author: COOKS, Judge.

text:
    Sherry DeBARGE v. LFI OF LAKE CHARLES and ACE American Insurance Company [ (LFI of Fort Pierce, Inc.].
    No. 14-747.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2014.

      Mark Zimmerman, Lake Charles, LA, for Plaintiff/Appellee, Sherry DeBarge.
    Kirk L. Landry, Baton Rouge, LA, for Defendant Appellant, LFI Fort Pierce, Inc. and ACE Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and J. DAVID PAINTER, Judges.
   COOKS, Judge.

| ¡.FACTS AND PROCEDURAL HISTORY

DeBarge, age 53, went to work for LFI shortly after Hurricane Rita on October 5, 2005, as a laundry assistant making beds, vacuuming, taking care of soiled laundry, and doing general cleaning inside and outside of tents set up to house workers stationed in Lake Charles, Louisiana. She was injured on November 1, 2005, when her foot became entangled on some plastic attached to a bed causing her to strike her neck on a bed as she fell to the floor. LFI denied the occurrence of the injury and denied the compensability of the work injury up to the date of trial on March 2, 2011. The employer stipulated to the occurrence of the work accident at trial; but, to date, no indemnity benefits have been paid. Certain medical expenses have been paid by the employer while other related medicals have still not been paid. The employer asserts that claimant forfeited benefits because of dishonest answers to a work questionnaire when applying for the job. A panel of this court previously addressed this case in DeBarge v. LFI Lake Charles, 2011-1208 p. 1 (La.App. 3 Cir. 3/7/12), 87 So.3d 930, 931, wherein the court stated:

On October 30, 2006, Sherry De Barge, in proper person, filed a Disputed Claim for Compensation (Office of Workers’ Compensation Form 1008, hereafter “1008”) in which she alleged that she was injured on November 1, 2005, when she became entangled in some plastic and fell, hitting her head. On December 1, 2006, counsel formally enrolled for “Employer, LFI OF LAKE CHARLES.” That day, the WCJ signed an order enrolling counsel for “Employer, LFI ■OF LAKE CHARLES.” On February 15, 2007, an answer was filed on behalf of “the Employer, Labor Finders, named as LFI of Lake Charles.” Later pleadings were filed in the name of “Employer, LFI of Lake Charles.” The identity of De-Barge’s employer was never otherwise raised as an issue.

|sThe Workers’ Compensation Judge (WCJ) found there was “virtually no support for LFI’s claim that DeBarge had forfeited her benefits under La.R.S. 28:1208.1, by denying the existence of previous neck problems dating back to 1996 on her pre-employment medical questionnaire.” Id. at 932. The WCJ further found that: “An untrue or inaccurate statement does not equate to fraud,” Id., and “in the nine years between DeBarge’s neck complaints in 1996 and the subject accident in 2005, she had been employed performing strenuous labor.” Id. The WCJ awarded DeBarge indemnity benefits as a result of her November 2005 on-the-job accident, and found she was entitled to “all reasonable medical treatment including all medical bills and out of pocket expenses related to the accident.” Id. He also assessed a penalty against the employer in the amount of $8,000.00, and awarded $14,000.00 in attorney fees. The employer first appealed asserting that the judgment rendered was so lacking in de-cretal language as to not constitute a valid judgment, and asserted the WCJ erred in awarding recovery to DeBarge. The employer also alleged DeBarge should have been denied benefits under La.R.S. 23:1208.1, and that the WCJ erred in awarding attorney’s fees and penalties. A panel of this court found the party cast in judgment was “clearly identified,” Id. at 934, but then dismissed the appeal, and remanded it to the WCJ finding:

The WCJ awarded temporary total disability benefits. The amount of those benefits is not specified. The judgment also failed to specify the amount of medical benefits awarded, which is a fact the court finds particularly troubling in light of LFI’s second assignment of error regarding whether any party is liable for Dr. Gunderson’s charges. The judgment fails to specify what amounts other than clerk’s charges are being taxed as costs of court. An observer could not determine LFI’s liability to DeBarge by looking at the judgment.

DeBarge, 87 So.3d at 934.

14This, reasoned the panel, “renders the judgment defective and deprives us of jurisdiction, without regard to the other elements of the award.” Id. The case was remanded on March 12, 2012. On June 4, 2012, the parties filed a Motion to Continue Remand Trial as they had agreed to mediate their dispute. The record contains a settlement dated August 3, 2012, signed by all of the parties which is made contingent “upon final approval and authorization necessary pursuant to La.R.S. 23:1271-1272.” Although it appears the parties reached an out-of-court-agreement as of August 3, 2012, counsel for claimant filed notice on September 7 2012, instructing the WCJ to place the case back on the docket for hearing.

On February 3, 2014, the remand was addressed by the WCJ in open court and, thereafter, on February 17, 2014, the WCJ signed a judgment. The employer, identifying itself as “Labor Finders,” filed a motion for new trial asking only for re-argument. On March 31, 2014, the WCJ granted the Motion for New Trial, heard re-argument, and rendered a final judgment signed on April 15, 2014. The trial judge specifically found that defendant “is the ‘undisputed’ employer LFI Fort Pierce, Inc., which does business under the registered trade name of Labor Finders, and its workers’ compensation insurer, ACE American Insurance Company.” The WCJ then rendered a detailed written judgment which reads:

IT IS ADJUDGED, ORDERED, AND DECREED as follows:
1.Claimant Sherry DeBarge is entitled to and defendant LFI is responsible for paying Temporary Total Disability benefits from the date of the work-accident November 1, 2005, at the rate of $240.00 a week (based on two-thirds of the stipulated average weekly wage of $860.00), up through the date of trial and continuing in accordance with the Louisiana Compensation Act.
fc2. Claimant Sherry DeBarge is entitled to and defendant LFI is responsible for all reasonable medical benefits and treatment as a result of the November 1, 2005 work accident, including payment of all surgical expenses related to the surgery performed by Dr. Clark Gunderson, out-of-pocket medical expenses and all related medical expenses.
3. In relation to which, in regard to the specific amount of medical expenses referenced in the previous paragraph, claimant Sherry De Barge is entitled to and the defendant LFI is responsible for the following: 1. $317.96 for reimbursement of claimant’s out-of-pocket expenses, per P-4 and as clarified at the hearing on February 3, 2014 without objection;
2.$381.00 regarding the outstanding bill to Emergency Medicine Specialist, APMC, per P-6; and 3. $12,300.00 for reimbursement of claimant’s out-of-pocket expenses in reference to her cervical surgery (by Dr. Gunderson) and treatment at Lake Charles Memorial Hospital on January 15 and 16, 2009, per P-10, and see P-9.
3.(sic) Defendant LFI’s defense under La.R.S. 23:1208 is denied.
4. Defendant LFI’s defense under La. R.S. 23:1042 is denied.
5. The termination of medical benefits was arbitrary and capricious and done without probable cause, thus entitling claimant to an award of $8,000.00 in penalties and an award of $14,000.00 in attorney fees. Based on fault, the penalties and attorney fees award is assessed against ACE American Insurance Company, the workers’ compensation insurer of the employer, LFI Fort Pierce, Inc. which does business under the registered) trade name Labor Finders.
6. Defendant LFI is hable for the filing cost of $30.00, and the appropriate legal/judicial interest on the award made in claimant’s favor herein.
7. Accordingly, the judgment signed on February 17, 2014 is revoked.

LFI appeals the judgment of the WCJ asserting he erred in finding the provisions of La.R.S. 23:1208.1 inapplicable and asserts, alternatively, that claimant’s recovery for medical expenses is limited to a maximum of $750.00 under the provisions of La.R.S. 23:1142. LFI also assigns as error the award of attorney fees and penalties.

| (ANALYSIS

LFI again asserts in this appeal, though not by means of an assignment of error, that “the defendants now named in this judgment, who now appeal it, were not even the defendants in the earlier judgments,” referring to LFI Fort Pierce, Inc. A panel of this court previously disposed of this issue. It is frivolous for defendant to make the assertion in this appeal that “the defendants now named in this judgment” were not the defendants named throughout this much protracted litigation. The judgment appealed from names LFI Fort Pierce, Inc. d/b/a Labor Finders, a/k/a Labor Finders of Lake Charles, and its insurer ACE American Insurance Company as parties cast in judgment. LFI’s trade name has been the same since the inception of this litigation. The WCJ went to great lengths in his judgment to identify claimant’s employer as he spells out in his judgment “the defendant is the “undisputed” employer LFI Fort Pierce, Inc., which does business under the registered trade name of Labor Finders ...” He no doubt emphasized “undisputed” because there is no cogent dispute as to the identity of the claimant’s employer responsible for compensation to her for the injury sustained while in its employ. The record contains an express waiver of citation and an acceptance of service by Labor Finders, the registered trade name of LFI Fort Pierce, Inc. It also contains an answer filed by Labor Finders/Labor Finders of Lake Charles. The answer did not contain a declinatory exception concerning the employer’s identity. Louisiana Code of Civil Procedure Article 736 expressly provides “A person who does business under a trade name is the proper defendant in an action to enforce an obligation created by or arising out of the doing of such business.” Additionally, |7the Louisiana Code of Civil Procedure Article 6(A)(1) and (3) (emphasis added) provide in pertinent part:

A. ’ Jurisdiction over the person is the legal power and authority of a court to render a personal judgment ... against a party to an action or proceeding. The exercise of this jurisdiction requires:
(1) The service of process on the defendant, or on his agent for service of process, or the express waiver of citation and service under Article 1201.
(2) ...
(3) The submission of the party to the jurisdiction of the court by commencing an action or by the waiver of objection to jurisdiction by failure to timely file the declinatory exception.

