author: I «WALTER J. ROTHSCHILD, Judge. I,DALEY, J.,

text:
    Chiwana J. JONES, Wife of/and Henry Jones, individually and appearing on behalf of their Minor Child, Breion Jones; Andre James Phillips, individually and as the duly appointed Provision Tutor of and appearing on behalf of Diana James; Orlando James Brown, individually and appearing on behalf of her Minor Child, Norman James, v. Nick CONGEMI, both individually and as the Chief of Police, City of Kenner, ABC Insurance Company, Michael Archuleta, Russell Moran, Bennie Bazely, and Robert King, as the Natural Tutor of Terrence King. Wilmareen James, Wife of/and Wilson James, v. Nick Congemi, individually and as the Chief of Police, City of Kenner, Michael Archuleta, Russell Moran, Bennie Bazley and Terrence King.
    Nos. 01-C-1345, 02-CA-148, 02-CA-149.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 13, 2003.

      Daniel A. Claitor, Claitor & Loupe, L.L.C., Baton Rouge, LA, for Chiwana Jones, et al., Plaintiffs/Appellees.
    Karl Wiedemann, Wiedemann & Wiede-mann, New Orleans, LA, for Wilmareen James and Wilson James, Plaintiffs/Appel-lees.
    Edward F. Kohnke, IV, James H. Brown, Jr., Frilot, Patridge, Kohnke & Clements, New Orleans, LA, and Lawrence J. Duplass, Kelly Cambre Bogart, Duplass, Zwain & Bourgeois, Metairie, LA, for The City of Kenner, Chief of Police Nick Congemi, Officer Michael Ar-chuleta, Officer Russell Moran, Officer Bennie Bazley, and Fireman’s Fund Insurance Company of Ohio, Defendants/Appel-lee.
    Ernest L. O’Bannon, Christopher M. G’Sell, Bienvenu, Foster, Ryan & O’Ban-non, New Orleans, LA, for Scottsdale Insurance Company, Intervenor/Appellee.
    Philip Boudousque’, Metairie, LA, for The City of Kenner, Chief of Police Nick A. Congemi, Officer Michael Archuleta, Officer Russell Moran, Officer Bennie Bazely, Defendants/Appellants.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, JAMES L. CANNELLA, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   I «WALTER J. ROTHSCHILD, Judge.

This case arises from an automobile accident that occurred on August 30, 1998, when Terrence King, who was driving a stolen Dodge Neon, disregarded a red light and struck a Honda Accord driven by Wilmareen James. The plaintiffs in this matter are the occupants of the Honda Accord and the survivors of the occupants who tragically died as a result of this accident. At the time of the accident, the vehicle driven by King was being followed by three police officers from the Kenner Police Department, namely Officers Ar-chuleta, Moran, and Bazley, in police units.

The plaintiffs filed suit against the City of Kenner, Kenner Police Chief Nick Con-gemi, and the three officers who were following Mr. King at the time of the accident (“the Kenner defendants”), as well as Scottsdale Insurance Company and Fireman’s Fund Insurance Company of Ohio. The Kenner defendants filed a Motion for Summary Judgment asserting that they are not liable for the damages in this case because the accident was caused solely by the negligence of Terrence King, not the Kenner defendants. After a hearing, the trial judge denied the Kenner defendants’ Motion for Summary Judgment, stating that he was unable to determine if the officers’ pursuit of Mr. King complied with the policies of the |4Kenner Police Department and if the accident would have occurred if Mr. King had not been pursued in this manner.

The Kenner defendants sought review of this ruling by filing a writ application, No. Ol-C-1345, with this Court, but the application was denied on December 13, 2001 in a 2-1 decision. The Kenner defendants filed a writ application, No.2002-CC-0105, with the Louisiana Supreme Court, which was granted. The matter was remanded to this court for briefing, argument, and opinion. Jones v. Congemi, 02-0105 (La.4/12/02), 812 So.2d 659.

This Court rendered an opinion 'granting Summary Judgment in favor of the Ken-ner defendants and dismissing them from this lawsuit on October 16, 2002. However, the plaintiffs filed a writ application, No. 02-C-2779, from this ruling with the Louisiana Supreme Court, and it was granted on January 24, 2003. Jones v. Congemi, 02-2979 (La.1/24/03), 840 So.2d 525. The Supreme Court vacated the summary judgment pertaining to the Ken-ner defendants’ liability and remanded the matter to this Court to consider this issue once again, after briefing and argument by the parties. Oral argument was held before a five-judge panel of.this Court on April 2, 2003, and the matter was once again submitted.

FACTS

On the morning of August 30, 1998, Officer Archuleta of the Kenner Police Department was on patrol in the area of the 100 block of Airline Drive when he noticed a green Dodge Neon traveling east on Airline Drive. The vehicle appeared to be speeding, so Officer Archuleta pulled onto Airline Drive and began to follow the Neon while remaining about Vjk to 2 car lengths behind it. While following the Neon, Officer Archuleta confirmed that it was traveling at approximately 55 miles per hour in a 45 mile per hour zone. As they reached the overpass just west 1 Rof the New Orleans airport, Officer Archuleta activated the overhead lights on his police unit. Mr. King reduced his speed to about 40 miles per hour, which was the proper speed limit on that portion of Airline Drive, but did not pull over.

Mr. King stopped at a red light at the intersection in front of the airport, and Officer Archuleta began “popping” his siren in order to get Mr. King’s attention. However, Mr. King did not pull over and, when the light turned green, he continued to drive down Airline Drive at the posted speed limit, 40 miles per hour. Both Mr. King and Officer Archuleta stopped at the next red light, which was at the intersection of Hollandey and Airline. Officer Ar-chuleta notified the radio dispatcher for the Kenner Police Department that he was following a vehicle that was stopping for all of the traffic signals, but would not pull over. He further asked the dispatcher to have registration and stolen vehicle checks performed.

When the light at Hollandey turned green, Mr. King continued to proceed down Airline, moved to the left lane, and continued traveling within the speed limit until he reached a red light at the intersection of Williams Boulevard and Airline, where he and Officer Archuleta stopped once again. At this intersection, two other Kenner police units, driven by Officers Russell Moran and Bennie Bazley, arrived, after hearing on the radio that Officer Archuleta was following a vehicle that would not pull over. Officer Bazley positioned his police unit southbound on Williams Boulevard, pointed toward Airline, and Officer Moran positioned his vehicle in the intersection, blocking the eastbound left lane of travel and part of the eastbound right lane of travel on Airline Drive, which was just ahead of Mr. King and Officer Archuleta who were stopped at the red light at this intersection. Both police units had their overhead lights on, but neither police unit had its siren on.

Officer Archuleta exited his vehicle and approached the Neon driven by Terrence King. When he reached the back bumper of the Neon, Mr. King drove around Officer Moran’s vehicle and proceeded down Airline Drive, even though |fithe light at Williams was still red. Officers Bazley, Moran, and Archuleta followed Mr. King, proceeded through the next intersection, which was controlled by a green light, and approached the next intersection at Roosevelt, which had a red light. Mr. King did not stop for the red light and, after passing through this intersection, began to increase his speed. According to the officers, Mr. King continued to travel at a normal rate of speed until he “coasted” through the light at Roosevelt. It was at that point that his speed picked up. The officers activated their sirens and continued to follow Mr. King.

As Mr. King approached the next intersection at a high rate of speed, which was at North Atlanta/Wilkerneal and Airline, the traffic light turned red, but Mr. King did not stop. The Neon driven by Mr. King struck a black Honda that was crossing Airline at that intersection. The elapsed time between when he “coasted” through the Roosevelt intersection and struck the Honda at North Atlanta/Wilker-neal was very brief. As a result of the collision, four of the occupants of the Honda, which was driven by Wilmareen James, perished, and the other four occupants were seriously injured. After the accident, Terrence King fled on foot. However, he was apprehended shortly thereafter by Officers Bazley and Archuleta.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria applied by the trial court to determine whether a summary judgment is appropriate. Magic Moments Pizza, Inc. v. Louisiana Restaurant Ass’n., 02-160 (La.App. 5 Cir. 5/29/02), 819 So.2d 1146, 1149; Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 772 So.2d 865, 866, writ denied, 00-3247 (La.1/26/01), 782 So.2d 636. Summary judgments are now favored in the law and the rules should be liberally applied. Nutt v. City of Gretna, 00-1864 (La.App. 5 Cir. 5/16/01), 788 So.2d 617, 619. LSA-C.C.P. art. 966 provides that a summary | judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, establish that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. Prince v. K-Mart Corp., 01-1151 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248. A fact is material when its existence or non-existence may be essential to the plaintiffs cause of action. Elmwood MRI, Ltd. v. Paracelsus Pioneer Valley Hosp., Inc., et al., 01-764 (La.App. 5 Cir. 12/26/01), 806 So.2d 743, 747.

