author: I «SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Melvin SINGLETON.
    No. 03-KA-1307.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Gretna, LA, for PlaintiffiAppellee.
    James A. Williams, Butch Wilson, Gret-na, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and THOMAS F. DALEY.
   I «SOL GOTHARD, Judge.

The defendant, Melvin Singleton, was found guilty of simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2, and was sentenced to twelve years at hard labor. Thereafter, pursuant to a multiple bill filed by the State, the defendant executed a waiver of rights form stipulating that he was a fourth felony offender. The commitment indicates defendant’s original sentence was vacated and defendant was sentenced as a multiple offender to twenty years of imprisonment at hard labor without benefit of probation or suspension of sentence. For the reasons that follow, we affirm the defendant’s conviction and sentence.

The following facts were adduced at trial.

Officer Leagans of the Gretna Police Department testified that, at approximately 2:43 a.m. on December 5, 1999, he was dispatched to 1028 Romain Street regarding a burglary in progress. Upon arrival, Officer Leagans observed a person, later identified as defendant, exiting the back door of the house. Officer Leagans stopped the defendant, informed him that he was investigating a burglary in progress, and advised defendant of his rights. Officer Leagans left defendant in the custody of another officer and went to look around the house. Officer Leagans found that the back door was open and pry marks were on the frame. The kitchen window had been broken, and there was a bottle opener on the floor. After proceeding through the house, the rooms appeared to Officer Leagans to be in |3order, with the exception of a bedroom. There, Officer Leagans discovered a blue jean jacket lying on the bed with other items on top of the jacket.

Officer Leagans went outside and asked defendant whether he would answer questions, and defendant responded affirmatively. In response to Officer Leagans’ questions, defendant said that he was a friend of the resident, Mr. Bonaparte, who was in jail on a DWI charge. He also claimed that he had been next door drinking on the front porch and decided to walk between the two houses on his way to a lounge. Other than this statement, defendant offered no explanation as to his presence in the house. Officer Leagans spoke to the neighbor, who denied that defendant had been at her house, and further said that defendant was the person who had broken into the house.

The resident of 1028 Romain Street, Gerald Bonaparte, testified that he knew defendant, but that defendant did not have permission to be inside of his home. Mr. Bonaparte acknowledged that he was in jail after being arrested for DWI on the night in question. However, Mr. Bonaparte testified that his house was locked and the kitchen window was not broken when he left it. Mr. Bonaparte also testified that his jacket was hanging in the closet, not lying on the bed. Further, Mr. Bonaparte said that his knife and the cellular telephones that were on the jacket had been inside of a drawer in his bedroom when he departed his home.

In this appeal, counsel requests only that this record be reviewed for errors patent. In his brief, after summarizing the facts and procedural history of the case, counsel notes that he has been retained by defendant and makes the following assertions:

Undersigned counsel has been retained by appellant to pursue both direct appeal and post-conviction remedies. A thorough review of the record in this matter has convinced counsel that appellant’s only potentially non-frivolous issues involve questions of trial counsel’s effectiveness or lack thereof pursuant to the well-known standard of Strickland v. Washington, 446[466] U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984)[sic]. However, interviews with appellant along with counsel’s review of the record 14Iead counsel to the opinion that the trial record is inadequate to properly review an ineffectiveness claim, and that post-conviction relief is the appropriate [sic] with the testimony of appellant and his trial counsel. State v. Hicks, 554 So.2d 1298 (La.App. 1 Cir.1989); [sic] La.C.Cr.P. art. 930.

In order to protect an indigent defendant’s constitutional right to appellate counsel, courts must safeguard against the risk of granting an appellate counsel’s request to withdraw in a case where the appeal is not actually frivolous. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Anders, supra, 386 U.S. at 744, 87 S.Ct. at 1400. A brief which states that there are no non frivolous issues, without discussion, and which only requests a review for errors patent is ordinarily disallowed. See Anders, supra; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel must demonstrate to the appellate court by full discussion and analysis that he has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, has a significant, adverse impact on shaping the evidence presented to the jury for its consideration. Jyles, supra, at 241.

In this case, retained counsel has asserted a potential non-frivolous issue, namely ineffective assistance of trial counsel. However, he further asserts that the record is insufficient to review that claim on appeal, and that post-conviction relief is the proper procedural vehicle for reviewing such a claim. Counsel does not seek to withdraw from this case, rather he asserts that he has been retained to pursue both appellate and post-conviction relief.

LSA-C.Cr.P. Art. 924.1 provides that “An application for post conviction relief shall not be entertained if the petitioner may appeal the conviction and sentence which he seeks to challenge, or if an appeal is pending.” The Official Comments of the article provide that “Post conviction relief is not designed to take |Rthe place of an appeal. The petitioner must first exhaust whatever appellate rights he has.”

As evidenced by defendant’s brief, retained counsel is attempting to exhaust defendant’s appeal rights in order to pursue the arguments relating to ineffective assistance of counsel in an application for post-conviction relief. We find counsel’s brief to be in compliance with Anders v. California and State v. Jyles.

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

We note that defendant received an illegally lenient sentence because the trial judge failed to deny parole eligibility for one year. The restrictions on parole eligibility imposed on multiple offender sentences under LSA-R.S. 15:529.1 “ ‘are those called for in the reference statute.’ ” State v. Tate, 99-1483, pp. 1-2 (La.11/24/99), 747 So.2d 519, 520, quoting State v. Bruins, 407 So.2d at 685, 687 (La.1981).

The reference statute in this case, LSA-R.S. 14:62.2, provides that simple burglary of an inhabited dwelling is punishable by imprisonment at hard labor “for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.” The parole ineligibility provision attaches only to the statute’s minimum one-year term. See, State v. Conley, 411 So.2d 448, 449 (La.1982); State v. Hardan, 519 So.2d 224 (La.App. 5 Cir.1988). This omission requires no action because “La. R.S. 15:301.1(0, imposes the restrictions by operation of law.” State v. Johnson, 03-903, p. 7 (La.App. 5 Cir. 12/9/03), 864 So.2d 645,

For the above discussed reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The record does not contain a transcript of defendant’s enhanced sentencing.


source: Caselaw Access Project

author: ) .WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Larry HARRIS and Leon Williams, Jr.
    No. 03-KA-1297.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreax, Andrea F. Long, Cameron M. Mary, Donald A. Rowan, Jr., Assistant District Attorneys, Gretna, LA, for The State of Louisiana, PlaintiffiAppel-lee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Leon Williams, Jr., Defendant/Appellant.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Larry Harris, Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   ) .WALTER J. ROTHSCHILD, Judge.

On April 27, 2000, a Jefferson Parish Grand Jury indicted defendants, Larry Harris and Leon Williams, Jr., for first degree murder in violation of LSA-R.S. 14:30. On May 1, 2000, both defendants pled not guilty to the charge. Thereafter, the defendants filed various pretrial motions including a Motion to Suppress Evidence and Identification. On September 22, 2000, the trial court heard and denied defendants’ motions to suppress.

On March 31, 2001, defendants proceeded to trial and were subsequently found guilty as charged. On April 27, 2001, defendants were sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, this Court reversed the convictions and sentences of Harris and Williams due to an error in jury selection and remanded the case for a new trial. See, State v. Harris, 01-1299 (La.App. 5 Cir. 10/29/02), 829 So.2d 675 (decision without published opinion) and State v. Williams, 01-1298 (La.App. 5 Cir. 10/29/02), 829 So.2d 675 (decision without published opinion).

lsOn remand, defendants filed various pretrial motions including Motions to Suppress Confession, Identification, and Physical Evidence. On February 28, 2003, defendants’ motions to suppress were denied based upon the previous ruling of the trial court and the lack of any new evidence. On April 21, 2003, the State amended the charge to second degree murder in violation of LSA-R.S. 14:30.1. That same day, defendants proceeded to a trial by jury.

On April 25, 2003, the jury returned a verdict finding Harris and Williams guilty as charged. On May 19, 2003, the trial court denied Harris and Williams’s previously filed motions for new trial. After waiving all delays, Harris and Williams were each sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Both defendants filed timely motions for appeal.

FACTS

At trial, testimony was heard from the following: Vanessa Mack, Lieutenant Don English, Deputy Matthew Schoder, Louise Walzer, Dr. Susan Garcia, Deputy Michael Tucker, Sergeant Angelo Smith, Charles Robinson, Larry Harris, Wardell Williams, and Patrice Harris. Due to the unavailability of certain witnesses, the remainder of the trial testimony was introduced by way of exhibits consisting of transcripts from the previous trial and the September 22, 2000 hearing on the motion to suppress.

At approximately 9:00 p.m. on February 21, 2000, Vanessa Mack and her cousin, Malinda James, arrived at the Sports Palace located on Jefferson Highway to shoot pool. After getting off of work at 9:30 p.m., Ronald Lewis, Mack’s long-time neighbor, arrived at the Sports Palace at around 10:00 p.m. Mack, upon noticing Lewis, invited him to join her and her cousin in a game of pool, and Lewis accepted the invitation. At approximately midnight, Mack and James decided to leave and asked Lewis if he would walk them to their car. The group exited the |4bar and, as they neared Mack’s car, Mack observed two men running from behind a dumpster located next to the Sports Palace. As the men neared, Mack was able to recognize them as being the defendants, Larry Harris and Leon Williams. Harris approached and asked Mack, “What’s happening?” and then pulled a gun out of his pocket and proceeded to shoot Lewis who fell to the ground. Mack then observed Williams shoot James who also fell to the ground. Shortly thereafter, Harris shot Mack in the arm. After being shot, Mack walked toward her car and, while attempting to get inside, was shot in the back around her shoulder blade. Mack managed to get inside of her car but suffered additional gun shot wounds while seated inside of the vehicle. Mack ultimately sustained five gun shot wounds including wounds to her arm, back, and both breasts. However, Mack was unsure of who fired the additional shots after she was first struck in the arm.

