author: GARRETT, J.

text:
    Rhonda JOHNSON, Plaintiff-Appellant v. MANITOWOC CO., d/b/a Frymaster and Sentry Insurance, a Mutual Company, Defendants-Appellees
    No. 52,264-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018
    THE LAW OFFICE OF ALLEN COOPER, LLC By: J. Allen Cooper, Jr., Zachary A. Shadinger, Shreveport, Counsel for Appellant
    HURLBURT, MONROSE & ERNEST, APLC By: George D. Ernest III, Lafayette, Counsel for Appellees
    Before PITMAN, GARRETT, and McCALLUM, JJ.
   GARRETT, J.

The claimant, Rhonda Johnson, appeals from a judgment dismissing her claims for workers' compensation benefits against her employer, Manitowoc Co., d/b/a Frymaster Co., and its insurer, Sentry Insurance, A Mutual Company. In written reasons, the workers' compensation judge ("WCJ") concluded that the claimant, who suffers from de Quervain's tenosynovitis ("DQT"), failed to prove that she suffered from an occupational disease caused by her job. We affirm.

FACTS

Frymaster builds commercial frying equipment for companies like McDonald's, Burger King, and Wendy's. It operates two plants in Shreveport and employs about 550 people.

The claimant was employed by Frymaster in 1999. She worked in several different positions, all of which required typing for several hours per day. After being an order processor for two to three years, the claimant worked as a Customer Service Representative I for about two years and a Customer Service Representative II for seven to eight years. She testified that she spent about four hours per day typing in these positions. She was promoted to Customer Service Representative III in April 2015. She testified that this job required typing between four and five hours per day. This job was described at trial by Frymaster's representative as a "customer interfacing position." It involved taking calls from dealer groups, taking orders, preparing orders, and making copies for files. It required her to utilize email, the telephone, and the fax machine.

In about 2002, she was successfully treated for carpal tunnel syndrome ("CTS") in both hands with conservative measures that did not include surgery. She did not make a workers' compensation claim for her CTS. She testified that in July 2015, she developed pain in her right thumb, wrist, and hand. She was treated by Dr. Gordon Mead, an orthopedic surgeon, for these complaints along with claims of knee and foot pain. In January 2016, he diagnosed her as suffering from DQT. Her employment with Frymaster was terminated in early February 2016, shortly after she contacted the human resources department about her wrist issue.

In March 2016, the claimant filed a disputed claim for compensation with the Office of Workers' Compensation. She asserted that, due to repetitive keyboard operation during the last 16 years, she had developed DQT in her right hand and wrist. She claimed that she had been diagnosed in August 2015 and was fired when she inquired about workers' compensation benefits in January 2016. She sought penalties and attorney fees for the employer's failure to authorize medical treatment and pay weekly indemnity benefits. The employer and its insurer answered with a general denial in April 2016.

Trial was held on July 26, 2017. In addition to the claimant's medical and personnel records, the parties submitted the depositions of Dr. Mead, the claimant's treating physician, and Dr. Kenneth Odinet, the physician chosen by the employer. Additionally, the claimant testified, as did John Leslie Baker, Frymaster's human resources director and its representative at trial.

In her testimony, the claimant stated that she began feeling pain in her right thumb in July 2015, that she could not move it, and that it kept locking up on her. She also described tenderness that went from over her knuckles on her right hand to midway between her wrist and elbow. She was referred to Dr. Mead by a coworker and saw him for the first time in August 2015. She testified that she last worked at Frymaster on December 18, 2015, and was on vacation until she saw Dr. Mead for the second time on January 4, 2016. She testified that, after her appointments on January 4 and 11, 2016, Dr. Mead had her take a week off of work.

The claimant asserted that she never realized that she had a workers' compensation claim until January 18, 2016, when it was mentioned by a receptionist at the occupational therapy clinic to which she had been sent by Dr. Mead. When the claimant turned in her paperwork, the receptionist asked, for billing purposes, whether she was there for a workers' compensation matter. The claimant then made inquiries to her claims examiner at Matrix Absence Management, a third-party company used by Frymaster to process matters arising under the Family and Medical Leave Act. Next, she contacted Frymaster's human resources department. Subsequently, she received a letter terminating her employment with Frymaster in early February 2016.

Baker explained the steps of Frymaster's progressive disciplinary process, which required two written warnings, a suspension, and then termination. He testified that the claimant had received written warnings for minor matters and had been suspended without pay for the first week of December 2015 for her role in running an illegal football betting pool at work. (The other two participants, who had larger roles in the enterprise, were fired.) Thus, he testified, when it was learned that she had violated company policy by failing to properly report her thumb/wrist issue in July 2015, the next step of discipline was termination.

In his deposition, Dr. Mead testified that he first saw the claimant on August 18, 2015, at which time she complained about foot pain, right knee pain, and right wrist pain. As to the wrist, he made no specific diagnosis at that time. He noted some swelling of the wrist; he prescribed a splint and an oral steroid and excused her from work for a week. He next saw her on January 4, 2016, for a complaint of right hand and wrist pain which she rated as eight out of ten on a pain scale of one to ten. He noted swelling and tenderness of the wrist and diagnosed DQT, an inflammation around the tendons that go through a particular area of the wrist, specifically over the radial styloid, which is the thumb side of the wrist. He gave her an injection of cortisone and anesthetic. This treatment was repeated when she returned on January 11, 2016. At her appointment on January 18, 2016, she reported a decreased pain level of five out of ten; Dr. Mead opined that this was probably due to the injections. Dr. Mead then started her on occupational therapy ("OT"). At her appointment on February 8, 2016, she was improved due to the OT. He recommended a surgical release procedure, which she declined. Thereafter, he continued to see her periodically. When he last saw her on February 27, 2017, she reported her pain level as two out of ten. Dr. Mead testified that, in his opinion, there is no cause for DQT. He noted that he saw it in "all types of people," usually those aged 40 and above. In his experience, it was not confined to just people who did repetitive work. He also stated that it was more likely than not that her occupation as a customer service representative aggravated her DQT and probably restricted her ability to perform her job.

Dr. Odinet testified that he was board certified in otolaryngology, head and neck surgery, and plastic and reconstructive surgery. His expertise in hand surgery was part of his plastic surgery training. Hand surgery comprised 20% to 30% of his practice; early in his career, it had been closer to 90%. He estimated that he performed about 20 DQT correction surgeries per year. After examining the claimant and reviewing her medical records, he concluded that she had DQT, which had been treated for quite some time without much significant long-term success. He too recommended a surgical release procedure, which he estimated to have a 90% success rate. Dr. Odinet testified that he did not believe that her work as a customer service representative caused her DQT. Like Dr. Mead, he said that he had never heard of any specific cause for DQT. While blunt trauma or a fracture could cause it, he noted that "[p]eople just pop up with it." In his report, he said that the claimant's job could have possibly aggravated the condition. He opined that her work did not cause the condition to worsen, but just made it more symptomatic.

On October 4, 2017, the WCJ issued a written opinion in which she found in favor of the defendants. The WCJ noted the claimant's contention that her DQT was an occupational disease arising from or caused by her employment, as opposed to the employer's claim that her DQT was not an occupational disease or caused by her job. It then closely scrutinized the medical evidence presented at trial. After reviewing La. R.S. 23:1031.1 and the jurisprudence, the WCJ concluded that the claimant had failed to establish that she suffered from an occupational disease "due to causes and conditions characteristic of and peculiar to" her employment as a Frymaster customer service representative. The WCJ stated that the claimant's testimony was not corroborated by the surrounding evidence or the testimony of the medical expert witnesses. The WCJ further found that the medical records and testimony failed to show by a preponderance of the evidence that the claimant suffered from an occupational disease that originated from her Frymaster's job. Judgment denying and dismissing the employee's claims was signed October 4, 2017.