The Louisiana Code of Civil Procedure provides in Article 928 (emphasis added):

The declinatory exceptions and the dilatory exceptions shall he pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time within which to plead, security for costs, or dissolution of an attachment issued on the ground of the nonresidence of the defendant, and in any event, prior to the confirmation of a default judgment.

LFI long ago in this proceeding submitted to the jurisdiction of the workers’ compensation tribunal in this matter using its trade name and failing to timely raise a declinatory exception. At all stages of this proceeding, and in numerous filings, defendant LFI is referred to as “LFI of Lake Charles” and “Labor Finders.” In the appeal bond posted on August 9, 2011, the defendants are identified as “Defendants, LFI of Lake Charles, Labor Finders and/or ACE American Insurance Company.” Given the prior ruling of this court on this issue there is no reasonable basis for defendant to again assert that “the defendant now named in this | judgment” and who now appeals that judgment was “not even the [defendant] in the earlier judgments.” We shall endeavor to make clear in this decision the party responsible to claimant and reiterate the previous finding of this court that “the party cast in judgment is clearly identified”, i.e. claimant’s “employer, LFI of Lake Charles” DeBarge, 87 So.3d at 981, a/k/a LFI Fort Pierce, Inc. and its insurer ACE Insurance Company.

LFI does not dispute that DeBarge is temporarily disabled as a result of her work-related injury. LFI bases the legitimacy of its actions on the assertion that DeBarge failed to inform her employer, in a medical history questionnaire completed when she applied for work with LFI in 2005, about alleged neck problems dating back to 1996-1997. This, says LFI, was a violation of the fraud provisions of La.R.S. 23:1208.1which disqualifies DeBarge from receiving benefits. Louisiana Revised Statute 23: 1208.1 provides:

Nothing in this Title shall prohibit an employer from inquiring about the previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of workers’ compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

The medical history questionnaire submitted in evidence bears the caption “Labor Finders” (nowhere does the document identify the employer by any other name) and is signed by Sherry DeBarge. It is not dated, nor is it signed by anyone on behalf of Labor Finders, but DeBarge admitted that this is the form she filled | ¡put when applying for this job. The form bears the requisite notice in bold lettering as required by La.R.S.23:1208.1. The applicant agrees by signing the document to provide any and all medical records which may be requested by Labor Finders. The applicant is further notified at the outset before answering any questions that (emphasis added):

The purpose of this inquiry is to determine whether I currently have the physical or mental qualification necessary to perform the job that has been offered, and what accommodations, if any, may be necessary, so that I can perform the job without posing a direct threat to the health or safety of myself or others and for the purposes and reasons stated on the attached questionnaire.

Thus, having been informed of the purpose of the questionnaire, applicants, such as DeBarge, set forth to answer the questions put forth in the context stated by Labor Finders. In response to the instruction to “list any conditions for which you have been treated in the past 3 years” DeBarge wrote “breast cancer.” In response to the inquiry “Have you ever been hospitalized? If so, for what condition?” she responded “breast cancer.” In response to the question “Is there any health-related reason you may not be able to perform any job function for which you are applying?” she responded “No.” To the question “Have you had major illness that required medical attention in the last 5 years?” DeBarge responded “No.” In response to the question “How many days were you absent from work because of illness last year?” she responded “None.” Answering the inquiry “Do you have any physical defects which preclude you from performing certain kinds of work?” De-Barge responded “No,” as she did to the next question “Do you have any disabilities or impairments which may affect your performance in the position for which you are applying?” On the page provided which lists a number of medical conditions, diseases, and injuries DeBarge indicated with a check mark in response [into the inquiry “Have you ever had or been injured or been treated for any of the following conditions or disease?” the following answers: “Back” — “No”; “Neck injury” — “No”; “Any back injury or disease process of the back resulting in a disability or restrictions?” — “No”; and “Surgical removal or repair of an intervertebral disk or Spinal fusion (Back Surgery)” — “No.” DeBarge disclosed with added explanation that she was being treated with Diovan for high blood pressure and Tomoxifen for the prevention of cancer.

DeBarge testified at trial, without contradiction, that after a four to six month period of time in 1996/1997 she was returned to work with no restrictions and worked consistently performing physical labor until 2005 when the subject work accident occurred. She has not worked since the accident at issue. The medical evidence supports her testimony in this regard and LFI offered no challenge to this evidence and testimony. We find no error in the WCJ’s finding that DeBarge’s answers to these questions cannot be construed as intentionally misleading or intentionally untruthful. The WCJ expressed his findings and rationale on the record and correctly applied the prior jurisprudence of this court on the subject. He stated on the record:

Labor Finders’ position in this regard is based on Ms. DeBarge’s answers to a pre-employment questionnaire she filled out when she applied for the job as a laundry assistant after the hurricane in 2005. It looks as if she did not tell Labor Finders that she had neck pain back in 1996, some nine years before she applied for the job. And, technically, that answer appears to be untrue.
However, it has been my experience that most laborers when asked if they have a spinal condition translate the question into a query as to whether they suffered from some disease or such severity and magnitude that they are unable or restricted in some form or fashion from doing the work for which they’re applying. An untrue or inaccurate answer, standing strictly on its own, does not automatically equate to the commission of fraud.
InThere is every indication that well before the November accident, Ms. De-Barge had recovered sufficiently from her back ailments to work in the shrimp business and she certainly appeared to be able-bodied enough to perform the strenuous sort of work expected of post-hurricane temporary laborers.
The medical records are utterly devoid of any statement by any medical practitioner to the effect that Ms. De-Barge ever had a permanent disability to her neck. Granted, the medical records show that years before she went to work for Labor Finders, she was told by a chiropractor that she had a disc problem in her back.
Dr. Bertuccini, on whom the defendant relies heavily, almost totally, for its support of the fraud stance, testified that when he reviewed a 1996 M.R.I., he saw little more than evidence of arthritic changes. That scarcely qualifies as preexisting permanent partial disability within the meaning of the statute.
And, even if Ms. DeBarge was attempting to conceal her previous condition, she certainly was not very conniving in going about it. It’s hard to see who she was hiding the fact from. She told her physicians about her medical history and none of them indicated it was inevitable or even very likely that any previous condition would injure her back or arm in the future.
The courts have ruled consistently and repeatedly that a claimant must do more than simply provide untruthful answers before forfeiting benefits. The requirements for fraud are spelled out and are explained in a host of cases and none, virtually none, are met in the instant matter.

After a review of the record we agree with the WCJ. His reasons are amply supported by the record and his finding is not manifestly erroneous. Based on the record before us, we do not find that DeBarge’s answers were untruthful nor do they exhibit any intent to deceive. Her answers appear to have been a forthright attempt to fulfill the stated purpose of the questionnaire, i.e. “to determine whether [she] currently has the physical or mental qualification necessary to perform the job.” In Colonial Nursing Home v. Bradford, 02-588 p. 4,5 (La.App. 8 Cir. 12/30/02), 834 So.2d 1262, 1267 writ denied 03-364 (La.4/21/03), 841 So.2d 802, we provided a thorough explanation of the application of the fraud provisions of La.R.S. 23: 1208.1:

| ^La.R.S. 23:1208.1 applies when an employee is dishonest on an employer’s medical questionnaire before the accident or injury. In Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, the supreme court concluded that the legislatively imposed forfeiture under La.R.S.23:1208.1, applies only if the employer suffers prejudice. An employer is prejudiced only when the false statement “directly relates to the medical condition for which a claim is made or affects the employer’s ability to receive reimbursement from the second injury fund.” La.R.S. 23:1208.1. The claimant must do more than simply provide untruthful answers before forfeiting benefits. The employer must also prove that the untruthful statements were prejudicial to it and that it provided the employee with statutory notice of the forfeiture provision. Because statutory forfeiture, is a harsh remedy, its application must be strictly construed. Resweber, 660 So.2d 7.
This court has held “[w]hen there is any legitimate ambiguity concerning the questionnaire or inquiries into an employee’s medical history, a court should lean favorably toward the. employee in determining whether he knowingly [sic]' failed to answer the questionnaire truthfully.” Holmes v. J.E. Merit Contractors [Constructors], Inc., 97-553, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 1126, 1131, writ denied, 97-2972 (La.2/6/98), 709 So.2d 741, quoting King v. Grand Cove Nursing Home, 93-779, p. 5 (La. App. 3 Cir. 3/9/94), 640 So.2d 348, 351, writ denied, 94-0865 (La.5/13/94), 641 So.2d 204.

