text:
    STATE of Louisiana v. Orenthal ALLEN.
    No. 2002-KA-1871.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2003.

      Richard Ieyoub, Attorney General, Darryl W. Bubrig, Sr., District Attorney, Belle Chasse, LA and Gilbert V. Andry IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   1EDWIN A. LOMBARD, Judge.

This appeal concerns only the sentencing of the defendant, Orenthal T. Allen, who was charged with aggravated rape of a child under the age of twelve. On November 3, 1998, the State amended the indictment to a charge of aggravated sexual battery, and Allen entered a guilty plea to the amended charge under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

A pre-sentencing hearing occurred on April 20, 1999, and on May 19, 1999, Allen was sentenced to serve fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence; the term is to run consecutively with other sentences Allen is presently serving. Defense counsel objected and a motion to reconsider sentence was filed, but was never ruled upon. Allen appealed, and this court affirmed his conviction for aggravated sexual battery but remanded the case to the trial court for consideration of the motion to reconsider the sentence. State v. Allen, 99-2579 (La.App. 4 Cir. 1/24/01), 781 So.2d 88.

At a hearing on March 14, 2001, the motion for reconsideration of sentence was denied. The defendant was granted an appeal of his sentence.

The facts of the case as presented in that earlier appeal are as follows:

Because Mr. Allen entered a guilty plea, there is no trial transcript in this case. The transcript of the guilty plea reflects that the [ 2assistant district attorney gave a brief statement of what evidence the State would have presented had the case gone to trial. According to the State, the victim W.H. would testify that between August 17 and October 22, 1996, at her grandmother’s home in Empire, Mr. Allen “forced himself upon her, by either inserting his penis into her vaginal area or on the surface of it and forcing her and holding her down and forcing her and threatening her not to talk.” The State also would have presented a videotaped statement from the victim and supporting witnesses, specifically Tina Lafrance. The State also averred that the victim had undergone extensive therapy for the mental trauma caused by the defendant’s actions.
In addition to the factual basis for the plea that was provided by the State, the record contains copies of the pretrial hearing transcripts. On February 10, 1998, Detective Mary McClendon of the Plaquemines Parish Sheriffs Office testified that she became involved in the investigation of Mr. Allen just before the holidays in 1996 when family services contacted the sheriffs department and forwarded a copy of medical reports on the victim. Detective McClendon subsequently interviewed W.H.; the child told the detective that “her sister’s boyfriend, Little Bit, had put his birdie in her private.” W.H. also told the detective that her brother Davey had done the same thing. Detective McClendon also conducted a video interview with W.H., during which W.H. was given anatomical dolls. She pulled the pants down on the male doll and the female doll, then put the male doll on top of the female, placed the doll’s penis inside the private area of the female, and stated that “this is what they did to me.” At the time, W.H. was seven years of age, and it was based on her age that the detective determined that the incident occurred between August 17 and October 22, 1996, the latter date being the date W.H. was removed from her family’s residence. Detective McClendon further testified that Mr. Allen made no statements and no physical evidence was seized from him. Although the victim could not provide any name for Mr. Allen except Little Bit, Detective McClen-don was able to confirm that Mr. Allen, who was the boyfriend of the victim’s sister and the father of at least one of her children, was known by that nickname.
The State also called Patricia Jackson, an investigator with child protection services. She testified that her investigation began in September 18, 1996 when her office received a call that the victim had been sexually abused and was wearing a pair of underwear with blood in them. Ms. Jackson spoke with both W.H. and her mother. W.H.’s mother apparently confirmed that her daughter had been wearing a pair of underwear containing a discharge, but “she didn’t know if they were her underwear, if it was actually for the child and she didn’t know if the underwear were dirty when the child put them on or if they were clean.” Ms. Jackson was not able to recover the ^underwear. She referred W.H. to Children’s Hospital for an evaluation, which was conducted on October 22, 1996 by Dr. Scott Benton. Dr. Benton reported to Ms. Jackson that, based on his interview with W.H., he believed she had been raped. A copy of Dr. Benton’s written report was filed into the record with the State’s discovery answers. W.H. later spoke with Ms. Jackson and related that her brother had “touched her private,” but never related that Mr. Allen had done so.
Robin Penegal of the Office of Community Service testified that she became the case manager for W.H. after she was placed in foster care. Ms. Penegal and W.H. spoke about nightmares that W.H. was experiencing. Ms. Penegal also received reports from the sexual abuse therapy group to which the victim had been referred. The reports indicated that during group sessions, W.H. identified her sister’s boyfriend and her brother as the perpetrators.
On April 14, 1998, W.H. was called as a witness. She testified that she was eight years old and lived in Harvey. When asked why she was living there, she stated it was because she had been abused. She stated that her social worker Ms. Robinson [Robin Penegal] told her she had been abused. W.H. further testified that she used to five with her mother, her grandmother, her older brother Davey, her cousin Kursha, and her little brother Christopher. Her “paw-paw” Lenny also lived with them. W.H. identified Mr. Allen as Orenthal, who used to be her sister Rolita’s boyfriend. According to W.H., her sister was twenty-one and used to live with her also. W.H. was unable to recall how often Mr. Allen visited her sister Rolita or how long he would stay; however, she stated that she could not recall him spending the night. W.H. stated that she shared a room with her grandmother and that her brother slept on the floor, but did not know in which room her brother slept. During the hearing, W.H. was unable to give any other testimony regarding her interactions with Mr. Allen; she denied “ever doing anything with him” or being alone with him. According to W.H., her grandmother and paw-paw were always with them. In further questioning, W.H. gave no responses to questions about what Mr. Allen did that she thought was not right and ultimately indicated that she could not talk about it. During a recess, the court noted for the record “that the witness became emotional, cried and could not talk about the incident or appeared not to be able to talk about the incident.”
After the recess, the defense called the victim’s brother Davey to testify. He stated that he was fifteen and had been living with his father in Lafayette for approximately a year and a half; he formerly lived with his mother and her children. He denied that his grandparents lived with them. He further testified that his sister Rolita lived with another sister, Mia. Davey identified Mr. Allen as Rolita’s fiancé and the father of her two children. He further testified that Mr. Allen did not visit at his mother’s house. Davey denied ever seeing Mr. Allen touch W.H. He admitted that he knew W.H. had accused him of sexually abusing her and that her accusation included the ^allegation that he and Mr. Allen had abused her in the same room at the same time. He denied that any such abuse ever occurred. According to Davey, the accusations against Mr. Allen began because in 1996 Davey’s mother had asked Mr. Allen to obtain drugs for her. When he refused, she threatened him that he was “gonna be sorry.” Da-vey also testified that he had known W.H. to he; on one occasion she had told their mother that her cousin Tashon had touched her and had sex with her. Davey contradicted his earlier testimony and stated that Mr. Allen did come to their trailer on occasion, but would only stay for about 20 minutes. The incident wherein his mother asked Mr. Alien to get drugs for her took place in their trailer.
On May 12, 1998, the victim was again called to testify, but this time Ms. Robin Penegal accompanied her, and sat beside her during questioning. The defense objected, but the trial court permitted it because it was only a preliminary proceeding at which no jury was present. W.H. repeated her testimony regarding her living arrangements with her mother, grandparents, brothers, sister Rolita, and cousin Kursha. W.H. initially could not recall Mr. Allen ever visiting at her house. She also stated that she was “never around him” but then testified that she would talk to him “by her grandma.” W.H. also gave a negative answer to the question of whether Mr. Allen had ever touched, hugged, or kissed her. When asked if she could “think of anything he ever did to you,” W.H. replied “No.” In further questioning, W.H. admitted that she knew “what men and women do with each other;” but when asked if she had ever done anything like that with “Little Bit,” she did not respond. At that point, the court interrupted for a sidebar conference with Ms. Penegal, the victim’s caseworker, in an attempt to determine if the questions could be phrased differently for the victim, although the defense counsel expressed discomfort at asking leading questions. When the witness was again unresponsive, the defense counsel changed his fine of questioning to ask the victim about how she became acquainted with Ms. Penegal; the victim again stated that it was because she had been sexually abused. W.H. denied any recollection of ever telling anyone, including Ms. Penegal, the assistant district attorney, or the sheriffs detective, that “someone had done it with” her; she then testified that she told her mother and her next door neighbor (whose name she did not remember) that she had done it with somebody. W.H. could not remember exactly what she told her mother and neighbor, but she remembered she told them she had done it with her brother. W.H. then repeatedly denied ever telling her mother or her neighbor that she had “done it” with anybody other than her brother.
In still further questioning, W.H. was again asked if she could “remember anybody ever doing anything to you?” at which point she testified that Mr. Allen and her brother David “had sex” with her. When asked to explain what she understood by the term “had sex,” W.H. replied that it meant “he did it with me.” When asked what “did it with me” meant to her, W.H. stated that it meant, “He sexually abused me.” W.H. was unable to answer the specific question, ‘What | sdid he do to you?” At this point in the hearing, the trial court called for a break for the witness. After the break, defense counsel repeated his question, but W.H. was again unable to respond because she could not remember.

