author: JAMES F. McKAY, III, Chief Judge.

text:
    STATE of Louisiana v. Jamel L. EDGAR.
    No. 2012-KA-0744.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 18, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for De-fendani/Appellant, Jamel L. Edgar.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY, III, Chief Judge.

hThe defendant, Jamel L. Edgar, appeals his conviction and sentence. Finding no merit to his appeal, we affirm the conviction and sentence.

STATEMENT OF CASE

The defendant was charged by an indictment filed on June 11, 2009, with two counts of aggravated rape and two counts of aggravated kidnapping. He entered a not guilty plea on June 23, 2009, and on December 4, 2009, the district court denied the motions to suppress the evidence, statement, and identification. On May 23, 2011, the defendant’s trial began; it resumed on May 25, 2011, and concluded on May 26, 2011. The jury found the defendant guilty of attempted aggravated rape (count 1), attempted aggravated kidnapping (count 2), attempted forcible rape (count 3), and aggravated kidnapping (count 4). He was sentenced on August 11, 2011. On counts one and two, the defendant was sentenced to serve forty years at hard labor; on count three, he was sentenced to serve fifteen years at hard labor, and on count four, he was sentenced to serve life imprisonment at hard labor. The sentences are to be served without benefit of probation, parole or suspension of sentence and were ordered to run concurrently with each other and Lwith any other sentence that appellant may be serving. His motion for appeal was granted that same day.

STATEMENT OF FACT

M.L., testified that in February 2009, she lived in New Orleans. At approximately 10:30 p.m. — 11:00 p.m. on February 9, 2009, she was walking home on Ursuline Street, near Claiborne Avenue. When she got to the intersection of Ursuline and Claiborne, a man, later identified as the defendant, driving a purple Chrysler drove up and offered her a ride home. She accepted his offer and got in to the car. They talked about her day. The defendant asked if she minded if he made one stop before dropping her off. She said yes, and they proceeded down Derbigny towards St. Bernard Avenue. At that point, the defendant pulled out a gun and put it in her face. He told her to perform oral sex and not to bite him, or he would shoot her. M.L. testified that the gun was a black semi-automatic, which she identified at trial. She stated she was very scared and complied with his order. M.L. testified that the defendant held the gun to her head while she did as he ordered.

When the vehicle came to stop, the defendant told her to stop. He told M.L. that they were going to get out of the car and go into his house. The defendant came around to the passenger side of the vehicle and got her out of the car. M.L. stated that she did not want to go into the house because she was afraid that the defendant was going to kill her. The defendant told her to close her eyes. She Inclosed her eyes at first and then opened them. When she opened her eyes, she saw two women in Muslin attire standing across the street. M.L. broke away from the defendant and ran towards the women, screaming for help. When they would not help her, she ran on Pauger Street and toned the corner. She ran another block and turned onto St. Anthony Street, where she saw a house that had lights on. M.L. banged at the door, and a woman answered. She asked the woman for help. The woman called the police, who arrived shortly thereafter. M.L. spoke with the police officer and rode in the back of the police car to the area where the defendant parked his vehicle. When M.L. saw the defendant’s vehicle on Pauger Street, she started crying and identified the vehicle for the officer. As they drove past the car, a woman jumped out of the car, yelling “Help, he’s raping me.” The police officers then apprehended the defendant. M.L. identified the defendant on the scene. Detective Haynes, one of the officers on the scene, asked her to submit to a rape kit, but she refused because the defendant did not ejaculate or penetrate her. M.L. stated that she did not want to be probed after everything she went through. She acknowledged that she had a prior conviction for prostitution in 1998 and a conviction for possession of cocaine in 1999. M.L. identified the defendant at trial as the perpetrator.

M.G. testified that in the late evening hours of February 9, 2009, she was walking home from work when the defendant stopped his car, got out, pointed a gun at her and demanded that she get into the car. She was a kitchen helper at Brennan’s Restaurant. M.G. stated that she was walking on Dumaine Street between Orleans Avenue and Claiborne Avenue. Once she got into his car, the | ¿defendant told her to perform oral sex. When they arrived at his house, he told her to stop. M.C. noticed the gun and reached for it. She and the defendant fought for the weapon, and the defendant took it from her. He hit her in the head and told her to take off her clothes. As she was taking off her clothes, she saw the police vehicles passing. She jumped out the ear and started screaming. The police officers took her and wrapped a sheet around her. The officers told the defendant to get out the car. M.G. acknowledged prior hospitalizations for her mental illness. She also acknowledged prior convictions for possession of cocaine, possession of drug paraphernalia and prostitution. M.G. identified the defendant at trial as the perpetrator.

New Orleans Police Officer Shacretta Pearson testified that on the night of February 9, 2009, she was working alone in a marked police vehicle. A little before midnight, she received a complaint call, went to 2407 St. Anthony Street, and met the homeowner, Mrs. Delores, who stated that the victim came to the house. The officer spoke with M.L., the victim, who told her she had been raped. When the officer arrived on the scene, the victim was hysterical and crying. It took the officer five minutes to calm the victim down. The victim stated that the incident occurred on Pauger Street. Officer Pearson contacted her sergeant and arranged to meet at the incident site. The victim stated that an unknown black male picked her up in the Sixth Ward area. The officer put the victim in her car, and they headed back to Pauger Street, looking for the perpetrator’s vehicle, a purple Chrysler. As they proceeded up Pauger Street, the victim began crying. When the officer observed a purple vehicle, she asked the victim if that was the vehicle. The victim answered affirmatively. The officer passed the vehicle and parked her car at the intersection of Rocheblave and Pauger Streets. Sergeant | sFrankIin’s vehicle was behind Officer Pearson’s vehicle. As the sergeant’s vehicle passed the purple vehicle, a half-naked woman jumped out of the purple vehicle, yelling “He is raping me.” The woman was naked from the waist down. The defendant exited the vehicle, and the officers ordered him to the ground. The officers then handcuffed him. Both victims identified the defendant in a one-on-one identification at the scene. The victims did not have any contact with each other. They were placed in separate police vehicles. The defendant was transferred to Central Lockup after the identification procedures. Officer Pearson stated that no cash was found in the defendant’s car.

Sergeant Rita Franklin testified that she was working the night of February 9, 2009, and the morning of February 10, 2009. Around midnight, she received a call from Officer Pearson because the officer needed to relocate from where the victim was located to the area where the incident allegedly occurred. She met up with Officer Pearson at the intersection of N. Tonti and Pauger. They were searching for a purple vehicle on Pauger Street. As Officer Pearson’s vehicle passed the purple vehicle, she informed Sergeant Franklin that it was the car in question. Sergeant Franklin then heard a woman calling for help and saw a partially nude woman running towards her. The woman was yelling that she had been raped. The woman was nude from the waist down. The officer observed the defendant getting out of the vehicle and ordered him to the ground. Officer Pearson handcuffed him, and he was later transported to Central Lockup. The officer spoke with the second victim, M.G. Sergeant Franklin identified the defendant at trial.

Detective Vernon Haynes, a member of the NOPD sex crimes unit, received the call of a rape from the dispatcher and relocated to the 3000 block of Pauger | (¡Street. When he arrived, he saw two female victims. Each victim was sitting in a separate police vehicle. An unknown male was in a third police vehicle. Photographs of the defendant’s vehicle and the scene were taken by the crime scene technician. The officer identified photographs ■ taken of the vehicle and the scene. While the crime scene technician was processing the vehicle, Detective Haynes observed a black semi-automatic handgun on the floorboard. The gun and magazine of bullets, ten Smith & Wesson forty caliber live rounds, were removed from the vehicle. The. officer also observed several items of clothing on the back seat. Detective Paynes spoke with the two victims and Sergeant Franklin. He conducted one-on-one identifications with both victims at the scene. Each victim was in a separate vehicle when she identified the defendant as the perpetrator. Neither of the victims submitted to a rape kit. The vehicle was transported to police headquarters. While the vehicle was processed, it was not searched. The defendant was advised of his Miranda rights,' and he gave a statement to the officer. Detective Haynes made attempts to canvas the area for witnesses to no avail. There were no surveillance video tapes at the gas station where M.G. was forced into the defendant’s car.

Shannon Braud testified that in February 2009, she lived across the street from the defendant on Pauger Street. Ms. Braud stated that she knew the defendant and his fiancee, Deljuana Fisher. Ms. Braud testified that her son played basketball with Del’s son, and that the defendant was her son’s basketball coach. She stated that the defendant took her son and his cousin to practice three to four days a week, from 6:30 p.m. to 8:80 p.m. On the evening of February 9, 2009, she saw the ' defendant standing near his car talking to an unknown woman. The woman was tall and thin, and she had brown skin. She could not hear the ^conversation between the defendant and the woman. The woman noticed Ms. Braud and her cousin walking down the steps and walked over to them. The woman asked Ms. Braud if she could use her cellphone. Ms. Braud said no. .The woman then asked Ms. Braud-for a ride. Ms. Braud declined the woman’s request. Ms. Braud and her cousin got into her car and left. Ms. Braud stated that she observed the woman walk around the corner. Ms. Braud took her cousin, who lives in New Orleans East, home. When she returned thirty minutes later, there were police officers in the neighborhood. She stated that the police did not ask her any questions.

