author: KYZAR, Judge.

text:
    FRUGE AQUAFARMS, INC. v. Robert R. HICKS, Jr.
    16-1001
    Court of Appeal of Louisiana, Third Circuit.
    05/03/2017

      Michael H. Landry, Landry, Landry & Landry, P. O. Box 1368, Crowley, LA 70527-1368, (337) 788-1850, COUNSEL FOR PLAINTIFF/APPELLANT: Fruge Aquafarms, Inc.
    Stephen A. Stefanski, Edwards, Stefan-ski & Zaunbrecher, L.L.P., P. O. Drawer 730, Crowley, LA 70527-0730, (337) 783-7000, COUNSEL FOR DEFENDANT/APPELLEE: Robert R. Hicks, Jr.
    Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain , Judges

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   KYZAR, Judge.

h Fruge Aquafarms, Inc. appeals from a judgment of the Fifteenth Judicial District Court for Acadia Parish denying its request for specific performance of an agricultural lease contract and for damages, including damages for unjust enrichment, following the termination of the lease. For the reasons assigned, we reverse the judgment of the trial court and remand for proceedings consistent herewith.

FACTS AND PROCEDURAL HISTORY

This dispute arises from an agricultural lease between the lessee, Fruge Aqua-farms, Inc. (hereinafter Fruge), and the landowner, Robert Hicks, Jr. (hereinafter Hicks), executed in writing in June of 2010. The lease was referenced in Fruge’s original petition and attached thereto. The lease involved six separately described tracts of land and was for the specific purpose of permitting Fruge to “use and occupy said premises for agricultural and aquacultural purposes only.” The lease further provided Fruge the “authority to plant said premises in rice, soybeans, and wheat, and to farm crawfish, only during the term of this lease in keeping with the farming practices for the cultivation of crops in the locality of said property.” The term of the lease as specifically stated therein “is five (5) years, commencing on January 1, 2010, and ending at midnight on January 1, 2015.” As to rent, the lease provided that Fruge would pay “Twenty-Five (25%) Percent of the gross revenue derived from the production of rice; and Fifteen (15%) Percent of the gross revenue derived from the production of soybeans” and further provided that Fruge would pay “FORTY AND NO/100 ($40.00) DOLLARS per acre per year for each acre on which crawfish operations are conducted.” Further, Fruge agreed to “[r]emove any of its crops from the leased premises prior to the expiration of this lease, it being agreed between the parties [2that upon Lessee’s failure to do so, title thereto shall thereupon vest in Lessor and Lessee shall forfeit any rights therein.” Finally, and of particular importance to this litigation, Section 10 of the contract entitled “CONDITION OF SURRENDER” provided as follows:

Lessee agrees that it will peaceably surrender the leased premises at the end of the term hereby granted in the same good order and condition as the premises are at the commencement thereof.
Lessor agrees that if the Lessor terminates the lease for any reason, that the Lessee shall have until the following July of the successive year to complete the harvest of all crawfish.

As alleged in Fruge’s petition, prior to the termination of the lease by its express terms, Hicks provided written notice to Fruge by letter dated October 15, 2014, that he did not intend to renew the lease upon the expiration date. Thereafter, Fruge filed a “Petition for Specific Performance” with the trial court on December 23, 2014. In the petition, Fruge asserted that he:

[D]esires to demand specific performance of the defendant’s promise and contractual obligation to allow plaintiff to remain on the defendant’s land on which a crawfish crop has been prepared and to remain undisturbed in the use of equipment necessary to complete that harvest by July, 2015, all as specifically set forth in the agricultural lease made the subject of this litigation.

Further, Fruge pled:

[A]lternative[ly] and only in the event that this Honorable Court finds that the aforementioned agricultural lease does not allow the plaintiff to remain on the tracts of land on which a crawfish crop has already been prepared, plaintiff alleges that it is entitled to an award of damages concerning its preparation of a crawfish crop, all such damages to be proven at the time of trial.

The matter first came before the trial court for a hearing on January 5, 2015. On that date, according to the minutes of court, the matter was heard on a “Petition for Injunction.” According to the minutes, following the arguments of counsel for both parties, the trial court denied the injunction. A judgment was signed by the court on February 9, 2015. The judgment states as follows:

13After reviewing the memoranda of the parties and hearing the argument of counsel, the Court denied plaintiffs Petition for Injunction, dismissing plaintiffs claims for injunctive relief against the defendant.
IT IS ORDERED, ADJUDGED AND DECREED that the Petition for Injunction is DENIED, dismissing plaintiffs claim for injunctive relief against the defendant.

Notice of judgment was mailed on March 3, 2015. Prior thereto, an answer and reconventional demand had been filed by counsel for Hicks, denying the original claims for specific performance under the contract. Fruge then amended and supplemented its petition with leave of court, seeking damages against Hicks for the value of its efforts in preparing the craw-fish crop that allegedly went unharvested prior to July 1, 2015, as it claimed was its right pursuant to the lease, and for unjust enrichment. Hicks answered and reconvened seeking damages for unpaid rent pursuant to the lease.

At the trial date on June 27, 2016, substituted counsel appeared for Fruge, while Hicks was represented by his original attorneys. No evidence was presented by either side. After discussion in open court and arguments of counsel, the trial court ruled as follows:

THE COURT:—I’m not. I mean, I’ve—Mr. Landry, I’ve heard this argument. And it’s not unjust enrichment. It’s not unjust enrichment when somebody, who’s involved in a lease, knows the term that the lease ends. Whether he believed it not to end or not, is not a legal binding belief. I mean, his belief doesn’t sway the Court that it’s a legal belief, and the fact that he put money into it in 2014 to continue, not to mention my guess is Mr. Fruge made quite a bit of money for ten (10) years on that property that he knew was no longer going to be renewed for whatever reason it was.
And so I’m going to deny your request. And so I guess we’ll go forward now with the reconventional demand. I’m going to deny your request with regards to what I believe you’re asking is specific performance on an unjust enrichment claim, which I believe has no legal authority.
MR. LANDRY: Well, it’s two (2) separate. It’s an argument for specific performance and, in the alternative, unjust enrichment.
| ¿THE COURT: Okay. So specific performance is denied in my previous claim. My previous judgment denied specific performance. I ruled that your client had a lease that terminated on January 1, and knew and should have known that it terminated on January— So there is no specific performance that travels through that contract. I denied it in the TRO.
And now you come back, and you come back because you’re coming now— your client comes back having been determined by the Court not to have specific performance, that the lease terminated as per the terms of the lease. Now, you seek to suggest to me that he’s entitled to an unjust enrichment because I didn’t agree his lease should go forward. And I think it falls on that, and I find no legal basis for that claim.
So I deny both of those claims at this time....
MR. STEFANSKI: Your Honor, I’ve talked to my client. The dispute was between twenty-three and twenty-five thousand as to his share of the revenue. We would agree to accept twenty-three, which is what Mr. Fruge, in his estimation, would be the amount, the twenty-five percent (25%) of the gross rice crop. So we would submit to the Court by way of stipulation that the reconventional demand is for the amount of twenty-three thousand dollars ($23,000), which would be twenty-five percent (25%) of the 2014 rice crop that was harvested off of Mr. Hick’s propei’ty.
MR. LANDRY: I’m sorry. You said twenty-three thousand dollars ($23,000)?
MR. STEFANSKI: Yes.
MR. LANDRY: I mean, I think that is accurate.
THE COURT: Okay. I mean, is there some defense to the fact that—I mean, I don’t—I mean, the money was owed, I assume, by contract and by agreement. The Court would grant the motion. I’ll sign a judgment in accordance therewith.
MR. STEFANSKI: Thank you, Your Honor.
THE COURT: Okay.

Formal judgment was signed on July 11, 2016. The judgment provides as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the petition filed herein, together with the supplemental and amending | ¿petition, be and is hereby dismissed, with prejudice, dismissing all claims made by Fruge Aquafarms, Inc., with prejudice;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Robert R. Hicks, Jr., defendant and as petitioner in reconvention, is hereby awarded TWENTY-THREE THOUSAND AND NO/100 DOLLARS ($23,-000.00) over and against defendant in reconvention, Fruge Aquafarms, Inc. as full satisfaction of the crop revenue due and owing to Robert R. Hicks, Jr. for the 2014 rice crop pursuant to the provisions of the lease agreement which existed between the parties.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that petitioner, Fruge Aquafarms, Inc. pay all costs of these proceedings.
This appeal followed.

ASSIGNMENT OF ERROR

Fruge urges only one assignment-of error on appeal. It asserts that “the [tjrial court committed reversible error by refusing to allow Petitioner/Appellant to call any witnesses; put on or admit any evidence; or otherwise present a case in chief at the trial on the merits of the above captioned matter.”