State v. Allen, 99-2579, pp. 2-7 (La.App. 4 Cir. 1/24/01), 781 So.2d 88, 89-92.

The defendant asserts three assignments of error: (1) that he has been denied appellate review because the transcript of the hearing on the motion to reconsider the sentence is lost; (2) that the trial court erred in allowing a social worker to testify at the pre-sentencing hearing; and (3) that the sentence is excessive.

Louisiana Const. Art. I, § 19 provides that “[n]o person shall be subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” Louisiana C.Cr.P. art. 843 requires the recording of “all the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements and arguments of counsel” in all felony cases. Louisiana R.S. 13:961(C) provides that, in criminal cases tried in the district courts, the court reporter shall record all portions of the proceedings required by law and shall transcribe those portions of the proceedings required.

A criminal defendant has a right to a complete transcript of his trial proceedings, particularly where appellate counsel on appeal was not also trial counsel. State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214, 215. Where a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform the duty of appellate counsel, the interests of justice require that a defendant be afforded a | finew, fully recorded trial. Id. This court, however, has held that under some circumstances a complete appellate review of a conviction and sentence can be accomplished, even when portions of the trial record are missing. See, e.g., State v. Cooley, 98-0576 (La.App. 4 Cir. 12/2/99), 747 So.2d 1182, 1187.

A slight inaccuracy in a record or an inconsequential omission from it that is immaterial to a proper determination of the appeal will not cause an appellate court to reverse a defendant’s conviction. State v. Allen, 95-1754 (La.9/5/96), 682 So.2d 713, 722. An incomplete record may nonetheless be adequate for appellate review. State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473, 480. Finally, a defendant is not entitled to relief absent a showing of prejudice based on the missing portions of the transcripts. Id.

In the instant case, the record does not contain the transcript of the hearing on the motion to reconsider the sentence. According to the defendant’s brief, the transcript was lost in the courthouse fire in Plaquemines Parish. Nonetheless, the minute entry of the hearing is part of the record; it indicates that the judge, the district attorney and his first assistant, the defendant and his attorney were present. The minute entry states in pertinent part:

Mr. Barbee [defense attorney] presents arguments to the court, followed by rebuttal from the State. The Court questions counsel for the defendant and counsel for the State.
The Court gave reasons and denied motion. Objections from Mr. Barbee were noted for the record.

(Record, Vol.l, p. 20-A).

In his motion to reconsider the sentence, the defendant’s counsel argued only that the sentence was excessive in that the amount of time imposed is not proportional to the crime committed. (Record, Vol.l, p. 115). The same argument is made on appeal.

[7The defense maintains that this case is similar to State v. Pairean, 395 So.2d 687, 690 (La.1981), where the Supreme Court held that an incomplete record required vacating the multiple offender sentence and remanding the case for resentencing. In Pairean the transcript of the multiple bill hearing indicated that certified copies of the prior convictions were filed into the record; however, on appeal the documents were not part of the record, and thus not subject to review.

Pairean is distinguishable from the case at bar in that the missing records in Paire-an were evidentiary, whereas in the instant case, the missing transcript contains merely legal arguments from the parties on a single issue. Although the transcript of the reconsideration of sentencing hearing is missing, the transcripts of the pre-sentencing and sentencing hearings are part of the record. They contain Allen’s attorneys’ arguments as to the sentence, and the issue is part of this appeal. Moreover, the defendant has suffered no prejudice as a result of the missing hearing transcript.

There is no merit in this assignment.

The defendant next contends that the trial court erred in allowing Ms Robin Penegal, a social worker at the Office of Community Services in Plaquemines Parish, to testify at the pre-sentencing hearing of April 20, 1999. At the hearing, the defense attorney objected to her testimony, and the trial court directed him to La.C.Cr.P. art. 894.3, Notice to victim for | Ssentencing. Under that article, a victim, her parent, or a guardian may attend the sentencing hearing and testify. The defendant on appeal argues that Ms Penegal does not fit into any listed category. Under the circumstances, however, we disagree. The victim’s father is dead, her mother incapacitated, and she is in foster care. Thus, the State of Louisiana has custody of the victim, and, as the social worker following the victim for OCS, Ms Penegal was serving as her guardian. Under La.C.Cr.P. art. 894.3, Ms Penegal had a right to testify at the pre-sentencing hearing.

There is no merit in this assignment.

In his final argument, the defendant contends that his fifteen-year sentence is excessive. Defendant maintains that he was sentenced as though he were a multiple offender under La. R.S. 15:529.1.

In fact, the defendant was sentenced under La. R.S. 14:43.2 for aggravated sexual battery. That statute provides for a penalty of imprisonment with or without hard labor and without benefits of parole, probation, or suspension of sentence for no more than fifteen years. Thus, he received the maximum term.

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of | ^proportion to the severity of the crime. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). Because the trial court has broad discretion in imposing a sentence within statutory limits, a reviewing court can set it aside only if it is clearly excessive, rather than because another sentence might have been appropriate. State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959.

In reviewing a claim of excessive sentence, the appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines and whether the sentence is warranted under the facts established by the record. State v. Soco, 441 So.2d 719 (La.1983). Because a sentence could be excessive even though it falls within the statutory limit, the trial court’s statement regarding the factors considered under Article 894.1 of the Code of Criminal Procedure is an important aid in reviewing an alleged excessive sentence. State v. Cann, 471 So.2d 701, 703 (La.1985).

Prior to sentencing in this case, the judge ordered a pre-sentencing investigatory report. At sentencing the judge noted that, according to the report, the defendant had two prior felony offenses for distribution of cocaine. The defense objected that the defendant should be treated as a first offender because his distribution of cocaine convictions occurred on June 12, 1997, after the commission of the aggravated sexual battery, which occurred between August 17 and October 22, 1996. The trial court noted that it could not ignore the defendant’s record of disturbing the peace, two counts of distribution of cocaine, drug traffic loitering, and flight from an officer.

At sentencing the trial court addressed the defendant:

The Court has ... applied the following aggravating factors in determining your sentence: There was deliberate cruelty to the victim, you knew the victim was particularly vulnerable due to her |inyoung age, her very young age. You used your position as the boyfriend of the victim’s sister to facilitate this offense, and you knew or you had reason to know that this crime would cause significant, permanent mental injury to the victim, a child. You encouraged the victim’s brother to commit the same crime against and with the victim. And finally to this day you have shown no remorse or asked for any forgiveness or shown any regret.
The Court has applied the following mitigating factors in determining your sentence: The Court is cognizance [sic] of the prior occurrences and the other convictions and the time scheduling allowed. However, those prior convictions, prior acts of criminal activity must be weighed against you. But the Court does consider your plea of guilty and accept [sic] the responsibility of that crime in that plea. But to the extent or beyond the plea of guilty, no remorse, no regret, no apology, no forgiveness has been asked.
(Sentencing transcript, Record, Vol. 2, pp. 14-15).

The court continued by stating that “it is a case of this type that is the most serious in our society, it’s a defenseless child against an adult.” (Id., p. 17). The trial court concluded by finding the crime “inexcusable” and sentencing the defendant to serve fifteen years at hard labor without benefits; i.e., the maximum sentence.

The judge indicated that just prior to sentencing he had read though the transcripts of the case and the sentencing guidelines. His thoughtful review of the defendant’s history, when considered with the facts established in the record, provides this court with a record of the considerations taken into account and an adequate factual basis for the sentence.

We find that the court did not consider sentencing Allen as a multiple offender; rather, the court found him to be one of the worst type of offenders on this offense, and sentenced him accordingly.

