author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Addarrien COTTONHAM, Appellant.
    No. 44,854-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 16, 2009.

      Louisiana Appellate Project, by Peggy J. Sullivan, for Appellant.
    Jonathan M. Stewart, District Attorney, Douglas L. Stokes, Jr., Kenneth P. Haines, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   STEWART, J.

| ,The defendant, Addarrien Cottonham, appeals his adjudication as an habitual offender for which he was sentenced to 20 years at hard labor. Finding no error, we affirm.

FACTS

The defendant was originally charged by bill of information with possession of marijuana with intent to distribute, possession of cocaine with intent to distribute, and simple escape. Pursuant to an agreement, the defendant entered guilty pleas to the simple escape charge and to reduced charges of simple possession of marijuana and of cocaine. The defendant also agreed to a sentence of 20 years of hard labor as a fourth felony offender, and the state agreed not to prosecute the defendant on other pending charges. The defendant was sentenced in accordance with his agreement with the state.

By writ grant on January 13, 2006, this court upon review of the defendant’s application for post-conviction relief found that he had not been fully advised of his rights during the habitual offender proceeding. Therefore, we vacated the habitual offender plea and remanded the matter for new habitual offender proceedings.

On May 2, 2006, the state filed an amended bill of information charging the defendant as a fourth felony offender. After delays, which will be addressed in this opinion, the habitual offender hearing took place on November 12, 2008. The trial court determined the defendant to be a fourth felony offender and imposed a sentence of 20 years at hard labor without benefits and with credit for time served. The defendant appealed.

JaDISCUSSION

Delay in Habitual Offender Proceedings

The defendant’s first and second assignments of error complain of the delay in filing and prosecuting the habitual offender bill of information. He argues that the trial court either lacked jurisdiction to sentence him as an habitual offender because of the delay or that the trial court erred in denying his motion to quash the bill of information charging him as an habitual offender.

La. R.S. 15:529.1, the statute governing habitual offender proceedings, expressly provides that “at any time, either after conviction or sentence,” a multiple bill may be filed against a defendant who has been convicted of a felony. La. R.S. 15:529.1(D)(l)(a); State v. Toney, 2002-0992 (La.4/9/03), 842 So.2d 1083. Although no specific time limit for filing is provided by the statute, the supreme court has held that the statute “does not allow an indefinite time in which the district attorney may file the multiple offender bill once the necessary information is available.” Toney, supra; State v. McQueen, 308 So.2d 752, 755 (La.1975). Rather, the district attorney must file the multiple offender bill “within a reasonable time after the necessary information is available.” Toney, supra; McQueen, supra. The McQueen court reached this conclusion by relying on the defendant’s constitutional right to a speedy trial and the La. C. Cr. P. art. 874 requirement that sentences be imposed without unreasonable delay. Toney, supra; McQueen, supra.

| sWhen the district attorney acquired the knowledge that the defendant is a multiple offender is an important factor to consider in determining whether the bill was timely filed. State v. Muhammad, 2003-2991 (La.5/25/04), 875 So.2d 45. However, the determination of whether the habitual offender hearing was held within a reasonable time depends on the facts and circumstances of each case. Id.; Toney, supra.

The defendant complains of the state’s delay both in filing and in prosecuting the habitual offender bill. However, the defendant knew of the state’s intent to multiple bill him on September 16, 2002, the date he voluntarily entered the plea agreement which included a 20-year sentence as an habitual offender. On January 13, 2006, this court remanded the matter for new habitual offender proceedings. On March 13, 2006, the state filed a motion ordering the defendant to appear for arraignment on the habitual offender bill. The bill was filed on May 2, 2006, at which time the defendant appeared with counsel and pled not guilty. The filing of the habitual offender bill within four months after remand for new proceedings is not unreasonable under the facts of this case.

The next issue is whether there was an unreasonable delay by the state in prosecuting the habitual offender bill after remand such that the trial court should have granted the defendant’s motion to quash the bill or should have been deprived of jurisdiction to sentence the defendant. The record shows that there was a 30-month delay between the filing of the multiple offender bill and the hearing. The bill was filed on May 2, 2006, and the hearing did not occur until November 12, 2008.

|4Under La. C. Cr. P. art. 521, the defendant would generally have 15 days after arraignment within which to file pretrial motions. However, he filed nothing after his arraignment on May 2, 2006, when he pled not guilty. On November 2, 2006, the state filed a motion to set the hearing date. Thereafter, the defendant finally filed a discovery motion and motions to suppress/quash asserting the inadequacy of the prior convictions as a basis for the multiple bill. The hearing on the motions to suppress / quash was set for January 16, 2007, at which time the defendant filed a supplemental motion to quash on the grounds that more than one year had lapsed since the matter was remanded. Because of the new motion, the matter was then reset for February 7, 2007.

On February 7, 2007, the trial court heard and denied the defendant’s motions and began the habitual offender hearing. However, the defendant refused to go forward with the hearing and insisted on firing his attorney. The trial court granted the defendant a continuance and reset the matter for April 4, 2007, upon the defendant’s request for an earlier date after the trial court first proposed setting the matter on August 15, 2007.

The defendant failed to obtain new counsel, so the matter could not be heard on April 4, 2007. In September 2007, the defendant filed with this court an application for mandamus. He complained that the habitual offender proceedings had not taken place. This court granted the writ on October 11, 2007, ordering the trial court to

promptly conclude the proceedings, either after habitual offender proceedings, if the state files and prosecutes a bill, or for imposition of a sentence for the primary offense, if the state does not elect to | Rprosecute the applicant as a habitual offender, and a sentence has not previously been properly imposed.

It now appears that the defendant misrepresented to this court either that the state had not instituted the habitual offender proceedings or that he had not yet been afforded a hearing on the matter.

The habitual offender hearing was then set for December 4, 2007, at which time the defendant, who appeared in proper person, was argumentative with the court, advised the court that he was not ready to proceed, and again insisted that he would hire an attorney. The trial court continued the matter until April 8, 2008, but ordered the defendant to have an attorney enroll by March 4, 2008. When no attorney appeared on March 4, 2008, to enroll on behalf of the defendant, the trial court appointed counsel.

Thereafter, the matter was twice continued at the state’s request in April and June, continued again in July because the defendant had not been transported for court, and continued once more on September 2, 2008, due to an “emergency situation” which appears attributable to Hurricane Gustav. The habitual offender hearing finally took place on November 12, 2008.

Reviewing the history of this matter, it is clear that the majority of the delays were wholly attributable to the defendant. After his arraignment on the bill, he waited six months before filing motions. When his motions were denied, he delayed the habitual offender hearing by firing his attorney. He then failed to hire new counsel as he said he would. The defendant’s late filings of motions, his requests for continuances, and his repeated promises to retain counsel and persistent failure to do so all appear as efforts to delay | fihis adjudication as a fourth felony offender. The state was ready to proceed with the habitual offender hearing on February 7, 2007, but it was the defendant who stopped the proceedings. Thereafter, only two delays are attributable to the state, whereas the majority of the delays in the matter are attributable to the defendant.

Considering his responsibility for causing most of the delays, the defendant cannot show that he was prejudiced by the delays. We find that the habitual offender hearing was held within a reasonable time. The defendant’s motion to quash was properly denied, and the trial court retained jurisdiction to sentence the defendant as an habitual offender. Therefore, both the first and second assignments of error lack merit.

Removal from Courtroom

In his third assignment of error, the defendant asserts that the trial court erred in removing him from the courtroom during the habitual offender hearing on November 12, 2008. He asserts that he was not warned about his conduct prior to removal, that he did not persist in disruptive conduct following such a warning, and that his behavior did not rise to the level of conduct which justified his exclusion from the courtroom.

La. C. Cr. P. art. 882(A)(1) states:

A. A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and:
(1) He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial; or
|7(2) After being warned by the court that disruptive conduct will cause him to be removed from the courtroom, he persists in conduct which justifies his exclusion from the courtroom.

The record shows that at the start of the habitual offender hearing on November 12, 2008, Darrell Avery, the attorney appointed to represent the defendant, moved to continue the matter. As grounds for the continuance, Avery explained that the defendant believed his mother had retained another attorney, Rick Gallot, to represent him and that he did not want Avery representing him at the hearing. The trial court denied the motion to continue the hearing after learning that Mr. Gallot had been retained by the defendant’s mother to do appeal work but not to represent the defendant at the habitual offender hearing. The following exchange then took place:

By Mr. Cottonham: I fire Mr. Gallo [sic] — I fire Mr. Avery under — confidential. He hadn’t represented me right here, never came to see me, he hadn’t been down there in two months.
By the Court: Denied. Denied.
By Mr. Cottonham: No, I’m not going through the process when I’m telling you without my lawyer here.
By the Court: I’m telling you that you either are or I find you in contempt and you can leave the Courtroom and we’ll continue to go.

After being warned by the trial court that he would be held in contempt and removed from the courtroom, the defendant continued to insist that wanted to fire his attorney, that his mother had retained Gallot, and that his court-appointed counsel was not representing him to the best of his ability. The following exchange then took place:

By the Court: This hearing is going to continue today. If the Second Circuit Court of Appeal thinks Mr. Avery is ineffective then they’ll reverse it.
| ¡By Mr. Cottonham: No. I’m not going — I’m not going through it. I have the right to get me another attorney and you have the right to appoint me a[sic] attorney.
By the Court: Mr. Cottonham, you pulled this stunt on us now for about the fifth — you had one of the best attorneys.
By Mr. Cottonham: You have the right to appoint—
By the Court: Let me speak or I’m gonna [sic] put you in contempt and your hearing won’t even go forward for sure. You fired one of the best attorneys in this town when you fired Chris Bowman.
By Mr. Cottonham: And I can fire again if I’m — if it’s a conflict of interest.
By the Court: No, you’re not, not with this Court you don’t. You either sit down and have a hearing or you can go out—
By Mr. Cottonham: I can go out—
By the Court: I’ll put on the record that you won’t be present cause [sic] you’re not cooperative.

