author: JgCLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Henry L. FISHER.
    No. 03-KA-326.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for State.
    Holli Herrle-Castillo, Marrero, LA, for defendant-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   JgCLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On February 22, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Henry Fisher, with possession with intent to distribute cocaine. LSA-R.S. 40:967(A). Defendant was arraigned on February 24, 2000, and pled not guilty.

Defendant filed various pre-trial motions, including a Motion to Suppress the Confession and a Motion to Suppress the Evidence. The court heard and denied those motions on April 10, 2000. A jury trial was held and the defendant was found guilty as charged.

On September 29, 2000, the State filed a habitual offender bill of information, alleging defendant to be a fourth felony offender. On October 12, 2000, defendant denied the allegations of the habitual offender bill.

Defendant filed a Motion for New Trial on December 4, 2000, which the trial court denied. Defendant waived statutory delays, and the trial court sentenced him to thirty (30) years at hard labor and a $50,000 fine. Defendant made an oral motion for appeal, which the judge granted. Defendant filed a written motion for appeal on January 9, 2001, and the judge granted it on January 17, 2001.

13Pefendant’s retained attorneys filed a Motion to Reconsider Sentence on January 5, 2001. Those attorneys were thereafter allowed to withdraw as attorneys of record. The July 26, 2001 minute entry indicates the hearing on the motion to reconsider sentence was deferred until the day of the habitual offender hearing. However, it does not appear that the trial court ever ruled on it. The transcript of the habitual offender proceedings shows that the trial judge inquired as to whether he had ruled on a motion to reconsider sentence. Defendant’s new counsel informed the judge that the motion to which he referred had been filed by defendant in proper person. The court denied the motion, along with all other pro se motions. The question of whether the court ruled on the July 5, 2001 motion is moot, since the motion pertained to defendant’s original sentence, and that sentence was later vacated.

On January 5, 2001, defendant filed a Notice of Objections to Multiple Bill. Defendant filed a Motion to Quash Multiple Bill on March 5, 2001, challenging the validity of the predicate convictions alleged by the State. Although the record shows the motion was set for hearing, it does not appear that the trial court ruled on it.

A hearing on the habitual offender bill was held on December 13, 2001. On that date, the defendant made an oral motion to quash, arguing the hearing was not timely. The trial court denied the motion. The State elected to amend the habitual offender bill to allege two, rather than three, predicate felony convictions.

The judge found defendant to be a third felony offender. The judge vacated defendant’s original sentence, and imposed an enhanced sentence of life imprisonment without benefit of parole, probation or suspension of sentence. Defendant objected to the imposition of a life sentence, arguing that the court did not employ the applicable version of the habitual offender statute. Defendant also 14made a timely oral motion for appeal. He filed a written motion for appeal on December 20, 2001. The trial court granted the appeal on January 8, 2002.

FACTS

Narcotics Detective John Louis of the Kenner Police Department testified that a confidential informant alerted him to narcotics trafficking involving defendant, Henry Fisher. Based on that information, Louis instituted an undercover investigation of defendant. He obtained defendant’s cellular telephone number, and called him on January 7, 2000. Defendant agreed to sell Louis $600 worth of crack cocaine.

The two men arranged to meet between 5:00 and 5:30 p.m. on January 12, 2000, at Airline Highway and Filmore Street in Kenner. Defendant told Louis he would be driving a white BMW automobile with a temporary license plate. Louis waited for defendant in an unmarked police car at the prearranged place and time. Defendant arrived in a white BMW, and parked it outside of a trailer at 647 Filmore Street. Defendant and a child, later identified as defendant’s son, entered the residence. Louis remained in his car. Minutes later, defendant exited the trailer alone and walked towards Louis’ car, making beckoning motions with his arms. Defendant told Louis to “come here.”

At that point, Louis radioed backup officers in the area and told them to detain defendant. Once that had been accomplished, Louis went to the trailer at 647 Filmore Street. He spoke with Michael Powers, defendant’s brother-in-law, and the trailer’s owner. Louis identified himself, and asked Powers for permission to search the residence. Powers consented to a search.

Sergeant Ronald Labarriere testified that he is a member of the Kenner Police Department’s tactical service division and is a canine handler. Labarriere took a narcotics dog into the trailer. When they reached the bathroom, the dog signaled the officer that it detected drugs in the toilet tank. Labarriere lifted the |Btank’s lid, and discovered several rock-like objects at the bottom. Detective Louis took possession of the rocks. He performed a field test, and it was positive for cocaine. The officers also seized defendant’s cellular telephone. Defendant was placed under arrest. Michael Powers was not arrested.

At trial, Powers identified defendant as his brother-in-law. He testified that defendant arrived at Powers’ apartment in his white BMW between 5:00 and 5:30, accompanied by his young son. Defendant sat on Powers’ sofa briefly, then went into the trailer’s bathroom. Less than a minute later, defendant exited the bathroom. He said he was going to “make a run,” and asked Powers to watch his son while he was gone. Powers agreed, and defendant left the trailer. Shortly after defendant departed, police officers arrived at the trailer. They told Powers that they believed defendant had left something at the residence, and that they had defendant in custody. Powers testified that the officers asked to search his trailer, and that he gave his consent to a search. The officers ordered Powers to remain in his living room while they searched the premises. At trial, Powers denied knowing there was crack cocaine in his bathroom. He stated he did not put it there. He further stated that had he known the cocaine was in the toilet tank, he would not have allowed police to search the trailer.

Edgar Dunn, an expert in the field of chemical analysis, testified that he tests controlled dangerous substances at the Jefferson Parish Crime Lab. He stated that he examined samples from State’s Exhibit 1, the rocks seized at Michael Powers’ trailer. He testified that the samples were positive for cocaine base or crack cocaine. He further testified that the total weight of the cocaine was 13.25 grams.

DISCUSSION

Defendant now appeals alleging five assignments of error: 1) the trial court’s failure to suppress the evidence, 2) the trial court’s failure to grant mistrial, 3) the evidence was insufficient to sustain the conviction, 4) the trial court’s failure |fito grant motion to quash the habitual offender bill, and 5) the trial court imposed an excessive sentence.

When issues are raised on appeal as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. If the entirety of the evidence, including evidence that was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot. State v. George, 95-0110, p. 6 (La.10/16/95), 661 So.2d 975, 978; State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Noil, 01-521, p. 12 (La.App. 5 Cir. 12/26/01), 807 So.2d 295, 305, writ denied, 02-0276 (La.10/25/02), 827 So.2d 1177. Based on the foregoing, assignment of error number three will be discussed first.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues the evidence presented at trial was insufficient to sustain a conviction of possession of cocaine with the intent to distribute.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Williams, 99-223, p. 6 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

The crime of possession with intent to distribute cocaine requires proof that the defendant knowingly and intentionally possessed the drug, and that he did so with the specific intent to distribute it. LSA-R.S. 40:967(A)(2); State v. Manson, 01-159, p. 16 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 761; State v. Snavely, 99-1223, p. 11 (La.App. 5 Cir. 4/12/00), 759 So.2d 950, 958, writ denied, 00-1439 (La.2/16/01), 785 So.2d 840. Guilty knowledge is an essential element to the crime of possession of contraband, and such knowledge may be inferred from the circumstances. State v. Manson, supra. Possession can be either “actual” or “constructive.” State v. Brisban, 00-3437, p. 8 (La.2/26/02), 809 So.2d 923, 929.

A person not in physical possession of a drug may have constructive possession when the contraband is under the person’s dominion and control. State v. Shieffler, 00-1166, p. 4 (La.App. 5 Cir. 2/13/02), 812 So.2d 7, 9, writ denied, 02-0712 (La.9/13/02), 824 So.2d 1188. The key factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession are the defendant’s knowledge that illegal drugs were in the area, his relations with a person found to be in actual possession, the defendant’s access to the area where the drugs were found, evidence of recent drug use by the defendant, the existence of drug paraphernalia, and evidence that the area was frequented by drug users. Id.; State v. Manson, 01-159 at pp. 6-7, 791 So.2d at 761.

The record does not show evidence of actual possession by defendant. It was Detective Louis’ testimony that, although he made arrangements to buy cocaine from defendant, he had other officers detain defendant before any transaction took place. Detective Louis further testified that defendant did not have any drugs on his person at the time of his arrest. We must consider, then, whether the State proved defendant had dominion and control over the crack cocaine sufficient to support a finding of constructive possession.

Detective Louis testified he received information from a confidential informant that led him to believe defendant was trafficking narcotics. He telephoned a person he believed to be defendant, using a cell phone number he obtained in the course of his investigation. During their telephone conversation, defendant agreed to sell cocaine to Louis. Louis testified that he did not meetlsdefendant in person prior to the telephone call. Defendant told Louis to meet him at Airline and Filmore Streets. Louis described to defendant what type of car he would be driving.

Defendant is related to Michael Powers, in whose residence the cocaine was found. More importantly, defendant had access to the area where the cocaine was found shortly before police discovered it. These facts prove guilty knowledge. Powers testified that he had no guests in his house other than defendant before the officers arrived, and that he did not place the cocaine in the toilet himself. The defendant also went into the bathroom almost immediately after arriving at the trailer, and then left the residence less than a minute after exiting the bathroom. Upon leaving the trailer, defendant seemingly recognized Louis’ car, and attempted to motion to him with his hands.

