author: I,MOORE, J.

text:
    Jonathan JOHNSON, Plaintiff-Appellee, v. CITY OF WINNFIELD, Defendant-Appellant.
    No. 37,939-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Stamey & Miller, by J. Mark Miller, Joseph B. Stamey, Natchitoches, for Appellant.
    R. Stuart Wright, Natchitoches, for Ap-pellee.
    Before GASKINS, DREW and MOORE, JJ.
   I,MOORE, J.

The City of Winnfield appeals a judgment finding that one of its manhole covers posed an unreasonable risk of harm, that the city was negligent for allowing the condition to occur, that the plaintiff was not comparatively negligent, and awarding $15,000 in general damages. Finding no manifest error, we affirm.

Factual Background

The plaintiff, Jonathan Johnson, worked as a stock clerk at Kaye’s Food Market (formerly known as Troy’s) on West Court Street in Winnfield. On the afternoon of July 10, 2001, he was carrying three bags of groceries to the car for a customer, Mrs. Sharp. Mrs. Sharp had parked in the store’s lot right next to a manhole owned by the city for its sewer system, but neither she nor Johnson had noticed the manhole cover by the car’s rear passenger door.

When he was about to place the bags in the back seat, Johnson stepped on the manhole cover. It suddenly shifted or gave way, and his right leg fell into the hole. He described making a “big fall” as the cover “flipped up.” Mrs. Sharp did not see him step on the cover, but saw that he “went down” and his leg was in the hole, above the knee. Mrs. Sharp also testified that she had shopped at the store for 25 years and never noticed anything wrong with the manhole.

Johnson was taken to Winn Parish Medical Center and diagnosed with a strained right knee, a hematoma to the knee, and a sprained . right ankle. He missed 3/6 months of work, had to use crutches for three months, and testified that his knee still swells when he puts pressure on it.

1 ^Immediately after the accident, the store manager, Kenneth Bustin, lifted the cover so Johnson could extricate his leg. Bustin described the cover as “worn on the bottom from erosion,” with the “little lip * * * around the bottom, that sits in the hole, that part was worn off.” Bustin s.lid the cover back onto the manhole and then tried to stand on it; “it just tilted up a little.” Bustin added that he had worked at the grocery store for 23 years, never noticing anything wrong with this manhole. Bustin phoned the city to report the accident.

A city maintenance worker, Hugh Goods, responded to the call. He testified that when he arrived, the cover looked “fine”; he tried walking across it, “and it didn’t pop up on me.” Nonetheless, he replaced the cover with a new one. He explained that manhole covers are not very mobile, weighing over 100 lbs. and usually requiring two city workers .to move. He had never seen one “rust out,” but admitted that if someone had lifted it and not replaced it securely in the ring, it would be unsteady.

Goods also testified that shortly before Johnson’s accident, a private contractor had used this manhole to run a sewer line from the old Dairy Queen to the main sewer line. On cross examination by the city’s attorney, he admitted that he had inspected the manhole after that job was complete.

The city’s supervisor of water and sewerage, James Waters, testified that manhole covers “don’t rust out.” He admitted that heavy traffic can damage the ring in which the cover fits, leaving the cover loose, but he felt this was unlikely in a store parking lot. The city’s director of public works, Bill Kelly, testified a manhole cover is 115 lbs. of cast steel that does not |.<¡rust, and requires two men to move; the cover and ring are “dovetailed together” like a “cork in a bottle.” He admitted that heavy trucks driving over a manhole at high speed can cause the cover to bounce up. Kelly also testified that a private contractor had worked on the sewer line “within a couple of months” before Johnson’s accident, and that the city usually inspected the work of such contractors on the main sewer line. Neither Waters nor Kelly knew what became of the this cover after Goods removed it from the manhole.

Goods, Waters and Kelly all testified they had never received any complaints regarding this manhole cover. By stipulation, all five city operators also testified they never received a single call about it. Mayor Deano Thornton testified the only complaint about this manhole had been regarding sewer fumes around 1995. The city’s employees agreed there was no policy or procedure for routine inspection of all manholes. However, if city employees working near a manhole notice a problem, they are supposed to report it.

Action of the Trial Court

After trial in February 2003, the district court rendered written reasons for judgment. The court accepted Bustin’s testimony that the manhole cover had “a lot of corrosion and wear on the lip and the lip would not fit securely.” The court found this was a dangerous condition that was not apparent to the naked eye. The court then accepted Goods’s testimony that a week prior to the accident work was done on the Dairy Queen on the front of the strip mall; however, “no maintenance check or inspection of the | ¿manhole cover by any city employee during or after the work was completed for the Dairy Queen.” The court found that despite having actual knowledge of the work being performed in the manhole, the city failed to inspect it, and this constituted negligence. The court rejected, however, Goods’s testimony that he saw nothing wrong with the manhole cover immediately after the accident. The court further found that Johnson was not at fault.

The court awarded medical expenses of $3,153.93 and lost wages of $3,800.00, amounts not contested on appeal. The court then found that Johnson sustained not just a sprain or strain but an injury to his ligament, resulting in severe pain for over three months, as well as some residual pain and occasional swelling which would likely persist. Finding Johnson’s injuries commensurate with those in Minvielle v. Lewis, 610 So.2d 942 (La.App. 1 Cir.1992), the court awarded general damages of $15,000. The city has appealed suspensively.

Discussion: Constructive or Actual Notice

By its first assignment the city urges the district court erred in finding actual or constructive notice of the defect, a reasonable opportunity to remedy it, and failure to do so, as required by La. R.S. 9:2800 B. The city shows that lack of a plan to inspect its property does not impute constructive knowledge of defects. Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216. The city also shows that none of the 10 persons charged with fielding complaints ever received any regarding this manhole cover. Further, the city contends that the court should not have rejected Goods’s testimony that |.fite inspected the cover when the Dairy Queen work was complete, about one week before the accident, and found nothing wrong with it. Finally, the city argues that in cases involving water meter covers, courts usually find the plaintiffs failed to prove the condition had existed long enough to impute knowledge of a defect to the municipalities. Prudhomme v. City of Iowa, 1999-1386 (La.App. 3 Cir. 2/9/00), 758 So.2d 275; Lemoine v. Jefferson Parish Dept. of Water, 94-440 (La.App. 5 Cir. 11/29/94), 646 So.2d 1194; Salone v. Jefferson Parish Dept. of Water, 94-212 (La. App. 5 Cir. 10/12/94), 645 So.2d 747; Kammerer v. Sewerage & Water Bd. of New Orleans, 93-1232 (La.App. 4 Cir. 3/15/94), 633 So.2d 1357, writ denied, 94-0948 (La.7/1/94), 639 So.2d 1163.

A public entity is responsible under a theory of strict liability for damages caused by the condition of buildings within its care and custody. La. R.S. 9:2800 A. Its liability is limited, however, to cases in which the plaintiff can show that the public entity (1) exercised care and custody of the defective thing, (2)'had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, (3) had a reasonable opportunity to remedy the defect, and (4) failed to remedy the defect. La. R.S. 9:2800 B; Jones v. Hawkins, supra; Whitaker v. City of Bossier City, 35,972 (La.App. 2 Cir. 4/5/02), 813 So.2d 1269. Constructive notice is defined as “the existence of facts which infer [sic] actual knowledge.” La. R.S. 9:2800 C; Whitaker v. City of Bossier City, supra.

The district court’s findings pursuant to R.S. 9:2800 are subject to manifest error review. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566; Joseph v. City of New Orleans, 2002-1996 (La.App. 4 Cir. 3/5/03), 842 So.2d 420. Under this review, the appellate court will review the entire record to determine whether the trial court’s findings were clearly wrong or manifestly erroneous. Stobart v. State, 617 So.2d 880 (La.1993). In order to reverse, the appellate court must find that a reasonable basis does not exist for the finding of the trial court and that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987).