DISCUSSION

In its sole assignment of error, Fruge argues that the trial court erred in refusing to allow it to call any witnesses, put on any evidence, or otherwise present a case in chief at the trial on the merits, referring to the hearing held June on 27, 2016. Fruge did not appeal that portion of the judgment in favor of Hicks for unpaid rent or assign any error in connection therewith as the parties reached a stipulation as to that issue. Therefore, that portion of the judgment will remain undisturbed. McMaster v. Progressive Sec. Ins. Co., 14-155 (La.App. 4 Cir. 10/29/14), 152 So.3d 979, writ denied, 14-2641 (La. 3/6/15), 160 So.3d 1289.

The history and record of this case is somewhat confusing, although the facts are relatively uncomplicated. The litigation was instituted by a pleading labeled as a petition for specific performance, when the suit was in actuality a | (¡declaratory judgment action seeking a determination of the parties’ rights pursuant to the June 2010 lease contract. The nature of a pleading is determined by averments and purpose thereof rather than the label or name which the pleader gives to his pleading. Jefferson v. Jefferson, 145 So.2d 356 (La. App. 3 Cir. 1962), affirmed by 246 La. 1, 163 So.2d 74 (1964). A hearing was held on January 5, 2015, which was stated to be a hearing on a request for a temporary restraining order pursuant to a subsequent petition for injunction. However, the record is devoid of any such petition for an injunction and corresponding TRO, The record is further devoid of any order setting a hearing for such. The record is also devoid of a transcript of the hearing, and as such, there is no record of what evidence, if any, was produced by any party or considered by the trial court at the hearing on January 5,2015. Nor was there any evidence formally introduced at the hearing on June 27, 2016, the date set for the declaratory judgment action and the incidental claims for damages.

Louisiana Code of Civil Procedure Article 1871 provides for declaratory judgments:

Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.

Louisiana Code of Civil Procedure Article 1879 provides:

When a proceeding under Articles 1871 through 1883 involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

17A suit for' declaratory judgment is an ordinary, not a summary, proceeding. C.O.S.T. v. St. Landry Parish Sch. Bd., 528 So.2d 1048 (La.App. 3 Cir. 1988). The procedure for a trial in an ordinary proceeding is set out in La.Code -Civ.P. art. 1631, et seq. In particular, La.Code.Civ.P. art 1632 provides for the presentation of evidence by the parties, plaintiff and defendant. In the instant case, there was no evidence offered by either side as there was no trial held.

Appellate courts are courts of record and may not reyiew evidence that is not in the appellate record, or receive new evidence. La.Code Civ.P. art. 2164; Denoux v. Vessel Mgmt. Servs. Inc., 07-2143 (La. 5/21/08), 983 So.2d 84; Bullock, v. Commercial Union Ins. Co., 397 So.2d 13 (La.App. 3 Cir. 1981). In the current case, it appears that the trial court relied upon the written lease agreement between the parties when rendering its judgment denying the injunction request and in denying Fruge’s demands at the June 27, 2016 hearing for specific performance and for damages. The lease was attached to Fruge’s original petition for declaratory judgment filed on December 23, 2014 and was attached as an exhibit in. Hicks’s pleadings. However, there- is no showing that the lease was ever formally introduced into the record as evidence, either during the January 5, 2015 or June 27, 2016 hearing. Evidence filed into the record, but not introduced formally at trial, may not be considered by the appellate court. David v. Cajun Painting, Inc., 92-722 (La.App. 5 Cir. 1/25/94), 631 So.2d 1176, writs denied, 94-972, 94-994 (La. 6/3/94), 637 So.2d 508; Carmouche v. Dep’t of Pub. Safety & Corrs., 618 So.2d 1220 (La.App. 5 Cir. 1993).

In this case, there was no evidence shown to have been offered by any party at either of the hearings on January 5, 2015 or June 27, 2016. As there is no record of the petition for injunction purportedly heard on January 5, 2015 and no transcript of the hearing to establish what evidence, if any, was considered, we [ fimust treat that proceeding as having no consequence. Further, there is no indication from the record as to what evidence was considered by the trial court in regards to its judgment rendered on June 27, 2016. Evidence not properly and officially offered and introduced into evidence cannot be considered, even if it is physically placed in the record. Meaux v. Miller, 08-712 (La.App. 3 Cir. 12/10/08), 999 So.2d 281; Touzet v. Mobley, 612 So.2d 890 (La. App. 5 Cir.), writ denied, 614 So.2d 1263 (La.1993).

In Frierson v. Sheridan, 593 So.2d 655 (La.App. 1 Cir. 1991), the court was faced with a similar declaratory judgment action concerning insurance coverage pursuant to a liability policy. The court noted that neither party introduced any evidence at the hearing other than the insurance policy itself. In reversing the trial court’s judgment, the court succinctly set forth the applicable law as follows:

There can be no legal finding based on a fact finding where no evidence was introduced. There must be facts before the court upon which to base a policy interpretation. See for example, Watts v. Aetna Casualty and Surety Company, 574 So.2d 364 (La.App. 1st Cir.), writ denied, 568 So.2d 1089 (La.1990). The plaintiffs failed to submit any evidence which could have resulted in a ruling on the declaratory judgment. It is axiomatic that in a tort action the burden of proving damages is on the plaintiff. Broussard v. Continental Casualty Company, 421 So.2d 341 (La.App. 1st Cir.), writ, denied, 423 So.2d 1165 (La.1982). One who asserts a fact must carry the burden of proof of that fact; such fact must be established by a reasonable preponderance of the evidence. Meyer v. State, Dept. of Public Safety License Control and Driver Improvement Division, 312 So.2d 289 (La.1975). A plaintiff must prove his case before he can recover, and in order to prove his case, it is necessary that a certain amount of evidence be presented. Tri-City Finance Plan, Inc. v. Barbier, 207 So.2d 269 (La.App. 1st Cir.1968).
No evidence was presented to the trial court' other than the insurance policy. No testimony was presented. The insurance policy cannot be interpreted in a vacuum or standing alone. It must be connected to, identified with or related in some way to a factual foundation. Of necessity, the trial court made a factual finding which it applied to its interpretation of the policy. This factual finding was apparently based on briefs rather than evidence. There is no factual record presented to this court for review.

\M at 657.

The instant case is also analogous to Unified Teachers Credit Plan, Inc. v. Walker, 491 So.2d 808 (La.App. 3 Cir. 1986), wherein this court held that the record, which contained no evidence formally introduced and admitted into the record at the trial of the garnishor-plain-tiffs contradictory motion, did not support the garnishment judgment that was rendered. Finding no evidence to support the judgment, this court remanded the case for a rehearing, finding as follows:

From our review of the record, we do not find that any evidence or proof was formally introduced and admitted at the trial of the contradictory motion. Therefore, like the court in Johnson v. Fulwood, 398 So.2d 1151 (La. App. 4th Cir. 1981), we conclude that the record does not support the judgment that was rendered on the rule and, in the interest of justice, remand the case to the district court to permit both parties to adduce evidence in support of their respective positions. LSA—R.S. 13:3923 and LSA—C.C.P. Art. 2164.
Id. at 809.

In Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La.App. 5 Cir. 1/26/99), 726 So.2d 474, the court also set forth the law applicable to the present case. The court, in reviewing a court judgment based solely on documents attached to pleadings, stated as follows:

In the present case, no evidence was introduced at trial by either party. In formulating his final judgment, the trial judge reviewed certain documents attached to the plaintiffs rule to show cause which had not been introduced as evidence in accordance with LSA—R.S. 13:3723. Therefore, the ruling of the trial court is improper as there was not a proper foundation for the judgment.
The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. LSA— C.C.P. art. 2164 (West 1998). Evidence filed into the record, but not introduced formally at trial, may not be considered by the appellate court. David v. Cajun Painting, Inc., 92-722 (La.App. 5th Cir. 1/25/94), 631 So.2d 1176; Carmouche v. Department of Public Safety and Corrections, 618 So.2d 1220 (La.App. 5th Cir.1993). Evidence not properly and officially offered and introduced into evidence cannot be considered, even if it is physically placed in the record. Touzet v. Mobley, 612 So.2d 890 (La.App. 5th Cir. 1993).

\wId. at 476.

In the present case, it appears that no evidence was properly introduced at trial by either party at either hearing. In formulating his final judgment, the trial judge undoubtedly relied on the lease document attached to Fruge’s petition in deciding to deny its claims for relief. However, the lease had not been formally introduced as evidence. Indeed, there was no evidence at all, as there was no trial, only arguments of counsel. As such, there was no proper foundation for the judgment of the trial court.

