author: 11 Judge TERRI F. LOVE. 11 JONES, J.

text:
    STATE of Louisiana v. Jeffrey JONES.
    No. 2002-KA-2433.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 18, 2003.

      Eddie J. Jordan, Jr., District Attorney, Leslie Parker Tullier, Assistant District Attorney, Zata W. Ard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Arcenious F. Armond, Jr., Gretna, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   11 Judge TERRI F. LOVE.

STATEMENT OF THE CASE

Defendant Jeffrey Jones was charged by bill of information on September 4, 1998 with possession of cocaine, a violation of La. R.S. 40:967(C). Defendant pled not guilty at his September 11, 1998 arraignment. A preliminary hearing and motion to suppress was held, and the trial court found probable cause and denied the motion to suppress. At the jury trial, the defendant was found guilty of attempted possession of cocaine. Subsequently, the State filed a multiple offender bill of information alleging the defendant to be fourth felony offender. The defendant filed a motion for new trial, which was denied, and the trial court ordered a pre-sentence investigation. The defendant filed a motion to quash the multiple bill; the trial court found the defendant to be a third felony offender and denied the motion to quash. The trial court again denied the motion for new trial. The defendant was sentenced to life imprisonment at hard labor, and the motion to reconsider sentence and motion to quash were denied. Defendant filed a notice of appeal.

The record was lodged with this court, and later supplemented with a letter from the Clerk of Criminal District Court reflecting that the multiple bill hearing | ¡>exhibits were not found in the Criminal District Court file or the property room. This court affirmed the conviction, but vacated the multiple bill adjudication and sentence and remanded, finding that the State had failed to prove that the defendant’s guilty pleas to the prior crimes were knowingly and voluntarily entered. State v. Jones, 2000-1942 (La.App. 4 Cir. 7/25/01), 792 So.2d 117.

On remand, the defendant again pled not guilty to the multiple bill. He filed a motion to quash the multiple bill, which was denied, and the defendant was found to be a fourth offender. He filed another motion to quash, or in the alternative, a motion in arrest of judgment, which was also denied. The defendant was re-sentenced as a fourth offender to twenty years at hard labor without benefit of probation or suspension of sentence. The defendant filed a motion to reconsider sentence that was denied. This appeal followed.

STATEMENT OF THE FACTS

Police Officer Chris Cambiotti of the Eighth District, Task Force, Narcotics Unit, testified that on 11 August 1998, he and his partner had just effected an arrest at Elysian Fields and Burgundy and were en route to Central Lockup with the prisoner when he observed the defendant standing in a doorway with an object to his mouth. The officers stopped to investigate, and as they exited the vehicle, the defendant brought the object down to his side and dropped it to the ground. Officer Cambiotti retrieved the object, a crack pipe, which he stated was warm to the touch when he retrieved it. Cambiotti acknowledged that he did not recover a lighter or matches from the defendant and that he did not observe any smoke emanating from defendant’s mouth. Officer Ryan Maher testified to the same facts.

RMr. Corey Hall, an expert in the testing of controlled dangerous substances, testified that he performed two tests — the crystal test and the gas chromatograph mass spectrometer test — on the substance in the pipe, and it proved to be cocaine. The defense called Mr. Clifton Johnson, who testified that he was arrested with the defendant. He stated that on the day in question he passed by the defendant as he was exiting his apartment. Mr. Johnson testified that he had never met Jones before and that the two were walking side by side when the police stopped them and had them place their hands on the police car. Mr. Johnson stated the officers subsequently found a crack pipe in the immediate area. He denied that he or Jones had discarded the pipe. Mr. Johnson testified that he was arrested for possession of drug paraphernalia for which he was awaiting trial.

ASSIGNMENT OF ERROR ONE

Defendant contends the evidence was insufficient to support the conviction. This argument is not properly before the court as the court found the evidence sufficient in the earlier appeal.

ASSIGNMENT OF ERROR TWO

The defendant argues counsel was ineffective for failing to properly investigate the case.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Reed, 483 So.2d 1278 (La.App. 4th Cir.1986). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. State v. Seiss, 428 |4So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986); State v. Landry, 499 So.2d 1320 (La.App. 4 Cir.1986).

The defendant’s claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defendant. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland 466 U.S. at 686, 104 S.Ct. 2052. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4th Cir.1992).

This court has recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir. 1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is | .^successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987), cert. denied, Brooks v. Louisiana, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363.

The defendant’s argument of ineffective assistance of counsel is directly related to the issue raised in his second assignment of error in his earlier appeal where this court reviewed his argument that his motion for new trial had been improperly denied. This court stated:

La.C.Cr.P. art. 851 provides that a new trial shall be granted on motion of defendant whenever, among other reasons:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;....
' In order to obtain a new trial based on newly discovered evidence, the defendant must show that: (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of trial was not due to the defendant’s lack of diligence; (3) the evidence is material to the issues at trial; and (4) the evidence is of such a nature that it would probably have changed the verdict of guilty. State v. Bright, 98-0398 (La.4/11/00), 776 So.2d 1134. In ruling on the motion, the trial court is to ascertain whether there is new material fit for a new jury’s verdict, not weigh the evidence as though it were a jury determining guilt of innocence. State v. Cavalier, 96-3052, p. 3 (La.10/31/97), 701 So.2d 949, 951. Nevertheless, the court must determine whether the evidence presented at trial appears strong enough to support a conclusion that the newly discovered evidence probably would not have changed the verdict, considering any newly discovered evidence that would be presented at trial. Id., 96-3052 at pp. 4^5, 701 So.2d at 952. A trial court assessing the legal merits of a motion for new trial is given considerable latitude in evaluating the reliability of the evidence and its impact on the verdict. State v. Brooks, 98-0693, p. 12 (La.App. 4 Cir. 7/21/99), 758 So.2d 814, 820, writ denied, 99-2519 (La.2/25/00), 755 So.2d 247. The trial court has much discretion in ruling on a motion for new trial. State v. Cureaux, 98-0097, p. 4 (La.App. 4 Cir. 5/26/99), 736 So.2d 318, 321. Review of the trial court’s ruling is limited to determining whether the trial court abused its discretion. State v. Labran, 97-2614, p. 6 (La.App. 4 Cir. 5/26/99), 737 So.2d 903, 907, writ denied, 99-1981 (La.1/7/00), 752 So.2d 175.
The new evidence presented by the defendant at his motion for new trial were copies of two municipal affidavits which reflect that Clifton Johnson was arrested for violations of lewd conduct by urinating in public | fiand possession of drug paraphernalia on August 11, 1998, at 12:10 a.m., at 2112 Burgundy Street. The defendant’s motion for new trial states that, despite the exercise of reasonable diligence, the affidavits were not discovered prior to trial. The affidavit in support of the motion for new trial, submitted by counsel, states that he only learned of the name of the witness “shortly before the day of trial,” and farther that he only learned on the day of trial that Clifton Johnson was also arrested for possession of drug paraphernalia. (R. pp. 43-45) It is important to distinguish between new evidence and evidence that simply had not been collected prior to trial. While defense counsel may not have had sufficient lead-time to procure the municipal affidavits charging Clifton Johnson pri- or to trial, he certainly did or should have known that if Mr. Johnson had been arrested there would be public records to confirm or deny the fact. It is difficult to classify public records of the type here as newly discovered evidence. Aware that Johnson would testify that he and the defendant were arrested together, counsel should have moved for a continuance based on the necessity of obtaining the corresponding arrest records. Appellant has failed to show that the municipal affidavits were any more available or locatable after the trial, than they were before trial. State v. Ventry, 99-0302 (La.App. 4 Cir. 6/14/00), 765 So.2d 1129, 1133. Accordingly, appellant has failed to demonstrate that the evidence was not obtainable despite reasonable diligence.
Furthermore, assuming the municipal affidavits were unavailable for purposes of La.C.Cr.P. art. 851, they do not constitute evidence, which if introduced at trial would probably have changed the verdict. The motion and affidavit for new trial contend that the municipal affidavits are exculpatory as they refute the testimony of the two officers that Clifton Johnson was not arrested for possession of cocaine or drug paraphernalia. However the record reflects that Officer Maher testified that he could not remember what the other individual was arrested for, and that Officer Cambiotti was never asked the question. Although the affidavits corroborate Johnson’s testimony regarding his being arrested at the same time as defendant, as the face sheet of Jones’ arrest report reflects, he was also arrested at 12:10 a.m., as well as his assertion that he was charged with possession of drug paraphernalia, these facts do not provide a basis for the grant of a new trial because the evidence is merely cumulative. State v. Cavalier, 96-3052, p. 3 (La.10/31/97), 701 So.2d 949, 951.
It should be noted that the Johnson’s assertion that he and defendant were arrested for possession of the same crack pipe was not directly affected by the affidavits. However, this allegation could be confirmed or allayed by information, such as a receipt from central evidence and property, concerning the evidence submitted in connection with Clifton Johnson’s arrest, information which has not been submitted here or in the trial court.