Furthermore, Allen was originally charged with aggravated rape of a child under twelve, an offense carrying a penalty of death or life imprisonment. By pleading guilty to aggravated sexual battery, he reduced his incarceration period to fifteen years. We do not find the sentence to be excessive or grossly | t ¶ disproportionate to the seriousness of the crime under the circumstances established in the record.

There is no merit in this assignment.

Accordingly, for reasons stated above, the defendant’s sentence is affirmed.

AFFIRMED.

      . The victim’s full name is being omitted from this opinion to protect her identity.

      . La.C.Cr.P. art. 894.3 provides in pertinent part:
      (A) Before sentencing a defendant who has been convicted of a violation of a sex offense as defined in R.S. 15:541(14.1), ... the clerk of court shall give written notice of the date and time of sentencing ... to the victim, or the victim’s parent or guardian....
      (A) The victim or the victim’s parent or guardian who desires to do so shall be given a reasonable opportunity to attend the hearing and to be heard.

      . The fifteen-year sentence is to be served consecutively to the other sentences the defendant is serving for distribution of cocaine.


source: Caselaw Access Project

author: 1LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Johnell DEMPSEY.
    No. 2002-KA-1867.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2003.

      Harry F. Connick, Orleans Parish District Attorney, Anne M. Dickerson, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellee.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO, JR.).
   1LEON A. CANNIZZARO, JR., Judge.

The defendant, Johnell Dempsey, was charged by bill of information with four counts of armed robbery, violations of La. R.S. 14:64; he pled not guilty. Following a'trial, a twelve-person jury found the defendant guilty as charged on all counts. After a hearing pursuant to the Habitual Offender Law, La. R.S. 15:529.1, the trial court found the defendant to be a second felony offender and sentenced him to serve ninety-nine- years at hard labor as to count one. The court also sentenced him to serve ninety-nine years on each of the other three counts. All four sentences were imposed without the benefit of parole, probation, or suspension of sentence and were to be served consecutively with each other.

FACTS

I

Mr. Charles Shumate testified that about 11 a.m. on New Year’s Day of 2002, he and his girlfriend, Berry Burnside, were walking on Royal Street toward Esplanade Avenue when a man aggressively approached him, put his arm around Mr. Shumate’s shoulder, and declared, “I’m taking your money.” The man wore all black clothing and a security badge. Mr. Shumate did not take the man ^seriously until he said, “I’m not fucking around. I’m taking your money. I have a gun.” The man opened his jacket to reveal a gun. Ms. Burnside was walking in front of the two men. The robber warned her to “keep walking.” Mr. Shumate handed over about thirteen dollars, which was all the money he had in his wallet. Ms. Burnside then said, “We’ll give you all our money. Would you just leave us alone?” The robber told her to shut up and demanded her money. She handed him two dollars from her pocket. The robber looked at Mr. Shumate and said, “You didn’t see me and you don’t recognize me, do you?” Mr. Shumate answered negatively, and the robber turned and left. The couple walked to a nearby bakery and called the police to report the incident. During that afternoon, Detective George Tessier transported - Mr. Shumate to the police station, and as they entered a room, the detective asked him if he recognized anyone there. Mr. Shumate identified Dempsey as the man who had robbed him and Ms. Burnside at gunpoint. Ms. Burnside did not go to the police station. Months later, Detective Tessier showed her a photo lineup, and she could not make an identification.

II

Elaine MacNeil of San Francisco, and her friend, Jennifer Fishetti of New York, were also in the French Quarter on New Year’s Day of 2002. They were walking on Chartres Street near Dumaine Street shortly after noon when a man came from around the corner. Ms. MacNeil initially thought he was a police officer because he was wearing dark clothes and a jacket with an insignia. As he got near the women, he pulled out a gun and pointed it at Ms. MacNeil who was walking a bit ahead of Ms. Fishetti. Ms. MacNeil said, “No” in a very loud voice when the gun was pointed at her. The gunman then demanded her money. Ms. |3Fishetti, who had caught up with her friend and realized what was happening, handed him three hundred dollars. The gunman “started jabbing the gun” at Ms. MacNeil while saying “[g]ive me your money now! Give me your money or I’m going to hurt you!” She then gave him about forty dollars. The robber said, “Just walk.” The women did. Once safely away from their attacker, they entered a nearby business and called 911 to report the crime. While the police were taking information from the women, they received a call of an apprehension of a suspect. The women were transported nearby to Bourbon Street, where the suspect was presented to them. Both women identified Dempsey as the man who robbed them at gunpoint. -

Prior to his being identified, Dempsey was arrested inside of the Bourbon Pub, which is located at the intersection of St. Ann Street and Bourbon Street. The arrest occurred at about 12:25 p.m. Dempsey matched the description that was broadcast over the police radio. Additionally, an employee of the establishment had informed the arresting officer that Dempsey was armed. After the apprehension, an incidental search of his person revealed a gun, two small swords, a pair of handcuffs, and $305.00 in currency.

Dempsey was transported to central lock up after the identification procedures where he was charged with the armed robbery offenses. During that time, it was learned that he had a 1997 felony conviction for issuing worthless checks in Jefferson Parish.

1 ¿ASSIGNMENT OF ERROR

In a single assignment of error, the defendant argues that the four maximum sentences of ninety-nine years each imposed consecutively are not justified in this case.

APPLICABLE LAW AND DISCUSSION

Article I, Section 20 of the Louisiana Constitution of 1974 provides that “No law shall subject any person ... to cruel, excessive or unusual punishment.” A sentence within the statutory limit is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless imposition of pain and suffering.” State v. Caston, 477 So.2d 868 (La.App. 4 Cir.1985). Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983).

If adequate compliance with La.C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982).

If the judge records the factors affecting his sentencing decision, the sentence should not be set aside as excessive unless it is grossly disproportionate to the offense or represents nothing more than the needless infliction of pain and suffering. State v. Pike, 426 So.2d 1329, 1335 (La.1983).

La.C.Cr.P. art. 883 provides, in part:

|BIf the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

Louisiana law favors concurrent sentences; however, a trial court retains the discretion to impose consecutive sentences on the basis of other factors, including the offender’s past criminality, violence in the charged crimes, or the risk that the defendant poses to the general safety of the community. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49. When consecutive sentences are imposed for crimes arising out of the same act, the trial court must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La.C.Cr.P. art. 894.1. State v. Pittman, 604 So.2d 172 (La.App. 4 Cir.1992). Consecutive sentences for crimes arising out of the same act are not per se excessive if other appropriate factors are considered. Id.

In this case, the defendant engaged in two separate and distinct acts or transactions, i.e., two separate armed robberies that occurred at different times and locations and involved different sets of victims. These separate acts of armed robbery logically cannot be considered a part of a common scheme or plan. In addition to considering the sentencing guidelines set forth in La.C.Cr.P. art. 894.1, the trial court articulated particular reasons for imposing consecutive sentences for each individual count within the two distinct criminal acts or transactions. Specifically, the trial judge noted the following:

(1) the defendant’s past criminal history;
(2) the risk that the defendant posed to the general safety of others;
(3) the defendant manifested deliberate cruelty to each set of the victims;
|fi(4) the victims, who were tourists in the French Quarter on New Year’s Day, were particularly vulnerable;
(5) the defendant used his position as a security officer to facilitate the commission of the crime;
(6) the defendant’s threats of violence created a risk of great bodily harm to more than one person during each act or transaction; and,
(7) the defendant used a dangerous weapon, a gun, which he was authorized to possess, to commit the offenses.

The trial court also noted the absence of any mitigating factors to justify any sentence other than the harshest type for this second felony offender. Thus, a review of the record in this case indicates no abuse of the trial court’s discretion in sentencing.

CONCLUSION

Accordingly, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: 1jLEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Jerald J. MARTIN.
    No. 2002-KA-2057.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.
    Harry F. Connick, District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR.).
   1jLEON A. CANNIZZARO, JR., Judge.

The defendant, Jerald Martin, was charged by bill of information with simple possession of cocaine. Following a trial, the jury found Martin guilty of attempted simple possession of cocaine and the trial court sentenced him to serve one year at hard labor. The State filed a multiple bill, and Martin admitted to the allegations in the bill. The trial court adjudicated him a second felony offender, vacated his original sentence, and resentenced him to serve fifteen months at hard labor. Martin now appeals his conviction and sentence, requesting only a review of the record for errors patent.

