author: L STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Danny Ray JEFFERSON, Appellant.
    No. 36,562-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Rehearing Denied Feb. 27, 2003.

      Louisiana Appellate Project by: Paul Corley Marx, Carey J. Ellis, III, for Appellant.
    Danny Ray Jefferson, Pro se.
    Richard Ieyoub, Attorney General, William R. Coenen, District Attorney, Penny Wise Douciere, Kenneth Douglas Wheeler, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and PEATROSS, JJ.
   L STEWART, J.

In this matter, the defendant, Danny Ray Jefferson, pled guilty to simple robbery and attempted possession of a firearm by a convicted felon, with concurrent sentences of seven years and seven and one-half years on the respective counts. The defendant filed a pro se brief in which he asserts the illegality of his sentence based on the trial judge’s failure to recuse himself and disputes the sufficiency of the evidence underlying his conviction. The appointed appellate counsel seeks to withdraw representation based on a lack of appealable issues in this matter. We affirm the defendant’s conviction and sentence and grant the motion to withdraw.

FACTS

On May 9, 2001, the defendant, while armed with a shotgun, took his mother’s car keys and drove the car from her home. The police found the defendant a few miles away. The shotgun was inside the car. On June 1, 2001, the defendant was charged with armed robbery, to which he pled not guilty. The state later amended the bill of information to add a charge of possession of a firearm by a convicted felon based on the defendant’s prior conviction in 1993 of attempted possession of cocaine. The defendant pled not guilty to this charge as well.

The defendant filed several pro se motions, including a motion to recuse the trial judge filed on January 8, 2002. As a basis for the recusal, the defendant alleged a conflict of interest based on a “business and personal relationship” between the trial judge and the district attorney. The | ^defendant's motion referred to a pending legal matter in federal court against the Richland Parish district attorney and sheriffs department.

On January 14, 2002, the defendant, who was represented by counsel, entered into a written plea agreement with the state. The defendant agreed to plead guilty to reduced charges of simple robbery and attempted possession of a firearm by a convicted felon. The defendant and the state also agreed to a seven year hard labor sentence on the simple robbery charge and a seven and one-half year sentence on the attempted possession of a firearm by a convicted felon charge, with the sentences to run concurrent. During the guilty plea proceedings, the defendant further agreed to dismiss his motion to recuse the trial judge. The record reflects that prior to accepting the plea agreement, the trial judge fully advised the defendant of his constitutional rights and determined that the defendant understood he was waiving these rights by pleading guilty.

On April 10, 2002, the trial court sentenced the defendant pursuant to the terms of the written plea agreement. Thereafter, the defendant again filed a motion to recuse. Two trial judges subsequently recused themselves from further proceedings involving the defendant. The defendant also filed post-sentencing motions to dismiss the charges and correct the illegal sentence based on the argument that the trial judge erred in failing to recuse himself at the time of the motion to recuse filed in January 2001, prior to the plea agreement. These were denied by the trial court.

On appeal, the defendant’s appointed counsel filed a brief and motion pursuant to State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, in which |3he asserted that he could find no appealable issues. Counsel moved to be allowed to withdraw as the defendant’s counsel of record.

On July 31, 2002, this court issued an order holding the motion in abeyance and granting the defendant thirty days in which to file any briefs. The defendant timely filed a brief, but he failed to provide any assignments of error. Instead, the defendant reasserted his arguments that the plea agreement and sentence are illegal due to the failure of the trial judge to recuse himself and that the evidence of the robbery was insufficient to support' his conviction.

DISCUSSION

The record shows the bills of information to be in proper form. The defendant was represented by counsel. In accepting the defendant’s guilty plea, the trial court complied with La.C.Cr.P. art. 556.1. At the guilty plea proceeding, the trial judge advised the defendant of the right to trial by jury, the right to confront and cross-examine witnesses against him, the presumption of innocence, the right to remain silent, and the right to court-appointed counsel. The defendant knowingly and voluntarily pled guilty to the significantly reduced charges of simple robbery and attempted possession of a firearm by a convicted felon. The defendant and the state agreed to concurrent sentences of seven years and seven and one-half years respectively. These sentences were within the statutory limits of La. R.S. 14:65, and one-half the statutory limit of La. R.S. 14:95.1, as required by the attempt statute, La. R.S. 14:27.

|4With regard to the defendant’s motion to recuse filed prior to the plea agreement, the record clearly reflects that the defendant dismissed the recusal motion prior to entering his guilty plea. The record also reflects that the trial judge questioned the defendant about his understanding that he was dismissing the recusal motion along with entering the guilty plea. Again, the defendant knowingly agreed to dismiss the motion to recuse. We find no merit to the claim that the sentence was illegal due to the failure of the trial judge to recuse himself.

We also find no merit to the defendant’s claim that the state’s evidence does not support his conviction and that his actions were not robbery. A validly entered plea, or a plea of nolo contendere, waives any right a defendant might have had to question the merits of the state’s case and the factual basis underlying the conviction. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Harden, 506 So.2d 1265 (La.App. 2d Cir.1987), writ denied, 512 So.2d 438 (La.1987). Because the defendant entered an Alford plea of guilty to the charge of simple robbery, he cannot now challenge the merits of the state’s case or the factual basis underlying his conviction.

An examination of the sentencing transcript shows that the trial judge carefully reviewed every factor listed in La. C.Cr.P. art. 894.1. Moreover, because the defendant agreed to a specific sentence as a consequence of his plea bargain, the sentence cannot be appealed as excessive. La.C.Cr.P. art. 881.2(A)(2); State v. Henton, 35,363 (La.App.2d Cir.12/19/01), 803 So.2d 405.

| fiOur review of this record discloses no error patent. The defendant was advised of his rights to appeal and to seek post-conviction relief.

In conclusion, the guilty plea was properly obtained. The sentence imposed is lawful and within the terms of the written plea agreement. The defendant voluntarily dismissed his motion to recuse the trial judge before entering the guilty plea. There is no showing of any abuse of the trial court’s broad discretion.

DECREE

We hereby affirm the defendant’s conviction and sentence. We grant appellate counsel’s motion to withdraw.

AFFIRMED.

MOTION TO WITHDRAW GRANTED.

APPLICATION FOR REHEARING

Before BROWN, C.J., STEWART, GASKINS, PEATROSS, and MOORE, JJ.

Rehearing denied.


source: Caselaw Access Project

author: hPEATROSS, J.

license: Public Domain

text:
    Alice Seymour HENDERSON, Plaintiff-Appellant, v. GEICO GENERAL INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 36,696-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Bruscato, Tramontana & Wolleson by Anthony J. Bruscato, Monroe, for Appellant.
    Voorhies & Labbé by Cyd Sheree Page, Monroe, for Appellees.
    Before STEWART, GASKINS and PEATROSS, JJ.
   hPEATROSS, J.

Plaintiff, Alice Henderson, appeals from a judgment denying her recovery of damages she sustained in an automobile accident. For the reasons stated herein, we reverse and render judgment in favor of Ms. Henderson.

FACTS

This case involves La. R.S. 32:866, also known as the “no pay, no play” statute. The issue before us is whether the trial court erred in finding that Ms. Henderson had no automobile Lability insurance at the time of her accident. On January 2, 2001, a truck driven by Harry Statham struck the vehicle Ms. Henderson was driving; the crash injured Ms. Henderson and damaged her vehicle. Ms. Henderson sued Mr. Statham and his insurer, GEICO General Insurance Company (“GEICO”). At trial, Defendants stipulated liability; therefore, the only issues for the trial court were Ms. Henderson’s coverage and damages.

At the time of the accident, Ms. Henderson was married, but she had physically separated from her husband in February 2000. She remained in the matrimonial home on Oregon Trail in Monroe while her husband lived elsewhere. Ms. Henderson was driving a 1995 Honda Accord at the time of the accident. She testified that the car was titled in her husband’s name, but the registration, included as an exhibit in the record, indicated that both she and her husband were listed as owners. The car was financed through Bank One. While the Hendersons lived together, Ms. Henderson took care of the family’s business, including securing automobile insurance for the vehicles. In January 1999, Ms. Henderson placed comprehensive insurance on the | ¡.vehicle through Advanced Insurance Planning (“AIP”), a Monroe insurance broker. The policy was with Continental Insurance Company (“CNA”) and named both of the Hendersons and their son as drivers; the address on the policy was the Oregon Trail matrimonial address. The policy renewed in 2000 and was scheduled to expire on January 29, 2001.

Initially, the premium payments were drafted from the couple’s joint checking account. On May 18, 2000, however, Mr. Henderson terminated the automatic drafting of the insurance premiums from the bank account, and the insurer began directly billing the Hendersons. According to AIP, no further payments were made on the policy.