|7The defendant fails to show that the trial court abused its discretion in denying the motion for new trial in either respect. This assignment of error is without merit.

Jones, pp. 7-9, 792 So.2d at 123-124.

As such, this court has already held that although counsel may have erred, the error did not affect the outcome of the trial. Accordingly, this assignment is without merit.

ASSIGNMENT OF ERROR THREE

In this assignment of error, defendant claims the trial court erred in adjudicating him a fourth felony habitual offender, as the State failed to prove that the predicate guilty pleas were knowingly and voluntarily entered. Defense counsel filed a motion to quash the multiple offender bill of information alleging that the state failed to prove the defendant had been properly Boykinized and the trial court noted counsel’s objection to his ruling on the hearing; therefore, these issues have been preserved for review. State v. Boles, 99-0427, p. 7 (La.App. 4 Cir. 5/10/00), 763 So.2d 74, 79 (a defendant’s failure to object at the habitual offender hearing to the absence of Boykin transcripts precludes review of that issue therefore, the converse is true).

In State v. Alexander, 98-1377 (La.App. 4 Cir. 2/16/00), 753 So.2d 933 this court stated:

LSA-R.S. 15:529.1 D(l)(b) states that the district attorney has the burden of proving beyond a reasonable doubt any issue of fact and that the presumption of regularity of judgment shall be sufficient to meet the original burden of proof. In State v. Shelton, 621 So.2d 769, 779-780 (La.1993), the Supreme Court stated:
If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was | «represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than the “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights, (footnotes omitted).

98-1377, at pp. 5-6, 753 So.2d at 937.

Here, the defendant was charged with having committed three previous offenses: attempted simple burglary in 1995, distribution of false drugs in 1989, and three counts of distribution of cocaine in 1988. At the multiple bill hearing, a fingerprint expert testified that the defendant’s fingerprints matched the arrest register in the 1988 conviction. The State also introduced the bill of information, a guilty plea form containing the Boykin rights, a minute entry, and a docket master pertaining to the 1988 conviction. The defendant’s fingerprints matched those on the back of the bill of information. Next, the expert testified that the defendant’s fingerprints matched those on the arrest register of the 1989 conviction. Again, the State introduced the bill of information, a guilty plea form containing the Boykin rights, a minute entry and a docket master; however, in this conviction, there were no fingerprints on the back of the bill of information. Lastly, the fingerprint expert testified that the defendant’s fingerprints matched those on the arrest register of the |;i!994 conviction. The State introduced the bill of information, a multiple bill of information, the guilty plea form, the docket master, and the minute entry. The defendant’s fingerprints matched those on the back of the bill of information.

The defendant argues there was no evidence that he was represented by counsel in the prior guilty pleas. However, in the 1995 conviction, counsel signed the guilty plea form, and the docket master shows that he was represented by counsel. The 1989 plea form is signed by counsel, and the minute entry reflects that he was represented. The 1988 plea form was signed by counsel, and the docket master shows that he was represented.

Next, the defendant complains of a typographical error in the bill of information, which states the date of the offense as May 21, 1980 instead of May 21, 1989. However, the arrest register correctly sets out the date. The error in the bill of information was clearly a typographical error.

Lastly, the defendant argues some alleged error in his guilty plea to a multiple bill in the 1995 conviction effects his conviction as a multiple offender in this case. He makes no claim as to the guilty plea to the 1995 offense itself. The earlier multiple bill in no way effects this multiple bill. This assignment is without merit.

ASSIGNMENT OF ERROR FOUR:

The defendant argues that the trial court erred in denying his motion for new trial and in arrest of judgment. As set out above, this argument has already been reviewed by this court.

ASSIGNMENT OF ERROR FIVE

|inThe defendant argues his sentence is unconstitutionally excessive.

La. R.S. 15:529.1 A(l)(e)(i) provides:

If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.

The defendant was adjudicated a fourth felony offender and one of his prior felonies was for a violation of the Controlled Dangerous Substances Law punishable by more than five years. Accordingly, the statute prescribes a minimum of twenty years imprisonment. The defendant argues that the sentence is unconstitutionally severe as applied to his case.

An appellate court reviews sentences for constitutional excessiveness under La. Const. Art. I, § 20. A sentence is constitutionally excessive it if makes no measurable contribution to acceptable goals of punishment or is the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. Courts have the power to declare a sentence excessive even if it falls within the statutory limits. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial court has the authority to reduce a mandatory minimum sentence provided by the multiple offender statute for a particular offense and offender if the sentence would be constitutionally excessive. State v. Pollard, 93-0660 (La.10/20/94), 644 So.2d 370. Because the Habitual Offender Law has been held constitutional, the minimum sentences it imposes upon multiple offenders are presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. To rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is exceptional in that, because of unusual circumstances, the | n 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. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 531.

As noted above, defendant’s sentence is the minimum under the statute and is thus presumed constitutional. It is therefore incumbent upon the defendant to rebut the presumption. The defendant argues that because none of his previous or current convictions were for a crime of violence, the instant conviction is “essentially for possession of drug paraphernalia”. The defendant also contends that the jury only convicted him of attempted possession, and he is one of those rare persons who is deserving of a downward departure from the minimum sentence.

However, the trial court was aware of a pre-sentence investigation. In 1988, the defendant was convicted of four counts of distribution of cocaine and received probation. While on probation, defendant was convicted of distribution of false drugs and incarcerated. He was paroled. However, he absconded from supervision, and his parole was revoked in 1993. He was released on parole again in 1994, and again he was convicted of another felony, simple burglary. He was released from prison on parole in 1997 and, after being arrested for felony theft, his parole was revoked in 1998. Finally, defendant was again paroled in July 1998, only to be arrested for the instant offense little more than a month later in August 1998.

