author: |2SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Donald JACKSON.
    No. 03-KA-0417.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Juliet Clark, Terry M. Boudreaux, Bradley Burget, Assistant District Attorneys, Gret-na, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   |2SOL GOTHARD, Judge.

Defendant, Donald Jackson, was convicted of theft of goods valued at over $100 and under $500 in violation of LSA-R.S. 14:67.10. Thereafter, pursuant to a habitual offender bill of information, defendant was found to be a fourth or subsequent felony offender. The defendant was sentenced to 20 years of imprisonment without benefit of probation or suspension of sentence. Defendant now appeals from his conviction and sentence.

FACTS

On July 13, 2001, Rafael Paguaga, a loss prevention department officer at the 7223 Veterans Boulevard location of K-Mart, observed defendant in the store. Defendant was wearing baggy clothes, a baggy T-shirt, and wearing a jumpsuit underneath his jeans. Paguaga followed defendant around the store for a short period of time and observed defendant conceal videotape recordings of movies in his pants. Paguaga continued to follow and observed defendant remove two phones from their boxes and conceal them in his pants as well. Defendant thereafter walked toward the store exit and exited the store without paying for the items concealed in his pants.

13Paguaga followed defendant out of the store, approached him, and identified himself as being employed with K-Mart loss prevention. He asked defendant to return to the store at which time defendant continued walking. Paguaga then grabbed defendant, handcuffed him, and escorted the individual back into the store and into the security room. While in the security room, Paguaga lifted defendant’s shirt and removed two cordless phones from defendant’s pants. Paguaga then called the police. After the police arrived, Paguaga recovered a total of six videotapes from the defendant’s pants. The total value of the merchandise recovered from defendant totaled approximately $246.00.

' Robert Grant testified that, on July 13, 200Í, he was employed at the 7223 Veterans location of K-Mart as an assistant manager. Grant responded to a page notifying him of a “loss prevention situation” and proceeded to the parking lot where he observed Paguaga handcuffing defendant. Grant accompanied Paguaga and defendant into the security room and observed Paguaga remove the merchandise which had been concealed in defendant’s pants. Grant testified that the total retail price of the items was $246.86.

Lawrence Chaisson, a deputy with the Jefferson Parish Sheriffs Office, testified that, on July 13, 2001, he was called to the 7223 Veterans ■ Boulevard location of K-Mart to pick up a shoplifter. Upon arrival at the scene, Chaisson proceeded to the security office where he observed defendant in the presence of Paguaga. Chais-son then observed Paguaga and another loss prevention employee removing items from defendant’s pants. Thereafter, Chaisson placed defendant under arrest.

ANALYSIS

In his first allegation of error, the defendant charges that the trial court erred in denying defendant’s Batson challenge. Defendant contends that the trial court erred in accepting the prosecutor’s race-neutral reason for peremptorily ^challenging an African-American juror when the juror answered that she could remain neutral to both the State and the defense. The State responds that the trial judge was able to observe the actions and demeanor of the prosecutor and, therefore, the trial court’s decision to allow the peremptory challenge should be given great deference.

The Equal Protection Clause of the Fourteenth Amendment guarantees that criminal defendants have the right to be tried by a jury selected by nondiscriminatory criteria. It is well established that the use of peremptory challenges based solely on a juror’s race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). When a defendant makes a Batson challenge, claiming the State has used peremptory challenges in a manner which violates the Equal Protection Clause, the defendant must first make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of a juror’s race. State v. Loper, 00-1936 (La.App. 5 Cir. 12/26/01), 807 So.2d 316, 323; State v. Jackson, 29,470 (La.App. 2 Cir. 8/20/97), 707 So.2d 990. If the defendant fails to make a prima facie case, then the challenge fails. If a prima facie case is established, the burden shifts to the State to come forward with a race-neutral explanation for its peremptory challenges. Once the prosecutor has satisfied the second step of the Batson review, by providing a race-neutral reason, the trial court then has the duty to determine whether the defendant has established purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson v. Kentucky, 476 U.S. at 96-98, 106 S.Ct. at 1722-1724; State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272; State v. Banks, 96-652 (La.App. 5 Cir. 1/15/97), 694 So.2d 401, 409. In reaching a decision, the trial court should weigh the facts and arguments presented by the defense in support of its prima facie offering against the “race-neutral” reasons proffered by the State. State v. Banks, supra; State v. Trout, 95-1845 (La.App. 4 Cir. 4/10/96), 672 So.2d 933. The party who alleges he has been the victim of racial discrimination carries the burden of persuasion in this third step. Batson v. Kentucky, 476 U.S. at 94, 106 S.Ct. at 1722; State v. Banks, supra. A trial judge’s determination on a claim of purposeful discrimination rests largely on credibility evaluations, so those findings are entitled to great deference by the reviewing court. State v. Jones, 00-162 (La.App. 5 Cir. 7/25/00), 767 So.2d 862, writ denied, 00-2484 (La.6/22/01), 794 So.2d 783.

In the instant case, the State exercised a peremptory challenge to excuse Lynnette Bevrotte during the second panel of voir dire. Defense counsel objected and made a Batson challenge alleging Bevrotte to be an African-American and stated that the State had used peremptory challenges on two of the three African-American jurors. The third African-American juror was excused for cause. The prosecutor responded that he was unaware of Bevrotte’s race. Thereafter, the trial judge stated the following:

If we assume that Bevrotte were an African-American, then the court would state that the only other two African-Americans the peremptory challenges were used on, were by the State. The court would find that a pattern exists. I would ask you [prosecutor] to give a race-neutral reason.

The prosecutor then proceeded to provide a race-neutral reason for his exercise of the peremptory challenge stating that Bevrotte was wearing a jogging suit in the courtroom, which he felt was a sign of disrespect to the court and its authority. The prosecutor stated that he considered the wearing of shorts, a hat, or chewing gum to be equally disrespectful. Defense counsel responded that Bevrotte was wearing a velour jogging suit and noted that another juror was wearing jeans and a T-shirt. The prosecutor, however, stated that he considered a jogging suit to be different than jeans explaining that he wore jeans to nice restaurants. The trial court, thereafter, found the prosecutor’s reason as race-neutral noting the prosecutor’s “apparent sincere convictions.”

| (¡Explanations based upon age, hairstyle, and dress, for example, are race-neutral. United States v. Clemons, 941 F.2d 321, 323 (5th Cir.1991). In Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995), the Supreme Court found that the prosecutor’s proffered explanation that he removed a juror because he had long, unkempt háir and a beard to be race-neutral, reasoning that the wearing of a beard is not a characteristic which is peculiar to any racial group. See also, State v. Jones, 98-842 (La.App. 5 Cir. 2/10/99), 729 So.2d 57, and State v. Banks, 96-652 (La.App. 5 Cir. 1/15/97), 694 So.2d 401. Also, in United States v. Swinney, 970 F.2d 494 (8th Cir.Mo.1992), cert. denied, 506 U.S. 1011, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992) and 507 U.S. 1007, 113 S.Ct. 1650, 123 L.Ed.2d 271 (1992), the Eighth Circuit found the prosecutor’s reasons for peremptorily challenging a black juror as race-neutral where the prosecutor explained that the juror’s wearing of dark sunglasses and “a big gold watch” showed disrespect to the judicial system.

As in the case of Swinney, the prosecutor’s reason for challenging Bevrotte was based on his belief that her attire was disrespectful to the court. Furthermore, wearing a jogging suit is not a characteristic that is peculiar to any racial group. We note that the trial judge was in the best position to determine the prosecutor’s sincerity in his reasons for challenging Bevrotte, and we find that the trial court did not abuse its discretion in determining the prosecution’s explanations were race-neutral.

We also find that the record does not appear to establish that defendant made a showing of purposeful discrimination. Although the selected jury was all white, a review of the entire record does not reveal any actions or statements by the prosecutor that would indicate racial discrimination. Of the three black jurors, one was excused for cause, another was peremptorily challenged, the reasons for which 17are not included in the record, and the last juror was peremptorily challenged for what appeared to be a valid racially neutral reason.

Accordingly, we find that the trial court did not err in denying defendant’s Batson challenge.

In his second allegation of error, defendant alleges that the Court erred by imposing an unconstitutionally harsh and excessive sentence. Defendant contends that his sentence of 20 years as a fifth felony offender is excessive. The State responds that the defendant did not establish that he was exceptional warranting a downward departure from the mandatory minimum sentence and, therefore, his sentence was not unconstitutionally excessive.

The United States and Louisiana Constitutions both prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const. art. I, § 20. The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993). When a trial court determines that the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment,” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d at 1280; State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 383. However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 709 So.2d at 676; State v. Harbor, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 226. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... 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.” State v. Harbor, supra at 227.

When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Further, if the trial court finds clear and convincing evidence that justifies reducing the sentence, the court cannot impose whatever sentence it may feel is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive. Johnson emphasized that a downward departure from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in “rare situations.” State v. Johnson, 709 So.2d at 677.