■ Because of- its superior position to view the demeanor' of witnesses, the district court’s decision to credit the testimony of one of two or more witnesses can virtually never be plainly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are more reasonable. Id.; Collins v. City of Shreveport, 35,172 (La.App. 2 Cir. 10/31/01), 799 So.2d 630.

We have closely reviewed all the evidence summarized earlier in this opinion. It is not disputed that the city owned the manhole and thus had care and custody of it. Three city employees, Goods, Waters and Kelly, uniformly testified that manhole covers do not rust out, but admitted that sometimes they can be dislodged from their- outer ring and thus become unstable. Johnson testified that the cover “flipped up” when he stepped on it, and Kenneth Bustin said that it wobbled in place when he stood on it 17shortly after the accident. On this record, the district court was entitled to find that the manhole cover was not secure in its ring and thus posed an unreasonable risk of harm.

The city urges that the facts do not permit a finding of constructive knowledge. However, the city’s employees, Bill Kelly and Hugh Goods, established that a private contractor did work in that manhole shortly before the accident. Kelly testified that after the job was completed, the city would have checked work to make sure that conditions were safe. Goods admitted, somewhat reluctantly, that he had looked at the cover a week or two before the accident. We cannot say that the court’s assessment of Goods’s testimony is unreasonable. Rosell v. ESCO, supra. The district court found that his inspection a week or so before the accident constituted actual notice of the condition. On this record, the court was not plainly wrong to find such notice of the defect.

Finally, the city urges that even if Johnson proved that the manhole cover was defective and that actual or constructive notice existed, the city did not have a reasonable opportunity to remedy the defect. The supervisor of public works, Kelly, testified that if an employee sees a loose manhole cover, he is supposed to repair it. The court also found that Goods had looked at this cover a week or so before the accident. From this evidence, |sthe court was entitled to infer that in the intervening time, Goods should have reported it and the city should have repaired it. We detect no manifest error in this inference.

In short, we are unable to declare that the district court’s findings lack a reasonable basis in the record and that they are plainly wrong. Stobart v. State, supra; Mart v. Hill, supra. This assignment of error lacks merit.

Comparative and Third-Party Fault

By its second and third assignments the city urges the district court erred in failing to assess all or a portion of the fault to the plaintiff or to third parties who contributed to his harm. It argues that Johnson should have watched where he was walking and was at fault for stepping on a manhole cover that was not securely in place. It urges that he owed a heightened standard of care because his view was obstructed by shopping bags. Carr v. City of Covington, 477 So.2d 1202 (La.App. 1 Cir.1985), writ denied, 481 So.2d 631 (La.1986); Barnes v. New Hampshire Ins. Co., 573 So.2d 628 (La. App. 2 Cir.1991). Arguing that the unnamed contractors who performed work at the Dairy Queen must have caused the defect that the city failed to discover, the city shows that fault may be assessed to non-parties. Dumas v. State, 2002-0563 (La.10/15/02), 828 So.2d 530.

If a person suffers injury, death or loss as a result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable are reduced in proportion to the degree |9or percentage of negligence attributable to the person suffering the injury, death or loss. La. C.C. art. 2323 A. Liability for damages caused by two or more persons is a joint and several obligation; each joint tortfeasor is liable for not more than his degree of fault. La. C.C. art. 2324 B. The allocation of fault is a factual determination subject to the manifest error rule. Petre v. State, 2001-0876 (La.4/3/02), 817 So.2d 1107; Holloway v. Midland Risk Ins. Co., 36,262 (La.App. 2 Cir. 10/30/02), 832 So.2d 1004, writ denied, 2002-3247 (La.3/28/03), 840 So.2d 571.

While it is clear that Johnson was carrying three paper grocery bags, he did not say that his view was obstructed. Even had it been, neither he nor Mrs. Sharp, the customer, noticed anything wrong with the manhole cover before the accident; Kelly, the director of public works, admitted Johnson did nothing wrong by stepping on it. On this evidence, the court was entitled to find that Johnson exercised reasonable care and was not at fault in causing the accident.

The district court found that the manhole cover “would have been removed and reset by the persons performing work on the sewerage line to the Dairy Queen building,” but did not find them at fault. However, Kelly testified that the city usually inspected the work of private contractors; the court explicitly found that had it done so, it “could have prevented the existence of an unreasonable risk of harm.” Compared to the city’s acknowledged duty to inspect and repair, the fault of the unnamed third parties is negligible. Under the circumstances, the court was not plainly wrong in declining to assess third-party fault.

|inThese assignments of error lack merit.

General Damages

By its final assignment the city urges that general damages of $15,000 are excessive for what was, in essence, a soft tissue injury to the leg. Citing Dr. Sandifer’s medical records, the city argues that Johnson suffered no broken bones or torn ligaments, only a strained right knee with hematoma and a sprained right ankle; that he was released to light duty work in 2^ months and sought no further medical treatment after 3lh months. The city suggests a maximum award of $3,500. Dawson v. Brookshire Grocery Co., 31,042 (La. App. 2 Cir. 9/23/98), 718 So.2d 623; Dixon v. Tillman, 29,483 (La.App. 2 Cir. 5/7/97), 694 So.2d 585, writ denied, 97-1430 (La.9/19/97), 701 So.2d 174; Diaz v. Schwegmann Giant Supermarkets Inc., 533 So.2d 1034 (La.App. 4 Cir.1988).

In the assessment damages in cases of offenses, quasi-offenses and quasi-contracts, discretion must be left to the judge or jury. La. C.C. art. 2324.1. Before an appellate court may disturb such an award, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the person under consideration. Hae Woo Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993); Morace v. Melvyn's Restaurant Inc., 30,988 (La.App. 2 Cir. 9/23/98), 719 So.2d 139. The proper procedure for examining whether an award is excessive is to determine whether it can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact. Morace v. Melvyn’s Rest., supra; O’Neal v. Scott, 34,276 (La.App. 2 Cir. 12/20/00), 775 So.2d 1155.

The district court reviewed Johnson’s medical records, finding an early “impression” of a medial collateral ligament tear and, later, a diagnosis of a strained medial ligament. The court explicitly accepted Johnson’s description of continued pain and occasional swelling some 18 months after the accident. Although it was a soft tissue injury, its duration distinguishes it from the cases cited by the city. The court also accepted that Johnson could expect occasional pain and swelling well into the future. On this record, we cannot say the award of $15,000 is excessive. It appears to be consistent with the more similar injuries reported in Minvielle v. Lewis and Morace v. Melvyn’s Restaurant, supra, and in Wells v. Wal-Mart Stores Inc., 98-2517 (La.App. 1 Cir. 9/24/99), 754 So.2d 273, writ denied, 99-2963 (La. 12/17/99), 752 So.2d 857.

This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. Appellate costs of $142.50 are assessed against the City of Winnfield in accordance with La. R.S. 13:5112 A.

AFFIRMED.

      . On direct examination by Johnson’s counsel:
      Q. When is the last time you checked this manhole?
      A. Maybe a couple of days ago.
      Q. I am talking about before the incident, July 2001.
      A. Before the incident, I think it was maybe prior a week to that. * * *
      Q. So, you remember back two years ago, that two weeks before this, you looked at this manhole?
      A. I am estimating. It might have been earlier or whatever. I am just saying, about a week later. R.pp. 137-138.

      . The city also cites Williams v. City of Marksville, 2002-1130 (La.App. 3 Cir. 3/5/03), 839 So.2d 1129, in support of this rule, but we do not see that Williams has anything to do with a pedestrian's duty to watch the ground in front of him.


source: Caselaw Access Project

author: h CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Richard Allen JARRETT, Appellant.
    No. 37,928-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Louisiana Appellate Project, by Kenota Pulliam Johnson, Indigent Defender Board, by Pamela G. Smart, for Appellant.
    Schuyler Marvin, District Attorney, Jeffrey S. Cox, R. Lane Pittard, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   h CARAWAY, J.

