text:
    STATE of Louisiana v. David WOMMACK.
    No. 2004-KP-0326.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Wommack, David;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. CR452-979; to the Court of Appeal, Third Circuit, No. KW 03-01473.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Joseph GRECO, Jr.
    No. 2004-KP-0365.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re State of Louisiana;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 95-4415; to the Court of Appeal, Fourth Circuit, No. 2003-K-0709.

Denied.


text:
    STATE of Louisiana v. Vernon LEDET.
    No. 2004-KP-0442.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Ledet, Vernon;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 97-311; to the Court of Appeal, Fifth Circuit, No. 03-KH-1422.

Denied.


text:
    STATE of Louisiana v. Clayton BATISTE.
    No. 2004-KP-0467.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Batiste, Clayton;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. B, No. 94959; to the Court of Appeal, Third Circuit, No. KW 03-01766.

Denied.


text:
    STATE of Louisiana v. Tommy L. LINGEFELT, Sr.
    No. 2004-KO-0597.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Lingefelt, Tommy L. Sr.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Richland, 5th Judicial District Court Div. C, No. F2002-59A; to the Court of Appeal, Second Circuit, No. 38,038-KA.

Denied.


text:
    STATE of Louisiana v. Carol M. HUGHES.
    No. 2004-K-0663.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Hughes, Carol M.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. A, No. 62746; to the Court of Appeal, Third Circuit, No. 03-420.

Denied.


text:
    STATE of Louisiana v. Michael L. HARRIS.
    No. 2004-K-0675.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Harris, Michael L.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 00-50; to the Court of Appeal, Fifth Circuit, No. 03-KA-710.

Denied.


text:
    STATE of Louisiana v. Brandon STEVENSON.
    No. 2004-KO-0721.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Stevenson, Brandon;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 01-1062; to the Court of Appeal, Fifth Circuit, No. 03-KA-1146.

Denied.


text:
    STATE of Louisiana v. Anthony D. JEFFERSON.
    No. 2004-KO-0727.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Jefferson, Anthony D.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 02-3889; to the Court of Appeal, Fifth Circuit, No. 03-KA-820.

Denied.


text:
    STATE of Louisiana v. Tyronne HUNTER.
    No. 2004-KO-0737.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Hunter, Tyronne;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 413-800; to the Court of Appeal, Fourth Circuit, No. 2003-KA-1643.

Denied.


text:
    STATE of Louisiana v. Curley LYONS, Jr.
    No. 2004-K-0760.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Lyons, Curley Jr.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. F, No. 159,150; to the Court of Appeal, First Circuit, No. 2003 KA 1514.

Denied.


text:
    STATE of Louisiana v. Lionel WILLIAMS, Jr.
    No. 2004-K-0769.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Williams, Lionel Jr.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. E, No. 00-104; to the Court of Appeal, First Circuit, No. 2003 KA 1424.

Denied.


text:
    STATE of Louisiana v. Freddie Joe LOSTON.
    No. 2004-K-0792.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Loston, Freddie Joe;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. F, No. 156,751; to the Court of Appeal, First Circuit, No. 2003 KA 0977.

Denied.


text:
    STATE of Louisiana v. Brian SPRUILL.
    No. 2004-KO-0796.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Spruill, Brian;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. B, No. 62267; to the Court of Appeal, Third Circuit, No. 03-1085.

Denied.


text:
    STATE of Louisiana v. Nathaniel MITCHELL.
    No. 2004-KO-0797.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Mitchell, Nathaniel;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. B, No. 64,705; to the Court of Appeal, Second Circuit, No. 37,-916-KA.

Denied.


text:
    STATE of Louisiana v. Angela P. ODUM.
    No. 2004-KO-0843.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Odum, Angela P.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 430-577; to the Court of Appeal, Fourth Circuit, No. 2003-KA-1058.

Denied.


text:
    STATE of Louisiana v. Henry A. DYKES, Sr.
    No. 2004-K-0847.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Dykes, Henry A. Sr.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. H, No. 01-F-001558; to the Court of Appeal, Second Circuit, No. 38,092-KA.

Denied.


text:
    STATE of Louisiana v. Mingo JAVERY, III.
    No. 2004-KO-0849.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Javery, Mingo III;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 204619; to the Court of Appeal, First Circuit, No. 2003 KA 1587.

Denied.


text:
    STATE of Louisiana v. Barry Eugene DORTCH.
    No. 2004-KK-1315.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Dortch, Barry Eugene;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caldwell, 37th Judicial District Court Div. A, No. 66968; to the Court of Appeal, Second Circuit, No. 38,929-KW.

Denied.


text:
    STATE of Louisiana v. James MOSER.
    No. 2004-KK-1388.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Moser, James;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 01-5519; to the Court of Appeal, Fifth Circuit, No. 04-K-238.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Robert HOWZE, et al.
    No. 2004-CC-1722.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re LeMoine, Frank E., Judge; Kaplan City Court;—Other(s); Applying for Supervisory and/or Remedial Writs, Parish of Vermilion, City Court of Kaplan, No. CT-04-207; to the Court of Appeal, Third Circuit, No. CW 04-00696.

Denied.


text:
    STATE of Louisiana v. Murray WASCOM.
    No. 2004-KK-1921.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Wascom, Murray;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. E, No. 18,025; to the Court of Appeal, First Circuit, No. 2004 KW 0897.

Denied.


text:
    STATE of Louisiana v. Mark A. HAWKINS.
    No. 2004-KK-2188.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Hawkins, Mark A.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. B, No. 032312; to the Court of Appeal, First Circuit, No. 2004 KW 0992.

Denied.


text:
    STATE of Louisiana v. Mark Dion JARAMILLO.
    No. 2004-KK-2209.
    Supreme Court of Louisiana.
    Sept. 24, 2004.
   In re Jaramillo, Mark Dion;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 266,281; to the Court of Appeal, Third Circuit, No. KW 04-00869.

Denied. Untimely in the court of appeal.


author: 1 ,PER CURIAM.

text:
    FORUM FOR EQUALITY PAC, a Registered Louisiana Political Action Committee, Laurence E. Best, Jeanne M. Leblanc and William A. Schultz v. CITY OF NEW ORLEANS and the Honorable W. Fox McKeithen, in his Official Capacity as Secretary of State of Louisiana Only, and Not Individually.
    No. 2004-CA-1473.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 24, 2004.
    John D. Rawls, Regina O. Matthews, Martzell & Bickford, Kenneth Randall Evans, Evans & Clesi, PLC, New Orleans, Counsel for Plaintiffs/Appellees.
    J. Michael Johnson, Alliance Defense Fund, Shreveport, Counsel for Interve-nors, Heulette “CLO” Fontenot, State Senator, John J. Hainkel, Jr., State Senator, A.G. Crowe, State Representative, Steve J. Scalise, State Representative, Louisiana Family Forum, Louisiana Family Forum Action, and American Family Association of New Orleans.
    Charles C. Foti, Jr., Attorney General of Louisiana, Angie R. LaPlace, Assistant Attorney General of Louisiana, Roy A. Mon-grue, Jr., Assistant Attorney General, Thomas S. Halligan, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, Counsel for Defendant/Appellant, W. Fox McKeithen, in his Official Capacity as Secretary of State of Louisiana.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, Jr., Judge LEON A. CANNIZZARO, Jr. and Judge ROLAND L. BELSOME).
   1 ,PER CURIAM.

On August 18, 2004, the Supreme Court of Louisiana transferred the appeal of the Honorable W. Fox McKeithen (“McKeithen”), in his capacity as Louisiana’s Secretary of State, to this court for consideration of a judgment of the Civil District Court for the Parish of Orleans preliminarily enjoining the state from placing a proposed constitutional amendment on the ballot for 18 September 2004. The Supreme Court determined that it did not have appellate jurisdiction of the matter pursuant to La. Const, art. Y, § 5(D) because no law or ordinance had been declared unconstitutional; this court has appellate jurisdiction of the matter by virtue of La. Const, art. V, § 10(A). See Forum for Equality PAC v. City of New Orleans, 2004-2104 (La.8/17/04), 882 So.2d 543.

