author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Richard L. DAVIS, Appellant.
    No. 44,656-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 18, 2009.

      G. Paul Marx, Louisiana Appellate Project, Julie Hayes Kilborn, Louisiana Capital Assistance Center, for Appellant.
    Charles R. Scott, District Attorney, Hugo Holland, Suzanne Owen, Lea Hall, Brady O’Callaghan, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

I , Richard L. Davis was indicted and subsequently convicted by a unanimous 12-person jury of one count of aggravated rape (victim under age 13) and one count of indecent behavior with juveniles, violations of La. R.S. 14:42(A)(4) and La. R.S. 14:81, respectively. The case was originally tried as a death penalty case, and Davis was given the death penalty for the aggravated rape. The Louisiana Supreme Court remanded the case to the First Judicial District Court for resentencing Davis to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. State v. Davis, 08-1378 (La.12/12/08), 995 So.2d 1211.

Davis initially received a concurrent seven-year hard labor sentence on the indecent behavior conviction. However, upon remand, the trial court amended this sentence to run consecutively to the aggravated rape sentence. Motions for post-verdict judgment of acquittal and new trial were denied. After resentencing, a motion to reconsider sentence regarding the amendment of the indecent behavior with juveniles sentence was also denied. This appeal followed. We affirm the convictions and aggravated rape sentence. We reinstate the original sentence on the indecent behavior with juveniles conviction.

Facts

An amended indictment charged Davis with the aggravated rape of K.F. based upon allegations that Davis had vaginal, anal, and oral sexual | ¿intercourse with the five-year-old. The indictment also charged that between October of 1996 and September 16, 1997, Davis committed the offense of indecent behavior with juveniles upon J.B.

The direct evidence of the two crimes is not now challenged on sufficiency grounds but is relevant for consideration of the assignment of error regarding the admissibility of other crimes evidence used by the prosecution. Regarding the crime against J.B., the state presented the testimony of J.B. to show that she and Davis had a sexual relationship shortly after J.B.’s 16th birthday when he was 24 years old and married. Regarding the aggravated rape of K.F., the state presented evidence through the testimony of K.F., who was five years old at the time of the sexual assault. The state also presented the testimony of Davis’s girlfriend and a codefen-dant, Melissa Ticer, who was charged with Davis for the crime. The evidence showed that Davis had performed various sexual acts including oral sex, fondling, and vaginal and anal penetration upon K.F. on multiple occasions. Evidence also showed that Davis inserted a marker into the child’s vagina on one occasion. On a number of occasions, Davis had drugged the child with Trazadone to make her sleep during the acts. Tieer’s testimony implicated Davis. Ticer testified that Davis drugged the child and that Davis exposed the child to Internet pornography. Ticer’s testimony also included her eyewitness accounts of Davis’s various (approximately 20) sexual acts with the child during a four-month period. She also | ^admitted to her own participation in the acts, although she claimed her actions were at the direction of Davis.

The state introduced other crimes evidence against Davis. These bad acts consisted of evidence regarding Davis’s indictment for aggravated oral sexual battery of Davis’s child, A.D., and his subsequent guilty plea to second degree battery for the offense. The state also introduced J.B.’s testimony that she had viewed images of nude or partially undressed children between the ages of 10 and 13 on Davis’s computer in 1999. There was also other crimes evidence pertaining to Davis’s promotion of prostitution activity and sexual encounters in 1998 with one 16 and two 14-year-old girls.

Through the testimonies of Ticer’s roommate and cellmate, the defense sought to establish that it was Ticer who committed the offenses upon K.F. and that she was seeking to put the blame on Davis.

After considering the evidence, a unanimous jury convicted Davis on the two counts as charged. The trial court denied both motions for new trial and post-verdict judgment of acquittal. Davis received the death penalty on the aggravated rape conviction and a concurrent seven-year hard labor sentence on the conviction for indecent behavior with juveniles. Upon resen-tencing, the trial court stated that the decision to run the indecent behavior with juveniles sentence concurrently “was conditioned in part on the fact that the sentence of death was the outcome by the jury on count one.” On those grounds, the court ordered the seven years to run consecutively with the life sentence. This appeal followed.

\4Piscussion

I.

On appeal, Davis first argues that the trial court erred in admitting various other crimes evidence which “provided a sordid story about the man on trial, founded on hearsay and other inadmissible evidence.” Davis argues that this evidence unconstitutionally violated his right to due process of law and denied him a fair trial.

The state filed two notices of its intent to introduce evidence of similar crimes, wrongs, or acts in sex offense cases pursuant to La. C.E. arts. 404(B) and 412.2. At an initial hearing on June 2, 2008, the court considered defendant’s motion in li-mine which contested the state’s first notice. Therein, the state listed four incidents which included Davis’s April 26, 2004 guilty plea to second degree battery upon his son, A.D., Davis’s May 2, 1998 guilty plea to promotion of prostitution, the events giving rise to the aggravated rape of K.F. between October 2004 and January 2005, and the events supporting the indecent behavior with juveniles offense relating to J.B. In argument, the defense contended that second degree battery was not a sexual offense, that the promotion of prostitution did not show lustful disposition and that the admission of the offenses would unduly prejudice Davis.

The court rejected Davis’s argument under La. C.E. art. 412.2 on the grounds that the evidence showed Davis’s lustful disposition toward children and that the probative value of the evidence outweighed any prejudicial effect. Defense counsel noted an objection.

|bA second hearing concerned the state’s notification of its intent to use evidence relating to the above-mentioned computer images, which the state characterized as “child pornography.” The state also proposed to introduce evidence of Davis’s sexual activities with four girls ranging in age from 14-16 years old and the testimony of the two girls whom Davis incited to prostitution. The state sought to utilize “narrative detail” evidence relating to the incidents.

After a hearing in which J.B. and four other girls testified, the court found the other crimes evidence relating to promotion of prostitution and Davis’s sexual acts with minor girls admissible to show Davis’s intent, preparation, plan, knowledge, absence of mistake or accident. The court also found that the evidence showed a lustful disposition toward children. Defense counsel once again noted an objection. Additionally, before trial, the court ruled that the testimony concerning the computer images was relevant and probative to show Davis’s lustful disposition toward children. Defense counsel objected to all rulings.

The following provisions of our law are relevant to the issues raised concerning Davis’s prior bad acts and other crimes. The crime of aggravated rape is defined in La. R.S. 14:42(A)(4) as follows:

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:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

| ^Aggravated rape is a general intent crime. State v. Morgan, 99-1895 (La.6/29/01), 791 So.2d 100; State v. Wallace, 41,720 (La.App.2d Cir.1/24/07), 949 So.2d 556.

La. R.S. 14:81(A)(1) provides:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
(1) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child’s age shall not be a defense.

Indecent behavior with juveniles is a specific intent crime requiring the state to prove the defendant’s intent to arouse or gratify a sexual desire by actions with a child. State v. Caston, 43,565 (La.App.2d Cir.9/24/08), 996 So.2d 480.

La. C.E. art. 412.2 addresses the admission of evidence of similar crimes, wrongs, or acts in sex offense cases as follows:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
|7C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

Louisiana C.E. art. 412.2 was enacted following State v. Kennedy, 00-1554 (La.4/3/01), 803 So.2d 916. The provision allows admission of evidence of other similar crimes, even for general intent crimes such as aggravated rape, when the victim in the case at issue is a child under the age of 17. State v. Zones, 34,070 (La.App.2d Cir.4/3/02), 814 So.2d 113, writ denied, 02-1280 (La.11/27/02), 831 So.2d 269.

Other crimes, wrongs, or acts involving sexually assaultive behavior or which indicate a lustful disposition toward children may be admissible under La. C.E. art. 412.2 if their probative value substantially outweighs the danger of unfair prejudice and confusion of the issues. State v. Johnson, 43,843 (La.App.2d Cir.1/28/09), 2 So.3d 606; La. C.E. art. 403.

La. C.E. art. 404(B) addresses the admissibility of other crimes evidence generally and in relevant part states as follows:

(1) 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 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 present proceedings.

La. C.E. art. 403 regarding the exclusion of relevant evidence reads as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of |8unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

Generally, a trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion; the introduction of inadmissible other crimes evidence results in a trial error subject to harmless error analysis on appeal. State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 07-2053 (La.3/7/08), 977 So.2d 896.

The provisions of La. C.E. art. 804, concerning hearsay when the declarant is unavailable, state in pertinent part:

A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is “unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
* * * * *
(3) Testifies to a lack of memory of the subject matter of his statement.
* * * * ⅜
B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
5) Complaint of sexually assaultive behavior. A statement made by a person under the age of twelve years and the statement is one of initial or otherwise trustworthy complaint of sexually assaultive behavior.

