author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Ricky SMALL.
    No. 2013-KA-1334.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 27, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

11 Ricky Small appeals his convictions for the attempted first degree murders of Ti-jai Andrews and Lyndon Henry. Claiming that the prosecution failed to exclude every reasonable possibility that he was misidentified as one of the perpetrators, Mr. Small first seeks a Jackson v. Virginia review for the sufficiency of the evidence on that limited issue. Next, should his argument for acquittal on appeal fail, Mr. Small contends that inflammatory remarks made by the prosecutor during rebuttal closing argument entitle him to a new trial either because his trial attorney provided ineffective assistance by failing to move for a mistrial or because the trial judge erred in refusing to admonish the jury despite his attorney’s specific request.

Mr. Small also appeals the sentences imposed upon him. The trial judge, following a hearing under the Habitual Offender Law, vacated Mr. Small’s two concurrent ten year sentences and imposed two concurrent twenty-five year sentences despite the prosecution only seeking a multiple bill on one count. Mr. Small moved for a deviation in his sentencing below the statutorily-mandated minimum sentence, which the trial judge, expressing his view that he lacked legal authority, refused.

| {¡With respect to both his convictions and sentences, Mr. Small assigns as additional error that the appellate record is incomplete, thus preventing our full judicial review to which he is entitled by law. He itemized the portions of the record which were not included at the time of its lodging.

Based upon our Jackson v. Virginia review, we find that, viewing all of the evidence in a light most favorable to the prosecution, any rational fact-finder could have found beyond a reasonable doubt that Mr. Small was identified as one of the perpetrators of both attempted murders. We find that Mr. Small’s trial counsel’s assistance was not deficient and thus not ineffective. And, only due to the trial judge’s vigilance, oversight, and quick intervention to terminate early the prosecutor’s improper and suggestive remarks, we find no error in his refusal to admonish the jury under the facts of this ease. We also find that, with respect to his convictions, those still-missing portions of the record identified by Mr. Small are unnecessary to conduct a full appellate review. We thus affirm Mr. Small’s convictions.

With respect to the sentences imposed upon Mr. Small, however, we have detected an error patent regarding the enhancement of the penalties on both counts. We thus conclude that it is necessary that we vacate both sentences imposed under the Habitual Offender Law and remand the matter to the district court for re-sentencing. Also, because the trial judge expressed an erroneous view of his sentencing authority, we direct on remand that he consider and decide Mr. Small’s motion for downward departure from the legislatively-mandated minimum | .^sentence, reserving unto the parties the right to appeal any adverse rulings. We thus vacate the sentences and remand for re-sentencing.

We explain our decision in greater detail in the following parts.

I

We begin our explanation by considering Mr. Small’s first argument, the only made by appellate counsel, that the evidence is insufficient to negate any reasonable probability of misidentification such that an element essential to his conviction is missing which mandates his acquittal. See State v. Woodfork, 99-0859, pp. 4-5 (La.App. 4 Cir. 5/17/00), 764 So.2d 132, 134-35. See also State v. Edwards, 97-1797, p. 12 (La.7/2/99), 750 So.2d 893, 902 ('When identity is disputed, the state must negate any reasonable probability of misidentification in order to satisfy its burden to establish every element of the crime charged beyond a reasonable doubt.”).

Here, just as in Woodfork and Edwards, Mr. Small does not contest whether the essential elements of the crime charged were proven beyond a reasonable doubt, but instead, by his alibi defense, has made identity “a key issue at trial.” Edwards, 97-1797, p. 12, 750 So.2d at 902; Woodfork, 99-0859, pp. 4-5, 764 So.2d at 134-35. In reviewing for the sufficiency of evidence under the specific claim that mis-identification had not been negated by the prosecution, we apply the general rules for sufficiency review set forth in Jackson v. Virginia, which announced a federal constitutional rule or standard of review, to guarantee that a fact-finder had applied the correct standard of proof. 443 U.S. 307, 316-18, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). And we also apply the particular criteria for evaluating the reliability of 1 identification evidence set out in Manson v. Brathwaite. See State v. Paul, 11-0252, pp. 3-4 (La.App. 4 Cir. 4/18/12), 90 So.3d 1191, 1194; State v. Stewart, 04-2219, p. 6 (La.App. 4 Cir. 6/29/05), 909 So.2d 636, 639.

A

Before considering the evidence of the identification of Mr. Small at his trial, we detail the limited factual review both authorized and required under Jackson v. Virginia. The “critical inquiry” is “to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 318, 99 S.Ct. 2781. “But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Id. at 318-19, 99 S.Ct. 2781 (quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966)) (bold in original). “Instead, the relevant question 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.” Id. at 319, 99 S.Ct. 2781 (emphasis in original).

The fact-finder’s “role as weigher of the evidence” is thus “preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” Id. (emphasis in original). Importantly, the standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.

And in applying this general standard of constitutional review, we emphasize that we determine whether “any” — and not “every” — rational trier of fact could have found proof of all the essential elements, including the defendant’s | identity as the perpetrator of the crime, because “|j’]ury verdicts finding guilty beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt....” Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).

B

Although there were two victims, Tijai Andrews, one of the victims, was the only witness to identify Mr. Small as the perpetrator. A positive identification by only one witness, however, can be sufficient to support a conviction. See State v. Neal, 00-0674, p. 11 (La.6/29/01), 796 So.2d 649, 658.

Mr. Andrews along with Lyndon Henry, the other victim, arranged to meet Jerome Colbert at a location in the Mid-City neighborhood of New Orleans in order to purchase marijuana. The victims arrived in a rental car driven by Mr. Andrews. When Mr. Colbert, known to Mr. Andrews as “Romey,” arrived in a black Acura, Mr. Andrews joined him in the Acura while Mr. Henry remained in the rental car. Suddenly shots were fired from outside of the cars. As Mr. Andrews yelled for Mr. Colbert to drive away, Mr. Colbert pulled a weapon on Mr. Andrews, who then escaped from the vehicle.

During the attack, both victims were shot multiple times. Mr. Henry was able to flee in the rental car and drove himself to a hospital emergency room. He informed the investigating detectives that he was unable to identify anyone as a perpetrator.

Quite a few neighbors telephoned the 9-1-1 call center and reported hearing numerous shots fired. Officer Nigel Badeoo was the first police officer on the scene. At that time, neither vehicle was at the scene, and Mr. Andrews, shot eleven times, was lying on the ground bleeding. Officer Badeoo knew and | ^recognized Mr. Andrews. They rode together in the EMS vehicle during which time Mr. Andrews told Officer Badeoo that “Rick” and “Ro-mey” were the shooters. Mr. Andrews later identified the men again in the hospital to Detective Christopher Harris, the lead investigator. The detective prepared two six-person photographic line-ups, each set containing a photograph of only one of the identified perpetrators; Mr. Andrews selected the pictures of Mr. Small and Mr. Colbert in the photo line-ups as the perpetrators.

Mr. Andrews testified that he had known Mr. Small for ten to twelve years. He also told the investigators that Mr. Colbert had said that he would be in Mr. Small’s girlfriend’s car. Mr. Andrews knew that Mr. Small’s girlfriend had a black Acura.

This very basic identification of Mr. Small was not unchallenged, however. Mr. Small’s lawyers drew the jury’s attention to a statement that Mr. Andrews reportedly made to the police that a person with dreadlocks — which Mr. Small did not have — had attacked from an alleyway. Mr. Andrews testified that he did not remember making such a statement to the police. Mr. Small’s lawyers also questioned Mr. Andrews about prior inconsistent testimony given during a pretrial hearing on motions in which Mr. Andrews claimed to have known Mr. Small’s last name and to have furnished it to investigators because, during his trial testimony, Mr. Andrews stated that he only knew Mr. Small as “Rick” or “Ricky” and did not know his last name.

Mr. Small’s lawyers also challenged Mr. Andrews concerning his report to the police that the Acura had tinted windows. A neighbor who had called 9-1-1 also described a car with tinted windows. Mr. Small’s lawyers produced photographs of Mr. Small and his girlfriend in the Acura, and the photographs |7showed that the windows were not tinted. Mr. Andrews testified that he did not recall telling the police that the windows were tinted because the scene was dark. A private investigator produced photographs of the scene to demonstrate that the area was sufficiently well-lit to determine whether a vehicle’s windows were tinted.

Mr. Small’s testimony contradicted Mr. Andrews’ testimony on several points. Mr. Small testified that he had only met Mr. Andrews once or twice and that occasionally they would acknowledge each other. Mr. Small also testified that he was more familiar with Mr. Colbert than Mr. Andrews, but that Mr. Colbert was never allowed to use his girlfriend’s car.

The prosecution produced evidence that some months before the shootings, Mr. Small had received a traffic citation while operating his girlfriend’s Acura. The defense countered that Mr. Small did not receive a citation for tinted windows, to which the prosecution rejoined that the citing officer may not have had the necessary equipment to measure the tint.

The defense sought to impeach Mr. Andrews’ testimony with his prior convictions for possession of codeine in Orleans and Jefferson Parishes in 2008. See La. C.E. art. 609.1 A. Mr. Small, in his testimony, admitted that he too had prior convictions for possession of cocaine in 2003 and possession of marijuana in 2006.

Mr. Small testified that he was in Me-tairie watching an NBA playoff game at the time of the shooting in the company of his brother, who also testified and corroborated the alibi.

IsThus, it is clear that the jury had many conflicts in the testimony to resolve in order to find beyond a reasonable doubt that Mr. Small was one of the two perpetrators of the attempted murders.

C

As noted in the introduction to this Part, in cases in which the defendant contends that the prosecution has not negated the possibility of misidentification, we resort to an evaluation of the reliability factors set forth in Manson v. Brathwaite. See Paul, 11-0252, pp. 3-4, 90 So.3d at 1194; Stewart, 04-2219, p. 6, 909 So.2d at 639. The five Manson v. Brathwaite factors include: (1) the opportunity of the witness to view the perpetrator at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the perpetrator, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. See 432 U.S. at 114-16, 97 S.Ct. 2243. But, because we consider these factors for a purpose different from that which they serve in Manson v. Brathwaite, some of the factors may have little or no applicability.