In Taylor v. G.W. Morgan Logging, Inc., 12-294, p. 2 (La.App. 3 Cir. 10/3/12), 100 So.3d 341, 343, Judge Painter writing for the court, addressed the issue of false representations allegedly made in work questionnaires such as will disqualify an employee from receiving benefits for a work-related injury:

Defendant first argues that the WCJ erred in finding that it did not carry its burden of proof with regard to its LA. R.S. 23:1208.1 defense by failing to recognize that the triple level laminectomy being recommended for Plaintiff would result in substantially greater disability than it would have had the prior injury not been present.
The determination by a WCJ as to whether a claimant has made a false statement, -willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact [ ] and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 08-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. However, we must keep in mind that La.R.S. 23: 1208(E) is penal in nature. Any statute that is penal in nature must be construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water District., 02-439 (La.1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05), 899 So.2d 97.
Concerning the standard of appellate review of a forfeiture claim, the court in Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.l1/14/03), 858 So.2d 425 (citations omitted), stated:
The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations an, thus, this court’s review of those findings by the WCJ is governed by the manifest error standard. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous.
Phillips v. Diocese of Lafayette, 869 So.2d at 316-17, (quoting in part Flintroy v. Scott Cummins Salvage, 36,-857, p. 12 (La.App. 2 Cir. 3/10/03), 839 So.2d 1231, 1238, writ denied, 03-1068 (La.6/6/03), 845 So.2d 1093 (citations omitted))
Jim Walter Homes, Inc. v. Guilbeau, 05-1473, pp. 5-6 (La.App. 3 Cir. 6/21/06), 934 So.2d 239, 243-44.

In Holmes v. J.E. Merit Constructors, Inc., 97-553 (La.App. 3 Cir. 10/29/97), 702 So.2d 1126, writ denied, 97-2972 (La.2/6/98), 709 So.2d 741, this court addressed an employer’s claim that the claimant was not entitled to benefits for his work-related injury because of false answers on his second injury fund employment questionnaire. In Holmes, the employee signed a questionnaire which asked if the applicant was “bothered with or have you ever had the following” referring to a list of items to be marked “Yes” or “No.” In response, Mr. Holmes indicated with a “No” concerning “arthritis and knee problems, despite being aware that he had arthritis and knee problems before the accident.” Id. at 1131. The WCJ found the questionnaire ambiguous and awarded recovery. This court |uagreed with the WCJ’s finding and also found the medical record did not support the employer’s claims. This court further held:

La.R.S. 23:1208.1 should be construed against the employer, who is in a better position to prevent accidents in the workplace through its hiring and firing decisions than is the worker, who seldom has the luxury of opting out of the workplace. Pickett v. Stine Lumber Co., 93-1534 (La.App. 3 Cir. 6/1/94), 640 So.2d 769. In King v. Grand Cove Nursing Home, 93-779, p. 5-6 (La.App. 3 Cir. 3/9/94); 640 So.2d 348, 351-52, unit denied, 94-0865 (La.5/13/94), 641 So.2d 204, adopting the workers’ compensation judge’s findings and analysis, we quoted as follows:
“When there is any legitimate ambiguity concerning the questionnaire or inquiries into an employee’s medical history, a court should lean favorable toward the employee in determining whether he knowlingly [sic] failed to answer the questionnaire truthfully. In other words, for the sanction of La.R.S. 23:1208.1 to apply, the employer should have the burden to prove that the questionnaire or inquiries into an employee’s medical history were clear and unambiguous, and that conditions were such that an employee fully, understood that his answers had to be thorough and complete.
“There are sound reasons to require an employer to explain a medical history questionnaire to an employee, who is ofter [sic] uneducated. Conceivably, it is to an employer’s advantage that the claimant not answer a medical history form correctly or completely because in that case it would not owe an workers’ compensation at all for a reinjury, regardless of the circumstances. The potential for abuse would be great and the best safeguard would be to require or to find that it is implicit within the meaning of 1208.1 that the employer present the medical history questionnaire to the prospective employee in a thorough manner.”

Holmes, 702 So.2d at 1131.

The WCJ’s reliance on our long line of jurisprudence was well placed and his ruling is clearly supported by the record.

11fiWe also find no merit in the employer’s assertion that claimant’s recovery for medical costs incurred as a result of Dr. Gunderson’s surgery are limited to $750.00 under the provisions of La.R.S. 23:1142. The statute provides in pertinent part:

B. Nonemergency care. (l)(a) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation
C. Emergency Care. (1) In no event shall prior consent be required for any emergency procedure or treatment deemed immediately necessary by the treating health care provider ...
E. In the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury, (emphasis added)

LFI denied compensability for De-Barge’s work-related injury for quite some time and continued to do so prior to her surgery. In fact, for more than two years after DeBarge’s injury at work LFI denied the occurrence of a work-related injury as well as denying compensability. It was not until trial on March 2, 2011 that LFI admitted DeBarge was injured on the job and since that time has continued to assert that it does not have to pay DeBarge because she was untruthful on LFI’s questionnaire. Dr. Gunderson and Dr. Bertuc-cini agreed that surgery was necessary. The long period of conservative, palliative treatment failed to provide relief to De-Barge who was living in constant pain which she could no longer endure. Additionally, we note, that LFI has paid reimbursement for Dr. Gunderson’s surgical fee totaling $10,000.00, which appears to make the issue of [ 1fihis fee moot. It is, however, odd, and unexplained by LFI, that it has not paid the attendant additional medical costs for this procedure including the bill from the hospital. The WCJ articulated a sound basis for his decision awarding benefits and medicals to De-Barge and it is worth quoting him at length:

The overreaching issue at dispute here is the extent of the surgery Ms. DeBarge underwent after the accident. In brief, the defendant contends that Ms. DeBarge’s orthopedic surgeon exceeded the authority given him by the defendant and proceeded to expand the scope of his surgery on his own initiative. Specifically, the defendant complains that Dr. Clark Gunderson operated on the C4-5 level and the C5-6 level of the spine after the employer agreed only to the authorization at the C4-5-6 level.
The claimant counters that Dr. Gun-derson’s decision to include the C4-5 level was entirely reasonable, indeed necessary, given the long history of medical treatment, most of it thoroughly unsuccessful, which Ms. DeBarge had endured when she finally resorted to surgical intervention to relieve her pain. The surgery was done more than three years after her injury.
Most of the evidence presented to the Court during the trial consisted of medical reports and records from the treating physician, second opinion physician, and the independent medical examiner. The only witness at her trial was Ms. DeBarge. The adjuster, who presumably made the operative decisions regarding payments, authorization of treatment, and ultimately the termination of medical benefits, was not present, leaving the Court the task of pretty much inferring from the written record the rationale and reasoning of the insurance carrier.
The medical records indicate that the day after the November 2, 2005, accident Ms. DeBarge was sent to Hunter McGuire medical facility and returned several times for the next month or so. She was informed that she could not drive nor operate machinery and was taken off work. She was then referred to a neurologist, Dr. Sleiman Salibi, who on October the 18th, 2005, extended her leave from work and advised her to rest for a month.
It appears from the records at this point, Ms. DeBarge was treated on and off at a local charity hospital for about two years or so. From all accounts, after she became increasingly frustrated with the type of medical treatment she was receiving, she then obtained a court judgment allowing her to be examined by Dr. Gunderson, who on April the 24th, 2007, found her disability required that she be continued in a no-work status. Dr. Gunderson still maintains that his patient cannot work.
_JjjThe claimant was then sent by her ex-employer to be evaluated by an orthopedic specialist of its choosing, Dr. James Perry, who found her suitable for what he termed “at least sedentary work.” It’s not clear what exactly the defendant did at that point in response to that opinion, however, no evidence was presented that suggested that the employer then offered her any position commensurate with its own physician’s recommendation. Apparently, no vocational rehabilitation services were offered.
Considering that these two medical opinions were not in sync, the Court then appointed Dr. Thomas Bertuccini as an independent medical expert who examined Ms. DeBarge on February the 11th, 2008. Dr. Bertuccini agreed that Ms. DeBarge at that point was not capable of working.
Now, there certainly are some shade(s)(sic) of difference in the opinion of these two orthopedic surgeons, and this court is neither qualified nor inclined to decide who is correct from a purely medical standpoint; however, it is required to determine whether the adjuster’s decision in refusing to pay for the overall surgery was reasonable under the circumstances.
Dr. Bertuccini readily and candidly acknowledged that his one-time examination was not sufficient for him to fully and completely address the surgical recommendations of Dr. Gunderson. To do so, he suggested that he would need to see her again, perhaps on a continuing basis for a while at least.
But, Dr. Bertuccini did support Dr. Gunderson’s recommendation that surgery was definitely required on Ms. De-Barge’s neck at the C5-6 level, even as he questioned the involvement of the C4-5 level.
Meanwhile, at this point, Ms. DeBarge was still dealing with pain which Dr. Gunderson and Dr. Bertuccini agreed was debilitating. Finally, on January the 15th, 2009, more than three years of unsuccessful treatment and ineffective medicines, she paid Dr. Gunderson $10,000.00, paid another $10,000.00 to the Lake Charles Memorial Hospital, and ran up more than $25,000 in other medical bills to have her neck fixed.
And, the result, according to Ms. De-Barge, was that the surgery gave her relief from her continual headaches and constant pain.
Now Ms. DeBarge’s action on the surface make sense, certainly from her point of view. She very credibly explained in court that after more than three years, she simply could no longer tolerate the pain and concluded that her only recourse was to follow the recommendation of her treating physician, Dr. Gunderson, and to undergo serious spinal surgery.
|1ROn September the 17th, 2007, Dr. Gunderson had requested authorization to perform an anterior cervical fusion at C4-5 and C5-6 with anterior plate and external stimulator. For the previous six months or so, he had been providing non-intrusive, relatively conservative treatment which seemed to have little positive effect either in a substantive or palliative sense.
Now at this point, try as I might, I draw a complete blank as to the adjuster’s line of thought. The employer’s S.M.O., Dr. Perry, saw Ms. DeBarge about two months before Dr. Gunder-son’s surgical recommendation. How, the claimant’s attorney reasonably asks, could Dr. Perry have recommended against a surgery which had not yet been suggested at the time of the evaluation? And if that’s the case, and it looks to be, the penultimate question is what exactly did the adjuster have in his hands in the way of medical evidence which would controvert Ms. DeBarge’s entitlement to the surgery recommended by her treating physician.
The independent medical examiner, Dr. Bertuccini, later agreed that neck surgery was required, although he was not certain that the C4-5 portion of the operation was necessary.
I suppose the situation might be different if Dr. Gunderson, who had the clear and explicit agreement from Dr. Bertuccini on the requirement for C5-6 neck surgery, decided on his own to extend the scope of operation to providing something like a knee transplant, but that’s not at all what happened here. Any reasonable analysis of Dr. Gunder-son’s judgment must be tempered with an evaluation of the extent of his knowledge of this patient’s circumstances.
The medical reports clearly indicate that he has seen Ms. DeBarge repeatedly and had treated her for a long time, giving him the insight to develop a fully informed decision of precisely which parts of the spine were involved as a result of her work accident.
Commonsense, not to mention Third Circuit jurisprudence, supports the proposition that the treating physician’s views should be heavily weighed.
What’s also puzzling to me is why the adjuster paid only $10,000 to Dr. Gun-derson and did not pay the $10,000 owed Lake Charles Memorial Hospital for her surgery. I don’t understand the math here. Equally perplexing is the fact that the letter from the adjuster authorizing the C5-6 portion of the surgery came only after Dr. Gunderson had performed the operation.
And I am thoroughly baffled by the rationale which the adjuster employed on August the 17th, 2009, when it was decided to completely deny virtually all ongoing medical treatment. I read the letter to Ms. DeBarge informing her in no uncertain terms that she was pretty much on her own in getting her neck fixed. There’s not a Qword not even a hint of explanation as to why. There was no better explanation given at trial either.
I am really not sure of exactly what else the adjuster could have done to better qualify for the imposition of penalties for ünproper termination of benefits.