La. C.E. art. 803 provides exceptions to the hearsay rule and in pertinent part states as follows:

The following are not excluded by the hearsay rule even though the declarant is available as a witness:

(8) Public records and reports.
(a) Records, reports, statements, or data compilations, in any form, of a public office or agency setting forth:
(i) Its regularly conducted and regularly recorded activities;
|3(ii) Matters observed pursuant to duty imposed by law and as to which there was a duty to report; or
(iii) Factual findings resulting from an investigation made pursuant to authority granted by law. Factual findings are conclusions of fact reached by a governmental agency and may be based upon information furnished to it by persons other than agents and employees of that agency.
* i\i
(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of six months, to prove any fact essential to sustain the judgment. This exception does not permit the prosecutor in a criminal prosecution to offer as evidence the judgment of conviction of a person other than the accused, except for the purpose of attacking the credibility of a witness. The pendency of an appeal may be shown but does not affect admissibility.

Second Degree Battery

The first evidence of other crimes or bad acts objected to by Davis involved his 2004 second degree battery conviction involving his four-year-old biological son, A.D. In proof of the bad act, the state introduced into evidence a certified copy of the court minutes reflecting Davis’s guilty plea to second degree battery. Additionally, the state presented the testimony of A.D.’s babysitter, Sherry Fields, and the testimony of J.B., who first learned of the events from A.D. Fields testified that on one occasion, as she got A.D. ready for bed, the child asked her if she “lik[ed] his willie.” Fields testified that the child volunteered that his “daddy liked to suck and play with his willie.” When J.B. got home, Fields immediately told her about the incident. The following morning, Fields and J.B. talked to A.D. He told them that his daddy “lik[ed] to play with his willie and that he would do the same.” The four-year-old child also told Fields that he would perform oral sex on his father. Fields testified that she and J.B. notified the police.

|inJ.B. testified that at the time of trial, A.D. was eight years old and did not recall the events discussed above. Regarding A.D.’s statements, J.B. corroborated Fields’s testimony. She also testified that when she spoke with A.D. the following morning, he told her that these events occurred in the father’s bedroom when “his dad was on top of him.” J.B. testified that she and Fields went to the Haughton police department where she spoke with Officer Terry Yetman. She had A.D. with her and he told the officer that he “touched his father’s willie.” J.B. also testified that Davis was prosecuted on the charges but “received a lesser charge and was court ordered to release all rights to [A.D.].”

In addition to this evidence, the state introduced a certified copy of the bill of information charging Davis with the oral sexual battery of A.D. with a copy of Davis’s fingerprints. The state also presented the testimony of the investigating officer, Terry Yetman. Officer Yetman testified that J.B. contacted him on July 15, 2003, regarding allegations relating to Davis and her son. Officer Yetman stated that he forwarded sexual charges to the Bossier Parish District Attorney’s office. He testified that he determined Davis’s birth date as March 21, 1972, and he identified Davis in court as the defendant in the subject proceedings.

At trial, Davis objected to the introduction of all of this evidence. The trial court summarily denied the objections on the grounds given in the pretrial rulings. Davis reurges his objection to the hearsay nature of J.B, |uand the babysitter’s testimony and argues undue prejudice in the introduction of the charging documents and arrest information.

Given the broad discretion afforded to the trial court in these matters, we find the evidence to have been properly admitted. The facts regarding Davis’s previous sexually assaultive behavior toward his four-year-old child was extremely relevant to show other sexually assaultive behavior to a young child, as well as a lustful disposition toward young children. The evidence of Davis’s guilty plea to second degree battery is admissible as an exception to the hearsay evidence rule under La. C.E. art. 803(22). Likewise, the certified copy of the bill of information charging Davis with the oral sexual battery of A.D. was properly introduced into evidence as an exception to the hearsay rule under La. C.E. art. 803(8)(a)(iii) as a record or report setting forth factual findings resulting from an investigation made pursuant to authority granted by law. State v. Jones, 36,553 (La.App.2d Cir.1/29/03), 840 So.2d 7, writ denied, 03-0956 (La.10/03/03), 855 So.2d 309. Officer Yetman testified to events which were within his personal knowledge and completed the story of events. Any prejudice which may have resulted from his testimony that “sexual allegations” were referred to the District Attorney was cumulative in light of the bill of information which was properly introduced into evidence.

Finally, Davis’s argument regarding the hearsay testimony of J.B. and Fields is precluded by La. C.E. art. 804 which sets forth a hearsay exception in some instances where the declarant is unavailable. Here, both sides stipulated that the child, if called, would say he had no memory of the | ^events. Thus, A.D.’s lack of memory on the subject rendered him unavailable as a witness under La. C.E. art. 804(A)(3). J.B. and Fields’s testimony regarding A.D.’s initial complaint of sexually assaul-tive behavior to them was admissible under La. C.E. art. 804(B)(5), which excludes from the hearsay exception a statement of initial or otherwise trustworthy complaint of sexually assaultive behavior made by an unavailable person under the age of 12 years. The extremely probative nature of the evidence outweighs any undue prejudice to Davis. On these grounds, Davis’s argument has no merit.

Prostitution Activity/Acts with Underage Girls

As evidence of other bad acts by Davis, the state introduced the testimony of J.B. and D.G. that Davis involved them in prostitution when each was 16 years old. The state also presented the testimony of J.B., D.W., C.P., and S.S. to show that Davis had engaged in other acts of indecent behavior with juveniles. J.B. testified that she was 16 and Davis, 24, when her relationship with him became sexual. D.W. testified that she was 16 in 1998 when she and Davis engaged in consensual sex on two occasions. C.P. testified that she was 14 when Davis forcibly had sex with her without her permission. S.S. testified that she was 14 when she had consensual sex with Davis about three times after meeting him on the Internet.

|lsThe evidence of Davis having sex with J.B. when she was under the age of 17 obviously was the state’s direct proof of the charged offense of indecent behavior with a juvenile. Moreover, in a prosecution for indecent behavior with juveniles, it is proper to admit proof of similar but disconnected crimes to show the specific intent element of the charged crime. State v. Jackson, 625 So.2d 146 (La.1993); State v. Wallace, supra. Thus, this type of evidence has been held to be useful in negating any defense that the defendant acted without intent or that the acts were accidental. Id. Moreover, evidence of Davis’s propensity for sexual relations with minor girls under the age of 17 and promotion of minor prostitution with adult males would be relevant to indicate a lustful disposition toward juvenile girls and admissible as proof of the indecent behavior with juveniles offense.

The two girls’ testimony relating to the prostitution was corroborated by the bill of information charging Davis with promotion of prostitution and his subsequent guilty plea to the charge. Challenges for the lack of corroboration and unreliability of the testimony were presented to the jury through the face-to-face confrontation of the witnesses by defense counsel.

Computer Images

The final evidence of defendant’s bad act regarded J.B.’s testimony of her observation of nude or semi-nude computer images of girls aged 10-13 on a computer which she and Davis owned. J.B. testified that after the birth of A.D. in June of 1999, when she and Davis resided together in Shreveport, she found a computer disk which was hidden in a closet. She placed the |14disk in the couple’s computer and observed “several pictures of young girls,” “before they hit puberty.” J.B. testified that in her estimation the girls were between the ages of 10 and 13. She testified that “they were not dressed. I don’t recall them doing anything.” She also stated that, “I remember they were just standing or sitting nude.”

Davis argues that evidence of his possession of “child pornography” was “based on supposition and without any corroboration” and was “neither proven to belong to Davis” nor proven to contain “legally defined pornography.”

We find Davis’s argument relating to the admissibility of J.B.’s testimony to be without merit. While J.B. could not testify that she observed Davis recording the images, she did state that only she and Davis had access to the computer and that she confronted Davis about the images. No other explanation for the images was suggested by the defense. The jury heard J.B.’s description of the bad acts, and she was fully cross-examined by the defense. Any mention of “child pornography” by the state in pleadings or in court proceedings was made during pretrial proceedings and out of the presence of the jury and did not prejudice Davis. Moreover, the evidence was relevant to show Davis’s continued obsession with and lustful disposition toward young children and girls. Because the probative nature of the evidence outweighs any prejudice, the court’s ruling for admissibility of the evidence under La. C.E. arts. 412.2 and 403 was within its discretion.

_bu.

In his second assigned error, Davis argues that KF.’s mother was erroneously allowed to state that in her opinion Davis was the “architect of what was done.” Davis asserts that this was inadmissible opinion evidence that was not based on personal knowledge of the facts and which was “unfairly prejudicial.”