On June 30, 2000, AIP received a notice from CNA dated June 19, 2000, stating that the Hendersons’ insurance was to be cancelled on July 6, 2000, due to nonpayment of premiums. This notice, filed into evidence, was in the nature of a courtesy copy to AIP and contains a notation that the notice was also sent to Michael Henderson and Bank One. Ms. Henderson denied that she received a copy of this notice. Shannon Brown, an AIP representative, testified that, typically, the insurer would send a copy to the insured and copies to the broker and the lienholder. On July 25, 2000, after the policy had purportedly been cancelled, AIP received another document from CNA seeking payment from the Hendersons for an additional $104.25 owed on their policy. The bill states that it is a “closing bill” and that the Hendersons’ insurance with CNA was terminated on July 6, 2000. By its language, it appears that the bill was intended for the Hendersons, but there is nothing in the record which indicates it was factually mailed to either Mr. or Ms. Henderson. Ms. Henderson testified that she did not receive the bill.

On June 23, 2000, Ms. Henderson purchased a comprehensive insurance policy on the Honda from U.S. Agencies. Ms. Henderson testified that she secured this insurance when she was unable to learn from AIP whether the Honda still had insurance through CNA, and she and her husband were not communicating. Ms. Brown testified that she sent a letter addressed to Mr. Henderson at the Oregon Trail address in August 2000 informing him that CNA had cancelled the policy effective July 6, 2000; a copy of that letter is included in the record as an exhibit. Mr. Henderson denied receiving this letter.

Subsequently, CNA sent another notice, dated November 28, 2000, to the Hendersons and to AIP. Ms. Henderson testified that she received this notice, which provides, in part:

NOTICE OF NONRENEWAL OF INSURANCE

Named Insured & Mailing Address Producer: ...

MICHAEL W. HENDERSON 604 OREGON TRAIL MONROE LA 71202 ADVANCED INS PLANNING, INC. PO BOX 2334 MONROE LA 72017

Policy No.: Type of Policy: Date of Expiration: US198827222 AUTO LIABILITY AND PHYSICAL DAMAGE 01/29/2001; 12:01 A.M. Local time at the mailing address of the named insured.

We will not renew this policy when it expires. Your insurance will cease on the Expiration Date shown above.

The reason for nonrenewal is YOUR AGENT NO LONGER REPRESENTS CNA PERSONAL INSURANCE FOR PERSONAL INSURANCE PRODUCTS.

|4This policy provides auto liability coverage. You should contact your agent, or any licensed agent about your possible eligibility for coverage through the Louisiana Automobile Insurance Plan.

The copy of this notice in evidence is the copy from AIP’s records and is file stamped as received by AIP on December 6, 2000. Obviously, this notice was erroneously generated by CNA as it had already purportedly cancelled the Hendersons’ policy for nonpayment on July 6, 2000. Ms. Brown testified that CNA sent similar notices to other CNA policy holders around the same time. AIP then sent Ms. Henderson a letter on December 7, 2000, restating what the CNA notice said and offering to replace her CNA coverage with other insurance.

Ms. Henderson stopped paying the premium on the U.S. Agencies policy in late 2000 and that policy was terminated for nonpayment. According to her testimony, and over the objection of opposing counsel, Ms. Henderson said that her agent told her “that I have two insurance policies. They said it was against the law to have two insurance policy (sic) on a car. That’s when I quit paying it.” The record contains a November 13, 2000 notice to Ms. Henderson from U.S. Agencies stating that her policy would expire on November 24, 2000, if she did not pay her premium.

The Hendersons’ finance agreement with Bank One required the owners to carry comprehensive insurance. Irven Wright, a Bank One branch manager in Monroe, testified that his records did not contain any notice of cancellation from any insurance carrier. He said that Bank One had numerous addresses where these records were sometimes sent and that | B“there’s always a problem” in getting the right documents to the right location for the right file.

Mr. Henderson testified that he did not notify AIP of his change of address after he moved out of the matrimonial residence. He further testified that he did not receive, nor had he seen, any of the described notices or correspondence prior to his deposition in this case.

After hearing all of this evidence, the court took the case under advisement and subsequently awarded damages to Ms. Henderson in the amount of $8,883.66. The court, however, further ordered that La. R.S. 32:866, the “no pay, no play” statute, applies to the case so that Ms. Henderson would not recover her awarded damages as the amount was less than $10,000 as provided in the statute. This appeal ensued.

DISCUSSION

La. R.S. 32:866 provides, in part:

A. (1) There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.
B. Each person who is involved in an accident in which the other motor vehicle was not covered by compulsory motor vehicle liability security and who is found to be liable for damages to the owner or operator of the other motor vehicle may assert as an affirmative defense the limitation of recovery provisions of Subsection A of this Section.

Because section B of the statute provides that “no pay, no play” is an affirmative defense, the tortfeasor is charged with the burden of proving that | fithe victim is uninsured. It is well-settled that the party asserting an affirmative defense has the burden of proof thereon. Burt v. Burt, 28,840 (La.App.2d Cir.10/30/96), 682 So.2d 866; Winru Chemical & Sales Co. v. Collier, 73 So.2d 9 (La.App. 2d Cir.1954).

The evidence clearly shows that the Hendersons purchased insurance for their Honda Accord and that the term of this insurance encompassed the date of the accident. Ms. Henderson argues on appeal that the tortfeasor and his insurer, GEI-CO, did not prove that this insurance was cancelled, either by an affidavit of noninsu-rance or by CNA records. Defendants contend that the proof offered was sufficient.

In the context of an insurer seeking to prove that a policy has been cancelled, the standard of proof is set out in the insurance statutes.

La. R.S. 22:636.1 provides, in part:

|7B. (1) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons: (a) Nonpayment of premium.
D. (1) No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by certified mail or delivered by the insurer to the named insured at least thirty days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given. In the event of nonpayment of premiums for a binder, a ten day notice of cancellation shall be required before the cancellation shall be effective. Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail. Unless the reason accompanies the notice of cancellation, the notice of cancellation shall state or be accompanied by a statement that upon written request of the named insured, mailed or delivered to the insurer within six months after the effective date of cancellation, the insurer will specify the reason for such cancellation. This Subsection shall not apply to nonrenewal.
F. Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.

It is well settled that an automobile liability insurer has the burden of proving that the policy has been cancelled prior to the date of the accident giving rise to a claim under the policy, and the insurer must show facts which constitute positive and unambiguous proof of understanding of cancellation of the policy. Johnson v. Williams, 35,986 (La.App.2d Cir.9/18/02), 828 So.2d 90, citing Burge v. Allstate Insurance Co., 97-1087 (La.App. 5th Cir.4/15/98), 710 So.2d 1196; Wallen v. Simpson, 518 So.2d 1144 (La.App. 4th Cir. 1987), unit denied, 523 So.2d 214 (La.1988); Is Chapman v. Leger, 405 So.2d 604 (La.App. 3rd Cir.1981); I.C. Realty, Inc. v. Clifton Conduit Co., Division of General Cable Corp., 291 So.2d 422 (La.App. 4th Cir.1974). Courts require strict compliance with the statutory provisions for a valid notice of cancellation of an insurance policy. Johnson v. Williams, supra. We find that the same standard of proof applies in the context of a third party tortfea-sor who asserts that the plaintiff was uninsured at the time of the accident which caused the plaintiffs damages.

At the outset, we note that two of the three items of correspondence in this case, i.e., the July 25, 2000 notice from CNA and the August 16, 2000 letter addressed to Mr. Henderson from Ms. Brown stating that the CNA policy had been cancelled on July 6, 2000, cannot be deemed effective notices of cancellation as they were generated after the purported date of cancellation. See La. R.S. 22:636.1(D) requiring that, to be effective, a notice of cancellation must be mailed ten days prior to the date of cancellation. The focus of our discussion, therefore, will be on the notice of cancellation dated June 19, 2000, and received by AIP on June 30, 2000, the only correspondence that was allegedly provided to the Hendersons prior to the date of the accident.

Proof of mailing notice of cancellation to the named insured at the address shown on the policy shall be sufficient proof of notice. Proof of receipt of that notice is not required. Folds v. Protective Cas. Ins. Co., 26,323 (La.App.2d Cir.12/7/94), 647 So.2d 1215, citing Hemperly v. Aetna Cas. & Sur. Co., 516 So.2d 1202 (La.App. 2d Cir.1987), citing Dufrene v. Dixie Auto Ins. Co., 376 So.2d 507 (La.App. 4th Cir.1979), | ¿writ denied, 378 So.2d 1390 (La.1980); see also Broadway v. All-Star Insurance Corp., 285 So.2d 536 (La.1973); Aultman v. Rinicker, 416 So.2d 641 (La.App. 2d Cir.1982).