At the enhanced sentencing hearing, in support of his request for a sentence less than mandatory minimum of 20 years, defendant presented the testimony of his sister, Barbara Harris. Harris testified that defendant had lived at her home in the past and, at the time of his latest arrest, was living with her and her children. Harris informed the court that the reason her brother stole was to help her and her children and that the reason her brother committed his latest offense was to get money to “put some food on the table” for Thanksgiving dinner. Defendant also testified that he suffered from a terminal illness and that he committed his crimes because he had to assist his sister and two nephews.

ROn appeal defendant argues that the mandatory minimum sentence of 20 years is constitutionally excessive based on the facts that his crimes were not violent in nature and stole in order to assist his sister and her family. The fact that defendant’s crimes were non-violent in nature cannot be the sole reason, or even the major reason, for declaring a sentence excessive because the defendant’s history of violent or non-violent felonies has already been taken into account under the Habitual Offender Law. State v. Johnson, 709 So.2d at 676; State v. Lott, 02-702 (La.App. 5 Cir. 12/30/02), 836 So.2d 584, 588. Furthermore, the trial court considered defendant and Harris’s assertions that defendant stole in order to assist Harris and her children and concluded that it was not a justification for defendant’s crimes, noting the various means of assistance available for individuals in defendant and Harris’s situations. The trial judge also considered Harris and defendant’s specific claim that defendant committed his latest offense for the purpose of seeming money to purchase Thanksgiving dinner but discounted the claim noting that the defendant’s offense occurred on July 13, 2001.

Additionally, defendant argues that the trial court should have made a downward departure in sentencing because of his terminal illness. In State v. Lee, 96-2392 (La.App. 4 Cir. 8/13/97), 699 So.2d 461, writ denied, 99-1022 (La.9/24/99), 747 So.2d 1115, the Fourth Circuit declined to consider a defendant’s HIV positive medical condition as a mitigating factor for sentencing purposes. The court stated that:

Status as HIV positive is not a legislatively recognized mitigating factor for sentencing or for deviation from the mandatory minimum sentence prescribed under the Habitual Offender Law. Although we sympathize with the defendant, the state, through the Department of Corrections, has established medical policies and procedures to manage and support these prisoners. Because HIV and AIDS are prevalent in prisons today, reasonable and compassionate policies for the management of prisoners as they progress through the stages of the disease exist,

|1fl/d at 465. See also, State v. Alford, 99-0299 (La.App. 4 Cir. 6/14/00), 765 So.2d 1120, 00-2120 (La.9/28/01), 797 So.2d 683 and State v. Miller, 00-0218 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, writ denied, 01-2420 (La.6/21/02), 818 So.2d 791. We find that defendant’s HIV is not a factor sufficient to deviate from the mandatory minimum sentence.

Although defendant’s situation is sad, we do not find that defendant has proven he is exceptional. Defendant, as a fourth or subsequent felony offender, appears to be exactly the type of offender that the Habitual Offender Statute intends to punish so severely because he continues to commit felony after felony. State v. Lindsey, 99-3256 (La.10/17/00), 770 So.2d 339, 344. Moreover, regarding defendant’s illness, in the event the treatment afforded by the Department of Corrections proves inadequate, defendant can apply to the Court for relief. State v. Thomas, 556 So.2d 1349, 1352 (La.App. 5 Cir.1990), writs denied, 563 So.2d 1151 (La.1990). Defendant’s allegation that the trial court erred in sentencing defendant to the mandatory minimum of 20 years of imprisonment at hard labor is without merit.

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which merit consideration.

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

CONVICTION AND SENTENCE AFFIRMED.

      . The defendant in his brief argues that he as Acquired Immune Deficiency Syndrome (AIDS); however, defendant did not introduce any testimony or evidence as to the nature of his illness. As the State notes in its brief, the only information regarding the nature of defendant's illness appears during arguments held regarding the State's notice of intent to introduce a statement made by the defendant to a witness in which the defendant allegedly stated, 'T've got AIDS.”


source: Caselaw Access Project

author: |,MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Paul H. WILL.
    No. 03-KA-438.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.
    Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Appellee.
    Frank G. Desalvo, New Orleans, LA, for Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   |,MARION F. EDWARDS, Judge.

Defendant, Paul Will, appeals his conviction for aggravated kidnapping. For the following reasons, the defendant’s conviction is affirmed.

Defendant, Paul H. Will, was charged by indictment by the Jefferson Parish grand jury with aggravated kidnapping in violation of LSA-R.S. 14:44, which allegedly occurred on or between July 24 and 25, 2000. On September 13, 2000, Will was arraigned and pled not guilty. On July 25 and 26, 2001, the case was tried before a 12-person jury, which found Will guilty as charged. On August 24, 2001, Will filed a motion for entry of conviction of a lesser included responsive offense, which was denied. On November 16, 2001, the trial court sentenced Will to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On that same date, Will made an oral motion for appeal and filed a written motion for appeal that was granted.

On August 19, 2002, Will filed with this Court a motion and incorporated memorandum to stay appeal and remand for a hearing on plea bargain. On August 1325, 2002, this Court ordered the appeal to be stayed and remanded to the trial court for an evidentiary hearing regarding the plea bargain to be held within 25 days of the order. On September 12, 2002, the State filed an application for writs of prohibition, mandamus and certiorari with the Supreme Court from the ruling of this Court. On that same date, the Supreme Court granted the application in part, stating:

Because it appears defendant’s Motion to Stay Appeal and Remand for a hearing on Plea Bargain was granted by order of a single judge of the court of appeal, it is ordered that the action be vacated and this matter remanded to the court of appeal for consideration of the motion by a three-judge panel. La. Const, art. V. Section 8(A) and (B).

On November 7, 2002, this Court ordered that the appeal be remanded to the trial court for an evidentiary hearing on the alleged plea agreement within 25 days of the order. This Court stated that upon completion of the hearing, the appeal should be relodged in this Court according to regular appellate procedure.

On December 6, 2002, an evidentiary hearing was held pursuant to this Court’s opinion.

At trial, Nicole Madere testified that, on July 24, 2000, she left home at approximately 6:45 a.m. and arrived at Lakeside Shopping Center in Metairie approximately 15 minutes later. She drove into the Lakeside Shopping Center parking lot facing Veterans Highway. Madere noticed a man, later identified as defendant, Paul Will, walking towards the right side of her car. ' Madere positively identified defendant, Paul Will, in court.

When she parked, Will was in the front of her car. Madere pulled into a parking spot and turned off the engine. She saw Will walking towards the driver’s side of her car. Madere opened her door slightly and went to grab her purse and lunch on the passenger’s seat. As she was getting ready to open the door, Will was standing in front of her pointing a gun at her. Will told Madere to “scoot over,” and she complied. . .

LWill then got into the driver’s side of the car, turned the engine on, and started driving. He kept asking Madere where the interstate was and how to get to Sli-dell. As they were getting ready to get on to the interstate across from Lakeside, Madere asked Will to let her off at the gas station next to the interstate. Will told her “No,” that she was just going to go for a ride, and that he did not want to take her ear away from her.

Madere stated that Will appeared to be in a hurry as they headed towards Slidell. Will asked her if she wanted to know what he was doing, and she told him that if he wanted to tell her he could. Will told Madere that he was living with his girlfriend, that he had taken in a woman, Juliet, who was in a lot of trouble, that some people Juliet knew had stolen $60,000 of his money, that he was not sure if his fiancée was in on it or not, and that he wanted to get wherever he was going to get his money back and take revenge on these people. At this point, Madere did not know where they were going, and Will did not give her any indication how long she' was going to be with him'. Madere testified that she was fearful.

Will and Madere first made a stop at a gas station in Mississippi, which had a Wal-Mart next to it. Madere did not exit the car as Will used her ATM card to get gas. Will had previously asked if she had any credit cards or debit cards, and Mad-ere told him she had a debit card. Madere testified that she gave the card to Will because she was scared. Will was never out of her sight, and she was never out of his sight. They drove a little while longer, and then they stopped at an ATM and a gas station.

During the drive, Will told her how his uncle had passed away, that his father had died when he was very young, and that everything was going wrong for him. Madere did not ask him any questions at that time. When Will entered her car at Lakeside, he put the gun in the front pocket of his sweatshirt. Madere did not believe that Will up to this point had ever taken the gun out of his sweatshirt. | ¡When they stopped at the next gas station, she exited the car and Will followed her to the restroom.

As she was using the restroom, Will kept banging on the door because he could not get the ATM card to work. He kept telling Madere that she had given him the wrong number, however she had given him the correct PIN number right before they got out of the car. The restroom was a single restroom with just one door. There was no one else in the bathroom. There was no one else in the store at that point.

