author: hLOLLEY, J.

text:
    Gary Lynn WALKER, Plaintiff-Appellant v. Angie Barmore WALKER, Defendant-Appellee.
    No. 38,982-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Kitchens, Benton, Kitchens & Black, by Paul E. Kitchens, Minden, for Appellant.
    James Spivey, II, West Monroe, for Ap-pellee.
    Before CARAWAY, DREW and LOLLEY, JJ.
   hLOLLEY, J.

Gary Lynn Walker appeals the judgment of the Third Judicial District Court, Lincoln Parish, Louisiana in favor of Angie Barmore Walker. For the following reasons, the judgment of the trial court is affirmed in part and remanded for further proceedings.

Facts

Gary and Angie Walker were married on August 1,1988. They had two children: Lee in June 1988 and James in January 1996. In September 2003, Gary filed a Petition for Divorce, Custody and Determination of Incidental Matters in the trial court, wherein, among other relief sought, Gary requested to be named the domiciliary parent in the plan of joint custody for both children, with reasonable visitation rights to Angie. A trial was set for December 2003, and an interim judgment was entered allowing Gary temporary custody of Lee and Angie temporary custody of James. The children were ordered to be together on weekends, with the parents alternating physical custody on the weekends. This arrangement was dependent upon Lee’s health — he suffers from a serious heart ailment.

The trial began on December 7, 2003, and continued on January 5, 2004. On account of the time of year, the trial court entered a supplemental interim judgment effective for the time between the trial’s lapse. After the matter was finally concluded, the trial court entered judgment ordering the parents to share joint custody of both Lee and James. As to Lee, the trial court named Gary the domiciliary parent and stated that, during the school year, Lee was to live primarily with his father. As to James, the trial court did not name a domiciliary parent, but determined that Angie would have ^physical custody of James during the school year. Provisions for weekend, summer-time, and holiday visitation were also set forth in the judgment. From that judgment, Gary appeals the determination as it pertains to James only. Angie has not answered Gary’s appeal.

Discussion

On appeal, Gary raises three assignments of error, all of which relate primarily to the physical custody of his and Angie’s younger son, James. As explained, the trial court awarded joint custody of both boys to Gary and Angie, with the primary physical custody of James to Angie, and the primary physical custody of Lee to Gary, who was also named Lee’s domiciliary parent. Gary argues that the separation of James and Lee by the trial court was in error. However, due to the particular and unusual facts of this case, we determine that the trial court did not err in separating the boys for the following reasons.

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Hoskins v. Hoskins, 36-031 (La.App.2d Cir.04/05/02), 814 So.2d 773, citing, Evans v. Lungrin, 97-0541 (La.02/06/98), 708 So.2d 731. In determining the best interest of a child in custody cases, there must be a weighing and balancing of factors favoring or opposing custody in respective competing parents on the basis of evidence presented in each particular case. Hoskins, supra.

The separation of children of a family, though sometimes necessary, is a custodial disposition that courts seek to avoid. Howze v. Howze, 1999-0852 (La.05/26/99), 735 So.2d 619. Normally, the welfare of children is |3best served by leaving them together, so they can have the full benefit of companionship and affection. When feasible, a court should shape its orders to maintain family solidarity. Howze, supra, citing Tiffee v. Tiffee, 254 La. 381, 387-388, 223 So.2d 840, 843 (1969).

A trial court’s assessment of the probative value of evidence is accorded great weight and will not be disturbed absent a clear abuse of discretion. Stephenson v. Stephenson, 37,323 (La.App.2d Cir.05/14/03), 847 So.2d 175; Hodnett v. Hodnett, 36,532 (La.App.2d Cir.09/18/02), 827 So.2d 1205. On appellate review, the determination of the trial court in establishing or modifying custody is entitled to great weight and will not be disturbed absent a clear showing of an abuse of discretion. Ellinwood v. Breaux, 32,730 (La.App.2d Cir.03/01/00), 753 So.2d 977, citing, Thompson v. Thompson, 532 So.2d 101 (La.1988); Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

In this case, the trial court was stuck between the proverbial rock and hard place — -Lee, a teenager, wanted to live with his father, whereas James, a young child, had a “sense of connectedness” with his mother, whom he had always resided with. The trial court’s final decision was more difficult in that James and Lee are fortunate to have two parents who love them and are well suited to care for them. Moreover, the record clearly reflects the bond that James feels with his brother Lee, although Lee is seven and a half years older than James. Finally, we recognize the strong principle that the separation of siblings is not favored in the law.

14Here, Lee, who was 15 years old at the time of the trial, expressed his preference to reside with Gary, and the trial court was completely within its discretion in honoring that preference, which notably is a relevant factor under La. C.C. art. 134. Additionally, Gary demonstrated himself to be a willing, active, and conscientious parent of Lee, especially in light of Lee’s special medical needs. Thus, the trial court did not err in abiding by Lee’s preference and in designating Gary as Lee’s domiciliary parent.

That is not to say, however, that the trial court erred in not giving Gary physical custody of James, as well. Whereas Lee’s preference as to his own best interest was clearly germane considering his age, the trial court need not consider as a factor pertaining to James’ best interest Lee’s particular preference to live primarily with his father. In other words, the preference of Lee to live with his father should not dictate to the trial court what would otherwise be in James’ best interest. Thus, although the strong disapproval of separating siblings exists in the jurisprudence, under the specific facts of this case, i.e., the 7/á years age difference, the preference of Lee to live with his father, and the bond between James and his mother, we cannot necessarily conclude that the trial court erred in separating these particular children from each other. Therefore, we determine that this assignment of error is without merit.

Gary also argues that the trial court erred in failing to articulate the factors listed in La. C.C. art. 134, which states in pertinent part that “[t]he court shall consider all relevant factors in determining. the best interest of the child.” Again, we find that this assignment is ■without merit.

| ^Louisiana C.C. art. 134 states various factors that may be considered in determining a child’s best interest; however, the court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Rogers v. Stockmon, 34,327 (La.App.2d Cir.11/01/00), 780 So.2d 386. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. McIntosh v. McIntosh, 33,908 (La.App.2d Cir.08/31/00), 768 So.2d 219.

Our jurisprudence is clear and extensive that a trial court is not required to mechanically evaluate the article 134 factors considered in determining the best interest of a child. We take that to mean that a literal articulation of the factors considered is unnecessary when a trial court reaches a conclusion regarding a child’s best interest. Although it would certainly be helpful in reviewing a trial court’s disposition pertaining to a child’s best interest, the trial court’s means of weighing and balancing the article 134 factors need not be specifically stated. Thus, Gary’s assignment of error on this issue is without merit.

Finally, Gary maintains that the trial court erred in not naming him specifically as the domiciliary parent of James. Although Angie was not named the domiciliary parent either, she was given primary physical custody |fiof James during the school year, with Gary having alternating weekend visitation. Gary argues that it would be in James’ best interest for Gary to be the domiciliary parent, also noting that although he was not chosen as James’ domiciliary parent, the trial court did not name Angie as primary domiciliary parent of James either.

Mindful that a trial court’s determination regarding a child’s best interest is entitled to great deference, we cannot say that in this case the trial court was manifestly erroneous in not naming Gary as James’ primary domiciliary parent. Although the record shows Gary to be a loving and caring parent of both boys, the record also reflects Angie’s love and dedication to the children. And despite certain perceived weaknesses on behalf of Angie as shown in the record, she also demonstrated efforts to correct those weaknesses, which the trial court noted. Moreover, Angie had positive attributes that counterbalanced the few deficiencies exhibited by Gary. Thus, despite the evident strength of Gary as a parent, Angie was not without her own strengths as a parent, i.e., Gary was not the clearly superior parent in this scenario. So considering, we cannot conclude that the trial court abused its discretion in not naming Gary as James’ domiciliary parent.