The state charged the defendant, Richard Allen Jarrett, with the offenses of: (1) aggravated rape, La. R.S. 14:42 (mandatory life imprisonment without benefits); (2) aggravated burglary, La. R.S. 14:60 (one to thirty years); (3) armed robbery, La. R.S. 14:64 (ten to ninety nine years without benefits); and, (4) aggravated sexual battery, La. R.S. 14:43.3 (fifteen years without benefits). The state entered into a plea bargain which reduced the aggravated rape charge to forcible rape, a violation of La. R.S. 14:42.1, punishable by imprisonment for not less than five years nor more than forty years. Jarrett also pled to the charge of aggravated burglary. The plea bargain dismissed the charges of armed robbery and aggravated sexual battery.

The court imposed the maximum sentences for both crimes and ordered that the forty-year and thirty-year sentences be served consecutively. Jarrett filed a motion for reconsideration of sentence which the court denied. He now argues that the sentences are excessive, that the court did not give adequate consideration to mitigating circumstances, and that the court erred in directing the sentences to be served consecutively.

Facts

On May 7, 2001 defendant, Richard Allen Jarrett, then 19, broke into the 52-year-old victim’s Bossier City home after she had gone to bed for the night by forcing a lock on the back door. The victim awoke to find a man beside her on her bed telling her not to scream and to do whatever he said so she would not be hurt. Jarrett engaged in oral sexual battery on the victim hand forced her to perform fellatio. During these events, the victim felt a knife or broken glass pressed against her. The defendant then engaged in vaginal intercourse with the victim and left DNA samples on her body and on the bed sheets. Jarrett then took the victim’s car keys and left.

The victim went to a relative’s nearby house and notified the police. A short time later, a patrol officer saw Jarrett driving the victim’s stolen car. The officer apprehended Jarrett and found a large folding knife in one of his pockets. He also found a hunting knife lying on the front seat. That knife matched a sheath found at the scene of the crime.

A rape kit and subsequent DNA testing confirmed Jarrett was the perpetrator. He confessed when interviewed and admitted he had held a knife while committing the sex offenses.

Discussion

On appeal, Jarrett argues that the record contains an insufficient factual basis for the trial court’s sentencing choices and that the case should be remanded for compliance with La.C.Cr.P. art. 894.1. Additionally, Jarrett contends that the imposed maximum sentences are constitutionally excessive and that the trial court erroneously imposed consecutive sentences for the two offenses of conviction because each sentence arose from a single . course of conduct.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating 1 ¡¡circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is-the goal,of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. However, the jurisprudence holds that where the record clearly shows an adequate factual'basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982).

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

As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991).

| ¿Despite Jarrett’s complaint, we And more than adequate 894.1 compliance by the trial court on the record before us. Prior to imposing sentence the court reviewed a pre-sentence investigation report (PSI). The court noted that Jarrett was a deserter from the U.S. Navy at the time of these offenses. The defendant had told the probation officer he hadn’t intended for these offenses to happen and said he was sorry. Jarrett had prior convictions for simple criminal damage to property, possession of marijuana (on which probation had been revoked), and trespass which had been bargained down from unauthorized entry of an inhabited dwelling.

The court noted that the original charge of aggravated rape carried a sentence of life without benefits and the armed robbery carried a sentence exposure of up to 99 years without benefits. The court found that because the facts of the case would have upheld convictions on those charged offenses, the defendant had received a very substantial benefit from his plea bargain.

Defendant dropped out of school in the tenth grade, but obtained a GED. He began abusing drugs at an early age. His drugs of choice were LSD, ecstasy, marijuana and prescription medications. Defendant was a first felony offender, but was not eligible for probation because the offenses of conviction were crimes of violence.

The court also considered a sentencing memorandum presented- by trial defense counsel which included defendant’s medical records. They indicated, among other things, that defendant had been diagnosed as having an impulse control disorder. Medications had been prescribed, but | Rdefendant had chosen to stop using them because he didn’t like blood samples being taken. Thus, defendant was aware of the problem but he chose to ignore the treatment. He also continued to abuse drugs in spite of warnings to the contrary.-

The court found there was an undue risk defendant would commit another offense if granted probation; that defendant was in need of correctional treatment; and, a lesser sentence would deprecate the seriousness of the offenses.

The victim made a presentation to the court at the sentencing and had written a letter telling the court she has “permanent psychological damage and her life will never be the same.” The court concluded that Jarrett’s conduct manifested deliberate cruelty to the victim. Jarrett knowingly created a risk of death or great bodily harm to the victim and used actual threats of violence, and the court agreed that the offenses caused a significant and permanent injury to the victim.

Next, we do not find the imposed sentences to be excessive. A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of [ fithat discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Here, the evidence would support a finding that defendant actually committed an aggravated rape rather than'merely a forcible rape. The victim was prevented from resisting the act by threats of great bodily harm accompanied by apparent power of execution. The offender was armed with a dangerous weapon. Jarrett received a substantial reduction of sentencing exposure through the plea bargain, both from the reduction of the rape charge with its mandatory sentence of life, and from the dismissal of the armed robbery charge which could have resulted in a sentence of up to 99 years. Thus, the maximum sentences imposed for the two lesser offenses can be affirmed.

Finally, the jurisprudence holds that when two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment “shall be served concurrently unless the court expressly directs that some or all be served consecutively.”' La.C.Cr.P. art. 883. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, 1247-48, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010.

Concurrent sentences arising out of a single cause of conduct are not mandatory, State v. Pickett, 628 So.2d 1333 (La. App. 2d Cir.1993), writ denied, 94-0348 (La.5/20/94), 637 So.2d 476; State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir. 1985), and consecutive' sentences under those circumstances are not necessarily excessive. State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Williams, 445 So.2d 1171 (La.1984); State v. Mills, 505 So.2d 933 (La.App. 2d Cir. 1987), writ denied, 508 So.2d 65 (La.1987).

Although La.C.Cr.P. art. 883 favors the 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 justify treating him as a grave risk to the safety of the community. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Feaster, 36,868 (La.App.2d Cir.3/5/03), 840 So.2d 675. Among the factors to be considered are the defendant’s criminal history, State v. Ortego, supra; State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir. 1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La. App. 4th Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983); whether the defen dant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); defendant’s apparent disregard for the property of others, State v. Parker, 503 So.2d 643 (La.App. 4th Cir.1987); the potential for defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983), State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987); and |swhether defendant-'has received a benefit from a plea bargain, State v. Jett, supra; State v. Adams, supra.

When consecutive sentences are imposed, the court “shall state the factors considered and its reasons for the consecutive terms.” State v. Green, 614 So.2d 758 (La.App. 2d Cir.1993). A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Strother, 606 So.2d 891 (La.App. 2d Cir. 1992), writ denied, 612 So.2d 55 (La.1993); State v. Thompson, 543 So.2d 1077 (La. App. 2d Cir.1989), writ denied, 551 So.2d 1335 (La.1989).

We note first that at the time of the plea bargain hearing, the trial court advised the defendant that by accepting the plea, the sentences could be consecutively imposed due to the benefit received therefrom. In this case, Jarrett’s exposure to a mandatory life sentence was reduced by the plea to a charge of forcible rape with a maximum sentence of forty years.