Since the trial court’s rendition of the judgment granting the writ of preliminary injunction on August 13, 2004, the trial court rendered a judgment on August 20, 2004, granting a writ of permanent injunction enjoining the state from placing the proposed amendment, Act 926 of the 2004 Regular Session of the Louisiana Legislature, on the ballot on September 18, 2004. The granting of a 1 ¿writ of permanent injunction moots the preliminary injunction. Armstrong v. Armstrong, 181 So.2d 876, 877 (La.App. 4th Cir.1966); Mount Gideon Baptist Church, Inc. v. Robinson, 2001-0749 (La.App. 1 Cir. 2/15/02), 812 So.2d 758, 762.

Accordingly, we dismiss the present appeal as moot.

APPEAL DISMISSED AS MOOT.

      . Act 926 provides:
      A JOINT RESOLUTION
      Proposing an amendment to the Constitution of Louisiana, to enact

        Article XII, Section 15, relative to marriage; to require that marriage in the state shall consist only of the union of one man and one woman; to provide that the legal incidents of marriage shall be conferred only upon such union; to prohibit the validation or recognition of the legal status of any union of unmarried individuals; to prohibit the recognition of a marriage contracted in another jurisdiction which is not the union of one man and one woman; to provide for submission of the proposed amendment to the electors and provide a ballot proposition; and to provide for related matters.
      Section 1. Be it resolved by the Legislature of Louisiana, two-thirds of the members elected to each house concurring, that there shall be submitted to the electors of the state of Louisiana, for their approval or rejection in the manner provided by law, a proposal to add Article XII, Section 15 of the Constitution of Louisiana, to read as follows:
      § 15. Defense of Marriage
      Section 15. Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman.
      Section 2. Be it further resolved that this proposed amendment shall be submitted to the electors of the state of Louisiana at the statewide election to be held on September 18, 2004.
      Section 3. Be it further resolved that on the official ballot to be used at said election there shall be printed a proposition, upon which the electors of the state shall be permitted to vote FOR or AGAINST, to amend the Constitution of Louisiana, which proposition shall read as follows:
      To provide that marriage in this state shall consist of the union of one man and one woman, that legal incidents of marriage shall not be conferred on a member of any union other than such union, and that the state shall not validate or recognize a legal status identical or substantially similar to that of marriage for unmarried individuals or any marriage contracted in any other jurisdiction which is not the union of one man and one woman. (Adds Article XIII, Section 15)


author: | .PATRICIA RIVET MURRAY, Judge.

text:
    CERTAIN UNDERWRITERS AT LLOYD’S, LONDON v. Amy M. WALLACE and Theresa Heckman.
    No. 2003-CA-2027.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 25, 2004.

      Caleb H. Didriksen, III, Diane R. Co-senza Rodney, K.E. Mintz, Didriksen Law Firm, P.L.C. New Orleans, LA, for Plaintiffs/Appellants.
    Christopher E. Lozes, Lozes & Ponder Mandeville, LA, for Defendants/Appellees (Amy Wallace and Allstate Insurance Company).
    John J. Broders, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, LA, for Defendants/Appellees (Theresa Heckman).
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   | .PATRICIA RIVET MURRAY, Judge.

Plaintiffs, Certain Underwriters at Lloyd’s, London [“Lloyd’s”] appeal the trial court’s judgment dismissing their suit against defendants, Amy Wallace, Theresa Heckman, and Allstate Insurance Company. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

On January 19,1999, a fire started in an apartment leased to Amy Wallace and Theresa Heckman by John Lewis, who, with his wife, owned the four-unit apartment building. The apartment building was insured by Lloyd’s, which paid the owners for their property damage. Lloyd’s, as subrogee of the Lewises, filed suit against Ms. Wallace, Ms. Heckman, and Allstate (Ms. Wallace’s insurer) alleging that the negligence of the lessees had caused the fire.

The matter was tried on September 10, 2003. At the conclusion of the trial, the court rendered judgment in favor of the defendants and gave oral reasons on the record. A written judgment was signed September 25, 2003. Lloyd’s now appeals that judgment, contending that the trial court committed manifest error by | ¿failing to accept the opinion of the sole expert witness who testified and by failing to apply the evidentiary doctrine of res ipsa loquitur.

DISCUSSION

Lloyd’s presented four witnesses at trial: John Lewis, the building owner; William Molten, Jr., an independent adjuster who had appraised the damage to the building; Captain Roger Peltier, the commanding officer of New Orleans Fire Department Engine No. 25, which had responded to the fire, and George Hero, an expert in the cause and origin of fires. Only Mr. Lewis’ testimony and that of Mr. Hero are pertinent to the issues on appeal.

Mr. Lewis testified that he and his wife purchased the apartment building in 1987. He stated that it was an old building, as are most uptown buildings, but he did not know exactly how old. He assumed that the building had the original wiring. He recalled having had electrical work done on the building twice, once in 1995 or 1996, when a tree had fallen on the building, and again in July of 1998, at which time the electrician had replaced the receptacle for one of the fuses in the fuse box because it had a burn spot in it. Approximately one month later, Theresa Heckman and Amy Wallace moved in, and the fire occurred about five months after that.

Mr. Lewis testified that he furnished certain appliances with the apartment, including window air conditioning units, a refrigerator, a stove, and a dishwasher. In addition, he believed Theresa Heckman and Amy Wallace kept in their apartment the “normal appliances,” such as a television, coffee maker, and stereo. |aHe did not give the tenants any extension cords to use. Mr. Lewis recalled that before the fire occurred, he had gone to the apartment at least twice because the tenants had called him to replace a fuse that had blown out. The first time, shortly after Ms. Heckman and Ms. Wallace moved in, he noticed the apartment was messy, with opened boxes on the floor, as if the tenants had not finished unpacking. The second time, which was about three weeks prior to the fire, he noticed that the apartment was still messy, with a bicycle in the kitchen, clothes on the floor, and boxes half unpacked. He did not notice any ashtrays or smoke odor. Each time Mr. Lewis was called, he merely changed the blown out fuse and left.

Mr. Hero, the plaintiffs fire expert, testified that he inspected the premises on January 29, 1999 (ten days after the fire). Based on his inspection, Mr. Hero opined that the fire had started in the rear room of the apartment, which the tenants used as a den / living room He further opined that the origin of the fire was within the tenants’ contents, reasoning that he had found no evidence that the fire had originated in the walls or ceiling of the apartment. However, his inspection of the mechanical devices in that room, which included a window air conditioning unit, T.V., V.C.R., cable box, and several space heaters (one electric and two gas), did not reveal any defects in those devices. Therefore, Mr. Hero opined that there were two possible causes of the fire: misuse of a space heater or a cigarette.

On cross-examination, Mr. Hero admitted that if there were credible evidence that the space heaters were either not plugged in or not turned on, and further that no one had smoked in the apartment within six to eight- hours of the 1 ¿fire, such evidence would rule out his two possible causes; in that case, ;he would have to say that the cause of the fire was unknown. Mr. Hero admitted that he does not find a cause or origin of every fire he investigates; some are undeterminable.

At the conclusion of the plaintiffs case, counsel for defendant Theresa Heckman submitted Ms. Heckman’s deposition in lieu of her live testimony, which deposition was admitted into evidence without objection. In her deposition, Ms. Heckman testified that the day before the fire, she went to work about 5:00 p.m., went out with friends after work, and then arrived home at 2:30 a. m.; she then went straight to her bedroom to sleep without checking whether her roommate, Amy Wallace, was home. She might have looked into the den, but she did not go in there, and she did not see anyone in there. However, she had noticed Amy’s car in the driveway, so she assumed Amy was sleeping in her room. Although Amy’s fiance routinely slept over, she did not know if he was there that night. The smoke alarm awoke Ms. Heckman at sometime between noon and 1:00 p.m. She then saw the fire in the den, which was concentrated in the left corner of the room near the window unit and was going up the walls.

According to Ms. Heckman, she and Amy Wallace lived in the apartment less than a year. During that time, fuses blew out more than once. In fact, Ms. Heck-man said that when she and Amy had moved in, the prior tenant had given them a plastic bag full of fuses. Ms. Heckman testified that she and Amy used | Bextension cords in the apartment because certain wall sockets did not work. For instance, the lamp in Amy’s bedroom and the lights in the bathroom had to be plugged in using extension cords routed to other rooms. They also used extension cords and a power strip in the den. Ms. Heckman said the air conditioner in Amy’s bedroom did not work properly, 'the problem being that whenever it was turned on, it blew out a fuse.