However, the trial court’s determination in not naming Gary as James’ domiciliary parent raises the issue of whether the trial court erred in failing to name a domiciliary parent at all. In the case sub judice, the trial court, in its final judgment, stated that it made “no designation at this time of any primary domiciliary parent for James....” Such a move by the trial |7court is clearly within its province, even when a joint custody decree has been entered. Miller v. Miller, 2001-0356 (La.App. 3d Cir.10/31/01), 799 So.2d 753. Louisiana R.S. 9:335(B)(1) states that “[i]n a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.” Here, there was no “implementation order to the contrary” (i.e., a decree of joint custody was entered between Angie and Gary regarding James and Lee); therefore, it was incumbent upon the trial court to show good cause for not naming a primary domiciliary parent of James.

At the conclusion of this trial, the trial court gave oral reasons for judgment, noting the following:

I’m not designating the mother as the primary custodian because I had some very big concerns with your initial poor judgment, moving [your boyfriend] in the house but I do note that you were very frank in all of your answers and very honest in your responses and when you were ordered to have him out of the house, he — he was moved out. But I— I’m not comfortable in awarding you the primary custody. So right now I’m just designated — designating the visitation this way. I do find that you had done the primary childcare with James and that you have a closer bond with him and at his young age I’m loathe to upset that on the stability and I looked at the psychological. In the areas both of you, as I said, are — appear to be very good parents. In the areas that — that there were some question marks on, those are the areas that Mr. Walker appeared to be — do | ^better than you; however, there’s some questions as to some of the reliability of that.

Thus, although James was to live primarily with Angie during the school year, the trial court was not “comfortable” in naming her James’ domiciliary parent due to Angie’s “initial poor judgment.” The trial court further indicated that the disposition was temporary, noting that for “right now” the visitation would be so set. However, such an open-ended conclusion does not meet the standard of “good cause” needed to support a decision not to name a domiciliary parent for James and only invites future litigation on the part of the Walkers. This is not to say that the trial court necessarily must name a domiciliary parent for James; however, a determination not to make such a designation must be supported by good cause greater than the trial court’s comfort level so as to give some finality and stability to this family. Therefore, we- remand the case to the trial court to either show good cause for not naming a domiciliary parent for James as required by La. R.S. 9:335(B)(1) or, in the absence of such good cause, for the trial court to name either Angie or Gary as James’ domiciliary parent.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed in part and remanded to the trial court with instructions pursuant to La. R.S. 9:335(B)(1). Costs of this appeal are assessed to Gary Walker.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

      . A domiciliary parent generally has authority to make decisions affecting the child, unless the implementation order states otherwise. La. R.S. 9:335(B)(3); Rogers, supra. Otherwise, "[i]f a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.” La. R.S. 9:335(C).

      . Although the statute does not define "good cause,” in Miller, supra, the trial court likewise ordered joint custody of the children and did not name a domiciliary parent. The Miller court recognized the discretion of a trial court not to name a child's domiciliary parent. However, the Miller court reversed that trial court’s decision not naming a domiciliary parent, noting that the Millers were unable to agree on any important decisions regarding their children. Id. at 9, 799 So.2d at 759. Such implies that regarding important decisions affecting a child, an ability to communicate easily and well between the parents might be deemed "good cause” for not naming a domiciliary parent.


source: Caselaw Access Project

author: hPEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Russell L. JONES, Appellant.
    No. 38,579-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    Rehearing Denied Sept. 16, 2004.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Paul J. Carmouche, District Attorney, Edwin L. Blewer, III, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS & PEATROSS, JJ.
   hPEATROSS, J.

Defendant, Russell L. Jones, was charged with simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2. He waived his right to a jury trial and was tried by the court. Defendant was convicted as charged. Subsequently, Defendant was adjudicated a fourth-felony habitual offender and sentenced to 30 years at hard labor, without benefit of probation or suspension of sentence. He was ordered to serve the sentence consecutively with any other sentence and he was given credit for time served. Defendant now appeals his conviction. For the reasons stated herein, we affirm.

FACTS

On September 1, 1998, Cultures, a clothing store on Greenwood Road in Shreveport, Louisiana, was burglarized. The owner of the store, Sybil Fox, was using the store as her residence at the time oi the burglary. Ms. Fox was alerted to the burglary in progress when she heard the security alarm for the building. Upon entering the front part of the store, Ms. Fox noticed broken glass and observed a bald black male reaching inside her store from the outside, pulling clothes from the wall near the windows. After pulling out the clothes, the black male, later identified by Ms. Fox as the Defendant, jumped into a get-away vehicle with the clothes. Ms. Fox later testified at trial that she got a good look at the vehicle, its occupants and its license plate. After the vehicle took off, Ms. Fox alerted the police.

Subsequently, Officer Steve Robinson of the Shreveport Police Department stopped the vehicle a short distance from the store. A black male ran from the vehicle when it came to a stop. At trial, Officer Robinson identified the black male as fitting the description of Defendant as described |aby Ms. Fox. A woman, later identified as Carol Myers, was driving the getaway vehicle and was arrested before she could escape. Upon searching the vehicle’s trunk, Officer Robinson found the clothes taken from the store.

Ms. Myers pled guilty and testified against Defendant at trial. She provided Detective Dennis Pratt of the Shreveport Police Department with the name of Defendant as the person with her in the vehicle and picked him out of a photographic lineup. Thereafter, Defendant was arrested and questioned. Detective Pratt obtained a voluntary statement from Defendant in which he admitted to breaking a front window of the store with a pipe and grabbing several shirts from the store.

Although Ms. Myers testified at trial against Defendant, at the end of the trial, Defendant entered into evidence an affidavit signed by Ms. Myers recanting her testimony. Ms. Myers explained in her testimony that Defendant’s brother had contacted her and informed her that Defendant would be facing 20 years in prison if she did not recant her testimony and swear in the affidavit that what she told the police was false and that Defendant was not involved in the crime. She further explained to the court that she wrote in the affidavit basically what Defendant’s brother told her to write in it.

Defendant also testified at trial and denied that he was involved in the burglary. He denied he was with Ms. Myers on the day of the burglary and denied all her statements about his involvement in the burglary.

As previously stated, Defendant was charged with simple burglary of an inhabited dwelling and he was convicted by the trial court as charged. [..¡Defendant filed motions for a new trial and a post verdict judgment of acquittal, all of which were denied. Defendant now appeals, raising the following assignments of error (verbatim)

1. The State failed to disclose a written plea agreement it negotiated with co-Defendant who testified on behalf of the State which violated Defendant’s due process;
2. The State failed to show that Sybil Fox was authorized to use her business as a habitation in view of the express laws and ordinances of City of Shreveport and the State of Louisiana; and,
3. The evidence was legally insufficient to sustain Defendant’s conviction.

DISCUSSION

Sufficiency of the Evidence

In his final assignment of error, Defendant argues that the evidence used against him at trial was insufficient to support his conviction. We do not agree.

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); 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. 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.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442; State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a fact finder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the State to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.

La. R.S. 14:62.2 provides, in pertinent part:

Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.

