author: I,STEWART, J.

text:
    NORTHEAST REALTY, LLC, Plaintiff-Appellee, v. Ernest JOHNSON, et al., Defendants-Appellants.
    No. 37,250-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Mayer, Smith & Roberts, by David F. Butterfield, Shreveport, for Appellants Robert Jackson and Ernest Johnson.
    Guerriero & Guerriero, by Joe D. Guer-riero, Monroe, for Appellee.
    Before BROWN, STEWART and CARAWAY, JJ.
   I,STEWART, J.

This is an appeal from a judgment of eviction rendered against Ernest Johnson, the appellant, by the Monroe City Court in favor of Northeast Realty, L.L.C. (“Northeast”). Johnson argues that there was a procedural defect in the notice to vacate and that the city court lacked subject matter jurisdiction. Finding no merit in Johnson’s arguments, we affirm the judgment of eviction.

FACTS

On August 21, 2001, Northeast began eviction proceedings against Johnson and other tenants of the Kingston Village Apartment Complex in Monroe. Judge Tammy D. Lee signed a judgment denying the evictions on January 16, 2002. Judge Lee found there to be uncertainty as to Northeast’s ownership of the complex and denied the evictions because the city court lacked subject matter jurisdiction to resolve issues of ownership. Northeast appealed.

In Northeast Realty v. Jackson, et al., 36,276 (La.App.2d Cir.8/14/02), 824 So.2d 1264, we reversed the trial court’s judgment and remanded the matter for further proceedings, noting that Northeast would have the burden of proving that the amount in dispute is within the city court’s subject matter jurisdiction. We found that the jurisdictional issue had been correctly decided by Judge B. Scott Leehy when he had overruled an exception on subject matter jurisdiction. We agreed with Judge Leehy that Northeast had been placed into possession of the complex through a succession of deeds and a writ of possession and that Northeast was authorized to proceed with the evictions. The procedural history and | ¡.background facts of this matter are set forth in Northeast, supra, and will not be repeated here.

On August 22, 2002, following remand, Northeast filed a rule to show cause why the evictions should not proceed. Trial was conducted before Judge Lee on October 1, 2002. The record indicates that Johnson has no lease with Northeast. However, there was testimony of a written lease between Johnson and Misty Bayou, L.L.C., (“Misty Bayou”), an entity that is not a party to this suit but which appears to have had some previous ownership interest in .the complex. The record indicates that Johnson did not pay rent but instead provided nighttime security services at the complex on behalf of Misty Bayou. In Johnson’s defense, his counsel argued that Johnson was part of Misty Bayou’s management team and that the eviction proceedings were really an attempt to evict Misty Bayou’s management. As such, counsel argued that the amount in dispute exceeded the city court’s jurisdictional limit because the value of the right of occupancy would have to be based on the total rental value of the property rather than on the value of Johnson’s individual right of occupancy. Judge Lee apparently rejected this argument because she rendered a judgment of eviction against Ernest Johnson on October 11, 2002. Although evictions were granted in favor of Northeast as to other tenants, only Johnson has appealed his eviction.

DISCUSSION

Johnson presents two issues for our review. The first issue pertains to the notice to vacate, which he asserts was procedurally defective. Johnson argues that because he had no lease with Northeast, he was entitled to a Rnotice to vacate in accordance with La. C.C. art. 2686. Article 2686 requires written notice to vacate at least ten days before the expiration of the month which has begun to run when there is no agreement as to the duration of the lease. Johnson was provided a notice to vacate on August 15, 2001 pertaining to the initial eviction filed August 21, 2001, Docket No. 2001E02177. Johnson was provided a second notice to vacate on August 30, 2001, pertaining to another eviction filed September 5, 2001, Docket No. 2001E02304. Johnson argues these notices were ineffective because they provided only five days notice as opposed to the ten days before the expiration of the month required by La. C.C. art. 2686.

Our review of the record reveals that Johnson did not raise this issue before the trial court. Our scope of review is limited to issues which were submitted to the trial court. U.R.C.A. Rule 1-3. Accordingly, we need not consider this issue. Nevertheless, we find no merit in Johnson’s argument. He had no lease with Northeast, thus La. C.C. art. 2686, which addresses the situation where there is a lease with no set term for duration, did not apply in this instance. Both notices to vacate complied with La. C.C.P. arts. 4701 and 4702 as they provided Johnson, an occupant of the premises with regard to Northeast, with notice to vacate in not less than five days from delivery of the notice. Moreover, the notices to vacate once served remained effective as the basis for the eviction proceedings even after the initial denial by the trial court and subsequent remand by this court. See Board of Levee Commissioners of Orleans Levee District v. Magee Aircraft Co., 77 So.2d 239 (La.App. Cir. 1955).

The second issue presented by Johnson pertains to the jurisdiction of the city court. Johnson argues that because he had no lease with Northeast, the amount in dispute for jurisdictional purposes is determined by the value of the right of occupancy in accordance with La. C.C.P. art. 4844. Johnson asserts that he was a member of Misty Bayou’s management team, that the value of the right of occupancy should be based on the annual rental value of the property which Misty Bayou could generate, and that this annual sum would greatly exceed the city court’s jurisdictional limit. Johnson equates his eviction with an eviction of Misty Bayou’s management team. We find no merit in this argument.

The record discloses that Johnson had a lease with Misty Bayou. However, in lieu of paying rent, he provided some type of nighttime security service at the complex. This does not establish that Johnson was engaged in the management of the apartment complex by or on behalf of Misty Bayou. Regardless of Johnson’s arrangement with Misty Bayou, his eviction is not an eviction of Misty Bayou’s management team. Misty Bayou is not a party to these proceedings and has not intervened. Any title dispute that Misty Bayou has with Northeast is not a part of this matter. In fact, no basis has been shown for calculating the jurisdictional amount based on the annual value of the right of occupancy of Misty Bayou.

We have already determined in Northeast Realty v. Jackson, et al., supra, that Northeast is authorized to proceed with the evictions. This | ^matter involves only the eviction of Johnson by Northeast. Johnson has no lease with Northeast and has paid no rent to Northeast. With regard to Northeast, Johnson is an occupant as he has been occupying the property by permission or accommodation of its former owner or former occupant, Misty Bayou. See La. C.C.P. art. 4704. It is clear from the record that the annual value of Johnson’s right of occupancy does not exceed the Monroe City Court’s jurisdictional limit of $15,000. Accordingly, this matter fit squarely within the Monroe City Court’s jurisdiction and was properly decided.

CONCLUSION

For the reasons expressed, we affirm the judgment of eviction against the appellant, Ernest Johnson. Costs are assessed to Johnson.

AFFIRMED.

      . The eviction proceeding filed in Docket No. 2001E02304 was the one ultimately granted by the trial court.


source: Caselaw Access Project

author: I .BROWN, C.J.,

license: Public Domain

text:
    Brenda HALLEY, Plaintiff-Appellant, v. Bob BUCKLEY, Sheriff of Union Parish, Defendant-Appellee.
    No. 37,254-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Corbett L. Ourso, Jr., Hammond, for Appellant.
    Usry & Weeks, by John F. Weeks, II, New Orleans, for Appellee.
    Before BROWN, DREW, and MOORE, JJ.
   I .BROWN, C.J.,

Plaintiff, Brenda Halley, instituted this action in July 1992 against the Sheriff of Union Parish, Bob Buckley, to recover damages for the alleged mishandling of a judicial sale. Sheriff Buckley filed a motion for summary judgment which was granted by the trial court. We affirm.

Factual and Procedural Background

On January 29, 1991, Brenda Halley obtained a judgment from the Fourth Judicial District Court in Ouachita Parish against her ex-husband, Bill Halley, in the amount of $177,486.87. After that decree had been made executory, a writ of fieri facias directed that certain movable and immovable property be seized by the Sheriff of Union Parish. In executing that order, the sheriff took possession of the residence owned by Mr. Halley in Farmer-ville, Louisiana, and offered the property for public sale on July 24,1991.

In preparation for the judicial sale, the sheriffs office obtained a mortgage certificate which disclosed that a collateral mortgage affecting the property had been executed on October 28, 1988, and recorded in the records of Union Parish on November 29, 1988, more than two years prior to the rendition and filing of Mrs. Halley’s judgment. A collateral mortgage note due on demand and payable to the order of “myself’ was executed on the same date and paraphed “ne-varietur” to identify it with the mortgage.

On the day of the sale, a representative of D’Arbonne Bank appeared and informed the officer conducting the sale, Chief Civil Deputy Lottie Ray, that the bank held the collateral mortgage with a pay-off balance of $213,566.67. At the auction, Peter Branch, Mr. Halley’s son-in-law, | {¡purchased the property on a bid of $222,315.86. He later paid an additional $6,669.45 in costs.

Before the disbursal of any sale proceeds, the sheriff received a letter from the bank confirming that it was the “mortgage holder of record regarding Bill G. Halley” and entitled to the $213,566.67 pay-off. Deputy Ray advised Ms. Halley’s attorney that the bank would be paid first and that no remaining amount would be available to liquidate her judgment.

On August 13, 1991, the sheriff paid the indicated mortgage balance to the bank from sums received from Mr. Branch. Finally, after the satisfaction of commissions and costs, Ms. Halley received $8,311.65 through the clerk of court.

Although she attended the judicial sale, Ms. Halley did not bid on the property, nor at any time prior to or after the sale did she seek to formally challenge the validity, priority, ownership, or outstanding balance of the mortgage asserted by the bank. Ms. Halley filed the instant suit on July 24, 1992, naming only the sheriff as defendant. Shortly thereafter, she amended her petition to name Mr. Branch, the bank, and James A. Hobbs, her ex-husband’s attorney, as defendants upon allegations that these parties and the sheriff conspired to deny her property rights and equal protection of the law.