Hicks argues in brief that there was no objection to the trial court’s decision in not permitting any evidence at the trial, thus precluding appellate review of the issue. However, we find that line of cases inapplicable to the instant situation. Although it is clear that a party cannot appeal a ruling denying or granting the admissibility of evidence at trial without objecting thereto or offering by proffer, because there was no trial in this matter, there could not have been any evidentiary ruling by the trial court. There was no trial at all, only the discussion of the issues by the trial court and counsel, along with arguments of counsel. As provided above, La.Code Civ.P. art. 1632 sets forth the normal order of civil trials in Louisiana. The trial never commenced in this case, as the trial court rendered judgment without any evidence being formally introduced into the record. Therefore, the ruling of the trial court is without proper foundation, and the judgment is, hereby, reversed as to the claims of Fruge. As there was no appeal as to that portion of the judgment below in favor of Hicks and against Fruge for unpaid rent, that portion of the judgment remains undisturbed.

| ^ DISPOSITION

Based upon the foregoing, the judgment of the trial court herein is vacated, and the matter is remanded to the trial court for proceedings consistent herewith. Costs of this appeal are to be divided equally between the parties.

REVERSED IN PART AND REMANDED.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Deborah BEEBE, Plaintiff-Appellee v. Hollis Charles LARCHE, Defendant-Appellant
    No. 51,365-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017.
    Rehearing Denied April 25, 2017

      ANTHONY J. BRUSCATO, Counsel for Appellant
    BARRY WADE DOWD, Counsel for Appellee
    Before MOORE, LOLLEY, and COX, JJ.
   LOLLEY, J.

11 Paul Eikert appeals an order of the Fourth Judicial District, Parish of More-house, State of Louisiana. The trial court ordered the Morehouse Parish Clerk of Court to pay all of the cash bond posted by Eikert, up to $67,796.01, plus all court costs, to Deborah Beebe, plaintiff in these proceedings. For the following reasons, we affirm the trial court’s order and instruct the Clerk of Court for the Fourth Judicial District, Parish of Morehouse to pay Beebe the funds as ordered by the trial court.

Facts

This current appeal is the continuation of litigation involving Beebe, her employer, Eikert, and Hollis Larche. In this ongoing legal fight, the detailed facts are discussed in the previous rendition of the case, Beebe v. Larche, 50,267 (La.App. 2 Cir. 11/18/15), 184 So.3d 729, writ denied, 2016-0249 (La. 04/04/16), 190 So.3d 1207 (“Beebe I”). In brief, Beebe sued Larche for a personal injury she sustained on the premises owned by Larche. He, in turn, filed an answer and third party demand against Eikert, his lessee and Beebe’s employer, claiming indemnity under the terms of the lease agreement between Larche and Ei-kert. In March 2007, Larche obtained a judgment against Eikert, which determined that Eikert did indeed agree to indemnify Larche under the terms of their agreement (the “March 2007 judgment”). That judgment did not set forth a specific amount due, but stated Eikert would be responsible “for any and all damages and court costs that ... Larche may incur or sustain in this action by and from ... 12Beebe, and also ordering ... Larche harmless from any alleged defects or damages [.] ” (Emphasis added.)

In August 2014, Beebe and Larche settled for a flat $40,000.00 and entered into a consent judgment (the “August 2014 judgment”). There was no mention of interest in the judgment. Pursuant to that judgment, Beebe was prohibited from attempting to collect the amount directly from Larche. Instead, the judgment authorized Beebe to seek the $40,000.00 by enforcing the March 2007 judgment against Eikert, who then appealed. The trial court required security in the amount of $65,532.60, which Eikert posted. Beebe prevailed on appeal. See Beebe I. Thus, both the March 2007 judgment and the August 2014 judgment were affirmed and are final, enforceable judgments.

The activity that followed is the subject of this appeal. After Beebe /, Beebe filed a motion in the trial court and attempted to collect pursuant to the August 2014 judgment. In her motion, Beebe suggested that Eikert had exhausted all his appeal rights and she requested the trial court order Eikert to show cause why the entire cash bond he posted should not be paid to her. Thus, she sought the principal amount of the August 2014 judgment plus legal interest, which is the crux of this matter. Ei-kert maintained that Beebe was not entitled to the interest. Beebe claimed that as a matter of law interest should run from the date of judicial demand until paid. She argued that the date of judicial demand is the date she filed suit against Larche. To complicate matters, after Beebe’s motion, Eikert filed a petition to annul the August 2014 judgment, which is still pending in the trial court. The trial court ruled in favor of Beebe, finding she was entitled to an immediate | ¡^payment of $67,796.01 ($40,000.00 plus $27,796.01 in interest from the date of judicial demand). Eikert appeals that ruling.

Discussion

Eikert’s first two assignments of error are closely related. First, he questions whether Beebe is statutorily entitled 'to interest on the $40,000.00 judgment, because her claim against him is in contract and not in tort. According to Eikert, the only reason Beebe has any rights against him is his indemnification agreement (ie., a contract) with Larche. Thus, he maintains Beebe’s claim against him is not in tort, and she is not entitled to statutory legal interest. In his second assignment, he argues that Beebe is not entitled to interest on the $40,000.00, because the August 2014 judgment made no mention of interest.

From the time she has sought to enforce the August 2014 judgment, Beebe has maintained that she is entitled to interest pursuant to La. R.S. 13:4203, which provides for interest on tort cases: “Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto,’ which may be rendered by any of the courts.” The trial court noted that the August 2014 judgment was silent on the issue of interest. However, in concluding that Eikert owed interest on the original judgment amount, the trial court explained that the original petition, a tort action, did request interest from date of judicial demand until paid. We agree.

There are two material facts in this matter: (1) Beebe filed a personal injury lawsuit against Larche, the owner of the premises; and, (2) Eikert agreed, in their lease agreement, to hold Larche harmless from “all liability for damages suffered from” vices or defects in the leased premises. | ¿(Emphasis added.) That agreement was confirmed by the March 2007 judgment.

Notably, legal interest on a tort claim is not discretionary with the court. Duplechain v. Jalili, 2010-736 (La.App. 3 Cir. 12/8/10), 52 So.3d 1072, writ denied, 2011-0087 (La. 03/25/11), 61 So.3d 664; Turner v. Ostrowe, 2001-1935 (La.App. 1 Cir. 09/27/02), 828 So.2d 1212, writ denied, 2002-2940 (La. 02/07/03), 836 So.2d 107. Legal interest on judgments for damages in tort cases is an operation of law. The interest attaches automatically until the judgment is paid regardless of whether it was prayed for in the petition or mentioned in the judgment. Stewart v. Ice, 2007-0871 (La.App. 4 Cir. 04/09/08), 982 So.2d 928, writ denied, 2008-1000 (La. 08/29/08), 989 So.2d 101. Eikert argues that legal interest should not accrue against him in this case, maintaining that Beebe’s claim is based in contract and not in tort. His argument is misplaced.

Indemnity in its most basic sense means reimbursement, and may lie when one pai’ty discharges a liability which another rightfully should have assumed. Nassif v. Sunrise Homes, Inc., 98-3193 (La. 06/29/99), 739 So.2d 183; Richey v. Moore, 36,785 (La.App. 2 Cir. 03/07/03), 840 So.2d 1265, writ denied, 2003-0987 (La. 05/30/03), 845 So.2d 1054; Naquin v. Louisiana Power & Light Co., 2005-2104 (La.App. 1 Cir. 11/17/06), 951 So.2d 228, 231, writ denied, 2006-2979 (La. 03/09/07), 949 So.2d 441. The general rules governing the interpretation of contracts apply in construing a contract of indemnity. Soverign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982 (La. 1986); Naquin, supra.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear [sand explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. C.C. art. 2051. When the parties intend a contract of general scope but, to eliminate doubt, include a provision that describes a specific situation, interpretation must not restrict the scope of the contract to that situation alone. La. C.C. art. 2052. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053. When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose. La. C.C. art. 2054. Equity is based on the principles that no one is allowed to take unfair advantage of another and that no one is allowed to enrich himself unjustly at the expense of another. La. C.C. art. 2055.