Ms. Heckman testified there were gas space heaters in the apartment, but she never lit them because she was afraid of them. She thought the gas heaters were already in the apartment when she and Amy moved in, but she was not sure. She and Amy sometimes used the portable electric heater, which she thought may have belonged to Amy. This electric heater was in the room where the fire started, along with a T.Y., V.C.R., stereo, lamp, lava lamp, window air conditioning unit, clock, couch, chair, coffee table, end table, and plastic shelving that they used as an entertainment center. According to Ms. Heckman, the den did not have a rug, and there were no boxes on the floor. Ms. Heckman recalled that the day of the fire, the electric heater was sitting on the coffee table, and it was not plugged in, because it had not been used for several days. She said, alternatively, it could have been plugged in and turned off, but she did not think so. She also testified that the electric heater was located on the other side of the room from where she saw the fire, about seven feet from the flames. She stated that it was not cold outside when she ran out the building to get away from the fire.

| fiMs. Heckman said that she, Amy, and Amy’s fiance all smoked, but that Amy had quit because she was pregnant. They did keep ashtrays in the den.

Defendant Amy Wallace was the final witness to testify. She said both she and her fiancé had slept in her bedroom the night before the fire. She awoke about 8:30 to get ready for class. She did not go into the den that morning. She did not turn on any of the heaters, which they only used when it was really cold. Ms. Wallace said she smoked, but she had quit smoking on New Year’s Eve after finding out she was pregnant. Ms. Wallace testified she smoked less than five cigarettes between the time she quit and the day of the fire, and she did not have one that morning. She left the apartment about 9:15 a.m. to go to her 10:00 a.m. college class. She did not find out about the fire until she arrived home about 3:00 or 4:00 p.m. that afternoon.

Ms. Wallace confirmed Ms. Heckman’s testimony that some of the wall outlets, specifically one in her bedroom and one in the bathroom, did not work and therefore, were connected by extension cords running to the kitchen. She also testified that fuses blew out very often while they lived in the apartment, and that there were increasingly smaller amounts of time between the fuses blowing out. She corroborated Ms. Heckman’s testimony that the previous tenant had given her and Amy a plastic bag of fuses when they moved in.

At the conclusion of the evidence, the trial court ruled from the bench, finding in favor of the defendants and dismissing the plaintiffs petition. On the |7record, the trial judge gave the reasons for her judgment, stating that the plaintiff had not met its burden of proving that the defendants did anything negligent that caused the fire. Specifically, the trial judge noted that although Mr. Hero had opined that the fire was caused by either a cigarette or a space heater, she found the defendants’ testimony to be credible. According to that testimony, neither Ms. Heckman nor Ms. Wallace had smoked a cigarette during the relevant time period, and furthermore, the electric heater, which was the only one the tenants may have owned and the only one they used, was not plugged in. Moreover, the trial judge stated that there was evidence of continual electrical problems in the building, which she noted was built in 1959 and may not have been able to accommodate modern electrical appliances. Finally, the trial judge reasoned that there were unexplored variables that could have had some bearing upon the origin of the fire, such as the possible third party responsibility of Ms. Wallace’s then flaneé, Mr. Misok, who was not called to testify.

The first assignment of error by the plaintiff is the trial court’s failure to accept the expert testimony of Mr. Hero. Upon review, we can find no manifest error in that regard. Mr. Hero admitted that if there were credible testimony that no one had smoked in the apartment within six to eight hours of the fire and that the space heaters were not in use at the time, such evidence would negate his theories of causation. The trial court found credible evidence on each point. It is axiomatic that the evaluation of credibility is the unique province of the trial court. |8We therefore cannot say it was manifest error for the trial court to reject Mr. Hero’s opinion as to causation.

The plaintiffs second argument on appeal is that the trial court should have applied the doctrine of res ipsa loquitur. This doctrine, which means “the thing speaks, for itself,” permits, but does not require, the trial court to infer negligence from the circumstances of the event. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 665 (La.1989). In order to utilize the doctrine, the plaintiff must establish that the injury is of the type that does not ordinarily occur in the absence of negligence, and must establish facts that permit the trial court to reasonably conclude it was more likely than not that the defendant’s negligence caused the injury. To accomplish this, the plaintiff must sufficiently exclude the inference .of his own responsibility or the responsibility of others besides the defendant in causing the accident. Id. at 665-666.

In the instant case, we find the plaintiff did not establish the ■ necessary foundation for the application of res ipsa loquitur. Specifically, the existence of a variable not explored by the evidence, specifically, the potential responsibility of Mr. Misok, who was in the apartment the night before the fire and who was a smoker, in itself precludes the application of res ipsa loquitur to infer causation in this case. Therefore, we find the trial court’s refusal to apply the doctrine was not manifestly erroneous.

| .CONCLUSION

Accordingly, for the reasons given, we affirm the judgment of the trial court.

AFFIRMED.

      . Counsel for defendant Amy Wallace then moved for an involuntary dismissal, asserting that the plaintiff had failed to demonstrate that any negligence on the part of his client had caused and/or contributed to the fire. The trial'judge, after stating on the record that she believed there was a compelling case for involuntary dismissal, nevertheless denied the motion, reasoning that because Ms. Heck-man’s deposition was already in evidence, allowing the other defendant to present her evidence would make a complete record in case of appeal.

      . Amy Wallace, whose actual name at the time of trial was Amy Wallace Misok, testified that she had married her fiancé in March of 1999.


author: I «SUSAN M. CHEHARDY, Judge.

text:
    URBAN PROPERTY COMPANY OF LOUISIANA, L.L.C. v. PIONEER CREDIT COMPANY.
    No. 04-CA-246.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.

      Irl R. Silverstein, Gretna, LA, for Plaintiff/Appellant, Urban Property Company of Louisiana, L.L.C.
    Kenneth E. Pickering, New Orleans, LA, for Defendant/Appellee, Pioneer Credit Company.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and JAMES C. GULOTTA, Pro Tempore.
   I «SUSAN M. CHEHARDY, Judge.

Urban Property Company of Louisiana, L.L.C. (hereafter “Urban”) appeals the dismissal of its suit against Pioneer Credit Company (“Pioneer”) for improper cancellation of a mortgage. We affirm.

This is the second appeal in this matter. Previously the case went through trial, resulting in a judgment in Urban’s favor awarding damages. Pioneer appealed. This Court found that Urban failed to plead in its petition, and failed to prove at trial, that it suffered any actual damages. Accordingly, we vacated the judgment, granted Urban 30 days to amend its petition, and remanded the matter. Urban Property Co. of Louisiana, L.L.C. v. Pio neer Credit Co., 03-38 (La.App. 5 Cir. 4/29/03), 845 So.2d 1227.

On remand, Urban filed a supplemental and amending petition and Pioneer responded with an exception of no cause of action. The trial court granted the exception, with written reasons that tracked the language in the appellate opinion. Urban now appeals.

IgUrban asserts the trial court erred in determining that the first amending and supplemental petition failed to state a cause of action upon which damages could be awarded to Urban.

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.C.C.P. art. 931. Therefore, the court reviews the petition and accepts well-pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Everything on Wheels Subaru, Inc., 616 So.2d at 1235.

In deciding the exception of no cause of action, the court must presume all factual allegations of the petition to be true and all reasonable inferences are made in favor of the non-moving party. Donnaud’s Inc. v. Gulf Coast Bank and Trust Co., 03-427, p. 5 (La.App. 5 Cir.2003), 858 So.2d 4, 7, writ denied, 03-2862 (La.1/9/04), 862 So.2d 985. In reviewing the granting of an exception of no cause of action, the appellate court should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. City of New Orleans v. Board of Commissioners, 93-0690, p. 2 (La.7/5/94), 640 So.2d 237, 241.

The original petition made the following allegations:

On or about February 1, 1997, Academy Mortgage Company, L.L.C. (hereafter “Academy”) sold a portion of its notes receivable to Pioneer, with a listing of the accounts transferred annexed to the act of sale. (Paragraph 2.)

| ¿Prior to the sale, Academy assigned all of its rights, title, and interest in a promissory note dated September. 21, 1995, executed by Edward Joseph, Jr. and Audrey Charles Joseph, which note was paraphed for identification with a mortgage on property located at 6129 Adam Drive, Marrero, Louisiana. (Paragraph 3.)