IfiTo convict a defendant of simple burglary of an inhabited dwelling, the State is required to prove that he entered an inhabited dwelling with the intent to commit a felony or theft therein. A defendant’s intent to commit burglary of an inhabited dwelling may be inferred from circumstances surrounding the commission of the offense. See State v. Black, 627 So.2d 741 (La.App. 2d Cir.1993); State v. Pike, 426 So.2d 1329 (La.1983).

In the case sub judice, the State proved that Defendant entered the dwelling inhabited by Ms. Fox with the intent to commit a theft therein. At trial, it was shown that the store was an inhabited dwelling because Ms. Fox lived there. Defendant entered the store when he broke the glass and put his arm through the store window. After the police informed Defendant of his Miranda rights, he admitted to breaking the store window and to grabbing several shirts. Defendant’s actions and statements in these circumstances infer his intent to commit a theft when he entered the store.

Further, the State properly carried its burden of negating any reasonable probability of misidentifying Defendant as the person who broke the store window and removed the clothes from the store. Ms. Fox identified Defendant as the person she saw removing the clothes from her store and Officer Robinson observed the person running from the get-away vehicle as meeting the description of Defendant. Moreover, Defendant freely admitted that he committed the crime. The trial judge evidently found that Ms. Myers testimony at trial and her statements to police about Defendant’s involvement in the crime were more credible than her attempted recantation in the affidavit that Defendant’s brother told her to [ fiwrite. We give great deference to the trial judge’s decision to accept the testimony of Ms. Myers over her recantation. After reviewing the evidence in the light most favorable to the prosecution, we find that the trial judge could reasonably conclude that all of the elements of Defendant’s simple burglary of Ms. Fox’s inhabited dwelling have been proved beyond a reasonable doubt. This assignment of error is without merit.

Plea Agreement with Co-Defendant

Defendant asserts that the State failed to disclose to him that a plea agreement had been made with Ms. Myers wherein she would receive leniency in her sentence in exchange for her testimony against Defendant. According to Defendant, this failure to disclose violates his due process rights. We do not agree.

Due process requires the disclosure of evidence that is both favorable to the accused and material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Bailey, 367 So.2d 368 (La.1979). There is no distinction between exculpatory evidence and impeachment evidence; and, in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Supreme Court extended the Brady rule to cases in which any evidence adversely affecting the credibility of government witnesses is withheld from the defense. The prosecution’s duty to disclose exculpatory evidence applies whether there has been a specific or a general request for discovery, as well as when there has been no request at all. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Where such information is not |7disclosed and it is material in the sense that its suppression undermines confidence in the outcome of the trial, then constitutional error occurs and the conviction must be reversed. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio, supra. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Bagley, supra. For purposes of Brady’s due process rule, a reviewing court, in determining materiality of evidence, must also ascertain “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Further, the defendant must show that “disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable.” State v. Marshall, 94-0461 (La.9/5/95), 660 So.2d 819.

In the instant case, Defendant makes allegations that Ms. Myers was coerced and forced into testifying against him. We find that these allegations are based on mere speculation and conjecture. Two witnesses testified at trial against Defendant, implicating him in the crime. He voluntarily confessed to the police that he committed the crime. Defendant has not shown how, had the evidence been disclosed to the defense, the result of the proceeding would have been different. He has not shown how disclosure of the plea agreement would have made a different result | ¿reasonably probable. Defendant has also not shown how, in the absence of the plea agreement evidence, he did not receive a fair trial. He took full advantage of the opportunity to cross examine Ms. Myers at trial and to try to impeach her credibility. Simply put, Defendant has not shown how the absence of knowing about the plea agreement undermines confidence in the outcome of his trial.

After thoroughly reviewing the record, we conclude that the evidence presented at trial was so compelling that it indicates that the guilty verdict in this case was correct and unattributable to the failure of the State to provide Defendant with the plea agreement. Defendant was not prejudiced by this error and the error was harmless under the facts of this case. Under prevailing United States Supreme Court and Louisiana Supreme Court jurisprudence, the inquiry for harmless error “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94; State v.Code, 627 So.2d 1373 (La.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994). See also La. C. Cr. P. art. 921. Since Defendant has not shown to this court how knowledge of the plea agreement would have made the result of the trial any different or even how the absence of this evidence prevented him from receiving a fair trial, this assignment of error is without merit.

Is Use of Store as Habitation

Defendant argues that, because Ms. Fox could not use her store as her habitation since it violated local and state law, then he could not be convicted of simple burglary of an inhabited dwelling. We find no merit to Defendant’s argument. Whether or not Ms. Fox violated the civil law in inhabiting her store is irrelevant. The fact is Ms. Fox testified at trial that she was living in the back of her store and it was proven that Defendant committed a simple burglary of this structure. As previously noted, for purposes of proving guilt of the crime of simple burglary of an inhabited dwelling, La. R.S. 14:62.2 provides that an inhabited home includes any “inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons.” (Emphasis added.) Since Ms. Fox lived in her store, it meets this definition of an inhabited dwelling; and, therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction of Defendant, Russell L. Jones, is affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.

      . Defendant filed his own brief, along with the brief filed by the Louisiana Appellate Project. The first two assignments of error are listed in Defendant’s brief and the last assignment of error is listed in the Louisiana Appellate Project’s brief.


author: JjLOLLEY, J.

text:
    Elizabeth P. DAVIS, Plaintiff-Appellant v. Terry COUNTS, et al., Defendants-Appellees.
    No. 38,815-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Sheva M. Sims, Shreveport, for Appellant.
    Casten & Pearce by Layne A. Clark, Jr., Shreveport, for Appellees.
    Before GASKINS, DREW and LOLLEY, JJ.
   JjLOLLEY, J.

Elizabeth P. Davis (“Davis”) appeals the trial court’s judgment granting the motion for partial summary judgment filed by State Farm Mutual Automobile Insurance Company (“State Farm”), dismissing Davis’ claims against it. For the reasons set forth below, we affirm the judgment of the trial court.

Facts

This suit arises out of a December 2002 automobile accident that occurred on the eastbound Spring Street exit ramp off of U.S. Interstate 20 in Shreveport, Louisiana. Davis was traveling east on the exit ramp when she came upon a vehicle driven by Terry Counts (“Counts”) traveling the wrong direction on the exit ramp. The two vehicles collided causing Davis serious injuries.

Davis subsequently filed suit against Counts, her husband, and their insurer, State Farm, seeking general, special and punitive damages. As her basis for seeking punitive damages, Davis alleged that Counts was under the influence of alcohol and/or another intoxicating substance.

The Counts were insured under a liability policy issued by State Farm (the “policy”) which provides under Section I, Liability, Coverage A that it would:

1. pay damages which an insured becomes legally liable to pay because of:
a. bodily injury to others, and
b. damage to or destruction of property including loss of its use,
caused by accident resulting from the ownership, maintenance or use of your car; and
la2. defend any suit against an insured for such damages with attorneys hired and paid by us. Our duty to defend ends after we have exhausted, by payment of judgments or settlements, the applicable limit of our liability for the accident which is the basis of the lawsuit.

(Emphasis original). The declarations page sets the amount of bodily injury liability coverage available under the policy as $10,000.00 for each person and $20,000.00 for each accident. The policy also provides that in addition to the limits of liability State Farm would pay the following: (1) court costs of any suit for damages which it defends, and (2) interest on the damages owed by the insured due to a judgment and which accrues before the judgment until such time as State Farm pays the amount due under the coverage, but only on that part of the judgment for which State Farm is responsible.

