author: PITMAN, J.

text:
    Jessica Ann FARRIS, Plaintiff-Appellant v. Michael KOLB and Michelle Kolb, Defendants-Appellees.
    No. 47,886-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Hudson, Potts & Bernstein, L.L.P., Monroe, LA, by Robert M. Baldwin, Johnny R. Huckabay, II, for Appellant.
    Barnes Law Office, by Oscar P. Barnes, II, for Appellees.
    Before WILLIAMS, STEWART & PITMAN, JJ.
   PITMAN, J.

1; Jessica Ann Farris, Plaintiff, appeals a judgment dismissing her petition for damages and for an accounting. Defendants, Michelle and Michael Kolb, filed exceptions of res judicata and of no cause of action, which were granted by the trial court. For the reasons set forth herein, we reverse and remand to the trial court for further proceedings.

FACTS

In 2002, Plaintiffs mother was killed in an automobile accident. Plaintiffs stepfather was driving the car and was convicted of vehicular homicide. Plaintiff was 14 years old at the time. Her mother’s sister and brother-in-law, Defendants, petitioned the court to be appointed as cotutors of Plaintiff and one of her minor siblings. Plaintiff began living with Defendants, who filed a lawsuit on behalf of Plaintiff and her minor sibling in connection with the car accident. In December 2004, the lawsuit was settled and Defendants were awarded $265,943.02 on behalf of Plaintiff. This money was to be administered by Defendants, as cotutors, for Plaintiffs benefit until she reached the age of majority. State Farm Mutual Automobile Insurance Company issued a surety bond to protect Plaintiff.

On March 31, 2006, Plaintiff reached the age of majority and, shortly thereafter, moved out of Defendants’ home, but Defendants did not turn over the settlement proceeds to Plaintiff at that time. In October 2007, Defendants rendered to Plaintiff the remaining balance of her trust, totaling $12,364.86; and, thereafter, all parties executed a motion and order to cancel surety bond effectively agreeing to cancel State Farm’s surety bond on the trust that Defendants had maintained on Plaintiffs behalf. The ^motion and order to cancel surety bond, signed by the Honorable R. Wayne Smith of the Third Judicial District Court of Louisiana, Lincoln Parish, in December 2007, contained the following pertinent language:

Mover, Jessica Ann Farris, is now an adult, and movers, Michael Kolb and Michelle Kolb, have provided an accounting to mover Jessica Ann Farris, of her estate, and movers desire that the aforementioned bond be cancelled and terminated effective November 16, 2007.

Plaintiff received an accounting from Defendants on January 21, 2008, but Plaintiff asserts that it does not meet the requirements of La. C.C.P. articles 4393 and 3333. Plaintiff filed a petition requesting a formal accounting of the disbursement of her trust funds, under La. C.C.P. art. 4392, and seeking damages against Defendants for breach of their fiduciary duty to Plaintiff by excessively, irresponsibly and unreasonably disbursing the custodial funds. Plaintiff also requested to be reimbursed for any funds that were disbursed without court approval. See La. C.C.P. art. 4270. The trial court granted Defendants’ exceptions of res judicata and no right of action, reasoning that Plaintiffs signature on the motion and order to cancel surety bond was a legal compromise and it released Defendants from providing further accounting, from their legal responsibilities and from all liability to Plaintiff.

DISCUSSION

A compromise is an agreement between two persons who, for the purpose of preventing or ending a lawsuit, adjust their differences in writing by mutual consent in the manner upon which they have agreed. La. C.C. art. 3071; Wortham v. Fielder, 80,102 (La.App.2d Cir.4/8/98), 711 So.2d 399, writ denied, 98-1254 (La.6/19/98), 721 So.2d 474; Green Giant Co. v. Adcock Distribution Co., 420 So.2d 524 (La.App. 2d Cir.1982). A compromise is valid only if there is a meeting of minds between the parties as to exactly what they intended at the time the compromise was reached. La. C.C. art. 3071; Shell Oil Co. v. Jackson, 94-1267 (La.App. 1st Cir.5/5/95), 655 So.2d 482. Where compromises and settlements are concerned, contracts must be in writing or read aloud and transcribed into a court record. La. C.C. art. 3072; Braun Welding Supply v. Praxair, Inc., 94-1336 (La.App.3rd Cir.4/5/95), 654 So.2d 388.

The parties’ intent in executing a compromise is normally discerned from the four corners of the document; extrinsic evidence is normally inadmissible to explain, expand or contradict the terms of the instrument. Brown v. Drillers, Inc., 630 So.2d 741 (La.1994). In the present case, Plaintiff and Defendants signed a document that was titled and intended to release the surety, State Farm, and nothing more. There is no language in the motion and order to cancel surety bond that would give this court any reason to assume that the intent of the Plaintiff was to release Defendants of any liability for the mismanagement of Plaintiffs trust funds. The motion and order to cancel surety bond is not a compromise between the parties and does not preclude Plaintiff from bringing any claims she may have against Defendants.

Res Judicata

The doctrine of res judicata is stricti juris and any doubt as to its application must be resolved in favor of maintaining the action. McNeal v. State Farm, Mut. Auto. Ins. Co., 278 So.2d 108 (La.1973). It is true that a valid compromise will preclude the parties from bringing an action based upon the matter that was compromised. La. C.C. art. 3080. As discussed above, there was no compromise releasing Defendants’ liability or responsibility to provide an accounting when requested; and, therefore, the doctrine of res judicata does not apply.

Request for an Accounting

Plaintiffs request for a final accounting is proper. In fact, it is a prerequisite for any further claims that she may have against Defendants. La. C.C.P. art. 4392. Further, the language of La. C.C.P. art. 4392 states that a court shall order the filing of a final account upon the application of the former minor after the expiration of the tutorship. Plaintiffs petition, which acts as an application for a final accounting, was filed within the four-year prescriptive period, and Defendants should be ordered to provide a formal accounting of the disbursement of Plaintiffs funds.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting Defendants’ exceptions of res judicata and of no cause of action and dismissing Plaintiffs action with prejudice is reversed and this matter is remanded to the trial court for further proceedings. Costs of appeal are assessed to Defendants, Michael Kolb and Michelle Kolb.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: SEXTON, J. (Ad Hoc).

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Aljerwon P. MORAN, Appellant.
    No. 47,804-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Edward K. Bauman, Lake Charles, LA, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Neal G. Johnson, G. Mennon Campbell, Assistant District Attorneys, for Appellee.
    Before BROWN, LOLLEY and SEXTON (Ad Hoc), JJ.
   SEXTON, J. (Ad Hoc).

| ¶ Following a jury trial, the defendant, Aljerwon Moran, was convicted of second degree murder and attempted second degree murder. He was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence on the second degree murder conviction and to 30 years at hard labor without benefit of parole, probation or suspension of sentence on the attempted second degree murder conviction, with credit for time served. The sentences were ordered to run consecutively. The defendant appeals. We affirm the defendant’s convictions and sentences.

FACTS

On February 9, 2011, a shooting occurred at an apartment complex located near the intersection of South Second Street and Filhiol Avenue in West Monroe. Roderick McCullon, age 20, was killed by a gunshot to the lower back which severed his spinal cord. His 41-year-old cousin, Marvin Fritz, was shot in the side, but survived.

At approximately 9:00 p.m., the West Monroe police responded to a “shots fired” call around South Second Street and Fil-hiol Avenue. Initially, no one was found in connection with this call. However, at about 9:25 p.m., the police received a call concerning an injured person at an address in the 400 block of South Second Street. At the scene, Officer Aubrey Rawls came into contact with Qurnesha Martinez, who pointed the officer to the spot where McCullon was lying on the ground near a fence. The officer was unable to detect a pulse. Emergency personnel transported McCullon to the | ghospital where he was pronounced dead. When McCullon was moved at the scene, a pair of channel lock pliers was found underneath him.

