury.

The Supreme Court has held that “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Miller-El, supra.

We disagree with defendant’s assertion that Mr. Tartaglia’s response was the same as Ms. Robinson’s. Although Mr. Tartaglia at first indicated he would | gprequire more evidence than the testimony of one witness, he immediately withdrew from that position, indicating that if he believed the witness “a hundred percent,” he could find guilt beyond a reasonable doubt. On the other hand, Ms. Robinson did not withdraw from her stance of requiring more evidence. To the contrary, she stated that even if she did believe the witness, she would still require more evidence than witness testimony to find guilt beyond a reasonable doubt. Furthermore, prospective juror Kimberly Kelly, a Caucasian female, who also indicated that she would require more evidence than witness testimony, was peremptorily struck by the State.

As the foregoing makes clear, the State peremptorily struck Ms. Robinson and Ms. Kelly because each unequivocally indicated she would require more evidence than witness testimony to find guilt beyond a reasonable doubt. Conversely, Mr. Tartaglia equivocated before concluding that witness testimony would be enough to find guilt beyond a reasonable doubt. From this, we disagree that the prosecutor’s proffered reason for striking Ms. Robinson applied just as well to Mr. Tartaglia. In fact, the other prospective juror to whom the prosecutor’s proffered reason applied to as well was a Caucasian female who was also struck.

The trial court determined that defendant did not carry his burden in showing that the State’s strike of Ms. Robinson was on account of her race. Giving deference to this finding, we conclude that the trial court was not clearly erroneous in rejecting defendant’s Batson challenge regarding Joeelyn Robinson.

Prospective Juror Ronald Miller

Defendant’s third and final Batson challenge was directed toward the State’s striking prospective juror Ronald Miller. When the State struck Mr. Miller, the defense alleged racial discrimination on account of the fact that Mr. Miller was the fourth African-American to be struck by peremptory challenge. The court then ^requested the State to provide a race-neutral explanation for the strike. As a result, the burden shifted to the State to articulate a race-neutral explanation for the challenge. The State explained that Mr. Miller was struck because he said he needed more than one witness to find guilt beyond a reasonable doubt. The State also contended that the casually-clad Mr. Miller, in sunglasses and shorts, did not have respect for the court.

We find that the trial court did not abuse its great discretion in finding that the State provided a race-neutral explanation for its peremptory challenge of Mr. Miller. As articulated previously, a prospective juror’s holding the State to a higher burden of proof than required by law is a valid race-neutral reason for striking that juror. Kendall, supra; Blanton, supra. Additionally, in State v. Williams, 545 So.2d 651, 654-5 (La.App. 5 Cir.1989), writ denied, 556 So.2d 53 (La.1990) and writ denied, 584 So.2d 1157 (La.1991), this Court found a prospective juror’s wearing sunglasses in the courtroom, indicative of disrespect for the court, was a valid race-neutral explanation for striking that juror.

Accordingly, this assignment of error lacks merit.

Assignment of Error Number Two

In defendant’s second assignment of error, he argues that the failure of the court to accommodate petit jury member, Ernest Frederick, who was hearing-impaired, denied defendant a properly constituted jury, warranting a new trial.

During jury selection, the following discussion occurred regarding Mr. Frederick:

THE COURT:
Mr. Frederick.
[STATE]:
He’s acceptable, although I think he would need to sit in the front row and really pay attention.
^[DEFENSE]:
He had some real hard times hearing.
[STATE]:
What I think about him is I think the disability gives him a right to sit, if we can accommodate him.
THE COURT:
It does.
[STATE]:
And I think we can accommodate him by having him sit in the front row and raise his hand anytime he’s not hearing something.
THE COURT:
Or I could put him so that he’s seated next to the witness stand, or seated up here.
[DEFENSE]:
Whatever we need to do.
[STATE]:
Anyway, we don’t think he can be challenged for cause.
THE COURT:
He cannot.
[STATE]:
And we keep him.
[DEFENSE]:
I’m okay with him.
THE COURT:
All right.

La.C.Cr.P. art. 841(A) requires that “[an] irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence ...” This Court has held that to preserve the right to seek appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. State v. Smith, 11-638, p. 14 (La.App. 5 Cir. 3/13/12); 90 So.3d 1114, 1123.

123Here, defendant’s failure to object to or articulate any reservation regarding Mr. Frederick’s serving on the petit jury precludes an objection from being raised for the first time on appeal. This is supported by the contemporaneous objection rule and this Court’s holding that a defendant waives his right to review of irregularities in the selection of the jury when no objection is lodged in a timely manner. State v. Cheatteam, 07-272 (La.App. 5 Cir. 5/27/08), 986 So.2d 738, 745.

Accordingly, this assignment of error is not preserved for review and shall not be considered on appeal.

Moreover, the record was reviewed for errors patent pursuant to La.C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Accordingly, we find no errors requiring corrective action.

DECREE

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

AFFIRMED

      . Co-defendant, Myron Soublet, was also charged in the same bill of information with possession of a firearm, while in possession of a controlled dangerous substance, in violation of La. R.S. 14:95(E).

      . Officer Campos testified that defendant initially gave his name as Brent Florant, but ultimately admitted that his name was Maurice Florant.

      . A receipt for the weapon from BJ's Pawn Shop was introduced into evidence.

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Accordingly, we address the sufficiency of the evidence before defendant's other assignments of error.

      . It is noted that manslaughter is a crime of violence pursuant to La. R.S. 14:2(B)(4) and is a felony pursuant to La. R.S. 14:2(A)(4) and La. R.S. 14:31(B).

      . La. R.S. 14:10(2) provides that “[g]eneral criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.”

      . It is noted that in Storks, the defendant was charged with possession of a firearm by a convicted felon, but was convicted of the responsive verdict of attempted possession of a firearm by a convicted felon. Storks, 02-754 at 2, 836 So.2d at 639. Attempted possession of a firearm by a convicted felon requires the State to prove that the defendant had the specific intent to possess the weapon and that he committed an overt act towards the completion of that offense. Storks, 02-754 at 5, 836 So.2d at 640. (Emphasis added ). Pursuant to settled jurisprudence, this Court determined that because the defendant had failed to object to the jury charges including the responsive verdict of attempted possession of a firearm by a convicted felon, he was entitled to a reversal of his conviction for the lesser offense only if the evidence was insufficient to support a conviction for the charged offense. Id., 02-754 at 6, 836 So.2d at 641. Accordingly, this Court conducted a sufficiency analysis in regard to the charged offense of possession of a firearm by a convicted felon and determined that the evidence was sufficient to support the charged offense. Id., 02-754 at 7-9, 836 So.2d at 641-3.

      . However, the second circuit seems to have indirectly found that a prospective juror’s holding the State to a higher burden of proof is a valid race-neutral reason for a peremptory strike. In State v. Higginbotham, 46,975 (La.App. 2 Cir. 4/25/12), 122 So.3d 1, 2012 WL 1414271, the defendant argued on appeal that a Batson violation had occurred when the State exercised peremptory challenges against five African-American prospective jurors. Id. On rehearing, the second circuit found that the trial court did not err in rejecting the defendant’s Batson challenges. Id. In so doing, the court noted that one prospective juror's wife, who was also on the venire panel, had stated during voir dire that she would hold the State to a higher burden of proof. Id. The second circuit found that this was a sufficiently race-neutral reason for striking the husband. Id.