During the course of the trial court litigation, the parties filed a stipulation into the record that Counts was solely at fault in causing the December 2002 accident. By order of the trial court, State Farm was allowed to deposit $10,524.70 into the registry of the court allegedly representing the full amount of its policy limits, plus interest and court costs. Davis subsequently requested that the trial court allow her to withdraw the sums deposited in the registry of the court, and an order was signed allowing her to do so.

State Farm filed a motion for partial summary judgment seeking dismissal of Davis’ claims against it on the basis that its liability as insurer had been exhausted by its tender of the policy limits, interest, and court costs. Davis filed her own motion seeking summary judgment on the issue |sof her entitlement to recover punitive damages from Counts, her husband, and State Farm on the basis of Counts’ intoxication being a cause in fact of the accident. The motions came for hearing before the trial court, and, after hearing arguments, the trial court granted State Farm’s motion for summary judgment and denied Davis’. The trial court added that the granting of State Farm’s motion for summary judgment did not relieve it of its duty to defend Counts and her husband. A judgment to this effect was rendered and signed, from which the instant appeal ensues.

Discussion

On appeal, Davis maintains that the trial court erred in dismissing her claim against State Farm for exemplary and punitive damages. Specifically, she argues that Louisiana jurisprudence supports holding an insurer liable for exemplary damages attributable to the conduct of its insured. Moreover, Davis urges that because State Farm failed specifically to exclude exemplary damages from the coverage provided in its policy, it can be found liable for such damages in excess of its policy limits. For the following reasons, we consider this assignment of error to be without merit.

In the absence of a conflict with statutes or public policy, insurers have the same rights as individuals to limit their liability and enforce whatever conditions they impose upon their obligations. Lemoine v. Illinois Nat. Ins. Co., 38,237 (La.App.2d Cir.03/12/04), 868 So.2d 304, citing Cadwallader v. Allstate Ins. Co., 2002-1637 (La.06/27/03), 848 So.2d 577; Marcus v. Hanover Ins. Co., 98-2040 (La.06/04/99), 740 So.2d 603. It is the particular insurance policy of the insured that establishes the limits of pliability, and it is well established that this contract of insurance is the law between the parties. Marcus, supra; Pareti v. Sentry Indem. Co., 536 So.2d 417 (La.1988); Cole-Gill v. Moore, 37-976 (La.App.2d Cir.12/19/03), 862 So.2d 1197, writs denied, 2004-0446 (La.04/30/04), 872 So.2d 501, 2004-0657 (La.04/30/04), 872 So.2d 502.

Here, the policy clearly reflects State Farm’s intent to limit its liability for bodily injury caused by its insured to $10,000.00 per person injured and a maximum of $20,000.00 per accident. Absent a showing that this limitation on its liability conflicts with either statutory law or public policy, State Farm’s tender of its policy limits entitled it to a partial summary judgment dismissing it as a defendant from Davis’ suit.

Davis fails to point to any statutory law or public policy which would prohibit the policy limits applicable in this particular case. And whereas Davis cites various cases she argues support the assertion that an insurer can be held liable for exemplary damages over and above the limits set forth in its policy, we find without exception that these cases do not stand for the proposition suggested by Davis. Thus, there is no jurisprudential support for Davis’ position that State Farm would be liable beyond its stated policy limits.

State Farm does not dispute that exemplary damages possibly would be payable under the policy if its limits had not already been exhausted. However, Davis, despite her arguments to the contrary, has presented no legal support to hold State Farm liable for damages, exemplary or otherwise, over and above its stated policy limits. Moreover, forcing an insurer to pay | ^punitive damages over and above its policy limits is illogical considering that the purposes of punitive damages are to punish defendants for their egregious behavior and deter similar conduct. See, Ross v. Conoco, Inc., 2002-0299 (La.10/15/02), 828 So.2d 546.

And while Davis repeatedly makes the assertion that she is entitled to exemplary damages, we need not address that issue in the present appeal. The judgment appealed does not preclude such an award so long as State Farm is not the defendant cast in judgment. The granting of State Farm’s motion for summary judgment (and the denial of Davis’ cross motion for summary judgment) is not the equivalent of a finding that she is not entitled to exemplary damages at all, but only that as a matter of law, State Farm is not liable to Davis for any amount in excess of its policy limits.

Conclusion

The judgment of the trial court granting State Farm’s motion for partial summary judgment is affirmed. The costs of this appeal are assessed to Elizabeth Davis.

AFFIRMED.


author: [t CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Roger David NEW, Sr., Appellant.
    Nos. 38,770-KA, 38,771-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
    Robert W. Levy, District Attorney, John L. Sheehan, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   [t CARAWAY, J.

In these consolidated proceedings, defendant entered two no contest pleas to charges of sexual battery, a violation of La. R.S. 14:43.1, and distribution of Schedule IV Controlled Dangerous Substance, a violation of La. R.S. 40:969. The trial court sentenced defendant to five years at hard labor without benefits for sexual battery and fifteen years at hard labor for distribution of a CDS, ten years of which was suspended, and a portion of which was to be served without benefits. After a hearing on defendant’s motion to reconsider sentence which was denied by the trial court, defendant appealed his sentence. Although we affirm the convictions, we find error in the sentencing of defendant, reverse the sentences and remand.

Facts and Procedural History

The defendant was initially charged under a bill of information which provided as follows:

Roger David New, Sr. committed the offense of distribution of Schedule IV controlled dangerous substance, as set forth in R.S. 40:969, in that he/she did knowingly and intentionally distribute a Schedule IV, non-narcotic controlled Dangerous Substance, to — wit: Tema-zepam, ...

He was later charged under a separate bill of information with the crime of sexual battery.

The matters of record show that the victim, C.M., was seventeen years old at the time of the offense. The defendant, Roger David New, Sr., was fifty-two years old. C.M. was a friend of New’s children. On the day before the incident, C.M. accompanied New to Monroe in his truck to look for wallpaper in connection with a remodeling project they were both working on. They | ¿returned together and went to New’s house in Farmerville. The defendant put a mattress down on the living room floor for C.M. to sleep on. New admitted that he offered C.M. one of his prescription sleeping pills, which she took. C.M. told the police that she went to sleep at the defendant’s house at about 1:00 a.m. and woke up when she felt the defendant sexually assaulting her. Nevertheless, out of fear, she acted as though she was still sleeping. Once the defendant fell asleep, C.M. left his house and went to the defendant’s ex-wife’s house next door and reported the crime. The record reflects that fluid samples taken from the victim tested positive for New’s DNA. The substance of the pill that New gave C.M. was determined to contain Temazepam, a Schedule IV CDS.

On April 22, 2003, New entered no contest pleas to both charges. At that hearing, the trial court advised New that he was charged with distribution of a CDS and subject to a sentence exposure of ten years and a maximum fine of $15,000. He was advised that the second charge of sexual battery involved a sentence exposure of not more than ten years and compliance with the Sex Offender Registration Law.

In the descriptions of the crimes to the court at the Boykin hearing, the assistant district attorney (ADA) stated:

The — Schedule IV was one pill, it was a sleeping pill that he administered to this young lady and thereafter had the sexual battery contact with her.

Later, in the ADA’s description of the crimes and the lab rape kit test, the following exchange occurred:

ADA: ... The analysis came back showing Mr. New’s DNA was present in her and on her clothes.
|STHE COURT: All right, in an area that would fit the sexual battery charge? ADA: Yes, Your Honor.