Relating to lay opinion testimony, La. C.E. art. 701 provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

A reviewing court must ask two pertinent questions to determine whether the trial court properly allowed lay opinion testimony: (1) was the testimony speculative opinion evidence or simply a recitation of or inferences from facts based upon the witness’s observations; and (2) if erroneously admitted, was the testimony so prejudicial to the defense as to constitute reversible error. State v. LeBlanc, 05-0885 (La.App. 1st Cir.2/10/06), 928 So.2d 599.

As a general rule, a lay witness is permitted to draw reasonable inferences from his or her personal observations. If the testimony constitutes a natural inference from what was observed, no prohibition against it as the opinion of a non-expert exists as long as the lay witness states the observed facts as well. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, 1033, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

[1fiOn direct examination by the state, the mother of K.F. testified that she first met Davis in 2000 after which she and Davis became friends. During a period of time in 2005 when KF.’s mother and father were having marital difficulties, her mother allowed other people to watch her children. She testified that those people included Davis and Ticer, with whom her children often stayed. In early 2005, K.F. told her what Davis and Ticer had done. On cross-examination, the defense sought to elicit testimony to show that Davis’s codefendant, Melissa Ticer, was the main actor in the crime. On redirect by the state, the following exchange occurred:

Q. Did you draw any distinction in your mind from based on what [K.F.] told — let me just ask it this way. Based on what [K.F.] told you and the details of what she said who did she describe as being more responsible for the acts upon her?
A. Rick.
Q. Based on — and your statement to Deputy Brooks essentially what your [sic] largely doing is giving her the background and then telling her what [K.F.] told you, right?
A. Right.
Q. Mr. Golden asked [sic] you didn’t see this stuff happen, you’re not giving eyewitness account?
A. Right.
Q. Whatever you may have said in the statement based on what you heard from [K.F.] who did you believe was the architect of what was done?

At that point, defense counsel lodged an objection to KF.’s answer. Before the court was able to overrule the objection, the witness named Davis in answer to the state’s question. It is this exchange which is the subject of the assignment of error.

From K.F.’s testimony, she primarily reported the facts of Davis’s involvement with her daughter and his opportunity to commit the crime. She also reported the initial revelation of the crime by her daughter and was 117obviously aware of the details of Davis’s actions which K.F. testified to at trial. Her view regarding Davis’s role as the architect of the assaults upon her child was drawn from the reasonable and natural inferences from the facts. To the extent that her conclusion elevated Davis’s role in the matter above that of Ticer’s, we find that conclusion as a harmless expression of her opinion since both parties were shown to have been involved in the crime. This assignment of error is without merit.

III.

Davis also argues that the trial court erred in prohibiting him from offering details of independent bad acts by Melissa Ticer, denying him the right to present a defense, in violation of due process of law as guaranteed by the United States and Louisiana Constitutions.

On October 25, 2007, Davis filed a Notice of Intent to Use Other Crimes Evidence Pursuant to La. C.E. arts. 404(B) and 412.2 relating to evidence that code-fendant, Melissa Ticer, sexually assaulted another 4-year-old child. Davis proposed to offer the evidence to show Ticer’s opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident regarding the crime upon K.F., as well as her lustful disposition toward children.

On December 6, 2007, the state responded with a Motion in Limine to Limit Questioning of codefendant, Melissa Ticer, pursuant to La. C.E. arts. 607 and 608(B).

La. C.E. art. 607 reads as follows: Attacking and supporting credibility generally
|1SA. Who may attack credibility. The credibility of a witness may be attacked by any party, including the party calling him.
B. Time for attacking and supporting credibility. The credibility of a witness may not be attacked until the witness has been sworn, and the credibility of a witness may not be supported unless it has been attacked. However, a party may question any witness as to his relationship to the parties, interest in the lawsuit, or capacity to perceive or to recollect.
C. Attacking credibility intrinsically. Except as otherwise provided by legislation, a party, to attack the credibility of a witness, may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony.
D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
(1) Extrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.

Additionally, La. C.E. art. 608(B) provides as follows:

B. Particular acts, vices, or courses of conduct. Particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.

In its motion, the state alleged that it had advised the defendant by supplemental discovery that independent allegations of sexual abuse had been made against Ticer by parties unrelated to this case. Pursuant to La. C.E. art. 608(B) the state argued that the defendant was prohibited from | ^questioning Ticer about these matters, but that Article 607 allowed limited questioning about these unrelated allegations to explore for the jury whether the state had leverage over her due to those allegations.

Prior to opening statements, the court addressed the state’s motion. Davis sought to put on testimony from the other alleged victim or the victim’s mother to show that it was Ticer who procured Davis to commit the sexually abusive acts upon K.F. and to show Ticer’s lustful disposition toward young children which precipitated her to act on her own. The court deferred ruling at that time and asked the lawyers to modify them opening statements accordingly. During Ticer’s testimony, the court excused the jury and allowed further arguments by counsel on the issue. Davis essentially argued that his right to present a defense required that he be allowed to put on evidence of Tieer’s lustful disposition toward children by putting on testimony of an alleged sexual assault by Ticer of another four-year-old girl.

The trial court granted the state’s motion on the grounds that Ticer had demonstrated her lustful disposition through her own testimony and that the unrelated allegations would be cumulative evidence. The court also concluded that La. C.E. art. 412.2 was not applicable to witnesses.

The Sixth Amendment of the United States Constitution and Article I, § 16, of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. The primary purpose behind this right is to secure for the defendant the opportunity for cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Tauzin, 38,-436 (La.App.2d Cir 8/18/04), 880 So.2d 157; State v. Hotoph, 99-243 (La.App. 5th Cir.11/10/99), 750 So.2d 1036, units denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066.

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. State v. Hillard, 398 So.2d 1057 (La.1981); State v. Tauzin, supra. The scope and extent of cross-examination is within the discretion of the trial judge, whose ruling will not be disturbed absent an abuse of discretion. State v. Garrison, 400 So.2d 874 (La.1981); State v. Tauzin, supra; State v. Hotoph, supra. An accused also has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Tauzin, supra; State v. Hotoph, supra.

La. C.E. art. 607(C) permits a party to attack the credibility of a witness by examining her concerning any matter having a reasonable tendency to disprove the truthfulness of her testimony. This grant is necessarily subject to the relevancy balance of La. C.E. art. 403 and to the limitation set forth in La. C.E. art. 608(B), generally precluding inquiry into particular acts, vices or courses of conduct to attack character for truthfulness. State v. Tauzin, supra.

Considering the broad discretion granted to the trial court in these matters, we find no reversible error in the trial court’s granting of the state’s motion in limine which limited the cross-examination of Ti-cer regarding her alleged other acts of sexual abuse and precluded testimony of the other |2ivictims of the alleged crime. Evidence of Ticer’s lustful disposition was placed before the jury in her admissions both of the present offense and upon cross-examination by defense counsel, when she admitted to a separate allegation of abuse involving another child. The testimony of Ticer’s cellmate also established Ticer’s lustful disposition toward children.

The trial court in this case did not prevent defendant’s right and ability to cross-examine Ticer concerning any bias and the charges against her. Instead, the trial court prohibited evidence through the testimony of other witnesses of a prior bad act of Ticer. Such evidence is unrelated to the crime with which the defendant is charged and prohibited as an attack on Ticer’s character under La. C.E. art. 608(B). The trial court also correctly ruled that La. C.E. art. 412.2 applies only to the accused and not a witness.

IV.

In his final assignment of error, Davis argues that the sentence on Count Two (indecent behavior with juveniles) was final upon original imposition and the trial court had no authority to amend it to make it consecutive to Count One (aggravated rape).

The Supreme court has held that “the revesting of jurisdiction in the district court [is] no broader than the ‘sole’ question” for which the case was remanded. State v. Williams, 05-1556 (La.2/17/06), 921 So.2d 105. Pursuant to his appeal in this death penalty case, Davis sought review only of the constitutionality of the death penalty for aggravated rape. The Supreme Court only set aside the death penalty (not the conviction) and remanded the case to the district court “for resen-tencing of the defendant tojjjife imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” Thus, the trial court’s change of the sentence for indecent behavior with juveniles, making it consecutive to the sentence of the other conviction, appears outside the parameters of the remand order and the jurisdiction of the trial court.