On cross-examination, Ms. Braud admitted that she did not know what playground her son played for. She also acknowledged that her son did not have a uniform for the basketball team. Ms. Braud stated that she left her house around 10:00 p.m. to take her cousin home. When she saw the defendant, he was wearing pants and a shirt. The unknown woman was wearing a skirt and blouse and carried a purse. Ms. Braud stated that she never saw a naked woman. Ms. Braud testified that she did not see the defendant drive up to the house. The defendant and the woman were already standing outside the car when she walked out of her house.

Keyta Harrell testified that in February 2009, she lived next door to the defendant and Deljuana Fisher. She stated that she did not know them well. On the night that the defendant got arrested, she had been watching television. She heard a man yell “Get away”, but did not go outside. At that time, she did not hear a female voice. About fifteen minutes later, she heard several voices outside. She went to her front door and saw police officers in the neighborhood. Ms. Harrell walked out onto her front porch. She saw police officers and two women standing outside a police vehicle at the corner of Pauger and Rocheblave. The first woman Nwas approximately 5'6" and slender. She wore something that looked like knickerbockers and had something on her head. The second woman was short, stout and had light brown skin. She was wearing checkerboard black and white pants and a white chefs jacket. She was not naked and did not have a blanket wrapped around her. Ms. Harrell stated that she spoke with the police that evening. She acknowledged that she has a prior conviction for distribution of narcotics.

■ Deljuana Fisher testified that she has known the defendant since 2003. She stated that she lives at 3027 .Pauger Street with the defendant and her father. Her brother would periodically stay at the house. In February 2009, the defendant was not working and was receiving unemployment benefits. At that time, Ms. Fisher had two jobs. She would arrive home between 4:00 p.m. and 4:30 p.m. for her first job and then leave between 5:30 p.m. to 6:30 p.m. for her second job. In' the evenings, the defendant would coach basketball. Ms. Fisher stated that she and the defendant would talk periodically during the evening. She testified that she knew the area in which she lived was a high crime area, but the house was the most affordable. The house next door to her was robbed when she first moved to her- house. In response to the robbery, the defendant purchased a gun for protection. The defendant kept the gun in the driver side door of his car because she did not want the gun in the house. She was stopped once with the gun in the car. The police told her that the gun was considered concealed because it was not visible. Ms. Fisher testified that the defendant used the gun for protection only. He would walk around the house at night and in the early morning hours. Ms. Fisher stated that she was not at home when the defendant was arrested. On the evening of February 9th, she came home from her first job, had dinner with the defendant and Igleft around 6:00 p.m. to go to her second job. The defendant left a few minutes before her to go to a basketball game. Ms. Fisher stated that her father was at home that evening. She found out about the defendant’s arrest the next morning. Ms. Fisher testified that she and the defendant spoke two or three times that evening, the last call occurring between 10:00 p.m. and 11:00 p.m.

Jamel Edgar denied kidnapping and raping both victims. He testified that M.L. was never in his vehicle, and he did not force her to perform oral sex. The defendant acknowledged that he knew M.G. previously in 2004-2005 when he sold drugs on Dumaine Street. He further stated that he did not point a gun at M.G. or force her into his vehicle. The defendant testified that he became aware of the rape allegations when he was handcuffed and arrested. He acknowledged that he spoke with Detective Haynes, who advised him of his Miranda rights. The defendant signed a waiver of rights form and gave a recorded statement to the police. In February 2009, the defendant was unemployed. He lived at 3027 Pauger Street with his fiancee, Deljuana, and her father. The defendant stated he purchased a gun in 2007 because of burglaries in the neighborhood. After he purchased the gun, he kept the gun in his bedroom dresser drawer. He would walk around the house at night with the gun. However, Deljuana did not want the gun in the house. At the point, he kept the gun in his car. The weapon was placed in the driver’s side door.

The defendant testified that his usual day consisted of looking for employment, going to the grocery, running errands, cleaning around the house, and preparing dinner for himself and Deljuana. He stated that Deljuana would usually get home from her first job between 4:00 p.m. and 4:30 p.m. They would have dinner together, and then she would leave for her second job. The defendant |inwould go to basketball practice. He would pick up the children he coached, talk to the parents, and then go to practice, which would last about one to two hours. After practice, he would take the boys home. He stated that it took about thirty to forty-five minutes to take everyone home. The defendant testified that he had been coaching about seven to eight months at Pontchartrain Park in Gentilly. Once he got home, he would talk to Deljuana several times before going to bed.

On February 9, 2009, he left the house in the morning and went to apply for several jobs. He arranged for a couple of interviews. The defendant returned home, cleaned the house and cooked dinner. When Deljuana came home, they had dinner. After Deljuana left for work, he left to pick up the boys for practice. The defendant stated he left his house around 6:15 p.m. He picked up the children and went to practice. The team’s uniforms were green and gold. The defendant stated the team was called the Pontchartrain Patriots. After practice, he took the boys home. The last children to be dropped off were Shannon Braud’s son and nephew. The defendant then went to a friend’s house on the west bank.

He left his friend’s house after 10:00 p.m. The defendant stated that he stopped at a service station on the corner of Claiborne and Esplanade, where he saw M.G. The defendant testified that he knew M.G. in 2004-2005 when he was living in the Lafitte Housing Development. He stated that he stopped selling drugs after Hurricane Katrina. According to the defendant, M.G. approached him and asked if he was selling drugs. He told M.G. that he no longer sold drugs because he was trying to be a good father to his son. M.G. asked the defendant if he could drop her off in the Seventh Ward, near Rocheblave Street. The defendant agreed to give her a ride, and M.G. got into his vehicle. When they got to Burgundy Street, M.G. asked him to drop her off at a house on Dorgenois Street. The Indefendant stated that he knew it was a crack house and told M.G. that he was not going any further than Pauger and Roche-blave. M.G. stated that she would walk the rest of the way from Pauger to Dorge-nois Street.

When they arrived at his house, another woman, whom the defendant identified as M.L., approached his car. The defendant stated that he had seen M.L. before. He testified that he had seen M.L. when she picked up drugs from an old friend, with whom he used to play basketball. M.L. knocked on his driver’s side window and asked him if he had some drugs. He said no and told M.L. to get away. At that point, he took his gun out of the driver’s seat door and put it underneath the seat. The defendant then stepped out of the vehicle. He told M.L. to get out of his face. M.L. then walked across the street and spoke with Shannon, who was coming down the stairs of her house. After speaking with Shannon, M.L. walked to Roche-blave Street and went off with a guy dressed all in black. The defendant then went back to his car to retrieve several items. M.G. was still in the car. She told him about an old friend who had recently passed away.

About five to ten minutes later, police officers arrived. M.G. saw the police coming down the street, and she took drugs out of her pants pocket and put the drugs in her bra. When the defendant got out of his vehicle, the police vehicle made a U-turn. One of the police officers told him to get on the ground. M.G. then got out of the car. Initially she did not say anything, but shortly afterwards, told the officers that he raped and robbed her. The defendant was then handcuffed. The defendant testified that he told the male police officer that he did not rob M.G. The officer looked through the defendant’s pants and did not find any money. The defendant stated that he saw Shannon returning to the neighborhood and Keyta | ^standing on her front porch. The defendant was transported to the police station, where he gave a recorded statement.

ERRORS PATENT

A review of the record reveals one patent error on the face of the record. The record reflects that the district court denied appellant’s motions for post-verdict judgment of acquittal and for new trial on the day of sentencing, and it proceeded to sentence him that same date without waiting the required twenty-fours. La.C.Cr.P. art. 873 expressly requires a twenty-four hour delay between the denial of both a motion for new trial and a motion in arrest of judgment. This court has held that the same twenty-four delay is required in the case of the denial of a motion for post-verdict judgment of acquittal. State v. Green, 2010-0791, pp. 19-20 (La.App. 4 Cir. 9/28/11), 84 So.3d 573, 586, writ denied, 2011-2316 (La.3/9/12), 84 So.3d 551; State v. Wilson, 526 So.2d 348, 350 (La. App. 4 Cir.1988).

However, the failure to observe the twenty-four-hour delay is harmless where the defendant does not complain of the failure to observe the delay or his sentence. See State v. Duncan, 2011-0563, p. 8 (La.App. 4 Cir. 5/2/12), 91 So.3d 504, 511 (delay after denial of motions for new and for arrest of judgment); State v. Green, 2010-1355, p. 12 (La.App. 4 Cir. 6/22/11), 69 So.3d 695, 703, writ denied, 2011-1672 (La.1/20/12), 78 So.3d 140 (delay after denial of motion for new trial). In the instant case, appellant has not raised a claim on appeal as to his sentence. Therefore, for this reason alone, any error by the trial court in failing to observe the delay is harmless.

ASSIGNMENT OF ERROR NUMBER 1

The defendant contends that the State failed to produce sufficient evidence to sustain his convictions because the victims’ testimony was not credible. The | ¶0,defendant was convicted of attempted aggravated rape and attempted aggravated kidnapping of M.L. and attempted forcible rape and aggravated kidnapping of M.G.

When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Marcantel, 2000-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55.

In State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the Court set forth the standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, [20]00 — 0674 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).

Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

The requirements for an attempt to commit a crime are provided in La. R.S. 14: 27.

|14A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
(2) Further, the placing of any combustible or explosive substance in or near any structure, watercraft, movable, or forestland, with the specific intent eventually to set fire to or to damage by explosive substance such structure, watercraft, movable, or forestland, shall be sufficient to constitute an attempt to commit the crime of arson as defined in R.S. 14:51 through 53.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

La. R.S. 14:44 defines the crime of aggravated kidnapping:

Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

The elements of aggravated rape are set forth in La. R.S. 14:42.