Considering the above extensive and serious criminal record, the trial court did not abuse its discretion in refusing to deviate from the minimum sentence | ^prescribed by statute. This assignment is without merit. Therefore, we affirm the defendant’s adjudication and his sentence as a multiple offender.

AFFIRMED.

JONES, J., dissents with reasons.

11 JONES, J.

dissents with reasons.

Jeffrey Jones complains in his appeal that his sentence is excessive. I agree. Further, I am concerned that he will not receive redress in Louisiana State Courts.

The sentence imposed in this case is without question excessive. As noted by the majority, in review of sentencing, an appellate court reviews sentences for constitutional excessiveness under La. Const. Art. I, § 20. A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment or is the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. Courts have the power to declare a sentence excessive even if it falls within the statutory limits. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial court has the authority to reduce a mandatory minimum sentence provided by the multiple offender statute for a particular offense and offender if the sentence would be constitutionally excessive. State v. Pollard, 93-0660 (La.10/20/94), 644 So.2d 370. Because the Habitual Offender Law has been held constitutional, the minimum sentences it imposes upon multiple offenders are presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.

However, the district court may sentence below the mandatory minimum sentences under State v. Dorthey, 623 So.2d 1276 (La.1993).

|?In this case, Jones is an addict. His criminal history evidences that he was initially convicted of distribution of cocaine, but thereafter his crimes are symptomatic of an addict: theft, burglary, and possession of cocaine. The instant offense is for possession of a minuscule amount of cocaine in a crack pipe. This would constitute a misdemeanor charge of possession of drug paraphernalia in any other parish.

Also, the record before us indicates that while the officer testified that when he observed Jones he had a crack pipe to his mouth, and upon immediately arresting Jones, he found the crack pipe to be cold to the touch. Jones did not have matches, or a cigarette lighter in his possession. Thus, how did he smoke crack at that time with no matches, no lighter, and a cold crack pipe.

As previously stated, Jones is an addict, and he has tried to remain free from criminal behavior by not committing a burglary or a theft. However, because he is an addict in a state with no rehabilitation program for an addict, he has on his person a crack pipe, hoping for someone to give him drugs. And for this we will sentence him for imprisonment for twenty years?

This sentence is, for me, more than excessive, and both the legislature and the Governor have recently had enacted laws to allow for “reasonable” sentencing. However, neither the district court nor the majority chose to do their jobs and sentence below the mandatory minimum.

For these reasons, I dissent.


source: Caselaw Access Project

author: I MAMES F. McKAY, III, Judge.

license: Public Domain

text:
    Yolanda DUPLESSIS v. ORLEANS PARISH SCHOOL BOARD.
    No. 2003-CA-0101.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 18, 2003.
    William R. Mustian, III, Stanga & Mus-tian, P.L.C., Metairie, LA, for Plaintiff/Appellant.
    Katherine M. Guste, Philip A. Costa, LLC, New Orleans, LA, for Defendant/Ap-pellee.

      (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR.)
   I MAMES F. McKAY, III, Judge.

The plaintiff, Yolanda Duplessis, appeals a judgment of the Office of Worker’s Compensation rendered in favor of the defendant, Orleans Parish School Board. We affirm.

FACTS AND PROCEDURAL HISTORY

On October 17, 1984, Yolanda Duplessis was rear-ended at a red light while she was en route to Fortier High School to conduct counseling sessions with two students. Ms. Duplessis sustained a cervical spine injury as a result of this accident. Her employer, the Orleans Parish School Board, paid her workers’ compensation benefits along with medicals she incurred from this injury.

Ms. Duplessis discontinued her employment with the Orleans Parish School Board in 1990. On May 19, 1991, while she was employed by the State of Louisiana Office of Children’s Services, Ms. Du-plessis injured her lower back when she had to lift three children into a van at work. Ms. Duplessis later moved to Georgia to pursue her career as a counselor. After Ms. Duplessis moved to Georgia she continued to be treated periodically for her lower back pain; thi^?, treatment was acknowledged as compensable and was authorized by the Orleans Parish School Board into the early part of 2000. On September 10, 2000, Ms. Duplessis twisted her lower back when an elevator malfunctioned at the Georgia Academy for Children where she was employed.

After the September 10, 2000 injury the Orleans Parish School Board stopped paying Ms. Duplessis’ medical bills. Thereupon, Ms. Duplessis filed a disputed claim with the Office of Worker’s Compensation. The case was tried on December 14, 2001. On February 13, 2002, the trial court rendered judgment, finding that the injury sustained by the claimant on September 10, 2000 “is not the liability of the defendant/employer herein.” Ms. Duplessis filed a motion for a new trial which the trial court denied on August 22, 2002. Ms. Duplessiss now appeals to this Court.

DISCUSSION

On appeal, Ms. Duplessis raises the following assignments of error: 1) the trial court erred in failing to find that the September 10, 2000 injury was a compensable aggravation of the 1984 low back injury; and 2) the trial court erred in failing to award penalties and attorney’s fees for the school board’s failure to pay uncontested mileage expenses.

The first issue that must be addressed on appeal is whether or not the trier of fact committed manifest error in its ruling at trial. The Louisiana Supreme Court has determined that an employer is not liable or required to pay for medical treatment to address any unrelated medical event, which worsened the plaintiffs’ | oinedical condition. Miller v. Roger Miller Sand, Inc., 94-1151 (La.App.11/30/94), 646 So.2d 330, 334. In the instant case, Ms. Duplessis sustained a work injury on September 10, 2000, which significantly intensified her chronic pain and disabled her from her employment. Her treating physicians, Drs. Mark Murphy and Robert Naguszewski, provided her with medical treatment to address her complaints of lumbar pain, pain in her lower extremities and generalized back pain. However, on January 29, 2001, Ms. Duplessis testified that she sustained only a cervical spine injury in her 1984 work accident. Furthermore, Ms. Duplessis produced no medical evidence, which demonstrated a causal connection between her L5-S1 disc injury and the work injury of 1984. The trial court found that the Orleans Parish School Board bears no liability for any injuries stemming from the September 10, 2000 accident. Based on the record before this Court, we find nothing manifestly erroneous or clearly wrong with this finding.

As we have found no error in the trial court’s finding that the school board is not liable for Ms. Duplessis’ medicals or compensation benefits related to her injury of September 10, 2000, we must disagree with Ms. Duplessis’ contention that the trial court erred in failing to award penalties and attorney’s fees for the school board’s failure to pay uncontested mileage expenses.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . This testimony was from Ms. Duplessis’ deposition taken in connection with her State of Georgia's Workers’ Compensation claim.


author: 1 .WILLIAM H. BYRNES III, Chief Judge.

text:
    Marie Louise BROYARD v. Theoplious RAINER, Jr., Infinity Insurance Company, National Casualty Company, and State Farm Mutual Automobile Insurance Company.
    No. 2003-CA-0123.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 18, 2003.

      Michael J. Begoun, Wolfe, Begoun & Pick, New Orleans, LA, for Plaintiff/Appellant.
    Wayne R. Maldonado, Richard C. Bates, Ungarino & Eckert L.L.C., Metairie, LA, for Defendant/Appellee, National Casualty Company.
    Irving H. Koch, Koch & Koch, L.L.C., Metairie, LA, for Defendant/Appellant, Infinity Insurance Company.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   1 .WILLIAM H. BYRNES III, Chief Judge.