FACTS

On the evening of January 8, 2002, police officers were on patrol in the Florida Housing Project, responding to Hot Line complaints of narcotics activity in the project. As Sergeant Kevin Stamps drove into the 2600 block of Alvar Street, he saw Martin look up at him and then quickly disappear around a building toward the courtyard. Sergeant Stamps radioed other officers in the area, describing Martin and the path he took.

12Petective Landries Jackson was walking through the courtyard of the project when he received Sergeant Stamps’ call. At that time, Martin came into view and turned toward a stairwell. As Detective Jackson followed him, he saw Martin drop an object and run into a stairwell. Detective Jackson stopped to retrieve the object, which was a bag containing eight individually wrapped pieces of what appeared to be crack cocaine. He then proceeded to the stairwell and apprehended Martin on the third floor.

The parties stipulated that the eight rock-like pieces found in the bag retrieved by Detective Jackson tested positive for cocaine.

LAW AND DISCUSSION

Counsel for Martin has filed a brief requesting a review of the record for errors patent. Counsel complied with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). Counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Counsel moved to withdraw because he believes, after a conscientious review of the record, that there is no non-frivolous issue for appeal. Counsel reviewed available transcripts and found no trial court ruling that arguably supports the appeal. A copy of the brief was forwarded to defendant, and this Court informed him that he had the right to file a brief in his own behalf. The defendant has not done so. Thus, this Court’s review is limited to errors patent on the face of the record. La.C.Cr.P. art. 920.

As per State v. Benjamin, this Court performed an independent, thorough Preview of the pleadings, minute entries, bill- of information, and transcript in the appeal record. Defendant was properly charged by bill of information with a violation of La. R.S. 40:967, and the bill was signed by an assistant district attorney. The defendant was present and represented by counsel at arraignment, during the trial, and at sentencing. The jury verdict and the defendant’s sentence are legal in all respects. Furthermore, a review of the trial transcript shows that the State provided sufficient evidence to prove beyond a reasonable doubt that the defendant attempted to possess cocaine, the lesser included verdict returned by the jury.

An independent review by this Court reveals no non-frivolous issue and no trial court ruling that arguably supports the appeal.

CONCLUSION

Accordingly, Martin’s conviction and sentence are affirmed. Appellate counsel’s motion to withdraw is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.


author: 1PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Ronnie L. FRANCOIS and Ricky M. Kemp.
    No. 2002-KA-2056.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.

      Harry Connick, District Attorney of Orleans Parish, Claire A. White, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appellee.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendani/Ap-pellant Ronnie L. Francois.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant Ricky M. Kemp.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge DAVID S. GORBATY).
   1PATRICIA RIVET MURRAY, Judge.

On August 28, 2001, Ronnie Francois and Ricky Kemp were charged by bill of information with possession of heroin with intent to distribute, a violation of La. R.S. 40:966(A). Both pleaded not guilty. On October 16, 2001, the trial court, following a hearing, denied the defense motion to suppress the evidence and found probable cause to arrest them both. On January 8, 2002, Mr. Francois and Mr. Kemp were jointly tried before a twelve-person jury and were both convicted as charged. On February 4, 2002, the trial court sentenced them both to serve five years at hard labor. The state then filed multiple bills. In April 2002, following separate hearings on their multiple bills, the trial court vacated their original sentences and re-sentenced Mr. Francois to twenty years at hard labor as a fourth felony offender and Mr. Kemp to twenty years at hard labor as a third felony offender. Both Mr. Francois and Mr. Kemp appealed.

FACTS

On August 17, 2001, Detectives Jules Martin and Jamar Little, both of the New Orleans Police Department Third District Narcotics Unit, went to 3827 Gibson Street, Apartment A, in New Orleans to serve an arrest warrant on Linda | ^Francois for unrelated charges (writing bad checks). When they arrived, Henrietta Francois answered the door and identified herself as Linda Francois’ mother. Henrietta Francois told the officers that she was unsure if her daughter was at home, but allowed them into the apartment to look for her. As the officers entered the hallway of the apartment, they saw that the door to the first bedroom, which Henrietta Francois identified as Mr. Francois’ bedroom, was slightly ajar. Emanating from that room, were the sounds of people talking and a television blasting. Out of concern for their safety, the officers announced their presence and entered the room.

Upon entering the room, the officers observed Mr. Francois and Mr. Kemp working as a team packaging heroin into individually wrapped foil packets. Mr. Francois was sitting between the twin beds, apparently on a chair; he was scooping white powder from a plate and placing it on the foils that were laid out on a brown photo album that was situated on Mr. Kemp’s lap. Mr. Kemp was sitting on the right corner of one of the twin beds; he was folding the foils after Mr. Francois placed the white substance on them. The officers arrested Mr. Francois and Mr. Kemp. At the time of the arrests, there were fourteen foils with white powder substance (which subsequently tested positive for heroin), six foils with nothing in them, and a little mound of white powdery substance on a plate with a plastic spoon. The officers also found $178 in cash in the room and a medical bill addressed to Mr. Francois at that address.

After the officers informed her of what they had found, Ms. Henrietta Francois, who was the apartment lessee, signed a consent to search form. The officers searched the remainder of the apartment, yet found no additional contraband. Likewise, Detective Martin performed the search incident to the arrest |3of both Mr. Francois and Mr. Kemp, yet found neither weapons nor cash on either of them. The detectives acknowledged that they did not check Mr. Francois’ or Mr. Kemp’s arms for track marks, which would have indicated drug use. The officers also acknowledged that they did not find a scale in the apartment.

Summarizing, the following evidence was seized from the apartment: a plate with a mound of white powder on it, fourteen foil packages containing white powder, six empty foils, two pairs of scissors, a package of aluminum foil, pieces of foil cut into squares, a small spoon, a small plastic fork, a finger from a rubber glove which contained white residue, plastic bags containing residue, playing cards with residue on them, razor blades, a box of sandwich bags, $178 in cash, and a medical bill addressed to Mr. Francois at the residence. In total, approximately five to six grams of heroin were seized.

At trial, Detective Martin testified that because of the “vast amount of evidence” they found on the scene, they called the Crime Lab to photograph the evidence and the manner in which it was situated. Those photographs were introduced at trial. Also at trial, the parties stipulated that if Criminalist John Palm were called to testify, he would be qualified as an expert in the field of testing and identification of controlled dangerous substances, and he would testify that the contents of some of the state’s exhibits (the seized evidence) tested positive for heroin. The criminalist’s report was also entered into the record and reflects the weight of only the following four seized items: (1) fourteen pieces of foil each containing a powder— 1.0 gram; (2) one plastic bag containing a powder — 1.6 gram; (3) one small plastic bag containing a powder — .6 gram; and (4) one small plastic bag containing one small latex bag (finger from a latex glove) containing a second small latex bag containing a powder — 2.5 grams.

^INSUFFICIENCY OF EVIDENCE

On appeal, both Mr. Francois and Mr. Kemp raise as their , sole assignment of error the insufficiency of the evidence to support their convictions for possession of heroin with intent to distribute. The standard for reviewing a claim of insufficient evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, the reviewing court must determine whether the evidence viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all the elements of the crime were proved beyond a reasonable doubt. If rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988). This standard thus “preserves the role of the jury as the factfinder the case but it does not allow jurors ‘to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.’ ” State v. Pierre, 93-0893, p. 5 (La.2/3/94), 631 So.2d 427, 429.

Under Jackson, the totality of the evidence, both direct and circumstantial, must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. See State v. Jacobs, 504 So.2d 817, 820 (La.1987). When circumstantial evidence forms the basis for the conviction, the totality of the [^evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. However, “[hjypotheses of innocence are merely methods for the trier of fact to determine the existence of a reasonable doubt arising from the evidence or lack of evidence.” State v. Shapiro, 431 So.2d 372, 389 (La.1982)(o% reh’gXLemmon, J., concurring). The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012.

This circumstantial evidence rule is not a separate test from Jackson; rather, La. R.S. 15:438 merely “provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found defendant guilty beyond a reasonable doubt.” State v. Wright, 445 So.2d 1198, 1201 (La.1984); see also State v. Addison, 94-2431 (La.App. 4 Cir. 11/30/95), 665 So.2d 1224. Although the circumstantial evidence rule is not a more stringent standard than the general reasonable juror’s reasonable doubt formula, “it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.” State v. Chism, 436 So.2d 464, 470 (La.1983).