It appears that the matter then proceeded without the defendant’s presence in the courtroom.

The record establishes that the defendant was warned twice about his disruptive conduct before he was removed from the courtroom so that the hearing could proceed. It also appears that the defendant chose to be removed rather than remain in a hearing with Mr. Avery, the court-appointed counsel he wanted to fire. However, Mr. Avery remained present throughout the hearing and acted in his capacity as counsel for the defendant by objecting during testimony of the state’s witnesses, cross-examining the witnesses, and making an oral motion for dismissal on the defendant’s behalf.

| ¡/Throughout the 30 months it took for the habitual offender hearing to take place, the defendant acted in ways to delay the proceedings. He initially fired his attorney rather than proceed with the hearing on February 7, 2007, and he never retained new counsel despite repeatedly telling the trial court that he would. He was afforded court-appointed counsel who represented him at the habitual offender hearing, and he offered no legitimate basis for replacing Mr. Avery. It is clear that the defendant sought to further delay the proceedings and avoid being sentenced as an habitual offender. The defendant was warned by the trial court but persisted in his disruptive behavior in an effort to yet again halt the proceedings. The defendant opted to leave the courtroom when the trial court did not give in to his baseless demands.

Under these facts, we find that the defendant’s exclusion from the courtroom was justified and apparently voluntary. We find no error that would require this court to vacate the habitual offender adjudication or reverse the sentence. The assignment of error is without merit.

CONCLUSION

For the reasons stated, we affirm the defendant’s habitual offender adjudication and sentence.

AFFIRMED.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Marsh Anthony NOLAN, Plaintiff-Appellee v. Wilson MABRAY, Louisiana Farm Bureau Mutual Insurance Company, and Shelter Mutual Insurance Company, Defendants-Appellants.
    No. 44,922-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 16, 2009.
    Rehearing Denied Jan. 21, 2010.
    Cotton, Bolton, Hoychick & Doughty, L.L.P., by David P. Doughty, Rayville, for Defendant/Appellant, Louisiana Farm Bureau Mutual Ins. Co.
    Thomas R. Hightower, Jr., Lafayette, for Defendant/Appellee, Shelter Mutual Ins. Co.
    Before BROWN, PEATROSS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| TAppellant, Louisiana Farm Bureau Mutual Insurance Company (“Farm Bureau”), seeks review of a judgment finding that a policy issued by appellee, Shelter Insur-anee Company (“Shelter”), was not in full force and effect at the time of the accident; and, consequently, that Farm Bureau was responsible to pay the full settlement amount to Marsh Nolan. We reverse.

Facts

On June 18, 2005, Wilson Mabray and Marsh Nolan, among others, were shooting fireworks in Union Parish, Louisiana. Wilson Mabray threw a bottle rocket at Nolan striking him in the right eye and causing serious injuries. Nolan subsequently instituted this lawsuit to recover damages for his injuries.

At the time of the accident, Wilson Ma-bray was a 19-year-old college student residing with his parents. Although divorced, Wilson’s parents shared joint custody. Each of his parents maintained separate liability policies: Sarah Mabray with Farm Bureau in the amount of $100,000, and J. Patton Mabray (“Mr. Mabray”) with Shelter in the amount of $500,000.

Prior to trial both insurers agreed to settle Nolan’s claim for the total amount of $100,000. Although each insurer paid one half, Shelter reserved the right to assert a defense of lack of coverage. The insurers stipulated that if the court found that the Shelter policy provided coverage then Shelter would pay 5/6 of the $100,000 settlement and Farm Bureau would pay the remaining 1/6. Conversely, if Shelter was successful in contesting the lack of coverage then Farm Bureau would be responsible for the full settlement sum of $100,000 and would return the $50,000 initially paid by Shelter. 12After trial was held, the trial court concluded that the Shelter policy had lapsed and ordered Farm Bureau to reimburse Shelter’s $50,000 with legal interest. For the following reasons, we reverse and render.

Discussion

At issue in this case is whether the policy written by Shelter to Mr. Mabray was in full force and effect on the date of the accident. It is undisputed that the policy in question was set to lapse on June 2, 2005, and that the bottle rocket incident occurred on June 18, 2005. At dispute, however, is whether a renewal/premium notice was mailed to Mr. Mabray.

Shelter alleges that a premium notice stating that the policy would lapse on June 2, 2005, was mailed to Mr. Mabray on April 28, 2005. Shelter, however, only produced evidence of its bulk mailing policy of renewal/premium notices. It did not present any evidence that this notice was in fact sent to Mr. Mabray.

The evidence introduced at trial further showed that Bobby Lawrence, the Shelter agent who wrote the policy, received an email from Shelter stating that the policy had lapsed for nonpayment and containing an itemization of the amount due to maintain the policy. Based upon his receipt of this e-mail, on June 29, 2005, Mr. Lawrence contacted Mr. Mabray who, on that day, paid the annual premium of $4,820 plus a $20 reinstatement fee.

Mr. Mabray testified that he had no recollection of receiving the renewal notice. He stated that he worked long hours as a farmer and that occasionally mail would stack up on his desk during the farming season. |sMr. Mabray stated that he had carried approximately ten policies with Shelter over the last ten years.

Renewal is defined in La. R.S. 22:636.1 A(5) as the “issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term.” When a policy expires from the running of its term and is not disrupted, the statutory provisions regarding renewal are applicable, rather than the cancellation provisions. Adamson v. State Farm Mutual Auto. Ins. Co., 95-2450 (La.App. 1st Cir.06/28/96), 676 So.2d 227.

It is clear that the instant case involves the renewal of an insurance policy, not the cancellation, since there is no evidence that the policy was disrupted or terminated prior to its anticipated end date, June 2, 2005. The insurance company clearly manifested its willingness to renew the insurance policy. It, however, must prove that the renewal/premium notice was actually sent to the insured at the correct address with appropriate postage.

The standard of review to be applied to factual findings in a civil matter is the manifest error standard. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The trial court in the case sub judice wrote that “[t]he mailing process as testified to by [Shelter] alone is insufficient to tip the scales in favor of Shelter.” We agree. However, we do not agree with the trial court’s conclusion that the “unwillingness of Mr. Mabray to flatly deny receipt” tips the scales “if ever so slightly.”

|4Mr. Mabray testified that during the time in question he had about “a half dozen or so” policies with Shelter and knew exactly what a premium notice looked like, as “I’ve seen plenty of them.” Mr. Mabray stated that he always “opened the Shelter stuff’ and that he always paid the premiums in full for the entire year, but he had no knowledge of receiving this particular premium notice.

Based upon the aforementioned, we find that there was insufficient evidence for the trial court to conclude that the premium notice had been mailed, and, as such, its final determination otherwise was manifestly erroneous.

The testimony of Bobby Lawrence is also significant. He testified that he would have received the e-mail message from Shelter on June 6 or 7 but that he did not see the message until June 29. He stated that he was out of the office from June 17-27 at an agent’s conference. According to Lawrence, he called Mr. Ma-bray on June 29 and Mr. Mabray paid the entire premium and the $20 reinstatement fee at that time. Lawrence further testified that “[t]he company tells if a premium is due June 2nd, then if its paid within ten days, then the company can go back and reinstate it back to the original date.” (Emphasis added). Obviously, had Lawrence contacted Mabray within ten days after receipt of the e-mail, the matter would have been resolved before the June 18 accident. Moreover, the premium was accepted without any conditions excluding coverage between the date of lapse and reinstatement. Under these circumstances, we find that the policy covered the default period.

| ¿Conclusion

For the foregoing reasons, we hereby REVERSE the decision of the district court holding that the Shelter Insurance policy had lapsed and RENDER judgment in favor of Louisiana Farm Bureau Mutual Insurance Company.

IT IS ORDERED, ADJUDGED AND DECREED that Shelter Mutual Insurance Company shall pay to Louisiana Farm Bureau Mutual Insurance Company 5/6 of the $100,000 settlement made to Marsh Nolan with credit for the $50,000 already paid together with legal interest.

All costs of these proceedings are assessed to Shelter Mutual Insurance Company.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, PEATROSS, and LOLLEY, JJ.

Rehearing denied.


author: SULLIVAN, Judge. AMY, J.,

text:
    James JASON III v. LOUISIANA MUNICIPAL RISK MANAGEMENT AGENCY, et al.
    No. 09-699.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 2009.

      Darrel D. Ryland, J.B. Treuting, Wesley Elmer, Danika A. Benjamin, Law Office of Darrel D. Ryland, Marksville, Louisiana, for Plaintiff/Appellee: James Jason III.
    Randall B. Reiser, D. Heath Trahan, Reiser Law Firm, P.L.C., Alexandria, Louisiana, for Defendants/Appellants: Town of Cottonport James Williams.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

|! Defendants appeal the trial court’s determination that Plaintiff suffered a herniated disc at C4-5 in an automobile accident caused by Defendant driver and its awards for loss of earning capacity and general damages. We affirm.

Facts

On December 1, 2006, James Jason III was traveling west on Zion Road in Cot-tonport, Louisiana, when a van owned by the Town of Cottonport and driven by its employee, James Williams, broadsided the vehicle driven by Mr. Jason. Mr. Jason filed suit against Mr. Williams and the Town of Cottonport, seeking damages for injuries he suffered in the accident.