The claimant appeals.

OCCUPATIONAL DISEASE

The claimant contends that the WCJ legally erred in applying a narrow definition of "occupational disease" in the Fite case instead of a supposedly broader one in Thomas v. Hollywood Casino , 44,271 (La. App. 2 Cir. 5/13/09), 13 So.3d 717. Due to this alleged error in law, she seeks application of a de novo standard of review, not manifest error. The claimant further argues that, because the WCJ failed to apply the correct definition, she wrongly found that the claimant failed to prove that she suffers from a disabling occupational disease. The claimant argues that because the defendants did not present any evidence of any other jobs available to her, she is entitled to either temporary total disability benefits or supplemental earnings benefits with zero offset.

The defendants argue that the WCJ properly applied the statutory definition of "occupational disease" and that manifest error is the appropriate standard of review. They also distinguish the Thomas case on several grounds: (1) it involved CTS, which is specifically included in La. R.S. 23:1031.1, whereas DQT is not; (2) the Thomas treating doctor's "unusually emphatic"

opinion was that the claimant's CTS was the result of her repetitive work, whereas Dr. Mead testified that he did not know the cause for DQT; and (3) the employer in Thomas offered no evidence to dispute the treating doctor's "emphatic" opinion, whereas Frymaster presented Dr. Odinet's testimony.

Law

In relevant part, La. R.S. 23:1031.1 provides:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined ... shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease . Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section. [Emphasis added.]

In Hymes v. Monroe Mack Sales , 28,768 (La. App. 2 Cir. 10/30/96), 682 So.2d 871, the court explained:

The expression "characteristic of and peculiar to," as used in § 1031.1 B, does not mean that the disease occurs only in persons engaged in the particular employment and not otherwise found among the general public. Rather, it means that the disease must result from the conditions and causes present in the employment and not from other causes to which the claimant and everyone else might have been exposed. Stated otherwise, it means that the disease must originate from conditions in the employment that result in a hazard that distinguishes the employment in character from the general run of occupations. (Internal citations omitted.)

An occupational disease is one in which there is a demonstrated causal link between the particular disease or illness and the occupation. Arrant v. Graphic Packaging Int'l, Inc. , 13-2878 (La. 5/5/15), 169 So.3d 296.

The claimant asserting an occupational disease must prove, by a preponderance of the evidence, a disability related to an employment-related disease, that it was contracted during the course of employment, and that it is the result of the work performed. Murphy v. Graphic Packaging, Inc. , 47,834 (La. App. 2 Cir. 4/10/13), 112 So.3d 1040 ; Fortner v. Guide Corp. , 44,849 (La. App. 2 Cir. 12/16/09), 27 So.3d 1035.

The causal link between an employee's occupational disease and work-related duties must be established by a reasonable probability. The claimant will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused the disease. Atkins v. DG Foods , 48,490 (La. App. 2 Cir. 9/25/13), 125 So.3d 530 ; Fortner v. Guide Corp. , supra .

Expert testimony is required to support a finding of an occupational disease. Atkins v. DG Foods, supra ; Murphy v. Graphic Packaging, Inc., supra ; Fortner v. Guide Corp., supra ; Carrodine v. Pilgrim's Pride Corp. , 43,902 (La. App. 2 Cir. 3/11/09), 4 So.3d 1020, writ denied , 09-0976 (La. 6/19/09), 10 So.3d 741 ; Hymes v. Monroe Mack Sales, supra . A court should not find an occupational disease solely on the basis of lay testimony. Atkins v. DG Foods, supra .

The WCJ's factual findings are subject to manifest error review. Ball v. Wendy's Int'l, Inc., supra . In applying the manifest error or clearly wrong standard, the court must determine not whether the trier of fact was wrong, but whether the fact finder's conclusion was a reasonable one. Stobart v. State through Dep't of Trans. & Dev. , 617 So.2d 880 (La. 1993). Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Bradford v. Webster Par. Police Jury , 48,981 (La. App. 2 Cir. 5/14/14), 139 So.3d 39 ; Holmes v. Nursecare Nursing & Rehab. Ctr. , 47,999 (La. App. 2 Cir. 7/24/13), 121 So.3d 720 ; Taylor v. Hollywood Casino , 41,196 (La. App. 2 Cir. 6/28/06), 935 So.2d 293. The fact finder's choice between two permissible views of the evidence cannot be clearly wrong. Hymes v. Monroe Mack Sales, supra .

Discussion

The crux of the claimant's argument on appeal is her contention that this circuit pronounced a broader definition for "occupational disease" in Thomas than was found in Fite III . However, our review of Thomas, supra , reveals that the court merely distinguished the case before it from the facts of Fite III . It found that the claimant in Fite III failed to offer convincing medical evidence of causation. In the Thomas case, the claimant presented the "unusually emphatic" opinion of her treating orthopedist that her CTS resulted from her repetitive work. On the other hand, the employer offered "absolutely no evidence" to dispute the opinion of the treating doctor. Consequently, the Thomas court held that the employer's "technical contention that the claimant did not describe 'causes and conditions characteristic of and peculiar to' her trade will not countervail the strong medical evidence."

Finding no legal error as asserted by the claimant, we review this matter under the manifest error standard. We find that the instant case does not contain the same "strong medical evidence" as Thomas, supra . To the contrary, neither the treating physician, Dr. Mead, nor the second opinion doctor, Dr. Odinet, was able to opine that the claimant's DQT was caused by her job. At most, they indicated that her work may have aggravated the DQT and made her more symptomatic.

The claimant argues that her DQT is akin to CTS and, consequently, should be treated in similar fashion. However, we note that CTS is specifically included in La. R.S. 23:1031.1(B) as an occupational disease. Nonetheless, even though CTS is so enumerated, compensation will be denied if a causal relationship between the syndrome and employment was not proven by the claimant. See Atkins v. DG Foods, supra ; Murphy v. Graphic Packaging, Inc., supra .

Without expert medical evidence establishing that, more probably than not, the claimant's DQT was caused by her repetitive typing as a Frymaster employee, we are constrained to find no manifest error in the WCJ's determination that the claimant failed to carry her burden of proof.

Based on the foregoing, we affirm the WCJ's ruling which denied the relief sought by the claimant and dismissed her claims.

ATTORNEY FEES AND PENALTIES

The claimant requested that she be awarded $25,000 in attorney fees and $8,000 in penalties because she was forced to pursue this appeal, while the defendants contended that the claimant is not entitled to attorney fees or penalties because Frymaster's actions were reasonable. In view of our ruling on the merits, discussion of this assignment of error is pretermitted. An unsuccessful claimant is not entitled to penalties and attorney fees. Patterson v. Gen. Motors Co. , 46,559 (La. App. 2 Cir. 9/21/11), 73 So.3d 465.

CONCLUSION

We affirm the ruling of the workers' compensation judge denying the claims of the appellant, Rhonda Johnson.

Costs are assessed against the appellant, Rhonda Johnson.

AFFIRMED.

      The claimant indicated that she did not want the surgery due to her 2014 diabetes diagnosis. However, Dr. Mead testified that her diabetes was not a contraindication for the surgery, which he estimated to have an 80% to 90% chance of success.