In their Motion for Summary Judgment, the Kenner defendants argue that they are not liable in this case because the accident was caused solely by the actions of Terrence King, not the police officers or other Kenner defendants. The plaintiffs argue that the police officers violated their departmental policies regarding vehicle pursuits and that the accident would not have occurred if Officer Archuleta had discontinued his pursuit of Mr. King in accordance with departmental policy. The plaintiffs further contend that this policy violation should be considered at trial when determining whether the police officers acted “reasonably” under the circumstances.

In Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1177, the Louisiana Supreme Court stated that law enforcement officers have the exclusive power to regulate traffic, and they are duty bound to exercise this power in a reasonable manner to protect people and to refrain from causing injury or harm. This duty requires a law enforcement officer to proceed in a manner that is reasonable under the circumstances, but this does not require the officer to choose the best or even a better method of approach. Id.

In the present case, Officer Archuleta testified that after he began to follow the Neon, Mr. King began to travel within the posted speed limit, but would not pull over. It was apparent that the vehicle or suspect required investigation because he would not pull over, but it did not appear that there was danger to the | sofficer or the general public. The fact that Mr. King would not pull over would lead any reasonable person to be suspicious of the reasons for his actions. It was certainly reasonable for Officer Archuleta to continue following Mr. King at this time. If a person commits a traffic violation and refuses to stop for the police, he certainly should not be permitted to drive away and avoid any consequences because he successfully avoids being stopped. Is it reasonable for the police to turn on their lights and sirens to stop a traffic violator and then terminate the attempted stop simply because the operator of the offending vehicle ignores the officer and does not stop within a few hundred feet, but continues to drive, obeying all traffic and other laws from that point on? We think not.

After receiving assistance from Officers Bazley and Moran, who set up a roadblock at the intersection of Williams and Airline, Officer Archuleta got out of his vehicle and began walking toward the Neon. At this time, Mr. King drove around the roadblock and proceeded eastbound on Airline, eventually striking the Honda Accord driven by Wilmareen James. The officers had no way of knowing that Mr. King would suddenly change from low speed to high speed, and it would have been unreasonable for the officers to stop following him at that point. The possible reasons why Mr. King would not stop during this odyssey are endless. He could have had contraband in the vehicle, a dead body, or even a rape or kidnap victim in the vehicle. There was no way for the officers to know. The officers would have acted unreasonably to discontinue following a person who acted as Mr. King did. To terminate their attempts to stop Mr. King could have exposed the officers and their department to liability if Mr. King had injured someone after they let him go, which is something clearly foreseeable considering his bizarre behavior.

In McElreath v. Progressive Insurance Co., 595 So.2d 693 (La.App. 5 Cir.1992), writ denied, 596 So.2d 557 (La.1992), two police officers noticed a |9motorcycle that was being operated in a reckless manner. The officers followed the motorcycle for one and one-half miles, while the motorcycle continued to increase its speed, failed to obey traffic signals, and eventually struck another vehicle at an intersection. The plaintiffs filed suit against the police officers and the Gretna Police Department, alleging that the officers were negligent in their pursuit of the driver of the motorcycle. However, the trial court granted and this Court affirmed a summary judgment in favor of the Gretna Police Department, finding that the police officers were not negligent. This Court found that the undisputed facts established that the officers acted with due regard for the safety of all persons in attempting to stop the motorcycle and that the accident was caused by the driver of the motorcycle, not the police officers. Id. at 695.

In the present case, the undisputed facts indicate that the officers’ actions in continuing to follow Mr. King, after he refused to stop were reasonable. Although it is extremely unfortunate that the accident in this case resulted in the tragic death of four people and serious injuries to four others, it was not the police officers who struck the vehicle driven by Ms. James and their actions did not cause the accident. The accident was clearly caused by the criminal actions of Terrence King, not the Kenner defendants.

The plaintiffs argue that the officers violated the Kenner Police Department policies on vehicular pursuits when they followed Mr. King. They contend that the officers escalated an attempted routine traffic stop into a dangerous high-speed chase, in violation of departmental policies, and this accident would not have happened if the police had not done so. They contend that the issue of whether the officers violated the policies of the Kenner Police Department is material to the outcome of this case, and therefore, this disputed issue precludes summary judgment. After hearing argument on the Motion for Summary Judgment, the trial judge found that the issue of whether the officers violated the policy on vehicular |inpursuits is a factor to consider when determining whether or not the officers breached a duty owed to the plaintiffs. He indicated that he did not believe summary judgment was proper without additional facts indicating if the policy was violated or not. We disagree.

The Kenner Police Department Operations Manual defines “vehicular pursuit” as “when officers attempt to apprehend a suspect who is purposely evading capture by operating a motor vehicle in violation of traffic laws governing direction of travel, speed of travel, traffic signs and signals and/or other illegal actions.” The manual defines “High-Speed/High-Risk Vehicle Pursuit” as:

An active attempt by a Kenner Police Officer, in an authorized emergency equipped and designated pursuit vehicle, to apprehend fleeing suspects who are using excessive speed or committing a hazardous violation (i.e., going the wrong way on a one-way street, etc.) to avoid apprehension through evasive tactics and failing to stop when approached by the Department authorized emergency vehicle utilizing simultaneous emergency warning equipment.

“Low-Speed /Low-Risk Vehicle Pursuit” is defined as:

An active attempt by a Kenner Police Officer, in an authorized emergency equipped and designated pursuit vehicle, to apprehend fleeing suspects who are not utilizing excessive speed or committing a hazardous moving violation to avoid apprehension by ignoring and failing to stop when approached by the Department authorized emergency vehicle utilizing simultaneous emergency warning equipment.

The manual further provides in DR 3-5.1, Section IX, entitled “Termination Criteria,” in part as follows:

A low-speed, low-risk or high-speed, high-risk pursuit SHALL be immediately terminated AT ANY TIME the danger posed to the general public, the officer(s) or the fleeing suspect is greater than the benefit of continuing the pursuit and apprehending the suspect. The termination of a pursuit does not prohibit the following of a vehicle at a safe speed, or remaining in an area to re-initiate pursuit if the opportunity and conditions permit. (Emphasis added).

FSOP 7-15, Part 9 of the Kenner Police Department’s Operations Manual sets forth the procedure for routine vehicle stops. It provides in part:

|„1. ROUTINE VEHICLE STOPS will be performed when an officer in an authorized emergency vehicle or a pursuit vehicle, as defined in Part 4 of this procedure, attempts to stop a vehicle after articulable facts indicate that said vehicle or suspect requires investigation and the officer has concluded that the stop does not present danger to the officer, the general public or to the suspects). If the driver of the suspect vehicle responds to the emergency equipment (emergency lights and/or siren) and stops within approximately 400 yards (or a cumulative distance of approximately 4 city blocks) of the initiation of the attempt to stop the vehicle, then the officer has performed a ROUTINE VEHICLE STOP. No attempt to flee from the officer’s emergency equipped vehicle occurred.
3. In the event an attempt to conduct a routine traffic stop for minor traffic or misdemeanor offense or suspicious activity does not result in compliance within the designated “stop zone,” the officer should disengage the attempt to stop the vehicle and may begin trailing the vehicle. (Emphasis added.)

Officer Archuleta stated that the majority of the time that he followed Mr. King, they were both traveling within the speed limit. It was not until shortly before the accident that Mr. King picked up speed. The department policy permits following a vehicle at a safe speed. Furthermore, although Mr. King did not pull over in the required “stop zone,” the department manual allows the officer to begin “trailing” the vehicle in such a situation. The parties disagree as to whether the officers “trailed” Mr. King or “chased” him at a high rate of speed. However, we find that this issue is not a genuine issue of material fact which precludes summary judgment.

Even if the officers had deviated from the policies of the Kenner Police Department, we find that the undisputed material facts establish that the officers’ actions were reasonable. Policies and regulations should indeed be followed and corrective action may be taken by the police department when an officer fails to comply with the department’s regulations. However, when determining the scope of duty owed by law enforcement officers and whether such duty was breached, Lathe legal question is whether or not a police officer’s actions were reasonable, not whether he complied with departmental policies.

Considering the circumstances of the case before us, we find that the undisputed facts establish that the officers’ action in following Mr. King were reasonable. Therefore, we find that the trial judge was incorrect when he denied the Motion for Summary Judgment filed by the Kenner defendants on the issue of liability, and we reverse this ruling of the trial court. Accordingly, we grant summary judgment in favor of the Kenner defendants, finding that they were not liable for the accident and tragic consequences in this case, and we dismiss them from this lawsuit.