Mr. Jason was twenty-three years old and living with his mother when the accident occurred. He had graduated from high school, but he was not a good student and had repeated the tenth grade. Mr. Jason was employed by Rerotest, a valve manufacturer. He had three wage increases and a promotion after the accident. His positions with Rerotest were very structured and required him to follow detailed, simple instructions. Due to his injuries, Mr. Jason was not able to perform all his job duties, and Rerotest had another employee perform tasks that he could not perform. Before working for Rero-test, Mr. Jason had worked bagging groceries, tagging lumber at a lumber yard, and valeting cars. He smokes cigarettes and marijuana and was convicted of possession of cocaine six years before the accident. He has five children for whom he must pay child support.

Mr. Jason testified regarding the pain he suffered due to his injuries and how his injuries affected his ability to work, socialize, and interact and play with his children. After the accident, he worried that his life would not be what it was before |athe accident and that he would not be able to enjoy the activities he previously enjoyed like playing with his children and playing sports with his brothers. He also testified that he was afraid he would re-injure himself.

Mr. Jason explained that approximately one hour after the accident, he began experiencing pain in his neck and low back. Later that day, he sought treatment at Bunkie General Hospital’s emergency room where he complained of a headache and pain in his neck and lower back. He was diagnosed with muscle spasms in his neck and back. Three days later, he sought treatment from Dr. Bryan McCann, a family medicine physician. Dr. McCann treated Mr. Jason for thirteen months during which Mr. Jason regularly complained of pain in his neck, left shoulder, and back. There were occasions, however, when he complained only of neck pain. In August 2007, Dr. McCann ordered MRIs of Mr. Jason’s neck and back, which were interpreted as normal by Dr. J.J. Laborde, a radiologist. About two months later, Dr. McCann referred Mr. Jason to Dr. George R. Williams, an orthopedic surgeon who limits his practice to treating the spine, because although the MRIs were interpreted as normal, his treatment of oral pain relievers and intramuscular steroid injections had provided Mr. Jason little relief.

Dr. Williams saw Mr. Jason on January 24, 2008. On examination, Mr. Jason complained of neck pain, left shoulder pain, and lower back pain. Mr. Jason noted on his patient intake sheet that he also had shooting pain from his neck down into his arms and legs. After examining Mr. Jason and reviewing his MRIs, Dr. Williams diagnosed him as having a disc herniation at C4-5 that was central and effacing his left C5 nerve root, and he recommended surgery. He related the herniation and nerve root impingement to the accident. Mr. Jason returned to Dr. Williams on two | (¡occasions before surgery was performed on April 4, 2008. He complained of neck pain and back pain that went into his left leg, as well as pain radiating down his left arm to his hand, during each of those visits.

In light of Dr. Laborde’s interpretation of the MRIs as normal, Defendants had Dr. Louis J. Blanda, also an orthopedic surgeon, conduct an independent medical examination of Mr. Jason. After examining Mr. Jason and reviewing the MRIs, Dr. Blanda agreed with Dr. Laborde’s interpretation that they were normal. Defendants then sought an opinion from Dr. Curtis Partington, a diagnostic radiologist with subspecialty training in neuroradiolo-gy. Dr. Partington agreed with Dr. La-borde and Dr. Blanda that the cervical MRIs were normal.

Dr. Williams performed an anterior cervical decompression and fusion at C4-5 on Mr. Jason on April 4, 2008. He testified that when he performed the surgery, he “totally visualized the disc herniation, saw the compression of the nerve root, removed it and decompressed the spinal cord, decompressed the nerve root and made sure it was wide open.” According to Dr. Williams, Mr. Jason tolerated the surgery well. As of November 2008, he had some lingering intermittent neck pain, but his left arm and shoulder pain had resolved. A CT scan performed in September 2008 revealed that one-sixth of Mr. Jason’s fusion was consolidated. Dr. Williams testified that Mr. Jason had not reached maximum medical improvement (MMI), but he anticipated that Mr. Jason would reach MMI approximately one year after surgery or April 2009. He assigned Mr. Jason a 7% permanent partial impairment of the whole body because of the surgery.

Mr. Jason was restricted from work until June 80, 2008, and has been limited to light-duty work status. Dr. Williams testified that light duty consists of avoiding 14a lot of bending, twisting, or lifting and not picking up more than twenty pounds. Kerotest has accommodated Mr. Jason’s inability to perform all the duties of his current position by having another employee lift anything which exceeds the twenty-pound weight limitation imposed by Dr. Williams.

Approximately two and one-half months after surgery, Mr. Jason returned to Dr. McCann complaining of depression and crying spells. Dr. McCann prescribed Cymbalta and Lexapro. These medications did not relieve Mr. Jason’s symptoms, and Dr. McCann referred him to Dr. James W. Quillin, a medical psychologist. In Dr. McCann’s opinion, Mr. Jason is not a malingerer.

Dr. Quillin practices neuropsychology, clinical psychology, and medical psychology. He first saw Mr. Jason on June 27, 2008. On examination, Mr. Jason showed some mild depression, anxiety, and blunted affect, but he was not psychotic. He related to Dr. Quillin that he feared he might reinjure himself and that he wanted his life to get back to “normal.” Dr. Quillin diagnosed Mr. Jason with mild reactive depression and anxiety, which he attributed to Mr. Jason’s adjusting to his injury. He also prescribed Cymbalta but adjusted the dosage. Dr. Quillin thought that Mr. Jason was below normal intellect.

Mr. Jason’s depression and anxiety improved with Dr. Quillin’s treatment, and Dr. Quillin expected him to reach MMI shortly after trial. He anticipated that he would need to see Mr. Jason again in six months, then once a year for two years with a tapering off of the Cymbalta unless needed for anxiety, depression, or pain. Dr. Quillin believed that Mr. Jason was a chronic pain patient but that he did not magnify his degree of distress and was adjusting very well to his situation.

|fiMr. Jason was evaluated by two vocational rehabilitation counselors. Dr. Richard H. Galloway, Mr. Jason’s expert counselor, administered the Slosson Intelligence Test R3 and testified that Mr. Jason’s total standard score was 67, which is low. Because of Mr. Jason’s intellectual abilities and his lack of academic skills, Dr. Galloway opined that the number of jobs available that Mr. Jason could perform was very limited. He further opined that Mr. Jason’s cervical surgery had negatively impacted his limited opportunities in the job market.

Dr. Steven Henry Deist, Defendants’ expert, did not attempt to determine whether any jobs available to Mr. Jason before the accident had been eliminated because of his injuries and surgery. Instead, he determined that because Mr. Jason returned to work after the accident, his potential future employment had not been affected by his injuries.

The trial court considered the positive, as well as the negative, aspects of Mr. Jason when awarding him damages. It was impressed with Mr. Jason’s “veracity” and accepted his experts’ opinions over Defendants’ experts’ opinions. Prior to trial, the parties stipulated that Mr. Jason’s recovery could not exceed $500,000.00. The trial court awarded damages totaling $494,684.12, which included $400,000.00 in general damages and $30,000.00 for loss of earning capacity. Defendants appeal and assign three errors ■with the trial court’s judgment.

Issues

Defendants’ appeal presents three issues for our review:

1. Is Dr. Williams’ opinion that the accident caused a herniated disc at C4-5 contradicted by MRIs, rendering the trial court’s acceptance of his opinion error which requires reversal?
162. Is the trial court’s award for loss of earning capacity unsubstantiated by the evidence, warranting reversal?
3. Is the trial court’s award for general damages so high that it is an abuse of discretion under the facts of this case?

Discussion

Wets the trial court’s acceptance of Mr. Jason’s physician’s opinion error?

Defendants point to Mr. Jason’s MRIs and the three interpretations that no MRI reveals a herniation at C4-5 and claim that the surgery performed by Dr. Williams is not causally related to Mr. Jason’s accident. They contend that the trial court’s acceptance of Dr. Williams’ opinion that an MRI shows a herniation is manifestly erroneous and argue “if a plainly normal MRI ... confirmed by two physicians specializing in radiology, does not suffice to prove otherwise, then there can really never be any meaningful appellate factual review of palpably erroneous medical diagnoses.”

In Ryan v. Zurich American Insurance Co., 07-2312, p. 12 (La.7/1/08), 988 So.2d 214, 222, the supreme court reiterated the standard for appellate review of the fact finder’s acceptance of one expert’s opinion over that of another, stating:

“The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound.” Sportsman Store of Lake Charles, Inc. v. Sonitrol Sec. Systems of Calcasieu, Inc., 99-0201 (La.10/19/99), 748 So.2d 417, 421 (citing Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990)). “A fact finder may accept or reject the opinion expressed by an expert, in whole or in part.” Green [v. K-Mart, 03-2495 (La.5/25/04), 874 So.2d 838] (citing Lirette, supra). “The trier of fact may substitute common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole.” Id. (Citing Sportsman Store, supra). Upon review, “[w]here documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” Sportsman Store, supra at 421. |7“But where such factors are not present, and a fact-finder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Id.

The trial court afforded greater weight to Dr. Williams’ testimony because he was Mr. Jason’s treating physician and accepted his opinion that the injuries suffered by Mr. Jason in the accident included a herniation at C4-5 and resulting nerve root impingement. This court reviewed the jurisprudential rule which accords greater weight to a treating physician’s opinion than to a physician who did not treat the party at issue in Freeland v. Bourgeois, 06-932, p. 31 (La.App. 3 Cir. 1/24/07), 950 So.2d 100, 119-20, writ denied, 07-409 (La.4/5/07), 954 So.2d 144, explaining:

It has long been held that, in general, the observations and opinions of the treating physician are to be accorded greater weight than those of a physician who has only seen the party for purposes of rendering an expert opinion concerning the party’s condition. “However, the treating physician’s testimony is not irrebuttable, as the trier of fact is required to weigh the testimony of all of the medical witnesses.” Freeman v. Rew, 557 So.2d 748, 751 (La.App. 2nd Cir.1990) (citations omitted), writ denied, 563 So.2d 1154 (La.6/01/90). Ultimately, “the weight afforded a treating physician’s testimony is largely dependent upon the physician’s qualifications and the facts upon which his opinion is based.” Id. “Thus, reduced to its essentials, the inquiry is whether, based on the totality of the record, the jury was manifestly erroneous in accepting the expert testimony presented by defendants over that presented by plaintiff.” Miller v. Clout, 2003-0091, fn. 3 (La.10/21/03), 857 So.2d 458, 463.