      In her ruling, the WCJ cited Fite v. Louisiana Title Co. ("Fite III "), 36,393 (La. App. 2 Cir. 10/24/03), 859 So.2d 259, writ denied , 03-3230 (La. 2/20/04), 866 So.2d 829, and Ball v. Wendy's Int'l, Inc. , 36,922 (La. App. 2 Cir. 3/5/03), 839 So.2d 1208, writ denied , 03-0978 (La. 5/30/03), 845 So.2d 1056, for the proposition that the phrase "characteristic of and peculiar to" found in La. R.S. 23:1031.1(B) meant that "the disease must originate from conditions in the employment that result in a hazard that distinguishes the employment in character from the general run of occupations."
      This specific language was actually found in the appellate court's decision in Fite v. Louisiana Title Co. ("Fite I "), 36,393 (La. App. 2 Cir. 9/18/02), 828 So.2d 165, writ granted, judgment set aside Fite v. Louisiana Title Co. ("Fite II "), 02-2607 (La. 6/27/03), 852 So.2d 983. In Fite I , the appellate court reversed the WCJ's finding of occupational diseases due to insufficient medical proof. In Fite II , the Louisiana Supreme Court reversed the appellate court on the basis that it erred in holding that live expert testimony was required at the hearing to support the WCJ's finding of an occupational disease and in failing to consider medical records evidence that was erroneously concluded to be not properly admitted at trial. The supreme court remanded the matter to the appellate court for review under the manifest error standard, which applies to workers compensation actions "even when the evidence before the trier of fact consists solely of written reports, records, and depositions." On remand in Fite III , the appellate court again reversed the WCJ ruling in favor of the claimant on the grounds that the claimant failed to prove that her conditions were "due to causes and conditions characteristics of and peculiar to" her particular job as a title examiner.

      We are not without sympathy for the claimant, whose termination for not reporting the onset of her pain appears to be rather heavy-handed under the circumstances presented here. The employer and its insurer have successfully resisted the claim for workers' compensation benefits while the basis for her termination stemmed from her untimely reporting of a claim they contend is without merit.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Lloyd CARR, Appellant
    No. 52,273-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018
    LOUISIANA APPELLATE PROJECT, By: Douglas L. Harville, Counsel for Appellant
    LLOYD CARR, Pro Se
    JAMES E. STEWART, SR., District Attorney, TOMMY J. JOHNSON, JANET L. SILVIE, KODIE K. SMITH, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, PITMAN, and STONE, JJ.
   WILLIAMS, J.

The defendant, Lloyd Carr, was charged by bill of information with possession of a schedule II controlled dangerous substance, cocaine, a violation of La. R.S. 40:967. Following a jury trial, the defendant was found guilty as charged. The trial court adjudicated defendant a fourth felony offender and imposed a sentence of 20 years at hard labor to be served without the benefit of probation, parole or suspension of sentence. For the following reasons, the defendant's conviction and habitual offender adjudication are affirmed; the sentence is amended and affirmed as amended.

FACTS

The record shows that on February 24, 2017, Corporal Jessica Benevage of the Caddo Parish Sheriff's Office was on patrol when she noticed a car traveling in the middle of the roadway on Dr. Martin Luther King Drive in Shreveport, Louisiana. Corporal Benevage activated her overhead lights to initiate a stop of the vehicle for improper lane usage. After making two turns, the car stopped on Gordonia Drive. Corporal Benevage approached the passenger side of the car and the defendant, who was the driver of the vehicle, admitted to driving in the center of the road, but stated that he did so to avoid potholes. Corporal Benevage asked the defendant to step out of the car and stand near the rear of the vehicle while she spoke with the passenger.

While waiting, defendant kept putting his hands into his pants pockets, even after Corporal Benevage asked him to keep his hands out of his pockets. When Corporal Benevage approached the defendant and asked for his driver's license, he admitted that his license was suspended. Corporal Benevage asked the defendant if he had anything illegal on his person, which he denied. Corporal Benevage then told the defendant that she was going to do a "pat search." However, after patting the defendant's jacket pocket, Corporal Benevage reached inside that pocket and then asked the defendant for consent to search his pockets. The defendant consented. Corporal Benevage then searched the defendant's pants pockets and discovered a small amount of crack cocaine. Defendant admitted the cocaine belonged to him after being advised of his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant was charged with possession of cocaine. A jury found defendant guilty as charged. The trial court adjudicated defendant a fourth-felony offender and sentenced him to serve 20 years at hard labor without the benefit of parole, probation or suspension of sentence. Defendant's motion to reconsider sentence was denied and this appeal followed.

DISCUSSION

The defendant argues that this Court should suppress the crack cocaine found in his pants pocket, as well as his incriminating statements and the crack pipe located in the vehicle, because the officer did not obtain his consent to search his pockets until after she had already commenced the search by putting her hand into his jacket pocket. The defendant asserts that the search of his pockets was therefore illegal and that any "fruits" of that unlawful search must be suppressed.

Pretrial motions generally must be made or filed within 15 days of arraignment. Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions. La. C.Cr.P. art. 521. A motion to suppress evidence must be filed in accordance with Article 521 unless opportunity therefor did not exist or neither defendant nor his counsel was aware of the existence of the evidence or the ground of the motion. La. C.Cr.P. art. 703(C).

When objects are sought to be excluded from evidence on the basis of an unconstitutional search or seizure, defendant must timely file a motion to suppress such evidence. Otherwise, he is deemed to have waived any objection to its admission based on an infirmity in the search and seizure. State v. Smith , 95-1826 (La. App. 1 Cir. 9/27/96), 681 So.2d 980.

In this case, on the first day of defendant's trial, the prosecutor noted that she had just received a motion to suppress which was prepared by the defendant, pro se. The trial court noted that it would not consider pro se motions unless they were adopted by counsel. The motion to suppress had not been filed with the clerk of court and is not contained in the record. Defense counsel reviewed defendant's pro se motion to suppress, as well as another pro se motion, and stated that he could not adopt the motions.

During trial, a video recording of the traffic stop was admitted into evidence. The recording was played in open court and showed the officer ask defendant if he had anything illegal on him, which he denied. Corporal Benevage then told the defendant that she was going to "pat search" him. The defendant raised his arms over his head. Corporal Benevage used her hands to feel the outside of the defendant's jacket pocket and then put her hand inside. After removing her hand, she asked the defendant if she could "look in your pockets?" The defendant replied, "yeah, yeah." Corporal Benevage patted down one side of the defendant's pants and he said, "that's my phone charger." Corporal Benevage testified that she removed from defendant's pocket a small plastic bag containing "white, rock-like residue" that was later confirmed to be cocaine by the crime lab.

The record shows that defendant's motion to suppress was not timely filed under Article 521. Although defendant presented his pro se motion to suppress on the day of trial and asked for more time, he made no showing of any reason why the motion could not have been filed sooner. The trial court denied allowing more time, noting that defendant had already been given ample opportunity to file the motion. Defendant did not object to the court's denial of additional time or to the admission of the evidence during trial.

The record also indicates that in pretrial discovery the defendant was provided with a copy of the crime lab report identifying the substance seized from him as cocaine. Based upon these circumstances, the record supports a finding that defendant did not show good cause for his failure to timely file the motion to suppress. Thus, this assignment of error lacks merit.

Assistance of Counsel

The defendant contends his trial counsel was ineffective in failing to file a motion to suppress evidence and failing to adopt his pro se motion to suppress. Defendant argues that his attorney's error prejudiced his defense because the failure to file the motion to suppress affected the outcome of his trial.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by U.S. Constitutional Amendment VI. State v. Wry , 591 So.2d 774 (La. App. 2 Cir. 1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

First, to establish that his attorney was ineffective, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, defendant must show that counsel's deficient performance prejudiced his defense and that, but for counsel's unprofessional errors, there is a reasonable probability the trial's outcome would have been different. Strickland, supra ; State v. Reese , 49,849 (La. App. 2 Cir. 5/20/15), 166 So.3d 1175, writ denied , 2015-1236 (La. 6/03/16), 192 So.3d 760.