Subsequently, it was learned that a second shooting victim, Fritz, had been taken to the hospital by a family member shortly before McCullon was found. Fritz had run into a relative’s house on Filhiol, spitting up blood and declaring that his cousin Roderick was dead. While a relative drove him to the hospital, Ms. Martinez, a family friend, had gone to search for McCullon.

Randy Evans, the detective investigating the shooting, received a call from the defendant’s father who stated that his son had been involved in a shooting at an apartment complex. At the detective’s request, the defendant’s father brought his son to the police station. After advising the defendant of his rights, the detective interviewed the defendant in his father’s presence. The defendant stated that he and a friend, Lawrence Potter, were playing video games at the apartment on South Second Street where the defendant lived with his girlfriend when they were interrupted by a knock at the door. When he answered the door, two men barged in; one of them announced that it was a robbery. The defendant said he tussled with the taller of the two men (presumably Fritz, who was about six feet tall). The shorter man (presumably McCullon, who was 5'5") attacked Potter with a monkey wrench or pliers. The defendant said he grabbed his 9mm gun from his couch and fired at the two intruders, who fled. According to the defendant, he and Potter left the apartment five to 10 minutes later and drove to the residence of the defendant’s mother in Potter’s white Charger.

| ^During his statement to the police, the defendant adamantly insisted that everything happened in the apartment and that he did not go outside during the confrontation with Fritz and McCullon. However, his father interrupted and said the defendant told him that it happened outside. The defendant was also asked about information the police had received about his involvement with drugs. He admitted to occasionally selling a blunt of marijuana. The police retrieved the gun used in the shooting from the defendant.

In the meantime, investigators at the scene detected a bullet furrow in the ground near the spot where McCullon was found. Backtracking from it, they discovered bullet casings leading back toward the landing of the defendant’s apartment. Nine shell casings were located on the ground outside of the defendant’s apartment. One of the shell casings was found 28 feet from the door of the defendant’s apartment. The officers determined that the distance from the door of the defendant’s apartment to the spot where MeCul-lon was found was 53 feet.

The investigators found no indication that there had been any physical altercation in the defendant’s apartment. There were no bullet holes, shell casings or blood evidence. One officer observed at trial that everything inside the apartment seemed undisturbed. During their search of the apartment, the police discovered a bag containing cigars and a small amount of a substance later identified as marijuana. Additionally, they found a digital scale and some hanging scales. According to the police, these items are commonly associated with marijuana distribution.

14 Crime lab analysis of the shell casings determined that all nine of them were fired from the defendant’s gun, a 9mm Hi-Point pistol. The magazine of this weapon could hold 10 cartridge cases. According to the crime lab firearm expert, the shell casings ejected to the right of the weapon and to the back an average of five to 10 feet.

On February 16, 2011, the defendant was arrested for second degree murder and attempted second degree murder. A grand jury indicted him for the same charges in April 2011.

In October 2011, defense counsel filed two motions in limine. One sought admission of statements to the police by two girls who said that prior to the shooting, McCullon and Fritz were talking about “hitting a lick,” a street term indicative of committing a crime for financial gain. The second motion sought to bar testimony of the defendant’s alleged use of and involvement in illegal drugs. At a pretrial hearing, the trial court denied the latter motion, ruling that the testimony pertaining to drugs was res gestae. The defense then withdrew its motion pertaining to the hearsay statements of the girls.

Jury trial was held in November 2011. Fritz testified that he lived in Michigan but was visiting family members in the West Monroe area in February 2011. He said that he and McCullon had spent the day of the shooting at a disabled relative’s house on Filhiol; McCullon provided care and living assistance to this relative. The two men left the house and were walking to a convenience store when they decided to go see a guy with whom MeCullon was having an “issue.” Fritz knocked on the door of the |sapartment and asked the man who answered the door about the problem between him and MeCullon. The man took a swing at Fritz, and a physical fight ensued between them. MeCullon ended up fighting with another man who was present in the apartment. According to Fritz, he got only two to three feet inside the apartment door.

The next time Fritz saw MeCullon, he was on his stomach near the fence outside. The man MeCullon was fighting was on top of him. Seeing that MeCullon was losing his fight, Fritz testified that he disengaged from his own fight with the defendant and rushed to McCullon’s aid. At this point, he heard the first shot, but he did not see who was firing. Fritz ran. As he approached the street, a shot struck him and spun him. However, he was able to continue running. He fled to his relative’s nearby house.

Fritz denied that he and MeCullon intended to commit a robbery. He denied having any weapon and insisted that he did not know of MeCullon having any weapon. He identified the pliers found near McCul-lon as a tool he had been using earlier in the day and which he had left in a toolbox at his relative’s nearby house.

Two neighbors recounted hearing the shots. A woman on South Second Street heard shots, then saw a man with a handgun running; she estimated his height as between 5'5" and 5'8". (The record indicates that the defendant is 5'8" and Potter is 5'6".) She then saw a white Charger pull off. Another neighbor said he heard the shots; five minutes later, he saw the white Charger drive off.

|(;The state presented the testimony of Dr. Frank Peretti, the forensic pathologist who performed MeCullon’s autopsy. The parties stipulated that he was an expert in forensic pathology. He testified that MeCullon died as the result of a single gunshot wound that entered on the right lower back and exited mid-chest. The bullet went through the spinal cord and the thoracic aorta. There was no evidence on the skin of close range firing, which indicated that it was a distance gunshot wound. According to Dr. Peretti, the trajectory of the bullet from back to front, right to left in an upward direction suggested that MeCullon was leaning forward, running when he was shot. Additionally, because the bullet completely transected the spinal cord, the doctor opined that MeCullon would have collapsed almost immediately and been unable to walk or run.

When Detective Evans testified during the state’s case, he stated on cross-examination that the victims’ clothes were in the police evidence locker. Defense counsel lodged a Brady complaint, asserting that he had not been informed of the clothes during discovery. The prosecutor responded that he believed that the defense had, in fact, been given an evidence sheet listing all evidence. The detective retrieved the clothes and brought them to court where they were displayed to the jury. The clothes were generally of dark colors, black or dark blue. MeCullon had also been wearing a camouflage jacket or sweatshirt. A box cutter was found with Fritz’s clothes.

|7The defendant testified on his own behalf. His testimony was consistent with his statement to the police in many respects. He said that he and Potter were smoking marijuana and playing video games when they heard a knock at the door. A taller man barged in, announcing “It’s a robbery, bitch.” Then the second, shorter man entered; he had something in his hand with which he tried to hit Potter in the head. During the ensuing fight with the taller man, the defendant said he ended up on his couch. He grabbed his 9mm gun, and fired at the two intruders, who then ran from the apartment.

The defendant said he continued to fire at the fleeing men until he ran out of bullets. The defendant said that he had no idea he had hit them. However, Potter, who also testified for the defense, said that the first shot hit one of the intruders and that all shots were fired in the apartment. The defendant and Potter both testified that they shut the door after the intruders fled and did not leave until at least five minutes later. The defendant said he straightened the furniture before leaving. The defendant testified that he swept the bullets on a rug or mat and then tossed them off the mat outside the apartment. He admitted lying to the police when he said the shell casings had to be in the apartment. Potter admitted telling the police that they swept out all the shell casings; he then said he merely saw the defendant with a broom and assumed that was what occurred.

