author: _[iLOLLEY, J. L PEATROSS,

text:
    AMERICAN INTERSTATE INSURANCE COMPANY and Randall Service Corporation, Plaintiffs-Appellants v. Melissa K. FORSYTHE, Tutrix of Minor Child, ShannonRay W. Allison; and Lance Allison, Minor Child, Defendants-Appellees.
    No. 38,283-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.
    Rehearing Denied May 6, 2004.

      Michael S. Coyle, Ruston, Counsel for Appellants.
    Klotz, Simmons & Brainard, by Eron J. Brainard, for Appellees Melissa Forsythe and ShannonRay W. Allison.
    Daye, Bowie & Beresko, by David P. Daye, Shreveport, for Appellee Lance Allison.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   _[iLOLLEY, J.

Randall Well Service, Inc. (“Randall”) and its compensation insurer, American Interstate Insurance Company (“American”), appeal from a judgment of the Office of Workers’ Compensation (“OWC”) awarding death benefits to two minor children of a deceased worker, Robby Allison (“Mr.Allison”). For the following reasons, we affirm.

FACTS

Mr. Allison was employed by Randall until August 30, 2001, when he was killed in a work-related accident in Caddo Parish. Randall and American instituted this proceeding in the OWC as a petition for declaratory judgment concerning their obligations to the minor children of Mr. Allison. A hearing occurred on April 17, 2003, at which time the parties stipulated to most of the pertinent facts.

Mr. Allison was married to Shannon D. Allison (“Ms. Allison”) and the couple had two children during the marriage, Shan-nonRay W. Allison (“ShannonRay”) and Lance Allison (“Lance”). The couple divorced on September 22, 1999. The Louisiana judgment of divorce awarded sole custody of ShannonRay to Mr. Allison; however, the judgment was silent as to the custody of Lance. According to the petition for divorce, Lance had lived with his mother in Sulphur Springs, Texas, since his birth and accordingly, the Louisiana court had no jurisdiction to determine custody of Lance. The judgment provided that “no child support is due by either party.” In answers to interrogatories, Ms. Allison acknowledged that neither she nor Lance had received any monetary contributions, payments 19of bills, or payment of any household or personal expenses from Mr. Allison for the year prior to August 30, 2001.

At the time of Mr. Allison’s death, both children were still minors. The parties stipulated that ShannonRay was a dependent of Mr. Allison at the time of his death.

The record indicates that Mr. Allison had been incarcerated for an unspecified offense for a time until March 2001, and from then until the time of his death, he and ShannonRay were living with his sister Melissa Forsythe (“Ms. Forsythe”), who was made tutrix of ShannonRay after his father’s death. Mr. Allison and Shan-nonRay were in the process of moving into a home of their own near Ms. Forsythe when he was killed. Ms. Forsythe testified that her brother loved both of his children; she confirmed that her brother had arranged with Ms. Allison that each parent was to be responsible for one child. She said that Mr. Allison bought Shannon-Ray’s clothes and paid for the child’s day care.

Ms. Allison testified that after the divorce, Lance lived with her. She also testified that Mr. Allison paid her nothing to support Lance and that she was entirely responsible for supporting Lance, while Mr. Allison was entirely responsible for supporting ShannonRay. Ms. Allison testified that about four months prior to Mr. Allison’s death, they made plans to reconcile, but did not reveal those plans to Mr. Allison’s sister because of animosity between Ms. Allison and Ms. Forsythe. Although Ms. Allison testified that Mr. Allison did not buy Lance any “clothes or anything,” he did buy some camping supplies for a family outing with Lance on one occasion.

| ¡After hearing the evidence, the judge rendered an oral judgment stating that the arrangement for division of support between the parents operated as “some kind of in-kind trade off for support.... [T]he money that he doesn’t have to send to Shannon D. for Lance worked to his benefit in that sense because he’s only got to worry about cash money support for Shan-nonRay, and she takes care of Lance.” The judge was also impressed with the testimony that Mr. Allison loved both of his children and that he and Ms. Allison had plans to reconcile. The court signed a judgment on July 2, 2003, declaring both minor children to be dependents of Mr. Allison at the time of his death and awarded the children compensation. The court fixed the award to the children as equally divided shares of 46 1/4% of Mr. Allison’s average weekly wage of $350 per week and not less than $104 per week per child. Randall and American appeal that decision.

DISCUSSION

Workers’ compensation death benefits for dependents are authorized by La. R.S. 23:1231, which provides, in part:

A. For injury causing death within two years after the last treatment resulting from the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.
B. (1) If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.

The amount due varies with the number of dependents. Louisiana R.S. 23:1232 provides in part:

| ¿Payment to dependents shall be computed and divided among them on the following basis:
(4) If one child alone, thirty-two and one-half per centum of wages of deceased.
(5) If two children, forty-six and one-quarter per centum of wages.

