text:
    STATE of Louisiana v. Michael P. GISCLAIR.
    No. 12-KA-946.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, J. Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Lieu T. Vo Clark, Attorney at Law, Mandeville, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and JOHN J. MOLAISON, JR.
   ROBERT M. MURPHY, Judge.

|;)The State of Louisiana appeals the trial court’s granting of defendant Michael P. Gisclair’s motion to quash, ruling that the State should have charged the defendant with a different crime. For the reasons that follow, we reverse the trial court, reinstate the prosecution of this matter, and remand the case to the district court for further proceedings.

STATEMENT OF THE CASE

On September 7, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Michael P. Gisclair, with a violation of La. R.S. 14:95(E), illegal carrying of a weapon while committing a crime of violence, alleging that he possessed “a .22 caliber rifle while in the commission of a crime of violence as defined by La. R.S. 14:2.” At his arraignment, defendant pled not Isguilty. On October 10, 2012, defendant filed a motion to quash pursuant to La. C.Cr.P. arts. 531, 532(6), and 591, alleging that the State’s charging him with a violation of La. R.S. 14:95(E) constituted double jeopardy. Specifically, defendant asserted that the dangerous weapon allegedly used in the crime of violence was the same firearm he allegedly possessed to justify the charge of illegal carrying of weapons. La. R.S. 14:95(E). Thus, under the “same evidence test,” defendant contended that he was improperly placed in double jeopardy because the same evidence would be used to prove both crimes. On October 12, 2012, the trial court granted defendant’s motion to quash, on the basis that defendant was improperly charged but not on double jeopardy grounds. The trial judge specifically adopted its previous ruling in State v. Jamar Fisher, 24th Judicial District Court, Parish of Jefferson, case no. 11-0887, in which it was held that the defendant should have been charged with aggravated assault and not illegal carrying of weapons while committing a crime of violence. On appeal, the State now challenges the district court’s granting of defendant’s motion to quash the bill of information.

FACTS

Because the trial judge granted defendant’s motion to quash, there are few facts contained in the record. The bill of information provides that on or about July 6, 2012, defendant violated La. R.S. 14:95(E) in that he did possess a .22 caliber rifle while in the commission of an aggravated assault upon Paul E. Whipple.

In its sole assignment of error, the State, as appellant, contends that the trial court erred in granting defendant’s Motion to Quash based upon its reasoning that the State should have charged defendant with a different crime.

LAW AND DISCUSSION

l/The State argues that the trial judge erred in granting defendant’s motion to quash based upon the reasoning that defendant should have been charged with aggravated assault instead of the charge of illegal carrying of a weapon while committing a crime of violence. The State contends that the exact issue has been previously addressed by this Court in State v. Fisher, 12-412 (La.App. 5 Cir. 11/27/12), 105 So.3d 964, where this Court held that the trial court erred in granting the defendant’s motion to quash based on the same grounds raised in the instant appeal. Accordingly, the State maintains that this Court’s ruling in Fisher, supra, is controlling and warrants reversal of the trial court’s ruling in this case.

Defendant responds that the trial judge properly granted the motion to quash, and that this Court should reconsider its ruling in Fisher in light of the principles of lenity and legislative intent.

As previously noted, on October 10, 2012, defendant filed a motion to quash based on double jeopardy grounds. He contended that the same evidence was used to prove both crimes. The defendant also alleges that under the Blockburger test, all of the facts alleged by the State were identical to prove both the required element of the underlying crime of violence and the charge of illegal carrying of weapons.

At the hearing on his motion to quash, in addition to the arguments set forth in his written motion, defendant argued that his case was identical to the facts setj^forth in Fisher, supra, in which the trial court granted the motion to quash. In response, the State argued that there is no double jeopardy violation because defendant is only being charged with one crime. The State also maintained that “improper charging” is not a ground recognized as a basis for a motion to quash. After listening to the arguments of counsel, the trial judge granted defendant’s motion to quash for reasons other than those argued by defendant. Specifically, the trial judge held that she did not find a double jeopardy issue; instead, the trial judge adopted her previous reasoning in Fisher, supra, where under the same factual situation, she held that the District Attorney’s Office improperly charged defendant with a La. R.S. 14:95(E) violation.

At the time the trial court granted defendant’s motion to quash, Fisher was pending before this Court on appeal. Notably, Fisher involved basically the same facts, the same issue, the same district court judge, and the same motion to quash as in the instant case. In Fisher, the defendant was charged with a violation of La. R.S. 14:95(E) “in that he did possess a handgun firearm while in the commission of an Aggravated Assault, a crime of violence as defined by La. R.S. 14:2.” Fisher, 105 So.3d at 966. The defendant filed a motion to quash alleging that the State’s charging him with a violation of La. R.S. 14:95(E) constituted double jeopardy. In his motion, he asserted that the dangerous weapon alleged in the aggravated assault was the same firearm he allegedly possessed to justify the charge of violating La. R.S. 14:95(E). The defendant also argued that the same evidence would be used to prove both crimes and that all of the facts alleged by the State were identical to prove both the required aggravated assault elements of the commission of a crime of violence and the possession of the firearm during the crime of violence.

I fiThe trial judge granted the motion to quash on the basis that the defendant was inappropriately charged and not on double jeopardy grounds. The trial judge specifically stated that the defendant should have been charged with aggravated assault and not a La. R.S. 14:95(E) violation.

The State appealed the trial court’s ruling, arguing that the trial judge did not assert a recognized legal basis for granting the motion to quash, and that the district attorney, not the district court, has control of criminal prosecutions instituted or pending.

Fisher is no longer pending. State v. Fisher, 12-412 (La.App. 5 Cir. 11/27/12), 105 So.3d 964. In fact, this Court reversed the trial court’s ruling. In reaching this conclusion, this Court reasoned that the defendant was not charged with violations of La. R.S. 14:95(E) and the underlying offense. Additionally, this Court noted that the defendant was not subject to multiple prosecutions or punishments for the same offense. Thus, this Court found, as the trial court found at the motion to quash hearing, that double jeopardy did not apply because there was only one charge relating to the incident.