Moreover, when the defendant in a felony case has been sentenced to imprisonment at hard labor, there is no provision allowing an amendment of a legal sentence after its execution has begun. La. C. Cr. P. art. 881; State v. Sholar, 35,047 (La.App.2d Cir.10/31/01), 801 So.2d 534. La. R.S. 15:566.2 provides that whenever a prisoner is sentenced to the state penitentiary (hard labor) and has not been released on bail or perfected a suspensive appeal, such a sentence shall be considered as commencing on the day following the day on which such prisoner is sentenced without regard to the actual date of incarceration in the state penitentiary. Article 881, interpreted with La. R.S. 15:566.2, allows a sentence which is not stayed, one day to be amended. State v. Sholar, supra; see also State v. Guajardo, 428 So.2d 468 (La.1983). Here, Davis’s appeal to the Louisiana Supreme Court concerned only the aggravated rape conviction. No stay of the indecent behavior with juveniles conviction and sentence is evident from the record before us. Thus, the commencement of execution of this sentence began the day after the trial court remanded custody of Davis to the sheriff for transfer to the department of corrections on December 17, 2007. After this date, the trial court had no authority to amend Davis’s sentence Igjfor the indecent behavior with juveniles offense. Thus, we reinstate the original sentence to run concurrent with the life sentence.

Decree

For the foregoing reasons Davis’s convictions and aggravated rape sentence are affirmed. The original sentence for the indecent behavior with juveniles conviction is reinstated and affirmed.

CONVICTIONS AND AGGRAVATED RAPE SENTENCE AFFIRMED; ORIGINAL INDECENT BEHAVIOR WITH JUVENILES SENTENCE REINSTATED AND AFFIRMED.

      . Louisiana's death penalty was held unconstitutional for aggravated rape of a child under 13 years of age in Kennedy v. Louisiana, - U.S. -, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008).

      . Melissa Ticer, Davis's girlfriend, was also indicted for the aggravated rape of K.F.

      . Both sides stipulated that if called to the stand, A.D. would not recall the events and the court ruled that he was unavailable to testify.

      . Certified copies of the minutes of Davis's 1998 guilty plea to the crime of promotion of prostitution were submitted into evidence. Lieutenant Mike Smith of the Bossier Parish Sheriff’s Office testified regarding the arrest and investigation of Davis for the offense.

      . The slate did not introduce the computer or computer disk into evidence.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge. LOMBARD, J.,

license: Public Domain

text:
    Jason BANKSTON v. DEPARTMENT OF FIRE.
    No. 2009-CA-1016.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 18, 2009.

      Louis L. Robein, Jr., Kevin R. Mason, Robein Urann Spencer Picard & Cangemi, APLC, Metairie, LA, for Plaintiff/Appellant.
    Penya Moses-Fields, City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

| t This is a civil service case. Jason Bankston, an employee of the New Orleans Fire Department (NOFD), seeks reversal of the decision of the Civil Service Commission denying his appeal of the discipline imposed by the appointing authority, the NOFD. Mr. Bankston contends that his actions were not prejudicial to the efficient operation of the NOFD and that the discipline imposed — a ninety (90) day suspension — was not commensurate with the offense — failing to report for a hurricane emergency activation. We affirm the Commission’s finding that Mr. Bankston should be disciplined and suspended, but we amend that judgment to reduce the length of his suspension from ninety (90) to thirty (30) days.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2000, Mr. Bankston, a Fire Apparatus Operator, was hired by the NOFD. In April 2008, he attained permanent status. In September 2008, the NOFD filed charges against Mr. Bankston for violating Section 4 of the NOFD Hurricane Guidelines, which mandates that certain fire suppression personnel Rreport for duty when an emergency activation is called. Mr. Bankston was charged with failing to report for duty at 7:00 p.m. on August 31, 2008, during the recall for Hurricane Gustav. He pled not guilty to the charge. On October 2, 2008, the Superintendent of Fire, Charles Parent, issued a disciplinary letter to Mr. Bankston finding him guilty and suspending him for ninety (90) days. Mr. Bankston appealed the NOFD’s decision to the Commission. The Commission appointed a hearing officer to receive testimony. At the Commission hearing, three witnesses testified: Mr. Bankston, Captain Edward Poole, and Deputy Bryan Johnson. To provide a background for our analysis, we summarize the testimony of each witness.

(i) Mr. Bankston

On Sunday, August 31, 2008, Mr. Bank-ston completed his regularly-scheduled shift, which ended at 7:00 a.m. When his shift ended, he evacuated his family — wife and fourteen month old baby — out of the city in preparation of Hurricane Gustav. Mr. Bankston explained that his wife suffers from asthma attacks and was unable to evacuate herself and their baby safely without assistance. He therefore drove his family to a relative’s house north of Houston, Texas. While en route to Houston, he received a telephone call at about 3:00 p.m. from Captain Peltier, who informed him that all firemen were to report at 7:00 p.m. that day for emergency activation. Because contra flow traffic (both sides of the interstate being utilized for evacuation purposes) had begun, Mr. Bankston was unable to |3turn around. He informed Captain Peltier he would report as soon as he dropped off his family.

Mr. Bankston’s trip to Houston took a very long time (about thirteen hours) because southeast Texas contemporaneously was evacuating in preparation for the hurricane. When he arrived at his destination in Houston around 9:00 p.m., Mr. Bank-ston contacted his immediate supervisor, Captain Poole, and the District Chief, Chief LeBlanc. He informed them that he was going to rest for a few hours and start back to New Orleans early the next morning to report for duty.

On the next morning, he woke up at 4:00 a.m. and headed towards New Orleans; however, he was not allowed to travel past Lafayette. When he reached Lafayette, the state police would not let him through. Even though he possessed credentials from Hurricane Katrina identifying him as a first responder, the state police informed him that all roads to the New Orleans area were closed and that no one would be let through. Mr. Bankston thus returned to Houston. Mr. Bankston explained that after the hurricane hit portions of the interstate remained closed due to downed power lines. When he learned on Wednesday that the roads were clear, he returned to New Orleans. He arrived home on Wednesday afternoon. Because the fire department had returned to the normal work schedule, he did not return to work until Friday, his next regular workday.

While he was out of town, Mr. Bankston remained in daily contact with Captain Poole and Chief LeBlanc. He was informed that he had been placed on emergency annual leave. Mr. Bankston acknowledged that he missed the ^emergency activation. However, he testified in the nearly ten years he has been employed with the NOFD he has never been disciplined.

(ii) Captain Poole

Captain Poole, Mr. Bankston immediate supervisor, testified that when the normally scheduled shift ended on Sunday, August 31, 2008, no concrete plan for an emergency activation had been made; emergency activation was merely a possibility. Captain Poole testified that Mr. Bankston contacted him around 3:00 p.m. that day to inform him that he was stuck in contra flow traffic. Captain Poole stated that both he and Mr. Bankston agreed that Mr. Bankston would report as soon as possible. Captain Poole testified that he did not tell Mr. Bankston that he did not have to report. On that Sunday night, Captain Poole informed Deputy Chief Frank of Mr. Bankston’s situation. Deputy Chief Frank told Captain Poole to carry Mr. Bankston on emergency annual leave, which is time off granted to a NOFD employee in an emergency situation. Captain Poole stated he informed Mr. Bank-ston that he was placed on emergency annual leave. Captain Poole confirmed that he spoke with Mr. Bankston daily during the time Mr. Bankston was unable to report. According to Captain Poole, the firemen were sent home at 7:00 a.m. on Wednesday, September 3, 2008.

Captain Poole stated Superintendent Parent asked for additional reports to determine whether Mr. Bankston’s failure to report was premeditated. Captain Poole testified that Superintendent Parent did not like the answers he received [,-.indicating Mr. Bankston’s failure to report was not premeditated. Captain Poole characterized Mr. Bankston as an excellent employee.

(Hi) Deputy Johnson

Deputy Johnson, acting deputy for administration, testified that the hurricane guidelines are reviewed yearly for any changes that may be needed. Deputy Johnson stated the guidelines are posted in every firehouse and are designed to inform the firefighters what is expected of them in the event of a hurricane. Deputy Johnson acknowledged that the guidelines inform the firefighters that they will be required to report for duty during an emergency such as a hurricane because the manpower is needed. Deputy Johnson testified that the morale of other firefighters would be affected if a firefighter did not report during an emergency and was not disciplined. Deputy Johnson explained that it would affect morale as all firefighters would prefer to evacuate with their families during a hurricane. Deputy Johnson testified that the emergency activation was implemented on August 31, 2008, and ended on September 12, 2008.