The note fell in arrears in October 2000 and Urban, as the last holder of the note, decided to execute on its security interests in the property securing the note. (Paragraph 4.) In preparing to file executory proceedings, Urban discovered that the Clerk of Court had marked its mortgage as being cancelled, pursuant to a Lost Note Affidavit signed by Herb Baker, manager of Pioneer. (Paragraph 5.)

In the affidavit, Baker stated that Pioneer was the last holder of the promissory note. In fact, the note had never been transferred to Pioneer. (Paragraph 6.)

Urban alleged that because of the false affidavit executed by Baker, Urban has been deprived of its security interests in the immovable property. In the affidavit, Baker, on behalf of Pioneer, “agreed to indemnify any person or entity, as a consequence of canceling the mortgage pursuant to the Affidavit.” (Paragraph 7.)

Urban asserted that Baker’s actions in executing the affidavit are imputable to his employer, Pioneer, and that Pioneer is responsible for the damages arising out of the execution and recordation of the affidavit. (Paragraph 8.) Urban attached copies of all the documents mentioned to the petition and made them a part thereof.

Urban itemized its damages as consisting of the principal balance under the promissory note, accrued interest as of April 16, 2001, and attorney’s fees, for a | stotal of $16,045.67, and prayed for judgment in its favor in that amount, plus interest and costs.

In the “First Supplement [sic] and Amending Petition” filed after remand, Urban amended Paragraph 7 and added additional paragraphs 7(a), 7(b), and 7(c), as follows:

7.
Petitioner shows that on August 25, 1998, AUDREY CHARLES, wife of/and EDWARD JOSEPH, JR., executed a mortgage on the subject property at 6129 Adam Street, Marrero, Louisiana 70072 in the principal sum of $54,000.00 in favor of Option One Mortgage Corporation, at which time the mortgage held by petitioner was cancelled by the filing of a Lost Note Affidavit executed by HERB BAKER, as Manager of PIONEER CREDIT COMPANY.
7(a)
As a result of the mortgage cancellation and loss of first mortgage ranking, there has been a complete loss of equity securing petitioner’s note, rendering it essentially unsecured.
7(b)
As a result of the filing of the false Affidavit of Lost Note and subsequent refinancing, petitioner’s security interest in the subject property has been severely eroded from the position it held prior to the filing of said false Affidavit, and the value of the note has been decreased from the amounts sought in original Paragraph 9 to no value whatsoever.
7(c)
Petitioner has further determined that the makers of the promissory note, AUDREY CHARLES, wife of/and EDWARD JOSEPH, JR., do not have income which would be subject to garnishment, nor to satisfy any deficiency judgment which may be rendered in favor of petitioner, thus, as a result of the wrongful actions of the defendant, the subject note has no value and suit thereon would amount to a vain and useless effort.

In the exception of no cause of action, Pioneer argued that Urban has no cause of action because it has not sustained damage, reiterating the language from the appellate opinion: “Urban has not secured a ranking judgment or shown that the | (¡mortgage securing the Joseph Note cannot be reinscribed. Urban has not brought suit on the note against the makers of the Joseph Note, obtained a judgment, attempted foreclosure, or secured a deficiency judgment.” Pioneer pointed out that Urban has failed to avail itself of the mechanism for the reinstatement of mortgages cancelled due to error or mistake.

Urban argues on appeal that its allegations of damages were sufficient to support a cause of action, because in the-Affidavit of Lost Note Pioneer (through its employee, Baker) agreed “to idemnify [sic] any person or entity as a consequence of can-celling the aforesaid mortgage or vendor’s lien which is executed under the provisions of Louisiana R.S. 9:5168.” La.R.S. 9:5168 provides that where an affidavit of loss or destruction of a promissory note is used to authorize cancellation of the inscription, the affidavit must state (among other things) that “the affiant agrees to indemnify any person or entity for any damages resulting to such person or entity as a consequence of the cancellation of the inscription of the mortgage.... ”

Urban contends that its allegations that the makers of the note do not have income that would be subject to garnishment or to satisfy a deficiency judgment establishes that Urban set forth a claim for damages as a result of the reduction in value of the promissory note.

La.R.S. 9:5169 provides, “Inscriptions of mortgages and privileges are erased by the consent of the parties interested and having capacity for that purpose; this consent to be evidenced by a release, or by a receipt given on the records of the court rendering the judgment on which the mortgage is founded.”

Hence, where an interested party has not given its consent, the erasure of the inscription cannot be effective. See Cheleno v. Selby, 538 So.2d 706 (La.App. 4 Cir.1989), writ denied 542 So.2d 1384. Therefore, in such cases the creditor may seek to have the cancelled mortgage reinstated, thus regaining its security.

[T]he cancellation of the mortgage by the recorder without the knowledge or consent of the holder of the negotiable mortgage note does not deprive him of his security even with regard to a third-party dealing with the property on his faith in the public record. When there has been [an] erroneous cancellation of a mortgage from the mortgage records by the Clerk of Court and the purchase of the property by a third-party relying on the public records which show the mortgage to be cancelled, the mortgagee is entitled to enforce the mortgage against the mortgaged property.

Pioneer Enterprises, Inc. v. Goodnight, 561 So.2d 824, 828 (La.App. 2 Cir.1990).

We conclude the trial court did not err in granting the exception of no cause of action. Urban’s allegation' that the makers of the promissory note “do not have income which would be subject to garnishment,” assuming it can be proven at a trial, does not establish that Urban has sustained damages that it would be entitled to recover from Pioneer. Urban has not been deprived of its security interest because the law allows a mortgage erroneously cancelled to be reinstated. There is no allegation that Urban has taken any steps to reinstate and then to enforce the mortgage. Thus, Urban has not alleged any actual damage it can recover from Pioneer.

Further, the mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action. The trial court correctly dismissed the suit.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Urban Property Company of Louisiana, L.L.C.

AFFIRMED.

      . The court's written reasons stated:
      This Court finds that Urban has not alleged or suffered actual damages. There has been no showing that Urban has been damaged as a result of its mortgage being cancelled. Urban has not alleged that the mortgage cannot be reinscribed or that its security has been jeopardized. Urban has not secured a ranking judgment.
      Urban had not instituted suit against the debtors, obtained a judgment, attempted foreclosure or secured a deficiency judgment. Thus, they have not suffered or alleged damages.


author: |1 CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Alisha J. DISOTELL, Appellant.
    No. 38,868-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    James E. Beal', Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Edwin L. Blewer, III, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   |1 CARAWAY, J.

Defendant, Alisha J. Disotell, pled guilty as charged to one count of manslaughter, a violation of La. R.S. 14:31 punishable by imprisonment for not more than 40 years. The state agreed to reject two drug-possession charges which arose when defendant was found to be in possession of CDS while being booked into jail on the instant charge. The court imposed a sentence of 30 years at hard labor and denied timely motions for reconsideration. Defendant argues the sentence is excessive and that more consideration should have been given to her age at the time of the commission of the offense and that she had no prior felony convictions. Finding no merit to those contentions, we affirm.

Facts

The matters of record show that on July 15, 2002, the victim, Drexelle McBride, was found shot to death in his van on South Lakeshore Drive near the American Legion Post which he frequented. Investigation disclosed he had last been seen drinking heavily at a Shreveport bar in the company of Disotell. Disotell, whose record reflects a prostitution-related offense, was at the bar for the purpose of engaging in prostitution. When the victim and Diso-tell left the bar, the victim said Disotell was going to drive him home and that he would pay for her cab back to the bar. The following day, detectives located the suspect, Disotell, at a motel near the bar. Defendant claimed the victim had tried to rape her and that she shot him in self defense. However, the victim’s wallet was never found. Disotell had not ^reported the alleged attempted rape, but had called a third party to drive her from the scene of the homicide.

Discussion

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial 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. 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. Where, as here, the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary. State v. Landos, 419 So.2d 475 (La.1982).

Whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

[SA trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979. As noted below, the record shows the court was aware of and considered defendant’s age at the time of the offense and her lack of any prior felony convictions.