To support a conviction for possession with intent to distribute a controlled dangerous substance (here, heroin), the state must prove both possession and specific intent to distribute. See State v. Smith, 94-1502 (La.App. 4 Cir. 1/19/95), 649 So.2d 1078. In this case, possession is not at issue. Both Mr. Francois and Mr. Kemp clearly possessed the heroin that they were found packaging. The narrow issue is whether the state established the specific intent to distribute it.

Because intent is a state of mind, “[i]t is very unusual to have direct evidence of intent.” State v. Perkins, 97-1119, p. 16 (La.App. 3 Cir. 6/17/98), 716 So.2d 120, 129. Instead, intent almost always must be proved by circumstantial evidence. Circumstantial evidence is “collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.” State v. Williams, 99-223, p. 8 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 608. It follows then that “[s]pecific intent to distribute may be established by proving circumstances surrounding defendant’s possession which give rise to a reasonable inference of intent to distribute.” State v. Crosby, 98-0372, p. 6 (La.App. 4 Cir. 11/17/99), 748 So.2d 502, 506; State v. Dickerson, 538 So.2d 1063 (La.App. 4 Cir.1989).

To aid in determining whether circumstantial evidence is sufficient to establish specific intent to distribute, the Louisiana Supreme Court, in the seminal case State v. House, 325 So.2d 222, 225 (La.1975), enumerated the following five factors:

(1) whether the defendant ever distributed or attempted to distribute the drug;
(2) whether the drug was in a form usually associated with possession for distribution to others;
(3) whether the amount of drug created an inference of an intent to distribute;
(4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and
|7(5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

Applying those five-factors to the facts.of the instant case, we find the state’s evidence addresses only the second and fifth factors, which we discuss together last.

As to the first factor, the state introduced no evidence that Mr. Francois or Mr. Kemp had ever distributed or attempted to distribute drugs in the past. Indeed, Detective Little acknowledged that he did not consider Mr. Francois or Mr. Kemp as “drug dealers,” but only saw them performing “the operation of drugs being prepared for sales.” Cf.State v. Marshall, 02-1067 (La.App. 5 Cir. 2/25/03), 841 So.2d 881 (officer’s testimony that he saw the defendant apparently engaged in a drug deal satisfied this factor). Nor was there any evidence of prior drugs deals out of the apartment where Mr. Francois and Mr. Kemp were found. See State v. Kelly, 01-321, p. 7 (La.App. 5 Cir. 10/17/01), 800 So.2d 978, 984, writ denied, 2001-3266 (La.11/1/02), 828 So.2d 565 (citing prior drug sales out of apartment as factor supporting intent to distribute). Moreover, the detectives found them in Mr. Francois’ bedroom, not on a street corner or in a known drug trafficking area. See State v. Perry, 97-1175, pp. 8-9 (La.App. 4 Cir. 7/22/98), 720 So.2d 345, 349 (contrasting a defendant found in his own home with drugs with one found on a street corner).

As to the third factor, mere possession of a controlled dangerous substance is not evidence of an intent to distribute unless the quantity possessed is so large that no other inference is reasonable. State v. Tong, 609 So.2d 822, 824 (La.l992)(citing State v. Hearold, 603 So.2d 731, 735 (La.1992)). Such is not the Kcase here. The sole evidence in the record regarding the quantity of heroin found was the criminalist’s report, which indicates that only about five to six grams of heroin were found. Moreover, there were two defendants in possession of that amount of heroin; hence, this clearly was not a sufficient quantity of heroin to give rise to an inference of distribution. Cf. State v. Johnson, 2000-1528 (La.App. 4 Cir. 2/14/01), 780 So.2d 1140, writ denied, 2001-0916 (La.2/1/02), 807 So.2d 854 (finding a total of four pounds of marijuana too large an amount for personal use); State v. Fernandez, 489 So.2d 345, 347 (La.App. 4 Cir.1986)(finding twenty-one small bags and several larger bags of cocaine supported inference of distribution).

As to the fourth factor, neither of the detectives who testified for the state was qualified as an expert; rather, they both testified based on their experience as narcotics officers. Moreover, their testimony was that the packaging of the heroin was consistent with distribution; their testimony was not that the amount of heroin was inconsistent with personal use. Nor did the detectives offer any testimony regarding the retail value of the heroin in the form it was seized.

As noted, the state’s evidence falls within the second and fifth factors. The state’s principal evidence of distribution was the assembly line fashion in which Mr. Francois and Mr. Kemp were packaging the heroin into individual foils when the detectives stumbled onto them. Both detectives testified that the reason they charged Mr. Francois and Mr. Kemp with possession with intent to distribute was because the manner in which they were packaging the heroin was consistent with distribution. Detective Martin testified that it was “because of the amount of small packages and the way it was packaged, through my experience;” ^Detective Little testified that he too, based on his experience, believed he “saw an operation of drugs being prepared for the distribution of heroin.” Detective Little further testified that the box of sandwich bags that was found in the apartment was the kind “commonly used in packaging.” Based on that testimony, the jury reasonably could have inferred that the foils of heroin that were being prepared indicated an intent to distribute, satisfying the second factor — the heroin was in a form associated with distribution.

Although the second factor is significant, it is “counterbalanced by the fact that this form is also used for personal consumption.” State v. Green, 524 So.2d 927, 931 (La.App. 2 Cir.1988)(noting defendant may have purchased the drug in that form for his own use as opposed to possessing it in that form with the intent to distribute it to others); State v. Green, 508 So.2d 602, 606 (La.App. 2 Cir.1987). Here, it is quite plausible that Mr. Francois and Mr. Kemp were preparing the heroin for their own personal consumption. Indeed, Detective Little on cross-examination acknowledged that the heroin was being prepared for “individual doses.” The detectives’ testimony regarding the packaging of the heroin thus did not exclude the reasonable inference that they were packaging it for personal consumption.

Perkins, supra, involved somewhat similar facts and is illustrative of why the second factor generally is not dispositive. There, the officers found Mr. Perkins (the defendant) sitting in the front seat of his parked vehicle with his rear seat passengers in the process of preparing “blunts,” i.e., cutting the tips off cigars, emptying the tobacco from the cigar, and replacing it with marijuana. When the officers approached the vehicle, the defendant fled. In the vehicle, the |inofficers found a handgun, some blunts, and a bag containing fifteen marijuana cigarettes as well as some loose marijuana. Reversing the defendant’s conviction, the court reasoned that the evidence was “woefully insufficient” to prove an intent to distribute. In so doing, the court noted that the sole House factor present was the second one: the marijuana was in a form associated with distribution. The court further noted that “there was no testimony that such packaging was inconsistent with personal use only, particularly considering the presence of three individuals in the car who could have shared the marijuana among themselves.” Perkins, 97-1119, pp. 16-17, 716 So.2d at 129. The court still further noted that the officer testified only that the number of blunts (one finished and one in the process of being made) and hand rolled marijuana cigarettes (fifteen) suggested an intent to distribute, yet the officer “was not asked, nor did he give an opinion on, whether the number of cigarettes was inconsistent with personal use.” Perkins, 97-1119, p. 17, 716 So.2d at 129.

Likewise, as the defense argues in this case, no expert testimony was offered that drug dealers are the only ones who divide their heroin into individual doses. Again, it is possible that Mr. Francois and Mr. Kemp may have been packaging the heroin for their own personal use as opposed to for distribution to others. The presence of the second factor is thus not dispositive.

As to the fifth and final factor of evidence of paraphernalia, such as baggies or scales, that would evidence the intent to distribute, the only evidence regarding this factor was the detectives’ testimony regarding the packaging of the heroin, i.e., the foils and baggies. As discussed above, the mere presence of packaging consistent with distribution is not dispositive because such preparation | n could be viewed as consistent with either distribution or personal use. Other factors from which an intent to distribute can be inferred include a large sum of cash and weapons. Neither a weapon nor a large amount of case was in the apartment or on Mr. Francois or Mr. Kemp when they were arrested. Nor was a scale or any substance used to dilute heroin found in the apartment.