Will was angry, thought she was lying to him, and in a hurry to leave. Madere testified that approximately $60 was taken out of the ATM machine, with Will conducting the transaction. Madere did not feel at any point between the first two stops that she had the opportunity to escape. Early on in the trip, before they were getting ready to pull in somewhere or stop, Will expressed concerns that she might run away, and asked her if he needed to put her in the trunk. She told him “No” and that she would do whatever he asked of her.

Madere testified that the whole time she thought that “something really bad was going to happen.” Will and Madere drove on and stopped at a McDonald’s so that Will could get some breakfast. They went through the drive-through. At McDonald’s, Will asked Madere if she had any questions for him. She asked him where they were going, and he told her they were going to Philadelphia.

Madere stated that she never felt like she was safe, and wondered why he would keep her alive after he had told her what he was going to do. They stopped to get gas a couple more times. Madere identified State’s Exhibits 16, 17, and 18 as one of the gas stations where they stopped. She did not remember if she ever exited the car at that gas station. She identified State’s Exhibits 19, 20, and 21 as the last gas station where they stopped.

| ¡¡Madere testified that they had been following a car going very fast, that that car pulled off at the gas station, and that Will followed them. Will got gas, but she did not exit the car at that point. After they got gas, they pulled up to a parking area and they both got out and used the restrooms. When she entered the store to use the restroom, Will was right next to her. As she walked in, someone else was walking out. There was no one else in there. She was not able to get any assistance at the restroom. When she entered the restroom, she believed Will was right by the door. After they used the restrooms and went back to the car, Will was talking to the guys they had been following. Madere did not know the people and she did not see a license plate; it looked like a new car. Madere thought those people were “in on this,” that Will knew them, and that they were going to follow them.

Will had a conversation with those people, but she could not hear what they were saying. At this point, she did not know Will’s name. When Will got back into the car, he told Madere that they were getting closer. Madere thought she was getting closer to the end of her life. Madere identified State’s Exhibits 22, 23, and 24 as the gas station where she had to sign her name on the receipt after they had gotten gas. They had to pay at a booth right next to the pumps. She testified that she had to sign the receipt because defendant asked her to. She felt like she had no choice.

At each of the stops, to the best of her knowledge, the gun was in Will’s pocket. Madere was afraid to get to Philadelphia because she knew that was the end of the trip, and that he was not going to let her go. They listened to the radio during the drive. They listened to her CD at first, and then they listened to a talk show that was discussing sex in a vulgar manner.

Madere did not attempt to change the station because she was scared and did not want to make Will angry. Will asked her if she had had sex, and if she was 17wearing underwear. Madere got “very, very nervous,” believing that Will was going to rape her. At some point during the trip, Madere drove the car because defendant asked her to and told her his back was hurting. At the gas station where she had to sign her name, Will asked her to drive, and she asked if she had to. Will said, “No,” and he drove. Ten minutes later, he pulled to the side of the road and told her she “really needed to drive.” At that point, she felt like she had to drive.

There were other stops made along the way prior to getting to Philadelphia. After Will ate the McDonald’s food, he stopped on the side of the road so he could use the restroom. She did not have her cell phone with her. He had taken her cell phone and her keys. She was not able to see him, but she did not look -to see where he went. She did not remember any other stops aside from the one after McDonald’s. After it got dark, the mood in the car was “very eerie.” Will dimmed the lights on the inside of the car.

At no point during the trip did Madere feel as though she had the opportunity to escape. She testified that she went on this trip because Will had a gun. When they arrived in Philadelphia, Will asked her where she wanted to be let off. He told her where he was going to leave her ear. She told him to let her off where there were a lot of people, like a hotel or airport, because it was late, approximately 1:30 or 2:30 a.m. Madere testified that she had never been to Philadelphia and was not familiar with it.

Will wanted to drop her off at a movie theater, but there was nobody there and it was already closed, so he pulled down one of the streets and stopped the car. After he stopped the car, nothing was said at first. She asked him if she could go. He told her, “Yeah,” and gave her her cell phone. He told her to call her mom and dad. The area where he dropped her off was dark; it looked like a downtown area. He said something about there being bars around there. There were no people milling about. She got out of the car and started running. She thought he was Isgoing to shoot her. She tried to call her mom and dad, but she could not dial the right number. She never looked back. Miss Madere testified that she was crying hysterically at that point.

She was completely numb and could not feel her legs, which made running harder. Madere ran to the corner and was banging on a door. A car pulled up with two guys. They asked her if she was looking for some place. She told them she needed to find the police and explained what had happened. They told her they had seen a police car around the block, so she got into the car with them. Madere called her home. When someone answered the phone, she had found the police. She talked to her parents. Miss Madere also talked to the police that night and told them what had happened. She described Will’s clothing. When Will let her off, he was wearing a pair of light denim jeans, which he had changed into in the car. He changed into the clothes while he sat in the passenger’s seat and she was driving. Defendant had given her a sweatshirt when they were at the last gas station. The officers brought her to the police station in Philadelphia. A short while later they found Wih.

The police brought Madere to a convenience store to identify him, which she did. She was at the police station most of the night. Madere’s mother’s cousin came and picked her up. The trip with defendant lasted approximately 19 hours. Toward the end of the trip, Will was driving very fast, and swerving in and out of cars. At one point, he turned off the lights and drove along the shoulder of the road next to a truck to avoid a police car.

Throughout the trip, Madere never thought she had the opportunity to escape, and she only did what he said because he had a gun and she was terrified of him. She thought that her safety depended upon her compliance.

Will testified that his date of birth was May 28, 1973, that his father died before he was born, and that his mother, grandparents, and his uncle Charles, |9“Chick,” raised him. Will further testified that he earned his living by being a musician and a cook, that he started using drugs when he was 20 years old, and that he was a heroin and drug addict. Will testified that, after his uncle’s death, he decided to commit suicide by overdosing on heroin.

Will came to New Orleans on July 22, 2000 and slept on a bench. Will testified that he did not have any money to get back to Philadelphia. On July 24, 2000, a friend dropped off Will at Lakeside Shopping Center. He was inside the mall for approximately five minutes.

Will had found a gun in Philadelphia in the Potomac and realized that it was the only way he was going to get back to Philadelphia. He testified that he wanted to go back to Philadelphia to commit suicide because that was where his family was. When Madere pulled up in her car, she opened the door. Will waved the gun at her and asked her to scoot over, which she immediately did. As soon as he got into the car, he stuck the gun in his sweatshirt. Miss Madere asked defendant to let her go.

Will told Madere that to let her go, he would never get to where he was going. He promised not to hurt her and that he would let her go as soon as he got to where he was going. Will testified that Madere started crying. Madere showed Will how to get onto the interstate. When they did so, he started driving north. He remembered that their first stop was at a gas station in Picayune, Mississippi.

Miss Madere had asked to go to the bathroom. Will got gas while they were there and used her debit card to pay for it. When they stopped, Will realized the gun was loaded, so he put it under the seat without Madere seeing him. When they got to Mississippi, Will asked Madere if she had any money, but she did not. He asked her if she had a credit card. When he asked her for the card, he still had the gun in his sweatshirt pocket. He did not know she had a debit card before they got to Mississippi.

| inWiIl testified that he knew Miss Mad-ere was scared, and that he told her “hundreds” of times that he would not harm her. They made a lot of different stops. At one point, they stopped on the side of the highway. He went into the woods because he had “gone to the bathroom on himself’ and needed to wipe himself off. Will testified that he took the keys when he left. He changed clothes inside the car because of that, covering himself with a towel as he did so. Will explained that he and Miss Madere talked about a lot of things, her parents, college, boyfriends and girlfriends, etc.

Will talked to Miss Madere about suicide many times. He testified that she was very supportive and said “a lot of really wonderful things.” Will admitted they were listening to a radio show where a man, who was pretending to be the DJ’s father, asked sexual-type questions. Defendant explained that he in turn asked Miss Madere those questions. He testified that he did not do that to frighten her. Defendant testified that, at one point, Miss Madere, on her own, talked about visiting a male strip club with some friends, and about being asked on a date by a guy who had given her a card.

Will admitted that he stopped talking when it got dark outside, which probably explained why Miss Madere testified that the mood changed at that point. Will asked her to drive twice for relief because he was withdrawing from 'heroin and had been awake for days. He testified that he could not see to drive anymore. Will further testified that he slept in the car for about 45 minutes. .He explained that Miss Madere did not look at him very much except when they were looking around at the scenery at one point and she made comments about how beautiful it was.

Will further testified that he was surprised each time when Miss Madere came back from the bathroom. At one point in the trip, they were traveling on the highway with another group of people and speeding. Will noticed that the other [near had a radar detector. Defendant communicated through the window to them that he wanted to go faster. They pulled into a large gas station, and defendant followed. They got into a conversation, and it turned out the people in the other car were going to South Philadelphia approximately two blocks from where his grandmother lived.