In general, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court because there is the opportunity for a full evidentiary hearing under La. C.Cr.P. art. 930. State v. Moore , 48,769 (La. App. 2 Cir. 2/26/14), 134 So.3d 1265, writ denied , 2014-0559 (La. 10/24/14), 151 So.3d 598 ; State v. Eiskina , 42,492 (La. App. 2 Cir. 9/19/07), 965 So.2d 1010. However, when the record is sufficient, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy. Eiskina, supra .

Based upon this record, we cannot adequately assess the acts of defendant's trial attorney in not filing a motion to suppress the evidence and in declining to adopt defendant's untimely motion. We note that although defense counsel did not file a motion to suppress the evidence seized in the search during the traffic stop, counsel argued to the jury that defendant's consent at the time was not valid under the circumstances. Defendant's claim of ineffectiveness would more properly be raised in his application for post-conviction relief in the trial court because there is the opportunity for a full evidentiary hearing. Thus, we decline to address the ineffective assistance of counsel claim at this time.

Sentencing

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that his sentence is excessive because of his age and the amount of cocaine involved.

The reviewing court applies a two-pronged test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Watson , 46,572 (La. App. 2 Cir. 9/21/11), 73 So.3d 471. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos , 419 So.2d 475 (La. 1982).

Second, the reviewing court must determine the issue of constitutional excessiveness. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith , 2001-2574 (La. 1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166. The trial court is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of this discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Diaz , 46,750 (La. App. 2 Cir. 12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra .

The habitual offender law has been found constitutional in its entirety, and the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672. The burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must clearly and convincingly show that he is exceptional, in other words, that because of unusual circumstances the defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, supra ; State v. Henry , 42,416 (La. App. 2 Cir. 9/19/07), 966 So.2d 692. Critically, the district court may not rely solely on the nonviolent nature of the instant or past crimes as evidence to justify rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the major reason, for declaring such a sentence excessive. Johnson, supra ; Henry, supra .

If the fourth felony is such that upon a first conviction the offender would be punishable by imprisonment for less than his natural life, then the person shall be sentenced for the fourth felony for a determinate term not less than 20 years and not more than his natural life. La. R.S. 15:529.1.

In the present case, the trial court noted its review of the sentencing factors set forth in La. C.Cr.P. art. 894.1, as well as the defendant's pre-sentence investigation (PSI) report which detailed the defendant's lengthy criminal history, including numerous crimes against the person. Based on that information, as well as the defendant's age (he was 56 years old at the time of sentencing), the trial court determined that the mandatory minimum sentence of 20 years at hard labor was appropriate. The trial court ordered the sentence to be served without the benefit of parole or suspension of sentence. The trial court recommended that the defendant receive the benefit of any available substance abuse treatment during his incarceration.

The record demonstrates the trial court's consideration of the sentencing factors provided in Article 894.1. The trial court noted its review of the relevant sentencing factors and its consideration of the defendant's PSI. In particular, the trial court found the defendant's lengthy criminal history, which included five felony convictions (one of which, aggravated assault with a firearm, is a crime of violence) and more than 40 misdemeanor convictions, to be "concerning." There is no showing the trial court abused its discretion in imposing the mandatory minimum sentence under the statute of 20 years' imprisonment. Given his extensive criminal history, the defendant has not shown that he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Thus, this assignment of error lacks merit.

Defendant's Supplemental pro se Brief

The defendant filed an untimely supplemental pro se brief. Defendant complains that the bill of information charging him with the present offense is defective because the amount of cocaine is not alleged. We note that defendant did not complain about this alleged error before his conviction and failed to preserve the issue for appeal under La. C.Cr.P. art. 841. Notwithstanding this fact, defendant fails to demonstrate how the omission misled him to his prejudice as required by La. C.Cr.P. art. 464.

The defendant alleges defects in the bill of information charging him with aggravated assault with a firearm and possession of a firearm by a convicted felon in docket number 324137. We cannot ascertain from defendant's brief any specific reasons that the bill is defective. In any event, he failed to object regarding any defects either before or during his habitual offender proceedings. Defendant also alleges that the bill of information in docket number 242257 is defective because he was allowed to plead guilty to attempted possession of a firearm by a felon, but the bill was not amended to reflect the responsive plea. However, the district attorney was not required to amend the bill of information to conform to the plea agreement under La. C.Cr.P. art. 487(B) ; State v. Jackson , 2004-2863 (La. 11/29/05), 916 So.2d 1015.

Defendant argues his sentence is excessive because the provisions of La. R.S. 15:529.1 as amended in 2017 should have been applied in his case. However, La. 15:529.1(K), effective August 1, 2018, provides that the courts shall apply the provisions of the law that were in effect on the date the present offense was committed. In any event, defendant faced a minimum 20-year sentence under the pre- and post-amendment versions of La. R.S. 15:529.1. Based upon this record, the defendant's arguments lack merit.

Error Patent

In sentencing the defendant, the trial court ordered his 20-year sentence to be served "without the benefit of suspension of sentence or parole." Neither La. R.S. 15:529.1 nor La. R.S. 40:967 contains any restrictions on parole eligibility. Therefore, the inclusion of the restriction on parole renders defendant's sentence illegal. Pursuant to La. C.Cr.P. art. 882(A), this Court has the authority to correct an illegal sentence. Accordingly, the defendant's sentence shall be amended to delete the restriction on parole.

CONCLUSION

For the foregoing reasons, the defendant's conviction and habitual offender adjudication are affirmed. The sentence imposed is hereby amended to reflect that the defendant shall serve 20 years at hard labor without the benefit of probation or suspension of sentence and the sentence is affirmed as amended.

CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED;

SENTENCE AFFIRMED AS AMENDED.


author: McCALLUM, J.

text:
    CITY OF SHREVEPORT, Plaintiff-Appellant v. SHREVEPORT MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD, Defendant-Appellee
    No. 52,304-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018 Rehearing Denied November 8, 2018
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, L.L.P., By: Joseph S. Woodley, Shreveport, Counsel for Appellant
    BREEDLOVE LAW FIRM, By: Pamela N. Breedlove, Shreveport, Counsel for Respondent Appellee, Michael Carter
    BILLY R. CASEY, Shreveport, Counsel for Appellee
    Before BROWN, WILLIAMS, and McCALLUM, JJ.
   McCALLUM, J.

The City of Shreveport ("City") appeals a district court judgment affirming the decision by the Shreveport Municipal Fire and Police Civil Service Board ("Board") to indemnify one of its members for the attorney fees that he incurred while defending a lawsuit filed by the City against him.

We affirm the district court judgment.

FACTS

Michael Carter is a member of the Board as well as the President of the Shreveport Police Officers Association. On September 14, 2015, Carter served public records requests upon the City. He subsequently filed a petition for a writ of mandamus, damages, and attorney fees against the City and the Shreveport Police Chief and City Attorney, in their individual and official capacities. Carter was also a plaintiff in a lawsuit filed in federal court against the City.

On November 5, 2015, the City filed suit against Carter seeking to enjoin him from participating in Board meetings and serving on the Board on the grounds that his lawsuits against the City presented a conflict of interest. In response, Carter filed a motion for summary judgment and an exception of no cause of action. He also requested sanctions against the City in the form of attorney fees.