Donald Davidson, who was at Pickle’s Sports Bar located near the Sports Palace, heard the shooting and called 911. The 911 call was received by the Jefferson Parish Sheriffs Office and officers were dispatched to the scene at 12:36 a.m. Deputy Matthew Schoder responded to the radio dispatch call directing him to the corner of Harding and Jefferson Highway. At approximately, 12:38 a.m., Deputy Schoder, as well as his sergeant, Brady Buckley, arrived at the scene and immediately observed a tan car with a body lying beneath the car door. Deputy Schoder determined that James, the woman lying on the ground, was dead. He then observed Mack, who appeared to have been shot, sitting in the driver’s seat of the vehicle. Sergeant Buckley asked Mack who had done this to her to which she responded, Larry Harris. Mack then informed them that Harris lived on Clara street “in the city.” After going in and out of consciousness, she later identified the other individual in the assault as “Leon.”

Deputy Schoder subsequently observed a third person approximately forty feet away lying face down across Harding Street. The individual, who Deputy | sSchoder later learned was Ronald Lewis, appeared to have a bullet wound to the back of his head. Lewis was awake but was unable to speak. After assisting the EMTs with securing the two wounded victims, Deputy Schoder and Sergeant Buckley secured the scene and waited for the arrival of the detectives.

Lieutenant Don English, homicide detective with the Jefferson Parish Sheriffs Office, arrived at the scene between 1:00 a.m. and 1:30 a.m. Lieutenant English met with Deputy Schoder and was advised that Mack had identified one of the shooters as Larry Harris and the other shooter by the name “Leon.”. Lieutenant English instructed Deputy Michael Tucker of the Jefferson Parish Homicide Division to proceed to the hospital in order to gain any information from the victims.

Upon arriving at the hospital, Deputy Tucker was advised that Lewis was in surgery and that Mack was being stabilized. Deputy Tucker was given a few minutes to interview Mack, and Mack informed him that one of the shooters was her ex-boyfriend, Larry Harris, and the other individual was Harris’s friend, Leon. She also informed Deputy Tucker of Harris’s address as well as a date of birth and a physical description. After obtaining the information, Deputy Tucker prepared a warrant for Harris’s arrest. Deputy Tucker also participated in the execution of a search warrant of Harris’s home where no incriminating evidence was recovered.

In conjunction with the investigation, Dr. Susan Garcia of the Jefferson Parish Coroner’s Office performed an autopsy on the body of James, which revealed that she had sustained eight separate identifiable entrance wounds and five identifiable exit wounds. The cause of death was listed as multiple gunshot wounds to the head, chest and arms, with potentially lethal wounds to the head, right lower back and mid-back areas. Additionally, during the autopsy, Dr. Garcia recovered three projectiles from James’ body.

IfiThe projectiles, as well as six spent casings recovered from the scene, were analyzed by Louise Walzer, firearms expert with the Jefferson Parish Sheriffs Office. Walzer, after examining the spent casings and projectiles, determined that two weapons, a 9 mm semi-automatic and a revolver consistent with a .38 or .357 caliber, were used in the shooting. However, Walzer could not determine if there was more than one shooter.

On February 22, 2000, after being informed by his daughter that he was a suspect in the shootings, Harris purchased a Greyhound Bus ticket to Houma. After arriving in Houma, Harris contacted his cousin, Charles Robinson, and, with the assistance of Robinson’s attorney, turned himself into the Terrebonne Parish authorities on February 23, 2000. The Jefferson Parish Sheriffs Office was contacted and Sergeant Dennis Lacompte, assistant shift commander at the Terrebonne Parish Consolidated jail, released Harris into the custody of Lieutenant English.

On February 28, 2000, after having been released from the hospital, Mack was riding around New Orleans with her sister when she observed Williams sitting inside of a truck, which was parked at an Auto Zone. Mack and her sister followed the truck and wrote down the license plate number and the type of clothing Williams was wearing. Eventually, Mack and her sister were able to come into contact with Sergeant Angelo Smith of the New Orleans Police Department and advised him that she had seen the person who had tried to murder her. Sergeant Smith eventually observed a yellow truck with Mississippi plates that matched the description given to him by Mack and also observed a gentleman in the back of the truck meeting Williams’s description.

After being taken to the location where Williams had been observed, Mack positively identified Williams. Williams was then taken to the Sixth District Police Station and Deputy Tucker was contacted by Lieutenant Steve Buras of the New 17Orleans Police Department and informed that Williams was being detained. Deputy Tucker reported to the Sixth District and, after reading Williams his rights, received a statement from Williams that he was friends with Harris and he had heard about the shooting and that police were looking for Harris. However, Williams denied any involvement stating that he was with a girlfriend at another address. Additionally, while at the Sixth District, Deputy Tucker was able to interview Mack and was informed that two weapons were used in the shooting, a revolver and a semi-automatic handgun. Mack informed Deputy Tucker that Harris was the individual wielding the revolver.

On July 31, 2000, Lieutenant English met with Ronald Lewis at his home and showed him two photographic lineups. One lineup contained a photograph of Harris and the other contained a photograph of Williams. When shown the first lineup containing Harris’s photograph, Lewis became very excited and pointed to Harris’s picture. Lewis was then shown the second lineup containing a photograph of Williams but he was unable to make an identification.

ASSIGNMENT OF ERROR NUMBER ONE (LARRY HARRIS)

The trial court erred in admitting the unreliable identification testimony of Ronald Lewis, when there was uncontroverted medical documentation that Mr. Lewis could not recall the shooting. ASSIGNMENT OF ERROR NUMBER ONE (LEON WILLIAMS, JR.)

The identification testimony of Ronald Lewis should have been suppressed.

DISCUSSION

When issues are raised on appeal as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including evidence that was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot. State v. George, 95-110 (La. 10.16/95), 661 So.2d 975, 978; State v. Bolden, 03-0266 (La. App. 5 Cir. 7/29/03), 852 So.2d 1050, 1055-1056. For the sake of clarity and cohesion, we will first address defendants’ assignments of error challenging the trial court’s denial of the motions to suppress.

Defendants, Harris and Williams, contend that the trial court erred in denying the motion to suppress the identification of Harris made by Ronald Lewis. Specifically, Harris argues that the photographic lineup containing his photograph was suggestive because there was an ink-mark next to his photograph. Additionally, both defendants contend that testimony from Lewis’ treating physicians and therapist was to the effect that Lewis was unable to remember the shooting, thereby making his identifications of Harris when presented with the photographic lineup and at trial unreliable.

The State maintains that Williams does not have standing to contest the identification made relative to Harris. The State also notes that this Court’s prior opinions have already reviewed the arguments currently advanced on appeal and specifically rejected the defendants’ position in its pri- or opinions. In any event, the State contends that the trial court’s rulings denying the motions to suppress were correct and should not be disturbed.

In State v. Burdgess, 434 So.2d 1062 (La.1983), the defendant challenged the denial of a motion to suppress his confession contending that his confession was given as the direct result of the involuntary confession of a severed co-defendant. The Louisiana Supreme Court held that the defendant had no standing to assert the involuntary nature of his co-defendant’s confession. The Court stated:

|flThe failure of the 1974 Louisiana constitution to provide for such standing, while explicitly granting any person adversely affected by a search or seizure conducted in violation of the constitution standing to raise its illegality in the appropriate court, indicates that the framers did not consider that the additional benefit of extending the exclusionary rule to persons adversely affected by others’ involuntary confessions would justify further encroachment upon the public interest in having criminal cases decided on the basis of relevant evidence.

State v. Burdgess, 434 So.2d at 1065.

In the instant case, Williams raises the issue of the trial court’s denial of the motion to suppress Lewis’ identification of Harris. La. Const, art. I, § 5 provides as follows:

Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

Following the same rationale set forth in Burdgess, we hold that the framers did not intend to extend standing in the case of a person adversely affected by an unconstitutional identification procedure. Accordingly, we find that Williams has no standing to challenge the denial of the motion to suppress. However, even if Williams had such standing we fail to find that the trial court erred in denying the motion.

A defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misiden-tification as a result of the identification procedure. State v. Prudholm, 446 So.2d 729, 738 (La.1984); State v. Payne, 00-1171 (La.App. 5 Cir. 12/13/00), 777 So.2d 555, 558-559, writ denied, 01-118 (La.11/21/01), 802 So.2d 626. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Even if the identification- could be considered suggestive, it is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932, cert denied, 99-8224 (La.5/15/00), 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

A photographic lineup is considered suggestive if the photographs display the defendant in such a manner that the witness’ attention is unduly focused on the defendant. A lineup is also suggestive if there is not a sufficient resemblance of characteristics and features of the persons in the lineup. State v. Biglane, 99-111 (La.App. 5 Cir. 5/19/99), 738 So.2d 630, 634. Even if the identification could be considered suggestive, it is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 750 So.2d at 932.