When asked about his father’s statement during the police interview that the defendant had told him that everything happened outside, the defendant said that he guessed his father had a “bad misunderstanding.” He | salso accused the police of cutting “a lot of stuff’ from the DVD of his police interview.

After the jury retired to deliberate, the defendant moved for a mistrial on the grounds that there was a Brady violation as to the clothing of the shooting victims and that the state had failed to inform the defense that Dr. Peretti was not licensed by the American Board of Pathology. The trial court denied the motion. It noted that the clothes had been produced by the state and used by the defense in its case. Additionally, the court observed that the defense had had an opportunity to test Dr. Peretti’s qualifications in open court but chose not to do so.

The defendant was convicted on both charges. The defense filed a motion for new trial which primarily relied upon the same issues raised in its motions in limine and its motion for mistrial. The motion for new trial was denied. Thereafter, the trial court sentenced the 24-year-old defendant to the mandatory term of life imprisonment without benefits for the offense of second degree murder. As to the conviction for attempted second degree murder, the court imposed a sentence of 30 years at hard labor without benefits, with credit for time served. The court ordered that the sentences be served consecutively.

The defendant appealed, asserting four assignments of error.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his first assignment of error, the defendant argues that his counsel was ineffective in several respects: (1) failing to attempt to introduce the police offense report and affidavit of arrest; (2) failing to subpoena the two Ingirls who allegedly heard Fritz and McCullon planning a robbery; (3) failing to examine evidence, i.e., the victims’ clothing; and (4) failing to object to Dr. Peretti’s qualifications.

Law

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Egan, 44,879 (La.App.2d Cir.12/9/09), 26 So.3d 938; State v. Wry, 591 So.2d 774 (LaApp. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. See Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App.2d Cir 14/4/07), n 954 So.2d 823, writ denied, 2007-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir. 1991).

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Grant, supra.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Egan, supra. Because the record is sufficient to adequately resolve the issue of the effectiveness of the defendant’s counsel, and in the interest of judicial economy, we will address this defendant’s claims on appeal.

| ^Police report and affidavit of an-est

The offense report and affidavit of arrest prepared by Detective Evans contain statements indicating that Fritz and McCullon were shot during their attempted robbery of the defendant. The offense report indicates the homicide was a “criminal killed by private citizen” and “criminal killed in commission] of crime.” Both documents also contain references to the statements of the two girls who told police that Fritz and McCullon were going to “hit a lick” or rob someone.

Police reports are expressly excluded from the public records exception to the hearsay rule. La. C.E. art. 803(8)(b)(i). Therefore, the offense report and affidavit of arrest were inadmissible as hearsay. Any attempt by defense counsel to have the report and affidavit admitted into evidence would have been meritless and proved futile. The failure to object to invalid errors may not be the proper subject of a claim of ineffective assistance of counsel. State v. Grant, supra. Thus, the complained of failure cannot provide a basis for a claim of ineffective assistance of counsel.

Failure to subpoena girls

Appellate counsel argues that trial counsel’s failure to subpoena the girls to testify was prejudicial to the defendant because he was less likely to be successful in convincing the jury that a robbery was occurring, thereby hindering his argument of justification for his use of deadly force.

A review of the record reveals that the decision of the defendant’s trial counsel to not subpoena the girls was clearly a strategic decision. Not |i2only did the females tell the police that Fritz and MeCullon were going to “hit a lick,” they also advised officers that the place they planned to rob was the location where MeCullon had purchased drugs the night before the shooting incident and that he had seen items he wanted to steal during the buy. Considering that the state was using the defendant’s alleged drug dealing to discredit his claims of justifiable homicide, it is apparent that trial counsel made the strategic decision to forgo the girls’ testimony of intent to rob the defendant to prevent the admission of their testimony about the defendant’s drug dealing.

We afford great deference to trial counsel’s tactical decisions and trial strategy. State v. Grant, supra. The defendant’s argument is, therefore, without merit.

Failure to examine the victims’ clothing

Appellate counsel argues that trial counsel’s failure to examine the victims’ clothing before trial constitutes ineffective assistance of counsel. (This also forms the basis for the defendant’s third assignment of error, discussed infra.) However, as noted supra, the clothing was produced during trial and fully utilized by trial counsel. Consequently, we find that the defendant suffered no prejudice as a result of this alleged deficiency. This argument is without merit.

Failure to object to qualifications

Appellate counsel argues that trial counsel’s failure to traverse or object to the qualifications of Dr. Peretti, the forensic pathologist who performed McCullon’s autopsy, amounted to ineffective assistance. We lañóte that trial counsel did raise the argument in his motion for new trial, which the trial court denied. If, in fact, trial counsel was aware at the time of Dr. Peretti’s testimony that he was not certified by the American Board of Pathology, it was clearly a strategic decision not to traverse his qualifications in light of Dr. Peretti’s extensive curriculum vitae and vast experience. Moreover, even if trial counsel had objected to Dr. Peretti’s qualifications, it is highly unlikely it would have had any effect on the outcome of the trial. This argument lacks merit.

Based on the foregoing, we find no merit to the defendant’s assignment of error asserting ineffective assistance of counsel.

MOTION IN LIMINE

The defendant argues that the trial court erred in refusing to grant his motion in limine wherein he sought to suppress any reference to his pre-arrest statements to officers that he used marijuana and occasionally sold blunts. The trial court found that the statements were admissible as res gestae. On appeal, the defendant asserts that the statements are not res gestae; rather, he urges that the statements constitute inadmissible other crimes evidence and that the prejudicial effect of the statements outweigh their probative value. The defendant’s arguments are misplaced.

Generally, a trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Preston, 47,-273 (La.App.2d Cir.8/8/12), 103 So.3d 525.

The general prohibition against the use of other crimes evidence does not bar admission of criminal acts which are an inseparable part of the |14whole deed. State v. Haarala^ 398 So.2d 1093 (La.1981). Even though the state did provide notice of intent in the instant case, the state is not required to give notice of its intent to offer evidence of acts integral to the current offense. La. C. Cr. P. art. 720; State v. Haarala, supra.

The test to determine whether other crimes evidence is an integral act is whether or not the exclusion of the evidence would deprive the state’s case “of narrative momentum and cohesiveness,” as well as bar the state from supporting its conclusions and the trier of fact from drawing any inferences necessary for an honest verdict. State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074; State v. Preston, supra.

The statements made by the defendant to police just hours after the incident regarding his illegal drug use and selling of drugs was clearly part of the narrative of the entire event and necessary to the state’s cohesive presentation of the events that took place. There was, therefore, no abuse of discretion in the trial court’s denial of the defendant’s motion in limine.

This assignment of error is meritless.

MOTION FOR MISTRIAL

In this assignment of error, the defendant challenges the trial court’s denial of his motion for mistrial, which was based on the state’s alleged failure to disclose to the defense the victims’ clothing and Dr. Per-etti’s lack of certification by the American Board of Pathology. First, as previously mentioned, the defendant claims that his trial counsel first became aware that the victims’ clothes were in the evidence locker during the testimony of Detective Evans. He argues on appeal that this was exculpatory evidence |1sthat the state failed to disclose. Next, the defendant argues that the state was aware that Dr. Peretti was not board certified and should have disclosed this allegedly exculpatory fact to defense counsel.

Law

Suppression by the prosecution of evidence favorable to an accused upon his request for such evidence violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, supra; State v. Carter, 43,304 (La.App.2d Cir.6/18/08), 987 So.2d 364, writ denied, 2008-2752 (La.9/25/09), 18 So.3d 86.