In the case sub judice, we find no proof from the records of CNA or any other source that affirmatively shows that CNA mailed notice of cancellation to the Hendersons. The only indications in this record that a timely notice of cancellation might have been mailed to Mr. Henderson are: (1) a notation at the bottom of the June 19, 2000 notice of cancellation from CNA for nonpayment of premiums addressed to AIP and produced from AlP’s records, which indicates that a copy of the notice was also sent to Mr. Henderson, and (2) Ms. Brown’s testimony that, typically, a notice of cancellation for nonpayment, such as the one received by AIP on June 30, 2000, would be sent by the insurer (CNA) to the insured (Mr. Henderson) and the lienholder (Bank One).

In Ledbetter v. Myers, 438 So.2d 700 (La.App. 2d Cir.1983), this court found that the defendant failed to establish a prima facie case of proof of mailing even where the supervisor testified in his affidavit that he “supervised the mailing” of a notice of cancellation. In its brief and oral argument on appeal, the insurer made the critical admission that the supervisor did not actually mail the notice himself and did not know who mailed the notice. Absent personal knowledge of the mailing of the notice on the part of the attesting supervisor, no prima facie case was established. |inLikewise, in Cole v. Lavine, 595 So.2d 398 (La.App. 3d Cir.1992), the court found that computer generated records of mailing alone, without additional evidence that the notice was actually mailed and not returned to the insurer did not constitute a prima facie case of proper mailing.

In the case sub judice, the evidence falls short of the evidence presented in both Ledbetter and Cole. We find this circumstantial evidence to be insufficient to satisfy the burden of proof of proper mailing for purposes of notice of cancellation under La. R.S. 22:636.1. Accordingly, we further find that Defendants failed to meet their burden of proving the affirmative defense that Ms. Henderson was uninsured under La. R.S. 32:866; and, therefore, we hold that coverage existed under the CNA policy at the time of the accident. The portion of the judgment denying Ms. Henderson recovery under the “no pay, no play” statute is reversed and the amount awarded by the trial court to Ms. Henderson is recoverable.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed insofar as it denies Ms. Henderson’s recovery under La. R.S. 32:866. The judgment in the amount of $8,883.66 in favor of Ms. Henderson is recoverable against Defendants, GEICO General Insurance Company, et al. Costs of appeal are taxed against Defendants, GEICO General Insurance Company, et al.

REVERSED AND RENDERED.

      . La. R.S. 32:863.2(C) provides, in part:
      C. The secretary shall keep a record of the information received from security providers concerning coverage of vehicles and persons by security required by R.S. 32:861, which information may be stored through automated electronic data processing means. After the department has complete vehicle liability security records, upon written request including the driver's license number for each person, the vehicle identification number for each vehicle, and the payment of a fee of fifteen dollars for each vehicle owned by a person about which inquiry is made, the secretary shall forward to the inquiring party such vehicle and driver liability security information as is contained in the records of the department. If the department's search of its records fails to show the existence of any liability insurance or other security as of the date about which inquiry is made, an official of the department will issue a sworn, notarized affidavit to that effect. Such an affidavit shall he prima facie evidence that on the date in question, the person or vehicle about which inquiry was made did not have in effect a policy of liability insurance or other security as required by law. (Emphasis added.)
      Although this statute provides a convenient method for tin interested party to determine insurance coverage, neither its language nor the compulsory insurance scheme as a whole limits proof of noninsurance to the certificate of the Department of Insurance.

      . Although Defendants urge that Ms. Henderson stipulated that notices were sent, the admission in the cited portion of the transcript refers to the notices sent to AIP, not to the Hendersons.

      . In comparison, this court and the fifth circuit have held that an insurer’s computer generated records of mailing, with witness verification and authentication, plus certificates of bulk mailing and witness testimony that the insurer's records contained no indication that the notice was returned were collectively sufficient to establish a prima facie case of mailing. Hemperly v. Aetna Cas. & Sur. Co., supra; Burge v. Allstate Insurance Co., supra.


author: JjBROWN, C.J.,

text:
    LEON ANGEL CONSTRUCTORS, INC., Plaintiff-Appellant, v. KIRK KNOTT ELECTRIC, INC., Defendant-Appellee.
    No. 36,752-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2003.

      Rogers & Hearne by William L. Hearne, for Appellant.
    Paul J. McMahon, III, Lafayette, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   JjBROWN, C.J.,

Leon Angel Constructors, Inc., (“Angel”), was the general contractor for the DeSoto Parish Annex and Courthouse renovation project (“Project”). Angel entered into a contract with Kirk Knott Electric, Inc., (“Knott”), for electrical work on the project. The first phase of the project involved working on the Annex. During this phase, Angel terminated Knott’s subcontract. Angel then initiated an arbitration proceeding against Knott through the American Arbitration Association (“AAA”) seeking damages. Knott answered by denying the claims and filing its own claim for work completed and damages.

The arbitrator denied Angel’s claims and awarded Knott a net sum of $75,897.78 for work completed, damages, penalties, attorney fees, and interest. In addition, Angel was ordered to reimburse Knott for the AAA fees it paid. A facsimile of the award calculation is attached as an Appendix to this opinion. Angel filed a request with the AAA for a modification of the award, asserting that the arbitrator used Angel’s charge to the DeSoto Parish Police Jury for the value of the work completed rather than the sum Angel agreed to pay Knott under their contract. Angel also disputed the award for lost profits, penalties and attorney fees.

The requested modification was denied and Angel went to district court seeking relief under the provisions of La.R.S. 9:4210 and 4211, while Knott reconvened asking the district court to confirm the award under La.R.S. 9:4209. Angel presented essentially the same arguments to the district court regarding the basis for the calculation of damages. The district court concluded that Angel’s claims related to the merits of the case which |?,are not subject to review. The court confirmed the arbitrator’s award including the legal fees paid by Knott to the AAA, legal interest thereon until paid from February 9, 2002, and all costs of the proceedings in court. This appeal followed.

Discussion

Under the Louisiana Arbitration Law, La.R.S. 9:4201 et seq., a party aggrieved by an arbitration award may seek relief in a district court to have the award vacated or modified in accordance with La.R.S. 9:4210 and 4211.

The grounds for vacating an arbitration award are: (A) where the award was procured by corruption, fraud, or undue means; (B) where any of the arbitrators evidenced partiality or corruption; (C) where the arbitrators refused to postpone the hearing, upon sufficient cause shown, refused to hear evidence pertinent and material to the controversy, or are guilty of any other misconduct prejudicial to the rights of any party; or (D) where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. La.R.S. 9:4210.

The grounds under which a district court may modify or correct an award are: (A) miscalculation of figures or incorrect description of any person, thing, or property in the award; (B) where an award is rendered upon matters not subject to arbitration; or (3) imperfect form of the award. La.R.S. 9:4211.

La.R.S. 9:4209 requires that a district court confirm the arbitration award upon application by any party unless grounds pursuant to La.R.S. [39:4210 or 9:4211 exist. St. Tammany Manor, Inc. v. Spartan Building Corp., 509 So.2d 424 (La.1987). A strong public policy favors arbitration, and such awards are presumed to be valid. Accordingly, a district court does not sit in an appellate capacity, but confines its determination to whether there exists one or more of the specific grounds for impeachment as provided for under the applicable statutes cited above. Woodrow Wilson Const. Co., Inc. v. MMR-Radon Constructors, Inc., 96-0618 (La.App. 1st Cir.12/20/96), 684 So.2d 1125, writ denied, 97-0152 (La.03/07/97), 689 So.2d 1379.

Manifest Error

Angel contends that the arbitrator’s acceptance of the amount certified by the architect as the amount owed for the completed work constituted manifest error. Manifest error is not mentioned as a grounds for reversal of an arbitrator’s award in either La.R.S. 9:4210 or 9:4211. By contrast, “manifest disregard of the law” by arbitrators is a judicially created ground for vacating an arbitration award. The doctrine implies that an arbitrator has knowledge and appreciation of a clearly governing legal principle yet decides to pay no attention to it. Welch v. A.G. Edwards & Sons, Inc., 95-2085 (La.App. 4th Cir.05/15/96), 677 So.2d 520; Colchoneria Jiron, S.A. v. Blumenthal Print Works, Inc., 629 So.2d 1288, 1290 (La.App. 4th Cir.1993), writ denied, 94-0145 (La.03/11/94), 634 So.2d 391. Errors of fact or law do not invalidate an arbitration award. National Tea Co. v. Richmond, 548 So.2d 930 (La.1989), citing St. Tammany Manor, Inc. The doctrine of “manifest disregard of the law” Rclearly requires more than simply an error of law on the part of an arbitrator. Welch, supra. Accordingly, manifest error is not a judicially recognized ground for vacating or modifying an arbitration award.