Further, this Court addressed the trial court’s granting of the motion to quash on the basis that the State had inappropriately charged the defendant. This Court noted that “inappropriate charging” of a defendant is not one of the grounds for a motion to quash under La.C.Cr.P. arts. 532 or 534. Moreover, this Court stated that it is well settled that the district attorney has broad discretion in both the institution and handling of criminal prosecutions under La. Const, art. 5, § 26(B); and La. R.S. 16:1(B). In support of that principle, this Court cited State v. Juluke, 374 So.2d 1259 (La.1979), a case in which the defendant was charged with forgery, a felony, in violation of La. R.S. 14:72. In Juluke, the defendant filed a motion to quash on the basis that he should have been charged with unauthorized |7use of a credit card, La. R.S.14:67.3, a misdemeanor. The trial court granted the motion. On appeal, the Louisiana Supreme Court stated that the defendant’s conduct would be criminal under either La. R.S. 14:72 or La. R.S. 14:67.3. It found that although the State might have chosen to prosecute the defendant under La. R.S. 14:67.3, it was within the discretion provided to the district attorney under La. R.S. 14:4 to charge her under the general forgery statute. As such, the Louisiana Supreme Court reversed the ruling of the trial court and remanded for further proceedings.

This Court found that like Juluke, Fisher’s alleged conduct, ie., the pointing of a gun at another person, is criminal under both La. R.S. 14:37 and La. R.S. 14:95(E). Thus, this Court held that it was clearly within the discretion of the district attorney under La. R.S. 14:4 to charge the defendant with a La. R.S. 14:95(E) violation. This Court further concluded that “[i)t is thereafter left to the trier of fact to determine if the State met its burden of proving the elements of the charged offense.”

Lastly, this Court in Fisher addressed the defendant’s argument on appeal that the trial judge’s ruling should be upheld based on the principle of lenity or mercy. This Court found this argument lacked merit. Specifically, this Court determined that La. R.S. 14:95(E) provided fair warning to the defendant of what conduct would be considered criminal and what penalties would be imposed for- a violation of that law. Therefore, this Court did not agree that the granting of the defendant’s motion to quash should be upheld on the principle of lenity. Accordingly, this Court reversed the judgment of the trial court granting the defendant’s motion to quash the bill of information.

Here, the trial judge adopted her reasoning and ruling set forth in Fisher as the basis for her granting of the motion to quash in the instant case. It appears that IsFisher is indistinguishable on the present issue. Thus, for the same reasons this Court reversed the trial court’s ruling in Fisher, we find that the judgment of the trial court in this case must be reversed.

As in Fisher, the defendant herein was not charged with a violation of La. R.S. 14:95(E) and the underlying offense. Rather, defendant was only charged with a violation of La. R.S. 14:95(E). Additionally, defendant was not subject to multiple prosecutions or punishments for the same offense. Rather, with regard to the July 6, 2012 incident in which defendant allegedly pointed a gun at the complaining witness, the State filed a single bill of information charging defendant with illegal possession of a firearm during the commission of a crime of violence. The record is clear that the State did not file any additional charges, including aggravated assault, against defendant stemming from the July 6, 2012 incident. Moreover, there is no indication in the record that the State plans to file any additional charges relating to that incident. Thus, as correctly noted by the trial court at the motion to quash hearing, we find, as in Fisher, that double jeopardy does not apply in this case because there was only one charge brought by 19the district attorney relating to the subject incident.

Additionally, by adopting her reasoning and findings in Fisher, the trial court essentially granted the motion to quash on the basis that the State had inappropriately charged defendant. First, as previously held by this Court, “inappropriate charging” of the defendant is not one of the grounds for a motion to quash pursuant to La.C.Cr.P. arts. 532 or 534. Second, this Court has found that it is well settled that if a defendant’s criminal conduct falls under more than one statute, it is within the discretion provided to the district attorney under La. R.S. 14:4 to charge the defendant with either violation. Here, defendant’s alleged conduct constituted violations of La. R.S. 14:37 or La. R.S. 14:95(E). Thus, since defendant’s alleged conduct constitutes criminal behavior under both statutes, the State had the discretion to proceed under La. R.S. 14:95(E) rather than La. R.S. 14:37.

| ¶ nLastIy, defendant argues that the trial judge’s ruling should be upheld based on the principle of lenity. This Court addressed this same argument in Fisher and determined it lacked merit. The principle of lenity is premised on the idea that a person should not be criminally punished unless the law provides a fair warning of what conduct will be considered criminal. State v. Piazza, 596 So.2d 817, 820 (La.1992). The rule is based on principles of due process that no person should be forced to guess as to whether his conduct is prohibited. The rule of lenity applies not only to interpretations of the substantive ambit of criminal law but also to penalties imposed by those laws. In the instant case, as in Fisher, we find that La. R.S. 14:95(E) provided a fair warning to defendant of what conduct would be considered criminal and what penalties would be imposed for a violation of that law. As previously discussed, it is left to the discretion of the district attorney to decide whether to prosecute defendant under La. R.S. 14:37 or La. R.S. 14:95(E), despite the difference between each statute’s sentencing provisions.

Accordingly, for the reasons set forth herein, and as previously discussed by this Court in State v. Fisher, we reverse the judgment of the trial court granting defendant’s motion to quash the bill of information, reinstate the prosecution of this matter, and remand the case to the district court for further proceedings.

J^ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

REVERSED AND REMANDED

      . La. R.S. 14:37(A) defines aggravated assault as “an assault committed with a dangerous weapon.” La. R.S. 14:36 defines assault as "an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”

      . La. R.S. 14:95(E) provides:
      If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of parole, probation, or suspension of sentence.
      Aggravated assault is listed as a crime of violence under La. R.S. 14:2(B)(7).

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . Pursuant to La.C.Cr.P. art. 532(6), a motion to quash may be granted if trial for the offense charged would constitute double jeopardy. Both the Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. See also La.C.Cr.P. art. 591. The guarantee against double jeopardy includes constitutional protections against: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction, and 3) multiple punishments for the same offense. State v. Smith, 95-61 (La.7/2/96), 676 So.2d 1068, 1069.
      The Double Jeopardy Clause clearly prevents an offender from being convicted of both the underlying offense for a La. R.S. 14:95(E) violation and the La. R.S. 14:95(E) violation. State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1329.

      . At the motion to quash hearing, the State noted that when this case was initially screened, the screening department charged defendant with aggravated assault and a violation of La. R.S. 14:95(E). However, the State dismissed the aggravated assault charge in open court, noting the potential for a double jeopardy claim if both charges were pursued.