' On July 12, 1995, Ms. Halley filed a motion for summary judgment. This motion was denied on March 13, 1996. Ms. Halley filed another motion for summary judgment on February 15, 2002, upon which a ruling was never made. On June 14, 2002, defendants filed an opposition to Ms. Halley’s motion for summary judgment as well as their own cross-motion | of or summary judgement. On September 9, 2002, the trial court granted Sheriff Buckley’s motion for summary judgment.

Discussion

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). When a motion for summary judgment has been filed, the adverse party may not rest on the mere allegations of his pleadings, but, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Row v. Pierremont Plaza, L.L.C., 35,796 (La.App.2d Cir.04/03/02), 814 So.2d 124.

A collateral mortgage is not a “pure” mortgage; instead, it combines the security devices of mortgage and pledge into one. The collateral mortgage does not directly secure a debt; rather, the collateral mortgage device is designed to create a mortgage note for a fictitious debt that can be pledged as collateral security for a real debt. The borrower’s mortgage secures a fictitious collateral mortgage note, then- pledges that note as security for a debt, usually represented by a separate hand note. The collateral mortgage was designed to create a mortgage note that can be pledged as collateral security for either a pre-existing debt, for a debt created contemporaneously with the mortgage, for a future debt or debts, or for a series of debts. Diamond Services Corp. v. Benoit, 00-0469 (La.02/21/01), 780 So.2d 367. The advantage to creditors is that a collateral | ¿mortgage takes its rank and priority from the time it became effective as to third parties, that is, from the date of the original pledge of the collateral mortgage note (assuming the mortgage has been recorded), rather than from the date of the individual subsequent advances. La. R.S. 9:5551; Diamond Services Corp, supra; Liberty Bank and Trust Co. v. Dapremont, 02-1504 (La.App. 4th Cir.02/11/03), 844 So.2d 877.

Ms. Halle/s suit against the sheriff alleges improprieties in the sheriffs sale. She argues that because the bank did not judicially intervene to assert the previously inscribed mortgage, her judgment should have been fully satisfied from the judicial sale proceeds. She also argues that the bank did not produce any evidence of the sums actually advanced to Mr. Halley.

La. C.C.P. art. 2337 mandates that the property at a judicial sale not be sold unless the prevailing bid is adequate to discharge any mortgage or security interests superior to that of the seizing creditor. Moreover, the purchaser is required to pay the sheriff only that portion of the price exceeding the amount of any such mortgage or lien. La. C.C.P. art. 2374.

La. C.C.P. art. 1092 provides that a third party “claiming ownership of, or a mortgage or a privilege on, property seized may assert his claim by intervention.” (Emphasis added.) Such an intervention is an optional procedure which, if not exercised, will not operate as a release of the mortgage or privilege. See First State Bank v. Wilson, 437 So.2d 968 (La.App. 2d Cir.1983); Davis-Wood Lumber Co. v. DeBrueys, 200 So.2d 916 (La.App. 1st Cir.1967); Hibernia Homestead and Savings Association v. Fletcher, 181 So.2d 815 (La.App. 4th Cir.1966).

| .^Furthermore, La. C.C.P. art. 2337 implicitly requires that the sheriff determine the amount of any superior mortgage or lien before permitting the sale to proceed. In the present case, the sheriff had a mortgage certificate from the clerk of court’s office and information provided by the bank prior to the. sale. Thereafter, and before release of the proceeds, the bank confirmed that declaration in writing.

During the three-week period prior to disbursal of funds, plaintiff faded to challenge either judicially or with the sheriff the validity, priority, or asserted balance of the mortgage. Neither plaintiffs petition nor answer to the summary judgment motion assert evidence concerning the invalidity or inferiority of the previously recorded collateral mortgage, or the incorrectness of the pay-off quoted by the bank. During the ten years of this litigation, plaintiff has sought nothing relating to how the bank obtained the collateral mortgage note or any advances made to Mr. Halley.

The sheriff does acknowledge a failure to follow literally the procedures of La. C.C.P. art. 2374, which would permit the purchaser (in this case Peter Branch) to retain those sums sufficient to satisfy any superior security interests. Instead, the sheriffs office required payment of the entire amount of the bid and directly paid the outstanding lien. Nevertheless, even if the purchaser had paid to the sheriff only the portion of his bid exceeding the mortgage, it is difficult to understand how this would have- caused any additional recovery by Ms. Halley. Therefore, she has demonstrated no loss or damages resulting from the procedural non-conformities concerning La. C.C.P. art. 2374. Ms. Halley has not presented any evidence reflecting the | (¡sheriffs participation in any conspiracy, nor has she presented factual support demonstrating that she can satisfy her burden of proof at trial against the sheriff. Thus, no material disputed facts exist and the sheriff is entitled to judgment as a matter of law.

Ms. Halley has simply not shown any prejudice in the manner in which the sheriff conducted the sheriffs sale, which she not only instituted but also attended. Ms. Halley was aware of the bank’s claim of a superior mortgage on the seized property and made no effort to enjoin the sale or the distribution of proceeds therefrom. For reasons previously stated, she has not shown a genuine issue of material fact, that is, she has failed to offer any evidence to prove the essential elements of her case.

Conclusion

For the reasons stated herein, we affirm.

AFFIRMED.

      . This case does not involve whether the assertions of the bank were, in fact, correct.


author: | STEWART, J.

text:
    Eddie Ray BRYAN, Jr., Plaintiff-Appellant, v. CASE CREDIT CORP.; Street Insurance Agency; Sharon Sue Street; Scott Financial Inc.; Scott Financial Services L.L.C.; Scott Truck and Tractor, Inc.; and Kathy Killian, Defendants-Appellees.
    No. 37,256-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Matthew M. Courtman, Monroe, for Appellant.
    Charles B. Racer, for Appellees Scott Truck and Tractor, Inc., Scott Financial Services LLC, Scott Financial Inc. and Kathy Killian.
    Michael M. Noonan, Deirdre C. McGlin-chey, New Orleans, for Appellee Case Credit Corp.
    Theo J. Coenen, III, Rayville, for Appel-lees Street Ins. Agency and Sharon Sue Street.
    Before WILLIAMS, STEWART and KOSTELKA (Pro Tempore), JJ.
   | STEWART, J.

This is an appeal from a suit alleging wrongful disclosure of financial information. The trial court granted summary judgments in favor of defendants, Case Credit Corporation and Sharon Sue Street, and against plaintiff, Eddie Ray Bryan, Jr. For the reasons set forth below, we affirm the trial court’s judgments.

FACTS

In September 2000, Eddie Ray Bryan, Jr., (“Bryan”) filed suit against Case Credit Corporation (“Case”), Street Insurance Agency, Sharon Sue Street (“Street”), Scott Financial Inc., Scott Financial Services, L.L.C., Scott Truck & Tractor, Inc., and Kathy Killian (“Killian”), seeking damages .for the alleged unlawful release of Bryan’s confidential financial information.

According to the petition for damages, Bryan’s former spouse is Wanda Jean Bryan (‘Wanda Jean”), the sister of defendant Street. In the summer of 1999, Bryan was involved in negotiations with his former spouse regarding the partition of their community property. He was also involved in a negotiation to purchase some farm equipment from Scott Truck &'Tractor. Bryan alleged in his petition that Kathy Killian, an employee of Scott Financial Services, L.L.C., used information gathered in the course of her employment to inform Wanda Jean and/or Street that Bryan was in the process of purchasing the farm equipment.

Bryan further alleged that on or about September 1, 1999, Street telephoned defendant, Case Credit Corporation, to inquire about his financial dealings. Bryan alleged that Street fraudulently identified herself as being his wife and that she requested confidential information regarding |2his financial dealings. Case allegedly failed to take any measures to determine the actual identity of the caller and disclosed Bryan’s confidential financial information to Street through a fax transmittal to “Sue at Street Insurance.” Bryan alleged that Street then disclosed his confidential financial information to Wanda Jean, who used the information against him in the course of their community property settlement negotiations.

In addition to the allegations regarding the unauthorized disclosure of his financial information, Bryan alleged that Street attempted to damage his reputation in the community where he conducted his business and personal affairs. As a result of these alleged acts, Bryan asserted that he had, suffered' significant economic detriment and severe emotional distress in the form Of nightmares, headaches, chest pains, and elevated blood pressure.

On March 18, 2002, a motion for summary judgment was filed by Scott Financial, Inc., Scott Financial Services, L.L.C., Scott Truck & Tractor, and Kathy Killian. Ten days later, a motion for summary judgment was filed on behalf of Sharon Sue Street. This filing was followed by a motion for summary judgment on behalf of Case. All three motions for summary judgment were heard at the same time and subsequently granted with written reasons.

In the written reasons supporting the trial court’s summary judgments, the court observed that the detailed descriptive list filed in conjunction with the partition of community property between Bryan and Wanda Jean included a 5240 Case tractor which was leased by Bryan during the marriage. Pursuant to a judgment signed on November 5, 1997, Bryan 13was prohibited from alienating or disposing of any community property. Although the community property settlement had not been completed and Bryan was still enjoined from alienating property acquired during the marriage, he traded the 5240 Case tractor for a combine and headers at Scott Truck & Tractor on June 7, 1999. This trade-in resulted in a credit to Bryan of $6,006.12, which was put toward the purchase of the combine and headers.