Will told them about a short cut to save almost two hours of driving. They were appreciative and offered to buy defendant and Miss Madere something to eat. Defendant thought he told them his name. Defendant testified that he did not know those people before he met them at the gas station. Will did not recall threatening to put Miss Madere in the trunk. He testified that he did not have to threaten her or restrain her because she did not threaten to run away. Will testified that he never even touched her.

Will learned Miss Madere had family in Philadelphia after they left New Orleans, but before they stopped in Mississippi. Defendant testified that he told her that was good - because she would have somewhere to go.. He claimed she did not know where her relatives lived, so he had to find a different place to drop her off. Defendant testified that as they got closer to Philadelphia, Madere was excited because she knew she was going to get dropped off. He explained. that he was going to drop her off at a theater complex, but it was closed. So he dropped her off downtown in Center City, where there were lots of people. He described the section of town as “good.”

Will stated that Madere asked to be let off somewhere busy, so he did that for her. Will testified that he dropped her off near a resort place called Penn’s Landing. He explained that he had seen two police officers-sitting in a car in the area where he let her. off. Will testified that Miss Mad-ere was wearing running shoes and a white T-shirt when he picked her up. He explained that the weather at 2:30 a.m. in Philadelphia was a lot colder than in New Orleans. Defendant | ^testified that that was why he gave her the sweatshirt. He also gave her cell phone back and told her to call her mom and dad because they were going to be looking for her.

He knew she would be able to find the police. After dropping her off, Will was “kind of frantic” for 20 minutes or so. He went up Delaware Avenue to North Philadelphia to a place called Kensington and Lehigh, “where it’s pretty much like an open drug bazaar all hours of the day.” Will’s intention was to go there and buy enough heroin so he could overdose and die. Will did not have enough money at that time to do that. Will then picked up a black male to further his intention of buying drugs. He went to two ATMs because he still could not “properly function.” Will got $20.00 and he gave the black male that to test the drugs.

Will got arrested at the second ATM. The officers put him in a van and took him to a police station. Will testified that he told the officers he wanted to write two letters, one to his mom and one to Madere. The officers allowed him to do that. After that, defendant willingly gave a statement. Will testified that at the gas station shown in State’s Exhibits 19, 20, and 21, he and Miss Madere went to the bathroom. He further testified that there were a lot of people around, and that he saw people come out of the bathroom after Miss Mad-ere did.

Will further testified that he had never been arrested, and that he had never hurt anybody. He explained that he did not realize at the time how traumatic the incident was for Miss Madere, but that he realized it now. Will said that he did not realize it at the time because he was withdrawing from heroin and because he did not care about being alive anymore. He claimed that he did not ever demand anything from Miss Madere in order to let her go. He did not use his $60 to buy gas or food, because he was saving it to buy heroin in Philadelphia in order to commit suicide. Defendant testified that he could not get to Philadelphia without Madere because he knew she would have called the police.

11ftAfter hearing the testimony and evidence, the jury found defendant guilty as charged.

In his first assignment of error, Will asserts that the evidence at trial was insufficient to support a conviction for aggravated kidnapping. Will’s own admission at trial, however, constituted a judicial admission to second degree kidnapping.

Will specifically contends that the State failed to establish that he intended to seek ransom for the release of the victim, Nicole Madere. The State responds Madere was forced to give up her car and her debit card and travel to Philadelphia in order to secure her release. It argues, therefore, that the evidence was sufficient to support the conviction for aggravated kidnapping.

The standard for appellate review of the sufficiency of evidence 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 beyond a reasonable doubt.” Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt.

Will was charged with and convicted of aggravated kidnapping in violation of LSA-R.S. 14:44 which, in pertinent part, provides:

§ 44. Aggravated kidnapping
Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
114(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

The crime of second degree kidnapping is set forth in LSA-R.S. 14:44.1 which, in pertinent part, provides:

§ 44.1. Second degree kidnapping
A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5)Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

The difference between aggravated and second degree kidnapping is the intent to extort.

When the State relies upon the “forcible seizing” provision of the aggravated kidnapping statute, the State is required to prove the following elements to establish the offense:

liBl. the forcible seizing and;

2. the carrying of any person from one place to another (the asportation element);

3. with the intent to force the victim, or some other person, to give up anything of apparent present or prospective value (the extortion element);

4. in order to secure the release of that person.

On appeal, Will does not contest the State’s proof of the first and second elements. Rather, he claims the State presented no evidence that he had any intent to ransom the victim or that he required the victim or some other person to give up something of value in order for the victim to be released.

In State v. Arnold, the defendant was convicted of attempted aggravated rape, aggravated crime against nature, attempted second degree murder, and aggravated kidnapping. In that case, the defendant approached a female in a parking lot. As she was attempting to unlock the door of her truck, the defendant grabbed her by the hair and ordered her into the truck. During the entire drive, the defendant held a knife on the victim and told her if she did not comply with his demands, he would use the knife. The defendant attempted to rape the victim, but was unable to do so. He forced her to perform oral sex upon him. The defendant subsequently told the victim to leave the truck. As she did so, the defendant stabbed her in the neck. The victim managed to escape.

The issue on appeal in Arnold was whether a person, who forcibly seized and carried away another person with intent to rape her, can be found guilty of aggravated kidnapping, where there is not explicit communication by the kidnapper to the victim that she will only be released if she complied with his demands for sexual gratification, but the circumstances are such that a reasonable person would implicitly understand submission is the price for safe release.

11fiThe supreme court stated:

Thus, the crucial question in determining whether an aggravated kidnapping has occurred is not whether the defendant had intent to release the victim at either the outset of the crime or indeed at any point during the crime. The more important question and the issue to be focused upon is whether the defendant sought to obtain something of value, be it sex or money or loss of simple human dignity, by playing upon the victim’s fear and hope of eventual release in order to gain compliance with his demands.

The supreme court in Arnold stated that it did not require evidence of explicit communication by the kidnapper to his victim. Rather, it found that the defendant’s threat to the victim that he would use the knife if she did not do what he ordered plainly manifested his intent to force her to give in to his sexual demands with the hope of securing her safe release.

In State v. Roblow, the defendant was convicted of two counts of aggravated kidnapping and one count of armed robbery. In Roblow, two sisters, M.S. and S.S., walked to their vehicle in a parking lot. Defendant walked up behind the women, pointed a gun at S.S., and told the women to get into the vehicle. Threatening to kill the women if they did not comply, he ordered them to drive him to Shreveport. Defendant told M.S. to stop and buy gas and to use their credit card, which they did. When the women asked defendant what he was going to do with them in Shreveport, he indicated he would possibly let them go. Defendant subsequently took the women to a motel and raped them. Afterwards, he directed M.S. to drive him to Shreveport. When they arrived, defendant told M.S. to stop the vehicle, and he got out.

On appeal, the defendant in Roblow argued that the State presented no evidence that he had any intent to ransom the victims or require someone to give up something of value in order for the victims to be released. The appellate court found that the State established the third element with proof defendant intended to |17force the victims to drive him to Shreveport and to engage in sexual relations with him. It stated in pertinent part:

The transportation and the sexual relations independently support a finding that defendant intended to force the victims to give up something of value. As we indicated in State v. James, 459 So.2d 1299, 1313 (La.App. 1st Cir.1984), writ denied, 463 So.2d 600 (La.1985), the phrase “anything of apparent present or prospective value” includes the situation where an offender forces a victim to transport the offender to a particular location.

The appellate court in Roblow also concluded that the clear implication of defendant’s behavior was that the victims would be released safely only if they submitted to all of his demands. It went on to state that the victims reasonably believed they would not be released safely unless they drove defendant to Shreveport and complied with his demand for sexual gratification upon arrival at the motel. In light of the foregoing, the appellate court found that the essential elements of the crime of aggravated kidnapping were proven beyond a reasonable doubt.

Further, in State v. Roberts, the defendant was convicted of aggravated kidnapping. In that case, the victim, Claudia Oliver, left a grocery store and walked back to her vehicle. As she was entering her vehicle, defendant approached Mrs. Oliver, pointed a gun at her head, and told her to get into the backseat. Another man, Wilson, got into the backseat and sat beside Mrs. Oliver. Defendant drove the vehicle out of the lot and told Mrs. Oliver they needed $5,000. She said she only had $250 and could write a check for that amount.

She pleaded with the men not to harm her. Wilson responded that if she did not do anything “funny,” she would not be hurt. Wilson demanded all of the cash from Ms. Oliver’s wallet. They went to Mrs. Oliver’s bank where she wrote a | ischeck. Defendant drove to an apartment complex, demanded the change from Mrs. Oliver’s purse, and allowed Mrs. Oliver to get out of the vehicle. Wilson told Mrs. Oliver that they would return her vehicle to a place where she had originally parked.