While the trial court did not specifically state ■ the' reason for the consecutive sentences, the court discussed certain factors as set forth above' which support the ruling. The rape and forced oral sex conducted at knife-point were particularly vicious. The victim was physically brutalized and mentally traumatized. Jarrett could not verbalize any reason for committing these offenses. He suffers from an impulse disorder and intentionally stopped taking medications prescribed for that disorder. He has a prior criminal record of a misdemeanor drug charge and unauthorized entry of an inhabited dwelling which was reduced by a plea agreement to a 19misdemeanor. All of these factors, as discussed by the trial court, support a finding that the defendant constitutes an unusual risk of danger to the public. The consecutive sentences therefore do not constitute error, and we find that the sentences are not constitutionally excessive.

AFFIRMED.


author: | ¶ BROWN, C.J.

text:
    Marolyn W. BRYANT, Plaintiff-Appellee, v. UNITED SERVICES AUTOMOBILE ASSOCIATION and Robertnique W. Williams, Defendants-Appellants.
    No. 37,926-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.
    Nelson, Zentner, Sartor & Snellings by Thomas G. Zentner, Jr., Monroe, for Appellants. .
    Street & Street by C. Daniel Street, Monroe, for Appellee.
    Before BROWN, CARAWAY, and MOORE, JJ.
   | ¶ BROWN, C.J.

Plaintiff, Marolyn W. Bryant, owned a 1990 Ford Mustang with insurance coverage purchased from Direct General Insurance Company (“DGIC”). The policy excluded from coverage her 17-year-old son, Justin Bryant, who was a resident of her household. On October 26, 2002, Justin was driving the Mustang on Highway 167 in Jonesboro, Louisiana, when he was hit by defendant, Robertnique Williams, who ran a red light. Ms. Williams was insured by defendant-appellant, United Services Automobile Association (“USAA”).

Plaintiff filed a petition for damages, alleging that the sole and legal cause of the accident was Ms. Williams’ negligence, that the value of her vehicle was $5,000, and that it was rendered a total loss. Defendants answered plaintiffs petition by alleging that La. R.S. 32:866, the “no pay/no play” law, precluded payment because plaintiffs son was expressly excluded from plaintiffs insurance policy issued by DGIC. Thereafter, the trial judge granted plaintiffs motion for summary judgment, holding that defendants cannot deny coverage on the basis of the “no pay, no play” law, as plaintiffs vehicle was insured for purposes of La. R.S. 32:866. We affirm.

Discussion

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

|gThe interpretation of a statute is a question of law that may be decided by summary judgment. In reviewing questions of law, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Cohort Energy Co. v. Caddo-Bossier Parishes Port Commission, 37,449 (La.App.2d Cir.08/20/03), 852 So.2d 1174.

La. R.S. 32:866, the so-called “no pay, no play” provision, provides in pertinent part:

There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security. La. R.S. 32:866(A)(lj. (Emphasis added).

The “no pay, no play” provision is clear and unambiguous in delineating when the bar to the first $10,000 of bodily injury or property damage occurs. Marolyn Bryant, as owner of the automobile involved in the motor vehicle accident, would be barred from recovering the first $10,000 of property damage if she failed to own or maintain compulsory motor vehicle liability security. As evidenced by the record, plaintiff had a motor vehicle liability policy, issued by DGIC, in full force and effect at the time of the accident. Defendants, however, argue that at the time of the accident the vehicle owned by Ms. Bryant was in effect “uninsured” because it was being operated by Justin, a driver specifically excluded from her policy.

In A.K. Durnin Chrysler-Plymouth, Inc. v. Jones, 01-0810 (La.App. 1st Cir.05/10/02), 818 So.2d 867, the First Circuit held that an exclusion of |3a spouse as an insured under an owner’s automobile liability policy does not prevent an owner from recovering the first $10,000 of property damage to that owner’s vehicle when damaged in an accident in which the excluded spouse was driving the vehicle. In other words, since the owner was permitted by statute to exclude his spouse from coverage, the “no pay, no play” statute was inapplicable.

However, in Lantier v. State Farm Mutual Automobile Insurance Company, 02-0301 (La.App. 3d Cir.10/02/02), 827 So.2d 597, unit denied, 02-2628 (La.12/13/02), 831 So.2d 991, the Third Circuit held that a vehicle being driven by a person who was listed as an excluded driver under the vehicle owner’s insurance policy was an uninsured vehicle for the purposes of La. R.S. 32:866, and thus, the vehicle owner was barred from recovering the first $10,000 of property damage from the insurer of the negligent motorist.

In obtaining a motor vehicle liability policy, La. R.S. 32:861 and La. R.S. 32:900 specifically allow an insured to exclude a child who is a resident of the same household as the named insured. The fact that plaintiff specifically excluded her son from her policy does not change the fact that she obtained a liability policy in conformity with La. R.S. 32:900, nor does it alter her compliance with the compulsory motor vehicle liability security law.

We feel that the A.K. Durnin decision is the more accurate resolution of the issue presented. Therefore, since plaintiff did in fact maintain an automobile insurance policy on the vehicle at the time of this accident she is Rentitled to recover the value of the vehicle without any deduction under the “no pay/no play” law.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court; all costs of this appeal are to be borne by appellants, United Services Automobile Association and Robertnique W. Williams.

AFFIRMED.


author: It GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Donald Gene HOLLAND, Appellant.
    No. 37,922-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Carey J. Ellis, III, Louisiana Appellate Project, Rayville, for Appellant.
    Paul J. Carmouche; District Attorney, Alex J. Washington, Tommy J. Johnson, Assistant District Attorneys, for Appellee:
    Before GASKINS, DREW and MOORE, JJ.
   It GASKINS, J.

The defendant, Donald Gene Holland, appeals his conviction by jury of possession of cocaine, arguing that the evidence presented at trial was insufficient to support the conviction. We affirm the conviction and sentence.

FACTS

On December 4, 2001, Shreveport Police were called to investigate a stabbing on Sam Fertitta Drive in Shreveport. Officers D.A. Lott and D.M. Cortez were among the officers who responded to the call. The officers interviewed a stabbing victim, who explained that she had gotten into a fight with another .female. In search of the other, female, the officers followed a blood trail, which led to a house located on Sam Fertitta Drive. The next door neighbor advised Officer Lott that the defendant, Donald Holland, lived at the house.

The defendant was found walking at the corner of Fairfield and Louisiana Avenues. Law enforcement officers explained the circumstances of their investigation to the defendant, including the fact" that there was a blood trail leading to his house. The defendant returned to the house with the officers, where he unlocked the door with a key.

With the defendant’s permission, the officers entered the house to look for the other female. Inside the residence, the officers found blood on furniture and the floor. Officer Cortez entered a bathroom with a closet that appeared large enough for a person to hide inside. The officer opened the closet and found five handguns as well as some cocaine on a plate. The ^defendant was placed under arrest and given his Miranda rights. The other female was never located. No blood was found in the bathroom.

Before interviewing the defendant, Officer: Anthony Rei again advised him of his Miranda rights, which the defendant indicated he understood. The defendant did not appear to be under the influence of any intoxicants and stated that he could read and write the English language. No threats or duress were used in obtaining the statement, which was freely and voluntarily given. Officer Rei questioned the defendant regarding the drugs and guns found in his house.- The defendant told Officer Rei that he didn’t know how those items had gotten into the house. He said that all the doors and windows had working locks and he Was the only person with a key. The defendant also told Officer Rei that nobody was in the house when he wasn’t there, and there had been no break-ins. Officer Rei made an in-court identification’of the defendant as the person he interviewed.

The defendant testified at trial, asserting that at the time of the crime, he lived on Youree Drive with his ailing mother. He stated that he waited near the Sam Fertitta Drive house for his ride to work. The defendant denied having a key to the house and asserted that the residence belonged to his friend, Johnson Clinton. He stated that his friend usually left the key so that he would have a place to wait for his ride. The defendant claimed that when the officers stopped him to ask about the house, a neighbor came by and gave him the key. He stated that the officers saw the neighbor give him the key. He denied that the drugs belonged to him and asserted that he didn’t know how the drugs got into the house. The defendant admitted that |3he spent a couple of nights at the Sam Fertitta Drive house, but denied telling Officer Rei that the house belonged to him. The defendant also testified that Officer Cortez was not telling the truth about being the officer who found the drugs. He further stated that Officer Lott was not telling the whole truth when she failed to testify that the neighbor gave him the key.