Defendant argues the evidence points to Michael Powers as the guilty party in this case. In State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83, the Louisiana Supreme Court commented:

On appeal, the reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.” State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020. Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.
Id.

Powers denied having had any knowledge there was cocaine in the toilet tank. His wife, the only other resident of the trailer, was at work when the officers arrived. He testified that, had he known there was cocaine on the premises, he would not have consented to a police search. The jurors apparently found his testimony credible.

| ^Therefore, we find that, in the light most favorable to the prosecution, the evidence shows beyond a reasonable doubt that defendant possessed the cocaine. Further, although defendant does not explicitly raise it in brief, we will address the question of whether the State offered sufficient proof of defendant’s specific intent to distribute the cocaine since it is interconnected with the foregoing issue. In State v. Hearold, 603 So.2d at 735, the Louisiana Supreme Court listed a series of factors that might give rise to a reasonable inference that a defendant had the specific intent to distribute a controlled dangerous substance:

(l)whether the defendant ever distributed or attempted to distribute the drug;
(2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of the drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

Mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no inference is possible. State v. Snavely, 99-1223 at p. 12, 759 So.2d at 958.

Because there was no exchange of drugs, and no expert testimony regarding the drug trade, the State’s primary evidence of defendant’s intent to distribute was the telephone call between Louis and defendant. Detective Louis testified that he received information about defendant’s drug activity from a confidential informant. The informant gave Louis a telephone number where defendant could be reached. Louis testified that he spoke with defendant over the telephone, and arranged to buy $600 worth of crack cocaine. Louis testified that he never saw defendant until the time of his arrest. The two men arranged to meet at a specific date and time in the area of Filmore and Airline Highway. Louis told defendant he would be driving a red Rx7 automobile, and defendant said he would be in a white |inBMW with temporary plates. The telephone conversation was not recorded, so the reliability of those facts was dependent upon Louis’ credibility.

Defendant argues there was no proof that he was the person with whom Louis spoke over the telephone. There was, however, circumstantial evidence to that effect. Defendant arrived at the agreed-upon location at the agreed-upon time, in the type of car he described to Louis. Defendant’s ownership of the white BMW was established by the testimony of Victor Planetta, the owner of Auto World Finance. Defendant went inside of Michael Powers’ trailer, then emerged and approached Louis’ car, waving his arms as if attempting to flag down the officer. His actions indicate he intended to meet with Louis.

We find that the telephone call and the circumstantial evidence connecting the call to defendant was sufficient to prove intent to distribute cocaine. In accordance, we find the evidence was sufficient to sustain a conviction of possession of cocaine with the intent to distribute.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment, defendant argues the trial court erred in failing to suppress the cocaine evidence. He maintains that the evidence was seized pursuant to an unlawful arrest. Defendant filed a pre-trial Motion to Suppress the Evidence. Following a hearing, the trial court denied the motion.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. A search made without a warrant issued upon probable cause is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). One recognized exception is a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Davis, 02-1008, p. 9 (La.App. 5 Cir. 2/25/03), 841 So.2d 952, 960. In a hi search incident to a lawful arrest, the officer may search the suspect’s person and the area within his immediate control in order to remove weapons and prevent evidence from being destroyed. Id.; State v. London, 01-1016, p. 7 (La.App. 5 Cir. 3/13/02), 815 So.2d 162, 165. An arrest is lawful when it is based on probable cause. State v. Davis, supra. Defendant argues that the officers did not have probable cause for an arrest at the time he was detained, and that the evidence seized following his arrest was inadmissible as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

It is of no consequence when defendant was arrested in relation to the seizure of the cocaine, or whether there was probable cause for arrest. The officers were entitled to search the trailer based upon the consent of Michael Powers, the person who lived there. A consent to search by a third person is another recognized exception to the warrant requirement, when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Edwards, 97-1797, p. 11 (La.7/2/99), 750 So.2d 893, 901, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999).

It was undisputed that Michael Powers resided at 647 Filmore Street, the location of the search. Powers testified that officers asked for his consent to search the premises, and that he gave said consent. The State also produced a consent form signed by Powers. Therefore, we find this assignment of error lacks merits.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant complains that the trial court erred in denying his motion for a mistrial because Detective Louis testified to evidence of other crimes. It is noted that defendant did not base his mistrial motion on grounds of other crimes | ^evidence. It is questionable whether he preserved the issue for appeal, according to LSA-C.Cr.P. art. 841, however, we will address this issue.

Defendant points to the following exchange between the prosecutor and Detective Louis:

Q. [prosecutor] Okay. And how close were you to the defendant at that time?
A. [Detective Louis] He was on the other side of Airline, I was on this side of Airline. It’s a two-lane highway — well, actually four lanes for Airline.
Q. Okay. So—
A. — and a median, so he was here, and I was here (indicating).
Q. So, you all were across the highway from each other.
A. Yeah. There was no other people around me. I was parked like in the middle between two blocks, and I was just parked in the middle by a pay phone, and he was walking toward me down Taylor.
Q. Okay. Now, in response to the defendant beckoning you or calling you over, what did you do?
A. That’s when I radioed to the other detectives to go ahead and take him down, because it was — through my investigation I learned that he carried weapons—

Defendant objected to the officer’s testimony and moved for a mistrial. Out of the jury’s hearing, defense counsel argued that the mention of the gun constituted prejudicial hearsay. The judge responded that hearsay is not a valid basis for a mistrial motion. The judge nevertheless admonished the jury to disregard the officer’s remark.

LSA-C.Cr.P. art. 770 provides, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
1 ia(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

LSA-C.Cr.P. art. 771 provides, in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A police officer is not a court official under the mandatory provisions of Article 770. State v. Ledet, 00-1103, p. 23 (La.App. 5 Cir. 7/30/01), 792 So.2d 160, 175, writ denied, 01-2451 (La.9/30/02), 825 So.2d 1185. However, an impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the State, and therefore triggers the rule mandating a mistrial. State v. Sprinkle, 01-137, p. 20 (La.App. 5 Cir. 10/17/01), 801 So.2d 1131, 1144, writ denied, 01-3062 (La.10/25/02), 827 So.2d 1174, cert. denied, - U.S. -, 123 S.Ct. 1358, 155 L.Ed.2d 200 (2003). In the instant case, there is no evidence in the record that the prosecutor deliberately elicited the information about defendant’s reputation for carrying a gun. A mistrial was not required under Articles 770 and 771 absent a showing of a pattern of unresponsive answers or improper intent by the police officer. State v. Pickrom, 31,987, p. 13 (La.App. 2 Cir. 5/5/99), 732 So.2d 800, 809. Detective Louis’ response does not seem to show improper intent. It appears his mention of defendant’s reputation for carrying a weapon was |14intended as an explanation for his actions. Moreover, the testimony complained of was not part of a pattern of unresponsive answers. Rather, it was an isolated comment.

This Court has found that Article 770 does not apply unless the reference clearly constitutes a comment on other crimes committed by the defendant. State v. Sprinkle, 01-137 at p. 20, 801 So.2d at 1144. It is arguable that Louis’ comment was not, in fact, a clear reference to another crime. Possession of a weapon is not a criminal offense unless, for instance, the person with the weapon is a convicted felon under LSA-R.S. 14:95.1. There was no mention in Louis’ testimony that defendant was reputed to be carrying a gun illegally.

Although he apparently did not believe there was a violation of either Article 770 or Article 771, the judge admonished the jury. Admonishment by the court to the jury would be the proper remedy under Article 771, even if the testimony complained of was an improper other crimes reference. Therefore, we find that the trial court did not commit error by denying defendant’s motion for mistrial.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant complains that the trial court erred in failing to quash the habitual offender bill of information, because the habitual offender hearing and sentencing were not held within a reasonable time of his original sentencing. He seeks to have this Court set aside the trial court’s habitual offender ruling and sentence, and remand the case for re-sentencing.

The State filed the habitual offender bill on September 29, 2000. The defendant was apprised of the allegations in the bill on October 12, 2000. The trial court imposed defendant’s original sentence on December 14, 2000. Minute entries show the habitual offender hearing was continued six times, and that all of the continuances were on the motion of the State or the court. Some of those were apparently due to the Department of Corrections’ failure to transport defendant to |15court. On December 13, 2001, the habitual offender hearing was held. Defendant made an oral motion to quash, arguing he was prejudiced by the trial court’s delay in holding the hearing. The court denied the motion, and proceeded with the hearing. The court ultimately found defendant to be a third felony offender.

The Habitual Offender Law does not impose a prescriptive period for filing a bill of information. However, jurisprudence holds that the State must file it “within a reasonable time after the prosecution knows that a Defendant has a prior felony record.” State v. Broussard, 416 So.2d 109, 110 (La.1982). See also, State v. Perkins, 01-1092, p. 3 (La.App. 5 Cir. 2/26/02), 811 So.2d 997, 999, writ denied, 02-0929 (La.11/15/02), 829 So.2d 422; State v. Anderson, 01-158, p. 3 (La.App. 5 Cir. 5/16/01), 788 So.2d 561, 563. This rationale is based upon the defendant’s constitutional right to a speedy trial and to know the full consequences of the verdict within a reasonable time. Any conclusion as to what constitutes a reasonable time must be determined on a ease-by-case basis. State v. Broussard, 416 So.2d at 110-111; State v. Perkins, 01-1092 at p. 4, 811 So.2d at 999. However, the proceeding to determine the defendant’s habitual offender status and enhanced sentence must be completed before the defendant serves the sentence the State seeks to enhance. State ex rel. Williams v. Henderson, 289 So.2d 74, 77 (La.1974).

