author: I t STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Billy Ray JOSEPH, Appellant.
    No. 36,776-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Louisiana Appellate Project by J. Wilson Rambo, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, Shenequa L. Grey, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   I t STEWART, J.

The defendant, Billy Ray Joseph, was found guilty as charged of driving while intoxicated, third offense. He argues on appeal that the evidence was insufficient to prove that he operated a vehicle while under the influence of alcohol. We affirm the defendant’s conviction, but we remand the matter to the trial court for re-sentencing according to law.

FACTS

At around 11:00 a.m., on March 1, 2001, an accident involving three vehicles occurred at the intersection of Hearne and Vivian in Shreveport, Louisiana. The accident resulted when a white Chevrolet pickup truck ran a stop sign on Vivian. As explained at trial by James Monette and Michael Foust, both witnesses to the accident, the Chevy truck hit a Dodge truck with an attached horse-trailer, thereby causing the trailer to jack-knife and hit Monette’s vehicle. The driver of the Chevy truck fled the scene and left the vehicle behind.

Corporal Kelly Silva of the Shreveport Police Department (“SPD”) responded to the accident. Officer Silva received information that the driver of the Chevy had left the scene. While canvassing the area in a patrol car, Officer Silva came across Jack Wynn, who informed the officer that he had been flagged down by a black male with a little boy and had given them a ride to the Lakehurst area. The address on the registration papers found in the glove box inside the abandoned Chevy was located on Lakehurst. Officer Silva and another officer proceeded to the address listed on the registration. A little boy answered the door. The defendant was also in the house with the boy. Officer Silva noted an odor of alcohol about thel?, defendant. Alcohol had also been found in the abandoned Chevy. The defendant was placed under arrest. Officer Silva testified that approximately twenty to twenty-five minutes elapsed from the time of dispatch to the accident scene until arrival at the La-kehurst address. Wynn testified that he was later called back to the accident scene where he identified the man who had been arrested as the man he gave a ride to earlier, however he could not identify the defendant at trial.

Following the arrest, the defendant was transported to SPD’s traffic bureau where he underwent field sobriety testing and submitted to the Intoxilyzer test. The defendant was informed of his rights, and the testing was videotaped. The video was played for the jury at trial. The results of the Intoxilyzer were 0.155 grams percent at 12:54 p.m. The defendant admitted on the video to driving the vehicle at the time of the accident. He stated on the video that he began drinking at 8:30 a.m., that he last had a drink at either 9:30 a.m. or 10:30 a.m., and that he had not consumed alcohol since the accident. The evidence introduced at trial also established two prior DUI convictions on the defendant’s record. The defense offered no evidence at trial.

DISCUSSION

Sufficiency of the Evidence

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. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,-253 (La.App.2d Cir.4/2/97), 691 So.2d 347, wrii 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, 98-2723 (La.2/5/99), 737 So.2d 747.

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. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). 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, supra.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

To convict an accused of driving while intoxicated, the state is required to prové that the defendant was operating a vehicle while under the influence of alcoholic beverages or when his blood alcohol concentration is 0.10 percent or more. La. R.S. 14:98(A).

The defendant argues that the state failed to prove that he operated his vehicle while intoxicated. He claims that at least forty-five minutes to an hour elapsed from the time of the accident until the officers’ arrival at his house and suggests that it is reasonable to believe that he consumed alcohol in this period of time. The defendant also asserts that no witness identified him as the person involved in the accident or testified that he was drinking alcoholic beverages prior to or at the time of the accident.

Viewing the evidence in the light most favorable to the prosecution, it is clear that the state proved beyond a reasonable doubt every essential element of the crime. The defendant suggests that this is a case built on circumstantial evidence which is not sufficient to prove that he operated the vehicle or was intoxicated when the accident occurred. However, the defendant overlooks his own words on the video which was played for the jury. In the video, the defendant admitted to consuming alcohol prior to the accident and to driving the Chevy pickup truck at the time of the accident. Contrary to his theory on appeal, the defendant further stated on the video that he did not consume alcohol after the accident occurred. Finally, the | .¡video shows that the defendant blew a percentage of 0.155 on the Intoxilyzer. This amount is well over the blood alcohol concentration limit required to prove the elements of the crime as set forth in La. R.S. 14:98.

The evidence presented at trial further showed that officers confronted the defendant and observed signs of intoxication within approximately twenty to twenty-five minutes following the accident. Moreover, alcohol was found in the vehicle from which the defendant fled following the accident. The defendant’s unsupported claim that he became intoxicated to the level of 0.155 in the twenty to twenty-five minutes after the accident is unreasonable, especially considering the time it took him to flee the scene and arrive at his residence. According to the testimony of Jack Wynn, at least fifteen minutes passed from the time he was flagged down by the man with the boy until he dropped them off in the Lakehurst area. It is highly unlikely that the appellant could have consumed enough alcohol in the short time period remaining to raise his blood alcohol to 0.155.

Based on the evidence presented at trial, a rational trier of fact could have concluded, and in fact did conclude, that the defendant was indeed driving while intoxicated. Through his own videotaped admissions, the defendant placed himself as the driver of the vehicle which caused the accident and admitted to drinking the morning of the accident. The defendant was located within approximately twenty-five minutes following the accident through information from witnesses and the information on the vehicle registration papers. Officers detected an odor of alcohol about the | fidefendant, and alcohol was found in the defendant’s vehicle. Finally, the results of the field sobriety tests and the Intoxilyzer established the defendant to be under the influence of alcohol. Viewing this evidence in the light most favorable to the prosecution, we conclude that the trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. This claim is therefore without merit.

Error Patent Review

On May 20, 2002, the defendant was sentenced to serve three years at hard labor, six months without benefit of parole, probation, or suspension of sentence. Further, the defendant’s sentence was suspended except for six months, and he was placed on active supervised probation for three years.

This sentence was imposed in accordance with La. R.S. 14:98(D) as it existed at the time of the offense. However, in 2001, the legislature amended La. R.S. 14:98 to change the way in which an offender serves the sentence imposed by the court. In State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, the Louisiana Supreme Court determined that, with regard to La. R.S. 14:98 and its 2001 amendments, the law in effect at the time of conviction governs sentencing. Under the 2001 amendments, the appellant’s sentence is illegal.

La. R.S. 14:98, in pertinent part, now provides:

D.(l)(a) On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars. Thirty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the |7offender shall be required to undergo an evaluation to determine the nature and extent of the offender’s substance abuse disorder.
(b) The treatment professional performing the evaluation shall recommend appropriate treatment modalities which shall include substance abuse treatment at an inpatient facility recommended by the Department of Health and Hospitals, office for addictive disorders and approved by the Department of Public Safety and Corrections for a period of not less than four weeks nor more than six weeks.
(c) The offender may be sentenced to additional outpatient substance abuse treatment services to meet the offender’s needs if determined to be necessary by the offender’s treating physician, for a period not to exceed twelve months. The follow-up treatment shall be provided in a manner to gradually decrease the intensity of treatment services.
(d) Upon successful completion of the inpatient substance abuse treatment required by this Paragraph, the offender shall be sentenced to home incarceration for not less than the period of time remaining on the offender’s suspended sentence as provided in Paragraph (3) of this Subsection.
(e) If the offender fails to complete the substance abuse treatment required by the provisions of this Paragraph or violates any condition of home incarceration, he shall be imprisoned for the original term of his suspended sentence with no credit for time served under home incarceration.
(2)(a) In addition, the court shall order that the vehicle being driven by the offender at the time of the offense shall be seized and impounded, and sold at auction in the same manner and under the same conditions as executions of writ of seizures and sale as provided in Book V, Title II, Chapter 4 of the Code of Civil Procedure.
(b) The vehicle shall be exempt from sale if it was stolen, or if the driver of the vehicle at the time of the violation was not the owner and the owner did not know that the driver was operating the vehicle while intoxicated. If this exemption is applicable, the vehicle shall not be released from impoundment until such time as towing and storage fees have been paid.
(c) In addition, the vehicle shall be exempt from sale if all towing and storage fees are paid by a valid lienholder.
(d) The proceeds of the sale shall first be used to pay court costs and towing and storage costs, and the remainder shall be forwarded to the Council on Automobile Insurance Rates and Enforcement for its use in studying other ways to reduce drunk driving and insurance rates.
(3)(a) An offender sentenced to home incarceration shall be supervised and shall be subject to any of the conditions of probation. The court shall specify the conditions of home incarceration which shall include but shall not be limited to the following:
(i) Electronic monitoring.
(ii) Curfew restrictions.
(iii) Home visitation at least once per month by the Department of Public Safety and Corrections.
|s(b) The court shall also require the offender to obtain employment and to participate in a court-approved driver improvement program at his expense. The activities of the offender outside of his home shall be limited to traveling to and from work, church services, Alcoholics Anonymous meetings, or a court-approved driver improvement program.
(c) Offenders sentenced to home incarceration required under the provisions of this Section shall be subject to all other applicable provisions of Code of Criminal Procedure Article 894.2.

The amended sentencing provisions reduce the defendant’s actual time of incarceration and impose a comprehensive rehabilitation program.

An illegal sentence may be corrected at any time. La.C.Cr.P. art. 882. Further, the appellate court may notice sentencing errors as error patent. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Therefore, we vacate the sentence imposed by the trial court and remand this matter to the trial court for re-sentencing according to law.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is affirmed; however, the sentence is hereby vacated, and this case remanded to the trial court for re-sentencing according to law.

CONVICTION AFFIRMED.