A six-person jury unanimously convicted the defendant as charged. On December 20, 2002, the defendant was sentenced to serve five years imprisonment at hard labor. He was also ordered to pay court costs or to serve ten days in the parish jail, with credit for time served, concurrent with the hard labor sentence. The defendant appealed.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that under the facts and circumstances of this case, and applying the pertinent factors, the state failed to present sufficient proof that he had constructive possession of cocaine. This argument is without merit.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01),4 799 So.2d 1150, 2001-2087 (La.4/19/02), 813 So.2d 424. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Anderson, 36,-969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. For circumstantial evidence to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

La. R.S. 40:967(C), in part, prohibits the knowing and intentional possession of a Schedule II controlled dangerous substance. Cocaine is a Schedule II controlled dangerous substance. La. R.S. 40:964, Schedule 11(A)(4). To support a conviction for possession of cocaine, the state must establish that the defendant was in possession of the drug and that he knowingly or intentionally possessed it. State v. Shields, 1998-2283 (La.App. 4th Cir.9/15/99), 743 So.2d 282. Guilty knowledge is an essential element of the crime of possession of cocaine. State v. Williams, 1998-0806 (La.App. 4th Cir.3/24/99), 732 So.2d 105, writ denied, 1999-1184 (La.10/1/99), 748 So.2d 433. The elements of knowledge and intent need not be proven as facts, but may be inferred from the circumstances. State v. Porter, 1998-2280 (La.App. 4th Cir.5/12/99), 740 So.2d 160; State v. Monette, 1999-1870 (La.App. 4th Cir.3/22/00), 758 So.2d 362.

To support a conviction for possession of a controlled dangerous substance, the state must prove that the defendant was in possession of the illegal drug and that he knowingly possessed the drug. However, to be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband; constructive possession is sufficient to convict. Constructive possession means having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not | (¡in one’s physical possession. State v. White, 37,261 (La. App.2d Cir.6/25/03), 850 So.2d 987.

Guilty knowledge is an essential element of the crime of possession of illegal drugs and such knowledge can be inferred from the circumstances. State v. Anderson, supra. Mere presence in the area where narcotics are discovered is insufficient to support a finding of possession. However, the fact finder may draw reasonable inferences based upon the evidence presented at trial. State v. White, supra; State v. Allen, 34,103 (La.App.2d Cir.12/22/00), 774 So.2d 1212.

Credibility determinations are the province of the finder of fact. In the absence of internal contradictions or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact is sufficient to support the requisite factual conclusion. State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

According to the defendant, the state did not present any documentary evidence (correspondence or assessment records) or physical evidence (fingerprints) to prove that he had any connection to the house. He contends that the state failed to prove that he knew that illegal drugs were located in the house, that he recently used drugs, that he was in close proximity to the drugs, or that the area was one frequented by drug users. He asserts that he was not involved in the stabbing, and notes that, although blood was found in the house, no injured stabbing suspect was ever located. |7 Because he claims that the house was not his, that he did not live there, and that he did not know the drugs were in the house, he asserts that the evidence is not sufficient to show that he possessed cocaine. He urges that his conviction be reversed and his sentence vacated.

According to the state, the defendant told law enforcement officials several times that the house was his. He opened the door with a key and said that he had the only key to the residence. He claimed that no one else was present in the house when he was not at home. The state urges that the defendant placed his credibility at issue by testifying. The state contends that, considering these factors, there was sufficient evidence to support the conviction.

The jury in this matter was faced with a credibility determination. It obviously chose to believe the officers who testified that:

• the defendant had the key to the locked house with him
• the defendant admitted to police he lived there
• the defendant told police he was the only one who had a key
• the defendant told the officers no one was at the house when he was not there
• the defendant denied the house had been “broken into.”

A review of the record shows that the evidence presented at trial, viewed in the light most favorable to the prosecution, was sufficient for any rational trier of fact to have found the essential elements of the crime of possession of cocaine proven beyond a reasonable doubt. The facts and circumstances support the finding that the defendant had constructive possession of the |Rcocaine found in the house because it was subject to his dominion and control. See State v. White, supra; State v. Anderson, supra; State v. Riley, 587 So.2d 130 (La.App. 2d Cir.1991); State v. Perez, 569 So.2d 609 (La.App. 2d Cir.1990), writ denied, 575 So.2d 365 (La.1991); State v. Matthews, 552 So.2d 590 (La.App. 2d Cir. 1989), writ denied, 559 So.2d 137 (La. 1990). See and compare State v. Allen, supra.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Donald Gene Holland, for possession of cocaine.

AFFIRMED.

      . Although the record does not reflect that the defendant filed a motion for post verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

      . See factors listed in State v. White, supra.

      . In State v. Allen, supra, there was no showing that the house in which drugs were found belonged to the defendant. The defendant was standing outside the house at the time of the search and a wallet containing his credit card was found in a bedroom close to a bottle containing crack cocaine. Others had access to the house and there were other explanations as to how the defendant’s credit card came to be in the house. In the present case the defendant originally told officers that the house was his and he had the only key, but then gave a contradictory story at trial, which could have given the jury a reason to discount his credibility.


author: h STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Christopher McGEE, Appellant.
    No. 37,919-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Louisiana Appellate Project by James E. Beal, Jonesboro, for Appellant.
    Indigent Defender Board by Mary L. Harried, Paul J. Carmouche, District Attorney, Tommy J. Johnson, Shenequa L. Grey, Assistant District Attorneys, New Orleans, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   h STEWART, J.

The defendant, Christopher S. McGee, was charged with attempted second degree murder, tried by jury, convicted of aggravated battery, and sentenced to six years at hard labor. The defendant now appeals his conviction and sentence. We affirm.

FACTS

On September 12, 2000, the victim, K.C., a juvenile, was walking with a friend on Sunny Brook Street in Shreveport when the defendant, who was driving a white Chevrolet van, swerved towards K.C., almost hitting him. The defendant, who knew KC. from the neighborhood, then turned the van around and drove back toward K.C., who had gotten onto the curb. The defendant drove the van onto the curb and struck K.C. The impact occurred at the top center of the van’s hood. After impact, K.C. was dragged approximately 157 feet before he fell free from the van. K.C. sustained fractures of the pelvic area, including a fracture of the acetabu-lum socket, which is the socket where the femoral head is located. K.C. also sustained abrasions or “road rash” on his back and other parts of his body. The defendant fled the scene of the incident.

Shortly thereafter, the defendant returned the van to his employer, John Greg Edwards, the owner of the van. When Edwards asked about the dent on the hood of the van, the defendant told Edwards that he had ran over someone and killed him. The defendant then fled, and Edwards notified the police.

The defendant later turned himself in to the police. He was charged with attempted second degree murder. However, the jury found him guilty | ¡>,of aggravated battery, a responsive verdict. The trial court sentenced him to six years at hard labor without first ruling on the defendant’s motions for a new trial and post-verdict judgment of acquittal. A motion to reconsider sentence was denied. In an unpublished opinion, No. 36,554-KA rendered December 11, 2002, this court vacated the sentence and remanded the matter for the trial court to rule on the pending motions. On April 7, 2003, the trial court denied both the motion for new trial and the motion for post-verdict judgment of acquittal upon finding that neither motion was supported by law or evidence. The trial court than imposed a sentence of six years at hard labor. This appeal followed.