As in Perkins, we find that the state failed to satisfy more than one or two of the five House factors. Mr. Francois and Mr. Kemp were found with about six grams of cocaine some of which had been packaged into foils. There was no expert or other testimony that this amount of heroin was inconsistent with personal use by those two individuals. Under these circumstances, we find that the jury reasonably could have inferred that they were packaging the heroin for their own personal use. The state failed to prove that they intended to distribute the heroin, which is an essential element of the crime charged. Thus, we find that the evidence was insufficient to convict Mr. Francois and Mr. Kemp of that crime.

Our finding is buttressed by our recent holding in State v. Mamon, 98-1943 (La.App. 4 Cir. 9/8/99), 743 So.2d 766, in which we reversed a conviction for intent to distribute based on insufficiency of the evidence. In so doing, we stressed that the state’s circumstantial evidence of intent was minimal, stating:

[T]he officers admitted that they never saw defendant distribute or attempt to distribute the marijuana. Defendant carried only thirteen dollars, limiting his ability to provide change for a sale; and he carried no weapons. Officer Quetant did not provide any expert testimony concerning the packaging of marijuana for retail sales, nor did he address the question of whether the amount of marijuana defendant possessed was inconsistent with personal use. Officer Walker testified that they arrested defendant for possession with intent to distribute because of the quantity of marijuana and the 11 ^.packages of individual baggies. However, the State did not tender Officer Walker as an expert, and the trial court allowed the testimony only to show the basis for defendant’s arrest. Thus, the State did not produce any expert testimony on quantity and/or packaging of marijuana for retail sales. Similarly, it produced no evidence on the consistency of the amount possessed with strictly personal use.

Mamon, 98-1943, pp. 6-7, 743 So.2d at 771.

Likewise, the circumstantial evidence presented by the state in this case is extremely limited and does not support the charged offense. However, the evidence does support a conviction for the lesser and included offense of possession of heroin. This court is authorized to enter a judgment of guilty of the lesser and included offense. La.C.Cr.P. art. 821(E)(proving that discharge is neither necessary nor proper when the evidence supports conviction of a lesser included offense). We thus find Mr. Francois and Mr. Kemp guilty of possession of heroin.

DECREE

For the foregoing reasons, the convictions of Mr. Francois and Mr. Kemp are amended to judgments of conviction for the lesser included offenses of possession of heroin, La. R.S. 40:966(D). Mr. Francois’ and Mr. Kemp’s adjudications as multiple offenders and corresponding sentences are also vacated. This matter is remanded to the trial court for resentenc-ing on the modified judgments of conviction.

CONVICTION REVERSED AND MODIFIED, SENTENCE VACATED, AND REMANDED FOR RESENTENC-ING.

      . The transcript of the first sentencing of each defendant is dated January 4, 2002. This date is obviously wrong because the trial was January 8, 2002. The minute entry lists the sentencing as February 4, 2002.

      . Although Mr. Francois also filed a pro se supplemental brief in which he assigned five errors pertaining to his multiple bill hearing, we do not reach those assignments given our reversal of his conviction on the merits and our remand for resentencing. Likewise, although a review of the record for errors patent reveals one relating to sentencing, our decision on the merits vacating the sentences of both Mr. Francois and Mr. Kemp renders that error moot. We note the error was the trial court's failure to provide that the sentences should have been sentenced without benefit of parole, probation or suspension of sentence pursuant to La. R.S. 40:966(A). However, the sentence would have been corrected by operation of law. La. R.S. 15:301.1; State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790.


author: 1MURRAY, Judge.

text:
    Connie JOHNSON, as Tutrix of Shawn Johnson and Clara Jones, v. Charles FOTI, Orleans Parish Criminal Sheriff and C. Sampey.
    No. 2002-CA-1995.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.

      Margaret A. “Peggy” LeBlane, New Orleans, LA, for Plaintiffs/Appellees.
    T. Allen Usry, John F. Weeks, II, Lambert J. Hassinger, Jr., Craig E. Frosch, Usry, Weeks & Matthews, New Orleans, LA, for Defendants/Appellants.

      (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   1MURRAY, Judge.

Defendants, Orleans Parish Criminal Sheriff Charles Foti and his employee, Mr. Christopher Sampey, appeal the trial court’s judgment in favor of the plaintiff, Shawn Jones , awarding her damages in a wrongful death action. For the reasons that follow, we affirm.

FACTS

Darryl Jones, the father of plaintiff Shawn Jones, died of cardiac arrest on March 13, 1987, at Charity Hospital, shortly after being transported there by ambulance from the Orleans Parish Prison, where he had been an inmate. Mr. Jones, who was complaining of chest pains and shortness of breath, was evaluated by defendant Sampey, a corpsman at the jail, at approximately 7:05 a. m. on March 13. Mr. Sampey concluded that Mr. Jones’ pain was probably musculo-skeletal, and prescribed Tylenol and twenty-four hours of bed rest, following which Mr. Jones returned to his cell. Then, at 8:55 a.m., a deputy found Mr. Jones non-responsive and seizing in his cell. Mr. Sampey and Dr. Alper, the physician on | ¡fluty at the prison, were called. Dr. Alper ordered that Mr. Jones be transferred immediately to Charity Hospital. Mr. Jones was then placed on a gurney and taken by elevator from the eighth floor down to an ambulance that was parked at the jail for the purpose of transporting inmates. According to Mr. Sampey, Mr. Jones was breathing and had a faint pulse in the elevator. Mr. Sampey and another corpsman, Mr. Darensburg, accompanied Mr. Jones in the ambulance; Dr. Alper did not. En route to the hospital, Mr. Jones went into cardiac arrest. The two corpsmen began CPR, and while Mr. Sampey was performing the chest compressions, Mr. Jones vomited. There is conflicting evidence, as to whether Mr. Jones’ airway was then cleared, and specifically as to whether he was “bagged” or ventilated during transport. Mr. Jones arrived at Charity Hospital in full cardiac arrest, with no pulse or respiration. Attempts to revive him were unsuccessful, and he was pronounced dead at 9:38 a.m.

PROCEEDINGS BELOW

The instant wrongful death suit was filed on March 11, 1988, by Connie Johnson, on behalf of her then minor child, Shawn Jones, and by Clara Jones, mother of the decedent. After Shawn Jones became a major, she was substituted as party plaintiff and Connie Johnson was removed. Also, on September 17, 2001, the trial court maintained the defendants’ exception of no right of action as to plaintiff Clara Jones and dismissed her claims with prejudice.

LThe matter was tried without a jury on March 25, 2002. The witnesses included the original plaintiffs (Shawn Jones, Connie Johnson, and Clara Jones), Mr. Sam-pey, Dr. Alper, and two medical experts, Dr. Kevin White and Dr. Gregory Vorhoff. On June 6, 2002, the trial court rendered judgment awarding the plaintiff $85,000 in damages against both defendants. In written reasons for judgment, the trial court stated that the defendants’ liability was based upon the negligent failure to administer proper treatment to Mr. Jones when he went into cardiac arrest in the ambulance, which caused him to lose a chance for survival. Turning to damages, the court noted that the award did not include any amount for the pain and suffering of Mr. Jones (the survival action), but was entirely based upon the relationship between Mr. Jones and his daughter, Shawn.

The defendants filed a suspensive appeal, asserting three assignments of error: (1) The trial court committed legal error by judging the conduct of the two corpsmen who accompanied Mr. Jones in the ambulance according to an ordinary negligence standard; (2) The trial court committed manifest error by concluding that the fault of defendants caused Mr. Jones to lose a chance of survival; and (3) The trial court abused its discretion by awarding an excessive amount of damages.

DISCUSSION

I. The Standard of Care

The defendants contend that the trial court applied the wrong standard of care. in assessing the fault of the two corpsmen who accompanied Mr. Jones in the ambulance. The trial court found that the corpsmen were negligent in that they did I ¿not properly perform CPR, which negligence decreased Mr. Jones’ chance of survival. The defendants argue that pursuant to La. R.S. 40:1235(A), as in effect at the time of Mr. Jones’ death in 1987, the two corpsman are immune from liability, except for acts or omissions that are intentionally designed to harm or are grossly negligent. R.S. 40:1235(A)(1) provides that medical technicians who render emergency medical care to a person “while in the performance of [their] medical duties and following the instructions of a physician” cannot be held individually liable to that person for civil damages as a result of acts or omissions in rendering said care, “except for acts or omissions intentionally designed to harm, or for grossly negligent acts or omissions which result in harm to such person.” Part 2 of the statute (40:1235(A)(2)) extends the immunity granted by Part 1 to parish governing authorities, police departments, sheriffs offices and other public agencies engaged in rendering emergency medical services, and to their insurers.