Defendants contend that Dr. Williams should not be considered a treating physician because he diagnosed Mr. Jason’s herniated disc on his first visit. Mr. Jason was referred to Dr. Williams by Dr. McCann for treatment, Dr. Williams saw him on three occasions before he performed surgery, and Mr. Jason’s complaints were consistent with complaints he had made to Dr. McCann. For these reasons, we find no error with the trial court’s consideration of Dr. Williams as Mr. Jason’s treating physician.

|8Pr. Blanda testified that he did not see a herniation at C4-5 on the MRIs and concluded that the MRIs were normal, even after reviewing a segment marked by Dr. Williams on one MRI which identified the herniation he visualized. Dr. Blanda further testified that based on his examination of Mr. Jason and the marked MRI, he would not have operated on Mr. Jason. Instead, he would have ordered additional tests if he felt Mr. Jason’s subjective complaints warranted them. Dr. Blanda did admit, however, that “[s]ometimes [a herniation is] there and you miss it.” He also testified that the reliability of MRIs is 90% to 95%.

Dr. Partington testified that the abnormality at C4-5, which Dr. Williams believed was a herniation, was not real but an artifact caused by motion of the spinal fluid. According to Dr. Partington, the artifact appeared only on the axial views (top to bottom) of Mr. Jason’s spine, and the artifact would have to appear on the axial views and the sagittal (side profile) views for it to be real. Dr. Partington admitted that “very rarely” a flow-related artifact can obscure a disc herniation but qualified that admission, stating, “most of us that see a lot of these are really used to seeing that artifact!,] so it really doesn’t mask things very much.” Dr. Partington was questioned about false negatives and false positives on MRIs. He did not know statistics for either but believed the number for both is “tiny” or “small.”

Dr. Williams testified regarding his opinion that a herniation existed at C4-5 and his findings when he performed surgery. He explained that Mr. Jason’s symptoms were compatible with a herniation at C4-5 and that he disagreed with the opinions of Drs. Laborde, Blanda, and Partington. He testified that a herniation may or may not be seen on MRI depending on whether it is a mechanical disc or a chemical disc.

|9We have carefully considered the evidence and cannot say that the trial court’s acceptance of Dr. Williams’ testimony over Dr. Blanda’s and Dr. Parting-ton’s was manifestly erroneous. Dr. Blanda’s testimony and Dr. Partington’s testimony established that MRIs are not 100% accurate. While false positive rates for MRIs may be “small” and even “tiny,” the evidence does not establish that Dr. Williams’ interpretation of Mr. Jason’s MRI was conclusively wrong. Mr. Jason’s complaints to Drs. McCann and Williams are indicative of a herniation at C4-5, and the surgery provided him relief from his pain. Furthermore, Mr. Jason is aided in establishing his claim by a presumption of causation because the evidence establishes that he was in good health before the accident, but after the accident he began experiencing symptoms indicative of a disc herniation that “continuously manifest[ed] themselves after-wards” and “the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.” Menard v. Lafayette Ins. Co., 09-29, p. 3 (La.App. 3 Cir. 6/3/09), 13 So.3d 794, 799 (quoting Lucas v. Ins. Co. of N.A., 342 So.2d 591, 596 (La.1977) (citations omitted)).

Dr. Williams testified that he visualized the herniation and nerve root impingement he diagnosed after reviewing Mr. Jason’s MRIs when he performed surgery on Mr. Jason. Defendants contend that the herniation and nerve root impingement he visualized must have occurred between the August 2007 MRIs and the April 2008 surgery. After Mr. Jason established that the presumption of causation was applicable to him, Defendants had the burden of proving that another specific incident caused his cervical injury. Viviano v. Progressive Sec. Ins. Co., 05-125 (La.App. 3 Cir. 1/11/06), 920 So.2d 313, writ denied, 06-359 (La.4/28/09), 927 So.2d 290. Defendants did not present any such evidence.

110Defendants cite seven cases as support for their contention that Dr. Williams’ opinion should be rejected. We have reviewed these cases and find they do not support Defendants’ position. In the cases cited, the courts were reviewing administrative body determinations that a treating physician’s opinion was insufficient to establish disability or causation because MRIs, and in some cases additional medical evidence, did not substantiate the treating physicians’ opinions. The standard of review was similar to the standard of review we must apply, but in reverse. That is, the standard of review was whether there was sufficient evidence to support the agency’s decision to give less weight to the treating physician’s opinion, even if the reviewing court “might have decided the case differently based on substantial evidence to the contrary.” Sanders v. Comm’r of Soc. Sec., 66 Fed.Appx. 551, 553, 2003 WL 21085349 (6th Cir.2003). However, the standard of review herein is whether the trial court’s decision to give more weight to Dr. Williams’ opinion was “reasonable.” Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993).

Defendants also cite Cole v. State, Department of Public Safety and Corrections, 01-2123 (La.9/4/02), 825 So.2d 1134, where several doctors diagnosed the plaintiff with a traumatic brain injury, but neither the facts, as related by the plaintiff to his treating physicians, nor the objective medical evidence supported that diagnosis. The plaintiff did not relate to his treating physicians that he suffered a blow to his head or complain of headaches until six months after the incident at issue. The supreme court reversed the lower courts’ conclusions that the plaintiff suffered a serious closed-head trauma. The reversal was determined to be warranted because the diagnosis was based solely on the plaintiffs history of the incident and his | n complaints, which changed during the course of his treatment and were found to be exaggerated by his treating physicians. That is not the situation here.

These cases do not change our determination that the trial court’s acceptance of Dr. Williams’ opinion was reasonable under the facts presented herein and, therefore, not manifestly erroneous.

Are the trial court’s damage awards manifestly erroneous?

Damage awards are findings of fact which can be disturbed on review only if the fact finder abused its discretion in making the awards. Guillory v. Lee, 09-75 (La.6/26/09), 16 So.3d 1104. The trial court was vested with “great ... even vast” discretion in awarding damages to Mr. Jason. Id. at 1117. Therefore, its awards are entitled to great weight and should only rarely be reversed. Id. In determining whether an abuse of discretion has been shown, the relevant evidence must be viewed in the light which offers the most support to the trial court’s judgment, and if a reasonable factual basis exists for the trial court’s damage awards, we cannot reverse the awards. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Is the trial court’s award for loss of earning capacity substantiated by the evidence?

Defendants assign error with the trial court’s award of $30,000.00 for loss of earning capacity because Mr. Jason received two promotions and three wage increases after the accident. They also assert that the evidence does not establish that his earning capacity was reduced as a result of the accident and that the award “appears to have been arbitrarily arrived at.”

112The supreme court reviewed the law on loss of earning capacity in Ryan, 988 So.2d at 219, quoting its earlier explanation of this element of damages in Folse v. Fakouri, 371 So.2d 1120, 1124 (La.1979):

Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.

The trial court determined that while Mr. Jason had done well with Kerotest since his accident, his injuries and subsequent fusion have negatively impacted his ability to obtain other employment. In reaching this determination, the trial court considered Mr. Jason’s education, academic abilities, prior criminal history, and employment with Kerotest. This conclusion is supported by the testimonies of Mr. Jason’s treating physicians and Dr. Galloway. We cannot reverse the trial court’s award for loss of earning capacity unless it is manifestly erroneous. The record does not establish that it is.

Defendants also argue that because no expert testified Mr. Jason’s loss of future earning capacity is equal to the sum of $30,000.00, the trial court’s award of that amount was arbitrary and error. This argument does not recognize that loss of earning capacity is speculative in nature, Callihan v. Town of Vinton, 95-665 (La.App. 3 Cir. 12/6/95), 668 So.2d 735, and that the trial court’s award is lower than what Mr. Jason’s economist calculated because of the $500,000.00 stipulated limitation on Mr. Jason’s recovery.

Is the trial court’s general damage award excessive?

Defendants contend the trial court’s award of $400,000.00 in general damages is excessive in light of Mr. Jason’s ability to tolerate work until * Dr. Williams | ^performed surgery in April 2008, his return to work only three months after his surgery, his ability to perform essentially the same duties on returning to work, and the possibility of his being able to return to heavy-duty work status one year after his surgery. Defendants’ arguments do not acknowledge that Mr. Jason also suffered depression and anxiety because of the accident and his injuries, that Kerotest accommodated his limitations when he returned to work, and that the full impact of his surgery is not yet known.

The trial court refused to penalize Mr. Jason for working and was impressed by his work ethic. It found him credible and accepted his testimony regarding the pain he experienced after the accident. The trial court also believed his testimony that he continues to have pain in his neck, which limits his ability to do his work at Kerotest, and that he is concerned about his job security, re-injuring himself, and whether his life will return to normal. While this award may be more than this court would award, we cannot say that it is an abuse of the trial court’s vast discretion in awarding damages.

Disposition

The judgment of the trial court is affirmed. Costs are assessed to Defendants.

AFFIRMED.

AMY, J., concurs in part, dissents in part, and assigns written reasons.

