author: | í THOMAS F. DALEY, Judge.

text:
    Arvind SHAH, Husband of/and Ranjan Shah v. JEFFERSON PARISH HOSPITAL DISTRICT NO. 2 PARISH OF JEFFERSON, STATE OF LOUISIANA D/B/A East Jefferson General Hospital, Dr. Richard Eno, Dr. Richard H. Tupler of The Radiology Department of East Jefferson General Hospital, and American Continental Insurance Company.
    No. 03-CA-1465.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 13, 2004.
    Rehearing Denied May 6, 2004.

      Kevin D. Shearman, Metairie, LA, for Plaintiffs/Appellants.
    Thomas P. Anzelmo, Catherine M. Williams, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell, & McDaniel, Metairie, LA, for Defendant/Appellee, East Jefferson General Hospital.
    Kurt S. Blankenship, Robert I. Baudouin, Metairie, LA, for Defendant/Appel-lee, Dr. Richard Deno.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   | í THOMAS F. DALEY, Judge.

The plaintiffs have appealed the trial court’s grant of summary judgment in favor of the defendants in this medical malpractice case. For the reasons that follow, we affirm in part and reverse in part.

FACTS:

Plaintiff, Arvin Shah, presented to the emergency room of East Jefferson General Hospital (East Jefferson) on November 30, 1997 after falling off of a ladder. He was examined by the defendant, Dr. Richard Deno. Dr. Deno noted that Mr. Shah complained of pain in his left hip and an x-ray of the left hip was ordered. The x-ray was performed and interpreted by Dr. Richard Tupler. Dr. Deno was informed that the x-ray did not show a fracture and Mr. Shah was discharged from the hospital with a diagnosis of thigh sprain and contusion of the left hip. Over the next two weeks, Mr. Shah continued to experience pain in his left hip. He was examined by Dr. Keith Larkin on December 17, 1997 who performed another x-ray of Mr. Shah’s left hip and diagnosed Mr. Shah as having a | ¡.left femoral hip fracture. Mr. Shah was admitted to the hospital and taken to surgery where the fracture was pinned.

Mr. and Mrs. Shah filed suit against Drs. Deno and Tupler as well as the hospital. Dr. Deno and the hospital filed motions for summary judgment. Two separate hearings were held on the respective motions for summary judgment. The trial judge took both motions under advisement. On March 28, 2002, the trial court rendered judgment granting Dr. Deno’s Motion for Summary Judgment finding that the medical review panel found that Dr. Deno did not deviate from the applicable standard of care and that plaintiffs failed to present any expert testimony to establish that Dr. Deno breached the standard of care. On March 28, 2002, the trial court rendered judgment granting East Jefferson’s Motion for Summary Judgment finding that there are no genuine issues of material fact in dispute and the plaintiffs failed to produce factual support or an expert to show a breach of the standard of care on the part of East Jefferson . It is from these judgments that plaintiffs have appealed.

LAW AND DISCUSSION:

On appeal, plaintiffs argue that the trial court erred in finding that they did not present sufficient expert testimony to defeat defendants’ motions for summary judgment. Specifically, plaintiffs point to the deposition testimony of Dr. Deno and Dr. Larkin that was submitted with their opposition. Both of these physicians testified that the fracture was visible on the East Jefferson x-rays. Plaintiffs also point to their submission of an affidavit from an expert neuroradiologist stating |sthat the fracture was visible on the East Jefferson x-rays and that the fracture “should have been diagnosed by East Jefferson Hospital.”

Louisiana Code of Civil Procedure Article 966 explains that summary judgment procedure is “designed to secure the just, speedy, and inexpensive determination of actions.” It is favored and shall be construed to accomplish these ends. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue of material fact and mover is entitled to judgment as a matter of law. The article further provides that if movant will not bear the burden of proof at trial, movant’s burden does not require him to negate all essential elements of the adverse party’s claim. Rather, he need only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Finally, the statute provides that if the adverse party fails to produce factual support to show that he will be able to satisfy his burden of proof at trial, there is no genuine issue of material fact.

It is well settled that appellate courts review summary judgments de novo, using the same criteria applied by the trial court to determine whether summary judgment is appropriate. Fleming v. Hilton Hotels Corp., 99-1996 (La.App. 4 Cir. 7/12/00), 774 So.2d 174. Any decision as to the propriety of a grant of the motion must be made with reference to the substantive law applicable to the case. Johnson v. Hernandez, 01-575 (La.App. 5 Cir. 10/30/01), 800 So.2d 1055.

Pursuant to LSA R.S. 9:2794, in order to prevail at trial plaintiffs must prove the applicable standard of care, a breach of that standard, and causation of injuries due to the breach. To defeat defendants’ Motions for Summary Judgment, plaintiffs must come forward with sufficient evidence to show they can meet their burden of proof at trial.

|4In his Motion for Summary Judgment, Dr. Deno attached the medical review panel opinion, the emergency room records, plaintiffs’ answers to interrogatories stating that they do not have an expert, and Dr. Larkin’s deposition. The medical review panel opinion states that the evidence does not support the conclusion that Dr. Deno failed to meet the applicable standard of care because Mr. Shah did not have the classic presentation of a hip fracture, the appropriate x-rays were ordered and read by a radiologist as being negative for fracture, Mr. Shah was discharged with appropriate instructions, and Dr. Deno’s judgment to defer to the radiologist was reasonable. The emergency room records indicate that Mr. Shah complained of left hip tenderness with full range of motion and that an x-ray was performed that was read as negative. Dr. Larkin testified that Mr. Shah presented to his office on December 17, 1997 and he diagnosed a femoral hip fracture. He admitted Mr. Shah to the hospital where Mr. Shah was taken to surgery and three pins were placed in his hip. Dr. Larkin noted that the fracture was more clearly visible on the x-ray films taken at East Jefferson on November 30, 1997 than it was on the x-ray films taken on December 17, 1997. However, Dr. Lar-kin testified that Mr. Shah’s course of treatment would have been the same whether the fracture was diagnosed on November 30th or December 17th.

In opposition to Dr. Deno’s Motion for Summary Judgment, plaintiffs attached the deposition testimony of Dr. Deno. Dr. Deno testified that in November 1997, the protocol for taking and reading x-rays for a patient in the emergency room was for the patient to go to the radiology department for the x-ray to be taken. If there was a radiologist in the hospital, the radiologist read the x-ray. The x-ray was then sent to the emergency department in a jacket with the reading on the front of the jacket. In Mr. Shah’s case, there was a radiologist in the hospital who read the x-ray and the x-ray film was returned to the emergency room in a jacket with the reading attached to the front of the jacket. The reading on Mr. LShah’s x-ray jacket said “negative”. Dr. Deno testified that he probably did not view the x-ray himself. In the deposition, Dr. Deno was asked to view the x-ray. He testified that the fracture of the femoral neck was visible on the x-ray taken at East Jefferson.

On appeal, plaintiffs argue that the trial judge erred in granting Dr. Deno’s Motion for Summary Judgment when he presented testimony from three experts, (Drs. Deno, Larkin, and Armington) stating that the fracture was visible on the East Jefferson x-rays. Pursuant to LSA R.S. 9:2794, in order to prevail at trial plaintiffs must prove the applicable standard of care, a breach of that standard, and causation of injuries due to the breach. Dr. Deno presented the medical review panel opinion to support his position that he did not breach the standard of care. The medical review panel concluded that Dr. Deno ordered appropriate x-rays that were read by a radiologist as being negative for a fracture. The panel further found that Dr. Deno’s judgment to defer to the radiologist was reasonable. In order for plaintiffs to Dr. Deno’s Motion for Summary Judgment, plaintiffs had to produce factual support sufficient to establish they will be able to satisfy their evidentia-ry burden of proof at trial, i.e. that Dr. Deno breached the standard of care. Plaintiffs have presented testimony that the fracture was visible on the East Jefferson x-ray but they have not presented any evidence that the failure of Dr. Deno to identify the fracture was a breach of the standard of care. Plaintiffs presented no evidence to show that Dr. Deno breached the standard of care by not reviewing the x-ray film himself after Dr. Tupler reviewed the film. For this reason, the summary judgment granted in favor of Dr. Deno is affirmed.