There is no question that the habitual offender bill was timely filed. The State filed it prior to defendant’s original sentencing. The hearing was held 12 months after the original sentencing, well within the 30-year term of imprisonment initially imposed. Upon denying defendant’s oral motion to quash, the trial judge commented:

All right. Let the Record reflect that the bulk of the continuances in this case were at the request of the State because of the defendant’s absence from the jurisdiction, because of the writs; one case because the sheriffs office was in the process of the moving. |1fi While the continuances were done by the State, I find that they were all done for good cause....

We find that the trial court did not err in denying defendant’s motion to quash. Compare, State v. Perkins, supra, in which this Court found that a 16-month delay between the filing of the habitual offender bill and the completion of the habitual offender hearing did not prejudice the defendant. This Court agreed with the trial court’s finding that the hearing was justifiably delayed by valid continuances due to the absence of either the defendant or an attorney. Perkins, 01-1092 at pp. 5-6, 811 So.2d at 1000. See also, State v. Anderson, supra, in which this Court affirmed a 19-month delay on similar grounds.

Based on the foregoing, we find this assignment of error lacks merits.

ASSIGNMENT OF ERROR NUMBER FIVE

Here defendant argues that his mandatory life sentence under LSA-R.S. 15:529.1 is constitutionally excessive, and that the trial court failed to comply with the provisions of LSA-C.Cr.P. art. 894.1 in imposing sentence. Defendant did not file a motion to reconsider sentence as to the habitual offender sentence, as prescribed by LSA-C.Cr.P. art. 881.1. Defendant did make an oral objection at the time of sentencing, arguing that the trial court should have used the newly amended sentencing provisions of the Habitual Offender Law rather than the provisions in effect at the time of the offense. Although he properly preserved that specific issue, he does not raise it on appeal. Generally, the defendant’s failure to make a specific objection at the time of sentencing or to file a written motion to reconsider precludes review of a sentence on appeal. See, State v. Ewens, 98-1096, p. 10 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 96, writ denied, 99-1218 (La.10/8/99), 750 So.2d 179. However, this Court has routinely reviewed sentences for constitutional excessiveness even absent a defendant’s compliance with Article 881.1. State v. Anderson, 01-789, p. 8 (La.App. 5 Cir. 1/15/02), 807 So.2d 956, 961, writ denied, 02-0569 (La.1/24/03), 836 So.2d 42. Therefore, we will consider defendant’s claim of constitutional exces-siveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991). It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Williams, 01-1007, p. 11 (La.App. 5 Cir. 2/26/02), 811 So.2d 1026, 1032. However, if a trial court finds that an enhanced punishment mandated by LSA-R.S. 15:529.1 makes “no measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial court has the option and duty to reduce such sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993).

The trial court imposed the habitual offender sentence as follows:

the Court is of the opinion that under 15:529.1, because it uses the word “shall,” the Court has no discretion. The Court must ... sentence the defendant to imprisonment for the remainder of his natural life without benefit of parole, probation or suspension of sentence.

Defendant maintains that the trial court should have deviated downward from the minimum sentence in his case. He argues the trial judge was unaware that the jurisprudence allows the district court to deviate from the statutory minimum sentence, and that the sentence imposed was, therefore, unfair. He moves this Court to vacate his sentence and remand for re-sentencing, with instructions to the trial judge to consider whether defendant’s circumstances warrant a downward departure from the mandatory life sentence.

|1SA trial court may only depart from the mandatory sentence if it finds clear and convincing evidence that would rebut the presumption of constitutionality. State v. Cho, 02-274, p. 28 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 454, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213. The burden is on the defendant to rebut the presumption of constitutionality by showing:

[ h]e is exceptional, which in this context means that because of unusual circumstances this Defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Id. (quoting State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223). The Louisiana Supreme Court has cautioned that downward departures from the mandatory minimum sentences should be made only in rare cases. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343.

Defendant did not move the trial court to consider a lesser sentence under State v. Dorthey, supra. The trial judge was correct in stating that the Habitual Offender Law gives the sentencing court no discretion in cases where a life sentence is mandatory. His failure to mention Dor-they does not demonstrate that the judge was ignorant of the jurisprudence. He was simply not asked by defendant to address that issue. In any case, defendant does not show the special circumstances necessary to rebut the presumption of constitutionality of his life sentence.

This Court has held that mandatory life sentences for distribution of cocaine under the Habitual Offender Law are not constitutionally excessive. In State v. Robertson, 99-1029 (La.App. 5 Cir. 2/29/00), 756 So.2d 1148, 1149-1150, this Court affirmed the life sentence of a third felony offender whose underlying conviction was for possession of cocaine with intent to distribute. This Court cited the defendant’s extensive criminal history.

|19At the time of the original sentencing in the instant case, the trial judge commented that he had reviewed defendant’s pre-sentence investigation report and his extensive criminal record, and concluded that defendant, if released from prison, would likely commit another crime.

Based on the foregoing, we find this argument lacks merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

In accordance with the above, we affirm the defendant’s conviction of possession with intent to distribute cocaine and the trial court’s finding that defendant is a third felony offender. We further affirm the defendant’s sentence of life imprisonment without benefit of parole, probation or suspension of sentence.

AFFIRMED.


source: Caselaw Access Project

author: J^CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    Darryl G. SOILEAU v. Arcenious F. ARMOND, Jr.
    No. 03-CA-309.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.
    Darryl G. Soileau, In Proper Person, Cottonport, LA.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

At issue in this appeal from the dismissal of a legal malpractice claim is whether the trial judge erroneously dismissed the appeal based on the incarcerated plaintiffs failure to appear for a hearing on certain exceptions. For the following reasons, the judgment dismissing the appeal with prejudice is set aside and the matter is remanded for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Darryl Soileau, (now incarcerated in Cottonport, Louisiana) filed a petition for damages, in proper person, alleging legal malpractice by the attorney, Arcenious F. Armond, Jr., who represented him pursuant to a guilty plea which resulted in his present incarceration. Ar-mond filed exceptions of improper venue, failure to join an indispensable party and insufficiency of service of process and answered the petition. Plaintiff responded by filing a motion to dismiss defendant’s exceptions. A hearing was scheduled for January 8, 2003.

On December 9, 2002, plaintiff filed a writ of habeas corpus and the trial judge signed it the same day. For some reason, plaintiff was not transported to the Twenty-Fourth Judicial District for the hearing. On January 8, 2003, the date of the hearing, plaintiff filed a pleading entitled “motion to re-fix trial on exceptions application for writ of habeas corpus.” The attached order was denied, signed and dated by the trial judge on January 14, 2003, with a notation to “see Judgment |3granting exceptions.” The January 14, 2003, judgment granting defendant’s exceptions stated that plaintiff did not appear at the hearing “nor did he file pleadings to ensure his presence at the hearing.” The trial judge granted the exceptions and dismissed the case with prejudice without addressing the merits of the exceptions. Plaintiff filed this appeal in proper person. Defendant did not answer the appeal.

DISCUSSION

The judgment at issue states that plaintiffs case was dismissed with prejudice based on his failure to appear at the hearing and failure to file pleadings to ensure his appearance. The record does not support that conclusion. Almost one month before the hearing, plaintiff filed "a writ of habeas corpus ad testificandum which the trial judge signed the same day. It seems through no fault of his own that his appearance at the hearing was not effectuated, despite his filing of the necessary pleadings. Additionally, the trial judge did not address the merits of defendant’s exceptions. We conclude based on the record that there was no basis to dismiss the suit simply because plaintiff did not appear at the hearing when he did in fact, file the proper pleadings to ensure his appearance. The trial judge erroneously found to the contrary. Thus, the record does not support the judgment.

CONCLUSION

Based on the foregoing, we set aside the judgment dismissing plaintiffs case and remand this matter for further proceedings.

JUDGMENT SET ASIDE; REMANDED FOR FURTHER PROCEEDINGS.


author: IsSOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Keith M. CHAPLAIN.
    No. 03-KA-0338.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.
    Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Frank A. Brandisi, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   IsSOL GOTHARD, Judge.

Defendant, Keith Chaplain, appeals his conviction on a charge of theft of goods valued between $100 and $500, and his consequent sentence of one year at hard labor. For reasons that follow, we affirm.