REVERSED; SUMMARY JUDGMENT GRANTED IN FAVOR OF THE KENNER DEFENDANTS.

I,DALEY, J.,

dissents with reasons.

I respectfully dissent from the majority opinion.

Plaintiffs assert that in pursuing King, the officers were in violation of several policies of the Kenner Police Department’s Operations Manual relating to pursuit of vehicles. Plaintiffs argue that the officers owed a duty to the plaintiffs not to escalate an attempted routine traffic stop into a fatal high-speed chase. The policy manual states in pertinent part that pursuit “beyond a low-risk attempt to initially stop a vehicle, is justified only as | ¿when there is the commission of a serious felony by the occupant(s), or when the occupants, by their actions, present an immediate threat to the public.” In the record before us there was no proof the King had committed serious felony or presented an immediate threat to the public.

Attached to plaintiffs opposition is an affidavit'from Ken Katsaris, an expert in law enforcement policy and procedures involving traffic stops and vehicle pursuits. Mr. Katsaris states that the Kenner officers failed to comply with their own departmental policies and with the applicable national standards relative to pursuits and traffic stops. He concludes “it is reasonable to believe from pursuit experience that if the pursuit had terminated as directed by the City policy, this accident would not have occurred.”

. In Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181 (La.2/29/00), 755 So.2d 226 at 236, the Court stated: “If a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Dau-bert-Foret and the other applicable evi-dentiary rules, and is sufficient to allow a reasonable juror to conclude that the expert’s opinion on a material fact more likely than not is true, the trial judge should deny the motion and let the issue be decided at trial:”

Whether the Kenner police were pursuing the Neon at a high rate of speed or trailing the vehicle in compliance with departmental policy, is a disputed issue of material fact. Resolution of this fact could affect the trier of fact’s determination as to causation. For this reason, I find the trial court correctly denied the Kenner defendant’s Motion for Summary Judgment on the issue of liability. I would remand to the trial court for a full trial on the merits.

      . This writ application, no. Ol-C-1345, was consolidated with an appeal filed in this Court, Jones, et al. v. Congemi, et al., no. 02-CA-148 c/w 02-CA-149. However, this Court rendered an opinion addressing the issues set forth in the appeal, and the Louisiana Supreme Court thereafter denied writs on these issues. Accordingly, this opinion applies only to the merits of the original writ application, no. Ol-C-1345, which concerns the liability of the Kenner defendants.


source: Caselaw Access Project

author: I,WILLIAM H. BYRNES III, Chief Judge.

license: Public Domain

text:
    Horace JOHNSON v. COX COMMUNICATIONS.
    No. 2003-CA-0060.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 2003.

      William R. Mustian, III, Stanga & Mus-tian, P.L.C., Metairie, LA, for Plaintiff/Ap-pellee.

      Richard Eason, Marrick Armstrong, Adams and Reese LLP, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE and Judge EDWIN A. LOMBARD).
   I,WILLIAM H. BYRNES III, Chief Judge.

STATEMENT OF THE CASE

On January 11, 2000, Horace Johnson, through counsel, filed a disputed claim against his employer, Cox Communications New Orleans, Incorporated (Cox), for compensation arising out of an alleged injury to his neck and back that occurred on August 1, 1997. According to the claim form, Mr. Johnson reported to his supervisor on the same day that he was electrocuted while standing on a ladder and fell to the ground. Mr. Johnson alleged in his claim that his employer did not authorize back therapy and diagnostics recommended by his physician, Dr. George Murphy.

The Office of Workers’ Compensation referred the claim for Mediation Conference to Marcel Lovelace, and required attendance by Mr. Johnson, Cox and Cox’s insurer, Crawford and Company. The mediator reported that Mr. Johnson, his counsel and the Cox representative met, the employer waived service, mediation was held and the issues were framed, but remained unresolved.

laCox answered, admitting that Mr. Johnson sustained an injury on or about the date set forth in his claim; admitting employment status; admitting payment of compensation and wages; admitting that rehabilitation services were offered and refused and that at the time of the alleged injury, National Union Fire Insurance Company provided Cox compensation insurance. Cox denied that Mr. Johnson was temporarily or permanently disabled, or suffered an injury resulting in loss of earning capacity. Furthermore, Cox denied that Mr. Johnson requested or was denied rehabilitation services. Cox alleged as an affirmative defense that Mr. Johnson was intoxicated at the time of the incident and failed to use available safety devices. Cox denied all allegations of arbitrary and capricious conduct and claimed a setoff and reduction of any obligation to pay benefits in the amount of state or federal benefits or payments recovered by Mr. Johnson or, further, a setoff in the amount of, or to reflect, retirement benefits, costs, monies or expenses or any other funds received by Mr. Johnson under any retirement or benefits program to the extent not funded by Mr. Johnson or any workers’ compensation or unemployment compensation statute. In the alternative, Cox claimed a credit and discharge of liability for any and all medical expenses paid by a third party or paid without authorization and pre-approval.

The workers’ compensation judge set and on her own motion continued status conferences for June 9, 2000, June 16, 2000 and August 15, 2000. The judge set the matter for trial on the merits on December 20, 2000.

|3Cox filed a motion for summary judgment on December 12, 2000, alleging that Mr. Johnson’s three physicians of choice agree that his lower back injury was not caused by a work-related accident. The workers’ compensation judge had signed an order setting the motion for hearing on the day of trial, apparently in violation of the rule requiring that such motions be filed no fewer than ten days prior to trial. The parties waived the delay and allowed the trial judge to hear Cox’s motion prior to commencement of trial. The trial judge took the matter under advisement and proceeded with the trial on the merits on December 20, 2000.

On March 8, 2001, the workers’ compensation judge rendered judgment in favor of Mr. Johnson, but denied his claim that his employer was arbitrary and capricious in having contested the claim. The trial judge set a telephone status conference for March 27, 2001, at which time the parties were to submit copies of any “new medical reports”. A minute entry in the record shows the trial judge set a motion for new trial for April 16, 2001. The record shows that on April 17, 2001 the court vacated its original judgment of March 8, 2001. The trial judge set a status conference for May 7, 2001. On May 10, 2001 counsel for Cox moved to submit as additional trial evidence the deposition and medical records of Dr. Greg Hoffman and Mr. Johnson’s medical record at Lakeland Medical Center. The trial judge granted the motion on May 10, 2001. Dr. Hoffman’s medical records and the Lakeland records were submitted.

|4On August 22, 2001, the trial court rendered judgment denying Cox’s motion for summary judgment, vacating the judgment of March 8, 2001 as premature, and finding that Mr. Johnson is entitled to Workers’ Compensation medical benefits for past, present and future treatment of his back injury, the only issue before the court. The judge denied Mr. Johnson’s claim for penalties and attorneys’ fees, finding that because of the remoteness in treatment of the back injury, Cox was not arbitrary and capricious in defending against Mr. Johnson’s claim. From this judgment, Cox appeals. Because we find the record below, considered in its entirety, does not afford a reasonable basis for the workers’ compensation’s finding with respect to causation, we find the judgment below to be manifestly erroneous and clearly wrong, and reverse.

STATEMENT OF FACTS

The parties agree that on August 1, 1997, while working as a technician for Cox, Mr. Johnson fell off a ladder and sustained injuries.

According to the employer’s report of occupational injury dated August 5, 1997, Cox reported that Mr. Johnson was cutting a connector when he felt a current and fell six feet off a ladder causing stiffness to his neck and back.

As a result, Cox voluntarily paid Mr. Johnson workers compensation benefits for claimed injuries to his neck and shoulder. Mr. Johnson submitted a copy of the Notice of Payment signed by Crawford and Company and dated August 1, 1997, according to which weekly compensation of $349.00 was to be Rpaid. May 18, 1998 was the stated date disability began and May 22, 1998 was the date the first check was mailed. According to item # 15 of the document, the parts of Mr. Johnson’s body that were injured were his back and neck. The parties agreed that Mr. Johnson is being fully compensated for his neck and shoulder injury; the only issue at trial is whether or not his back complaints are related to his work-related accident.

The parties agreed to the admission of the following exhibits:

D-l: Laboratory Corporation of America post-accident report dated September 12, 2000 showing that Mr. Johnson tested positive for marijuana metabolite and codeine on August 28,1997

D-2: Substance Abuse Management, Inc. post-accident report dated September 5, 1997 showing that Mr. Johnson tested positive for THC and codeine and that Mr. Johnson told the tester that he was taking certain prescription medications including codeine

D-3: Drug Rehabilitation Program Guidelines showing that after Mr. Johnson tested positive for marijuana post-accident, on September 16, 1997 he agreed to conform to Cox’s drug program guidelines

The exhibits relating to Mr. Johnson’s positive drug tests were admitted by agreement of counsel only insofar as they relate to Mr. Johnson’s credibility, and not to establish any affirmative defense.