Prior to imposing sentence, the court considered a pre-sentence investigation report, a victim impact testimony, the defendant’s statement of remorse and all related police reports and discovery matters. The court found Disotell’s act was cold, cruel and without remorse until after her arrest. She had left the victim in the van to bleed to death after being shot. The victim had a blood alcohol content of .291, so the court did not believe Disotell’s self-serving version of the homicide. Diso-tell had been in possession of cocaine when she went to jail. She had a criminal record of convictions for solicitation for immoral purposes, interfering with an officer, possession of drug paraphernalia, obstructing a public passage, misrepresentation during booking, possession of marijuana and disturbing the peace. Disotell admitted she was addicted to cocaine. She grew up in a dysfunctional family; her father was killed in a drug deal when she was ^fourteen. She was eighteen at the time of this offense. The court found defendant’s conduct manifested deliberate cruelty to the victim who was vulnerable due to extreme intoxication. The court found no justification for the homicide. The court noted that while Disotell had no prior felo- ■ nies, she also had not lived a law-abiding life.

On this record, we do not find constitutional error. Disotell was exposed to imprisonment for up to 40 years. Other charges were dismissed in connection with the plea. The trial court carefully evaluated the facts and circumstances of this matter before delivering the sentence. It is lawful, and is neither grossly disproportionate to the severity of the offense- of conviction nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence which we hold is not excessive.

The conviction and sentence are affirmed.

AFFIRMED.


author: JjDREW, J.

text:
    STATE of Louisiana, Appellee v. Printis SCOTT, Appellant.
    No. 38,901-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Louisiana Appellate Project by Paula Corley Marx, Lafayette, Pamela Sue Moran, New Orleans, for Appellant.
    Terry R. Reeves, District Attorney, James E. Lewis, Assistant District Attorney, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   JjDREW, J.

The state charged Printis Scott with one count of carnal knowledge of a juvenile, a violation of La. R.S. 14:80, punishable by not more than ten years’ imprisonment with or without hard labor plus an optional fine. The state agreed to reduce the charge to attempted carnal knowledge and to refrain from charging defendant as an habitual offender in exchange for defendant’s guilty plea to the amended charge. After informing the defendant that the sentence would be five years, the court accepted his guilty plea and imposed the agreed sentence of five years at hard labor. The trial court denied a timely motion for reconsideration. Scott argues the sentence is excessive and the trial court erred in failing to state that defendant would receive credit for time served. We find no merit to the assigned errors and affirm.

The scant matters of record show that during May and June 2002, the defendant, then 18, engaged in sexual intercourse with a female who was 14 years of. age. Although the prosecution’s counsel attempted to interject more facts into the brief, this court will not consider references to evidence which is not part of the record on appeal. State v. Pratt, 32,302 (La.App.2d Cir.9/22/99), 748 So.2d 25.

Contrary to the trial court’s statement to the defendant during the guilty plea that he could appeal his agreed sentence, the jurisprudence holds that where a specific sentence or sentence cap has been agreed to as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive, and there is no need for the trial judge to give reasons for the sentence as required by La. C. Cr. P. art. 894.1. State v. Samuels, 37,099 (La.App.2d Cir.5/14/03), 847 So.2d 93; State v. Bonnett, 535 So.2d 535 (La.App. 3d Cir.1988), writ denied, 541 So.2d 869 (La.1989). Here, prior to tendering his guilty plea, the defendant stated he understood that his plea would result in the imposition of a five-year sentence. Thus, he may not now complain on appeal that his agreed sentence is excessive.

However, even if we were to examine the sentence for constitutional ex-cessiveness, we would find no error. A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest' abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

Here, the assistant district attorney’s bare-bones recitation of the bill of information as a factual basis indicates that the defendant committed the completed offense of felony carnal knowledge of a juvenile. Thus, his guilty plea to the attempt thereof does not adequately describe his conduct. The plea bargain, insofar as it reduced the seriousness of the charge, also reduced defendant’s sentencing exposure by one-half. The state’s further ^agreement not to seek sentence enhancement under the habitual offender law also greatly reduced defendant’s sentencing exposure.

On this record, we do not find constitutional error. Defendant has a prior conviction for possession of CDS. Therefore, he is a second felony offender. The sentence imposed is lawful and is neither grossly disproportionate to the severity of the offense of conviction nor shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence, which is not excessive.

The 1997 amendment to La. C. Cr. P. art. 880 is designed to make credit for prior custody self-operating even on a silent record. Thus, there is no need for the sentencing court to reference credit for time served. State v. Ignot, 29,745 (La.App.2d Cir.8/24/97), 701 So.2d 1001, writ denied, 99-0336 (La.6/18/99), 745 So.2d 618.

The conviction and sentence are AFFIRMED.


author: |, STEWART, J.

text:
    STATE of Louisiana, Appellee v. Jackie BLAKE, Appellant.
    No. 38,894-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Louisiana Appellate Project by Mary C. Hanes, Herman A. Castete, for Appellant.
    Terry R. Reeves, District Attorney, James E. Lewis, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   |, STEWART, J.

The defendant, Jackie Blake, pled guilty to one count of felony possession of stolen property, a violation of La. R.S. 14:69(B)(2) punishable by imprisonment for not more than two years, a $2,000 fine, or both. He appeals his two year sentence as excessive. Finding error patent, we pretermit discussion of the assigned error, reverse the conviction and sentence, and remand for further proceedings.

FACTS

The record shows that Blake was charged by bill of information with two counts of simple burglary, a violation of La. R.S. 14:62 punishable by imprisonment for not more than twelve years. However, the state agreed to accept Blake’s guilty plea to felony possession of stolen property. As part of the agreement, the state would not seek prosecution of Blake as an habitual offender. The court informed Blake prior to accepting his plea that a two year sentence would be imposed if he pled guilty. After appropriate proceedings, the court accepted Blake’s guilty plea and imposed the two year sentence. The state dismissed the second count of simple burglary.

DISCUSSION

Our review of the record reveals error patent concerning Blake’s plea to felony possession of stolen property. An unresponsive verdict is error patent and is reviewable on appeal despite the absence of an objection during trial. State v. Turnbull, 377 So.2d 72, 75 (La.1979); State v. Gooden, 523 So.2d 283, 284 (La.App. 2d Cir.1988), writ denied, 530 So.2d 570 (La.1988).

| ;>A defendant, with the district attorney’s consent, may plead guilty to a lesser offense that is included in the offense charged in the bill of information or indictment. La.C.Cr.P. art. 558. When this is done, it is unnecessary for the district attorney to amend the bill of information or to file a new bill. State v. Porterfield, 524 So.2d 1363, 1368 (La.App. 1st Cir.1988), vacated on other grounds, 541 So.2d 909 (La.App. 1st Cir.1988).

La.C.Cr.P. art. 814(A)(44) sets forth the responsive verdicts for a charge of simple burglary. These include guilty, guilty of attempted simple burglary, guilty of unauthorized entry of a place of business, guilty of attempted unauthorized entry of a place of business, and not guilty. Felony possession of stolen things is not among the responsive verdicts. A lesser include offense must be of the same generic class and must not require proof of any element which is not found in the crime charged. State v. Gooden, 523 So.2d at 285. Unlike the pled offense of felony possession of stolen things, simple burglary does not require proof of possession of stolen goods. State v. Tran, 97-640 (La. App. 5th Cir.3/11/98), 709 So.2d 311, 317. Therefore, the pled offense is not a lesser included offense to the charged offense of simple burglary.

A defendant is also allowed to enter a guilty plea to a crime nonrespon-sive to the original indictment where the plea is acceptable to the district attorney. State v. Gooden, 523 So.2d at 285. La. C.Cr.P. art. 487(B) states:

B. Nothing contained herein shall be construed to prohibit the defendant from entering a plea of guilty to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney, and in such ease, the district | ¡¡attorney shall not be required to file a new indictment to charge the crime to which the plea is offered.

While the district attorney is not required to file a new bill or indictment to charge the nonresponsive crime, the district attorney is required to amend the bill or indictment. State v. Cook, 372 So.2d 1202, 1205 (La.1979); State v.Gooden, 523 So.2d at 285; State v. Johnson, 499 So.2d 244 (La. App. 2d Cir.1986). There was no amendment to the bill of information in this case.

In such a case, where the district attorney neither amends the bill of information nor files a new bill, the trial judge does not have jurisdiction to accept a plea to the new offense. State v. Cook, supra. A guilty plea to a charge which does not conform to the bill of information is error patent on the face of the record. State v. Cook, supra; State v. Gooden, supra.