The term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence. State v. Carter, supra.. Under Brady, the state must disclose all evidence material to guilt or punishment and favorable to the defendant. State v. Black, 34,688 (La.App.2d Cir.5/9/01), 786 So.2d 289, writ denied, 2001-1781 (La.5/10/02), 815 So.2d 831. There are actually three components of a true Brady claim: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the state, either willfully or inadvertently; and (3) prejudice must have ensued. State v. Carter, supra.

The state’s duty of disclosure under Brady applies irrespective of the nature of the discovery request and even when a request has not been made. Evidence is material for Brady purposes if there is a reasonable probability, sufficient to undermine confidence in the outcome, that disclosure of the |1fievidence would have produced a different result. State v. Black, supra. The question to be answered is whether the undisclosed evidence would have created a reasonable doubt that would not otherwise exist, with reasonable doubt being determined in the context of the entire record. State v. Black, supra.

A discovery violation involving the state’s failure to disclose exculpatory evidence does not require reversal as a matter of the due process clause unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result. State v. Carter, supra. In addition, failure to comply with discovery merits mistrial only when the state’s conduct substantially affects a defendant’s right to prepare a defense, or when it rises to the level of a legal defect. The trial court may offset the effect of late disclosure of information to the defendant by calling a recess or granting a continuance and the propriety of the remedy for late disclosure of information depends on the circumstances of each case. State v. Black, supra.

Discussion

First, regarding the victims’ clothing, again, although disclosure was late, it was made available for the defendant’s case in chief and defense counsel thoroughly used the evidence in questioning Detective Evans for the desired purpose of making the point that Fritz and McCullon were dressed in dark clothing. There is no indication that the result of the trial would have been different had defense counsel had possession, of the victims’ clothing earlier.

|17Second, the lack of board certification of Dr. Peretti would have had little to no impact on the outcome of this trial and did not in any way deprive the defendant of a fair trial. The evidence amply supports the jury’s verdict and that verdict would not likely have changed had the jury been aware that Dr. Peretti lacked a certification.

This assignment of error is without merit.

HEARSAY EVIDENCE

In this assignment of error, the defendant challenges the trial court’s ruling that held the statements of the two girls were hearsay and disallowed defense counsel from questioning Detective Evans about their statements. The defendant further argues that the statements were not offered for the truth of the matter asserted, but to impeach Fritz’s testimony. Alternatively, the defendant argues that the statements were part of the res gestae of the offense.

The two girls are out-of-court declar-ants. The statements concerned the intent of Fritz to rob the defendant. There is no exception to the hearsay rule that would allow these statements to be admissible through cross-examination of Detective Evans or otherwise. There is no provision allowing a witness to be impeached through testimony of another witness by out-of-court statements of unavailable de-clarants. The only purpose that could have been served by the statements being admitted was to tend to show that Fritz intended to rob defendant, i.e., for the truth of the matter asserted. Furthermore, we do not see how the statements, which pertained to a conversation that allegedly happened the day before the shooting and liswere given to the police two days after the shooting, can be construed as being res gestae.

This assignment of error lacks merit.

ERROR PATENT

La. C. Cr. P. art. 873 requires that 24 hours must elapse after a motion for new trial is overruled and before the defendant is sentenced, unless the defendant waives the delay. State v. Bruce, 47,055 (La. App.2d Cir.5/25/12), 93 So.3d 717. The record shows no such delay or waiver. The defendant does not raise any objection in his appeal and there is no showing of prejudice; therefore, we find that the error is harmless.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The name of this street is spelled a variety of ways in the record, including Filhoil and Filhol. We utilize the spelling used by the court reporter in the trial transcript.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


author: LOLLEY, J. WILLIAMS, J.,

text:
    Alberta DYER, Plaintiff-Appellant v. NURSECALL NURSING AND REHABILITATION/IRVING PLACE ASSOCIATES, LLC, Defendant-Appellee.
    No. 47,927-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 8, 2013.
    Rehearing Denied June 20, 2013.

      Lee Aronson, for Appellant.
    Adrienne L. Black, New Orleans, LA, Nursecall Nursing and Rehabilitation/Irving Place Associates, LLC, for Appellee.
    Cynthia T. Batiste, for Appellee, Louisiana Workforce Commission.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   LOLLEY, J.

hThe claimant, Alberta Dyer, appeals a judgment by the First Judicial District Court, Parish of Caddo, State of Louisiana, affirming the Louisiana Board of Review’s decision which upheld the denial of her claim for unemployment compensation benefits. The district court found that the administrative decision was based on sufficient competent evidence. For the following reasons, we affirm the district court’s judgment.

Facts

Alberta Dyer, the claimant, began working as a Registered Nurse (“RN”) with Nursecare Nursing & Rehabilitation Center/Irving Place Associates, L.P. (“Nurse-care”), in June 2006. Dyer worked as the RN supervisor of Nursecare’s facility on weekends. On January 21, 2011, Dyer was in the process of distributing medication to a patient on the third floor, the psychiatric unit housing persons with Alzheimer’s and dementia. The patient was changing clothes when Dyer received an emergency call that another patient on the first floor needed a tracheotomy tube reinserted. Apparently, Dyer was the only person on duty qualified to replace the tube, so she placed the medication on the patient’s bedside table and left to treat the other patient. While Dyer was gone, a nurse assistant found the medication in the patient’s room and reported to the administrator that medicine had been left unattended.

On January 24, 2011, Dyer met with Nursecare’s Director of Nursing, Allyson DeLaune, who terminated Dyer for three reasons: leaving medication unsecured at the patient’s bedside; failing to lock the medication cart that was in the hallway; and, failing to ensure that hydration was | ^prepared for the patients. A written “Employee Counseling Form” stated the final disposition as termination.

Subsequently, Dyer filed an application for unemployment compensation benefits with the Louisiana Workforce Commission (“LWC”), which sent a notice of claim to Nursecare requesting the reason for Dyer’s separation from employment. Nursecare responded that Dyer had been fired for “poor job performance.” On March 23, 2011, the LWC mailed notice to Dyer that she had been disqualified for unemployment benefits, stating: “You were discharged from your employment because you failed to follow a reasonable request of your employer/supervisor in regard to your work. Your discharge was for misconduct connected with the employment.”

Dyer then filed an administrative appeal with the LWC Appeals Tribunal. During a telephone hearing, the administrative law judge (“ALJ”) heard testimony from Dyer and DeLaune, Nurseeare’s representative for the hearing. The ALJ found that Dyer:

• had been waiting for a patient to change clothes to administer medication;
• was called to assist with another patient who needed a trach tube inserted;
• placed the medicine on the patient’s bedside table and left the room;
• admitted leaving medication unattended with a patient while responding to an enaergency; and
• knew leaving the medicine cart unlocked was a critical offense subjecting claimant to immediate discharge.

|sThe ALJ concluded that based on these findings, Dyer’s actions constituted wilful misconduct on the job disqualifying her for unemployment benefits. Dyer then appealed to the Louisiana Board of Review (“the Board”), which affirmed the decision to disqualify her from receiving benefits, adopting the ALJ’s factual findings as supported by a preponderance of the evidence.

Upon exhausting these administrative remedies, Dyer filed a petition for judicial review of the denial of unemployment benefits with the district court. After hearing argument, the district court found that the Board’s decision was supported by sufficient and competent evidence. The district court rendered judgment affirming Dyer’s disqualification from receiving unemployment benefits, which decision Dyer now appeals.

Discussion

On appeal, Dyer argues the trial court erred in affirming the denial of unemployment compensation benefits, claiming she is entitled to receive unemployment benefits because Nursecare failed to prove that she was discharged for misconduct connected with her job. We disagree.