In support of its Motion for Summary Judgment, East Jefferson submitted the medical review panel opinion that stated that there was nothing presented to the panel to indicate that the hospital or its employees deviated from the standard of care. The hospital also attached the contract between the hospital and Delta | (¡Radiology, Ltd. to support its position that Dr. Tupler was not an employee of the hospital. Plaintiffs’ responses to the hospital’s interrogatories wherein plaintiffs stated that they had no experts to testify were also attached to the motion.

In opposition to the hospital’s Motion for Summary Judgment, plaintiffs submitted the deposition testimony of Dr. Larkin. Dr. Larkin’s deposition testimony is as discussed above. The contract for radiology services between the hospital and Delta Radiology, Ltd. was attached to support plaintiffs’ contention that Dr. Tupler was employed by the hospital. Plaintiffs also attached an affidavit from William Arming-ton, a neuroradiologist, who attested that he reviewed the x-rays taken of Mr. Shah’s hip at East Jefferson on November 80, 1997 and that these x-rays “clearly show a non-displaced fracture of the left hip that should have been diagnosed by East Jefferson General Hospital.”

There is no indication in the record that the trial court considered the issue of whether Dr. Tupler is an employee of the hospital. The record indicates that the negligence of Dr. Tupler has not been established. If Dr. Tupler is found to be negligent whether or not East Jefferson is liable for his negligence depends on whether Dr. Tupler is found to be an employee of the hospital. Thus, the issue of whether Dr. Tupler was an employee of East Jefferson is a material issue of fact.

At the time of this incident, Dr. Tupler was working at East Jefferson as per a contract between the hospital and Delta Radiology, Ltd. The relationship between Dr. Tupler and Delta Radiology, Ltd. is not clear. The contract purports to establish an independent contractor relationship between the radiologists and the hospital. An independent contractor agreement is not dispositive of the issue of whether a doctor is an independent contractor or an employee of the hospital. Powell v. Fuentes, 34,666 (La.App. 2 Cir. 5/9/01), 786 So.2d 277. In deciding this issue, the courts look to the degree of control exercised over the doctor’s activities. Id. Whether an employee/employer relationship or an independent 17contractor relationship exists is a factual determination to be decided on a case-by-case basis. Id.

The contract between East Jefferson and Delta Radiology, Ltd. reflects that Dr. Tupler was required to comply with the policies and procedures of East Jefferson and that East Jefferson provided all equipment and ancillary personnel to the radiologists working at East Jefferson. The group could not provide radiology services to any other hospital and the hospital collected fees for all technical and professional services rendered by the radiologists.

The contract alone is not clear as to the real relationship between Dr. Tupler and East Jefferson and the degree of control the hospital exercised over Dr. Tupler. Thus, we find the trial court erred in granting summary judgment in favor of East Jefferson because there is an issue of fact as to whether or not Dr. Tupler was an employee of the hospital.

Additionally, once the negligence of Dr. Tupler is determined and the nature of the relationship between Dr. Tupler and East Jefferson is established, there is an issue of fact as to what damages, if any, Mr. Shah suffered as a result of the delay in diagnosing the fracture.

For the foregoing reasons, the summary judgment granted in favor of Dr. Deno is affirmed. The summary judgment granted in favor of Dr. Tupler is reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART AND REVERSED IN PART.

      . Due to a clerical error, plaintiffs’ attorney did not receive notice that the judgments were rendered. Plaintiffs filed a Motion for New Trial explaining that plaintiffs’ attorney did not receive the judgments until October 17 and 18, 2002. This is supported by the record. The trial judge allowed plaintiffs to file motions for new trial but denied these motions following a hearing. Plaintiffs timely filed this appeal following the denial of their motions for new trial.


source: Caselaw Access Project

author: hBROWN, C.J.

license: Public Domain

text:
    DISCOVER BANK f/k/a, et al., Plaintiffs-Appellees v. Charles R. PETERS aka Randall C. Peters, Defendant-Appellant.
    No. 38,366-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2004.

      Charles C. Peters, in Proper Person, Appellant.
    Peter S. Thriffiley, New Orleans, for Appellee.
    Before BROWN, CARAWAY, and PEATROSS, JJ.
   hBROWN, C.J.

Petitioner, Discover Bank, obtained a default judgment against defendant, Charles R. Peters a/k/a Randall C. Peters (“Peters”). Peters appeals the denial of his motion for new trial. We affirm.

Factual and Procedural Background

On May 12, 2003, this petition was filed to collect the unpaid balance of $16,256.25 on a credit card issued to defendant by Discover Bank. An account manager’s affidavit, account summary from March 13, 2003, showing the outstanding balance, a copy of Peters’ cardholder agreement with Discover Bank, and a request to Peters for admissions of fact were attached to the petition. The record reflects that the petition was personally served on Peters by a deputy sheriff on May 14, 2003.

On May 19, 2003, Peters, representing himself, filed a document in the district court with the lengthy caption “Pleading Of Special Matter Pursuant To Civil Rule 9; Defendant’s Motion For Extension To Respond Pending Discovery (Condition Precedent) So That Affirmative Defenses Can Be Asserted; Defendant’s Demand For Production Of Documents So That Affirmative Defenses Can Be Effectively And Properly Asserted.” The document does not admit or deny the allegations of the petition, does not state any facts upon which any defenses may have been based, and does not raise any affirmative defense. Peters’ pleading also included sections captioned “Notice of Potential Civil Rights Violation” and “Notice of Potential Violation of Federal Criminal Law.”

|¡,On June 11, 2003, plaintiff took a preliminary default judgment against Peters. On June 17, 2003, plaintiffs attorney mailed a notice to Peters informing him of the preliminary default and further informing him that plaintiff planned to confirm the default in accordance with the law. Peters received this notice by certified mail on June 20, 2003.

On July 10, 2003, plaintiff presented the court with a statement of account, an affidavit of correctness of account and nonmilitary service, and a proposed judgment by default. Attached to the judgment was a certificate of plaintiffs attorney affirming that: (1) the account sued upon was an open account; (2) the attorney fees requested were contractual in nature; (3) defendant was served personally on May 14, 2003; and (4) a preliminary default was entered on June 11, 2003.

At the bottom of this certificate was a “Certificate of Clerk” which reads “I certify that I have reviewed the record in the above captioned matter and as of this date, no answer, exception or opposition has been filed by any party hereto.” This clerk’s certificate, however, was neither signed nor dated.

Also attached to the plaintiffs proposed judgment were numerous supporting documents including: (1) an affidavit from plaintiffs counsel concerning the time spent on the matter, (2) an affidavit of a DFS account manager verifying that Peters owed $16,256.25 on his account, (3) a copy of Peters’ application for his Discover card, (4) an affidavit of plaintiffs counsel that he had sent a notice to Peters of the default judgment, that Peters received the notice on June 20, 2003, and that seven days had elapsed since Peters’ receipt of notice, (5) a demand letter to Peters from March of 2003, and (6) another copy of Peters’ March 13, 2003, statement of ae-count. 13 The court signed the default judgment. Thereafter, on July 22, 2003, Peters filed a motion for new trial which the trial court denied on September 9, 2003. This appeal ensued.