D-4 Christine Rangel’s functional capacity evaluation of Mr. Johnson dated October 21, 1998 showing that Mr. Johnson demonstrated functional abilities | fiwithin the Medium Physical demand category -with average material handling abilities. She observed good body mechanics during material handling when verbal cue-ing was provided. Task standards for the continuous category were met for all non-material handling activities tested, for example, bending, and stair climbing. Strength limitations were noted with left shoulder flexion and external rotation at 75% of normal limits and left hip extension at 75% of normal limits. All trunk strength, other upper extremity and other lower extremity strength measured within normal limits. Flexibility limitations were noted with cervical flexion, lateral flexion, and rotation to the left; as well as with trunk flexion. All upper extremity, lower extremity, other cervical and other trunk measurements were within normal limits. She found no symptom magnification behaviors or submaximal effort during functional testing.

D-5: Dr. Gregor Hoffman’s medical reports

August 27, 1997, diagnosed joint arthritis and a neck sprain/strain, recommending that Mr. Johnson no longer use a sling or take muscle relaxants and Tylenol # 3 (with codeine) and ordering physical therapy
September 24, 1997, diagnosed cervical neck sprain/strain and sprain of right acromioclavicular (AC) joint with degenerative arthritis and recommending MRI of cervical spine and right shoulder. Dr. Hoffman expected MRIs to reveal mild degenerative disc in lower cervical region normal for a 41-year-old patient and arthritic changes of the AC shoulder joint.
October 15, 1997, following MRIs, diagnosed osteoarthritis of right shoulder joint with shoulder sprain/strain but no evidence of rotator cuff tear or significant impingement, and cervical strain/ neck pain. Dr. Hoffman recommended physical therapy for work conditioning and release to regular work in one month, with light duty until release. Dr. Hoffman disagreed with prescription of Tylenol # 3. Mr. Johnson was to see his other physician, Dr. George Murphy, in the near future.
17Pecember 10, 1997: diagnosed post-cervical strain and neck pain with degenerative joint disease of right shoulder joint. Dr. Hoffman found no need for surgical intervention and recommended that Mr. Johnson undergo a functional capacity evaluation.
January 21, 1998: ordered a work conditioning program and follow-up in six weeks.
September 30, 1998: diagnosed of persistent neck and shoulder pain, referred back to Dr. Murphy, the treating physician. Dr. Hoffman found Mr. Johnson was at maximum medical recovery.

D-6: Dr. George Murphy’s medical records

September 22, 1997: patient information sheet and statement of job-related injury claiming injury to neck as a result of fall from ladder
September 23, 1997: letter to Crawford and Company referring to complaints of neck and right shoulder pain with occasional radiating pain into right arm and hand. Right shoulder shows swelling and tenderness over AC joint and AC separation. According to Dr. Murphy, Mr. Johnson could discontinue use of a sling and should avoid lifting with his right arm; Mr. Johnson needed an MRI, after which he would return to Dr. Murphy with the scan results.
October 21, 1997: letter to Crawford and Company reporting on MRI showing moderate changes in AC shoulder joint with some tendonitis in rotator cuff, but no significant tearing; cervical spine scan shows changes indicative of probable trauma to posterior aspect of lower cervical spine with some bulging in disc but no significant herniation or nerve impingement. Dr. Murphy recommended that Mr. Johnson continue on light duty and continue physical therapy.
December 23, 1997: Mr. Johnson claims moderate discomfort in neck but no major radicular symptoms; scheduled for functional capacity evaluation; taken off Motrin and prescribed Napro-syn.
February 3, 1998: continued neck pain, but no radicular symptoms; scheduled for therapy and reconditioning program in March.
March 16, 1998: moderate neck symptoms, did not start rehabilitation program; prescribed occasional Vicodin and continued Naprosyn.
April 20, 1998: moderate neck symptoms; referred to EMG testing of left upper extremity.
May 21, 1998: nerve test results were normal; advised Mr. Johnson to start regular exercise program and continue to avoid heavy work with left arm
Is July 9, 1998: advised Mr. Johnson to exercise three times a week.
September 10,1998: no major change, Mr. Johnson tries to do some exercise and has lost a little bit of weight, but has pain in neck and shoulder when he does too much; continue with occasional medication.
November 2, 1998: decreased activity, more stable, only occasional pain medication.
January 7, 1999: stable; Mr. Johnson unable to work overhead; comfortable with occasional pain medication.
March 4, 1999: lately has been having some low back and left leg symptoms that would probably come from the lower back unrelated to the neck; continued with occasional medication. [This was the first mention of a back problem, nearly two years after the accident.]
May 6, 1999: no major changes, with continued symptoms in neck and shoulder.
July 19, 1999: continued back and shoulder symptoms; more recently, lower back and left leg trouble; doctor prescribed Naprosyn and continued Vico-din.
August 26, 1999: Mr. Johnson is to have an MRI of the lumbar spine.
October 14, 1999: Mr. Johnson “finally” had MRI done, showing degeneration and left-sided herniation at L5-S1 level; tight left leg raise; Mr. Johnson to try to avoid bending and lifting; may take occasional Vicodin. [This MRI is the first objective indication of a back problem.]
November 18,1999: no change
December 16, 1999: back and left leg continue to give him trouble; straight leg raise positive on left; may need to see a psychiatrist again.
January 31, 2000: no change
February 10, 2000: no change
March 23, 2000: no change

[ 9D-7: Medical records of Dr. James R. Davis

July 14, 1997: referred to psychiatrist for depression and job stress because of cutbacks at work and increased production quotas; prescribed Trazodone.
August 4, 1997: Mr. Johnson reported fall, neck and low back stiffness.
August 6, 1997: prescribed arm sling and heat, Tylenol # 3 and Motrin
August 6, 1997: X-Ray report showing normal skull and cervical spine; no evidence of fracture, dislocation or cal-difíc bursitis in shoulder, but notes mild arthritic change in the acromioclavicular (AC) shoulder joint.
August 15, 1997: letter to Crawford and Company, advising Mr. Johnson could return to limited duty on August 18,1997.
August 21, 1997: letter to Crawford and Company advising Mr. Johnson could return to light duty, restricted from climbing and carrying over twenty pounds; Mr. Johnson should not reach above his head or engage in activity calling for repetitious movement of his right arm.
September 9,1997: letter to Crawford and Company indicating Mr. Johnson was medically cleared for door to door sales work so long as he did not carry anything heavy.
October 5, 1997 report from Crescent City MRI: subtle evidence of post-traumatic change at posterior spinous processes at C5, C6 and C7 levels; subtle marrow space edema on left facet structures C4 and C5; under 2 mm posterior bulging annulus fibrosis prominence at C4, C5 and C6 levels with superimposed anterior prominence of anterior fibrosis at these leyels as well; normal cervical spinal cord and posterior fossa central nervous system structures.
October 1, 1997 report from Crescent City MRI concerning MRI of right shoulder: evidence of bursitis tendinitis of rotator cuff, but no partial or complete tear; mild hypertrophic change of AC joint with partial impingement on subacromial space and with grade I configuration of the Acromion in the Sagit-tal projection.
Copy of Dr. Hoffman’s letter of September 30, 1998 to Crawford and Company.

The parties stipulated to the admission of the medical depositions previously taken of Dr. George Murphy and Dr. James Davis.

liftAccording to Dr. Murphy, “Based on my records and what I — and the time that I treated him, I could not say that the lower back is related to the injury.... Now, apparently he says he had a lot of low back problems right after the accident. I don’t have those — those records or anything. Whether or not it’s a little bit related, we’d probably have to go back to those records. But based on my records and my time seeing him, I would not be able to relate the lower back to the — to that work-related injury.” The Hoffman records, as discussed previously herein, do not mention a back problem.

Dr. Davis testified in his deposition that there was no mention in his notes or in Dr. Hoffman’s notes (the notes of the doctor who ordered Mr. Johnson’s MRI) that Mr. Johnson was complaining of anything other than neck stiffness, which had improved from the time that he had fallen at work. Furthermore, there was no mention of any pain or injury to Mr. Johnson’s lower back. Dr. Davis was asked whether there was any indication that Mr. Johnson injured his lower back in the fall in question, to which Dr. Davis replied with an unequivocal, “None whatsoever.”

The parties stipulated to the admission of Mr. Johnson’s medical records showing his physical therapy treatments at Lake-land Medical Center. He received therapy for cervical disc and shoulder strain. Our examination of the Lakeland records revealed no indication of back complaints or treatments through the final entry, March 30,1998.