The trial court found that Wanda Jean learned of the trade-in and then contacted Killian, who confirmed that the transaction had taken place, and provided Wanda Jean with a telephone number to Casé. According to the trial court, Wanda Jean testified in her deposition that she contacted Case, inquired about the transaction, and was provided with financial information regarding the trade-in of the tractor. Wanda Jean, a school teacher, also testified that she had Case fax the information to the Street Insurance Agency where she worked part-time in the afternoons after school. She then turned the information over to the attorney representing her in the community property negotiations.

The trial court found no support for Bryan’s assertion that Wanda Jean was at work teaching school at the time the phone calls were made to Case and that it was Street, not Wanda Jean, who called Case to obtain the financial information about the trade-in of the tractor. In opposition to the motions for summary judgment, Bryan filed the affidavit of the principal at the school where Wanda Jean taught. However, the trial court noted that this affidavit simply asserted that September 2, 1999 was a school day, that 14Wanda Jean was a teacher at the school, and that the time of the calls to Case occurred during regularly scheduled class times. The affidavit did not state that Wanda Jean was in class on that day and at those times.

With regard to the specific claims against Case, the trial court found that Bryan’s action for improper disclosure was based upon the provisions of La. R.S. 9:3571 and 6:333. The trial court further found that Wanda Jean had an ownership interest in the tractor as a co-owner even after the termination of the community, and that Bryan violated the injunction concerning alienation of community property when he traded in the tractor. The court found that Wanda Jean was entitled to the information that she received from Case, and that Case could not be held accountable for providing the information under the provisions La. R.S. 6:333. The trial court noted Bryan’s contention that Wanda Jean had waived her interest in the tractor during earlier settlement negotiations, but the trial court observed that no authentic act existed to prove Bryan’s allegations.

With regard to Bryan’s claims against Street, the trial court stated there was no evidence in the record that connected Street to the disclosure of Bryan’s financial information. The trial court noted that Bryan based his claim on Case’s customer contact log which stated that Mrs. Bryan called on two occasions and requested the financial information to be faxed to the attention of Sue at Street Insurance Agency. However, the trial court also noted the testimony from Wanda Jean’s deposition stating that she made the phone calls and requested the documents to be faxed to Street Insurance Agency because she worked there part-time after school. The trial court |Ralso repeated its observation that the affidavit of the principal of the school where Wanda Jean taught did not state that she was in class during the times that the calls were made.

Bryan filed the instant appeal of the summary judgments in favor of Case and Street. He argues that there is no evidence to support the granting of these motions for summary judgment.

DISCUSSION

The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action; the procedure is favored and shall be construed to. accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Hamdan v. State Farm Mutual Automobile Insurance Company, 36,883-CA (La.App.2d Cir.3/5/03), 839 So.2d 1017.

On appeal, Mr. Bryan’s argument essentially consists of a single paragraph:

A review of the Record shows that there is absolutely no competent evidence that was offered to support the Motion for Summary Judgment filed on behalf of Defendants Case and Ms. Street. It is respectfully submitted that this failure warrants | (¡reversal of the summary judgment in favor of Case and Ms. Street.

Although it has been said that good things,when short, are twice as good, we do not find this saying applicable to Bryan’s unhelpful argument. Furthermore, we are compelled by our de novo review of the entire record to conclude that there is competent evidence supporting the trial court’s summary judgments.

Initially, we note that for the summary judgments in favor of Street and Case to be proper, there must be no genuine issue of material fact on two points: (1) the financial information at issue was disclosed to Wanda Jean and not to Street; and (2) Wanda Jean was a person authorized by statute to receive the financial information from Case regarding the trade-in of the tractor. The record establishes that there is no genuine issue of material fact as to either of these points.

Bryan argued before the trial court that the financial information was released to Street because the fax was to be sent to her at the Street Insurance Agency, and'because the telephone calls to Case were made at a time when Wanda Jean ordinarily would be teaching class. However, the fact that the calls were made at a time when Wanda Jean would ordinarily be teaching does not indicate that she was actually in class on that day or at that time. Instead, it would be an easy matter for a teacher to make telephone calls while at school. Furthermore, Killi-an’s affidavit specifically states that Wanda Jean contacted her to ask about Bryan’s purchase of a combine, and that Killian gave Wanda Jean the phone number to Case. Even more significantly, the trial court’s reasons for judgment noted that IvWanda Jean testified in her deposition that she had a conversation with Killian and obtained the telephone number to Case from Killian. Wanda Jean also testified that she then contacted Case, inquired about the transaction, and was provided the financial information which was faxed at her request to the Street Insurance Agency where she worked part-time.

Given the evidence before the trial court, we conclude that there is no genuine issue of material fact as to who contacted Case to obtain the financial information regarding the trade-in of the 5240 Case tractor by Bryan. All the direct evidence on the issue of the caller’s identity establishes that it was Wanda Jean, not Street, who obtained the information from Case. Case’s records show that the caller identified herself as Mrs. Bryan. The deposition testimony of Wanda Jean and the affidavit of Kathy Killian establish that Wanda Jean made the call. Bryan’s claim that Street made the call and obtained his private financial information is not supported by any specific facts showing an issue for trial. Accordingly, summary judgment in favor of Street was properly granted.

In addition, there is no genuine issue of fact as to whether Wanda Jean was authorized under the provisions of La. R.S. 6:333 to obtain the financial records at issue from Case. As pointed out by the trial court, Case | shad authority to disclose the financial records dealing with the trade-in of the tractor “to any person having any ownership or joint interest in an account to which the financial records pertain .... ” La. R.S. 6:333(F)(9). There is no question that the 5240 Case tractor had been leased during the marriage. Moreover, at the pertinent times, Wanda Jean and Bryan, although divorced, had not yet divided the former community property, and there was an injunction in place prohibiting the alienation or encumbrance of property obtained during the marriage. Thus, Wanda Jean clearly had an ownership or joint interest in the tractor which entitled her to obtain financial information from Case Credit pertaining to that account.

We are not persuaded by Bryan’s argument before the trial court that Wanda Jean “released” or “waived” her interest in the 5240 Case tractor during property settlement negotiations because she allegedly had no interest in property worth less than the amount owed on it and wanted only cash. We do not find that the alleged “waiver” or “release” by Wanda Jean during the course of negotiations amounted to a formal release of the 5240 Case tractor for partition purposes, especially as it appears the tractor obviously had some cash value attributable to the community. The statements allegedly made by Wanda Jean during the course of property settlement negotiations can only be viewed in this context as statements of her willingness to allow certain items of property to be treated in a particular way in the final partition. The alleged “waiver” or “release” did not override the existing injunction nor amount to more than statements simply made during negotiations toward a future partition. In particular, the |flalleged statements would not have prevented her from obtaining the financial information at issue. Accordingly, summary judgment in favor of Case was also properly granted.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s judgments at appellant’s costs.

AFFIRMED.

      . Although Wanda Jean's affidavit does not appear in the appellate record, the trial court plainly reviewed the affidavit, and we have no reason to doubt either that the affidavit was properly a part of the record, or that the trial court's statements concerning the contents of the affidavit were correct. Furthermore, an appellant has a duty to secure either a transcript of testimony or a narrative of the facts, and inadequacy of the appellate record is imputable to the appellant. See Barrois v. Wal-Mart Stores, Inc., 97-636 (La.App. 5th Cir. 11/25/97), 703 So.2d 798. In the context of an appellant seeking review of summary judgment, the appellant likewise has a duty to be sure that all affidavits submitted either in support of or in opposition to the motion for summary judgment are included in the appellate record, and any inadequacy in this respect is imputable to the appellant.


author: h CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Adrian McKINNIE, Appellant.
    No. 36,997-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    James D. Caldwell, District Attorney, Linda Kincaid Watson, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   h CARAWAY, J.

By a 10-2 vote, a jury convicted Adrian McKinnie as charged by grand jury indictment with the aggravated rape of four-year old C.L. in violation of La. R.S. 14:42. The court imposed the mandatory life sentence. On appeal, McKinnie argues that the evidence was insufficient to prove that a rape occurred and that the trial court erred in finding his confession of the crime admissible. We affirm.

Facts

The victim in this case, C.L., was born on February 13, 1994. In July of 2000, C.L.’s mother, A.L., instructed C.L. and one of her sisters about the issue of sexual abuse and encouraged them to talk to her if there was ever a problem. That conversation precipitated C.L. to confess to her mother that McKinnie had inserted his fingers and penis into her vagina when the child stayed at McKinnie’s mother’s home. McKinnie’s mother, Ella Stapleton, and A.L. were long-time friends. Stapleton was named C.L.’s godmother and the child spent the night in Stapleton’s home on numerous occasions. After the child told her mother about the incident, A.L. and a neighbor took C.L. to Stapleton’s home and had the child recount the complaints. When confronted with these facts, McKin-nie denied the allegations;

Thereafter, on July 14, 2000, C.L. was examined by Dr. Lawrence Chenier, a general practitioner certified in emergency medicine. C.L. repeated the history of sexual assault by McKinnie to Dr. Chenier. Physical |2examination revealed the child’s hymen was ruptured and open. The diagnosis was sexual assault by an adult. On July 14, 2000, police arrested McKinnie at his mother’s house and charged him with carnal knowledge of a juvenile. The following day, the charges were upgraded to, aggravated rape, allegedly committed on December 15,1998.

On appeal, McKinnie raises two issues. He first alleges that the evidence was insufficient to support the aggravated rape conviction. He also argues that the trial court erred in denying his motion to suppress a confession of the crime made by him on July 19, 2000.

Sufficiency of the Evidence

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Despite the lack of a motion for post-verdict judgment of acquittal by. McKinnie pursuant to La.C.Cr.P. art. 821, this court will consider | ¡^sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

The standard of appellate review does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508.