Here, the victim and the person identified as the perpetrator at least knew each other. They were not strangers to each other. The defense itself established by the introduction of a street-scene photograph that the lighting would have been adequate for Mr. Andrews to recognize Mr. Small despite the shooting occurring at about 8:30 P.M. There was no out-of-court confrontation during which Mr. Andrews identified Mr. Small, but Mr. Andrews did furnish the names “Rick” and “Romey” to Officer Badeoo in the ambulance on the way to the emergency room. |flHe also correctly selected Mr. Small’s photograph from among six photographs presented to him. At no point in time did Mr. Andrews express any doubt or uncertainty that the perpetrators were Mr. Small and Mr. Colbert.

We contrast the evidence here with that in Woodfork, a case decided by us and to which Mr. Small cites. In Woodfork, we concluded that any rational juror would have had a reasonable doubt about the victim’s identification of the defendant as the perpetrator, and we reversed his conviction and acquitted him. 99-0859, p. 9, 764 So.2d at 137. But the victim in Wood-fork was not acquainted with the perpetrator and had only viewed him for a matter of seconds. 99-0859, pp. 5-6, 764 So.2d at 135. Three months later the victim was introduced to the defendant but did not recognize him. Id., 99-0859, p. 7, 764 So.2d at 135. Not until further interaction with him did she become convinced that the defendant was her attacker, reported him to the police, and “[n]ot surprisingly” selected him from a photographic line-up. Id., 99-0859, p. 7, 764 So.2d at 136. Moreover, the defendant’s alibi was corroborated by “two independent witnesses.” Id.

Here, we cannot displace the jury as the fact-finder. The jury weighed the conflicting and contradictory evidence bearing on the issue of Mr. Andrews’s identification of Mr. Small as the perpetrator of these crimes. We preserve their resolution by viewing all of the evidence in the light most favorable to the prosecution. And, as we earlier suggested, the testimony of Mr. Andrews — standing alone — is sufficient for any rational fact-finder to find that Mr. Small was Unidentified beyond a reasonable doubt as the perpetrator. See Neal, 00-0674, p. 11, 796 So.2d at 658; State in the Interest of C.D., 11-1701, p. 6 (La.7/2/12), 93 So.3d 1272, 1276 (per curiam) (“[ejyewitness testimony alone is usually sufficient in the mill run of cases”). See also State v. Campbell, 06-0286, p. 93 (La.5/21/08), 983 So.2d 810, 869 (“None of these witnesses was attempting to identify a stranger that they had seen only for the short time of the robbery and shooting.”); State ex rel. W.H., 10-1418, p. 9 (La.App. 4 Cir. 4/6/11), 62 So.3d 839, 846 (“[TJhese inconsistencies fail to demonstrate sufficient indicia of unreliability to outweigh the fact that [the witness] and [the defendant] were familiar with one another.”); State v. Peters, 10-0326, p. 11 (La.App. 4 Cir. 2/16/11), 60 So.3d 672, 679 (“Here, the likelihood of misidentification is not present. There is no question that [the victim] knew her assailant as the appellant lived for many years two houses down from her.”).

We, therefore, find that the evidence was sufficient to identify Mr. Small as the perpetrator of these crimes beyond a reasonable doubt. The prosecution negated any reasonable possibility of misidentification.

II

Mr. Small next contends that two errors, both arising from the prosecution’s improper commentary during rebuttal closing argument, entitle him to a new trial. First, Mr. Small claims that his attorney ineffectively assisted him by failing to move for a mistrial under Article 775 of the Louisiana Code of Criminal Procedure. Second, Mr. Small argues that the trial judge erred in refusing to admonish the jury despite his attorney’s specific request pursuant to Articles 771 and 774 of the Louisiana Code of Criminal Procedure. After our review of each claim, we find (1) that Mr. Small’s counsel’s performance was not constitutionallyHdeficienL ¶ and (2) that the trial judge did not err in his refusal to admonish the jury due to his vigilance and immediate intervention to prevent the prosecutor from making any further improper commentary. We begin by setting forth the facts which are relevant to both assignments of error and thereafter review each assignment individually.

A

Mr. Small complains of commentary made by the prosecutor during rebuttal closing argument. This commentary followed a prior warning by the trial judge to a previous line of questioning during the prosecutor’s direct examination of Mr. Andrews. During Mr. Andrews’s testimony, he stated that he could not continue. The judge then removed the jury and held a conference in chambers. When Mr. Andrews’ testimony resumed, he was asked by the prosecutor, “You said that you couldn’t do this the last time we were all down here. What was going through your head?” The defense objected and another conference was held in chambers. The judge found the line of questioning pertaining to Mr. Andrews’ fear of testifying to be “egregious,” “not relevant,” and “prejudicial.” The trial judge then warned the prosecutor not to ask Mr. Andrews any additional questions pertaining to that subject.

Then, during rebuttal closing argument, the issue of Mr. Andrews’ “fear” of testifying was again raised. The prosecutor stated, “I do not think that it takes much imagining to think of the fear [Mr. Andrews] was going through [when testifying], Think about this. No matter what happens today, [Mr. Andrews] can’t go back to that neighborhood.” During this rebuttal closing argument, the trial court interrupted the prosecutor numerous times with and without prompting by | ^defense counsel. Mr. Small’s counsel objected to the statement above, and yet another conference was held in chambers.

During this conference, the trial judge admonished the prosecutor to confine himself “to the facts of this case and not ... with being able to go back to that neighborhood or anything like that.” The trial judge continued: “Look, the first mistake you were making, and you were bordering on telling the [j jurors how they would feel, and that is reversible error.... When you put it in the hands of a jury of how they would feel and all of that, that is a mistrial.... If I hadn’t have stopped you, and I would have let you finish, I would have granted a mistrial, but I caught you right before you put the jurors in a position like that with the victim in the case.’’(emphasis added)

After the judge ordered that the prosecutor discontinue that commentary, defense counsel moved that the jury be admonished “to disregard those portions of the State’s [rebuttal closing argument] that were objected to and ruled on by the Court as not proper.” The trial judge denied this oral motion stating that “whenever I caution a [jjury ... it brings more emphasis to it than it does to go to solving the problem. So, I will not do that, because I think you bring more emphasis to it.” The parties then returned to the courtroom and concluded the case.

B

Mr. Small contends that his constitutional right to effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution was violated when his attorney failed to move for a mistrial under La.C.Cr.P. art. 775 following what he describes as the prosecutor’s improper commentary during rebuttal closing argument. Mr. Small claims that his attorney’s failure to move for a mistrial constituted deficient performance, that he was | ^prejudiced by this deficient performance and deprived of access to a fair trial, and, thus, that we should overturn his conviction and order that a new trial be granted.

We begin by noting that a claim of ineffective assistance of counsel is ordinarily best-addressed by an application for post-conviction relief filed in the trial court which may then conduct a fall evidentiary hearing on the issue. See State v. Prudholm, 446 So.2d 729, 787 (La.1984). See also State v. Jackson, 05-1281, p. 15 (La.App. 4 Cir. 11/29/06), 947 So.2d 115, 125. When the appeal record contains enough evidence upon which to rule on the issue, however, the appellate court will make a determination in the interest of judicial economy. See State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802. See also State v. Bradford, 02-1452, p. 13 (La.App. 4 Cir. 4/23/03), 846 So.2d 880, 889. Because we find the record in this case to be sufficient, we will address this assignment of error on appeal.

The Supreme Court has long held that “the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause....” Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.” Strickland, 466 U.S. at 685,104 S.Ct. 2052 (quoting Adams v. United States ex rel. McCann, 317 14U.S. 269, 275-76, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). Thus, “the right to counsel is the right to the effective assistance of counsel.” McMann v. Rich ardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. A convicted defendant’s claim this his counsel’s ineffective assistance entitles him to a new trial has two component parts. Id. at 687, 104 S.Ct. 2052. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel’ guaranteed the defendant by the Sixth Amendment. Id. “Second, the defendant must show that the deficient performance prejudiced the defense.” Id. “Unless a defendant can make both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Id. Consequently, and importantly for our purposes here, we need not “address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697, 104 S.Ct. 2052. Here, because we find that Mr. Small cannot show that his trial counsel’s performance was deficient, we need not reach the second component of prejudice.

“[I]f an alleged error falls “within the ambit of trial strategy' it does not establish ineffective assistance of counsel.’ ” Jackson, 05-1281, p. 16, 947 So.2d at 125 n. 14 (quoting State v. Bordes, 98-0086, p. 8 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147). “[0]nce a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial 11firests with the accused and his attorney.” Bradford, 02-1452, p. 24, 846 So.2d at 895 (citing State v. Felde, 422 So.2d 370, 393 (La.1982)). We do “‘not sit to second-guess strategic and tactical choices made by trial counsel.’ ” State v. Hoffman, 98-3118, p. 40 (La.4/11/00), 768 So.2d 542, 579 (quoting State v. Myles, 389 So.2d 12, 31 (La.1979)). And, notably, the failure to move for a mistrial after a prosecutor’s improper commentary during closing rebuttal argument is particularly within the ambit of sound trial strategy. See, e.g., State v. Robinson, 01-1373, p. 1 (La.4/26/02), 816 So.2d 846, 846 (per curiam). This is especially so, when as here, Mr. Small had offered considerable plausible evidence to contradict the prosecution’s evidence, the impact of which may have been materially weakened if the prosecution had an opportunity for further investigation before a re-trial.