Louisiana R.S. 23:1601(2)(a) provides, in pertinent part, that an employee shall be disqualified for benefits:

If the administrator finds that he has been discharged by a base period or subsequent employer for misconduct connected with his employment. Misconduct means mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others. (Emphasis added.)

The decision of the board of review is subject to judicial review. La R.S. 23:1634. Factual findings of the board of review are conclusive if | ¿supported by sufficient evidence. The scope of judicial review is confined to questions of law and to whether the administrative decision is supported by sufficient evidence. La. R.S. 23:1634(B); Bowden v. Louisiana Bd. of. Review, Office of Regulatory Services, 46,-048 (La.App.2d Cir.01/26/11), 57 So.3d 513.

The employer bears the burden of proving by a preponderance of the evidence that the discharge resulted from disqualifying misconduct. Banks v. Administrator, Dept. of Employment Sec. of State of La., 393 So.2d 696 (La.1981); Brinson v. Administrator, Div. of Employment Sec., 34,988 (La.App.2d Cir.08/22/01), 793 So.2d 552. A violation of an employer’s rule does not per se constitute misconduct sufficient to disqualify a claimant from receiving unemployment benefits. However, a deliberate violation of a policy or rule adopted by the claimant’s employer constitutes misconduct for purposes of the unemployment compensation statute, if the claimant was aware of the policy or rule. Bowden, supra. Whether a policy violation warrants withholding unemployment benefits is a question which must be determined not by examining the employer’s rule, but by applying the statute. Bowden, supra; Lafitte v. Reliant Energy Resource Corp., 37,-709 (La.App.2d Cir.10/17/03), 859 So.2d 238.

The key portion of the statutory definition for “misconduct” concerns Dyer’s alleged “violation of a policy or rule adopted to insure orderly work or the safety of others.” La. R.S. 23:1601(2)(a). The primary reason for Dyer’s termination was violation of the policy against leaving medicine unattended and available to patients. Here, the judicial review properly Isconsisted of a consideration of the applicable law and whether the administrative decision was supported by sufficient evidence. Specifically, the district court determined that the administrative decision was supported by “sufficient and competent evidence.” We agree. The evidence considered by the ALJ clearly showed that Dyer was in violation of Nursecare’s written policy, which amounts to willful misconduct on the job. DeLaune testified that she terminated Dyer for leaving medication unsecured in a resident’s room, on the psych floor, and Dyer knew such an action was against company policy, which policy was contained in the employee handbook. DeLaune stated that leaving medication unattended in a resident’s room was a critical offense which justified Dyer’s immediate discharge as provided in the employee handbook. Dyer acknowledged at the hearing that she left the medication at the patient’s bedside.

Notably, the word “misconduct” in La. R.S. 23:1601 is used to connote intentional wrongdoing. An intent to do wrong must be present. Banks, supra at 699. In Banks, the Supreme Court made a factual determination that the claimant did not intend to do wrong, based on the absence of legal evidence. There, the element of intentional wrongdoing was absent, because the evidence did not support a finding that the claimant willfully disregarded her employer’s rules. Id. Here, Dyer was aware of the policy, yet made a hasty decision resulting in her violation of the policy, a critical one in place for patient safety. Although Dyer’s action in violating Nursecare’s policy may have been justified in her opinion, such justification |fidoes not negate her intent. Accordingly, we conclude that Dyer’s assignment of error is without merit.

Conclusion

For the foregoing reasons, the district court’s judgment affirming the decision of the Louisiana Board of Review is affirmed. All costs of this appeal are assessed to Alberta Dyer.

AFFIRMED.

WILLIAMS, J., dissents with written reasons.

WILLIAMS, J.,

dissenting.

| because the employer failed to satisfy its burden of proving intentional wrongdoing by the claimant, I respectfully dissent.

The employer bears the burden of proving by a preponderance of the evidence that the discharge resulted from disqualifying misconduct. Banks v. Administrator, Dept. of Employment Security, 393 So.2d 696 (La.1981); Brinson v. Adminis trator, Div. of Employment Security, 34,-988 (La.App.2d Cir.8/22/01), 793 So.2d 552. A violation of an employer’s rule does not per se constitute misconduct sufficient to disqualify a claimant from receiving unemployment benefits. Whether a policy violation warrants withholding unemployment benefits is a question which must be determined not by examining the employer’s rule, but by applying the statute. Bowden, supra; Lafitte v. Reliant Energy Resource Corp., 37,709 (La.App.2d Cir.10/17/03), 859 So.2d 233.

As this court has previously noted, the jurisprudence in this circuit continues to follow Banks, supra, in requiring that an employer trying to prove misconduct show either intentional wrongdoing, a deliberate violation of the employer’s rules, or negligence amounting to a substantial disregard of the employer’s interest by the employee. Johnson v. Dykes Oil Co., 46,462 (La. App.2d Cir.8/10/11), 72 So.3d 418; Delta American Healthcare, Inc. v. Burgess, 41,-108 (La.App.2d Cir.5/17/06), 930 So.2d 1108. The unemployment statute must be liberally construed to serve its remedial purpose. Bowden, supra.

In the present case, DeLaune testified that she terminated the claimant for leaving medication unsecured in a resident’s room and that claimant |2knew such an action was against company policy. De-Laune stated that leaving medication unattended in a resident’s room was a critical offense which justified claimant’s immediate discharge. In testifying at the hearing, the claimant acknowledged leaving the medication at the patient’s bedside. The claimant testified that she had not intended to leave the area before giving the medicine to the patient. However, as the only person on duty at the 200-patient facility who was qualified to replace a patient’s tracheotomy tube, the claimant was required to respond to the emergency call on another floor and left the medication behind.

As the supreme court stated in Banks, supra, an employee can be unsatisfactory to the employer without committing disqualifying misconduct; an intent to do wrong must be present. The ALJ’s factual finding that claimant violated Nurse-care’s procedures by leaving medication unsecured in a patient’s room to respond to an emergency is supported by the record in this case. However, this factual finding demonstrates that the claimant’s failure to secure the medication was inadvertent and does not support the ALJ’s legal conclusion that the claimant wilfully disregarded the employer’s policy. To the contrary, the testimony indicates that the claimant was acting in conformity with the policy up to the point her routine was disrupted by the emergency call.

This case does not involve a situation in which the claimant had been previously warned about the need to safeguard medication and then failed to follow the employer’s instruction. Nor does the claimant’s conduct show a wanton disregard for Nursecare’s interests. The record demonstrates that | <¡for a number of years, claimant worked on weekends as the only RN on duty. In addition, claimant testified that she had tried to perform her job duties to the best of her ability.

Based upon the evidence presented, the employer failed to satisfy its burden of proving an intent to do wrong on the part of claimant. Although claimant’s work performance may have provided a justifiable basis for discharge, her actions do not constitute disqualifying misconduct given, the lack of evidence of intentional wrongdoing. Consequently, the trial court erred in affirming the Board’s determination disqualifying claimant from receiving unemployment compensation benefits. Accordingly, I would reverse the judgment and remand for an administrative determination of the unemployment benefits due the claimant.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, LOLLEY, PITMAN and GARRETT, JJ.

Rehearing denied.

WILLIAMS, J., would grant rehearing.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Labarrie Dediric WATSON, Appellant.
    No. 47,980-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.
    Rehearing Denied June 20, 2013.

      Washington & Wells, Shreveport, LA, by Alex J. Washington, LaBarrie D. Watson, for Appellant.
    Charles Rex Scott, II, District Attorney, Suzanne Morelock Owen, Jason Trevor Brown, Jonathan Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   DREW, J.

| T LaBarrie D. Watson appeals his two convictions: attempted manufacturing of cocaine and possession with intent to distribute cocaine.