DISCUSSION

The defendant urges three assignments of error on appeal. In appealing his conviction, he asserts that' the trial court erred in failing to grant his motion for post-verdict judgment of acquittal. In appealing his sentence, the defendant asserts both that the trial court erred in failing to give sufficient consideration to mitigating factors in fashioning the sentence and that the sentence is excessive.

Post-verdict Judgment of Acquittal

A post-verdict judgment of acquittal, shall be granted only if the trial court finds that the evidence, viewed in the light most favorable to the state, does not reasonably permit a finding of guilty. La. C.Cr.P. art. 821(B). Sufficiency of the evidence is an issue properly raised in the trial court by a motion for post-verdict judgment of acquittal under La.C.Cr.P. art. 821. See State v. Andy, 34,833 (La. App.2d Cir.8/22/01), 793 So.2d 485, unit denied, 2001-2734 (La.8/30/02), 823 So.2d 940.

The defendant’s argument for granting the post-verdict judgment of acquittal is that the evidence was not sufficient to establish the intent element of the crime of aggravated battery. He claims that the evidence establishes that he intended only to scare the victim and that his hitting the victim was an accident. He asserts that the jury should have concluded that he was guilty only of 'negligent injury, a charge that was not before the jury, and returned a not guilty verdict. This argument requires us to examine the sufficiency of the evidence as to the intent element of aggravated battery.

Evidence is deemed to have been sufficient when, after viewing the evidence in the light most favorable to the prosecution, it is determined that any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. When the evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient to persuade a rational finder of fact beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Johnson, 584 So.2d 1216 (La.App. 2d Cir.1991), writ denied, 589 So.2d 1057 (La.1991).

A battery is the intentional use of force or violence upon the person of another. La. R.S. 14:33. An aggravated battery is a battery committed with a dangerous weapon. La, R.S. 14:34. Therefore, to convict a defendant of 14aggravated battery, the state must prove that the defendant intentionally used force or violence upon the victim, that the force or violence was inflicted with a dangerous weapon, and that the dangerous weapon was an instrumentality used in a manner likely or calculated to cause death or great bodily harm. State v. Day, 468 So.2d 1336 (La. App. 1st Cir.1985).

An aggravated battery conviction requires proof of only general criminal intent or a showing that the defendant in the ordinary course of human experience must have adverted to prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2); State v. Dunn, 30,560 (La.App.2d Cir.2/25/98), 709 So.2d 852. The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of this determination is to be guided by the standards of Jackson v. Virginia, supra. State v. Johnson, 584 So.2d 1216 (La.App. 2d Cir.1991), unit denied, 589 So.2d 1057 (La.1991); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir. 1989).

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

The state presented the testimony of K.C. and three eyewitnesses to the incident. The eyewitnesses were Charles Cot-tingham, who was walking with K.C. when the incident occurred; Kenny Chappell, who knew both K.C. and the defendant and who was on Sunny Brook when the incident occurred; and Chamavis Smith, who saw the incident from his front yard. These eyewitnesses testified that they saw the defendant drive up behind |5K.C. and swerve the van toward him. They observed the van turn around further up the street and then head back toward K.C. at a high rate of speed. The van drove onto the curb and hit K.C., dragging him under the van. The van then drove off from the scene. The testimony of these witnesses was consistent and showed that the defendant purposefully drove the van toward K.C., turned it around, and drove onto the curb in order to strike K.C.

The state also presented the testimony of John Greg Edwards, the defendant’s employer, and Edwards’ wife, Tomi Edwards. John Edwards testified that the defendant told him that he ran over the victim and thought he killed him. Tomi Edwards overheard the defendant make this statement to her husband.

Detective Jeter, another witness for the state, interviewed the defendant after his arrest. Detective Jeter testified that the defendant claimed that he had blacked out and could remember nothing. During the interview, the defendant stated that he knew he “messed up” and that he would have to do a lot of time.

The defendant also testified at trial. He admitted that he lied to Detective Jeter about blacking out. He admitted that he swerved the van toward K.C., but he claimed that he only intended to scare him in retaliation for an incident that he said occurred a couple of days before the incident at issue. Furthermore, he claimed that he lost control of the van when it got too close to the curb and that this caused him to actually hit K.C.

The jury was presented with conflicting testimony as :to whether the defendant intended to strike K.C. with the van -or whether he intended, only Lto scare K.C. The jury chose to accept the eyewitnesses’ account of the incident and to reject the defendant’s claim that he only intended to scare K.C. To the defendant’s great benefit, the jury also chose to reject the charges -of the more serious offenses pertaining to murder. Rather, the jury determined that the state proved the elements of aggravated battery beyond a reasonable doubt.

Viewing the evidence in this case in the light most favorable to the prosecution in accordance with- Jackson, supra, we find that the evidence was sufficient for the jury to find the defendant guilty of every essential element of the crime of aggravated battery, including the element of intent, beyond a reasonable doubt. The evidence established that the defendant twice drove the van in the direction of K.C. in an attempt to strike him. After missing the first time, the defendant purposefully turned the van around and again drove toward K.C. He drove off the roadway and onto the curb where the front center of the van struck K.C., causing great bodily injury to him. The defendant’s purposeful actions, including fleeing the scene and lying to Detective Jeter, belie his claim that he was only trying to scare K.C.

The evidence established beyond a reasonable doubt that the defendant committed an aggravated battery. The defendant intentionally used a van as a dangerous weapon to inflict force or violence upon K.C. We find no basis for reversing the trial court’s denial of the motion for post-verdict judgment of acquittal. This assignment of error is without merit.

| '¡Sentencing

As previously stated, the defendant appeals his sentence on the grounds that the trial court failed to give sufficient consideration to mitigating factors and that the sentence is excessive. However,- La. C.Cr.P. art. 881.1(E) precludes a defendant from presenting arguments on appeal that were not presented to the trial court. In his motion to reconsider sentence, the defendant prayed only that the sentence be “reconsidered and reduced.” He did not allege the trial court’s failure to consider mitigating factors.

When the defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated to a claim of constitutional excessiveness on appeal. State v. Mims, 619 So.2d 1059 (La. 1993). Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of a manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

|sThe crime of aggravated battery carries a potential sentence of imprisonment with or without hard labor for not more than ten years. La. R.S. 14:34. The defendant received a lenient mid-range sentence of six years at hard labor. The record from trial shows that evidence presented made the trial court aware of the defendant’s age, family history, educational level, prior criminal record, and employment history. However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

The acts of the defendant toward the victim were egregious. The defendant used a motor vehicle as a dangerous weapon to intentionally strike down a pedestrian, who was also a juvenile at the time of the offense. K.C. was dragged over 157 feet by the van. The defendant simply drove away as if he had struck down a stray animal. K.C. sustained serious injuries as a result of the battery. His fractures indicate the great force with which the van struck him. K.C. was further injured by the dragging. Any reasonable person in society should find the defendant’s actions abhorrent.

The defendant could have received a ten year sentence. Instead, he benefitted from a shorter, mid-range sentence. When his crime and punishment are viewed in light of the harm done to society, the six-year hard labor sentence does not shock the sense of justice. The assignments of error related to sentencing are without merit.

^CONCLUSION

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

AFFIRMED.


author: hPEATROSS, J.

text:
    Lesa SEPULVADO, et ux., Plaintiffs-Appellees, v. Spence A. TURNER, et al., Defendants-Appellants.
    No. 37,912-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Ungarino & Eckert by Matthew J. Un-garino, Metairie, for Appellants.
    Byron D. Kitchens, West Monroe & David O’Brian Harkins, Jr., Monroe, for Appellees.
    Before WILLIAMS, GASKINS & PEATROSS, JJ.
   hPEATROSS, J.