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim' is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.
(5) When two or more offenders participated in the act.
11fi(6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance.

The provisions of La. R.S. 14:42.1 provide for the definition of forcible rape.

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Wfiien the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
(2) When the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim.

M.L. testified that while she got into the vehicle willingly, thinking that the defendant was taking her home, once he pulled out his gun, she was not free to leave. She stated that defendant put the gun to her head and ordered her to perform oral sex. She complied because she was in fear of losing her life. The defendant drove M.L. to his house and told her that they were going to go inside house to have sex. M.L.’s testimony supports the defendant’s conviction for attempted aggravated kidnapping because her’testimony established that the defendant forcibly seized and took the victim in his vehicle to his house with the intent of forcing her to perform oral sex and/or sexual intercourse. M.L.’s testimony also supports the defendant’s conviction for attempted aggravated rape. Her testimony established that the defendant used a weapon to force her to perform oral sex and threatened to kill her.

M.G. testified that she was walking home when the defendant stopped his vehicle, pulled out of gun and told her to get in the car. The defendant then drove M.G. to his house. En route, he put the gun to M.G.’s head and told her to perform luiOral sex. M.G.’s testimony supports the defendant’s convictions for aggravated kidnapping and attempted forcible rape. Her testimony revealed that the defendant forcibly seized and took the victim in' his vehicle to his house with the intent of forcing her to perform oral sex and/or sexual intercourse. Her testimony established that the defendant used a weapon to force her to perform oral sex.

The defendant argues that M.G.’s testimony is not credible because of her mental illness and delusional statements she made during trial. He also contends that there were inconsistencies in her testimony about the defendant robbing her and there was no evidence presented that supported her allegation that he robbed M.G. The defendant also suggests that M.L.’s testimony is not credible because it was controverted by Shannon Braud’s testimony.

The jury heard the testimony of both victims and the defendant’s witnesses and assessed the credibility and weight to be given to the testimony presented. The jury was well aware of M.G.’s mental illness and heard her delusional statements. They also heard the testimony of the police officers that supported the victims’ testimony, especially the testimony of M.G. that she was half naked when she jumped out of the defendant’s vehicle.

When there is conflicting testimony about factual matters, the resolution of which depends upon a determination of credibility of the witness, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 94-1895, p.7 (La. App. 4 Cir. 9/15/95), 661 So.2d 1078, 1084. The trier of fact determines the weight to be given the evidence presented. It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Helou, 2002-2302, p. 5 (La.10/23/03), 857 So.2d 1024, 1027; State v. Rosiere, 488 So.2d 965 (La.1986).

|17In the present case, it cannot be said that the jury abused its great discretion in determining to accept the testimony of the State’s witnesses over the testimony of the defendants’ witnesses. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In this assignment, the defendant argues that the trial court erred in limiting his cross-examination of M.G. violating his right to confront the witnesses against him. The right to confront witnesses is ensured in both the federal and state constitutions. The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” La. Const, art. 1, § 16 guarantees each accused the right “to confront and cross-examine the witnesses against him.”

In State v. Draughn, 2005-1825, pp. 47-48 (La.1/17/07), 950 So.2d 583, 615-616, the Supreme Court noted that it had previously

held that “Confrontation means more than being allowed to confront the witnesses physically. ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’ ” State v. Robinson, 2001-0273, p. 6 (La.5/17/02), 817 So.2d 1131, 1135, citing Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (internal citation omitted). Cross-examination has been termed “the principal means by which believability and truthfulness of testimony are tested.” Robinson, 2001-0273, p. 6, 817 So.2d at 1135.
Under the code of evidence, “a witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” La. C.E. art. 611(B). The trial court is empowered to exercise reasonable control over the manner of cross-examination so as to (1) ensure the effectiveness of the interrogation as a mode of ascertaining the truth; (2) avoid the needless consumption of time; and (3) protect witnesses from harassment or undue embarrassment. La. C.E. art. 611(A). “Subject to the discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, or discredit, the witness.” Robinson, 2001-0273, p. 6, 817 So.2d at 1135. The ruling of the trial court as to the scope and extent of cross-examination should not be disturbed absent an abuse of the court’s broad discretion. State v. Irish, 2000-2086, p. 7 (La.1/15/02), 807 So.2d 208, 213, cert. denied, 537 U.S. 846, 123 S.Ct. 185, 154 L.Ed.2d 73 (2002); State v. Frost, 1997-1771 p. 32 (La.12/1/98), 727 So.2d 417, 439, cert. denied, 528 U.S. 831, 120 S.Ct. 87, 145 L.Ed.2d 74 (1999).

The defendant argues that he sought to continue his cross-examination to show that the victim’s delusions affected her credibility. The trial transcript reveals that M.G. suffers from a mental illness. It was evident in her testimony at trial. The victim’s medical records were produced, which revealed that M.G. had been receiving treatment for her mental illness since she was a child. M.G. testified about her mental illness and hospitalizations. She acknowledged that she had been recently hospitalized. On cross-examination, defense counsel questioned M.G. about her hospitalizations and delusions. After several questions about the delusions, the trial court stopped defense counsel from asking any further questions about the delusions. Defense counsel indicated that the questioning was meant to prove that M.G. lacked credibility due to her delusions. The trial court stated that the victim’s mental condition was apparent from the testimony already elicited.

As to the mental qualities of intelligence and memory, a distinction must be made between attacks on competency and attacks on credibility. Sanity in any general sense is not the test of competency, and a so-called insane person may testify if he is able to report correctly the matters to which he testifies and if he understands the duty to speak the truth. McCormick on Evidence, § 45, p. 94 (Clearly Ed.1972). Mental abnormality either at the time of observing the facts or at the time of testifying, however, will be provable on cross examination or by extrinsic evidence, as bearing on credibility. State v. Landry, 359 So.2d 99 (La.1978); State v. Luckett, 327 So.2d 365, 372 (La.1976) (on rehearing); McCormick, supra; Pugh and McClelland, Work of the Appellate Court for the 1976-1977 Term-Evidence, 37 La. L.Rev. 585 (1977).

State v. Morris, 429 So.2d 111, 120 (La.1983).

In Carollo v. Wilson, 345 So.2d 601, 608 (La.App. 4 Cir.1977), the defendants argued that the trial court erred when it allowed seven year old Charles Carollo to testify despite his damaged mental condition, due to a ■ brain-stem injury. |19The court held that the trial court did not err because the witness’ credibility was an issue for the jury, and the witness’ mental condition could have been argued to- the jury.

In the case at bar, the trial court did not abuse its great discretion in limiting defense counsel’s cross-examination. M.G. had already testified concerning several of her delusions, including being Oprah Winfrey’s godchild and that the fate of the human race was in her scalp and hair. The trial court noted that M.G.’s testimony revealed the extent of her mental illness and delusions. The trial court determined that any continuing cross-examination on these issues would just subject M.G. to harassment or undue embarrassment.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 3

The defendant further suggests that the trial court erred in failing to hold an in camera hearing on M.G.’s competency to testify, and that his trial counsel was ineffective for failing to request an in camera hearing to determine M.G.’s competency to testify.

As noted above, the Louisiana Supreme Court recognizes a distinction between attacks on competency and attacks on credibility. State v. Morris, 429 So.2d 111, 120 (La.1983). “Sanity in any general sense is not the test of competency, and a so-called insane person may testify if he is able to report correctly the matters to which he testifies and if he understands the duty to speak the truth.” Id.

La. C.E. article 601 provides that “[e]very person of proper understanding is competent to be a witness except as otherwise provided by legislation.” Understanding, not age, is the test of whether any person shall be sworn as a witness. A key determination to be made is whether the witness is able to 12nunderstand the difference between truth and falsehoods. State v. Deutor, 2002-1869, pp. 6-7 (La. App. 4 Cir. 3/19/03), 842 So.2d 438, 442.

In State v. Guidry, 41,694 (La.App. 2 Cir. 2/28/07), 953 So.2d 943, the defendant argued that the trial court erred in allowing a witness to testify despite knowing that the witness was diagnosed as a paranoid schizophrenic with auditory hallucinations. The court found that the trial court did not err in finding that the witness was competent to testify.

Louisiana C.E. art. 601 provides that every person of proper understanding is competent to be a witness except as otherwise provided by legislation. Furthermore, a witness may testify to a matter based on personal knowledge. La. C.E. art. 602. Great weight is given to the trial judge’s determination of competency because of his or her opportunity to see and hear the witness. La. C.E. art. 104(A); State v. Willars, 27,394 (La.App. 2 Cir. 09/27/95), 661 So.2d 673. Matters such as mental defect go to the witness’ credibility, not to competency. State v. Wilkerson, 448 So.2d 1355 (La. App. 2d Cir.1984), writ denied, 450 So.2d 361 (La.1984).
⅜ ⅜: ⅝ ⅜ ⅜ ⅜
Although the trial court observed that the second part of the inquiry-Coleman’s personal knowledge-was “troublesome,” it found that the state established that Coleman had a proper understanding to testify by showing that he understood the difference between truth and lies. The trial court noted that issues of any disability relate to Coleman’s credibility and not his competency to testify. In Wilkerson, this court stated:
Certainly, this witness’ defects of capacity, sensory or mental, which would have lessened her ability to perceive the facts which [the witness] purports to have observed were provable to attack the credibility of the witness, either upon cross-examination or producing other witnesses to prove the defect. However, such matters go to [the witness’] credibility, not to [the witness’] competency, which was properly determined by the trial court. (Internal citations omitted.) State v. Wilkerson, 448 So.2d at 1361-1362. Finally, we note that the Louisiana Supreme Court has never ordered a blanket exclusion of jailhouse witness testimony. State v. Robinson, 2002-1869 (La.04/14/04), 874 So.2d 66, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004).
The record supports the trial court’s ruling that Coleman was competent to testify as a witness at Guidry’s trial. Coleman’s answers to questioning demonstrated that he had proper understanding and his testimony was based on personal knowledge. Although Coleman’s testimony did not include information regarding his actual diagnosis, it did include sufficient information regarding his prior mental incompetency to stand trial and history of auditory hallucinations. Therefore, based on our thorough preview of this record it cannot be said that the trial court’s determination was manifestly erroneous.