      . In State v. Warner, 94-2649, (La.App. 4 Cir. 3/16/95), 653 So.2d 57, writ denied, 95-0943 (La.5/19/95), 654 So.2d 1089, the appellate court ruled that double jeopardy barred the prosecution for cocaine possession of a defendant who had previously been convicted under La. R.S. 14:95(E) of possession of a firearm while in possession of the same cocaine. Likewise, in State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809, writ denied, 95-1252 (La.6/30/95), 657 So.2d 1035, the appellate court concluded that double jeopardy barred the prosecution of a defendant under La. R.S. 14:95(E) subsequent to his conviction on a charge of cocaine possession, where the cocaine possession was the basis for the violation of La. R.S. 14:95(E).

        . See also, State v. Wallace, 12-594 (La.App. 5 Cir. 2/21/13), 110 So.3d 1199, where the defendant contended that his right against double jeopardy was violated when he was prosecuted for a violation of La. R.S. 14:95(E) based on an underlying felony of aggravated assault in violation of La. R.S. 14:37. The defendant argued that because the State was required to use the same evidence to prove violations of La. R.S. 14:95(E) and La. R.S. 14:37, his right against double jeopardy was violated. On appeal, the record reflected that the defendant raised his double jeopardy claim in a pre-trial motion to quash, which was denied by the trial court. This Court then denied defendant’s writ application, and the Louisiana Supreme Court denied writs thereafter. State v. Wallace, 11-508 (La.App. 5 Cir. 5/27/11) (unpublished writ disposition), writ denied, 11-1355 (La.9/30/11), 71 So.3d 292.

        In denying defendant's writ application, this Court determined that defendant was not charged with violating La. R.S. 14:37. State v. Wallace, 11-508 (La.App. 5 Cir. 5/27/11) (unpublished writ disposition). Rather, "[t]he bill of information clearly states that [defendant] ‘violated R.S. 14:95(E) in that he did possess a handgun while in commission of R.S. 14:37.’ ” Id. Accordingly, this Court found that La. R.S. 14:37 "is only listed in the bill to describe what offense [defendant] committed while possessing or using a handgun. Thus, no double jeopardy violation exits. Id. Accordingly, on appeal this Court upheld its prior ruling under the "law of the case" doctrine.

      . Notably, however, the list of grounds contained in these articles is merely illustrative. State v. Moten, 99-552 (La.App. 5 Cir. 11/30/99), 748 So.2d 1210. Thus, the fact that defendant’s motion to quash is not based on any of the grounds contained in these articles is not dispositive of the issues raised in this appeal.

      . La. R.S. 14:4 provides that conduct which is criminal under several articles may be prosecuted, in the discretion of the district attorney, as follows:
      Prosecution may proceed under either provision, in the discretion of the district attorney, whenever an offender’s conduct is:
      (1) Criminal according to a general article of this Code or Section of this Chapter of the Revised Statutes and also according to a special article of this Code or Section of this Chapter of the Revised Statutes; or
      (2) Criminal according to an article of the Code or Section of this Chapter of the Revised Statutes and also according to some other provision of the Revised Statutes, some special statute, or some constitutional provision.

      .It is well settled that the district attorney has broad discretion in both the institution and handling of criminal prosecutions. La. Const. art. 5, § 26(B), La. R.S. 16:1(B). La. C. Cr. P. art. 61 provides that subject to the supervision of the attorney general, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute. State v. Brisco, 04-3039 (La.7/6/06), 933 So.2d 754, 762.

      . Compare, State v. Bosworth, 373 So.2d 152 (La.1979) in which the defendant was convicted of contributing to the delinquency of a minor and sentenced. At the time of the offense, the statute under which the defendant was prosecuted provided two conflicting punishments, one of which rendered the crime a felony while the other retained the crime’s misdemeanor status. The legislature at some point removed the conflict in the penalty provision by providing misdemeanor status for the crime, except for a violation of the subsection not at issue. The Supreme Court held that the defendant would be afforded the advantage of the lesser punishment provided by the conflicting amendments. As such, it vacated the sentence and remanded for resen-tencing.

        Also compare, Piazza, supra, where the defendant was indicted for violating La. R.S. 14:202, which defined the crime of misapplication of construction contract payments. The defendant filed a motion to quash arguing that the statute was unconstitutional because the penalty provision was ambiguous. The district court declared the statute unconstitutional and quashed the indictment. The district judge noted that Section 202 had been amended twice in 1986 and that the two amended statutes provided greatly differing penalty ranges. The Supreme Court decided to reconcile the amendments by giving some effect to both so as to cany out the intent of the Legislature, while also applying the principle of lenity. The Supreme Court applied the minimum penalty from one amendment and the maximum penalty from the other one. It reversed the ruling on the motion to quash and remanded for further proceedings.
      However, Bosworth and Piazza are distinguishable from the instant case. Bosworth and Piazza both involve conflicting penalties within one statute, whereas in the instant case there are no conflicting penalties within La. R.S. 14:95E.


source: Caselaw Access Project

author: JOHN J. MOLAISON, JR., Judge.

license: Public Domain

text:
    Mark MEDINA v. THYSSENKRUPP SAFEWAY, INC.
    No. 13-CA-42.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2013.

      John B. Fox, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Keith E. Pittman, Elizabeth Lynn Finch, Attorneys At Law, Metairie, LA, for Defendant/Appellee.

      Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and JOHN J. MOLAISON, JR., Ad Hoc.
   JOHN J. MOLAISON, JR., Judge.

12CIaimant, Mark Medina, appeals the granting of the Motion for Summary Judgment filed by defendant, Thyssenkrupp Safeway, Inc. For the reasons that follow, we affirm the ruling of the Office of Workers’ Compensation (OWC).