Accordingly, under these circumstances, we necessarily defer to trial counsel’s decision during the trial to limit his request to a jury admonition rather than to move for a mistrial. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

C

Mr. Small next contends that his Due Process rights under the Fourteenth Amendment were violated when the trial judge refused to admonish the jury after defense counsel’s specific request. Mr. Small argues that this ruling constituted reversible error and that he is entitled to a new trial. He bases his argument upon the mandatory requirement that “upon the request of the defendant ..., the court shall promptly admonish the jury to disregard a remark or comment made ... in argument within the hearing of the jury, when the remark is irrelevant or | ^immaterial and of such a nature that it might create prejudice against the defendant ... in the mind of the jury” when the comment is made by the prosecutor. La. C.Cr.P. art. 771(1).

Here, Judge Marullo was very attentive to the prosecutor’s overreaching, swiftly intervened to keep the prosecutor from elaborating on his irrelevant point, and thereby prevented the prosecutor from offering argumentative commentary that would prejudice Mr. Small. Judge Marullo’s interruptions reined in the prosecutor’s commentary and ensured that the prosecutor’s statements were “nothing more than an obscure reference” and were “made without explanation or elaboration.” State v. Tribbet, 415 So.2d 182, 185 (La.1982). “[T]he determination of whether prejudice has resulted lies in the sound discretion of the trial judge.” State v. Banks, 96-2227, p. 2 (La.4/18/97), 692 So.2d 1051, 1053 (internal quotation omitted). And Mr. Small has not shown us that the trial judge’s determination regarding whether prejudice might accrue to Mr. Small by giving an admonition — when one was not necessarily required — was a choice not permitted to the trial judge and as such not entitled to our deference. We agree with Judge Marullo that refraining from admonishing the jury on a given issue, at times, can be “a better course of action.” Tribbet, 415 So.2d at 185. See also State v. Juarbe, 01-2250, p. 10 (La.App. 4 Cir. 7/31/02), 824 So.2d 1240, 1248-49.

Ill

We now turn to Mr. Small’s claim that the trial record is incomplete to such a degree that reversal of his convictions is necessary due to our inability to provide the full judicial review to which he is entitled by law. Mr. Small itemized the portions of the record which were not included at the time of the lodging of the 117record. After our review of his itemized list of the missing portions of the record, we find that we can render complete judicial review and decline to reverse Mr. Small’s convictions and to order a new trial.

A

In Louisiana, a defendant convicted of a crime triable by a jury has a constitutional right of appeal as to questions of law. See La. Const, art. V, § 10; La.C.Cr.P. art. 912.1. In order to assure that appeals are properly and thoroughly considered, the Louisiana Constitution provides a complementary constitutional right which guarantees “judicial review based upon a complete record of all evidence upon which the judgment is based.” La. Const, art. I, § 19. See also State v. Pernell, 13-0180, p. 10 (La.App. 4 Cir. 10/2/13), 127 So.3d 18, 27, writ denied 13-2547 (La.4/4/14), 135 So.3d 640. The scope of what constitutes a “complete record” under Article I, Section 19 encompasses “all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel,” La.C.Cr.P. art. 843, as well as “exact copies of all documentary evidence and other evidence ... in the order in which such evidence was filed.” Uniform Rules, Courts of Appeal, Rule 2-1.7. “[I]t is the duty of the court to ‘require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.’” State v. Landry, 97-0499, p. 3 (La.6/29/99), 751 So.2d 214, 216 (quoting La.C.Cr.P. art. 17). “[T]he trial judge is duty-bound to see that the court reporter makes a true, complete and accurate record of the trial.” Id. See also La.R.S. 13:961 C(l). And, notably, it is not the duty of the defendant to ensure that an adequate record exists. See id.

|1sTwo justifications form the foundation for the need for complete and comprehensive records. The Supreme Courts of both the United States and Louisiana have endorsed these justifications. See State v. Boatner, 03-0485, p. 4 (La.12/3/03), 861 So.2d 149, 152. First, it is essential in an adversarial legal system, particularly when counsel on appeal was not representing the client at trial, that a dependable record be provided so that errors by the trial court may be reviewed, assigned, and supported by appellate counsel. See Hardy v. United States, 375 U.S. 277, 280 n. 3, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); State v. Robinson, 387 So.2d 1143, 1144 (La.1980). And, second, a complete record ensures that the appellate court may review the transcripts for any errors committed during trial. See id. See also State v. Walker, 02-1350, p. 12 (La.App. 4 Cir. 4/9/03), 844 So.2d 1060, 1067. These two bases align with the scope of our appellate review as set forth in La.C.Cr.P. art. 920, which restricts our consideration of errors on appeal to those “designated in the assignment of errors,” and those “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

But not every omission from a record on appeal constitutes a violation of constitutional rights warranting reversal of a conviction and the ordering of a new trial. See Walker, 02-1350, p. 11, 844 So.2d at 1066. Sometimes “[a]n incomplete record may be adequate for full appellate review.” State v. Hawkins, 96-0766, p. 8 (La.1/14/97), 688 So.2d 473, 480. See, e.g., State v. Bright, 00-1255, p. 7 (La.App. 4 Cir. 2/6/02), 809 So.2d 1112, 1116-17. We determine whether the record “ ‘is so inadequate that the defendant’s constitutional right to judicial review is prejudiced’ ” by applying “a two-part analysis for materiality and prejudice, and will only remand for a new trial when both elements are satisfied.” State v. Norah, 12-1194, p. 9 (La.App. 4 Cir. 12/11/13), 131 So.3d 172, 182, writ denied, 14-008419 (La.6/13/14), 140 So.3d 1188, quoting Boatner, 03-0485, p. 6, 861 So.2d at 153.

First, the materiality of a given omission is measured by its importance along with the value, relevance, and nature of other evidence made available in the trial record in light of the specific assignments of error set forth by the defendant as well as the errors patent on the face of the record. See Boatner, 03-0485, pp. 4-6, 861 So.2d at 153. “[inconsequential omissions or slight inaccuracies do not require reversal.” Hoffman, 98-3118, p. 49, 768 So.2d at 586; State v. LaCaze, 99-0584, p. 17 (La.1/25/02), 824 So.2d 1063, 1076.

Second, the defendant must show a “reasonable likelihood that he suffered prejudice” from that material omission in substantiating his other assignments of error. Boatner, 03-0485, pp. 5-6, 861 So.2d at 153. Thus, “[t]o justify reversal of a conviction and the ordering of a new trial, we must find that the omission from the trial record affects ‘substantial rights of the accused.’ ” Pernell, 13-0180, p. 12, 127 So.3d at 27-28 (quoting La.C.Cr.P. art. 921). This imports the harmless error rule into this analysis. La.C.Cr.P. art. 921 cmt. c.

If an omission is found to be material and prejudicial to judicial review of his trial, the defendant’s conviction should be reversed, see Hoffman, 98-3118, p. 49, 768 So.2d at 586, and “the interests of justice require that a defendant be afforded a new, fully recorded trial.” Landry, 97-0499, p. 3, 751 So.2d at 215-16.

B

Mr. Small listed in his brief (which he personally filed) those portions of the record which he claims are missing in whole or in part: transcripts of voir dire proceedings, the reading of the charges against Mr. Small, opening statements, closing arguments, jury instructions, and rebuttal closing arguments (including the | ^meeting in chambers); the photographic line-up presented to Tijai Andrews; Detective Harris’ Major Offense Reporting Form, interview of Lyndon Henry, MOTIONS report, notes, and incident recall report; and the defense’s response to the multiple bill of information, motion to quash the bill of information, and motion for downward departure from mandatory minimum sentence.

While this list at first glance appears extensive, upon inspection, most of what is claimed to be missing from the record is immaterial to Mr. Small’s appeal. As already noted, the materiality of certain documents in the record “varies depending on the legal bases of the defendant’s assignments of error, the missing portion’s relevance in relation to those assignments, and our ability to properly review those assignments in the absence of that portion of the record.” Norah, 12-1194, p. 9, 131 So.3d at 182 (citing Boatner, 03-0485, p. 4, 861 So.2d at 153).

Here, most of the omitted portions of the record have no relevance to Mr. Small’s other assignments of error, raised either by his appellate counsel or by him personally, related to his convictions. Thus, the omission from the record of the transcripts of the reading of the charges to Mr. Small, opening statements, closing arguments, jury instructions, and Detective Harris’ interview of Lyndon Henry, Major Offense Reporting Form, MOTIONS report, notes, and incident recall report are all immaterial to our review of Mr. Small’s appeal as they have no relevance to any of his claims. Additionally, the record has always contained the transcript of the entirety of the meeting in the judge’s chambers which occurred during the prosecutor’s rebuttal closing argument the record. Thus, we limit our discussion to the remaining omissions individually.

First, the photographic line-up with which Mr. Andrews identified Mr. Small while Mr. Andrews remained in the hospital is not included in the record. There is 121 no question that the photographic lineup is material to our review of his assignment of error dealing with the sufficiency of evidence to negate any reasonable probability of misidentification. Mr. Small has failed, however, to make any showing as to how he was prejudiced through an inability on our part to review that assignment of error. His briefing merely lists the photographic line-up as being absent from the record. Detective Harris testified as to the line-up with which Mr. Andrews identified Mr. Small. Moreover, Mr. Andrews testified that he knew Mr. Small and identified him to the police as the man that shot him as well as described Mr. Small’s role in the shooting.

Second, the complete transcript of the prosecutor’s rebuttal closing argument might also be material to our review of Mr. Small’s claim that the trial judge erred when he refused to admonish the jury regarding the prosecutor’s improper commentary. But, again, Mr. Small has failed to make any showing as to how he was prejudiced by this omission; his briefing merely lists that transcript as being absent from the record. The transcript of the portions of the rebuttal closing argument in the record does contain the commentary to which defense counsel objected and thus preserved for our review. Mr. Small does not claim that any additional, arguably improper commentary occurred at that time. Thus, we find that Mr. Small’s right to judicial review was not prejudiced by the inclusion of only an excerpted portion of the argument.