Applicable Legal Principles

The law and procedures relative to the taking of default judgments in suits on an open account without a hearing are set forth in La. C.C.P. arts. 1701, 1702, and 1702.1. At the time this suit was filed, these articles provided, in pertinent part:

Art. 1701. Judgment by default
A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.
* * *
Art. 1702. Confirmation of default judgment
A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
B. (3) When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.
C. In those proceedings in which the sum due is on an open account ... a hearing in open court shall not be required unless the judge, in his discretion, directs that such a hearing be held. |/The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been ñled by the defendant. The minute clerk shall make an entry showing the dates of receipt of proof, review of the record, and rendition of the judgment. A certified copy of the signed judgment shall be sent to the plaintiff by the clerk of court. (Emphasis Added).
Art. 1702.1. Confirmation of default judgment without hearing in open court; required information; certifications
A. When the plaintiff seeks to confirm a default judgment as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include, in an itemized form with the motion and judgment, a certification that the suit is on an open account ... and that the necessary invoices and affidavit ... are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and that a copy of the demand letter and the return receipt showing the date received by the debtor are attached and that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was filed.
B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other opposition has been filed (Emphasis Added).

Discussion

In reviewing a default judgment, an appellate court is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. The presumption that the default judgment was rendered upon sufficient evidence and is correct does not apply where, as in the present case, the testimony is transcribed and contained in the record. In such a case, the reviewing court is able to determine from the record whether the evidence upon which the judgment was based was sufficient and competent. |B Crump v. Bank One Corp., 35,990 (La.App.2d Cir.05/08/02), 817 So.2d 1187; Carroll v. Coleman, 27,861 (La.App.2d Cir.01/24/96), 666 So.2d 1264; Meshell v. Russell, 589 So.2d 86 (La.App. 2d Cir.1991).

In order for a plaintiff to obtain a default judgment and confirmation thereof, he must establish the elements of a prima facie case. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La.1993). A “prima facie case” is established when the plaintiff proves the essential allegations of the petition, with competent evidence, to the same extent as if the allegations had been specifically denied. C.L. Morris v. Southern American Insurance Company, 550 So.2d 828 (La.App. 2d Cir.1989).

On appeal, Peters raises several arguments challenging the jurisdiction of the trial court over him and over the subject matter of this dispute. We find these arguments to be without merit. The district court is a court of general jurisdiction. Suits on open account clearly fall within this jurisdiction, and service of process was accomplished upon the defendant in accordance with the law. Defendant’s pleading did not amount to an answer in that it did not fulfill the requirements of La. C.C.P. arts. 1003 and 1004 and did not contain any order with regard to his request for additional time to answer. The trial court is not required to allow a defendant additional time to answer. La. C.C.P. art. 1001.

Likewise, there is no merit to defendant’s argument that he was entitled to a hearing prior to the rendition of judgment. La. C.C.P. art. 1702(C) explicitly allows a default matter to proceed without a hearing. Further, Peters’ complaint that DFS had no standing is without merit; the 1 (¡petition referred to DFS as the agent of Discover Bank and Peters did not challenge the authority of DFS with a timely exception. See La. C.C.P. art. 700. Finally, plaintiff had the right to bring this suit in Louisiana notwithstanding the absence of a license for Discover Bank or DFS to do business in Louisiana. See La. R.S. 12:302(G).

Although this point was not argued, we note that the certificate by the Clerk of Court was not signed. In Ruston State Bank & Trust Co. v. Streeter, 545 So.2d 1255 (La.App. 2d Cir.1989), this court affirmed a default judgment which failed to contain mandatory certifications when the attorney offered the entire record of the proceedings as the evidence in support of the judgment. In Ruston State Bank & Trust Co., 545 So.2d at 1258, this court said, “Each element of proof necessary to meet the codal requirements for confirming a default judgment without a hearing is contained in the record ... [T]he fact that plaintiffs counsel submitted the evidence in this manner rather than separately certifying the facts which constitute the necessary evidence and attaching these documents to the motion for confirmation is of no moment.”

The record is a part of the proceedings, and it is not necessary for an attorney to specifically state that it is offered into evidence. We can see from the record that what defendant filed was not an answer. Further, there was no misunderstanding as defendant received a letter by certified mail from plaintiffs attorney explaining that a preliminary default was entered and that a confirmation of that default would follow. Plaintiff waited an 17appropriate and discreet time before proceeding with a confirmation of the default.

AFFIRMED.

      . Named as petitioner was Discover Bank Pk/a Greenwood Trust Company, Issuer of the Private Issue Card (“Discover Bank”), by its servicing agent, Discover Financial Services, Inc. (“DFS”).

      . We reject the contrary view expressed by the court in Lonergan v. Metlife, 98-767 (La. 5th Cir.02/10/99), 729 So.2d 81.


author: 1 .BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Terry Dale TILMON, Appellant.
    No. 38,003-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2004.
    Rehearing Denied June 17, 2004.

      Terry Dale Tilmon, in Proper Person.
    Paula Corley Marx, Peggy J. Sullivan, Louisiana Appellate Project for Appellant.
    Paul J. Carmouche, District Attorney, J. Thomas Butler, Yolanda W. Mitchell, Laura O. Wingate, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS, and DREW, JJ.
   1 .BROWN, C.J.

Defendant, Terry Dale Tilmon, was charged with simple burglary. He was tried by a six-person jury and convicted as charged. Thereafter, he was adjudicated to be a third felony offender and sentenced to 24 years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals. We affirm.

Facts

Defendant was charged by bill of information with the simple burglary of a vehicle owned by Kathleen Fetsch on June 26, 1999. The crime occurred in the parking lot of a public park commonly known as the “Duck Pond” located on East Kings Highway in Shreveport, Louisiana. On that day at about five o’clock in the afternoon, Sherelle Netter, who at the time was employed with the Shreveport Police Department as a 911 operator, parked her vehicle at the Duck Pond to look at a real estate book. Parked on the passenger’s side of Ms. Netter’s vehicle was a silver/gray car. Ms. Netter noticed a maroon Lincoln Town Car enter the parking lot and park on the other side (the driver’s side) of her car. She saw the right side of the driver’s face and observed that he was a black man. She could see nobody else in the Lincoln. The maroon Lincoln changed parking spaces, moving next to the silver/gray vehicle. Ms. Netter thought it was odd and looked over at the left side of the driver’s face. The man got out of his car with a fishing pole and walked down to the pond. He later returned to the parking lot without the fishing pole. Ms. Netter observed the man walk between the maroon Lincoln and the silver/gray vehicle, at which time he bent over and began “messing” with the door handle of the passenger | ¡.side of the silver/gray vehicle. She saw the man’s hands on the windowsill of the silver/gray car. Ms. Netter then telephoned 911 and reported the entire incident as it transpired.

Ms. Netter watched the man get a crowbar/tire tool from the Lincoln and smash out the passenger side window of the silver/gray car. Ms. Netter then pulled her vehicle out of the parking lot and drove directly across East Kings Highway onto Atlantic Street to get a better look at the maroon Lincoln and to see if she could get the license tag number to report to the police (she was unable to do this). She parked in a driveway on Atlantic Street and observed that the man was inside the silver/gray vehicle. She saw the vehicle’s trunk open and watched the man take a light-colored object out of the trunk. Ms. Netter reported to the 911 operator that the man had a medium complexion, was wearing a gray shirt, khaki shorts, flip-flop type shoes, and glasses, and did not have a gun.

Sergeant J.D. Reich of the Shreveport Police Department testified that he arrived at the Duck Pond as the Lincoln was attempting to leave the parking lot. Sgt. Reich pulled into the lot and got out of his police car. He ordered the man, who was the only occupant, to stop, but the man drove away. Sergeant Reich testified that he had to move out of the way to keep from being hit by the fleeing vehicle.