Ditto — we can hardly say it better than Judge Lowery. As we discussed in Louviere v. Food & Fun, Inc., 06-469 (La.App. 8 Cir. 10/11/06), 941 So.2d 155, where, as here, the claimant spent several years in agony and pain while her employer ignored her claim and after her prolonged period of conservative/palliative treatment failed she obtained surgery which she had to pay for on her own, the law does not require her to get her employer’s approval.

The court in Sneed v. RTA/TMSEL, 03-1582 (La.App. 4 Cir. 2/25/04), 869 So.2d 254, found that the employer’s denial of claimant’s workers’ compensation request for surgery amounted to denial of liability for claimant’s injury and, therefore, the $750.00 cap imposed by La.R.S. 23:1142 was not applicable. Citing Gros v. Gaudin, 00-1015 (La. App. 5 Cir. 10/31/99), 773 So.2d 172, writ denied, 00-3242 (La.1/26/01), 782 So.2d 635., and Barron v. First Lake Properties, Inc., 98-902 (La.App. 5 Cir. 3/29/94), 636 So.2d 970, the court went on to state that the compensability of a claimant’s work related injury may be generally admitted, while authorization for a specific medical procedure is denied, amounting to denial of compensa-bility under La.R.S. 23:1142(E). Id. The court found the neurotomy medically necessary, stating that two years had passed since the occurrence of the injury, the claimant had undergone conservative treatment without any benefit, and it was apparent that the treating physician was not “rushing to have the patient undergo unnecessary surgery, but he intended to attempt to alleviate her back pain.” Id. at 262.
The court would also note that La. R.S. 23:1142(C) dispenses with the need for prior approval in cases of emergency, or where treatment is “immediately necessary.” Defendant argues strenuously that there is no emergency, as further delay would not cause Claimant more damage. They do not discuss the phrase, “immediately necessary.” In the instant case, we consider Dr. Blan-da’s testimony that Claimant had a herniated disc as L3 — 4 and a herniated disc at L4-5, as well as considerable instability at the L4-5 level, clearly shows that the 'procedure was necessary at the time it was performed. TheJ^fact that he had been treating Claimant for over seven years and had run out of options clearly establishes that further delay would be unreasonable. Then, the “immediate” factor is established. Accordingly, we hold that the surgery was “immediately necessary” and therefore, no approval was required.

Louviere, 941 So.2d at 160-61 (emphasis added)

The record fully supports the WCJ’s articulated reasons for his ruling and we find there was a reasonable basis for his decision. Likewise, we find ample support in the record for the reasonableness and soundness of the WCJ’s award for attorney fees and penalties. The WCJ correctly awarded such based on the provisions of La. R.S. 23:1201.1, and his finding that LFI’s termination/discontinuance of medical benefits was arbitrary and capricious and clearly without probable cause is not manifestly erroneous. We also find, under our decision in Bradford and other cases cited herein, that DeBarge is entitled to attorney fees for this appeal, including the Motion to Stay, and we thus award claimant attorney fees for work done on appeal in the amount of $7,500.00.

DeBarge answers this appeal asserting the WCJ “tacitly” erred in failing to award attorney fees and penalties for LFI’s failure to reasonably controvert DeBarge’s entitlement to indemnity benefits. Given the trial judge’s findings, which we agree are well supported by the record, we agree with claimant that she is entitled to a $2,000.00 statutory penalty in addition to the penalty assessed by the WCJ for other infractions. The award of $14,000.00 in attorney fees by the WCJ adequately addressed all of the trial work performed by claimant’s attorney.

For the reasons stated we affirm the WCJ’s ruling except to amend it to further award DeBarge an additional $2,000.00 in penalties to be paid by LFI Fort Pierce, Inc. a/k/a Labor Finders. We also award DeBarge attorney fees for work |21done on appeal in the amount of $7,500.00, and assess all costs of this appeal, including all costs associated with the Motion to Stay filed in this court, to LFI Fort Pierce, Inc. a/k/a Labor Finders.

AFFIRMED AS AMENDED.

      . A late letter arrived at this court professing to relay a compromise of this matter on earlier remand. Defendant has never filed an exception of res judicata nor has it argued compromise in the lower court or as an assignment of error on appeal. We decline to entertain this assertion of a compromise any further. This court also elects not to delay its opinion beyond its scheduled release. We further note Defendant’s request for a stay was denied.


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    Kelda PRICE, Kelvin Wells and On Behalf of Minor Children v. GEICO GENERAL INSURANCE COMPANY.
    No. 2013 CA 2216.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2014.
    Kelda Price, Kelvin Price, Baton Rouge, Louisiana, Plaintiffs/Appellants In Proper Person.
    Stephen Dale Cronin, Baton Rouge, Louisiana, for Defendant/Appellee.
    Before GUIDRY, THERIOT, and DRAKE, JJ.
   THERIOT, J.

12This is an appeal by plaintiffs, Kelda Price and Kelvin Wells, following the trial court’s granting of a motion for summary judgment in favor of defendant, GEICO General Insurance Company (GEICO), dismissing plaintiffs’ suit with prejudice. GEICO filed an ex parte motion to dismiss the appeal. For the reasons that follow, we deny the motion to dismiss the appeal and affirm the judgment appealed.

FACTS AND PROCEDURAL HISTORY

The plaintiffs filed a petition for damages against GEICO on October 19, 2010, claiming that GEICO acted in bad faith when it refused to pay for damage to their two vehicles after they were intentionally damaged by a hit-and-run driver. The procedural history of this case is fully set forth in a prior unpublished opinion of this court, Price v. GEICO General Insurance Company, 12-0861 (La.App. 1 Cir. 4/18/13). In that appeal, this court affirmed the trial court’s granting of GEI-CO’s exception of no cause of action, but reversed the portion of the judgment dismissing plaintiffs’ claims with prejudice and remanded the case to the trial court to give plaintiffs an opportunity to amend their petition so as to state a cause of action. After plaintiffs filed an amended petition on July 18, 2013, GEICO filed an Exception of No Cause of Action/Motion for Summary Judgment on August 1, 2013. No opposition was filed by plaintiffs. A hearing was held on GEICO’s motion on October 28, 2013, after which the trial court granted GEICO’s motion for summary judgment, dismissing the plaintiffs’ claims with prejudice at their cost. Plaintiffs appealed.'

Plaintiffs’ pro se appellate brief, although timely filed on January 14, 2014, fails to comply with the applicable Uniform Rules-Courts of Appeal. On January 22, 2014, GEICO filed an ex parte motion to dismiss the ^plaintiffs’ appeal on the grounds that the plaintiffs’ brief contained fatal deficiencies, warranting dismissal. The motion was referred to the merits.