Guidry, 41,694, pp.18-19, 953 So.2d at 952-953.

The issue of M.G.’s competency was not raised by the defendant at any time. At trial, the defendant raised the issue of her credibility due to her delusions and mental illness and was allowed to present evidence on the issue. M.G.’s testimony at trial concerning the events of February 9, 2009, revealed no indication of her mental condition. However, evidence of her medical condition became apparent when the State and defense counsel questioned M.G. about her hospitalizations and delusions.

Because the defendant never raised the issue of M.G.’s competency at trial and/or sought an in camera hearing on M.G.’s competency, the defendant is precluded from raising the issue of the trial court’s failure to conduct an in camera hearing on appeal. La.C.Cr.P. article 841; State v. Jenkins, 598 So.2d 558, 560 (La.App. 4 Cir.1992)(court held that because defense counsel neither put any information before the court as to the incompetency of the witness nor objected to the testimony, defendant was precluded from raising the issue on appeal.)

The defendant argues, in the alternative, that his trial counsel was ineffective for failing to request an in camera hearing on M.G.’s competency to testify.

Ordinarily, an ineffective assistance claim is better addressed in an application for post-conviction relief filed in the trial court in which a full evidentiary hearing can be held. State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802. However, where the record is sufficient to permit a determination of counsel’s effectiveness at trial, the claims may be addressed on appeal. State v. McGee, 98-1508, p. 4 (La.App. 4 Cir. 3/15/00), 758 So.2d 338, 41. Indeed, when the appellate record is sufficient, “the interests of judicial economy justify consideration of the issues on appeal.” State v. Kanost, 99-1822, p. 6 (La.App. 4 Cir. 3/29/00), 759 So.2d 184, 188.

The standard for assessing an ineffective assistance of counsel claim is well-settled; the two-prong standard enunciated in the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), must be applied. State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741. In order to prevail, a defendant must establish both that counsel’s performance was deficient and that the deficiency prejudiced the defendant. Id. As to the former, the defendant must show that counsel made errors so serious that counsel was not functioning as the “counsel” the Sixth Amendment guarantees. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; State v. Ash, 97-2061, p. 9 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, 669. As to the latter, the defendant must show that “counsel’s errors were so serious as to deprive him of a fair trial, i.e., a trial whose result is reliable.” McGee, 98-1508 at p. 5, 758 So.2d at 342. To carry his burden, the defendant must show that there is a reasonable probability that, but for counsel’s deficient performance the result of the proceeding would have been different; “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2068.

An “effective counsel” has been defined as “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” State v. Anderson, 97-2587, p. 7 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, 19 (citing, State v. Seiss, 428 So.2d 444, 449 (La.1983)). Given that “opinions may differ on the advisability of a tactic, Ushindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Crowell, 99-2238, p. 8 (La. App. 4 Cir. 11/21/00), 773 So.2d 871, 878 (quoting State v. Brooks, 505 So.2d 714, 724 (La.1987)). It follows then “trial strategy” type errors do not constitute ineffective assistance of counsel. Crowell, 99-2238, at p. 8, 773 So.2d at 878 (citing State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986)); State v. Bordes, 98-0086, p. 8 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147 (quoting Bienemy, 483 So.2d at 1107 (noting that “[t]his court has recognized that if an alleged error falls ‘within the ambit of trial strategy’ it does not ‘establish ineffective assistance of counsel.’ ”)).

The defendant has failed to disclose any additional evidence not presented at trial that defense counsel could have presented at an in camera hearing. The defendant references no new evidence concerning M.G.’s competency to testify. The trial transcript reveals that defense counsel introduced M.G.’s medical records into evidence and extensively cross-examined M.G. on the events of February 9th, as well as her mental illness, hospitalizations and delusions. Thus, the defendant has not shown how the failure to request an in camera hearing constituted ineffective assistance of counsel.

Accordingly, this assignment of error is without merit.

CONCLUSION

Accordingly, the defendant’s convictions and sentences are affirmed.

AFFIRMED

      . Stephanie Ezidore is a complaint operator with the Communications Division of the New Orleans Police Department. She identified the 911 tapes and incident recall. She testified that the first call was received at 11:37 p.m. The incident recall indicates that the police officers arrived at Pauger Street and Rocheblave at 12:03 a.m. The 911 tapes were played for the jury.

      . M.L. is the victim in counts one and two.

      . M.G. is the victim in counts three and four.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    POINTE COUPEE PARISH SCHOOL BOARD v. The LOUISIANA SCHOOL EMPLOYEE’S RETIREMENT SYSTEM, John N. Kennedy, State Treasurer, and Louisiana Department of Education. Evangeline Parish School Board v. The Louisiana School Employee’s Retirement System, John N. Kennedy, State Treasurer, and Louisiana Department of Education. St. James Parish School Board v. The Louisiana School Employee’s Retirement System, John N. Kennedy, State Treasurer, and Louisiana Department of Education.
    Nos. 2013 CA 1100, 2013 CA 1101, 2013 CA 1102.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2014.

      Robert L. Hammonds, Franklin V. En-dona, Jr., Eric M. Barrilleaux, Baton Rouge, LA, Attorneys for Plaintiffs-Appellants Pointe Coupee Parish School Board, Evangeline Parish School Board, and St. James Parish School Board.
    M. Brent Hicks, Kimberly D. Higginbotham, Baton Rouge, LA, Attorneys for Defendant-Appellee Louisiana School Employees’ Retirement System.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

| sin this consolidated proceeding, three parish school boards have sought declaratory and injunctive relief against the Louisiana School Employees’ Retirement System (LSERS), State Treasurer John N. Kennedy, and the Louisiana Department of Education to prohibit the withdrawal of funds available for their benefit from the state treasury pursuant to La. R.S. 11:1202. The trial court denied the school boards’ request for declaratory and injunc-tive relief and overruled an exception of res judicata raised by the Pointe Coupee Parish School Board. The suits were dismissed with prejudice, and the school boards now appeal. After a thorough review of the record and the arguments presented, we find no merit to the school boards’ assignments of error and affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This suit arises out of the privatization of bus transportation services by the Pointe Coupee, Evangeline, and St. James Parish school boards. Between 2005 and 2011, the school boards independently contracted with Laidlaw Education Services and/or an affiliate company, First Student, Inc. (hereinafter collectively referred to as “Laidlaw”), to be the private provider of student transportation services. The contracts provided that Laidlaw would be awarded individual school bus routes as they became available, resulting in the elimination of several driver positions previously held by public employees who were contributing members of LSERS. In total, Pointe Coupee eliminated eight driver positions, Evangeline eliminated five positions, and St. James eliminated twelve positions during the time period relevant to this litigation.

As a result of the alleged privatization of these positions, LSERS made demands upon the school boards for payment of a claimed portion of its unfunded accrued liability (UAL) pursuant to La. R.S. 11:1195.1 and La. R.S. ll:1195.2. Specifically, LSERS | ¿demanded payment in the following amounts, plus interest: (1) $310,856.00 from the Pointe Coupee Parish School Board; (2) $256,041.00 from the Evangeline Parish School Board; and (3) $958,518.00 from the St, James Parish School Board. The school boards refused to voluntarily relinquish payment, and LSERS gave notice of its intent to utilize the procedures detailed in La. R.S. 11:1202 to mandate that the state treasurer or Department of Education deduct the delinquent payments from any monies then due the school boards.

In response, the school boards each individually brought suit in the 19th Judicial District Court, seeking to enjoin LSERS from invoking collection procedures pursuant to La. R.S. 11:1202. The Pointe Cou-pee Parish School Board argued in its petition that LSERS was collaterally es-topped and barred by a final consent judgment rendered in a prior proceeding entitled Pointe Coupee Parish School Board v. The Louisiana School Employees’ Retirement System, 19th Judicial District Court, Docket No. 574,462. Also, the school boards sought declaratory judgment that the amounts due were calculated incorrectly and that the provisions of La. R.S. 11:1202 purporting to authorize LSERS to | ^collect from the state treasurer monies then available for distribution to or for the benefit of the school boards are in conflict with Article 3, § 16(A), Article 7, § 10(D)(1), and Article 8, § 13(A) of the Louisiana Constitution of 1974. To the extent that the suits involve common issues of law and fact, they were consolidated for joint consideration pursuant to orders dated July 24, 2012, and October 19, 2012.