STATEMENT OF THE CASE

On October 25, 1999 Marie Louise Bro-yard filed suit for injuries allegedly sustained on January 15, 1999 when the taxicab in which she was riding was struck from the rear by a car driven by Theoplious Rainer, Jr. Ms. Broyard named as defendants Mr. Rainer, his insurer, Infinity Insurance Company (Infinity), the taxicab owner’s uninsured/underinsured motorist insurer, National Casualty Company (National), and Ms. Broyard’s uninsured/underinsured motorist insurer, State Farm Mutual Automobile Insurance Company (State Farm). According to the petition, Ms. Broyard claimed severe, permanent and disabling injuries to the structures, tissues and muscles of her body, including back, neck and knee sprains and sought compensation for past, present and future mental and physical pain and suffering, medical expenses, loss of enjoyment of life and any other damages available under state and federal constitutions.

National answered, specifically alleging Ms. Broyard’s failure to mitigate damages and third-party negligence, and cross-claimed against Mr. Rainer and Infinity for any damages for which it might be cast. State Farm answered with a I general denial and claim of offset to the extent of other available insurance and cross-claimed against Mr. Rainer, Infinity and National. Infinity answered, specially pleading comparative negligence and third-party negligence and alleging that Ms. Broyard’s injuries were caused by a subsequent injury unrelated to the accident in question.

National, Mr. Rainer and Infinity answered State Farm’s cross-claims.

. National filed a motion for summary judgment, and Infinity filed a motion for partial summary judgment seeking dismissal of claims for damages arising out of Ms. Broyard’s alleged subsequent fall at her daughter’s home. These motions were heard on November 7, 2001 and on November 14, 2001 the trial court rendered judgment in favor of National and Infinity dismissing Ms. Broyard’s claims for injuries caused by Ms. Broyard’s having fallen at her daughter’s home on January 17, 1999, subsequent to the accident in question. These injuries included a fracture of the right patella, sprain of the left ankle, sprain of the left wrist and injury to left shoulder first diagnosed on February 1, 1999. Ms. Broyard did not seek supervisory review of that judgment.

On Ms. Broyard’s motion and in light of her representation that she had settled her claim against State Farm, the trial court ordered State Farm’s dismissal on August 12, 2002.

On Infinity’s motion in limine seeking dismissal of its insured for Ms. Broyard’s failure to have served Mr. Rainer, the trial court dismissed with prejudice Ms. Bro-yard’s action against Mr. Rainer. On State Farm’s motion, the h trial court dismissed with prejudice State Farm’s cross claims against Mr. Rainer and Infinity.

Following a bench trial on August 28, 2001, the trial court rendered judgment in favor of Ms. Broyard and against Infinity in the amount of $10,000 for general and special damages for past, present and future physical and mental pain and suffering and medical expenses, for all court costs and expert witness fees and judicial interest from the date of demand. The trial court also dismissed with prejudice Ms. Broyard’s claims against National.

From that judgment Ms. Broyard and Infinity appeal.

STATEMENT OF FACTS

The trial court found in its reasons for judgment that Ms. Broyard was a back seat passenger in a taxicab that was rear-ended while stopped at a stop sign on Chef Menteur Highway on January 15, 1999. After the accident, Ms. Broyard was taken to Ochsner Hospital. The trial court reviewed the expert testimony of Ms. Bro-yard’s treating physician, Dr. Michael Harlan, who examined her at the Ochsner emergency room. According to Dr. Harlan, Ms. Broyard complained only of a sharp, shooting chest pain and muscle aches. Significantly, she did not complain of right knee, left ankle or left wrist pain. Furthermore, the doctor’s musculoskeletal examination revealed no evidence of a fracture in her extremities, and she had a good range of motion of her joints and no joint tenderness or |4swelling. Dr. Harlan had her walk around to make sure there were no obvious fractures, and Ms. Broyard had no trouble doing this. Because of her complaint of chest pains, he ran an electrocardiogram (EKG) test that showed no change from Ms. Broyard’s last EKG, so that he was able to reassure her that the chest pain was not a signal of an injury to her heart. Dr. Harlan diagnosed musculo-skeletal chest pain of the chest wall (not the internal organs such as the heart) secondary to the accident.

The trial court found that on January 17 Ms. Broyard returned to the Ochsner emergency room complaining of right knee, left wrist and left ankle pain as a result of a fall at her daughter’s home earlier that day. Ms. Broyard gave a history of blacking out, although at trial she denied this history. Dr. Harlan again saw Ms. Broyard and diagnosed a . right knee fracture and sprains of her left wrist and ankle. His physical examination noted swelling and tenderness associated with pain over these areas.

Dr. Harlan opined that Ms. Broyard’s fall could have been caused by several factors, since she was then 74 years old with a diagnosed heart condition, coronary artery disease. Dr. Harlan did not connect the fall to the automobile accident.

Dr. Michael Wilson, an Ochsner orthopedic physician, treated Ms. Broyard for her fractured knee and ankle sprain from January 20,1999. He had no opinion as to the probable cause of her fall. Likewise, Dr. Joseph Murray, Jr., Ms. |,.¡Broyard’s primary treating physician, testified that he could not render an opinion as to the cause of her fall.

The trial court noted Ms. Broyard’s testimony that she was stiff all over on the day of the second accident, that she could not move her legs, after the first accident and that her legs gave way when she attempted to stand up at her daughter’s home just prior to the second accident. Furthermore, the trial court found that this testimony was not corroborated by a single medical expert or treating physician or medical report of Ms. Broyard’s complaints to the doctors.

STANDARD OF REVIEW

In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100 (La.1/16/96), p. 4, 666 So.2d 612, 614. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Therefore, it is well settled that we as a court of appeal may not set aside the trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Where there is a conflict in the testimony, the trial court’s reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on review, even had we felt that our own evaluations and inferences would have been as reasonable. Stated another way, where, as here, there are two permissible views of the evidence concerning the cause of Ms. Broyard’s wrist, ankle and knee injuries, the fact finder’s choice between them | ¿Cannot be manifestly erroneous or clearly wrong. As an appellate court, we must constantly have in mind that our initial review function is not to decide factual issues de novo. It is only where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, that we may find manifest error even in a finding purportedly based upon a credibility determination. But where, as here, such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or more witnesses (the treating physicians in this case), that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

INFINITY INSURANCE COMPANY’S FIRST ASSIGNMENT OF ERROR: The Trial Court’s conclusion that because of Ms. Broyard’s pre-existing heart condition she suffered emotional distress attributable to her chest pain immediately following the accident is not supported by the evidence.

In its reasons for judgment, the trial court found:

Because of her previous heart condition, Ms. Broyard suffered emotional distress due to her chest pain immediately following the accident. Therefore, the Court finds an award of $10,000 for general and special damages adequate to compensate Ms. Broyard for her loss.

The only evidence concerning the time between the occurrence of the automobile accident and Ms. Broyard’s arrival at Ochsner where she received the |7good news that her chest pain was not attributable to a heart problem is Ms. Broyard’s trial testimony.

According to Ms. Broyard, when the cab in which she was a passenger was struck from behind, she was the only person in the backseat, and was not wearing a seat belt. She testified:

I went forward. My legs hit the front seat, my arms, my neck. And I was hurting all over.... When he hit, I fell forward to the front of the seat, the back of the driver’s seat. And that’s when my neck was pulled, my back was pulled and my legs, like my legs were going up under the seat.