In response to the defendants’ argument, the plaintiff contends that the immunity statute does not apply because corpsman Sampey was not “following the instructions of a physician” within the terms of the statute. Alternatively, the plaintiff asserts that should corpsman Sampey be found to have been acting under the instruction of Dr. Alper, the corpsman’s failure to clear Mr. Jones’ airway after he vomited during CPR nevertheless constitutes “gross negligence.” Because the defendants’ argument regarding immunity is being asserted for the first time on appeal, the trial court did not consider either of these issues.

|fiWith regard to these issues, there is no evidence of any communication between Dr. Alper and Mr. Sampey after the corpsman left Mr. Jones’ cell with the gurney. Dr. Alper testified that, upon arriving at the cell and examining Mr. Jones, he told corpsman Sampey to give him oxygen, put him on the gurney and get him to Charity Hospital. An assessment form filled out by Dr. Alper after he returned to his office also reflects that he instructed the corpsman to give oxygen to Mr. Jones. Mr. Sampey testified, however, that he never administered oxygen, either while Mr. Jones was on the gurney or while he was in the ambulance.

In view of these facts, we cannot find that Mr. Sampey was “following the instructions of a physician” within the terms of the immunity statute when he failed to clear Mr. Jones’ airway. In Ambrose v. New Orleans Police Department, 627 So.2d 238, 242-43 (La.App. 4th Cir. 1993), reversed on other grounds, 93-3099, 3110, 3112 (La.7/5/94), 639 So.2d 216, this court held that an emergency room technician was considered to have been following the instructions of a physician, pursuant to R.S. 40:1235(A), whether he had received those instructions via electronic means or he was following a “protocol,” defined as a prescribed set of instructions established by physicians of the Orleans Parish Medical Society. In the instant case, there was no evidence concerning protocols. Moreover, Mr. Sampey clearly did not receive any instructions from Dr. Alper other than to transport Mr. Jones to the hospital and to give him oxygen. As the corpsman admittedly did not administer oxygen, he failed to follow the physician’s instructions. Under these circumstances, we do not believe the gross negligence | ^standard of the immunity statute applies. Alternatively, even if we were to find that Mr. Sampey was following the physician’s instructions merely by transporting Mr. Jones to the hospital, we would hold that the corpsman’s failure to establish an airway during CPR and failure to administer oxygen in direct contravention of the physician’s orders constituted gross negligence.

2. Causation

The defendants argue that the trial court’s conclusion that Mr. Sampey’s negligence caused Mr. Jones to lose a chance of survival is manifestly erroneous. However, we find the trial court’s conclusion to be reasonable in light of the evidence.

To reach its conclusion, the trial court had to resolve two conflicts in the evidence. First, the trial court made the factual determination that Mr. Jones was not ventilated, nor was his airway cleared after he vomited in the ambulance. The court based this determination upon the Charity Hospital records, which directly contradicted Mr. Sampey’s testimony about what occurred in the ambulance. Although Mr. Sampey testified otherwise, the written report contained in the hospital records, which the trial court noted would necessarily reflect the information given to the hospital attendant by the corpsmen, states unequivocally that Mr. Jones was not ventilated in the ambulance. Moreover, the record states that Mr. Jones had vomitus in his mouth and nares when he arrived at the hospital. In view of the evidence, we cannot say that the trial court’s decision to base its | factual determination on the Charity Hospital record, thereby discrediting the testimony of corpsman Sampey, a defendant, constitutes manifest error.

After making the factual determination that Mr. Jones’ airway was not cleared in the ambulance, the trial court then had to resolve the conflict between the testimony of two cardiologists as to whether the failure to keep the airway clear caused Mr. Jones to lose a chance of survival. Dr. Kevin White, testifying for the plaintiff, stated that if basic life support (CPR) is initiated within four minutes of cardiac arrest, and advanced cardiac life support (defibrillator paddles, IV equipment) is utilized within eight minutes, the patient has a statistical chance of survival. Dr. White testified that CPR denotes the establishment of an airway, chest compressions, and replacement of oxygen. According to the prison and hospital records, the ambulance departed for Charity at approximately 9:05 a.m., and it arrived at 9:10 a.m. According to Mr. Sampey, Mr. Jones “coded” (went into cardiac arrest) within thirty seconds to one minute of the time he was placed in the ambulance. Therefore, the trial court found that the failure to properly perform CPR in the ambulance caused Mr. Jones to lose a chance of survival.

In arriving at this conclusion, the trial court discounted the testimony of Dr. Gregory Vorhoff, who opined that the actions of Corpsman Sampey in the ambulance were reasonable. However, as the trial court noted, Dr. Vorhoffs opinion was based on the testimony of Mr. Sampey that an Ambu bag (means of ventilation) was used on Mr. Jones in the ambulance, and his airway was cleaned |sout after he vomited. Both these statements were found not credible by the trial court because they were contradicted by the Charity Hospital written record.

Considering the trial court’s decision according to the manifest error standard, we do not find that court’s factual determinations to be unreasonable in view of the evidence. Indeed, we find more than sufficient support in the record for the trial court’s conclusion that the defendants’ negligence caused Mr. Jones to lose a chance of survival.

In addition to the corpsmen’s failure to ventilate Mr. Jones in the ambulance, cited by the trial court, it would have been reasonable for the court to have found that the failure to further investigate Mr. Jones’ symptoms at 7:05 a.m. as indicative of a heart attack was negligence which caused him to lose a chance of survival. In that .instance, the trial court accepted Dr. Vorhoffs testimony that given Mr. Jones’ age, medical history and normal vital signs, it was reasonable for the corpsman to administer Tylenol and do nothing further. Dr. Vorhoffs opinion, however, differed from that of Dr. White. Dr. "White testified that because Mr. Jones exhibited several classic risk factors for a heart attack and also was complaining of shortness of breath and sharp chest pains of thirty minutes in duration, he should have been examined by a doctor, transported to a hospital and/or given an EKG at 7:05 a.m. We also note from the prison records that Dr. Alper, who arrived at the facility at approximately 8:05 a.m., was not informed of Mr. Jones’ earlier complaints, nor was he sent to check on Mr. Jones at that time. Although the trial court chose to accept the opinion of Dr. Vorhoff that the failure 19of the prison staff to do more for Mr. Jones before he was found collapsed in his cell at 8:55 a.m. was not negligence, the opposite conclusion also would have .been reasonable given the evidence. There is also ample evidence to support the conclusion that had Mr. Jones received the proper medical care at 7:05 a.m., he probably would have survived.

Accordingly, we find no manifest error in the trial court’s conclusion that the defendants’ negligence caused Mr. Jones to lose a chance of survival.

3. Quantum

Defendants argue that in assessing $85,000 in general damages, the trial court failed to consider the percentage chance of survival that was lost, specifically because no evidence was introduced by the plaintiff as to the specific numerical percentage. Alternatively, the defendants contend that the amount awarded would be excessive even as a wrongful death award.

The case relied upon by defendants, Smith v. State Dept. of Health & Hospitals, 95-0038 (La.6/25/96), 676 So.2d 543, does not support their contention that specific percentages must be established in a case involving the loss of a chance of survival; rather, it indicates that specific percentages, if introduced as evidence, must be considered by the trier of fact along with evidence such as loss of support, loss of love and affection, and any other evidence bearing on the value of the lost chance of survival. Id. at p. 11, 676 So.2d at 549. The Supreme Court in Smith makes it clear that the loss of any chance of survival by a tort victim is incompensable. Id. at pp. 6-7, 676 So.2d at 546-47. As for determining quantum, the Court states:

[T]he method we adopt today in this decision, is for the factfinder — -judge or jury — to focus on the chance of survival lost on account of [tortious fault] as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record, as is done for any other item of general damages.

Id. at p. 7, 676 So.2d 547.