In Manson v. Brathwaite, the United States Supreme Court set forth five factors to consider in determining if an identification is reliable: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and, 5) the time between the crime and the confrontation. In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 164. A trial court’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion. Id.

In support of their arguments, Harris and Williams cite the medical testimony given by the medical professionals who treated Lewis in connection with lnthe wounds he sustained in the shooting. Dr. Edward Connolly testified that he was the senior neurosurgeon at Ochsner Foundation Hospital and Ochsner Clinic when Lewis was admitted to the emergency room and referred to neurosurgery. According to Dr. Connolly, Lewis suffered an entrance and exit wound to the left posterior parietal area and a spinal cord injury which rendered him a tetraplegia Dr. Connolly testified that the parietal area on the left side of the brain controls spatial orientation and speech to a certain extent. Dr. Connolly testified that the parietal lobe is not the memory center of the brain but, as a result of Lewis’s injury, there was a potential for memory loss. However, Dr. Connolly could not state with a degree of medical certainty that Lewis would be unable to remember the events surrounding the shooting.

Dr. Michael Saucier, a specialist in rehabilitative medicine, testified that he treated Lewis after his surgery for the functional deficits he incurred as a result of his injury. Dr. Saucier testified that Lewis had profound weakness of all of his extremities and some other deficits related to the spinal cord injury, including pain, difficulty with speech, and some memory deficits.

According to Dr. Saucier, at the time of Lewis’s discharge in April of 2000, Lewis had short and long-term verbal memory impairment. Dr. Saucier testified that verbal memory has to do with spoken conversation whereas visual memory has to do with the recall of events. Dr. Saucier further testified that he could not definitively conclude that Lewis would be unable to remember the circumstances surrounding the shooting. He also testified that Lewis’ memory improved during the time he saw him on an outpatient basis.

Dr. Alvin Rouchell, Chairman of the Psychiatry Department at Ochsner Clinic, testified that he conducted a one-time consultation with Lewis on March 13, 2000. Dr. Rouchell testified that Lewis had memory problems and was becoming depressed as he began to learn about what had happened to him. Dr. | ^Rouchell testified that a patient such as Lewis would improve in his ability to remember things. Dr. Rouchell testified that, based on his one visit with Lewis, he could not definitively say that Lewis did not remember the events of the shooting.

Additionally Collen McAdams, Lewis’ speech pathologist, testified that when she first saw Lewis on April 7, 2000, he was having significant memory deficits, as well as language deficits which hindered his ability to find the right words he wanted to use. McAdams testified that, when she had last seen Lewis on April 20, 2000, he had shown some improvement but still had some difficulty recalling recent and remote events. However, McAdams testified that she could not comment on whether Lewis would be unable to remember events surrounding the shooting.

Harris and Williams claim that the above medical testimony reflects that Lewis had no memory of the shooting and if not for the suggestiveness of the identification procedures, Lewis would not have identified Harris. Specifically, Harris argues that the photographic lineup was suggestive because there was an ink-mark next to his photograph. However, Lieutenant English testified at trial that the mark was not on the photograph at the time Lewis observed the lineup and was the result of defense counsel touching the photograph with a pen at the prior trial.

Harris and Williams also contend that Lewis’ identification of Harris made in Lewis’ hospital room during the first trial was due to suggestiveness, considering defendants were the only two African-American males in the room and considering Lewis’ testimony at the first trial where he testified that Lieutenant English had to tell him who to pick out of the lineup. However, an examination of the record reveals Lewis had positively identified Harris on two occasions prior to testifying at the first trial. Additionally, we fail to find that the record supports the defendants’ contention that Lieutenant English told Lewis who to select from the 113photographic lineup. The transcript reveals that, when asked by defense counsel whether Lieutenant English told him who to pick, Lewis stated, “No, he, he, he had, had, had to tell me who to pick, pick, pick out cause the person—the person who did me this, I ain’t never going to forget him the rest of my life.” Considering the medical testimony concerning Lewis’ speech and language deficits, we find a reasonable interpretation of the response that Lewis was attempting to give was that he didn’t need to be told who to select. Moreover, Lewis had previously testified at the September 22, 2000 hearing on the motion to suppress that he was never told who to pick out of the lineup.

Furthermore, at the September 22, 2000 motion to suppress hearing and at trial, Lieutenant English testified that, on July 31, 2000, he presented Lewis with two photographic lineups, one of which contained a photograph of Harris and the other which contained a photograph of Williams. When Lieutenant English showed Lewis the photographic lineup containing Harris’s photograph, Lewis immediately identified Harris as the person who shot him.

Moreover, throughout his testimony, Lewis maintained that the area was well lit and that he was able to view Harris. When asked whether he had any doubt as to whether Harris was the person who shot him, Lewis stated, “No, no doubt. No doubt. No, no, no, doubt. There’s no, no doubt in this whole life time. No, no doubt.”

Although there was evidence that defendant suffered impairment to his memory following the shooting, none of the medical professionals who testified could conclude that Lewis would not be able to remember the events surrounding the shooting. Additionally, Lewis was consistent and remained adamant in his identification of Harris. As a result, we fail to find that there was a likelihood of misidentifieation. Accordingly, the trial court did not abuse its discretion in denying the defendants’ motions to suppress.

I ^ASSIGNMENT OF ERROR NUMBER TWO (LARRY HARRIS) AND ASSIGNMENT OF ERROR NUMBER TWO (LEON WILLIAMS, JR.)

The evidence is insufficient to support the verdict.

DISCUSSION

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10.21.97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Williams, 99-223 (La. App. 5 Cir. 6/30/99), 742 So.2d 604, 607. Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 84; State v. Joseph, 01-1211(La. App. 5 Cir. 4/10/02), 817 So.2d 174. In applying this standard, the reviewing court will not assess the credibility of witnesses, nor re-weigh evidence. State v. Rosiere, 488 So.2d 965, 968 (La.1986); State v. Ellwood, 00-1232 (La.App. 5 Cir. 2/28/01), 783 So.2d 423, 427. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Rivers, 01-1251 (La.App. 5 Cir. 4/10/02), 817 So.2d 216, 219, writ denied, 02-1156 (La.11/22/02), 829 So.2d 1035. In the absence of internal contradiction or irreconcilable conflict with 11fiphysical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual finding. Id.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982). When circumstantial evidence is used to prove a case, the trial judge must instruct the jury that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438.

In the instant case, defendants, Harris and Williams, were charged and convicted of second degree murder in violation of LSA-R.S. 14:30.1. To convict defendants of second degree murder in this case, the State was required to prove that they had the specific intent to kill or to inflict great bodily harm on the victim. LSA-R.S. 14:30.1(A)(1). Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 82. Additionally, specific intent to kill or inflict great bodily harm may be inferred from the extent of the victim’s injuries. State v. Daniels, 01-545 (La.App. 5 Cir. 11/27/01), 803 So.2d 157, 162, writ denied, State ex. rel Daniels v. State, 02-0215 (La.11/27/02), 831 So.2d 272.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the identity of the perpetrators. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69. Where the key issue is identification, the State is required to negate any reasonable probability of misiden-tification in order to carry its burden of proof. Id. Factors considered in | ^evaluating the reliability of an identification are those factors approved in Manson v. Brathwaite, supra. See, State v. Neo-land, 94-943 (La.App. 5 Cir. 3/1/95), 652 So.2d 124, 127, writ denied, 97-1167 (La.10/17/97) 701 So.2d 1332.

Larry Harris

Defendant, Larry Harris, contends that the only element of contention in the instant case was the identity of the perpetrators. Harris argues that the only evidence of identity was the testimony of Mack and Lewis and that this testimony, especially that of Lewis, was unreliable. Additionally, Harris contends Mack’s identification was insufficient to justify the conviction considering the dark lighting in the area of the shooting.

The State responds that the evidence was sufficient to convict defendant, noting that both Lewis and Mack positively identified Harris as the shooter and that the lighting was more than sufficient to permit both witnesses to view the perpetrators.

In the instant case, although the State lacked any physical evidence connecting Harris to the crime, two of the victims made positive identifications of Harris as being one of the shooters. In particular, Mack informed Deputy Schoder and Sergeant Buckley of the identity of the two shooters at the scene. After being brought to the emergency room, Mack reiterated her identification of Harris and Williams to Deputy Tucker and provided additional information including Harris’ address, date of birth, and a physical description. In addition to Mack’s identification, Lewis made a positive identification of Harris after being shown a photographic lineup by Lieutenant English on July 31, 2000 and once again when he testified at the first trial.

Harris, however, contends that both Mack and Lewis’ identifications were unreliable considering the dark lighting conditions in the area of the shooting. 1^Harris notes the testimony of defense witness, Ellis Brister, the bartender that was working at the Sports Palace on the night of the shooting. Brister’s testimony was that the area where the shooting occurred was dark and although you could see a person, you wouldn’t be able to recognize who that person was. However, both Mack and Lewis testified that the area where the shooting occurred was well lit. Additionally, Deputy Schoder testified when he arrived on the scene that there was ample light from the street lights and other light fixtures and that he could see without the assistance of a flashlight. Deputy Schoder also testified that he could see James’ body lying next to the car without the assistance of the headlights of his vehicle.

Furthermore, Mack testified that when Harris approached her he asked, “What’s happening?” Mack, who had previously dated Harris for approximately two years, was able to recognize Harris’ face, as well as his voice. It should also be noted that Mack was the third person to be shot and, therefore, witnessed the first two shootings and was able to testify accordingly.