During the time frame of the present offense, rape was defined by La. R.S. 14:41 as the act of anal or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent. Aggravated rape includes a rape committed without the lawful consent of the victim when the victim is under the age of twelve years. Lack of knowledge of the victim’s age is no defense to the crime. La. R.S. 14:42(A)(4). Force is not |4an element of rape of a child under the age of twelve. State v. Taylor, 36,066 (La.App.2d Cir.6/12/02), 821 So.2d 633.

Specifically, McKinnie argues that the state failed to prove sexual penetration beyond a reasonable doubt. He further insists that his alibi witnesses demonstrated he was not at the scene of the offense when the crime was committed on December 15,1998.

C.L.’s mother, A.L., was the first person to whom the child confided the sexual abuse. A.L. testified that immediately following a talk with her two girls regarding potential sexual abuse, she overhead C.L. telling her seven-year-old sister about a previous incident of sexual abuse. A.L. then encouraged C.L. to tell her the details and not to be ashamed. While crying, C.L. told her mother that McKinnie had “told her to turn over” and had inserted “his finger or whatever” and had additionally used his “private part” in the act. A.L. had the child repeat this account to her neighbor, Carrie Martin, who happened to be Ella Stapleton’s niece. Then they all proceeded to Stapleton’s residence where C.L. again related the incident.

At trial, Dr. Chenier and Wendy Wes-terman, a psychologist and expert in forensic interviewing of abused children, both confirmed that C.L. described the defendant as having “hurt” her vagina with his penis. In Westerman’s opinion, C.L. was telling the truth, because the child did not use adult language or words to describe genitalia and the story did not appear rehearsed.

Regarding the timeline, A.L. testified that C.L. regularly stayed overnight at the Stapleton home, primarily during weekends between | ¡(December 1998 and July 2000, when C.L. initially reported the incident. A.L. reported that McKinnie lived in the house during this time. The evidence showed that McKinnie returned to his mother’s home in December 1998, after his release from the state correctional center for youth in Tallulah. Dr. Chenier testified that he gathered from the child that the abuse had occurred closer to the time of his examination, and that C.L. complained of abdominal pain. Nevertheless, he could not determine when the abuse occurred from his examination of C.L.’s vagina. He stated that the child’s condition was consistent with penile penetration, although he admitted that about ten percent of female children do not have a hymen.

After the court determined she was competent witness, C.L. testified. She stated that no one told her what to tell Westerman and that she told the truth. C.L.’s videotaped interview with Wester-man was played for the jury. C.L. said her “god brother Squirt” did “something wrong” to her. He had done it “a bunch of times.” He touched her “body” with his hands and had pulled off her clothes while she was in bed. Then he touched her with his “dick” and put it inside her. It hurt. He did that “a bunch of times.” McKinnie was the only person who had ever done that. The child believed that she was six when this happened. C.L. stated that when she told McKinnie to stop, he told her “Girl, you better lay down before I hit you in your mouth.” His statement scared C.L. After the videotape was over, C.L. returned to the stand. She testified that McKinnie did what she described on the tape, and all of it was true.

| fiIn addition to the above evidence, McKinnie gave confessions to investigators following his arrest as discussed below. His various confessions described acts of fondling the child and intercourse. In his last confession, he identified December 15, 1998 as the date of his actions, the same date he was released from state custody, which was also his eighteenth birthday. The defense presented alibi witnesses, including Stapleton, who testified that McKinnie was not at the Stapleton residence on December 15,1998.

From the evidence, the time for the offense was shown to have been possible from December 15, 1998 through June or early July of 2000. At all such times, C.L. was under the age of twelve. While C.L.’s testimony was unclear regarding the actual date, she did accurately describe the fact that a rape or rapes occurred. The date is not essential to the crime of aggravated rape; therefore, it need not be alleged in the indictment. State v. Glover, 304 So.2d 348 (La.1974). The jurisprudence has also held that proof of an approximate time period for the commission of the crime of rape of a youthful victim similar the time period proven in this case is not too general or too long. State v. Brauner, 99-1954 (La.App. 4th Cir.2/21/01), 782 So.2d 52.

After reviewing the evidence in the light most favorable to the state, we find it sufficient to support McKinnie’s aggravated rape conviction. Even at her young age, C.L. consistently described to her mother, Dr. Chenier and Westerman, McKinnie’s act of rape upon her. Additionally, McKinnie’s confessions corroborate the child’s version of the events. 17Clearly, the jury believed the testimony of the victim, the physical evidence of harm, and rejected McKinnie’s recantation of his confession at trial. In these circumstances, we find the evidence sufficient to prove that sexual penetration occurred and that McKinnie had the opportunity beginning on December 15, 1998 and thereafter to have committed the act while the child was present at the Stapleton residence. On these grounds, we reject McKinnie’s arguments.

Motion to Suppress

McKinnie gave two confessions to the authorities. The first occurred on July 15, one day after his arrest. The second occurred on July 19, and he now claims this one should have been suppressed by the trial court. Specifically, McKinnie claims that he invoked his right to silence at the conclusion of the initial July 15 confession and did not initiate the subsequent conversation which occurred with' another interrogator four days later. McKinnie also contends that any statements he made on July 19 were induced by promises of leniency. The court found the confession admissible after concluding that McKinnie was advised of his rights by two different police officers and there was no evidence of coercion, threats, pressures or promises to induce the confession.

At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 00-1427 (La.5/11/01), 791 So.2d 1288; State v. Rogers, 476 So.2d 942 (La.App. 2d Cir.1985).s Because the credibility óf a witness' plays a key role in the determination of voluntariness, a reviewing court will defer to the ruling of the trial court in such matters unless that ruling is inadequately supported by reliable evidence. State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, U.S. cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705; State v. Hansbro, 35,027 (La.App.2d Cir.9/26/01), 796 So.2d 185, writ denied, 01-2970 (La.10/25/02), 827 So.2d 1177.

Before a confession can be introduced into evidence, the state must affirmatively prove that it was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La.C.Cr.P. art. 703(D); State v. Roddy, supra. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Roddy, supra; State v. Walker, 28,577 (La.App.2d Cir.10/4/96), 681 So.2d 1023.

In determining whether a ruling on a motion to suppress is correct, an appellate court is not limited to evidence adduced at the hearing on the motion but also may consider pertinent evidence given at trial. State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.1993), writ denied, 619 So.2d 573 (La.1993).

The evidence presented at the motion to suppress hearing and trial was substantially the same. On July 14, 2000, Officers Shawn Mercer, Chris Heath and Lance Dunn went to Stapleton’s home and arrested McKinnie. At that time, Dunn and Heath advised McKinnie of his rights.

LThe following day, Mercer amended the booking charge to aggravated rape and informed McKinnie about the change in the charge and the penalties he faced. Mercer again advised McKinnie of his rights by using a rights waiver form. Lieutenant Jimmy Brooks was also present. Mercer and Brooks testified that Mercer read the form to McKinnie who acknowledged his understanding and signed at the bottom. Afterwards, both officers recalled that McKinnie admitted to touching C.L.’s genitals and to placing his fingers inside her vagina. Brooks exited the room to get a cassette tape to record the statements. While he was gone, McKinnie decided he didn’t want to talk anymore, but stated that he would talk with Mercer later. Mercer informed McKinnie that victim’s assistance coordinator and DA investigator, Lisa Desha “Sha” McGowan, would later come to talk with him. Brooks and Mercer testified that at no time during the interview did McKinnie ask for a lawyer; nor was he threatened, coerced or promised anything in exchange for the statement.

On July 17, 200Ó, McKinnie was brought before the court for the purpose of appointment of counsel in accordance with La.C.Cr.P. art. 230.1. On that date, McKinnie signed a document indicating that he desired to hire his own counsel. The document informed McKinnie of the charges against him as well as his right to counsel. On July 21, 2000, McKinnie submitted a second form indicating his need for appointed counsel.

Sha McGowan testified that on July 19, 2000, Officer Mercer informed her that he had arrested McKinnie for aggravated rape. McGowan Instated that Mercer indicated that McKinnie wanted to talk and that he had been advised of his rights.

McGowan took Richard Thomas, an investigator with the DA’s office, with her to the interview. Both Thomas and .McGowan remembered that McGowan asked McKinnie if he wanted to talk. He agreed. At his request, McGowan showed McKin-nie the charge and penalty he was facing. McGowan testified that she asked McKin-nie a second time if he wanted to talk. McKinnie again said yes.

McKinnie related to the officers that the incident occurred at his mother’s house on December 15, 1998, the date he was released from the state correctional center. Thomas recalled that McKinnie remembered the exact date because it was his eighteenth birthday. McKinnie recounted three versions of the December 15 event for the officers. In his third version of this perverted interaction with the child, McKinnie admitted, (i) inserting his finger into the child’s vagina; (ii) rubbing his erection on her; (iii) inserting his penis about an inch into her; (iv) going back and forth, in and out, for “about five minutes;” and (v) withdrawing before ejaculation.

Thomas failed to take a tape recorder into the interview because he had no idea it was going to turn into a confession. Nevertheless, McGowan took handwritten notes of McKinnie’s statements. Copies of those notes were admitted into evidence at the state’s request. McGowan did not advise McKinnie of his rights when she interviewed him on that date. She stated that she did not threaten, make any promises or force McKinnie to make the confession. Thomas agreed that the statement was free and voluntary. 111 McGowan testified that during the interview McKinnie never asked for an attorney.