CONCLUSION

In the present case, because the defendant entered a plea of guilty to an uncharged offense, the trial court lacked jurisdiction to accept the guilty plea. Therefore, we must reverse the conviction and sentence. We remand the matter for further proceedings.

REVERSED AND REMANDED.


author: |, LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Dorothy L. EDWARDS, Appellant.
    No. 38,891-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Indigent Defender Board, by Angela Waltman, Louisiana Appellate Project, by Kenota Pulliam Johnson, for Appellant.
    Schuyler Marvin, District Attorney, Joe Gregorio, John Michael Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   |, LOLLEY, J.

Dorothy L. Edwards (“Edwards”) pled guilty as charged to one count of bank fraud, a violation of La. R.S. 14:71.1, punishable by imprisonment for not more than ten years and a fine of not more than $100,000.00, or both. The trial court imposed a mid-range sentence of five years at hard labor and denied a timely motion for reconsideration, which Edwards appeals. For the following reasons, we affirm.

Between March 24 and 26, 2003, Edwards and an accomplice executed a scheme at a Bossier Parish credit union to obtain funds owned by a third party and in the custody of the credit union by forging two stolen checks for a total value of $918.00. The record reflects that 'the entire scheme involved three different financial institutions. The individual from whom the checks were stolen never responded when the pre-sentence investigation report was being prepared.

Edwards was charged by bill of information for violation of La. R.S. 14:71.1, to which she ultimately pled guilty. After consideration of a pre-sentence investigation report, the trial court sentenced Edwards to five years at hard labor to run consecutively with any other sentence. Edwards appeals this sentence.

|2The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial 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. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641. Where, as here, the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary. State v. Landos, 419 So.2d 475 (La.1982).

Whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1753 (La.05/16/00), 769 So.2d 1158. There is no requirement that speeific |3matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.03/01/00), 754 So.2d 392, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.02/26/97), 690 So.2d 864, writ denied, 97-0705 (La.09/26/97), 701 So.2d 979.

On appeal, Edwards argues that the trial court’s sentence was excessive and, further, that it erred in denying her motion to reconsider sentence. These assignments of error are without merit.

Prior to imposing sentence, the trial court considered a PSI report, noting that Edwards was a second felony offender with an extensive history of financial crimes. She had a conviction in 1997 for theft, a conviction in 1999 for unauthorized use of an access card, a felony conviction in 2001 for forgery, another conviction in 2001 for unauthorized use of an access card, and a pending case in Caddo Parish for bank fraud. Edwards had been placed on probation three times, but had failed to complete any of those periods satisfactorily due to her failures to comply with reporting requirements and to make restitution. The trial court also noted that Edwards had received leniency from other courts but had persisted in committing the same sort of crimes. Although the PSI did not include a statement by the individual whose checks Edwards had stolen, a representative of the credit union stated that it had spent considerable “time, effort and payroll dollars” in addressing the matter. In mitigation, the trial court considered that Edwards was young, 22 years old, and an unwed mother of three very young children.

|4So considering, on this record, we do not find constitutional error. The sentence imposed is in the middle of the range available to the trial court. Edwards was given leniency when the state did not charge her as a habitual offender, even though she has a history of engaging in financial crimes. The fact that she has been unable to complete a period of probation successfully shows she is deserving of a period of incarceration. The sentence imposed is lawful, and, considering Edwards’ history, is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice.

Finally, although we are sympathetic to Edwards’ position as a single mother of three young children, we note that there are many single parents of young children who struggle lawfully in their positions and do not resort to a life of crime. Edwards herself should have had an appreciation for the consequences of her actions, i.e., that she possibly could be incarcerated for committing a crime and leave her children parentless. Considering the record before us, we conclude that there is no showing of an abuse of the trial court’s discretion in the imposition of this sentence which is not excessive. Therefore, the conviction and sentence are affirmed.

AFFIRMED.

      . La. R.S. 14:71.1 states:
      A. Whoever knowingly executes, or attempts to execute, a scheme or artifice to do any of the following shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than one hundred thousand dollars, or both:
      (1) To defraud a financial institution.
      (2) To obtain any of the monies, funds, credits, assets, securities, or other property owned by or under the custody or control of a financial institution by means of false or fraudulent pretenses, practices, transactions, representations, or promises.


author: h CARAWAY, J.

text:
    Jimmy R. WILLIAMS, Plaintiff-Appellant v. MARK JOHNSON PLUMBING, Defendant-Appellee.
    No. 38,954-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    Rehearing Denied Oct. 21, 2004.

      Street & Street by C. Daniel Street, Monroe, Appellant.
    Crawford & Anzelmo by Donald J. An-zelmo, Monroe, Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   h CARAWAY, J.

In this workers’ compensation case, the injured employee returned to work with a new employer receiving approximately one-half of his former wages, instead of returning to a modified position with his former employer, the defendant. The defendant was willing to accommodate the employee’s physical disability because of his expertise as a journeyman plumber and to pay him his former wages. The employee chose not to return to work as a plumber and brought this claim for supplemental earnings benefits (“SEB’s”) and an increase in the amount of the prior weekly wage benefits that had been paid by the defendant. The workers’ compensation judge (“WCJ”) rejected the claim for further SEB payments but increased prior wage benefit payments which were miscalculated. The employee appeals the court’s denial of SEB’s and seeks penalties and attorney fees for the miscalculation of benefits. For the following reasons, we affirm the rulings of the WCJ.

Facts

Jimmy Williams, age 55, was a journeyman plumber with twenty-five years of experience. Williams had worked for Mark Johnson Plumbing (“MJP”) since 1999. His job duties required him to lift fixtures such as water heaters or tubs weighing in excess of 150 pounds and to use heavy equipment and a shovel. He also had to crawl, bend or stoop on a regular basis.

On July 10, 2001, Williams was using a 30-pound drill. As he was pushing the drill, he injured his back. The fact of the injury is undisputed in 12this action. MJP paid for Williams to see an orthopedic specialist, Dr. Rifat Nawas, and a neurosurgeon, Dr. Anil Nanda. Williams did not need surgery on his back, but the doctors restricted Williams from working due to his injury.

MJP’s workers’ compensation insurance carrier, LUBA, commenced paying Williams $289.00 per week in indemnity benefits. These benefits, in the form of temporary total disability benefits and SEB’s, were paid until the end of June 2002. Initially, Williams questioned the amount of the wage benefit payments and filed a claim with the Office of Workers’ Compensation (“OWC”). Williams was earning $14.00 per hour at the time he was injured. In a 40-hour week, his gross pay was $560.00. He testified that he was a full-time • .employee and that he usually worked 40-hour weeks. Mark Johnson, the owner of MJP, agreed that Williams was a full-time employee. The record contains Williams’ payroll records for the six weeks prior to his accident, reflected as follows:

Weekly Weekly
Dates Hours Salary
July 6 — ’July 12, 2001 ' 17 $238.00
June 29 — July 5, 2001 32 $448.00
June 22 — June 28, 2001 35 $490.00
June 15 — June 21, 2001 42 $602.00
June 8 — June 14, 2001 40 $560.00
June 1 — June 7, 2001 40 $560.00

After mediation of Williams’ initial claim at the OWC, LUBA raised his indemnity payment to $350 per week. However, in the present action, Williams again contested the accuracy of this amount.

In late March 2002, Williams underwent an extensive functional capacity evaluation (“FCE”). The FCE states that Williams gave maximum |sconsistent effort on the tests. Based upon the results, the evaluating therapist gave these recommendations:

1) According to the U.S. Department of Labor, the client falls into a light work category which consists of exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly.
2) Recommend work conditioning to increase [upper extremity] and [lower extremity] strength and endurance and activity tolerance. Would also address general conditioning as client has been off of work for 8 months and it is assumed that he is deconditioned. As client fell between a light and medium work category, another goal would be to progress him into a medium work category. Other goals would be education on body mechanics, ergonomics, etc.
3) Recommend vocational rehabilitation as it is unlikely that client would be able to match the provided job functions of lifting and carrying 100-200 pounds.

Another segment of this report compared Williams’ capabilities with the demands of his job for MJP and stated definitively that Williams was unable to perform the floor to waist lift, overhead lift and carrying duties formerly required of him. Dr. Nanda signed off on this report with the notation “Agree with FCE” on April 5, 2002. Williams never underwent work conditioning.