The testimony in the instant case reveals that the area in which the shooting occurred was sufficiently lighted and both Lewis and Mack were able to make positive identifications of Harris. Accordingly, viewing the evidence in a light most favorable to the prosecution, we find that a jury could have found Harris guilty of second degree murder beyond a reasonable doubt.

Harris’s second assignment of error is without merit.

Leon Williams, Jr.

Defendant, Leon Williams, argues that the evidence was insufficient to convict him of the crime, noting that there was no physical evidence linking him to the scene, that Lewis, who was present at the scene, could not identify him, and that Mack’s identification was unreliable.

11sThe State responds that there was sufficient lighting to permit Mack to make an identification and that Mack consistently maintained that Harris and Williams were the shooters.

Although there was no physical evidence connecting defendant to the crime scene and Lewis was unable to identify Williams, Mack was able to positively identify him. As noted previously, the record reflects that lighting at the scene of the shooting was sufficient for Mack to make such an identification. Although Mack did not know Williams’s full name, she was able to identify him as “Leon” at the scene of the shooting and at the hospital when interviewed by Deputy Tucker. Additionally, Mack testified that she recognized Williams because he worked with Harris. Although she could not remember the exact number of times she had met Williams, she testified that he had picked her up from work on various occasions when Harris was working out of town and that Williams had helped Harris while he worked around her house on at least three occasions. Furthermore, while riding with her sister in New Orleans, Mack observed Williams sitting in a parked truck and as a result contacted police. After the police stopped Williams, Mack was once again able to positively identify Williams as one of the shooters.

Despite Mack’s positive identification, Williams contends that he had a credible alibi for the night of the shooting. Williams cites the testimony of his nephew, Wardell Williams, who testified that, on the night of February 21, 2000, his uncle was at home. Wardell testified that on that night, he received a call from Harris and brought the phone to him a little after 11:00 p.m. He later retrieved the phone at around midnight and observed Williams lying in bed. Thereafter, he went to bed but testified he would have heard if his uncle left the house during the night because the dogs would have barked and awakened him.

|19Williams contends that the State failed to rebut this evidence; however, the State presented the testimony of Deputy Tucker who testified that Williams advised him that he was at a girlfriend’s house the night of the shooting. Additionally, Williams argues that firearm examiner Louise Walzer could not say for certain that there was more than one shooter and that, as a result, Mack’s testimony was uncorroborated. However, Walzer testified that it was her expert opinion that two guns, a revolver and semi-automatic, were used in the shooting. When Mack was interviewed at the New Orleans Sixth District, Mack again informed Deputy Tucker of the identity of the two gunmen and that Harris was the shooter using the revolver. Furthermore, Lewis’ testimony was that, on the night of the shooting, he heard numerous gunshots that sounded as if they were coming from different guns and different directions.

Considering the totality of the testimony, the jury evidently chose to reject Williams’ alibi and accepted Mack’s testimony. Such credibility choices are addressed to the sound discretion of the trier of fact. See, State v. Rivers, supra. Based on the foregoing, we find that, viewing the evidence in a light most favorable to the prosecution, a jury could have found Harris guilty of second degree murder beyond a reasonable doubt.

This assignment of error lacks merit.

ERROR PATENT DISCUSSION

Both defendants request a review of the record for errors patent. The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We find no errors which required corrective action.

IanDECREE

Accordingly, for the reasons assigned herein, the convictions and sentences of defendants, Larry Harris and Leon Williams are affirmed.

AFFIRMED.

      . The records of the first trial, labeled as State v. Harris, case number 01-KA-1299, and State v. Williams, case number 01-KA-1298, were submitted as exhibits in the instant appeal.

      . In State v. Harris, 01-1299 (La.App. 5 Cir. 10/29/02), 829 So.2d 675 (decision without published opinion) and State v. Williams, 011298 (La.App. 5 Cir. 10/29/02), 829 So.2d 675 (decision without published opinion), this Court did address assignments of error setting forth similar arguments but ultimately reversed the convictions of Harris and Williams on separate grounds and remanded the matter for a new trial.

      . A writ application (No. 03-K-2745) was made to the Louisiana Supreme Court on October 1, 2003. However, as of the date of this opinion, there has been no action by the supreme court.


author: LWALTER J. ROTHSCHILD, Judge.

text:
    Edward C. FORD, Sr. and Elbert Ford v. Craig D. BAZILE; Nationwide Assurance Company; Mary Jo Olson, Individually and as Authorized Agent for Nationwide Assurance Company; and Allstate Insurance Company.
    No. 03-CA-1295.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Raymond P. Augustin, Jr., Metairie, LA, for Craig D. Bazile and Nationwide Assurance Company, Defendants/Appellants.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   LWALTER J. ROTHSCHILD, Judge.

This case arises from a motor vehicle accident that occurred on January 21, 2001 at the intersection of Manhattan Blvd. and Gretna Blvd. in Jefferson Parish. The accident involved two vehicles, one driven by the plaintiff, Edward Ford, and the other driven by the defendant, Craig Ba-zile. Edward Ford’s brother, Elbert Ford, was a passenger in the vehicle driven by Edward Ford.

On September 18, 2001, Edward and Elbert Ford, filed suit against Mr. Bazile and his insurer, Nationwide Assurance Company (“Nationwide”), for damages arising from this accident. Trial of this matter was held on April 23, 2003. On May 16, 2003, the trial court rendered a judgment in favor of the plaintiffs, awarding $24,229.00 in damages to Edward Ford, and $10,554.86 in damages to Elbert Ford. Nationwide and Mr. Bazile filed a suspensive appeal from .the trial court’s judgment in favor of Edward Ford. The judgment in favor of Elbert Ford has been satisfied and is not at issue in this appeal.

J¿FACTS

The Accident

At trial, Edward Ford testified that on January 21, 2001, he was driving on Manhattan Blvd., made a left turn onto Gretna Blvd., and stopped at a red light at the intersection of Manhattan and Gretna Blvd. He was stopped in the left lane and there was an SUV driven by Scott Lott that was stopped next to him in the right lane. When the light turned green, both Mr. Ford and Mr. Lott waited for about five seconds and then started to go. Mr. Lott slammed on his brakes, but as Mr. Ford continued to drive through the intersection, the front right side of his vehicle was struck by a vehicle driven by Craig Bazile. Mr. Ford stated that he did not see that Mr. Bazile was running the red light because the SUV to his right obstructed his view.

Edward Ford’s brother, Elbert Ford, testified that he was a passenger in Mr. Ford’s vehicle when the accident occurred. He stated that they were stopped at a red light at Manhattan and Gretna Blvd, and Edward pulled off approximately five or six seconds after it turned green. The vehicle on the right side of them started to go at the same time as Edward did, but it stopped suddenly. Edward continued to go and they were hit by the defendant’s vehicle. Elbert testified that the driver of the vehicle to the right of them, Mr. Lott, indicated that Mr. Bazile was at fault for the accident and offered to be a witness at trial. Elbert stated that he was looking straight ahead when Edward pulled off from the intersection and he does not know if Edward looked to the right prior to pulling off. He testified that the collision occurred almost immediately after they pulled off.

Deputy Raymond Gorman of the Jefferson Parish Sheriffs Office responded to the accident, interviewed people, and took statements. Based on his investigation, he concluded that Mr. Bazile disregarded the traffic control signal, but he did not issue him a ticket because he cooperated.

| ¿Injuries

Edward Ford testified that his leg and shoulder came into contact with the interi- or of his vehicle during the collision, and he had pain in his right leg after the accident. On the day after the accident, he went to the emergency room at West Jefferson Medical Center because he was having pain in his right leg and shoulder. The doctor gave him a prescription, and Mr. Ford began attending physical therapy approximately eight days after the accident.

The records presented by Mr. Ford indicate that he was treated for his injuries from the day after the accident until July 2001. Within a few months after the accident, he had an MRI of his knee and was told that “something was wrong” with it. Although he admitted that he did not introduce any evidence of medical treatment between July 2001, and December 2002, Mr. Ford asserts that he saw a doctor through his wife’s insurance during that time. In December 2002, he went to Westside Orthopaedic Clinic because he was having problems with his leg. Mr. Ford testified that the doctor told him that he had “some kind of stuff’ wrong with the back of his knee, gave him a shot and a brace, and another MRI of his knee was done. He was told to go back to physical therapy at West Jefferson and he did so.

Mr. Ford testified that his leg continues to hurt sometimes and that he has to have another MRI of his knee. When he was discharged by the doctor at Westbank Health Care, he stated that his leg was not hurting, but it began to hurt again after that date. He testified that his leg has not stopped hurting for any extended period of time since the accident. He contends that the injury to his knee has affected his lifestyle. His health was good before the accident, but he cannot play basketball or football with his kids anymore, and he can no longer run.

Edward Ford’s medical records reveal the following. On January 22, 2001, he went to the emergency room at West Jefferson Medical Center where he complained of knee and lower leg pain. Thereafter, he was seen by Dr. LaCour at |RWestbank Health Care Center on February 1, 2001 and was diagnosed with a right knee sprain and a right ankle sprain and was advised to schedule an MRI and physical therapy. He was also given a prescription for Vicodin. On March 7, 2001 and March 14, 2001, he saw Dr. Rowell at Westbank Health Care Center complaining of right shoulder pain, right arm numbness, and right knee pain. On both occasions, Dr. Rowell advised him to continue physical therapy.