SENTENCE VACATED; REMANDED.


source: Caselaw Access Project

author: JjKOSTELKA, J.

license: Public Domain

text:
    WILL DRILL RESOURCES, INC., Plaintiff-in-Concursus, v. HUGGS, INC., et al., Defendants-in-Concursus-Appellants; Defendants-in-Concursus-Appellees.
    No. 36,797-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Roy M. Lilly, Jr., Minden, Campbell, Campbell & Marvin by C.A. Marvin, for Defendants-in-Concursus-Appellants, Shirley Ann Gladney Prince, Timothy King Gladney, Dovie Elizabeth, Gladney Hensley, Kimbell Tatum Hays, Patricia Hays Bryan, Emma Hays Atkins, Frances Hays Bays, L.H. Featherston, III, Lewis Odom, and Judd & Company.
    Weiner, Weiss & Madison by John S. Hodge, Shreveport, for Plaintiff-in-Con-cursus, Will Drill Resources, Inc.
    Cook, Yancey, King & Galloway by J. William Fleming, F. Drake Lee, Robert Kennedy, Jr., Shreveport, for Defendants-in-Concursus-Appellees, Huggs, Inc., Rock Creek Ranch I, Ltd., Sirius Corporation and LHS, Smith & Smith, Ltd., L.L.P.
    Before BROWN, KOSTELKA and DREW, JJ.
   JjKOSTELKA, J.

The royalty owners of Gladney Well No. 1 (“Royalty Owners”) appeal the summary judgment granted in favor of Huggs, Inc., Rock Creek Ranch I, Ltd., Sirius Corporation and LHS, Smith & Smith, Ltd., L.L.P. (collectively referred to herein as “Huggs”), awarding them contested royalty payments. We affirm.

FACTS

The pertinent facts of this matter are set forth in this court’s previous opinion in Will-Drill Resources, Inc. v. Huggs Inc., 32,179 (La.App.2d Cir.08/18/99), 738 So.2d 1196, writ denied, 99-2957 (La. 12/17/99), 751 So.2d 885, and will not be repeated here. In that case, this court reversed a summary judgment by the trial court which had awarded the Royalty Owners disputed royalties based upon the determination that a Pugh Clause contained in the mineral lease was activated. Conversely, this court found that the Pugh Clause was not operative under the facts of this case. Thereafter, on January 11, 2001, Huggs filed a motion seeking disposition of the royalties in accordance with this court’s prior opinion. On February 9, 2001, Royalty Owners opposed the motion and sought an exception of no cause of action. On February 12, 2001, the trial court denied Huggs’s motion for entry of judgment.

Previously, on February 9, 2001, Royalty Owners had also filed a Motion for Leave to File an amended petition and an Amended Petition. Huggs opposed this motion and sought summary judgment on August 3, 2001, again based upon the prior ruling of this court. After a hearing on September 27, 2001, the trial court allowed Royalty Owners to amend the |2petition and took Huggs’s summary judgment under advisement until the completion of discovery. On February 13, 2002, Royalty Owners opposed Huggs’s motion for summary judgment and included four affidavits which sought to establish that a genuine issue as to the intent of the original parties to the lease remained for trial. Huggs moved to strike the affidavits as incompetent summary judgment evidence. After a February 14, 2002 hearing, the court formally granted both Huggs’s summary judgment and motion to strike, without reasons, on March 12, 2002. This appeal ensued.

Discussion

On appeal, Royalty Owners suggest that the summary judgment was improvidently granted due to the existence of ambiguities in the lease relating to the Pugh Clause. Based upon the law-of-the-case doctrine, however, we affirm the summary judgment.

In our initial examination of the lease, because neither party, including Royalty Owners, contended that any ambiguity in the Pugh Clause existed, we conducted our examination of the Pugh Clause as written in Paragraph 19 of the lease. We found that the language chosen by the parties to express their intent regarding the operation of the Pugh Clause clearly indicated that the clause became operative only when leased land is pooled or combined with other lands, another lease or leases. Because the “units” in the present case were combined with no other lands, but were comprised entirely of the leased premises, we found that the Pugh Clause was not activated.

^Nevertheless, after our determination, Royalty Owners were allowed to file an amended petition which alleged that the language used in the lease did not reflect the true intent of the parties. Moreover, in their opposition to Huggs’s motion for summary judgment, Royalty Owners again contended that the intent of the parties should be evaluated due to an ambiguity in the lease created by Paragraph 7 which “altered the definition” of Paragraph 19, the Pugh Clause addressed by this court in the earlier opinion. On appeal, Royalty Owners reurge these arguments in support of their claim that summary judgment was inappropriate.

We are unpersuaded by Royalty Owners’ novel attempt at piecemeal litigation. Under the law-of-the-case doctrine, upon a second appeal, an appellate court will not reconsider its earlier ruling in the same case. That policy applies against those parties involved in the litigation at the time of the prior decision and who have had their day in court. Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971); Webb Const., Inc. v. City of Shreveport, 33,654 (La.App.2d Cir.08/23/00), 766 So.2d 607, writ denied, 2000-2674 (La.11/17/00), 774 So.2d 982; Coldwell Banker J. Wesley Dowling and Associates, Inc. v. City Bank and Trust of Shreveport, 25,684 (La. App.2d Cir.03/30/94), 634 So.2d 959. The reasons behind the policy include avoiding indefinite relitigation of the same issue, obtaining consistent results in the same case, fairness to the parties involved, and affording one opportunity for argument and decision on the issue. Id.

|4Obviously, the present appeal concerns some of the same parties involved in the same litigation as the previous appeal. The point of dispute here is whether the issue sought to be resolved in the present appeal is the same issue decided by this court in its earlier opinion. In the circumstances before us, we conclude that it is.

As discussed above, in the previous appeal, this court was called upon to determine whether the subject Pugh Clause was activated under the facts of this case. Relying there on the parties’ legal representations that no ambiguity existed therein, we evaluated the Pugh Clause as written in Paragraph 19 of the lease. Nowhere in the previous proceedings did Royalty Owners mention Paragraph 7 of the lease or argue ambiguity in the lease provisions. Rather, it was only after this court’s decision that Royalty Owners for the first time contended that the lease was ambiguous. On these grounds, Royalty Owners now request that this court reevaluate the Pugh Clause in question. We find this endeavor, however, to be no more than a reinvention of the argument in support of Royalty Owners’ position that the Pugh Clause should be activated. Royalty Owners do not contend that our previous decision somehow created the alleged ambiguity which otherwise would not have reasonably been noticed by the parties. The same lease which contains the two paragraphs at issue formed the underlying basis for the entire case. Therefore, any alleged ambiguity certainly existed at the time of the previous proceedings when Royalty Owners, who were parties to the entire proceedings, earlier had their day in court. In these circumstances, we find that our review at this time would qualify as nothing |Bmore than a reconsideration, although on different grounds, of an issue already decided by this court, i.e., the applicability and interpretation of the Pugh Clause to the facts of this case. To now revisit this issue would violate the law-of-the-case doctrine and the policy reasons for which it was enacted. Accordingly, we conclude that our earlier determination that the Pugh Clause, as written, clearly was not activated under the facts of this case now precludes a reexamination of the activation of the provision based upon Royalty Owners’ ambiguity claim. As a matter of law, the summary judgment granted in favor of Huggs was appropriate. Costs of this appeal are assessed to Royalty Owners.

AFFIRMED.

      . Both sides also confessed that the entirety of the Pugh Clause was contained in Paragraph 19 of the lease.

      . In light of this determination, it is unnecessary that we address the trial court's ruling on the motion to strike the affidavits submitted by Royalty Owners.


author: |T HARRISON, Judge Pro Tempore.

text:
    Deborah LEE, Plaintiff-Appellee, v. Christus SCHUMPERT, Defendant-Appellant.
    No. 36,733-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Mayer, Smith & Roberts by John C. Turnage, Shreveport, Kelly J. Workman, for Defendant-Appellant.
    Alex S. Lyons, for Plaintiff-Appellee.
    Before WILLIAMS, CARAWAY and HARRISON (Pro Tempore), JJ.
   |T HARRISON, Judge Pro Tempore.

Both the claimant and the employer appeal various aspects of a judgment that awarded the claimant supplemental earnings benefits but denied other benefits allegedly arising from occupational diseases. For the reasons expressed, we affirm.

Factual and procedural background

The claimant, Deborah Lee, went to work for Shumpert Medical Center (now known as Christus Schumpert, but referred to herein as “Schumpert”) in late 1986; in 1994 she was transferred to health information management. She described her position as an “abstractor”: pulling outpatient charts, gathering lab and other clinical reports, entering them on the charts by hand, and then keypunching the data for a final printout. She testified that she had a daily quota of 20 (later she said 24) charts to complete.

In about March 1999, she began having pain in her right elbow. In May 1999 her family doctor, Dr. Sreedevi Yarrapraggada (“Dr.Sree”) referred her to an orthopedic surgeon, Dr. Ryan Bicknell. According to Dr. Bicknell, Ms. Lee complained that work activities made her elbow hurt, and in his report he related her pain to her employment. Conservative treatment (use of a splint and anti-inflammatory drugs) yielded only marginal results. He found evidence of lateral epicondylitis and carpal tunnel syndrome (“CTS”) in the right arm; however, a nerve conduction study showed positive for radial nerve entrapment. In deposition, Dr. Bicknell was “certain” that he discussed with her that her problems were work-related, 12but he gave her nothing in writing to this effect. Dr. Bicknell performed surgery to release the radial nerve on August 30, 1999. He found that the operation cleared up her symptoms, but told her to stay home for about five weeks. He then authorized her to return to work with no repetitive activity, prolonged writing or heavy lifting with the right hand.