Finally, the crucial plea exchange between the defendant and the court was as follows:

Q. How do you plead to the charge of Distribution of Schedule IV controlled dangerous substance?
A. No Contest.

The sentencing hearing occurred six weeks later. The trial court imposed the following sentences:

... On the Sexual Battery, five years at hard labor without benefit of probation, parole or suspension of sentence. On the Distribution of Schedule IV, fifteen years at hard labor, ten years of that is suspended. The first — the five years of that, two years of it is without benefit of parole, probation or suspension of sentence. So that’s a ten year hard labor sentence. Your probation is to begin upon your release from incarceration and you’ll be on parole for five years....

In this appeal, New argues, inter alia, that the trial court improperly imposed sentence under La. R.S. 40:969(D) instead of La. R.S. 40:969(B)(2), and that the sentences should have been imposed concurrently instead of consecutively.

Discussion

A thorough review of La. R.S. 40:969 shows that there are listed different crimes and sentences depending upon the defendant’s actions with the CDS. The confusion in this case comes from the distinctions between the separate crimes described in Subsections A and D as revealed in the following pertinent provisions of the statute:

|4A. Manufacture; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule IV;
B. Penalties for violation of Subsection A. Any person who violates Subsection A with respect to
(2) Any other controlled dangerous substance classified in Schedule IV, except flunitrazepam, shall be sentenced to a term of imprisonment at hard labor for not more than ten years; and in addition, may be sentenced to pay a fine of not more than fifteen thousand dollars.
C. Possession....
D. Whoever, with the intent to commit a crime of violence as defined in R.S. 14:2(13)(j) against an individual, violates Subsection A of this Section by administering a controlled dangerous substance to a person who is unaware that the controlled dangerous substance has been or is being administered to him, shall be sentenced to a term of imprisonment at hard labor for not less than five years nor more than forty years and may be fined not more than one hundred thousand dollars.

Although the bold captions for the subsections indicate only the crimes of distribution and possession, Subsection D is itself a clearly separate crime. From these provisions the distribution crime of Subsection A is changed and enhanced by Subsection D if the state proves that two additional elements of criminal conduct occurred. First, the state must show that “a crime of violence as defined in La. R.S. 14:2(13)(j)” was intended. Secondly, the element of distribution is changed to require an administration of the CDS to a person who is unaware that the CDS is being administered.

| sThe only crime of violence which is listed in La. R.S. 14:2(13)(j) is the crime of forcible rape. While the Criminal Code’s listing of crimes of violence under Article 2(13) includes the crime of sexual battery in Subsection (l), that crime is not the particular crime of violence enumerated in Subsection D of the Schedule IV CDS statute now in dispute. New’s no contest plea was for sexual battery and not forcible rape, and there was no statement that a rape of the victim actually occurred or was intended during the rendition of the factual basis for the crimes at the Boykin hearing.

Additionally, we also find the State’s articulation of the drug crime in the bill of information and during the plea colloquy to be deficient concerning the element of New’s administration of the sleeping pill to the victim while she was unaware that she was receiving such a CDS. The proof of that element in an actual trial admittedly would involve a factual interpretation of the extent of a victim’s awareness. Nevertheless, in this plea setting, where the crime of distribution of Subsection A is redefined in Subsection D, the record should reflect that the enhanced crime is clearly described as the crime for which the plea is given. Instead, the ADA and the trial court referred to the crime during the hearing as a distribution drug crime and not the surreptitious administration crime of Subsection D.

Finally, in a direct reference to the distribution crime, the trial court advised New at the hearing that the lesser ten-year penalty of Subsection B(2) would apply to the crime to which he pled. This statement of the sentence exposure was not corrected by the State. Accordingly, the defendant’s plea cannot be viewed as a plea to the crime with enhanced punishment under | (¡Subsection D, and the sentence imposed by the trial court for the drug crime must be reversed.

New’s other assignment of error pertaining to the sentence is that the trial court erred in failing to follow the dictates of La. C. Cr. P. art. 883 for the imposition of consecutive sentences. This court has interpreted Article 883 to require that particular justification from the evidence of record be given by the trial court for a judgment directing a consecutive sentence for crimes arising from a single course of conduct. State v. Mack, 37,174 (La.App.2d Cir.6/27/03), 850 So.2d 1035, writ denied, 03-2122 (La.1/16/04), 864 So.2d 628.

We first note in this case that the trial court’s pronouncement of the sentence quoted above did not specifically state that the sentences were to be served consecutively. We also find that the subject crimes did constitute part of a common scheme or plan, requiring the court’s particular justification for consecutive sentences. Therefore, in view of our ruling regarding the sentencing error for the drug crime and the relationship of both crimes, we reverse the sentences for both convictions and remand for resentencing.

Conclusion

The appellant’s convictions on both offenses are affirmed. The sentences for those convictions are reversed and the case is remanded for resentencing consistent with this opinion.

CONVICTIONS AFFIRMED; SENTENCES REVERSED; REMANDED.

      . La. C. Cr. P. art. 883 provides, in pertinent part: If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting 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.


author: _|jCARAWAY, J.

text:
    Louis JAMES and Barbara James, Individually and as Husband and Wife, Plaintiffs-Appellants v. Jimbo Ivory ROBINSON and Allstate Insurance Company, Defendants-Appellees.
    No. 38,774-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Law Offices of Jack M. Bailey, Jr., by J. Allen Cooper, Jr., for Appellants.

      S. Curtis Mitchell, for Appellees.
    Before BROWN, CARAWAY and MOORE, JJ.
   _|jCARAWAY, J.

The plaintiffs’ car was hit when the defendant’s vehicle rolled backwards as he attempted to put his car in drive after a train cleared a railroad crossing. Although the trial court found defendant totally at fault in causing the accident, the plaintiffs appeal the favorable trial court judgment claiming that the trial court committed legal error and awarded them inadequate damages. Finding neither legal nor manifest error in the judgment, we affirm.

Facts

The defendant, Jimbo Ivory Robinson, stopped his automobile in front of the car of Barbara and Louis James waiting at a train crossing in Bossier City. Robinson testified that when he attempted to place his car in drive after the train cleared the crossing, his car rolled backwards instead, striking the plaintiffs’ Lincoln Town Car. The plaintiffs described the accident as having occurred when Robinson’s vehicle “began backing up” and hit their car.

Plaintiffs expressed no need for immediate medical attention at the time of the incident. However, they both experienced pain the next day and reported to a Bossier City hospital emergency room for medical examinations. Mrs. James complained of back and neck pain. Mr. James complained of right knee, neck and lower back pain. Each of their x-ray diagnostic tests were normal. Both plaintiffs were prescribed pain medication and instructed to return if their symptoms worsened.

| ¡¡¡Claiming that the pain medication failed to relieve their symptoms, Mr. and Mrs. James sought further treatment three weeks later from a chiropractor, Dr. Kenneth Wojcik, who saw them four times in one week. By the time of his last visit with Dr. Wojcik, Mr. James’ complaints had resolved. Mrs. James did not experience complete relief of her symptoms until a month later.

The Jameses also had their damaged car appraised. The appraisal reflected $745.15 worth of damage to the vehicle, which had over 174,000 miles.

The Jameses instituted suit against Robinson and his automobile insurer for damages from the accident. At the bench trial, plaintiffs presented their appraiser’s expert testimony that an impact damaged their car. Dr. Wojcik also testified that the June 25th collision probably caused both Mr. and Mrs. James’ soft tissue injuries. Mr. James testified that at the time of the accident, Mr. Robinson “must have thought he had his car in drive and he had it in reverse and shot back and hit me.” Mr. and Mrs. James both claimed that after the collision, they saw fluids leaking from their car. They stated that although the car’s bumper was not bent, it was slightly ajar, and an air deflector hung down underneath it. At trial, Jimbo Robinson maintained that his car merely “bumped” the plaintiffs’ vehicle.