AMY, J.,

concurring in part, dissenting in part.

|TI respectfully dissent from that portion of the majority opinion affirming the quantum of general damages. In my opinion, the underlying factual basis does not support the trial court’s award of $400,000 and is, therefore, an abuse of discretion. I would lower the quantum to the highest point at which damages are reasonable in accordance with Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

I concur in the remainder of the majority opinion.


author: GENOVESE, Judge. COOKS, J., GREMILLION, Judge,

text:
    Charlotte BROUSSARD, et al. v. HERTZ EQUIPMENT RENTAL CORPORATION, et al.
    No. 09-177.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 2009.

      Joe A. Brame, Brame & McCain, Lake Charles, LA, for Appellant, Hertz Equipment Rental Corporation.
    Brian L. Coody, Stockwell, Sievert, Vic-cellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Appellee, Firestone Polymers, LLC.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, J. DAVID PAINTER, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

pin this personal injury case, the Defendant, Hertz Equipment Rental Corporation (Hertz), appeals the trial court’s grant of summary judgment in favor of Firestone Polymer, LLC (Firestone), dismissing its third party claim against Firestone for defense and indemnity. For the following reasons, we reverse the trial court judgment and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 7, 2003, Charlotte Brous-sard was involved in an accident while operating a pallet jack (a walking forklift) owned by Hertz and rented to Firestone. The accident occurred while Ms. Brous-sard was in the course and scope of her employment with Firestone.

A personal injury lawsuit was filed by Ms. Broussard for the injuries she suffered in the accident. Named as a Defendant was Hertz as the renter of the pallet jack forklift (“forklift”) to Firestone. Firestone, as Ms. Broussard’s employer, was immune from tort liability by virtue of the exclusive remedy provisions of the Louisiana Workers’ Compensation Act.

The forklift was rented by Firestone from Hertz in 2001. Marsha Reed, who was a member of Firestone’s purchasing department, negotiated a verbal lease with Hertz for the rental of the forklift. That verbal agreement did not contemplate any indemnification by Firestone on behalf of Hertz. Shortly after terms were agreed upon, Firestone sent a purchase order to Hertz which contained an indemnification and hold harmless agreement; however, the purchase order was never signed by Hertz. Nevertheless, Hertz did deliver the equipment to Firestone’s facility.

When the forklift was delivered by Hertz to Firestone, the delivery man for Hertz requested that D.J. Pickle, who was a Firestone warehouse clerk, sign what 12Hertz referred to as a “rental contract” that contained canned indemnification language on the reverse side. Mr. Pickle testified that he believed he was simply signing a packing slip to acknowledge receipt of the delivery. He stated that this was the usual practice when receiving equipment. He maintained that he did not read the document that he had signed and, in any event, did not believe that he had the authority to sign contracts for Firestone.

Prior to the accident date, Firestone had signed a National Account Agreement (“NAA”) with Hertz which was in effect at the time of the accident. Hertz notes the following language in the NAA:

EQUIPMENT RENTALS UNDER THIS AGREEMENT ARE SUBJECT TO THE TERMS OF THE HERTZ RENTAL AGREEMENT ... IN EFFECT AT THE TIME AND PLACE OF RENTAL.

Hertz argues that the NAA binds Firestone to defend and indemnify Hertz with regard to Ms. Broussard’s claim. Specifically, it argues that, by signing the NAA, the language on the reverse side of the document presented to Mr. Pickle bound Firestone to indemnify Hertz. Firestone countered that there was no language in the NAA which referred to any written contract that would be binding upon Firestone and that there was no indemnification language in the agreement. Firestone argues that the NAA merely referred to Firestone being bound by future contracts, whether oral or written, and contained only references to the pricing that would apply.

Ms. Broussard filed her petition for damages in 2004. It was not until September 28, 2006, that Hertz filed a Third Party Petition against Firestone, seeking a defense and indemnity. Hertz then filed a motion for summary judgment seeking an order of court requiring Firestone to provide it with a defense and indemnity. | .¡Firestone then filed its own cross-motion for summary judgment, seeking a dismissal of Hertz’s Third Party Petition.

Firestone maintained that a full rental agreement had been agreed to by the parties prior to the delivery of the forklift and that both parties verbally agreed that Hertz would indemnify Firestone should an accident occur resulting in an employee of Firestone filing a claim for damages against it. Firestone argued that there was a prior verbal agreement, and, therefore, the NAA would not bind it to the written agreement allegedly signed by its representative at the time of the delivery of the forklift. Firestone argued that no indemnification or hold harmless agreement was ever sent to Marsha Reed to review or negotiate, nor was any compensation ever offered to Firestone to provide a hold harmless agreement.

At the hearing on the cross-motions for summary judgment, the trial court ruled that there was not an “actual meeting of the minds” on the issue of indemnification and gave the following reasoning for reaching its judgment:

I don’t believe there was any intent on the part of Firestone to agree to this particular condition in the contract. In fact, I think it’s evidenced by the fact that [Marsha Reed] sent a contract out seeking indemnification from Hertz for injuries caused by their equipment. I just can’t believe that they would — even though it’s in the contract, to ever agree to indemnify a rental company for injuries caused by that rental company’s equipment. That just flies in the face of logic. So I just can’t believe there was that agreement.

Based on that reasoning, the trial court denied Hertz’s motion for summary judgment. The trial court granted Firestone’s motion for summary judgment and dismissed Hertz’s third-party petition. Hertz has appealed the trial court’s judgment herein.

ASSIGNMENTS OF ERROR

Hertz has presented a number of assignments of error, basically alleging that the trial court erred in denying its motion for summary judgment and erred in granting 14Firestone’s motion for summary judgment.

Though counsel for Hertz, in its brief, seeks a judgment on appeal granting it a defense and indemnity from Firestone, that issue is not properly before this court. Hertz may not appeal the denial of its motion for summary judgment against Firestone. It is an interlocutory judgment, as correctly set forth in the trial court judgment, and is, therefore, not ap-pealable. La.Code Civ.P. art. 968; La. Code Civ.P. art. 1915; Alfred Palma, Inc. v. Crane Services, Inc., 03-614 (La.App. 3 Cir. 11/5/03), 858 So.2d 772.

We will, however, address Hertz’s assignment of error asserting that the trial court erred in granting Firestone’s motion for summary judgment.

STANDARD OF REVIEW

This court recently stated the following with regard to the standard of review applicable to an appeal of the grant of a motion for summary judgment:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006—363[,] p. 3 (La.11/29/06), 950 So.2d 544, 546, see [La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, "with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, 2006-1181[,] p. 17 (La.3/9/07), 951 So.2d 1058, 1070; King v. Parish National Bank, 2004-0337[,] p. 7 (La.10/19/04), 885 So.2d 540, 545; Jones v. Estate of Santiago, 2003-1424[,] p. 5 (La.4/14/04), 870 So.2d 1002, 1006.
Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted).

Benniefiel v. Zurich Am. Ins. Co., 08-1416, p. 4 (La.App. 3 Cir. 5/6/09), 10 So.3d 381, 384.

| -ANALYSIS

Hertz argues that the trial court erred in not finding that the rental agreement in effect was the “rental contract” signed by D.J. Pickle at the time of the delivery of the forklift. Hertz contends that the NAA supports this conclusion, providing that “equipment rentals under this agreement are subject to the terms of the Hertz rental agreement ... in effect at the time of the rental.” Hertz argues that the trial court erred in disregarding the NAA; and, since the NAA was the only contract that was signed by both parties, it should be given effect.

We find that the trial court did not disregard the NAA; instead, it disagreed with Hertz that the form “rental contract” presented to D.J. Pickle, a Firestone warehouse clerk, was sufficient to alter the previous oral contract reached by the parties. The testimony of Marsha Reed established that the parties reached a verbal agreement on the rental of the forklift. A purchase order was sent by Firestone to Hertz with the terms that were orally agreed upon. Although Hertz did not sign the purchase order, it nonetheless delivered the forklift to Firestone’s premises. Ken Welsh, Hertz’s sales representative in the negotiations with Marsha Reed, acknowledged that Hertz would not have delivered the forklift until an agreement had been reached. No further contact was made with Marsha Reed to discuss any indemnification language or hold harmless agreement.

The trial court also noted there was nothing in the NAA specifically referring to any “written agreement” that would apply to any future rental agreements. The only reference in the NAA was the general reference to the “rental agreement ... in effect at the time and place of rental.” The trial court concluded that the “rental agreement ... in effect at the time and place of rental” was the verbal agreement |finegotiated by Marsha Reed. The trial court found that the “rental contract” presented at the time of delivery of the equipment, which contained a defense and indemnity clause, was not a valid contract because there was no “meeting of the minds.”

Throughout its oral reasons for judgment, the trial court repeatedly referred to the phrase “meeting of the minds.” The trial court stated, “I just can’t see that there was an actual meeting of the minds on this issue.... So I just don’t think there was an agreement, a meeting of the minds.” The trial court also considered the “intent” of the parties wherein it stated, “I don’t believe there was any intent on the part of Firestone to agree to this particular condition in the contract.”

Pertinent to our appellate review in this matter is the following cautionary language contained within the jurisprudence relative to summary judgments in certain cases:

In determining whether summary judgment is appropriate, our jurisprudence provides that:
[I]t is not the function of the trial court to determine or inquire into the merits of issues raised, and the trial court may not weigh the conflicting evidence on a material fact. If evidence presented is subject to conflicting interpretations, summary judgment is not proper.
Further,
Summary judgment may not be granted when supporting and opposing documents reveal conflicting versions of the facts which may only be resolved by weighing contradicting testimony and assessing witness credibility.