At trial, McKinnie disputed that he was advised of his rights upon his July 14, 2000 arrest and insisted that Mercer forced him to sign the waiver of rights form on July 15, 2001. He claimed that he never indicated a desire to speak further with Mercer or with the investigators. McKinnie testified that when he was interviewed by McGowan, there was a tape recorder and video camera in the room. He stated that McGowan did not take any notes of his statements and threatened him with the death penalty if he did not cooperate. McKinnie denied raping the victim or making any of the statements to Thomas and McGowan. He claimed that he did not know that the charges against him had been upgraded to aggravated rape prior to his interview with McGowan.

We first note that McKinnie failed to raise or argue his alleged invocation of silence as a ground for the motion to suppress the confession prior to trial. On these grounds, he is precluded from first raising this issue on appeal. La. C. Cr. P. art. 703; State v. Frost, 97-1771 (La.12/1/98), 727 So.2d 417, U.S. cert. denied, 528 U.S. 831, 120 S.Ct. 87, 145 L.Ed.2d 74 (1999), citing State v. Serrato, 424 So.2d 214 (La.1982). Nevertheless, while McKinnie characterized his decision to stop talking with Mercer on July 15 as an invocation of his right to silence, the officer stated that McKinnie indicated a desire to continue talking at a later date. Additionally, both McGowan and Thomas testified that McKinnie twice indicated a willingness to speak to them on July 19, 2000. Such equivocal | ^actions by McKin-nie clearly led officers to believe that he desired to continue to speak to police about the crime and are insufficient to qualify as an invocation of his right to silence.

Nor can we find the lack of Miranda warnings immediately before the July 19 statement fatal to the admissibility of the confession. When a suspect has been informed of and has waived his Miranda rights during initial questioning by the police, those rights need not be repeated before every subsequent interrogation unless the evidence shows a significant break in the interrogation process, such as a request for the assistance of counsel, or police coercion. State v. Johnson, 595 So.2d 789, 794 (La.App. 2d Cir. 1992). There is no requirement that Miranda warnings be given or repeated every time a suspect is questioned, absent a showing of coercion on the part of the police. State v. Moseley, 587 So.2d 46, 50 (La.App. 2d Cir.1991), writ denied, 589 So.2d 1066 (La.1991). McKinnie does not contend on appeal that he invoked his right to counsel during any of the questioning sessions. Rather, McKinnie claims only that his confession was induced by McGowan’s promises of leniency.

At both the hearing and the trial, McGowan and Thomas each indicated that no such promises were made at the time of the statement. The trial court obviously accepted the officers’ testimony despite McKinnie’s contrary claims. Such credibility determinations are well within the province of the trial court and will not be disturbed on appeal.

In this case, ample evidence exists in the record to show that McKinnie was verbally advised of his Miranda rights twice. He also signed |13a form waiving those rights. He never asked to speak to an attorney. With no showing of any evidence of coercion, nor a request from McKinnie to speak to an attorney, we cannot say that the four-day gap between McKinnie’s confession and his advice of rights rendered the confession inadmissible. Sufficient reliable evidence exists to support the trial court’s ruling that the state proved the voluntariness of McKin-nie’s July 19 confession beyond a reasonable doubt.

Conclusion

For the reasons set forth above, we affirm McKinnie’s conviction and sentence.

AFFIRMED.

      . The record shows that C.L. was four years ten months old when the opportunity for the offense first occurred, six years old when she first told her mother about it and eight at the time of trial.

      . By Acts 2001, No. 301, § 1, rape was redefined to include oral sexual intercourse.


text:
    John WEEKS, Plaintiff-Appellant, v. ANGELO IAFRATE CONSTRUCTION CO., Defendant-Appellee.
    No. 37,255-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Alex S. Lyons, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner by Walter S. Salley, Shreveport, for Appel-lee.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   h CARAWAY, J.

In this worker’s compensation action, the employee appeals that portion of the judgment which denied his claim for indemnity benefits, psychological treatment and certain medical expenses arising from a job-related injury. The workers’ compensation judge (WCJ) found that the employee’s minor on-the-job accident did not physically disable him and that his claim for mental injury did not require further psychiatric evaluation. Finding no error in these rulings, we affirm.

Facts

John Weeks worked as a carpenter’s apprentice for Angelo Iafrate Construction Co. On October 16, 2000, he hit his left shin with a sledge hammer while trying to remove a concrete form with a pry bar. Weeks described the resulting wound as a broken spot of skin resembling a dime. A paramedic at the job site cleaned and bandaged the wound and sent Weeks back to work. Weeks worked for the next two days, but continued to complain that the injury hurt.

Weeks was referred to a physician for medical treatment and diagnosed with a contusion and abrasion of the left lower leg. Upon the doctor’s recommendation, Weeks began performing a sedentary job at his old rate of pay. In his follow-up doctor visits over the next two weeks, Weeks claimed that his leg was the same and that he had an allergic reaction to the antibiotics prescribed to him. The medical records of these visits | ¡.indicate that Weeks made a few nonsensical statements in the exam room. The doctors maintained orders for antibiotics and sedentary work.

On October 27, 2000, Dr. James Dossey released Weeks for normal work but noted possible emotional or psychological problems based upon the inappropriate and inconsistent behavior exhibited by Weeks during his examination. Weeks returned to the job stating that he was unable to work despite the medical release. Iafrate fired him at that time.

Weeks chose to see an orthopedist, Dr. James Finley, on October 30, 2000 claiming that his condition had worsened. Dr. Finley saw no evidence of a bone fracture, but suspected that Weeks had a bone bruise and an underlying nondisplaced tibia fracture. Dr. Finley fitted Weeks with a short leg walking cast. Upon removal of the cast a week later, Weeks reported increased pain in his leg, although further x-rays and a whole body scan revealed no abnormality relating to the leg. Weeks saw Dr. Finley until April of 2001, but further testing during that time continued to show no physical cause for the leg pain.

In July and August of 2001, Weeks visited two more orthopedic surgeons, Dr. Gordon Mead and Dr. Dale Boersma, with complaints of numbness and pain in the left leg. Neither physician found any objective evidence to support the complaints. Dr. Mead suggested that Weeks’s complaints were psychological in origin. At his final visit with Dr. Mead in January of 2002, Weeks reported feeling better after removing with a razor blade a small piece of metal beneath the skin in his left leg. Dr. Mead made Uno further recommendation for a psychological evaluation and recommended that Weeks return to any physical activity or work he desired.

On March 2, 2001, Weeks filed a disputed claim for compensation. At trial, Weeks claimed his entitlement to indemnity benefits, psychological treatment, medical expenses relating to the accident and penalties and attorney fees. After hearing all of the evidence, the WCJ signed a judgment awarding Weeks all of his requested medical expenses, with the exception of those related to the April 10, 2001 MRI of his back, and denying his claim for indemnity benefits, psychological treatment and penalties and attorney fees. After the WCJ denied his motion for new trial, Weeks appealed.

Indemnity Benefits/Physical Injury

On appeal, Weeks contends that he is entitled to temporary total disability (TTD) benefits through July 2, 2001 and supplemental earning benefits (SEB) thereafter.

Temporary total disability benefits shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain notwithstanding the location or availability of any such employment or self-employment. La. R.S. 23:1221(l)(c).

14A claimant is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in the inability to earn 90% or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). The claimant bears the initial burden of proving, by a preponderance of the evidence, that the injury resulted in the inability to earn that amount, under the facts and circumstances of the case. Freeman v. Poulan/Weed, Eater, 93-1530 (La.1/14/94), 630 So.2d 733. If the claimant meets this burden, the burden shifts to the employer to prove that the claimant is physically able to perform a certain job and that the job was offered to the claimant, or that the job was available to her within her or the employer’s geographic region. R.S. 23:1221(3)(c)(i); Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. If the employer satisfied that burden, then the claimant must show, by clear and convincing evidence unaided by any presumption of disability, that she is unable to perform the employment offered or available, solely as a result of substantial pain. R.S. 23:1221(3)(c)(ii); Payne v. Lawn Lourd Lawn Service, 35,491 (La.App. 2 Cir. 12/5/01), 803 So.2d 321.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161; Banks, supra. In applying the manifest error-elearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. If the factfinder’s findings are reasonable in light of the record reviewed in its | sentirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Seal, supra.

In this case, the medical records show that in Dr. Dossey’s medical opinion, Weeks’s injury had healed enough to return to work without restriction as of October 27, 2000. Likewise, Drs. Mead and Boersma could find no objective evidence to support the claims of pain and indicated that he should be able to work. The only contrary medical- opinion was that of Dr. Finley, who concluded that Weeks would not be able to work at his previous job on April 25, 2001. Despite this contrary medical opinion, however, repeated x-rays, a whole body bone scan, and a nerve conduction test conducted by Dr. Finley revealed no objective symptoms for Weeks’s complaints. While the depositions of Drs. Dossey and Mead are in the record, only the medical records of Dr. Finley were presented by Weeks.

Clearly, the record before us containssubstantial medical evidence which fails to bear out Weeks’s continued complaints of physical pain. Therefore, the WCJ’s choice of medical opinions, concluding that Weeks was able to return to work without restriction as of October 27, 2000, is a permissible view of the evidence and not clearly wrong. On these grounds, we find no error in the determination that Weeks failed to prove his claims for temporary total or supplemental earnings benefits.

Mental Injury

Weeks also contends that the WCJ erred in concluding that Weeks failed to prove his psychological condition was related to the accident and, | fin the alternative, in failing to order a psychological evaluation of Weeks.