Initially, we note that any issue of the validity of the indemnity clause in the lease agreement between Eikert and Larche is final—Beebe I affirmed the trial court’s March 2007 judgment on that issue. Beebe I, at 737. Thus, we will not revisit the issue of the validity of the indemnity agreement. In this case, the words of the indemnity clause are general and broad, and express the intent that Eikert be fully responsible for “all liability for damages suffered from said vices and/or defects.” (Emphasis added.)

|fiBecause of the indemnification agreement, Eikert steps into Larche’s shoes. The March 2007 judgment ordered Eikert to hold.Larche harmless for all damages Larche may be responsible for as per their agreement. Pursuant to the August 2014 judgment, Larche was liable to Beebe for the personal injury she suffered on the premises. When reading the two judgments together, we conclude that whereas Eikert’s obligation to Larche stems from a contract, Larche is liable to Beebe in tort. There is no question that pursuant to La. R.S. 18:4203, Beebe was entitled to legal interest from the date of judicial demand, and Larche was liable to her for the amount accrued until paid. Because Eikert agreed to indemnify Larche for all damages he sustained, it follows that Eikert is indeed responsible not only for the principal judgment amount of $40,000.00, but also for the interest in the amount of $27,-796.01—those amounts which Larche was liable for.

Furthermore, considering the effect of the indemnity agreement between Larche and Eikert, it is of no import that Beebe did not make judicial demand directly on Eikert. To reiterate, Eikert is liable to Beebe because he agreed to hold Larche harmless for all damage he sustained. The lease agreement between Larche and Ei-kert established that fact, and the March 2004 judgment legally confirmed their agreement. As already discussed, legal interest accrued against Larche when judicial demand was made on him. It follows that Eikert is liable to Beebe by virtue of the fact that he agreed to indemnify Larche for all his liability. Thus, Eikert is liable for all Larche’s damages, including the statutorily imposed legal interest that accrued from the date judicial demand was made on Eikert’s indemnitee, Larche. His argument lacks merit.

[7Moreover, because legal interest accrues in a tort action statutorily, it occurs by operation of law. There is no requirement that the judgment include an order for legal interest since it is statutorily mandated. Eikert’s argument that the judgment failed to mention the inclusion of legal interest has no bearing, and this assignment of error is also without merit.

Eikert additionally takes the position that Beebe is not entitled to legal interest on the August 2014 judgment, because that judgment was the result of a settlement. Interest is paid on tort damages recovered through settlements. Duplechain, supra, at 1078, citing King v. Illinois Nat. Ins. Co., 34,473 (La.App. 2 Cir. 02/28/01), 782 So.2d 1104, 1111, writs denied, 2001-1244, 2001-1245 (La. 06/22/01), 794 So.2d 788. There is no merit to Eikert’s argument.

In his fifth and final assignment of error, Eikert questions whether Beebe is entitled to collect on the judgment while his petition for nullity regarding the August 2014 judgment is pending. The only argument he provides on this issue is that the $40,000.00 will remain in dispute until the petition for nullity is resolved. We cannot find any authority that would serve to authorize the suspension of execution of a judgment alleged to be a nullity, espe-dally one that has already been affirmed on appeal. Revision comment (b) to art. 2005, citing Succession of Lissa, 194 La. 328, 193 So. 663 (1940), and Collins v. McCook, 17 La.App. 415, 136 So. 204 (1931), observes that, “it has been held that the action of nullity is independent of the remedy by appeal and both remedies may be maintained at the same time without conflict.” It stands to reason that if the nullity action is independent of the appeal of a judgment, the nullity action would also be independent of the execution of that judgment already affirmed on appeal.

In Henderson v. Wilcox, 2 La.Ann. 502 (1847), the prevailing party attempted to make executory a judgment affirmed by the Louisiana Supreme Court. The judgment debtor obtained an injunction to restrain the execution. The Henderson court stated that the judgment debtor had no right to enjoin the execution of the judgment, stating that “the decree of the Supreme Court was not conditional, but absolute, as to the matters which it professed to decide. That judgment should have been satisfied by [the judgment debtor], and he had no right to restrain its execution, while attempting to litigate the other matters of controversy.” Id. at 502.

Furthermore, considering that prescription on an action to nullify a judgment runs fl’om the date of discovery of a reason to nullify, it also stands to reason that judgments already made executory may be subject to later attack. Therefore, we can see no reason why, in this instance, the August 2014 judgment, which this court has already reviewed and affirmed, should not be made executory and payment of the cash bond immediately be made to Beebe. Despite Eikert’s argument to the contrary, his petition to annul the August 2014" judgment is a separate action and that action is not grounds to suspend the execution of the August 2014 judgment. His assignment of error has no merit.

Conclusion

Considering the foregoing, the order of the trial court in favor of Deborah Beebe is affirmed. All costs of this appeal are to be paid by Paul Eikert.

AFFIRMED.

APPLICATION FOR REHEARING

Before MOORE, LOLLEY, PITMAN, STONE and COX, JJ.

Rehearing denied.

      . The March 2007 judgment was obtained by default. After being properly served, Eikert failed to respond, and the default was entered. Eikert ultimately appealed the judgment, which was affirmed. Beebe I, at 736.

      . Having failed to prevail in Beebe I, Eikert filed a petition in nullity on June 26, 2016, in a separate action, regarding the August 2014 judgment—after Beebe had filed her motion to have the cash bond paid to her.

      . When considering Eikert’s petition, the trial court should observe that because this judgment has already been affirmed on appeal, the standard "for determining whether it should be annulled is provided in La. C.C.P, art. 2005, which states, in pertinent part, “A judgment affirmed, reversed, amended, or otherwise rendered by an appellate court, may be annulled only when the ground for nullity did not appear in the record of appeal or was hot considered by the appellate court." (Emphasis added.) . , * ,.


author: McClendon, j.

text:
    STATE of Louisiana v. Jarret Jean MCCASLAND
    2016 KA 1178
    Court of Appeal of Louisiana, First Circuit.
    April 18, 2017

      Hillar C. Moore, III, District Attorney, Dale R. Lee, Assistant District Attorney, Baton Rouge, Louisiana, Counsel for Ap-pellee, State of Louisiana
    Jeff Landry, Attorney General, Colin Clark, Deputy Solicitor General, Criminal Appeals Section Chief, Baton Rouge, Louisiana, J. Christopher Alexander, Jennifer Aycock Motlow, Baton Rouge, Louisiana, Counsel for Defendant/Appellant, Jarret Jean McCasland
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

|2Pefendant, Jarret Jean McCasland, was charged by grand jury indictment with second degree murder, a violation of LSA-R.S. 14:30.1. Defendant entered a plea of not guilty and, following a jury trial, was found guilty as charged. Defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant filed a motion to reconsider sentence; the trial court heard argument at a hearing and denied the motion. Defendant now appeals designating four assignments of error. We affirm the conviction and sentence.

FACTS

On the evening of July 25, 2013, Flavia Cardenas (also known as Cathy) and her boyfriend, defendant herein, went to the home of Flavia’s friend, Christina Garman, who lived on Cedarcrest Avenue in Baton Rouge. Flavia had just recently turned nineteen years old; defendant was twenty-four years old. The three went to Christina’s bedroom. Defendant and Flavia began using cocaine and heroin. According to Christina, who testified at trial, defendant, using a syringe and needle, injected heroin three time's into Flavia, and also injected cocaine into Flavia two or three times. Defendant injected himself with the drugs, and Christina injected herself once with cocaine. All the injections from defendant were in Flavia’s arm (or arms) except the last one. When defendant attempted to administer the third dose of heroin to Fla-via, the needle broke off in her arm. With the heroin still in the syringe and no extra needles, defendant administered the drug anally to Flavia. According to Christina, defendant and Flavia left her house about 10:30 p.m.

Around 11:00 p.m. or 11:30 p.m., defendant brought Flavia home to her mother’s house on W. Versailles Drive. Flavia’s mother, Nancy Landa, testified at trial that when Flavia and defendant came inside, they were arguing, and defendant was being very aggressive with Flavia. Defendant grabbed Flavia’s phone and left. Crying, Flavia used Nancy’s phone to call defendant. Defendant returned to the house, and he and Flavia went to Flavia’s bedroom. Now past midnight, Nancy went to Flavia’s room a few times to ask them to lower their voices. Later, Nancy was struck by a > period of “total silence” in Flavia’s bedroom after all of the arguing. When Nancy went to Flavia’s Lbedroom to see what was going on, she saw defendant spoon-feeding cereal to Flavia. Nancy briefly went back to her own bedroom, then returned to Flavia’s room, and told defendant that he had to leave. Defendant became angry and started yelling at Nancy. Defendant left briefly, but then returned and told Nancy that he had forgotten his keys. Defendant left again, then returned, and told Nancy he had to get súme of his things from Flavia’s room. Defendant left the house for the final time at about 2:00 a.m.