I. ERRORS ASSIGNED IN THIS APPEAL

He urges that these errors were made at the trial level:

• there was insufficient evidence to support his convictions;

• his pro se motion to suppress should have been granted;

• the court improperly admitted copies of photographs of buy funds;

• his motion for new trial was improperly denied;

• his motion for reconsideration of sentence was improperly denied;

• he should have been granted a Franks hearing; and

• ineffective assistance of counsel.

We affirm both convictions. Each sentence is illegally lenient. We vacate these sentences and remand for resentencing. We direct the trial court to apportion part of each sentence be served without benefits.

II. FACTS

A. FACTUAL LAW ENFORCEMENT TESTIMONY

Six law officers testified about the facts of the investigation and the execution of the search warrants. Their testimony was consistent.

12This case began in May 2011, after receipt of information about the distribution of crack cocaine at two premises in the 2500 and 2600 blocks of Darien Street. On several occasions, the officers had observed the defendant traveling between 2512 Darien Street, 2602 Darien Street, and 1441 Claiborne Avenue. He had been tied to the 2512 Darien Street address through past investigations. The 2602 Darien Street house was an empty trap house without water hookup. Confidential informants made multiple drug buys with prerecorded buy money at the two Darien Street houses.

Based on the foregoing, search warrants were secured for each house.

When the law officers arrived at 1441 Claiborne Avenue, they observed several security cameras; a pickup, known to be connected to the defendant; a parked carpet cleaning van; a partially open front door; and cleaning hoses running from the van through the front door. When the officers knocked, there was no response. They entered the 1,500-square foot residence and told the uniformed carpet cleaning employees to leave.

Watson peered out into the hallway from the rear bedroom, made eye contact, slunk back into the room and shut the door. He did not come out of the room until the officers identified themselves again. He was then handcuffed, searched and advised of his rights as per Miranda.

Between $150 and $200 was seized from the truck, $85 of whidl was traceable to the controlled drug buys at the Darien gtreet locations

the main bedroom, three firearms were discovered:

|a> a .857 revolver between the box spring and the mattress:

• an AK-47 pistol under the left side of the bed; and

• a .22 caliber revolver in a drawer in the room.

The state submitted photographs of the currency and firearms.

Also seized from the master bedroom were:

• several television monitors of a surveillance system;

• $1,581 in a dresser drawer;

• male clothing;

• photos of Watson and Keriea Hymes together;

• a prescription bottle in the defendant’s name;

• defendant’s driver’s license and I.D. card;

• various receipts and pieces of mail addressed to the defendant.

From the kitchen, the agents seized:

• a flat dish containing a white rock-like substance in the pantry;

• a digital scale and a measuring cup, each with white powdery residue;

• packaging materials and small Apple Baggies;

• ammunition; and

14* slightly over 10 grams of cocaine.

B. EXPERT LAW ENFORCEMENT TESTIMONY

Lt. Carl Townley of the Caddo Shreveport Narcotics Task Force testified as an expert regarding possession with intent to distribute drugs, as well as the packaging, sale and distribution of narcotics. Town-ley testified that based on his review of the evidence at 1441 Claiborne Avenue and accompanying reports, he believed that Watson had been cooking dope and possessing it with intent to distribute. He relied on these facts:

• a large amount of drugs was already cooked;

• a Pyrex container containing residue was in the sink;

• there was already a large quantity of crack cocaine;

• seven grams of cocaine (1/4 ounce) were found in a large Baggie;

• this amount of cocaine would make 70 individual dosage units;

• the product had not been cut up, yet there were probably 100 Baggies;

• this amount was inconsistent with personal use;

• there was no crack pipe;

• a lethal dose of cocaine is 8.1 grams within a 24-hour period;

• mid-level dealers supply street-level dealers, who stand on street corners selling little $10 bags (commonly called dime bags) of crack;

• mid-level dealers sell large amounts and use electronic scales;

|5» mid-level dealers do not peddle dime

bags on the street;

• mid-level dealers get trap houses and small-timers to sell their drugs;

• the officers followed Watson, placing him at each location;

• serial numbers on currency are similar to fingerprints;

• buy money is essential in controlled drug buys;

• drug dealers do not keep property in their own name; and

• family and girlfriends often keep the property in their names.

C. DEFENSE TESTIMONY

Kerica Hymes testified that:

• the day before the searches, she gave birth to Watson’s child;

• she lived alone at 1441 Claiborne Avenue in Shreveport;

• Watson did not and has never lived with her;

• Watson was a friend of the family;

• she was in the hospital for several days before giving birth;

• she wanted the carpets cleaned before she and the baby came home;

• Watson was at her home only to open the door for the carpet cleaners;

• he was going to bring back her key, and he seldom spent the night;

• she told Watson’s lawyer that the money and drugs belonged to her;

• Watson did not know that she had drugs and money in the house;

• she had given Watson $500 for the carpet cleaner and baby supplies;

• she had never seen Watson make crack cocaine in her house;

• Watson does not use or sell cocaine;

• she is 18 years old, and Watson is 31;

• the two of them have been friends for two or three years;

|fi* she has two children, including one child fathered by Watson;

• she has never been arrested;

• she dropped out of high school after the birth of her first child;

• she has received her GED;

• she works for a temporary service and is a hairdresser;

• she makes about $2,300 a month;

• she lives at 1441 Claiborne Avenue and pays rent of $600 a month;

• the cocaine belonged to friends who visited;

• she had bought a pistol for her own protection;

• she knew of no other guns in her house;

• when asked about the AK-47 which was bought by Arnetta Carter, she denied knowing of any romantic relationship between Watson and Carter, but did admit that Carter had been to her house;

• she and Watson do not have sex, but they do share a child;

• the money found at her house was baby shower money;

• she and Watson went out a couple of times per week;

• the drugs were hers, but she did not know who brought the drugs; and

• before trial she had never told the state that the drugs were hers.

D. REBUTTAL BY THE STATE

Agent Brown was called back to the stand and testified that:

• Arnetta Carter was a previous acquaintance of Watson;

• Carter purchased the AK pistol 200 days prior to its seizure;

• Carter and Watson had a domestic relationship;

• in June, a controlled crack buy was made at 2602 Darien Street; and

17» buy funds from that operation were found at 1441 Claiborne Avenue.

A 12-member jury unanimously found Watson guilty as charged. The state mul-ti-billed Watson as a third-felony offender. He initially entered a plea of not guilty, but later pled guilty, after which a presen-tence investigation (“PSI”) was ordered.

III. ANALYSIS

A. SUFFICIENCY

Watson asserts that: (1) the law officers did not recover a large amount of cocaine packaged for sale; (2) the cocaine could have been for Watson’s personal use; (3) the drugs were found in a bedroom and not the kitchen, showing that he exercised no dominion or control over the cocaine; (4) neither his fingerprints nor his DNA was found on the seized evidence; and (5) the lease was in Kerica Hymes’s name, demonstrating that she was actually in possession of the cocaine.

The state responds by highlighting the following evidence presented at trial: (1) the testimony from multiple police officers and surveillance investigators who had watched Watson; (2) the presence of Watson’s driver’s license, I.D. card, and prescription bottle in the master bedroom; (3) Watson’s relationship with Hymes based on their child; (4) Watson’s sole presence at the home at the time of the search; (5) the prerecorded money from the controlled drug buys at the Darien Street addresses located in Watson’s truck and the master bedroom; (6) the large amount of crack cocaine (over seven grams) in the kitchen and the expert’s testimony that this amount is a lethal dose for personal use; (7) the set of digital scales with |8cocaine residue, the razor blade, the baking soda, and the small Baggies for packaging; (8) the Pyrex dish with cocaine flakes sitting in the sink; and (9) the lack of paraphernalia with which to smoke the crack cocaine.