After hearing evidence regarding the property damage and injuries, the trial court found Robinson to be completely at fault in causing the accident and awarded plaintiffs $745.15 in property damage, $1630.00 for Uthe medical expenses they incurred at Willis-Knighton only and $1,000.00 general damages. This appeal ensued.

Discussion

On appeal, the plaintiffs contend that the trial court erroneously utilized the degree of impact as the sole or determinative factor in assessing the extent of damages they suffered and failed to apply the legal presumption that a medical condition producing disability results from an accident when the victim is otherwise in good health prior to the accident. Plaintiffs also argue that the trial court erred in finding that their injuries did not extend beyond their emergency room visits, thereby denying their claim for chiropractic expenses and the expert witness fee of Dr. Wojcik and in awarding inadequate general damages.

An appellate court will not set aside the trial court’s finding of fact in the absence of manifest error or unless it is plainly wrong. Lewis v. State, Through Dept. of Transp. and Development, 94-2370 (La.4/21/95), 654 So.2d 311. Reversal is warranted only if the appellate court finds (1) a reasonable factual basis for the district court’s finding does not exist in the record, and (2) the finding is clearly wrong on the record. Mart v. Hill, 505 So.2d 1120 (La.1987). Reasonableness is the standard; reasonable determinations and inferences cannot be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The great discretion accorded the trial court is grounded in that court’s superior capacity to assess the credibility of the witnesses because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the | ¿listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The weight afforded a treating physician’s testimony is largely dependent upon the facts upon which his opinion is based. Freeman v. Rew, 557 So.2d 748 (La.App. 2d Cir.1990), writ denied, 563 So.2d 1154 (La.1990). A claimant’s lack of credibility on factual issues can serve to dimmish the veracity of her complaints to a physician. Perow v. Lenzly, 30,833 (La.App.2d Cir.8/19/98), 716 So.2d 519; Davis v. Sonnier, 96-515 (La.App. 3d Cir.11/6/96), 682 So.2d 910. Likewise, the effect and weight to be given to expert testimony rests within the broad discretion of the trier of fact. Such credibility determinations, including the evaluation and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact which should not be disturbed on appeal absent manifest error. Williams v. State Farm Mut. Auto. Ins. Co., 36,439 (La.App.2d Cir.10/23/02), 830 So.2d 379.

In evaluating the evidence, the trier of fact should accept as true the uncon-tradicted testimony of a witness, even though the witness is a party, where the record indicates no sound reason for its rejection. Robertson v. Scanio Produce and Institutional Foods, Inc., 449 So.2d 459 (La.1984); Aycock v. City of Shreveport, 535 So.2d 1006 (La.App. 2d Cir.1988), writ denied, 536 So.2d 1223 (La.1989). One sound reason for rejection is where circumstances cast suspicion or doubt on the reliability of the testimony. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Aycock v. City of Shreveport, supra.

|fiIn a personal injury action, the plaintiff bears the burden of proving a causal relationship between the accident and any alleged injuries. Williams v. State Farm Mut. Auto. Ins. Co., supra. Whether the accident caused the plaintiffs injuries is a factual question which should not be reversed on appeal absent manifest error. Id. Consideration of force-of-impact testimony is a relevant factor in determining causation or the extent of injuries, although not as the sole or determinative factor. Currie v. Myers, 32,633 (La.App.2d Cir.1/26/00), 750 So.2d 388, writ not considered, 00-0665 (La.3/17/00), 756 So.2d 316; Harper v. Garcia, 32,142 (La.App.2d Cir.8/18/99), 739 So.2d 996; Brown v. Trinity Universal Ins. Co., 01-1405 (La.App. 3rd Cir.4/3/02), 814 So.2d 747, writ denied, 02-1689 (La.10/14/02), 827 So.2d 422.

The plaintiffs’ argument that the trial court misused the force-of-impact testimony masks the conflict in the parties’ versions of that testimony and the important credibility issue which the trial court faced. In its oral reasons for judgment, the trial court first emphasized that there were “broad” differences between the parties’ descriptions of the impact. Mr. James described the location of his vehicle as being a car length and a half behind Robinson’s Chevrolet sedan. He stated that Robinson’s car “shot” back and hit his Lincoln. To the contrary, Robinson testified that his car could not have been more than a foot and one-half in front of the plaintiffs’ car and that it only rolled back, causing a slight bump. The fact that neither car’s bumper was bent means that Robinson’s version of the impact is not contrary to the physical evidence. The trial court’s choice of Robinson’s | ^testimony over the plaintiffs’ could therefore leave the plaintiffs, in the eyes of the trier-of-fact, with a “broad” credibility problem.

The court’s next conclusion, that each plaintiffs “injury was not sufficient to justify really much of anything,” can rest in large measure upon that same credibility problem. The plaintiffs reported only subjective symptoms of pain to the physician who examined them the day after the accident. Their complaints of soft tissue injuries three weeks later to the chiropractor were rejected by the trial court, which refused to permit recovery of the expenses for those services. If the record gave no indication of the credibility issue noted above, and the plaintiffs’ injuries were initially manifested by more objective symptoms, only then might we conclude that the trial court was manifestly erroneous for rejecting those expenses and downplaying the plaintiffs’ general damages. However, this record does not allow these credibility and fact-based conclusions to be overturned.

Finally, we reject the plaintiffs’ claim for the additional car rental expense for loss of use to repair their vehicle. The court awarded the amount of the appraised damages but not the cost of vehicle rental for three 17days during the car repair as reported by the plaintiffs. The vehicle was not incapacitated as a result of the acei-dent, the damage was minimal, and the court’s choice of an award for one day’s rental for repairs is not error.

Conclusion

Finding no abuse of discretion in the trial court’s award, we affirm the judgment at appellants’ costs.

AFFIRMED.

      . It should not be overlooked that the trial court did, in fact, award general damages which, if considered too low, must be shown to be an abuse of discretion under Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). In comparable minor accident cases, the trial courts have frequently awarded general damages at the level of those awarded in the present case. See Bass v. Allstate Ins. Co., 32,652 (La.App.2d Cir. 1/26/00), 750 So.2d 460 (where Bass vehicle was struck by Ford Bronco going 5-10 m.p.h. — Bass and children received $250 each where injuries resolved in one week); Caldwell v. Smith, 25,956 (La.App.2d Cir.8/17/94), 641 So.2d 1011 (where plaintiff received minor injuries, did not go to doctor, and received $500.00 general damages); George v. Allstate Ins. Co., 32,899 (La.App.2d Cir.4/5/00), 758 So.2d 373 (where mother received $550 general damages for minor neck and back injuries treated for five weeks; children had cervical strains and were treated for one week — each awarded $435); Aaron v. Bolds, 566 So.2d 195 (La.App. 2d Cir.1990) (where plaintiff, diagnosed with cervical strain and treated for six weeks, received $250); Brimer v. Copeland, 604 So.2d 1388 (La.App. 2d Cir.1992) (where plaintiff underwent treatment for six months and was awarded $1,000); Gongora v. Snay, 626 So.2d 759 (La.App. 5th Cir.1993), writ denied, 93-2912 (La.1/28/94), 630 So.2d 795 (rear-end collision where two plaintiffs suffered injuries to low backs and necks and were treated the day of the accident at the ER. Jury gave them amounts spent at ER and nothing else. Court granted JNOV and gave them $500 each in damages).


author: | .PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Glenn E. HOWARD, Appellant.
    Nos. 38,787-KA, 38,788-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, Paula Corley Marx, Lafayette, for Appellant.
    William R. Coenen, Jr., District Attorney, Penny Douciere, Johnny R. Boothe, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS & LOLLEY, JJ.
   | .PEATROSS, J.