In Jeanette Johnson, Mr. Johnson’s wife of thirty years, testified that Mr. Johnson had no lower back problems prior to the accident. Immediately following the accident, he complained to her of pain in his shoulder, neck and back. Mr. Johnson told her that after completion of the treatment for his neck and shoulder problems the doctor would begin treating his back problem, but she had no first hand knowledge of any conversations between her husband and his physicians.

Mr. Johnson testified that the morning after the accident he went to work, but at the end of the day when he tried to get up to make a connection he became dizzy and went home to bed. The next morning, he could not get out of bed and had no feeling in his back, neck and legs. He saw his physician, Dr. James Davis, and told him his neck, shoulder, back and left leg were hurting. Dr. Davis recommended time off and heat treatments. Mr. Johnson was later referred to Dr. Gregor Hoffman, a specialist, to whom he complained of neck, back and shoulder pain. Mr. Johnson was dissatisfied when Dr. Hoffman recommended that he discontinue taking the muscle relaxer and Tylenol #3 that Dr. Davis had prescribed, so Mr. Johnson went to see another specialist, Dr. George Murphy. He told Dr. Murphy of his neck, shoulder and back pain, whereupon Dr. Murphy asked which was worst and was told the neck pain was bothering Mr. Johnson the most. According to Mr. Johnson, Dr. Murphy said he would see about getting him treatment for the neck pain. Mr. Johnson assumed the physical therapy was for his lower back as well as his neck until the therapist told him he was treating only the |19neck area. This contradicts Mrs. Johnson’s testimony that Mr. Johnson told her the back would be treated after the neck and shoulder problems had been resolved.

On cross-examination, Mr. Johnson testified that he had four children with his wife and “one outside.” When questioned by counsel for Cox what was meant by the term “one outside”, Mr. Johnson’s counsel objected to relevance. Defense counsel argued the question was relevant to Mr. Johnson’s credibility and character, since his testimony was contrary to that given by the three treating physicians. The trial judge replied, “Oh, and they’re all moral. Didn’t we attest their morality as well?” and sustained the objection. The trial judge also sustained objections to defense counsel’s attempts to impeach Mr. Johnson’s testimony in a related Social Security action concerning the limitations Dr. Murphy placed on his return to work. Counsel also pointed out some inconsistencies between Mr. Johnson’s deposition testimony and trial testimony concerning his marijuana use.

When defense counsel pointed out that Mr. Johnson signed a statement when he first saw Dr. Murphy in which he said the injury was to his neck, Mr. Johnson replied, “I’m not a physician, so I was under the impression that if my neck was bothering me, than [sic] that’s part of the lower back. That’s part of the back as well. I’m not a physician, so I don’t know.” ASSIGNMENT OF ERROR: The Workers’ Compensation trial court erred in having failed to accord proper weight to the medical opinions and observations of the claimant’s own treating physician and two other Isphysicians, whose records, reports and testimony shows that claimant’s alleged back pain is not related to the alleged injury he suffered on August 1,1997.

The standard of review for findings of fact by a hearing officer in a worker’s compensation case is “manifest error,” and it is the appellate court’s duty to determine not whether the fact finder’s conclusion was right or wrong, but whether it was reasonable. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. Jackson v. Quikrete Products, Inc., 2001-1181 (La.App. 4 Cir. 4/17/02), 816 So.2d 338. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97); 704 So.2d 1161, 1164. The operative words in these two holdings are “reasonable” and “permissible.”

As a reviewing court, it is our duty to determine whether the workers’ compensation court’s evaluations and inferences were reasonable, and whether her decision to accept Mr. Johnson’s testimony was permissible.

Mr. Johnson’s testimony alone may be sufficient to discharge the burden of proving that he sustained a work-related injury, provided that two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon his version of the incident, and (2) his testimony is corroborated by the circumstances following the incident. Jackson v. Quikrete, at pp. 2-3, 816 So.2d at 341. In this case, there is no question as to whether Mr. Johnson suffered an injury when he fell from the | gladder or as to whether the accident was job-related. The sole issue framed by the parties is whether the BACK injury complained of was caused by the fall from the ladder. There is no question as to whether Mr. Johnson’s neck and shoulder injuries were caused by the fall, and Cox promptly and consistently fulfilled its compensation obligation to Mr. Johnson in regard to those injuries.

The causal link between the employee’s illness and work-related duties must be established by a reasonable probability. Once the employee has established the existence of an occupational disease, for his illness to be compensable, the employee must establish that the illness is disabling, that is that he meets the criteria for one or more of the statutory disabilities. La.R.S. 23:1031.1(A) and (B); La.R.S. 23:1221; Seal v. Gaylord Container Corp., 97-0688 at p. 6, 704 So.2d at 1165.

Mr. Johnson bears the initial burden of proof as to causation, and must prove by a preponderance of the evidence that the fall from the ladder had a causal relationship to his back problem; if the testimony leaves the probabilities evenly balanced, he has failed to carry his burden. Once he has carried that initial burden, the burden of proof shifts to Cox, who must produce evidence that it is more probable than not that the back injury was not caused by the fall from the ladder. See Jackson v. Quikrete, Inc., at p. 3, 816 So.2d at 342.

It is reasonable to apply the two-pronged test pronounced in Jackson to determine whether the trial court’s finding that Mr. Johnson’s back injury was caused by his fall from the ladder was reasonable and whether the trial judge’s |T ¿view of the evidence was permissible. Applying that test, we are led to the irresistible conclusion that Mr. Johnson did not carry his burden of proof. The evidence of all three physicians, both testimonial and documentary, and the Lakeland records fail to corroborate Mr. Johnson’s testimony that he complained of back problems early on in his treatment but was told by the physicians that they would treat the neck first and only after that treatment was completed would they focus on the back problem. Indeed, Mr. Johnson produced no evidence that this serial medical treatment is normal or acceptable practice in cases such as his.

In reaching our decision, we are mindful of two guiding jurisprudential principles. The first is our constitutional duty to review both law and fact. Although we accord deference to the fact finder, we are cognizant of our duty pursuant to La. Const. Art. V, § 10(B) to review facts, not merely to decide if we, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745.

The manifest error test dictates that a reviewing court must do more than simply review the record for some evidence that supports or controverts the trial court’s finding — we must review the record in its entirety to determine whether the fact finder’s conclusion in this case was reasonable. Cole v. Department of Public Safety, 2001-2123, p. 14 (La.9/4/2002), 825 So.2d 1134, 1144.

116Where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Cole v. Department of Public Safely, p. 14, 825 So.2d at 1144, citing Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

The evidence presented in support of Mr. Johnson’s claim is inconsistent. As noted herein, Mrs. Johnson’s testimony conflicts with Mr. Johnson’s, and Mr. Johnson’s testimony concerning his marijuana use varies between deposition and trial. However, these inconsistencies have a minor effect on our determination when compared to Mr. Johnson’s total failure to satisfy the burden of proof requirements set forth in Cole.

In Cole, the supreme court held that after an extensive review of the medical evidence they found insufficient evidence to support the findings of the district and appellate courts that Mr. Cole suffered a severe closed head trauma as a result of a battery to his head. In that case, the court concluded that although several doctors diagnosed Cole with a traumatic brain injury, there was no objective medical evidence to support the finding that he suffered a serious head trauma. The testimony of treating physicians that Cole suffered a head injury was based solely on the history relayed to them by Cole, without objective confirmation of such an injury. The supreme court noted that if an expert opinion is based upon facts not supported by the record, the opinion might be rejected. The court referred also to 117the fact that Cole did not initially complain of a headache until March 13, 1996, six months after the alleged incident giving rise to his claim.

Under the Cole rationale,, we have no choice but to reverse the trial court’s finding as to causation. Unlike Mr. Cole, whose medical evidence was deemed insufficient, Mr. Johnson produced no medical opinion to support his claim of causation. Neither Dr. Davis nor Dr. Murphy, Mr. Johnson’s physicians of choice who treated him for his injuries, related his back problems to the fall from Cox’s ladder. Dr. Hoffman’s medical records likewise do not support Mr. Johnson’s claim of back injury. Furthermore, the delay between the incident and Mr. Johnson’s reporting back pain was over a year, more than twice the delay found by the supreme court in Cole to have made the lower courts’ finding of causation to have been unreasonable.