The state accordingly submits that Watson lived at 1441 Claiborne Avenue, was in constructive possession of the cocaine, and was manufacturing crack cocaine.

Our law on the appellate review of insufficiency claims is clear.

The crimes of conviction are straightforward.

Our jurisprudence is helpful in reviewing drug possession cases.

| a(i) Attempted Manufacture of Cocaine

The record supports a finding that Watson had the specific intent to manufacture crack cocaine. He lived at 1441 Claiborne Avenue with Kerica Hymes. He was seen traveling to and from the Darien Street addresses. The items seized proved he resided at the Claiborne Avenue property. Lt. Townley testified that drug dealers avoid purchasing property in their name for fear of seizure.

The evidence supports a finding that Watson was cooking cocaine in the kitchen. Further, upon his arrest, he admitted to owning the drugs.

Despite Ms. Hymes’s favorable testimony for the defendant, it is hard to believe that she would cook crack cocaine and leave the drugs and packaging materials in plain view, pack her bags, and check in the hospital on May 29, 2011, in anticipation of the birth of her second child. The jury clearly disbelieved her testimony that Watson did not live with her, they never had a relationship, and he borrowed her key only for the purpose of the carpet cleaning.

|inBased on the evidence, any rational trier of fact could have found the essential elements of the crime of attempted manufacture of controlled dangerous substances (cocaine), Schedule II, were proven beyond a reasonable doubt. There was no manifest error in the jury’s conclusion that Watson was guilty.

(ii) Possession of Cocaine with Intent to Distribute

Watson clearly exercised dominion and control over the cocaine, and possessed it with intent to distribute. The items seized are his undoing:

• over 10 grams of cocaine in three areas of the house;

• small “Apple” Baggies containing cocaine;

• dozens of other small Baggies;

• electronic scales and a razor blade with drug residue; and

• his driver’s license and other paperwork tying him to the scene.

Currency from Darien Street drug buys were found at 1441 Claiborne Avenue and in Watson’s truck. It is not unreasonable for the jury to disbelieve Hymes’s theories as to the origin of the money. This record, viewed in the light most favorable for the prosecution, proves that Watson was manufacturing crack cocaine at the Claiborne house and sending it to Darien Street for distribution.

Based on the evidence, a rational trier of fact could have found the essential elements of the crime of possession with intent to distribute controlled dangerous substances, Schedule II (cocaine), were proven | nbeyond a reasonable doubt. There was no manifest error in the jury’s conclusion that Watson was guilty.

B. MOTION FOR NEW TRIAL

Watson asserts that the trial court should have granted him a new trial. The state asserts that the defendant has articulated no legal error.

La. C. Cr. P. art. 851 is instructive on this issue.

In reviewing the record, we conclude that Watson has suffered no injustice, nor has he met his burden of proving the existence of such harm. His mere denial that the drugs were not his does not allow him a new trial.

|1PC. DENIAL OF MOTION TO RECONSIDER OR MODIFY SENTENCE

The court sentenced the defendant to 30 and 45 years at hard labor, to be served concurrently, with no prison time to be served without benefits.

Defendant urges that his sentences were grossly out of proportion to the severity of the crime, particularly since there were no aggravating circumstances.

Immediately before sentencing, the trial court explained that:

• the PSI reflected that defendant’s litany of crimes began in 1997;

• defendant was involved in the sale and manufacture of cocaine; and

• three guns were seized at the scene.

The state asserts that the sentences are not excessive because of the defendant’s criminal history, the firearms recovered, and the trial court’s ample consideration of the sentencing guidelines.

The sentencing provisions for these crimes in 2011 were clear.

113Our law on reviewing allegedly excessive sentences is well settled.

Watson pled guilty as a third-felony offender and was sentenced pursuant to a PSI. We see no error in this sentence, other than it is actually illegally lenient.

D. DENIAL OF BOTH THE MOTION TO SUPPRESS AND A FRANKS HEARING

Defendant attacks the affidavit in support of the search warrant, challenging the truthfulness of the confidential informant. Our law reflects a policy against revealing the identity of a confidential informant.

| 14 Agents Whitehorn and Alkire testified that the reliable Cl used in the “buy-back” twice purchased drugs at the Darien Street residence. Other drug buys were made at the 2602 and 2512 locations. Watson is not charged with those distributions. We cannot see that the Cl’s identity will provide Watson with information relevant to his defense. The threshold for a Franks hearing has not been approached. The defendant’s naked conclusion of false statements affords him no relief.

[ir,E. USE OF PHOTOS OF CURRENCY, DRUGS AND WEAPONS

The defendant’s claims in this regard are frivolous, and, at the very most, would be a factor of weight for a jury to consider. F. INEFFECTIVENESS OF COUNSEL

The defendant claims that trial counsel filed no pretrial motions, admitted his guilt during closing, and apologized for his poor defense on three occasions.

Our law on appellate review of ineffectiveness claims is well settled.

This record does not reflect that counsel’s performance fell below an objective standard of reasonableness. The defendant has failed to present evidence that the outcome of the trial would have differed had pretrial motions been filed.

G. ILLEGALLY LENIENT SENTENCES

The concurrent sentences lack the required prohibition of benefits.

| ^DECREE

We affirm both convictions but vacate the sentences and remand, directing the trial court to affix a portion of each sentence to be served without benefits.

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), held that a hearing is required if a defendant makes a substantial preliminary showing that a false statement was intentionally or recklessly included in an affidavit in support of a search warrant, and the tainted information was necessary for a finding of probable cause. Mere conclusions do not trigger a Franks hearing. A defendant must proffer specific proof as to the falsehoods by the state, reflecting the affi-ant's deliberate or negligent misrepresentation. See State v. Brannon, 414 So.2d 335 (La.1982), and State v. Donald, 2013-0018 (La.5/3/13), 115 So.3d 1138.

      . Rachel Alkire, Henry Whitehorn, Jr., John Stratton, Sean Parker, Ryan Robinson, and Jeff Brown are all agents of the Shreveport Police Department or the Caddo Parish Sheriff’s Office. Most worked on a combined drug task force for Caddo Parish.

      . A "trap house” is a place from which drugs are stored and sold.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . Agent Robinson testified that the exact amount in the bag was $1,581.00. At trial, the state entered into evidence a photograph of the currency.

      . The bottle contained hydrocodone.

      . The license showed defendant’s home address to be 1512 Darien Street.

      . Five pieces of mail were addressed to "La-berrie Watson, 2512 Darien Street, Shreveport, Louisiana 71109”; a receipt from Mr. Rooter Plumbing, dated May 24, 2011, written to "Laberrie Watson, 1441 Clayboin (sic) Ave., Shreveport, LA 71103,” and a Center-Point Energy bill addressed to "Shanacio Watson, 2602 Darien Street, Shreveport, LA 71103.”

      .Agent Alkire confirmed the above and also testified as to finding baking soda and a razor blade coated with apparent drug residue. Bruce Stenz, a forensic chemist with the North Louisiana Crime Lab, testified as an expert witness, confirming that the substances seized were cocaine.

      . Townley testified about his 28 years in law enforcement, 25 of which as a narcotics agent. He has testified over 100 times in state and federal courts as an expert witness.

      . Examples: eight balls (3.5 grams) or quarter ounces (seven grams).

      . See discussion of the factual proof required to demonstrate constructive possession found in United States v. Meza, 701 F.3d 411 (5th Cir.2012).