Arbitrator Exceeding His Powers and Authority

Next, Angel contends that the arbitrator exceeded its powers and authority by awarding Knott the sum owed to Angel by the police jury rather than the amount provided for in the subcontract.

Indeed, the contract provides a progressive schedule for payment as the contractor is paid by the owner after certification by the architect. This provision, however, refers only to the method of payment. In other words, Knott could have completed more work than had been certified by the architect. In fact, Knott testified that he had billed Angel over $122,000 (rather than the $71,848.24 certified by the architect) for his work.

We conclude that the arbitrator was empowered to select an amount of compensation it considered appropriate for Knott’s work. Accordingly, the arbitrator was not exceeding his powers in selecting the amount certified by the architect. See Hill v. Cloud, 26,391 (La.App.2d Cir.01/25/95), 648 So.2d 1383, writ not considered, 95-0486 (La.03/17/95), 651 So.2d 260.

Material Miscalculation or Error in Description

La.R.S. 9:4211 provides that the district court shall issue an order modifying or correcting the award “[w]here there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in an award.”

As previously stated, it is the $71,848.84 figure certified by the architect as the value of the completed work that Angel contends constitutes a material mistake in calculation or an “evident material mistake in the description” of a thing referred to in the award. In this instance, both alleged errors refer to the same thing. The district court concluded that this was an attack on the factual basis of the arbitrator’s findings and therefore not subject to judicial review. Angel submits that the arbitrator made a material miscalculation in the award when it valued Knott’s completed work by using what amounted to Angel’s contract price to the police jury for Knott’s electrical work rather than Knott’s contract price to Angel. Hence the question is whether this constitutes a miscalculation or is it simply a mistake of fact or law not subject to review.

The term “evident material miscalculation of figures” in § 4211 has been construed to mean a miscalculation “akin to an arithmetical error,” as distinguished from an error in the factual or legal conclusions underlying the arbitrator’s award. St. Tammany Manor, supra.

However, in Cole v. Hiller, 30,397 (La.App.2d Cir.04/08/98), 715 So.2d 451, writ not considered, 98-1512 (La.09/04/98), 723 So.2d 429, this court affirmed the district court’s modification of an arbitrator’s award on grounds of “material miscalculation” where the arbitrator’s award appeared, on its face, to be a double recovery as well as an award of additional unrequested painting expenses. Citing federal arbitration jurisprudence, we noted that “modification on the basis of a material miscalculation is appropriate when the arbitrator’s award grants a party double recovery of a | particular item of damages.” Cole, supra, citing Eljer Mfg., Inc. v. Kowin Development Corp., 14 F.3d 1250 (7th Cir.1994), cert. denied, 512 U.S. 1205, 114 S.Ct. 2675, 129 L.Ed.2d 810 (1994).

On the other hand, we stated that “an arbitrator’s award may not be modified or vacated on the basis of the arbitrator’s resolution of disputed facts.” Cole supra, citing Firmin v. Garber, 353 So.2d 975 (La.1977); Hill v. Cloud, supra; National Post Office v. U.S. Postal Service, 751 F.2d 834 (6th Cir.1985). The court may, however, vacate an award founded on a material mistake of undisputed fact unless the party opposing the motion to vacate offers an alternative rational explanation for the award based on the evidence before the arbitrator. Id.

In this instance, we conclude that the value of Knott’s work was a disputed fact. Knott submitted a bill for his work in the amount of $122,387. Although we have no record of testimony at the arbitration hearing, there are exhibits in the record of the contracts and schedule of values for the project. Accordingly, the facts of this ease are distinguished from Cole, supra. We agree with the district court that the basis for the calculation of the award used by the arbitrator is not a “material miscalculation” because it is not arithmetical in nature, nor does it constitute an error on its face.

| rjLost Profits

By contrast, however, it is apparent on the face of the arbitrator’s calculation that it awarded Knott a “double recovery” of a portion of the lost profits. Lost profits were calculated by the arbitrator as 10% of the contract price of $295,518, or $29,551.80. The arbitrator should have subtracted the amount Knott had already received in payment for completed work. The $71,848.84 certified by the architect as the value of Knott’s completed work included its profit margin and should have been subtracted from the contract price of $295,518, leaving $223,669.16. Knott’s lost profits is 10% of this figure or $22,366.92 and we modify the judgment accordingly.

Penalty and Attorney Fees

As previously stated, the grounds for challenging an arbitrator’s award do not include errors of law or fact. Errors of law or fact are insufficient to invalidate a fair and honest award. St. Tammany Manor, Inc., supra; National Tea Co., supra. Angel’s arguments that the contract and the Public Works Act do not allow for penalties and limit attorney fees to 10%, at best, refer to an error of law.

Interest

The district court judgment confirmed the arbitrator’s award and granted judgment in favor of Knott for the principal sum of $71,038.13 plus the AAA fees of $4,289.67 paid by Knott, with legal interest thereon from February 9, 2002. This date was selected because the arbitrator ordered that payment of the award be made to Knott within 15 days of the date of the | saward on January 24, 2002. Angel contends that the district court does not have the authority to modify the arbitrator’s award of interest.

This argument is without merit. The court did not modify the award of interest. Payment of the total amount, including the arbitrator’s award of interest, was due on February 9, 2002. The judgment of the district court confirmed the awarded amount, including the arbitrator’s award of interest, and including the due date of February 9, 2002 in its judgment. The award of legal interest from that due date is eminently fair and proper. See State Through Division of Administration v. Algernon Blair, Inc., 445 So.2d 133 (La.App. 3d Cir.1984).

Conclusion

For the foregoing reasons, we modify the arbitrator’s award by reducing the amount awarded for lost profits from $29,551.80 to $22,366.92. This reduces the judgment by $7,184.88. In all other respects, the arbitrator’s award is confirmed.

Accordingly, we amend the judgment of the district court to reflect the modified award for lost profits and affirm at appellant’s cost.

APPENDIX AWARD OF ARBITRATOR

I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitration agreement entered into by the parties, and having been duly sworn and having duly heard the proofs and allegations of the parties hereby, AWARD, as follows:

The claim of Claimant, Leon Angel Constructors, Inc., is denied.

$122,387.00 The Claimant shall pay to Respondent the Award of Arbitrator as follows: Total Billed under the subcontract

$ 71,848.84 Amount certified by Architect (thru App. # 9, June 30, 2001)

($ 22,320.00) Less payments received

$ 49,528.84 Total Owing on Subcontract

$ 29,551.80 Lost Profit (10% of original electrical subcontract)

$ 79,080.64 Total Owing plus lost profit

($ 18,200.84) Less Simplex payment by Claimant

$ 60,879.80 Net owing Respondent by Claimant

$ 7,429.33 15% Penalty; $49,528.84(15)

$ 6,687.50 Attorney’s fees

$ 901.15 Interest @ 5.5% (June 26, 2001 thru January 2, 2002 .523 (31,328 *).055 = $901.15

$ 75,897.78 Net

($ 4,859.64) Less lien filed by Southern Electric Supply, Inc., and Claimant shall be responsible for the release of the lien filed by Southern Electric Supply, Inc., in the amount of

$ 71.038.14 Total owing to Respondent by Claimant on contract

(“the Association”) and the compensation and expenses of the arbitrator totaling $8,632.80 shall be borne by the Claimant. Therefore, Claimant shall pay to Respondent the sum of $4,289.67, representing Respondent’s share of deposits previously advanced the Association. The administrative fees and expenses of the American Arbitration Association

* 71,848.84 — 18,200.84—22,320 = $31,328.00 (amt. certified less amt. paid by Angel)

The above sums are to be paid on or before fifteen (15) days from the date of this award.

This Award is in full settlement of all claims and counterclaims submitted to this Arbitration. All claims not expressly granted herein are, hereby denied.

Singed [sic]:-Dated: _ Robert E. Barris, Arbitrator (1-24-02)


author: h DREW, J.

text:
    STATE of Louisiana, Appellee, v. Jimmy LAM, Appellant.
    No. 36,862-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 11, 2003.
    Rehearing Denied Feb. 27, 2003.

      Blanchard, Walker, O’Quin & Roberts by A.M. Stroud, III, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, J. Thomas Butler William Edwards, Assistant District Attorneys, for Appellee.
    Before KOSTELKA, DREW and MOORE, JJ.
   h DREW, J.

Defendant Jimmy Lam appeals from his conviction and sentence for the crime of illegal use of a weapon under La. R.S. 14:94. We affirm the conviction and sentence, but vacate the condition of probation relative to restitution.