DISCUSSION

The requirements for an appellant’s brief are set forth in Rule 2-12.4 of the Uniform Rules:

A. The brief of the appellant shall contain, under appropriate headings and in the order indicated:
(1) a table of contents with page references;
(2) a table of authorities, including cases alphabetically arranged, statutes and other authorities, with references to the pages of the brief where the authorities are cited;
(3) a jurisdictional statement setting forth the constitutional and statutory basis for the court to exercise appellate jurisdiction, with citations to applicable provisions. The jurisdictional statement shall also include the dates of the judgment appealed and of the motion and order for appeal to establish the timeliness of the appeal and the following, as applicable:
(a)an assertion that the appeal is from a final appealable judgment and, if the appealability is dependent upon a designation by the trial court, a reference to the specific page numbers of the record where the designation and reasons for the designation are to be found, or
(b) an assertion that the appeal is from an interlocutory judgment or order which is appealable as expressly provided by law, or
(c) an assertion of information establishing the court of appeal’s jurisdiction on some other basis;
(4) a concise statement of the case indicating the nature of the case, the action of the trial court and the disposition;
(5) assignments of alleged errors;
(6) a listing of issues presented for review;
(7) a statement of facts relevant to the assignments of error and issues for review, with references to the specific page numbers of the record;
]4(8) a short summary of the argument, i.e., a succinct, clear and accurate statement of the arguments made in the body of the brief;
(9) the argument, which shall contain:
(a) appellant’s contentions, with reference to the specific page numbers of the record and citations to the authorities on which the appellant relies,
(b) for each assignment of error and issue for review, a concise statement of the applicable standard of review, which may appear in the discussion or under a separate heading placed ber fore the discussion, and
(c) for each assignment of error and issue for review which required an objection or proffer to preserve, a statement that the objection or proffer was made, with reference to the specific page numbers of the record; and
(10) a short conclusion stating the precise relief sought.
B. (1) A copy of the judgment, order, or ruling complained of, and a copy of either the trial court’s written reasons for judgment, transcribed oral reasons for judgment, or minute entry of the reasons, if given, shall be appended to the brief of the appellant. If reasons for judgment were not given, the brief shall so declare.
(2) Citation of Louisiana cases shall be in conformity with Section VIII of the Louisiana Supreme Court General Administrative Rules. Citations of other cases shall be to volume and page of the official reports (and when possible to the unofficial reports). It is recommended that where United States Supreme Court cases are cited, all three reports be cited, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
(3) The court may disregard the argument on an assignment of error or issue for review if suitable reference to the specific page numbers of the record is not made.
(4) All assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed.
[Emphasis added.]

As noted in GEICO’s motion to dismiss, plaintiffs’ brief failed to include: the dates of the judgment appealed and the motion and order for ^appeal; an assertion that the appeal is from a final appealable judgment; an assignment of alleged errors; a listing of issues presented for review; an argument on each assignment of error; and a copy of the judgment or ruling complained of. Although plaintiffs’ notice of appeal states that they are appealing from the summary judgment in favor of GEICO on the grounds that no answer was filed to their amended petition and because of a vague recusal issue, plaintiffs’ brief only references an “exception,” and the entire argument contained in plaintiffs’ brief is as follows:

It is Plaintiffs[’] position that the trial Court[’]s rulings are incorrect with this matter demanding thorough investigation reuiring [sic] that Exception be overturned with jurisdiction remaining in the Court of Appeals.

Although pro se, these plaintiffs are not unfamiliar with the appellate process. Plaintiffs have been litigants in many proceedings before this and other courts of appeal in recent years, and a recent decision by the U.S. Fifth Circuit noted that Mr. Wells “has filed more tha[n] 30 appeals in this court since 2001, none of which have been successful.” East Baton Rouge Parish School Bd. v. Wells, 467 Fed.Appx. 294, 295 (5th Cir.2012). Furthermore, in the plaintiffs’ prior appeal in this matter, this court warned the plaintiffs that their brief failed to comply with Rule 2-12.4 in that it contained no specifications or assignments of error, and warned plaintiffs that the court could summarily dismiss their appeal for this noncompliance. Although this court has previously held that dismissal of the appeal is not an appropriate remedy where a pro se litigant fails to comply with the provisions of Rule 2-12.4, the sanction to be imposed for a non-conforming brief is left to the discretion of the court. Richardson v. North Oaks Hosp., 11-1258, p. 3-5 (La. App. 1 Cir. 2/13/12), 91 So.3d 361, 364-65; Williams v. Fischer, 439 So.2d 1111, 1112 (La.App. 1 Cir.1983). (r. p. 97). Under these circumstances, since plaintiffs’ brief contained no specific assignments of error and no argument, we consider plaintiffs’ vague assertion that the trial court judgment was in error abandoned. See Uniform Rules-Courts of Appeal, Rule 2.12-4.

DECREE

The judgment of the trial court granting GEICO’s motion for summary judgment is affirmed. Costs of this appeal are assessed to plaintiffs-appellants, Kelda Price and Kelvin Wells.

MOTION TO DISMISS DENIED; JUDGMENT AFFIRMED.

GUIDRY, J. concurs.

      . Plaintiffs'brief states: "Appellants!’] motion to compel, discovery, motions to continue, all were denied proper due process and equal protection concluding with Judge Wilson Fields ignoring pertinent and erequired [sic] information in error sustaining Defendant[’]s exception causing this appeal.”


text:
    STATE of Louisiana v. Duhon ZENO.
    No. 2014 KA 0325.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2014.

      Kevin V. Boshea, Metairie, Louisiana, for Defendant/Appellant Duhon Zeno.
    Camille Morvant, II, District Attorney, Benjamin Caillouet, Joseph S. Soignet, Thibodaux, Louisiana, James D. “Buddy” Caldwell, Attorney General Baton, Rouge, Louisiana, for Plaintiff/Appellee State of Louisiana.
    Before GUIDRY, THERIOT, and DRAKE, JJ.
   THERIOT, J.

IpThe defendant, Duhon Zeno, was charged by an amended bill of information with one count of possession of a firearm by a convicted felon (count I), a violation of La. R.S. 14:95.1, and one count of illegal carrying of weapons while in possession of a controlled dangerous substance (Hydro-codone) (count II), a violation of La. R.S. 14:95(E). He pled not guilty on both counts. Following a jury trial, the defendant was found guilty as charged on both counts by a unanimous verdict. He moved for a new trial and post-verdict judgment of acquittal. The trial court denied both motions. The defendant was ordered to pay a fine of one-thousand dollars in court costs; to serve fifteen years at hard labor without benefit of parole, probation, or suspension of sentence on count I; and to serve ten years at hard labor without benefit of parole, probation, or suspension of sentence on count II, to run concurrently with the sentence imposed on count I. Defendant moved for reconsideration of the sentence, and the motion was denied. The defendant appeals, raising nine assignments of error:

1. Louisiana Revised Statutes 14:95.1 is unconstitutional as it fails to meet the requirements of Article I, Section 11 of the Louisiana Constitution.
2. The trial court erred in the denial of the motion to quash the bill of information.
3. The defendant’s prosecution in this matter violates his rights against double jeopardy.
[¾4. The verdicts rendered are legally infirm due to an improperly constituted petit jury.
5. The trial court erred in the denial of the motion for new trial.
6. The trial court erred in the denial of the motion for post-verdict judgment of acquittal.
7. The trial court erred in the denial of the motion to suppress evidence.
8. The trial court erred in the denial of the motion to reconsider sentence.
9. The sentences in this matter are illegal and unconstitutionally excessive.

For the following reasons, we affirm the defendant’s convictions, vacate the sentences imposed on both counts, and remand for resentencing on each count individually.

STATEMENT OF FACTS

On March 15, 2012, at approximately 1 p.m., Agent Derrick Champagne, a narcotics agent with the Lafourche Parish Sheriffs Office, along with fellow Agents David Melancon and Corey Brooks, were traveling southbound on Plantation Road in Thi-bodaux, Louisiana. As they neared the intersection of Plantation Road and Canal Boulevard, they noticed a white vehicle, being driven by the defendant, approach the intersection. The defendant did not bring his vehicle to a complete stop, nor did he activate his turn signal before making a left-hand turn onto Canal Boulevard. After turning onto Canal Boulevard, the agents caught up with the defendant, activated the squad car’s emergency lights and sirens, and initiated a traffic stop. At some point before the defendant’s vehicle came to a complete stop, Agent Champagne and Agent Melancon observed the defendant’s passenger, Stanley Watkins, look back at the agents through the vehicle’s rear window, |4and then turn and throw an unknown object out of the passenger side window.

Once both vehicles were stopped, Agent Melancon made contact with the defendant and advised him of the traffic stop, Agent Champagne approached the passenger, and Agent Brooks began searching for the unknown object. Agent Melancon then asked Watkins to identify the object, but before he could reply, the defendant interrupted, saying, “He doesn’t do any drugs, man.” The agents instructed both men to exit the defendant’s vehicle and moved them towards the rear of the vehicle on the passenger side. Agent Champagne asked the defendant for consent to search the vehicle. The defendant verbally consented to the search and his consent was given freely and voluntarily, and without fear, duress, or intimidation. Agent Me-lancon heard the defendant grant consent. Agent Champagne opened the front passenger door and entered the passenger compartment of the vehicle where he observed a brown shaving kit bag partially underneath the driver’s seat. When Agent Champagne asked the defendant what was in the bag, the defendant approached the car, sat in the driver’s seat, and told Agent Champagne, “[m]y gun is in here from my house.” Agent Champagne noted that the defendant was not surprised when the gun was discovered. The defendant was instructed to put down the bag, and Agent Champagne escorted the defendant out of the vehicle.

