text:
    Earl STEPHENS v. SOUTHERN SWEEPING SERVICES.
    No. 03-CA-826.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      J. Wayne Gillette, New Orleans, LA, for Plaintiff/Appellant.
    John J. Rabalais, Robert T. Lorio Raba-lais, Unland & Lorio, Covington, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

Claimant, Earl Stephens, has appealed the trial court’s grant of summary judgment in favor of Southern Sweeping Services. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY:

Earl Stephens (Stephens) worked as a sweeper for Southern Sweeping Services (Southern). His job duties included operating a blower to clean parking lots. On the evening of June 6, 2002, Stephens claims he injured his finger while in the course and scope of his employment with Southern when he tripped over a pipe and fell. He was initially paid workers’ compensation benefits, then Southern filed a disputed claim for compensation. On November 25, 2002, Stephens filed a pretrial statement contending that he “injured his finger, back and neck in an accident that occurred on June 6, 2002 when he fell while using a blower.” On October 30, 2002 Stephens’s testified in a deposition that he injured his back, finger, and neck in the fall. Stephens admitted to having a prior back injury that required a fusion but repeatedly testified that he had no continued pain after this prior accident. He further testified that his low back had been pain free for the last ten years. Stephens’s medical records were subpoenaed. These records revealed that Stephens sought treatment for back pain in 1997, 1998, 2000, and 2001.

Southern filed a Motion for Summary Judgment moving for dismissal of Stephens’s claim because of Stephens’s willful misrepresentations in violation of Section 1208 of the Workers’ Compensation Act. Stephens argued in opposition that he did not file a claim for a back injury, and that he only filed a claim for his hand injury. The trial court granted Southern’s motion as a result of Stephens’s violations of Section 1208 of the Louisiana Workers’ Compensation Act. On March 13, 2003, Stephens filed a Motion for Retrial that was denied. On March 19, 2003, Stephens filed a Motion to Reconsider and Set Aside the Grant of Summary Judgment. The trial court denied the Motion to Reconsider following a hearing. Stephens then filed this appeal.

LAW AND DISCUSSION:

On appeal Stephens argued that the trial court erred in granting summary judgment because at the time summary judgment was granted, there was an outstanding Motion in Limine. Stephens filed the Motion in Limine on March 3, 2003, four days before the hearing on the Motion for Summary Judgment. In the Motion in Limine, Stephens argued that his deposition testimony should have been excluded from Southern’s Motion for Summary Judgment because at the time of his deposition, he was under the influence of “mind clouding drugs.” Stephens concludes that had the deposition testimony been excluded, there would have been no basis to grant the summary judgment. Stephens further argues that a material issue of fact exists because Southern failed to prove that Stephens made a claim for back injury. Stephens also makes several arguments regarding the merits of his claim. Since we find that the trial judge correctly determined that a violation of Section 1208 occurred, we will not discuss the merits of Stephens’s claim.

In deciding whether summary judgment was appropriately granted, appellate courts review the evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2). Because it is only in the context of the applicable substantive law that issues of material fact be ascertained, a decision as to the propriety of a grant of a Motion for Summary Judgment must be made with reference to the substantive law applicable to the case. Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5 Cir.1988).

LSA-R.S. 23:1208 provides in pertinent part as follows:

A.It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

Our Supreme Court has held that this section was intended to prevent and discourage fraud in workers’ compensation claims. Section 1208 applies to any willful false statements or representations made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Company, 94-2708 (La.9/5/95), 660 So.2d 7, 12. Such false representations made to anyone, including the employer, physicians or insurers, result in forfeiture of those workers’ compensation benefits when the representations are made willfully for the purpose of obtaining benefits. Id. The requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (8) it is made for the purpose of obtaining or defeating any benefit or payment. Id.

A claim that the employee has violated La. R.S. 23:1208 is appropriate for resolution by way of summary judgment. Caye v. Slidell Travel Center, 2002-0208 (La.App. 1 Cir. 12/31/02), 837 So.2d 144.

In support of its Motion for Summary Judgment, Southern submitted portions of Stephens’s deposition in which Stevens testified that he injured his back, finger, and neck in the June 6, 2002 accident. Stephens testified that since the accident he had constant pain in his low back that he characterized as between seven and eight on a ten point scale. Stephens further testified that he had no continued back pain after the prior accident in the 80’s and that his low back was pain free for the last ten years. Stephens later testified, “I never had no problems with my back until I got hurt now.” Stephens again stated that he had no back pain whatsoever prior to the 2002 accident. Additionally, Stephens testified that he had not been treated for any medical condition in the last 10 years prior to this accident and that the last time he had seen a doctor for his back was more than 10 years ago.

Portions of Stephens’s medical records were attached to the Motion for Summary Judgment. These medical records indicate that in October 1997 Stephens underwent extensive diagnostic testing for complaints of low back pain. An MRI of the lumbar spine performed on October 10, 1997 indicates Stephens had a non-bony union of the L5-S1 facet joints and disc bulging at the L3-4, L4-5, and L5-S1 levels. A report by Dr. Norman Chutkan dated October 16, 1997 states that Stephens had a failed fusion at L5-S1 and that he was a candidate for additional surgery. A report by Dr. Chutkan dated May 25,1998 states that Stephens continued to have a lot of back pain and he was referred for physical therapy. A report by Dr. Chutkan dated January 21, 2000 states that Stephens returned because his disability was about to be denied. An x-ray report of Stephens’s back dated January 12, 2001 indicates that Stephens had “slight lumbar dextroscloiosis.”

In opposition to the Motion for Summary Judgment, Stephens submitted an affidavit from his sister, Kathleen Maria Johnson, stating that Stephens attended school in special education classes until 8th grade. Affiant further stated that Stephens becomes confused easily, has difficulty following explanations from other people, and that these problems are increased under stress. Stephens also submitted an affidavit stating that after he fell he dislocated his finger and has had back and cervical pain since the date of the injury and that he is claiming worker’s compensation for these injuries. Stephens went on to state that he was prescribed pain medication and had taken pain medication on the day of his deposition. He further stated that he became confused because he had taken a lot of medication and was upset because of having to give a deposition. Stephens stated that as a result he answered some of the questions wrong, which was a mistake because he was confused.

We find Stephens’s argument that he did not claim to have injured his back in the fall to be ludicrous. Stephens claims to have injured his back in his pretrial statement, in his deposition, and in his affidavit attached to his Opposition to the Motion for Summary Judgment. This argument is completely without merit.

We find Stephens’s argument that the Motion in Limine should have stopped the summary judgment from going forward is likewise without merit. The Motion in Limine addresses the same argument made in Stephens’s Opposition to the Motion for Summary Judgment — that Stephens is of limited intellectual capacity and was under mind altering drugs resulting in his deposition being incompetent. Stephens was asked numerous times in his deposition if he had residual back pain from his prior surgery. He repeatedly denied any pain. Stephens was asked several times if he sought treatment for back pain in the ten years prior to the 2002 accident. Stephens repeatedly denied seeking treatment. The medical evidence reveals that Stephens suffered from significant low back pain prior to the 2002 accident to such an extent that further surgery was recommended. This was not one isolated office visit that Stephens failed to recall. Rather, these records reveal an extensive workup for low back pain. The medical records indicate that Stephens sought treatment for low back pain as late as 2001, the year prior to the accident for which he seeks compensation.