FACTS

On January 1, 2000, racial name-calling and ethnic slurs commenced between members of the Blackwell and Lam families, unfriendly neighbors on Rosedown Street in Shreveport. Soon this conflict escalated into a street brawl. During the second wave of fighting, T. P., the seven-month-old infant son of Maura Blackwell Paige and Wilford Paige, was struck on the forehead, sustaining injuries. The defendant was charged by bill of information with violation of La. R.S. 14:94(A), illegal use of a weapon. Waiving a jury trial, Mr. Lam elected to be tried by a judge. He was convicted and now appeals.

The trial testimony of Jason Blackwell, apparently believed by the trial court, was that:

• the physical conflict began after the defendant called him some names;
• he (Jason Blackwell), attacked the defendant, Jimmy Lam;
• at the time of the attack, the defendant was near his own truck, which was parked in front of the defendant’s house;
• he (Blackwell) punched the defendant in the face, knocked him to the ground, and then got on top of him;
• he then picked up the defendant and shoved him into Don Lam, defendant’s brother;
• he (Blackwell) got up and went back to his yard and into his garage; and
• he then saw the defendant coming with a baseball bat.

| ¡Maura Blackwell Paige testified that:

• at the time of the incident, she had just picked up her infant son, T. P, from his nap;
• she then noticed that her front door was open and her husband, Wilford, was gone;
• she walked out of the house with T.P. to see what was occurring;
• she saw her brother, Jason, fighting in the middle of the street;
• she walked outside to the end of the driveway and yelled at Wilford to break up the fight;
• she watched the Lams run into their garage;
• she saw one of the defendant’s brothers hit her brother John Blackwell on the head with a flashlight;
• then she saw the defendant run toward her and her baby and swing a bat at them;
• she put an arm up to slow the bat, holding her baby on her left side as she faced the defendant, who was about an arm’s length away;
• she felt the impact of the bat on her back, and felt the baby go limp in her arms;
• her husband (Wilford Paige) pushed her and the baby into the house;
• realizing that her baby was hurt, she and her husband immediately rushed the infant to LSU Medical Center where he was hospitalized for four days with a closed head injury;
• the picture of T.P.’s injury shown to her in court was accurate; and
• she identified the defendant, sitting in court, as the person who hit her and her baby with the baseball bat.

Maura’s brother, John Blackwell, also testified that:

• the defendant ran across the street, stopped near Maura, then swung the bat and hit her and the baby; and
• the baseball bat shown to him in court was the instrument he saw the defendant utilize in the attack.

Maura’s husband, Wilford Paige, testified that:

• he had gone outside to break up the fight between Jason and the defendant;
• he was distracted by one of the defendant’s family members, who brandished a policeman’s flashlight; and
• he saw the defendant run back across the street with a bat towards Maura and his baby, but did not see the blow that injured the baby.

Charles Poma testified that:

• he knew the Lams from the neighborhood;
• he “hung out” with the Blackwells;
|3* he and Trey Beard were crossing the street at Rosedown when they witnessed the fight;
• he saw Jason and the defendant arguing;
• Jason and the defendant began fighting in the middle of the street;
• he witnessed Maura run out of the house holding the baby, apparently trying to grab her husband;
• after the initial fight was broken up, he saw the defendant and his family go into their garage and get a bat and a flashlight;
• at this time, the Blackwells were in the grass in front of their house;
• he was not sure who had the bat and who had the flashlight because the light was dim, but the person with the bat went across the street and struck Maura and her baby with it;
• under cross examination, he admitted he did not see the defendant with the bat, but believed he saw one of the defendant’s brothers swing the bat at Maura and her baby;
• the fight was still going on in the street when Maura and the baby were struck with the bat; and
• the aluminum baseball bat shown him at trial was the one used in the attack.

Trey Beard testified that:

• he was walking with Poma when they witnessed the fight;
• he heard the defendant and Jason arguing;
• Jason was in his yard or driveway and the defendant was on a walkway, separated by a street and a yard;
• from across the street (about 50 yards away) he saw the fight between Jason and the defendant begin in the middle of the street;
• the streetlight lit-up the middle of the street and he could see who was fighting;
• the Blackwells came out to pull Jason back and the Lams ran out of their house;
• he saw the fight push into the Black-wells’ yard, where the light was dimmer and it was harder to distinguish who was fighting;
• he noticed that some of the Lams had objects in their hands, but he couldn’t see exactly what they were holding because of the dim light;
• he saw the woman come out of the house and try to break up the fight;
• he heard the woman scream; and
• he then heard someone exclaim, “They hit the baby. They hit the baby.”

Three of the defendant’s siblings, William Lam, Cindy Lam and Don Lam, testified at trial. All three lived with the defendant at their parents’ Rosedown Street home at the time of the crime, and all three gave the same |4basic account concerning how the altercation began: Jason punched the defendant and then jumped on the defendant while the defendant was unloading his truck. However, their accounts of how the altercation progressed thereafter were very different from all the other witnesses.

William Lam testified that:

• while Jason and his brothers ganged up on the defendant, Maura came running out of the house;
• Maura was carrying the baby, wielding a hammer and threatening to kill the defendant;
• the defendant ran away from his attackers, covered in blood and screaming for help;
• not knowing what else to do, and knowing he couldn’t help in the fight because of his small size, William handed the defendant a bat;
• the defendant never swung the bat;
• the baby was hit when the defendant was overpowered by Jason and Gabriel (a young black man often at the Blackwell home) and the bat was jerked away from the defendant; and
• the altercation took place in the Lams’ yard.

Cindy Lam testified that:

• she saw the initial altercation between Jason and the defendant, but she went back into her house and never saw Maura or the baby;
• the fight never moved into the Black-wells’ front yard; and
• none of her family members armed themselves during the brawl.

Don Lam basically corroborated the testimony given by his siblings, William and Cindy.

When Shreveport Police Officer J.C. Stephenson arrived at the scene, the defendant appeared coherent, though he was crying, covered in blood, and had sustained a cut above his eye, which later required stitches.

The defendant did not testify at trial. However, statements made by him at the hospital to investigators were related via testimony given by Shreveport Police Corporal P.J. Lee and Officer Stephenson. When Corporal Lee asked the defendant about a bat, the defendant stated that he | Rthought his brother gave him a bat, but he wasn’t sure. The defendant said, however, that if they said he swung a bat at them, then he probably did. The defendant also told Officer Stephenson that he didn’t know if he hit the baby, but, if everybody said he did, that he might have.

After a bench trial, the defendant was found guilty as charged. The trial court was impressed with the testimony of the two disinterested witnesses, Charles Poma and Trey Beard. Further, the court specifically found that the testimony given by William Lam was not credible.

The defendant’s motion in arrest of judgment was filed, argued and denied. After the pre-sentence investigation report was reviewed, sentencing was held on June 21, 2002. Before sentencing the defendant, the trial court reviewed the facts of the case, noting that the defendant evidently became enraged about losing the initial altercation with Jason and became the aggressor when he took the bat, ran across the street and attacked the Black-wells. The trial court observed that the injury to the baby was probably unintentional, but nonetheless severe. The defendant’s lack of a prior criminal record was considered, as was the fact that he is a good student. The defendant was then sentenced to serve 18 months imprisonment at hard labor, which sentence was suspended, with the defendant then being placed on 18 months supervised probation with special conditions. He was also assessed with a fine of $300.00, plus court costs of $232.00, or in the alternative, to serve 50 days in jail. Special conditions of probation ordered by the trial court were that the defendant:

• serve 60 days in the parish jail with credit for time served,
• obtain anger management counseling,
lr* have no contact with the Blackwell family,
• report regularly to the probation office and
• make restitution for any out-of-pocket medical expenses incurred by the Blackwell family.

It is this last condition of probation that has been attacked in this appeal. The defendant’s oral motion to reconsider the sentence was denied, and the defendant now appeals his conviction and this one probationary condition of his sentence.

I. Was The Crime Proven?

Arguing that each element of the offense was not proved beyond a reasonable doubt, defendant contends here that the identity of the accused as the perpetrator was not sufficiently proved. Particularly, the defendant contends that the testimony simply did not exclude the reasonable hypothesis that someone other than the defendant struck the child with the bat. He notes that the trial court relied on testimony given by Poma and Beard, but neither one of them gave definitive testimony regarding the defendant’s identity as the perpetrator. The defendant further asserts that none of his statements to police were clear admissions of guilt. Finally, the defendant contends that Maura’s testimony of how the child was struck was illogical.

The state argues that the evidence supported the verdict and the trial court’s credibility determination should not be disturbed on appeal.

Applicable Law

La. R.S. 14:94, entitled, “Illegal use of weapons or dangerous instrumentalities,” provides, in pertinent part:

|7A. Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
B. Except as provided in Subsection E, whoever commits the crime of illegal use of weapons or dangerous instrumentalities shall be fined not more than one thousand dollars, or imprisoned with or without hard labor for not more than two years, or both.