On April 12, 2001, an MRI was taken of Mr. Ford’s right knee. Dr. Taylor of Crescent City MRI reviewed the MRI and concluded that grade III-IV chondromala-cia of the posterior patella was evident, and there was possibly a small intra-men-iscal tear. On April 20, 2001, he returned to see Dr. Rowell for right knee pain, but indicated that he no longer had shoulder pain. Dr. Rowell’s report indicates that the MRI of his right knee showed grade III-IV chondromalacia, and Dr. Rowell referred him to an orthopedic surgeon. On May 7, 2001, he saw Dr. Rowell for right shoulder pain, right knee pain, and right hand numbness. He saw Dr. Rowell again on June 8, 2001 for knee pain and stated that his shoulder and hand symptoms had improved. Finally, he saw Dr. Rowell on July 16, 2001 and indicated that he no longer had pain in his right shoulder or knee, but his knee would give out occasionally. Dr. Rowell discharged him and referred him to an orthopedic surgeon.

On December 18, 2002, Mr. Ford saw Dr. Sanchez at Westside Orthopaedic Clinic. Dr. Sanchez’s assessment was that Mr. Ford had internal derangement of the right knee and chondromalacia of the pa-tellofemoral joint. Dr. Sanchez also ordered another MRI in order to compare it to the previous MRI of his right knee. An MRI of Mr. Ford’s right knee was performed on January 3, 2003, and a report by Dr. Hunter of MRI of Louisiana indicates that the results were negative for internal derangement and there was no medial or lateral meniscal tear. The report | (farther indicates that the articular and patelloferaoral joint cartilage appeared within normal limits.

Dr. Michael Howard was called to testify, and he was accepted as an expert in general medicine. Although he did not personally examine the plaintiff or review the MRI’s, he reviewed the doctors’ notes and generated a report at the end of Mr. Ford’s treatment with Drs. LaCour and Rowell. Based on his review of the medical records, Dr. Howard concluded that Mr. Ford’s injuries were caused by the January 21, 2001 accident. He explained that chondromalacia of the patella is softening of cartilage that surrounds the patella. He stated that it is often a combination of degenerative changes plus an area that has recently been traumatized. It is difficult to tell if chondromalacia is present before an accident because it may not be symptomatic until after the area is traumatized.

DISCUSSION

On appeal, the defendants, Nationwide Assurance Company and Craig Bazile, assert two assignments of error. In the first assignment of error, they argue that the trial court erred in not apportioning fault to Edward Ford. They assert that Edward is comparatively at fault for the accident, because he did not ascertain whether vehicles were coming from his right prior to entering the intersection, and there was no definite testimony that, the SUV to the right of his vehicle obstructed Edward Ford’s vision. Further, Deputy Gorman testified that Mr. Lott told him that he did not move forward when the light turned green, though the Ford brothers both testified that he moved forward and then stopped. The defendants contend that the testimony of Deputy Gorman was more credible than the testimony of Edward and Elbert Ford.

An appellate court is not permitted to set aside the trial court’s factual findings, unless the findings are clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Ramirez v. Girouard, 02-887 (La.App. 5 Cir. 12/30/02), 836 So.2d 549, 551. When factual findings are based on the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Schexnayder v. Exxon Pipeline Company, 01-1236 (La.App. 5 Cir. 3/13/02), 815 So.2d 156, 160. The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. LeBlanc v. Allstate Insurance Company, et al., 00-1128 (La.App. 5 Cir. 11/28/00), 772 So.2d 400, 403, unit denied, 00-3522 (La.2/9/01), 785 So.2d 831. The manifest error standard also applies to the trial court’s apportionment of percentages of fault. Lapeyrouse v. Wal-Mart Stores, Inc., 98G547 (La.App. 5 Cir. 12/16/98), 725 So.2d 61, 65, unit denied, 99-140 (La.3/12/99), 739 So.2d 209.

In his reasons for judgment, the trial judge stated in part, “the evidence presented failed to establish that Mr. Ford breached any duties by proceeding forward. The evidence indicated that Mr. Bazile caused the accident and there was insufficient evidence to establish any comparative fault on the part of the plaintiffs.” We agree with the trial court.

Both Edward and Elbert Ford testified that when the traffic light turned green, they waited about five seconds before proceeding forward. They both stated that Mr. Lott also started to go, but stopped shortly thereafter. They testified that Edward- Ford continued to drive into the intersection and was struck by Mr. Bazile’s vehicle, after Mr. Bazile ran a red light. Although Deputy Gorman testified that Mr. Lott did not proceed forward when the light turned green, he investigated the accident and believed that Mr. Bazile disregarded the traffic control signal and caused the accident. Neither the defendant driver, Craig Bazile, nor the driver of the SUV, Scott Lott, was called to testify.

The testimony was undisputed that Mr. Ford waited a few seconds after the light turned green before entering the intersection, and Mr. Bazile disregarded a |8red light and struck Mr. Ford’s vehicle. Edward Ford stated that he did not see Mr. Bazile running the red light because the SUV to his right obstructed his view, and Elbert Ford agreed that the vehicle to the right obstructed the view, though he did not know if Edward looked to the right or not.

Considering the testimony and evidence in this case, we conclude that the trial judge’s finding that Mr. Bazile was solely at fault for the accident is supported by the record, reasonable, and not manifestly erroneous. Accordingly, this assignment of error is without merit.

In their second assignment of error, the defendants contend that the trial court committed manifest error in awarding Edward Ford $20,000.00 in general damages. They argue that the impact of this accident did not cause significant damage to either vehicle, and Mr. Ford’s injuries were minor. The defendants assert that the trial court ignored the MRI performed in January 2003, which showed no evidence of chondromalacia, meniscal tear, or internal derangement of the knee.

The trial judge awarded Edward Ford $4,229.00 in special damages and $20,000.00 in general damages. In his reasons for judgment, the trial judge noted that Mr. Ford was in good health prior to the accident. He stated that the $20,000.00 award was for five and a half months of treatment for his injuries, as well as the chondromalacia condition in his knee, which has limited his ability to engage in many activities that he enjoyed prior to the accident.

General damages are those which cannot be fixed with pecuniary exactitude. Kennedy v. Thomas, 34,530 (La. App. 2 Cir. 4/4/01), 784 So.2d 692, 699. They include mental and physical pain or suffering, inconvenience, loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle that cannot be definitively measured in monetary terms. Id. The discretion vested in the trier of fact in awarding general damages is great and even vast, so that the appellate court | ashould rarely disturb an award of general damages. Matos v. Clarendon National Insurance Company, et al., 00-2814 (La. App. 1 Cir. 2/15/02), 808 So.2d 841, 845. A general damage award should not be disturbed absent a clear abuse of discretion. Id. at 846. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the trier of fact’s exercise of discretion. Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70, 74.

Considering the testimony and evidence, we cannot say that the trial judge abused his vast discretion when he awarded Edward Ford $20,000.00 in general dames. At trial, Mr. Ford testified regarding his medical treatment, and he stated that his leg has not stopped hurting for any extended period of time since the accident. He further testified that his lifestyle has been affected by the accident, and he cannot run or play basketball or football with his kids anymore.

The record reveals that Mr. Ford was treated for his injuries from January 2001 to July 2001. The MRI of his knee taken in April 2001 revealed grade III-IV chon-dromalacia and a possible intra-meniscal tear. When Mr. Ford sought medical treatment again in December 2002, Dr. Sanchez’s assessment was that Mr. Ford had internal derangement of the right knee and chondromalacia of the patello-femoral joint. However, according to Dr. Hunter of MRI of Louisiana, an MRI taken January 3, 2003 did not reveal internal derangement of the knee and the patello-femoral joint cartilage appeared normal.

After considering the evidence and assessing the credibility of the witnesses, the trial court concluded that Edward Ford sustained $20,000.00 in general damages. While this award may be a bit high, we cannot say that the trial court abused its great discretion. Accordingly, we affirm this award, and this assignment of error is without merit.

|inDECREE

For the reasons set forth above, we affirm the judgment of the trial court.

AFFIRMED.

      . The plaintiffs also named Maty Jo Olson, who is a claims adjuster for Nationwide Assurance Company, as a defendant and asserted bad faith claims against her. However, these claims were dismissed via a partial peremptory exception of no right of action. Additionally, Allstate Insurance Company, as Mr. Ford’s uninsured/underinsured motorist coverage carrier, was named as a defendant. However, the judgment against Allstate has been satisfied and is not at issue in this appeal.


author: | .MARION F. EDWARDS, Judge.

text:
    Gloria LOUSTEAU v. K-MART CORPORATION.
    No. 03-CA-1182.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Kenneth J. Beck, John E. Sudderth, Harvey, LA, for Appellee.
    The Truitt Law Firm, Jack E. Truitt, Madisonville, LA, for Appellant.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .MARION F. EDWARDS, Judge.

Defendant/appellant K-Mart Corporation appeals a judgment of the district court in favor of the plaintiffiappellee Mrs. Gloria Lousteau, awarding her $802,843.89 in damages. For the reasons to follow, we amend the judgment in part, and affirm.