Once the defendant was clear of the area, Agent Champagne opened the bag and identified a .45 caliber handgun loaded with eight rounds. Additionally, a prescription pill bottle containing pills was found inside the bag. The seized items were taken to the Criminal Operations Center where the evidence was processed and stored by the evidence custodian.

| r,Katie Troxler, a forensic scientist with the Louisiana State Police Crime Lab, was accepted as an expert in the field of chemical analysis at trial. On April 5, 2012, Troxler received a white plastic bottle containing the pills seized by Agent Champagne during the defendant’s traffic stop. During the first examination, Troxler, using a pharmaceutical database entry, verified the pills, which included Naproxen Sodium 220 mg (Aleve), Pantoprazole Sodium 40 (a gastrointestinal medication), and pills containing both 500 milligrams of Acetaminophen and 5 milligrams of Hydroco-done Bitartrate. Twelve months later, on April 5, 2013, only the pills previously identified as containing Hydrocodone were resubmitted, and Troxler performed a chemical analysis, whereby she again confirmed the pills contained Hydrocodone, a controlled dangerous substance.

Luke Adams, an officer with the Department of Probation and Parole, testified at trial. He testified that on November 6, 2006, the defendant was convicted of possession of Hydrocodone and sentenced to five years at hard labor, but his sentence was suspended and the defendant was placed on three years supervised probation. Officer Adams was the defendant’s probation supervisor, and testified that during the three-year period, the defendant’s probation was never revoked. The probationary period was completed on November 6, 2009 as scheduled.

Greta Hood, a friend of the defendant, testified at trial. She indicated that on March 15, 2012, the defendant was assisting her gathering and packing her belongings as she was moving from her apartment in Thibodaux. Hood testified the gun in question, a Colt .45, belonged to her. She testified that a friend gave her the gun for protection and that she kept it on the top shelf of her closet. Hood testified that because her grandchildren were coming over, and because she did not want the gun out while they were Inhere, she placed the gun inside the defendant’s shaving kit bag, which was located in her bathroom. Thereafter, Hood claimed she walked out of the house holding the bag and placed it under the driver’s seat in the defendant’s vehicle. Hood testified she did not tell the defendant she placed the gun in his car. Hood stated the defendant left the apartment before she did, and the next time she saw him was when he was stopped by the police officers.

ASSIGNMENTS OF ERROR NOS. 5 and 6

In his fifth assignment of error, the defendant argues the trial court erred in denying his motion for new trial.’ In his sixth assignment of error, the defendant argues the trial court erred in denying his motion for post-verdict judgment of acquittal. Specifically, the defendant contends that Hood’s testimony regarding her actions with the firearm, his consent to search his vehicle, and the fact that he did not attempt to conceal the weapon, demonstrate his lack of knowledge regarding the presence of the firearm. As such, he avers these motions should have been granted.

The standard of review for sufficiency of the evidence to support a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime, and the defendant’s identity as the perpetrator of that crime, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Patton, 2010-1841 (La.App. 1st Cir.6/10/11), 68 So.3d 1209, 1224. In conducting this review, we must also be expressly mindful of Louisiana’s circumstantial evidence test, ie., “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438; State v. Millien, 2002-1006 (La.App. 1st Cir.2/14/03), 845 So.2d 506, 508-09.

17When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157 and 2000-0895 (La.11/17/00), 773 So.2d 732.

To prove a violation of La. R.S. 14:95.1, the State must prove: (1) the defendant’s status as a convicted felon; and (2) that the defendant was in possession of a firearm. State v. Loper, 2010-0582 (La.App. 1st Cir.10/29/10), 48 So.3d 1263, 1266. The State must also prove that ten years have not elapsed since the date of completion of the punishment for the prior felony conviction. See La. R.S. 14:95.1(C). Thus, a violation of La. R.S. 14:95.1 by the defendant required no more than that he had a prior felony conviction and was in possession of a firearm.

In pertinent part, La. R.S. 14:95(E) prohibits the carrying of weapons 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 in the possession of or during the sale or distribution of a controlled dangerous substance. The term “possess” is broad enough to encompass both actual and constructive possession under La. R.S. 14:95(E). Constructive possession occurs when the firearm is subject to the defendant’s dominion and control, even temporarily. Constructive possession contains an element of awareness or knowledge that |8the firearm is there and general intent to possess it. General intent exists when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10. Although the existence of intent is a question of fact, it may be inferred from the circumstances of the transaction. See State v. Johnson, 2003-1228 (La.4/14/04), 870 So.2d 995, 998-999.

A thorough review of the record indicates that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of a felon in possession of a firearm, illegal carrying of a weapon while in possession of a controlled dangerous substance, and the defendant’s identity as the perpetrator of the crimes. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.1987), writ denied, 514 So.2d 126 (La.1987). No such alternative hypothesis exists in the instant case. This Court will not assess the credibility of witnesses or reweigh the evidence to overturn a factfin-der’s determination of guilt. Furthermore, the trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is on the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (La.App. 1st Cir.3/27/97), 691 So.2d 1365, 1368, writ denied. 97-1124 (La.10/17/97), 701 So.2d 1331. Thus, the fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Azema, 633 So.2d 723, 727 (La.App. 1st Cir.1993), writ denied, 94-0141 (La.4/29/94), 637 So.2d 460.

After reviewing the evidence, we cannot say that the jury’s determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207 (La.11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected, by the jury. State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam). Therefore, the trial court in the instant case did not abuse its discretion in denying the defendant’s motion for new trial and motion for post-verdict judgment of acquittal.

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 1 and 2

In his first assignment of error, the defendant argues Louisiana Revised Statutes 14:95.1 is unconstitutional as it fails to meet the requirements of Article I, Section 11 of the Louisiana Constitution. The defendant specifically contends that La. R.S. 14:95.1 cannot pass strict scrutiny because it is not narrowly tailored to achieve a compelling government interest. In his second assignment of error, the defendant claims the trial court erred by denying the motion to quash the bill of information based on the unconstitutionality of La. R.S. 14:95.1.

Louisiana Revised Statutes 14:95.1, provides, in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple | mburglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
* * ⅜
C. The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
D. For the purposes of this Section, “firearm” means any pistol, revolver, rifle, shotgun, machine gun, sub-machine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.

The Second Amendment to the United States Constitution and Article I, Section 11 of the Louisiana Constitution prohibit the infringement of the right to keep and bear arms. In District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 2821-22, 171 L.Ed.2d 637 (2008), the U.S. Supreme Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia Inlaw that banned the possession of handguns in the home. As noted by the U.S. Supreme Court in McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 3042, 177 L.Ed.2d 894 (2010), a clear majority of the States in 1868 recognized the right to keep and bear arms as being among the foundational rights necessary to our system of government, and the framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. Accordingly, the right to bear arms was always fundamental. State v. Draughter, 2013-0914 (La.12/10/13), 130 So.3d 855, 863; Eberhardt, 145 So.3d at 383-84.

It was the slim majority supporting the holdings in Heller and McDonald which prompted Louisiana legislators to enact 2012 La. Acts, No. 874, § 1 to amend Article I, Section 11 of the Louisiana Constitution, which, as a result, specifically states that the right of each citizen to keep and bear arms is “fundamental and shall not be infringed.” The amended version of Section 11 further states that “[a]ny restriction of this right shall be subject to strict scrutiny.” The legislators’ stated intention in introducing this legislation was to secure a continued individual right to bear arms by Louisiana citizens under the Louisiana Constitution, protected from possible future judicial or legislative erosion. Draugther, 130 So.3d at 861; Eberhardt, 145 So.3d at 383, n. 3. The 2012 amendment to Article I, Section 11 merely sought to ensure that the review standard of an alleged infringement of this fundamental right was in keeping with the refinements made to the constitutional analysis developed since State v. Amos, 343 So.2d 166 (La.1977). The amendment, however, did not effect a change in the nature of the right by adding the term “fundamental” to describe the right to keep and bear arms. State v. Webb, 2013-1681 (La.5/7/14), 144 So.3d 971, 977 n. 3; Eberhardt, 145 So.3d at 383-84. Conversely; the Louisiana Supreme Court has also held that “[t]he right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute.” State in Interest of J.M., 2013-1717 (La.1/28/14), 144 So.3d 853, 859-60; Eberhardt, 145 So.3d at 383.

In the two years since Article I, Section 11 was amended, the Louisiana Supreme Court has, on a case-by-case basis, applied the amended language to Louisiana’s various gun laws. In its first case subsequent to the 2012 amendment, the Court held that, when applied to a convicted felon still under State supervision through probation or parole, La. R.S. 14:95.1 does not unconstitutionally infringe upon the right to bear arms secured by the amended Article I, Section 11. Draughter, 130 So.3d at 868. Further, the Court has upheld the constitutionality of La. R.S. 14:95(A)(1) (making illegal the carrying of an intentionally concealed firearm on one’s person) and La. R.S. 14:95.8 (making unlawful the possession of a handgun by a person under the age of seventeen except in certain enumerated circumstances). State in the Interest of J.M., 144 So.3d at 866. Recently, the Supreme Court upheld the constitutionality of La. R.S. 14:95(E), which makes illegal the possession of a firearm while in possession of or during the sale or distribution of a controlled dangerous substance. Webb, 144 So.3d at 975.