Ms. Lee worked until the day before this operation, which she claimed on her group health insurance, provided by Am Care at Schumpert. Pursuant to Dr. Bicknell’s release, she reported back to work on October 11. However, Human Resources advised her that her job was being terminated. She received a 16-week severance pay package, and then applied for and received unemployment compensation for the maximum period, six months.

In the meantime, however, Ms. Lee continued having pain which she described as radiating down from her shoulder and making her fingers tingle. In late December 1999, she was involved in a rear-end auto accident that gave her severe whiplash and back pain; she said it also aggravated her elbow. In January 2000, she returned to Dr. Bicknell, who noted that she “continued to have” evidence of lateral epicondylitis in the right elbow and mild CTS. In deposition, Dr. Bicknell said he advised her that all her problems — epicon-dylitis, radial tunnel entrapment and CTS — were related to work duties.

Ms. Lee retained an attorney, Alex Lyons, for her auto accident claim. Feeling that she might have a compensation claim, he asked Dr. Bicknell for a written opinion. By letter of February 29, 2000, Dr. Bicknell replied that all the problems in Ms. Lee’s right arm were related to her employment. 13 She contended at trial and on appeal that this was the first time she knew that her injuries were work-related. She filed the instant disputed claim on May 81, 2000.

By this time, Ms. Lee had grown dissatisfied with her lack of progress with Dr. Bicknell. Without consulting Schumpert, she asked her primary care physician, Dr. Sree, to refer her to Dr. John Knight, another orthopedic surgeon. In May and June 2000, he diagnosed medial neuropa-thy and probable radial tunnel syndrome, all related to her work. He performed surgery to correct these on June 12, 2000.

Ms. Lee’s unemployment benefits ended in late August 2000. She was still under restrictions against heavy lifting and excessive writing. She got two temporary jobs in medical records for local doctors, but testified that pulling and writing on charts made her elbow really hurt, about a “5.” She also worked a few part-time jobs in retail at Mall St. Vincent.

As noted, Ms. Lee filed this disputed claim on May 31, 2000. She sought temporary total disability benefits, supplemental earnings benefits, reimbursement for Dr. Bicknell’s surgery, authorization for Dr. Knight’s surgery, plus penalties and attorney fees. Schumpert filed an exception of prescription, urging that the action was filed more than six months after the occupational disease manifested itself. La. R.S. 23:1031.1 E.

A hearing on the exception was held in June 2001. After receiving evidence, the WCJ ruled orally that all three of Ms. Lee’s conditions manifested “as early as May 1999,” but she received no written confirmation that they were work-related until Dr. Bicknell’s letter of | ¿February 29, 2000. Nevertheless, the WCJ found that just prior to the first surgery in August 1999, Dr. Bicknell advised her that the radial nerve entrapment was work-related, so her action for that occupational injury was prescribed. By contrast, nobody advised her that the other two conditions, epicondylitis and CTS, were work-related until February 2000, so her claim for those injuries was timely. The WCJ rendered a judgment sustaining the exception in part and denying it in part.

The matter went to trial on the merits in November 2001. The parties stipulated that Ms. Lee’s average weekly wage was $450, and that the cost of Dr. Knight’s operation (covered by Am Care with Ms. Lee’s co-payments) was $9,155.58. The deposition of Dr. Bicknell and various medical records were offered. The only live witness was Ms. Lee, who described her medical history and sequence of temporary jobs.

Without giving reasons, the WCJ rendered judgment:

(1) Finding that Ms. Lee’s CTS and epicondylitis were work-related.
(2) Awarding her certain outstanding medical expenses.
(3) Denying her claim for temporary, total disability benefits.
(4) Awarding supplemental earnings benefits starting September 1, 2000, subject to specified credits.
(5) Denying the claim for medical expenses paid by Am Care.
(6) Finding that Ms. Lee changed her treating orthopedic surgeon without Schumpert’s approval, and thus denying her claim to recover the cost of Dr. Knight’s operation.
| k(7) Denying the claim for penalties and attorney fees.
(8) Casting Schumpert with costs.

Schumpert appealed, raising three assignments of error. Ms. Lee answered the appeal, raising two.

Discussion: Prescription

By their first assignments, both sides contest the WCJ’s ruling on the exception of prescription. Schumpert urges that Ms. Lee filed this claim more than six months after she learned that her CTS and epicon-dylitis were work-related. In support, Schumpert urges that Dr. Bicknell diagnosed all three conditions in May 1999; he told her (according to his deposition) that the most logical explanation for her problems was repetitive motion activity, like her work duties, and she may have to consider career changes. Schumpert argues that on this evidence, the WCJ should have found that Ms. Lee knew her conditions were work-related by mid-1999; therefore, her claim, filed May 31, 2000, was untimely.

Ms. Lee urges that her claim for radial nerve entrapment was timely. She first argues that the general prescriptive period of one year for compensation claims, R.S. 23:1209, should apply to her claim, rather than the specific prescriptive period of six months for occupational disease claims, R.S. 23:1031.1 E. Even if the six-month period applies, she urges that Schumpert had constructive notice that her radial nerve injury was work-related. In support she cites LaCour v. Hilti Corp., 98-2691 (La.5/18/99), 733 So.2d 1193; Riley v. Avondale Shipyards, 305 So.2d 742 (La.App. 4 Cir.1975); and Winzor v. Augenstein Const. Co., 378 So.2d 470 (La.App. 3 Cir.1979), writ denied, 379 So.2d 1103 (La.1980).

The prescriptive period for occupational disease claims is regulated by La. R.S. 23:1031.1 E. At the time that Ms. Lee’s claim arose, this subsection provided:

All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
(a) The'disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related. * * *

All three elements must be satisfied before prescription begins to run on an occupational disease claim. Bynum v. Capital City Press, 95-1395 (La.7/2/96), 676 So.2d 582; Mire v. Ranger Plant Const. Co., 01-2247 (La.App. 1 Cir. 9/27/02), 835 So.2d 550 .

Schumpert correctly shows that Dr. Bieknell suspected, as early as May 1999, that Ms. Lee’s epicondylitis and right CTS were work-related. He thought he advised her of this assessment at the time, but he could not document it until his letter of February 29, 2000, and Ms. Lee insisted she did not know it until Mr. Lyons got Dr. Bicknell’s letter. In short, the record evidence as to element (c) is unclear.

By contrast, the record is completely clear that the epicondylitis and right CTS did not disable Ms. Lee from working until Dr. Knight operated in June 2000. Until that time, element (b) was not present. Ms. Lee’s claim for benefits arising from these two conditions, filed in May 2000, was |7therefore timely. The WCJ did not err in denying this portion of the exception of prescription. Schumpert’s first assignment of error lacks merit.

The amendment extending the prescriptive period for occupational disease claims did not take effect until after Ms. Lee’s claim arose. In general, the governing law in a compensation action is that which was in effect at the time of the injury. Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992). Amendments to the prescriptive period are not retroactive. Gay v. C & D of Shreveport, 25,319 (La. App. 2 Cir. 10/26/94), 645 So.2d 280, and citations therein. Prior to amendment, R.S. 23:1031.1 E required the claimant to “file a claim with his employer” within six months after the three elements are satisfied. LaCour v. Hilti Corp., supra. The general prescriptive period of one year, R.S. 23:1209 A, applied only if the claimant notified her employer within the six-month period of 23:1031.1 E. Id. The sufficiency of the notice depended on the facts of the case. In LaCour, for example, the claimant sought and received short-term disability benefits several times after elbow surgery; his surgeon advised the disability insurer by letter that the employment had caused the elbow degeneration. In Riley v. Avondale Shipyards, supra, the claimant immediately sought disability retirement from his employer; the employer paid it. The courts found that both claimants gave sufficient notice within the applicable prescriptive period to place the employers on constructive notice of a compensation claim. In the instant case, there is no evidence that Dr. Bieknell ever told Schumpert the radial nerve compression was work-related, or that Ms. Lee ever told them until over six month after the operation. The record does not |sshow that she applied for disability benefits. On this record, the WCJ was not clearly wrong to find no constructive notice of Ms. Lee’s compensation claim within the six-month period. Ms. Lee’s first assignment of error lacks merit.

Supplemental earnings benefits

By its second assignment, Schumpert urges the WCJ erred in finding that Ms. Lee was unable to earn 90% of her pre-injury wage, when in fact she is physically able to work as a sales associate. It cites her part-time jobs at Victoria’s Secret (20 hours a week at $5.50 an hour) and Kay Jewelers (21 hours a week at $8.00 an hour) as proof of her ability to earn 90% of her pre-injury wage.

A claimant is entitled to receive supplemental earnings benefits if she sustains a work-related injury that results in her inability to earn 90% or more of her average pre-injury wage. La. R.S. 23:1221(3)(a). The claimant bears the initial burden of proving, by a preponderance of the evidence, that the injury resulted in the inability to earn that amount, under the facts and circumstances of the case. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14(94), 630 So.2d 733. If the claimant meets this burden, the burden shifts to the employer to prove that the claimant is physically able to perform a certain job and that the job was offered to the claimant, or that the job was available to her within her or the employer’s geographic region. R.S. 23:1221(3)(c)(i); Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.7/1/97), 696 So.2d 551. If the employer satisfied that burden, then the claimant must show, by clear and convincing evidence unaided by 19any presumption of disability, that she is unable to perform the employment offered or available, solely as a result of substantial pain, R.S. 23:1221(3)(c)(ii); Payne v. Lawn Lourd Lawn Service, 35,491 (La.App. 2 Cir. 12/5/01), 803 So.2d 321. The WCJ’s factual findings cannot be reversed unless they are plainly wrong. Freeman v. Pou-lan/Weed Eater, supra.