Ms. Broyard testified that the driver called the police, and she asked him to call an ambulance for her. She asked the policeman who arrived after the 7:50 a.m. accident to take her to Ochsner. When the policeman went to talk to the cabdriver, she “screamed and asked the policeman to please call an ambulance.” The policeman told her the driver could get to Ochsner faster than an ambulance could be called, so she waited for the driver to finish with the police investigation whereupon he drove her and a woman who was a passenger in the front seat of the cab to the Ochsner emergency room.

Ms. Broyard testified that when she arrived at the emergency room, she was placed in a wheelchair and her daughter took her in. Ms. Broyard did not explain how her daughter happened to be present to perform this function. The daughter apparently vanished, because Ms. Broyard made no further reference to her presence at the hospital. Ms. Broyard testified that Ochsner personnel called a cab for her at the conclusion of her testimony and the cabdriver took her home, | ¿whereupon, according to Ms. Broyard, “I managed to get in the house and get on the sofa in the den.”

She testified that she told the doctor that she had been in an accident, that she couldn’t move her legs, neck or back and was in pain. The doctor bent her legs up and examined her neck, back and legs, but did not take any specific test or x-rays. She was released, put in a wheelchair and rolled to the front to wait for a cab.

This testimony is contradicted by the Ochsner emergency room records and by Doctor Harlan’s deposition testimony that she was given an EKG test that morning, and that he compared the EKG to her previous recorded EKG and found no difference between the two tests. The trial court acted reasonably in accepting Dr. Harlan’s testimony and the cqrroborating hospital records.

According to the Ochsner Emergency Department Record dated January 15, 1999, Ms. Broyard was seen at 11 a.m. complaining of generalized muscle aches and a sharp shooting intermittent chest pain. She denied numbness, paresthesias, loss of consciousness or neck pain. The chest pain was in the anterior chest wall and was a soreness not at all like her previous angina. The Ochsner Emergency Department Record dated January 15, 2000, showing Dr. Harlan as the attending physician, contradicts her testimony further. According to the report, she evidenced no signs of neck injury or cervical spine tenderness, no heart issues, no soft tissue or bony tenderness, joint swelling or tenderness, abrasions, hematomas or lacerations. She demonstrated full range of motion in all joints. Dr. Harlan prescribed Tylenol 325 mg., 2 tablets every four hours as needed for chest discomfort.

The emergency room report is consistent with the police report of the accident that described the impact as a “bump” and noted no signs of damage or Rimpact on either vehicle. Photographs of the vehicles confirmed the damage assessment.

Thus, Ms. Broyard’s concern that the accident had triggered some sort of heart problem lasted for approximately four hours, from 7:50 a.m., when the accident occurred, to shortly after 11 a.m. when she received the negative results of her EKG. We note from Ms. Broyard’s testimony on cross-examination that prior to the automobile accident her doctor had prescribed Xanax for anxiety, and she took this drug in addition to a sleeping pill, Senaquon.

Ms. Broyard did not testify specifically that she suffered emotional distress or anxiety prior to having received the EKG results. However, the trial court was not unreasonable in concluding from Ms. Bro-yard’s conduct in demanding emergency medical attention and in light of her prior coronary artery disease for which she received angioplasty treatment, that she did suffer some anxiety relating to her heart condition.

This assignment of error is without merit.

INFINITY INSURANCE COMPANY’S SECOND ASSIGNMENT OF ERROR: The Trial Court’s award of $10,000 in general damages is unsupported by the evidence and should be reduced.

The judgment provides for $10,000 in “general and special damages for past, present and future physical and mental pain and suffering and medical expenses.” In its reasons for judgment, the trial court found that Ms. Broyard incurred $150 in emergency room treatment expenses on January 15, 1999. Furthermore, the trial court found that Ms. Broyard was treated at River Parish Chiropractic from [10January 27, 1999 to February 3, 1999 for soft tissue injuries to her neck, shoulder and back. The cost of the chiropractic treatment was $570.

According to the report of Robert R. Dale, D.C. of River Parish Chiropractic, his office treated Ms. Broyard from January 27, 1999 through February 3, 1999. She presented on January 27th, complaining primarily of left shoulder and arm pain, neck numbness, right knee pain, left ankle pain, right arm and wrist pain. Contrary to her trial testimony, Ms. Broyard told Dr. Dale that she had been wearing a seat belt when the auto accident occurred. There is no evidence in this report that River Parish Chiropractic treated Ms. Bro-yard for the chest wall injury caused by the automobile accident.

There is adequate record evidence to support an award of special damages in the amount of $150. There is no evidence, however, of a need for future medical treatment of the chest wall injury Ms. Broyard sustained in the automobile accident. Neither is there evidence of present or future physical or mental pain and suffering. There is no evidence of record tending to prove mental suffering anxiety except for the period from the time of the accident until Ms. Broyard received the EKG results.

Therefore, the elements of damage for which Ms. Broyard offered proof at trial are confined to:

(1) Special damages for past medical treatment: $150.00;

(2) Past physical pain and suffering connected with the chest wall injury, for which there was no referral or indication of the need for medical follow-up;

| ii (3) Past mental anxiety from the time of the accident until Ms. Broyard received the results of the KEG, or approximately 4 hours.

Applying these elements to the trial court’s in globo damage award, it is clear that Ms. Broyard received an award of general damages in the amount of $9,850 for a resolved soft tissue injury lasting for an undetermined time and four hours of anxiety concerning possible injury to her heart.

The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993) cert. den. 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from the jurisprudence is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. It is only when the award is, in either direction beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Id.

liaWe must ask whether the awards are obviously the result of passion or prejudice and whether a general damage award of $9,850 bears a reasonable relationship to the $150 in special damages. Are we to conclude from the entirety of the evidence, viewed in the light most favorable to Ms. Broyard, the prevailing party in the trial court, that a rational trier of fact could not have fixed the award of general damages at $9,850 or that this is one of those “exceptional cases where such awards are so gross as to be contrary to right reason.” See, Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir.1987); Youn v. Maritime Overseas Corp., supra.

The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or so low in proportion to the injury that it “shocks the conscience.” See, Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5th Cir.1991).

In this case, the general damage award is approximately sixty-six times the amount of the special damages. Ms. Bro-yard suffered a sore chest for an undetermined time, and four hours of anxiety concerning her heart. An award of $9,850 under these particular circumstances is an abuse of the vast discretion referred to in Youn. Having determined that this is one of those rare cases in which the general damage award is such that in its relationship to the proven special damages and the circumstances of the case it can be said to shock the conscience, we then must determine the largest reasonable award to Ms. Broyard. The cases cited by Infinity’s counsel in brief demonstrate that in the past three years appellate courts in this State have approved awards of between $435 and $1,500 for a one-week soft-tissue injury to as much as $2,500 for an injury | ^requiring a month’s treatment and causing residual pain as of the date of trial. Since the record contains no recommendation or referral for post-emergency room treatment and there is no evidence of record that Ms. Broyard’s chest wall injury continued to cause her pain, we find that the highest reasonable award for her physical pain and suffering is $1,850. We have been referred to no cases involving recovery for anxiety for a period of time as short as the approximately four hours during which Ms. Broyard worried that her heart could have been affected by the automobile accident. Neither has our independent research discovered a similar case. Based on our complete review of the record, including the medical records and Ms. Broyard’s own testimony, we find the highest reasonable award for Ms. Bro-yard’s anxiety from the time of the accident until the EKG results is $2,000.