The medical records show that Stephens suffered from significant low back pain prior to the 2002 accident and that Stephens denied any low back pain or treatment for low back pain in his deposition. This meets the first prong of the Resweber test. As for the second and third prongs of the Resweber test, we can only conclude that Stephens’s denial of prior low back pain and treatment was willfully made for the purpose of obtaining benefits since these are the same injuries for which he is currently seeking compensation.

Stephens attempts to defeat the Motion for Summary Judgment with self-serving affidavits from himself and his sister. These are insufficient to create a material issue of fact. Stephens was represented by counsel at his deposition when he repeatedly denied pain or treatment for low back pain. There were no bjections made as to Stephens’s mental state or being under the influence of medication.

CONCLUSION:

We find the trial judge correctly granted summary judgment in favor of Southern and dismissed Stephens’s worker's compensation claim for violation of R.S. 23:1208. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . In its motion, Southern also attacked the merits of Stephens’s claim. Deposition excerpts from two of Stephens's coworkers were attached to the Motion for Summary Judgments. These coworkers testified that Stephens told them that he injured his hand prior to going to work on June 6, 2002.

      . An affidavit of a police officer working at the store where Stephens claims the accident occurred was also attached to Stephens’s opposition. This officer stated that he shook Stephens hand when he arrived at the store. He observed Stephens begin working. He observed Stephens enter the store later then exit with the manager. At this time Stephens had ice on his right hand and he observed a disfigured and broken little finger.

      . The Motion in Limine makes additional arguments regarding the merits of the claim and whether or not it was proper for Southern to submit only portions of Stephens’s deposition.


source: Caselaw Access Project

author: DUFRESNE, Chief Judge.

license: Public Domain

text:
    Manuel CANTO v. FRANK’S SUPERVALUE.
    No. 03-CA-839.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.
    Manuel Canto, I.P.P., LaPlace, LA, for Plaintiff-Appellant.
    William C. Lozes, Brittany K. Benefield, Porteous, Hainkel & Johnson, Covington, LA, for Defendant-Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   DUFRESNE, Chief Judge.

This is an appeal by Manuel Canto, claimant, from a judgment denying him workman’s compensation benefits on grounds that he failed to show that he suffered a work related injury. Because we find no manifest error in the decision of the workman’s compensation judge, we affirm that decision.

The record discloses the following facts. Canto was employed by Frank’s Superva-lue grocery as a frozen food and produce stock clerk. He stated that while handling boxes of produce on April 20, 2002, he felt a pain in his right shoulder. He did not think much of the injury at the time and so did not report it then, but during the next several weeks he claims that the pain grew more severe. He consulted Dr. Cusco on June 12 and again on June 17 for shoulder pain, but still did not report the injury to his employer. The office notes from this doctor show that he treated claimant for a shoulder problem, but no mention is made of a work related incident. Finally on July 12, 2002, he reported the alleged incident to Joseph Lopinto, his supervisor, who had him fill out an accident report. On that report claimant gave the date of the alleged incident as April 20, 2003. He did not return to work after that July report.

Several months later Canto underwent surgery for a rotator cuff problem. The surgery was an apparent success, and Canto testified that he was almost back to normal at the time of the hearing in this matter.

He sought compensation benefits, but the employer denied that there was a com-pensable injury. Claimant then filed a Disputed Claim for Compensation form on which he again listed April 20, 2003, as the date of the incident. A hearing was held and the claim was denied on grounds that claimant had failed to show that he had suffered a work related injury. Claimant now appeals.

In claims for workman’s compensation the claimant bears the burden of proving by a preponderance of the evidence that he suffered a compensable injury in the course and scope of his employment. Starkman v. Munholland United Methodist Church, 97-661 (La.App. 5th Cir.1/14/98), 707 So.2d 1277. Also, the appellate standard of review of factual determinations made by workman compensation judges is that of manifest error. Id. Finally, when the only evidence of a work related injury is claimant’s testimony, that testimony is sufficient to carry his burden of proof if it is uncontroverted by any other evidence which casts serious doubt on that testimony and is corroborated by circumstances following the accident. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992).

In the present case, the only evidence of a work related accident was claimant’s testimony that he felt pain in his shoulder while handling a case of produce. Thus, for this testimony to have been sufficient for him to prevail there must have been a lack of contrary evidence as well as corroboration by subsequent events. As for countervailing evidence, Joseph Lopinto, his supervisor, testified that claimant did not in fact work on April 20, 2002, and he produced ^claimant’s time card which verified this. The employer also produced medical records showing that claimant had been treated for neck and back pains resulting from another workman’s compensation claim made in 1998. Other medical reports and claimant’s employee file showed that on May 14, 2001, he called in sick complaining of an inability to lift his right arm. No claim was made that that condition was work related. He did not report the alleged accident at issue here to the employer for almost three months. Finally, the medical notes from Dr. Cusco relating to treatment in June of 2002, do not mention any work related incident.

| Considering all of the above evidence, we can not say that the trier of fact’s finding that claimant did not prove that a compensable accident occurred in the course and scope of his employment was manifestly erroneous. It was clearly based on a permissible view of the evidence presented. We therefore must affirm those findings.

For the foregoing reasons the judgment of the Office of Workers’ Compensation Administration is hereby affirmed.

AFFIRMED.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Pamela R. DORAN v. LAFAYETTE INSURANCE COMPANY and House of Hubcaps.
    No. 03-CA-849.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Robert L. Hackett, New Orleans, LA, for Plaintiff-Appellee.
    Howard B. Kaplan, Bernard, Cassisa, Elliott & Davis, Metairie, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and SUSAN M. CHEHARDY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Lafayette Insurance Co. and its insured, House of Hubcaps, defendants-appellants, from a judgment in favor of Pamela Doran in this slip and fall case. Doran has answered the appeal. The jury awarded Doran $444,790, reduced by 37.92% for her comparative fault. For the following reasons we amend the judgment to eliminate the awards for future medical expenses and past and future loss of wages. In all other respects the judgment is affirmed.

The basic facts are straightforward. House of Hubcaps is an automobile supply store. Doran was working for another automobile related shop and went to House of Hubcaps on a rainy day to pick up a part for her employer. When leaving the House of Hubcaps she slipped on the wet stairs and fell. She subsequently underwent surgery for spinal disc problems allegedly caused by the fall. She further claimed that she was disabled because of the accident and subsequent surgery.

A jury returned a verdict in Doran’s favor as follows:

Past medicals $ 40,750
Future Medicals $ 24,250
Lost Earnings at Tidal $ 93,540
Future Lost Earnings $ 59,420
Past and Future Pain and Suffering $ 155,830
13L0SS of Quality of Life $ 71,000
TOTAL $444,790

It further found Doran 37.92% at fault and House of Hubcaps 62.08% at fault. Judgment was accordingly entered for plaintiff in the amount $276,125.63, plus interest and cost.

Defendants have appealed urging that plaintiff was 100% at fault, that she failed to prove causation, and that the various items of damages were not adequately supported by the evidence. Doran has answered the appeal contending that House of Hubcaps was 100% at fault, and that the award for future wages was substantially too low.

The first issue here concerns the jury’s apportionment of fault. In Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La.1985) the court held that the standard of appellate review in comparative fault determinations is the same as that for other factual matters, i.e. the manifest error rule. It then went on to enumerate factors to be weighed in evaluating fault apportionments for manifest error as follows. The appellate courts are to consider 1) whether the conduct resulted from inadvertence or involved awareness of the danger, 2) how great a risk was created by the conduct, 3) the significance of what was sought by the conduct, 4) the capabilities of the actor, whether inferior or superior and 5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

Initially we note that there was confusing and conflicting evidence as to the configuration of the stairs at the time of the accident, mainly because the stairs had been rebuilt by the time of trial. The defense introduced photographs of the stairs taken several weeks after the accident which showed that there were five steps made of 2x12 inch lumber approximately 8 feet wide, with a rail on each side consisting of an upright 2x4 and a 1x5 plank railing. Several witnesses testified that the steps were painted with non-skid paint. At the top of the stair was a double glass door.