Defendant, Glenn E. Howard, was charged with attempted manufacture of methamphetamine, in violation of La. R.S. 40:967 and 40:979, and possession of methamphetamine with intent to distribute, in violation of La. R.S. 40:967. On remand from an earlier appeal in this matter, the trial court sentenced Defendant to serve eight years on each count, with five years suspended and subsequent probation, and imposed a fine of $2,500 on each count and one cost of court. For the reasons stated herein, Defendant’s sentence is amended to delete the fines and costs imposed by the trial court and, as amended, the sentence is affirmed.

BACKGROUND

This criminal case comes to this court on appeal for the third time. The continuing issues involve sentencing.

In December 2001, Franklin Parish Sheriff’s deputies, acting on a tip from a reliable informant, discovered that Defendant and several individuals were manufacturing methamphetamine at Defendant’s camp house. A consent search resulted in the seizure of material used in the production of methamphetamine as well as finished product, marijuana and several firearms. This court previously affirmed Defendant’s convictions on reduced charges of attempted manufacture of methamphetamine and possession of methamphetamine with intent to distribute. See State v. Howard, 37,580 and 37,581 (La.App.2d Cir.9/24/03), 855 So.2d 881. According to the terms of the plea bargain, the sentences were to be concurrent; and, in exchange for Defendant’s agreement to a civil forfeiture |2of his hunting camp where the manufacture took place, the parties and the court agreed there would be no further imposition of fines or costs.

The trial court initially imposed concurrent sentences of ten years on both counts. The sentences were suspended and Defendant was placed on supervised probation for five years. The State moved for reconsideration, arguing that the sentence for the attempted manufacture required a minimum term of five years which had to be served without benefits. The trial court agreed, granted the State’s motion and re-sentenced Defendant to five years on each count, to be served concurrently, with the sentence for the attempted manufacture to be served without benefits. State v. Howard, supra.

Defendant moved for rehearing, urging that there was no mandatory minimum for an attempted offense. This court agreed and remanded for re-sentencing. State v. Howard, supra.

On remand, which brings us to this appeal, the trial court imposed concurrent sentences of eight years on both counts, with five years of the sentences to be suspended and Defendant to be on probation upon his release from incarceration. The court also imposed fines of $2,500 on each count and one cost of court. Defendant’s oral motion for reconsideration of sentence was denied and this appeal followed. Defendant now appeals, raising the following assignments of error (verbatim):

1. The Trial Court erred in imposing an unduly harsh and excessive sentence under the facts and circumstances of the case;
2. The Trial Court erred in imposing a fine and costs of court in violation of the agreement entered into at the time of Mr. Howard’s plea; and,
|a3. The denial of the Motion to Reconsider Sentence by the Trial Court was error.

DISCUSSION

It should be noted that Defendant did not file a motion for reconsideration of sentence in the first appeal. The oral motion made in the instant proceedings did not specify any particular basis for exces-siveness. ■

The jurisprudence holds that not only must a motion for reconsideration be timely filed with the trial court, but the motion must also contain a specific ground upon which the motion may be based. Failure to specify a ground for relief “shall preclude the ... defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal.” La. C. Cr. P. art. 881.1(E); State v. Barnes, 607 So.2d 872 (La.App. 2d Cir.1992). In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

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); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

Prior to imposing the most recent sentence, the trial court reviewed the facts of the case and considered a PSI report. Defendant was a first-felony offender, age 52. He owned the camp where the methamphetamine was being manufactured; however, the court believed he was more a user than a distributor. The court noted that the camp had been forfeited. UDefendant had been laid off from work temporarily, but his employer had stated an intent to rehire him. Defendant had never married and had no children. As previously stated, the court imposed concurrent sentences on each count consisting of imprisonment at hard labor for eight years, with five years suspended, supervised probation for five years, a fine of $2,500 on each count and one cost of court.

The original charge, manufacture of methamphetamine, La. R.S. 40:967, in effect at the time of the offense, December 31, 2001, carried a sentencing range of 10 to 30 years, at least 10 of which were to be served without benefits, plus a fine of not more than $500,000. The possession with intent charge carried a range of 2 to 30 years, plus a fine. As a result of his plea bargain, Defendant’s exposure was reduced to 0 to 15 years, with no minimum mandatory, and he avoided any fine. Thus, he received a substantial benefit from his plea bargain.

On the showing made, there is no abuse of discretion such that the term of imprisonment could be deemed excessive. The fines and court costs imposed, however, violated the plea bargain and are “illegal.” In its brief, the State concedes that the imposition of fines and cost of court was error. Accordingly, Defendant’s sentence is hereby amended to delete the portion imposing fines and costs. See La. C. Cr. P. art. 882(A).

DECREE

For the foregoing reasons, Defendant’s, Glenn E. Howard, sentence is amended to delete that portion of the sentence imposing fines and costs. As amended, Defendant’s sentence is affirmed.

AMENDED, AND, AS AMENDED, AFFIRMED.


author: B CARAWAY, J.

text:
    STATE of Louisiana, Plaintiff-Appellee v. Eric Wayne HODGE, Defendant-Appellant.
    No. 38,796-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    Pringle & Herzog, by R. Perry Pringle, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Jason T. Brown, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   B CARAWAY, J.

Eric Wayne Hodge appeals from a judgment denying his petition to expunge his criminal record. Finding no statutory authority for his claim, we affirm.

Facts

On September 4, 2001, Hodge pled guilty in the First Judicial District Court to simple burglary and was sentenced to eighteen months at hard labor. The sentence was suspended, and Hodge was placed on supervised probation with special conditions. Thereafter, Hodge was granted an automatic first offender pardon on June 9, 2003, pursuant to La. R.S. 15:575.

In September 2003, Hodge filed a Motion for Expungement of Criminal Record pursuant to La. R.S. 44:9(E)(l)(b). Additionally, Hodge subsequently filed a Motion to Set Aside Conviction and Dismiss Prosecution.

After a stipulation of evidence, both motions were argued to the court. First, the court denied the motion to set aside Hodge’s conviction and dismiss his prosecution. Then the court denied the motion for expungement. Hodge appeals this ruling.

Discussion

The expungement statute relied upon by Hodge is La. R.S. 44:9 E(l)(b), which provides, in pertinent part, as follows:

After a contradictory hearing with the district attorney and the arresting law enforcement agency, the court may order expungement of the record of a felony conviction dismissed \ pursuant to Article 893 of the Code of Criminal Procedure. (Emphasis supplied)

In discussing Article 893 of the Code of Criminal Procedure, which is the key to this expungement claim, Hodge admits that the article contains two different sentencing provisions. Subsection A allows, under certain circumstances, the - suspension of sentence and probation. On the other hand, Subsection D speaks of the deferral of sentence and provides as follows:

D. (l)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person. (Emphasis supplied)

The comparison of these two sentencing provisions of Article 893 reveals that only the deferral of sentence, Subsection D, allows for the later dismissal of the prosecution which has the same effect as acquittal. After the suspension of sentence and probation of Subsection A, no dismissal of the felony prosecution is allowed. Accordingly, La. R.S. 44:9(E)(l)(b)’s | ¡¡reference to “a felony conviction dismissed pursuant to Article 893” pertains only to Subsection D’s deferral of sentence proceedings, and no expungement is applicable in this case. State v. Oliver, 38,520 (La.App.2d Cir.5/12/04), 874 So.2d 365.