Deputy Johnson acknowledged that the matrix, a guideline revealing the appropriate punishment for specified violations, did not contain an appropriate punishment for failure to report. Deputy Johnson testified that in determining the appropriate discipline to impose in this case Superintendent Parent wanted to make it clear that it is important for firefighters to appear during an emergency situation and wanted to make a statement with the ninety (90) day suspension for failure to report during an emergency situation. Deputy Johnson noted the guidelines 1 Bprovide that no annual leave will be granted during an emergency situation, but stated that Deputy Chief Frank was not disciplined for violating the guidelines by granting annual leave to Mr. Bankston. Deputy Johnson stated that Superintendent Parent sought additional information to determine whether Mr. Bankston’s failure to report was premeditated.

The NOFD entered into evidence a document entitled “Fire Suppression Operations,” which encourages firefighters to take steps necessary to protect their families and notifies the firefighters that they are required to report for duty if recalled during an emergency such as a hurricane. The document states:

In the event a Hurricane is expected to this area, all off-duty personnel are encouraged to take the necessary precautions to protect their families and property as quickly as possible. The safest procedure for families is evacuation. Fire Suppression, Fire Alarm, Fire Prevention and designated Administrative Staff personnel are essential employees and are to comply with this section of the guidelines. They are required to report to duty, if recalled, during an emergency such as a hurricane — see rule 5.2.21 of the Rules and Regulations. No leave will be granted at this time. Any member using sick leave must be under the care of a physician. (Emphasis supplied in the original.).

The hearing officer prepared a report for the Commission. Although the hearing officer agreed that discipline should be imposed on Mr. Bankston, he believed the discipline imposed was an abuse of the NOFD’s discretion. After reviewing the report, the evidence, and the testimony, the Commission, in a split decision, denied the appeal and upheld the discipline imposed on Mr. Bankston.

This appeal followed.

DISCUSSION

The legal standards governing this dispute are well-settled and can be summarized as follows: Williams v. Dep’t of Police, 08-465, pp. 6-7 (La.App. 4 Cir. 10/22/08), 996 So.2d 1142, 1145-46 (citing Harris v. Department of Fire, 08-0514, pp. 5-6 (La.App. 4 Cir. 7/16/08), 990 So.2d 54, 62).

1An employer cannot subject a permanent classified civil service employee to disciplinary action except for cause expressed in writing. La. Const. Art. X, § 8(A); Walters v. Dep’t. of Police, 454 So.2d 106, 112 (La.1984).
• Cause for discipline of an employee exists whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Dep’t. of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990).
• “The appointing authority is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause.” Whitaker v. New Orleans Police Dep’t., 03-0512, p. 5 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575.
• The employee may appeal from such a disciplinary action to the Commission. On appeal, the Commission has a duty to decide independently from the facts presented whether the appointing authority had good and lawful cause for taking the disciplinary action and, if so, whether the punishment imposed was commensurate with the infraction. Walters, 454 So.2d at 113.
• “The authority to reduce a penalty can only be exercised if there is insufficient cause.” Whitaker, 03-0512 at p. 4, 863 So.2d at 575 (citing Branighan v. Dep’t. of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978)). Further, a legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. Branighan, 362 So.2d at 1221. The Commission may not merely substitute its judgment for the appointing authority’s judgment. Whitaker, 03-0512 at p. 5, 863 So.2d at 576.
• On appeal, the standard of review is established by the constitutional rule that the Commission’s decision is subject to review on any question of law or fact. La. Const, art. X, § 12. A multifaceted standard of appellate review applies. First, as in other civil matters, deference must be given to the Commission’s factual findings, which should not be disturbed unless manifestly erroneous or clearly wrong. Second, in evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the appellate court should not modify the Commission’s decision unless it is arbitrary, capricious, or characterized by an abuse of discretion. Bannister, 95-404 at p. 8, 666 So.2d at 647. Arbitrary or capricious means there is no rational basis for the action taken by the Commission. Id.

| ¿The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the Department. Cure v. Dep’t. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094 (citing Marziale v. Dep’t of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767). On appeal, the two issues that must be addressed are (i) whether the appointing authority had good or lawful cause for taking the disciplinary action, and (ii) whether the punishment imposed is commensurate with the offense. Williams v. Dep’t of Police, 08-465 at p. 7, 996 So.2d at 1146. To establish that it had good or lawful cause the appointing authority must satisfy a two-pronged burden of proof: (i) prove that the complained of conduct occurred, and (ii) prove that the conduct impaired the efficiency of the Department. Id.

In this case, the complained of conduct was Mr. Bankston’s failure to report for duty on August 31, 2008, after receiving the notification of the emergency activation. Although he admits he failed to report, Mr. Bankston contends that the NOFD failed to prove his action was prejudicial to the public service and detrimental to NOFD’s efficient operation. The NOFD counters that Mr. Bankston’s failure to appear created a real and substantial risk to the NOFD.

At the Commission hearing, the NOFD presented the testimony of Deputy Johnson to establish that Mr. Bankston’s absence created a real and substantial risk to the NOFD. As noted earlier, Deputy Johnson testified that in the event of a hurricane manpower is needed. Deputy Johnson further testified that if a fireman who did not report for duty was not disciplined, it would affect morale. TheJ^firemen who did report may not appear the next time there is an emergency activation as everyone would prefer to evacuate with their families.

The record thus supports the Commission’s finding that Mr. Bankston’s failure to appear was prejudicial to the public service and created a real and substantial risk to the NOFD. The Commission explained its finding in its decision as follows:

The record clearly establishes that the Appellant chose to evacuate his family rather than remain in the City for a hurricane emergency. If the Appellant found himself in a difficult situation where he was required to choose between his family and the citizens of New Orleans, he is responsible for his dilemma based upon his failure to properly plan. Knowing what we know from our experience with Hurricane Katrina, there is no acceptable excuse for waiting until the last minute to evacuate your family if they cannot evacuate themselves. The Appointing Authority did not abuse his discretion by severely penalizing the Appellant for his poor judgment.

The Commission thus correctly concluded that Mr. Bankston’s failure to report for the emergency activation was prejudicial to the public service and detrimental to the NOFD’s efficient operation. Given our finding that the Commission correctly concluded that Mr. Bankston should be disciplined, we turn to the issue of whether the discipline imposed was commensurate with the offense.

Mr. Bankston contends that the discipline imposed — a ninety (90) day suspension — was not commensurate with the offense — failing to report. The NOFD counters that the discipline imposed was intended to send a strong message to all firefighters that failure to report in an emergency situation will not be tolerated.

At the hearing, Mr. Bankston testified that his wife was not able to leave during the week. He further testified that he reported for his regularly-scheduled shift on Saturday, August 30, 2008, and was unable to assist his wife in evacuating | muntil he got off of work on Sunday, August 31, 2008, at 7:00 a.m. Mr. Bankston explained that due to his wife’s medical condition, she was unable to manage evacuating with their infant child without assistance. Mr. Bankston testified he intended to report for duty and attempted to return to the city to report for duty before the hurricane made landfall. After the hurricane, Mr. Bankston daily contacted the state police to determine when the roads would be opened. The record reflects that while out of town Mr. Bankston remained in constant contact with his Captain and Chief LeBlanc. Further, Deputy Chief Frank informed Captain Poole to place Mr. Bankston on emergency annual leave, although the guidelines provide that no annual leave will be given. The NOFD presented no evidence that Mr. Bankston’s failure to report was premeditated.

Considering the mitigating factors noted above, we find the Commission acted arbitrarily in finding a ninety (90) day suspension commensurate with Mr. Bankston’s failure to report. In so finding, we note the sole reason the NOFD cited in setting the length of the suspension was to make a policy statement regarding the importance of firefighters reporting for duty in the event of an emergency activation. While we acknowledge the importance of first responders such as Mr. Bankston reporting for emergency activation duty, we also note the mitigating circumstances in this particular case dictate a less severe penalty be imposed. We thus reduce the discipline imposed from a ninety (90) day to a thirty (30) day suspension.

DECREE

While we agree with the appointing authority and the Commission that Mr. Bankston should be disciplined, we find a ninety (90) day suspension to be arbitrary and excessive in this case. Accordingly, we affirm Mr. Bankston’s | ¡ , suspension, but reduce the discipline imposed from a ninety (90) day to a thirty (30) day suspension.

AFFIRMED AS AMENDED.

LOMBARD, J., Concurs in part and Dissents in part.

LOMBARD, J.,

Concurs in part and Dissents in part.

Iil agree with the majority that the Commission acted arbitrarily in finding that a ninety day suspension was not commensurate with Mr. Bankston’s failure to report and that a less severe penalty should be imposed. Having reached that decision, however, I do not understand how the majority has reached the determination that a thirty day suspension is any less arbitrary and excessive. Under these circumstances, an admonishment appears to be appropriate. Accordingly, I respectfully concur in part and dissent in part.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Daniel J. RONQUILLE.
    No. 09-KA-231.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.
    Rehearing Denied Feb. 1, 2010.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12The Defendant, Daniel J. Ronquille, appeals his conviction of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. We affirm.