FACTS AND PROCEDURAL BACKGROUND

Claimant, Mark Medina, was hired by defendant as a laborer on May 27, 2009. Ten days later, on June 8, 2009, Medina sustained injuries to his lower back while constructing a scaffold during the course and scope of his employment with defendant. Thereafter, he sought treatment at St. Charles Hospital and then with Dr. Ralph Gessner, an orthopedic surgeon. Medina did not feel that he was improving under Dr. Gessner’s care, so he requested that his treating physician be changed to Dr. Walter Ellis, an orthopedist with Louisiana Spine and Sports Medicine. Medina began treating with Dr. Ellis, who referred him for additional therapy appointments on November 25, 2009. On March 1, 2010, Dr. Ellis released Medina to return to full-duty work, and on March 22, 2010, Dr. Ellis placed Medina at Maximum Medical Improvement (MMI).

| ¡¡Medina's accident and injury were deemed compensable, and defendant paid medical and indemnity benefits to Medina during the period of time that he required medical treatment and was placed at no-duty work status. After Dr. Ellis released Medina to return to full-duty work and placed him at MMI, benefits were terminated.

On February 8, 2012, claimant filed a “Disputed Claim for Compensation” form. On that form, claimant checked off the box which provided that he was seeking Total Temporary Disability (TTD) and/or Supplemental Earnings Benefits (SEBs) and/or total and permanent disability (TPD). Defendant filed a Motion for Summary Judgment contending that no genuine issues of material fact existed and, therefore, claimant’s claims should be dismissed. A hearing was held on August 14, 2012, and the OWC judge took the matter under advisement. On August 20, 2012, the OWC judge granted defendant’s Motion for Summary Judgment, dismissing claimant’s claim for indemnity benefits. This timely appeal followed.

LAW AND DISCUSSION

On appeal, claimant asserts that the OWC judge erred in granting defendant’s Motion for Summary Judgment.

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

14A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate, as there is no need for trial on that issue. Id. Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Hubbard v. Jefferson Parish Parks and Recreation, 10-24 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, 1110, writ denied, 10-1486 (La.10/1/10), 45 So.3d 1102.

Summary judgment procedure is intended to make a just and speedy determination of every action. LSA-C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under LSA-C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. LSA-C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. LSA-C.C.P. arts. 966 and 967; Paternostro v. Wells Fargo Home Mortg., Inc., 09-469 (La.App. 5 Cir. 12/8/09), 30 So.3d 45, 48.

An employee seeking to recover indemnity benefits for a temporary or permanent total disability must prove by clear and convincing evidence that he is physically unable to engage in any employment. LSA-R.S. 23:1221(1)(c) and (2)(c); Camardelle v. K Mart Corp., 04-224 (La.App. 5 Cir. 7/27/04), 880 So.2d 90, 93-94; Madden v. Lemle and Kelleher, LLP., 08-1691 (La.App. 1 Cir. 2/13/09), 6 So.3d 247, 250.

An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90 percent or more of his average pre-injury wage. LSA-R.S. 23:1221(3)(a). For an employee seeking to recover SEBs, the employee bears the initial burden of proving, by a preponderance of the evidence, that his injury resulted in his inability to earn that amount under the facts and circumstances of his individual case. Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793 (La.1/9/11), 56 So.3d 170, 174. Once the employee meets his burden of proof, the burden then shifts to the employer to prove by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was either offered to the employee or was available to the employee in his or the employer’s community or reasonable geographic area. LSA-R.S. 23:1221(3)(c)(i); Poissenot, supra.

Defendant filed a Motion for Summary Judgment arguing that the undisputed facts established that claimant was not entitled to any further workers’ compensation benefits as of March 1, 2010, as he was released to return to full-duty work with no restrictions and placed at MMI by his treating physician. In its motion, defendant specifically contended that claimant was not entitled to either temporary or permanent disability indemnity benefits under LSA-R.S. 23:1221(l)(c) and (2)(c) because he would not be able to prove by clear and convincing evidence that he was disabled and unable to engage in any employment. Defendant also contended that claimant was not entitled to SEBs under LSA-R.S. 23:1221(3) because he would not be able to prove by a preponderance of the evidence that he was unable to earn 90 percent of his pre-injury wages for reasons other than economic ones.

|fiAt the hearing on the motion, defendant introduced into evidence claimant’s medical records from St. Charles Parish Hospital, Dr. Gessner, and Dr. Ellis. Defendant argued that the medical records supported its contention that claimant was released to full-duty work with no restrictions and placed at MMI in March of 2010. Defendant also introduced into evidence at the hearing a log of benefits that had already been paid to claimant.

In his memorandum in opposition to the motion, claimant contended that his claims could not be decided on summary judgment, and that a trial on the merits was required. Claimant argued that he was entitled to SEBs under LSA-R.S. 28:1221(3)(a) because he was unable to earn 90 percent of his pre-injury wages. He also argued that Dr. Ellis’ release to return to work did not determine whether his physical limitations prevented him from earning 90% of his pre-injury wages or the question of his disability.

Claimant attached his affidavit to his memorandum and introduced it into evidence at the hearing. In that affidavit, claimant stated that his injury from the accident in question limited his ability to walk, stand, or sit for extended periods of time, to bend and stoop, and to lift heavy objects. He asserted that he was not able to perform the job duties that he had at Safeway Services prior to the accident. Claimant listed various jobs he had held since Dr. Ellis released him and stated his income from those jobs. He alleged that his back was still painful and that he needed and wanted additional medical treatment. Claimant also attested in his affidavit that due to the functional limitations caused by his injury, he was unable to earn 90 percent of his pre-injury wages.

After reviewing the foregoing, we find that there are no genuine issues of material fact and that defendant is entitled to judgment as a matter of law. The only evidence claimant introduced at the hearing was his self-serving affidavit, which is ^insufficient to show that he would be able to meet his burden of proof at trial that he is entitled to indemnity benefits or SEBs. Claimant did not show that he would be able to prove at trial by a preponderance of the evidence that he is physically unable to engage in any employment as required to obtain temporary or permanent total disability benefits. He failed to provide any medical evidence regarding his alleged disability.

With respect to SEBs, claimant failed to show that he would be able to prove at trial that he is unable to earn 90 percent or more of his average pre-injury wage. He did not offer any proof of a causal connection between the physical and/or functional limitations alleged in his affidavit and the 2009 work-related accident. Claimant did not provide any proof of lost wages such as pay stubs or income tax returns to show that he is unable to earn 90 percent or more of his average pre-injury wage.

Moreover, claimant’s affidavit was rebutted by medical records introduced into evidence by defendant. Those medical records showed that Dr. Ellis, claimant’s own treating physician, released claimant to full-duty work with no restrictions and placed him at MMI in March of 2010.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the OWC judge, dismissing claimant’s claims for indemnity benefits and SEBs.