Johnson v. Gov’t Employees Ins. Co., 05-476, pp. 5-6 (La.App. 3 Cir. 11/2/05), 916 So.2d 451, 454 (quoting Federated Rural Elec. Ins. Corp. v. Gulf South Cable Inc., 02-852, pp. 4-5 (La.App. 3 Cir. 12/11/02), 833 So.2d 544, 546-47 (footnotes Comitted)). “If in evaluating the evidence, the court considered the merits, made credibility determinations, evaluated testimony, or weighed evidence, summary judgment must be reversed.” Strickland v. Doyle, 05-11, p. 4 (La.App. 3 Cir. 4/6/05), 899 So.2d 849, 852, writ denied, 05-1001 (La.6/3/05), 903 So.2d 466.

Our supreme court, in S.J. v. Lafayette Parish Sch. Bd., 2006-2862, p. 5 (La.6/29/07), 959 So.2d 884, 887, has stated:

Even though summary judgment is now favored, it is not a substitute for trial on the merits, and it is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith or knowledge that call for credibility evaluations and the weighing of the testimony. Chivleatto v. Sportsman’s Cove, Inc., 05-136, p. 6 (La.App. 5 Cir. 6/28/05), 907 So.2d 815, 819. The trial judge cannot make credibility calls on a motion for summary judgment, but must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion for summary judgment. See Independent Fire Insurance Company v. Sunbeam Corporation, 99-2257 (La.2/29/00), 755 So.2d 226.

In the instant case, as evidenced by the oral reasons for judgment, the trial court made a judicial determination based upon intent and a “meeting of the minds.” Said judicial determination inherently calls for credibility evaluations and the weighing of testimony, which is prohibited in summary judgment proceedings. Therefore, the trial court’s grant of summary judgment in favor of Firestone must be reversed and the matter remanded for further proceedings consistent herewith.

DECREE

For the reasons set forth above, the judgment of the trial court granting the motion for summary judgment filed by Firestone Polymers, LLC, is reversed. The matter is remanded to the trial court for further proceedings consistent herewith. Costs of this appeal are assessed against Firestone Polymers, LLC.

REVERSED AND REMANDED.

GREMILLION, J., concurs and assigns written reasons.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

|TI would affirm the trial court’s grant of summary judgment in favor of Firestone.

GREMILLION, Judge,

concurring.

hi agree with the majority that the summary judgment in favor of Firestone was improvidently granted. I further agree with the majority that the trial court should not have made a credibility determination regarding the intent of the parties. The majority goes on to conclude, however, that such a credibility determination (i.e. whether there has been a “meeting of the minds”) would be appropriate at trial. I disagree.

The two writings at issue here (a “rental contract” and a “national account agreement”) are both signed, and they are both clear and unambiguous. The critical document here was signed by Firestone’s employee, Mr. Pickle. Louisiana law is very clear that the fact that Mr. Pickle did not read the document is of no moment. Aguillard v. Auction Mgt. Corp., 04-2804, 04-2857 (La.6/29/07), 908 So.2d 1. A party is bound by what he signs unless there exists some vice of consent. See La. Civ. Code art. 194-8, et seq. There is no evidence that such a vice existed. Thus, I disagree with the majority opinion to the extent that it suggests that the proper question for trial is whether the parties intended to be bound. That suggestion assumes that signatures mean nothing.

However, there does appear an issue of fact as to whether Mr. Pickle was an authorized agent for Firestone when he signed the documents on his employer’s | gbehalf. I, therefore, concur.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Willie J. BEAUDION.
    No. 09-440.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2009.

      Billy J. Harrington, ADA, Parish of Natchitoches, Natchitoches, LA, for Appel-lee State of Louisiana.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant-Appellant Willie J. Beaudion.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

|TOn April 1, 2008, Defendant, Willie J. Beaudion, was found guilty by jury verdict of possessing a schedule II controlled dangerous substance, in violation of La. R.S. 40:967. After considering the information in the presentence investigation report (PSI), the court ordered Defendant to serve five years at hard labor with credit for time served. Defendant did not file a motion to reconsider sentence with the district court. Defendant now appeals. We affirm Defendant’s conviction and sentence and relegate the unresolved ineffective assistance of counsel issues to post-conviction relief.

STATEMENT OF FACTS

In the early morning hours of April 5, 2007, Officer Jody Campbell, who was employed by the Natchitoches City Police, saw Defendant standing in the middle of the roadway, signaling for Officer Campbell to stop. Defendant informed Officer Campbell that someone had taken his money. At that time, Corporal Keith McDonald of the Natchitoches Police Department arrived on the scene, and spoke with Defendant while Officer Campbell spoke with the people standing in the driveway of the nearby house where Defendant alleged the theft had occurred. As he conversed with the people at the house, Officer Campbell heard Corporal McDonald begin to scuffle with Defendant.

Officer Campbell stated when he went to assist Corporal McDonald, he saw that Corporal McDonald had already handcuffed Defendant. Officer Campbell stated that he and Corporal McDonald then found eight rocks of crack cocaine scattered on the ground between their law enforcement vehicles. Officer Campbell then secured the scene while Corporal McDonald put Defendant in Officer Campbell’s unit. Subsequent testing confirmed the rock like material to be crack cocaine.

| ¡.Corporal McDonald testified he became aware that Officer Campbell had been stopped to deal with an alleged robbery, and he went to assist as is usual for officers working late-night patrol. When Corporal McDonald arrived on the scene, Officer Campbell asked him to stand with Defendant while Officer Campbell talked to the people Defendant claimed took money from him.

Corporal McDonald reported that, in accordance with Officer Campbell’s request, he approached Defendant and asked him for identification. Defendant reached into his pocket to retrieve his identification, and when he began pulling the identification out of the pocket, rock like substances came out of the pocket. Defendant attempted to push the rocks back into his pocket, but Corporal McDonald recognized the substance and asked Defendant what he had in his pocket. Defendant then threw the drugs onto the ground beside the car and attempted to run. After subduing him, Corporal McDonald took Defendant into custody.

On cross-examination, Corporal McDonald stated he was familiar with the area of Natchitoches in which Defendant had flagged down Officer Campbell. Corporal McDonald related that the residence to which Defendant had been gesturing during his allegation of robbery was known to Corporal McDonald as Rook’s crack house. Corporal McDonald recalled that, as he was putting Defendant in the car, Defendant told him someone had put the drugs in his pocket. Corporal McDonald submitted a report containing Defendant’s statement to the district attorney’s office.

The defense called Wilbert Moody as its first witness. Mr. Moody knew Defendant for approximately ten years prior to trial and was aware Defendant had been charged with possession of crack cocaine. Mr. Moody stated he was in the house drinking and smoking with other people when Defendant entered. He stated that Defendant was going to purchase some drugs to share, but Defendant did not | shave a chance because “they” tried to rob him. One of the women present and the owner of the house, Charles White, approached Defendant and began tussling with him. The pair were trying to get money out of Defendant’s pocket. Mr. Moody maintained that Mr. White, who had crack cocaine in one of his hands, inserted the hand containing the crack cocaine into Defendant’s pocket during the altercation. Mr. Moody said he saw Mr. White remove something green from Defendant’s pocket; Mr. Moody did not see whether or not Mr. White still had drugs in his hand.

Mr. Moody said Defendant struggled with the two until he made it outside. The pair followed Defendant out the door, and the police came. Mr. Moody and the others went back inside the house. Mr. Moody said Mr. White immediately tried to rob Defendant as soon as Defendant entered the residence. Although Defendant was there to buy crack cocaine, he did not have a chance to do so before he was robbed.

According to Mr. Moody, Mr. White commented they did not have to worry about Defendant anymore because the police took Defendant away for having dope in his pocket. Mr. Moody also said Mr. White told him he had intentionally left drugs in Defendant’s pocket.

On cross-examination, Mr. Moody stated Defendant told the people in the house he would buy a piece for them to smoke. Mr. White sold cocaine, and his house was considered a crack house because people bought and smoked crack there. Mr. Moody acknowledged he smoked crack that evening.

On re-direct examination, Mr. Moody asserted he was testifying because he knew the truth about what happened even though he realized that his testimony could harm him later. Mr. Moody, who was near Defendant that evening, did not see Defendant purchase any dope that night.

Michael Dyas was the second witness for the defense. Mr. Dyas testified he |4had known Defendant all his life, and was present for the events at Mr. White’s house. He testified as follows:

A. Willie [Defendant] came in, Rook got up, met him at the door. He had some rocks in his hand cause we was sitting there to the table. Okay immediately with him getting up the rest of them girls got up. And I’m sitting and I’m looking over there, I don’t know if they tussling or they playing or what. And everybody know when Willie James come in he got a pocket full of money. I mean that’s the reason he come back there. I mean you know. And Rook’s going in his pocket, getting the money; the girl’s going in his pocket. And they started; Rook was arguing and stole (inaudible). When they do this ...
A. They started an argument, I don’t know whether they fighting or tussling. So I get up and go to the back room. Cause I don’t want to be around that.
A. I want to explain to you. When Rook got up, went to the door, Willie James knocked on the door. He got up, go to the door, let Willie James in. He got some rocks in his hand cause I’m sitting there to [the] table with him getting high. Okay well Willie James come in, oh Willie James, I don’t know what all of them saying, I don’t know whether they arguing. To the day I don’t know whether they arguing or they playing or what. Oh man you got some money so he goes in his pocket. Well he go in his pocket, some girls go in his pocket, his other pocket over here too. You know. And he fighting the girls back and fighting them off, I don’t know whether they arguing or fighting or what. I say oh man you know so I get up and go back to the back where everybody else at.
A. He [Rook] had dope in his hand when he got up when he went to the door when he got up off the table. When you smoking dope you ain’t gonna leave it there for nobody else to get up and get that, with his hand just like this cause he gotta open the key to open the door to let him in. He got another door there, he’s gotta let him in, that’s what he do to let everybody in.