Plaintiff testified that the configuration in the pictures was substantially correct except that the treads were made of either 2x4 or 2x6 lumber and were not painted. She also said that they were slippery. Her description of the accident was that when "she came out of the door she proceeded to the end of the stairs so as to be near a railing. She said that as she began to' descend she was looking down and noted that the tread boards were warped thus causing water to puddle on the surface. She was wearing high top tennis shoes, and when she placed about half of her foot on the next step down it went, out from under her. She grabbed the rail, but indicated that it was wobbly and she was unable to recover her footing. She said that she fell “on my rear end and my upper back. Bump, bump, bump, bounced all the way down.”

It is apparent that the jury believed that the steps were unpainted, slippery and puddled over, and that the rail was not stable. It is equally apparent that they concluded that plaintiff was also at fault in placing only her heel on the edge of the step. Considering all of the factors set forth in Watson, supra, we rule that the jury could reasonably, have determined that the defendant was 62.08% at fault, with the remainder being allotted to plaintiff. There being no manifest error on the part of the jury on this point, we must affirm that determination.

The next issue relates to causation. Defendants contend that none of plaintiffs treating physicians testified directly that her disc problems were the result of the fall, and therefore that she failed to prove her case. However, defendants ignore other evidence of record. Plaintiff had no complaints of back pain immediately prior to the fall, but said that these pains began that day and grew increasingly severe over the next few days. Her pain became so severe that she could no longer tolerate driving. Her sister and several friends testified that she was in good health before the accident, but afterwards showed obvious signs of pain.

Dr. Gordon Nutik, who treated her at the request of the insurer, was of the opinion that she had a soft tissue injury with bursitis in the hip, but found no other condition that he could relate to the fall. He noted that he did not find evidence of her malingering, but could not really explain the continuing pains. Nonetheless, plaintiff continued to complain of pain, and in March of 1996, about a year after the accident, she was diagnosed by Dr. Logan as having herniated discs at the L3-L4 and L4-L5 levels. She continued conservative treatment, but finally agreed to surgery about two years later. She underwent a posterior fusion at the L3-L5 level in which plates and screws were utilized. Her surgeon, Dr. Thomas Whiteeloud, said that he could not address causation because of the length of time between the fall and surgery. He considered the surgery as having a good result.

Plaintiff testified to continuous back problems over this entire time, she regularly sought treatment for this pain, and her family and friends corroborated, at least in part, her complaints. In light of this evidence the jury could well have found that the fall caused the injury and while we might have found differently, we cannot say that the jury’s determination was manifestly erroneous.

Defendants next complain about the awards for past and future wages. Plaintiff testified that she was working at two jobs at the time of the accident in February of 1995. She said that she quit the automotive shop job, but continued to drive the cab for another year, although on a part-time basis because driving for long periods exacerbated her back problems. She indicated that she was earning about $3,000 per month before the incident. However, she did not produce any income tax returns for years after 1991, nor did she come forth with any other documentary or other corroborative evidence of earnings. She also testified that her pain had become so severe about a year after the fall that she was unable to work at all. Since the surgery she is considered totally disabled for Social Security purposes. Her past work experience included long distance trucking, a job she said she could no longer do.

Her economic expert, Shale Wolfson, testified that he made several calculations based on plaintiffs prior experience and earnings. He first used figures showing that cab drivers earn about $17,000 per year and calculated her lost wages at this rate up to the time of trial to have been about $130,000. He then subtracted an estimated $21,000 in earnings which plaintiff said she had earned in 1995, leaving a net loss of $109,000. He did not give any figure for future lost wages at this rate. He was then asked to assume earnings of $34,000 per year, and came up with a pretrial figure of $269,000, and a future loss of $383,000. The future lost wage figure was based on plaintiff not being able to work for the remainder of her life. On the basis of this testimony the jury awarded $93,540 for past lost wages and $59,420 for future lost wages.

The problem with these calculations is that there is no evidence to support the underlying wage loss, other than plaintiffs completely uncorroborated statements about past earnings. She testified that she had two jobs at the time of the fall, but did not produce any documentary evidence of earnings such as pay stubs, nor did she elicit testimony from her employers which would have supported her claims. Moreover, there was no medical or other evidence to substantiate that plaintiff was disabled either before or after the accident, except perhaps for the time directly involved in the surgery. In these circumstances the award of lost past and future wages was merely conjectural and the jury was manifestly wrong in making these awards. Matthews v. Dousay, 96-858 (La.App. 3rd Cir. 1/15/97), 689 So.2d 503. We therefore set aside the awards for past and future loss of earnings.

Similarly, there was no evidence of future medical expenses. None of plaintiffs treating physicians make mention of such future treatments, nor did plaintiff herself. The only evidence remotely bearing on this point is that plaintiff still takes pain medication, but even here there was no evidence of the cost of these drugs. We therefore likewise conclude that the jury erred in making this award and set it aside as well.

As to the remaining items of damages, defendants do not argue that they are too high. Rather they assert that plaintiff failed to prove causation and thus that there is no basis for these awards. As shown above, the jury’s determination as to causation was not manifestly erroneous and therefore there was a basis for the awards.

For the foregoing reasons, we hereby vacate the awards of $93,540 for past loss of earnings, $59,420 for future loss of earnings, and $24,250 for future medical expenses. The remaining items total $267,580 which when reduced for plaintiffs comparative fault results in an adjusted amount of $166,113.67. In all other respects the judgment is affirmed.

AMENDED AND AFFIRMED AS AMENDED.


author: | JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Donald FAVORITE.
    No. 03-KA-425.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Ike Spears, Ron A. Austin, New Orleans, LA, for Appellant.
    John M. Crum, Jr., District Attorney, Rodney Brignac, Assistant District Attorney, Edgard, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, WALTER J. ROTHSCHILD and EMILE ST. PIERRE, Pro Tempore.
   | JAMES L. CANNELLA, Judge.

The Defendant, Donald Favorite, appeals from his conviction of manslaughter and his sentence of 29 year's imprisonment at hard labor. We affirm and remand.

The Defendant was initially charged with the second degree murder of Brice Grows (Grows) on May 17, 2000. Various pre-trial motions were filed and the case was tried by a jury on June 12 through June 14 of 2001. On the first day of trial, the Defendant filed a motion in limine to allow evidence of the dangerous character of the victim to be presented. The trial judge deferred ruling on the motion until commencement of the trial. During the trial, a closed hearing was held on this motion, following which the motion was denied. The jury subsequently found the Defendant guilty of manslaughter, a violation of La.R.S. 14:31. The Defendant was sentenced to imprisonment at hard labor for 29 years, with credit for time served.