The record shows that defendant was charged with a violation of La. R.S. 14:67.10 as a result of a shoplifting incident at the Sports Authority. In due course he was tried by a jury and found guilty as charged. Subsequently, he was sentenced to one year at hard labor. ■

FACTS

On March 25, 2002, Brian Lobell was working as a loss prevention manager for Sports Authority on Citrus Boulevard in the Elmwood area. At approximately 6:00 p.m., while watching the store’s security cameras, Mr. Lobell observed defendant looking at the knives at the hunting counter. Defendant was conversing with the sales associate who had given defendant a display knife. Mr. Lobell then observed defendant pick up a Leatherman, a multi-tool knife similar to a Swiss army knife, off a nearby shelf and set it down on a floor display. He later saw defendant use the display knife to open the Leatherman package, remove the knife |sand conceal it in his pocket. At this point, Mr. Lobell called the police. Defendant subsequently hid the empty Leatherman package behind some basketballs.

Defendant, who still had the display knife in his hand, mingled around the store and then exited the store “passing all points of sale.” The police arrived as Mr. Lobell was following defendant out of the store. Mr. Lobell confronted the defendant and told him to return the knife that was in his hand. Defendant complied and was then handcuffed by Deputy Rene La-combe. Thereafter, Mr. Lobell took the Leatherman out of defendant’s pocket and defendant was escorted back inside the store and into the loss prevention office. Once inside, Deputy Lacombe advised defendant of his Miranda rights. Mr. Lobell patted down defendant for additional merchandise and discovered two pairs of Bolle sunglasses in defendant’s pocket which defendant admitted stealing. Mr. Lobell testified that the total value of the merchandise taken was approximately $275 with the Leatherman valued at $69.99, the display knife valued at $45, and the sunglasses valued at $79.99 each.

LAW

In brief to this court, defendant assigns one error. He asserts the trial court erred by not suppressing a videotape after the State failed to comply with discovery procedures. Defendant argues the trial court erred in denying his motion in limine to exclude a videotape, depicting the shoplifting, from evidence after the State failed to timely disclose the existence of the videotape. Defendant maintains he filed a motion for discovery after his arraignment asking for any physical evidence the State intended to use at trial. He contends the State did not mention the videotape in its discovery responses. He asserts he did not learn of the videotape until after the jury was selected. Defendant alleges he suffered prejudice by the admission of the videotape because the late disclosure of the evidence gave him | ¿minimal time to prepare a defense, thereby affecting the fairness of the proceedings.

The State responds that the videotape was cumulative evidence and, therefore, defendant was not prejudiced by its late disclosure. The State argues the videotape did not reveal or add anything new but merely depicted the testimony given by the witnesses.

LSA-C.Cr.P. art. 718(2) requires the State, on defendant’s motion, to produce documents and tangible objects which “are intended for use by the State as evidence at the trial.” The State is under a continuing obligation to promptly disclose additional evidence that may be discovered, or that it decides to use as evidence at trial. LSA-C.Cr.P. art. 729.8. When a party fails to comply with the provisions of the discovery articles, “the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.” LSA-C.Cr.P. art. 729.5(A); State v. Smith, 99-1020 (La.App. 5 Cir. 2/29/00), 757 So.2d 74, 77, writ denied, 00-1017 (La.3/30/01), 788 So.2d 439. It is within the trial court’s discretion to choose an appropriate remedy for a discovery right violation that will offset any possible prejudice. State v. Bourque, 96-0842 (La.7/1/97), 699 So.2d 1, 11, cert. denied, 523 U.S. 1073, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998).

In State v. Smith, supra, at 77-78, this Court explained:

The discovery articles are intended to eliminate unwarranted prejudice which could arise from surprise testimony and evidence, to permit the defense to answer the State’s case, and to allow the defendant to properly assess the strength of the State’s evidence in preparing a defense. When the defendant is lulled into a misapprehension of the strength of the State’s case through the prosecution’s failure to disclose timely or fully, and the defendant suffers prejudice when the undisclosed evidence is used against him, basic unfairness results which constitutes reversible error. However, a conviction will not be | ¡^reversed on the basis of a discovery violation unless prejudice is shown by the trial court’s adverse ruling.
(Internal citations omitted.)

In the present case, defendant filed a motion for discovery prior to trial seeking, among other things, a description of “any physical evidence, objects, materials, substances, instruments, and/or dangerous weapons now or heretofore in the possession of the State, that are intended for use by the State at trial, material to the defense, or obtained pursuant to this investigation.” According to defense counsel, the “discovery packet” provided by the State did not mention the videotape; a fact which does not appear to be disputed by the State.

On the second morning of trial, defendant made an oral motion in limine seeking to exclude the videotape from being used as evidence at trial. Defense counsel stated he learned of the videotape at the conclusion of jury selection the day before and had not seen the videotape. He argued the videotape should be excluded because the State failed to timely comply with his discovery request. The trial court denied the motion in limine and recessed the trial to give defense counsel an opportunity to view the videotape. The trial court specifically advised defense counsel that the motion in limine could be re-urged after he viewed the tape.

Defense counsel viewed the videotape and re-urged his motion. He argued defendant was prejudiced by the admission of the videotape because there was no adequate time to prepare a defense to the videotape. Defense counsel agreed the tape was more or less corroborative of the expected testimony of the eyewitnesses and admitted the tape did not necessitate any new witnesses. The trial court affirmed his denial of the motion in limine.

We find that defendant has failed to show any specific prejudice that resulted from the untimely disclosure of the videotape. By defense counsel’s own admission, the tape corroborated expected testimony and did not reveal any new | ^witnesses. Defendant did not demonstrate how his defense would have been different had he learned of the videotape prior to trial. He merely made a broad assertion that he did not have time to prepare a defense to the videotape. Further, there was no allegation or evidence of bad faith on the part of the State.

As stated above, the trial court has broad discretion in fashioning a remedy for a discovery violation. In the present case, the trial court recessed trial to give defendant an opportunity to view the videotape. After defendant viewed the tape, he renewed his motion to exclude the tape from evidence. Had defendant needed more time to prepare a defense, he could have requested a continuance but he did not. Exclusion of the evidence for tardy disclosure is an extreme remedy. State v. Arnaud, 412 So.2d 1013, 1017 (La.1982).

In State v. Scott, 461 So.2d 426 (La.App. 5 Cir.1984), this Court determined the late disclosure of photographs of the location of the crime during trial did not prejudice the defendant and, therefore, the exclusion of the photographs from evidence was not required. In Scott, the photographs merely depicted the premises where the crime occurred and did not contain any matters that could cause prejudice to the defendant. This Court found the photographs merely provided a visual display of the description afforded by several witnesses of the victim’s premises. This Court noted that the photographs were not offered as direct evidence but only as a visualization and to corroborate the witnesses’ description of the premises and the operation of the locks on the windows. In that case we could discern no prejudice that may occur to defendant as a result of the introduction of the photographs.

In the present case, the videotape depicted defendant committing the crime. Prior to the introduction of the tape, Brain Lobell testified he observed defendant shoplift two knives and explained in detail the actions of defendant during the crime. The videotape, which was created by Mr. Lobell, was then played to the |7jury during which Mr. Lobell was asked to explain portions of the tape. The videotape merely corroborated Mr. Lobell’s testimony. There are no facts revealed by the videotape to which testimony had not been given. As in State v. Scott, supra, it is difficult to imagine any prejudice defendant suffered by the introduction of a corroborating videotape. Defense counsel himself could not articulate any specific prejudice. Thus, we find no abuse of the trial court’s discretion in refusing to exclude the videotape from evidence. The trial court provided a sufficient remedy to defendant when it recessed trial to give defendant an opportunity to view the videotape. Accordingly, we find no merit in this assignment of error.

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.


author: I,SOL GOTHARD, Judge.

text:
    GILES AUTOMOTIVE, INC. v. LOUISIANA MOTOR VEHICLE COMMISSION.
    No. 03-CA-0299.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.
    Adrian F. Lapeyronnie, III, Molaison & Greenberg, Gretna, LA, for Defendant/Appellant.

      Emile Joseph, Jr., Allen & Gooch, Lafayette, LA, for Plaintiff/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   I,SOL GOTHARD, Judge.

Defendant, Louisiana Motor Vehicle Commission (“LMVC”), appeals from a decision of the district court that reduced a fine imposed on plaintiff, Giles Automotive, Inc. (“Giles”). For reasons that follow, we affirm the decision of the district court.

In May of 2000, Giles was cited by the LMVC, after a complaint was filed by Du-plessis Cadillac-Volvo, a motor vehicle dealer, and Ron Duplessis. An administrative hearing was conducted on December 10, 2001, and the LMVC assessed a penalty against Giles of $20,000.00. Giles filed for review with the district court pursuant to La. R.S. 49:964(G). A review hearing was held August 27, 2002, and at its conclusion the trial court reduced the penalty to $2,500.00. The LMVC appeals to this court.

At the administrative hearing of December 10, 2001, Giles stipulated that he registered the domain name of DuplessisVol-vo.com. Thereafter, he directed the domain name to the Duplessis website. The registration was done on April 18th, and Giles directed the domain name to the Duplessis website on April 19th. Duplessis stated that the “problem” was resolved on the following Tuesday, or a duration of four days. There were no instances of misdirection and no damage done to Duplessis. The domain name was deleted approximately one month later.

| -¡The LMVC enforced the maximum penalty of $5,000.00 per day for four days, for a total penalty of $20,000.00.

In this appeal, the LMVC argues that the trial court erred in modifying its judgment without a stated finding that the substantial rights of Giles had been prejudiced.