To the same effect is the Second Circuit Court of Appeal’s holding in Williams v. Jones Truck Lines, Inc., 27,465 (La.App. 2 Cir. 11/1/95), 662 So.2d 867. Mr. Williams testified that he was injured, reported his accident and was taken to a doctor the following day, complaining of knee pain. He testified that a week later he complained to the treating physician of back pain, Mr. Williams also testified that he had no health problems prior to the work-related injury. He stopped working two months later because of back pain. The treating physician testified on deposition that he did not recall that Mr. Williams mentioned back pain, and neither his nor his nurse’s notes reflected such a complaint. He saw Mr. Williams just over two months after the injury, when the major complaint was | isback pain, but the doctor did not relate the back injury to the accident that occurred two months previous to the examination. The sole medical opinion stated merely that Mr. Williams’ back pain could possibly have resulted from the accident The court reversed the workers’ compensation judgment, holding that the medical evidence failed to show that it was more probable than not that the back injury was caused by the work-related accident.

The facts of the instant case are even stronger than those in the Williams case, since Mr. Johnson produced no medical opinion at all indicating even a possible causal relationship between the accident and his back problem.

This assignment of error has merit.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the workers’ compensation court and render judgment in favor of defendant, Cox Communications New Orleans, Incorporated, dismissing the claim of Harold Johnson. Costs of this appeal are assessed against Harold Johnson.

REVERSED AND RENDERED.


author: 11 EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Edward SIMMONS.
    No. 2002-KA-0253.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 2003.

      Eddie J. Jordan, Jr., District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   11 EDWIN A. LOMBARD, Judge.

STATEMENT OF CASE

On April 16, 2001, the State charged Edward Simmons in an 18-count bill of information. The State nolle prossed counts 1, 3, 4, 5,' 8, 9,10, 11, 12, 13 and 14 on May 3, 2001. On July 26, 2001, the State nolle prossed counts 6 and 8.

The remaining six counts charged the defendant with simple burglary (counts 2 and 7), violations of La. R.S. 14:62; aggravated burglary of an inhabited dwelling (count 15), a violation of La. R.S. 14:60; false imprisonment while armed with a dangerous weapon (count 16), a violation of La. R.S. 14:46.1; aggravated sexual battery (count 17), a violation of La. R.S. 14:43.2, and possession of cocaine (count 18), a violation of La. R.S. 40:967(0(2).

On July 26, 2001, the State amended count 2 of the bill of information to charge the defendant with attempted burglary of an inhabited dwelling. The court found probable cause, and denied motions to suppress identification, as to counts 7, 15, 16 and 17. Immediately prior to trial on September 17, 2001, the State amended counts 7 and 17 to attempted simple burglary and sexual battery, respectively. The jury acquitted the defendant on count 7 but found him guilty as charged on counts 15,16,17 and 18.

During the trial, the defendant personally objected to his trial attorney’s alleged lack of preparation and asked for new counsel. The request was denied, but a recess was taken for the defendant and his attorney to confer. After the break, the defense attorney raised the issue of mis-joinder of the offenses under La. C. Cr. P. art. 493.2 as a motion for mistrial. The court denied the motion and the trial continued.

LOn October 15, 2001, the State filed a multiple bill as to count 15, charging the defendant as a quadruple offender.

On November 6, 2001, the defendant’s motions for new trial, post verdict judgment of acquittal, and arrest of judgment were denied. At the multiple bill hearing that same day, the court adjudged the defendant a fourth offender, and sentenced him to thirty years at hard labor, sentence to run consecutively with the sentences on the remaining counts, and consecutively with any other sentence imposed, with credit for time served, without benefit of probation, parole, or suspension of sentence. The court also denied the defendant’s motion to reconsider sentence, but granted his motion for appeal. The court vacated its original sentence and re-sentenced the defendant on count 15 as a fourth offender to life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence, to be served consecutively to the sentences on the remaining counts. The court denied the motion to reconsider.

The trial court delayed sentencing to April 4, 2002, on the remaining counts pending the results of the pre-sentence investigation.

On October 18, 2002, the defendant re-urged, and the court denied, his motions for new trial and post verdict judgment of acquittal. That same day, the court sentenced the defendant on count 16 to ten years at hard labor, and another ten years on count 17, restricting the sentences to be served consecutively to each other and all other sentences. On count 18, the court included the consecutive restriction, and sentenced the defendant to five years. The court denied the defendant’s motion to reconsider sentence but granted his motion for appeal.

\ STATEMENT OF FACT

Officer Scott Wilson testified that on January 27, 2001, he investigated complaints lodged by John and Cynthia Dub-berley of sexual battery, aggravated burglary and false imprisonment with a weapon. When Wilson arrived at the Dubberley residence during the middle of the night, he noted signs of forced entry and observed the Dubberleys’ bedroom in disarray, with clothing and furniture thrown about the room. Wilson attempted to speak with Mrs. Dubberley, but she was very upset and quite emotional. Mrs. Dubberley gave a description of the perpetrator — black male with dark complexion, 5'10", weighing approximately 170 pounds. Officer Wilson compiled a photographic lineup from which Mr. and Mrs. Dubberley identified the defendant as their assailant. Wilson made an in-court identification of the defendant as the person whose picture the Dubberleys chose from the photographic lineup.

Later that evening, Officer Louis Rivas arrested the defendant pursuant to a warrant. When Officer Wilson arrived at the arrest scene, he found that Officer Rivas had confiscated from the defendant a piece of telephone cord, a pocket knife, three pieces of crack cocaine and several sets of keys. The Dubberleys’ car and house keys were among the items confiscated from the defendant.

Officer Louis Rivas testified and corroborated Officer Wilson’s testimony concerning the defendant’s arrest and search, and the items confiscated from him on January 27, 2001. Rivas identified in court the items he seized from the defendant.

|4Corey Hall, NOPD criminalist II and expert in the analysis and identification of controlled substances, testified that he tested the three rock-like substances seized from the defendant at the time of his arrest, and that testing proved the substance to be cocaine.

Detective Clifton Neely investigated the Dubberley incident of January 27, 2001. Neely stated that he questioned Mrs. Dub-berley later in the day after the incident. She told him that shortly after midnight on January 27, 2001, she awoke to the sound of her husband struggling with an intruder. The intruder forced his way into the bedroom, knocking Mr. Dubberley, who was trying to hold the bedroom door shut against the intruder, to the floor. The intruder grabbed Mrs. Dubberley by her arm, and informed her and her husband that he had a knife. The intruder tied Mr. Dubberley’s hands with a pair of black pantyhose, and told Mrs. Dubberley to lead him to the valuables. The intruder dragged Mrs. Dubberley into the hallway. Mrs. Dubberley broke away from the intruder, and ran to the telephone. The intruder overpowered Mrs. Dubberley, pushed her against the wall, and punched her in the face. He dragged her back into the bedroom, where he proceeded to further tighten the bindings on Mr. Dubber-ley’s hands. Next, the intruder blindfolded Mrs. Dubberley, held a knife to the back of her neck, and once again took her into the hallway. He pushed her to the floor, and inserted his finger into her vagina, after which he fled the house with a few articles. After speaking with Mrs. Dubberley, the detective transported her to the hospital for a sexual assault examination.

Ms. Deborah Ratterree, the Director of the Sexual Assault Nurse Examiner Program at Charity Hospital, testified that she examined Mrs. Dubberley on January 27, 2001. Ms. Ratterree testified that Mrs. Dubberley suffered multiple 15contusions and bruising on her left side, left knee, head, chest and soreness of her jaw. Ms. Ratterree also noted ligature ' marks on Mrs. Dubberley’s wrists. During the exam, Mrs. Dubberley was very upset, weepy, shaky, and had difficulty talking about her ordeal.

Mrs. Cynthia Dubberley testified. She told the court that shortly after midnight on January 27, 2001, she awoke to the sound of an intruder trying to force his way into her bedroom. Her husband attempted to keep the door closed; however, the intruder overpowered her husband. The intruder tied up Mr. Dubberley with a pair of pantyhose, and ordered Mrs. Dub-berley to bury her face in her pillow. The intruder told the Dubberleys he was looking for valuables, and proceeded to ransack the bedroom looking for her purse and Mr. Dubberley’s wallet. Mrs. Dub-berley got a good look at the intruder’s face as he searched for valuables. The Dubberleys directed the intruder to Mr. Dubberley’s wallet in the bedroom, and told him Mrs. Dubberley’s purse was in the front room. The intruder blindfolded Mrs. Dubberley, tied her hands behind her back,' and walked her to the front room. As they' walked, the intruder held a knife to her throat, and began rubbing his genitals against her buttocks. He told her to relax and asked her, “What’s the matter? I know you’ve been f — ed before.” The intruder drove away from the Dubberley residence in Mrs. Dubberley’s car.

Later that day, she identified the intruder from a photographic lineup and subsequently identified her house and car keys among items found on the defendant the night he was arrested. At trial she identified the defendant as the man who brutalized her and her husband on January 27, 2001.