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

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

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

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to the trier of fact’s decision to accept or reject the testimony of a witness in whole or in part. See State v. Bosley, supra.

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

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

Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12.

Application of Law to Facts

The evidence presented by the state, viewed in the light most favorable to the prosecution, was clearly sufficient to conclude beyond a reasonable doubt that the defendant, Jimmy Lam, utilized a dangerous weapon in the latter stages of the melee. The state proved the intentional or criminally negligent use of an article where it was foreseeable that the article may result in death or great bodily harm to a human being; ie., the defendant intentionally or negligently struck the head of an infant victim with a baseball bat, which foreseeably caused a serious head injury to the infant victim.

The fact that a serious closed head injury was sustained by the infant victim was not contested at trial. Also, uncontested was that the bat admitted into evidence caused the infant’s head injury. However, very much at issue were:

• the manner by which the injury was sustained, and
• the identity of the perpetrator of the crime.

Regarding both issues, there was sufficient direct evidence presented at trial through eyewitness testimony to convict Jimmy Lam as the | inperpetrator. At least two eyewitnesses (Maura and her brother, John) testified that the defendant ran toward the mother and the infant victim, wielding the bat. These witnesses saw the defendant swing the bat and strike the victim. Maura felt the impact of the bat, and felt her infant go limp. This scenario was partially corroborated by several witnesses, including two eyewitnesses who were uninvolved in the altercation. When this direct evidence is viewed in the light most favorable to the prosecution, the facts established by the direct evidence and inferred from the circumstances established by that evidence were sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every element of the crime. State v. Sutton, supra; State v. Owens, supra.

Testimony which related that Maura entered the fray, carrying the baby while armed with a hammer was obviously not believed by the trier of fact. Furthermore, other testimony -that the defendant was defending himself, and the infant was hit with the bat while the defendant was being disarmed by the Blackwells, was also obviously determined not to be credible. This court’s authority to review questions of fact in a criminal case does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, supra.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. See State v. White, supra. Even though the defendant claims that he was not the person who In committed the crime, the state negated any reasonable probability of misidentification, and carried its burden under the Jackson standard. See State v. Powell, supra. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, supra. This assignment of error lacks merit.

II. Is the Statute Unconstitutionally Vague?

The defendant argues that La. R.S. 14:94 is unconstitutionally vague because it fails to define “dangerous instrumentality.” He contends that “article” is simply too vague because it has so many definitions. The defendant asserts that the problem with the statute is that it uses a term with an accepted meaning — weapon—and then qualifies it by limiting it to firearms, articles, liquids, or substances. He argues that a bat, which would fit within the meaning of weapon, is thus excluded from the scope the statute because it is not a firearm, article, liquid or substance.

The state characterizes as untenable the defendant’s argument that an average person cannot understand that a bat is an “article,” and that swinging a bat at people would be prohibited conduct. The state also directs this court’s attention to the defense’s argument on the motion at the hearing on the arrest of judgment. At that time, defense counsel stated, “A bat is an object. A bat is an item.”

Applicable Law

In State v. Hair, 2000-2694 (La.5/15/01), 784 So.2d 1269, the Louisiana Supreme Court reviewed the applicable law with regards to challenges to statutes as being unconstitutionally vague:

hJn determining the constitutionality of a statute, we must follow the basic rales of statutory construction. A statute is presumed to be constitutional, and the burden of clearly establishing unconstitutionality rests upon the party who attacks the statute. A statute should be upheld whenever possible. Louisiana criminal statutes must be “given genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3.
A statute is unconstitutionally vague if an ordinary person of reasonable intelligence is not capable of discerning its meaning and conforming his conduct thereto. This occurs where a statute either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. In such instances, the statute violates due process of law. A criminal statute must provide adequate standards by which a party may be determined to be guilty or not guilty so that an individual’s fate is not left to the unfettered discretion of law enforcement.
Accordingly, under the “void-for-vagueness” doctrine, a criminal statute must meet two requirements to satisfy due process: (1) adequate notice to individuals that certain contemplated conduct is proscribed; and (2) adequate standards for those charged with determining the guilt or innocence of the accused. La. Const, art. 1 § 13. Broad language is not in itself vague, particularly where it is clear that the legislature intended to make criminal all acts of a certain kind.

784 So.2d at pp. 1273-1274. (Citations omitted.)

In State v. Hair, supra, the defendants contended that the complained of statutes were unconstitutionally vague because certain phrases within those statutes are themselves vague. As the Hair court noted, the fact that a statute’s terms are subjective and susceptible to interpretation does not render it vague. The court further stated:

Words in statutes need not have the same precision as mathematical symbols. Due process requires only that the language of a statute have generally accepted meaning so that a person of ordinary and reasonable intelligence is capable of discerning its proscriptions and is given fair notice of the conduct which is forbidden by its terms. Even generic terms are often used by the legislature in defining criminal conduct. I^A statute need not set out every circumstance and variation in conduct which may be a violation thereof.

784 So.2d at p. 1274. (Citations omitted.)

Black’s Law Dictionary, Seventh Edition, 1990, defines “article” as, “Generally, a particular item or thing.” This is not difficult to understand.

Application of Law to Facts

The earliest cave man chose a stick as his first weapon. Here, certainly an ordinary person of reasonable intelligence is capable of discerning that the meaning of “article” in La. R.S. 14:94 could include a baseball bat. That same ordinary person is also capable of conforming his or her conduct to the statute by not hitting someone with the bat. It was foreseeable that what Mr. Lam did here could result in death or great bodily harm to a human being. La. R.S. 14:94. See State v. Hair, supra. This statute neither forbids nor requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Analyzed under the “void-for-vagueness” doctrine reiterated in State u Hair, supra, La. R.S. 14:94 meets the two requirements to satisfy due process: (1) it gives adequate notice to individuals that certain contemplated conduct is proscribed; and (2) it sets forth adequate standards for those charged with determining the guilt or innocence of the accused. Broad language is not in itself vague, particularly where it is clear that the legislature intended to make criminal all acts of a certain kind. State v. Hair, supra. This assignment of error is therefore without merit.

114III. Is the Condition of Probation Relative to Restitution Illegal?

The crimes in the Louisiana Criminal Code (R.S. 14: 1-143) list their elements, and the penalty (incarceration and/or fine) for each criminal violation. Thus, the trial court’s basic “sentence” pertains to incarceration and/or fine (plus costs of court).

If the trial court suspends a portion of the sentence, it may place the defendant on probation, and add reasonable conditions of probation thereto. Arguments can be made as to whether the conditions of probation are actually a part of the sentence itself or a separate entity appended to a suspended sentence.

Before August 15, 1999, the collection of restitution from a defendant had to be accomplished in the criminal courts as a condition of probation pursuant to either La.C.Cr.P. art. 895.A(7) or La.C.Cr.P. art. 895.1.A, which meant that at least some portion of the sentence itself was suspended. Effective August 15, 1999, La.C.Cr.P. art. 883.2 now allows restitution to be implemented as a part of the sentence itself, without need of probationary conditions.

Here, the defendant complains that the trial court erred in imposing a probationary condition requiring:

• an unspecified amount of restitution to the Blackwell family,
• without setting out the mode, manner and method of payment.

On this technical point, he is correct, as this special condition of probation does violate La.C.Cr.P. arts. 895.A(7), and more particularly, 895.1.A(1).

hsWhen a trial court orders restitution without stating a specific amount of restitution to be paid, the sentence is defective. State v. Schwehm, 97-1544 (La.App. 1st Cir.9/24/99), 754 So.2d 264, writ denied, 99-2964 (La.3/31/00), 759 So.2d 68.

When this article is not strictly complied with, an appropriate remedy would normally be a remand so that the trial court can determine the amount and manner of restitution (lump sum or monthly payments, according to earning capacity and assets). State v. Schwehm, supra. Here, however, we choose merely to vacate this condition of probation, and otherwise affirm the sentence and conditions of probation, because Ms. Paige has expressed to the probation officer, according to the pre-sentence report:

• an inability to come up with the correct restitution numbers, and
• an antipathy to receiving any restitution from this defendant.

The state argues that:

• the defense waived this argument by not objecting to the sentence when making its oral motion for reconsideration, citing La.C.Cr.P. art. 881.1;
• La.C.Cr.P. art. 883.2 is applicable, which only requires that the trial court order the defendant to make restitution to the victim as part of any sentence imposed (not a specific sum); and
• the amount here was in fact ordered for a specific and ascertainable sum— the out-of-pocket medical expenses not covered by insurance — and the refinement and method of payment are properly part of the province ■ of the probation officer’s supervisory powers.