11sMost recently, in Eberhardt, the Louisiana Supreme Court directly addressed whether or not La. R.S. 14:95.1 was rendered unconstitutional by the amendment of Article I, Section 11 of the Louisiana Constitution. In Eberhardt, the defendant was charged with one count of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, having been previously convicted of unauthorized entry of an inhabited dwelling. The defendant filed a motion to quash the indictment, but the motion was denied by the trial court. Noting the above principles, the Louisiana Supreme Court, quoting its holding in State in the Interest of J.M., 144 So.3d at 860, stated that “the voter’s ratification of strict scrutiny as a standard of review to be applied to alleged infringements on the right to keep and bear arms was not meant to invalidate every restriction on firearms,” but rather, the strict scrutiny standard was “designed to provide a framework for carefully examining the importance and sincerity of the reasons advanced by the governmental decisionmaker.” After reviewing the Senate hearings, the Court concluded that the amendment to Article I, Section 11 was not intended to invalidate existing weapons laws. Eberhardt, 145 So.3d at 383-85.

After affirming the Court’s earlier ruling in Amos, and evaluating the strict scrutiny standard, the Court concluded:

|14We conclude that La. R.S, 14:95.1 serves a compelling governmental interest that has long been jurisprudentially recognized and is grounded in the legislature’s intent to protect the safety of the general public from felons convicted of specified serious crimes, who have' demonstrated a dangerous disregard for the law and the safety of others and who present a potential threat of further or future criminal activity, See State v. Amos, 343 So.2d at 168. Further, the law is narrowly tailored in its application to the possession of firearms or the carrying of concealed weapons for a period of only ten years from the date of completion of sentence, probation, parole, or suspension of sentence, and to only those convicted of the enumerated felonies determined by the legislature to be offenses having the actual or potential danger of harm to other members of the general public. Under these circumstances, we find “a long history, a substantial consensus, and simply common sense” to be sufficient evidence for even a strict scrutiny review. [Citations omitted.]

Eberhardt, 145 So.3d at 385.

Because the 2012 amendment to Article I, Section 11 does not invalidate La. R.S. 14:95.1 as it applies to a felon no longer under State custody, the trial court did not abuse its discretion in denying the motion to quash the bill of information. Accordingly, these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 3

In the defendant’s third assignment of error, he argues that the prosecution in this case violated the constitutional prohibition against double jeopardy. The defendant contends that the State impermis-sibly charged him with violations of both La. R.S. 14:95.1 and 14:95(E) using the same evidence and witnesses.

The federal and state constitutions provide that no person may be twice put in jeopardy of life or liberty for the same offense. U.S. Const. amend. V; La. Const. art. I, § 15; see also La.Code Crim. P. art. 591. The | ^double jeopardy clause prevents the State from punishing a defendant multiple times for the same offense and prevents a second prosecution for an offense following an acquittal or conviction. State v. Letell, 2012-0180 (La.App. 1st Cir.10/25/12), 103 So.3d 1129, 1136, writ denied, 2012-2533 (La.4/26/13), 112 So.3d 838. Louisiana courts utilize either the federal “additional fact” test, see Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or the somewhat broader “same evidence” test when evaluating double jeopardy claims. See State v. Sandifer, 96-2226 (La.9/5/95), 679 So.2d 1324, 1329. Double jeopardy also incorporates a restriction known as “collateral estoppel.” See Ashe v. Swenson, 397 U.S. 436, 442-43, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); State v. Knowles, 392 So.2d 651, 655 (La.1980).

The defendant first contends that the prosecution in This case violated the doctrine of collateral estoppel, reasoning that a single issue of ultimate fact — his constructive possession of the firearm— was dispositive of both charges. However, the appellant misconstrues this doctrine; collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443, 90 S.Ct. 1189. Collateral estoppel forbids only the subsequent prosecution of a defendant for a crime which arises from the same facts resolved in an initial trial. Knowles, 392 So.2d at 658. The doctrine does not bar the prosecution of 11fimultiple offenses based on the same act or occurrence in one trial. Compare State v. Cain, 324 So.2d 830, 833-34 (La.1975).

Next, the defendant avers that the prosecution in this case violated the prohibition against double jeopardy under the “same evidence” test, reasoning that the same evidence regarding his alleged possession of a firearm was dispositive of both charges. The “same evidence” test focuses on the actual physical and testimonial evidence necessary to secure a conviction on the applicable charges. Sandifer, 679 So.2d at 1329. The test “depends upon the proof required to convict, not the evidence actually introduced at trial.” Id. A defendant may only be placed in jeopardy for one of two counts if the evidence required to support a finding of guilt of one count would also support a conviction for the other. Id.

In this case, the defendant was charged with and found guilty of being a convicted felon in possession of a firearm in violation of La. R.S. 14:95.1. The defendant was also charged with and found guilty of possession of a weapon while in possession of a controlled dangerous substance in violation of La. R.S. 14:95(E). To establish proof of the defendant’s violation of La. R.S. 14:95.1, the State was required to prove that Zeno had been convicted of one of a number of certain enumerated felonies and was in possession of a firearm within ten years from the date of the completion of his punishment for such felony. Conversely, to establish proof of the defendant’s violation of La. R.S. 14:95(E), the State was required to prove Zeno possessed the firearm while in possession of a controlled dangerous substance.

Because the doctrine of collateral estop-pel is inapplicable to this case and because the evidence required to prove a violation of La. R.S. 14:95.1 would not also establish a violation of La. R.S. 14:95(E) (or vice versa), the 117prosecution did not violate the constitutional prohibition against double jeopardy.

The appellant’s third assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

Louisiana Code of Criminal Procedure article 401(A)(5) provides as follows:

A. In order to qualify to serve as a juror, a person must:
⅜ * *
(5) Not be under indictment for a felony nor have been convicted of a felony for which he has not been pardoned by the governor.

Louisiana Code of Criminal Procedure article 851 provides the procedure for requesting a new trial when the defendant discovers after the verdict that a juror was unqualified. In pertinent part, article 851(4) provides as follows:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on the motion of the defendant, shall grant a new trial whenever:
I * * *
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment.

Consequently, to take advantage of the defect and receive a new trial, the defendant must establish that he was not aware of the disqualification when the juror was accepted by him and that this information could not have been ascertained by due diligence. State v. Martin, 582 So.2d 306, 310 (La.App. 1st Cir.1991) (citing State v. Herrod, 412 So.2d 564, 566 (La.1982)), writ denied, 588 So.2d 113 (La. 1991). Courts generally have required that the defendant establish that he examined the juror, during voir dire, on the juror’s qualifications, and that the juror answered falsely, in order to show he exercised due diligence. Martin, 582 So.2d at 310; see also State v. Folse, 623 So.2d 59, 67 (La.App. 1st Cir.1993). Voir dire of prospective jurors is specifically designed to test their qualifications and competency; however, “the defense should not be permitted to sit by during voir dire examination and learn as little as possible about a prospective juror, and then, after an unfavorable verdict, discover or seek out a ground for disqualification and demand a new trial.” State v. Baxter, 357 So.2d 271, 274 (La.1978). However, if jurors have' already been sufficiently questioned by either the court or the prosecutor, concerning their qualifications, and their responses do not give any indication that further 113inquiry is required, then a defense attorney should not be required to repeat the questions. Martin, 582 So.2d at 311.

In the instant case, the juror in question, Lawrence Green, III, marked “no” after being asked in his juror questionnaire, “Have you ever been convicted of a felony?” Further, at the beginning of the voir dire examination, the trial court made opening remarks regarding juror qualifications. The court stated, “[y]ou must not be under an indictment for a felony nor have been convicted of a felony for which you have not been pardoned. Does anyone feel they do not comply with these qualifications?” Green remained silent.

Assuming, arguendo, that defense counsel exercised due diligence in determining and evaluating the jurors during voir dire, we find that the trial court did not err by denying the motion for new trial because no prejudice was shown. The defendant was convicted by a unanimous jury, while only ten of the twelve jurors needed to concur to render a verdict. See La.Code Crim. P. art. 782(A). Even if Mr. Green was incapable of serving as a juror, the defendant received eleven guilty votes, enough to convict on both counts. As such, the trial court did not abuse its discretion in denying the defendant’s motion for new trial. See State v. Jones, 41,672 (La.App. 2nd Cir.1/14/09), 999 So.2d 1156, 1158-60, writ denied, 2009-0311 (La.11/6/09), 21 So.3d 297; State v. Neal, 550 So.2d 740, 744-45 (La.App. 2nd Cir.1989), writ denied, 556 So.2d 55 (La.1990).

This assignment of error is without merit.

19,ASSIGNMENT OF ERROR NO. 7

In his seventh assignment of error, the defendant contends the trial court erred in denying his motion to suppress. Specifically, he argues the traffic stop initiated by Agents Champagne and Melancon created an unwarranted detention, and that his consent to search the vehicle was “inextricably linked” to this continued restraint.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. La.Code Crim. P. art. 703(A). A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, because the district court had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jones, 2001-0908 (La.App. 1st Cir. 11/8/02), 835 So.2d 703, 706, writ denied, 2002-2989 (La.4/21/03), 841 So.2d 791. When a trial court denies a motion to suppress, factual' and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion, ie., unless such ruling is not supported by the evidence. State v. Wesley, 2010-2066 (La.App. 1st Cir.9/14/11), 77 So.3d 55, 57-8, writ denied, 2011-2311 (La.9/21/12), 98 So.3d 322. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La.12/1/09), 25 So.3d 746, 751.

Pursuant to the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police officer may briefly seize a person if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts. Louisiana Code of Criminal Procedure article 215.1(A) provides that an officer’s reasonable suspicion of crime allows a limited investigation of a person. However, reasonable suspicion is insufficient to justify custodial interrogation even though the interrogation is investigative. State v. Caples, 2005-2517 (La.App. 1st Cir.6/9/06), 938 So.2d 147, 154, writ denied, 2006-2466 (La.4/27/07), 955 So.2d 684.