Near midnight on April 1, 2000, the Defendant drove himself and three of his friends, Michael Johnson (Johnson), Rory Weber (Weber) and Kendall Vedol (Vedol) from Vacherie, Louisiana to a party at the Hot Spot Lounge in Edgard, Louisiana. Upon arriving, the Defendant, Johnson and Vedol went inside the lounge while Weber remained outside. Vedol had just bought the first round of drinks for his friends when someone entered the bar and told them that Weber wanted them to go outside. A crowd of people was gathered there observing an argument between Weber and Grows. Upon seeing this, the Defendant walked to his car, suggesting to his Mends that they leave with him. The Defendant testified that Grows cursed him when he saw him. The Defendant retorted that Grows didn’t even know the Defendant, but Grows insisted that he did. Grows stated that he was going to stop the Defendant and his friends from coming down to Edgard in the future. Grows then threw a cup of liquid in the Defendant’s face. The Defendant again told his friends that they were leaving. As they walked to the Defendant’s vehicle, Grows threw a can of beer at him. The bartender then pulled Grows away from the scene toward the bar.

The Defendant’s car, a four-door, medium-sized Mercury with tinted windows, was parallel parked with the front toward the street and the rear facing the lounge. The Defendant got into the driver’s seat. Because the cars parked in front and behind the Defendant’s vehicle were about one and one-half feet apart, and because it was dark and his windows were tinted, the Defendant had his door open while he attempted to maneuver his car out of the spot. According to the Defendant, Weber was outside the vehicle directing his driving. Johnson was in the car. Suddenly, Grows moved across the lot toward the Defendant from the area near the bar where he had been taken by his friends. The Defendant saw him coming, and as Grows neared the Defendant’s car, the Defendant fired several shots, striking Grows. He died at the scene. The Defendant, Weber and Johnson left the scene and drove to the Defendant’ girlfriend’s house in Magnolia, where he called his parents.- The other men drove off -in the car. Later, the Defendant and his father went to the police station in St. James Parish where the Defendant turned ¿himself in to the police. He was subsequently taken to the police station in St. John the Baptist Parish.

After leaving the Defendant’s girl-Mend’s house, Johnson drove the vehicle toward his house. However, they were stopped by the police at the Westbank Reception Center, as a result of the police alert sent out to the local sheriffs’ offices. When Johnson saw the police, he threw the gun from the car. He was on probation at the time. The weapon and magazine were recovered in St. James Parish by St. James Parish Deputy Steve Brig-nac. The gun, a 9mm Luger, contained one live round of ammunition in the chamber and 12 live rounds of ammunition in the clip.

Sergeant Michael Davis, a crime lab technician with St. John the Baptist Parish Sheriffs Office, investigated the incident. At the scene of the shooting he recovered eight spent casings, a live round of ammunition, a spent bullet and a copper jacket from a spent bullet. Three bullets were found in one grouping and five bullets in another. This evidence was recovered from a gravel road adjacent to the front of the Hot Spot Lounge. Sergeant Davis also took autopsy photographs and obtained the victim’s clothing and a bullet recovered during the autopsy. He later was given the weapon, clip and live ammunition from Deputy Brignac. After analysis, the experts determined that the recovered weapon fired the shots that killed Grows.

On appeal, the Defendant does not contest that he shot Grows. He asserts that the evidence was insufficient to support a conviction for manslaughter because the Defendant acted in self-defense and with justification. He also argues that the trial judge erred in excluding witnesses that would have testified to Grows’ violent and dangerous character and that the sentence is excessive.

The standard for appellate review of the sufficiency of evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Johnson, 01-1362, p. 7-8 (La.App. 5th Cir.5/30/02), 820 So.2d 604, 608, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32. When the trier-of-fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Cazenave, 00-183, p. 14 (La.App. 5th Cir.10/31/00), 772 So.2d 854, 860, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. Id.; State v. Marcantel, 00-1629, p. 9 (La.4/3/02), 815 So.2d 50, 56.

Defendant was found guilty of manslaughter. At the time of the commission of this offense, manslaughter was defined in La.R.S. 14:31, in part, as follows:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled at the time the offense was committed,...

“Sudden passion” and “heat of blood” distinguish manslaughter from murder, but they are not elements of the offense. Rather, they are mitigatory factors which may reduce the grade of the offense. State v. Mason, 00-1223, p. 8 (La.App. 5th Cir.1/30/01), 782 So.2d 1093, 1098, writ denied, 01-0784 (La.11/16/01), 801 So.2d 1075. In order to be entitled to the lesser verdict of manslaughter, a defendant is required to prove the mitigatory factors by a preponderance of the evidence. Id.; State v. McKinney, 99-395, p. 10 (La.App. 5th Cir.11/10/99), 749 So.2d 716, 721, writ denied, 00-0144 (La.9/29/00), 769 So.2d 550.

Under La. R.S. 14:20, a homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

When a defendant claims self-defense, the state must prove, beyond a reasonable doubt that the defendant did not act in self-defense. State v. Garcia, 483 So.2d 953, 956 (La.1986); State v. Sprinkle, 01-137, p. 16 (La.App. 5th Cir.10/17/01), 801 So.2d 1131, 1141, writ denied, 01-3062 (La.10/25/02), 827 So.2d 1174, cert. denied, 537 U.S. 1235, 123 S.Ct. 1358, 155 L.Ed.2d 200 (2003); State v. Barnes, 98-932, p. 4 (La.App. 5th Cir.2/10/99), 729 So.2d 44, 46, writs denied, 99-1018 (La.9/17/99), 747 So.2d 1099, 01-0519 (La.10/12/01), 799 So.2d 499. The relevant inquiry on appeal is whether a rational factfinder, after viewing the evidence in the light most favorable to the prosecution, could have found, beyond a reasonable doubt, that the homicide was not committed in self-defense. Sprinkle, 01-137 at p. 16, 801 So.2d at 1141; Barnes, 98-932 at p. 5, 729 So.2d at 46.

In Johnson, we stated that “The determination of a defendant’s culpability rests on a two-fold test: (1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger, and (2) whether deadly force was necessary to prevent the danger.” Johnson, 01-1362 at 8, 820 So.2d at 608, While there is no unqualified duty to retreat from an altercation, the possibility of escape is a recognized factor in determining whether or not a defendant had a reasonable belief that deadly force was necessary to avoid the danger. Johnson, 01-1362 at 8, 820 So.2d at 609.

Under La. R.S. 14:21, an aggressor cannot claim self-defense. The statute provides:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

In this ease, the versions of the events provided by the witnesses were conflicting. Numerous eyewitnesses testified. The witnesses agreed that Grows was initially engaged in an argument with Weber, that the Defendant had attempted to defuse the situation by telling his friends that they were going to leave the area, that Grows threw a cup of liquid and a can of beer on the Defendant, that Grows was pulled away by spectators, and that Grows again approached the Defendant and his friends. The testimony of both State and defense witnesses also indicated that the Defendant- and his friends were attempting to drive away when Grows approached their vehicle. None of the witnesses actually saw anything in the victim’s" hands as he approached the Defendant..

There was conflicting testimony regarding the victim’s actions as he went toward the Defendant and his friends. The State’s witnesses testified that Grows’ hands were up in the air as he went toward the Defendant. Some of those witnesses testified that Grows “walked” toward the Defendant and his party, while other State and defense witnesses testified that Grows “ran” toward them. In addition, The Defendant, Vedol and Webre said that Grows had his right hand behind his back as he approached. At least one defense witness, Johnson, testified that Grows stopped and entered a dark truck before running toward the Defendant. Webre added that someone threw rocks at them, striking the vehicle as the men tried to drive from the parking lot. Hamilton, Vedol and the Defendant said that Grows was threatening and verbally abusive to the Defendant as he (Grows) approached the vehicle. Two other witnesses indicated that Grows was followed by other men as he approached the car. Lumar, Bailey, Hamilton, Jackson and B. Johnson testified that the Defendant shot Grows after getting out of the car, while Gauthier, Ve-dol and the Defendant insisted that he was in the car when he fired the shots.