Detective Lane Smith testified that he heard the police radio broadcast about the burglary which described the man as dressed in gray, armed with a gun, and driving a maroon four-door Lincoln. Detective Smith observed the Lincoln pull out of the parking lot, and he pursued the |3vehicle at speeds of up to 120 miles per hour from East Kings Highway until the driver’s apprehension. The driver of the Lincoln stopped in the Jackson Heights projects and fled on foot carrying a purse. According to Detective Smith, the driver was wearing a white or off-white t-shirt and khaki shorts. During the chase, the driver threw the purse onto a porch surrounded by decorative wrought iron. Detective Smith testified that he never lost sight of the driver during the chase. When the driver was apprehended on Allen Avenue, Detective Smith returned to where the purse had been discarded and recovered the handbag. Detective Smith made an in-court identification of defendant as the person he had chased and as the man who had been in possession of the purse. The recovered handbag was identified by the victim, Kathleen Fetsch, as hers, and it contained her personal effects.

Officer Harry D. Brown of the Shreveport Police Department was also involved in the high-speed pursuit of the Lincoln. He saw the driver, a black male, exit the car wearing a light-colored shirt and brown shorts and carrying what looked to be a brown purse. Officer Brown lost sight of the driver as he fled on foot. Once the driver was in custody, Officer Brown stated that he returned to the Duck Pond to transport Ms. Netter and the Fetsches to the police station.

When the chase started, Ms. Netter returned to the Duck Pond and located Kathleen Fetsch. The police requested that Ms. Netter and Mrs. Fetsch come to the police station. At the police station, Ms. Netter was 14taken down the hall and asked to look into a room at a man. The man was handcuffed and seated at a table. Ms. Netter observed the left side of his face for about 15 or 20 seconds. Ms. Netter later positively identified the man in the room to Detective Lane Smith as the same man she saw commit the burglary. The man in custody was wearing a gray shirt and glasses and had a medium complexion.

At trial, Ms. Netter made an in-court identification of defendant as the man she saw at the Duck Pond and as the man she identified at the police station. On cross-examination, Ms. Netter was asked whether she observed any scars or tattoos. Ms. Netter replied that she did not because things were “going so fast and so split-second,” she didn’t have a chance to notice “all of that.” Ms. Netter was asked to note from her observance in court that defendant has a burn mark or scar that covers the majority of the right side of his face. When questioned about why she did not notice the scar on the day of the crime, Ms. Netter explained again that “everything happened so fast.” Ms. Netter also explained that she did not notice the defendant’s scar at the police station because she only saw the left side of his face. Ms. Netter was shown the defendant’s tattooed forearms in court, and stated that she did not notice any tattoos on the man at the Duck Pond because she was looking at his face.

lñThe victim, Kathleen Fetsch, testified that on the day of the crime, she and her husband took their grandchildren to the Duck Pond to play. They drove her 1998 gray Honda Accord. She locked the doors of her car, and they went to feed the ducks. Mrs. Fetsch stated that defendant did not have permission to enter her car or to take her tan/brown purse out of the trunk of her Accord.

The defense introduced an affidavit signed by Ronald J. White on January 15, 2001. In this affidavit, White stated that he committed the instant crime without defendant’s knowledge or participation, drove the Lincoln while defendant was asleep, and broke into the vehicle and took the purse from the trunk. The affidavit stated that in the process, White cut his finger, put the purse under the seat of the Lincoln, and went to wash his hands at the park restroom. When he returned to the parking lot, defendant and the car were gone. White’s signature was notarized by attorney Sam P. Love, Jr. At trial, Love testified that he did not prepare the document, which was brought to his office by defendant’s brother, Wallace Tilmon. Approximately 30 minutes after Wallace Til-mon provided Love with the document, three other men came to Love’s office. One man identified himself as Ronald J. White and signed the affidavit. Love did not ask for any proof of White’s identity, nor did he swear in White before having him execute the document. Love testified that he simply asked the man whether his name was Ronald White and “he said it was.”

| ¡(Before trial, the defense filed a motion to suppress identification. A pro se motion to suppress evidence was also filed. A pretrial hearing was held and both motions were denied. A six-person jury found defendant guilty as charged of simple burglary. Defendant was subsequently charged as a fourth felony offender. Numerous pro se post-trial pleadings, including motions for new trial, post-verdict judgment of acquittal, discovery, and subpoenas, were filed by defendant. After several hearings, the trial court denied defendant’s post-trial motions.

A motion to quash and objection to the habitual offender bill was also filed by defendant in proper person. After a hearing, defendant was found to be a third felony offender. The trial court deviated downward from the mandatory sentence of life imprisonment without benefit as provided by La. R.S. 15:529.1(A)(l)(b)(ii) and sentenced defendant to 24 years imprisonment at hard labor without benefit (the state has not appealed this deviation from the mandatory sentence). Defendant filed a pro se motion to reconsider sentence, which was denied by the trial court.

Discussion

Sufficiency of the Evidence

We have set forth the evidence in some detail. Defendant’s argument centers on Ms. Netter’s identification. Defendant argues that his identification as the perpetrator by Ms. Netter was unreliable and should not have been believed. He contends that Ms. Netter’s description of the perpetrator to the police failed to include any distinguishing marks, such as his scar that covers the right side of his face, as well as tattoos on his arms.

fyFacts are not reviewable on appeal except to insure due process. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard is whether a-rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have reasonably concluded that all of the elements of the offense had been proven beyond a reasonable doubt.

To convict a defendant of simple burglary of an automobile, the state must prove beyond a reasonable doubt that the defendant entered a vehicle without authorization, and had the specific intent to commit a felony or theft therein. State v. Bullard, 29,662 (La.App.2d Cir.09/24/97), 700 So.2d 1051; State v. Ewens, 98-1096 (La.App. 5th Cir.03/30/99), 735 So.2d 89, writ denied, 99-1218 (La.10/08/99), 750 So.2d 179.

A review of the record shows that the evidence was sufficient to support defendant’s conviction of simple burglary. A rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could reasonably have concluded that all the elements of simple burglary were proved beyond a reasonable doubt. The victim’s testimony, together with the testimony of Ms. Netter and the pursuing police officers, proved that defendant entered the victim’s vehicle without authorization and had the specific intent to commit a felony or theft therein. See State v. Ew-ens, supra. The testimony of Ms. Netter and defendant’s apprehension clearly identified defendant as the perpetrator. Specifically, the eyewitness, Sherelle Netter, had several opportunities to view defendant during the crime, was positive of the accuracy of her identification, and details of her ^description were corroborated by testimony given by the police officers. The cross-examination of Ms. Netter competently highlighted alleged inconsistencies. It was within the jury’s province to weigh credibility. This court does not reassess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

This case, however, does not rest simply on the identification of Sherelle Netter. The police arrived as defendant was finishing the crime and maintained sight of defendant during a chase until his apprehension. The officers recovered the victim’s purse they saw the perpetrator discard. Their identification of defendant is equally sufficient to support a guilty verdict.

Denial of the Motion to Suppress

Both defense counsel and defendant (pro se) filed motions to suppress the identification by Ms. Netter. Defendant argues that the procedure by which Ms. Netter identified him as the perpetrator at the police station was unduly suggestive and that it taints both her out-of-court and in-court identifications. He further questions the accuracy of Ms. Netter’s descriptions, and her opportunity to observe the perpetrator at the crime scene.

The evidence of the police station identification boosts Ms. Netter’s critical in-court identification. In State v. Barber, 32,894 (La.App.2d Cir.12/30/99), 749 So.2d 917, 922, writ denied, 00-0519 (La.11/27/00), 775 So.2d 441, this court set forth the applicable law regarding victim identification of a defendant made shortly after the crime:

| aOne-on-one confrontations between a suspect and a victim, while not favored by the law, are permissible when justified by the overall circumstances. Such identification procedures are generally permitted where the accused is apprehended within a short time after the commission of the offense and is returned to the scene of the crime for on-the-spot identification or when identification is made shortly after the commission of the crime. State v. Dauzat, 364 So.2d 1000 (La.1978); State v. Patrick, 31,380 (La.App.2d Cir.10/28/98), 721 So.2d 94, writ denied, 98-2957 (La.03/19/99), 739 So.2d 780; State v. Cotton, 511 So.2d 1207 (La.App. 2d Cir.1987). Such prompt identification, under appropriate circumstances, promotes accuracy as well as expediting the release of innocent suspects. State v. Williams, 420 So.2d 1116 (La.1982); State v. Bickham, 404 So.2d 929 (La.1981); State v. Patrick, supra; State v. Cotton, supra.