Mrs. Lousteau injured her leg when she slipped in K-Mart’s Store No. 4810 on Veterans Highway in Metairie. Suit was timely filed, and the matter was tried to the judge. At the conclusion of trial, the case was submitted and the litigants were instructed to submit post-trial memoranda and proposed judgments. On December 27, 2001, the court entered judgment in favor of K-Mart, dismissing the plaintiffs claims with prejudice, and Notice of Judgment issued. On January 3, 2002, the court, sua sponte, vacated that judgment, noting on the record that the judgment was signed in error. A Notice of Bankruptcy and Automatic Stay was pilled by K-Mart on January 28, 2002. On February 7, 2002, the court rendered a second judgment, along with reasons for such, in favor of Mrs. Lousteau, finding liability and awarding her damages. K-Mart appeals on several grounds.

Initially, K-Mart urges that the court erred in vacating the December judgment, correctly urging that amendment or revision of a judgment is limited to correcting errors of calculation or phraseology. La. C.C.P. art. 1951. We are referred to a case in which our Supreme Court found that a judgment signed by the same judge, in similar circumstances, could not be altered, notwithstanding that it was signed in error. That case is distinguishable on its facts. In Bourgeois, the judgment in favor of the defendants was signed on November 6, 2001, with notice issued on November 29, 2001. Plaintiff received the notice and rather than move for new trial, filed for an appeal on January 15, 2002. On that same day, the court issued a second judgment in favor of the plaintiff, and later issued an order stating it had inadvertently signed the first judgment. In that case, unlike the matter before us, the time for granting of a new trial was long past. Under La. C.C.P. art. 1971, a new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues. C.C.P. art. 1974 grants seven days, exclusive of holidays, in which a new trial may be granted. The recordation of the trial court that it signed the first judgment in error, within the time frame permitted for granting a new trial, persuades us that the January judgment is not invalid as an impermissible amended judgment.

Additionally, the filing of the Notice of Bankruptcy did not preclude the court from merely signing the judgment. 11 U.S.C. § 362.

K-Mart urges that the court erred in imposing liability where there was inadequate proof regarding the amount of time that any hazard may have been on the floor prior to the accident.

| ¿Regarding the occurrence of the accident, Mrs. Lousteau testified that on the day that she fell, she went to K-Mart to get a paint brush in order to paint her kitchen cabinets. She was wearing flat shoes with wooden heels. The ladies’ department was on the right, past the checkout counters. After entering the store, she was walking straight ahead and her left foot hit “smeary stuff’, and she fell. Dr. Juliette Liss, a customer, came over to help her. She was in excruciating pain, and knew she had broken her leg. She saw that what she had slipped on was medium to dark green, about an inch thick, and a foot long in two directions. She did not know what it was, but thought it was something like a piece of lettuce. Mrs. Lousteau did not know how long the substance had been on the floor, and did not see it before she fell. She did not see anyone with ice cream directly in front of her, or in the immediate vicinity.

Jimmy Johnson, loss prevention team manager at K-Mart, testified that his duties are to reduce inventory waste, whether by theft, shoplifting, or other means. He was trained in handling apprehensions, and certified in handling customer accidents. At K-Mart, each employee has the duty to look for potential hazards and clean them up. If they are unable to clean it themselves, they are to stay at the area, and call for someone to take care of it. Johnson did not know if this was a written policy at that particular store, the subject was covered in new employee training. No store log is kept on spills or cleanups unless there was an accident. K-Mart does not require regular or periodic floor safety inspections. There is no designated cleanup crew that checks the store for spills, although a customer could buy food in the deli department and carry it throughout the store. The manager at the Veterans K-Mart, Jabar Smith, was a competent and conscientious employee.

Mr. Johnson was at the store for about two and one-half years, including 1998— 1999. A number of accident reports at the subject store for 1998-99 were introduced into evidence. Twenty-six reports from 1998 and twenty-nine from [R1999 indicated customer slips on various substances. There were six slip and fall incidents between April 28 and May 28, 1999. It appeared that the accident report on Mrs. Lousteau had not been completely filled out, but the witness felt this was because the manager was trying to assist the injured customer.

Oceola Moss, a K-Mart department manager, testified that at the time of the accident, she was the manager in the ladies wear department. As the department manager, she does not have the responsibility to train employees in regard to clean-up procedures. If there is a spill, the employee is not required to tell a manager if the employee can clean it up, unless someone is needed to watch the area. There is no requirement to inspect for spills. On the day in question, she walked the area just before the accident and saw no green substances on the floor. She saw Mrs. Lousteau fall on some green ice cream, which she believed was dropped by two children walking in front of Mrs. Lousteau. She saw the ice cream fall from the cone, and saw Mrs. Lousteau, right behind the children, step on it. She was about a foot away. A customer, whom Mrs. Moss believed was a nurse, came over to help. The store manager, Mr. Smith, came over and began to speak with Mrs. Lousteau. Mrs. Moss did not see any other type of green substance on the floor.

Ms. Sandra Freeman is employed at the K-Mart, and at the time of the accident was a Human Resource assistant. Her job included training new associates, doing paper work on accident reports, and logging daily attendance. She generated a list of employees on duty on the day of the accident. Mrs. Moss’ name was not on the list, nor was Mr. Smith’s. Ms. Freeman testified that she overlooked Mr. Smith’s name, because mangers don’t have time cards. By looking at the time cards, Ms. Freeman also ascertained that Mrs. Moss was also there that day. She did not type the list up, but Mrs. Moss was on her original handwritten list. She could not explain the discrepancies.

UJabbar Smith testified that he is currently an assistant store manager at Vanity Fair Factory Outlet in Arcadia, Louisiana. He was a manager at K-Mart from January 1997 through September of 2000. Prior to leaving K-Mart, he had no disciplinary actions on his record, and in his evaluations, he either met or exceeded expectations. The Veterans store is one of the highest volume stores in the corporation. The accident with Mrs. Lousteau occurred in the aisle that dissects the ladies department, which is not the main aisle. When Mr. Smith arrived at the scene, Mrs. Lousteau seemed to be in a lot of pain, and the paramedics were trying to straighten her leg in order to splint it. Because he was a registered EMT, Mr. Smith was asked to assist them. On the ground nearby, he saw a green substance with streak marks. It appeared to be something solid, caked on and was perhaps grass, rather than a liquid substance. It was stuck, rather than smeared, on the floor, and would have fit inside of the one-foot square floor tiles. In his opinion, the substance was on the floor “for a bit of time, for it to be caked on those floors. Substances don’t adhere to those floors very well, because they are waxed. So it had to be there for a period of time.” He did not remember seeing any security or loss personnel at the scene. He was shown page three of the accident report form, and stated that he did not write the information thereon, which consisted of his name, the date, and the claim number. Mr. Smith is sure that he completed a page 3 with all of the required information, but the one attached to the report in evidence was not it. On page 2 of the report, Mrs. Moss’ name does not appear as a witness, rather two other names were written. Mr. Smith did not recall telling an associate at the defendant’s law firm that Mrs. Moss was present at the time of the accident, although it is possible he spoke to the attorney.

The store’s safety policies were “pretty much half-assed”, there was never any longevity to any particular policy. There was no focus on safety unless there was an incident. There were five minute meetings which were supposed to be held |7every morning prior to opening, which would sometimes be held for a few days, and sometimes not. There were no regularly scheduled store inspections. The general policy of the store, to clean up a spill if it is seen, was not regularly followed as some employees would pass a spill, and ignore it, while others were more conscientious. At the store in question, he saw spills left on the floor about a half-dozen times. On the day of the accident, he was sure that he had been in the ladies department at one time or another, and if he had seen the spill, he would have had someone clean it up.

Mr. Smith testified that he did not think the substance he saw on the floor came from the customer herself, but acknowledged that his written statement described a “green/black streak, unknown if from customer.”

On cross-examination, Mrs. Moss was certain that the incident occurred with Mrs. Lousteau, and not with another person. If there is any lettuce in the store, it would have been sold in the Eatery, as with a hamburger, and she has never seen anyone walk around with a hamburger in the store. Mr. Smith was mistaken as to where the accident happened. Mrs. Moss had seen the area minutes before Mrs. Lousteau fell, and there was nothing there.

The deposition of Dr. Juliette Liss was admitted into evidence. Dr. Liss testified that after Mrs. Lousteau fell, she went to her assistance, and Mrs. Lousteau stated she must have slipped on something. Dr. Liss noticed a dark green smear on the floor very close, within inches, to Mrs. Lousteau’s foot, and it looked as though it had been there for a while. The smear “... looked like ... reminded me of when you cut your ... your grass and you have that dark green grass on your lawn mower ... .it looks like that [sic] had been stuck to the floor.” The smear appeared dry, was about three or four inches long, and it appeared as though Mrs. Lousteau had skidded on it when she walked. The assistant manager came over and noticed [sthe substance on the floor, and commented that Mrs. Lousteau must have slipped on it.

In its Reasons for Judgment, the trial court found that the fall was caused by a foreign green substance which had been adhered to the floor for an extended period of time.

The witnesses who were the most credible testified that this substance was not ice cream and appeared to be plant-like in nature. They further testified that it had obviously been stuck to the floor for some time prior to Mrs. Lousteau’s fall. (Reasons for Judgment)

Because the testimony indicated that K-Mart had no established safety procedures in regard to clean up of spills, the court determined that it was more likely than not that the substance which caused Mrs. Lousteau to fall had gone unnoticed by 11-Mart or if noticed, was ignored.