Ms. Lee testified that since the second operation, she has been under restrictions against excessive writing and heavy lifting, and her attempts to resume work in medical records have resulted in substantial pain. This uncontradicted testimony satisfied her initial burden under R.S. 23:1221(3)(a). She also testified that as a result of this, she has worked in retail stores. However, her highest-paying retail job, at Kay Jewelers, paid only $8.00 an hour; if available full-time, this would still pay only $320 a week, which is less than 90% of her pre-injury wage of $450. Schumpert offered no evidence of retail or any other kind of work within Ms. Lee’s restrictions that would meet the 90% criterion. This evidence does not satisfy the employer’s burden under R.S. 23:1221(3)(c)(i).

On this record, the WCJ was not plainly wrong to award supplemental earnings benefits. This assignment lacks merit.

Proof of occupational disease

By its third assignment, Schumpert urges that Ms. Lee failed to prove that her condition resulted from “causes and conditions characteristic of and peculiar to the particular trade, occupation, process or employment” as required by R.S. 23:1031.1 B. In support, it cites a passage from Dr. Bieknell’s deposition in which he stated it was “possible to be related to an | inoveruse type phenomenon at work.”

Occupational disease is defined by R.S. 23:1031.1 B:

An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.

The claimant asserting an occupational disease must prove, by a preponderance of evidence, a disability related to an employment-related disease, that it was contracted during the course of employment, and that it is the result of the work performed. Hymes v. Monroe Mack Sales, 28,768 (La.App. 2 Cir. 10/30/96), 682 So.2d 871; Price v. City of New Orleans, 95-1851 (La.App. 4 Cir. 3/27/96), 672 So.2d 1045, writ denied, 96-1016 (La.10/25/96), 681 So.2d 360. The causal link between the claimant’s occupational disease and the work-related duties must be established by reasonable probability. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161; Hymes v. Monroe Mack Sales, supra. The claimant will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused it. Hymes v. Monroe Mack Sales, supra. Expert testimony is required to support a finding of an occupational disease. Id., and citations therein.

In the recent case of Fite v. Louisiana Title Co., 36,393 (La.App. 2 Cir. 9/18/02), 828 So.2d 165, the claimant was a title abstractor who described her work as writing a lot, carrying a heavy briefcase, lifting heavy books and typing on a computer. She developed lateral epicondylitis and CTS in her right hand, and claimed that these were occupational diseases [n resulting from her employment. The WCJ agreed, awarding medical expenses and supplemental earnings benefits. On appeal, however, this court reversed, noting the lack of evidence that the claimant was exposed to hazards peculiar to ab-stractors, and the lack of expert medical opinion that her job duties caused the CTS and epicondylitis.

Unlike the claimant in Fite, Ms. Lee offered the expert testimony of Dr. Bicknell who repeatedly stated that her conditions were more probably than not related to her employment. Despite his occasional use of the word “possibility,” he agreed that her conditions were “due to causes and conditions characteristic of her employment.” Bicknell’s Dep., 21. On this evidence, the WCJ was entitled to find that Ms. Lee satisfied the criteria for proving an occupational disease. Because of the quality of the evidence, this case is distinguished from Fite. This assignment lacks merit.

Penalties and attorney fees

By her second assignment, Ms. Lee urges the WCJ should have awarded penalties and attorney fees. She contends that after this court denied the writ application, Schumpert could not reasonably controvert her claim for CTS and epicon-dylitis. R.S. 23:1201 F. Schumpert responds that its conduct was reasonable, its position with respect to prescription was well-founded, and the WCJ did not abuse its discretion.

Failure to provide payment in accordance with the workers’ compensation act shall result in the assessment of a penalty and reasonable attorney fee; however, these are not assessed if the claim is reasonably controverted or the failure to pay results from conditions over which the | ^employer had no control. La. R.S. 23:1201 F. A claim is reasonably controverted when the employer produces factual or medical information of such a nature that it reasonably counters the claimant’s evidence. Balsamo v. Jones, 28,885 (La.App. 2 Cir. 12/11/96), 685 So.2d 1140. Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Brown v. Texas-LA Cartage, 98-1063 (La.12/1/98), 721 So.2d 885; Nowlin v. Breck Const. Co., 30,622 (La.App. 2 Cir. 6/24/98), 715 So.2d 112. Statutes authorizing penalties and attorney fees are not intended to compensate the claimant and thereby make her whole, but rather to discourage certain behaviors such as indifference to an injured employee. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382.

Ms. Lee’s only argument is that after the WCJ ruled that her claim for CTS and epicondylitis were timely, and this court denied Schumpert’s writ application, Schumpert had no factual basis to refuse paying medical expenses and indemnity benefits. However, Ms. Lee drew unemployment benefits for six months in 2000; since then, she has worked at various part-time jobs, about which the WCJ questioned her closely. On this evidence, the WCJ was entitled to find that her claim of disability was reasonably controverted. Moreover, Ms. Lee showed great improvement after Dr. Bicknell operated in August 1999; he testified that her auto accident in December 2000 may have made the condition more symptomatic. By identifying another possible cause for the second surgery, Schumpert reasonably controverted the claim. This assignment lacks merit.

113Conclusion

For the reasons expressed, the judgment is affirmed. Costs of appeal are assessed 50% to Schumpert and 50% to Ms. Lee.

AFFIRMED.

      . Schumpert applied for a writ; this court denied it on the showing made, October 19, 2001.

      . The section was amended by 2001 La. Acts No. 1189, § 1, effective August 15, 2001. Under the amendment, the claimant must “file a claim as provided in this Chapter within one year from the date” that the three elements arise.


author: L KOSTELKA, J.

text:
    Josh BLACKBURN, Plaintiff-Appellant, v. Angela Marie BLACKBURN, Defendant-Appellee.
    No. 37,006-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Rehearing Denied Feb. 27, 2003.

      A. Richard Snell, for Appellant.
    Anita D. McKeithen, Shreveport, for Ap-pellee.
    Before PEATROSS, KOSTELKA and HARRISON (Pro Tempore), JJ.
   L KOSTELKA, J.

Josh Blackburn (“Josh”) appeals the judgment of the Twenty-Sixth Judicial District Court for the Parish of Bossier, allowing the relocation of his minor child with the mother, Angela Marie Blackburn Bankston (“Angela”). For the following reasons, we affirm.

Facts

In August, 1993, Josh and Angela were married and of that marriage, one child, William Paul Blackburn (“Will”), was born on November 21, 1995. At the time of the proceedings in the trial court, Will was six years old.

Pursuant to a Joint Custody Plan, judgment was entered in March 1999, awarding Josh and Angela joint custody, with Angela as the domiciliary parent and Josh having reasonable visitation. The parties were then divorced in April 1999. Until October of 2001, said “reasonable visitation” consisted of Josh having Will every other weekend. Angela would also allow Will to spend the night with Josh’s mother one night a week.

In October 2001, the parties agreed to modify the custody arrangement that had been followed since March 1999. At that time, Josh and Angela began to equally share time with Will — each party having Will for seven consecutive days, exchanging the child on Mondays. In May 2002, Josh filed a petition to modify the joint custody plan seeking court approval and recognition of the change in custody the parents had adopted. However, prior to the trial court’s hearing of Josh’s petition, Angela gave notice of her intent to relocate Will to Colorado Springs, Colorado, as a | ¡^result of her current husband’s military reassignment orders. As a result of that notice, Josh filed his petition seeking in-junctive relief against such relocation of Will.

After a two-day trial, at which numerous witnesses, including Josh and Angela, testified, the trial court determined that the relocation of Will in this case was proper. This appeal by Josh ensued.

Discussion

The trial court is vested with vast discretion in matters of child custody and visitation, and its determination is entitled to great weight and will not be disturbed absent a clear showing of abuse of discretion. Arbuckle v. Arbuckle, 36,616 (La.App.2d Cir.12/11/02), 833 So.2d 1119; Shaw v. Shaw, 30,613 (La.App.2d Cir.06/24/98), 714 So.2d 906, writ denied, 98-2414, 98-2426 (La.11/20/98), 729 So.2d 556.

A parent seeking to remove his or her child from the jurisdiction of the court has the burden of proving that: (1) the move is made in good faith; and (2) in the child’s best interest. La. R.S. 9:855.13. In making a determination regarding a proposed relocation, a court is required to consider eight factors specified in La. R.S. 9:355.12, which are:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, | «educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) Any other factors affecting the best interest of the child.

Although the statute mandates that all of the factors set forth be considered, it does not require a court to give preferential consideration to any certain factor or factors. See, Curole v. Curole, 2002-1891 (La.10/15/02), 828 So.2d 1094; Miller v. Miller, 2001-0356 (La.App. 3d Cir.10/31/01), 799 So.2d 753. Additionally, custody determinations are made on a case-by-case basis, with each being decided based on the best interest of the child. Kyle v. Kyle, 34,696 (La.App.2d Cir.02/28/01), 780 So.2d 1241. After a thorough review of the record, and in light of the great discretion afforded the trial court in such matters, we cannot say that the trial court was clearly wrong in its determination that Angela’s proposed relocation is in Will’s best interest.

14The trial court found, Josh concedes, and it is apparent from the record, that Angela’s proposed move to Colorado Springs was made in good faith; thus, pursuant to La. R.S. 9:355.13, it was incumbent on Angela to prove then that the relocation would be in Will’s best interest. After trial, the factors set forth in La. R.S. 9:355.12 were carefully considered by the trial court. Without reiterating separately each factor discussed by the trial court in its reasons for judgment, we conclude that there was no manifest error in the court’s final determination that the relocation was in Will’s best interest.