We are reviewing the district court’s appellate review of a decision of a state agency, the LMVC, under La. R.S. 49:964. Under La. R.S. 49:964(G) the trial court’s review of the LMVC’s decisions is defined as follows:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decision are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of this rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

Johnson v. Saratoga Building, LLC, 02-0780 (La.App. 4 Cir. 12/30/02), 837 So.2d 94, 95.

In our review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of a court of appeal. EOP New Orleans, L.L.C. v. La. Tax Comm’n, 01-2966 (La.App. 1 Cir, 08/14/02), 831 So.2d 1005, writ denied 2002-2394, 2002-2395, 2002-2661 (11/27/02), 831 So.2d 289.

Thus, we do not need to consider whether the trial court erred in reducing the penalties without a finding of prejudice to the substantial rights of the appellee. RRather we conduct a de novo review of the administrative agency’s decision pursuant to La. R.S. 49:964. In our review, we determine that the administrative agency was manifestly erroneous in finding that Giles’s violation was of a four day, rather that a one day duration, and that the offense warranted the maximum penalty allowed. The evidence reflected that the domain name was directed to Duplessis’s website one day later, so that there was a potential of misdirection for only one day. The evidence also established that there were no incidents of misdirection as a result of the illegal registration. Further, Duplessis stated that he suffered no damage as a result of the illegal registration. Under these facts, we find that the administrative hearing committee committed manifest error in assessing the maximum penalty of $5,000.00 per day for four days. Rather, the facts show a one day violation. Furthermore, the facts do not support the imposition of the maximum penalty in this case and we agree with the trial court’s assessment that a penalty of $2,500.00 is warranted in this case.

For the above discussed reasons, the decision of the trial court reducing the penalty assessed by the LMVC against Giles to $2,500.00 is affirmed.

AFFIRMED.


author: I ¶WILLIAMS, Judge.

text:
    Loretta SIMPSON, Plaintiff-Appellee, v. James Ray STEVENSON, Defendant-Appellant.
    No. 37,164-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 6, 2003.

      S.P. Davis, Shreveport, for Appellant.
    Anita D. McKeithen, Shreveport, for Ap-pellee.
    Before WILLIAMS, DREW and TRAYLOR (Pro Tempore), JJ.
   I ¶WILLIAMS, Judge.

The defendant, James Stevenson, appeals a judgment declaring that he is the natural father of the minor child, J.J. S. For the following reasons, we affirm.

FACTS

On April 13, 1998, the plaintiff, Loretta Simpson, gave birth to a son who is the subject of this paternity action. The child was born prematurely with a heart condition. The plaintiff filed a petition to establish child support and custody alleging that the defendant, James Stevenson, was the biological father of the minor child. The defendant requested DNA blood testing, which was performed in January 2000. The DNA test results showed a probability of paternity of 99.9995%. A written report of the results was filed into the record.

At trial, defendant objected to the admissibility of the blood test results on the ground that the affidavit of the expert who supervised the testing did not comply with the requirements of LSA-R.S. 9:397.3. The trial court issued a written opinion finding that the submitted documentation failed to meet the statutory criteria for admissibility of the DNA test results. The court ordered plaintiff to supplement the affidavit of the expert who supervised the testing.

Subsequently, plaintiff submitted the expert’s supplemental affidavit to the court and the defendant again objected, alleging that the submission did not comply with the statute. The trial court found that the affidavit adequately established the expert’s qualifications and the chain of custody |2of the blood samples, but ordered plaintiff to have the affidavit placed in the proper form under Louisiana law. In response to the court’s order, the plaintiff filed a revised affidavit and defendant objected to the filing. The trial court found that plaintiff had satisfied the statutory criteria for admissibility of the DNA test results and denied the objection. The court rendered judgment recognizing the defendant as the natural father of the minor child. The defendant appeals the judgment.

DISCUSSION

The defendant contends the trial court erred in allowing plaintiff to repeatedly supplement the documentation accompanying the report of DNA test results. Defendant argues that giving plaintiff multiple opportunities to satisfy the statutory criteria for admissibility of test results deprived him of a fair trial and due process of law.

In any civil action in which paternity is a relevant fact, the district court is authorized to order the mother, child and alleged father to submit to the collection of blood or tissue samples so that inherited characteristics may be determined by appropriate testing procedures. LSA-R.S. 9:396. The purpose of blood analysis is either to exclude an accused male from the possibility of paternity or, if not excluded, to calculate the odds that he would have passed the disclosed genetic markers to a particular child. State, DOSS v. Thomas, 27,248 (La.App.2d Cir.8/23/95), 660 So.2d 163; State v. Givens, 616 So.2d 259 (La.App. 2d Cir.1993).

A written report of the test results, certified by a sworn affidavit of the expert who supervised the tests, shall be filed in the record. The |saffidavit shall state in substance: (a) that the affiant is qualified as an examiner of blood and tissue samples for inherited characteristics and give the affiant’s qualifications, education and experience; (b) how the tested individuals were identified; (c) how, when and where the samples were obtained and by whom; (d) the chain of custody of the samples from the time obtained until the tests were completed; (e) the results of the test and the probability of paternity as calculated by an expert based on the test results; and (f) the procedures performed to obtain the results. LSA-R.S. 9:397.3(A).

In the present case, the defendant acknowledges in his brief that under the provisions of LSA-R.S. 9:397.3, the court has the authority to order that the expert’s affidavit be supplemented to satisfy the statute’s requirements concerning his qualifications or the chain of custody. However, defendant argues that the lack of statutory language to restrict a party’s ability to supplement the expert affidavit gives his opponent an unfair advantage and is an infringement of his due process rights. Defendant asserts that allowing multiple revisions of the documentation certifying the paternity test report could have the result of delaying the proceedings “for years” or harassing alleged fathers.

Despite the defendant’s generalized assertions, there was no evidence presented that any such unreasonable delay or harassment occurred in this case. Nor has the defendant shown that he was deprived of a fair trial or due process by the trial court’s continuance of the matter to allow plaintiff to supplement the expert’s affidavit to satisfy the statutory requirements for ^admissibility of test results which defendant requested. After reviewing the record, we cannot say the trial court erred in affording plaintiff additional opportunities, within a limited time-frame, to submit an expert affidavit which conformed with the relatively detailed criteria set forth in the statute for such affidavits. The defendant’s argument lacks merit.

The defendant also contends the trial court erred in finding that the content of the supplemented expert affidavit complied with the requirements of LSA-R.S. 9:397.3. Defendant argues that the affidavit was inadequate because the affiant did not state that she supervised the tests or that she was a qualified examiner of blood samples and did not establish the chain of custody of the samples.

In the August 2001 affidavit, Dr. Susan-nie Lee testified that she was the associate director of DNA Diagnostics Center, the laboratory which performed the testing, and that she had been accepted as an expert in DNA paternity testing, which involves the analysis of blood and tissue samples. Dr. Lee identified the lab technicians who had performed, witnessed and verified the testing procedure and stated that she had reviewed the test data and results. Dr. Lee testified that the blood samples were shipped immediately after they were obtained from the parties and were stored in a secure area of the lab in a manner consistent with the industry standard.

Based upon this record, we cannot say the trial court was clearly wrong in finding that the affidavit sufficiently demonstrated that Dr. Lee had supervised the tests and adequately established her qualifications and the chain of custody of the blood samples in conformity with the statute, ft Consequently, the trial court properly admitted the DNA paternity test results into evidence. The assignment of error lacks merit.

Burden of Proof

The defendant contends the trial court erred in finding that plaintiff satisfied her burden of proving paternity. Defendant argues that his testimony was sufficient to rebut the presumption that he is the father of the minor child.

When, as here, the alleged parent is alive, the burden of proving paternity is by a preponderance of the evidence. LSA-C.C. art. 209(A). State v. Thomas, supra. Proof of paternity is a factual question and a trial court’s determination of the issue should not be disturbed on appeal in the absence of manifest error. State, DOSS v. Gibson, 33,932 (La.App.2d Cir.9/27/00), 768 So.2d 714. Although alone insufficient to prove paternity, scientific testing provides persuasive and objective evidence that can help establish paternity by a preponderance of proof. State v. Gibson, supra; Thomas, supra. A certified report of blood sampling which indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the child’s father creates a rebutta-ble presumption of paternity. LSA-R.S. 9:397.3(B).

In the present case, the DNA testing resulted in a probability of paternity of 99.9995 % and a combined paternity index indicating a likelihood of 194,466 to one that defendant is the biological father of the child when compared to a random individual in the North American Black | fipopulation. Thus, the test results create a rebuttable presumption of the defendant’s paternity.

At trial, the plaintiff testified that throughout 1997 she was having a sexual relationship with the defendant and no one else. She stated that the defendant visited her home almost every weekend during that year until his last visit in November 1997. The plaintiff testified that conception occurred in September 1997 and that she informed defendant a short time after she learned of the pregnancy in October or November 1997. Plaintiff stated that the child’s birth certificate does not list a father because defendant refused to sign the necessary documents. The plaintiff testified that defendant visited the child in the hospital after his birth.