AFFIRMED


author: ROBERT M. MURPHY, Judge.

text:
    Marie JACKSON v. ST. JOHN THE BAPTIST PARISH SCHOOL BOARD.
    No. 13-CA-103.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2013.

      Brian F. Blackwell, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and JOHN J. MOLAISON, JR.
   ROBERT M. MURPHY, Judge.

| p.St. John the Baptist Parish School Board (the “Board”) employee Marie Jackson appeals the May 2, 2012 trial court judgment denying her motion to confirm a January 30, 2012 preliminary default entered against the Board based on insufficient service of process and dismissing her petition without prejudice. For the reasons that follow, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

The first issue in this case is the applicable service of process provision to effect service on a school board. The background facts include that appellant Marie Jackson had worked as a year-round bookkeeper for the Board for 37 years. On July 9, 2011, Ms. Jackson was allegedly struck in the eye and chest by a student attending a summer feeding program at Garyville/Mt. Airy Math and Science Magnet School. On December 19, 2011, Ms. Jackson filed a petition for benefits under La. R.S. 17:1206.1(A)(1) seeking sick leave without reduction in |spay and without reduction in accrued sick leave days. She produced a physician’s certificate documenting an injury, made amicable demand, and contended she was denied benefits to which she was entitled. In his affidavit, Dr. Dominic Arcuri, III, testified that Ms. Jackson is suffering from stress and anxiety and that she should not return to work for the foreseeable future. He also noted that the offending student was permitted to remain at the same school where the incident occurred.

She requested service of her petition on the Board through its President, Patrick H. Sanders, at the Board’s offices located in Reserve, Louisiana. Despite her specific request, “domiciliary” service was made on a Board employee, Kim Scioneaux, at the Board’s address on January 3, 2012. On January 23, 2012, Ms. Jackson moved for entry of a preliminary default on the basis of this domiciliary service and the Board’s failure to timely file responsive pleadings. On January 30, 2012, a preliminary default was entered; on February 17, 2012, plaintiff counsel personally mailed a certified copy of the petition, motion, and preliminary default judgment to the Board through its President which was received on February 23, 2012.

On March 16, 2012, Ms. Jackson’s motion for confirmation of the preliminary default was submitted and taken under advisement. On May 2, 2012, the trial court denied the confirmation and dismissed plaintiffs claims without prejudice. The trial judge found La. R.S. 17:51 service requirements to control:

[T]he above referenced statutory provision (R.S. 17:51), chosen by the plaintiff [in her service instructions] was proper as it is specific to school boards in this type of action. Therefore, it is unnecessary to discuss other service provisions.

|4The trial judge further found domiciliary service insufficient as “domiciliary” pertains to “dwelling house or usual place of abode,” under La. C.C.P. art. 1234, and is inapplicable to the instant facts where an employee was served at his office. On May 10, 2012, Ms. Jackson filed a motion for a new trial as to the trial court’s May 2, 2012 dismissal of the matter for failure to personally serve the defendant with the petition. Ms. Jackson contended that the “judgment appears contrary to the law and evidence” under La. C.C.P. art.l972(l).

At the May 10, 2012 hearing on the motion for a new trial, Ms. Jackson argued that service on the Board was proper under La. C.C.P. art. 1265, pertaining to service on political subdivisions, and that the trial court erred in dismissing her claim with prejudice. La. C.C.P. art. 1265 requires service on a municipal board on its executive officer or, in his or her absence, on any employee thereof. The trial court denied the motion for a new trial and assigned reasons on the same date. The trial court held that the plaintiff erroneously claimed that the Court had dismissed her claim with prejudice. The court also found that the more specific service article on school boards, La. R.S. 17:51, controlled:

[Pjlaintiff primarily asserted that service of process was not insufficient because pursuant to Louisiana Code of Civil Procedure Article 1265, a political subdivision such as a school board could be served via personal service on one of its employees of suitable age found at its office address. While this general article does allow for service or process by this method, a more specific statute, LSA-R.S. 17:51 controls this case and mandates that ‘.... [i]n all suits against school boards citation shall be served on the president of the board and in his absence on the vice-president.’ The record is clear that this was not done in this case. As a result, the Court found and still finds service to be insufficient.

The trial court emphasized that it dismissed the case without prejudice and that the plaintiff “remains free to amend her lawsuit, if necessary and re-file it to properly effectuate service.” Alternatively, the trial court asserted that it “also 15gave the plaintiff the option to correct the defect in the service and perfect service upon the defendant within the same lawsuit.”

ISSUES ON APPEAL

On appeal, Ms. Jackson raises three assignments of error:

1. The trial court erred in finding that service upon the St. John the Baptist Parish School Board was insufficient.
2. The trial court erred in refusing to confirm a default judgment against the St. John the Baptist Parish School Board.
3. The trial court erred in dismissing Marie Jackson’s claims for an alleged insufficiency of service of process.

STANDARD OF REVIEW

The standard of review regarding the exception of insufficient service of process requires an appellate court to determine whether the trial court’s finding of fact was manifestly erroneous. Taranto v. Louisiana Citizens Prop. Ins. Corp., 10-105 (La.3/15/11), 62 So.3d 721, 726. The granting or denying of a motion for a new trial rests within the wide discretion of the trial court, and its determination should not be disturbed absent a clear abuse of discretion. State of La., DOTD v. August Christina & Bros., Inc., 97-244 (La.App. 5 Cir. 2/11/98), 716 So.2d 372.

LAW AND DISCUSSION

Assignments of error one and two bear on determining the requirements to effect service on a school board.

La. R.S. 17:51 provides in part:

There shall be a parish school board for each of the parishes, and these several parish school boards are constituted bodies corporate with powers to sue. The legislature hereby authorizes suits against any parish school board for the enforcement of contracts entered into by the school board or for recovery of damages for the breach thereof, without necessity of any further authorization by the legislature. No other suits may be instituted or prosecuted against any parish school board unless in each individual case the legislature first has granted to the party or parties plaintiff the right to sue the particular school board, as provided in Section 26 of Article XIX and Section 35 of Article III of the Louisiana Constitution. In suits against \ ^school boards citation shall be served on the president of the board and in his absence on the vice-president. (Emphasis added).

Ms. Jackson argues that the trial court erred in holding that the only available method of service was that set forth in La. R.S. 17:51.