Dr. Frazier McKenzie, a medical examiner with Jefferson Parish, performed the autopsy on Grows. According to Dr. McKenzie, the victim died of a fatal gunshot wound to the abdomen, which entered the right front side of the body. The victim was shot multiple times, with bullets also piercing the liver, spleen and kidneys. Additionally the victim was shot in the outside of the right lower arm and the right leg. Dr. McKenzie testified that the bullets that struck the arm and leg entered from behind the victim, with three bullets entering and two grazing the victim.

Patrick Lane (Lane) of the State Crime Laboratory, an expert in firearms and ballistics, examined the 9mm weapon recovered in this case, as well as three fired projectiles and eight cartridge casings. He concluded that this firearm fired the recovered projectiles and casings. He also testified that the weapon was semi-automatic and that the trigger had to be pulled for each firing. Lane reviewed the photographs, which revealed the placement of the bullets found at the scene and concluded that there had been a “dynamic type movement of the shooter” and that the shooter had been in two different positions.

The jury apparently concluded that Grows was initially the aggressor when he confronted and assaulted the Defendant by throwing two drinks on him, that this provocation was sufficient to deprive an average person of self-control and that an average person’s blood would not have cooled between the time of this incident and the shooting, thus warranting a verdict of manslaughter rather than second degree murder. However, they apparently did not believe either that the Defendant was in jeopardy of death or great bodily harm or that he may have been, but the killing was not necessary to prevent his death or great bodily harm. See: La. R.S. 14:20(1). The evidence was conflicting about whether the approaching victim was armed or dangerously aggressive and the jury could have concluded that the Defendant, who was in a car, could have safely left the area instead of shooting the victim. Based on the evidence, the jury could have concluded that the Defendant became the aggressor and that his claim of self-defense was not supported by the facts. This conclusion is also supported by the medical examiner’s findings that at least some of the bullets entered the victim from behind. These are credibility determinations and this Court cannot assess credibility nor reweigh the evidence on appeal. Cazenave, 00-183 at p. 14; 772 So.2d at 860; Marcantel, 00-1629 at p. 9; 815 So.2d at 56. Accordingly, we find that the State proved beyond a reasonable doubt the essential elements of the crime of manslaughter and that the Defendant did not act in self-defense.

In his second assignment of error, the Defendant contends that the trial judge erred in excluding witnesses who would testify to the violent and dangerous character of the victim. On June 12, 2001, the Defendant filed a Motion in Limine to allow him to present evidence of the vie-tim’s hostile traits and general character evidence at trial in order to buttress his position of self-defense. On the first day of trial, prior to jury selection, the motion in limine was heard. The trial judge deferred ruling on the admissibility of the evidence until trial, and he expressed concern that the defense would have to present “appreciable evidence” of an overt act under La.C.E. art. 404. The trial judge reasoned that such evidence would form the basis of trial testimony and he would make a ruling at the appropriate time. Following the presentation of the State’s case and all but one witness in the Defendant’s case, a hearing was held, out of the presence of the jury, regarding the admissibility of victim character evidence.

At the hearing, the Defendant alleged that Grows was the aggressor because he charged the Defendant’s car, threw two drinks on the Defendant and had to be restrained and pulled from the scene. Thus, the Defendant argued that he should be permitted to present victim character evidence through the testimony of Martin Harry (Harry), Kenny Trufant (Trufant), Mark Bergeron (Bergeron), and Sheldon Cannon (Cannon). According to the Defendant, Harry would testify that he and the Defendant once went to Edgard and a shooting had occurred. During the shooting, some people from Vacherie attacked the Defendant and Harry and fired shotgun pellets at them, striking the Defendant. The Defendant later learned one of the persons involved was Grows. The Defendant wanted to introduce the evidence to corroborate testimony of Deputy Brig-nac and Lieutenant Earl Geason that the Defendant was previously shot at the same lounge, and to show the Defendant’s state of mind. The Defendant stated that Trufant would testify that the victim put a gun to Trufant’s head in the past. The Defendant stated that Bergeron would testify that Grows and his friends tried to “jump” Bergeron and his friends the week before the current incident. Cannon would testify that he stopped the victim from fighting several times and Cannon’s brother witnessed the current incident and believed that the Defendant shot the victim in self-defense.

The State objected on the basis that there had been no proof of a hostile demonstration or “overt act” on the part of the victim in this case. The State alleged that putting a hand behind one’s back was insufficient to demonstrate an “overt act” and additionally, there was considerable evidence to indicate that the victim approached the Defendant with his hands in the air. The State further argued that Harry’s testimony would be unreliable and unduly prejudicial. The trial judge ruled that the evidence was inadmissible, stating:

THE COURT:
I take different tacks in analyzing this, especially when I’m considering the overt acts individually. As the first tack, I don’t find any of the acts of Brice Grows to be raised to the specter that would trigger the permissibility of character evidence.
With that said, I go on to a more expansive approach where I hear this theory about — about—I don’t know about too much law — but totally of facts. One drink being thrown, a second being thrown, and this testimony about charging with the hand behind the back.
I come up with the same answer: That after this analysis takes place, at least in my analysis, I still don’t think he’s raised himself above the bar ... to permit character evidence by admissibility under 404.
I don’t come to the hearsay problem because it stops there. It’s a ruling based solely on the 404 issue. And I have great problems with the hearsay issue but I’m not addressing it because it’s not coming in under the 404, so I’m not going any further than I have to go.
The offense certainly is the most violent offense. It’s just a defense that’s not going to [sic] forward with this man’s testimony....

Following this ruling, the Defendant stated that he wanted to proffer the evidence, but then decided not to do so and merely lodged an objection to the trial court’s ruling.

For an error to be predicated upon a ruling excluding evidence, a substantial right of a party must be affected and the trial court must be informed of the substance of the excluded evidence. La.C.E. art. 103(A)(2); State v. Lobato, 603 So.2d 739, 748 (La.1992); State v. Joseph, 01-360, p. 25 (La.App. 5th Cir.10/17/01), 802 So.2d 735, 745.

The Defendant advised the trial court that he decided not to proffer the evidence and such an action normally constitutes a waiver of the claim for appellate review. State v. Batiste, 96-1010, p. 8 (La.App. 5th Cir.1/27/98), 708 So.2d 764, 769, writ denied, 98-0913 (La.9/4/98), 723 So.2d 954. However, since the Defendant did lodge an objection and informed the trial court of the substance of the evidence he sought to present, we will consider the merits of the claim. La.C.E. art. 103 A(2).

La.C.E. art. 404 controls the admissibility of character evidence during a criminal trial, and provides, in pertinent part, as follows:

A. Character evidence generally. Evidence of a person’s character or a trait of his character, such as a moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except. ...
(2) Character of victim, (a) Except as provided in Article 412 [rape shield], evidence of a pertinent trait of character, such as a moral quality, of the victim of the crime offered by an accused, or by the prosecution to rebut the character evidence; provided that in the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of his dangerous character is not admissible[.]
B. Other crimes, wrongs, or acts
(2) In the absence of evidence of a hostile demonstration or an overt act on the part of the victim at the time of the offense charged, evidence of the victim’s prior threats against the accused or the accused’s state of mind as to the victim’s dangerous character is not admissible....