We note, among the trial court’s various findings, it recognized that from the time of divorce until October of 2001, Angela had been the primary caretaker of Will, although Josh and Angela, at the time of trial, enjoyed an equal time-sharing situation with Will. The trial court placed importance on the fact that Angela had always fostered and encouraged the relationships between Will, Josh, and Josh’s extended family, a fact which was not disputed by any of the testimony heard at trial. Additionally, the trial court noted that Will was a bright, friendly child with no special needs; thus, the proposed relocation would not be detrimental to him. Although the trial court determined that Angela had not totally shown that the relocation of Will would enhance the general quality of life for her and/or Will, this single consideration does not serve to invalidate the ultimate finding of the trial court. The factors to be considered need not be weighed equally. See, Curole, supra. Moreover, the trial court mentioned that the [¿relocation of Will would enhance his quality of life by the relationship he will continue to have with his younger half-sister.

Respecting each parent’s abilities to physically care for and rear Will, as well as the love, affection, and the emotional ties between Will and each parent, we agree with the trial court that there are no significant differences between the two parents’ abilities to care for their son. Unfortunately, however, a decision must be reached as to the custody of Will, and the ultimate question on appeal becomes whether the trial court committed manifest error in its determination. So considering, in light of the trial court’s thorough analysis of the issue of Will’s relocation and the vast discretion afforded it in custody determinations, we cannot say the trial court was manifestly erroneous.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to Josh Blackburn.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, PEATROSS, KOSTELKA, and HARRISON, JJ.

Rehearing denied.

      . We note the court reporter's introductory page to the trial transcript names Judge Dewey E. Burchett, Jr. as the trial judge, but the record and appellate briefs show the actual trial judge to be Judge Ford E. Stinson, Jr. Therefore, we consider the court reporter’s notation a typographical error.


author: I,GASKINS, J.

text:
    Cyndra L. SHELTON, Plaintiff-Appellee, v. SAFEWAY INSURANCE COMPANY OF LOUISIANA and Christine Mims, Defendants-Appellants.
    No. 36,736-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Tracy L. Oakley, Ruston, for Appellants.
    James D. Caldwell, Tallulah, for Appel-lee.
    Hudson, Potts & Bernstein, L.L.P., by Mark J. Neal, Monroe, for Intervenor Ap-pellee, Allstate Insurance Company.
    Before GASKINS, CARAWAY and KOSTELKA, JJ.
   I,GASKINS, J.

The defendants, Christine Mims and Safeway Insurance Company of Louisiana, appeal from a trial court judgment which found Mims liable for an auto accident which occurred when she made a left turn in the path of Cyndra Shelton, the plaintiff. We affirm.

FACTS

On March 16, 2001, at approximately 8:00 a.m., Mims was operating a 1987 Toyota Camry in the inside, eastbound lane of Stoner Avenue, while Shelton was operating a 1994 Mazda Miata, traveling westbound on Stoner. At its intersection with Highland Avenue, Stoner Avenue consists of four lanes of traffic, and the intersection is controlled by a traffic light. Just prior to the accident, Mims had stopped in the inside, eastbound lane of Stoner in order to turn left onto Highland Avenue.

Shelton, who was traveling in the inside westbound lane of Stoner Avenue, switched to the outside westbound lane as she approached the intersection with Highland Avenue. Mims proceeded to turn left onto Highland as Shelton arrived at the intersection, and the right front portion of Shelton’s vehicle struck the right rear quarter panel of Mims’ vehicle.

In April 2001, Shelton filed suit against Mims and her insurer, Safeway Insurance Company of Louisiana. Allstate Insurance Company, the insurer of Shelton’s vehicle, later intervened, seeking reimbursement of payments made by Allstate to Shelton. In March 2002, Mims filed a reconventional demand against Shelton and Allstate. Although the trial court allowed the recon-ventional demand to be filed, it was severed from the principal demands of the plaintiff.

| ¡.At trial, Shelton testified that as she approached the intersection, she saw that there were three cars stopped at the green light. She then moved into the right-hand lane, and as she did so, a car that had been stopped at the light made a left turn in front of her. Shelton estimated that she made her lane change approximately 50 feet from the intersection, putting on her turn signal and moving into the right-hand lane. She also estimated that she was about 30 feet from the intersection when she first realized that she was going to have a collision. She estimated her speed at 35 miles per hour, which was the speed limit, and she stated that she maintained her speed up to the point that she hit her brakes prior to impact with Mims’ vehicle. Shelton did not see Mims’ vehicle stopped at the intersection before Shelton switched lanes, but noticed Mims’ vehicle “pulling through the intersection” when Shelton was about 30 feet from the intersection.

Mims testified that on the morning of the accident she was on her way to Brent-wood Hospital for an employment-related orientation session. She was headed east on Stoner and was in the left-turn lane waiting to make a left-hand turn onto Highland. She stated there were no vehicles in front of her in her lane, but there were about three vehicles in the inside lane of Stoner headed in the opposite direction from her. She testified that two of these vehicles came out of the inside lane and went around a vehicle that was stopped in the inside westbound lane. These two vehicles went straight on Stoner, and Mims continued to sit at the intersection waiting to turn. Mims indicated the vehicle waiting to turn was a truck. She stated that she saw no vehicles coming. However, when she had turned onto Highland [ ..¡Avenue, the back of her car was impacted by a vehicle that she did not see prior to the impact. Mims insisted that she had turned completely onto Highland at the time of the impact. Mims also testified there was ño turn signal at the intersection, and that the light was still green when she made her turn.

Mary Ellen Okray and her husband, Donny Ray Okray, testified on behalf of the defendants as witnesses to the accident. According to Mrs. Okray, she was driving a 1990 Chevrolet Beretta westbound on Stoner at the time of the accident. As she approached the intersection with Highland Avenue, she stated that the caution light came on, that she came to a stop, and that she was the first car stopped at the intersection. She indicated that she had seen “a lot of accidents” at the intersection, so when the light turned yellow, she always stopped. Mrs. Okray testified that at the time of the collision, there were no vehicles behind her other than a vehicle that was far enough from the intersection to not yet come to a stop. She also indicated that she had remarked to her husband about Shelton’s vehicle, which she could see in her rearview mirror, “proceeding kind of fast behind me.” However, she admitted that she did not know whether or not Shelton was exceeding the speed limit. In her rearview mirror, Mrs. Okray saw Shelton’s vehicle change to the outside lane and go “through the light” where the impact occurred. Mrs. Okray estimated that the impact occurred a “couple of seconds” after the light had turned yellow.

Mr. Okray was in the front passenger seat of the Chevrolet Beretta at the time of the accident. He stated that he and his wife were stopped at the | intersection of Stoner and Highland, and that the light “was on yellow, and you couldn’t beat the light when it was on yellow.” He testified that it then turned red. Like his wife, he indicated that there were no cars ahead of theirs at the intersection. He testified that when Shelton’s vehicle came around theirs, “it hit the car coming from Highland — coming down Highland.... ” He identified Mims’ vehicle as a blue Toyota Célica, and stated that he first noticed the vehicle “when it got hit.” He indicated that the impact occurred in the middle of Stoner “up under the light.” Both Mr. and Mrs. Okray indicated that they knew Mims prior to the accident because she worked where Mrs. Okray used to work. However, they indicated that they did not see Mims socially.

At the conclusion of the trial, the court specifically found Shelton to be a credible witness. The court held that the cause of the accident was Mims’ turning left in front of Shelton at the intersection, and the court placed the full responsibility for the accident on Mims. The court awarded Shelton general damages of $5,000.00, medical expenses of $2,450.00, and property damages of $380.50. Judgment in favor of the intervenor, Allstate, and against Safeway and Mims was given for property damage of $1,883.37.

Mims and her insurer appealed.

LAW

A driver making a left turn has a statutory duty to “yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate |shazard.” La. R.S. 32:122. A left turn is one of the most dangerous maneuvers a driver may execute and requires the exercise of great caution. Before attempting a left turn, a driver should ascertain whether it can be completed safely. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Silva v. Calk, 30,085 (La.App.2d Cir.12/10/97), 708 So.2d 418; Hughes v. Scottsdale Insurance Company, 35,043 (La.App.2d Cir.8/22/01), 793 So.2d 537. The burden rests heavily on the motorist who desires to make a left turn to explain how the accident occurred and to show that he is free of negligence. Silva v. Calk, supra; Hughes v. Scottsdale Insurance Company, supra.

Credibility determinations are subject to the strictest deference and the manifest error-clearly wrong standard demands great deference for the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong but whether the factfinder’s conclusion was a reasonable one. Stobart, supra. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, supra.

IfiDISCUSSION

The defendants argue that Shelton’s testimony was contradictory and not credible. They also contend that Shelton did not have “carte blanche” to enter the intersection simply because she observed a green light. Instead, they argue that Shelton was required to at least “perform a cursory exam of the intersection.”

Our review of the testimony reveals no major inconsistencies in Shelton’s testimony. To the contrary, the testimony reveals that prior to making a left turn, one of the most dangerous maneuvers a driver can execute, Mims failed to observe the Shelton vehicle — even though there was, by her own admission, no reason why she could not have seen it. Thus, Mims did not ascertain whether her left turn could be completed safely before engaging in this maneuver.

We cannot conclude that the trial court’s conclusions of fact were manifestly erroneous, especially in view of the conflict in the testimony among the witnesses. Mims testified that the vehicle stopped at the intersection in the opposite direction was a truck, whereas the occupants of the vehicle, the Okrays, both testified that their vehicle was a Chevrolet Beretta. Furthermore, while Mr. Okray stated that Mims’ vehicle was coming from Highland when it was hit, Mims plainly was traveling on Stoner and attempting to make a left turn onto Highland. Mims testified that the collision took place after she already had turned completely onto Highland, but the testimony of the other witnesses, as well as logic, placed the point of impact in the intersection. There would have been no reason for |7Shelton to veer onto Highland Road and strike Mims’ vehicle. Also, Shelton and Mims agreed that the light facing both of them was green. Mrs. Okray testified that the light was yellow. Her husband testified that it was first yellow, then red; he also inexplicably testified that the light facing Mims was green — apparently reasoning that because cars were going through the intersection, it must have been green.