A hearing on the pending matters was held before Judge Craig Marcotte on September 12, 2016. The trial court granted summary judgment in favor of Carter and dismissed the injunction suit because that lawsuit became moot when the public records lawsuit was dismissed. Attorney fees were awarded to Carter in his public records lawsuit, but his request for sanctions in the City's lawsuit was denied. The City was taxed with costs in both suits.

On September 14, 2016, Carter wrote to the Board asking that it indemnify him for his attorney fees in the City's lawsuit. Attached to his letter was a copy of Shreveport Ordinance Section 2-106 ("Ordinance"). The Board considered the matter at its October 12, 2016, meeting. Carter related to the Board that his attorney had been served with the City's lawsuit on November 10, 2015, which was approximately two months after he was sworn in as a member of the Board. He contended that the purpose of the City's lawsuit was to prevent him from serving on the Board. He added that the Board's attorney at the time had told him that she could not represent him in the lawsuit due to a conflict of interest. A billing summary from Carter's attorney was submitted at the meeting. She asserted that she had worked 55 hours at a rate of $175 per hour, making the total attorney fees $9,625.

A representative from the City present at the Board hearing argued that Carter had not been sued in his official capacity, and that if Carter wanted attorney fees, he should have asked for them in the trial court. The Board, which did not find the City's arguments to be persuasive, voted for Carter to be indemnified for $9,625 in attorney fees and $524 in court costs.

The City appealed the Board's decision to the district court. Judge Ramon Lafitte affirmed the award of $9,625 in attorney fees, but reversed the award of $524 for costs because the City had paid that after the Board hearing.

The City now appeals the district court's ruling. The City argues that (1) the Board lacked the jurisdiction to consider the request for attorney fees; (2) the provisions of the Ordinance were not met; and (3) the amount of attorney fees was not supported because the relevant factors concerning attorney fees were not considered.

DISCUSSION

Board's Jurisdiction

The City contends that the Board's authority to award attorney fees is limited to La. R.S. 33:2501.1, and, accordingly, the Board lacked the jurisdiction to reimburse Carter for his attorney fees. We disagree.

Questions of law, such as the proper interpretation of a statute, are reviewed by this court under the de novo standard of review. Louisiana Municipal Ass'n v. State , 2004-0227 (La. 1/19/05), 893 So.2d 809 ; Gannett River States Publ'g Corp. v. Monroe City School Bd. , 44,231 (La. App. 2 Cir. 4/8/09), 8 So.3d 833, writ denied , 2009-1029 (La. 6/19/09), 10 So.3d 745.

When interpreting statutes, we are guided as stated by the Louisiana Supreme Court in M.J. Farms, Ltd. v. Exxon Mobil Corp. , 2007-2371, pp. 13-14 (La. 7/1/08), 998 So.2d 16, 27 :

The starting point in the interpretation of any statute is the language of the statute itself. "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." However, "when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law." Moreover, "when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole."
It is also well established that the Legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject. Thus, legislative language will be interpreted on the assumption the Legislature was aware of existing statutes, well established principles of statutory construction and with knowledge of the effect of their acts and a purpose in view. It is equally well settled under our rules of statutory construction, where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter.

Citations omitted.

The laws for Fire and Police Civil Service Boards in municipalities with populations between 13,000 and 250,000, such as Shreveport, are found in Part II of Chapter 5 of Title 33, La. R.S. 33:2471 through 33:2508. The membership of the Board is provided for in La. R.S. 33:2476.1, which states that the Board is to be composed of seven members, with two of the members elected and appointed from the Shreveport Police Department. Carter was one of those members.

La. R.S. 33:2477 sets forth the duties of the Board. It states that the Board shall:

(1) Represent the public interest in matters of personnel administration in the fire and police services of the said municipal government.
(2) Advise and assist the governing body, mayor, commissioner of public safety, and the chiefs of the fire and police departments of the municipality, with reference to the maintenance and improvement of personnel standards and administration in the fire and police services, and the classified system.
(3) Advise and assist the employees in the classified service with reference to the maintenance, improvement, and administration of personnel matters related to any individual or group of employees.
(4) Make, at the direction of the mayor, commissioner of public safety, chief of either the fire or police department, or upon the written petition of any citizen for just cause, or upon its own motion, any investigation concerning the administration of personnel or the compliance with the provisions of this Part in the said municipal fire and police services; review, and modify or set aside upon its own motion, any of its actions; take any other action which it determines to be desirable or necessary in the public interest, or to carry out effectively the provisions and purposes of this Part....
(5) Conduct investigations and pass upon complaints by or against any officer or employee in the classified service for the purpose of demotion, reduction in position or abolition thereof, suspension or dismissal of the officer or employee, in accordance with the provisions of this Part....
(6) Hear and pass upon matters which the mayor, commissioner of public safety, the chiefs of the departments affected by this Part, and the state examiner of municipal fire and police civil service bring before it.
(7) Make, alter, amend, and promulgate rules necessary to carry out effectively the provisions of this Part.
(8) Adopt and maintain a classification plan. The classification plan shall be adopted and maintained by rules of the board.
(9) Make reports to the governing body, either upon its own motion or upon the official request of the governing body, regarding general or special matters of personnel administration in and for the municipal fire and police services of the municipality, or with reference to any appropriation made by the governing body for the expenses incidental to the operation of the board.

The City argues that the Board lacked jurisdiction to hear the request for attorney fees because the Board has limited authority to award attorney fees under La. R.S. 33:2501.1, which is not relevant to this matter.

La. R.S. 33:2501 governs appeals by employees to the Board. La. R.S. 33:2501.1, titled "Authorization for awarding attorney fees," provides:

When an appeal is taken by an employee in the classified service pursuant to R.S. 33:2501 to a municipal fire and police civil service board and the board determines, in reversing the decision of the appointing authority, that the corrective or disciplinary action taken by the appointing authority was without just cause as provided in R.S. 33:2501, the board may award to the appealing employee attorney fees to be assessed against the appointing authority not to exceed one thousand dollars in any one appeal.

La. R.S. 33:2501 was amended and reenacted by Act 473 of 1983. La. R.S. 33:2501.1 was added by Act 1005 of 1991. We agree that La. R.S. 33:2501.1 is inapplicable by its terms as Carter was not taking an appeal to the Board of corrective or disciplinary action. Nevertheless, our inquiry does not end there.

Carter cites La. R.S. 33:2506 as support for his argument that the Board had authority to grant his attorney fees. That statute reads:

If this Part, or its enforcement by the board is called into question in any judicial proceeding, or if any person fails or refuses to comply with the lawful orders or directions of the board, the board may call upon the attorney general, or the chief legal officer of the municipality, or may employ independent counsel to represent it in sustaining this Part and enforcing it. Nothing contained herein shall prevent any municipal officer, employee, or private citizen from taking legal action in the courts to enforce the provisions of this Part or of any rule, order, or other lawful action of the board.

The City counters that La. R.S. 33:2506 has no application in this matter because that statute allows the Board to retain counsel in cases when the civil service law is involved or for the enforcement of the civil service law. However, the City's lawsuit was an attempt to enjoin Carter from serving on the Board as a duly chosen representative of Shreveport police officers while his suits were pending. Thus, the Board's enforcement of Part II's provisions concerning the service and duties of Board members was called into question in a judicial proceeding. Although, in this circumstance, the Board did not hire counsel, we find no prohibition to the Board effectively ratifying Carter's hiring of counsel to represent himself in the City's lawsuit.

We are also cognizant that among the Board's duties is the duty to "take any other action which it determines to be desirable or necessary in the public interest, or to carry out effectively the provisions and purposes of this Part." La. R.S. 33:2477(4). The City argues that the statute does not apply because personnel administration was not at issue. However, reimbursing a member who incurred attorney fees because his presence on the Board was threatened was clearly consistent with this duty.