Under these restrictions, Williams commenced working on May 1, 2002, for another employer, the Squire Creek Country Club, as a gardener. He was a full-time employee of the club and earned $7.00 per hour. In addition, he had a benefit package that included health insurance, an employer-matched IRA plan, eight furnished uniforms worth $50 each, furnished lunches, a two-week paid vacation after a year, and a week of sick leave/personal time off. The only similar benefit Williams had with MJP 14was one week of paid vacation time. Williams described his supervisor at the club as careful to accommodate his back injury.

In the meantime, LUBA assigned Williams a vocational rehabilitation counselor, Elier Diaz. Diaz studied Williams’ FCE and scheduled an initial conference with Williams for April 30, 2002, before Williams began the Squire Creek employment. Williams, however, postponed their meeting until May 20, 2002, at which time Diaz asked about his possibly returning to work for MJP as a plumbing “utility worker.” At trial, Johnson expressed a willingness to create a job to accommodate Williams’ limitations, given Johnson’s need for licensed plumbers. He stated the job would involve repair work on service calls. Nevertheless, no written description of the job was provided, and apparently the specific duties involved in the proposed job were never clearly detailed by Diaz to Williams’ satisfaction.

Williams testified that during their discussions he told Diaz that he was “not really” interested in this proposition and declined the offer because it was vague. Williams assumed that it would include digging and other heavy work which he was unable to do. Williams described his new job benefits, particularly the availability of health insurance, as important to him, especially given his age and health condition.

Williams met with Diaz a second time, the following month and expressed his disinterest in the possible “modified plumber’s type” job. Williams believed his ability to perform plumbing jobs was limited to a supervisory capacity, and that labor intensive work would be demanded of 15him. Diaz said Williams repeated his satisfaction with Squire Creek’s employment benefits.

Diaz advised Williams by letter dated June 26, 2002, as follows:

As you know from our prior discussions, your pre-injury employer has been considering accommodating you with appropriate employment. Mark Johnson Plumbing has agreed to make a Plumbing Utility Worker job available to you and has asked that said job be tendered to you via this correspondence. This position will pay your pre-injury wages for your pre-injury hours; and it is within the physical parameters outlined for you by Dr. Nanda.
If you wish to pursue the above-mentioned job, please report to Mark Johnson on July 11, 2002 at 9:00 a.m.

(Emphasis in original.) Diaz never presented the job description to Dr. Nanda for approval, but unilaterally concluded it fit within defined parameters.

Williams neither contacted MJP nor appeared at the jobsite at the appointed time. He instead opted to remain employed at the country club. At a chance meeting with Johnson on July 30, they' discussed the modified position.' Williams recalled Johnson saying that all the work available was “top-out” work. Such work requires frequent use of a drill for plumbing installations through framing studs. Williams testified that he told Johnson that he could not do that kind of work.

LUBA ceased paying Williams SEB’s in July 2002, and Williams filed this action for compensation with the OWC. After trial, the WCJ concluded that Williams was not entitled to further SEB’s because he had not attempted to perform the modified position offered by his employer at his former salary. Specifically, the WCJ said, in paht:

| (¡[Williams’] contention that he was unable to physically perform the modified position with Mark Johnson cannot be given merit inasmuch as he never attempted to discover what duties the position entailed, and he never attempted to perform those duties. Claimant failed to give his former employer the same opportunity given his subsequent employer, to provide job duties within his physical limitations, and the former employer should not be penalized for the claimant’s failure to do so. . Mark Johnson testified he would work with claimant in the modified job duties because of his urgent need for licensed plumbers to, assist him in his business. He testified he would have only required claimant to perform the lighter functions of plumbing work, and he would not have expected claimant to do anything which he was not capable of doing because of his injuries. It is unfortunate that Johnson never got the opportunity to accommodate claimant’s physical limitations. If said opportunity had been given, it is very likely that claimant would have been returned to his pre-injury job earning his pre-injury salary.

The WCJ awarded Williams back pay for the difference between the amounts actually paid and the proper compensation rate of $373.33 per week. However, the WCJ denied Williams’ demand for penalties and attorney fees. The WCJ cast Williams with one-half of the costs of the proceedings below. Williams now appeals.

Discussion

The findings of the WCJ are subject to the manifest error rule. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375. In applying the manifest error 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. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

_J¡¡Denial of SEB’s

Regarding SEB entitlement, La. R.S. 23:1221 provides, in pertinent part, as follows:

(3)(a) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his “wages” by fífty-two and then dividing the quotient by twelve.
(b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in any pain.
(c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region, (ii) For purposes of Subparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform | ¡¡employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.

From this provision, the claimant bears the initial burden of proving, by a preponderance of the evidence, that his injury resulted in his inability to earn 90% of his pre-injury wage, under the facts and circumstances of the case. Lee v. Schumpert, 36,733 (La.App.2d Cir.1/29/03), 836 So.2d 1214. 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 him within his or the employer’s geographic region. Id. If the employer satisfies that burden, then the claimant must show, by clear and convincing evidence unaided by any presumption of disability, that he is unable to perform the employment offered or available, solely as a result of substantial pain. Id.

The WCJ concluded that Williams failed to carry his initial burden of proving that his injury rendered him unable to earn 90% of his pre-injury wage. Nevertheless, the WCJ also went further and stated that the defendants “clearly demonstrated the existence of a suitable job, the amount of wages claimant could be expected to earn, and an actual position available.” Regardless of which party’s burden applied, we agree that the WCJ’s conclusion regarding the reasonableness of the job position offered Williams is not manifestly erroneous or contrary to our workers’ compensation law.

Section 1221 of the Act, as shown above, recognizes jobs tendered by the employer, including sheltered employment, and their effect on the ^reduction of the amount of SEB’s. Significantly, Section 1226 of the Act, discussing the employee’s entitlement to rehabilitative services, provides in sub-paragraph (B)(1), as follows:

The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs. The first appropriate option among the following must be chosen for the worker:
(a) Return to the same position.
(b) Return to a modified position.

In this case, the WCJ had to determine the credibility of the employer, Johnson, and his good faith in offering Williams the modified position. His testimony indicated that Williams’ expertise as a journeyman plumber was difficult to find in the job market since most experienced plumbers choose to be self-employed. Johnson also testified that to aid Williams in the job, he would assign Williams the same assistant for the heavy work who had occasionally worked with him before. Johnson testified that he was aware of Williams’ limitations as set forth in the FCE and that Williams would not be expected to perform the heavy duty tasks of a particular plumbing job.

The WCJ also had a credibility decision regarding Williams’ motives concerning his objections to the modified position offered by the former employer. Williams did not communicate with Diaz or Johnson after receiving the June 26 letter. He did not request a written job description nor seek to require approval by his doctor. Because of the fringe benefits of Williams’ new job which do not fit within the formula for the wage computations for SEB’s, the WCJ’s ruling against Williams in this case was no doubt based in part on his answer on cross-examination to the following:

|inQ. And I take it, you were not willing to consider the possibility that Mr. Johnson, who had been your employer for two years, was willing to create a new job that you had never heard of so that you could get back to where you were financially before you got hurt? You weren’t willing to consider that possibility?
A. I was satisfied with where I was.

Finally, we disagree with Williams’ argument that approval of the modified position by his doctor was required. Williams cites no provision under the Act mandating such approval. The FCE had been obtained by the employer and approved by the doctor, and Johnson showed his willingness to follow the recommendations of the FCE in re-employing Williams in the modified position.

Accordingly, we find no manifest error or legal error in the WCJ’s denial of SEB’s under the facts and circumstances of this case.

Penalties and Attorney Fees for Undercal-culation of Benefits

Williams urges that the OWC erred in failing to award him penalties and attorney fees because of the employer’s underpayment of benefits. The WCJ found, and we agree, that the employer miscalculated Williams’ wage benefits by the employment of the wrong wage definition under Section 1021(10)(a) of the Act. La. R.S. 23:1021(10)(a) provides, in part:

(10) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
| t i (ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident

Calculating Williams’ wages under the formula of La. R.S. 23:1021(10)(a)(ii) (omitting the partial week during which Williams was hurt), the employer apparently calculated Williams’ wages to be $525 [ ($448.00 + $490.00 + $602.00 + $560.00) divided by 4]. Two-thirds of that amount is $350.00, the adjusted amount of benefits paid after Williams’ first challenge of the amount of the benefit payments.