Shelton admittedly did not slow her vehicle as she approached the intersection; nevertheless, Shelton had the right to proceed through the intersection at the posted speed limit if the light was green. The trial court obviously believed that Shelton was truthful when she stated that she was driving within the posted speed limit and that the light was green as she approached the intersection.

Ultimately, this case comes down to a determination of credibility. The trial court, which heard the testimony and viewed the witnesses first-hand, was in a far better position than this court to assess credibility. Accordingly, we will not disturb that credibility determination.

CONCLUSION

The trial court judgment is affirmed. Costs in this court are assessed against the defendants.

AFFIRMED.


author:
hKOSTELKA, J.
      11 CARAWAY, J.,

text:
    Rita COLGATE, Plaintiff-Appellant, v. MUGHAL BROTHERS, INC., d/b/a The Extremes Nightclub, Defendant-Appellant.
    No. 36,754-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Rehearing Denied Feb. 27, 2003.

      Stephen A. Jefferson, Monroe, for Defendant-Appellant, Nusrat A. Mughal.
    Jack Wright, Jr., Monroe, for Plaintiff-Appellant, Rita Colgate.
    Before GASKINS, CARAWAY and KOSTELKA, JJ.
   hKOSTELKA, J.

In this wrongful death lawsuit, we are presented with two separate appeals from the judgment of the Fourth Judicial District Court for the Parish of Ouachita, State of Louisiana. First, Nusrat Mughal (“Mughal”) appeals a judgment in favor of Rita Colgate (“Colgate”), the mother of Brandi Spradlin, who died in a one-vehicle accident in March, 1998. Second, Colgate appeals the same judgment, arguing that the money damages in her favor were insufficient. For the following reasons, the judgment of the trial court is reversed and the appeal by Colgate dismissed.

Facts

Brandi Spradlin (“Spradlin”) was twenty years old on the date of her death. Although Spradlin’s whereabouts for the entire evening preceding her death are not completely known, she did spend time at The Extremes nightclub, where she allegedly drank alcoholic beverages. Spradlin also visited other nightclubs, where, again, she may or may not have consumed alcoholic beverages. At approximately 2:00 a.m., Spradlin left The Extremes. Several hours later, she lost control of her vehicle. The resultant collision left her with' massive injuries which caused her death. Blood tests revealed that Spradlin had a blood alcohol concentration in excess of the presumptive limit for legal intoxication.

Colgate filed suit against Mughal Brothers, Inc. d/b/a The Extremes Nightclub, generally claiming it was negligent in failing to prevent the sale of alcohol to Sprad-lin or in failing to prevent others from furnishing |gSpradlin alcohol. A supplemental petition was later filed by Colgate naming Mughal, individually, as defendant (he was former president and sole shareholder of Mughal Brothers, Inc.), claiming that the corporation had been dissolved by affidavit on December 14, 1999. When Mughal failed to answer the amended petition filed against him, Colgate attempted to obtain a default judgment against him; however, the trial court, upon hearing evidence of Colgate’s claims, determined that insufficient evidence existed to find Mu-ghal liable by a default judgment.

In January, 2002, a trial was held in the matter. Raymond Sandage (“Sandage”) was the only witness to testify that he saw Spradlin at The Extremes the evening before her death. According to Sandage, he arrived with a friend, Chris Boyd (“Boyd”) at The Extremes between 12:30 a.m. and 1:00 a.m., after having been to another nightclub. He admitted during cross-examination that he consumed twelve beers prior to his arrival at The Extremes and drank at least one more beer while there. Sandage stated he had never seen Spradlin before that night, but that Boyd pointed her out to him. At that time, Sandage testified, Spradlin was at the main bar, and he witnessed her take two glasses or plastic cups of a beverage he assumed to be beer from the counter. He did not see Spradlin pay for the drinks, nor did he- see a bartender hand her the drinks — he only saw her remove the two cups from the counter. According to Sandage, Spradlin drank only one beer and then danced with Boyd until the bar closed at approximately 2:00 a.m. At that time, Spradlin, Sandage and Boyd left together in Spradlin’s car, which she drove, along with another unnamed male passenger. After an 1 .^unsuccessful attempt to purchase alcohol at a convenience store, Spradlin dropped off the unnamed passenger, and then Spradlin drove to the Western Club, an after-hours nightclub where patrons brought their own liquor. Sandage saw Spradlin sporadically while they were at the Western Club — she was dancing with Boyd while Sandage played pool. Sandage left the Western Club at approximately 4:00 a.m., but Spradlin remained at the club.

The only other testimony at trial bearing on Spradlin’s consumption of alcohol the night of her death was that of Drury Bynum (“Bynum”), a pharmacist who was qualified, over objection, as an expert in the field of pharmacology, specifically in the area of absorption and degradation of alcohol in the human body. It was By-num’s opinion, based on Spradlin’s blood alcohol level at the time of her death, that the beer consumed by Spradlin at The Extremes was a contributing factor to the motor vehicle accident causing her death.

There were also several witnesses who testified as to the procedures in place at The Extremes to ensure that underaged patrons were not sold or served alcohol. Gerald Hamms (“Hamms”), a Winn Parish deputy sheriff, worked at The Extremes as a security guard. His main duty was to stand by the bar to ensure that the bartenders did not sell or serve alcohol to underaged patrons. George Taitón (“Tai-tón”) was the general manager of the club. He testified that those patrons twenty-one and over were given a bracelet to wear in order to indicate to the bartenders they were of the legal drinking age and able to purchase alcohol. Taitón stated that the bartenders were under strict orders not to sell or serve alcohol to patrons without ^bracelets under threat of losing their jobs. Finally, Tanveer Mughal, Mughal’s brother, testified and explained how he assisted his brother in opening The Extremes and that he and Taitón had devised the bracelet system so the bartenders could differentiate legal-aged patrons from those underaged.

Upon the conclusion of trial, the trial court immediately rendered its judgment, giving oral reasons for judgment at that time. The trial court noted:

Now, I realize this is not a perfectly] proven case. But, we determined that she was at the Extremes. There’s an hour, at least maybe two hours at the beginning that we don’t know where she was. After 2:00 o’clock, which is the closing of the Extremes she obviously went by witnesses’ testimony to the West Monroe Western Club and maybe even somewhere else after the last witness had any contact with her. The best I can come up with is maybe split the time of 9:00 to 5:00. Four hours at the Extremes, four hours somewhere else. We don’t know, it wasn’t shown that she didn’t have or did have any drinks anywhere else. But, we know that she had some drinking at the Extremes and she was in some.. to some degree tipsy or unbalanced or- not totally there....

The trial court valued the award at $300,000, but then divided that amount in half, based on its assumption that Spradlin possibly had spent half of her time at another nightclub. The trial court further attributed Spradlin’s comparative fault at 50 percent, and made a final award to Colgate of $75,000. These appeals ensued.

Discussion

On appeal, Mughal argues that the trial court erred in its determination that Mu-ghal was negligent because employees of The IsExtremes served Spradlin alcohol which contributed to the cause of her death. For the following reasons, we agree.

In Berg v. Zummo, 2000-1699 (La.04/25/01), 786 So.2d 708, the Louisiana Supreme Court addressed the precise issue of a bar owner’s liability arising from the sale or service of alcohol to persons under twenty-one years of age. In Berg, the court concluded that the liability of a vendor of alcoholic beverages who sells or serves alcohol to a person under the legal drinking age is determined under La. C.C. arts. 2315 and 2316, using the traditional duty/risk analysis on a case-by-case basis.

Louisiana R.S. 9:2800.1 limits the liability of those who sell or serve alcoholic beverages; however, the statute only provides immunity to those bar owners who serve or sell alcoholic beverages to “... [persons] over the age for the lawful purchase thereof, ...” La. R.S. 9:2800.1(B). Thus, when a bar serves alcohol to a person under the age of twenty-one, and that person causes damage because of his intoxication, La. R.S. 9:2800.1 does not immunize the bar owner from liability; however, neither is that bar owner absolutely liable. Berg, 786 So.2d at 714.

L In determining whether liability exists, the court must determine whether the bar owner violated general negligence principles, applying the traditional duty/ risk analysis. Id. In Berg, the court determined that the following five separate elements must be proved: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element). Id. at 715-16, citing, Roberts v. Benoit, 605 So.2d 1032, 1051 (La.1991). A negative answer to any of the elements of the duty/risk analysis prompts a no-liability determination. Stroik v. Ponseti, 96-2897 (La.09/09/97), 699 So.2d 1072, 1077.

The burden of proving negligence by a preponderance of the evidence rests on the party alleging it. Aetna Life and Cas. Co. v. Solloway, 25,462 (La.App.2d Cir.01/19/94), 630 So.2d 1353, writ denied, 94-0575 (La.04/22/94), 637 So.2d 162. The plaintiff bears the burden of proving his case by a preponderance of the evidence. Id. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance of the evidence when, taken as a whole, such proof shows that the fact sought to be proved is more probable than not. Aetna Life and Cas. Co., supra, citing, Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621, 627 (1972). Here, in considering the facts of this case and applying the elements of the 17duty/risk analysis, we determine that Colgate failed to prove by a preponderance of the evidence that Mughal acted negligently-

The Louisiana Supreme Court determined that a vendor of alcoholic beverages has a duty to refrain from selling or serving alcohol to minors, noting that such activity is illegal. Berg, 786 So.2d at 716. Thus, we recognize the duty imposed on Mughal not to sell or serve alcohol to patrons under age twenty-one, such as Spradlin.