Considering both the evidence presented at the hearing on the motion to suppress and at trial, we find that the trial court did not err in denying the defendant’s motion to suppress Ms. Netter’s identification of defendant. Even if suggestive and not favored by the law, this one-on-one identification was permissible as justified by the overall circumstances. See State v. Sewell, 35,549 (La.App.2d Cir.02/27/02), 811 So.2d 140, writ denied, 02-1098 (La.03/21/03), 840 So.2d 535; State v. Barber, supra. Particularly, defendant was identified shortly after the commission of the crime. Such prompt identification, under appropriate circumstances, promotes accuracy and expedites the release of innocent suspects. Id.

Furthermore, the trial court properly considered factors set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), in concluding that the identification was reliable. First, the opportunity of the witness, Ms. Netter, to view the perpetrator at the time of the crime was ample. She viewed defendant’s face three times, from both sides and from the front, and each time the witness was just a few yards |inaway from defendant. Second, Ms. Netter’s degree of attention was great, as evidenced by the fact that she remained on the telephone with the 911 operator and described the entire incident as it transpired. Third, the accuracy of the witness’s prior description of the criminal was good. Ms. Netter described to the 911 operator a black man dressed in gray, driving a maroon vehicle. Fourth, the level of certainty demonstrated at the confrontation was great. Ms. Netter testified that she was “pretty” certain of her identification at the confrontation — a fact corroborated by the testimony given by Detective Smith. Fifth, the length of time between the crime and the confrontation was short. After consideration of these factors, the record shows that any suggestiveness of the identification procedure used was outweighed by the overall reliability of the identification. Under these circumstances, there was no substantial likelihood of misidentification. See State v. Sewell, supra; State v. Barber, supra. Thus, the out-of-court identification was properly admissible to enhance Ms. Netter’s credibility. It did not thereafter taint Ms. Netter’s in-court identification, which was independently made.

Adjudication of Defendant as a Third Felony Offender

After defendant was charged as a fourth felony habitual offender on December 10, 2001, he entered a plea of not guilty at a hearing held on June 10, 2002. Defendant was represented by court-appointed attorney Mary Winchell. The state presented evidence, and the matter was left open for an objection by the defense.

InMs. Winchell noted that the defense did not have any objections to the introduction of the state’s exhibits. The state presented the testimony of Sergeant Owen McDonnell of the Caddo Parish Sheriffs Office, an expert in fingerprint identification analysis. Defendant was fingerprinted in open court and his fingerprints were introduced into evidence (Exhibit S-10). Sergeant McDonnell compared defendant’s fingerprints on Exhibit S-10 to the fingerprints contained on S-l (pen pack), S-2 (the bill of information for felony theft), S-4 (the bill of information for simple escape), and S-6 (the bill of information for armed robbery) and determined them to be a match.

Also during the habitual offender proceeding, Agent Bob Lee, a supervisor with the state probation and parole office, made an in-court identification of defendant as the same person he supervised during his “good time” (diminution of sentence) parole from his armed robbery and simple escape convictions. Agent Lee stated that defendant’s parole did not expire until May 3, 2002. In fact, defendant was still under parole supervision at the time he committed the instant offense.

At a hearing held on August 2, 2002, the state and the defense acknowledged that two of defendant’s predicate convictions, simple escape and armed robbery, occurred on the same day, and agreed that it would be improper to adjudicate defendant to be a fourth felony habitual offender, citing State ex rel. Mims v. Butler, 601 So.2d 649 (La.1992). Therefore, only one of the August 20, 2002, guilty plea convictions was used as a predicate offense. Thereafter, on August 7, 2002, the trial court adjudicated defendant to be a third felony offender.

| ^Defendant argues that the guilty plea transcripts for the predicate offenses did not properly show he was advised of his rights to trial by jury, compulsory process, confrontation, and against self-incrimination as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

The habitual offender sentencing statute, R.S. 15:529.1, in force at the time of the offense of conviction is applicable to defendant in this case. See State v. Barnes, 02-2059 (La.04/04/03), 845 So.2d 354. The instant offense was committed on June 26, 1999.

La. R.S. 15:529.1(D)(l)(b) provides in pertinent part:

Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof.... A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

In the instant case, defendant denied the allegations of the bill of information charging him as a fourth felony habitual offender by entering a plea of not guilty. The burden was then placed on the state to prove the existence of the prior guilty pleas and that defendant was represented by counsel. See State v. Shelton, 621 So.2d 769 (La.1993); State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 02-2875 (La.04/04/03), 840 So.2d 1213. After agreeing that only one of the August 11S20, 2002, guilty plea convictions was to be used as a predicate offense, the state met its initial burden by introducing evidence of at least two prior guilty plea convictions, which, together with the instant conviction, supported defendant’s adjudication as a third felony habitual offender. Certified copies of the bills of information from docket number 136,019 (middle grade theft June 10, 1987) and docket number 148,956 (armed robbery August 20, 2002) were introduced into evidence, and a fingerprint expert confirmed that the fingerprints on the bills belonged to defendant. The state also offered certified copies of the court minutes of the guilty pleas in those two prior felonies. Both sets of court minutes reflected that defendant was represented by counsel when each guilty plea was taken, with the judge acknowledging that the pleas were taken in accordance with Boykin.

Defendant complained in part that “his priors were illegal wherein defendant did not make a knowing and intelligent waiver of his rights.” Although the court minutes do not sufficiently demonstrate an explanation and waiver of defendant’s constitutional rights, the state met its burden of proof by introducing “perfect” transcripts of the taking of the two guilty pleas in docket number 136,019 (middle grade theft, June 10, 1987) and docket number 148,956 (armed robbery, August 20, 2002). See State v. Shelton, supra. The transcripts introduced reflect colloquies between judge and defendant wherein defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront (i.e., cross-examine) his accusers. Therefore, the record 114supports the conclusion that the state proved beyond a reasonable doubt every essential element of the habitual offender bill. See State v. Shelton, supra; State v. Wade, supra.

Denial of Motions for New Trial

Defendant argues that his motion for new trial should have been granted because he received ineffective assistance of counsel from defense attorney Joseph Clark. Defendant asserts that Clark was ineffective for the following reasons:

1.An alleged disparity of the testimony at trial regarding his physical description and clothing, and Clark’s failure to procure his arrest photograph and clothing as evidence for trial,
2. A lack of communication with Clark,
3. Clark’s failure to adequately investigate his case or interview witnesses,
4. Clark’s failure to procure affiant Ronald White’s presence at trial, or to move for a recess or continuance when White failed to reappear, and
5. Clark’s failure to obtain a five-year sentence in exchange for the dismissal of his civil suit against the City of Shreveport.

The district court minutes reflect that Joseph Clark was appointed to represent defendant as conflict counsel on October 4, 2000, and that Clark represented the defendant during his trial. Motions for new trial were among the numerous pro se pleadings filed by defendant. Thereafter, on March 11, 2002, Clark filed a motion to be relieved as counsel, which motion was argued and granted. Attorney Mary Winchell was subsequently appointed to represent defendant. Hearings were held on three different |1Bdates on defendant’s claim that he received ineffective assistance of counsel.

At one of these hearings, Clark was extensively questioned by defendant, who was representing himself at the time. It was noted that Clark was defendant’s fourth or fifth court-appointed counsel. Evidence was developed regarding Clark’s preparation for trial and trial performance.