On December 13, 2012, the consolidated matter proceeded to trial. On February 11, 2013, the trial court issued written reasons finding no merit to the Pointe Coupee Parish School Board’s claim of collateral estoppel. Moreover, the court found that the statutes in question do not conflict with the provisions of the Louisiana Constitution. Also, the court found that the school boards failed to prove by a preponderance of the evidence that they would suffer irreparable injury so as to warrant injunctive relief. On February 25, 2013, the trial court signed a written judgment denying the school boards’ requests for declaratory and injunctive relief, overruling the Pointe Coupee Parish School Board’s exception of res judicata, and dismissing the plaintiffs’ petitions with prejudice. The school boards have now appealed that judgment.

ISSUES PRESENTED FOR REVIEW

On appeal, the school boards argue that the procedure for deducting funds from the state treasury pursuant to La. R.S. 11:1202 conflicts with the provisions of La. Const. Art. 3, § 16(A), Article 7, § 10(D), and Article 8, § 13(B). Alternatively, the school boards argue that the provisions of La. R.S. 11:1195.1 and La. R.S. 11:1195.2 do not apply to employees who retire or resign without termination or whose routes are eliminated through merger or consolidation. Also, the school boards argue that the UAL attributable to the identified employees was erroneously calculated and that the UAL allegedly attributable to resigning employees would be extinguished by their withdrawal of retirement contributions. The school boards additionally argue that the doctrine of collateral estop-pel bars LSERS from enforcing collection -from the Pointe Coupee Parish School Board. Lastly, the school boards submit that they would sustain irreparable harm without recourse if LSERS is allowed to withdraw funds held for their benefit from the state treasury or Department of Education.

JjjDISCUSSION AND ANALYSIS

Constitutional Claims

At the outset, we note that the constitutionality of La. R.S. 11:1202 is a legal question, which is subject to de novo review. La. Mun. Ass’n v. the State of La. and the Firefighters’ Retirement Sys., 2004-0227, p. 45 (La.1/19/05), 893 So.2d 809, 842. Statutes are generally presumed to be constitutional and the party challenging the validity of the statute has the burden of proving it is unconstitutional. State v. Fleury, 2001-0871, p. 5 (La.10/16/01), 799 So.2d 468, 472. The provisions of the Louisiana Constitution are not grants of power but instead are limitations on the otherwise plenary power of the people exercised through the legislature. Bd. of Comm’rs of North Lafourche Conservation, Levee and Drainage Dist. v. Bd. of Comm’rs of Atchafalaya Basin Levee Distr., 95-1353, p. 3 (La.1/16/96), 666 So.2d 636, 639. Therefore, the legislature may enact any legislation that the state constitution does not prohibit. Bd. of Comm’rs, 95-1353 at 4, 666 So.2d at 639. In that context, the party challenging the constitutionality of a statute must cite to the specific provision of the constitution which prohibits the legislative action. Fleury, 2001-0871 at 5, 799 So.2d at 472; Bd. of Comm’rs, 95-1353 at 4, 666 So.2d at 639. The plaintiffs bear the burden of proving the unconstitutionality of the statutes at issue. La. Mun. Ass’n, 2004-0227 at 45, 893 So.2d at 843.

The school boards argue that the collection mechanism in La. R.S. 11:1202 violates La. Const. Art. 3, § 16(A) and La. Const. Art. 7, § 10(D). Louisiana Constitution Article 3, § 16(A) states that “[e]x-cept as otherwise provided by this constitution, no money shall be withdrawn from the state treasury except through specific appropriation, and no appropriation shall be made under the heading of contingencies or for longer than one year.” Similarly, La. Const. Art. 7, § 10(D)(1) deals with the expenditure of state funds and provides that “[ejxcept as otherwise provided by this constitution, money shall be drawn from the state treasury only pursuant to an appropriation made in accordance with law.” Insofar as La. R.S. 11:1202 authorizes the transmission of school board funds based upon a “certification” by the board of trustees of LSERS that a payment is 17delinquent, the school boards argue that the statute violates the constitutional appropriations requirement.

In support, the school boards cite Firefighters’ Ret. Sys. v. Landrieu, 572 So.2d 1175 (La.App. 1 Cir.1990), writ denied 575 So.2d 811 (La.1991). In Firefighters, the police and firefighter retirement systems sought judgment declaring that they were entitled to possession of funds collected pursuant to La. R.S. 22:1419(A) and held by the state treasurer. The trial court ordered the treasurer to remit the funds, and an appeal was taken. On appeal, the state treasurer argued that the trial court erred by ordering her to release the funds without an appropriation of the legislature, as provided for in La. Const. Art. 3, § 16(A) and Article 7, § 10(A). This court pointed out that the constitutional provisions relied upon by the treasurer pertained to the withdrawal of state funds from the state treasury and require a legislative appropriation for such actions. Firefighters, 572 So.2d at 1180. The retirement systems’ funds, by contrast, were not required to be deposited in the state treasury; therefore, this court held that no appropriation was needed to remove the funds from the state treasury. Id. Under the rationale in Firefighters, the school boards argue herein that LSERS seeks to withdraw state funds and that the withdrawal requires a legislative appropriation.

We do not find the school boards’ constitutional arguments under La. Const. Art. 3, § 16(A) and Art. 7, § 10(A) to be persuasive. Louisiana Revised Statute 11:1202(A)(2) clearly states that “the state treasurer or the Department of Education shall deduct the amount thereof from any monies then available for distribution to or for the benefit of that parish or city school board (emphasis added).” The statute is clear that a deduction is allowed only if funds have already been appropriated and are available.

Monies are made available to parish school boards through allocation and disbursements pursuant to the Minimum Foundation Program (MFP) formula. Louisiana ^Constitution Article 8, § 13, dealing with funding and apportionment for education, provides, in relevant part:

(B) Minimum Foundation Program. The State Board of Elementary and Secondary Education, or its successor, shall annually develop and adopt a formula which snail be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems. Such formula shall provide for a contribution by every city and parish school system. Prior to approval of the formula by the legislature, the legislature may return the formula adopted by the board to the board and may recommend to the board an amended formula for consideration by the board and submission to the legislature for approval. The legislature shall annually appropriate funds sufficient to fully fund the current cost to the state of such a program as determined by applying the approved formula in order to insure a minimum foundation of education in all public elementary and secondary schools. Neither the governor nor the legislature may reduce such appropriation, except that the governor may reduce such appropriation using means provided in the act containing the appropriation provided that any such reduction is consented to in writing by two-thirds of the elected members of each house of the legislature. The funds appropriated shall be equitably allocated to parish and city school systems according to the formula as adopted by the State Board of Elementary and Secondary Education, or its successor, and approved by the legislature prior to making the appropriation. Whenever the legislature fails to approve the formula most recently adopted by the board, or its successor, the last formula adopted by the board, or its successor, and approved by the legislature shall be used for the determination of the cost of the minimum foundation program and for the allocation of funds appropriated (emphasis added).

Article 8, § 13(B) dictates specific and unique procedures for educational expenditures made through the MFP. The MFP formula originates with the State Board of Elementary and Secondary Education and is approved by the legislature. La. Const. Art. 8, § 13(B). Once approved, the legislature is required to fully fund the current cost to the state of such a program as determined by applying the approved formula. Id. The funding is accomplished via concurrent resolution and appropriated through a bill passed by both houses of the legislature. La. Const. Art. 8, § 13(B); see also La. Fed’n of Teachers v. State, 2013-0120, p. 15 (La.5/7/13), 118 So.3d 1033, 1044 citing Joint Rules of the Louisiana Senate and House, Rule No. 20(A)(1)(b)(iii). Once appropriated, MFP funds are available for allocation or distribution to the school systems. La. Const. Art. 8, § 13(B).

lain light of the detailed funding and apportionment provisions of La. Const. Art. 8, § 13, it is clear that the MFP funds are appropriated by the legislature and are then available for allocation or distribution to the school systems. The school boards have failed to cite any constitutional provision that prohibits LSERS from deducting from the allocated funds the amounts it is owed pursuant to La. R.S. 11:1202. When La. R.S. 11:1202 is read in conjunction with La. Const. Art. 8, § 13, it is apparent that the school boards’ argument that the statute allows LSERS to unilaterally withdraw funds from the state treasury is unfounded. If there are no appropriated funds available for distribution, then no deduction can be made under La. R.S, 11:1202(A)(2). Moreover, the school boards’ reliance on Firefighters is misplaced, because this case does not involve an attempt to withdraw unappropriated state funds. Thus, we find that the school boards failed to satisfy the burden of proving La. R.S. 11:1202 is unconstitutional.