The Defendant was charged with the crime in November of 2006. He was arraigned and pled not guilty. On April 16, 2007, before the trial began, the State amended the bill of information to add a second predicate felony. Trial was held on April 16 and 17, 2007 before a 12-person jury. He was found guilty as charged.

On May 7, 2007, the trial judge sentenced the Defendant to imprisonment at hard labor for 14 years without benefit of parole, probation, or suspension of sentence. On April 7, 2008, the Defendant filed an untimely pro se motion for appeal. He subsequently filed an application for post-conviction relief seeking an out-of-time appeal that was granted.

The evidence at trial shows that on February 15, 2006, the Defendant went to B.J.’s Pawn Shop in Gretna, Louisiana, with a CZ rifle that he wanted to pawn. Danny Rees, the manager, testified that he remembered the rifle. |sCoincidentally, a few weeks before, a friend told him that if he ever came upon one for sale, he would be interested in buying it.

After checking the Defendant’s driver’s license, Rees scanned the driver’s license onto the pawn shop receipt. The pawn shop receipt included the serial number of the CZ rifle. That information was provided to the Jefferson Parish Sheriffs Office (JPSO) so they could verify that the weapon had not been stolen.

Two months later, in April of 2006, Agent Wyatt Evans of the Bureau of Alcohol, Tobacco, and Firearms (ATF) learned that the Defendant had pawned a gun even though he was still within ten years after his parole. On April 19, 2006, Agent Evans went to the pawn shop and asked Rees if he remembered a transaction involving a CZ rifle. Rees responded affirmatively. Agent Evans subsequently showed Rees a photographic lineup, and Rees immediately identified the Defendant as the man who pawned the rifle. Pursuant to Agent Evans’ request, Rees kept the rifle in his possession.

Jill Ott, an employee of the Department of Corrections, Division of Probation and Parole, testified that she was the Defendant’s parole officer starting in March of 2000. She supervised the Defendant after he was released from prison on a simple burglary conviction and an aggravated burglary conviction. She stated that the Defendant had been released from prison in February of that year. When she met him, the Defendant was newly on parole for the aggravated burglary case, and was still on parole for the simple burglary conviction.

Ott testified that, shortly before the Defendant was released from prison, he signed a “Diminution of Sentence” form which informed him he would not be released until he agreed to all of the conditions of release. Condition number ten on that form provided, “I shall not have in my possession or control any firearms or danger [sic] weapons.” The “Diminution of Sentence” form also required the | ¿Defendant to remain under supervision until his parole expired on September 27, 2001. Ott testified that the Defendant completed supervision on both cases. Af-terwards, the State mailed the Defendant a “closure” letter dated November 15, 2001 to an address provided by the Defendant explaining that he had completed his term of supervision. Paragraph 4 of that letter also provided, “since your conviction included an offense outlined in R.S. 14:95.1, this restoration does not restore to receive, possess, or transport a firearm; your right to bear firearms will automatically be restored 10 years from the date you complete this sentence.” Ott said that she normally instructed parolees that if they were going to be living with family members or friends who had weapons, the weapons had to be removed by someone other than the parolees.

Lieutenant Luis Mungia, an expert latent fingerprint examiner with the JPSO, testified that the fingerprints he took from the Defendant on March 13, 2007 matched those contained within the documents on the simple burglary conviction and those taken from the Defendant on March 30, 2000, when he went on probation and parole for both prior convictions.

After the State rested its case, the Defendant called his parents as witnesses. The Defendant’s father, Daniel Ronquille, Sr., testified that the CZ rifle was the property of his deceased grandson, Daniel. Daniel had lived with him and his wife, Sandra, from age two until he died at age 19 after shooting himself in the stomach. Ronquille stated that the CZ rifle was Daniel’s most cherished possession. After Daniel’s death, the Ronquilles stored the rifle out of their sight in Daniel’s room. After Hurricane Katrina, they went to live with their nephew, and the CZ rifle was placed in the hallway closet at his nephew’s house. Ronquille also kept his tools there, and got very upset every time he went into the closet. Ronquille testified that eventually he “couldn’t take it anymore,” and felt he had to “get rid of’ the |sgun. He did not do anything about it, but one day noticed the gun was missing. When he asked, his wife told him that she had asked the Defendant to dispose of the gun because it was “killing” the Defendant’s father.

Sandra Ronquille corroborated Ronq-uille’s testimony. She testified that it never entered her mind that the Defendant could not dispose of the gun because he was a convicted felon.

On appeal, the Defendant asserts that the evidence was insufficient to sustain a conviction for felon in possession of a firearm, where no evidence was introduced by the State to show that the Defendant did not have a permit for the weapon, which is a specific exception to the crime. He further asserts that the trial court abused its discretion in allowing the State to amend the bill of information to add a second felony predicate to the charge of being a felon in possession of a firearm.

The Defendant first argues that the evidence was insufficient to sustain the conviction because the State did not introduce evidence to show that he did not have a permit for the weapon. The State responds that it was not required to prove that the Defendant did not possess a permit.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the U.S. Supreme Court stated that the evidence is sufficient for a conviction if the conviction was based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Polizzi, 05-478, p. 9 (La.App. 5th Cir.2/14/06), 924 So.2d 303, 310.

|fiLa. R.S. 14:95.1 states:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.
C. Except as otherwise specifically provided, this Section shall not apply to the following cases:
(1) The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
(2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides, or in the case of Orleans Parish the superintendent of police, for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit.
(3) The sheriff or superintendent of police, as the case may be, shall immediately notify the Department of Public Safety, in writing, of the issuance of each permit granted under this Section. |7P. For the purposes of this Section, “firearm” means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.

In order to convict a defendant of violating La. R.S. 14:95.1, the State must prove that the defendant was in possession of a firearm and is a convicted felon. State v. Johnson, 03-1228, p. 5 (La.4/14/04), 870 So.2d 995, 998. The State must also prove that ten years has not elapsed since the date of completion of the punishment for the prior felony conviction. State v. Crawford, 03-1494, p. 26 (La.App. 5 Cir. 4/27/04), 873 So.2cl 768, 784, writ denied, 04-1744 (La.5/6/05), 901 So.2d 1083. General intent is required to commit this crime. Id.

There is an exception to the prohibition. Under La. R.S. 14:95.1 C(2), a defendant that obtains a permit from the State is allowed to possess a weapon. The sheriff then notifies the Department of Public Safety of the issuance of the permit. La. R.S. 14:95.1 C(3).

The Defendant does not dispute that he pawned the weapon within the ten year prohibition period. His sole argument is that the State failed to show that he did not have a permit to possess the weapon.

In a similar case, State v. Augillard, 371 So.2d 798 (La.1979), the Louisiana Supreme Court stated that that State did not have to prove that the defendant did not possess a permit in bearing its burden of proof. The Court held that this was a matter of a defense which the defendant had the burden of proving. The Court explained that the Defendant, more than the State, had reason to know of the parish of his residence and whether he applied for and received a permit from the sheriff |sof that parish. That information might not be readily available from the public records. Thus, the Court held that the burden is on the defendant to produce this exculpatory evidence, “peculiarly” accessible to him by which he might be exonerated from criminal responsibility for what otherwise was a violation of the penal statute. The Supreme Court concluded that defendant’s assignment was without merit. Id., 371 So.2d at 800.

Pursuant to Augillard, the Defendant here had the burden to prove that he had obtained a permit. Since there is no evidence in the record that the Defendant obtained a permit, we find no merit to this assignment of error.

In his second assignment of error, the Defendant asserts that the trial judge abused her discretion by allowing the State to amend the bill of information to add a second felony predicate to the charge of being a felon in possession of a firearm. The Defendant contends that the additional predicate was unnecessary to prove the offense and that it resulted in undue prejudice to him and his ability to receive a fair trial. The State responds that use of more than one prior conviction is permissible.

Before trial began, the prosecutor said that she had notified the defense two weeks before trial that she was amending the bill of information to allege three prior convictions, instead of one. She noted that she was filing the amended bill that morning. Defense counsel objected, stating that one felony count satisfied the requirement of La. R.S. 14:95.1. He argued that adding three more felony convictions was prejudicial to the Defendant and introduced a high probability of the jury finding the Defendant guilty based on the number of predicates, as opposed to the facts of the case. He also argued that the additional convictions Rwere superfluous and unnecessary. The prosecutor responded that there was no reason that she had to choose one prior felony conviction rather than three and remarked that the Defendant had been on parole for all three cases until September of 2001. She said that the parole officer was ready to testify to that, and that the parole officer advised her that the Defendant could not possess a firearm because of all three convictions.