Lastly, Mr. Small contends that the lack of a complete transcript of the voir dire proceedings undermines his ability to establish error in the trial judge’s rulings to excuse two jurors for cause. These transcripts would certainly be material to our review of the merits of Mr. Small’s assignment of error. Without the voir dire examination of the prospective jurors, there is no feasible way for us to review laawhether those jurors were properly excused for cause by the trial judge from the panel. The transcript included in the record simply contains the stated reasons by the district attorney for the juror’s removal and does not contain any of the voir dire examination of either juror. In order to dispose of this assignment, however, we do not need the transcripts of the voir dire examination as the prosecutor was granted a total of twelve peremptory challenges and chose to only use eight of those peremptory challenges during voir dire. See La.C.Cr.P. art. 799. Thus, at the end of voir dire, the prosecutor had not exhausted his peremptory challenges and, in fact, had four remaining. During voir dire, the prosecutor also only challenged four jurors for cause; the trial judge excused all four jurors for cause. But Mr. Small only assigns as error the rulings on two of the four jurors excused for cause. Because the prosecution would not have exhausted its allotted peremptory challenges even if the two challenged rulings for cause were in error, we could not grant any relief on this claim and thus Mr. Small’s right to judicial review was not prejudiced by the incomplete record. See La.C.Cr.P. art. 800 B.

Thus, the omissions claimed in the trial record in this case neither require reversal of Mr. Small’s convictions nor the ordering of a new trial.

IV

In this Part we turn to consider the sentences imposed upon Mr. Small.

We first observe that we have identified a patent error in the sentencing of Mr. Small as a habitual offender on both counts because the multiple bill of information only sought enhancement of the penalty on a single, albeit unidentified count. See La.C.Cr.P. art. 920(2). The multiple bill filed in this matter only ^asserted that the defendant was a multiple offender as to one count. Nevertheless, the trial judge sentenced the defendant as a multiple offender on both counts. Accordingly, we necessarily vacate Mr. Small’s multiple offender sentences and remand to the trial court to identify which count of attempted first degree murder will the penalty be enhanced under Habitual Offender Law, codified as La. R.S. 15:529.1, and which count mil the sentence originally imposed be reinstated.

We next observe that Mr. Small moved, and the record as now supplemented confirms, for a downward departure from the statutory minimum established by the legislature. The trial judge, however, did not consider a downward departure because of his erroneous view that he was without authority to consider such a departure. The sentencing range for a second felony offender, as here, convicted of attempted first degree murder is not less than twenty-five years and not more than one hundred years. See La. R.S. 14:27 D(l)(a), 14:30.1 B; 15:529.1 A(l). Thus, the trial judge imposed the legislatively-mandated minimum sentence.

As we emphasized in Pemell, “a sentencing judge is constitutionally authorized to guarantee that sentences are not excessive, and, ... in rare and exceptional cases, a sentencing judge does have the discretion to deviate downward from a legislatively mandated sentence.” 13-0180, p. 6, 127 So.3d at 29 (emphasis in original; citation omitted). The sentencing judge is required, when a defendant properly seeks a downward departure, to explicitly determine whether the defendant’s situation is one of those rare and exceptional cases that would justify a downward departure. See id. at 8,127 So.3d at 29-30. Thus, this error also requires remand.

UREMAND INSTRUCTIONS

We remand this matter to the district court for re-sentencing only with these instructions.

First, the district judge shall identify which count of attempted first degree murder will the penalty be enhanced under Habitual Offender Law, codified as La. R.S. 15:529.1, and which count will the sentence originally imposed be reinstated.

Second, before imposing sentence under the Habitual Offender Law, the district judge shall conduct a hearing on the defendant’s pending motion to reconsider sentence under the criteria established in State v. Sepulvado, 367 So.2d 762 (La.1979), and State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. If the sentencing judge concludes that a sentence of twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence is excessive and that a downward departure is authorized, he shall impose the most severe sentence that is not constitutionally excessive. See State v. Lindsey, 99-3302, p. 5 (La.10/17/00), 770 So.2d 339, 343. If the sentencing judge decides to downwardly depart from the legislatively-mandated sentence either by reason of its duration or, for example, by its restriction on parole eligibility, he shall justify his reduction. See State v. Gordon, 96-0427 (La.5/10/96), 672 So.2d 669, 669 (per curiam).

We reserve the parties’ rights to appeal any adverse ruling by the district court on remand. See, e.g., State v. Rainey, 091510, p. 5 (La.App. 4 Cir. 7/21/10), 43 So.3d 1090, 1093.

DECREE

The attempted first degree murder convictions of Ricky Small are affirmed. The sentences imposed, however, are vacated, and the matter is remanded to the district court for re-sentencing in accord with our instructions, reserving unto the | ^parties the right to appeal the sentence following the district court’s disposition of the motion.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.

      . We have, as we always do, examined the record for errors patent and have detected none with respect to Mr. Small’s convictions themselves. See La.C.Cr.P. art. 920(2).

      . 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

      . Manson v. Brathwaite considered when, under the Due Process Clause, evidence of suggestive out-of-court identifications may be considered by the jury. 432 U.S. at 99, 97 S.Ct. 2243. We are considering the same factors under a sufficiency of evidence review.

      . Mr. Small notes that our decision in Wood-fork heavily-relied on the Louisiana Supreme Court’s analysis in State v. Mussall, 523 So.2d 1305 (La.1988), and that Mussall is sui gener-is, "distinguished by its truly bizarre facts.” State in the Interest of C.D., 11-1701, p. 6 (La.7/2/12), 93 So.3d 1272, 1276.

      . The Louisiana Supreme Court, in State v. Washington, 491 So.2d 1337, 1338-39 (La.1986), adopted the framework for ineffective assistance claims as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . La.C.Cr.P. art. 800 B provides: "The erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.”


source: Caselaw Access Project

author: PETTIGREW, J. McCLENDON, J.,

license: Public Domain

text:
    SHIH CHANG HU v. EVERGREEN OF the SOUTH, INC. d/b/a Taste of China Restaurant & Yi Hua & Fang Hua.
    No. 2013 CA 1773.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 2014.
    Rehearing Denied July 1, 2014.

      Brent P. Frederick, Baton Rouge, LA, for Plaintiff-Appellee, Shih Chang Hu.
    Robert T. Talley, Baton Rouge, LA, for Defendant-lst Appellant, Fang Hua.
    Robert T. Talley, Baton Rouge, LA, pro se, Intervenor-2nd Appellant.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

| ¡.This matter is before us on appeal from a September 4, 2013 judgment of the trial court ordering the disbursement of the funds on deposit in the registry of the court to plaintiff. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The present appeal stems from a contract dispute between plaintiff, Shin Chang Hu, and defendants, Yi Hua and Fang Hua. In a prior decision by this court, a May 18, 2011 judgment, in favor of Mr. Hu in the amount of $285,180.98, plus judicial interest from December 14, 2007 (the date the suit was originally filed), was affirmed. Shih Chang Hu v. Evergreen of the South, Inc., 2011-2170 (La.App. 1 Cir. 12/17/12), 2012 WL 6570679 (unpublished), unit denied, 2013-0750 (La.5/17/13), 118 So.3d 379 {“Hu I”). During the pendency of the prior case, Mr. Hu obtained an ex parte writ of attachment without bond, authorizing the seizure of the Huas’ family home, located at 3822 Windsong Drive in Baton Rouge. Subsequently, when the Huas sold their home in 2009, after paying closing costs and the balance owed on an existing mortgage, the net proceeds of the sale ($101,587.93) were deposited into the registry of the court. Mrs. Hua filed a motion to dissolve the writ of attachment and withdraw the deposit from the registry of the court. These matters proceeded to a hearing before the trial court on December 9, 2009, at which time the trial court denied Mrs. Hua’s motion, but ordered that Mr. Hu supply a security bond for the writ.

Included in the trial court’s original judgment in the prior suit was an order by the trial court that the East Baton Rouge Parish Clerk of Court release the funds being held in the registry of the court to Mr. Hu. Immediately, upon receiving notice of the signing of the judgment by the trial court in Hu I, counsel for the Huas, Robert Talley, attempted to intervene, claiming a first rank priority and privilege over the funds on deposit in the ¡^registry of the court. Citing La. R.S. 37:218, Mr. Talley argued he was entitled to a first rank priority and privilege superior to all other privileges and security interests for the amount of his contractual attorney fees and expenses. Subsequently, after the Louisiana Supreme Court denied writs in Hu I, the dispute over the money in the registry of the court continued.

On May 28, 2013, Mrs. Hua filed a “Motion To Determine Rank, Priority And Privilege Of Funds On Deposit In The Registry Of The Court,” requesting that the trial court “determine the proper and appropriate legal rank, priority and privilege of all competing claims to the $101,587.93 funds on deposit in the registry of the court.” Also, on that same date, Mrs. Hua filed a “Motion To Dissolve Attachment And Motion To Withdraw Deposit From The Registry Of The Court,” maintaining that her homestead exemption rights, pursuant to La. R.S. 20:1(A)(2), should be recognized and that she be permitted to withdraw the first $35,000.00 of the funds on deposit in the registry of the court. On May 29, 2013, Mr. Hu filed a “Motion For Disbursement of Registry Funds,” requesting that the entirety of the amount within the registry of the court be disbursed to him because it was less than the total amount of the judgment owed.

These matters were originally set for contradictory hearing on August 26, 2013, at which time all of the motions were continued to September 3, 2013. After listening to |4brief arguments from respec-five counsel at the September 3, 2013 hearing, the trial court stated as follows:

I’m taking into account everything everybody has submitted.
I’m going to take into account the arguments too so — all right. So where we are on this is, I agree with the [plaintiff] in this matter that they are entitled to the entirety of it [the $101,587.93] — I’m going to sign the judgment attached to the motion for disbursement [of] registry of funds that was filed on May 29th by the plaintiff.... I am going to sign it ... and send it through processing.