Nancy checked on Flavia, who told her mother that she was tired and . that they could talk tomorrow. Later that morning (now July 26) at about 9:30 a.m. or 10:00 a.m.,, Nancy went to Flavia’s room to wake her up. Flavia did not respond. Nancy called her neighbor, Joaquin Jule, for help. Joaquin arrived shortly thereafter, found Flavia non-responsive, and called 911. The 911 operator told Joaquin to try CPR on Flavia. Joaquin noticed that Flavia’s lips were turning purple. He started chest compressions on Flavia, to no avail. Flavia was brought to the hospital where doctors were unable to revive her. Flavia died from acute respiratory depression caused by a heroin overdose.

Defendant did not testify at trial. About two wéeks after Flavia’s death, defendant was brought to the police station for questioning. In his recorded (audio) statement, defendant said that he injected Flavia with cocaine only. According to defendant, when they were at Nancy’s house in Flavia’s bedroom, defendant had a syringe of heroin and was going to inject, Flavia with it; but Flavia was moving around so much that he could not inject her. Impatient, Flavia took the syringe, according to defendant, and injected herself.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant argues that his life sentence at hard labor, as applied to him, is unconstitutionally excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. | .Although -a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentencé is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La.App. 1 Cir. 6/6/96), 665 So.2d 448, 464. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Holts, 525 So.2d 1241, 1245 (La.App. 1 Cir. 1988). Louisiana Code of Criminal Procedure Article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of LSA-C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 02-2231 (La.App. 1 Cir. 5/9/03), 849 So.2d 566, 569.

The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where thére has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial court should review the defendant’s personal history, his prior criminal record, the seriousness "of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

For defendant’s second degree murder conviction, the trial court imposed the mandatory life sentence at hard labor without benefit of parole, probation, or suspension of sentence. See LSA-R.S. 14:30.1B. Four months later, after hearing extensive argument on whether the life sentence was excessive as applied to this | ¿particular defendant, the trial court denied the motion to reconsider sentence. Defendant argues in brief that LSA-R.S. 14:30.1A(3) as applied to him is unconstitutional because it was Flavia who purchased the heroin and then later ingested it on her own and he (defendant) merely carried the heroin into the house. Defendant suggests that to sentence him to life imprisonment without the possibility of probation or parole is a gross misinterpretation of the intent of the statute and, as such, he is a victim of the, legislature’s failure to assign sentences that are meaningfully tailored to, the culpability of the offender, the gravity, of the offense, and the circumstances of the case.

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial court was to find that the punishment mandated by LSA-R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime”, the court has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. While both Dorthey and Johnson involve the mandatory minimum sentences imposed under the Habitual Offender Law, the Louisiana Supreme Court has held that the sentencing review principles espoused in Dorthey are not restricted in application to ■ the penalties provided by LSA-R.S. 15:529.1. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274 (per curiam); State v. Collins, 09-1617 (La.App. 1 Cir. 2/12/10), 35 So.3d 1103, 1108, writ denied, 10-0606 (La. 10/8/10), 46 So.3d 1265.

There is no need for the trial court to justify a sentence under LSA-C.Cr.P. art. 894.1 when it is legally required to impose that sentence. As such, the failure to particulate reasons as set forth in Article 894.1 when imposing a mandatory life sentence is not an error; articulating such reasons or factors would be an exercise in futility since the court has no discretion. State v. Felder, 00-2887 (La.App. 1 Cir. 9/28/01), 809 So.2d 360, 371, writ denied, 01-3027 (La. 10/25/02), 827 So.2d 1173. See State v. Ditcharo, 98-1374 (La.App. 5 Cir. 7/27/99), 739 So.2d 957, 972, writ denied, 99-2551 (La. 2/18/00), 754 So.2d 964; State v. Jones, 31,613 (La.App. 2 Cir. 4/1/99), 733 So.2d 127, 146, writ denied, 99-1185 (La. 10/1/99), 748 So.2d 434; State v. Williams, 445 So.2d 1264, 1269 (La.App. 3 Cir.), writ denied, 449 So.2d 1346 (La. 1984).

Mandatory sentences have been repeatedly upheld as constitutional and consistent with the federal and state constitutional provisions prohibiting cruel, unusual or excessive punishment. See State v. Jones, 46,758, 46,759 (La.App. 2 Cir. 12/14/11), 81 So.3d 236, 249, writ denied, 12-0147 (La. 5/4/12), 88 So.3d 462. To rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must clearly and convincingly show that he is exceptional, which means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, 709 So.2d at 676.

Defendant devotes most of his excessive sentence argument to the proportionality doctrine and cites to, in particular, Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). As noted by defendant in brief, in Solem (a recidivist statute case wherein the defendant was sentenced to life imprisonment because of six prior felony convictions), the Supreme Court, in applying a proportionality analysis, found the defendant’s life sentence without the possibility of parole significantly disproportionate to his crime and, as such,.prohibited by the Eighth Amendment. The Solem Court, 463 U.S. at 292, 103 S.Ct. at 3011, found that a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the |7penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Eight years later in Harmelin, the defendant was sentenced to life imprisonment without parole for possession of more than 650 grams of cocaine. Writing for the majority in Harmelin, Justice Scalia found that while Harmelin’s claim that his sentence is unconstitutional because of its mandatory nature finds some support in the so-called “individualized capital-sentencing doctrine” of the Court’s death penalty jurisprudence, that doctrine may not be extended outside the capital context because of the qualitative differences between death and all other penalties. Thus, according to Justice Scalia, there is no proportionality requirement in the Eighth Amendment. Harmelin, 501 U.S. at 985-94, 111 S.Ct. at 2696-2701.

In State v. Mitchell, 96-1896 (La.App. 1 Cir. 6/20/97), 697 So.2d 22, 25, writ denied, 97-1988 (La. 1/9/98), 705 So.2d 1098, this court found that the Supreme Court in Harmelin cast serious doubt on the viability of the Solem v. Helm analysis. We continued:

The Supreme Court reexamined this area of the law and upheld a sentence of life imprisonment without possibility of parole for a defendant convicted of possessing more than 650 grams of cocaine. In doing so, although a majority could not agree on the exact standard to employ, the Supreme Court limited the instances in which a complete Solem v. Helm proportionality analysis is required. [Footnote omitted]. As a result, courts are required to conduct the proportionality analysis required by Solem v. Helm only if, after comparing the gravity of the offense against the severity of the sentence, the court infers that the sentence is “grossly disproportionate” to the offense. State v. Wimberly, 618 So.2d 908, 913 (La. App. 1st Cir.), writ denied, 624 So.2d 1229 (La. 1993) (citation omitted).

Mitchell, 697 So.2d at 25.

In State v. Lindsey, 99-3256, 99-3302 (La. 10/17/00), 770 So.2d 339, 341, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001), our supreme court held that, despite the defendant’s assertion that mitigatory factors were important based on Solem, the mandatory life sentence imposed by the trial court was not excessive under Johnson. In footnote 2, the Lindsey court opined:

We note that the holding of Solem has been called into question by the Supreme Court’s later opinion in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), which held that the fact that the sentencing judge was statutorily required to impose a life [ 8sentence without possibility of parole and could not take into account the particularized circumstances of the crime and the criminal, including such mitigating factors as the accused’s lack of any prior felony convictions, did not make the sentence “cruel and unusual” under the Eighth Amendment.

Lindsey, 770 So.2d at 344 n.2.

In support of the disproportionate impact that the mandatory life sentence has on his particular situation, defendant suggests that the “outcome” of this case is contrary to the legislative intent underpinning LSA-R.S. 14:30.1A(3), Defendant notes that in May of 1987, Senator William Jefferson proposed and presented Senate Bill No. 191 to the Senate Committee on the Judiciary, and that the minutes from the committee meeting provided the following:

Senator Jefferson stated that the bill provides that if a person sells a drug which results in death of the buyer, that seller could be charged with second degree murder. Senator Jefferson explained that the District Attorney association had some language he wished to incorporate in the bill. Mr. Robert Davidson, of the DeSoto Parish Sheriffs Office, representing the Louisiana Sheriffs Association, spoke in support of the bill. Senator Jefferson moved that Senate Bill No. 191 be reported favorably, and without opposition it was so reported.
Defendant then states in brief:
Senator Jefferson’s legislative intent is critically important. His choice of words clearly shows that he contemplated, and had the foresight to avoid, grossly unjust outcomes such as the one involved in this case. The legislative intent of the bill was to give law enforcement and prosecutors a new weapon against the drug trafficking industry, and specifically those who sold drugs. It was not intended to apply to tragedies such as the one that occurred in this case.