We are also mindful of La. R.S. 33:2478 and 33:2480. The former states that the Board "may adopt and execute rules, regulations, and orders necessary or desirable effectively to carry out the provisions of this Part, and shall do so when expressly required by this Part." The latter requires the City to make adequate annual appropriations to enable the Board to carry out effectively the duties imposed upon the Board and to furnish the Board with office space, furnishings, equipment, and materials and supplies necessary for its operation.

We note the City's argument that Carter was sued in his individual capacity, not his official capacity. We find no merit to this argument. Carter's position on the Board was the crux of the City's lawsuit, which sought to enjoin him from serving on the Board in his official capacity and from meeting his legal obligations as a member of the Board. In conclusion, we find that the Board had the statutory authority to consider Carter's request and to order payment of the fees that he incurred as a result of the City's lawsuit.

The City further contends that indemnification under the Ordinance was foreclosed because Carter did not strictly comply with the Ordinance's procedural requirements, and no court found that Carter was acting in the discharge of his duties and within the scope of his office with regard to the claims asserted. We pretermit that discussion because we find the basis for reimbursement of Carter's attorney fees was under state law, not under the Ordinance.

Res Judicata

The City argues that res judicata bars the award of attorney fees because sanctions in the form of attorney fees were denied by Judge Marcotte.

Under La. R.S. 13:4231, a second action is precluded by res judicata when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue , 2002-1385 (La. 2/25/03), 843 So.2d 1049.

The doctrine of res judicata is stricti juris , and any doubt concerning the application of res judicata must be resolved against its application. Kelty v. Brumfield , 1993-1142 (La. 2/25/94), 633 So.2d 1210.

There was no second action or lawsuit seeking attorney fees in this matter. Carter's attorney fees will be paid by the City not in its role as a party to the lawsuit, but rather as the municipality which funds the Board. As such, this argument is without merit.

Amount of attorney fees

The City argues on appeal that the amount ($9,625) awarded in attorney fees is unsupported by this record. The City further argues that the Board did not consider the relevant factors concerning the reasonableness of attorney fees as set forth in State, Dept. of Transp. & Dev. v. Williamson , 597 So.2d 439 (La. 1992). The City even maintains this Court cannot determine the reasonableness of the award based on this record.

The evidence submitted by Carter's attorney was, no doubt, less than ideal in this matter. Nevertheless, the billing summary that she did submit indicated the 55 hours that she claimed to have worked in this matter. We are cognizant that at the Board hearing, the City failed to contemporaneously object to or challenge the amount sought by Carter or the mode of proof. If the City had challenged the alleged paucity of evidence, the Board members, who were faced with the unusual circumstance of awarding attorney fees to another member, would have had the opportunity to question Carter's attorney further on this issue or seek additional proof. Accordingly, the City waived any argument against the amount of the attorney fee awarded.

CONCLUSION

At the City's costs of $858.49, the judgment of the district court is AFFIRMED.

APPLICATION FOR REHEARING

Before Felicia Toney Williams, Daniel Milton Moore III, James Mark Stephens, Jay Bowen McCallum - Writing, and E. Joseph Bleich, JJ.

Rehearing denied.

      La. R.S. 33:2501(A) provides: "Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request."


author: STEPHENS, J.

text:
    STATE of Louisiana, Appellee v. Edward D. LATTIN, Appellant
    No. 52,127-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018
    LOUISIANA APPELLATE PROJECT, By: Holli Herrle-Castillo, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, JANET L. SILVIE, RACHEL KING, Assistant District Attorneys, Counsel for Appellee
    Before COX, STEPHENS, and MCCALLUM, JJ.
   STEPHENS, J.

After a jury trial in the First Judicial District Court, Caddo Parish, Louisiana, the defendant, Edward D. Lattin, was convicted of illegal carrying of a weapon while in possession of a controlled dangerous substance ("CDS"), a violation of La. R.S. 14:95(E). He was subsequently sentenced to eight years at hard labor without benefits, and he appeals his conviction. For the following reasons, we affirm Lattin's conviction and sentence.

FACTS

Caddo Parish Sheriff's Office narcotics agents executed a search warrant at a residence in Shreveport, Louisiana on March 24, 2016. At the time of the search, the house was inhabited by Lattin and his girlfriend, Latasha Robinson; initially, the two of them were asleep in a bedroom. Also in the house at the time was Latasha's nephew, Brian Robinson. The search warrant was obtained on the suspicion of drug activity at the residence.

During the search of Lattin's bedroom, agents found marijuana between the mattress and box spring of the bed. At the scene, the marijuana was thought to weigh 15 grams, but was later determined to be approximately 22 grams. In addition to the marijuana, agents found a scale nearby on the dresser and, in a shoe box on top of the dresser, a .22 caliber revolver. At the scene, Lattin freely admitted that the marijuana and scale belonged to him, but denied ownership of the gun. Latasha denied any knowledge of the marijuana or the weapon. Brian claimed ownership of the gun, but at the time of the search, he was unable to answer any questions by the agents regarding the weapon. Lattin was charged by amended bill of information with illegal carrying of a weapon while in possession of a CDS, in violation of La. R.S. 14:95(E).

Following a jury trial, by a vote of 10-2, Lattin was found guilty as charged. He was subsequently sentenced to eight years at hard labor, to be served without the benefit of parole, probation, or suspension of sentence, as well as ordered to pay a fine of $1,000.00. Lattin's motion to reconsider sentence was denied by the trial court. This appeal by Lattin ensued.

DISCUSSION

On appeal, Lattin's sole assignment of error is that there was insufficient evidence to prove beyond a reasonable doubt that he was guilty of the illegal carrying of a weapon while in possession of a controlled dangerous substance. Lattin argues that there was no direct evidence that he had actual possession of the gun, and the state failed to prove that Lattin had constructive possession of the gun. Specifically, Lattin maintains the state failed to prove he knew the gun was in the shoe box or he had the general intent to possess the gun. This argument is without merit.

Sufficiency of the Evidence

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Bass , 51,411 (La. App. 2 Cir. 6/21/17), 223 So.3d 1242, writ not cons. , 2018-0296 (La. 4/16/18), 239 So.3d 830. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 2005-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 2009-0310 (La. 11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime.

State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 2016-1479 (La. 5/19/17), 221 So.3d 78.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Brown , 51,352 (La. App. 2 Cir. 5/2/17), 223 So.3d 88, writ denied , 2017-1154 (La. 5/11/18), 241 So.3d 1013.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the fact finder's discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000) ; State v. Green , 49,741 (La. App. 2 Cir. 4/15/15), 164 So.3d 331.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Ward , 50,872 (La. App. 2 Cir. 11/16/16), 209 So.3d 228, writ denied , 2017-0164 (La. 9/22/17), 227 So.3d 827. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Francis , 51,048 (La. App. 2 Cir. 1/11/17), 213 So.3d 1213.

Illegal Possession of Weapon While in Possession of a CDS

The instant offense occurred on March 24, 2016, at which time La. R.S. 14:95(E) provided:

If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence.

In order to convict a defendant of illegal possession of a weapon while in possession of a CDS pursuant to La. R.S. 14:95(E), the state must prove: (1) that the defendant possessed within his immediate control a firearm or other instrumentality customarily intended for use as a dangerous weapon, (2) while in possession of, during the sale, or during the distribution of a CDS. State v. Brown , 42,188 (La. App. 2 Cir. 9/26/07), 966 So.2d 727, writ denied , 2007-2199 (La. 4/18/08), 978 So.2d 347.