Defendant introduced into evidence the computer-generated professional visitation log from Caddo Correctional Center (hereinafter referred to as “CCC”), and/or the Caddo Parish Jail, which was provided by Sergeant Rick Farris of the Caddo Parish Sheriffs Office. The log showed that from October 1, 2000, through January 26, 2001, Clark made one visit to defendant, on January 21, 2001, which visit lasted about an hour and fifteen minutes.

Clark remembered meeting with defendant at the courthouse on the day he was appointed, approximately six months before trial. Clark adamantly denied that the January 21, 2001, meeting was the first meeting he had with defendant. Clark explained on cross-examination that he often signs in to visit with one defendant in the holding area of the courthouse for court appearances, but that he might visit with numerous defendants while in that area. Clark stated that he had numerous telephone conversations with defendant. Clark stated that his file would not normally contain documentation of those calls, some of which were probably collect calls from CCC. Clark did not recall sending any legal correspondence to defendant, but acknowledged receiving numerous pieces of mail from him.

bn Clark explained that his investigation consisted of contacting all of defendant’s prior attorneys, getting the file, going through all of the discovery materials and discussing the case with defendant. Clark also stated that he does not have an investigator on payroll, and did not hire experts to reconstruct or photograph the crime scene because this type of case did not require such an expert.

Defendant presented a letter to Clark, written by defendant on October 16, 2000, in which defendant asserted that he asked Clark to subpoena witnesses. However, the letter, which was read into the record, mentioned nothing of subpoenas or witnesses. Defendant also presented a letter to Clark dated January 9, 2001, which indicated in a “roundabout” way that defendant had witnesses. Clark noted that the letter did not name any witnesses nor did it give any relevant contact information to subpoena witnesses. Clark explained that he never received a list of persons to contact from defendant. Clark acknowledged that he did not interview Ms. Netter or the arresting officers prior to trial, but noted that his cross-examination exposed all relevant facts beneficial to defendant. Defendant also questioned Clark about the affidavit signed by Sam Love. Clark stated that the affidavit surfaced approximately two or three days before trial. Clark did not recall trying to locate the affiant because he did not have any contact information.

As to defendant’s clothing and booking photograph, Clark noted that he chose to emphasize Ms. Netter’s failure to observe defendant’s facial scar — something he considered a glaring deficiency. Clark stated that this |17was a tactical decision which would not have affected the outcome of defendant’s case.

Clark acknowledged that he did not object during the prosecutor’s closing argument to the statement that defendant’s facial scar might have appeared after the crime. Clark explained that this was never raised prior to closing argument and objections during closing arguments can sometimes backfire.

Defendant’s brother, Wallace Tilmon, related that he was part of a three-way telephone conversation with defendant and attorney Herschel Richard. It was Wallace’s understanding that if defendant dismissed his complaint against Cynthia King (one of his former defense attorneys, who was represented by Richard with reference to the complaint), “negotiations” would then include a five-year sentence for defendant.

Herschel Richard testified stated that he represented Ms. King regarding the disciplinary complaint filed against her by defendant. Richard denied that any conversation ever occurred between him and Clark regarding the possibility of defendant being offered a five-year hard labor sentence by the state in exchange for defendant’s dismissal of the complaint against Ms. King. Clark also denied ever speaking to Ms. King regarding defendant.

The defense presented the testimony of attorney Stacey Williams, who represented the City of Shreveport in a civil lawsuit filed by defendant | ^arising out of the events surrounding the instant conviction. Ms. Williams denied ever having any conversations with Clark about the state’s evidence in the criminal case or ever telling Clark that defendant could receive a five-year hard labor sentence if he dismissed the civil suit against the city. Ms. Williams further denied ever meeting with prosecutors regarding the criminal case. Clark likewise denied ever having conversations with Ms. Williams about anything other than defendant’s sentencing date.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. A motion for new trial is, however, an accepted vehicle to raise such a claim. La. C. Cr. P. art. 851(1). When the record is sufficient, this court may resolve this issue (ineffective assistance of counsel) on direct appeal in the interest of judicial economy. State v. Smith, 98-1417 (La.06/29/01), 793 So.2d 1199, cert. denied, 535 U.S. 937, 122 S.Ct. 1317, 152 L.Ed.2d 226 (2002); State v. Elzie, 37,920 (La.App.2d Cir.01/28/04), 865 So.2d 248.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The assessment of an attorney’s performance requires that his | ^conduct be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy. There is a strong presumption that trial counsel has exercised reasonable professional judgment. State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991), cert. denied, 537 U.S. 1236, 123 S.Ct. 1360, 155 L.Ed.2d 202 (2003).

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, supra.

In the instant case, this lengthy record on the new trial motion is indeed sufficient to resolve the issue of ineffective assistance of counsel on direct appeal.

The facts presented at the various hearings regarding defendant’s allegations of ineffective assistance of counsel clearly support the trial court’s denial of the motions for new trial. It is evident from the record that many of defendant’s factual representations are inaccurate and/or distorted. Despite the many witnesses presented and the evidence produced by defendant at these hearings, he has failed to demonstrate that Clark’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Considering the facts and circumstances of the case, the record does not support defendant’s claim that Clark failed either to adequately communicate with him or to prepare for trial. Furthermore, | ?,nClark’s decisions regarding the interviewing and examination of witnesses do not constitute ineffective assistance of counsel. See State v. Morrison, 32,123 (La.App.2d Cir.07/22/99), 743 So.2d 232, writ denied, 99-3514 (La.05/26/00), 762 So.2d 1103. This court must give great deference to trial counsel’s judgment. State v. Moore, supra.

We note that even if counsel was found to have committed any of the alleged errors, the record does not support the conclusion that, but for those errors, there is a reasonable probability the outcome of the trial would have been different. Strickland v. Washington, supra; State v. Pratt, 26,862 (La.App.2d Cir.04/05/95), 653 So.2d 174, writ denied, 95-1398 (La.11/03/95), 662 So.2d 9, grant of habeas corpus rev’d., 142 F.3d 226 (5th Cir.La.1998).

Conclusions

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

APPLICATION FOR REHEARING

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

Rehearing denied.

      . Ms. Netter believed that Sergeant Reich was the officer who took her to make the identification. Sergeant Reich had no recollection of being involved with the identification process.

      . Detective Smith did not remember whether he was present during the identification process. He did remember that, while writing the report, Ms. Netter advised him that she was positive that the man in custody was the same man she saw at the Duck Pond.

      . White, who had been subpoenaed and sworn, could not be found the day he was scheduled to testify.

      . In support of his new trial motion, Defendant presented the testimony of his mother, Lola Tilmon, to document the fact that defendant received burns, including some on the right side of his face, in September 1958 when he was Eve years old.

      . Defendant sought the production of Clark's file to support his ineffective representation claim. In State v. Hunter, 614 So.2d 332 (La.App. 4th Cir.1993), appeal after remand, 93-1681 (La.App. 4th Cir. 12/15/94), 648 So.2d 1025, writ denied, 95-0682 (La.09/01/95), 658 So.2d 1259, the court of appeal found that the defendant's claims raised serious questions about the effectiveness of his counsel and the possibility of prejudice to the defendant (emphasis added), and determined that the trial court should have, at the very least, conducted an in-camera inspection of defense counsel’s file to determine whether there was anything pertinent to the claim of ineffective assistance of counsel. State v. Hunter, supra, is easily distinguishable from the instant case in that this record shows no serious questions about Clark’s effectiveness as counsel in his representation of defendant. Furthermore, it is clear from the testimony that the file, which was in storage, would have added little if any, support to defendant’s claims.


author: | t GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Barbara SMITH, Appellant.
    No. 38,154-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2004.
    Rehearing Denied May 6, 2004.