The defendant testified that he did not have sex with the plaintiff in 1997, but acknowledged that he visited plaintiff in her home during that year. Defendant stated that he visited the child in the hospital twice and sent him a card and ten dollars for his first birthday. The defendant acknowledged that he sent notes to plaintiff in July 1999 and September 1999 asking to visit the children. Defendant testified that plaintiff did not tell him he was the father of the child. However, he admits that plaintiff sent the necessary papers for him to complete to be named the child’s father on the birth certificate.

The record includes DNA test results indicating a paternity index and probability of paternity which present very strong scientific evidence that defendant is the biological father of the minor child. In addition, the |7plaintiff unequivocally testified that defendant is the father of the child and that she was sexually involved only with the defendant during the period of conception. The defendant was unable to discredit this testimony in any manner and offered only his own self-serving statements to the contrary.

The trial court heard the conflicting testimony, weighed the credibility of the witnesses and considered the DNA test results, which demonstrated the significant probability of defendant’s paternity. Based upon this record, we conclude the trial court was not clearly wrong in finding that the plaintiff established by a preponderance of the evidence that defendant is the biological father of the minor child. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment declaring that the defendant is the natural father of the minor child, J.J. S., is affirmed. Costs of this appeal are assessed to the appellant, James R. Stevenson.

AFFIRMED.

      . We use initials to refer to the minor child in this opinion in order to protect the identity of the minor whose interests are a subject of this proceeding. URCA Rule 5-2.


author: | PATRICIA RIVET MURRAY, Judge.

text:
    Eunice HUBBARD v. STATE of Louisiana and University Hospital. Unice Hubbard, on Her own Behalf, and on Behalf of Her Minor Son, Curtis Hubbard v. State of Louisiana and University Hospital.
    Nos. 2002-CA-1654, 2002-CA-2355.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 13, 2003.
    Rehearing Denied Sept. 9, 2003.

      Joseph W. Thomas, Ammon L. Miller, Jr., Law Offices of Joseph W. Thomas, New Orleans, LA, for Plaintiffs/Appellees.
    Richard P. Ieyoub, Attorney General, J. Marc Vezina, Kelli M. Khalaf, G. Scott Vezina, Special Assistant Attorneys General, Vezina and Gattuso, L.L.C., Gretna, LA, for Defendants/Appellants.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   | PATRICIA RIVET MURRAY, Judge.

Defendants, the State of Louisiana and the Louisiana State University [“LSU”] Health Sciences Center, appeal the district court’s judgment awarding damages to plaintiff, Eunice Hubbard, in this medical malpractice action. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Curtis Hubbard, son of plaintiff Eunice Hubbard, was born on August 23, 1995 at University Hospital, part of the LSU Health Sciences Center. He was born full term (42 weeks gestation), and weighed 5 pounds, 11 ounces. During his delivery, Curtis inhaled meconium fluid and was intubated as a precautionary measure. Because Curtis was hypoglycemic, an intravenous (IV) line was started in his right hand on the afternoon of August 23. Curtis continued receiving the IV solution until 3:00 a.m. on August 25, at which time it was temporarily stopped and restarted through the same line at 12:35 a.m. on August 26. At 8:30 a.m., approximately eight hours later, Curtis’ IV was discontinued because his right hand and arm were swollen with discoloration and a burn at the IV site. At 9:00 |;>a.m. the nursing notes indicate that Curtis’ glucose level was above 450, which qualifies as severely hyperglycemic. At noon, the nursing notes indicate that the infant was lethargic and had symptoms consistent with dehydration. Forty-five minutes later, a staff physician noted that Curtis had been given the wrong IV solution — D50 (instead of D10) — which contained five times the concentration of glucose as that ordered by the physician. Curtis was then transferred to the intensive care unit [“ICU”]. Two days later, a CT scan was performed on Curtis to evaluate his condition following his having been infused with the hy-pertonic (D50) solution for over eight hours and the resulting dehydration. The CT scan showed a possible venus thrombosis of the transverse and sagittal sinus. After spending approximately three weeks in the hospital, Curtis was discharged on September 16, 1995 with a scar on his right hand from the IV burn.

Curtis’s mother, Eunice Hubbard, filed a medical malpractice complaint against the hospital and the State of Louisiana pursuant to La. R.S. 1299.39 et seq. The medical review panel reviewed the evidence and concluded: “[T]he defendants ... failed to comply with the applicable standard of care as charged in the complaint and there was damage.” The basis of this conclusion was that the hospital staffs failure to follow the doctor’s orders, which resulted in Curtis receiving the wrong IV solution, was a deviation from the applicable standard of care.

Following this determination, Ms. Hubbard filed a petition in civil district court against the State and the hospital. On December 1, 1997, the trial court 13granted the plaintiffs motion for partial summary judgment on the issue of liability. The remaining issues regarding causation and extent of damages were tried without a jury on September 17-18, 2001. On November 8, 2001, the trial court rendered judgment awarding the plaintiff a total of $455,000 in damages. In written reasons for judgment, the trial court indicated that $450,000 in general damages was compensation for the physical and mental suffering, permanent disfigurement and cognitive deficits sustained by Curtis Hubbard as a result of the defendants’ malpractice, and an additional $5,000 in Lejeune damages was awarded to Ms. Hubbard for the mental suffering she sustained as a result of viewing her newborn in the hospital with third degree burns. Without further delineating the damages, the trial court noted that the main issue at trial was the level and extent of cognitive defects, if any, sustained by Curtis as a result of the malpractice. On this issue, the trial court concluded, based on the testimony of the plaintiffs witnesses, that the malpractice had caused Curtis to sustain some cognitive deficit. Specifically, the court noted that the CT scan of Curtis taken in the hospital showed an abnormality; whereas the failure of the defendants to produce a later CT scan, which their expert had testified was normal, warranted an adverse inference in favor of the plaintiff.

After the trial court denied their motion for new trial, judgment notwithstanding the verdict, or remittitur, the defendants took a suspensive appeal. On appeal, the defendants contend that the trial court erred by:

|4(1) Determining that Curtis Hubbard suffered cognitive deficits that were caused by defendants’ malpractice;
(2) Allowing economist, Dr. Frank Martin, to testify regarding the future medical and future educational expenses of Curtis Hubbard;
(3) Awarding damages under La. Civil Code article 2315.6 (Lejeune damages); and
(4) Awarding an excessive amount of general damages.

We discuss these issues in turn.

CAUSATION

The primary issue at trial was whether Curtis Hubbard suffered any cognitive deficit as a result of having been infused with the wrong IV solution as a newborn. The medical records undisput-edly show that Curtis became dehydrated from the IV, and the CT scan taken shortly after the incident showed a possible thrombosis of the transverse and sagittal sinus. All experts agreed, however, that it would be impossible to determine whether Curtis had suffered any cognitive deficiencies as a result of the incident until he was approximately five years old. At the time of trial, Curtis was six years old and had undergone numerous medical and psychological evaluations, records of which were placed in evidence. Experts testifying for the plaintiff regarding Curtis’ condition included clinical psychologist Dr. Beverly Houze, pediatrician Dr. Richard LeBoeuf and neuropsychologist Dr. Susan Andrews. Defendants’ experts on this issue included | ¡^geneticist Dr. Yves Lacassie, neuropsy-chologist Dr. William Black, and neurologist Dr. Patricia Cook.

Dr. Houze, a psychologist, first saw Curtis on November 13, 2000, when he was five years old, and continued to treat him through the time of trial. She tested Curtis and determined that his IQ was 63, which she stated was in the mildly mentally deficient range. She also reviewed Curtis’ medical records and interviewed his mother and his teacher of three years. Dr. Houze testified that Curtis is hyperactive, highly distractible, and has definite perceptual and language problems. She diagnosed him as having a behavioral disorder accompanied by Attention Deficit Disorder with Hyperactivity, as a result of which she opined Curtis would need treatment by medication and therapy for the rest of his life. She noted that Curtis had a keloid scar on his right hand, which did not seem to bother him at his age, but she could not say whether the scar would have any negative affect on his psyche later in life. Finally, Dr. Houze stated that Curtis needs special education of a type that is currently not available in Louisiana public schools. Dr. Houze was not allowed to testify as to the cause of Curtis’ problems, which was objected to by defendants as being outside her expertise.

Dr. LeBoeuf, a pediatrician who was also a member of the medical review panel, testified that in addition to containing the wrong solution, the flow rate of the IV given to Curtis was unusually high. He stated that a severely hypertonic solution such as that administered to Curtis can cause brain damage in the recipient. As a member of the panel, he believed that the thrombosis was caused |fiby the receipt of the hypertonic solution, but that any effect upon Curtis’ cognitive ability would not be able to be assessed until the child reached four to six years of age. When he subsequently learned that Curtis’ IQ at the age of five was measured in the mildly deficient range, he concluded that, absent any other explanation, the low IQ was likely caused by Curtis’ receipt of the wrong IV solution as an infant. Dr. LeBoeuf admitted that, prior to testifying at trial, he had not reviewed Curtis’ medical records to determine whether there were other factors that could have caused or contributed to Curtis’ mental deficiency.