      . The standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). Further, when the conviction is based on circumstantial evidence, La. R.S. 15:438 states that "assuming every fact to be proved that the evidence tends to prove, in order to convict, [the circumstantial evidence] must exclude every reasonable hypothesis of innocence.” However, La. R.S. 15:438 does not establish a stricter standard than Jackson v. Virginia, supra; rather, it serves as a helpful evidentiary guide for jurors in evaluating circumstantial evidence. State v. Major, 2003-3522 (La. 12/1/04), 888 So.2d 798.

      . In 2011, La. R.S. 40:967(A), provided, in pertinent part:
      A. Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
      (1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II.
      In 2011, our attempt statute, La. R.S. 14:27, provided, in pertinent part:
      A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

      .Possession of a controlled dangerous substance may be established by actual physical possession or by constructive possession. Constructive possession depends on dominion and control over the drugs, even in the absence of physical possession. State v. Russell, 46,426 (La.App.2d Cir.8/17/11), 73 So.3d 991, writ denied, 2011-2020 (La.2/10/12), 82 So.3d 270. Mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession; five factors have been identified as useful in determining whether circumstantial evidence is sufficient to prove intent to distribute a controlled dangerous substance. The factors include: (1) whether the defendant ever distributed or attempted to distribute the controlled dangerous substances; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of the drug creates an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of the drug found in the defendant’s possession is inconsistent with personal use; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute. State v. Cummings, 46,038 (La.App.2d Cir. 1/26/11), 57 So.3d 499, writ denied, 2011-0341 (La.6/17/11), 63 So.3d 1037. Testimony of street value and dosage of the drug is also relevant to the issue of intent to distribute. State v. Gladney, 29,791 (La.App.2d Cir.9/24/97), 700 So.2d 575. Mere possession of contraband does not amount to evidence of intent to distribute “unless the quantity is so large that no other inference is possible.” See State v. Greenway, 422 So.2d 1146 (La. 1982). La. C.E. art. 701 permits a law enforcement officer to express an opinion regarding matters of personal knowledge gained through experience, even if the witness is not first qualified as an expert. State v. Lowery, 609 So.2d 1125 (La.App. 2d Cir. 1992), writ denied, 617 So.2d 905 (La. 1993).

      . Also of importance is what was not found: a crack pipe.

      .The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. Art. 351 states:
      "The court, on motion of the defendant, shall grant a new trial whenever:
      (1) The verdict is contrary to the law and the evidence;
      (2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
      (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilt;
      (4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
      (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right."
      The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Cox, 2010-2072 (La. 11/19/10), 48 So.3d 275. The denial of a motion for new trial is not subject to appellate review except for error of law. La. C. Cr. P. art. 858; State v. Jones, 41,672 (La.App.2d Cir. 1/14/09), 999 So.2d 1156, writ denied, 2009-0311 (La. 11/6/09), 21 So.3d 297. Generally, a motion for new trial will be denied unless the defendant establishes that he or she has suffered some injustice. La. C. Cr. P. art. 851; State v. Burrell, 561 So.2d 692 (La. 1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 861 (1991); State v. Jones, supra.

      . La. C. Cr. P. art. 894.1.

      . La. R.S. 40:967 provided, in pertinent part:
      (4)(a) Production or manufacturing of cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964 or oxycodone as provided in Schedule II(A)(l)(o) of R.S. 40:964 or methadone as provided in Schedule II(B)(11) of R.S. 40:964 shall be sentenced to imprisonment at hard labor for not less than ten nor more than thirty years, at least ten years of which shall be served without benefit of parole, probation, or suspension of sentence, and may be fined not more than five hundred thousand dollars.
      (b) Distribution, dispensing, or possession with intent to produce, manufacture, distribute, or dispense cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964 or oxycodone as provided in Schedule II(A)(l)(o) of R.S. 40:964 or methadone as provided in Schedule II(B)(11) of R.S. 40:964 shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.
      In 2011, La. R.S. 40:27 provided, in pertinent part:
      (3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.
      In 2011, La. R.S. 15:529.1 provided, in pertinent part:
      (3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
      (a) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction[.]

      . A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.l 1/3/10), 55 So.3d 56, writ denied, 2010-2853 (La. 11/18/11), 75 So.3d 454. The important elements which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.
      Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La. 1980). A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La. App.2d Cir.l 1/3/10), 55 So.3d 90.
      A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence will not be set aside as excessive. Id., citing State v. Square, 433 So.2d 104 (La.1983). As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802.

      . La. C.E. art. 514 provides:
      The United States, a state, or subdivision thereof has a privilege to refuse to disclose, and to protect another from required disclosure of, the identity of a person who has furnished information in order to assist in an investigation of a possible violation of a criminal law.
      A. General rule of privilege. The United States, a state, or subdivision thereof has a privilege to refuse to disclose, and to protect another from required disclosure of, the identity of a person who has furnished information in order to assist in an investigation of a possible violation of a criminal law.
      B. Who may claim the privilege. The privilege may be claimed by the prosecuting authority or an appropriate representative of the public entity to which the information was furnished.
      C. Inapplicability of privilege. No privilege shall be recognized if:
      (1) The informer appears as a witness for the government and testifies with respect to matters previously disclosed in confidence.
      (2) The identity of the informer has been disclosed to those who have cause to resent the communication by either the informer or the prosecution, or in a civil case, a person with authority to claim the privilege.
      (3) The party seeking to overcome the privilege clearly demonstrates that the interest of the government in preventing disclosure is substantially outweighed by exceptional circumstances such that the informer’s testimony is essential to the preparation of the defense or to a fair determination on the issue of guilt or innocence.
      (4) In a criminal case, the prosecution objects.
      This privilege is founded upon public policy that seeks to further and protect the public interest and law enforcement by encouraging people to supply information to the police by protecting their anonymity. Roviaro v. U.S., 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Mendenhall, 40,986 (La. App.2d Cir.2/7/07), 948 So.2d 1255. Louisiana has a strong public policy in favor of protecting the identity of confidential informants. The defendant bears the burden of showing exceptional circumstances which would require divulging a confidential informant's identity; the trial court has much discretion in deciding whether disclosure is warranted. State v. Robinson, 46,091 (La.App.2d Cir.4/20/11), 63 So.3d 1113, 1124, writ denied, 2011-0901 (La. 11/23/11), 76 So.3d 1148, and writ denied, 2011-1016 (La. 11/23/11), 76 So.3d 1149.
      In Roviaro, supra, the Supreme Court held that courts considering whether to disclose the identity of a confidential informant must examine "the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Id. at 62, 77 S.Ct. 623. The Fifth Circuit has directed courts to focus on three issues: (1) whether the informant participated in the criminal activity, (2) the relationship between the defendant’s asserted defense and the probable testimony of the informant, and (3) the government's interest in nondisclosure. United States v. Cooper, 949 F.2d 737 (5th Cir.1991), cert. denied, 504 U.S. 975, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992).

      . Counsel, in argument, as part of his trial strategy, asked the jury to find the defendant guilty of possession, at most, or not guilty.

      . As a general rule, a claim of ineffective assistance of counsel is more appropriately raised in an application for post-conviction relief ("PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. A motion for new trial is also an accepted vehicle by which to raise such a claim. Here, since the record is sufficient, we will resolve this on direct appeal in the interest of judicial economy. State v. Cox, 44,878 (La.App.2d Cir.12/9/09), 26 So.3d 929, writ denied, 2009-2829 (La.6/18/10), 38 So.3d 320. A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient, and that counsel’s deficient performance prejudiced his defense. Strickland, supra. To establish the prejudice prong of the test, defendant must show that, but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d J/74, writ denied, 95-1398 (La. 11/3/95), 662 So.2d 9. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991).