Ms. Jackson suggests that La. C.C.P. art. 1265 provides a viable alternative method to effect service on a school board as a political subdivision:

Service of citation or other process on any political subdivision, public corporation, or state, parochial or municipal board, public corporation, or state, parochial or municipal board or commission is made at its office by personal service upon the chief executive officer thereof, or in his absence upon any employee thereof of suitable age and discretion. A public officer, sued as such, may be served at his office either personally, or in his absence, by service upon any of his employees of suitable age and discretion.
If the political entity or public officer has no established office, then service may be made at any place where the chief executive officer of the political entity or the public officer to be served may be found.

Ms. Jackson argues that service on Ms. Scioneaux, a Board employee, was sufficient to effect service.

Ms. Jackson further contends that La. R.S. 13:5107(B) provides for yet another alternative method of service for political subdivisions:

In all suits against a political subdivision of the state, or any of its departments, offices, boards, commissions, agencies or instrumentalities, citation and service may be obtained on any proper agent or agents designated by the local governing authority and in accordance with the laws of the state provided that the authority has filed notice of the designation of agent for service of process with and paid a fee of ten dollars to the secretary of state, who shall maintain such information with the information on agents for service of process for corporations. If no agent or agents are designated for service or process, as shown by the lack of such designation in the records of the secretary of state, citation and service may be obtained on the district attorney, parish attorney, city attorney, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of the state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency or officer through whom suit is to be filed against. (Emphasis added).

]7We first find that La. R.S. 13:5107 is inapplicable to the facts at hand. Neither party claims that there was a designated agent for service of process for the Board, or that Ms. Scioneaux was such an agent designated under this article for Ms. Jackson to have accomplished service on the Board.

We further find that the more specific application of La. R.S. 17:51 to school boards controls: “In suits against school boards citation shall be served on the president of the board and in his absence on the vice-president.” (Emphasis added). When two statutes apply to the same situation, the specific statute applies over the general one. Silver Dollar Liquor, Inc. v. Red River Par. Police Jury, 10-2776 (La.9/7/11), 74 So.3d 641. La. R.S. 17:51 and La. C.C.P. art. 1265 both arguably apply to service of citation on political subdivisions. As La. R.S. 17:51 applies to the school board entity at issue here, we find that La. R.S. 17:51, requiring service on the president of the board, exclusively controls. Service in the record, characterized as “domiciliary” on a school board employee, was therefore insufficient to join the issues to take a default.

In her brief, Ms. Jackson avers for a liberal construction of the procedural articles pursuant to La. C.C.P. art. 5051. We find however that statutory law pertaining to service of process has been strictly construed. See Barnett v. Louisiana State Univ. Med. Center-Shreveport, 02-2576 (La.2/7/03), 841 So.2d 725 (plaintiffs are strictly held, for example, to the obligation of serving the correct agent for service of process).

IsWe find that without proper service the trial court did not error in denying confirmation of the entry of default. Beevers v. Burmaster, et al., 00-1951 (La.4/11/01), 787 So.2d 381.

Assignments of error one and two therefore lack merit. We therefore do not reach the merits of Ms. Jackson’s claim for sick leave benefits under La. R.S. 17:1206.1(A)(1).

In her assignment of error number three, Ms. Jackson complains of the dismissal of her claims for alleged insufficiency of service of process. This requires the Court’s evaluation of the trial court’s judgments of denial of confirmation and denial of the motion for a new trial.

A review of the judgments at issue shows that the dismissal was without prejudice. The May 2, 2012 Judgment denying confirmation reads, “For the foregoing reasons, plaintiffs Motion to Confirm a Default, is Denied and the matter is dismissed without prejudice.” The June 8, 2012 Judgment denying the motion for a new trial provides an option:

At the hearing, the Court re-emphasized that the plaintiffs claim was dismissed without prejudice; she therefore remains free to amend her lawsuit, if necessary and re-file it to properly effectuate service. In the alternative, however, the Court also gave the plaintiff the option to correct the defect in service and perfect service upon the defendant within the same lawsuit. (Emphasis hers).

The judgment denying the motion for confirmation contradicts the latter judgment denying the motion for a new trial to the extent that the first judgment requires a new filing and the latter does not.

La. C.C.P. art. 932(A) provides in part: When the grounds of the objections pleaded in the declinatory exception [insufficiency of service, La. C.C.P. art. 925(2) ] may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court[.] (Emphasis added).

|flThe trial court effectively sustained the exception of insufficiency of process in denying the motion to confirm the default. We therefore find the trial court erred in its May 2, 2012 Judgment denying confirmation based on insufficient service by not permitting Ms. Jackson to request reser-vice on the Board within a specified delay.

Assignment of error number three has merit. We therefore reverse the trial court’s dismissal of the action.

The Board filed its answer on May 18, 2012, after the May 2, 2012 judgment of dismissal and before the June 8, 2012 hearing/judgment denying a new trial. The filed answer prevents any judgment of default or award on the merits. See Ackel v. Ackel, 05-97 (La.App. 5 Cir. 5/31/05), 905 So.2d 1137 (holding that filing of an answer up to the time of signing of judgment renders the judgment an absolute nullity). With the dismissal vacated, and the Board’s answer filed, we find the issues joined and there is no need to serve the Board again.

CONCLUSION

In light of the foregoing reasons, we affirm the trial court’s denial of confirmation of the May 2, 2012 default judgment based on insufficient service on the Board under La. R.S. 17:51. Further, we reverse the trial court’s May 2, 2012 judgment insofar as it dismissed Ms. Jackson’s suit. With a timely answer filed, the case can now proceed. The matter is remanded for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

      . La. R.S. 17:1206.1(A)(1) provides:
      Any employee of the parish or city school boards of this state, as the word "employee" is defined in R.S. 17:1205, who is injured or disabled while acting in his official capacity as a result of assault or battery by any student or person, shall receive sick leave without reduction in pay and without reduction in accrued sick leave days while injured or disabled as a result of such assault or battery; however, when such employee is absent for six or more consecutive days as a result of such injury or disability, he shall be required to present a certificate from a physician certifying such injury or disability.
      La. R.S. 17:1205 defines an "employee” as: Any person in the employ of any parish or city school board of the state of Louisiana who is not a teacher or whose employment does not require the holding of a teacher’s certificate or who is not employed as a bus driver.