On appeal, the defendant in Roberts contended that the State failed to establish that he intended to force the victim to give up something of value in exchange for her release. The appellate court stated that when Wilson told the victim she would not be hurt if she did not do anything “funny,” those words prompted a belief that she would be safely released upon relinquishing the money, and that influenced her not to run or report the crime in progress to the bank teller. The appellate court found that, although the offenders did not expressly communicate to the victim that she would have to surrender money in order to be released, the victim understandably perceived that her freedom was conditioned upon compliance with their demands. The appellate court found that the record supported the conviction for aggravated kidnapping, stating:

Viewing all of the evidence in the light most favorable to the prosecution, we find the trial court could have reasonably concluded that the defendant’s threatening actions manifested an intent to exploit the victim’s fear and force her to surrender something of value in the hope of securing a safe release.

Based on the foregoing jurisprudence, we find that the State sufficiently established all the elements necessary to prove aggravated kidnapping. Will does not dispute that he forcibly seized and carried the victim from one place to another, thus satisfying the first two elements of the aggravated kidnapping statute. The State established the third element with proof defendant intended to force the victim to drive with him to Philadelphia. As was indicated in Roblow, supra, the phrase “anything of apparent present or prospective value” includes transportation.

[19The clear implication of Will’s behavior was that Madere would be released only if she submitted to all of his demands. Thus, we find sufficient evidence of the fourth element.

Will pointed a gun at Miss Madere and forced her to drive with him to Philadelphia. She asked to be released before they got onto the interstate; however, he told her, “No,” and that he would release her when he got to where he was going. Will asked Madere if he needed to lock her in the trunk to prevent her from escaping. He told her how individuals had stolen money from him and that he intended to take revenge on them. This caused Mad-ere to believe that Will was going to eventually kill her because she knew too much information. Will led Madere to believe that he had the gun in his front sweatshirt pocket during the entire trip. He questioned her regarding sexual matters, leading Madere to believe she was going to be raped. Will began conversing with individuals at one of the gas stations, which led Madere to believe that a group of people were in on the plan to abduct her.

All of these incidents caused Madere to fear defendant. In light of Will’s behavior, Madere reasonably believed she would not be released safely unless she drove with defendant to Philadelphia, used her debit card to pay for gas and food, and did not try to escape. Although Will -did not expressly communicate to the victim that she would have to surrender her debit card and travel with him to Philadelphia in order to be released, Madere understandably perceived that her freedom was conditioned upon compliance with his demands.

After a review of the record we find that, 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 of aggravated kidnapping were proven beyond a reasonable doubt.

1 snln his second assignment of error, Will claims that he did not receive effective assistance of counsel because his attorney failed to inform him of a potential plea agreement to second degree kidnapping.

A claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted, rather than direct appeal. However, when the record is sufficient, this court may resolve the issue on direct appeal in the interest of judicial economy. After a review of the record, we conclude that this case is one in which the ineffective assistance of counsel claim would more appropriately be addressed by post-conviction relief. Accordingly, we decline to resolve this issue on direct appeal. Will may raise this issue in the trial court by application for post-conviction relief.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. The review reveals no errors patent in this case.

Accordingly, based on the foregoing, the defendant’s conviction is affirmed.

AFFIRMED.

      . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

      . State v. Lapell, 00-1056 (La.App. 5 Cir. 12/13/00), 777 So.2d 541, 545, writ denied,
        00-3546 (La.9/14/01), 796 So.2d 675 and 01-439 (La. 1/4/02), 805 So.2d 1192.

      . State v. Zihlavsky, 33,467 (La.App. 2 Cir. 6/21/00), 764 So.2d 250, 255, writ denied, 00-2434 (La.5/25/01), 792 So.2d 756.

      . State v. Roblow, 623 So.2d 51, 57 (La.App. 1 Cir.1993), writ denied, 00-2188 (La.4/12/01), 789 So.2d 587 (citing State v. Arnold, 548 So.2d 920, 923 (La.1989)).

      . 548 So.2d 920, 925 (La.1989).

      . State v. Arnold, 548 So.2d at 925.

        .Id. at 925.

      . 623 So.2d 51, 53-54 (La.App. 1 Cir.1993), writ denied, 00-2188 (La.4/12/01), 789 So.2d 587

      . Id.

      . State v. Roblow, 623 So.2d at 57-58.

      . Id. at 58.

      . Id.

      . 31,219 (La.App. 2 Cir. 9/23/98), 718 So.2d 1057, 1058-1059, writ denied, 99-1191 (La.9/24/99), 749 So.2d 627 and 01-1095 (La.1/4/02), 805 So.2d 1187,

      . Id.

      . Id.

      . State v. Roberts, 718 So.2d at 1060.

      . State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753.

      . State v. Ratcliff, 416 So.2d 528 (La.1982).

      . State v. Burnett, 33,739 (La.App.2d Cir. 10/04/00), 768 So.2d 783, writ denied, 2000-3079 (La.11/02/01), 800 So.2d 864.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir. 1990).


author: | «SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Julian CHACON.
    No. 03-KA-0446.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.
    Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   | «SOL GOTHARD, Judge.

Defendant, Julian Chacon, appeals his conviction and sentence on a charge of cruelty to a juvenile in violation of LSA-R.S. 14:93. For reasons that follow, we affirm the conviction and sentence.

The record shows that defendant was charged, by bill of information filed on November 7, 2001, with cruelty to a juvenile. He pled not guilty and proceeded to a bench trial on May 7, 2002, after which he was found guilty as charged. Defendant was subsequently sentenced to two years at hard labor.

FACTS

On Saturday, May 19, 2001, C.P., age eight, had a skating party for his birthday. At the party, defendant, C.P.’s mother’s live-in boyfriend, gave C.P. quarters to play video games. After the party, C.P.’s mother had to go to work and defendant had to go to a meeting so defendant took C.P. to a babysitter. Later that night after his meeting, defendant picked up C.P. from the babysitter. C.P.’s mother came home later that night and noticed a bruise on C.P.’s arm. She assumed C.P. got the bruise from the skating party because he fell down so much. |sWhen C.P. went to school on Monday, his teacher noticed the bruise and took him to the principal’s office. C.P. told the principal that his cousin gave him the bruise at the skating party. The principal did not believe C.P. and eventually called the police.

Detective Shane Tilford responded to the call at the school. He met with C.P. who told Mm that defendant punched him several times after he spilled quarters while walking to defendant’s truck. According to Detective Tilford, C.P. stated that defendant was very angry and was yelling when he punched C.P. C.P.’s mother and defendant were both called to the school.

According to defendant, C.P. was carrying a little bucket with thirty to forty dollars of quarters left over from the money defendant had given C.P. at the skating rink. C.P. jumped into the truck spilling the quarters , everywhere. Defendant asked C.P. to pick up the quarters. When C.P. did not obey, defendant leaned over the driver’s seat and hit C.P. in the arm. Defendant explained he was trying to get C.P.’s attention and did not hit him hard.

C.P. testified defendant punched him twice in the left arm with a closed fist. C.P. initially stated defendant punched him after expressing frustration because C.P. spent all the money defendant gave him earlier. Later, C.P. testified that defendant struck him because he dropped the remaining quarters. C.P. stated the punches did not hurt that much and that he did not cry.

Defendant was arrested at the school and advised of his rights. Prior to being transported to the police station, defendant admitted to Detective Tilford that he had hit C.P. in the arm. Defendant subsequently gave a recorded statement at the police station where he stated he merely gave C.P. a “pinch to grow an inch and a sock to grow a bock” at the skating rink out of fun. He denied hitting C.P. over the dropped quarters. At trial, defendant testified that he lied when he gave his recorded statement because he was scared. \JLAW

In his only assignment to this court, defendant argues the evidence was insufficient to support his conviction for cruelty to a juvenile. Specifically, defendant contends that the evidence did not prove he intended to mistreat C.P., or cause him unjustifiable pain and/or suffering. He also asserts his conduct was justified as being reasonable discipline of a minor by a parent. Defendant admits he is not C.P.’s biological father, but maintains he acts as a father figure to C.P.

The standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential eléments of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Defendant was convicted of cruelty to a juvenile, which is defined in LSA-R.S. 14:93 as “the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.” The term “intentional” refers to general criminal intent to mistreat or neglect and does not require an intent to cause the child unjustifiable pain and suffering. State v. Schultz, 01-995 (La.App. 5 Cir. 4/10/02), 817 So.2d 202, 208, unit denied, 02-1320 (La.11/27/02), 831 So.2d 270. General criminal intent is “present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” LSA-R.S. 14:10(2); Id.

An alternative to proving defendant had general criminal intent to mistreat or neglect the child thereby causing the child unjustifiable pain and suffering is to prove that defendant was criminally negligent in his mistreatment or neglect of the |Rchild. Criminal negligence “exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” LSA-R.S. 14:12; State v. Jackson, 98-1254 (La.App. 5 Cir. 3/30/99), 733 So.2d 657, 661. Criminal negligence is essentially a negative. Rather than requiring the accused intended the consequences of his actions, criminal negligence is found from the accused’s gross disregard for the consequences of his actions. Id.