In order to recover benefits under Louisiana Worker’s Compensation Law, an employee must establish that he received a personal injury by accident arising out of and in the course and scope of his employment. La. R.S. 23:1031(A). Where a mental injury or illness develops secondary to a physical injury sustained in a work-related accident, an employee is entitled to compensation benefits for any disability resulting from the mental injury and to reimbursement for mental treatment medical expenses. Charles v. South Central Industries, 96-0883 (La.11/25/96), 683 So.2d 706; Traweek v. City of West Monroe, 30,571 (La.App.2d Cir.5/13/98), 713 So.2d 655, writ denied, 98-1936 (La.11/6/98), 727 So.2d 449. Nevertheless, reviewing courts analyze claimed mental disability with utmost caution in view of the nebulous characteristics of mental conditions and the possibility of symptoms being easily feigned. Traweek, supra.

In order to obtain compensation benefits for a mental injury caused by a physical injury, (1) the claimant must prove by clear and convincing evidence that the physical injury caused the mental injury, (2) the mental injury must be diagnosed by a licensed psychiatrist or psychologist, and (3) the diagnosis must meet the most current criteria established by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. La. R.S. 23:1021(7)(c), (d); Traweek, supra. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Id.

|7The evidence relating to mental injury in this case included the reports and deposition testimony of Drs. Dossey and Mead. Dossey reported that at his October 2000 doctor visits, Weeks behaved strangely and claimed to have had an allergic reaction to his antibiotics which included hallucinations and the inability to catch his breath. In his medical report of October 27, 2000, Dr. Dossey mentioned the possibility of mental problems. In his deposition, Dr. Dossey explained that he also indicated the possibility of a psychiatric referral to establish Weeks’s fitness for the workplace. He was not of the opinion that the psychiatric evaluation would be work-related because he was not aware of any incident that had caused psychological harm to Weeks. He offered no opinion on whether Weeks was a malingerer or had a psychological problem.

Because of his inability to find any objective evidence to support Weeks’s complaints of pain, Dr. Mead also suggested a psychiatric evaluation after his initial visit with Weeks. Mead’s report indicated the possibility that Weeks suffered from conversion hysteria or was a malingerer. In his deposition, Dr. Mead stated that Weeks refused a psychological evaluation. Further, after his second visit with Weeks, even though Weeks had performed “surgery” on himself by removing the metal shard, Dr. Mead did not make an additional recommendation for a psychological evaluation because of Weeks’s earlier refusal and the fact that he seemed to be doing better. Dr. Mead admitted that Weeks’s use of the [ Rrazor blade to excise the nodule signaled a possible psychiatric problem. The existence of the nodule, however, was not shown to be related to Weeks’s sledge hammer injury. In any event, Dr. Mead deferred the question of whether Weeks’s injury could have triggered psychological problems to experts in psychology.

Weeks also testified at trial. He stated that during the two-week period after his injury, the pain got worse and his leg did not function properly. He claimed that the medication the doctors gave him made him “nuts” and attributed his odd behavior during his doctor visits to the combination of antibiotics and painkillers. By the time the doctors released him to go back to work, he could barely walk. Weeks admitted that when he refused to go back to work and got fired, he was angry and told General Motors employees that he “knew what a can of gasoline was.” At trial, two GM employees confirmed that when he was fired, Weeks made statements about gasoline and burning everybody up. Weeks attributed this behavior to his anger with the physicians and problems with the prescribed medication.

Weeks testified that his leg continued to “hurt real bad” until the time he saw Dr. Finley. Weeks testified that he stopped seeing Dr. Finley for a time until his personal medical insurance paid his overdue medical bills. During the months he saw Dr. Finley, his leg got worse and the nodule appeared in his leg. At that time, his leg “turned in.” He saw Dr. Boersma because of the nodule and because Dr. Mead could find nothing wrong with him. When Dr. Boersma also found no objective evidence of physical injury, Weeks removed the nodule himself with a razor blade. He claimed |9to do “pretty good” after removing the nodule. Two weeks later, he began a job as a car mechanic which lasted two months. The only other employment Weeks performed after he left employment with Iafrate was another short-term job as a car mechanic and one house painting job. He stated that he experienced temporary improvement after his surgery, but his symptoms gradually increased.

Based upon this evidence, we can find no error in the trial court’s determination that Weeks failed to carry his burden of establishing that his alleged mental injury was caused by his work-related physical injury. Weeks failed to present any' psychiatric testimony to substantiate his claim of mental injury. It was only Weeks’s treating physicians in other specialties who suggested further psychiatric or psychological testing as a possible treatment. Neither doctor made a DSM diagnosis as required by La. R.S. 23:1021. Moreover, because these physicians do not have specialties in psychiatry or psychology as required by La. R.S. 23:1021(7)(d), their concerns did not establish by clear and convincing evidence mental injury in this case. Charles, supra at 710. On these grounds, Weeks’s argument lacks merit.

Alternatively, Weeks contends that the trial court erred in failing to order his employer to pay for a psychological evaluation. Weeks testified that he would now submit to a psychological evaluation. He stated that he had sought such treatment on his own at LSU Medical Center but was denied an appointment without a referral or court order. Specifically, he argues that the evaluation should be provided to him because his inability; to | inpay for such examination prejudices his ability to prove his case.

The employee is given the right to select one treating physician in any field or spe-ciality. After his initial choice, prior consent from the employer is required to change the treating physician within that same field or speciality. However, the employee is not required to obtain approval for change to a treating physician in another field or speciality. La. R.S. 23:1121(B).

From our review of the procedural history of this case, and the provisions concerning medical and physician services under the Act and within the Office of Workers’ Compensation administrative rules, we find that in this instance it was incumbent upon Weeks to have raised the issue of a psychiatric evaluation prior to trial. At trial, Weeks had the burden of proving either physical injury and disability or mental injury secondary to his physical injury. While attempting to prove the physical injury by a doctor of his own choosing, Dr. Finley, he obtained no medical evaluation for his alleged psychiatric condition in advance of trial. Instead, he asserted as a fail-back position only that he should be provided psychological treatment by the employer. Although permitted by the WCJ, as shown by the pre-trial statement of issues, such piecemeal approach to the trial of Weeks’s claims is not the optimal procedure. Nevertheless, in the course of the trial, the WCJ judged the credibility of Weeks’s assertions of psychological injury and denied his request for psychological testing. From our review of the above evidence, Weeks’s admission that his odd behavior resulted from his medication, and the lack of any medical testimony relating | nhis mental state to his work-related injury, convinces us that no abuse of the WCJ’s discretion occurred.

Medical Expense Reimbursement

In his final argument, Weeks claims that the trial court erred in failing to award the medical expenses attributed to the April 10, 2001 MRI of his back.

An employer is obligated to furnish all necessary medical expenses related to a work injury. La. R.S. 23:1203. The plaintiff must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. Cleveland v. Delhi Guest Home, 29,506 (La.App.2d. Cir 5/7/97), 694 So.2d 607; Derouselle v. Vince Enterprises, Inc., 02-0945 (La.App. 3d Cir.2/5/03), 838 So.2d 866. The issues of necessity of treatment and causal relationship are questions of fact. Accordingly, the applicable standard of review regarding the hearing officer’s findings is manifest error-clearly wrong. Derouselle, supra.

The medical records from Dr. Finley’s office reveal that an MRI of Weeks’s lumbar spine was completed on April 10, 2001 at Lincoln General Hospital. Although the WCJ awarded Weeks all of the other medical expenses related to his visits with Dr. Finley, she denied reimbursement for this test. We can discern no manifest error in this determination. While the MRI occurred while Dr. Finley treated Weeks for leg pain, the purpose of the test was to evaluate Weeks’s lower back. Nothing in the record before us links the MRI to the leg injury. Accordingly, we find that the WCJ | ^reasonably concluded that this test was unrelated to the job-related injury at issue.

Conclusion

The judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to Weeks.

AFFIRMED.

      . At the time of his accident, Weeks was working at the General Motors Track Assembly Plant in Shreveport, LA, and by agreement between Angelo Iafrate Construction and General Motors, General Motors is considered the statutory employer responsible for this claim.

      . The bone scan and an April 2001 MRI revealed that Weeks suffered from significant lumbar scoliosis.

      . Conversion hysteria or reaction is a psychological process in which the patient defends himself against gainful feelings by developing physical symptoms. In other words, the patient unconsciously "converts” a psychological problem into a physical one. Gremillion v. Babst Services, Inc., 418 So.2d 637 (La.1982), fin. 3 at 641.


author: JjMOORE, J.

text:
    STATE of Louisiana, Appellee, v. Leroy GIPSON, Jr., Appellant.
    No. 37,132-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Wilson Rambo, Paula Corley Marx, Lafayette, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, William J. Edwards, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   JjMOORE, J.

Leroy Gibson, Jr. (“Gipson”) was charged by bill of information with armed robbery. Gipson proceeded to trial after which a 12-member jury found him guilty of armed robbery in violation of R.S. 14:64, and following the filing of a habitual offender bill, he was adjudicated a second felony offender. The District Court then imposed a sentence of 75 years at hard labor without benefits, to be served consecutive with any parole or other sentence being served. Gibson now appeals, asserting the following assignments of error:

1. That the evidence presented at trial was legally insufficient to sustain Gibson’s conviction;
2. That the trial court erred in denying defense counsel’s challenge for cause of juror Richard Davenport;
3. That the trial court erred by imposing an excessive sentence on Gibson;
4. That the trial court erred in allowing John T. Adams to testify as an expert in the science of fingerprint identification; and,
5. That the trial court erred in admitting documents at the multiple-bill sentencing hearing, as the admissions violated La. C.E. art. 803 and R.S. 15:529.1 F and failed to prove that Gibson was a second felony offender.