This appeal arises from a jury verdict of damages in favor of Plaintiffs, Lesa Sepul-vado and Jessie Sepulvado, individually and on behalf of their minor children, Brittney Sepulvado, Ashley Sepulvado and Cary Sepulvado (collectively “Plaintiffs”), and against Defendants, Spence A. Turner, Time Warner Entertainment Co., L.P. and Travelers Insurance Company (collectively “Defendants”). Defendants now appeal the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

On January 20, 2001, Mr. and Mrs. Sep-ulvado and their three children were involved in a car accident with Mr. Spence A. Turner, who, at the time of the accident, was driving his work vehicle in the course and scope of employment for Time Warner Entertainment. Mr. Turner drove his vehicle into the back of Plaintiffs’ car at the intersection of Warren Drive and Weller-man Road in West Monroe, Louisiana. Plaintiffs’ car was totaled.

Experiencing discomfort from the accident, Mrs. Sepulvado saw Dr. Dan Wie-gand, who recommended treatment and a plan of care for her injuries. In particular, Mrs. Sepulvado was having extreme pain in her lower back. Dr. Wiegand subsequently referred Mrs. Sepulvado to Dr. John Ledbetter because Mrs. Sepulvado’s lower back was not responding to his treatments. Thereafter, Dr. Ledbetter prescribed a plan of treatment for Mrs. Sepulvado. After treating Mrs. Sepulvado from May to December 2001, Dr. Ledbet-ter opined that Mrs. Sepulvado would need ^ongoing treatment periodically, including several sacral iliac joint injections, and a weight loss and exercise plan was prescribed. Despite these treatments, however, Mrs. Sepulvado continued to have pain in her lower back, especially after prolonged sitting, and walking also exacerbated the pain. Mrs. Sepulvado was diagnosed with sacral iliac joint dysfunction, a permanent injury.

Plaintiffs filed a lawsuit against Defendants and Defendants stipulated to their liability, asking that only the issue of damages be presented to the jury. A trial was held on the issue of damages on January 21, 22 and 23, 2003. Mrs. Sepulvado testified as to her injuries and pain. Each family member also testified at trial as to the limitations affecting Mrs. Sepulvado and how those limitations have affected the entire family. Mr. Sepulvado testified as to how the change in Mrs. Sepulvado had resulted in the loss of intimacy between him and his wife. Mr. Sepulvado and the children also testified as to the losses in the lifestyle of the family as a result of the accident. Several of Mrs. Sepulvado’s coworkers testified as to the limitations Mrs. Sepulvado now had at work due to the injuries from her accident. The Sepulva-dos’ pastor testified as to specific examples of Mrs. Sepulvado’s pain that he had observed after the accident.

Dr. Ledbetter testified that Mrs. Sepul-vado will have future fluctuations in pain levels depending on her level of activity. In addition, Dr. Ledbetter testified that Mrs. Sepulvado’s treatments will have to | .-¡continue for a minimum of 10 years, and for possibly as long as 15 years, resulting in. a minimum of $32,000 in future medical expenses.

On the other hand, Dr. Douglas Brown testified for the Defendants that Mrs. Sep-ulvado had arthritis in her joints and that, in his opinion, this was a pre-existing condition. Dr. Brown also testified that her excessive weight alone could have caused this arthritic condition to worsen and that this was the cause of her pain. He indicated that he tested Mrs. Sepulvado and found that she had no spasm, good muscle strength, a negative straight- leg raising test, no disc or nerve involvement and only mild tenderness. - Dr. Brown further testified that Mrs. Sepulvado would not be limited in her activities and he recommended that she lose 50 pounds and become more active.

The entire Sepulvado family testified as to the efforts that Mrs. Sepulvado had taken to lose weight. Mrs. Sepulvado testified that she exercised with free weights, went through the “Body for Life” program, counted calories, walked, drank diet shakes and participated in a low carbohydrate diet. She testified that her dress size went from a size 20 to. a size 16. Dr. Ledbetter testified that he knew that Mrs. Sepulvado was dieting and exercising as he had directed. ■

Mrs. Sepulvado also testified that her daughter Ashley began experiencing headaches shortly after the accident and complained of tightness in her jaw and neck. Ashley testified that she began experiencing pain in her jaw and headaches shortly after the accident and that her jaw would make a popping sound. She told Dr. Wie-gand about her pain a Lcouple of weeks after the accident. Dr. Wiegand testified at trial that he remembered that Ashley told him of these symptoms. Dr. Glenn Hummel, an orthodontist, later testified that he diagnosed Ashley’s symptoms as TMJ syndrome. Based on Ashley’s history and the lack of any previous problems with her jaw, Dr. Hummel testified that the car accident caused Ashley’s TMJ.

At trial, both Dr. Ledbetter and Dr. Wiegand also testified that Mrs. Sepulva-do’s injuries were a result of the accident. Defendants were found to be liable to Plaintiffs for damages in the total amount of $427,395.13 plus legal interest from the date of judicial demand and all costs of the proceedings. Further, Defendants were ordered to pay Plaintiffs’ expert witness fees in the amount of $1,425 for Dr. John Ledbetter and $900 for Dr. Dan Wiegand. Damages were broken down in the following amounts: $344,610.94 for Lesa Sepul-vado; $29,454 for Jesse Sepulvado; $15,883 for Mr. and Mrs. Sepulvado, individually and on behalf of their minor child, Brittney Sepulvado; $23,358.19 for Mr. and Mrs. Sepulvado, individually and on behalf of their minor child, Ashley Sepul-vado; and $14,089 for Mr. and Mrs. Sepul-vado, individually and on behalf of their minor child, Cary Sepulvado.

The damages awarded to Lesa Sepulva-do included $250,000 for past and future pain and suffering, $35,000 for future medical expenses and $35,000 for loss of consortium. Included in the damages awarded to Jessie Sepulvado were $20,000 for loss of consortium. The damages awarded to each child included $7,500 for loss of consortium. Ashley Sepulvado |Rreceived an award of $7,500 for future pain and suffering based on her diagnosis of TMJ syndrome. Following the jury verdict, Defendants filed a motion for new trial or, alternatively, a motion for judgment notwithstanding the verdict. The trial judge denied both motions, finding that the damages were appropriate because the accident was a life-changing event for the whole family. Further, the trial judge found that Mrs. Sepulvado’s injuries were substantial and would affect her the rest of her life. Defendants now appeal, raising the following assignments of error (verbatim):

1. The jury’s award for general damages was excessive and outside the permissible range of awards for general damages for Lesa Sepulvado;
2. The jury’s verdict is patently wrong, as the awards for loss of consortium were excessive and outside the range of reasonable awards for these damages;
3. The jury’s award of $35,000 for future medical expenses for Lesa Sep-ulvado was patently incorrect, as the testimony at trial indicated future medical expenses were no more than $32,000.
4. The jury’s award for Lesa Sepulva-do was manifestly erroneous in that she failed to mitigate her damages and the award should have been reduced; and
5. The jury’s award for Ashley Sepul-vado for TMJ syndrome was patently incorrect as she did not complain to any medical provider of symptoms until over one year after the incident.

DISCUSSION

Damages for Future Pain and Suffering and Loss of Consortium

Defendants first argue that the jury abused its discretion in awarding Mrs. Sepulvado $250,000 in damages for past and future pain and suffering. In addition, Defendants assert in their second assignment of error that the jury abused its discretion in awarding an excessive amount of damages to |fieach Plaintiff for loss of consortium. We are not persuaded by Defendants’ first two arguments.

La. C.C. art. 2324.1 provides:

In the assessment of damages in cases of offenses, quasi offenses and quasi contracts, much discretion must be left to the judge or jury.