Mr. Talley asked for a temporary stay of the distribution of the funds pending an appeal, but the trial court repeatedly denied his request. The trial court signed an order that same day that read, in pertinent part, as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the funds being held in the Registry of Court in the amount of $101,587.93, plus interest of $514.01 [be] and are hereby disbursed as follows:
The amount of $115,370.56 made payable to: Shih Chang Hu, and his attorneys of record, Dodson, Hooks & Frederick, BPF

On September 4, 2018, the trial court signed an amended order as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the funds being held in the Registry of Court in the amount of $101,587.93, plus any and all accrued interest on said sum from the date of deposit until the date of disbursal, be and are hereby disbursed to:
Shih Chang Hu, and his attorneys of record, Dodson, Hooks & Frederick, BPF

It is from this judgment that Mrs. Hua has appealed, assigning the following specifications of error:

1. The trial court erred in failing to properly rank and prioritize all competing claims to the $101,587.93 in funds on deposit in the Registry of the Court, and failing to appropriately recognize Appellants’ legal interests in such funds.1[]
|s2. The trial court erred in summarily denying Appellants an evidentiary hearing and due process right to claim a privilege and priority on the $101,587.93 in funds on deposit in the Registry of the Court, summarily ordering all funds in the Registry of the Court disbursed to Plaintiff/Appellee judgment creditor Shih Chang Hu, and refusing to stay release of the deposited funds pending adjudication of Appellants’ interest in the funds.

DISCUSSION

Failure of Trial Court to Conduct Proper Hearing (Assignment of Error No. 2)

In her second assignment of error, Mrs. Hua argues that it was error for the trial court to order the funds distributed to Mr. Hu without conducting a proper contradictory hearing. Mrs. Hua asserts that although she appeared at the hearing on September 3, 2013, with witnesses and evidence prepared to prove her entitlement to the funds in the registry of the court, the trial court ruled from the bench after hearing only argument from respective counsel. We agree with Mrs. Hua that the trial court erred in not conducting a proper contradictory hearing before rendering judgment.

The hearing in this matter was set pursuant to the “Motion To Determine Rank, Priority And Privilege Of Funds On Deposit On The Registry Of The Court” filed by Mrs. Hua. As the relief requested by Mrs. Hua in her motion was not something to which she was clearly entitled and which required supporting proof, the matter was required to be decided contradictorily with any other party claiming an interest, priority, or privilege upon the funds on deposit in the registry of the court. See Searles v. Searles, 2008-1098, p. 3 (La.App. 1 Cir. 3/27/09), 9 So.3d 997, 998; La.Code Civ. P. art 963.

The September 3, 2013 transcript and minutes from said hearing confirm that the trial court received no evidence and heard no witnesses prior to ruling that Mr. Hu |fiwas entitled to all the funds in the registry of the court. Rather, at some point later that same day, the parties appeared for the purposes of a proffer hearing. Four witnesses testified, and several documents were introduced into the record. Thus, we can only surmise that during the initial hearing on September 3, 2013, wherein the trial court heard arguments only, the trial court ruled against the admissibility of this evidence. La.Code Civ. P. art. 1636.

Our review of the September 3, 2013 hearing transcript reveals no mention of the proffer hearing by either the trial court or any of the parties. The only reference we can even find to a “witness” came during a discussion between Mr. Talley and the trial court concerning the accuracy of the judgment prepared by counsel for Mr. Hu. After the trial court advised the parties that it was “going to sign the judgment attached to the motion for disbursement [of] registry of funds that was filed on May 29th by the plaintiff,” the following colloquy occurred:

MR. TALLEY: Judge, might I object?
THE COURT: Sure.
MR. TALLEY: ... the ex-parte motion that [counsel for Mr. Hu] filed ... suggested to the court that the monies in the registry of the court gather judicial interest, legal interest from date of deposit and he actually calculated that amount and put that in the order and that is from the 17standpoint of the clerk, that is expressly erroneous. The monies in the registry of the court do not and have never gathered legal interest or judicial interest. So the figures are inherently wrong on that judgment. The court is free to sign it, but it is wrong and we actually — I had procured a witness from the registry clerks office to—
THE COURT: I’m going to sign the judgment, I’m going to sign the judgment.
MR. TALLEY: Your Honor, can I ask that the distribution of the funds be stayed pending appellate review?
THE COURT: No. No. I’m signing the judgment, we’re disbursing it. We’ve been through the appellate process already. So I will sign the judgment that has previously been submitted. Thank you, gentlemen.

Nonetheless, the parties apparently returned to the trial court later that same day for the proffer hearing. According to Mrs. Hua’s appeal brief, this hearing “occurred outside the presence of the trial judge, after the conclusion of his rule docket.” We find nothing in the record to contradict Mrs. Hua’s recollection of the events of the day. In fact, although the cover sheet of the transcript of the September 3, 2013 proffer hearing references “The Honorable Timothy E. Kelley, Judge Presiding,” there is no indication in the transcript that Judge Kelley was actually present during the proffer hearing.

The jurisprudence indicates that when legal error is found and a complete record has been made, the appellate court is to conduct a de novo review of the record, including the proffered evidence. Holliday v. Holliday, 2000-0533, p. 7 (La.App. 1 Cir. 8/17/01), 795 So.2d 423, 429. In considering this record, we recognize that this court is “authorized and, indeed, required to render a judgment ‘which is just, legal, and proper upon the record on appeal.’” Jackson Nat. Life Ins. Co. v. Kennedy-Fagan, 2003-0054, p. 5 (La.App. 1 Cir. 2/6/04), 873 So.2d 44, 48, writ denied, 2004-0600 (La.4/23/04), 870 So.2d 307. However, “[tjhere are cases where the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues.” Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, 708 (La.1980). Where such a need arises, “the case should be remanded for a new trial.” Landry v. Bellanger, 2002-1443, p. 15 (La.5/20/03), 851 So.2d 943, 954. It is the duty of the appellate court to determine when “the court can fairly find a ^preponderance of the evidence from the cold record,” or whether the case should be remanded. Id.

In the case before us, the record is complete, and a remand for another hearing on the motion is not in the interest of judicial economy. Thus, we will review the record, including the proffered evidence, de novo and determine a preponderance of the evidence. See Moore v. Clark, 517 So.2d 293, 302 (La.App. 1 Cir.1987).

Applicability of Homestead Exemption (Assignment of Error No. 1)

Mrs. Hua argues on appeal that the first $35,000.00 of the funds on deposit in the registry of the court belong to her pursuant to her homestead exemption rights. In response, Mr. Hu contends that the homestead exemption issue was abandoned by Mrs. Hua as the issue was not raised until well after the May 18, 2011 judgment was final. Although there may be some validity to Mr. Hu’s abandonment argument, we have nonetheless considered the homestead exemption issue in our de novo review of the record and find that Mrs. Hua has effectively waived her homestead exemption in this case.

Homestead exemption is provided for in La. R.S. 20:1, which sets forth, in pertinent part, as follows:

A. (1) The bona fide homestead consists of a residence occupied by the owner and the land on which the residence is located, including any building and appurtenances located thereon, and any contiguous tracts up to a total of five acres if the residence is within a municipality, or up to a total of two hundred acres of land if the residence is not located in a municipality.
(2) The homestead is exempt from seizure and sale under any writ, mandate, or process whatsoever, except as provided by Subsections C and D of this Section. This exemption extends to thirty-five thousand dollars in value of the homestead, except in the case of obligations arising directly as a result of a catastrophic or terminal illness or injury, in which case the exemption shall apply to the full value of the homestead based upon its value one year before such seizure. This homestead exemption from seizure and sale shall extend automatically to the proceeds from any property insurance policy received as a result of damage caused by a gubernato-rially declared disaster to a homestead and that are held separately in an escrow account identified as insurance proceeds paid from the damage of a homestead for its repair or replacement.
IflC. This exemption shall not apply to any of the following debts:
(1) For the purchase price of property or any part of such purchase price.
(2) For labor, money, and, material furnished for building, repairing, or improving the homestead.
(3) For liabilities incurred by any public officer, or fiduciary, or any attorney at law, for money collected or received on deposits.
(4) For taxes or assessments.
(5) For rent which bears a privilege upon said property.
(6) For the amount which may be due a homestead or building and loan association for a loan made by it on the security of the property; provided, that if at the time of making such loan the borrower be married, and not separated from bed and board from the other spouse, the latter shall have consented thereto.
(7) For the amount which may be due for money advanced on the security of a mortgage on said property; provided, that if at the time of granting such mortgage the mortgagor be married, and not separated from bed and board from the other spouse, the latter shall have consented thereto.
(8)For any obligation arising from the conviction of a felony or misdemean- or which has the possibility of imprisonment of at least six months.
D. The right to sell voluntarily any property that is exempt as a homestead shall be preserved, but no sale shall destroy or impair any rights of creditors thereon. Any person entitled to a homestead may waive same, in whole or in part, by signing a written waiver thereof; a copy of such waiver shall be provided to the homeowner; however, if the person is married, and not separated from bed and board from the other spouse, then the waiver shall not be effective unless signed by the latter, and all such waivers shall be recorded in the mortgage records of the parish where the homestead is situated. However, if the homestead is the separate property of one of the spouses, the homestead exemption may be waived by that spouse alone in any mortgage granted on the homestead, without the necessity of obtaining a waiver from the non-owning spouse. The waiver may be either general or special and shall have effect from the time of recording. The waiver shall not be required or permitted for the rendering of medical treatment, medical services, or hospitalization. Notwithstanding any other provision of law to the contrary, a waiver of exemption from seizure as to an exempted homestead shall automatically include insurance for that property to the extent subject to the creditor’s mortgage or security interest.