Accordingly, we do not find that the failure to quantify the percentage of the lost chance of survival or to correlate the amount of damages to a specific percentage is reversible error. The trial court has great, even vast, discretion in determining the amount of general damages, and its award may not be disturbed absent an abuse of that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). In the instant case, the trial court found that Shawn Jones, who was eleven years old when her father died, stayed with him on weekends at his mother’s house before he was incarcerated and enjoyed such activities as going to the movies and the park with him. Although she did not receive regular child support from her father, he did give Shawn money, clothes and presents. During the six months he was incarcerated before his death, Mr. Jones called his daughter four to six times per month and sent her cards and letters, although she was not allowed to visit him in jail. Shawn testified that she missed her father while growing up and that she visited his gravesite; Shawn’s mother testified that Shawn still had difficulty accepting her father’s death.

Based on this evidence, we do not find the amount of general damages awarded by the trial court to be an abuse of discretion.

I ^CONCLUSION

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

AFFIRMED.

      . Although referred to in the district court’s judgment and in the case caption as “Shawn Johnson,” the plaintiff's correct name, “Shawn Jones,” was substituted as party plaintiff by order of the district court dated March 12, 2001.

      . See the district court's order dated March 12, 2001.

      .The trial court dismissed the claims of Clara Jones again in its June 6, 2002, judgment on the merits, stating in written reasons that under La. Civil Code art. 2315.2, which was in effect at the time of Mr. Jones’ death, the decedent's mother has no right to bring a wrongful death action when the decedent is survived by a child.

      . La. R.S. 40:1235 was recodified without material change as La. R.S. 40:1233 in 1997.


author: 1JAMES F. McKAY III, Judge.

text:
    S. PARISH OIL COMPANY, INC. and I.G. Petroleum LLC, v. SLATER LAW FIRM (A Professional Corporation), W. Malcolm Stevenson and Kevin M. Wheeler.
    No. 2002-CA-1717.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.

      Robert H. Matthews, New Orleans, LA, and Jacques F. Bezou, The Bezou Law Firm, Covington, LA, for Plaintiffs/Appellants.
    Richard T. Simmons, Jr., Joseph L. Spil-man, III, Aayne R. Corcoran, Hailey, McNamara, Hall, Larmann & Papale, L.L.P., Metairie, LA, for Defendants/Ap-pellees.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR.)
   1JAMES F. McKAY III, Judge.

The appellants, S. Parish Oil Company (S.Parish) and I.G. Petroleum L.L.C. (IG), come before this Court seeking a reversal of the trial court’s judgment granting the appellees’, Slater Law Firm (Slater), W. Malcolm Stevenson and Kevin M. Wheeler, declinatory exception of lack of subject matter jurisdiction and dilatory exception of prematurity. The appellants are additionally seeking a stay order in the case sub judice pending the outcome of the matter involving a Chapter 11 bankruptcy in the United States Bankruptcy Court for the Eastern District.

The appellees argue that the state court lacked jurisdiction over this matter based on an argument that the matter pending in state court involves core issues germane to the ongoing case in the United States Bankruptcy Court and that the Bankruptcy Court has sole and exclusive jurisdiction over the issues in the case sub judice pursuant to 28 U.S.C. § 1334, which provides as follows:

(a)Except as provided in subsection (b)of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11.
| j>(b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.
(c)(1) Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11.
(2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction.
(d) Any decision to abstain or not to abstain made under this subsection (other than a decision not to abstain in a proceeding described in subsection (c)(2)) is not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of this title or by the Supreme Court of the United States under section 1254 of this title. This subsection shall not be construed to limit the applicability of the stay provided for by section 362 of title 11, United States Code, as such section applies to an action affecting the property of the estate in bankruptcy.
(e)The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate.

The appellees are correct that the jurisdiction of the bankruptcy courts is grounded in and limited by the provisions of 28 U.S.C. § 1334. Celotex Corp. v. Edwards, 514 U.S. 300, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995). Section 1334 lists four types of matters over which the federal district court has jurisdiction: 1) cases “under Title 11;” 2) proceedings “arising under” Title 11; 3) proceedings “arising in” a case under Title 11; and 4) proceedings “related to” a case under Title 11. The federal district courts have exclusive jurisdiction over only one of |3these four categories, “cases under Title 11.” 28 U.S.C. § 1334(a). Federal jurisdiction of the remaining three categories is “original, but not exclusive.”

The appellants argue that their legal malpractice claim is not a case under Title 11, and as such federal jurisdiction is not exclusive; we agree. While it is arguable that the legal malpractice is “related to” a case under 28 U.S.C. § 1334(b), it is also likely that there are claims in the malpractice action that are unrelated to the bankruptcy issue and clearly under the auspice of Louisiana state courts.

The trial court granted the appellees’ declinatory exception of lack of subject matter jurisdiction and dilatory exception of prematurity. The effect of this judgment if allowed to stand would be to virtually dismiss the appellants’ state action. See. La.C.C.P. articles 932 and 933.

On June 21, 2002, Judge Kingsmill presided over a matter in bankruptcy court, Bankruptcy Number 91-11695, Adversary Proceeding # 01-01372, where Slater sought a declaratory judgment attempting to have declared that they did nothing wrong in their representation of S. Parish. Judge Kingsmill, the presiding bankruptcy judge, stated that

The Court finds nothing in the post-confirmation dealings of the Debtor, and whatever involvement the Plaintiffs (Slater)(emphasis added) had with those dealings that is related to the implementation and execution fo [sic] of the Debt- or’s plan. There is nothing in the plan (reorganization)(emphasis added) that addresses the Debtor’s legal representation or the payment for that representation. The Plaintiffs would like the Court to declare that they did nothing wrong in their representation of the Debtor. This is not within the Court’s post-confirmation jurisdiction.

14 Judge Kingsmill dismissed the matter, but Judge Marcel Livaudais of the United States District Court for the Eastern District reversed his judgment in Civil Action No. 02-2273 on October 8, 2002. Judge Livaudais stated in his judgment that

The malpractice action in state court was a collateral attack on the administration of the plan of reorganization during the pendency of the bankruptcy proceeding. The Debtor’s claims against Slater in the state action clearly challenges the bankruptcy court’s decisions relating to the administration of the Debtor’s confirmed plan, including its orders authorizing payment of Slater’s fees from the debtor’s escrowed. Fifing that action in state court was an attempt at forum shopping to avoid litigating in the federal bankruptcy court [sic] Debt- or’s claims [sic] that its confirmed reorganization plan was negligently administered. However, since the state court action has been dismissed, there is no race to the courthouse, and the federal forum is an appropriate forum for the declaratory judgment action.

The appellant turned to our state courts as the forum for their legal malpractice claims. In that same action the appellees failed to have the matter removed but chose to file an exception of lack of subject matter jurisdiction asserting the Bankruptcy Court’s exclusive jurisdiction pursuant to 28 U.S.C. § 1334 and an exception of prematurity. Despite Judge Lividaius’ footnote in his order and reasons, our reading of this statute does not necessarily confer exclusive jurisdiction to the bankruptcy court in this particular instance. We are in concurrence with Judge Kings-mill on this issue. The United States District Court has reversed Judge Kingsmill’s opinion and remanded the matter to Bankruptcy 15Court. Therefore, we effectively have no alternative then but to wait for the outcome of the matter in Bankruptcy Court to establish a complete and full record in this matter for the trial court to make a well-founded decision on which issues if any may be viable state claims.

In the interest of judicial economy and equity we find that the trial court erred in granting either of the exceptions. For this reason we vacate the trial court’s judgment and order the trial court stay further proceedings pending the final disposition of the matter in the United States Bankruptcy Court for the Eastern District of Louisiana. At that time both parties can reassert their claims.

JUDGMENT VACATED; STAY ORDERED.

      . S. Parish is a debtor in an ongoing Chapter 11 reorganization bankruptcy in the United States Bankruptcy Court for the Eastern District.

      . This state matter arises out of an action filed in the Civil District Court for the Parish of Orleans where the appellants presented a claim for damages against Slater for legal malpractice concerning legal representation of S. Parish.

      . In Judge Livaudais Order and Reasons FN 1 states, “ Defendants' opposition points out that the state court's decision dismissing their malpractice action is on appeal and may be reversed. However, because this Court decides that the matter is within the exclusive jurisdiction of the bankruptcy court, that issue is moot”

      . Following the submission of this case, the United States Court of Appeals, Fifth Circuit, dismissed the appeal of Judge Kingsmill’s order on March 21, 2003. Such reaffirms our conclusion that further action in the state court proceedings must await federal court action.