MARIE LOUISE BROYARD’S FIRST ASSIGNMENT OF ERROR: The Trial Court erred in not determining that Ms. Broyard’s knee injury was related to the collision.

The plaintiff in a personal injury case has the burden of proving by a preponderance of the evidence that it is more likely than not that her injuries resulted from an accident that was caused by the defendant’s fault. La.C.C. art. 2315; Mart v. Hill, 505 So.2d 1120, 1128 (La.1987); Creel v. S.A Tarver and Son Tractor Co., 537 So.2d 752 (La.App. 1 Cir.1988). Lawsuits may not be decided on mere speculation or suspicion. Id.

As the trial judge correctly observed in the reasons for judgment, there is no evidence that Ms. Broyard’s knee, ankle and wrist injuries were caused by the 114accident in question. Ms. Broyard denied during her direct examination that she had experienced any dizziness in the days after the automobile accident. Thus, from her own testimony, the trial court could conclude reasonably that Ms. Bro-yard’s fall at her daughter’s home was not caused by any dizziness associated with the automobile accident. On cross-examination, she testified that she has “definitely not” had any further problems since the accident with dizziness or vertigo. Likewise, the only testimony tending to show that Ms. Broyard’s fall on January 17 was caused by the accident in question was Ms. Broyard’s statement that she was “stiff all over” on January 17.

Ms. Broyard’s credibility was impeached on cross-examination when she denied having had any pre-accident neck or back problems. This testimony was contradicted by the records of the Ochsner Clinic that showed that she presented to the clinic on March 2, 1998 complaining of low back pain and on September 8, 1998 complaining of thoracic musculoskeletal pain between her shoulder blades. Her testimony denying pre-accident dizziness was contradicted by Ochsner records revealing that on August 31, 1998 she presented complaining of dizziness and had checked off on the history form “lightheadedness and dizziness.” According to the Ochsner records, she returned on September 8, 1998 again complaining of dizziness and probable vertigo, for which the physician suggested an MRI test. On December 8, 1998, Ochsner records indicate she was seen again complaining of vertigo. This complaint continued, according to Ochsner records, at visits on March 15,1999, March 29,1999 and April 5,1999.

|1BThe unanimous medical opinion was that the doctors could not say what caused Ms. Broyard to fall at her daughter’s home. Applying the Mart test, the record contains nothing more than Ms. Broyard’s speculation and suspicion that her fall was the result of the chest muscle injury she sustained two days earlier. The trial court was well within the limits of reasonableness in having found that Ms. Broyard failed to carry her burden of proving by a preponderance of evidence that her fall and its resultant injuries were caused by the previous automobile accident. Our review of the record in its entirety convinces us that the trial court’s findings are reasonable in light of that record.

We are instructed that before a fact-finder’s verdict may be reversed, we must find from the record that a reasonable factual basis does not exist for the verdict, and that the record establishes the verdict is manifestly wrong. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La.4/21/95), 654 So.2d 311, 314; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Although we accord deference to the fact finder, we are cognizant of our constitutional duty to review facts, not merely to decide if we, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745.

Our review of the deposition testimony of the three treating physicians together with the documentary evidence of Ms. Bro-yard’s post-automobile | ^accident treatment reveals no evidence that would connect the injuries sustained by Ms. Broyard on January 17 to the automobile accident.

When, as here, there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973).

A plaintiff is entitled to the presumption that her injuries resulted from an accident if she was in good health prior to the accident, and following the accident the symptoms of her disabling condition appeared and manifest themselves continuously afterwards, provided that the plaintiff has provided medical evidence showing a causal connection between the accident and the disabling condition. Housley v. Cerise, 579 So.2d 973, 980 (La.1991).

In order to receive the benefit of this presumption, Ms. Broyard had the burden of proving three elements: (1) her good health prior to the automobile accident; (2) continuously manifesting symptoms following the accident; and (3) medical evidence connecting the accident with the injuries.

| i7Ms. Broyard offered no medical evidence connecting her ankle, wrist and knee injuries to the automobile accident. The record of the emergency room physician clearly shows that Ms. Broyard made no claim of injury to her knee, to her wrist or to her ankle; her complaints were of generalized soreness and a sharp chest pain. The doctor’s physical examination revealed no fractures and no limps or other objective evidence of any injury to Ms. Bro-yard’s lower extremities. At the time of her discharge, the doctor observed no evidence of injury to the legs, anides, knees or wrist.

He testified that more probably than not the injuries to Ms. Broyard’s knee, ankle and wrist that he observed after Ms. Bro-yard’s fall at her daughter’s home were caused by the fall, and not by the automobile accident. Dr. Wilson, the orthopedist Ms. Broyard saw on January 20, 1999, testified similarly and opined that it was highly unlikely that the automobile accident precipitated or caused the knee fracture.

Ms. Broyard has not established entitlement to the Housley presumption, nor has she provided evidence that would demonstrate to a reasonable person a causal connection between the automobile accident and the knee, wrist and ankle injuries.

For the foregoing reasons, we conclude that the trial court’s determination that the automobile accident did not cause Ms. Broyard’s knee, wrist and ankle injuries is not manifestly erroneous or clearly wrong. Therefore, this assignment of error is without merit.

J^MARIE LOUISE BROYARD’S SECOND ASSIGNMENT OF ERROR: The Trial Court erred in dismissing National Casualty Company, the uninsured motorist carrier, from the litigation.

Ms. Broyard has not briefed this issue and, in accordance with Rule 2-12.4, we may consider it abandoned. However, we note from the record that National was dismissed because the amount recovered was within the policy limits of the primary policy. In light of our determination of Ms. Broyard’s first assignment of error and of Infinity’s first and second assignments of error, Ms. Broyard’s second assignment of error is moot.

CONCLUSION AND DECREE

For the foregoing reasons, we amend the judgment in favor of Ms. Marie Louise Broyard to award special damages in the amount of $150; general damages for past physical pain and suffering in the amount of $1,850; and general damages for past mental anxiety in the amount of $2,000, for a total of $4,000. We affirm the judgment of the trial court, as amended.

JUDGMENT AMENDED IN PART AND, AS AMENDED, AFFIRMED.

      . According to the trial court's reasons for judgment, Ms. Broyard was taken to Ochsner by ambulance; however, according to Ms. Broyard's uncontroverted testimony, she rode in the taxicab to the emergency room.

      . The Reasons for Judgment refer from time to time to "December 15” and “December 17”, but we conclude this to have been a typographical error. Uncontroverted evidence and argument refers to the accident in question's having occurred on January 15 and to the second accident's having occurred on January 17.

      . Ms. Broyard's appellate brief does not contain a specification or assignment of errors as required by Rule 2-12.4, Uniform Rules— Louisiana Courts of Appeal. We shall consider the “Issue Presented for Review” stated in brief to be Ms. Broyard’s assignment or specification of error.

      . See, LSA-Const. Art. 5, section 10(B).


author: 11 JAMES F. McKAY, III, Judge.

text:
    STATE of Louisiana v. Michael GILLAM.
    No. 2003-KA-0369.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 18, 2003.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Donna R. Andrieu, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appellant.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO JR.).
   11 JAMES F. McKAY, III, Judge.