According to the record, Mrs. Hua voluntarily sold her home on September 2, 2009. The HUD-1 Settlement Statement reflects a sales price of $213,000.00 with $213,164.38 listed as the gross amount due to the seller. After settlement charges of 11ft$17,510.00 and parish taxes in the amount of $1,028.86 were paid, the funds remaining were $194,625.52. Of that amount, there was a payoff to Wells Fargo Home Mortgage, Inc. (“Wells Fargo”) in the amount or $93,037.59, with the remaining $101,587.93 being deposited into the registry of the court. Thus, it is clear that prior to depositing the funds from the sale of her home into the registry of the court, Mrs. Hua paid off an existing mortgage with Wells Fargo. Presumably, this meant that either the Wells Fargo mortgage contained a waiver of the homestead exemption by Mrs. Hua or that by voluntarily paying off the Wells Fargo mortgage out of the funds she received from the sale of her home, Mrs. Hua effectively waived the homestead exemption in favor of Wells Fargo. Either way, the entire amount of the homestead exemption, $35,000.00, went to satisfy that claim. Accordingly, there is no merit to Mrs. Hua’s argument that the first $35,000.00 of the funds on deposit in the registry of the court belong to her based on her homestead exemption rights.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s September 4, 2013 judgment. All costs associated with this appeal are assessed against defendant-appellant, Fang Hua.

AFFIRMED.

McCLENDON, J., dissents and assigns reasons.

McCLENDON, J.,

dissenting.

hThe majority states because “Mrs. Hua paid off an existing mortgage with Wells Fargo, [presumably the Wells Fargo mortgage contained a waiver of the homestead exemption.” I find this to be an error given that the record lacks said documentation. Nevertheless, even assuming that the mortgage documents contained a waiver, a creditor that does not have a homestead waiver cannot encroach upon the homestead exemption merely because the mortgage holder has a waiver. See Acadian Bank v. Foret, 602 So.2d 1097, 1098 (La.App. 1 Cir.1992). In other words, the waiver would only waive the homestead exemption in favor of Wells Fargo, but not in favor of other creditors, including the plaintiff.

The majority alternatively concludes, without citing any legal authority, that voluntarily paying off the mortgage, Mrs. Hua “effectively waived” the homestead exemption. I note, however, that voluntary sale of the home and payment of the mortgage does not equate to an automatic waiver of the homestead exemption. See In Re McCollum, 363 B.R. 789, 794 (E.D.La.2007) (“[T]he court finds no error in the bankruptcy’s court’s conclusion that a Chapter 13 debtor may claim the Louisiana homestead exemption for the first $25,000.00 in proceeds from his voluntary, post-petition sale of his home.”)

Therefore, I respectfully dissent.

      . Mrs. Hua unsuccessfully applied for writs to this court and to the Louisiana Supreme Court following the trial court's denial of her motion to dissolve the writ of attachment. Shih Chang Hu v. Evergreen of the South, d/b/a Taste of China Restaurant and Yi Hua and Fang Hua, 2010-0044 (La.App. 1 Cir. 2/17/10) (unpublished writ action), writ denied, 2010-0653 (La.5/28/10), 36 So.3d 249. We note that the issue of homestead exemption was not raised by Mrs. Hua in this prior attempt to dissolve the writ of attachment.

      . On May 31, 2011, the trial court signed an order denying Mr. Talley’s petition of intervention, noting as follows: "Denied. Final judgment previously entered. No substantive alteration can be made post signing of judgment. Thus, this is appealable issue at best." On. November. 21, 2011, this court granted Mr. Talley's writ application from the trial court’s May 31, 2011 judgment, finding that it was an appealable judgment and remanding the matter to the trial court with an order that the trial court grant Mr. Talley an appeal. Mr. Talley was ordered to "submit an order of appeal to the district court within thirty days” of this court’s action on the writ. Shih Chang Hu v. Evergreen of the South, Inc., 2011-1195 (La.App. 1 Cir. 11/21/11) (unpublished writ action). At a subsequent trial court hearing on September 3, 2013, the trial court considered a "Motion to Dismiss Appeal" filed by the Clerk of Court against Mr. Talley for failure to pay estimated appeal costs. At said hearing, the trial court denied the motion to dismiss the appeal, but ordered that Mr. Talley complete a designation of the record for his appeal within fifteen days so that the appeal could proceed forward. There is nothing in the record to indicate that Mr. Talley ever complied with this order or perfected an appeal of the trial court’s denial of his request to intervene. Thus, the trial court’s May 31, 2011 judgment is final, and Mr. Talley is not a proper party to these proceedings. Although Mr. Talley was granted a devolutive appeal by the trial court in this matter, we find that he is not properly before us as an appellant. Accordingly, we pretermit consideration of the issue he raises on appeal with regard to his legal fee; i.e., that he is entitled to first rank priority and privilege over the funds on deposit in the registry of the court to the extent of his contractual attorney fees and expenses, with interest from the date of withdrawal. See Mike M. Marcello, Inc. v. Louisiana Gaming Control Bd., 2004-0488, pp. 4-7 (La.App. 1 Cir. 5/6/05), 903 So.2d 545, 547-549; La.Code Civ. P. art. 2086.

      . Mrs. Hua and Mr. Talley both applied to this court for supervisory writs and a stay of the trial court's September 4, 2013 order. This court's action was the same for both parties, i.e., "WRIT DENIED. REQUEST FOR STAY DENIED." Shih Chang Hu v. Evergreen of the South, Inc., 2013-1545, 2013-1546 (La.App. 1 Cir. 9/9/13) (unpublished writ actions).

      . As previously indicated, Mr. Talley is not properly before us as an appellant. Thus, we will not address any arguments related to whether the trial court erred in failing to recognize his legal interests in the funds in question.

      .Louisiana Code of Civil Procedure article 963 provides, in pertinent part, as follows:
      If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party.
      If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.

      . Louisiana Code of Civil Procedure article 1636 provides as follows:
      A. When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.
      B. At the request of any party, the court may allow any excluded evidence to be offered, subject to cross-examination: on the record during a recess or such other time as the court shall designate; or by deposition taken before a person authorized by Article 1434 within thirty days subsequent to the exclusion of any such evidence or the completion of the trial or hearing, whichever is later. When the record is completed during a recess or other designated time or by deposition, there will be no necessity for the requesting party to make a statement setting forth the nature of the evidence.
      C. In all cases, the court shall state the reason for its ruling as to the inadmissibility of the evidence. This ruling shall be reviewable on appeal without the necessity of further formality.
      D. If the court permits a party to make a complete record of the evidence held inadmissible, it shall allow any other party the opportunity to make a record in the same manner of any evidence bearing upon the evidence held to be inadmissible.
      Although there is no specific ruling In the record by the trial court concerning the proffer, it is clear from the transcript of the initial September 3, 2013 hearing that the trial court did not consider' the proffered evidence in making its decision herein.


author: CRAIN, J.

text:
    Shannon CASON v. Corey SANIFORD, Sheila Saniford, Mark Saniford, State Farm Mutual Automobile Insurance Company and Bethany World Prayer Center, Inc.
    No. 2013 CA 1825.
    Court of Appeal of Louisiana, First Circuit.
    June 6, 2014.

      Matthew T. Lofaso Baton Rouge, Louisiana, for Plaintiff/Appellant, Shannon Ca-son.
    Harold J. Adkins Baton Rouge, Louisiana, for Defendants/Appellees, Corey Sani-ford and State Farm Mutual Automobile Ins. Co.
    Brent P. Frederick, Baton Rouge, Louisiana, Megan E. Perkins, Denham Springs, Louisiana, for Defendants/Appellees, Bethany World Prayer Center Inc. and Houston Specialty Ins. Co.
    Rebecca A. Cunard, Baton Rouge, Louisiana, for Intervenor/Appellee, Rebbecca A. Cunard.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

| ^Shannon Cason appeals a summary judgment dismissing her claims against Bethany World Prayer Center and its insurer, Houston Specialty Insurance Company. We affirm in part, reverse in part, and remand.

FACTS

Shannon Cason instituted this suit for damages for injuries sustained when her vehicle was rear-ended by a vehicle driven by Corey Saniford. Saniford was a participant in Bethany World Prayer Center’s 220i internship program and was driving to a high school prayer meeting when the accident occurred. Cason named Bethany and Houston as defendants, claiming that Bethany was vicariously liable for the acts of Saniford under the doctrine of respon-deat superior. By a second amending petition, Cason alleged that Saniford was an insured under Houston’s policy and that Bethany was an insured under Houston’s policy for the acts of Saniford on the date of the accident. Bethany and Houston moved for summary judgment on the basis that no master-servant relationship existed between Bethany and Saniford such that Bethany would be vicariously liable for Saniford’s actions. The trial court granted the motion for summary judgment and dismissed Bethany and Houston from the suit. This appeal followed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La.App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 10-2227 (La.11/19/10), 49 So.Sd 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits admitted for purposes of the motion for summary judgment show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. Pro. art. 966B(2). IsSummary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. Pro. art. 966A(2),

Appellate courts review summary judgment evidence de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. All Crane, 47 So.3d at 1027. On a motion for summary judgment, the burden of proof is on the mover. La.Code Civ. Pro. art. 966C(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La.Code Civ. Pro. art. 966C(2); All Crane, 47 So.3d at 1027.

A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery, meaning that the fact potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131, 137.

Louisiana Civil Code article 2320 provides that masters and employers are answerable for the damage caused by their servants in the exercise of the functions in which they are employed. For liability to attach under Article 2320, Cason must 14show a master-servant relationship existed; that is, that Saniford is considered to be Bethany’s servant. See Hughes v. Goodreau, 01-2107 (La.App. 1 Cir. 12/31/02), 836 So.2d 649, 656, writ denied, 03-0232 (La.4/21/03), 841 So.2d 793; Whetstone v. Dixon, 616 So.2d 764, 770 (La.App. 1 Cir.), writs denied, 623 So.2d 1333 (La.1993). A servant is one employed to perform services in the affairs of another and who is subject to the other’s control or right of control with respect to the physical conduct in the performance of the services. Whetstone, 616 So.2d at 770 (citing Ermert v. Hartford Ins. Co., 559 So.2d 467, 476 (La.1990)). A non-servant agent contributes to the master’s business, but is not such a part of his master’s business that his physical acts and the time to be devoted to the business are subject to control. Whetstone, 616 So.2d at 770.