On cross-examination, Mr. Dyas stated he was in jail for distributing crack cocaine. Mr. Dyas admitted he regularly smoked crack cocaine, on occasion with Defendant at that location, and is familiar with the cocaine or crack scene.

Defendant’s mother, Eartis Beaudion, also testified for the defense. Ms. |5Beaudion explained that Defendant had money that evening because he had just received payment from a lawsuit.

ANALYSIS

Defendant argues the trial court erred in finding him guilty of the crime charged. He contends, despite his intent to purchase crack cocaine when he entered the house, he should not have been found guilty of possession of cocaine because he was unaware that there was cocaine in his possession when he left the house; instead, he thought he had been robbed. The State countered that there was sufficient evidence to support Defendant’s conviction as officers discovered Defendant to be in possession of crack cocaine.

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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (citations omitted).

Under La. R.S. 40:967(C), it is illegal to knowingly possess crack cocaine:

Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.

The evidence shows Defendant went into a known crack house for the purpose of purchasing crack cocaine. When Defendant left, he had crack cocaine in his pants pocket. When the officer asked Defendant what he had in his pocket, Defendant | (¡attempted to discard the drugs. Although Defendant presented a defense that he did not knowingly and intentionally possess the drugs, the jury disagreed.

In State v. Vanburen, 08-824, p. 7 (La. App. 4 Cir. 12/30/08), 3 So.3d 552, 556, the fourth circuit affirmed a conviction for possession of cocaine under the following circumstances: “Officers Baldassaro and Gagnon testified that they witnessed Van-buren reach into his pocket and discard an object. Subsequent testing by the state confirmed that the object discarded was cocaine.”

Similarly, in this case it is uncontested that Defendant had crack cocaine in his possession. Instead, Defendant contends he lacked the intent and guilty knowledge necessary to prove he knowingly and intentionally possessed the illicit substance. However, the evidence showed Defendant went to a crack house with the intent to obtain crack cocaine. When Defendant emerged from the crack house, he was in possession of the drug. Further, Defendant’s attempt to conceal, then discard, the illicit substance shows Defendant was aware of the nature of the substance.

Accordingly, we find this assignment of error is without merit because there is sufficient evidence to support Defendant’s conviction for possession of cocaine.

Defendant also contends “the trial court erred in its instruction to the jury prior to ordering the jury to retire for further deliberations.” Defendant argues that after polling of the jury revealed that the vote had been five for and one against, he should have been acquitted. Thus, Defendant claims the trial court erred in sending the jury back into deliberations with the following instruction:

THE COURT: All right I have uh, again you must have six in favor of the verdict and by polling the jury it’s been determined that there are not six yeses. So I’m going to send you back so there must have been an error in calculating, ask you to consider the verdict again and, or consider your decision again and let me know when you have reached a decision. All right. Okay we will, let me prepare a new, give me them a new form. If you’ll give that to the foreman.

17After the jury retired for the additional deliberations ordered by the district court, defense counsel objected on the basis that the jurors had the option to either deliberate again or accept a hung jury, but the trial court’s instructions did not inform the jurors they had a right to return with a hung jury; instead, the district court’s instructions implied the dissenting juror must change her vote. The State responded that the jurors stated they thought they had reached a verdict; they had not stated they were unable to reach a verdict.

The trial court ruled that it had appropriately advised the jury:

THE COURT: The Court finds that uh, it, the jury indicated to, in open court that they had reached a verdict. So clearly they believed they had reached a verdict. There was an error when we polled the jury which is why we poll juries and I sent them back to continue deliberating until they reached a verdict. They did not come and tell me they were unable to reach a verdict. And under the statute I believe that the Court uh, is correct in sending the jurors back to continue.

Louisiana Code of Criminal Procedure Article 812(2) establishes the procedure for taking a written poll of a jury’s verdict:

The procedure for the written polling of the jury shall require that the clerk hand to each juror a separate piece of paper containing the name of the juror and the words “Is this your verdict?” Each juror shall write on the slip of paper the words “Yes” or “No” along with his signature. The clerk shall collect the slips of paper, make them available for inspection by the court and counsel, and record the results. If a sufficient number of jurors as required by law to reach a verdict answer “yes” the clerk shall so inform the court. Upon verification of the results, the court shall order the clerk to record the verdict and order the jury discharged. If an insufficient number required to find a verdict answer “Yes,” the court may remand the jury for further deliberation, or the court may declare a mistrial in accordance with Article 775.

Thus, under La.Code Crim.P. art. 812(2), the trial court, upon finding the vote insufficient for a guilty verdict, could either declare a mistrial or remand the jury for further deliberations.

In State v. Brooks, 633 So.2d 659 (La. App. 1 Cir.1993), 'writ denied, 94-308 (La.5/20/94), 637 So.2d 475, the trial court’s poll of the jury revealed an insufficient | ¡¡number of votes to return a guilty verdict. The district court explained that ten jurors must agree to return a guilty verdict. Id. When the jury foreman stated there had been ten guilty votes in the jury room, the trial court asked if any of the jurors had changed their minds. Thereafter, the district “court ordered the jury to return to the jury room, reminding them again that ten jurors must agree on a verdict.” Id. at 663. Based on the juror polling, the defense moved for a mistrial or a mistrial by hung jury; the trial court denied the motion. The first circuit held there had been no abuse of discretion in the trial court’s ruling because the jury had initially returned with a verdict although polling revealed it was not a legal verdict. Thus, there had been no acquittal or deadlocked jury. Id.

Therefore, under the reasoning in Brooks, there was no abuse of discretion in the trial court’s denial of Defendant’s motion for mistrial as the jury indicated it had a verdict although subsequent polling revealed it was an invalid verdict. The grand jury foreperson did not state the jury had been unable to reach a verdict; thus, the trial court did not err in reminding the jurors that six votes for guilty were required to return a guilty verdict, in asking the jurors to reconsider their verdict, and in ordering the jury to further deliberate.

Although Defendant contends the district court’s instruction constituted an illegal attempt to overcome a deadlocked jury as described in Allen v. United States, 164 U.S. 492,17 S.Ct. 154, 41 L.Ed. 528 (1896), the instant case is distinguishable because the jury in Defendant’s case returned with a guilty verdict; it did not return with an assertion that it was unable to reach a verdict. See State v. Campbell, 606 So.2d 38, 39-41 (La.App. 4 Cir.1992); see also State v. Nicholson, 315 So.2d 639, 640-44 (La.1975). Accordingly, this assignment of error is without merit.

| ^Defendant also argues his five-year sentence was unconstitutionally excessive. Defendant argues the trial court imposed sentence while under the erroneous impression that Defendant was not eligible for probation, thus, the sentence should be set aside. Defendant maintains he would be eligible for probation if he entered a drug treatment program under La.Code Crim.P. art. 893(B). Defendant further asserts the trial court failed to adequately particularize the sentence because it failed to reference any factors justifying the imposition of the maximum penalty other than stating Defendant had an extensive criminal record.

The State countered that the maximum sentence imposed on Defendant in this case was not excessive because he was a third felony offender with a significant criminal history.

Defendant neither verbally moved for reconsideration of his sentence nor filed a motion to reconsider sentence with the trial court alleging specific errors. When a defendant moves for reconsideration of sentence without specifying the ground for reconsideration, this court is limited to a “bare bones” review of exces-siveness. State v. Barling, 00-1241, 01-1591 (La.App. 8 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.2/1/02), 808 So.2d 331. In Barling, 779 So.2d at 1042, we discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. (Citations omitted).

“[T]he trial judge need not articulate every aggravating and mitigating circumstance 110outlined in art. 894.1[;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

Louisiana Revised Statute 40:967(0(2) sets forth the penalty provision for simple possession of crack cocaine: “Any person who violates this Subsection as to any other controlled dangerous substance shall be imprisoned with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.” Thus, Defendant’s five-year sentence is the maximum term of imprisonment allowed by the statute. “Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged, and the worst type of offender.” State v. McCorkle, 97-966, p. 13 (LaApp. 5 Cir. 2/25/98), 708 So.2d 1212, 1218.

When the district court sentenced Defendant on June 13, 2008, it issued verbal reasons for the penalty it imposed. (R.p. 129).
THE COURT: You had a trial and I ordered a pre-sentencing investigation so that I could get information about you.
THE COURT: Because I am required to consider a number of factors before I decide what my sentencing should be. Now you are not eligible for a probated sentence because you have been convicted of a felony, I think this is your third felony offense. So that is not something I could consider. Cause based on the rules and the law that’s what it says. Now[,] one of the factors that I did consider was your history, your history of criminal offenses. And it’s quite long. I think in one case you had been on probation for aggravated battery, armed robbery and simple escape and you were, that’s not the one, that was in 1979. I think you ended up being charged on simple robbery, simple escape and agg[.] battery amended to simple battery. But the really [sic], this other one you were charged with attempted second degree murder which they amended down to a second degree battery. And you were revoked four times during that period of time that you were, whenever you got out you kept getting revoked and get sent back in. And there is a whole other page of charges against you. So[,] you have a long history of being involved in criminal activity. And that’s not good. You were | „tried before a jury that determined that you were guilty of the charge. They heard all of the evidence that was presented and all of the uh, uh, concerns that were presented by you and your attorney. Now uh, so consequently, I don’t have the choice of being, being able to decide whether you go to jail or not go to jail because you can’t be on a probated sentence according to the statute. This is strictly a drug; this is strictly a drug offense. There was no use of violence at all involved in this. All right[,] under uh, under the fifteenth item under Article 894.1 [,] which are the sentencing guidelines[,] this offense was a controlled dangerous substance offense. I don’t think you obtained a significant amount of money[,] but I think that you uh, did go in and buy and that you had been doing it regularly. There were other people involved around you and your long history of criminal conduct. So[,] basically[,] based on the crime, the sentence that’s allowed and your long history of criminal offense[s,] the Court feels compelled to sentence you to what’s required under the law and that’s five years with the DOC at hard labor. I give you credit for all your time that you’ve served....