Also, we reject the school boards’ arguments that LSERS’ invocation of La. R.S. 11:1202 violates La. Const. Art. 8, § 13(B) by diverting MFP funds from their intended use. Retirement funds are a fundamental component in the cost of public education. The MFP formula includes an allowance for the support of increased mandated costs in retirement. See S. Con. Res. No. 99, La.2012 Reg. Sess. Section IV(E) of the current MFP formula is entitled “Support for Increasing Mandated Costs in Health Insurance, Retirement, and Fuel,” and states that “[c]ity, parish, and other local public school systems shall receive a minimum of $100.00 for each student in the prior year February 1 membership.” Id. The provisions of La. Const. Art. 8, § 18, which require that MFP funds be used for a minimum foundation program of education, are not violated where the funds are being used for their intended purpose, which includes the retirement costs of school employees. We, therefore, find that the school boards have failed to satisfy the burden of proof to show that La. R.S. 11:1202 violates La. Const. Art. 8, § 13.

| inApplication of La. R.S. 11:1195.1 and 11:1195.2

We next turn to the school boards’ arguments that LSERS misapplied La. R.S. 11:1195.1 and La. R.S. 11:1195.2. Insofar as the school boards’ arguments relate to the factual findings of the trial court as to whether the relevant driver positions were privatized or eliminated within the meaning of the statutes, we shall review those claims using a manifest error standard of review. Almon v. Almon, 2005-1848, p. 3 (La.App. 1 Cir. 9/15/06), 943 So.2d 1113, 1115. The two-part test for appellate review of a factual finding is: (1) whether there is a reasonable factual basis in the record for the finding of the trial court; and (2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court was clearly wrong. See Stobart v. State, through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

The school boards show on appeal that, except for one Pointe Coupee employee who was terminated, all of the employees identified in LSERS’ demands either resigned or retired. Thus, the school boards contend that La. R.S. 11:1195.1 is inapplicable, because I nthe statute contemplates the situation where an “employer terminates a group of employees.” (Emphasis added.) Moreover, the school boards point out that the route of at least one of the identified employees was merged with another route upon his retirement and at least three Pointe Coupee drivers and four St. James drivers assumed the routes of departing drivers. The school boards aver that both La. R.S. 11:1195.1 and La. R.S. 11:1195.2 condition their applicability to an employer’s removal of a position through “privatization” and not mere elimination. The school boards suggest that elimination of a driver position through merger or assumption of a route does not equate to a privatization under the controlling statutes.

In considering the school boards’ arguments, we first turn to the language of the statutes themselves. Louisiana Revised Statute 11:1195.1 provides for payment of the UAL by the employer “if an employer terminates a group of employees belonging to this system by eliminating the positions ... through privatizing, outsourcing, contracting the service with a private employer, or any other means.” (Emphasis added.) Likewise, La. R.S. 11:1195.2 provides for UAL payment “if an employer eliminates any position through | ^privatizing, outsourcing, contracting the service with a private employer, or any other means.” (Emphasis added.) Looking at the statutes in whole part and in conjunction with one another, we believe that the lawmakers clearly contemplated the situation where positions are eliminated, whether through privatization or other means. Based on a plain reading of the statutes, the relevant inquiry is whether there is a loss of a public position and employee that otherwise would be available to contribute to LSERS.

Our interpretation of the statutory law is supported by the testimony of LSERS Executive Director Charles Bujol. Although the statutes do not define the term “privatization,” Mr. Bujol confirmed at trial that a “privatized position” is “that which is normally part of the employment of the school board that has been outsourced to a private entity that no longer participates in the LSERS. retirement system.” Mr. Bujol further explained that “[i]f an existing school board employee takes the position of the person who retired or left for whatever reason, and down the line it creates a privatized position, that is a privatized position and the school system is assessed that-informed that they have to pay that debt.”

The undisputed facts herein are that each of the school boards contracted with Laidlaw to be the private provider of student transportation services and thereafter eliminated several positions previously held by public employees. When the identified employees retired, there became one less bus route that was driven by a public employee, with the exception of the sole Pointe Coupee employee whose route was merged. Regardless of who filled the eliminated positions, the result was that there was one less public employee contributing to LSERS. Thus, there is no real dispute that the positions at issue were eliminated as contemplated by La. R.S. 11:1195.1 and La. R.S. 11:1195.2. We, therefore, conclude that the trial court did not manifestly err in finding as a factual matter that the positions were eliminated as contemplated by the statutes and that the school boards are liable to LSERS for that portion of the UAL lost as a result of the removal of these positions.

Alternatively, the school boards argue that LSERS incorrectly calculated the UAL under La. R.S. 11:1195.1 and La. R.S. 11:1195.2 and, therefore, the trial court erred in | ^denying declaratory relief. Louisiana Revised Statute 11:1195.1 requires payment of “the unfunded accrued liability existing on June thirtieth, immediately prior to the date of termination attributable to the employees being terminated.” Likewise, La. R.S. 11:1195.2 requires payment of “the unfunded accrued liability existing on June thirtieth, immediately prior to the date of termination of the employee in that position, which is attributable to that position.” The school boards argue that calculation of the UAL requires identification of the benefits liability for the terminated employees to be factored by that portion of the accrued liability that is unfunded. Instead, LSERS based its calculations on the portion of the UAL that was attributable to each of the respective school boards as a whole. Those portions were determined by factoring privatized payroll with the total payroll for all LSERS members. The school boards submit that use of those values does not comply with La. R.S. 11:1195.1 and La. R.S. 11:1195.2.

Further, it is the position of the school boards that the UAL attributable to resigning employees were extinguished by the withdrawal of their retirement contributions. In all, the school boards point out that four of the identified employees withdrew their contributions from LSERS before demand was made for payment of the UAL attributable to their positions. To the extent that no adjustment was made to the UAL due to these withdrawals, the school boards submit that the calculations were erroneous.

At trial, LSERS actuary Charles Hall testified in detail as to how he determined the amount due for the privatized positions. Mr. Hall testified that La. R.S. 11:102 has very extensive instructions as to how to construct the funding of the plan and that he complied with those instructions. To calculate retirement system funding, Mr. Hall identified the normal cost of the plan, which is the cost of accrued benefits for a year, along with the UAL which is amortized over a prescribed period. The total calculation is then divided by the total active payroll, as required by the legislature. To determine the UAL resulting from the privatized positions at issue for each parish, Mr. Hall then determined the |upercentage of the payroll attributable to the position that was privatized and allocated this percentage to the UAL.

Mr. Hall further testified that a withdrawal of retirement benefits does not extinguish the UAL for the former employee’s position. Rather, Mr. Hall explained that the obligation to repay the UAL exists, regardless of what action the former employee takes. Mr. Hall defined the UAL as “the present value of future con-tentioned events,” which takes into consideration unforeseen circumstances including early retirement and withdrawal of benefits, among others.

We note that the school boards did not present any testimony or evidence that a different method of calculation would be preferable or that any such method would have produced a different result. The school board also failed to produce any testimony that the UAL attributable to retiring employees was extinguished by the withdrawal of their retirement contributions. Indeed, no evidence was presented to contradict the testimony of Mr. Hall at all. Accordingly, we find no merit to the school board’s claim that the UAL was improperly calculated.

Res Judicata/Collateral Estoppel

The school boards argue on appeal that collateral estoppel bars LSERS from enforcing collection against the Pointe Cou-pee Parish School Board pursuant to La. R.S. 11:1202. The school boards rely on the outcome of a prior case, captioned as Pointe Coupee Parish School Board v. The Louisiana School Employees’ Retirement System, Docket No. 574,462, which matter was also filed in the 19th Judicial District Court and involved similar issues. Specifically, in Suit No. 574,462, a petition was filed by the Pointe Coupee Parish School Board, seeking declaratory and injunctive relief precluding LSERS from collecting the sum of $106,136.23 plus interest as a claimed portion of its UAL following the resignation or retirement of four employees in 2007 and 2008. Suit No. 574,462 was ultimately resolved by virtue of a Consent Permanent Injunction dated March 23, 2010. The consent injunction rendered judgment “permanently enjoining and prohibiting defendant, The Louisiana School Employees’ Retirement System, from attempting to collect, directly from the Pointe Coupee Parish School Board or indirectly |1Bfrom the State Treasurer and the State Department of Education, any portion of the LSERS unfunded accrued liability that defendant has claimed due in the LSERS demand of October 22, 2008.” Because the Pointe Coupee Parish School Board raised the same constitutional arguments in Suit No. 574,462 as in the current litigation, the school boards contend that the doctrine of collateral estoppel permanently precludes LSERS from attempting to collect UAL arising out of the subsequent privatization or elimination of driver positions for the Pointe Coupee Parish School Board.

The doctrine of res judicata is set forth in La. R.S. 13:4231. The statute states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The statute, as amended in 1990, embraces both claim preclusion (traditional res judi-cata) and issue preclusion (collateral estop-pel). Gabriel v. Lafourche Parish Water Dist., 2012-0797, p. 5 (La.App. 1 Cir. 2/25/13), 112 So.3d 281, 285, writ denied, 2013-0653 (La.4/26/13), 112 So.3d 848. Under issue preclusion or collateral estop-pel, resolution of an issue of fact or law essential to the determination of the dispute precludes relitigation of the same issue in a different action between the same parties. Gabriel, 2012-0797 at 5, 112 So.3d at 285 citing Chaisson v. Central Crane Serv., 2010-0112, pp. 5-6 (La.App. 1 Cir. 7/29/10), 44 So.3d 883, 886-87; also citing Mandalay Oil & Gas, L.L.C. v. Energy Dev. Corp., 2001-0993, p. 9 (La.App. 1 Cir. 8/4/04), 880 So.2d 129, 135-36, writ denied, 2004-2426 (La.1/28/05), 893 So.2d 72.

|1(;In general, the doctrine of res judicata, as set forth in La. R.S. 13:4231, bars a subsequent action when all of the following elements are satisfied in a prior action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053. Herein, elements four and five do not appear to be satisfied. Suit No. 574,462 was filed on January 21, 2009, and relates to a demand for payment made upon Pointe Coupee Parish School Board on October 22, 2008, as a result of the resignation and retirement of employees in 2007 and 2008. The instant suit by Pointe Coupee captioned as Suit No. 613,906, by contrast, was filed on •July 20, 2012, and relates to a demand for payment made on April 20, 2012, as a result of the retirement, resignation, and termination of employees in 2010 and 2011. To the extent that the positions at issue in the current litigation were not even privatized until after Suit No. 574,462 was filed and the demand for payment giving rise to the current suit was issued over two years after the Consent Permanent Injunction was issued in Suit No. 574,462, it is clear that the causes of action raised by the Pointe Coupee Parish School Board herein did not exist at the time judgment was issued in the first suit. Additionally, since Suit No. 574,462 was in response to the October 22, 2008 demand letter and Suit No. 613,906 was in response to the April 20, 2012 demand letter, it cannot be said that the two cases arise out of the same transaction or occurrence under the traditional doctrine of res judicata.