Given that this area was adjacent to a food service area inside the store, there was a likelihood of spillage in the area which should have been closely monitored by the defendant. Such a condition as that which existed on the floor presented an unreasonable risk of harm which was clearly foreseeable. The defendant, K-Mart, should have had constructive or actual knowledge of this hazardous condition by virtue of the length of time the substance was present on the floor. The defendant also failed to have any type of written or established safety policies in place which addressed spillage or cleanup of such conditions. As a result of these conclusions, this Court finds the defendant, K-Mart, negligent and therefore liable for the injuries sustained by the plaintiff. The plaintiff, in no way, contributed to her injuries. (Reasons for Judgment)

The applicable statute is La. R.S. 9:2800.6, which declares that a merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage. Under the statute, a plaintiff has the burden of proving, in addition to all other elements of his cause of action, that the condition presented an unreasonable risk of harm, that the risk of harm was reasonably foreseeable, and that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the | ciQceurrence. “Constructive notice” means that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

On appeal, K-Mart does not dispute that Mrs. Lousteau slipped on the substance, but rather argues that she failed to prove the temporal element of R.S. 9:2800.6, in that there was no evidence of how long the material had been on the floor. K-Mart urges that the court unreasonably discredited Ms. Moss’s testimony that the spill had occurred moments before Mrs. Lous-teau slipped; coupled with the testimony of other K-Mart employees regarding safety policies, K-Mart urges there was sufficient evidence to absolve it of liability.

On the “temporal element issue,” our Supreme Court has stated:

The statute does not allow for the inference of constructive notice absent some showing of this temporal element. The claimant must make a positive showing of the existence of the condition prior to the fall.
Though there is no bright line time period, a claimant must show that “the condition existed for such a period of time ...” Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall.

Our courts have interpreted White in cases where, like the present matter, a plaintiff is unable to produce a specific timetable relative to the period of time a foreign substance has been present prior to a slip and fall.

It is not necessary for a plaintiff to produce direct evidence to establish that a substance was on the floor for any length of time prior to the accident. If a reasonable inference can be drawn from the circumstantial evidence presented by the plaintiff that it was more probable than not the spill existed for some period of time prior to the accident, the court can conclude the store had constructive notice. It can be inferred from the totality of the circumstances that a foreign substance was on the floor for a | ^sufficient amount of time that it would have been discovered had Wal-Mart exercised reasonable care.

In the above case, the plaintiff slipped in spilled dishwashing detergent and fell in a Wal-Mart store, but was unable to produce any direct evidence to establish that the substance on the floor was there for any length of time prior to the accident. The court found from the circumstantial evidence the plaintiff presented that it was more probable than not that the spill existed for some period of time prior to the accident. In a similar case, plaintiff and another witness testified that store employees were in the general area where a spill was situated, and there was evidence of a spot of the substance on the plaintiffs pant leg after the fall. The manager on duty on the date of the accident testified that he saw the spilled substance on the floor after the accident, and was not sure when that area was last zoned by an employee. This circumstantial evidence was sufficient to fulfill the statutory requirements. This court has also found certain testimony, that a french fry was on the floor and that the area around it had become black, satisfied a plaintiffs burden under White of offering some evidence that the hazardous condition existed for some time before the accident. The Fourth Circuit has found the evidence to be sufficient where a plaintiff testified that the banana on which she slipped was dirty-looking, and a store employee who was summoned when Ms. Lacy fell, testified that there were two pieces of banana on the floor. One piece of banana, which was found where plaintiff said it was, looked as if someone had slid across it. A second piece of banana was found in another aisle, several feet away from where the plaintiff slipped, and was described as being off-white, similar in color to the floor. Thus, the court determined that plaintiff produced positive evidence from which the jury could have inferred that the banana had been on the lufloor long enough to become dirty and to have been kicked from one aisle to another by customers.

We find that in the present case, the testimony of Mrs. Lousteau, Mr. Smith and Dr. Liss that the substance was dark green, smeared, and stuck to the floor, supported the finding of the trial court that the material was a foreign green substance which had adhered to the floor for an extended period of time. It is clear that K-Mart had no written or established safety policies in place which addressed spillage or cleanup of such conditions, or established safety procedures in regard to clean up of spills, and as the trial court found, there was a likelihood of spillage in the area which should have been closely monitored. In considering this evidence, we emphasize that the determination of the court to accept or reject evidence, and to assess credibility, is an exercise of discretion, and the record discloses no abuse of that discretion.

Based on the circumstantial evidence, we see no error in the determination that such a condition presented an unreasonable risk of harm which was clearly foreseeable, and that K-Mart had constructive or actual knowledge of this hazardous condition. Accordingly, we affirm the finding of the trial court that K-Mart was liable for the injuries to Mrs. Lousteau.

K-Mart also urges an abuse of discretion in the amount of general damages awarded to Mrs. Lousteau, including damages granted in connection with her knee. K-mart urges that there was a lack of evidence that Mrs. Lousteau’s knee problems were causally related to the accident.

Mrs. Lousteau testified that prior to her fall, she lived in her own home and was very active. Thirteen years prior to trial, she had suffered a slip and fall in l^which she had fractured her left hip and shoulder. She had surgery on her hip at that time, and walked with a slight limp after-wards. Nevertheless, at the time of the K-Mart accident she belonged to several organizations, including a camping club, a card group, and a homemaker’s club. She was a gardener, had painted her house, babysat with her grandchildren, and did fitness walking. She attended Mass daily. On holidays, her brother with special needs would stay with her and she helped care for him. When she fell, she was in severe pain. She had broken her leg, and when the paramedics straightened it she screamed with pain. Paramedics performed a closed reduction procedure, straightening the broken leg, without anesthesia. The emergency room treatment was extremely difficult, and she was in the hospital for two and one-half weeks. She had to undergo physical rehabilitation at that time, and after she was discharged, she required a nurse at home three days a week to help her bathe, as well as a physical therapist, and a nurse checked her weekly. She wore a leg brace for three or four months, and also used a walker, but friends had to help her with food. Later, she used a cane for nearly one year, and still uses one if she has to walk for long distances. The shots given her by her doctor helped for a while. Even after her arthroscopy, she continued to suffer with pain. Mrs. Lousteau has a scar from her knee to her hip. She still goes to the homemaker’s club, but does not cook very much anymore. She does not participate in the camping club, does not paint around her home, and cannot walk in the mall with her friends. She does not want to swim in the pool because she is embarrassed to wear a swimsuit with her leg sear. She continues to have pain after walking. She moved out of her home because she couldn’t keep up with the maintenance, and is unable to take her brother home anymore.

Dr. David Jones first treated Mrs. Lous-teau in the emergency room. At that time, she suffered from a comminuted and spiral fracture of the distal femur, the thigh bone. Due to the number of bone fragments, it was considered a severe 113displaced fracture. This is a very painful injury. The fracture tears muscle and tendon attachments around the bone. Mrs. Lousteau had a pre-existing hip prosthesis, but this break did not involve that device. During the course of treatment, surgery, an open reduction and internal fixation, was performed. A distal condylar screw plate was placed in the leg. The plate has seven screws affixed to the bone. Mrs. Lousteau did complain of knee pain, but it was difficult to differentiate the knee from just above the knee, with that type of fracture. Mrs. Lousteau was in the hospital from May 2, 1999-May 19, 1999. She was in the skilled nursing unit for thirteen days, to receive physical therapy. When she was discharged, she was not to put weight on that bone, making it difficult to care for herself. She continued with physical therapy. On her follow-up visit she still suffered pain at the fracture site, and complained that it hurt to bend her knee. While she had a limited range of motion, there was no evidence of nerve damage. She took medication for pain as needed. In June, 1999, Mrs. Lousteau was doing well, her range of motion and strength improved. In July, the wounds were completely healed, she continued to improve, and she progressed to weight bearing as tolerated. In August, she still had difficulty walking and had a significant limp because of pain in her left knee.

In March 2000 her knee still hurt, and she received injections with a steroid and anesthetic solution to relieve pain. While obtaining some relief, her knee swelled, her pain persisted, and she experienced some instability in that area. In June, 2000, diagnostic arthroscopic surgery was performed. This was necessary to relieve her symptoms. She had degenerative arthritic changes in her knee, not all of which pre-existed before the accident. She was given more pain medication and rehabilitation. Her prognosis for recovery from the broken bone was very good, but on her left knee only fair. In October, 2000, she had continued pain and swelling with prolonged walking, and was diagnosed as having post-traumatic degenerative 114arthritis in that knee, related to her accident. In May, 2001, she began to receive more injections, but by October of that year returned with the same problems of pain and swelling. Conservative treatment was recommended, with a possible knee replacement in the future. She is able to do whatever pain and leg strength will allow, and will have difficulty walking long distances, on stairs, and possibly even with simple activities. Her prognosis is fair, and Dr. Jones believed she would need at least one more surgery on her knee.

Even given the fact of Mrs. Lousteau’s surgery thirteen years earlier, Dr. Jones could not say the degenerative changes in her knee would have developed regardless of the K-Mart accident. It is probable that the changes were the result of both, but because she had no significant complaints before, the doctor found a direct causative relationship to the K-Mart accident. It was more probable than not that the fall exacerbated her knee condition.