      George Britton, III, for Appellant.
    Jerry Jones, District Attorney, Shirley M. Wilson, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   | t GASKINS, J.

The defendant, Barbara Smith, was convicted by a six-person jury of attempted cruelty to the infirm. She was sentenced to serve five years imprisonment at hard labor, suspended, and put on five years supervised probation with special conditions. The defendant now appeals. Her conviction and sentence are affirmed.

FACTS

In February 2002, an ambulance was called to the home of 83-year-old Johnnie Scott. Ms. Scott lived with her biological son, Stanley Scott (Stanley), her informally adopted daughter, Barbara Smith, and two grandchildren. Ms. Scott was found on a sofa soaked in urine and feces. Ambulance workers noted that Ms. Scott was very sick and, after some resistance from her, she was transported to E.A. Conway Hospital.

After cleaning Ms. Scott from “head to toe,” emergency room personnel determined that she was in serious or critical condition with numerous decubitus ulcers (bedsores) and a large, fresh wound on her leg. Emergency room personnel contacted the Monroe Police Department and made a complaint of suspected elder abuse.

The defendant was eventually arrested and charged with cruelty to the infirm. She was found guilty by a jury of attempted cruelty to the infirm. She now appeals.

Legal Principles

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

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.4/19/02), 813 So.2d 424. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

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

La. R.S. 14:93.3, regarding cruelty to the infirm, provides in pertinent part:

A. Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility.
B. “Caregiver” is defined as any person or persons who temporarily or permanently is responsible for the care of the infirmed, physically or mentally disabled adult, or aged person, whether such care is voluntarily assumed or is assigned. Caregiver includes but is not limited to adult children, parents, relatives, neighbors, daycare institutions and facilities, adult congregate living facilities, and nursing homes which or who have voluntarily assumed or been assigned the care of an aged or infirmed person or disabled adult, or have assumed voluntary residence with an aged or infirmed person or disabled adult.
C. For the purposes of this Section, an aged person is any individual sixty years of age or older.

The term “intentional” as used in this statute refers to a general criminal intent to mistreat or neglect and does not require an intent to cause unjustifiable pain and suffering. State v. Scott, 582 So.2d 864 (La.App. 5th Cir.1991), writ denied, 584 So.2d 1171 (La.1991). General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). State v. Echeverria, 2002-2592 (La.App. 1st Cir.6/27/03), 858 So.2d 632.

Our supreme court in State v. Brenner, 486 So.2d 101 (La.1986), discussed the meaning of neglect or “criminal neglect” with reference to the statute on cruelty to the infirm:

Here, the word neglect is preceded by “or” and indicates that the “criminally negligent” qualifying words apply to neglect as well as mistreatment.
La. R.S. 14:12, which defines criminal negligence, provides:
Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

Criminal negligence requires a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. It calls for substantially more than the ordinary lack of care which may be the basis of tort liability, and furnishes a more explicit statement of that lack of care which has been variously characterized in criminal statutes as “gross negligence” and “recklessness.” State v. Brenner, supra; State v. Scott, supra.

In State v. Comeaux, 319 So.2d 897 (La.1975), the supreme court held:

“Mistreatment” is in common usage and is equated with “abuse”.... In our opinion, “mistreatment” has a commonly understood meaning.

The supreme court in State v. Brenner, supra, discussed the meaning of the phrase “unjustifiable pain and suffering,” stating that:

Unjustifiable is a term of limitation intended to distinguish that pain and suffering which is an inevitable consequence of care and treatment from that which is not justified by medical needs.
| sLa. R.S. 14:27, in pertinent part, defines “attempt” as follows:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

A jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State v. Mitchell, 35,970 (La.App.2d Cir.5/08/02), 818 So.2d 807; State v. Bryant, 33,078 (La.App.2d Cir.3/1/00), 754 So.2d 387. Even if an offense is legis-

latively designated as responsive by La. C. Cr. P. art. 814, a defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict. La. C. Cr. P. art. 814(C). State v. Mitchell, supra; State v. Johnson, 30,078 (La.App.2d Cir.12/10/97), 704 So.2d 1269, writ denied, 98-0382 (La.6/26/98), 719 So.2d 1054. Absent a contemporaneous objection, however, a defendant cannot complain if the jury returns a legislatively-approved responsive verdict, even where there is insufficient evidence to support such a verdict, provided that the evidence is sufficient to support the charged offense. State v. Schrader, 518 So.2d 1024 (La. 1988), cert, denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990); State v. Mitchell, supra. In this instant case, the record does not indicate that a contemporaneous objection was made.

| (¡Evidence and Testimony

Ms. Johnnie Scott had lived at her Griffin Street home in Monroe since 1973 with her family composed of her biological son, 49-year-old Stanley Scott, the defendant, 53-year-old Barbara Smith, and two grandchildren, ages 27 and 20. Stanley and Smith described their mother as a “real independent woman” who insisted on having her way and who ruled the household. Everything in the home belonged to Ms. Scott. She liked to accumulate things and nothing could be touched or thrown out without her permission — including mail from the 60’s and 70’s. Ms. Scott began sleeping on the couch a few months after moving into the Griffin Street home so that one of her grandchildren could have the back room. After her retirement at age 65, she enjoyed sitting in the yard and/or porch drinking beer and smoking cigarettes. The defendant would cash her mother’s checks, pay the bills and give her the rest of the money. The defendant and Stanley would purchase their mother’s necessities.

Ms. Scott’s health began to decline in September 2001. Stanley observed that his mother began to spend more time on the couch and less time out on the porch. However, she was still able to move about the house. In the beginning of November, Ms. Scott, although still somewhat mobile, slowed down considerably. She stopped drinking and smoking. According to the defendant, her mother became completely immobile during the latter part of November 2001. Ms. Scott used a bucket as a bedpan, although this was a long-standing practice for her. The defendant and Stanley urged their mother to seek medical attention, but she declined. Stanley also asked some neighbors to talk his mother into going to the doctor, but she refused.

|7On December 28, 2001, Stanley called an ambulance service to transport his mother to the hospital because of her decreased appetite and lack of mobility. Ms. Scott refused to go. Paramedic Stacey Hill described Ms. Scott, who was sitting on the couch, as alert and awake. When asked, she reported that she had no complaints. Hill took Ms. Scott’s vital signs. Her blood pressure was slightly elevated and her pulse rate was a bit high. Hill explained to Ms. Scott the dangers of dehydration, which she appeared to understand. Hill did not observe any noticeable bedsores, but only checked Ms. Scott’s upper body. Hill saw no feces or urine on her. Because Ms. Scott was alert, Hill could not transport her against her will. The ambulance service left because Ms. Scott refused to be transported for treatment.

On February 2, 2002, approximately 35 days later, an ambulance was again summoned to Ms. Scott’s residence. Paramedic Lisa Winborne and Emergency Medical Technician Johnathan Cory Rinado of American Medical Response responded to the call. Winborne observed that the 83-year-old Ms. Scott was on the couch looking “real sick.” Stanley told the ambulance personnel that his mother had been on the couch for three months. Rinado described Ms. Scott as unclean and as having a strong, foul odor of feces and urine. Stanley encouraged his mother to go in the ambulance. Initially, Ms. Scott acted belligerent and refused to be taken — she slapped at the ambulance personnel a couple of times, knocking Rinado’s glasses off his face. However, Winborne eventually convinced Ms. Scott that she needed to go to the hospital and she finally agreed. When the ambulance personnel picked Ms. Scott up from the couch, they observed |sfeces, urine, pus, and blood in the couch. The couch looked “pretty bad.” Ms. Scott’s gown was soaked with feces and urine. Rinado observed that she had decubitus ulcers, including a “pretty bad” sacral decubitus ulcer. After the ambulance personnel put Ms. Scott on the stretcher, she became more relaxed. Once inside the ambulance, Rinado observed that Ms. Scott’s demeanor made a complete turnaround. She became calm and sweet. Rinado described Ms. Scott as “quite a nice lady.” As the ambulance prepared to leave the residence, Rinado noticed that the couch had already been taken out of the house.