However, we are unpersuaded by these arguments, in that:

• sentencing matters (and this problem is at least tangential to sentencing) are always renewable for errors patent; State v. Schwehm, supra.
• the state’s proffered article 883.2 is simply not germane to this instant inquiry, because the trial court chose to seek restitution through articles 895.-A(7) and 895.1.A(1); and
|1fi* since reasonable people could always disagree about what is an appropriate amount of restitution in many situations, articles 895.A(7) and 895.1A(l) are specific in making this a mandatory part of the trial court’s function.

Applicable Law

La.C.Cr.P. art. 895.1, entitled “Probation; restitution; judgment for restitution; fees,” provides in part:

A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

Ew/phasis added.

Accordingly, we must vacate the illegal probationary condition relative to restitution. We note that the trial court could always add a condition of probation in conformity with articles 895.A(7) and 895.1.A(1) at any time during the probationary period, should the child’s mother cooperate in the restitution process. La. C.Cr.P. art. 896. See State v. Gross, 517 So.2d 456 (La.App. 1 Cir.1987).

IV. Error Patent

Defendant’s request that this court review the record for errors patent is unnecessary since such a review is made automatically in all criminal 117cases. State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556. The error patent found is discussed previously in this opinion.

DECREE

The defendant’s conviction and sentence are affirmed, but the probationary condition ordering restitution to the victim is vacated.

CONVICTION AFFIRMED. SENTENCE MODIFIED, AND AS MODIFIED, AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . The victim's initials will replace his full name to insure compliance with the confidentiality provisions of La. R.S. 46:1844(W).

      . Possibly a rock.

      . This third position certainly makes sense, but it is not the law.


author: BRIDGES, J.,

text:
    Eddie Lee JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01836-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.
    Eddie Lee Johnson (Pro Se), attorney for appellant.
    Office of the Attorney General by: Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, C.J., BRIDGES and MYERS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Eddie Lee Johnson pled guilty to possession of a firearm by a convicted felon and burglary. The Circuit Court of Coahoma County sentenced Johnson on December 1, 1997, to serve three years in the custody of the Mississippi Department of Corrections on the firearms charge, and twenty-five years on the burglary charge to run consecutively. Johnson filed a motion for post-conviction relief on October 4, 2001. The court dismissed Johnson’s motion as untimely, according to Mississippi Code Annotated Section 99-39-5 (Rev. 2000).

STATEMENT OF THE ISSUE

DID THE COURT PROPERLY DISMISS JOHNSON’S MOTION FOR POST-CONVICTION RELIEF AS UNTIMELY?

ANALYSIS

¶ 2. The order of the court sentencing Johnson was entered on December 1, 1997. Johnson’s motion for post-conviction relief was filed on October 4, 2001. Motions for post-conviction relief are required to be filed within three years of entry of judgment of conviction in the case of a guilty plea. Miss. Code Ann. § 99-39-5 (Rev. 2000). Consequently, Johnson’s motion for post-conviction relief was properly dismissed as untimely filed, and we affirm.

¶ 3. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF AS UNTIMELY FILED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.


author: MYERS, J.,

text:
    Cathy Jean Stansfield COGGIN, Appellant, v. David Scott COGGIN, Appellee.
    No. 2001-CA-00133-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2003.

      Ben Logan, Tupelo, attorney for appellant.
    Jak McGee Smith, Tupelo, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. Cathy Coggin was awarded a divorce based on the ground of adultery from David Coggin on January 5, 1999. Judge Charles D. Thomas of the Lee County Chancery Court also awarded Cathy the marital home and one acre of land.

¶ 2. On December 12, 2000, after hearing much contradictory evidence on the subject, Chancellor Thomas issued an opinion and final judgment dividing the remainder of the marital assets, including various farm equipment, building materials, and automobiles. Additionally, the chancellor ordered David to pay one-half of Cathy’s attorney’s fees. Since the earnings potential of both parties was relatively equal, the chancellor did not award Cathy alimony. Cathy now appeals, raising four issues:

I. WHETHER THE CHANCELLOR ERRED IN FAILING TO IDENTIFY THE PARTIES’ ASSETS, RESULTING IN AN ERRONEOUS EQUITABLE DISTRIBUTION.
II. WHETHER THE CHANCELLOR ERRED IN IDENTIFYING THE CHARACTER OF SEVERAL OF THE PARTIES’ ASSETS, RESULTING IN AN ERRONEOUS EQUITABLE DIVISION.
III. WHETHER THE CHANCELLOR ERRED IN EMPLOYING SEVERAL OF THE FERGUSON FACTORS AS GUIDELINES FOR THE EQUITABLE DIVISION.
IV. WHETHER BY COMMITTING ANY OF THE PREVIOUS ERRORS, THE CHANCELLOR ERRED IN DENYING ALIMONY TO CATHY COG-GIN.

Property Division

¶ 3. Since the first three assignments of error all concern the chancellor’s property division, they will be considered together. The Court will not substitute its judgment for that of the chancellor, even if this Court disagrees with the findings of fact and would arrive at a different conclusion. Richardson v. Riley, 355 So.2d 667, 668 (Miss.1978). Thus, the chancellor’s findings will stand unless “manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). When no specific findings appear in the record, the Court will generally presume “the chancellor resolved all such fact issues in favor of the appellee.” Maslowski v. Maslowski 655 So.2d 18, 20 (Miss.1995).

¶ 4. The Mississippi Supreme Court has stated eight factors a chancellor should consider when equitably dividing marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). The chancellor need not consider all eight of the factors, but must consider all applicable to the property in question. Carrow v. Carrow, 741 So.2d 200, 202(¶ 10) (Miss.1999).

¶ 5. In the instant case, the chancellor used the applicable Ferguson guidelines. However, it was not clear in the chancellor’s original opinion whether he considered the depletion of retirement and insurance assets. Retirement plans are marital assets. Owen v. Owen, 798 So.2d 394, 400(¶ 16) (Miss.2001). During the course of the marriage, Cathy had used the cash value of her retirement account to support the family on the assurance that David would increase the contributions to his retirement account. Then, in 1996, after Cathy filed for divorce, but before the decree was issued, David cashed in his state retirement, valued at approximately $17,000 before taxes.

¶ 6. David was the owner of four life insurance policies: One on himself, one on Cathy, and one on each of their two children. After David left the marital domicile, Cathy continued payments on the policies for herself and the two children, thus increasing their value. In December of 1998, David withdrew the cash value on those three policies and reportedly used it for (nonmarital) business purposes.

¶ 7. In an amended opinion, the chancellor clarified the matter, and indicated that he did consider the pre-divorce distribution of these marital assets. It was this consideration which led the chancellor to award Cathy Coggin eighty percent of the remaining marital estate, and David Coggin twenty percent.

¶ 8. Since the chancellor considered all relevant Ferguson factors, we cannot say that his judgement concerning the property division was manifestly wrong or clearly erroneous. Therefore, we affirm this part of the judgment.

Alimony

¶ 9. We now turn to the issue of whether the chancellor erred by denying any form of alimony to Cathy. Once again, a limited standard of review is used to evaluate a chancellor’s decision. “The chancellor’s decision on alimony will not be disturbed on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error.” Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992) (citing McNally v. McNally, 516 So.2d 499, 501 (Miss.1987)) (citing Harrell v. Harrell, 231 So.2d 793 (Miss.1970)). Additionally, all awards to a spouse must be considered together to decide if they are equitable and fair. Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995) (citing Ferguson, 639 So.2d at 929).

¶ 10. The guidelines to be used in determining if alimony is appropriate in a particular case were established in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). They are: (1) The income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; or (12) any other factor deemed just and equitable. Armstrong, 618 So.2d at 1280.

¶ 11. While the chancellor did not consider all of the Armstrong factors, his decision on alimony cannot be said to be against the overwhelming weight of the evidence. The chancellor found both parties to have similar earning capacity. During the marriage, David and Cathy lived frugally, relying on just one income to pay bills. Additionally, there was no proof introduced into the record that David had any substantial income from which to pay alimony. However, given David’s fault, the chancellor did order him to pay half of Cathy’s attorney’s fees. When these facts are considered with the chancellor’s conclusion that Cathy received eighty percent of the marital estate and David received twenty percent, the alimony decision becomes even more reasonable.

¶ 12. THE JUDGMENT OF THE LEE COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . These percentages have been adjusted to consider the amount of marital debt assigned to the parties as well.


text:
    Jimmy Lee COOK, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-01212-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2003.

      Gail P. Thompson, Oxford, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Jimmy Lee Cook, Jr. pled guilty to one count of armed robbery in the Circuit Court of Holmes County. The court sentenced Cook to six years in the custody of MDOC, with four years’ post-release supervision. Cook filed a motion for post-conviction relief that the trial court denied him. Cook then perfected his appeal to this court in a timely fashion.