We affirm the conviction and sentence.

Factual Background

On January 27, 1999, at approximately 8:50 p.m., James Whorton and his wife, Gloria, owners of Britt’s Grocery in Shreveport, were working in their store when two black males walked into the store wearing bandanas over their faces, sunglasses, and baseball caps as a disguise, Both men were carrying handguns. No one else was in the store at that time. The principal assailant, the shorter of the two robbers, approached the front counter, | ¡¡where Mr. Whorton was standing, and demanded money. Mr. Whorton went to one of his registers and took out $30.00 and surrendered it to the robber. The robber then demanded “the rest of the money,” jumped over the counter and pressed the handgun against Mr. Whor-ton’s chest/rib area. Mr. Whorton then advised the robber that there was more money in his back room. The robber commanded Mr. Whorton to get the money. Both men went to the back room. Once inside the room Whorton quickly grabbed his 12-gauge shotgun, turned and shot the robber who was walking behind him. The robber ran and jumped back over the counter and fell to the floor. Mr. Whor-ton then shot the other perpetrator who was standing next to the doors and then fired a final blast at the robber lying on the floor. Both robbers then fled the store, leaving behind a handgun, a pair of sunglasses, a hat, and a trail of blood. Mrs. Whorton called police and an investigation ensued. Shreveport Police Officer McConnell was dispatched to the store to investigate the scene and then to LSUS Medical Center to see if the wounded robbers had sought medical attention.

An hour and a half after the robbery, Shreveport Police Detective Porter and other officers were dispatched to a house located at 1651 Woodrow Street in Shreveport, which is a mile or two from the robbery scene. Upon arrival, Detective Porter and the other officers found one black male, identified as Leroy Gipson, Jr., sitting on a couch and suffering from shotgun wounds to his left shoulder and right thigh area. In the kitchen, officers discovered another black male, identified as James Wilson (“Wilson”), who was propped up against the refrigerator sitting in a pool of l3his own blood, suffering from a shotgun wound to his left arm. The location and number of gunshot wounds to Wilson and Gipson were consistent with Mr. Whorton’s account of his shotgun discharges. Also, Detective Porter testified that he retrieved a box of .38 caliber bullets from the home where Wilson and Gip-son were found; according to Mrs. Whor-ton and Wilson, Gipson used a .38 caliber handgun in the robbery.

Both men were taken to LSU hospital where they received treatment. Wilson’s arm had to be amputated. Gipson and Wilson were charged with armed robbery. Through a plea and sentence agreement, Wilson pled guilty to the armed robbery charge and received a sentence of eight years at hard labor without the benefit of parole, probation, or suspension of sentence. In exchange for the plea agreement, Wilson testified at Gipson’s trial that he and Gipson were the armed robbers in the instant case and that Gipson was the assailant who held Mr. Whorton at gunpoint, took the $30.00 from Mr. Whorton and followed him to the back room of the store.

Mr. Whorton testified that two black males, one noticeably shorter than the other, entered his store that night and robbed him at gunpoint; the shorter robber was the one who pulled a gun on him and took the $30.00 from the register drawer. Mr. Whorton further testified that the shorter of the two robbers followed him to the back room where he retrieved his shotgun and shot the shorter robber two times. Lastly, Mr. Whorton testified that he also shot the taller robber before he could get away.

| ¿Discussion: Sufficiency of the Evidence

To prove Gipson guilty of armed robbery, the state had to prove beyond a reasonable doubt that Gipson took something of value belonging to another from the person of another or in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64.

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 upon proof sufficient for any trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime proven beyond a reasonable doubt. See also, State v. Bosley, 29,253 (La.App. 2 Cir. 4/02/97), 691 So.2d 347, unit denied, 97-1203 (La.10/17/97), 701 So.3d 1333.

The reviewing court must defer to the trier of fact’s rational credibility calls, evidence weighing and inference drawing. State v. Mussall, 523 So.2d 1305 (La.1988). It is not the function of the court to assess credibility or re-weigh evidence. State v. Marcantel, 00-1629 (La.4/03/02), 815 So.2d 50. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Jackson, 33,837 (La.App. 2 Cir. 9/27/00), 768 So.2d 767, unit denied, 00-3078 (La.11/02/01), 800 So.2d 864.

| /This court’s authority to review questions of fact in a criminal case is limited to the sufflciency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson standard requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,-959 (La.App. 2 Cir. 4/12/96), 677 So.2d 1008, writ denied, 96-1807- (La.2/21/97), 688 So.2d 520. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App. 2 Cir. 4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12.

Through the testimony of Mr. and Mrs. Whorton, the state showed that two men robbed them at Britt’s Grocery and one of the robbers was shorter than the other one. Mr. Whorton testified that the shorter robber was |ficarrying a .38 special handgun when he entered the store, approached him and demanded money. Mr. Whorton testified that the shorter robber jumped over the counter, put the gun against his ribs, and followed him to the back room to retrieve more money. The record indicates that Gipson is about 5'7" tall, while Wilson is about 5'11" tall, Mr. Whorton also testified that he fired two close-range shotgun blasts at the shorter robber, who dropped his handgun and left a trail of blood, and one medium-range blast at the taller robber. Ninety minutes later, police found Gipson and Wilson at Gipson’s house; both men were suffering from shotgun wounds consistent with Mr. Whorton’s testimony. Police also recovered, from Gipson’s house and shoulder, buckshot pellets consistent with Mr. Whor-ton’s shotgun and a box of .38 ammo for the handgun left behind by the shorter robber. This direct testimony and physical evidence is more than sufficient to prove, beyond a reasonable doubt, that Gipson committed the armed robbery at Britt’s Grocery Store.

Moreover, Gipson’s codefendant, Wilson, positively identified him as the other perpetrator of the robbery. It is true that Wilson gave contradictory statements, initially admitting that he himself held the gun on Mr. Whorton, but later identifying Gipson as the gunman. It is also true that Wilson received considerable leniency, through the plea and sentence agreement, from the state. However, the jury was fully aware of these facts and evidently accepted Wilson’s trial testimony. In view of the strong physical evidence, we cannot say the jury abused its discretion in this regard. With Wilson’s testimony, the state negated any reasonable |7probability of misidentification.

Finally, the jury obviously rejected the testimony of Gipson’s mother, Rosie Fisher, and his prison cell-mate, Alan Ortega, who claimed that Gipson sustained his injuries in some other incident. On this record, we see no abuse of the jury’s discretion. This assignment of error lacks merit.

Challenge For Cause

Gipson next argues that during voir dire, prospective juror Richard Davenport (“Davenport”) displayed an inability or refusal to accept and apply the privilege against self-incrimination at a trial. Gip-son asserts that defense counsel was forced to use a peremptory challenge to excuse Davenport from the jury pool. He contends that since defense counsel exhausted all peremptory challenges during jury selection, prejudice is presumed.

The state argues that Davenport stated in voir dire that he would weigh the evidence and not hold against the defendant the fact that he would not testify. The state further contends that Davenport recognized that Gipson had a right to not testify. The state argues that Davenport displayed a willingness to decide the case impartially according to the law and the evidence. The state concludes its argument asserting that the trial court’s decision denying defendant’s challenge of Davenport for cause was correct.

The trial judge is vested with broad discretion in ruling on challenges for cause, and his ruling will be reversed only when a review of the entire voir dire reveals the judge abused his discretion. State v. Cross, 93-1189 (La.1995), 658 So.2d 683, citing, State v. Robertson, 630 So.2d at 1278 (La.1994); State v. Ross, 623 So.2d 643, 644 (La.1993).

To prove there has been reversible error warranting reversal of the conviction and sentence, defendant need only show (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. See, Cross, supra; Robertson, supra; Ross, supra; State v. Comeaux, 514 So.2d 84, 93 (La.1987).

Louisiana Code of Criminal Procedure article 797(2) states in pertinent part that “an opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.”

A challenge for cause is often unwarranted where a prospective juror at first expresses an opinion prejudicial to the defendant, but upon further inquiry demonstrates the ability and willingness to decide the case impartially by listening to the evidence and following the trial court’s instructions. See, State v. Eastin 419 So.2d 933 (La.1982); State v. Heard, 408 So.2d 1247 (La.1982); State v. Claiborne, 397 So.2d 486 (La.1981); State v. Ellis, 28,282, (La.App. 2 Cir. 6/26/96), 677 So.2d 617, writ denied, 688 So.2d 521 (La.1997); State v. Wiley, 614 So.2d 862 (La.App. 2 Cir.1993).

Davenport repeatedly stated that he would weigh the evidence and trusted he would not give any negative weight to the fact that Gipson might exercise his right against testifying as reflected in pages 394-395 of the trial court record. We find that Davenport’s responses to defense counsel’s 19inquiries did not rise to a level of partiality that would have a prejudicial effect on Gipson’s defense. Upon further inquiry by defense counsel, Davenport demonstrated “the ability and willingness to decide the case impartially by listening to the evidence and following the trial court’s instructions. Therefore, a challenge for cause is unwarranted.” Heard, supra; Ellis, supra; Claiborne, supra.

Specifically, Gipson argues that during voir dire Davenport showed that he would not accept the law as given to him by the court regarding Gipson’s right not to testify in his own defense, which, it is alleged, would give rise to a challenge for cause. La.C.Cr.P. art. 797(4) states as grounds for a challenge for cause: “The juror will not accept the law as given to him by the court.” As reflected in the questioning by Gipson’s defense counsel, Davenport stated that he “hoped” he would be able to follow the law, weigh the evidence and put aside his personal belief that Gipson should take the stand if he is innocent.