Certain persons are conclusively presumed to be dependents. Louisiana R.S. 23:1251 provides:

The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee:
(1) A surviving spouse upon a deceased spouse with whom he or she is living at the time of the accident or death.
(2) A child under the age of eighteen years (or over eighteen years of age, if physically or mentally incapacitated from earning) upon the parent with ivhom he is living at the time of the injury of the parent, or until the age of twenty-three if enrolled and attending as a full-time student in any accredited educational institution. (Emphasis added).

Because Lance was not living with Mr. Allison at the time of Robby’s death, he is not presumed to be a dependent; therefore, La. R.S. 23:1252 governs this case and provides as follows:

In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death; in such other cases if there are a sufficient number of persons wholly dependent to take up the maximum compensation, the death benefit shall be divided equally among them, and persons partially dependent, if any, shall receive no part thereof.

The child seeking to be declared a dependent has the burden of proof on that issue. Lumbermen’s Underwriting Alliance v. Teague, 521 So.2d 820 (La.App. 2d Cir.1988); Malone & Johnson, 14 La. Civil Law Treatise:

IsWorfcers’ Compensation Law and Practice Sec. 304 (4th Ed.2002). The compensation law further specifies in La. R.S. 23:1254 the type of dependency that must be shown:

In all cases provided for under this Part the relation or dependency must exist at the time of the accident and at the time of death, and the mere expectation or hope of future contribution to support of an alleged dependent by an employee, shall not constitute proof of dependency as a fact.

An unfulfilled legal or moral obligation to support is insufficient to establish dependency. Lumbermen’s Underwriting Alliance, supra. Dependency is a question of fact. Id. An appellant court may not set aside a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass’n, 2002-2660 (La.06/27/03), 851 So.2d 1006. A reviewing court may not merely decide if it would have found the facts of the case differently but should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Id.

Several theories are advanced as to why Lance Allison should be considered the dependent of Mr. Allison. First is the natural obligation of a parent to support his minor children under La. C.C. art. 227. This obligation, standing alone, is insufficient to prove actual dependency under the workers’ compensation law. La. R.S. 23:1252. This is a long-standing rule. See, e.g., Moy v. Schuylkill Products Co., 209 La. 782, 786, 25 So.2d 542, 543 (1946), as cited in Malone & Johnson, supra, at Sec. 304, footnote 36:

| ^However unfair it may seem that these unfortunate children should be made to continue suffering because of the unworthiness of their father, simply because their mother or someone else on their behalf did not coerce him by means of legal proceedings to fulfill the duties legally imposed upon him as their father, our lawmakers did not provide for such a case under our compensation law and we are powerless to prevent the perpetuation of this injustice that has been brought upon them through no fault of theirs and that must, in the future, be continued in similar instances until the legislature, in its wisdom, may see fit to correct the same, since this is a matter that falls exclusively within the province of that branch of our government.

Nor does the prospect of a future reconciliation between the parents suffice as proof of actual dependency; this contingency is explicitly provided for in La. R.S. 23:1254.

However, in this case the OWC relied most heavily upon the provision of in-kind support by Mr. Allison for ShannonRay as proof of the dependence of Lance Allison. Although such support arrangements are not uncommon in the practice of family law, whether-in-kind support may serve as proof of dependency for purposes of workers’ compensation seems to be an unanswered question in our jurisprudence or statutes.

Nevertheless, we conclude that an in-kind support agreement may serve as proof of actual dependency under La. R.S. 23:1231. Although an unfulfilled support obligation does not prove dependency, in this case the parties were actually fulfilling their support obligation to the children. Each parent had custody of one of the two minor children. In the absence of an in-kind support agreement, each parent would have had to provide one-half of the support needed by each child. Thus, each month Ms. Allison could have paid Mr. Allison for her support obligation toward ShannonRay, and |7Mr. Allison could have paid Ms. Allison for his support obligation toward Lance. Under the facts presented in this case, these obligations would have been equal. A recurring exchange of equal sums would unquestionably have established the actual support of Lance by Mr. Allison. Such an exchange would also, in practice, be a pointless waste of time, and the in-kind provision of support was a practical means of avoiding this redundant exchange.

The jurisprudence recognizes that proof of dependency may be shown with evidence outside the usual proof of direct monetary contributions. See, e.g., Silk v. Silk, 29,107 (La.App.2d Cir.01/24/97), 691 So.2d 97, writ denied, 97-1185 (La.06/20/97), 695 So.2d 1361. We consider the provision of in-kind support more like a traditional support agreement than was the support provided in Silk. To hold otherwise would be to create a trap for the unwary heirs of a worker, and we decline to interpret the statute to produce a result not clearly intended by the legislature.

Accordingly, the judgment of the OWC is affirmed. Costs of this appeal are assessed to Randall Well Service, Inc. and American Interstate Insurance Company.

AFFIRMED.

PEATROSS, J., dissents with written reasons.

L PEATROSS,

J. dissenting.

I respectfully dissent. The OWC characterized the Allison’s support arrangement as an “in kind support” situation and accepted this arrangement as proof of the dependence of Lance Allison on the theory that each parent was in reality providing half of the support due to each child. The majority holds that proof of this arrangement referred to as “in kind support” alone is proof of dependency for purposes of workers’ compensation death benefits. I disagree.