Mr. John Dubberley testified that an unfamiliar noise in his house woke- him shortly after midnight on January 27, 2001. When he opened his bedroom door, an [¿intruder was standing less then four feet from him. Dubberley attempted to close the door, but the intruder forced his way into the bedroom. The intruder knocked Dubberley to the floor, grabbed Mrs. Dubberley and threatened her with a knife if Dubberley continued to struggle with him. The intruder ordered Dubber-ley to lie oh the floor, and tied his hands and feet. The intruder then tied Mrs. Dubberley’s hands, and began rummaging through the room looking for valuables. Mrs. Dubberley accompanied the intruder to the front of the house to retrieve her purse. After the intruder and Mrs. Dub-berley left the bedroom, Mr. Dubberley heard a struggle. The intruder returned to the bedroom, and held a metallic object to Dubberley’s throat, threatening to kill them both if they did not stop fighting him. Before leaving the residence, the intruder took a key to the house and the key to Mrs. Dubberley’s car, in which he drove away. The Dubberleys called 911 and reported the incident. Mr. Dubber-ley later identified the defendant from a photographic lineup, and at trial, as the intruder who battered, and terrorized him and his wife.

ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment, the defendant argues that the trial court erred in denying his motion for severance or mistrial based upon misjoinder of offenses. He contends that because conviction of possession of cocaine allows imprisonment with or without hard labor, La. R.S. 40:967(C)(2), that charge should have been |7tried by a jury of six pursuant to La. C.Cr.P. art. 782, rather than a twelve-member jury.

Mistrial is a drastic remedy warranted only when an error at trial results in substantial prejudice to a defendant which effectively deprives him of a fair trial. The Louisiana Supreme Court has held that the determination of whether to grant a mistrial under C.Cr.P. art. 775 is within the trial court’s sound discretion, and its denial of a motion for mistrial should not be disturbed on appeal absent an abuse of discretion. State v. Brown, 2000-2524 (La.App. 4 Cir. 7/25/01), 793 So.2d 422 (citing State v. Smith, 433 So.2d 688 (La.1983)). The applicable standard to determine whether a mistrial should have been granted is whether the defendant “suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial.” Id. (citing State v. Smith, 433 So.2d at 696).

The number of persons required for a jury in a criminal case is dictated by La. Const, art. 1, § 17(A), which provides:

(A) A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of who must concur to render a verdict ...

Also, La.C.Cr.P. art. 782(A) provides, in pertinent part, that “Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.”

The trial court is vested with much discretion in determining whether to grant a motion to sever, and its ruling should be upheld in the absence of an abuse of this discretion. State v. Sam, 1999-0300 (La.App. 4 Cir. 4/19/00), 761 So.2d 72, writ denied 2000-1890 (La.9/14/01), 796 So.2d 672. Generally, “there is no prejudice and severance is not required if the facts of each offense are not complex, and there is little likelihood that the jury will be confused by the evidence of more than one crime.” State v. Carter, 99-2234 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, 145, writ denied, 2001-0903 (La.2/11/02), 808 So.2d 333 (citing State v. Lewis, 557 So.2d 980, 984 (La.App. 4 Cir.1990)). The defendant has a heavy burden of proof when alleging prejudicial joinder of offenses, and he must make a clear showing of prejudice. Id. In determining whether joinder of two or more offenses would result in prejudice, a court should consider: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Coston, 2000-1132 (La.App. 4 Cir.9/5/01), 800 So.2d 907, 914.

The trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. State v. Lee, 99-1404 (La.App. 4 Cir. 5/17/00), 764 So.2d 1122, 1126 (citing State v. Washington, 386 So.2d 1368 (La.1980)).

In support of his position, the defendant cites La.C.Cr.P. art. 493.2, which provides:

Notwithstanding the provisions of Article 493, offenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may |9be confinement at hard labor, provided that the joined offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict, (emphasis added).

The defendant maintains that the possession of cocaine charge was not of the same or similar character as the other charges, nor based upon the same act or transaction from which the other charges arose, had nothing to do with the other charges, and, in fact, occurred after the incident which spawned the other charges. Moreover, he points out that aggravated burglary and possession of cocaine are not triable by the “same mode of trial.” La.C.Cr.P. art. 493. A conviction for aggravated burglary mandates a sentence of imprisonment at hard labor, thus requiring trial by a jury of twelve, while a conviction for possession of cocaine permits sentencing with or without hard labor, for which trial by a six-member jury is mandated. La. Const, art. 1, § 17(A). As such, the defendant argues, the possession of cocaine charge should not have been tried with the other counts of the bill of information.

Conversely, the assistant district attorney argued that the cocaine possession was part of the same transaction or scheme because it was recovered in the defendant’s possession on the same day that he was arrested along with evidence from the Dubberleys’ burglary. Additionally, the state attorney asserts that the only mechanism for challenging misjoinder is found in La.C.Cr. P. art. 495, which provides: “The objections of misjoinder of defendants or misjoinder of offenses may be urged only by a motion to quash the indictment.” The defense attorney |infiled a form packet of motions (thirteen in all) prior to the trial, which contained a motion to sever, but not a motion to quash. The district attorney correctly asserts that the defendant’s only remedy, as provided for in Article 495 was in the form of a motion to quash the indictment based on misjoin-der of offenses.

Moreover, the district attorney is also correct in arguing that even if the trial court erred in allowing the joinder of the offenses, the error is subject to a harmless error analysis. The Louisiana Supreme Court addressed this issue in State v. Strickland, 94-0025 (La.11/1/96), 683 So.2d 218, where the court explained:

The distinction between misjoinder and prejudicial joinder is an important one, but only at the trial level to determine whether a defendant’s proper remedy is a motion to quash or a motion to sever. At the appellate level, the distinction becomes blurred since the basis for the prohibition against both misjoin-der and prejudicial joinder is essentially, prejudice to the defendant
This conclusion is bolstered by federal authority. Subsequent to [State v.] McZeal, [352 So.2d 592 (La.1977)], the federal courts have determined that mis-joinder under Rule 8, Federal Rules of Criminal Procedure, is subject to harmless-error analysis and is not reversible error per se. See United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 ... (1986).

Strickland, pp. 13-14, 683 So.2d at 226 (some citations omitted) (emphasis in original).

In this case, the defendant has made no showing of prejudice. He was tried and convicted of aggravated burglary, false imprisonment with a dangerous weapon, sexual battery and possession of cocaine. The aggravated burglary, false imprisonment and sexual battery charges stemmed from one incident involving one set of victims.

^JjjThe possession of cocaine, however, was discovered many hours later when the defendant was arrested and searched pursuant to the arrest. Although the cocaine was discovered in the defendant’s pocket along with evidence from the earlier crimes, ie., keys to the victim’s house and car, pocketknife, and telephone wire, the cocaine possession was separated from the other crimes by eighteen or more hours.

The requirement of Article 493.2 that allows for joinder of offenses that are generally not appropriately tried together still provides some restriction on the ability to join the offenses. In order to be joined in the indictment, the offenses must be “connected together or constitute] parts of a common scheme or plan.”

In the instant case, although there is a reasonable inference that the burglary may have been committed to further the acquisition of cocaine, which was later found upon the defendant’s arrest, the link between the two events is so attenuated that it fails to satisfy the statutory requirement of the offenses being sufficiently connected. Therefore, we hold that the conviction and sentence relative to Count 18, Possession of Cocaine, must be vacated.

Vacating the cocaine possession conviction and sentence does not disturb the convictions and sentences for the other crimes. The facts of the offenses were not confusing or complex, thus, there was little likelihood that the jury was confused by the State’s presenting evidence of all of the crimes together. Thus, we affirm the convictions and sentences for Counts 15, 16, and 17.

ASSIGNMENT OF ERROR NUMBER 2

In a second assignment, the defendant argues that his sentences are excessive as a result of the cumulation of all the charges for trial. Further, the | ^defendant claims the trial judge erred ordering that he be sentenced to consecutive sentences.

La. Const, art. I, § 20 explicitly prohibits excessive sentences; State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095 (LaApp. 4 Cir. 2/3/99), 727 So.2d 1264, 1272, rehearing granted on other grounds, (La.App. 4 Cir. 3/16/99); State v. Francis, 96-2389 (LaApp. 4 Cir. 4/15/98), 715 So.2d 457, 461. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987). A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 677. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 656 So.2d at 979; State v. Washington, 2000-1055 (La.App. 4 Cir. 7/18/01), 793 So.2d 376.