The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Morris v. Flores, 36,932 (La.App.2d Cir.3/7/03), 840 So.2d 1257; Hays v. State, 37,229 (La.App.2d Cir.9/24/03), 856 So.2d 64. Only when the record clearly shows that the trier of fact abused its discretion in awarding damages in either direction beyond that which a reasonable trier of fact would assess for the effects of a particular injury on a particular party under the particular circumstances should an appellate court either increase or decrease the award. Youn, supra. An appellate court’s function is not to determine whether a different damage award may have been more appropriate, but whether the trial court’s award is based on justifiable inferences from the evidence and is reasonably supported by the record. Summarell v. Ross, 27,160 (La.App.2d Cir.8/23/95), 660 So.2d 112.

In the case sub judice, the evidence presented at trial established that Mrs. Sepulvado suffered a great deal of pain after the accident. Her injuries were substantial and they will affect her the rest of her life. - In reviewing the record, we find that Mrs. Sepulvado’s injuries have changed |7her life forever. She has to have help to do most tasks at work, even though before the accident she was one of the hardest working employees. She cannot move around like she could before and her range of motion is very limited.

The accident has also changed the family life of the Sepulvados. It was established at trial that, before the accident, the Sepulvados were a unique family, one that spent a great deal of.time together, with Mrs. Sepulvado serving as the anchor of the family.. The record deinonstrated that, since the accident, the family cannot go camping or on nature walks anymore because of Mrs. Sepulvado’s mobility limitations. Mrs. Sepulvado also can no longer attend any of her children’s field trips or extracurricular activities because of her injuries sustained from the accident. In addition, there has been a loss of intimacy between Mr. and Mrs. Sepulvado.

The record before us contains the testimony of not only the Sepulvado family and Mrs. Sepulvado’s co-workers, but also the doctors who treated her. Both Drs. Wie-gand and Ledbetter testified as to Mrs. Sepulvado’s injuries and the resulting pain. The jury heard the entire evidence presented, including the testimony of Defendants’ expert witness Dr. Brown, and found that Plaintiffs’ witnesses were more credible. The particular injuries to Mrs. Sepulvado- in this case caused not only her own physical problems, but also caused her entire family to suffer. We find that the jury, acting- as a reasonable trier of fact and using the particular circumstances of this case, did not abuse its discretion in awarding |s$250,000 in general damages to Mrs. Sepulvado for past and future pain and suffering. Moreover, the jury’s award to each Plaintiff for loss of consortium damages was not excessive. The damages awarded are reasonably supported by the record; and, thus, Defendants’ first two assignments of error are without merit.

Future Medical Expenses

Defendants contend that Dr. Ledbetter testified that $32,000 was his estimate of future medical expenses for Mrs. Sepulva-do; and, therefore, the jury clearly erred in awarding $35,000 to Mrs. Sepulvado and this court should strike or amend this award. Further, Defendants insist that no doctor would inject a patient for ten years and that Dr. Ledbetter’s testimony in that regard was not credible. We do not agree with Defendants’ contentions.

Future medical expenses by their nature' are incapable of precise measurement. La. C.C. art. 1999 provides:

When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages.

A plaintiff has a right to recover for the cost of future medical treatments even when the extent and cost of those treatments cannot be established with certainty. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). As previously stated, the trier of fact has great discretion in awarding damages and this award should not be disturbed in the absence of showing an abuse of that discretion.

Future medical expenses, however, must be established with some degree of certainty. Adams v. Chenault, 36,729 (La.App.2d Cir.1/29/03), 836 So.2d 1193, writs denied, 03-0616, 03-0749 (La.5/9/03), 843 So.2d 398 and 401. Awards for future medical expenses that may or may not be incurred require medical testimony that they are indicated and their probable costs. Kessler v. Southmark Corp., 25,941 (La.App.2d Cir.9/21/94), 643 So.2d 345. The plaintiff must show that, more probable than not, these expenses will be incurred. Morris v. United Services Automobile Ass’n., 32,528 (La.App.2d Cir.2/18/00), 756 So.2d 549.

In the instant case, Dr. Ledbetter testified for Plaintiffs as to his estimation of Mrs. Sepulvado’s future medical expenses necessary to relieve her pain. The jury found Dr. Ledbetter’s testimony to be credible. Defendants had an opportunity to attack his credibility at trial and, apparently, failed to persuade the jury. Further, although the record does establish that Dr. Ledbetter’s estimation of treatments for 10 years would total $32,000, the record also establishes that he testified that Mrs. Sepulvado’s treatments could continue for as long as 15 years. This established that future medical expenses were in the range of $32,000 to $48,000 (at $3,200 per year). In light of this evidence, we find that Mrs. Sepulvado established the amount of future medical expenses with the appropriate degree of certainty and that these expenses more probably than not will be incurred in order to relieve her pain. The award of $35,000 in future medical expenses was within the range of possible future medical expenses. Accordingly, we find that Defendants’ third assignment of error is without merit.

| inMitigation of Damages

Defendants further assert that Mrs. Sepulvado failed to mitigate her damages because she failed to lose 50 pounds as Dr. Brown had recommended. Further, Defendants claim that Mrs. Sepulvado’s weight puts stress on her spine, causing her medical problems; and, thus, the jury’s award of damages should be reduced. We decline to follow Defendants’ assertions.

An injured party has a duty to mitigate his damages. Aisole v. Dean, 574 So.2d 1248 (La.1991). It is a well established principle of law, however, that a tortfeasor takes his victim as he finds him; and, although the damages caused are greater because of the victim’s prior condition, which is aggravated by the tort, the tortfeasor is, nevertheless, responsible for the consequences of his tort. Thames v. Zerangue, 411 So.2d 17 (La.1982). The victim does, indeed, have an affirmative responsibility to make every reasonable effort to mitigate damages, but the care and diligence required of him is the same as that which would be used by a man of ordinary prudence under like circumstances. Aultman v. Rinicker, 416 So.2d 641 (La.App.2d Cir.1982). The victim need not make extraordinary efforts or do what is unreasonable or impractical in his efforts to minimize the damages, but his efforts to minimize them must be reasonable and in accordance with the rules of common sense. Id.

In the case sub judice, Mrs. Sepulvado made every reasonable effort to reduce her weight, especially in light of the fact that her injuries were causing her serious pain. Mrs. Sepulvado followed her diet and participated hfin an exercise program to reduce her weight as she was instructed by Dr. Ledbetter. Her efforts to reduce her weight were reasonable and diligent and considered extraordinary by Dr. Ledbetter, particularly considering her limitations due to her pain. In fact, Mrs. Sepulvado was successful in losing weight and in reducing the stress on her back. We find that Mrs. Sepulvado properly mitigated her damages; and, thus, Defendants’ fourth assignment of error has no merit.

Damages Awarded to Ashley Sepulvado for TMJ Syndrome

Finally, Defendants argue that Ashley Sepulvado should not have received an award for her TMJ syndrome. Defendants contend that it was at least a year after the accident before Ashley made any complaints about her condition; and, consequently, this court should strike the award of $7,500 for Ashley’s future pain. We disagree.

Contrary to Defendants’ assertions, the testimony at trial established that Ashley began experiencing pain in her jaw a few days after the accident and she relayed those complaints to Dr. Wiegand shortly thereafter. Even though the TMJ syndrome was not diagnosed until later, the symptoms were present shortly after the accident and Ashley has suffered from them since that time. We find that there is ample evidence in the record to conclude that the TMJ syndrome was caused by the accident, that Ashley complained of the symptoms shortly after the accident and that her complaints were well documented. Defendants’ final assignment of error is without merit.

I,,CONCLUSION

For the foregoing reasons, the judgment of the trial court following the jury verdict of damages in favor of Plaintiffs, Lesa Sepulvado and Jessie Sepulvado, individually and on behalf of their minor children, Brittney Sepulvado, Ashley Sepulvado and Cary Sepulvado, is affirmed. Costs of this appeal are assessed to Defendants, Spence A. Turner, Time Warner Entertainment Co., L.P. and Travelers Insurance Company.

AFFIRMED.