Defense counsel responded that there was somebody in the district attorney’s office who believed that there should only be one felony because that was how the bill was originally filed and that it had only been amended very recently. After hearing arguments of counsel, the trial judge allowed the State to amend the bill of information, but did not provide reasons. She noted defense counsel’s objection.

In State v. Sanders, 357 So.2d 492 (La.1978), cited by both the State and Defendant in their briefs on appeal, the defendant was convicted of being a felon in possession of a firearm. On appeal, he contended the trial judge erred in permitting the State to introduce evidence of more than one of defendant’s prior convictions for certain felonies in LSA-R.S. 14:95.1. The Louisiana Supreme Court noted that an essential element of the crime was defendant’s prior conviction for one of the enumerated felonies. It found that defendant committed the offense of felon in possession of a firearm in one or both ways, i.e., after being previously convicted of attempted simple burglary and armed robbery. The Court concluded that evidence of both of defendant’s previous felony convictions was admissible at trial as proof of an element of the crime charged and the manner in which the present offense was committed, proof of either prior conviction being sufficient to support defendant’s conviction for the present offense. Hence, the trial judge Improperly permitted introduction in evidence of both of defendant’s previous felony convictions. Id., 357 So.2d at 493-94.

Likewise, in State v. Washington, 00-1542 (La.App. 5 Cir. 2/14/01), 782 So.2d 639, writ denied, 01-0940 (La.2/8/02), 807 So.2d 859, cited by the State in its brief, defendant was charged with being a felon in possession of a firearm based on two predicate felony convictions. He filed a motion in limine seeking to limit the State’s proof to one felony conviction, which the trial court apparently denied. On appeal, he argued that proof of more than one felony conviction was unduly prejudicial. This Court, citing Sanders, found that the trial court’s denial of the motion in limine was proper. Id., 00-1542 at 10-11, 782 So.2d at 644-45.

Also, in State v. Marrero, 363 So.2d 494 (La.1978), defendant contended that the trial judge erred in permitting the State to allege in the bill of information more than one of defendant’s prior convictions for a felony enumerated in La. R..S. 14:95.1. The Louisiana Supreme Court, citing Sanders, found that a prior conviction was an essential element of the crime and allowing the State to allege more than one previous conviction in the bill of information was not reversible error. Id., 363 So.2d at 499.

Pursuant to the decisions in Sanders, Marrero, and Washington, evidence of both of the Defendant’s previous felony convictions are admissible at trial as proof of an element of the crime charged. Therefore, we find that the trial judge did not err by allowing the amendment.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La. C. Cr. P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Polizzi, 05-478, p. 18 (La.App. 5 Cir. 2/14/06), 924 So.2d 303, 315. The review reveals only one error patent in this case that requires corrective action.

The record indicates that the trial judge failed to notify the Defendant of the two-year prescriptive period for filing an application for post-conviction relief, as required by La. C. Cr. P. art. 930.8. Although the commitment/minute entry indicates that the Defendant was advised of the prescriptive period for filing for post-conviction relief, the sentencing transcript indicates that he was not so advised. When there is a discrepancy between the transcript and the commitment/minute entry, the transcript governs. State v. Collins 07-0310, p. 3 (La.10/12/07), 966 So.2d 534, 535, citing State v. Lynch, 441 So.2d 732, 734 (La.1983).

In the past, the Court remanded in this situation, and ordered the trial court to inform defendant of the appropriate prescriptive period for filing for post-conviction relief by sending appropriate written notice to defendant within ten days of the rendition of this Court’s opinion and by filing written proof that defendant received the notice in the record. State v. Mutz, 04-1072, p. 9 (La.App. 5 Cir. 2/15/05), 896 So.2d 1129, 1135.

More recently, this court has chosen to correct this error in the opinion rather than by remanding the case, citing State v. Morris, 40,322, pp. 4-5 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363. See State v. Holmes, 08-719, p. 14 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 282-83 and State v. Davenport, 08-463, pp. 10-11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451. We find this procedure an | ^appropriate method of notifying the Defendant of the prescriptive period for post-conviction relief.

Therefore, the Defendant is hereby advised by this opinion that no application for post-conviction relief, including an application which seeks an out of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final. La. C. Cr. P. arts. 914 and 922.

Accordingly, the Defendant’s conviction is affirmed.

AFFIRMED.

      . Acts 2009, No. 160, § 1, in subsec. A, inserted "or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, ...”

      . Acts 2009, No. 154, § 1 added subsec. D.

      .La. R.S. 14:95.1 C(2) states that, "Upon completion of the sentence, probation, parole, or suspension of sentence, the convicted felon shall have the right to apply to the sheriff of the parish in which he resides ... for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit.”

      . The amended bill of information indicates that the State alleged three prior convictions: 98-6217 (simple burglary); 87-1258 (aggravated burglary); and 317-641 (possession of heroin). A line, however, was drawn through the case involving the heroin conviction. The record does not reflect that the jury was informed of this conviction, and the Defendant does not raise this as an issue.

      . Two other errors were noted that we need not address. First, the trial judge failed to impose a mandatory fine. Pursuant to our authority to refrain from taking action in this regard, we will not correct the sentence. See State v. Proctor, 04-1114, p. 10 (La.App. 5 Cir. 3/29/05), 901 So.2d 477, 484; State v. Caffrey, 08-717, p. 10 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 205. See also La. C. Cr. P. art. 882. Second, neither the transcript nor the commitment/minute entry indicates that the jury was sworn as required by La. C. Cr. P. Arts. 788 and 790, but as no one raised this issue in either the trial or this Court, consideration of that issue is waived.

      . It is noted that the defendant in Davenport filed a writ application with the Louisiana Supreme Court on January 23, 2009.


author: CHARLES R. JONES, Judge.

text:
    Emile POISSENOT v. ST. BERNARD PARISH SHERIFF’S OFFICE.
    No. 2009-CA-0636.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 24, 2009.

      Robert Angelle, Metairie, LA, for Plaintiff/Appellee.

      Salvador E. Gutierrez, Jr., Mary Ann Hand, Gutierrez & Hand, Chalmette, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

| Appellant, the St. Bernard Parish Sheriffs Office (“SBPSO”), appeals the judgment of the Office of Workers’ Compensation awarding Mr. Poissenot: Supplemental Earnings Benefits (“SEB”) with interest from the date of his termination; periodic appointments with his treating physician; $6,000 worth of penalties against the SBPSO, and attorney’s fees. We affirm finding that the Office of Workers’ Compensation did not commit manifest error.

Emile Poissenot was employed by the SBPSO as a Deputy Sheriff working in a juvenile detention center when he suffered a serious injury to his right hand — his dominant hand — while attempting to subdue a juvenile detainee during the course and scope of his employment. As a result of his injury, Mr. Poissenot underwent three surgeries to his hand. His treating physician, Dr. Eric George, ultimately diagnosed him as having a permanent partial disability of 19% of the right hand and 17% of the right upper extremity. A functional capacity exam (FCE) performed on Mr. Poissenot stated that he could perform “medium level work activity.”

Post-accident he returned to work as a deputy in the same juvenile facility, but worked light duty with significant accommodations. Mr. Poissenot’s employment with the SBPSO ended when he was “furloughed” following | ^Hurricane Katrina. Since being furloughed, Mr. Poissenot has not been able to find employment. His medical benefits were interrupted by the Sheriffs Office, which neither provided him with vocational rehabilitation nor indemnity benefits since his termination.

Mr. Poissenot filed a Disputed Claim for Compensation in April of 2006, with the OWC, which awarded SEB, penalties and attorney’s fees to him. The SBPO timely filed an appeal.

The SBPSO raises four (4) assignments of error on appeal:

1.) The OWC committed error in holding that it was undisputed that a FCE indicated that Mr. Poissenot could do medium work “so long as he did not have to use his right hand” because the FCE did not restrict plaintiffs ability to perform medium work activity “so long as he does not use his right hand.”
2.) The OWC committed manifest error in holding that Mr. Poissenot was entitled to SEB in light of the fact that all objective evidence introduced at trial, including the testimony of his treating physician, the FCE and Mr. Poissenot’s own work history after his accident, proved that he could perform medium level work which was the same type of work that he was performing prior to his accident.
3.) The OWC committed error by improperly shifting the burden to SBPSO to prove that there were jobs in Mr. Poissenot’s geographic area which he was capable of performing which would pay him ninety (90%) percent of his pre-accident wages when he failed to carry his initial burden to prove that his injury resulted in his inability to earn that amount.
| ⅞4.) The OWC committed manifest error in awarding Mr. Poissenot penalties and attorney’s fees as a result of his finding that SBPSO acted arbitrarily and capriciously when all objective evidence introduced at trial supported the defendant’s position that plaintiff was not entitled to Supplemental Earnings Benefits.