Factors to be considered in determining whether a master-servant relationship exists include compensation, status within the organization, performance of a specific mission, intensity of the relationship, control, the role of the organization in conferring authority and exercising control, and direct benefit to the association. Whetstone, 616 So.2d at 770. An unpaid volunteer may be deemed a servant of the organization accepting his services based upon the organization’s right to control the volunteer’s activities. Whetstone, 616 So.2d at 770.

In support of its motion for summary judgment, Bethany offered Saniford’s deposition testimony, as well as an affidavit of Bethany’s chief financial officer, Jared Stockstill. As evidenced by Cason’s motion to supplement the appellate record, Cason also relied on this evidence in opposition to the motion for summary judgment.

| .^Stockstill attested that Bethany’s 220i program is a two-semester, ten-month program intended to foster further religious education and ministry of its interns. Interns enrolled in the program are required to pay tuition. Saniford was not financially compensated for the internship and was free to withdraw at any point. Stockstill attested that Saniford was not in the course and scope of employment with Bethany at the time of the accident.

Saniford testified that he enrolled in the 220i program in August of 2010, following his graduation from high school, and that he paid $4,500 in tuition. The accident occurred in January of 2011. Saniford explained that during the internship, he lived in a dormitory on Bethany’s campus. In addition to attending classes, a requirement of the 220i program was ministering to junior high and high school students at club meetings held at area schools. The interns conducted the club meetings at the schools to which they were assigned, generally following a lesson plan prepared by Bethany. Saniford explained that the purpose of the club meetings was not to recruit membership for Bethany, but was “loosely put, witnessing to them, sharing the gospel.” At most meetings, a leader in Bethany’s youth program, referred to as an “overseer,” was present. Interns were not required to have their own vehicles, but were expected to arrange their own transportation to club meetings.

On the morning of the accident, Saniford was driving his mother’s vehicle to one of the schools assigned to him, where his overseer, Joy Baker, would be meeting him. Baker was a volunteer who was not employed by Bethany. In general, the overseer was responsible for bringing anything necessary for the club meetings, including donuts. Baker asked Saniford to pick up the donuts because it was more convenient for Saniford to do so. The order was called into the donut shop and paid for by Bethany. The accident occurred after Saniford picked up the donuts as he was traveling to the school for the meeting.

|fiBethany argues that the above facts demonstrate an absence of support for an essential element of Cason’s claim, namely that a master-servant relationship existed between Saniford and Bethany. Saniford was not compensated, held no position within Bethany’s church structure, and Bethany did not exercise control over Sani-ford’s physical actions. Cason counters that Bethany’s business is ministering religious doctrine to the public and Saniford was traveling to the school in furtherance of Bethany’s ministry mission, after picking up donuts at his overseer’s direction.

Both parties cite to the case of Whetstone v. Dixon, in which this court held that a master-servant relationship existed between a church and deacon. Like the deacon in that case, Saniford was an uncompensated volunteer. However, in Whetstone this court particularly noted that the deacon held one of the highest levels of authority and responsibility within the church hierarchy and the deacon was on a specific mission for the church that directly related to the scope of his authority and duty. Because of this, it was immaterial that the church had not dictated the deacon’s specific time and route for travel to purchase building supplies to be used in remodeling the church building. Whetstone, 616 So.2d at 772. Based on the nature of the relationship between the church and the deacon, the church was held to be vicariously liable for the deacon’s negligence in causing the accident sued upon. Whetstone, 616 So.2d at 772.

The summary judgment evidence in the case sub judice does not demonstrate the same type of relationship between Saniford and Bethany. Saniford paid tuition to participate in the internship program offered by Bethany, the goal of which was for Saniford to receive training in youth ministry. Interns were free to withdraw, from the program at any time. Successful completion of the program required attendance at club meetings held at area schools, however Bethany did not furnish the interns transportation to the meetings or dictate the 17route to be taken. The consequence of missing the meeting was discipline in the form of writing chapters of the Bible or dismissal from the program. Prior to the accident, Saniford stopped to buy donuts for the club meeting at the request of a supervising volunteer. Doing so was not a requirement of the internship, but was gratuitous on the part of Saniford and done as a convenience for Baker. The evidence does not indicate that Saniford occupied any position within Bethany’s hierarchy, much less a high-level one where he held significant authority and responsibility. Furthermore, Sani-ford explained that successful completion of the program did not result in the option of continuing with Bethany.

After considering the summary judgment evidence de novo, we find that the essential facts necessary for the determination of whether a master-servant relationship existed between Bethany and Sa-niford are undisputed. We further find that Bethany met its burden of pointing out an absence of support for the existence of a master-servant relationship. As an intern, Saniford was not subject to control by Bethany, such as would give rise to liability on the part of Bethany. Cf. Schroeder v. Board of Supervisors of Louisiana State University, 94-0909 (La.App. 1 Cir. 3/3/95), 653 So.2d 612, 616; Matlock v. Hankel, 96-1838 (La.App. 4 Cir. 2/11/98), 707 So.2d 1016, 1018-19 (finding that a volunteer fireman was subject to the control of the fire departments). Cason produced no additional factual support sufficient to establish that she would be able to prove a master-servant relationship at trial. Accordingly, the trial court was correct in entering summary judgment dismissing Cason’s claims against Bethany.

Cason also argues that summary judgment was improperly rendered in favor of Bethany’s insurer, Houston, dismissing it from the suit. We agree. Ca-son named Houston as a defendant in her first amending petition, but set forth no particular allegations against Houston. After Bethany and Houston moved for summary judgment, Cason filed a second amending and supplemental petition for | «damages wherein she alleged that Sani-ford was an insured under Houston’s policy and that Bethany was an insured under the policy for the acts of Saniford as set forth in the original and first amending petitions. Although Houston joined Bethany in moving for summary judgment on the issue of Bethany’s liability, it did not move for summary judgment dismissing the claims asserted in the second amending and supplemental petition regarding coverage under its policy. A court cannot render a motion for summary judgment dismissing a claim that has not been challenged by the pleading. Hoover v. Hoover, 01-2200 (La.4/3/02), 813 So.2d 329, 334. Because Houston failed to adequately place these claims before the court, the trial court’s judgment must be reversed insofar as it dismisses the claims that Houston’s policy provides coverage for Sa-niford’s acts.

CONCLUSION

For these reasons, the trial court’s July 29, 2013 judgment is affirmed as to the claims against Bethany and reversed as to the claims against Houston for coverage under its policy. This matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed equally to Shannon Cason and Houston Specialty Insurance Company.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Cason additionally relied upon an internet advertisement for the 200i program, the Secretary of State’s Certificate of Good Standing for Bethany, and the commercial general liability policy issued by Houston.


author: PETTIGREW, J.

text:
    GUY HOPKINS CONSTRUCTION CO. & Luba Workers’ Compensation v. Charles POOLE.
    No. 2013 CA 2072.
    Court of Appeal of Louisiana, First Circuit.
    June 6, 2014.

      Eric J. Waltner, Lafayette, LA, for Plaintiffs-Appellees, Guy Hopkins Construction Co. & Luba Workers’ Compensation.
    Michael B. Miller, Crowley, LA, for Defendant-Appellant, Charles Poole.
    Before PETTIGREW, McDONALD and McClendon, jj.
   PETTIGREW, J.

Un this workers’ compensation dispute, the claimant, Charles Poole, Jr., appeals from a September 12, 2018 judgment of the Office of Workers’ Compensation (“OWC”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

At all times pertinent hereto, Mr. Poole was employed as a laborer with Guy Hopkins Construction Company (“Guy Hopkins”). Mr. Poole was injured in the course and scope of his employment with Guy Hopkins in April 2003. According to the record, Guy Hopkins paid workers’ compensation benefits to Mr. Poole in the form of temporary total disability (“TTD”) benefits at a rate of $416.00/week from April 30, 2003 through August 4, 2003, when Mr. Poole’s benefits were terminated, prompting him to file a disputed claim for compensation. Thereafter, the matter proceeded to a trial on the merits on February 2, 2006, following which the OWC hearing officer found in favor of Mr. Poole, awarding him TTD benefits in the amount of $416.00 per week, as well as reasonable and necessary medical treatment, penalties, and attorney fees. A judgment in accordance with the OWC hearing officer’s ruling was signed on March 22, 2006. Both Guy Hopkins and Mr. Poole appealed to this court. In Poole v. Guy Hopkins Const., 2007-0079 (La.App. 1 Cir. 11/2/07), 984 So.2d 43, this court affirmed the March 22, 2006 judgment in all respects, with the .exception of the attorney fees awarded. That award was increased by $2,500.00 to reflect the work necessitated by the appeal. Poole, 2007-0079 at 11, 984 So.2d at 52-53.

Guy Hopkins filed a motion for modification of the March 22, 2006 judgment, which was heard by the OWC hearing officer on October 4, 2012. According to the record, a consent judgment was reached by the parties and signed by the OWC hearing officer on December 19, 2012. The judgment entered into by the parties stated, in pertinent part, “The defendant’s motion for modification is denied.”

A second motion to modify was filed by Guy Hopkins on March 25, 2013, requesting that the prior judgment be modified to reflect supplemental earnings benefits (“SEB”) status. In a pre-trial statement filed on August 6, 2013, Guy Hopkins alleged that |sMr. Poole was capable of returning to modified duty work and was at SEB status as opposed to TTD status such that the judgment must be modified.