The State of Louisiana takes this appeal from the trial court’s refusal to adjudicate Michael Gillam a multiple offender. For the reasons set forth below, we reverse the ruling of the trial court, enter an adjudication as a third felony offender, vacate the original sentence, and remand for resen-tencing as a third offender.

The State charged Michael Gillam with simple possession of cocaine, a charge to which he pled not guilty. On November 26, 2001, a jury found him guilty as charged. The court subsequently sentenced him to serve eighteen months at hard labor, and the State filed a multiple bill alleging Gillam was a third offender. The matter was reset several times, and on November 21, 2002, the State presented evidence in support of the multiple bill. The court took the matter under advisement, and on December 19, 2002, the court found the State failed to prove the allegations in the bill.

The facts of the underlying offense are unknown and immaterial to this appeal.

The State argues the trial court erred by finding it failed to prove the allegations of the multiple bill. The bill charged the defendant with having been convicted of two prior felony offenses: Case No.416-842“E”, possession of ^cocaine, to which he pled guilty on October 16, 2000; and Case No.353-566‘T”, distribution of cocaine, to which on January 19, 1993, he pled guilty to possession with the intent to distribute cocaine. At the multiple bill hearing the State presented a fingerprint expert who matched the fingerprints he- took of the defendant that day (exhibit S — 1) to the fingerprints found on two arrest registers: one from an arrest for possession of cocaine on August 30, 2000, (exhibit S-2) which the officer linked to certified documents in Case No.416-842“E” (exhibit S-3); and the other from an arrest for distribution of cocaine on September 7, 1991, (exhibit S-4) which he linked to certified documents in Case No.353-566“I” (exhibit S-5). Defense counsel objected to the match to the documents pertaining to Case No.353-566“I”, because the date of the offense listed in the bill of information in that case was October 31, 1991, more than a month after the date of the offense and the arrest listed in the arrest register in exhibit S-4. Defense counsel made no objection as to any of the documents pertaining to Case No.416-842“E”. The court took the matter under advisement, and it ultimately found the discrepancy between the date of the offense listed in the arrest register (exhibit S-4) and the bill of information (exhibit S-5) negated a finding that the defendant was a multiple offender.

The trial court erred by so holding. In State v. Henry, 96-1280 p. 7 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, 325-326, this court stated:

To obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. State v. Hawthorne, 580 So.2d 1131 (La.App. 4th Cir. 1991). Various methods are available to prove that the defendant on trial is the same person convicted of the prior felony offense, such as by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those of 13the person previously convicted, by photographs contained in a duly authenticated record, or by evidence of identical driver’s license number, sex, race and date of birth. State v. Westbrook, 392 So.2d 1043 (La.1980); State v. Curtis, 338 So.2d 662 (La.1976); State v. Pitre, 532 So.2d 424 (La.App. 1st Cir.1988), writ den. 538 So.2d 590 (La.1989); State v. Savoy, 487 So.2d 485 (La.App. 3rd Cir.1986). The mere fact that the defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity. Curtis, 338 So.2d at 664. In State v. Westbrook, 392 So.2d 1043 (1980), the supreme court found that along with defendant’s name, his driver’s license number, sex, race, and date of birth were sufficient evidence for the State to carry its burden of proving that this defendant was the same person previously convicted of another felony.

See also State v. Payne, 2001-1730 (La.App. 4 Cir. 3/20/02), 814 So.2d 617; State v. Chairs, 99-2908 (La.App. 4 Cir. 2/7/01), 780 So.2d 1088; State v. Davis, 98-0731 (La.App. 4 Cir. 10/20/99), 745 So.2d 136.

In the present case, the State introduced sufficient evidence to show the defendant was the same person convicted in both prior offenses. With respect to Case No.416-842“E”, to which the defendant made no objection at the hearing, the nature of the offense, the date of offense, the offender’s name, the offender’s date of birth, the offender’s address, and the folder number are the same on the arrest register as those reflected in the bill of information and the docket master. In addition, the officer matched the fingerprints found on the arrest register to those he took of the defendant on the date of the multiple bill hearing. Thus, the State showed the Michael Gillam convicted in Case No.416-842“E” was the same as the present defendant. Furthermore, after a review of the Plea of Guilty Form or Boy-kin form, dated and signed by the defendant on October 16, 2000, we find it to be sufficient. Therefore, the trial court clearly erred by finding the State did not prove. the allegation of the multiple bill as to this prior offense.

| ¿With respect to Case No.353-566‘T”, to which the defendant did object, the date of the offense listed in the arrest register did not match that alleged in the bill of information. However, the nature of the offense, the offender’s name, the offender’s date of birth, the offender’s address, and the folder number are the same on the arrest register as those reflected in the bill of information and the docket master for that case. In addition, the officer matched the fingerprints found on the arrest register to those he took of the defendant on the date of the multiple bill hearing. It is apparent that the date of the offense as listed in the bill of information was a clerical error. The date of the offense should read 10/31/90 and not 10/31/91. This fact is easily discernable by a review of the item number on the arrest registry, which is J4070990. This clerical error is harmless and in no way prejudiced the defendant’s rights. This confusion was not such as to prevent the State from meeting the burden of proving the validity of the prior guilty plea. After carefully reviewing the Plea of Guilty Form or Boy-kin form signed by the defendant and dated January 19, 1993, we find it to be sufficient. Thus, as per Henry and its progeny, we find the State adequately proved the defendant was the same Michael Gillam who was convicted in Case No.353-566“I” as well.

The trial court erred by finding the State failed to prove the allegations of the multiple bill. Accordingly, we reverse the ruling as to the multiple bill, enter an adjudication as a third offender, vacate Gillam’s original sentence, and remand the case for resentencing as a third felony offender consistent with this opinion.

JUDGMENT REVERSED, SENTENCE VACATED AND REMANDED FOR RESENTENCING.


author: LSUSAN M. CHEHARDY, Judge.

text:
    Lula GRIFFIN and Genelle Labranch v. Philip KURICA, His Insurance Company, American National Property & Casualty, Daniel Kurica, and His Unknown Insurance Company, ABC Insurance Company. Danette M. Brignac and Richard J. Brignac v. Daniel Kurica, Phillip Kurica, and His Liability Insurance Carrier, American National Property and Casualty Company.
    Nos. 03-CA-190, 03-CA-191.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Fred R. DeFrancesch, LaPlace, LA, for Lula Griffin and Genelle Labranche, Plaintiffs-Appellants.
    Steven B. Witman, Valerie Theng Math-erne, Metairie, LA, for American National Property and Casualty Company, Defendant-Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   LSUSAN M. CHEHARDY, Judge.

This is a suit arising from a 1997 multiple-ear rear-end collision, in which the plaintiffs seek an increase in the quantum awarded them by the trial court. We affirm the trial court’s award, for the reasons that follow.

The accident occurred on December 31, 1997 on Main Street in St. John the Baptist Parish. A vehicle owned by Phillip Kurica and being driven by Daniel Kurica struck the rear of a car in a line behind a car that was waiting to turn. The car waiting to turn — the first car in the line— was being driven by Lula Griffin with her daughter, Genelle Labranche, as passenger. The Kurica vehicle’s action caused a domino-effect chain reaction through the line of cars and the Griffin vehicle was struck by the car immediately behind it.