Once the duty is established, it is then incumbent upon the plaintiff to prove by a preponderance of the evidence that the stated duty was breached by the vendor. Whereas, in Berg, there was direct evidence that a minor had purchased alcohol at the bar in question, proving the breach, the evidence in this case does not so obviously lead to the conclusion that Mughal breached his duty to Spradlin.

In this case, the only evidence bearing on the issue of whether Spradlin was sold or served alcohol by employees at The Extremes is entirely speculative. Probabilities, surmises, speculations, and conjectures are insufficient to prove negligence by a preponderance of the evidence. Cangiano v. Forte Hotels, Inc., 2000-40 (La.App. 5th Cir.10/31/00), 772 So.2d 879, 881, writ denied, 2000-3254 (La.01/26/01), 782 So.2d 636; Leger v. Citron Ford, Inc., 589 So.2d 23 (La.App. 1st Cir.1991).

The only evidence before the trial court bearing directly on this issue was through the testimony of Sandage. He testified he observed Spradlin take two glasses of beer from the main bar counter but that he saw no money exchange hands. Neither did he state that a bartender had handed IsSpradlin, i.e., “served,” the drinks. This evidence on the critical issue of whether Spradlin was sold or served alcohol by The Extremes is inadequate to conclude that Mughal breached his duty to Spradlin, because it requires further speculation by the fact finder as to how Spradlin obtained the drinks Sandage described. Given only Sandage’s testimony, the trial court, in reaching its judgment, had to surmise that a bartender at The Extremes sold or served Spradlin alcohol; however, other scenarios exist that are as plausible. For example, it is just as possible that someone of legal drinking age purchased the drinks for Spradlin or that she had fraudulently obtained a bracelet with a false identification card. There is no evidence to rule out such possibilities, which are also speculative, but no more so than the claim that she was sold or served alcohol by the bartenders at The Extremes.

As to the expert opinion of Bynum regarding Spradlin’s level of intoxication while she was at The Extremes, even if accepted, his opinion only proves that she was intoxicated during the time. It lends no support (without additional conjecture by the fact-finder) to the element of whether Mughal breached his duty to Spradlin or whether Spradlin consumed alcohol after leaving The Extremes. Again, to reach the conclusion that Mughal breached a duty to Spradlin would require speculation that Spradlin was intoxicated as a sole result of being sold or served alcohol by employees of The Extremes, of which there is no evidence. Thus, Colgate failed to meet her requisite burden of proof. Such a finding pretermits a discussion of the remaining elements under the duty/risk analysis.

| ciResultantly, there is no need to address the additional assignment of error raised by Mughal regarding the trial court’s denial of the exception of non-join-der of an indispensable party. Moreover, our finding herein renders moot the appeal brought by Colgate on the issue of the adequacy of the money damage award. Said appeal is, therefore, dismissed.

Conclusion

For the foregoing reasons, the judgment of the trial court in favor of Rita Colgate is reversed and costs of this appeal are assessed to her.

REVERSED AND DISMISSED.

CARAWAY, J., concurs with written reasons.

11 CARAWAY, J.,

concurring.

I respectfully concur in the decision of the majority.

Contrary to the majority’s conclusion that Mughal did not breach a duty to Spradlin, I find that the trial court could conclude that such a breach occurred. Nevertheless, I do not find that the defendant’s substandard conduct was shown by the evidence to be a cause-in-fact of the fatal accident.

Sandage testified that Spradlin “looked like she’d been drinking a lot” when he first met her in the nightclub. He stated that she was walking around holding two beers. Her statements indicated to Sand-age that she had been at the club for a lengthy period of time prior to his arrival. The club had a bracelet system, as described in the majority opinion, to identify the underage patrons (below age 21).

The majority now determines that this evidence was not enough, even circumstantially, to establish that Spradlin was sold or served alcohol by the defendant. The majority relies on the specific wording of our criminal statutes prohibiting the sale and serving of alcohol to underage persons, as though a finding of negligence per se is mandatory. More broadly, a general tort duty of the bar owner exists with regard to this suspect class of persons. The court in Berg recognized “the public policy of this state to prohibit the sale of alcohol to minors and to protect minors and the general public from the effects of a minor’s intoxication.” 786 So.2d at 715. That policy should serve to define a broader duty that would place upon the defendant some responsibility for Spradlin’s intoxication exhibited at The Extremes.

| ¡¡Nevertheless, I can agree that causation was not established in this case. Sandage left the defendant’s club and drove without incident to another establishment where alcohol was also accessible. There was a significant amount of time between 2:00 a.m. and the 5:30 a.m. accident that was unaccounted for by the plaintiffs evidence. Most significantly, the details of the automobile accident were not presented at trial. Defendant’s substandard conduct, therefore, was not shown to be the cause-in-fact of the accident.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, PEATROSS, and KOSTELKA, JJ.

Rehearing denied.

      .- Although there are technically two appeals, there is only one docket number assigned.

      . The Extremes was originally owned by Mu-ghal's corporation, Mughal Brothers, Inc., which was the original plaintiff in Colgate's lawsuit. However, as will be explained in further detail herein, the corporation was subsequently dissolved.

      . The sale or delivery of alcohol to those under the age of twenty-one is illegal, pursuant to La. R.S. 14:93.11(A), which specifically provides: Unlawful sales to persons under twenty-one is the selling or otherwise delivering for value of any alcoholic beverage to any person under twenty-one years of age unless such person is the lawful owner or lawful employee of an establishment to which the sale is being made and is accepting such delivery pursuant to such ownership or employment. Lack of knowledge of the person’s age shall not be a defense.
      Further, La. R.S. 26:90 also prohibits a retail dealer from selling or serving alcoholic beverages to a person under the age of twenty-one, or permitting a person under the age of eighteen to visit any place where alcoholic beverages or beer are the principal commodities sold, handled or given away. So considering, there is no prohibition from allowing those persons eighteen years of age from entering a bar, as long as those who are eighteen years old but under twenty-one are not sold or served alcohol.


author: | t KOSTELKA, J.

text:
    STATE of Louisiana, Appellee, v. Melvin THORNTON, Appellant.
    No. 36,757-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Louisiana Appellate Project, by J. Wilson Rambo, Paula C. Marx, Lafayette, for Appellant.
    Richard Ieyoub, Attorney General, Robert W. Levy, District Attorney, Clifford R. Strider, III, Assistant District Attorney, for Appellee.
    Before PEATROSS, KOSTELKA and HARRISON (Pro Tempore), JJ.
   | t KOSTELKA, J.

Melvin Thornton (“Thornton”) was convicted as charged of second degree murder, La. R.S. 14:30.1, and was sentenced to mandatory life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. He now appeals his conviction and sentence. We affirm.

Facts

During the late evening hours of April 10, 1999, the Ruston, Louisiana Police Department received a report that a gunshot was heard in a particular neighborhood. Officer Travis Sullivan (“Sullivan”) arrived at the scene and spoke to an adult male who reported hearing a single gunshot followed by the sound of a vehicle accelerating and crashing. Sullivan located a pickup truck on a nearby street which had apparently hit a mailbox and a parked vehicle before coming to a stop. Sullivan approached the truck and saw the body of a white male, later identified as Frank Dunaway (“Dunaway”), bleeding profusely from a gunshot wound to the back of his head. He had been shot once in the face at close range under the left eye with the bullet exiting the back of his head. An emergency vehicle took Dunaway to Lincoln General Hospital where he was pronounced dead.

The next evening, after nineteen-year-old Rodney Caldwell, Jr. (“Caldwell”) identified Thornton as Dunaway’s shooter, police began looking for Thornton. On April 12, 1999, the police received an anonymous tip that Thornton was hiding at his aunt’s residence where he was later arrested. In a statement to police, Thornton denied any involvement in the shooting.

^Discussion

Sufficiency of the Evidence

First, it is appropriate that we address Thornton’s sufficiency of the evidence complaint. State v. Hearold, 603 So.2d 731 (La.1992). The question of sufficiency of the evidence is properly raised by motion for post-verdict judgment of acquittal. La.C.Cr.P. art. 821; State v. Gay, 29,434 (La.App.2d Cir.06/18/97), 697 So.2d 642. The record shows that Thornton raised the issue of sufficiency of the evidence in the trial court in a joint motion for post-verdict judgment of acquittal and new trial. Accordingly, he has properly preserved the issue for appellate review.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency-of-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. State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 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 |3doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983).

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, and does not extend to credibility determinations made by the trier of fact. State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). 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. Bosley, supra. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

In pertinent part, second degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm or is engaged in the perpetration or attempted perpetration of an armed robbery. La. R.S. 14:30.1.

On appeal, Thornton argues that the state failed to exclude the reasonable hypothesis that Caldwell killed Dunaway. Specifically, Thornton argues that the witnesses’ testimony, including that of Caldwell, implicating him as the perpetrator of the murder, was not believable.

This evidence included Caldwell’s testimony that he witnessed Thornton shoot Dunaway while trying to rob him. Caldwell and Thornton had obtained a ride with Dunaway at John’s Texaco station where they had gone to purchase beer. Caldwell testified that as he exited the back of the [¿truck, he saw Thornton holding a gun in Dunaway’s face while telling him to “give it up,” and then Caldwell heard a shot.

Rodriguez Brantley (“Brantley”) testified that he met Thornton while in jail and that Thornton confessed the entire crime to him. Brantley informed the jail warden. Brantley testified that Thornton told him that he shot Dunaway with a .38 handgun he stole from his grandfather. Vernon Kelson (“Kelson”) also testified against Thornton and stated that while he was in jail, Thornton confessed the murder to him. Kelson stated that Thornton drew three maps outlining the crime scene and his involvement in it. Kelson presented the maps to the jail warden.