As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants. State v. Waters, 2000-0356 (La.3/12/01), 780 So.2d 1053, 1056 (per curiam).

During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. La.Code Crim. P. art. 215.1(D).

Generally, a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. However, one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. State v. Brumfield, 2005-2500 (La.App. 1st Cir.9/20/06), 944 So.2d 588, 593, writ denied, 2007-0213 (La.9/28/07), 964 So.2d 353. Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. State v. Aucoin, 613 So.2d 206, 208 (La.App. 1st Cir.1992). Informing a suspect of his right to refuse consent to a search is not required. Instead, the lack of such a warning is only one factor in determining the voluntary nature of consent to a search. Furthermore, oral consent to search is sufficient; written consent is not required. State v. Parfait, 96-1814 (La.App. 1st Cir.5/9/97), 693 So.2d 1232, 1240, writ denied, 97-1347 (La.10/31/97), 703 So.2d 20. When the State seeks to rely upon consent to justify the lawfulness of a war-rantless search, it has the burden of proving that consent was given freely and voluntarily. State v. Owen, 453 So.2d 1202, 1206 (La.1984). Whether consent was voluntarily given is an issue of fact to be determined by the fact finder in light of the totality of the circumstances. The trier of fact may consider the credibility of witnesses, as well as the surrounding circumstances, in determining the issue of voluntariness. Aucoin, 613 So.2d at 208-09.

When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion, i.e., unless such a ruling is not supported by the evidence. See State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272, 280-81. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La.12/1/09), 25 So.3d 746, 751.

In his reasons for denying the motion, the trial court found that the defendant granted consent to search his vehicle, which included the containers therein, and this consent negated the need for probable cause or exigent circumstances. Further, the traffic stop of the vehicle driven by the defendant was supported by probable cause to believe he had violated La. R.S. 32:104(B). See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”). Furthermore, before the defendant’s vehicle came |24to a complete stop, the passenger in the defendant’s vehicle turned and looked at the agents through the rear window, turned back around, and threw an unidentified object out of the front passenger window. Additionally, upon stopping the defendant’s vehicle, the defendant, referring to his passenger, stated, “He doesn’t do any drugs, man.” The agents reasonably suspected criminal activity, and pursued their investigation of whether or not the defendant or his passenger were involved in such activity. Agent Champagne testified regarding the defendant’s actions which confirmed his suspicion of criminal activity:

I observed a bag that looked like a shaving kit under the driver’s seat and I asked [the defendant] who was the bag for and he said it was his. He proceeded to that spot of the vehicle and he sat down in the driver’s seat and grabbed the bag. Mr. Zeno then grabbed the bag and said, “I can’t go to jail. I got my gun and,” — I’m sorry. “I can’t get in trouble. I got my gun in the bag.”

The duration of the stop was not unreasonable and did not transform the encounter into a de facto arrest. The defendant then voluntarily consented to a search of the vehicle, which was heard by both Agent Champagne and Agent Melancon. During the consensual search, the weapon was found. Therefore, this assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 8 and 9 I PROCEDURAL ERROR

In the defendant’s eighth assignment of error, he contends that the trial court erred in its denial of his motion to reconsider sentence. In his ninth assignment of error, the defendant argues that the sentences imposed are unconstitutionally excessive and harsh. He challenges his sentence of fifteen years at hard labor for the violation of La. R.S. 14:95.1 and his sentence of ten years at hard labor for the violation of La. R.S. 14:95(E), running concurrently. The defendant contends that the trial court failed to | improperly consider his background, employment, familial status, or the facts of the case before imposing sentence. Procedural error renders consideration of these assignments of error moot.

Initially, we note that our review for error is pursuant to La.Code Crim. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

The trial court did not wait twenty-four hours, or secure a waiver of this required period, after denying the defendant’s motions for new trial and for post-verdict judgment of. acquittal before imposing sentence. See La.Code Crim. P. art. 873. In cases where the defendant either contests his sentence or complains of the absence of a twenty-four hour delay, the failure of the trial court to observe the delay or to obtain a waiver thereof generally requires the sentence to be vacated and the case to be remanded for resentencing. See State v. Augustine, 555 So.2d 1331, 1333-35 (La.1990). Here, the defendant avers that both of his sentences are excessive, and that the trial court erred by denying his motion to reconsider sentence.

The instant defendant challenges the non-mandatory sentence imposed by the trial court, the trial court’s failure to comply with La.Code Crim. P. art. 873 cannot be considered harmless error; the sentence must be vacated and the case remanded for resentencing. See Augustine, 555 So.2d at 1333-35; see also State v. Williams, 2013-1822 (La.App. 1st Cir.6/6/14), 2014 WL 3843850, 2014 LEXIS 362 (unpublished); compare State v. Davis, 2013-2044 (La.App. 1st Cir.12/27/13), 2013 WL 7122539 (unpublished).

Therefore, we must vacate the defendant’s sentences on both counts and remand the case to the trial court for resen-tencing.

CONVICTIONS AFFIRMED; SENTENCES ON BOTH COUNTS VACATED; REMANDED FOR RESENTENC-ING ON BOTH COUNTS.

      . The minutes reflect that on both counts, the jury's verdict was 11-1. Further, in the trial court’s denial of the defendant's motions for new trial and post-verdict judgment of acquittal, it notes the jury’s verdict was 11-1. However, the jury polling at trial reflects a unanimous verdict on both counts. "Since there is a discrepancy between the minutes and the transcript, the transcript must prevail.” State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . Notice was provided to the Attorney General, as required by Louisiana Revised Statutes 13:4448, advising that the constitutionality of La. R.S. 14:95.1 was being challenged in this appeal. The Attorney General declined his right to be heard in this matter, noting that a case was pending before the Louisiana Supreme Court which would resolve the constitutional challenge to La. R.S. 14:95.1. See State v. Eberhardt, 2013-2306 (La.7/1/14), 145 So.3d 377.

      . Prior to the 2012 amendment, Article I, Section 11 of the Louisiana Constitution stated: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.”

      . We note that the instant defendant was also charged with a violation of La. R.S. 14:95(E), but did not challenge its constitutionality on appeal.

      . On April 9, 2012, the constitutional amendment was debated in the Louisiana Senate. During the debate, Senator Dan Claitor asked Senator Niel Riser, the amendment’s sponsor, to explain the amendment. Senator Riser stated that the purpose of the act was to reinforce the Second Amendment in Louisiana law, so that Louisiana would have the strongest Second Amendment law in the nation. Regarding the existing gun laws, Senator Riser further stated, “You need to be real clear that [this act] defines ... how laws are judged. So [we] roughly have close to forty gun laws right now and those laws will stay in effect.” Senator Riser further stated, "Any [weapon] law on the books right now is on the books [and] they are going to stay there.... You’ll have to follow the current statute[s].” Louisiana 2012 Reg. Session Senate Floor Debate, Committee Debate on Bill 303, http://senate.la.gov/sessioninfo/ Archivesl2012lrs.htm at 1:57 to 2:21; see also, Eberhardt, 145 So.3d at 384, n. 4; State v. Wiggins, 2013-0649 (La.App. 1st Cir.1/31/14), 139 So.3d 1, n. 5.

      . The defendant does not claim a violation of the prohibition against double jeopardy under the "additional fact” test. Because La. R.S. 14:95.1 requires proof of an additional fact not relevant to La. R.S. 14:95(E), i.e., the defendant’s status as a felon, prosecution in this case was plainly permissible under the "additional fact” test, in which the prosecution of a defendant for violations' of multiple statutes arising out of the same operative facts or conduct is permissible provided each statutory violation requires proof of an additional fact. Sandifer, 679 So.2d at 1329.

      . La.Code Crim. P. art. 855 provides that "a motion for a new trial based on ground (4) of Article 851 shall contain allegations of fact sworn to by the defendant or his counsel, showing: (1) [t]he specific nature of the error or defect complained of; and (2) [t]hat, notwithstanding the exercise of reasonable diligence by the defense, the error or defect was not discovered before or during the trial.” Based on the defendant's motion for new trial, it appears these pro forma requirements are satisfied.

      . We note that during voir dire, the sole statement made by defense counsel to Mr. Green was as follows: "No. No guns at home. Okay. Any particular reason why? You just don’t have them?” Mr. Green responded, "I just don’t have them.” No further interaction occurred between Mr. Green and defense counsel. ,

      . The defendant actually filed two pre-trial motions to suppress; one to suppress the physical evidence obtained during the traffic stop, and one to suppress the statements made by the defendant during the traffic stop. The defendant's argument in the instant appeal addresses the motion to suppress the physical evidence.

      . La. R.S. 32:104(B) provides that “[wjhen-ever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.”

      . Louisiana Code of Criminal Procedure article 873 does not explicitly require a twenty-four hour delay in sentencing after the denial of a motion for a post-verdict judgment of acquittal, as it does after the denial of a motion for new trial. However, this Court previously has applied the twenty-four hour delay required by article 873 to motions for a post-verdict judgment of acquittal. See State v. Coates, 2000-1013 (La.App. 1st Cir. 12/22/00), 774 So.2d 1223, 1226; State v. Jones, 97-2521 (La.App. 1st Cir.9/25/98), 720 So.2d 52, 53.