STATEMENT OF ISSUES

I. DID COOK RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

II. WAS COOK’S GUILTY PLEA KNOWINGLY AND VOLUNTARILY ENTERED?

III. DID THE COURT ERR IN DENYING COOK AN EVIDENTIA-RY HEARING?

ANALYSIS

I. DID COOK RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 2. Cook argues that he received ineffective assistance of counsel, because he believed that the sentence recommendation that the State had agreed to make was binding on the judge. Further, he argues that he was misled by his counsel to believe that he would serve his time under the 85% rule, when in fact any sentence under ten years for armed robbery is served under the mandatory 100% rule.

¶ 3. To prove ineffective assistance of counsel, Cook must show by a preponderance of the evidence that 1) counsel’s performance was defective, and 2) that defect was so prejudicial as to prevent Cook from having a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss.1994). Cook faces a strong yet rebuttable presumption that counsel performed adequately, and must show a reasonable probability that but for counsel’s errors, the result of the trial would have been different. Moody, 644 So.2d at 456. This Court looks at the totality of the circumstances, with deference towards counsel’s actions, to find a factual basis for the claim. Id. Should we find that Cook’s counsel was ineffective, the appropriate remedy is remand for a new trial. Id.

¶ 4. Cook provides ample factual evidence to support his claim that in fact counsel may not have thoroughly explained the consequences of the 100% rule or the fact that the court was not bound by the State’s recommendations in sentencing. However, the record demonstrates that the court took extensive pains to explain to Cook that the court had full discretion to reject any sentence recommendations by the State. The court also permitted Cook to further consult with counsel following this explanation, and afterwards Cook was quite satisfied and willing to plead guilty. Consequently, although there is some evidence of a slight defect in counsel’s performance, it was hardly prejudicial, given the court’s judicious care in evaluating Cook’s state of mind and the knowledge he had surrounding his guilty plea. We find that Cook’s claim of ineffective assistance of counsel is without merit.

II. WAS COOK’S GUILTY PLEA VOLUNTARILY AND INTELLIGENTLY ENTERED?

¶ 5. This Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous. Stevenson v. State, 798 So.2d 599, 602(¶7) (Miss.Ct.App.2001). The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence. Id.

¶ 6. Cook argues that his guilty plea was coerced by counsel’s representations of a sentencing recommendation from the State for five years. Cook offers the affidavit of his mother in support of this argument. However, the record belies Cook’s allegation of error, as he affirmatively represented his sound state of mind and agreement with the terms of the guilty plea to the court. The court permitted him to ask questions, and quizzed him twice on his satisfaction with the plea he was making. At no time during the plea hearing did Cook express any reservations, except about the court’s discretionary power in sentencing, which both the court and counsel took pains to explain to him.

¶ 7. We find that Cook has failed to establish any coercion, and that his guilty plea was both voluntary and intelligent.

III. DID THE COURT ERR IN DENYING COOK AN EVIDENTIA-RY HEARING?

¶ 8. The trial court is not required to have an evidentiary hearing to address the merits of a motion for post-conviction relief. Absent any evidence of abuse of discretion, we affirm the court’s decision to deny Cook an evidentiary hearing on his motion.

¶ 9. For the foregoing reasons, we affirm the trial court.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C J., AND KING, P.J., THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. SOUTHWICK, P.J., AND GRIFFIS, J., NOT PARTICIPATING.


author: SOUTHWICK, P.J.,

text:
    CLARENDON NATIONAL INSURANCE COMPANY, Appellant, v. Michelle McALLISTER, Surviving Spouse of David J. McAllister, Appellee.
    No. 2001-CA-01715-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2003.
    Joel W. Howell, Jackson, attorney for appellant.
    Wayne Dowdy, Magnolia, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. A Franklin County jury found that beneficiary Michelle McAllister was entitled to payment of benefits under an occupational accident insurance policy. The insurer Clarendon National Insurance Company appeals. We find that the event for which coverage was sought was not an accident under the policy. We reverse and render judgment in favor of the insurer.

FACTS

¶ 2. David J. McAllister worked as an independent contractor driving trucks for SCC Freightways, Inc., in the spring of 1999. One of the benefits provided Mr. McAllister was an occupational accident insurance policy underwritten by Clarendon National Insurance Company. Under the terms of the policy, the named beneficiary was due $150,000 in the event the insured suffered an accidental death. David McAllister suffered a fatal heart attack while performing his ordinary duties on May 11, 1999. McAllister’s widow, Michelle, made demand upon Clarendon for payment of benefits. Clarendon denied the claim on the basis that McAllis-ter’s death was not an accident but rather due to disease which was a specific exclusion from policy coverage.

¶ 3. Mrs. McAllister filed suit against Clarendon seeking payment under the policy. She sought only $72,500 rather than the face value because of the decedent’s pre-existing heart condition which “may have proximately contributed to his death.” A jury found in favor of Mrs. McAllister and awarded $150,000. The trial court on its own motion remitted the award to $72,500 to conform with the relief sought in the complaint.

DISCUSSION

¶ 4. Mrs. McAllister argues that her husband’s death was accidental because he was engaged in routine activity which had a violent and unforeseen result.

¶ 5. An insurance policy is a contract between the insurer and the insured. Like other contracts, insurance policies which are clear and unambiguous will be enforced according to their terms. State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 797 So.2d 981, 985 (Miss.2001). We give terms used in insurance policies their ordinary and popular definition. Blackledge v. Omega Ins. Co., 740 So.2d 295, 298 (Miss.1999). A contract is to be construed and enforced as written. Weeks v. Mississippi College, 749 So.2d 1082, 1087 (Miss.Ct.App.1999). We will not strain the bounds of the English language by imparting meanings to common words beyond ordinary use. Allstate Ins. Co. v. Moulton, 464 So.2d 507, 510 (Miss.1985).

¶ 6. The pertinent parts of the policy at issue are these:

“Occupational accident” meant a sudden, unforeseeable event or series of events which results in bodily injury within 72 hours of the date of the event. This event or events must meet all of the following ... The bodily injury must be the direct result of an accident and not the result of any other cause.
“Accident” means an unforeseeable event or occurrence which happens suddenly and violently.
No insurance is provided for any injury resulting from ... sickness, disease, bodily infirmity or bacterial or viral infection of any kind.

¶ 7. The policy requires a precipitating event unrelated to sickness or disease which results in bodily injury. To hold otherwise would be to distort the accepted definition of the phrase “result of’ which requires a cause from which an effect would follow. The policy does not apply to any bodily injury, but only those resulting from accidents.

¶ 8. The interpretation urged upon us by Mrs. McAllister, that a heart attack is a sudden and violent unforeseeable event and therefore an accident, would require us to hold that a heart attack is both the cause and the effect. That ignores the plain terms of the policy. The only interpretation which would benefit Mrs. McAl-lister’s claim is that her husband’s heart attack in and of itself was the accident with the resulting bodily injury being death. This would strain the ordinary and accepted definition of “accident” beyond permissible boundaries. By its very nature, cardiac failure is both sudden and violent and often unforeseeable. It was not here, however, an accident.

¶ 9. The policy also denies benefits if bodily injury results from disease. Medical testimony indicated that Mr. McAllister had severe coronary artery disease although it had been unknown and undiagnosed at the time of his death. He could have suffered the fatal heart attack at any time.

¶ 10. While placing different interpretations upon the facts, both parties provided evidence that Mr. McAllister was a vigorous man and that the labors in which he was engaged at the time of his heart attack were, while strenuous, no more than that required of him on any other day.

¶ 11. Because of his coronary artery disease and his vigorous lifestyle, Mr. McAllister’s death could have occurred while engaged in any activity at any time. It was merely coincidental that the disease process from which he suffered manifested itself during working hours. Given the medical testimony, Mrs. McAllister cannot establish that the severe heart disease her husband suffered was not the sole proximate cause of his untimely death, particularly in light of the lack of any unusual precipitating factor.

¶ 12. We- have sympathy for Mrs. McAllister’s claim. Nonetheless, we cannot justify transforming an accidental injury insurance policy into an ordinary life insurance policy in contradiction of its clear terms. Whether Mr. McAllister also had life insurance is neither factually nor legally relevant in this appeal. A variety of insurance policies may exist to protect one individual and that person’s beneficiaries from a variety of events. Each policy that provides benefits when death occurs should be examined to determine whether it reasonably can be interpreted to apply to the facts supporting the claim. We find that this particular policy does not apply to this particular event.

¶ 13. We find no ambiguity in this contract for insurance, nor in the facts. As a matter of law, the cause of Mr. McAllis-ter’s death was not an accident under the policy.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF FRANKLIN COUNTY IS REVERSED AND JUDGMENT ENTERED ON BEHALF OF THE APPELLANT, CLARENDON NATIONAL INSURANCE COMPANY. THE COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.