Dr. Andrews, a neuropsychologist, stated that she was qualified to testify as to the affect of dehydration on cognitive ability. She opined that severe dehydration causes general mental retardation. In her opinion, Curtis’ low IQ, which classifies him as mildly mentally retarded, was more likely than not related to the dehydration he suffered as an infant. On cross-examination, Dr. Andrews admitted that she was not aware that Curtis also had been diagnosed with the genetic disorder known as Russell-Silver syndrome or that he had been examined in the emergency room twice (in 1996 and 1997) for head trauma as a result of having fallen down stairs; nor had she reviewed Eunice Hubbard’s prenatal records. Dr, Andrews opined, however, that the type of global retardation exhibited by Curtis probably would not have resulted from falling down stairs.

Testifying for the defendants, Dr. La-cassie, a pediatrician and expert in medical genetics, stated that he first saw Curtis in December of 1996 when the then one-year-old child was admitted to Children’s Hospital for failure to thrive. Dr, |7Lacassie is Curtis’ treating physician, and continued to see Curtis through the time of trial. Upon examination and testing, he diagnosed Curtis with Russell-Silver syndrome, a genetic disorder characterized by intrauterine and postnatal growth retardation, hypoglycemia, cranial facial disproportion, asymmetry of body, and a type of birthmark referred to as “café au lait.” Dr. Lacassie indicated that Curtis’ hypoglycemia at birth and small birth weight (5 lbs., 11 oz. at 42 weeks gestation) were consistent with this diagnosis, but acknowledged that Russell-Silver syndrome is a clinical diagnosis of exclusion, with no existing medical tests to confirm it. Dr. Lacassie stated that thirty to forty-five percent of persons diagnosed with Russell-Silver syndrome are mentally retarded. He opined that Curtis’ mental retardation was most likely due to Russell-Silver syndrome. He also stated, however, that Curtis was not immune to the affects of dehydration even though he had Russell-Silver syndrome. Dr. Lacassie acknowledged that dehydration could have caused Curtis’ mental retardation, although in his opinion it did not.

Dr. Black, a neuropsychologist, examined and tested Curtis and interviewed his mother, Eunice Hubbard, on July 19, 2001, when Curtis was nearly six years old. He measured Curtis’ IQ at 68, but stated that unlike Dr. Andrews, he would diagnose Curtis as developmentally delayed rather than as having a cognitive disorder. When asked whether Curtis’ developmental deficit was the result of dehydration, Dr. Black acknowledged that it was possible, but unlikely in his opinion. He stated his belief that Curtis’ mental deficiency was primarily due to | ssocial/cultural and educational factors. Dr. Black qualified his opinion, however, by stating that the determination of what caused Curtis’ mental deficiency was outside of his expertise as a neuropsychologist. Dr. Black also opined that Curtis would need good special education, which in his opinion is not available in Louisiana; he noted that Curtis had been evaluated for special education by the New Orleans public school system and had been turned down.

Defendants also presented the testimony of Dr. Cook, a neurologist, who performed a neurological exam on Curtis in July of 1996 when Curtis was nearly one year old, reviewed his medical records and interviewed Eunice Hubbard. Dr. Cook stated that although Curtis was small for his age, his neurological exam was normal, and she did not believe Curtis had any cognitive problems that were related to the IV infiltration he suffered. She did note in her report that Curtis had a borderline delay in language development and testified that he was in the low percentile of the normal bell curve as far as motor physical size, but had no gross motor abnormalities or focal neurological deficits. Dr. Cook opined that Curtis was at risk for later development of behavior abnormalities and cognitive dysfunction attributed to his low birth weight and hypoglycemia at birth, which both indicated that there may have been something wrong intrauterine.

In addition to her exam, Dr. Cook relied upon the radiology reports of two CT scans taken of Curtis, the first on August 28,1995 and the second one month later on September 29, 1995. With regard to the first CT scan report indicating a possible venus thrombosis (which she defined as clotting of a vessel), Dr. Cook |9stated that she questioned the radiology report because it is not generally possible from a CT scan to tell a venus thrombosis from other small hemorrhages or infarctions that occur frequently in infants delivered vaginally; moreover, there was nothing to indicate that Curtis had suffered a stroke or seizure, which usually results from a venus thrombosis. According to the radiology report, the second CT scan was normal. This fact bolstered Dr. Cook’s opinion that no thrombosis occurred because if such had occurred, she would have expected some neurological abnormalities to show up by the time the second scan was done a month later. Based upon this evidence and the results of the neurological exam she performed, Dr. Cook concluded that although dehydration such as that suffered by Curtis can cause thrombosis, which then can result in neurological damage, a thrombosis did not occur in the instant case. On cross-examination, Dr. Cook agreed that to determine whether the infusion of the hypertonic solution caused any personal neurological deficits, one would have to wait until the child was about five years old, when cognitive function can be better measured. Finally, Dr. Cook stated that neuropsychological tests such as those performed by Dr. Andrews and Dr. Black cannot properly be used to determine the cause of neuropsychological defects, only their existence.

Considering all the expert testimony, the trial court concluded that the plaintiff had proven that Curtis more likely than not had suffered cognitive defects that were caused by his having received the wrong IV solution. The defendants argue this determination is manifestly erroneous for two reasons. First, they argue [10that Dr. Andrews’ testimony must be discounted because a neuropsychologist is not qualified to testify as to cause of a person’s neurological condition, citing Standeford v. Winn Dixie of Louisiana, 96-088 (La.App. 5 Cir. 12/30/96), 688 So.2d 602, 604 (wherein a neuropsychologist was prevented from testifying as to causation). Secondly, defendants contend that the opinion of Dr. LeBoeuf must also be discounted because he did not review the entire medical file of Curtis Hubbard, and therefore limited his opinion on causation to those instances in which there is no other explanation; whereas a review of Curtis’ entire medical history, such as was presented in evidence, reveals several possible causes for his low IQ besides the IV infiltration. In summary, defendants argue that the trial court committed manifest error by accepting the opinions of Drs. Andrews and LeBoeuf over those of Dr. Cook, who was the only neurologist to testify, Dr. Black, and Dr. Lacassie, Curtis’ treating physician.

In a medical malpractice action, the plaintiff must establish a causal connection between the defendant’s negligent treatment and the sustained injury. Tucker v. Lain, 98-2273, 01-0608, 01-0609, p. 14 (La.App. 4 Cir. 9/5/01), 798 So.2d 1041, 1049, writ denied, 2001-2715 (La.1/4/02), 805 So.2d 210 (citing La. R.S. 9:2794; Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La.1991). Cause-in-fact is usually a “but for” inquiry which tests whether the injury would not have occurred but for the defendant’s negligence. Id. (citing Cay v. State, DOTD, 631 So.2d 393 (La.1994). Causation is a factual determination that In should not be reversed on appeal absent manifest error. Id. (citing Housley v. Cerise, 579 So.2d 973 (La.1991).

In a medical malpractice action, the assessment of factual conflicts, including those involving the contradictory testimony of expert witnesses, lies within the province of the trier of fact. Hunter v. Bossier Medical Center, 31,026, p. 5 (La.App.2d Cir.9/25/98), 718 So.2d 636, 640. Where medical experts express differing views, judgments and opinions, great deference is given to the factfinder’s determinations, which should not be reversed on appeal unless the reviewing court concludes that no reasonable factual basis exists for them. Piro v. Chandler, 33,953, p. 4 (La.App. 2 Cir. 11/1/00), 780 So.2d 394, 397.

In the instant case, we cannot say that the trial court’s finding of causation was manifestly erroneous. Even assuming that neither neuropsychologist (Dr. Andrews or Dr. Black) was qualified to testify as to the cause of Curtis’ mental retardation, it was not unreasonable for the trial court to accept the opinion of Dr. LeBoeuf over that of Dr. Lacassie and Dr. Cook. Although at the time he initially rendered his opinion, Dr. LeBoeuf admitted he had not considered every aspect of Curtis’ medical history that was eventually placed into evidence, he did later testify that the two incidents of Curtis having fallen down the stairs had not resulted in significant head trauma according to the medical records. The court may also have considered that Dr. Lacassie’s explanation for Curtis’s mental deficiency, Russell-Silver syndrome, is itself a diagnosis of exclusion. Additionally, Dr. Lacassie testified that only thirty-five to forty percent of patients with Russell Silver | ^syndrome are mentally retarded, and that having Russell Silver syndrome would not exempt Curtis from suffering cognitive defects as a result of dehydration.

As for Dr. Cook, even though she was the only neurologist to testify, the trial court could have discredited her testimony for several reasons. Dr. Cook’s only examination of Curtis took place when he was ten months old, and she admitted that Curtis’ level of cognitive functioning would not be able to be determined until he was about five years old. More importantly, Dr. Cook indicated that in forming her opinion, she had relied partially on the radiology report noting a normal CT scan one month after the IV infiltration. This second CT scan, however, was never produced by defendants, which prompted the trial court to adopt a negative inference with regard to it. Defendants do not contest the correctness of this adverse inference on appeal. This inference could reasonably have cast doubt upon Dr. Cook’s testimony, particularly since she clearly questioned the radiologist’s interpretation of the first CT scan.

Therefore, in light of all the evidence, we cannot find that the trial court committed manifest error in determining that the defendants’ malpractice caused Curtis to suffer cognitive deficits.