“In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the ‘manifest error-clearly wrong’ standard.” MacFarlane v. Schneider Nat. Bulk Carriers, Inc., 2007-1386, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188. We will apply the manifest error standard of review to our discussion of the four (4) assignments of error raised by the SBPSO, and Mr. Pois-senot’s assertion that he is entitled to attorneys fees for his counsel’s work on the appeal sub judice.

The first assignment of error raised by the SBPSO is that the OWC committed error in holding that it was undisputed that a FCE indicated that Mr. Poissenot could do medium work “so long as he did not have to use his right hand,” because the FCE did not restrict plaintiffs ability to perform medium work activity “so long as he does not use his right hand.”

The SBSO is correct. The FCE did not specify that Mr. Poissenot could do medium work “so long as he did not use his right hand.” Nevertheless, within the FCE report there is a section entitled “SIGNIFICANT DEFICITS” which states that Mr. Poissenot had a decreased grip of the right upper extremity and a decreased range of motion of the right 4th and 5th metacarpophalangeal joint (MCP), proximal interphalangeal joint (PIP), and distal interphalangeal joint (DIP). In essence, Mr. Poissenot has two fingers on his right hand that are not fully functional. The FCE further notes that he has pain with pressure and palpation of |4the right hand. Presumably, the FCE was discussing the right hand because neither of the previous deficit statements referred to the left hand.

We find that the OWC’s statement that Mr. Poissenot could perform medium work “as long as he did not have to use his right hand” is a reasonable interpretation of the data contained within the FCE report. This error is harmless when the FCE results are read as a whole. A reviewing court is prohibited from reversing a hannless error. Hasney v. Allstate Insurance Co., 2000-0164, p. 13 (La.App. 4 Cir. 2/7/01), 781 So.2d 598, 606. Thus, we find that this assignment of error is without merit.

The second assignment of error raised by the SBPSO is that the OWC committed manifest error in holding that Mr. Poisse-not was entitled to SEB in light of the fact that all objective evidence introduced at trial, including the testimony of his treating physician, the FCE and Mr. Poisse-not’s own work history after this accident, proved that he could perform medium level work which was the same type of work that he was performing prior to his accident.

The purpose of SEB is to compensate the injured employee for the wage earning capacity he or she has lost as a result of an accident. Bethley v. City of New Orleans, 06-0921, p. 3 (La.App. 4 Cir. 10/18/06), 945 So.2d 738, 741 (citing Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993)). To qualify for SEB, a claimant is required to prove by a preponderance of evidence that a work-related injury resulted in the inability to earn 90% or more of his average pre-injury wage. • Id. (citing La. R.S. 23:1221(3)(a)).

Employees bear the initial burden of proving, by a preponderance of the evidence, that their injury resulted in their inability to earn ninety percent or more of their pre-accident wages. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. Only after an employee has met her burden of proof does the burden shift to the employer, who, in order to defeat the claim for supplemental earnings benefits or establish the employee’s earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee or available to the employee in her or the employer’s community or reasonable geographic region. Id.

La. R.S. 23:1221(3)(a) provides that:

For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve. [Emphasis added.]

The record before us does not indicate that Mr. Poissenot could perform the same type of medium level work that he performed before his accident in any occupation. Mr. Poissenot is right hand dominant and is not ambidextrous. The FCE results documented that his ability to use his right hand was diminished since his accident. The FCE report further indicated that Mr. Poissenot could not be tested on how he would react in a “fight/flight situation,” nor could he be tested on | fihis ability to apprehend or subdue a subject, actions which are integral to the activities of the deputy position he held at the time.

Before this incident, Mr. Poissenot testified that he would feed the prisoners, issue medications to them, escort them out to their showers, take them to court and to doctors appointments, and he could subdue them when necessary. Mr. Poissenot’s former supervisor at the SBPSO, Corp. Joseph Giroux, testified that he worked with Mr. Poissenot both before and after his accident. He testified that Mr. Poisse-not was assigned to light duty after his accident, and that his responsibilities on light duty were to watch surveillance cameras, answer the phone and do a little paperwork. Both Corp. Giroux and Mr. Poissenot testified that after the accident, Mr. Poissenot could not: carry a gun; qualify with a weapon; go into cells; or provide backup to other deputies whenever the juveniles at the detention center got into altercations. Indeed, Corp. Giroux testified that post-accident Mr. Poissenot attempted to come to his aid when the Corp. was being attacked by a juvenile. Corp. Giroux testified that the juvenile purposefully grabbed Mr. Poissenot’s right hand rendering him helpless to subdue the juvenile.

Mr. Poissenot’s treating physician was orthopedic hand surgeon Dr. Eric George. Dr. George performed two surgeries on Mr. Poissenot’s right hand. Dr. George testified that Mr. Poissenot still complained of pain in his right hand, and suffered with arthritic stiffness in both his right small finger and ring finger after his surgeries. He further testified that Mr. Poissenot will have difficulties with manual dexterity because his fingers cannot come all the way down, and he will have a diminution in grip strength and limitation in fisted flexion.

|-/Through his testimony, Mr. Poisse-not — who is approximately sixty-four (64) years old — established that he has no education beyond high school and he has extensive law enforcement experience. Except for working briefly as a baker, he testified that his work experience beyond high school has been with the Marine Corps, the New Orleans Police Department, the District Attorney’s Office for Orleans Parish and the SBPSO. Mr. Pois-senot further testified that since Hurricane Katrina he has been rejected for positions with the St. Tammany Parish Sheriffs Office, a bakery, and a tourist center because he does not have full use of his right hand. This testimony was not contradicted by the SBPSO. Mr. Poissenot has effectively demonstrated that he cannot perform the same type of work that he was performing prior to his accident. This assignment of error is without merit.

The third assignment of error raised by the SBPSO is that the OWC erred by improperly shifting the burden to the SBPSO to prove that there were jobs in Mr. Poissenot’s geographic area which he was capable of performing which would pay him ninety (90%) percent of his pre-accident wages when he failed to carry his initial burden to prove that his injury resulted in his inability to earn that amount.

As discussed above, Mr. Poissenot has testified that his physical condition has prevented him from being employed since being released by the SBPSO, which was only able to employ him post-accident with reassignment of duties and significant accommodations. He has been unable to earn anything since being terminated by the SBPSO because he does not have full use of his right hand. Therefore, he did carry his burden of proof that his injury resulted in his inability to earn ninety percent or more of the wages he earned at the time of his injury. This assignment of error is without merit.

|sThe fourth assignment of error raised by the SBPSO is that the OWC committed manifest error in awarding Mr. Poissenot penalties and attorney’s fees as a result of finding that the SBPSO acted arbitrarily and capriciously when all objective evidence introduced at trial supported the SBPSO’s position that he was not entitled to SEB. However, having determined above that Mr. Poissenot did establish that the SBPSO’s acted arbitrarily and capriciously in denying him SEB, we pretermit discussion of this assignment of error.

Lastly, we address a request for additional attorneys fees made by Mr. Poisse-not. He avers that his counsel should be adequately compensated for briefing a response to the instant appeal, and for presenting oral argument on the same. He relies on a holding from the Louisiana Second Circuit Court of Appeal wherein a claimant — who did not file an answer to the appeal — requested attorneys fees for work performed on appeal. Smith v. Pilgrim’s Pride Corp., 44,080, p. 11 (La.App. 2 Cir. 2/25/09), 4 So.3d 983, 991. The Second Circuit reasoned that it had the authority to make such an award pursuant to La. C.C.P. art. 2164. Id. (citing Gandy v. United Services Auto Association, 97-1095 (La.App. 5th Cir.10/14/98), 721 So.2d 34). La. C.C.P. art. 2164 provides:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

jflIn the instant case, as in Smith, Mr. Poissenot’s attorney prepared and filed an appellee brief, and presented oral argument before this court. Therefore, we exercise our discretion to grant his request and award $2,000.00 for the same.

DECREE

For the foregoing reasons, the judgment of the Office of Workers Compensation is amended and attorneys fees are increased by $2,000.00; and, as amended, the judgment is affirmed.

AMENDED, AND AFFIRMED AS AMENDED.

      . Mr. Poissenot had one prior surgery that was performed at Tulane Hospital immediately after his accident.