The Louisiana Supreme Court has specifically held that in La. R.S. 14:95(E), the term "possess" "is broad enough to encompass both 'actual' and 'constructive' possession." State v. Blanchard , 1999-3439 (La. 1/18/01), 776 So.2d 1165, 1170. The question of whether there is sufficient "possession" to convict is dependent on the facts of each case. State v. Harris, 1994-0970 (La. 12/8/94), 647 So.2d 337, 338-39 ; State v. Bell, 566 So.2d 959, 960 (La. 1990) ; State v. Johnson , 2003-1228 (La. 4/14/04), 870 So.2d 995.

Actual possession means having an object in one's possession or on one's person in such a way as to have direct physical contact with and control of the object. State v. Ruffins , 41,033 (La. App. 2 Cir. 9/20/06), 940 So.2d 45, writ denied , 2006-2779 (La. 6/22/07), 959 So.2d 494.

Constructive possession of a firearm occurs when the firearm is subject to the defendant's dominion and control. State v. Johnson, supra at 998. A defendant's dominion and control over a weapon constitutes constructive possession even if it is only temporary and even if the control is shared. However, mere presence of a defendant in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession. Id. ; State v. Stephens , 49,680 (La. App. 2 Cir. 5/20/15), 165 So.3d 1168 ; State v. Heard , 46,230 (La. App. 2 Cir. 5/18/11), 70 So.3d 811, writ denied , 2011-1291 (La. 12/2/11), 76 So.3d 1175.

Constructive possession also entails an element of awareness or knowledge that the firearm is there and the general intent to possess it. State v. Turner , 46,049 (La. App. 2 Cir. 2/16/11), 57 So.3d 1209. Such guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. State v. Johnson , supra .

In State v. Blanchard , supra , the Louisiana Supreme Court held that in order to prove a violation of La. R.S. 14:95(E), when a defendant is found to be in constructive possession of a firearm while simultaneously in possession of a CDS, the state must prove that there is a nexus between the firearm and the CDS:

[W]e find that under La. R.S. 14:95(E), when it cannot be established that the defendant was using or in actual possession of a firearm or that a firearm was within his or her immediate control, the state must prove more than mere possession of the firearm. It must prove some connection between the firearm possession and the drug offense. This connection might be established by the following evidence: (1) the type of firearm involved; (2) the type of controlled dangerous substance involved; (3) the quantity of drugs involved; (4) the proximity of the firearm to the drugs; (5) whether the firearm is loaded; and (6) any other relevant evidence.

Id. at 1173. The nexus requirement of La. R.S. 14:95(E) is fact sensitive. State v. Jordan , 06-187 (La. App. 5 Cir. 9/26/06), 938 So.2d 805, 808.

Courts have generally found evidence of constructive possession when a gun is found in an area customarily occupied by the defendant. State v. Law , 45,435 (La. App. 2 Cir. 8/11/10), 46 So.3d 764 ; State v. Johnson , 11-238 (La. App. 5 Cir. 12/28/11), 83 So.3d 1075. See State v. Mose , 412 So.2d 584 (La. 1982) (gun located in the defendant's bedroom was sufficient for constructive possession); State v. Mickel , 09-953 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, writ denied , 2010-1357 (La. 1/7/11), 52 So.3d 885 (gun was under the defendant's dominion and control because it was found in a shoe box underneath the bed where he customarily slept); State v. Roundtree , 44,817 (La. App. 2 Cir. 3/3/10), 41 So.3d 512 (the defendant was in constructive possession of a gun found protruding from between the mattress and box spring of the bed in which the defendant had been sleeping; the defendant's girlfriend's testimony that she owned the gun and that the defendant had no knowledge of the gun was unconvincing); State v. Drake , 45,172 (La. App. 2 Cir. 5/19/10), 37 So.3d 582, writ denied , 2010-1468 (La. 1/14/11), 52 So.3d 899 (evidence was sufficient for constructive possession when weapons were found in plain view in the defendant's residence, such that he would have been aware of their presence and would have exercised dominion and control over the weapons); State v. Lewis , 535 So.2d 943 (La. App. 2 Cir. 1988), writ denied , 538 So.2d 608 (La. 1989), cert. denied , 493 U.S. 963, 110 S.Ct. 403, 107 L.Ed.2d 370 (1989) (presence of firearms in the defendant's home, statement by the defendant that one gun belonged to his wife, and discovery of shoulder holster in the master bedroom indicated the defendant's awareness, dominion, and control over the firearms).

Testimony

At trial, Agent John Edward Witham, of the Caddo Parish Sheriff's Office, Narcotics Division, testified he was conducting an investigation into narcotics trafficking at Lattin's residence, 3401 Palm Road in Shreveport, Louisiana. Based on his investigation, Agt. Witham obtained a search warrant for the residence, which he executed on March 24, 2016, at 6:45 a.m. Lattin, Latasha, and Brian were present in the residence when the warrant was executed.

Although Agt. Witham found Lattin and Latasha sleeping in the bed in a bedroom, he could not recall specifically which side of the bed Lattin was on. Agent Witham testified that he found approximately 15 grams of marijuana located between the mattress and the box spring in that bedroom. He stated that although he weighed the marijuana and determined it was 15 grams, it was later reweighed at the crime lab and determined to be 22 grams. Agent Witham stated he found a scale and a shoe box containing a .22 caliber revolver in the same bedroom on top of a dresser. The shoe box was small and had a lot of "clutter" in it, and Agt. Witham could not recall if it was a shoe box for female or male shoes. Regarding the gun, Agt. Witham noted it had a nail in the cylinder, there was one round in the gun, and he did not know if the gun was operational because he did not have any professional experience working with weapons. The dresser was waist high, and positioned about five feet from the bed. The proximity between the scale and the gun was only a couple of feet. Agent Witham took photographs of the marijuana, the scale, and the gun, which were admitted into evidence.

Agent Witham testified that after he advised Lattin of his Miranda rights, Lattin admitted that the marijuana and scale belonged to him, but denied knowledge of the gun. Latasha denied that the marijuana and scale belonged to her, and she also denied having knowledge of the gun. However, Brian told Agt. Witham that the gun belonged to him, and in response, Agt. Witham, as he related at trial, questioned Brian about the gun to determine his veracity. Agent Witham recalled that Brian could not elaborate further than the gun was his: he could not tell him where the gun was, what the gun was in, or the brand name of the gun. Brian told Agt. Witham that the gun was empty, but in fact, the gun was loaded. Although Brian did state that the gun was a revolver, Agt. Witham noted that he had the gun in his hand at that time. Because Brian could not answer any questions about the gun, Agt. Witham ruled out Brian as a suspect.

Agent Witham admitted that he did not submit the gun for fingerprints or DNA testing, and explained that firearms rarely yield usable fingerprints.

Another witness for the prosecution was Bruce Stentz, a forensic chemist at the North Louisiana Crime Lab. Stentz testified that he analyzed the substance found in Lattin's bedroom and confirmed that it was marijuana. According to Stentz, the marijuana weighed 22.5 grams. Deputy Pattie Brooks, of the Caddo Parish Sheriff's Office, testified that she transferred the suspected marijuana to the crime lab for testing.