      . A school board is a “political subdivision” of the State of Louisiana. La. R.S. 13:5102(B)(1).

      . The trial court made conflicting references to La. R.S. 17:51. In its May 2, 2012 denial of confirmation, the trial court referred to the statute’s "mandatory language” followed by a correct quoting of the statute: "citation shall be served on the president of the board and in his absence on the vice president.” (Emphasis hers). In its June 8, 2012 denial of plaintiff's motion for a new trial, however, the trial court mistakenly quoted La. R.S. 17:51 ".... [i]n all suits against school boards, citation shall be served....” (Emphasis added). The trial court’s inadvertent adding of the word "all” did not alter the mandatory language of the applicable statute.


text:
    STATE of Louisiana v. Michael MARTIN.
    No. 13-KA-34.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Jerome G. Smith, III, Vincent A. Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Lieu T. Vo Clark, Attorney at Law, Mandeville, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and JOHN J. MOLAISON, JR., Ad Hoc.
   JOHN J. MOLAISON, JR., Judge.

| gDefendant, Michael Martin, appeals his conviction of possession with intent to distribute cocaine. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

On March 14, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Michael Martin, with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A). Defendant was arraigned on April 6, 2011, and pled not guilty. On May 26, 2011, the matter proceeded to trial where a 12-person jury returned a verdict of guilty as charged. Defendant filed a motion for a new trial on June 14, 2011, which the trial court heard and denied the next day.

On June 20, 2011, the trial court sentenced defendant to imprisonment at hard labor for fifteen years with the first two years to be served without the benefit of parole, probation, or suspension of sentence. That same day the State filed a |smultiple offender bill of information, alleging defendant to be a second felony offender. Defendant stipulated to the allegations of the multiple bill. The trial court vacated defendant’s original sentence and imposed the agreed-upon enhanced sentence of 15 years at hard labor. On August 1, 2011, defendant filed a motion for appeal, which the trial court granted the next day.

On September 25, 2012, this Court dismissed defendant’s appeal as untimely. State v. Martin, 12-74 (La.App. 5 Cir. 9/25/12), 101 So.3d 1004. Thereafter, defendant filed an application for post-conviction relief seeking an out-of-time appeal, which the trial court granted on December 18, 2012. This appeal followed.

FACTS

In the evening of February 17, 2011, Officer Brandon Leblanc of the Gretna Police Department initiated a traffic stop near the intersection of Franklin Avenue and Burmaster Street in Gretna, Louisiana. The officer observed a vehicle disregard a red stop light and make a left turn. With lights and sirens, the officer pulled the vehicle over without incident. Defendant was the sole occupant of the vehicle. The officer obtained defendant’s proof of insurance, vehicle registration, and driver’s license, ran the information and determined that defendant had three open attachments. The officer then advised defendant of his rights, arrested him for the attachments, and placed him in the rear of his police unit. Defendant’s car was still running, so the officer turned off the ignition and retrieved the keys. While doing so, with the aid of a flashlight, he observed in plain view on the driver’s side floorboard a pack of cigarettes and underneath it a clear bag containing smaller bags. The officer suspected this was contraband, so he retrieved the bag and field-tested it for cocaine, which yielded a positive result. No money was recovered from defendant or his vehicle.

|4Soon thereafter, Detective Alfred Dis-ler and Lieutenant Scott Vincent of the Gretna Police Department arrived on the scene. Detective Disler advised defendant of his rights, which defendant indicated he understood and wished to waive. Defendant was then transported to the police station, where he was again advised of his rights, executed a rights of arrestee form, waived his rights, and gave a taped statement. In his statement, defendant admitted that the cocaine found was his, that he used cocaine daily, but that he did not sell it. He also stated that the vehicle he was driving when he was pulled over belonged to him.

A scientific analysis report, prepared by the Jefferson Parish Sheriffs Office Crime Laboratory, indicated that the narcotics seized from defendant consisted of one bag containing 14 bags of an off-white powder. The powder tested positive for cocaine and had a gross weight of 6.15 grams.

Lieutenant Daniel Jewell of the Jefferson Parish Sheriffs Office, an expert in the field of packaging, handling, and valuing street level narcotics, testified that three factors are considered when attempting to determine if a quantity of narcotics is being distributed or consumed personally: value, quantity, and packaging. He further testified that narcotics for personal use were usually bought in bulk, not divided into smaller amounts. Lieutenant Jewell explained that 6.15 grams of cocaine in bulk has a value of about $300 to $400. It was his opinion that 6.15 grams of cocaine divided into 14 smaller units would have a value of about $50 per unit, or about $700 collectively. Lieutenant Jewell asserted that it was inconsistent with personal use for the narcotics to be broken down into smaller units.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

These two assignments are addressed together since they are related, and defendant addresses them together in his brief. Defendant first alleges that the evidence was insufficient to support his conviction. Secondly, he contends that the | ¡¡trial court erred in denying his motion for a new trial on the ground that the evidence was insufficient to support his conviction. Defendant argues that the State failed to prove that he possessed cocaine with the intent to distribute. Specifically, defendant acknowledges that the evidence supports a finding of possession, but he disputes that he had the intent to distribute the cocaine. The State contends otherwise.

This Court has recognized that a denial of a motion for a new trial based on the verdict being contrary to the law and the evidence is not subject to review on appeal. State v. Bazley, 09-358, p. 17 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 19, writ denied, 11-0282 (La.6/17/11), 63 So.3d 1039 (citation omitted). However, both the Louisiana Supreme Court and this Court have still addressed sufficiency claims under these circumstances. Id., 09-358 at 17-18, 60 So.3d at 19 (citation omitted). Therefore, we will address this assignment of error. See id., 09-358 at 18, 60 So.3d at 19.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885.

Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

Defendant was convicted of possession of cocaine with intent to distribute in violation of LSA-R.S. 40:967(A). To support a conviction of possession of a controlled dangerous substance with the intent to distribute, the State is required to prove that defendant possessed the substance and did so with the specific intent to distribute it. State v. Morton, 12-27, p. 18 (La.App. 5 Cir. 5/31/12), 97 So.3d 1034, 1042, writ denied, 12-1476 (La.1/18/13), 107 So.3d 625. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Id. Specific intent may be inferred from the circumstances. Id. Such circumstances include: (1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute. State v. Hearold, 603 So.2d 731, 735 (La.1992). Finally, specific intent is a legal conclusion to be resolved by the fact-finder. Morton, supra.