Dr. Robert Ryan was Mrs. Lousteau’s family physician. Prior to the accident, Mrs. Lousteau was in good health and was very active, with no chronic complaints of pain. Her blood pressure was generally within the acceptable range, and did not need to be treated. After the accident, her pressure was still labile, for which she was given a mild hypertensive, and she had some arthritic complaints. She had significantly reduced activity, and Dr. Ryan felt the injury, a fractured femur which is a major injury, was a stressor and a contributing factor to her general decline in health. Six months prior to the accident, Mrs. Lousteau had revealed that she had a significant amount of stress due to the recent death of her husband, and because of the illness of her son. She also had a tumor on a parotid gland removed, and the stress caused by this was more emotional than physical. Her blood pressure and headaches were probably related to her anxiety problems and stress.

11fiIn its Reasons for Judgment, the trial court found that the testimony and evidence clearly indicated that Mrs. Lousteau suffered a severe and debilitating injury as a result of her slip and fall, and awarded the following damages:

Past Pain and Suffering $300,000.00
Future Pain and Suffering $250,000.00
Permanent Disability, Scarring and Disfigurement $ 75,000.00
Loss of Enjoyment of Life $100,000.00
Past Medical Expenses $ 52,843.89
Future Medical Expenses $ 25,000.00
Total $802,843.89

A plaintiff in a personal injury lawsuit proves causation by a preponderance of the evidence. The plaintiff is aided in this endeavor by the legal presumption that a medical condition producing a disability resulted from a preceding accident if: (1) the injured person was in good health prior to the accident; (2) the disabling condition manifested itself shortly after the accident; and, (3) medical evidence indicates that there is a reasonable possibility of a causal connection between the accident and the disabling condition. As we understand Dr. Jones’ testimony, it was difficult to distinguish any knee injury because of the extent of the fractured femur, although there was tenderness to the area at the time of the injury. Mrs. Lousteau continued to complain of problems with her knee throughout the course of her treatment with Dr. Jones. Considering the finding by Dr. Jones that the accident more probably than not exacerbated her pre-existing knee condition, we find that Mrs. Lousteau sufficiently proved a relationship between the accident and her knee problems, including the arthroscopic surgery.

Louisiana jurisprudence makes clear that, in the absence of manifest error, the amount of damages awarded by a trial court must not be disturbed. “The assessment of quantum or the appropriate amount of damages by a trial judge or jury is a determination of fact, one entitled to great deference on review.” .’’[Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular 11fiplaintiff under the particular circumstances that the appellate court should increase or reduce the award.”

Our review, therefore, is strictly limited to whether the amount of damages awarded by the trial judge to this particular plaintiff is reasonable given the specific circumstances of this case. Under this state’s jurisprudence, the term “general damages” refers to that category of damages which may not be fixed with any degree of pecuniary exactitude, but which involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured definitively in terms of money. In reviewing an award of general damages, a court of appeal is required to focus on the total award and not on each individual item. Loss of enjoyment of life is a separate element of compensable general damages which must be determined by the trial judge and which is not necessarily included in an award for general pain and suffering.

In the instant case, general damages for pain and suffering, scarring, disfigurement, disability, and loss of enjoyment of life totaled $725,000.00.

We recognize from the testimony and medical evidence presented that Mrs. Lousteau initially suffered greatly as a result of her accident, sustaining a fractured femur that required an operation, leaving her with a metal plate with several screws attached to the bone. The record shows that the initial injury and emergency treatment was “excruciating,” and Mrs. Lousteau was hospitalized for two weeks following her first surgery. She continued to receive home health care for some weeks afterwards, and needed personal assistance. She later underwent arthroscopic knee surgery, with limited success.

|17However, while she continues to suffer pain, at the time of trial, Mrs. Lousteau was taking over-the counter ibuprofen to control it. The medical evidence confirms that a significant portion of her ongoing knee problem, her major ongoing complaint, is due to pre-existing degenerative arthritis. She is able to walk without a cane, unless she is traveling a long distance. There were several bases for her increase in blood pressure unrelated to the accident. The medical evidence suggests that other physical and emotional problems have caused stress and contributed to her decline and well-being. Mrs. Lousteau has, however, experienced a diminution in her lifestyle and level of activities. Due no doubt to her strength of character, it appears that she has made a reasonable recovery enabling her to engage in many of the same activities that she used to, albeit at a reduced level of participation.

Considering all the relevant factors and evidence presented at trial, and the impact of this accident on this particular plaintiff, we find that an award of $750,000.00 for general damages is excessive under the specific circumstances of this case and is an abuse of discretion. Having found this abuse of discretion, we are called upon to analyze awards in similar cases to determine the highest or lowest point which is reasonably within that discretion.

The Fourth Circuit considered a case in which a fifty-four year-old plaintiff suffered a shattered femur requiring two surgeries, and determined that an award of $100,000.00 was unreasonably low. The court analyzed comparable cases, and determined that $300,000.00 was the lowest amount reasonably within the trial court’s discretion. Included in this analysis was a case from this circuit, wherein our court affirmed an award of $375,000.00 in general damages, including mental suffering, for a shattered femur, wherein the plaintiff was hospitalized for 17 days |isand bedridden for several months. She needed a cane to walk, lurched when she did so, suffered severe pain, and possibly required two to three further surgeries. She has a permanent one-inch leg-length discrepancy and was obliged to wear a custom-designed built-up shoe. Although Mrs. Lousteau’s injuries are not quite so severe, we find the case sufficiently analogous and hold that $375,000.00 was the highest amount within the trial court’s discretion. Factoring in the damages awarded for permanent scarring and disfigurement, the total general damage award is $450,000.00.

K-Mart also urges that there was no basis for the award of future medical expenses. We disagree. Dr. Jones opined that Mrs. Lousteau’s prognosis was only fair, that her knee would probably not improve on its own, and she would continue to have to see him on an as needed basis. He believed she would need surgery when she could no longer stand the pain.

Like any other element of special damages, future medical cost or expenses must be established with some degree of certainty, and a plaintiff must demonstrate that such expenditures more probably than not will be incurred as a result of the injury. Awards will not be made for future medical expenses which may or may not occur, in the absence of medical testimony that the expenses for necessary treatment are indicated and setting out their probable cost. The cost for the previous arthroscopic surgery was $20,000.00. The cost for a total knee replacement was approximately $36,000.00. In the present case, Mrs. Lousteau proved the necessary degree of certainty of future treatment, and the amount awarded by the trial court, $25,000.00, was well within its discretion.

|19For the foregoing reasons, the judgment on appeal is amended to reflect the following damages:

General Damages.$475,000.00
Past Medical Expenses.$ 52,848.89
Future Medical Expenses.$ 25,000.00
Total.$552,843.89

In all other respects, the judgment is affirmed. K-Mart is taxed costs of this appeal.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Bourgeois v. Kost, 02-2785 (La.5/20/03), 846 So.2d 692.

        . White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081.

      . Broussard v. Wal-Mart Stores, Inc., 98-813 (La.App. 3 Cir. 1/20/99); 741 So.2d 65, writ denied, 99-0486 (La.4/1/99), 742 So.2d 562.

      . Ceasar v. Wal-Mart Stores, Inc., 00-1181 (La.App. 3 Cir.6/6/01), 787 So.2d 582, writ denied, 01-1899 (La:10/26/01), 799 So.2d 1143.

      . Beninate v. Wal-Mart Stores, 97-802 (La. App. 5 Cir. 12/10/97), 704 So.2d 851, writ denied, 98-82 (La.3/13/98); 713 So.2d 470.

      . Lacy v. ABC Ins. Co., 1997-1182 (La.App. 4 Cir.4/1/98), 712 So.2d 189. See also Davis v. M & E Food Mart, Inc., 2002-0585 (La.App. 3 Cir.2002), 829 So.2d 1194; Davenport v. Al-bertson’s, Inc., 2000-00685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied 01-73 (La.3/23/01), 788 So.2d 427; Zagar v. Wal-

        Mart Stores, Inc., 1999-362 (La.App. 3 Cir.6/2/99), 747 So.2d 586, writ denied 1999-1774 (La.9/3/99), 747 So.2d 548.

      . Irsch v. Argonaut Great Cent. Ins. Co., 02-988 (La.App. 5 Cir. 1/28/03), 841 So.2d 831.

      . Farrell v. Pierre, 02-1136 (La.App. 5 Cir.4/8/03), 846 So.2d 49.

      . Caruso v. Canal Indem. Co., 03-423 (La.App. 5 Cir.9/16/03), 858 So.2d 31, citations omitted.

      . Corbello v. Iowa Production, 2002-0826 (La.2/25/03), 850 So.2d 686.

      . Stevenson v. Louisiana Patient’s Compensation Fund, 97-709 (La.App. 5 Cir.4/9/98), 710 So.2d 1178.

      . Id.

      . Coco v. Winston Indust. Inc., 341 So.2d 332 (La. 1976).

      . Lederer v. Famous Entertainment, Inc., 1998-2274 (La.App. 4 Cir.5/12/99), 732 So.2d 1277, writ denied 1999-1707 (La.9/24/99), 747 So.2d 1123.

      . Romaguera v. Piccadilly Cafeterias, Inc., 94-374 (La.App. 5 Cir.12/14/94), 648 So.2d 1000, writs denied 95-0093 and 95-0124 (La.3/10/95), 650 So.2d 1183-84.

      . Mendoza v. Mashburn, 99-499, 99-500 (La. App. 5 Cir. 11/10/99), 747 So.2d 1159, 1164, writ not considered, 00-0040 (La.2/18/00), 754 So.2d 957, writ denied, 00-0037 (La.2/18/00), 754 So.2d 976.

      . Id.