Defendant’s assertion notwithstanding, legislative intent is looked at only when the words of the statute are not clear or are ambiguous. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9. Regarding interpretation, LSA-R.S. 14:3 provides:

The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision,
Louisiana Revised Statutes 14:30.1A(3) provides, in pertinent part:
A. Second degree murder is the killing of a human being:
(3) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I through V of the Uniform Controlled Dangerous Substances Law, or any combination thereof, which is the direct cause of the death of the recipient who ingested or consumed the controlled dangerous substance.

“Distribute” means to deliver a controlled dangerous substance whether by physical delivery, administering, subterfuge, furnishing a prescription, or by filling, packaging, labeling or compounding the substance pursuant to the lawful order of a practitioner. LSA-R.S. 40:961(14). “Dispense” means to deliver a controlled dangerous substance to the ultimate user or human research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling, or compounding necessary to prepare the substance for such delivery. LSA-R.S. 40:961(13). “Deliver” or “delivery” means the transfer of a controlled dangerous substance whether or not there exists an agency relationship. LSA-R.S. 40:961(10).

Thus, while in 1987, Senator Jefferson may have indicated a desire to target sellers of drugs with an amendment to the second degree murder statute, the end result, that is, the statutory provision that was signed into law in this state, provides for a much larger class of offenders than just sellers. Under the statute, an offender is anyone who unlawfully distributes or dispenses a controlled dangerous substance. Thus, anyone who simply physically delivers a proscribed drug under Title 40 to a person who uses that drug; or anyone who administers a drug under Title 40 to a user, has violated LSA-R.S. 14:30,1A(3). Under these definitions, defendant was both a distributor and dispenser of cocaine and heroin, actions which resulted in the death of Flavia, who ingested or consumed the cocaine and heroin. While defendant suggests in brief that the punishment of life imprisonment placed upon him is “grossly disproportionate to the crime he committed,” we believe that this particular defendant, along with his actions, is the type of offender the statute meant to address.

Defendant suggests in brief that at Fla-via’s mother’s house, he merely returned the heroin to Flavia, which she had bought, not him. He further insists that he did not inject Flavia on the night in question. “Even if he had done so,” defendant continues in brief, “it is undisputed that the decedent and [he] were both drug addicts, and the 11(ldecedent was at all times a willing participant in the events that led to her tragic death.” Defendant concludes that there is “not one scintilla” of evidence that he intended to kill Flavia.

At the outset, it must be pointed out that LSA-R.S. 14:30.1A(3) contains no “intent to MU” element. The only intent required under this statute is that which is already a part of the underlying felony of unlawfully distributing or dispensing a controlled dangerous substance. In this respect, LSA-R.S. 14:30,1A(3) and LSA-R.S. 14:30.1A(4) are very similar to the felony murder provision of the second degree statute, wherein the offender commits second degree murder if engaged in the perpetration or attempted perpetration of one of the enumerated felonies “even though he has no intent to Mil or to inflict great bodily harm.”. See LSA-R.S. 14:30.1A(2).

As noted, under the statute, an offender is not only someone who sells or buys drugs. The class of offenders is anyone who distributes or dispenses. Moreover, the trial record indicates that defendant purchased the heroin and brought it with him to Christina’s house. In any event, regardless of who bought the heroin, it was undisputed at trial that defendant, at least once, injected Flavia in the arm with heroin, and then later administered another dose of heroin to Flavia anally, because the only needle they had had broken off in Flavia’s arm. It was further undisputed that defendant, at least once, injected cocaine into Flavia’s arm. Two medical experts testified at trial that Flavia died from respiratory depression due to heroin overdose.

Defendant admits that Flavia took more heroin when she was at her mother’s house (after she and defendant left Christina’s house), but alleges she injected herself with the heroin. Christina testified that she and Flavia were very close friends and that she had never seen Flavia inject herself with a drug. Given the actions of defendant in the few hours prior to this final injection of heroin, the jury could have reasonably concluded that defendant was lying about .Flavia having injected herself. The record is clear that defendant bought and sold a variety of drugs prior to Fla-via’s death and, two weeks after Flavia’s death, he was out selling drugs again, including heroin.

Accordingly, despite defendant’s assertion of his alleged unique position under the facts of this case, there is nothing particularly unusual about defendant’s 11, circumstances that would justify a downward departure from the mandatory sentence under LSA-R.S. 14:30.1B. See State v. Hano, 05-2090 (La.App. 1 Cir. 6/9/06), 938 So.2d 181, 188-91, writ denied, 06-1713 (La. 1/26/07), 948 So.2d 164. (affirming the defendant’s conviction for second degree murder under LSA-R.S. 14:30.1A(3), based in part on the testimony of a witness who saw the defendant “deliver to, T.JJ. [the victim who died] two pills” of methadone and, as such, this testimony established the defendant distributed methadone to the victim); State v. Kott, 11—0997 (La.App. 1 Cir. 2/10/12), 2012 WL 602425 (unpublished), writ denied, 12-1221 (La. 11/21/12), 102 So.3d 53, (affirming the defendant’s conviction for second degree murder, where the defendant admitted in a statement that he injected the victim with “K4 Dilaudids,” yet denied at trial that he injected the victim with anything on the day of the incident or at any other time). See also State v. Corbett, 04-1124 (La. 11/15/04), 888 So.2d 764 (per curiam); State v. Smith, 04-1123 (La. 9/24/04), 885 So.2d 508 (per curiam); Pena v. State, SC02-2411 (Fla. 2/24/05), 901 So.2d 781 (affirming the defendant’s conviction for first degree murder by drug distribution based on a statute similar to our own, where Mirranda Fernandes and a' girlfriend visited the defendant at his apartment, the defendant gave Mirranda heroin, and Mirranda took the heroin, and died); Hulme v. State, S00A2059 (Ga. 3/19/01), 273 Ga. 676, 544 S.E.2d 138 (affirming the defendant’s conviction for felony murder based on the underlying felony of distributing a controlled substance, where the defendant gave dosages of methadone, for which the defendant had a prescription, to the victim who died).

The record before us clearly established a factual basis for the sentence imposed. Defendant has not shown by clear and convincing evidence that he is exceptional such that a mandatory life sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. Accordingly, no downward departure from the presumptively constitutional mandatory life sentence is warranted. The sentence imposed is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. See Hano, 938 So.2d at 194 (upholding the constitutionality of life sentence without parole despite the defendant’s claim that her | ^action of giving four methadone pills to Crystal instead of to the victim had a mitigating effect). See also Kott v. Cain, 2014-953 (E.D. La. 10/26/15), 2015 WL 10766762 (upholding the state court’s rejection of the defendant’s claim that the second degree murder statute, specifically LSA-R.S. 14:30.1A(3) and (4), was unconstitutional as applied to his case by providing for a mandatory life sentence).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, defendant argues that during the jury instructions, the trial court erred in omitting part of the statutory definition of criminal negligence.

One of the responsive verdicts for the jury to consider was negligent homicide, defined as the killing of a human being by criminal negligence. See LSA-R.S. 14:32A(1). Louisiana Revised Statutes 14:12 provides: “Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” The trial court provided the following jury charge regarding criminal negligence: “Criminal negligence exist [sic] when there is such disregard of the interest of others that the offenders [sic] conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under similar circumstances.”

The trial court, thus, omitted the language “although neither specific nor general criminal intent is present” (and substituted “person” for “man” and “similar” for “like”). Defendant argues in brief that the trial court’s failure to include the “intent” language was highly prejudicial to him since intent was a primary issue during the trial, and the error resulted in his not getting a fair trial.

Both parties at a jury charge conference made their concerns and objections known about any of the language the trial court planned to use in its jury instructions. Defendant did not raise any issues or concerns at the conference regarding the trial court’s proposed definition of “criminal negligence”; nor did defendant object at trial h.qwhen the trial court defined “criminal negligence” during its jury instructions. The failure to make a contemporaneous objection to jury instructions waives review of those jury instructions on appeal. See LSA-C.Cr.P. art. 801C; LSA-C.Cr.P. art. 841; State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583, 622, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

We are mindful that jury instructions may be reviewed on appeal despite the lack of a contemporaneous objection when the alleged error violates a fundamental due process right. See State v. Johnson, 98-1407 (La.App. 1 Cir. 4/1/99), 734 So.2d 800, 806-07, writ denied, 99-1386 (La. 10/1/99), 748 So.2d 439. We find that the removal of the “intent” language had little to no effect on the meaning of “criminal negligence.” The revised definition read by the trial court would have left the jury with the correct impression that criminal negligence requires no intent, which is what the removed language indicates in the first instance. In any case, the definitions of “negligent homicide” and “criminal negligence” were clear and concise and would not have so confused the jurors that defendant was denied a fair trial. The unanimous second degree murder guilty verdict suggests the jury found that the actions and behavior of defendant throughout the night that Flavia died rose to a level of culpability beyond that of mere criminal negligence.