For example, in State v. Wade, 36,295, pp. 6-7 (La.App. 2 Cir. 10/23/02), 832 So.2d 977, 983, writ denied, 02-2875 (La.4/4/03), 840 So.2d 1213, the Second Circuit found that the evidence was sufficient to support a finding of intent to distribute cocaine even though no money, weapon, cellular telephone, or pager was found on the defendant’s person at the time of his arrest. The defendant, upon his arrest, was carrying in his front pocket seven individually wrapped rocks of crack cocaine, and the State’s expert witness testified that the total weight of cocaine discovered on the defendant’s person, 9.2 grams, was not a “personal use amount,” and explained that each $100 rock would likely have been divided into “dime bags.” Id.

On the other hand, in State v. Robertson, 95-645, p. 7 (La.App. 1 Cir. 4/4/96), 672 So.2d 391, 396, writ granted in part, 96-1048 (La.10/4/96), 680 So.2d 1165, the First Circuit found that the circumstances did not indicate that the defendant intended to distribute the five to eight grams of crack cocaine recovered from him. First, although the crack cocaine was in $10.00 and $20.00 rocks, a form suitable for distribution, there was only one package, rather than several smaller packages; and there were no baggies in which to package smaller amounts. Id., 95-0645 at 6-7, 672 So.2d at 395-96. Second, there were three persons in the vehicle who could have shared the rocks amongst themselves. Id., 05-0645 at 7, 672 So.2d at 396. And third, no weapons or large sums of cash, items commonly seized in drug distribution arrests, were found on the defendant’s person or in the vehicle. Id.

In the instant case, the State introduced evidence that showed defendant possessed 6.15 grams of cocaine, which was divided and packaged into 14 smaller | quantities. Also, the State presented expert testimony that the division of the cocaine into smaller amounts was consistent with distribution and inconsistent with personal use. Yet, there was no testimony as to whether 6.15 grams of cocaine was a quantity consistent with distribution or personal use. Other than the individual packaging, no money, weapons, or any other items associated with distribution were discovered on defendant or in his vehicle. However, neither was paraphernalia indicative of personal use discovered in defendant’s possession. Unlike Robertson, where three people were in the vehicle, in the instant case, defendant was alone in the vehicle at the time of his arrest. On the other hand, defendant claimed in his statement that the cocaine was for his personal use.

The jury reviewed all the evidence, heard all the testimony, and evidently believed the State’s expert, concluding that defendant intended to distribute the cocaine. When the trier of fact is confronted with conflicting testimony, fact findings rest solely with that judge or jury, who may accept or reject, in whole or in part, any witness’s testimony. State v. Watson, 08-214, p. 9 (La.App. 5 Cir. 8/19/08), 998 So.2d 779, 785. Absent internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Caffrey, 08-717, p. 5 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. Watson, 08-214 at 9, 993 So.2d at 785.

After reviewing the evidence and the jurisprudence, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to show that defendant possessed the cocaine with the intent to distribute it. Defendant’s intent to distribute can be inferred from the individual packaging 13of the cocaine, the lack of personal paraphernalia, and the fact that the cocaine was discovered in the possession of one person. Accordingly, we also find that the trial court did not abuse its discretion in denying defendant’s motion for a new trial based on the verdict being contrary to the law and the evidence.

These assignments are without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals one error patent that does not require correction, but is worthy of discussion.

Defendant, as a second felony offender, was sentenced to fifteen years at hard labor. LSA-R.S. 15:529.1(G) provides that any sentence imposed under the provisions of this section shall be at hard labor without the benefit of probation or suspension of sentence. State v. Nickles, 46,189, p. 10 (La.App. 2 Cir. 4/13/11), 60 So.3d 728, 734, writ denied, 11-0900 (La.11/18/11), 75 So.3d 450. Regarding the imposition of a sentence without the benefit of parole, the conditions imposed on the sentence are those called for in the sentencing provisions for the underlying felony offense. Id. (Emphasis in original). In fact, the sentence conditions required by LSA-R.S. 15:529.1(G) are additions to, rather than replacements of, those conditions required by the sentencing provisions for the underlying offense. Id.

At the time of the offense, LSA-R.S. 40:967(B)(4)(b) provided that the first two years of a sentence for distribution of cocaine are to be served without the Imbenefít of parole, probation, or suspension of sentence. The trial court failed to articulate this when imposing sentence. Despite this omission, pursuant to LSA-R.S. 15:301.1, the benefits provision is self-activating and the first two years of defendant’s sentence are deemed to be without all benefits, while all fifteen years are deemed to be without the benefit of probation or suspension of sentence. See State v. Williams, 10-265, pp. 11-12 (La.App. 5 Cir. 11/9/10), 54 So.3d 98, 105-06.

DECREE

For the foregoing reasons, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED

      . In his motion for a new trial, defendant alleged six grounds for granting a new trial. The fifth alleged his conviction was not supported by the evidence:
      The verdict of guilty of [sic] as charged of Possession with Intent to Distribute Cocaine was not supported by the evidence. The only evidence introduced against the Defendant with reference to this charge was the tape recorded statement of the defendant’s alleged confession which we contend was coerced under the guise of "getting him some help (i.e., drug treatment; drug court),” which was totally insufficient in that the rights of arrestee form was not mentioned on the tape and the witnessing law enforcement officer was not called to testify at trial.

      . Further, it is noted that the question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal. State v. Thomas, 08-813, p. 5 (La.App. 5 Cir. 4/28/09), 13 So.3d 603, 606 n. 3, writ denied sub nom., State ex rel. Thomas v. State, 09-1294 (La.4/5/10), 31 So.3d 361. Although defendant filed a motion for a new trial, he did not file a motion for post-verdict judgment of acquittal under LSA-C.Cr.P. art. 821. Procedurally, there is a distinction between the two motions. Id. Nonetheless, the failure to file a post-verdict judgment of acquittal does not preclude appellate review of the sufficiency of the evidence. Id.

      . The trial court’s ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Bazley, 09-358, p. 17 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 19, writ denied, 11-0282 (La.6/17/11), 63 So.3d 1039 (citation omitted).

      . It is well-settled that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407, p. 4 (La.6/21/02), 820 So.2d 518, 520.