Evidence of a victim’s dangerous character is admissible only if the accused first produces evidence that, at the time of the incident, the victim made a hostile demonstration or committed an overt act against the accused of such character that would have created, in the mind of a reasonable person, the fear that he was in immediate danger of losing his life or suffering great bodily harm. State v. Edwards, 420 So.2d 663, 670 (La.1982); State v. Jones, 99-798, p. 5 (La.App. 5th Cir.11/10/99), 748 So.2d 1176, 1179, writ denied, 00-306 (La.12/8/00), 775 So.2d 1076. Once the defendant establishes the commission of an overt act, evidence of threats and of the victim’s dangerous character is admissible for two purposes: (1) to show the defendant’s reasonable apprehension of danger justified his conduct; and (2) to help determine who was the aggressor in the conflict. Edwards, 420 So.2d at 670; Jones, 99-798 at p. 5, 748 So.2d at 1179. A trial judge’s determination that a defendant has not laid a sufficient eviden-tiary foundation upon which to introduce testimony concerning the victim’s dangerous character will not be disturbed on appeal, absent a finding of clear error. State v. Jackson, 419 So.2d 425, 427 (La.1981).

In this case, Vedol testified that the victim first threw a drink on the Defendant and hit him with a beer can before he was pulled from the scene by a spectator. According to this witness, the victim then “came running back toward the car with his hand behind his back.” However, on cross-examination, he admitted that he could not see the victim’s hands as the victim got near the car. It is significant that Vedol testified that he did not feel threatened by the victim.

Weber testified that he saw the victim throw two drinks on the Defendant before the victim’s friends pulled him away. Weber testified that the victim was running toward the car and when he got near the car “he went behind his back like he had something.” Weber, likewise, testified that he was not afraid of the victim, even though the victim had reportedly confronted him earlier that night.

Johnson testified that he saw the victim argue with the Defendant, curse and throw a drink on him. Johnson stated that the victim had been pulled away but he ran back and threw a can of beer, hitting the Defendant. The victim was then dragged across the parking lot. Johnson testified that he saw the victim go inside a truck across the parking lot and that he “came running back at us with his right hand behind his back.” However, when asked if the victim had a gun, Johnson replied, “I couldn’t see through the tint, sir, once he passed me.” He also stated that he could see the victim running toward the car because his car door was open. Johnson could not remember if the victim was saying anything as he approached the Defendant’s vehicle. Johnson testified that he watched the victim run all the way up to the car. Although his window was tinted and up, Johnson could see because he was paying “attention to details” and he “watched the bullets, the shirt, t-shirt, suck in where the bullets hit him at.”

In State v. Jackson , 419 So.2d 425 (La.1981), the Louisiana Supreme Court considered a case in which the victim approached defendant with her right hand behind her back while cursing the defendant. The defendant fired a warning shot, but the victim continued to advance with her hand behind her back. A second shot was fired which was aimed low and hit the victim in .the leg, but the victim continued to advance. The defendant was then backed up against a parked car and she fired the fatal shot when the. victim was closest to her and still advancing. The Court found the defendant had established the foundation for the admissibility of the victim character evidence and reasoned:

The fact that the victim continued to advance on the defendant in a hostile and frightening manner even after the defendant has fired two shots was enough to make the defendant believe that the victim was concealing a weapon. The relevant inquiry is not whether or not the victim actually had a weapon behind her back, but whether or not the defendant could reasonably believe she did. In this case, the 11sdefendant could have reasonably believed that she was in imminent danger of death or great bodily harm.

State v. Jackson, 419 So.2d at 427.

In State v. Cavalier, 421 So.2d 892 (La.1982), the defendant alleged that the victim was armed with a gun, was verbally aggressive in an argument with him, and made several different hand motions while approaching him. The defendant argued that these actions constituted an “overt act” for purposes of La.C.E. art. 404. The state’s witnesses had all testified that the victim did not own a gun and did not possess one when he was shot. The defendant’s witnesses testified that the victim possessed a gun that was removed by the defendant’s cousin after the shooting. The Louisiana Supreme Court concluded that the fact that the victim got up from the sidewalk and was reaching behind his back into his waistband while approaching the defendant was not an overt act.

In State v. Johnson, 94-287 (La.App. 5th Cir.9/27/94), 643 So.2d 1323, writ denied, 94-2790 (La.4/7/95), 652 So.2d 1344, this Court found that the defendant had not met the threshold test of showing an “overt act.” There was conflicting evidence on the actions of the victim shortly before the defendant beat him to death with a baseball bat. According to the defendant, he and the victim had “been feuding for a couple of days” and the two encountered each other at a local bar. The defendant testified that he first left the bar because his seafood order was not ready when he arrived. According to the defendant, as he was leaving, some people standing outside told him that the victim was threatening to kill him. When he returned to the bar, the victim was seated eating seafood. According to the defendant, upon seeing him, the victim turned around and reached in his pants. The defendant then struck the victim.

Several witnesses testified that the victim’s hands were in or near his plate of food. However, two witnesses testified that they saw a gun-butt sticking out of the waistband of the victim’s pants when he fell to the floor. A bar patron testified that he saw the victim attempt to reach for his waistband while being struck by the defendant. According to this witness, someone in the club removed the gun and handed it to the victim’s brother.

In the present case, in addition to the evidence that the victim and the Defendant had disengaged after the victim threw two drinks on him, the Defendant failed to establish that shortly before the shooting the victim approached the Defendant in a threatening manner. Moreover, there was considerable evidence that the victim approached the Defendant with his hands in the air. Additionally, no one ever saw the victim in possession of a weapon that night. In this case, as in Cavalier and Johnson, the Defendant did not satisfy his burden of showing, “by appreciable evidence” an overt act of the victim which would create in the mind of a reasonable person a belief that he was in imminent danger of losing his life or suffering great bodily harm. Thus, we find that the trial judge did not err in finding the evidence inadmissible at trial.

The Defendant next contends that his sentence is excessive. He argues that the trial judge failed to consider sentencing guidelines and failed to tailor the sentence to the offender and offense.

In determining a sentence, the trial court is to consider the sentencing guidelines set forth by La.C.Cr.P. art. 894.1. The sentencing court “shall state for the record the considerations taken into account and the factual basis therefore in imposing sentence." La.C.Cr.P. art. 894.1(C). However, when the trial judge fails to articulate every circumstance listed in La.C.Cr.P. art. 894.1, a remand is not necessary if there is an adequate factual basis for the sentence contained in the record. State v. Fairley, 02-168, p. 8 (La.App. 5th Cir.6/26/02), 822 So.2d 812, 817.

Both the United States and Louisiana constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. Amend. 8, La. Const. of 1974, Art. I, Sect. 20; State v. Richmond, 98-1015 (La.App. 5th Cir.3/10/99), 734 So.2d 33, 38. A sentence is generally considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Richmond, 734 So.2d at 38; State v. Lobato, 603 So.2d 739, 751 (La.1992). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. However, the sentence will not be set aside absent a showing of manifest abuse of the trial court’s wide discretion to sentence within statutory limits. Richmond, 734 So.2d at 38. The trial judge is afforded wide discretion in determining a sentence and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4(D); Richmond, 734 So.2d at 38. In making this determination, the sentencing judge may consider not only convictions, but also past criminal behavior that did not result in a conviction. State v. Anderson, 02-273, p. 7 (La.App. 5th Cir.7/30/02), 824 So.2d 517, 522, writ denied, 02-2519 (La.6/27/03), 847 So.2d 1254; State v. Gilbert, 00-1822, p: 5 (La.App.5th Cir.5/16/01), 788 So.2d 574, 577. Nonetheless, a sentence may be reviewed for ex-cessiveness even though it is within statutory range. Richmond, 734 So.2d at 38.