The evidence at trial supports the trial court’s finding that Williams’ benefits should be calculated under subparagraph (i) of Section 1021(10)(a) rather than sub-paragraph (ii). Johnson testified that Williams was a full-time employee who regularly worked 40 hours a week, with no independent discretion to work less. His wages are thus $560.00 per week (40 x $14.00), and two-thirds of that amount is $373.33, the correct compensation rate. Williams was therefore clearly undercom-pensated.

Former La. R.S. 23:1201(F) provided for penalties and attorney fees, in pertinent part, as follows:

F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day 112penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

An employee has the burden of proving his entitlement to statutory penalties for the employer’s failure to timely pay workers’ compensation benefits. Bolton v. Mike Fleming Const., 36,521 (La.App.2d Cir.12/11/02), 833 So.2d 1177. To reasonably controvert a workers’ compensation claim so as to avoid imposition of penalties and attorney fees, the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant. Id. To meet this standard, the employer must have some “valid reason or evidence upon which to base his denial of benefits.” Feild v. General Motors Corp., 36,339 (La.App.2d Cir.09/18/02), 828 So.2d 150. The court must determine whether the employer “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Feild, supra. Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Bolton, supra. The WCJ has great discretion in deciding whether to award or deny penalties |1sand attorney fees and such decision will not be disturbed absent abuse of that discretion. Fisher v. Lincoln Timber Co., 31,430 (La.App.2d Cir.1/24/99), 730 So.2d 973.

In this case, when Williams first challenged the underpayment before the OWC, the employer responded to his challenge by correcting its initial error of including the partial week of the accident in the calculation of wages. It did not, however, recalculate benefits under the correct sub-paragraph of La. R.S. 23:1021(10)(a). The WCJ found this second error excusable because of the variance in the amount of hours worked by Williams in the weeks prior to the accident. Additionally, we note that the record reflects that the $350 per week rate was the wage benefit amount determined by both parties after mediation of Williams’ first claim before the OWC. Under these facts, we find no abuse of discretion by the WCJ in the refusal to award penalties and attorney fees.

Court Costs

Finally, Williams argues that the WCJ erred by casting him with half of the cost of the proceeding below. La. C.C.P. art. 1920 provides that the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. Williams was only partly successful in his demands, so we find no reversible error in the trial court’s allocation of costs. Compare Thomas v. Irving Place Rehabilitation Care Center, 34,064 (La.App.2d Cir.11/1/00), 771 So.2d 820.

| uConclusion

For the above reasons, the judgment of the OWC is affirmed. Costs of this appeal are assessed to appellant, Jimmy Williams.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, PEATROSS, DREW, and MOORE, JJ.

Rehearing denied.

      . The statutes governing penalties and attorney fees in compensation cases changed, in some ways materially, on July 3, 2003, when La. R.S. 23:1201 was amended and La. R.S. 23:1202.2 was repealed by the enactment of Act 1204 of 2003. However, the penalty provisions in effect at the time of the alleged denial of benefits control. Gay v. Georgia Pacific Corp., 32,653 (La.App.2d Cir. 12/22/99), 754 So.2d 1101.


author: I,STEWART, J.

text:
    STATE of Louisiana, Appellee v. Donnie Ray BRYANT, Appellant.
    No. 38,950-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.
    Rehearing Denied Oct. 21, 2004.

      Louisiana Appellate Project by Carey J. Ellis, III, Indigent Defender Board, by Kelly Wayne Dishman, II, for Appellant.
    Paul Ji Carmouche, District Attorney, J. Thomas Butler, Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   I,STEWART, J.

The defendant, Donnie Ray Bryant (“Bryant”), was convicted of obscenity and sentenced to one and one-half years jail time. Bryant appeals citing insufficiency of the evidence. For the reasons that follow, we affirm his conviction and sentence.

FACTS

On February 3, 2004, in a bench trial, Bryant was convicted of obscenity in violation of La. R.S. 14:106 and sentenced to one and one-half years of jail time with credit for time served. Bryant could have been sentenced between six months and three years, with or without hard labor, fined between' $1,000 and $2,500, or both. La. R.S. 14:106(G.)(1). Bryant filed a motion to waive his right to a jury trial on October 8, 2003. The court questioned' him on December 1, 2003, and found that he voluntarily and knowingly waived his right to trial by jury.

No PSI was ordered, but Bryant’s criminal history was discussed in court on December 1, 2003, and revealed convictions for burglary, theft, two counts of simple escape, public drunkenness, and third degree burglary in Alabama for which he was sentenced two years. The earliest conviction dated back to 1973. Criminal history was not referenced at trial or sentencing.

DISCUSSION

Sufficiency of the Evidence

Bryant alleges that the evidence presented was insufficient to sustain a guilty verdict. To prove the charge of obscenity in the present case, the state had to show that the defendant intentionally exposed “the genitals, [ 2pubic hair, anus, vulva, or female breast nipples in any public place” and in a manner intended to arouse “sexual desire or which appeals to prurient interest or is patently offensive.” La. R.S. 14:106(A.)(1).

Officer Jason Person (“Officer Person”) of the Shreveport Police Department testified that on February 10, 2003, he observed Bryant standing in an open field behind a Fina station at the corner of Youree Drive and Stoner Avenue. Bryant was urinating and his genitals were visible. Officer Person stated that other people were present, there was passing traffic, and a school bus was unloading students at a stop within sight of Bryant. Officer Person then aimed his cruiser’s video camera on Bryant, zoomed in, and then took the defendant into custody. The video tape was not entered into evidence, and the state stipulated that it had been inadvertently erased.

The standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the defendant guilty of both elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence is clear that defendant was intentionally exposing his penis in a public place while urinating. Consequently, the issue is whether the defendant’s exposure was patently offensive within the meaning of La. R.S 14:06(A)(1).

The trial court determined Bryant’s urination was “patently offensive for someone in public with all the buildings and whatnot you can stand behind to urinate.” The record reveals that Bryant was standing in an open 1¡¡field behind a gas station during daylight hours in a “heavily traveled area.” Officer Person noted that Bryant was visible to the several people present and to passing traffic. He also testified that a school bus was unloading children within plain sight of the defendant urinating.

Consequently, the evidence, when viewed in a light most favorable to the prosecution, could allow a reasonable fact-trier to find the defendant guilty of intentional exposure of the genitalia in a public place in a manner that was patently offensive.

Error Patent

A review of errors patent revealed that the statutory language of La. R.S. 14:106 which defines the charge of obscenity was misstated in the bill of information as “intentionally expose ... in a public place and a place open to the public view with the intent of arousing sexual desire and which appeals to prurient interest and is patently offensive.”

The correct version of the statute reads, in pertinent part, the crime of obscenity is the intentional:

(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view, or in any prison or jail, with the intent of abousing sexual desire or which appeals to prurient interest or is patently offensive. La. R.S. 14:106.(A).
Italics added.

The conjunction changes in the bill of information favored the defendant, increasing the state’s burden of proof. The bill was never amended or corrected, orally or in writing.

While there were errors in the statutory language, the correct citation and general charge were noted on the bill of information. Cf. State v. Kendrick, 34,-097 (La.App.2d Cir.12/20/00), 779 So.2d 884 (where bill of information cited wrong section of the statute). The standard for errors in the bill of information is that an “[ejrror in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of the conviction if the error or omission did not mislead the defendant to his prejudice.” La. C. Cr. P. 464. Bryant could have filed a motion for a bill of particulars, then a motion to quash the indictment, and raised the issue on appeal. La. C. Cr. P. arts. 484-85. He did not.

At trial, the correct interpretation of the statute was used instead of the version stated on the bill of information. The state argued the offense was patently offensive. The court only referenced the public urination as being patently offensive when the defendant was sentenced. The conviction was responsive to the' original charge; therefore, the misstatement of statutory language on the bill of informátion amounted to harmless error. Bryant was informed of the crime for which he was charged through the correct charge of “obscenity” and corresponding citation of La. R.S. 106 and the appropriate section. The error is not ground for reversal of the conviction.

CONCLUSION

In sum, the evidence, when viewed in a light most favorable to the prosecution, is sufficient to support the verdict of guilty of obscenity. For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, DREW, and LOLLEY, JJ.

Rehearing denied.