QUALIFICATION OF EXPERT

Defendants argue that the trial court erred by allowing economist Dr. Frank Martin to testify as to the present value of future medical care and of special education for Curtis. Defendants objected to Dr. Martin’s testimony on the ground that he had no expertise in medical economics; the trial court judge overruled the 113objection, stating that he was admitting Dr. Martin as an expert in “economics.” Dr. Martin admitted he was not a medical economist.

Dr. Martin, using figures he obtained from Dr. Houze giving a range of costs for twelve years of psychological treatment and consultation with school personnel, calculated that the present value of future medical expenses for Curtis to be $101,000. The defendants objected to this testimony at trial on the grounds that Dr. Houze did not testify, either in her deposition or at trial, as to the numbers she provided Dr. Martin, thereby preventing the defendants from cross-examining her regarding the basis for those figures. Then, based on the testimony of Dr. Andrews and Dr. Black that Curtis would need special education not available in Louisiana, Dr. Martin determined from conducting an internet search that the average tuition among five out-of-state schools offering special education for children with learning disabilities was $13,665 per year, and calculated the present value of twelve years of special education be $168, 501. The defendants objected to this testimony on the grounds that Dr. Martin admittedly did nothing to verify whether these schools offered the type of special education that Dr. Andrews and Dr. Black believed Curtis would need. Defendants now contend that the overruling of their objections was error.

The qualification of an expert witness rests within the sound discretion of the trial judge, and his determination will not be disturbed absent manifest error. Hunter v. Bossier Medical Center, supra, at p. 14, 718 So.2d at 644. In Hunter, the court stated: “Generally, the fact that a medical doctor is not a specialist in a | particular field applies only to the effect on the weight to be given such testimony, not to its admissibility.” Id. In that case, the appellate court held it was not error for the trial court to have allowed a general surgeon to testify as to an orthopedic procedure. By analogy, we conclude it was not manifest error for the court in the instant case to allow an economist to testify regarding medical economics. The record reflects that the trial judge was clearly aware of Dr. Martin’s lack of expertise in the specific area of medical economics, and further that Dr. Martin disclosed exactly the sources of information and the method he used to arrive at his final figures. Particularly considering that this was a bench trial, we believe the trial judge was within her discretion to allow this testimony subject to her own ability to place upon it the weight it deserved. Moreover, there is no indication, either from the reasons for judgment or the judgment itself, that any portion of the general damages award is compensation for future medical expenses or special education; therefore, we are unable to tell from the record whether the trial court gave any credence to Dr. Martin’s testimony. Under these circumstances, had we found error in the allowance of Dr. Martin’s testimony, we would have been compelled to categorize such error as harmless.

LEJEUNE DAMAGES

Defendants contend the trial court erred by awarding Eunice Hubbard $5,000 in damages for emotional distress under Louisiana Civil Code article 2315.6, commonly referred to as Lejeune damages. A trial court’s decision to h .¡award damages under this article is a finding of fact that may not be disturbed in the absence of manifest error. Labouisse v. Orleans Parish School Board, 99-1684, p. 7 (La.App.4Cir.3/15/00), 757 So.2d 866, 871. In Williams v. O’Neill, 99-2575 (La.App. 4 Cir 3/13/02), 813 So.2d 548, writ denied, 2002-1029 (La.5/24/02), 816 So.2d 859, this court stated:

In order to recover under La. C.C. art. 2315.6, a plaintiff must establish the following elements: (1) the plaintiff “either viewed the accident or injury-causing event or came upon the accident scene soon thereafter and before substantial change occurred in the victim’s condition;” (2) “the ‘direct’ victim of the traumatic injury suffered such harm that it can reasonably be expected that one in the plaintiffs position would suffer serious mental anguish from the experience”; (3) “the plaintiffs emotion [sic] distress was reasonably foreseeable and ‘both severe and debilitating’ ”; and (4) “the plaintiff shared a close relationship to the injured person such that the plaintiffs shock was understandable.”

Id. at p. 18-19, 813 So.2d at 561 (quoting DeClouet v. Orleans Parish School Board, 96-2805, p. 19 (La.App. 4 Cir. 6/3/98), 715 So.2d 69, 79).

In the instant case, defendants argue that Eunice Hubbard neither viewed the injury-causing event nor came upon it soon thereafter, and further, that plaintiff failed to establish that her distress was “severe and debilitating.” Eunice Hubbard testified that initially, her baby remained in the hospital after she was discharged because he was being treated for “low sugar.” While the baby was in the hospital, she visited him every day from 10:00 a.m. until 10:00 p.m., when she had to leave to catch the last bus home. The first day she noticed Curtis was crying, jumping, seemingly in pain, and his entire right arm was swollen. The next day when she arrived at the hospital, she was sent directly to ICU, where she saw that her newborn was crying with pain and she could see he was burned, at which point she [1fiexclaimed: “Lord, what’s wrong with my child?” The burn was pink and black and she could tell it hurt the baby a lot, which distressed her. Ms. Hubbard testified that she was “terrified” and “hurt,” and that she cried for a long time before a doctor finally told her that her newborn had suffered a third degree burn. After she questioned the doctor, he told her that there had been too much medicine in Curtis’ IV and it had leaked into his tissues rather than going through his veins. At some point that day or the next, Curtis’ bandages were removed and Ms. Hubbard, after obtaining a camera, took photographs that were introduced as evidence at the trial.

Defendants contend that because Ms. Hubbard arrived after Curtis had been moved to ICU, she did not view her son’s injury before substantial change had occurred in his condition, as required by Williams, supra. They also contend that Ms. Hubbard’s testimony alone was insufficient to establish that her emotional distress was debilitating, particularly in light of the fact that she had the presence of mind to request a camera from the hospital staff, and then to obtain one on her own when the staff failed to provide one.

We cannot find manifest error in the determination that a mother who suddenly finds her newborn in ICU with a third degree burn he suffered hours before while in the hospital meets the criterion of having come upon the injured person before substantial change occurred; although the child was being treated for the burn, substantial change could not yet have occurred in the burn itself, nor in the child’s agitated condition. Moreover, although defendants complain that no one other than Ms. Hubbard herself testified as to her state of mind, there is no requirement that her testimony be | ^corroborated. Ms. Hubbard’s testimony that she was terrified and that she cried a long time before she was given any explanation for her son’s condition are sufficient to provide a reasonable basis for the trial court’s minimal award of $5,000 in Lejeune damages. Accordingly, we decline to disturb this award.

QUANTUM

Finally, defendants argue that the amount of general damages awarded by the trial court, $450,000, was excessive. However, defendants’ entire argument with regard to quantum is based on the premise that plaintiffs are owed compensation only for Curtis’ scar and the pain and suffering associated with the burn, not for any cognitive defects. Defendants cite Reichert v. Barbera, 601 So.2d 802 (La.App. 4th Cir.1992), in which this court affirmed an award of $25,000 to a five-year-old burned on his elbow and scarred permanently by an acid used to remove warts, and suggest that $25,000 is the highest award that is reasonable in the instant case. We disagree. The child in Reichert was not a newborn, and there is no indication that he spent time in ICU due to his injury.

Dr. Donald Faust, a pediatric orthopedic surgeon, testified that Curtis has permanent, irremovable scars that are cosmetic only, with no impairment of function. There was general agreement among the psychology experts who testified at trial that the scars on his Curtis’ arm had not negatively affected his six-year-old psyche or self-image, but they could not predict what affect, if any, the scars would have on Curtis in the future. As for pain and suffering, Ms. Hubbard testified that the infant was crying and “jumping” with pain both the day before and shortly after the burn was ¡^discovered. Curtis remained in the hospital for approximately three weeks. Ms. Hubbard testified that upon returning home, she changed Curtis’ bandages and moved his arm three times per day, and a home health nurse came regularly for six weeks to clean the wound and do physical therapy exercises with the arm; she stated that these procedures obviously hurt the baby because he cried as if in pain. According to her testimony, it took a year for the bum to completely heal.

In addition to the physical and mental suffering and permanent disfigurement attributable to the IV burn, the trial court found that Curtis Hubbard sustained some cognitive deficit as a result of defendants’ malpractice, a finding we affirm. The trial court, however, made an in globo award of $450,000 without delineating what portion was intended as compensation for the cognitive deficiency.

The trial court has great, even vast, discretion in the assessment of general damages. See generally, Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993). Under the circumstances, we cannot say that the trial court clearly abused this discretion or that the award is so high that it shocks the conscience. Moore v. Healthcare Elmwood, 582 So.2d 871 (La.App. 5th Cir.1991). Accordingly, we decline to disturb the trial court’s award.

^CONCLUSION

For the reasons stated, we affirm the judgment of the trial court.

AFFIRMED.

      . Plaintiff also contends in her appellee brief that appellants should be sanctioned for their alleged misbehavior in the trial court; however, plaintiff did not file an answer to the appeal, and in the absence of such, we decline to address this issue, as plaintiff is not entitled to any affirmative relief. La. Code Civ. Pro. art. 2133.

      . The principles first set forth in Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990), concerning the standards for proving third-party mental anguish / emotional distress, have been codified in La.Code Civ. Art. 2315.6.

      . The trial court awarded an additional $5,000 in Lejeune damages, making the total award 455,000.