Thus, to carry its burden of proof the State must show that defendant either intentionally mistreated or neglected C.P. or was criminally negligent in his mistreatment or neglect of C.P. Mistreatment is equated with “abuse” and has a commonly understood meaning. State v. Comeaux, 319 So.2d 897, 899 (La.1975).

It is undisputed that defendant hit C.P. in the left arm. Defendant testified that he was 5'4" and weighed 145-150 pounds. The photographs taken two days after the incident show a large dark bruise on C.P.’s upper left arm. The bruise resembles a paw print with a circular bottom and four small circles, one for each knuckle of a closed fist, in a horizontal line above the larger circle.

Defendant argues he did not have any intent to mistreat C.P. He claims he was not angry when he hit C.P., that he was in control and that he only hit C.P. twice. He maintains the blows were not severe as C.P. did not cry and was not thrown into the door by the impact of the punches. Defendant asserts his conduct was justified as reasonable discipline.

Justification can be claimed when the conduct is “reasonable discipline of minors by their parents, tutors or teachers.” LSA-R.S. 14:18(4); State v. Comeaux, 319 So.2d at 899. However, defendant can not avail himself of this statute. There is no evidence that defendant was the father, tutor or teacher of C.P. Rather, the record only establishes that defendant was C.P.’s mother’s live-in boyfriend.

| fiThus, the issue is whether defendant had the intent to mistreat C.P. or was criminally negligent in his mistreatment of C.P. Defendant, age 47, intentionally punched C.P., age eight, with a closed fist twice simply because C.P. dropped some quarters. The force of the blow left a severe bruise on C.P.’s arm in the shape of a fist. The trial judge specifically found that, “prints upon this child’s arm appear to be that of a fist.” The mere fact C.P. testified that he did not cry when defendant struck him or the fact he was not thrown off balance from the force of the blows is not determinative of whether C.P. suffered unjustifiable pain and suffering. A bruise of the severity and magnitude exhibited by the photographs clearly demonstrates that unjustifiable pain and suffering were inflicted upon C.P.

Viewing the evidence in a light most favorable to the prosecution, the record clearly supports a finding that defendant either intentionally mistreated or was criminally negligent in his mistreatment of C.P. when defendant chose to administer two punches to an eight-year-old boy with such force that it left a fist-shaped bruise. Thus, we find no merit in defendant’s argument.

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

AFFIRMED.

      . The victim's initials are used under the authority of LSA-R.S. 46:1844 which allows the courts to identify a crime victim who is a minor by using his or her initials to protect the victim's identity.


text:
    David CARROLL, v. PROGRESSIVE INSURANCE COMPANY, Mid-South CATV, Inc. and Linda Faye Carroll.
    No. 03-CA-601.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      James L. Maughan, Maughan, Maughan and Lormand, Baton Rouge, LA, for Plaintiff-Appellant.
    William H. Eckert, Rhonda J. Thomas, Ungarino and Eckert, LLC, Metairie, LA, for Defendanh-Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   1 .EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by David Carroll, plaintiff, from a summary judgment in favor of Travelers Property Casualty Insurance Co., in this personal injury action. Because we agree with the trial judge that the Travelers insurance policy at issue here did not provide coverage for the underlying accident, we affirm that judgment.

The facts are these. Plaintiff was an employee of Mid-South CATV, Inc., a company engaged in the cable television installation business. On the day in question he was given permission by a superior at Mid-South to use a company truck to bring his brother (also an employee of the company) home. While doing this the truck got stuck in a ditch. A non-company truck was then brought to the scene to extricate the first truck. To accomplish this, a tow rope was used between the trucks. Plaintiffs brother drove the non-company towing truck, his mother drove the Mid-South truck, and plaintiff supervised the operation on the ground. The operation was successful, but while plaintiff was untying the tow rope from the Mid-South truck he was inadvertently run over by his mother and seriously injured.

|3At the time of the above accident Mid-South had a contract for television cable installation with TimeWarner Entertain-menh-Advance/Newhouse Partnership d/b/a TimeWarner Cable (hereinafter Ti-meWarner). TimeWarner was insured by Travelers.

When the insurance coverages of plaintiffs mother and Mid-South proved inadequate, he sued Both TimeWarner and Travelers. TimeWarner was dismissed on summary judgment and no appeal was taken from that judgment. The matter proceeded against Travelers with plaintiff asserting that the insurance policy in question provided uninsured/underinsured coverage for the accident. Travelers eventually urged its own motion for summary judgment on grounds that its policy did not cover this accident.

Plaintiff opposed this motion citing two clauses in the policy under which coverage did he. The first was that coverage was provided to ah subsidiary companies over which TimeWarner had active managerial control. The second was that employees of loan-out companies were deemed to be insureds. The trial judge rejected both of these arguments and granted summary judgment in Travelers’ favor. Plaintiff now appeals urging the same two grounds for relief as urged in the district court.

The procedures for summary judgments are set forth in La.Code Civ. Pro., Arts. 966-969. Such judgments shall be rendered where the papers on file show that there is no issue as to a material fact and the moving party is entitled to judgment as a matter of law. Further, where the moving party puts forth affidavits as to factual matters, the opposing party my not rest on the mere allegations or denials of his pleadings, but must come forth with affidavits, depositions or admissions which set forth specific facts which are in dispute.

In regard to the issue of the active managerial control clause, Travelers introduced its contract with Mid-South, invoices for payment submitted by Mid-_jSouth4 for various projects, and affidavits of two TimeWarner management people familiar with the Mid-South contract. Nothing in the contract or invoices demonstrates that Mid-South was anything other than an independent contractor which had total control over the work. The affidavits both show that TimeWarner did not exercise any control over Mid-South or its employees. On this showing it was incumbent upon plaintiff to come forward with affidavits, depositions or other papers showing a disputed material fact. This he simply failed to do. The trial judge, therefore, properly found that Mid-South was not an insured under the Travelers’ policy pursuant to the active managerial control clause.

Plaintiffs second argument concerns the meaning of the term loan-out company. While the contract provides coverage to such companies under contract for services with TimeWarner, the question here is whether Mid-South was such an entity. While the term loan-out company is not one common to Louisiana law, it does have a definite meaning in other jurisdictions, and these entities are especially used by individual performers in the entertainment industry. In Home Box Office, Inc. v. Directors Guild of America, Inc., 531 F.Supp. 578 (S.D.N.Y.1982) the court noted that such companies typically have as their sole asset the services of the owner of the company, which the company then contracts out to other parties. It further noted that these companies provide certain tax advantages to the owners which would not otherwise be available to them if they contracted out their services as individuals. Mid-South is clearly not such a business entity, and the trial judge was thus also correct in concluding that no coverage existed under this clause of the policy either.

For the above reasons, the summary judgment in favor of Travelers Property Casualty Insurance Co. dismissing it from the suit is hereby affirmed.

AFFIRMED.


author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    Leroy LEWIS v. Kenton HILL and National Remodeling Center, LLC.
    No. 03-CA-623.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Malinda Hills-Holmes, Kenner, LA, for Leroy Lewis, Plaintiff-Appellant.
    John W. Robinson, Gretna, LA, for Kenton Hill and National Remodeling Center L.L.C., Defendants-Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

On September 24, 1999, the plaintiff, Leroy Lewis, filed a “Petition for Damages for Breach of Contract” against the defendants, Kenton Hill and National Remodeling Center, L.L.C. (“NRC”). Mr. Lewis filed an Amended Petition for Damages on January 11, 2000. Kenton Hill filed an exception of no right or cause of action, and NRC filed exceptions of lack of subject matter jurisdiction and/or prematurity. A hearing on the exceptions was held on January 31, 2000. The trial court granted Mr. Hill’s exception of no cause of action and NRC’s exception of prematurity, and the plaintiffs lawsuit was dismissed. The plaintiff appealed the trial court’s ruling on each exception and, on March 14, 2001, this Court affirmed the judgment of the trial court. Lewis v. Hill, 00-1608 (La.App. 5 Cir. 3/14/01), 793 So.2d 573 (unpublished opinion).

On September 13, 2001, the plaintiff filed a second “Petition for Damages for Breach of Contract.” The defendants filed exceptions of res judicata, prematurity, insufficient citation and service of process, and no right and/or cause of action. A hearing on these exceptions was held on February 6, 2002, and the | atrial court granted the exception of res judicata and dismissed the plaintiffs lawsuit against both defendants. It is from this judgment that the plaintiff, Leroy Lewis, appeals.

DISCUSSION

On appeal, the plaintiff contends that the trial court erred in sustaining the defendants’ exception of res judicata based on the plaintiffs former lawsuit being dismissed on an exception of prematurity. The defendants filed an answer to the appeal asserting that the plaintiffs appeal is frivolous and seeking damages, attorney fees, and costs.