This matter proceeded to a hearing before the OWC on September 5, 2013, at which time documentary evidence was introduced, and Mr. Poole and his wife testified. After considering the evidence, the OWC hearing officer ruled in favor of Guy Hopkins, finding that a change in circumstances had occurred such that Mr. Poole should be placed into the SEB category. The OWC hearing officer signed a judgment on September 12, 2013, terminating Mr. Poole’s TTD benefits as of September 5, 2013, and awarding SEB benefits beginning September 6, 2013, at the TTD rate of $1,802.66 per month. Moreover, the OWC hearing officer ordered vocational rehabilitation services to begin immediately for Mr. Poole.

It is from this judgment that Mr. Poole has appealed, assigning the following specifications of error:

1. It was legal error for the [OWC hearing officer] to modify Mr. Poole’s entitlement to temporary total disability benefits without finding a change in conditions.
2. The [OWC hearing officer] committed legal error in failing to consider other factors used in deciding the disability of Mr. Poole.
3. The [OWC hearing officer] committed legal and manifest error in requiring that Mr. Poole carry the burden of proof on Guy Hopkins’ Motion to Modify previous judgment.
4. It was legal and manifest error for the [OWC hearing officer] to find that Guy Hopkins Construction was entitled to have Mr. Poole’s temporary total disability benefits changed to supplemental earning benefits.

DISCUSSION

On appeal, Mr. Poole alleges that the record fails to contain a factual basis for finding a change in condition as required by La. R.S. 23:1310.8(B). Mr. Poole further points out that although Dr. Barrow stated that he could return to work in a sedentary work capacity with modifications, Dr. Barrow also opined that his ability to return to work was “very poor” based on his level of education, his age, and the fact that he has not worked in approximately 10 years. Mr. Poole asserts that based on the OWC hearing officer’s reasons for judgment, it is clear that the OWC hearing officer failed to consider |4these factors in deciding his disability status. Thus, Mr. Poole maintains, without a showing of a change in condition by Guy Hopkins, the motion to modify should have been denied. In response, Guy Hopkins asserts that the OWC hearing officer received and weighed all of the evidence and correctly found that there had been a change in condition in that Mr. Poole had improved such that he was physically capable of returning to modified duty work.

Pursuant to La. R.S. 23:1310-8(B), a party may re-open a workers’ compensation case and the workers’ compensation judge may modify an award on the grounds of a change in condition. “A party who seeks a modification of a worker’s compensation judgment must prove by a preponderance of the evidence that the worker’s disability has increased or diminished.” Hardee v. City of Jennings, 2007-242, pp. 2-3 (La.App. 3 Cir. 5/30/07), 961 So.2d 531, 533, writ denied, 2007-1779 (La.11/9/07), 967 So.2d 505, writ denied, 2007-1799 (La.11/9/07), 967 So.2d 509 (quoting Lormand v. Rossclaire Constr., 2001-0515, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 675, 676). A claimant seeking total disability benefits must prove by clear and convincing objective medical evidence that he is physically unable to engage in any employment. La. R.S. 23:1221. The factual finding of an OWC hearing officer that the claimant has demonstrated a change in condition is entitled to great weight and will not be disturbed unless clearly wrong. Hardee, 2007-242 at 3, 961 So.2d at 533.

After hearing from the witnesses and considering the documentary evidence in the record, the OWC hearing officer made the following findings concerning Mr. Poole’s disability status:

This case was tried on September 5, 2013, and the Court ruled from the bench.
The issues before the Court were very narrow: whether the 2006 Judgment awarding Temporary Total Disability (TTD) benefits should be modified and changed to Supplemental Earnings Benefits (SEB) and whether the claimant was entitled to credits or offsets under 23:1212,1225, or 1206.
The Court decided the 2006 Judgment should be modified as follows: The Court awarded Supplemental Earnings Benefits at the Temporary Total Disability rate beginning day of hearing, no credits or | .^offsets pled are awarded and vocational rehabilitation is ordered for Mr. Poole.
The Judgment of 2006 found accident, awarded Temporary Total Disability, awarded reasonable and necessary medical expenses, penalties, attorneys’ fees, and costs. The Court was asked to revisit the characterization of the indemnity benefits portion of the award last year by the employer. As a result, a Consent Judgment was reached on October 4 of 2012, whereon the employer agreed the motion to modify should be denied, and penalties and attorneys’ fees, expenses, and mileage were awarded.
The Court interpreted that Consent Judgment to mean no modification was available to the employer at that time, October 4, 2012. Therefore, the Court limited the scope of this hearing to evidence after the Consent Judgment date.
The Court was provided with three pieces of evidence. First, was the testimony of Mr. Poole and Mrs. Poole. Both testified Mr. Poole is worse today than he was when he had his second surgery, no date of surgery was provided. Neither testified Mr. Poole was continuing to receive medical treatment.
Second, was Dr. Jiha’s report[] of November 1, 2012, the claimant’s second medical opinion physician. He stated Mr. Poole [was] able to work at a light to medium level; he found him stable and functional, with pain under control.
Third, was Dr. Barrow’s report of March 13, 2013, the Court’s Independent Medical Examiner. He stated Mr. Poole [was] able to return to work at a sedentary level, so long as he can alternate sitting and standing every 30 minutes.
No medical evidence and no testimony was offered documenting Mr. Poole’s treatment by Dr. Hodges, his treating physician, since October 4, 2012.
The Act provides in 1221 for four categories of benefits:
• Temporary Total, for any injury producing temporary total disability of an employee to engage in any employment;
f Permanent Total, for any injury producing permanent total disability of an employee to engage in any employment;
• Supplemental Earnings Benefits, for injury resulting in the employee’s inability to earn equal to 90 percent or more of wages at the time of injury;
• Permanent Partial Disability, for anatomical loss of use or amputation of a body part.
The Court found the intent of the legislature was to provide only four categories to an employee for benefits. There is no category for total disability that’s not either temporary or permanent; nothing else is provided as argued by Mr. Poole’s counsel.
The Court was to decide if Mr. Poole remained entitled to Temporary Total Disability Benefits as determined in 2006 or whether a change in circumstances had occurred such that Mr. Poole should be placed into the Supplemental Earnings Benefits category. The Court found a change had occurred in that two physicians, including the Court’s IME, found Mr. Poole able to return to work. Mr. and Mrs. Poole’s testimony that he was actually worse was not supported by the medical evidence.
Mr. Poole no longer fit into the TTD category per the Act as the Act further states in 1221 TTD benefits “shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.” Drs. Jiha and Barrow determined Mr. Poole’s condition had resolved itself to the point he could return to work with restrictions and there was no evidence of continued, regular treatment by his physician, Dr. Hodges. Therefore, TTD benefits must cease.
Mr. Poole is entitled to an award of Supplemental Earnings Benefits at the TTD monthly rate as there was no evidence Mr. Poole was capable of earning 90% of his pre-injury wage. No evidence was offered to support a credit or offset under 1212,1225, or 1206.
In addition, the Court ordered Vocational Rehabilitation Services be provided to Mr. Poole, by a counselor of the claimant’s choice to be coordinated with Mr. Poole’s counsel.
Signed in Chambers this 12th day of September 2013, in Baton Rouge, Louisiana.

In Dr. Jiha’s report, he notes Mr. Poole’s complaints as follows: “He describes the pain as localized in the lower back and without any radiation to the lower extremities. He reports intermittent tingling and numbness in the left leg and left hand, but denies weakness in the legs.” Dr. Jiha opined that Mr. Poole was stable, and he did not anticipate any worsening of his condition. Dr. Jiha noted, further, as follows: “He |7is functional, and his pain is controlled. He does not need any more surgical intervention.... [T]he patient is at [maximum medical improvement].... [H]e cannot return to work to his previous job as a construction carpenter. However, he should be able to do light and light/medium duty work.” Similar to Dr. Jiha, Dr. Barrow concluded that Mr. Poole was capable of returning to work. Dr. Barrow opined that “Mr. Poole could return to work in a sedentary work capacity, but he would need the options to change positions perhaps every 30 minutes because prolonged sitting and standing increases his symptoms.” Dr. Barrow did not recommend any further surgery or interventional procedures.

Following an extensive review of the record and exhibits in this matter, we are unable to say that the OWC hearing officer erred in this case. The hearing officer made a specific finding that Mr. Poole had not received any continued, regular treatment by his physician, Dr. Hodges, since October 4, 2012. Moreover, based on the reports of Drs. Jiha and Barrow, the OWC hearing officer found, and we agree, that there was a change in Mr. Poole’s condition in that he was physically able to return to work with restrictions. Accordingly, the OWC hearing officer’s judgment concerning the finding of a change in circumstances sufficient to warrant a modification of judgment is reasonable and supported by the record.

CONCLUSION

For the above and foregoing reasons, we affirm the OWC hearing officer’s September 12, 2013 judgment in all respects. Costs associated with this appeal are assessed against appellant, Charles Poole.

AFFIRMED.

      . There is some discrepancy in the record regarding the date of Dr. Jiha’s report. The report is dated October 1, 2012, and indicates a date of evaluation of October 1, 2012. Using this date, Mr. Poole argues on appeal that because Dr. Jiha's opinion was given before the original consent judgment was reached on October 4, 2012, his opinion should not be considered in determining a change in condition. However, it is clear from a complete review of the record that this date is obviously incorrect. According to the "Continuity of Care Record,” the following notes were entered concerning Dr. Jiha’s treatment of Mr. Poole:
      10/3/12 — ... [A]dvised PT did not show up for SMO, Advised that per Dr. Jiha, they can RS but if PT does not show up a second time, they will be charged a duplicate fee. 10/15/12 — ... ADJ called to advise that PT has conflicting appt and RS’D SMO to 10/30 @ 3:30PM
      11/30/12 — Received completed SMO report. ...