Further, the omission here was not an erroneous misstatement of the essential elements of the charged offense. See Johnson, 734 So.2d at 807 (finding that the alleged erroneous instruction related only to an element of a responsive verdict, rather than to the definition of the offense charged and, as such, it was not apparent that the erroneous instruction fundamentally affected the fairness of the proceedings and accuracy of the factfinding process). While the “intent” language was not cited to the jury regarding the responsive verdict of negligent homicide, we do not find that the alleged error was structural; as such, it necessarily was not of such significance as to have violated fundamental requirements of due process. See State v. Hongo, 96-2060 (La. 12/02/97), 706 So.2d 419, 421-22; State v. Woods, 00-2147 (La. App. 1 Cir. 5/11/01), 787 So.2d 1083, 1096-97, writ denied, 01-2389 (La. 6/14/02), 817 So.2d 1153.

| ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, defendant argues he was denied effective assistance of counsel. Specifically, defendant contends that his defense counsel failed to object to extraneous information read to the jury by the trial court in response to a question it submitted during deliberations.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney’s performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. State v. Serigny, 610 So.2d 857, 859-60 (La.App. 1 Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).

In evaluating the performance of counsel, the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. State v. Morgan, 472 So.2d 934, 937 (La.App. 1 Cir. 1985). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So.2d 1035, 1038-39 (La.App. 1 Cir.), writ denied, 476 So.2d 360 (La. 1985).

■ A claim' of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. However, where, as is the case here, the record discloses evidence needed to - decide the issue of ineffective assistance of counsel, and that issue is raised by assignment of error on appeal, the issue .may be addressed in the interest of judicial economy. State v. Carter, 96-0337 (La.App. 1 Cir. 11/8/96), 684 So.2d 432, 438. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

■| ^During deliberations, the jury sent a note to the trial court, asking for definitions of second degree murder and negligent homicide. The trial court brought out the jury and reread ■ sections of the jury instructions, particularly those pertaining to second degree murder and negligent homicide.

Defendant’s contention in brief is that trial- counsel was ineffective for failing to object to the trial court when it read (again) to the jury the definitions of “distribute,” “dispense,” “deliver or delivery,” and “direct ■ cause.” According to defendant, the jury asked only for the definitions of “second degree murder” and “negligent homicide,” not the definitions of the words contained in these statutes. Defendant suggests that this1 allowed the trial court to read the wrong definition again of “criminal negligence.”

Defendant’s claim is baseless. As already noted in the second assignment of error, the abridged version of the definition of the responsive verdict of “criminal negligence” would not have confused the jury in any meaningful way so as to deprive defendant of a fair trial. Further, we fail to see how allowing the trial court to again define the words that-are used to define “second degree murder” and “negligent homicide” would constitute ineffective assistance of counsel. Without proper exposition of thése words, some of which are legal terms of art, a jury would have little guidance working through the definitions, and all of the attendant elements, of these crimes during deliberations. Further, even if defense counsel’s failure to object did constitute deficient performance, there has been no showing made by defendant that such deficient performance in any way prejudiced the defense. See Serigny, 610 So.2d at 869-60.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, defendant argues the trial court erred in admitting other crimes evidence at trial.

The State- filed a notice of intent to introduce other crimes evidence, and defendant filed an opposition to it. At a pretrial Prieur hearing, testimony by | ^Detective Sergeant Rob-Chambers, with the East Baton Rouge Parish Sheriffs Office, revealed that within two weeks of Flavia’s death, defendant was texting people, trying to sell heroin. These phone texts also indicated that defendant was using his own. product (heroin) that he was trying to sell.

Detective Todd Bourgeois, with the Ascension Parish Sheriffs Office, testified at the Prieur hearing that in April of 2013, a confidential informant went to defendant’s house.in Gonzales (where defendant lived prior to moving to Denham Springs) and purchased methamphetamine from defendant. Within twenty-four hours, a search warrant was obtained and' executed at de~ fendant’s house. The police there found drug paraphernalia and drugs, including methamphetamine and steroids. Defendant’s iPhone was also seized. A forensic analysis on the cell phone revealed texts, as far back as December of 2012, sent by defendant to people to whom he was selling drugs or trying to sell drugs. The drugs included marijuana and heroin.

About two months after the Prieur hearing, the trial court provided its ruling in writing on what other crimes evidence the State would be permitted to introduce. The written judgment provided in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the State of Louisiana is allowed to offer the following evidence of other acts, submitted in its Notice of Intent to Introduce Other Crimes Evidence, at the defendant’s trial to establish the defendant’s intent, absence of mistake or accident:
1. The selling of methamphetamine to a confidential informant on April 8, 2013.
2. The defendant’s arrest on April 9, 2013 and fruits of the execution of the search warrant for defendant’s residence which occurred also on April 9, 2013.
3. The defendant’s distribution of controlled dangerous substances, including heroin, from December 2012 until the date of arrest for Second Degree Murder on August 9, 2013.

Defendant argues that the State “knew full well” it could not prove its case against him without exposing the jury to other acts allegedly committed by him in order to destroy his character. Defendant further asserts in his brief that the probative value of this other crimes evidence was minimal or non-existent since he admitted to law enforcement that he administered at least one drug “to the decedent” the night she died.

h?At trial, defendant’s drug transaction with the confidential informant was not addressed or discussed. However, Detective Bourgeois testified at trial about the various drugs and drug paraphernalia that was found at defendant’s house upon execution of the April 9, 2013 search warrant. During the search, members of the Ascension Parish Sheriffs Office Narcotics Division found the following: methamphetamine in a cigarette pack (on defendant’s person); a glass methamphetamine smoking pipe with residue in it on the bed in defendant’s bedroom; a safe in the corner of defendant’s bedroom that contained numerous red and clear plastic baggies, and a clear pill with white powder inside; a trapdoor on the floor just inside defendant’s bedroom contained a toolbox, which contained many old syringes, an empty pack of suboxone, and some needles that had been disposed of; behind the home’s air-conditioning unit at the end of the hallway, a plastic bag with three glass vials of testosterone and a hypodermic needle; a small plastic box on the coffee table in the living room that contained suspected methamphetamine residue; a glass marijuana smoking bong in the dining room; a silver digital scale in a kitchen drawer; a methamphetamine smoking pipe, a viagara pill, and two carisoprodol pills in the center console of the defendant’s truck; and a propanolol pill on the couch. The pills were identified by the crime laboratory as pro-pranolol HCL, carisoprodol, and sildenafil citrate. Defendant’s iPhone was also seized.

Gerald Wilton, a forensic examiner with the Ascension Parish Sheriffs Office, testified at trial that he examined the contents of defendant’s iPhone. Among the thousands of texts found on defendant’s cell phone, several were pulled by the State and introduced into evidence. These texts were sent in December of 2012 and March and April of 2013 by defendant’s phone to several identified, and a few unidentified, recipients of the messages. A December 29, 2012 text stated, “I got rs need to sale[.]” A March 6, 2013 text stated, “N I got a sack of green for u[.]” A March 17, 2013 text stated, “I got a piece for u[.]” An April 2, 2013 text asked, “You want any dog food[?]” Another April 2, 2013 text asked, “What u been craving?” Another April 2, 2013 text stated, “Tryn [sic] to make it home we stoped [sic] by laburge to pick up some green 11sfor Cathy[.]” An April 3, 2013 text asked, “You want a g? Right[.]” An April 4, 2013 text stated, “I still have that g if u or ya bro want it[.]”

Detective Bourgeois testified at trial that when heroin is being sold on the street, it is referred to by many names, including “H” and “dog food.” Detective Bourgeois testified at the Prieur hearing that the term “green” referred to marijuana.

Gerald Wilton also found images (pictures taken by the cell phone user) on defendant’s cell phone, three of which were copied (and blown up) and introduced into evidence. One picture is a close-up of a hand, holding fanned-out one-hundred dollar bills. There appear to be about thirty-five bills. Another picture is a close-up of high-grade marijuana. The last picture is a close-up of a baggie of crystal methamphetamine on top of a digital scale, with a readout of 1.6 grams.

On August 10, 2013, about two weeks after Flavia’s death, defendant was brought in for questioning. The cell phone defendant had with him on that day was seized and a search warrant was obtained to search the contents of the phone. Corporal Steve Kemp, a computer forensic analyst with the East Baton Rouge Parish Sheriffs Office, testified at trial. Corporal Kemp obtained from defendant’s phone several texts sent by defendant on August 8 and August 9 to someone identified as “Glyn.”