We also dismiss the school board’s arguments of issue preclusion under La. R.S. 13:4231(3). There is no indication in the Consent Permanent Injunction that the court ever considered the merits of the constitutional and other arguments raised by the Pointe Coupee Parish School Board, and no ruling was made as to those issues. The consent judgment in Suit No. 574,462 was limited and only enjoined LSERS for the unfunded accrued liability sought in the October 22, 2008 demand letter. The [ ¶ injunction made no mention of future demands. We, therefore, do not find any merit to the school board’s claims of res judicata or collateral estoppel. The trial court did not err in overruling the exception of res judicata.

Injunctive Relief

Lastly, the school boards argue that the trial court committed legal error in denying their request for injunc-tive relief Louisiana Code of Civil Procedure Article 3601(A) provides that “[a]n injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant or in other cases specifically provided by law.” Alternatively, a petitioner is entitled to in-junctive relief without the requisite showing of irreparable injury when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right. Jurisich v. Jenkins, 99-0076, p. 4 (La.10/19/99), 749 So.2d 597, 599 citing South Cent Bell Tel. Co. v. La. Pub. Serv. Comm’n, 555 So.2d 1370 (La.1990). Once a plaintiff has made a prima facie showing that the conduct to be enjoined is reprobated by law, the petitioner is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists. Jurisich, 99-0076 at 4, 749 So.2d at 599-600 citing Ouachita Parish Police Jury v. Am., Waste & Pollution Control, 606 So.2d 1341 (La.App. 2 Cir.), writ denied, 609 So.2d 234 (La.1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 249 (1993).

For reasons previously discussed herein, we find that the school boards have failed to make a prima facie showing that La. R.S. 11:1202 violates any provision of the Louisiana Constitution. Also, we find that the use of MFP funds for retirement is consistent with the purpose of and is for the benefit of the parish school boards. Thus, we do not find that the trial court committed legal error in finding that the school |1sboards failed to prove irreparable injury by a preponderance of the evidence. Accordingly, the school boards are not entitled to injunctive relief.

CONCLUSION

Based on our review of the record and the arguments presented by the school boards on appeal, we find that the trial court did not err in denying the school boards’ requests for declaratory and in-junctive relief and in overruling the exception of res judicata raised by the Pointe Coupee Parish School Board. Accordingly, we affirm the judgment of the trial court dated February 25, 2013. Costs of this appeal in the amount of $3,888.50 are assessed against the plaintiffs-appellants, the Pointe Coupee Parish School Board, the Evangeline Parish School Board, and the St. James Parish School Board.

AFFIRMED.

      .Louisiana Revised Statutes 11:1195.1 and 1195.2 provide guidelines relative to LSERS and provide, in pertinent part, as follows:
      § 1195.1. Unfunded accrued liability; payment by employer
      A. Notwithstanding any other provision of law, if an employer terminates a group of employees belonging to this system by eliminating the positions held by those employees through privatizing, outsourcing, contracting the service with a private employer, or any other means, then the employer shall remit that portion of the unfunded accrued liability existing on June thirtieth, immediately prior to the date of termination attributable to the employees being terminated.

      § 1195.2. Unfunded accrued liability; payment by employer; any position
      A. Notwithstanding any other provision of law, if an employer eliminates any position through privatizing, outsourcing, contracting the service with a private employer, or any other means, then the employer shall remit that portion of the unfunded accrued liability existing on June thirtieth, immediately prior to the date of termination of the employee in that position, which is attributable to that position.

      . We noted inconsistencies in the record. The petition states $310,856.00, while the briefs state $301,856.00.

      . Louisiana Revised Statute 11:1202 provides, in relevant part:
      A. (1) Should any parish or city school board or other employer refuse to transmit either employer's contributions or members’ contributions by the due date, the payment of such contributions shall be delinquent.
      (2) Upon a certification to the state treasurer or the Department of Education by the board of trustees of the School Employees' Retirement System of Louisiana that a payment is delinquent, the state treasurer or the Department of Education shall deduct the amount thereof from any monies then available for distribution to or for the benefit of that parish or city school board ... and shall transmit said amount directly to the board of trustees.

      . Louisiana Revised Statute 22:1419, dealing with assessments against insurers, was redes-ignated as La. R.S. 22:1476 by Acts 2008, No. 415, § 1, effective January 1, 2009.

      . We are aware that the Louisiana Supreme Court has held that the diversion of MFP funds from public schools to nonpublic schools violates La. Const. Art. 8, § 13(B). See La. Fed.'n of Teachers v. State, 2013-0120 (La.5/7/13), 118 So.3d 1033. However, we distinguish the holding in La. Fed. ’n of Teachers from the facts herein, where the MFP funds are being used for the purposes encompassed by the MFP.

      . We note that even if we view the school boards’ arguments that LSERS misapplied La. R.S. 11:1195.1 and La. R.S. 11:1195.2 as a mixed question of law and fact, the issue is still subject to a manifest error standard of review. See Dufrene v. Morgan Equipment Rental, Inc., 98-1582, p. 8 (La.App. 1 Cir. 9/24/99), 754 So.2d 1000, 1005.

      .The school boards contend that the positions at issue in this litigation were eliminated as follows:

      . The following withdrawals were made by retiring employees: (1) $10,282.33 by Diedre Clark on July 15, 2011; (2) $23,000.15 by Brenda Frank on November 10, 2010; (3) $5,569.16 by Morris Bowser on December 15, 2010; and (4) $10,191.57 by Jerome Bradford on December 15, 2010.

      . Although the school boards argued that they could suffer potential financial hardship, they failed to present any real substantive evidence of irreparable harm in support of the claim for injunctive relief.


author: ROLAND L. BELSOME, Judge.

text:
    DILLARD UNIVERSITY v. Tim BARFIELD, Secretary Department of Revenue State of Louisiana.
    No. 2013-CA-1336.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2014.

      Darren A. Patín, Hailey McNamara Hall Larmann & Papale, Metairie, LA, for PlaintiffAppellee.
    Johnette L. Martin, Donald M. Bowman, Antonio Ferachi, Adrienne D. Quille, Jason M. DeCuir, Kimberly Doley, Brandea Av-erett, Department of Revenue, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge SANDRA CABRINA JENKINS).
   ROLAND L. BELSOME, Judge.

hThe Louisiana Department of Revenue (LDR) seeks this Court’s review of the district court’s finding that the petition filed by Dillard University with the Louisiana Board of Tax Appeals (Board) was timely.

Dillard is a non-profit organization operating as an institution of higher learning in the State of Louisiana. Subsequent to Dillard contracting for infrastructure improvements, it sought a refund of overpayment from the LDR. Shortly thereafter the LDR sent a letter dated August 19, 2011, denying the request and informing Dillard that it had the “right to appeal ... within 60 days from the date of this letter.”

Dillard filed a petition for review of the denial with the Louisiana Board of Tax Appeals (Board) on October 19, 2011. LDR answered the petition by filing exceptions of prescription, no cause of action, and lack of subject matter jurisdiction. LDR’s basis for the exceptions was that the filing of the petition for review fell outside of the 60 day time delay provided for by La. R.S. 47:1625:

If the collector fails to act on a properly filed claim for refund or credit within one year from the date received by him or if the collector denies the claim in whole or in part, the taxpayer claiming such refund or credit may appeal to the board of tax appeals for a hearing on the claim filed. No appeal \ 9may be ñled before the expiration of one year from the date of filing such claim unless the collector renders a decision thereon within that time, nor after the expiration of sixty days from the date of mailing by registered mail by the collector to the taxpayer of a notice of the disallowance of the part of the claim to which such appeal relates.
Any consideration, reconsideration, or action by the collector with respect to such claim following the mailing of a notice by registered mail of disallowance shall not operate to extend the period within which an appeal may be taken. La. R.S. 47:1625 (emphasis added).

After a hearing on the exceptions, the Board granted the exception of prescription finding that Dillard’s petition was untimely. In doing so, the Board determined that: 1) even though the statute clearly provides that prescription commences from the date of mailing by registered mail, the period could not commence on a date prior to the date that appeared on the letter; and 2) La. C.C.P. art. 5059 governs the calculation of time delays for La. R.S. 47:1625.

Dillard appealed the granting of the exception of prescription to the district court. Essentially, the district court made the same findings as the Board, but ultimately concluded that using the date of the letter and applying La. C.C.P. art. 5059 to the computation of the 60 days rendered the petition timely.

The LDR filed this appeal and an exception of peremption seeking reversal of the district court’s ruling. On appeal, the LDR argues that the district court erred in applying La. C.C.P. art. 5059 to calculate the 60 day period provided for in La. R.S. 47:1625. Alternatively, the LDR claims that even if the district court was correct in the use of article 5059, Dillard’s petition was still untimely.