Michael Stelly, an expert in fingerprint identification, identified Thornton’s fingerprints on the maps.

The remaining evidence included the testimony of Thornton’s grandmother who testified that her husband reported his .38 pistol stolen. Officer Gerald Jenkins confirmed that such a report occurred on April 10, 1999. Additionally, Thornton’s aunt, Lynetta Banks, contradicted Thornton’s claim that he remained at her house the entire evening of the crime; she testified that Thornton was in and out of the house on that evening and that the last time she saw him he was playing a video game around midnight.

When viewed in the light most favorable to the state, we find this evidence sufficient to support Thornton’s second degree murder conviction. The jury heard and evaluated Caldwell’s testimony, including any inconsistencies contained therein. Obviously, the jury accepted that [¿testimony as credible. We decline to disturb this determination. Certainly, if believed, Caldwell’s eyewitness account of the shooting is alone sufficient to show that Thornton shot Dunaway during the perpetration of an armed robbery. Moreover, the jury could also have believed both Brantley’s and Kelson’s testimony that Thornton confessed the crime to them. If accepted, this testimony not only corroborates Caldwell’s version of the events, but, when coupled with it, is more than adequate to support the conviction and exclude every other reasonable hypothesis of innocence. Accordingly, we can find no merit to this assignment of error.

Batson Challenge

Thornton has also raised a claim relating to the systematic exclusion of African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The Batson holding is codified in our law as La.C.Cr.P. art. 795(C), which provides:

C. No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.

To make a Batson claim against the state, the defendant must first establish a prima facie case that the state exercised its peremptory challenges to exclude members of the jury venire solely on the basis of their cognizable race. Batson, supra; State v. Green, 94-0887 (La.05/22/95) 655 So.2d 272. The state need not give an explanation for its use of a peremptory challenge if the trial court does not find that the defense has made a prima facie case, but many trial courts require this to create a complete record. State v. Rose, 606 So.2d 845 (La.App. 2d Cir.1992).

Once a defendant establishes a prima facie case, the burden then shifts to the state to come forward with a race-neutral explanation. This second step of the process does not demand an explanation from the state that is persuasive, or even plausible. The reason offered by the state will be deemed race-neutral unless a discriminatory intent is inherent within that explanation. The persuasiveness of the state’s explanation only becomes relevant at the third and final step which is when the trial court must decide whether defendants have proven purposeful discrimination. Thus, the ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory challenge. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

On appellate review, this court must analyze whether the reasons were race-neutral and whether the trial court properly assessed the weight and credibility of each explanation. State v. Mamon, 26,337 (La.App.2d Cir.12/16/94), 648 So.2d 1347, writ denied, 95-0220 (La.06/02/95), 654 So.2d 1104.

In this case, after the completion of the jury selection, Thornton urged a Batson challenge. At that time, the state had exercised four peremptory challenges against African-Americans and three against Caucasians. In |7denying the merits of Thornton’s Batson challenge, the trial court reviewed all of the peremptory challenges and noted that of the seven strikes, four were against African-Americans. He noted that because two members of the total jury composition were African-American, the overall composition of the jury did not have a disparate impact upon the racial class. Based upon this evaluation, the court ultimately determined that Thornton failed to make out a prima facie case that the state had utilized its peremptory challenges to exclude members based upon their cognizable race. Nevertheless, the court also reviewed the testimony of three of the four, and determined that their testimony revealed race-neutral grounds for their elimination as jurors. One of the jurors was Thornton’s attorney’s neighbor. Of course, knowledge of the parties is a sufficient race-neutral reason for a peremptory challenge of a juror. State v. Tilley, 99-0569 (La.07/06/00), 767 So.2d 6, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001). The second juror indicated that he may not be able to vote guilty even if the state proved a motive. This, too, is a valid race-neutral ground to exercise a peremptory challenge against a juror. Mamón, supra. The third juror’s nephew had been the victim of a crime and she became very emotional when discussing those events. Concerns about the emotional state of a potential juror relating to experiences with criminal victimization is a valid reason for a peremptory challenge.

Additionally, the state chose to proffer its reasons for striking the African-Americans. In addition to the above-noted individuals, the state presented evidence regarding the last stricken person, a black male known |8to the prosecutor because he had recently served on another jury. The prosecutor described how, after that trial, the man came back to watch another trial. During a break in those proceedings, the man approached the prosecutor and wanted to know why they were prosecuting that defendant since it was apparent that he was innocent. The prosecutor explained that it exercised a peremptory challenge against this individual in this case due to the fear that the man might make up his mind before hearing all of the evidence. Previous association with a district attorney can also be a valid ground for a peremptory strike. Mamón, supra. Moreover, the prosecutor’s belief, based upon previous experience with the individual, that the person would make up his mind before hearing all of the evidence is a valid race-neutral ground for the exercise of a peremptory challenge.

After reviewing the grounds provided for the exercise of the state’s peremptory challenges regarding these African-American individuals, we find them sufficiently race-neutral. Therefore, this assignment lacks merit.

Mistrial

Prior to trial, one of the jurors observed Thornton being escorted by Deputy James Duggan (“Duggan”) in leg irons, shackles and handcuffs when the elevator door opened. Thornton’s counsel informed the court of the situation and requested a mistrial. The court allowed Duggan to be questioned as to whether the juror saw Thornton in shackles and handcuffs. Duggan stated that Thornton stood in the middle of the elevator while he stood to the front side of him. When the elevator door opened, the juror was | ¡¡standing outside. Duggan testified that he did not know what the juror saw, but he did make eye contact with Duggan.

Both Thornton’s counsel and the state agreed that the trial court should question the juror regarding what he saw. After doing so off the record, the court reported that the juror did see Thornton in handcuffs and that he mentioned it to another juror. Nevertheless, the juror reported that he could remain fair and impartial despite what he observed. Accordingly, the trial court denied Thornton’s motion for mistrial. On appeal, Thornton argues that the denial of the motion was erroneous. We cannot agree.

Absent exceptional circumstances, a defendant before the court should not be shackled, handcuffed, or garbed in any manner destructive to the presumption of innocence or detrimental to the dignity and impartiality of the judicial proceedings. State v. Stephens, 412 So.2d 1057 (La.1982); State v. Plater, 26,252 (La.App.2d Cir.09/21/94), 643 So.2d 313, writ denied, 94-2608 (La.02/03/95), 649 So.2d 402. For a finding of reversible error, the record must show an abuse of the trial court’s reasonable discretion resulting in a clear prejudice to the accused. Plater, supra. The momentary use of restraints for the limited purpose of transporting the accused does not mandate a mistrial even when a juror sees a defendant being transported on two occasions. State v. Jones, 31,613 (La.App.2d Cir.04/01/99), 733 So.2d 127, writ denied, 99-1185 (La.10/01/99), 748 So.2d 434.

In this case, the record shows that the juror momentarily observed Thornton being transported to the courtroom for trial and mentioned it to |inanother juror. The jurisprudence is clear that such an observation under these circumstances does not mandate a mistrial. Nor has Thornton otherwise demonstrated clear prejudice as the result of this incident. When questioned, the juror was able to assure the court that he could remain impartial in rendering a verdict. Thornton presented no evidence contradicting that claim. Accordingly, we can discern no error in the denial of Thornton’s mistrial request.

Excessive Sentence

In his final argument, Thornton contends that the sentence imposed is excessive. He also requests that we remand for resentencing in compliance with La. C.Cr.P. art. 894.1.

The record shows that Thornton failed to file a motion to reconsider sentence in accordance with La.C.Cr.P. art. 881.1. Accordingly, he is precluded from complaining of inadequate La. C.Cr.P. art. 894.1 compliance on appeal and is limited to review of the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993).

In this case, the life sentence without benefit of parole, probation or suspension of sentence is mandatory for the crime of second degree murder and needs no justification. State v. Koon, 31,177 (La.App.2d Cir.02/24/99), 730 So.2d 503.

In State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672, in the context of habitual offender sentencing, the supreme court stated:

_Jjj[T]o rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

It is the legislature’s prerogative to determine the length of a sentence imposed for the crimes classified as felonies, and the courts are charged with applying those punishments unless they are found to be unconstitutional. State v. Armstrong, 32,279 (La.App.2d Cir.09/22/99), 743 So.2d 284, writ denied, 99-3151 (La.04/07/00), 759 So.2d 92. Moreover, this court has afforded great deference to the Legislature’s determination of an appropriate minimum sentence. State v. Ruffins, 32,870 (La.App.2d Cir.12/10/99), 748 So.2d 614.

Thornton’s argument that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment contained in the Louisiana Constitution has been repeatedly rejected. State v. Parker, 416 So.2d 545 (La.1982); State v. Brooks, 350 So.2d 1174 (La.1977); Ruffins, supra; Armstrong, supra; State v. Hereford, 518 So.2d 515 (La.App. 3d Cir.1987).

Nor has Thornton sufficiently demonstrated he is the “exceptional” defendant for which downward departure from the statutory minimum sentence is required. Thornton intentionally shot the victim at very close range while perpetrating an armed robbery. As was aptly stated by the trial l13court, this crime can be characterized as nothing short of a cold-blooded killing motivated by greed. When compared with the severity of the offense, the imposed sentence is neither grossly disproportionate nor shocking to the sense of justice. Accordingly, we cannot find the trial court’s refusal to depart from the mandatory sentencing provisions to be reversible error.

Conclusion

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

CONVICTION AND SENTENCE AFFIRMED.