The prosecution next called Sergeant Henry Whitehorn, of the Caddo Parish Sheriff's Office, who testified as an expert in packaging, sales, and distribution of CDS. Sergeant Whitehorn had been employed by the sheriff's office for 15 years and was an officer in the Mid-Level Narcotics Investigative Unit; as such, he explained investigating "mid-level" narcotics dealers-those individuals dealing with ounces and pounds, not very small amounts. According to Sgt. Whitehorn, the marijuana in this case was a regular grade, with a street value of $150.00, and he testified that the amount of marijuana possessed by Lattin is consistent with either personal use or street-level distribution. However, Sgt. Whitehorn also noted that the possession of a scale typically indicates distribution, opining an individual need not have a scale if they only planned to smoke their marijuana. Sergeant Whitehorn also testified that narcotics dealers typically possess weapons to protect their drugs. Finally, Sgt. Whitehorn testified that most of the time, fingerprints and DNA are not found on guns.

Brian Robinson testified on behalf of Lattin's defense. Brian explained that after his mother died, Latasha, his aunt, raised him, and he occasionally stayed at the house with her and Lattin. Brian testified that the gun found by police in the raid belonged to him. According to Brian, he purchased the gun three or four days before the raid, buying the gun on the street from an individual he could only identify as "Slick." Brian said he paid $25.00 and a video game for the gun. In describing it, Brian stated that the gun "was a .22 revolver ... off-gun-metal, blackish gray with a nail in it. It holds five rounds, but it only had one with like a dark brown hammer." He stated that the gun had a nail in it to hold the cylinder in place, and that the nail was two colors, rust and silver. Brian testified he got the gun for protection because he walks late at night. Brian stated that Lattin was not aware that he bought the gun.

As described by Brian, when he arrived at Lattin's house on the night before the raid, Lattin and Latasha were not there. Brian stated that because Lattin's children were coming to the house, he put the gun in Lattin's bedroom on "the highest part of the dresser," on top of the mirror, in Latasha's shoe box to get it out of reach. He described the shoe box as being purple and having papers and receipts in it. Brian testified that he did not tell Lattin or Latasha that he brought the gun into their house. Although Brian normally slept in the bedroom occupied by Lattin and Latasha, on the night before the raid, Brian and Latasha slept on the couch in the living room, and Lattin slept in the bedroom because he was sick.

Brian testified that when Agt. Witham came out of the bedroom with the gun, he told the agent that it belonged to him, and nobody else knew about it. Brian stated that Agt. Witham asked him a couple of questions about the gun, and as he was telling Agt. Witham where the gun was, the agent continued to search the house, throwing stuff out of the way. According to Brian, he never told Agt. Witham how he purchased the gun because he never had an actual conversation with the agent. Agent Witham was the only officer that Brian talked to about the gun.

Agent Witham testified as a rebuttal witness for the state. It was his recollection that the shoe box was brown, and there were more items than just receipts in the box. As to the description of the gun, Agt. Witham noted that it held six rounds and that the nail was wrapped in black electrical tape. Also, although there was a mirror on the dresser, the box was not on top of the mirror but was on the dresser. Agent Witham recalled that when he questioned Brian about the gun at the time, Brian was not able to give him any details about the gun other than the fact that it was a revolver and it belonged to him. Brian did not tell him that he bought the gun from "Slick." Further, Agt. Witham testified that when he was talking to Brian, he was not continuing to search the house, he was focused on questioning Brian. In fact, Agt. Witham testified that had Brian been able to elaborate on the gun, he would not have charged Lattin.

Analysis

On appeal, Lattin does not dispute that the marijuana or scale were indeed his. His only assertion on appeal is there was insufficient evidence to convict him of the illegal carrying of a weapon while in possession of a CDS, the marijuana. This case rests on the credibility of the witnesses, the assessment by the jury of that evidence, and the deference given to the jury to accept or reject that evidence. Although Brian claimed he owned the weapon, the evidence presented at trial as a whole was sufficient to support Lattin's conviction for illegal carrying of a weapon while in possession of a CDS. As noted above, courts have generally found evidence of constructive possession when a gun is found in an area customarily occupied by the defendant. State v. Law , supra . Here, the gun was found in the master bedroom where Lattin was sleeping. The gun was in a shoe box on the dresser next to the bed, such that Lattin had close access to the gun. That bedroom also contained marijuana and a scale, which Lattin admitted to law enforcement agents belonged to him. The marijuana was found under the bed, and the scale was found on the dresser, in close proximity to the gun. Therefore, based on the applicable jurisprudence, we determine that the jury's conclusion was reasonable that Lattin exercised dominion and control over the gun in his bedroom sufficient to constitute constructive possession. The jury's guilty verdict for the crime charged was not outside the bounds of rationality.

Additionally, although Lattin offered a hypothesis of innocence that the gun belonged to Brian and was present without his knowledge, that theory was obviously rejected by the jury-a rejection that was not unreasonable considering the credibility of the witnesses. Brian testified that the gun found in Lattin's bedroom belonged to him and Lattin was not aware the gun was in the bedroom. However, there are several discrepancies between Brian's testimony and that of Agt. Witham, who executed the search warrant. Brian testified he tried to tell Agt. Witham about the gun during the raid, but Agt. Witham was not focused on him; Agt. Witham testified he was listening to Brian, and Brian could not answer any questions about the gun, other than the fact that it was a revolver (when Agt. Witham was holding the gun), and incorrectly told him that the gun was not loaded. Regarding the description of the gun at trial, Brian testified the gun held five rounds, and the nail in the cylinder was rust and silver in color; according to Agt. Witham, the gun held six rounds, and the nail was covered in black electrical tape. As to the location of the shoe box, Brian testified he put the gun in a purple shoe box on top of the mirror on the dresser; Agt. Witham testified the box was brown and was found on the dresser, not the mirror.

Moreover, the jury heard testimony from Sgt. Whitehorn as to a plausible reason why Lattin would possess a weapon. In his longtime experience in law enforcement and in narcotics investigations, Sgt. Whitehorn explained that it was common for drug dealers to possess a weapon, and Lattin possessed enough marijuana and a scale to suggest he was involved in selling marijuana. It was certainly reasonable for the jury to conclude that Lattin possessed the gun in order to protect his conceivable illegal activity.

After a thorough review of the record, and viewing the evidence presented in this case in the light most favorable to the state, a rational trier of fact could find that the state proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that Lattin was guilty of illegal carrying of a weapon while in possession of a CDS. The jury heard the testimony of all the witnesses and in finding Lattin guilty, ten of those twelve jurors obviously rejected the testimony of Brian as not credible and chose to believe the testimony of Agent Witham. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. Given the discrepancies between the testimony of Brian and Agent Witham, along with the explanation by Sgt. Whitehorn as to why Lattin would have a weapon, the jury's conclusion was not irrational. As such, considering the evidence in a light most favorable to the prosecution, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Lattin was guilty of illegal carrying of a weapon while in possession of a CDS.

CONCLUSION

Considering the foregoing, the conviction and sentence of Edward D. Lattin are affirmed.

AFFIRMED.

      On October 24, 2017, Lattin filed a pro se motion for post-verdict judgment of acquittal, arguing that he was wrongfully convicted because Brian admitted the gun belonged to him and his attorney was ineffective in failing to present an affidavit from Brian. Because the motion was filed after sentencing, the trial court denied the motion as untimely. Additionally, Lattin filed an application for post-conviction relief raising these claims. The state filed procedural objections, noting that Lattin was prohibited from requesting post-conviction relief while his appeal was pending.

      Agent Witham noted that there was another weapon found in the house, but Lattin provided an explanation that Agt. Witham was able to verify. Although no other details were provided at trial, at the free and voluntary hearing prior to trial, Agt. Witham testified that there was a shotgun in another bedroom in the house. Lattin told Agt. Witham that the shotgun belonged to Demarco Smith, and there was paperwork in that bedroom with Smith's name.