In this suit and the prior suit, the plaintiff asserts that he entered into a contract with the defendants on April 5, 1999, under which the defendants agreed to renovate the plaintiffs home for a total cost of $23,000.00. Mr. Lewis mortgaged his property through First Personal Mortgage and Lending, which is owned and/or managed by Kenton Hill. The plaintiff alleges that he paid $16,500.00 to the defendants and vacated his home in order for the renovations to take place, but the defendants did not perform the renovation work. Mr. Lewis seeks reimbursement of the $16,500.00 that he paid to the defendants, rental and storage fees, attorney fees, and costs.

The contract between the plaintiff and the defendants provides in pertinent part:

In the event of a dispute, in reference to the quality of work, material, or work-smanship, both parties agree to binding arbitration through the Better Business Bureau.

The trial court dismissed the plaintiffs first lawsuit against NRC on an exception of prematurity, because the parties did not pursue arbitration in accordance with the contract. On appeal, this Court agreed and found that the dispute between the parties was subject to the arbitration agreement set forth in the contract. In the exceptions in present case and on appeal, the defendants assert that |4the doctrine of res judicata applies in this case, because the claims in the present lawsuit are identical to the claims that were dismissed in the plaintiffs previous lawsuit against these defendants. We agree.

The purpose of the doctrine of res judicata is to promote judicial efficiency and to protect the defendant from multiple lawsuits. Arwood v. J.P. & Sons, Inc. et al., 99-1146 (La.App. 5 Cir. 2/29/00), 759 So.2d 848, 850. LSA-R.S. 13:4231 sets forth Louisiana’s law on res judicata, and it provides as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Pursuant to LSA-R.S. 13:4231, a second action is barred when it arises out of the transaction or occurrence that was the basis of the prior suit. Roland v. Owens, 00-1846 (La.App. 5 Cir. 4/24/01), 786 So.2d 167, 169, writ denied, 01-1500 (La.8/31/01), 795 So.2d 1213. Once a court decides an issue of fact or law that is necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Id. at 169-170; Hudson v. City of Bossier, 33,620 (La.App. 2 Cir. 8/25/00), 766 So.2d 738, 743, writ denied, 00-2687 (La.11/27/00), 775 So.2d 450.

Lin both of the plaintiffs lawsuits against the defendants, he has sought damages for breach of the April 5, 1999 contract between the parties. There is no dispute that both suits arose out of the same transaction, and that the parties in both suits are identical. The thing demanded is the same, the parties are the same, and the cause of action is the same. However, the plaintiff argues that his claims are not precluded in this ease, because NCR was dismissed from the original suit pursuant to an exception of prematurity, which only retards the progress of an action but does not defeat it. He asserts that a party may bring the action again in due time when it is no longer premature. Mr. Lewis contends that this lawsuit is no longer premature because the “defendants” have failed to seek arbitration of this dispute, even after the court upheld their right to do so.

Prematurity raises the issue of whether a cause of action has not yet come into existence because some prerequisite condition is unfulfilled. Bridges v. Smith, 01-2166 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, 310, writ denied, 02-2951, (La.2/14/03), 836 So.2d 121. However, the procedural posture of this case is the same as it was when the original suit was dismissed on the grounds of prematurity, and the “prerequisite condition,” namely arbitration, has not been fulfilled. The plaintiff filed suit against the defendants a second time without first going to arbitration as required by the contract.

At the hearing on the exceptions in the present case, the trial court asked counsel for the plaintiff if the plaintiff had initiated arbitration proceedings prior to filing the present lawsuit. Counsel for the plaintiff replied, “we pursued other avenues to try to get this thing done.” She further stated, “[the defendant] should be the one to go get the arbitrator ...” However, it is Mr. Lewis who filed suit against the defendants and, pursuant to the contract, he was required to resolve a dispute arising from the contract through arbitration, not through filing suit in court. If, as Mr. Lewis argues, the defendants have refused to submit to arbitration, |fiLSA-R.S. 9:4203 provides that “the party aggrieved” by the failure or refusal of another to perform under a written arbitration agreement may petition the court for an order directing that arbitration proceed as provided for in the agreement. The plaintiff has not sought an order from the trial court ordering arbitration. Rather, the plaintiff filed a duplicitous lawsuit, without first attempting to arbitrate the matter.

Considering the matter before us, we find that the trial court was correct in granting the defendants’ exception of res judicata and dismissing the plaintiffs suit at his costs, because the issues set forth in the plaintiffs petition have already been dismissed in the previous lawsuit on the grounds of prematurity due to the plaintiffs failure to arbitrate the matter in accordance with the contract. The circumstances at the time of this suit are no different than at the time of the original suit because the plaintiff has not gone to arbitration or sought an order from the trial court compelling arbitration. Although we find that this matter should be dismissed on the grounds of res judicata based on the plaintiffs failure to pursue arbitration, this ruling does not address or affect the merits of the plaintiffs case.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court, sustaining the defendants’ exception of res judicata and dismissing the plaintiffs lawsuit against the defendants, Kenton Hill and National Remodeling Center, L.L.C. In accordance with the defendants’ request and pursuant to LSA-C.C.P. art. 2164, we order all costs of this appeal to be paid by the plaintiff/appellant, and we award $1,500.00 in attorney fees to the defendants.

AFFIRMED.

      . The record in this case does not contain the first Petition for Damages, which was filed in the original lawsuit on September 24, 1999. Ordinarily, in order to determine whether res judicata bars an issue, the court should examine both the pleadings and the entire record in the first suit. See Ken Lawler Builders, Inc. v. Delaney, 36,865 (La.App. 2 Cir. 3/5/03), 840 So.2d 672, 674-675. However, the parties do not dispute that the allegations in the petitions are the same. Rather, the plaintiff argues that he filed suit a second time because the "defendants” did not go to arbitration. Therefore, we find that the record contains sufficient information to determine the issues in this appeal.

      . The plaintiff did not assign as error the trial court's granting the exception of res judicata based on the dismissal of Kenton Hill in the first lawsuit on the grounds of no cause of action. However, in his appeal brief, Mr. Lewis contends that he has a cause of action against Kenton Hill. In the first lawsuit, the trial court found that the plaintiff did not state a cause of action against Mr. Hill personally. The trial court's determination of this issue has already been upheld by this Court on appeal. Accordingly, the plaintiff's claims against Kenton Hill are barred by res judicata as well.


author: | JAMES L. CANNELLA, Judge.

text:
    Gretchell C. VINET a/k/a Greta Vinet and Gustavo Vinet v. ESTATE OF Mariano CALIX and Ruth Calix and Allstate Insurance Company.
    No. 03-CA-572.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Christopher E. Lawler, Christopher P. Lawler, Donovan & Lawler, Metairie, LA, for Appellant.
    Raymond S. Steib, Jr., Gretna, LA, for Appellees.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   | JAMES L. CANNELLA, Judge.

The Defendant, Allstate Insurance Company (Allstate), appeals from the trial court judgment rendered in favor of the Plaintiff, Gretchell C. Vinet (Vinet), which finds Allstate liable for damages in the amount of $44,056. For the reasons which follow, we affirm.

Vinet filed suit to recover damages for her injuries which resulted when, on August 23, 1996, she fell from the steps leading into the attic of the home in which she was residing. Vinet’s parents, Mariano and Ruth Calix (the Calixes), owned the house at 1982 Gaise Street since 1989 or 1990. The house was insured through Allstate. Vinet and her family moved into the house in 1994 and the Calixes moved out. The Calixes maintained insurance on the property entitled “Rental Premises Coverage for 1982 Gaise Street.” In order to receive a tax exemption on the property, Vinet entered into a Bond for Deed contract with her parents. The Bond for Deed contract contained provisions requiring Vinet to maintain the property and insurance on the property. Nevertheless, the testimony and exhibits indicate that Mr. Calix did the maintenance and repair work and maintained insurance coverage on the property through Allstate.

On August 23, 1996, Vinet contends that she was cleaning her garage and decided to move some Christmas decorations into the attic. While ascending the [3pull-down attic stairs, the second step from the top broke, causing her to fall to the floor, injuring her neck and back. She also contends that, although she had a ventral hernia prior to the accident, thereafter, the pain increased and necessitated surgery.

Allstate was notified of the accident and sent to the scene an adjuster, who took pictures. Thereafter, Allstate denied the claim. Ultimately, Vinet filed suit against the Calixes and Allstate, alleging that the Calixes were responsible for repairs and maintenance of the property and that Mr. Calix knew about the defects in the attic stairs.

Allstate denied liability for the accident, contending that the Bond for Deed expressly placed responsibility for repairs, maintenance and obtaining insurance with Vinet. Thus, Allstate argued that, since the Calixes were not responsible for repairs and maintenance of the premises, they were not liable for the defect that allegedly caused the accident. In the alternative, Allstate argued that Vinet was equally at fault for the cause of the accident because she also knew of the defective condition of the property and ignored it to her peril. Allstate filed a motion for summary judgment based on coverage.