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Harris, 2000-1739 (La.App. 4 Cir. 4/18/01), 787 So.2d 420, writ denied, 2001-1626 (La.4/26/02), 813 So.2d 1101. If adequate compliance with La. C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the I ^particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Robichaux, 2000-1234 (La.App. 4 Cir. 3/14/01), 788 So.2d 458, writ denied, 2001-1178 (La.3/15/02), 811 So.2d 897. In State v. Major, 96-1214 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, this court stated:

The articulation of the factual basis for a sentence is the goal -of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

Major, 708 So.2d at 819.

In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

On appellate review of sentence, the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979). In cases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, State v. Franks, 373 So.2d 1307, 1308 (La.1979), a remand for resentenc-ing is appropriate only when “there appear[s] to be a substantial possibility that the defendant’s complaints of an excessive sentence ha[ve] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982).

Id. (citations omitted)

In State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517, the defendant argued that his mandatory life sentence for second-degree murder was | uexcessive under State v. Dorthey, 623 So.2d 1276 (La.1993). This court rejected the defendant’s argument, stating:

When a trial judge determines a sentence from a carefully tailored penalty statute, such as La. R.S. 14:30.1(B), there is a strong presumption that the sentence is within constitutional parameters. Appellant has not succeeded in proving and the record does not clearly show that under the facts of this case the trial judge abused his sentencing discretion.

Id., 669 So.2d at 526.

Before sentencing the defendant in this case, the trial judge reviewed the defendant’s “extensive” juvenile record as contained in the presentence investigation report, but indicated it would have no bearing on the defendant’s sentence. The judge then considered the guidelines promulgated in C.Cr.P. art. 894.1, and read portions of the presentence investigation report into the record as further support for the sentences imposed:

... Mr. Simmons has an adult record that dates back to June 7th of 1980 when he was arrested by members of the New Orleans Police Department for the offense of attempted forcible rape. He was arrested by [the NOPD] for simple burglary of an automobile and on or about the 17th day of March, 1980, he entered a plea of guilty as charged and was sentenced to serve three years at hard labor ... suspended and five years active probation. On or about the 20th of May, 1983 ... probation was revoked and he was ordered to serve three years at hard labor ... He was arrested for the offense of forgery on or about the 20th day of August, 1981; case refused
On or about the 12th day of October, 1982 ... a jury found the offender not guilty on all four counts of forgery ... He came back into the system on or about the 8th day of September, 1983 for the offense of forgery ... entered a plea ... of guilty ... and was sentenced to serve three years at hard labor ...
On or about the 17th day of June 1985, the defendant was arrested by the St. Bernard Sheriffs office for ... theft of a geological survey and on or about the 29th day of October, 1985 entered a plea of guilty to a lesser charge and received two years inactive probation ... next ... involvement with law enforcement was on or about the 7th day of September 1987, where (sic) he was arrested by., the [NOPD] for aggravated battery. On or about the 16th day of October 1987, the District Attorney refused to prosecute ...
On the 24th of November 1987, the subject was arrested for attempted simple burglary. The case was refused ... On November the 19th, 1988, the | ^offender entered a plea of guilty to criminal trespass and sentenced to six months ... The sentence was suspended and he was placed on two years active probation. On or about the 1st day of July 1988, the defendant was arrested by ... the [NOPD] for possession of stolen property valued at under one hundred dollars. That was refused, prosecuted on other charges. According to the report, those other charges were found and charged in Case Number 328-065-G, and on or about the 16th of November, 1988, ... the jury found the offender guilty as charged. On the 23rd of November, 1988, the [State] filed a multiple bill of information charged the offender as a second offender. He pled guilty to said multiple bill and was sentenced to serve five years at hard labor
... the [NOPD] arrested the offender on or about the 4th of December, 1993, for ... criminal trespassing with possession of drug paraphernalia. The District Attorney refused those charges and prosecuted instead possession of cocaine and unauthorized entry of a place of business ... The bill of information was amended ... to read possession of cocaine and criminal trespass. He entered a plea of guilty as charged. He was sentenced to pay a five hundred dollar fine for the criminal trespass and was sentenced to serve three years ... for possession of cocaine .... the [NOPD] arrested the offender on the 20th day of June, 1995, for the offense of criminal trespass. Said arrest did not result in a conviction for that charge because the District Attorney chose to prosecute attempted burglary of an inhabited dwelling ... The court found the defendant guilty as charged, and on the 28th day of May, 1996, the defendant ... was sentenced to serve five years at hard labor ... The District Attorney filed a multiple bill charging the offender as a quadruple offender. He entered a plea of guilty as charged to the multiple bill and he was [adjudicated] a triple offender. The court set aside the previous sentence and sentenced him to serve five years at hard labor ...
His next encounter with ... the [NOPD] was on or about the 27th day of January, 2001 which led up to the myriad of charges that were originally charged in the bill of information [in this case]. As the record indicates, several counts of that bill were nolle prosequid by the Assistant District Attorney on or about the 3rd day of May 2001. The court also reviewed Sections C, D, E, and Section 3 of this report and is also cognizant of the findings listed in Subsection 4 of the report. The defendant is not eligible for intensive incarceration or intensive parole supervision, as per [La. R.S. 15:574.4(8) ]. Probation is not recommended, and he is not eligible for a probationary sentence. The ... court notes that Edward Simmons is 42 years old and is a sixth offender currently serving the balance of his natural life as a habitual felony convict. Since the age of fourteen years old until now, the offender’s life consisted of arrests, convictions, and service of time ... For the majority of his life, the offender has knowingly and intentionally engaged in criminal behavior or [sic] even after receiving a second and third chance through probation and courtesy of a good time supervision from the Parole Board. The offender still elected to return to the seedy world of drugs, burglary and theft. The offender is not redeemable and is set in his ways. After receiving numerous chances to right himself and leave his trite, ungovernable lifestyle behind him, the offender always, key word, ... l1fialways returns to what he knows, debauchery and lawlessness. It’s the resolute opinion of the Division of Probation and Parole that the offender is not deserving of probation for the crimes which he has committed. In addition the language found in this report, I also note that Mr. Simmons seems to have a certain propensity for burglary, as he was convicted for burglary in this case and has been convicted for burglary in the past. Mr. Simmons is no stranger to the system having cast his fate between several jurors, including but not limited to the jury that convicted him in this case.

(Sent, trans. of 10/18/02, pp. 4-9)

As to the defendant’s complaint concerning the order in which his sentences are to be served, although La. C.Cr.P. art. 883 favors imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background or in the commission of the crimes justify treating him as a grave risk to the safety of the community. State v. Walker, 99-2217 (La.App. 4 Cir. 10/31/00), 775 So.2d 484, affirmed in part and vacated in part 2000-3200 (La.10/12/01), 799 So.2d 461. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. 799 So.2d at 461. “Consecutive sentences may be justified when due to past conduct or repeated, key word ‘past’ conduct, key word ‘repeated’ offenses, over an extended period, the defendant poses an unusual risk to the safety of the public.” Id.

Considering the findings and recommendations contained in the presentence investigation report, the evidence of the defendant’s guilt for the crimes presently under appellate review, and his status as a sixth felony offender (R.S. 15:529.1 A(c)(ii)), the trial court did not abuse its discretion in either the length of, or manner in which, the sentences are to be served. The defendant’s complaint that his sentences are excessive has no merit.

[^CONCLUSION

For the foregoing reasons, we vacate the conviction and sentence on the cocaine possession count and affirm the defendant’s convictions and sentences on the other three counts.

CONVICTION AND SENTENCE ON COUNT 18 VACATED; CONVICTION AND SENTENCE ON COUNTS 15, 16, AND 17 AFFIRMED.

      . There is no indication that count 2 was ever tried or nolle prossed.

      . Because the defendant was acquitted on count 7, attempted simple burglary of Mr. Robert Obialor, the testimony and evidence relative to that count are not included in the Statement of Facts.

      . Following Mr. Dubberley's testimony, the State played the tape of the 911 call. The Dubberleys identified their voices in the recording.

      . After trial began and three of the State's witnesses had testified, defense counsel moved for a mistrial on the basis of misjoin-der of offenses.

      . The sentences for false imprisonment with a weapon and sexual battery also may entail sentencing with or without hard labor. However, the defendant does not raise the issue as to those convictions, and even if he did, the joining of those charges was within the discretion of the trial judge, because they occurred within the same scheme, which spawned the aggravated burglary charge. La. C.Cr.P. art. 493.

      . Louisiana’s La.G.Cr. P. art. 493 substantially tracked Federal Rules of Criminal Procedure, Rule 8; therefore, federal interpretive jurisprudence is instructive. For a thorough review of the history of joinder, see State v. McZeal (on rehearing), 352 So.2d 592 (Justice Dennis writing for the majority).

      . The report is not included in the record.