Ms. Scott was taken by ambulance to E.A. Conway Hospital in Monroe. Emergency room nurse Randy Steve Adcock described Ms. Scott’s medical condition upon arrival at the hospital as “serious or critical.” She was barely responsive and seriously dehydrated. Adcock described her hygiene as “pitiful.” She had a foul odor, and was covered from head to toe with urine and feces, both dried and fresh. Adcock opined that “this is not something that happens in one day’s time.” Ms. Scott had multiple scars on her leg (like healed decubitus ulcers), one decubitus ulcer on her hip and a big, gaping, fresh wound on her leg. She had to be bathed before she was treated. Because of Ms. Scott’s condition and injuries, Adcock made a complaint of suspected elder abuse with the Monroe Police Department.

Monroe Police Officers Emmett M. Mapps, Jr. and Terrance Irvin responded to the call. When Officer Mapps arrived at the hospital, he observed that Ms. Scott was moaning and appeared to be in too much pain to talk. According to Officer Irvin, she screamed loudly from pain when the 19nurse rolled her on her side to show the officers her wounds. Officer Mapp photographed Ms. Scott’s wounds.

An investigation of Ms. Scott’s house and the discarded couch followed. Officer Irvin described the house as the filthiest he had ever seen-it was full of trash and clothes. The couch and cushions had a strong odor of feces and urine. One of the cushions had some flesh on it. The couch itself had an exposed spring. Officer Mapp concluded that the gaping wound on Ms. Scott’s leg was caused by the exposed spring from the couch.

Thomas Staten, an investigator for the Monroe Police Department, described the condition of the house as “deplorable.” In addition to the strong odor and scattered clothing, Detective Staten noted that there was uncooked food on the stove and the bathroom looked filthy and unsanitary.

A subsequent psychiatric evaluation of Ms. Scott was conducted by Dr. Alfredo E. Torres, who concluded that she lacked de-cisional capacity and that every decision should be made by the family caregivers. Debra Pruett, a social worker with the Office of Elderly Affairs, also evaluated Ms. Scott. She aided in having her interdicted and placed in a nursing home upon release from the hospital. Ms. Scott later died in the nursing home.

On March 4, 2002, the defendant and Stanley were charged by bill of information with one count of cruelty to the infirm. During the subsequent jury trial, the defense presented several witnesses. The defendant’s cousin, Jackie Ricks, testified that Ms. Scott was a feisty little woman who had to have her way. Ricks stated that she visited Ms. Scott on the day she was 11fttaken to the hospital. When Ricks tried to get her to get up off the couch, Ms. Scott “pulled a knife” and told Ricks to leave her alone. Ricks told Stanley that his mother needed to go to the hospital and called the paramedics. Ricks stated that she did not notice any foul odors on the couch.

The defendant testified on her own behalf. She admitted having some nurse’s aide training, but she did not complete the course. She “sat” for about ten persons, some of whom were bedridden. The defendant was aware that her mother was sick and unable to move around, so the defendant never left her unattended. The defendant thought that her mother needed to go to the doctor, but she refused to go. The defendant stated that by late November 2001, Ms. Scott could no longer do anything for herself — she could no longer walk or feed herself. The defendant fed her mother soups, soft drinks, and nutritional drinks.

The defendant stated that her mother stayed on the couch from November to February. The defendant only moved her once, and then only to a seated position. The defendant tried to move her other times, but her mother was “dead weight” and she couldn’t move her by herself.

During the latter part of November 2001, the defendant bought her mother some disposable diapers. The defendant related that Ms. Scott would “holler” and fight her when she tried to change the diapers, and she was only able to get one diaper completely on her mother. The defendant stated that she was unable to clean, change or turn her mother on the couch, and Ms. Scott refused to go to the bed where the defendant could change and clean her easily. The defendant admitted that she was only able to fully hi clean her mother once, but she tried to clean her often by wiping where she could reach. The defendant asserted that she never smelled the foul odors, but stated that her bronchitis probably affected her sense of smell.

The defendant further related that her mother kept a knife with her at all times, but never threatened her with it. The defendant asserted that she could not ignore her mother’s “screaming and hollering” when she tried to clean her because she was taught that you must “mind” an old person and should not force them to do anything.

Stanley Scott testified and corroborated the defendant’s testimony that their mother was strong-willed and controlled the household. He reiterated that Ms. Scott refused to go to the hospital and told him that, “If you make me go, I’ll never forgive you.” He stated that he also tried to clean her, but that she resisted. Stanley stated that on the first occasion the ambulance was summoned, he was told that if the ambulance was called again, they would charge him for coming to the house.

Discussion

The defendant argues that the evidence was insufficient to support her conviction. This argument is without merit.

The defendant’s action in allowing her mother to remain on a couch for more than a month, while lying in her own filth, satisfies the elements of cruelty to the infirm. Because the record supports a finding of guilt to the offense charged, the jury did not err in finding the defendant guilty of the lesser offense of attempted cruelty to the infirm.

|12In the case sub judice, it is not denied that the victim was 88 years old and therefore an “aged person” pursuant to La. R.S. 14:93.3(C). It is also not contested that the defendant qualified as a “caregiver” as defined in La. R.S. 14:93.3(B). The defendant only disputes that she intentionally or in a criminally negligent manner mistreated or neglected the victim, and urges that her particular circumstances be taken into consideration. Considering that the appellate court does not assess the credibility of witnesses or reweigh evidence, a review of the record reveals that the defendant’s conviction should stand.

We are aware that the record shows that the defendant’s mother was very strong-willed and controlled her household. The defendant and her brother had been brought up to respect and obey their mother’s wishes. When their mother’s health began to fail, the defendant tried to provide for her needs. However, Ms. Scott resisted all attempts to help her. As late as December 2001, when the first ambulance was called to the house, the ambulance workers did not observe a hygiene problem and determined that Ms. Scott was competent to refuse medical care. The ambulance workers informed the family that if they were summoned to the house again, they would be charged for the call.

However, for the next 35 days, the defendant and her brother allowed their mother to lie in her own filth. Even though they testified that they made attempts to clean her and that those attempts were> resisted, they had a duty to intervene on Ms. Scott’s behalf and insist that she either submit to |13their efforts at proper sanitation or go to a hospital or nursing home to be cared for by others.

The state contends that, due to the defendant’s training as a nurse’s aide, she knew or should have known the importance of turning her mother frequently in order to prevent bedsores. While the defendant acknowledged that she knew this was important, she explains that her mother simply refused to cooperate. Given the defendant’s training, her failure to provide the proper care for her mother in the home or obtain appropriate aid elsewhere satisfies the elements of cruelty to the infirm.

As to general criminal intent, the circumstances show that the defendant, in the ordinary course of human conduct must have adverted to the unjustifiable pain and suffering caused to her mother by the defendant’s failure to properly attend to her needs. Also, the conduct of the defendant meets the definition of criminal neglect in that the defendant’s behavior constituted such a disregard of her mother’s interests as to be a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances.

Although the defendant’s predicament was obviously a difficult one, her respect for and deference to her elder’s wishes should have yielded to her professional training and experience, if not her common sense, and proper care and treatment should have been provided for her mother. The defendant also greatly benefitted by the jury’s great restraint in finding her guilty of the lesser crime of attempted cruelty to the infirm, as well as the | ulenient sentence imposed by the trial court. Accordingly, based upon these facts, we find that the evidence was sufficient to support the verdict.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of the defendant, Barbara Smith, for attempted cruelty to the infirm.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS, and LOLLEY, JJ.

Rehearing denied.

      . Stanley testified that his mother continued to fight her caregivers while at the nursing home.