The trial court in the instant case could have deferred the imposition of Hodge’s sentence, and even indicated that the sentence was one which the court “probably would have made and would have deferred sentencing in accordance with Article 893.” Nevertheless, Hodge’s sentence was not deferred, it was suspended. Accordingly, the trial court’s denial of expungement is affirmed at appellant’s cost.

AFFIRMED.


author: | WILLIAMS, J.

text:
    Shirley GOODWIN and Roddy Goodwin, Plaintiff-Appellant v. WESTERN HERITAGE INSURANCE COMPANY and Lois Gibson, Defendant-Appellee.
    No. 38,836-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    D. Randolph Street, for Appellant.
    H. Lee Leonard, Melvin A. Eiden, Lafayette, Charles K. Middleton, Ruston, for Appellee Western Heritage Insurance Company.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   | WILLIAMS, J.

The plaintiffs, Shirley and Roddy Goodwin, appeal from a summary judgment dismissing the defendant/insurer, Western Heritage Insurance Company (“Western Heritage”), from this lawsuit. The district court concluded that the defendant’s garage liability insurance policy, issued by Western Heritage, excluded coverage for the automobile accident. We affirm.

FACTS

The facts in this case are not in dispute. On March 16, 2002, the plaintiff, Shirley Goodwin, was driving her vehicle in More-house Parish when she was struck by a vehicle that was being driven by the defendant, Lois Gibson. Shirley Goodwin sustained bodily injuries from this collision. Gibson was driving a vehicle owned by Performance Cars and Trucks (“Performance”), a used- car dealership in Monroe. Performance had loaned the vehicle to one of its customers, Jarina Davis, while it was repairing her vehicle. Gibson was driving the loaned vehicle with Davis’ permission.

Performance had been issued a garage liability insurance policy by Western Heritage. The plaintiffs filed suit against Gibson and Performance’s insurer, Western Heritage. Thereafter, Western Heritage filed a motion for summary judgment. It argued that Gibson was not an insured under its policy based on the following provisions:

SECTION II. LIABILITY COVERAGE

A. Coverage

1. “Garage Operations” — Other Than Covered “Autos”
a. We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to | ywhich this insurance applies caused by an “accident” and resulting from “garage operations” other than the ownership, maintenance or use of covered “autos.” ...
* * *
3. Who Is An Insured
a. The following are “insureds” for covered “autos.”
(1) You for any covered “auto.”
(2) Anyone else while using with your permission a covered “auto” you own, hire, or borrow, except:
(d) Your customers, if your business is shown in the Declarations as an “auto” dealership. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent), they are an “insured” but only up to the compulsory or financial responsibility law limits where the covered “auto” is principally garaged.
(ii) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered “auto” is principally garaged, they are an “insured” only for the amount by which the compulsory or financial responsibility law limits exceed the limit of their other insurance.

Attached to the defendants’ motion for summary judgment was a copy of an insurance policy captioned, “GARAGE COVERAGE FORM” that contains the language cited above. Plaintiffs opposed the motion, urging the absence of a declarations page and that the insurance policy submitted into evidence by the defendants was neither certified nor 13authenticated by an affidavit of a person with knowledge of its contents. Plaintiffs also argued that the insurance contract was in conflict with Louisiana law.

Without issuing reasons, the district court granted the motion for summary judgment and dismissed the plaintiffs’ claims against the insurer. Plaintiffs appeal.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.05/10/00), 760 So.2d 587. This court will not reverse the granting of a motion for summary judgment when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. LSA-C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

The issue of coverage accorded by an insurance contract can be resolved appropriately on summary judgment when the evidence supporting the motion does not offer any other reasonable interpretation of the policy. Bernard v. Chrysler Insurance Company, 1998-1846 (La.App. 3d Cir.3/24/99), 734 So.2d 48.

The insurer showed with its motion for summary judgment that its policy excludes from the definition of “insureds” any customer of the dealership, except to the extent that the customer is uninsured or underinsured by law. In Louisiana, LSA-R.S. 32:861, et seq, the Compulsory Motor Vehicle Liability Security Law, are the applicable statutes. In order to defeat summary judgment, LSA-C.C.P. art. 966(C)(2) required the plaintiffs to show that the customer did not have automobile liability insurance and thus was in violation of LSA-R.S. 32:861 and/or LSA-R.S. 32:90o. Since no such proof was offered, the customer (and by extension, the customer’s permittee) was not an insured within the definition of the policy. Therefore, summary judgment was appropriate.

The remaining question is whether the law permits the insurer to limit its coverage in this way. We agree with the first circuit’s decision and reasoning in Savana v. Certain Interested Underwriters at Lloyd’s London, 2001-2450 (La.App. 1st Cir.7/2/02), 825 So.2d 1242. There, the court held that the limitation of coverage was effective and not violative of public policy. It is well settled that absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose treasonable conditions upon the obligations they contractually assume. Savana, supra, citing Marus v. Hanover Insurance Co., Inc., 98-2040 (La.6/4/99), 740 So.2d 603. The policy in-question specifies that it provides liability coverage when the customer’s insurance is inadequate to satisfy the minimum requirements of our compulsory or financial responsibility law. By this language, the policy complies with the minimum standard required by LSA-R.S. 32:900, and thus, is not violative of public policy. See also, the two fourth circuit cases cited in Savana, supra; Baker v. Kenney, 99-2950 (La.App. 4th Cir.5/3/00), 767 So.2d 711, writ denied, 2000-2153 (La.10/13/00), 771 So.2d 650 and Gambino v. Lamulle, 97-2798 (La.App. 4th Cir.6/10/98), 715 So.2d 574.

Further, the legislature contemplated that the driver’s policy, not that of the repair shop, provide the primary coverage. LSA-R.S. 22:671 provides, in part:

A. Notwithstanding any provision of the policy, the primary liability, physical damage, or collision coverage for a loaner vehicle shall be the policy of the driver, not the policy of the vehicle sales or service dealer who provided the loaner vehicle.

As the first circuit, we too disagree with the rationale of Stanfield v. Hartford Acc. and Indem. Co., 581 So.2d 340 (La.App. 3d Cir.1991), and find that the distinction between the dealership customers and garage customers is artificial, at least as it might apply to the facts of this case and under the garage liability insurance policy presented.

| «CONCLUSION

Accordingly, the district court judgment in favor of the defendant, Western Heritage Insurance Company, is affirmed. Costs of this appeal are assessed to the plaintiffs, Shirley Goodwin and Roddy Goodwin.

AFFIRMED.

      . In the insurer’s ''Memorandum in Support of Motion for Summary Judgment,” it states that Davis maintained an automobile liability insurance policy through U.S. Agencies, effective January 6, 2002 through Januaiy 6, 2003. The record does not contain a copy of this policy or any other evidence to corroborate its existence. However, plaintiffs did not contest defendant's allegation. Thus, based on the pleadings in the record, we will assume that Davis’ automobile liability policy existed and met the legal requirements. There is no evidence in this record with regard to whether Gibson also owned an automobile liability insurance policy.