In McCorkle, the fifth circuit affirmed a maximum term of imprisonment for possession of cocaine. The fifth circuit pointed out that, while the defendant had been sentenced to the maximum term of imprisonment allowed by statute, the defendant had not received the maximum sentence allowed because he had not been fined in addition to the term of imprisonment. The fifth circuit further noted that the defendant had a lengthy criminal history. In the instant case, Defendant was not fined by the trial court and also has a lengthy criminal history.

The record before this court shows Defendant has an extensive criminal record dating back to 1979. The criminal history includes crimes of violence, probation or parole violations, and escape from custody. As stated by the trial court, the testimony at trial by Defendant’s own witnesses shows Defendant had been regularly engaging in the illegal possession of crack cocaine. Despite, Defendant’s lengthy criminal history, the State did not charge Defendant as a habitual offender. Moreover, the sentencing court refrained from imposing a fine in addition to Defendant’s term of imprisonment. Therefore, we find the trial court’s imposition of the maximum term of imprisonment in the instant case did not constitute an abuse of discretion.

| „PRO SE ASSIGNMENTS OF ERROR

Defendant, in his pro se brief, contends statements made by the prosecutor and the court to his witnesses violated the compulsory rights of those witnesses. Defendant specifically argues error occurred when Deputy Gregg Dunn warned defense witnesses that, although no criminal charges were being contemplated against them at the time, criminal charges could result from their testimony. Defendant further complains Deputy Dunn then Mir-andized the defense witnesses. Based on the actions of Deputy Dunn, Defendant asserts the prosecution violated La. R.S. 14:129.1, which prohibits intimidation of witnesses.

Prior to the defense calling its witnesses to testify, court recessed and the bailiff removed the jury from the courtroom. The trial court asked defense counsel if Defendant’s witnesses, who were going to testify about what happened in the crack house, had been informed they would be incriminating themselves, had been advised they had the right to remain silent, and had been told that their statements could be used against them. Defendant’s attorney stated they were aware their statements would be incriminating, but defense counsel had not informed them of their rights. The district court stated it was necessary and asked for someone present who had the Miranda rights memorized to inform the witnesses of their rights on the record.

The trial court had Mr. Dyas removed from the courtroom and had Mr. Moody sworn in. The district court told Mr. Moody it wanted to insure that Mr. Moody understood he had certain rights and Deputy Dunn would inform him of those rights. Deputy Dunn then informed Mr. Moody, “You have the right to remain silent. Anything you say can and will be used against you in court. If you cannot afford to hire an attorney, one will be appointed for you.” Deputy Dunn then asked if Mr. Moody understood his rights, and Mr. Moody replied, ‘Tes.”

11sThe district court next stated that Mr. Moody could waive the rights, but it just wanted to make sure Mr. Moody had been advised of his rights. At this point, defense counsel told Mr. Moody that no charges were currently contemplated against him, and Deputy Dunn confirmed he had no warrants for Mr. Moody. Deputy Dunn continued that, depending on what Mr. Moody said, he “may have something on him after.”

After dismissing Mr. Moody from the courtroom, the trial court called Mr. Dyas to be sworn in. The district court explained to Mr. Dyas that it wanted to insure he understood his rights before testifying and that Deputy Dunn would inform him of his rights. Deputy Dunn repeated the statement of rights he had previously read to Mr. Moody and asked whether Mr. Dyas understood his rights. Mr. Dyas said he understood. The trial court explained Mr. Dyas could waive his rights and, by testifying at trial, Mr. Dyas would be waiving his rights; Mr. Dyas indicated he understood.

The supreme court addressed a similar issue in State v. Kyles, 513 So.2d 265 (La.1987), cert. denied, 486 U.S. 1027, 108 S.Ct. 2005, 100 L.Ed.2d 236 (1988), and conviction later rev’d on other grounds, Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). In Kyles the trial court informed defense counsel, prior to the defendant’s case-in-chief, that several of the defense witnesses could be charged as accessories after the fact based on their trial testimony. The prosecutor told the defendant’s attorney that it was not presently contemplating charges against either witness. Over defense counsel’s objection that this was a scare tactic, the trial court brought the witnesses into court, appointed an attorney to consult with them, and advised them of their privilege against self-incrimination. Both witnesses indicated they understood this right and agreed to testify. On appeal, the defendant complained this advisement of rights 114amounted to intimidation of the defense witnesses in order to discourage the witnesses from testifying. After determining that the witnesses both steadfastly testi-fíed very favorably for the defendant, the supreme court held the complaint to be without merit: “The request for advisement to defense witnesses of their constitutional rights to decline to give answers which may incriminate them does not appear to constitute intimidation which so adversely affected any of defendant’s substantial rights as to require reversal of the conviction.” Id. at 269.

As in Kyles, the witnesses in the present case staunchly supported the theory of defense presented in the instant case. Neither witness declined to answer any of the questions presented to them on grounds of possible self-incrimination. Thus, no substantial rights of Defendant’s were affected by the court having the witnesses informed of their constitutional rights. Accordingly, this assignment of error is without merit.

Defendant lastly argues he was denied effective assistance of counsel in the following instances: (1) his trial attorney’s failure to file the pretrial motions he requested, (2) because the judge had to inform defense counsel to what she was objecting, (3) because counsel failed to move for a mistrial when the jury returned a non-unanimous verdict, (4) by his trial lawyer not objecting when Deputy Dunn Mir-andized defense witnesses in open court, and (5) by his defense counsel referencing Defendant’s prior criminal behavior during the sentencing phase.

Usually, ineffective assistance of counsel claims raised on appeal are relegated to post-conviction relief:

Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. When the record is sufficient, however, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy.

State v. Lee, 08-456, pp. 8-9 (La.App. 3 Cir. 11/5/08), 996 So.2d 1217, 1223 (citations omitted) (quoting State v. Eiskina, 42,492, pp. 2-3 (La.App. 2 Cir. 9/19/07), 965 So.2d 1010, 1013).

This court has held that ineffective assistance of counsel claims must meet two separate criteria in order to have merit:

The right of a defendant in a criminal proceeding to the effective assistance of counsel is constitutionally mandated by the Sixth Amendment of the U.S. Constitution. In order to prove that counsel was ineffective, the defendant must meet the two-pronged test enunciated by the Supreme Court. First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that this deficiency prejudiced the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that his defense attorney failed to meet the level of competency normally demanded of attorneys in criminal cases.
In considering allegations of ineffectiveness, defense attorneys are entitled to a strong presumption that their conduct fell within the broad range of reasonable professional assistance. The United States Supreme Court has held that the benchmark for judging a charge of ineffectiveness is whether the attorney’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be considered to have produced a just result.
It is not enough for an accused to make allegations of ineffectiveness; the accused must couple these allegations with a specific showing of prejudice. A claim of ineffective assistance of counsel may be disposed of based upon a failure to satisfy either criteria of the established two-pronged test; if the accused’s claim fails to satisfy one, the reviewing court need not address the other. A brief review of the defendant’s complaints against his attorneys will demonstrate the deficiency of his arguments.

State v. James, 95-962, pp. 4-5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465 (citations omitted). Moreover, “[i]t is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different.” State v. Jones, 33,657, p. 11 (La. App. 2 Cir. 8/23/00), 765 So.2d 1191, 1199, writ denied, 00-2779 (La.6/29/01), 794 So.2d 825.

Defendant’s first ineffective assistance of counsel claim is that his trial attorney’s failed to file the pretrial motions he requested. Because this claim would require findings of fact not in the record, this claim must be relegated to post-conviction relief.

Defendant next asserts he was denied effective assistance of trial counsel because the trial court had to inform defense counsel to what she was objecting. We have examined the trial and sentencing transcripts for any occurrence where the trial court had to inform defense counsel to what she was objecting. Our review revealed one such instance involving defense counsel. When defense counsel objected and explained her objection, the trial court asked, “So you’re suggesting that it’s hearsay.” When defense counsel agreed her objection was to the hearsay nature of the evidence, the trial court sustained the objection insofar as to allow the prosecution to proceed by rephrasing the question. Because defense counsel’s objection was sustained, Defendant was not prejudiced by the trial court clarifying defense counsel’s objection. Therefore, this assertion is without merit.

Defendant next contends he was denied effective assistance of trial counsel when his lawyer failed to move for a mistrial based on the jury returning a non-unanimous verdict. The record shows there were two unrecorded bench conferences prior to the trial court sending the jury back to reconsider its verdict. Ordinarily, this contention would be relegated to post-conviction relief. However, after the district court returned the jury for further deliberations, defense counsel objected on the record. Thus, this contention is without merit.

Defendant then argues he was denied effective assistance of trial counsel because his attorney did not object when Deputy Dunn Mirandized defense witnesses |17in open court. This issue was addressed above and we determined Defendant was not prejudiced by the witnesses being informed of their rights. Because any failure by defense counsel to object to the preservation of the witnesses’ rights did not constitute a deficient performance, Defendant’s argument is without merit.

Finally, Defendant complains he was denied effective assistance of counsel when his lawyer referenced Defendant’s other criminal acts during the sentencing phase. The sentencing transcript shows that defense counsel’s reference to pending criminal charges against Defendant occurred after the sentencing court had already imposed the penalty for the current offense. Because the outcome of the proceeding was not prejudiced by defense counsel’s reference to those charges, Defendant’s complaint is without merit.

Accordingly, we will relegate issues (1) presented in Defendant’s Pro Se Assign-merit of Error No. 2 to post-conviction relief.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

AFFIRMED.