After reciting the procedural history of the case and the fact that he ordered and considered the pre-sentence report, the trial judge gave the following pertinent reasons for sentencing:

I’m merely the sentencing authority. Some of the factors I’ve considered. 894 factors, of course was the fact that a very crowded area was involved. The endangerment of a great number of people made an impression upon me. There was, in fact, a victim. Death resulted. The defendant afterwards fled from the area. And certainly a dangerous weapon was involved. While I considered all of the aggravating circumstances, these aré the ones that have become most to my mind. So I consider other sources when I come to sentence. I notice that Mr. Favorite has no appreciable criminal record. He is a true first time offender. That will be figured into my sentence today. Other sources I’ve gleaned in my sentence consideration are those factors found in the presen-tence investigation, which was filed by the Department under the hand of Mr. Jones and Mr. Arabie. Particularly touching were the letters filed on behalf of Mr. Favorite. Mr. Miceli did yeoman’s duty in assembling no less than a hundred and sixty-three letters. I’m sure there were more, but I was presented with a hundred and sixty-three letters from co-employees, ministers, members of the community. All sorts of people up and down the river. You, indeed, have many friends there, Mr. Stewart, Mr. Favorite, excuse me. They are all concerned for your welfare and they’ve effectively asked for leniency in sentencing. The crime is such a crime that a suspended sentence is not possible. It is a very serious crime. A death resulted. That was, of course, foremost on my mind. The possible sentence that I could give you would range anywhere from no sentence, to that of forty years with the Department of Corrections. It’s under my considered opinion, and I took a good while to consider this, and as the Court says, to individualize the sentence, that I determined that twenty-nine (29) years is the term of your incarceration.

(Emphasis added).

The trial judge considered both the aggravating and mitigating factors. The aggravating factors included the severity of the crime, that a weapon was used, that a death resulted, that numerous persons were endangered, and that the Defendant fled from the crime scene. Among the factors in mitigation, the trial judge considered the pre-sentence report which reflected that the Defendant was a first time felony offender, that he was a young man who had a high school education, that he was gainfully employed and respected in the community, as was evidenced by numerous letters of support submitted on his behalf. We find that the trial judge complied with the sentencing guidelines of La. C.CrJP. art. 894.1.

The Defendant next argues that the sentence is excessive in light of the nature of the offense and the background of the offender. The Defendant was tried on the charge of second degree murder, under La.R.S. 14:30.1, which, upon conviction, carries a mandatory life sentence. He was convicted of the responsive verdict of manslaughter, which carries a maximum sentence of 40 years imprisonment at hard labor. La.R.S. 14:31. A pre-sentence report recommended the trial judge to impose the maximum sentence of 40 years. The trial judge imposed a 29 year sentence, which was within statutory limits.

In the case of State v. King, 00-1434 (La.App. 5th Cir.5/16/01), 788 So.2d 589, writ denied, 01-2456 (La.9/20/02), 825 So.2d 1157, this Court affirmed a sentence of 25 years of imprisonment for manslaughter for a first time felony offender. In King, the defendant had alleged that the victim stole money from him and when the defendant went to confront the victim about the alleged theft, the defendant shot the victim several times, one time from the rear, killing him. The defendant was charged with second degree murder, but found guilty of manslaughter.

The facts of the present case are more egregious than those in King. Here, the Defendant’s actions endangered more than one person. Although the Defendant was a first time felony offender, he nonetheless fired nine shots, in an area surrounded by spectators, striking the unarmed victim several times (some shots from the rear) killing him, before fleeing the scene. Under these circumstances, we find that the trial judge did not abuse his sentencing discretion in imposing the 29 year sentence.

The Defendant also argues that the trial judge erroneously instructed the jury that he would impose a sentence of “four” years of imprisonment upon a conviction of manslaughter. This Court requested the court reporter to recheck the trial judge’s instructions against both her primary and backup systems. She discovered that the trial judge said “forty” not “four” years and she amended her transcript accordingly. Therefore, this alleged error lacks merit.

ERROR PATENT

We have reviewed the record for patent errors pursuant to the Defendants request and in accordance with La.C.Cr.P. art. 920. See: State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198.

According to the minutes, the trial judge advised the Defendant of the prescriptive period for filing for post conviction relief at the time of the appeal bond hearing, not at the sentencing. Since there is no transcript of that hearing, we cannot determine if the advisory was correct. Thus, we will remand the case with an order for the trial judge to send written notice to the Defendant of the prescriptive period for filing an application for post-conviction relief, along with a notice of when the period begins to run, within ten days of the rendering of its opinion, then to file written proof in the record that the Defendant received the notice. See: State v. Esteen, 01-879, p. 28 (La.App. 5th Cir.5/15/02), 821 So.2d 60, 78.

Accordingly, we hereby affirm the Defendant’s conviction and sentence. We remand the case with an order to the trial judge to send to the Defendant, within ten days of the rendering of this opinion, written notice of the prescriptive period for post conviction relief, along with a notice of when the period begins to run, and then to file written proof in the record that the Defendant received the notice.

CONVICTION AND SENTENCE AFFIRMED. CASE REMANDED.

      . The State called Anunka Lumar (Lumar), Chasna Narcisse (Narcisse), Clifford Bailey (Bailey), Chester Hamilton (Hamilton), Harvey Tilton (Tilton), Sharonne Gauthier (Gau-thier), Jerome Jackson (Jackson), Brandon Johnson (B.Johnson), and Carlo Savoie (Sa-voie). The Defendant called Vedol, Weber and Johnson.

      . Jackson, B. Johnson and Webre.

      . Lumar, Weber, M. Johnson and the Defendant.

      . Lumar and Jackson.

      . Lumar, Narcisse, Hamilton, Gauthier, Jackson, B. Johnson, Vedol, Weber, Johnson and the Defendant. Of these witnesses, Hamilton, Weber, Johnson, and the Defendant testified that Grows was removed twice from the scene.

      . Lumar, Bailey, Hamilton, Gauthier, Jackson, B. Johnson, Savoie, Vedol, Weber, Johnson and the Defendant.

      . Lumar, Hamilton, Gauthier, Jackson, B. Johnson, Weber, Johnson and the Defendant.

      . Lumar, Narcisse, Bailey, Tilton, Jackson, Savoie, Vedol, Weber, and the Defendant.

      . Lumar, Hamilton, Gauthier, Jackson, and B. Johnson.

      . Lumar and Hamilton.

      . Deputy Brignac testified that the Defendant did not indicate the same person was involved in the prior shooting and this incident.

      . Lieutenant Geason testified fhat the Defendant indicated that he had previously been shot by the same person whom the Defendant shot. However, the Defendant never identified Grows and the officer stated that. he. did not know if the Defendant knew him.

      . On rehearing, the conviction was reversed and a new trial was ordered after the Louisiana Supreme Court concluded that the exclusion of victim character evidence prejudiced the defendant. State v. Jackson, 419 So.2d at 429.


author: THOMAS F. DALEY, Judge.

text:
    HISTORICAL ARTS AND CASTING, INC. v. FAVALORA CONSTRUCTORS, INC.
    No. 03-CA-892.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2003.

      Jerry W. Sullivan, Arthur D. Dupré, Jr., Leefe, Gibbs, Sullivan, Dupré & Aldous, Metairie, LA, for Defendant/Appellant.
    Daniel A. Ranson, Glenn D. Price, Jr., Windhorst, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Plaintiff/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   THOMAS F. DALEY, Judge.

The defendant has appealed the district court judgment making a foreign judgment executory. For the reasons that follow, we affirm.