Griffin and Labranche complained of injuries. They filed suit in September 1998, but the matter did not go to trial until July 10, 2001, when a bench trial resulted in judgment in favor of the plaintiffs. The trial court awarded Lula Griffin damages in the amount of $11,458.00, consisting of $8,458.00 in special damages 13and $3,000.00 in general damages. The court awarded Genelle Labranche $11,878.91, comprising $7,578.91 in special damages and $4,800.00 in general damages.

In Reasons for Judgment contained within the judgment, the trial court commented:

Lulu [sic] Griffin testified that she was injured in the accident. She saw Dr. Robert Dale, DC and Dr. Stewart Phillips as a result of the accident. Plaintiff incurred hospital, MRI, ambulance, towing and medicine bills as well. The doctors related the condition to the accident. The court notes the large gaps in treatment which reflects directly upon the award herein.
Genelle Labranche also testified that she was injured in the accident; she was a passenger in the Griffin vehicle. She also saw Dr. Robert Dale, DC and Dr. Stewart Phillips as a result of the accident. Plaintiff incurred hospital, MRI, ambulance, and medicine bills as well. The doctors related the condition to the accident. The court notes the large gaps in treatment which reflects directly upon the award accordingly. The court is skeptical as to the extent of damage caused by the impact upon this witness also.
The court finds that Phillip Kurica Jr. is the legal cause-in-fact of the accident and collisions herein. He is apportioned 100% of the fault herein. His actions alone were the cause in fact of the acci-dentes). The plaintiffs have met the requisite burdens of proof regarding causation and damages, by a preponderance of the evidence. The vehicles ahead of Kurica were all at rest as Kuri-ca approached from behind. He breached his duty to exercise reasonable care in the circumstances. Defendant offered no defense in the case at bar.

On appeal the plaintiffs take issue with the amount of general damages awarded them and with the lack of an award of “future damages.”

Genelle Labranche asserts her injuries consist of C4-5, C5-6 and C6-7 protrusion of disc material; herniation at L4-5, L5-Sl; and projection of disc material into the thecal sac at LI and L2, with chronic cervical strain and a lumbar herniation, resulting in permanent disability.

| ¿Lula Griffin enumerates her injuries as an L5-S1 herniation of the extended type, with disc material protruding through the posterior fibers of the disc annulus; anxiety that prevented her from completing the cervical spine MRI; with a herniated lumbar disc and ongoing cervical problems.

Plaintiffs complain the trial judge erred in stating he was “skeptical,” when the uncontradicted reports of Dr. Phillips support plaintiffs’ claims that their injuries are related to the accident made the basis of this suit. Alternatively, plaintiffs assert that “skeptical” means the judge was not sure and, under these circumstances, the plaintiffs should get the benefit of the doubt. They contend the value of the injuries sustained must be based on the medical findings and conclusions and the judge’s acquiescence therein.

Plaintiffs assert that the jurisprudence regarding similar injuries supports an award exceeding $50,000.00.

In their brief defendants contend the trial court was correct in its assessment of damages to plaintiffs, because the court’s findings were based on reasonable factual grounds and may not be reversed absent manifest error.

Plaintiffs’ vehicle, as shown in photographs to which the parties stipulated, shows very little damage. As the trial judge emphasized, Labranche had large gaps in her treatment: she was treated at River Parishes Hospital on the date of the accident, but did not seek further treatment for approximately one month after the accident, when she was treated by a chiropractor, Dr. Robert Dale.

Her chiropractic treatment was sporadic, however, and at times she had only three physical therapy sessions within a month, at other times none during an entire month. Her last visit to the chiropractor was in August 1998.

Labranche visited the New Orleans Orthopedic Clinic in August and November 1998; her next medical treatment was not until February 2000, when |Bshe went to Louisiana Clinic. At that time examination revealed only mild spasm; the straight leg test was normal.

Labranche’s 1998 MRI of her cervical and lumbar spine revealed a 1-2 mm and posteriolateral bulging with no evidence of disc herniation; there was a partial narrowing of the disc space at Ll-2, with 1 mm or so anterior and posterior bulging, but no focal prominence to indicate actual disc herniation. Although the radiologist noted a “vague crescent” of dark signal projecting within the thecal sac at the Ll-2 level, which looked like a large central posterior herniation, he did not think it was a real finding because if she had such a herniation it would be “quite obvious in the sagittal perspective,” but it is not. He noted further that there is also partial degenerative narrowing of Ll-2 and T12-L1 with disc dehydration but no actual disc herniation.

In addition, Labranche was in a prior automobile accident in 1996, after which she was treated at the same chiropractic clinic for neck and back injuries.

The trial court also mentioned the large gaps in treatment of Lula Griffin. Like Labranche, she was treated at River Parish Hospital following the accident, but did not seek further treatment until approximately a month later. Her chiropractic treatment also was sporadic and she rarely had more than two or three visits a month. She also had significant gaps in treatment at Louisiana Clinic, with gaps up to seven months and even a year between visits.

The radiologist noted in his report on the MRI that Griffin had disc dehydration and degeneration at L5-S1. The orthopedist, Dr. Stuart Phillips, stated that disc herniations can be traumatic or they can be non-trauma-related. He indicated that a woman in her sixties such as Griffin could have herniation as a result of disc degeneration. Further, there were significant degenerative changes in her other lumbar discs. Dr. Phillips agreed that Griffin’s L5-S1 herniation also | ficould have resulted form the degenerative process, which would be clearly evidence at that level and for a woman of her age.

In addition, Dr. Phillips diagnosed Griffin with Scheuermann’s Kyphosis, a developmental condition that is hereditary, occurs in adolescence, and is accompanied by arthritis that usually affects the thoracic and lumbar spine. In addition, she has idiopathic scoliosis, a degenerative inter-vertebral disc disease and degenerative joint disease of the spine.

[A]n appellate court may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

There is a two-part test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State, 617 So.2d 880, 882 (La.1993).

An appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Dep’t. Ambulance Serv., 93-3099, p. 6 (La.7/5/94), 639 So.2d 216, 221.

Where there is conflict in the testimony, reasonable determinations of credibility and reasonable inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978).

The reasons for these well-settled principles of review are not only the trial court’s better capacity to evaluate live witnesses, as compared to the appellate |7court’s access only to a cold record, but also the proper allocation of trial and appellate function between the respective courts. Pinnsoneault v. Merchs. & Farmers Bank & Trust Co., 01-2217, p. 11 (La.4/3/02), 816 So.2d 270, 279.

Applying these principles of law to the facts of this case, we find no manifest error nor abuse of discretion in the trial court’s determinations. The impact caused very little damage to plaintiffs’ vehicle. Plaintiffs had substantial gaps in treatment for soft-tissue injuries. The judgment is based on reasonable credibility determinations and factual evaluations. Accordingly, we find no basis on which to disturb the judgment.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellants.

AFFIRMED.

      . This case was consolidated in the district court with another suit arising out of the same accident, but that case settled on the date of trial. Although the companion case was lodged as a consolidated case with the instant matter, it is not before us on this appeal. Brignac v. Kurica, No. 03-CA-191 on the docket of this Court and No. 39367 on the docket of the 40th Judicial District Court.

      . The second plaintiff's last name was erroneously spelled "Labranch” in the original petition, although the correct spelling is "La-branche,'’ which is how it is spelled in the subsequent pleadings. Because the record bears the incorrect version of the name in the caption, for consistency in record-keeping we have retained it for the case caption in this Court, but will use the correct spelling in the body of the opinion.