Following are some of those relevant texts from these two dates:

It’s comparison is like three lines of 12s to one of my boys that honest as fu*k its really like that ill hook u up please holla at me idk [sic] anyone else that dose [sic] it besides people that sell it already of course lol
I already know u done got high again which is all good be [sic] I also did yesterday ok and I had to buy $200 worth to be able to get it! And the point of me telling u this is that I really want u to try this sh*t! Seriously it’s one chunk and fu*king crazy fire!!!!! Like real sh*t I’m stressing the fu*k out of this exsplaining [sic] how awsome [sic] this sh*t is!!!!!! Hit me up and ill meet u n let u try it but I have got to get some of my money I spend on it that’s the only reason I can’t just hold on to it
It’s so potion [sic] that I just did have [sic] of what I had out for u when u got to my house... And gabby I’m on side of road n c [sic] I can’t see lol
I just picked it up for u and all he would only do a bill worth [.] he told me he’ll hook me up for a bill so that’s what I did and he gave me two big chunks for it! So what you wanna do
^J^Ight [sic] I got two big chunks for a bill
Please baby help me and u can do what ever with each pack I just want the 50
This is the best h could pos [sic] get lol honestly unless it would be dangerous deadly
I’m [sic] bought to get rid of it been trying to wait on u
You want this sh*t or not
I’m at work right by the interstate in preirville [sic] so call me when u wake up and come get this
I got 4 fifty packs chunky

Detective Sergeant Chambers testified at trial that heroin is known on the street by several names, including “H” and “Chunky.” At the Prieur hearing, Detective Sergeant Chambers made clear that these August 8 and 9 texts sent by defendant were about defendant selling heroin. One pertinent exchange was as follows:

Q. When you see the word chunky, what does that mean to you?
A. That could—not all terms are street slang. Some could be just a term that him and the person he’s talking to understand, but he refers to it as H, which is a very common term for heroin. In fact, he says it’s the best H could possibly get. It’s so potent, it could be dangerous and deadly. Now, I’m paraphrasing that—that conversation right there. If I had it in front of me, I could read it word for word for you, but it’s very obvious to me that he is discussing the sale of heroin.
Q. So, when he—you testified earlier that he said in a text that he had four 50 packs chunky. Based on your experiences, what did that mean to you?
A. He has—he has it broken down into four bags, 50 dollars apiece, of heroin.

Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917 (La.App. 1 Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 00-1261 (La. 3/9/01), 786 So.2d 115.

Louisiana Code of Evidence article 404B(1) provides:

| ¡^Except as provided in Article 412, evidence of other crimes, -wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such.purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. LSA-C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403. A trial court’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Freeman, 07-0470 (La.App. 1 Cir. 9/14/07), 970 So.2d 621, 625, writ denied, 07-2129 (La. 3/14/08), 977 So.2d 930.

We find the trial court did not abuse its discretion in allowing the State to introduce .other crimes evidence at trial. In State v. Scott, 08-2418 (La.App. 1 Cir. 6/19/09), 20 So.3d 1089, 1091-96, reversed, 09-1658 (La. 10/22/10), 48 So.3d 1080 (per curiam), the defendant was charged and convicted of attempted possession with intent to distribute cocaine and attempted illegal carrying of weapons. The police used confidential informants to purchase crack cocaine from the defendant at a Sli-dell residence on three different dates. On April 25, 2007, a combined task force of law enforcement officers searched the residence and found crack cocaine in two of the bedrooms. The defendant complained on appeal that evidence of the three drug transactions (which did not form the basis of the instant charged drug offense), two of them over a month before the task force raid, were impermissible other crimes evidence. This court agreed and reversed the defendant’s convictions and vacated the sentences. However, in State v. Scott, 09-1658 (La. 10/22/10), 48 So.3d 1080, 10851 (per curiam), the supreme court reversed our decision and reinstated the defendant’s convictions and sentences. The supreme court found that the three prior drug sales at the house were plainly relevant to the question of whether the defendant intended to distribute the cocaine, an essential element of the offense charged.

The supreme court in Scott further opined:

Evidence of the prior sales was also relevant for another purpose. Defendant sought to dissociate himself from the Hailey Street address to the greatest extent possible, portraying himself as a sometime visitor and thus someone who would not likely have had either actual or constructive possession of the cocaine or the firearms found in the residence. Evidence that the surveillance team had personally observed defendant at the residence on March 13 and then again a month later on April 24 underscored the opinion of Sergeant Ohler that the cellular phone bill addressed to defendant at the Hailey Street address and found on the floor of the master bedroom next to defendant on the bed where the officers found him meant that he lived there, increasing the odds that he possessed the cocaine and firearms, and thus directly contradicted the testimony offered by defendant and Peggy Rudolph and their innocent explanation for why defendant’s name appeared on the bill.

Scott, 48 So.3d at 1086.

Evidence in the instant matter that defendant possessed an array of drugs and that he purchased and sold heroin (as well as marijuana and other drugs) was admissible as other crimes evidence at trial to show defendant’s intent and opportunity. We find, in particular, that defendant’s dealing in heroin established absence of mistake or accident. See LSA-C.E. art. 404B(1). The Scott court noted that prior drug sales from the Slidell residence was relevant because the defendant had sought to dissociate himself from that address to the greatest extent possible, “portraying himself as a sometime visitor and thus someone who would not likely have had either actual or constructive possession of the cocaine or the firearms found in the residence.” Scott, 48 So.3d at 1086.

Similarly, defense counsel in the instant matter sought to portray defendant as an occasional user and abuser of drugs, but certainly not a dealer of drugs. In his opening statement, defense counsel compared defendant and Flavia to Romeo and Juliet and suggested that they were both just addicts “shooting each other up.” As the other crimes evidence revealed, however, defendant was a drug dealer, who used, bought and sold everything from steroids and marijuana to methamphetamine and 1 ooheroin. The evidence indicates that defendant was not an innocent bystander, idly sitting by while Flavia injected her-' self. Additionally, evidence was presented that it was defendant, a dealer and buyer of heroin, who took Flavia to her friend’s house and injected Flavia with both heroin and cocaine. Despite defendant’s denial, the jury may have reasonably concluded, based on the evidence presented, that defendant injected Flavia one final time at her mother’s house. Whatever relationship existed between defendant and Flavia, it was an unhappy, volatile one, according to both Christina and Nancy Landa (Flavia’s mother who testified at trial). Christina’s testimony and statement to the police revealed the animosity defendant harbored toward Flavia. According to Christina, defendant thought Flavia was cheating on him, and it was his intent to get Flavia so high, that he would be able to wrest the truth from her. Christina also testified on direct examination, as follows:

Q. And you mentioned earlier that they were arguing. When did the arguments happen while they were at your house?
A. It’s—they were—they came in arguing already and they stayed arguing the whole time. And every time Jarret shot her up with any dope, it was like he was trying to use it as a truth serum on her or something and ask her 50 questions.
Q. So, every time he would shoot her, are you telling us that he would begin asking her questions?- -
A. Yes, sir.
Q. Was he asking questions nicely?
A. Not really, no.
Q. Okay. What was he asking her about?
A. Who she’s been cheating on him with and what she’s been doing when, in all actuality, most of the -time, she was with me at my house.

Christina’s recorded statement to the police was played for the jury. During the interview, Christina stated that, in the past, defendant had.,injected drugs ..into Flavia while she was asleep.

Based on the foregoing, we find no reason to disturb the trial court’s ruling that the other crimes evidence was admissible at trial to show intent and absence? of mistake or accident. The probative value of this relevant evidence was not substantially l^outweighed by the danger of unfair prejudice, confusion of the issues, or -misleading -the jury. See LSA-C.E. art. 403.

This assignment of error is without merit.

CONCLUSION

For the foregoing, reasons, we affirm defendant’s conviction,and sentence.,

CONVICTION AND SENTENCE AFFIRMED.

      ; Defendant states in this assignment of error that his sentence was unconstitutional pursuant to the Eighth Amendment and "thus, the Trial 'Judge erred in denying the Motion for Post Judgment Verdict of Acquittal and/or . Motion for New Trial as well as the Motion for Reconsideration of Sentence.” Defendant’s argument under this assignment of error is confined to the alleged illegality of his life sentence. There is no argument made or issue raised regarding the sufficiency of the evidence or why he would be entitled to a new trial.

      . The Louisiana State Attorney General’s Office also filed a brief in this matter. See LSA-R.S. 13:4448. In responding only to the first assignment of error in the instant appeal, the Attorney General’s Office argues that LSA-R.S, 14:30.1A(3) is not unconstitutional and, as such, defendant’s life sentence does not violate the Eighth Amendment,

      . State v. Prieur, 277 So.2d 126, 130 (La. 1973).