The application of statutes is a question of law. First Nat. Bank, USA v. DDS Const., LLC, 11-1418, p. 10 (La.1/24/12), 91 So.3d 944, 952. This Court reviews questions of law de novo. Id.

| ¡jFirst, the language of La. R.S. 47:1625 is clear; the taxpayer has a 60 day period in which to file an appeal. The issue before this Court is how the 60 days is to be computed. The Board and the district court looked to article 5059 to determine computation. Article 5059 reads:

In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.

A half-holiday is considered as a legal holiday. A legal holiday is to be included in the computation of a period of time allowed or prescribed, except when:

(1) It is expressly excluded;
(2) It would otherwise be the last day of the period; or
(3) The period is less than seven days.

La.C.C.P. art. 5059.

In further support of using article 5059, the Board has a manual providing “Rules of Procedure and Practice” which clarifies that the computation of delays “shall be as provided in LSA-C.C.P. Article 5059.” Therefore, we find no error in the district court’s application of article 5059.

Article 5059 dictates that the date that triggers the delay period is not counted. In the instant matter, the statutory language in La. R.S. 47:1625 provides that the 60 days runs “from date of mailing by registered mail.” Article 5059 read in conjunction with the revised statute indicates that the commencement of the time delays begins the day after the “date of the ... event.” The “event” under La. R.S. 47:1625 is the mailing by registered mail.

However, to further complicate this matter, the LDR had a practice of post-dating the denial letter. Thus, the mailing date would be before the asserted Udrafting date of the letter. An important purpose of the denial letter is to inform the taxpayer of the time delays applicable to filing an appeal. The Board and the district court found that post-dating the denial letter and informing Dillard that it had 60 days from the date of the letter to file an appeal precluded the LDR from asserting the statutory language of “sixty days from the date of mailing” to determine the prescriptive period.

In Louisiana, taxing statutes are strictly construed against the taxing authority. Bridges v. Hana Corp., 04-0754, p. 4, (La.App. 4 Cir. 10/27/04), 888 So.2d 944, 946. The application and interpretation of statutes must be consistent with logic and the presumed fair purpose and intention of the legislature in passing it. Caldwell v. Janssen Pharmaceutical, Inc., 12-2447, 12-2466, 2014 WL 341038, at 6, (La.1/28/14) (citing McLane Southern, Inc. v. Bridges, 11-1141, pp. 5-6 (La.1/24/12) 84 So.3d 479, 483; In re Succession of Boyter, 99-0761, p. 9, 756 So.2d 1122, 1129). In this case, the purpose and intent of La. R.S. 47:1625 is to give notice to the taxpayer of the time delays allowed to appeal a denial of refund. Any action of the LDR that would lead to confusion regarding the commencement of the delay period should be construed against the LDR. We find the reasoning of the district court in that respect to be consistent with the logic and fair purpose of the statute.

Therefore, the date of the letter, August 19, 2011, is when the delay period commenced. Pursuant to article 5059, August 20, 2011, was day 1 and October 18, 2011, was day 60. Therefore, Dillard’s petition filed on October 19, 2011, was untimely.

|sThe district court’s determination that the petition for review was timely is reversed. Accordingly, the Department of Revenue’s Exception of Peremption is moot.

REVERSED.

      . The request submitted by Dillard sought a refund of $80,374.81 for taxes paid by the contractor.

      . The LDR maintains that it no longer adheres to that practice.


text:
    Brian CHAISSON v. LOUISIANA ROCK MONSTERS, LLC.
    No. 2013-CA-1423.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2014.

      Laurie W. Maschek, Laurie W. Mas-chek, Attorney at Law, LLC, Slidell, Louisiana, for PlaintiflyAppellant.
    Donald C. Douglas, Jr., Juge, Napolita-no, Guilbeau,. Ruli & Frieman, Metairie, Louisiana, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   JAMES F. McKAY, III, Chief Judge.

Bln this workers’ compensation matter, the claimant, Brian Chaisson, appeals the judgment of the Office of Workers’ Compensation (OWC) finding that he was an independent contractor for purposes of the Louisiana Workers’ Compensation Act and the dismissal of his claim against the defendant, Louisiana Rock Monsters, LLC. We affirm.

FACTS AND PROCEDURAL HISTORY

On January 11, 2012, Brian Chaisson was injured in a motor vehicle accident on Chef Menteur Highway in New Orleans. At the time of the accident, Mr. Chaisson was driving a truck owned by Louisiana Rock Monsters. Louisiana Rock Monsters is in the concrete crushing business. It sells and delivers aggregate of sand, rock and other things. Mr. Chaisson had been hired by Louisiana Rock Monsters to pick up and haul debris from construction sites to dump sites.

Mr. Chaisson made a worker’s compensation claim seeking medical and indemnity benefits. Louisiana Rock Monsters paid some of Mr. Chaisson’s medical bills. However, no indemnity benefits were ever paid. Louisiana Rock | ¡¡.Monsters based its denial of Mr. Chaisson’s claim on its position that he was an independent contractor/truck driver. Thereafter, Mr. Chais-son filed a disputed claim with the OWC.

At trial, Mr. Chaisson testified that he drove a tractor trailer for Louisiana Rock Monsters and that he was paid on per load basis. He also testified that he had no written schedule, and would just go in as he wanted to work. Mr. Chaisson conceded that he did not load the trailer, nor did he do any mechanical work on the tractor trailer; he simply drove from the yard to the job site. He further admitted at trial that he indicated in his deposition that he was an independent contractor; he explained that he was provided an IRS Form 1099 and that no taxes were withheld from his pay by Louisiana Rock Monsters. It was also established that no service contract existed between Louisiana Rock Monsters and Mr. Chaisson.

Following trial, the Office of Workers’ Compensation judge found that Mr. Chais-son was an independent contractor. However, the judge also found that Mr. Chais-son was engaged in manual labor at the time of the accident, so that he would come within the manual labor exception of La. R.S. 23:1021(7), thereby subjecting his claims to the jurisdiction of the Louisiana Workers’ Compensation Act. Louisiana Rock Monsters filed a motion for new trial arguing that driving is specifically excluded from the definition of manual labor in the Workers’ Compensation Act. The OWC judge agreed and therefore granted Louisiana Rock Monsters’ motion for new trial and dismissed the claims of Mr. Chaisson. It is from this judgment that Mr. Chaisson now appeals.

|.,DISCUSSION

On appeal, Mr. Chaisson contends that the OWC judge committed manifest error when she ruled that he was an independent contractor for purposes of the Louisiana Workers’ Compensation Act.

Workers’ Compensation cases are subject to the manifest error standard of review. Poissenot v. St. Bernard Parish Sheriffs Office, 09-2793 (La.1/9/11), 56 So.3d 170, 174. In applying the manifest error-clearly wrong standard of review, the appellate court must not determine whether the trier of fact was right or wrong, but only whether the factfinder’s conclusion was a reasonable one. Id. at 174; Stobart v. State, 617 So.2d 880, 882 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556.

The “distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis.” Tate v. Progressive Sec. Ins. Co., 08-0950 (La.App. 4 Cir. 1/28/09), 4 So.3d 915, 916. The Louisiana Supreme Court has developed the following factors to help determine whether an individual is an employee or an independent contractor:

(1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ non-exclusive 14means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) there is a specific price for the overall undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.

Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972).

The “essence of the employer-employee relationship is the right to control.” Hillman v. Comm-Care, Inc., 01-1140, p. 8 (La.01/15/02), 805 So.2d 1157, 1162. The primary factors evidencing the right to control are “1) selection and engagement, 2) payment of wages, 8) power of dismissal and 4) power of control.” Id. None of the factors alone is determinative. Rather, the court must consider the totality of the circumstances. See Harrington v. Hebert, 00-1548 (La.App 3 Cir. 5/23/01), 789 So.2d 649, 653; Theodore v. Krazy Korner, 12-0173 (La.App. 4 Cir. 5/23/12), 95 So.3d 572, 574-575.

In the instant case, it is undisputed that Mr. Chaisson was hired each day to perform a specific project for an agreed upon price. Louisiana Rock Monsters exercised no control over how or when Mr. Chaisson performed the work, nor did it direct or supervise Mr. Chaisson’s work. Mr. Chaisson used Louisiana Rock Monsters’ truck and supplies. Louisiana Rock Monsters ensured that all drivers complied with the Department of Labor’s mandatory pre-trip inspections on its trucks. Louisiana Rock Monsters also maintained the trucks. Although no contract existed between Mr. Chaisson and Louisiana Rock Monsters, he was paid using a 1099 form and no employment or other taxes were withheld from his pay. Based on the totality of the circumstances, the OWC judge found that Mr. Chaisson was an independent contractor. We find no error in that finding.

| .¡Initially, the OWC judge found that although Mr. Chaisson was an independent contractor, the manual labor exception should apply. However, the judge granted Louisiana Rock Monsters’ motion for new trial and reversed its finding on this issue.

La. R.S. 23:1021(7) provides:

(7) “Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.

According to this statute, a truck driver such as Mr. Chaisson would not fit under the manual labor exception and would not be covered by the Workers’ Compensation Act. A number of cases have applied this statute and held that truck drivers do not fall under the definition of performing “manual labor.” See Guillory v. Overland Express Company, 01-419 (La.App. 3 Cir. 10/03/01), 796 So.2d 887; Coleman v. Landstar Ranger, 03-1943 (La.App. 1 Cir. 6/25/04), 886 So.2d 472. Therefore, we find nothing manifestly erroneous in the trial court’s finding that Mr. Chaisson did not fall under the manual labor exception.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the Office of Workers’ Compensation.

AFFIRMED.