Vinet responded to the motion for summary judgment by producing two affidavits from the Calixes. Mr. Calix stated that he had been at the house about a year earlier during a storm, when he went into the attic and noticed and remarked on the shakiness of the attic stairs. He stated further that he had meant to go back and repair the stairs but he did not have the opportunity. He stated that he was certain that had he gone back to repair the stairs, he would have noticed that some of the stairs were missing the support bars underneath and he would have repaired them. In Mrs. Calix’s affidavit, she stated that it was neither party’s intent to shift [4the responsibility for repair maintenance and insurance from the Calixes to Vinet and that they had no knowledge of a provision in the contract that did so. She further stated that the Calix’s retained the responsibility for repairs, maintenance and insurance after the Bond for Deed contract was executed. The trial court denied the motion for summary judgment.

Thereafter, on October 21, 2002 the case went to trial before the judge. Following trial on the merits, the trial judge rendered judgment with reasons in open court on November 6, 2002 and signed on November 7, 2002, a ruling in favor of Vinet in the amount of $44,056, finding that Vi-net and the Calixes had amended the Bond for Deed by their mutual consent and that the Calixes retained responsibility for maintenance and repair and for maintaining insurance on the premises. Allstate provided insurance coverage for “rental” property. The trial court also found that Mr. Calix had knowledge of the defective attic stairs and failed to repair them, making him liable for the injuries sustained by Vinet when she fell, due to their defective condition. As to her damages, the trial court expressly concluded that Vinet was credible and found that her hernia condition, although existing at the time of the fall, was worsened by the fall and the prescribed physical therapy, necessitating surgery on the hernia. Thus, the trial court awarded damages for the neck and back injuries directly resulting from the fall and for the hernia surgery which was made necessary by the fall. The judgment and the reasons were silent as to any finding of Vinet’s comparative fault, thus it is presumed that the trial court found none. It is from this judgment that Allstate appeals and assigns four errors.

In its first assignment of error, Allstate argues that the trial court erred in finding the Calixes, and thereby Allstate, liable for the accident. More particularly, | ¡^Allstate argues that the language of the Bond for Deed, designating responsibility for maintenance, repairs and insurance to Vinet, precludes their liability. We disagree.

While the original language of the Bond for Deed did in fact place responsibility for maintenance, repairs and insurance in Vinet, what Allstate overlooks is the well settled legal principle that a contract may be modified by the mutual consent of the parties. As found by the trial court, and supported by the record, the Calixes and Vinet never intended that Vi-net should be responsible for the maintenance and repair of the property and, in fact, Mr. Calix continued to make any necessary repairs to the property and took care of the maintenance of the property after the Bond for Deed was signed. It is also clear that the Calixes continued to maintain the insurance on the property and that Allstate was well aware of the rental nature of the property. The evidence indicated that a year prior to the accident, Mr. Calix made a claim on Allstate for storm damage to the roof and had it repaired. Additionally, the insurance agreement indicated that the property being insured at 1982 Gaise Street was being rented.

While Allstate takes issue with the credibility of the affidavits by the Calixes and the testimony of Vinet supporting the finding that the Calixes continued to be responsible for the maintenance and repair of the property, the trial court made an express credibility finding on this point and found all three to be credible. It is well settled that the fact-finder’s reasonable evaluations of the credibility of witnesses will not be disturbed on appeal absent a finding that they are manifestly erroneous. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). We make no such finding in this case. The trial court’s credibility determinations are supported by the record. Moreover, Allstate’s suggestion that the affidavits lack credibility has already been rejected by this Court in its action on the motion in limine, finding that the affidavits were admissible. Vinet v. Estate of Calix, supra.

| ^Therefore, we find no error in the trial court finding that the Calixes and Vinet reformed the Bond for Deed by their mutual consent and that the Calixes retained responsibility for maintenance and repair as well as maintaining insurance on the property.

Next, Allstate argues that the trial court erred in not finding that Vinet bears some comparative fault for her injury. Allstate points out that the incident referred to as evidence of Mr. Calix’s knowledge of the defective condition of the attic stairs should also support a finding of comparative fault on the part of Vinet because Vinet was present at that time and held the shaky stairs for her father.

We find that the record clearly indicates that Vinet knew, as did her father, that the attic stairs were shaky. Had Vinet fallen from the stairs because they wobbled under her and she lost her balance, we would agree with Allstate’s argument. However, that is not what caused Vinet’s fall. In fact, it was not the shaky nature of the stairs that caused her fall, but rather the complete failure, dislodging or breaking of the second stair from the top. There is no evidence in the record that Vinet knew or had any reason to know that the steps themselves were not properly supported or attached and that there was a danger of one stair coming apart.

Allocation of fault, for purposes of comparative negligence, is a factual determination subject to the manifest error rule. Moreau v. North American Fire and Casualty Insurance Co., 01-0976 (La. App. 5th Cir.12/26/01), 806 So.2d 809. Based on our review of the record in this case, we find no error in the trial court determination that Vinet was not partially at fault in causing the accident.

Allstate argues that the trial court erred in finding that Vinet’s hernia surgery was necessitated by her fall from the attic step. The defense argues that Vinet was |7diagnosed with the hernia in 1995 and fell in August of 1996. Vinet made no complaints of abdominal pain from the time she fell from the attic stairs until she fell from a trampoline in January of 1997, about six months later. She had the hernia surgery shortly thereafter. Thus, Allstate argues that Vinet did not meet her burden of proving that the fall from the attic stairs necessitated the hernia surgery.

Vinet argues that, when the evidence shows that a person was in good health prior to an accident and is symptomatic after the accident, causation is presumed. It is thereafter Allstate’s burden to show that some other incident caused the injury. Allstate offered no evidence that the surgery would have been necessary absent the aggravation by the fall and physical therapy or that the hernia surgery was necessary due to an intervening cause. Moreover, argues Vinet, the issue is factual and should not be overturned absent a finding that the fact-finder was clearly wrong.

It is well settled that a defendant takes his victim as he finds her and is responsible for the probable consequences of his tortious act. Matta v. Snow, 01-0760 (La.App. 5th Cir.1/15/02), 807 So.2d 934. When the tort victim is in good health before the accident, then there is a presumption that the injuries resulted from the accident, provided that the medical evidence establishes a reasonable possibility of causation. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615 (La.2/20/95), 650 So.2d 757; Oubre v. Union Carbide Corp., 99-0063 (La.App. 5th Cir.12/15/99), 747 So.2d 212; Shamsnia v. United Services Auto. Ass’n., 97-399 (La.App. 5th Cir.10/28/97), 701 So.2d 1051; writ denied, 97-2964 (La.2/6/98), 709 So.2d 739. The defendant is then required to go forward with evidence to show some other incident which could have caused the injury. Maranto, supra; Oubre, supra.

In this case, Vinet testified that although she had been diagnosed with the hernia, it was not causing pain requiring surgery until after the fall. She testified 1 sthat sometime thereafter, the pain increased until it was intolerable, necessitating the surgery. The trial court found her testimony credible and made the factual determination that the fall plus the physical therapy that she was required to undergo because of the fall exacerbated the hernia problem which lead to the need for the surgery. Allstate did not come forward with any evidence to show that the hernia surgery would have been necessary absent the fall or that the surgery was necessitated by an intervening cause. Therefore, we find no error in the trial court ruling that the fall caused the exacerbation of the hernia problem.

Finally, Allstate argues that the trial court erred in not finding that Vinet had been impeached and instead finding her testimony to be credible. As stated above, credibility determinations are best made by the trial judge and are not to be overturned by the appellate court absent a finding of manifest error. It is not for the appellate court to make its own factual determinations, but rather, to determine whether those made by the trial court were reasonable. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). While we do find some discrepancies in Vinet’s testimony, as pointed out by Allstate, we do not find it of sufficient magnitude to conclude that the trial court was manifestly erroneous in believing her testimony. Rather, we find that there was other evidence in the record that lent support to her testimony and bolstered her credibility. Therefore, we find no error in the trial court credibility determinations.

Accordingly, based on the foregoing reasons, we affirm the trial court judgment in favor of Vinet and against Allstate in the amount of $44,056. Costs of appeal are assessed against Allstate.

AFFIRMED.

      . Allstate filed a motion in limine to exclude file two affidavits. The trial court granted the motion. However, on Vinet's writ application to this Court, we granted the writ and reversed the trial court, ruling that the affidavits were admissible. Vinet v. Estate of Calix, 01-C-1061 (La.App. 5th Cir.10/16/01).

      . Where a judgment is silent on an issue raised at trial, it is presumed that the trial court rejected it. Mooers v. Sosa, 01-286 (La.App. 5th Cir.9/25/01), 798 So.2d 200.

      . In Mr. Calix's affidavit, he stated that he knew that the stairs were shaky and that if he had gone back to repair them he would have noticed that some of the steps were missing the support bars underneath them and would have fixed them.