FACTS:

The defendant, Favalora Constructors, Inc. (Favalora), a Louisiana corporation, (hereinafter referred to as Favalora), was hired by the State of Louisiana to perform renovations on the Louisiana Supreme Court Building in New Orleans. On September 22, 1999, Favalora entered into a purchase order with Historical Arts and Casting, Inc., (hereinafter referred to as Historical Arts), to provide a cast iron fabricated aluminum marquee for the building. The purchase order provided that the material would be received within 18 weeks of the initial receipt of the approved drawing, however, the material was not received until several months later. The entire work performed by Favalora was not completed timely and the State withheld payment of $268,000.00 from Fa-valora for liquidated damages. Favalora paid Historical Arts a portion of the sum due, but withheld $41,395.00 claiming that Historical Arts was responsible for its pro rata share of liquidated damages in the amount of $95,200.00.

Historical Arts filed an arbitration proceeding in its home State of Utah seeking to enforce the arbitration provision in the purchase order. Favalora objected to the arbitration proceeding and sought judicial relief in Utah to stay the arbitration proceeding. The Utah court denied Favalo-ra’s pleas for stay and the matter proceeded to arbitration. The arbitrator ruled in favor of Historical Arts in the amount of $41,369.00, plus interest in the amount of $7,865.24 and attorney’s fees in the amount of $5,480.00. The Third Judicial District Court in Salt Lake County, Utah adopted the arbitration award as the judgment of the Court. Historical Arts then filed a petition in the 24th Judicial District for the Parish of Jefferson seeking to make the judgment executory. Following a hearing, the court granted Historical Arts petition and awarded an additional $9,506.00 in attorney’s fees. The instant appeal was filed following the denial of Favalora’s Motion for New Trial.

LAW AND ARGUMENT:

On appeal, Favalora argues that the trial court erred in making the Utah judgment executory while ignoring the compelling public policy language in R.S. 9:2778. This statute provides:

A. The legislature finds that with respect to public contracts involving the state or a political subdivision of the state, provisions in such agreements requiring disputes arising thereunder to be resolved in a forum outside of this state or requiring their interpretation to be governed by the laws of another jurisdiction are inequitable and against the public policy of this state.
B. The legislature hereby declares null, void, unenforceable, and against public policy, any provision in a contract, subcontract, or purchase order, as described in Subsection A, which either:
(1) Requires a suit or arbitration proceeding to be brought in a forum or jurisdiction outside of this state.
(2) Requires interpretation of the agreement according to the laws of another jurisdiction.
C.The provisions of this Section shall apply to public contracts, as described in this Section, entered into on or after June 30,1992.

Plaintiff argues that R.S. 9:2778 applies to the case at bar. Our interpretation of this statute is that it applies only to contracts directly between the State or a political subdivision and the contractor or subcontractor. We find that the language in subsection B referring to purchase orders is limited by the language in subsection A stating “with respect to public contracts involving the state or a political subdivision.” For this reasons, we find that R.S. 9:2778 is not applicable to this case. R.S. 9:2778 applies to contracts between the State or a political subdivision and a contractor; in the case at bar we have a contract between a contractor and a subcontractor or supplier. An exhaustive search reveals that there are no Louisiana State Court cases interpreting R.S. 9:2778.

Historical Arts contends that R.S. 9:2779 applies to subcontracts and purchase orders for public and private work projects. R.S. 9:2779, provides:

A. The legislature finds that, with respect to construction contracts, subcontracts, and purchase orders for public and private works projects, when one of the parties is domiciled in Louisiana, and the work to be done and the equipment and materials to be supplied involve construetion projects in this state, provisions in such agreements requiring disputes arising thereunder to be resolved in a forum outside of this state or requiring their interpretation to be governed by the laws of another jurisdiction are inequitable and against the public policy of this state.
B. The legislature hereby declares null and void and unenforceable as against public policy any provision in a contract, subcontract, or purchase order, as described in Subsection A, which either:
(1) Requires a suit or arbitration proceeding to be brought in a forum or jurisdiction outside of this state; rather, such actions or proceedings may be pursued in accordance with the Louisiana Code of Civil Procedure or other laws of this state governing similar actions.

We have not found any Louisiana State Court cases interpreting this statute, however, this statute was interpreted by the Federal Fifth Circuit in OPE International LP v. Chet Morrison Contractors, Inc., 258 F.3d 443, (5th Cir.2001). In OPE the subcontractor, Morrison, a Louisiana corporation, entered into an agreement with the contractor to fabricate a deck structure for the contractor. The agreement between the parties provided that in the event of a dispute, the parties agreed to submit to arbitration in Texas and to resolve their dispute under Texas law. When a disagreement arose, OPE sought arbitration. Arbitration proceedings began, but were then stopped. Morrison refused to resume arbitration proceedings and instead filed suit in a Louisiana State Court seeking to declare the contract’s arbitration clause and choice of law provisions void because they violated public policy. OPE filed proceedings in Federal Court in the Southern District of Texas to compel arbitration. The Federal District Court ordered Morrison to submit to arbitration in Texas and ordered the pending Louisiana suit be stayed. In affirming the Federal District Court, the Federal Fifth Circuit stated that the Federal Arbitration Act preempts R.S. 9:2779. In so holding, the Court stated: “The FAA declares written provisions for arbitration ‘valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” Id. at 446. The Court found that in enacting the FAA, the legislature “declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum from the resolution of claims which the contracting parties agreed to resolve by arbitration.” Id.

The United States Constitution Article IV Section 1 provides that full faith and credit shall be given in each state to the judicial proceedings of every other state. Only when it is shown that the court that rendered the judgment lacked jurisdiction over that party or the subject matter may a state deny full faith and credit to a judgment rendered by a court in another state. WellTech, Inc. v. Abadie, 95-620 (La.App. 5 Cir. 1/17/96, 666 So.2d 1234). Although, Favalora argues the Utah court lacked personal jurisdiction over Favalora, we find that argument to be without merit. Favalora consented to the jurisdiction of the Utah court when it made a general appearance in the Utah court seeking to stop the arbitration proceedings.

In the instant case, Favalora, a Louisiana contractor, entered into a contract with a foreign supplier, Historical Arts, to provide material for a public works project. In so contracting, the parties agreed to binding arbitration and that Salt Lake City, Utah would be the exclusive venue for any disputes. Favalora was unsuccessful in having the arbitration clause declared invalid in the Utah court. The matter proceeded to arbitration and as per the arbitration agreement, the arbitrator’s ruling was made the judgment of the court. Favalora was represented by an attorney and participated in the arbitration proceeding. Favalora’s defenses were presented to the Utah court and presumably to the arbitrator. Favalora subjected itself to the jurisdiction of the Utah court. Favalora did not appeal the judgment of the Utah court. The full faith and credit clause of the United States Constitution mandates that we recognize the judgment of the Utah court, thus, we see no error in the trial court ruling making the Utah judgment executory in Louisiana.

Historical Arts has answered the appeal requesting attorney’s fees for appellate work. Our review of the record indicates that Historical Arts has been awarded $14,986.00 in attorney’s fees. We find that this award is adequate reasonable compensation for all the legal services provided in this matter, including the services performed on this appeal. Therefore, we decline to award additional attorney’s fees.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Additionally, Favalora argues that it never agreed to arbitration because the reference to the arbitration language was added to the purchase order. Because this argument was not raised in the trial court, it will not be addressed on appeal. See Uniform Rules for the Courts of Appeal Rule 1-3.