Similarly in Ellis, supra, a prospective juror stated she would “wonder” about defendant’s failure to testify, but that her “wondering” would “not really” enter into her decision. This court found that her statements did not amount to such a refusal to apply the law as to subvert the trial court’s ruling which denied the challenge. Ellis at 624. Likewise, in State v. Hattaway, 28,060 (La.App. 2 Cir. 5/8/96), 674 So.2d 380, unit denied, 685 So.2d 141 (La.1997), a prospective juror stated she would “like” to hear Hattaway’s testimony, yet she consistently stated that she would not hold Hattaway’s right not to testify against him and that she | munderstood and accepted his right not to testify. Hattaway at 385. This court found no error in the trial court’s refusal to sustain a challenge for cause as to this potential juror. Id; cf., State v. Isgitt, (La.App. 3 Cir.1991), 590 So.2d 763.

The record is devoid of any indication that Mr. Davenport was unwilling to apply the correct law as the court advised him and the trial court did not abuse its discretion in denying his challenge for cause. This assignment is without merit,

jExcessive Sentence

Next, Gipson argues that although proportionality in sentencing of co-defendants is not required as a matter of law, the difference in the trial court’s sentencing of Wilson (8 years) and him (75 years) should offend a sense of fairness and constitutes manifest error by the court. Gip-son further contends that there is no way the court could determine who was the primary actor in the robbery and therefore the disparity of treatment coupled with the uncertainty of the actual facts and manner in which the offense was accomplished makes the defendant’s sentence excessive.

The state argues that Gipson’s previous criminal history was sufficient to justify the sentence. The state further contends that Gipson had been convicted twice before for the crime of armed robbery, and arrested for similar crimes in the past, but the charges were not pursued. The state asserts that the trial court particularized the sentence to Gipson.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show luthat the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. See, State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. See, State v. Lanclos, 419 So.2d 475 (La.1982).

The second inquiry requires an examination of the circumstances of the case and the background of the defendant. A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. See, State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. See, State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Richardson, 545 So.2d 714 (La.App. 2d Cir.1989).

There is no requirement that co-defendants be treated equally by the sentencing judge. See, State v. Rogers, 405 So.2d 829 (La.1981); State v. Taylor, 485 So.2d 117 (La.App. 2d Cir.1986). The disparity of sentences between co-defendants is only a factor to be considered along with all other [^appropriate considerations in evaluating a contention that a sentence is excessive. See, State v. Quimby, 419 So.2d 951 (La.1982); State v. Jackson, 30,473 (La.App.2d Cir.5/13/98), 714 So.2d 87.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, the reviewing court will not set aside a sentence as excessive. See, State v. Square, 433 So.2d 104 (La.1983).

At the time Gipson committed this offense, armed robbery carried a sentence of 5 to 99 years of imprisonment without the benefit of parole, probation or suspension of sentence. La. R.S. 14:64 B. In this instance, Gipson was adjudicated as a second felony habitual offender and consequently, his enhancement exposed him to a sentence range of 49/6 to 198 years. Following consideration of La.C.Cr.P. art. 894.1, the trial court sentenced Gipson to 75 years at hard labor without the benefit of parole, probation, or suspension of sentence. Prior to imposition of sentence, the trial judge reviewed a pre-sentence investigation report prepared by the Department of Corrections. This report, referenced during the sentencing hearing, shows that Gipson was classified as a third felony offender with two previous, multiple-count armed robbery convictions. The most recent conviction preceding the instant charge, and which formed the predicate for the habitual offender adjudication, was entered in 1976, when Gipson was sentenced to three concurrent terms of 33 years each, consecutive to any other sentence.

| i3Puring its consideration of La.C.Cr.P. art. 894.1, the trial court found that “the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution and that a lesser sentence than jail would deprecate the seriousness of the offense.” The trial court also found aggravating circumstances such as the fact that Gipson used a dangerous weapon during the commission of the crime, he used threats of or actual violence during the commission of the crime and he made threats on the lives of the victims in the instant case.

In light of the trial court’s considerations and reasoning, the 75-year sentence does not appear to be an abuse of discretion by the trial court, neither does it shock the conscience of this court, given Gipson’s criminal history. We find the record supports the trial court’s sentence of Gipson and this assignment is therefore without merit.

Admissibility of Evidence

Gipson argues that state’s exhibit 4(S-4), an arrest sheet, and state’s exhibit 7(S-7), a computer printout of the records of the Department of Corrections, both relating to him, were erroneously admitted during the habitual offender hearing. Gip-son contends that exhibit S^4 is merely an arrest record and does not reference any convictions and exhibit S-7 is not an arrest record, but a computer screen printout. Gipson argues that the state failed to present testimony as to how the records were kept, and whether or not they could be manipulated, changed, or updated; therefore, exhibit S-7 should not have been introduced as evidence against him.

[ 14ParticuIarly, Gibson objected at the hearing to the introduction of the penitentiary packet and the documents found therein. The state contends that the items were admissible under State v. Hunt, 573 So.2d 585 (La.App. 2d Cir.1991).

Copies of the bill of information and judgment, certified as true copies of the originals by the deputy clerk of the district court, were also self-authenticating under La. C.E. arts. 902(1) (domestic public documents under seal) and 904, as well as under the prior evidence law. Hunt, supra. See also, State v. Rowell, 306 So.2d 668 (La.1975).

La. R.S. 15:457 provides, “a copy of a document, certified to by the officer who is the legal custodian of the same is equivalent to the original in authenticity.” Ro-well, supra.

Louisiana Revised Statute 15:459 provides,

Whenever, during the trial of any criminal case, either party may desire to offer in evidence any record, paper or document belonging to the files or records of the court in which the trial is proceeding, the presiding judge shall, at the request of such party, direct the clerk to produce such record, document or paper, in order that the same may be used in evidence; and it shall not be necessary for the clerk in any such case to make a copy of such record, document or paper.

Any records on file with the clerk of court, and otherwise admissible in a judicial proceeding, may be introduced into evidence in the form of originals or certified copies. It is unnecessary for the clerk or deputy clerk of court to personally appear and testify as to the authenticity of such records. Rowell, supra.

At trial the state introduced as exhibit S — 4, a certified copy of the photostatic copy of microfilm of an arrest record sheet. This sheet | ^contained Gipson’s name and address at the time of his arrest, the crime he was arrested for (armed robbery of the Norma Street Grocery in Shreveport), his driver’s license number, his date of birth, facts surrounding the robbery, witnesses’ names and addresses, and Gipson’s inked fingerprint. The state used this arrest sheet in addition to the bill of information to show that Gipson was arrested approximately four days after the robbery of Norma Street Grocery occurred and convicted of that robbery in 1976, in Caddo Parish. This was properly certified under R.S. 15:459 and relevant. Gipson’s reasoning as to why the arrest sheet should not have been admitted is merit-less.

The defendant’s argument that S-7 was erroneously admitted lacks merit, as well. Although the state improperly referred to their exhibit S-7 as the penitentiary packet, the trial court realized this error, and reasoned that because the documents were certified by the custodian of records, they were deemed authentic for the purposes of the hearing, and therefore admissible.

At trial, the state proved Gipson’s habitual offender status by competent evidence legally sufficient to support the habitual offender adjudication. This assignment is without merit.

Qualification of Expert

Lastly, Gipson urges as error that the state’s expert fingerprint witness, John Adams (“Adams”), was not certified in the science of fingerprint identification and thus should not have been allowed to qualify as an expert. Gipson asserts that there were other individuals in Adams’ office who are certified in fingerprint identification who could have been |1ficalled as an expert witness, but were not called by the state. Gipson further argues that because Adams has his work reviewed by his supervisors, he is unqualified to give an expert opinion independent of his supervisors.

The state argues that Adams worked in the identification department for 10 years and that his training was ongoing and constant. The state also notes that Adams had been accepted as an expert in the First Judicial District Court in seven prior trials. Furthermore, the state contends that Adams has reviewed thousands of fingerprints as part of his job and qualifies as an expert.

Before any witness can testify as an expert, his or her competence must be established to the satisfaction of the court. LSA-C.E. art. 702; State v. Kunzman, 31,976 (La.App.2d Cir.5/5/99), 741 So.2d 112; State v. Esteen, 02-1241 (La.App.5 Cir.4/29/03), 846 So.2d 167. Competence of an expert is a question of fact to be determined within the sound discretion of the trial judge and his rulings on the qualifications of experts will not be disturbed in the absence of manifest error, that is, unless they are clearly wrong. See, Kunzman, supra at 118, citing State v. Honeyman, 565 So.2d 961 (La.App. 2 Cir.1990).

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion. Kunzman, supra at 118. A combination of specialized training, work experience, and practical application of the expert’s knowledge can combine to demonstrate that a person is an expert. Kunzman, supra at 118, citing State v. Smith, 448 So.2d 778, 780 (La.App. 2d Cir.1984). A person may qualify as an expert 117based on experience alone. Kunzman, supra; State v. Smith, supra.

The trial court found that Adams had received basic and advanced training and education in the field of fingerprint identification, had worked in this field for 10 years, and had testified as an expert in seven previous proceedings in the First Judicial District Court. Adams testified that he has compared thousands of inked fingerprints in the course of his work. He explained that it is an office policy that confirmed fingerprint matches be reviewed by a co-worker in the office. According to his testimony, Adams’ conclusions on fingerprint matches, upon co-worker review, have never been incorrect.

From our review of the record, the trial court did not err in qualifying Adams as an expert in the science of fingerprint identification. This assignment is without merit.

Conclusion

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

CONVICTION AND SENTENCE AFFIRMED.