It is correct that the contribution required by the statute is not qualified or limited to a monetary contribution. Silk v. Silk, 29,107,(La.App. 2d Cir. 1/24/97), 691 So.2d 97, on rehearing (La.App. 2d Cir. 4/2/97), 691 So. 2d 97, writ denied, 97-1185 (La. 6/20/97), 695 So.2d 1361. In Silk, the surviving child was held to be actually dependant on the deceased father where the parents were not living together, but were not divorced at the time of the father’s untimely death and were attempting reconciliation. Significantly, in Silk, there was evidence of some actual contributions made by the decedent in the year preceding his death to the wife and child in the form of food and butane gas with which the food was cooked. By contrast, in the case sub judice, the Allisons were divorced approximately two years before Robby’s death and the judgment of divorce between the Allisons ^explicitly provided that Robby had no obligation to pay any child support to the mother. This collateral judgment is relevant in this proceeding and, while not conclusive on the question of dependency, it tends to establish that Robby had no actual support obligation toward Lance. In addition, the parties admitted that Robby actually paid no support to Lance or his mother for the two years preceding his death. The record shows that Shannon was completely dependent upon Robby and Lance was completely dependent upon his mother. The fact that some other arrangement might have been made under different circumstances does not satisfy the requirement of the statute that the child prove his actual dependence upon the deceased worker.

Accordingly, I would reverse the judgment of the trial court and render judgment declaring Shannon Ray Allison, through her tutrix Melissa Forsythe, entitled to compensation benefits of 32^ percent of Robby Allison’s average weekly wage, or $117 per week. La. R.S. 23:1232(4).

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, PEATROSS, and LOLLEY, JJ.

Rehearing denied.

GASKINS and PEATROSS, JJ., would grant rehearing.

      . The Louisiana judgment that Mr. Allison had no support obligation, while relevant incompletely describes the support arrangement for purposes of dependency under the workers' compensation law.

      . There is no definition of "in kind support” in the OWC’s judgment. Black’s Law Dictionary defines "in kind” as follows:
      Of the same species or category. In the same kind, class, or genus. A loan is returned "in kind” when not the identical article, but one corresponding and equivalent to it, is given to the lender. (Emphasis added.)
      Blacks Law Dictionary, sixth ed. (1990). In this case, there is no evidence of any correlation between the support provided to Shannon Ray Allison by Robby and the support provided to Lance Allison by his mother in terms of the amount of support provided for each child, the type or kind of support or the time periods when support was to be provided for each child.


source: Caselaw Access Project

author: h STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Donald Ray LEMONS, Appellant.
    No. 38,269-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Louisiana Appellate Project by Margaret S. Sollars, Thibodaux, Paul C. Marx, Lafayette, for Appellant.
    Jerry L. Jones, District Attorney, John M. Ruddick, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and CARAWAY, J J.
   h STEWART, J.

The defendant, Donald Ray Lemons (“Lemons”), was convicted of second degree murder, and sentenced to life imprisonment, without benefit of probation, parole or suspension of sentence, from which he now appeals. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

Lemons was married to, but separated from the victim, Linda Winston (“Winston”). On October 23, 2000, Winston arrived at her office in downtown Monroe, shortly before 7:00 a.m. Bruce Williams (‘Williams”) worked at the building. Shortly after Winston entered the building, Lemons arrived. He visited briefly with Williams, who knew him because they had been incarcerated together, and then went to Winston’s office. Lemons hid a long kitchen knife with a serrated edge in his jacket.

Williams testified that Lemons did not stay in Winston’s office long. He recalled that he was smoking a cigarette when Lemons came into the building, and he was still smoking the same cigarette when Lemons hurriedly left Winston’s office. He also noticed a wet stain on the defendant’s clothing. At the same time, Williams heard a lady scream. He then rushed to Winston’s office where he found her lying on the floor, bleeding profusely. She had been stabbed 12 times. Winston attempted unsuccessfully to speak to Williams, and she died before help could arrive.

The police were called to the scene, and they began to search for the defendant. At about 8:00 a.m., Bill Webb, a detective with the Monroe Police Department, received a phone call from the defendant, who told him |2that he thought “... he had just killed his wife.” Lemons also told Detective Webb where the murder weapon was hidden. Lemons then stated that he wanted to turn himself in and told Detective Webb where he wanted to meet. Detective Webb went and found the knife exactly where the defendant stated that he had hidden it. Detective Webb and another Monroe Police officer went to the location where he had arranged to meet Lemons who turned himself in, and was verbally advised of his rights.

The defendant was taken to the police station, where he was again advised of his Miranda rights. He signed a rights waiver form and gave the officers a recorded statement. He stated that he and Winston were having problems and were separated. He stated that as he was walking to go visit Winston he found a knife, about 12 inches long, on the ground. He stuck the knife in the waistband of his pants. But, before he went across a bridge, he put the knife down on a bridge railing. When asked why he put the knife down, the defendant stated, “[l]ike I stated I laid the knife on the bridge and I said if this knife is here when I get back I don’t want to do this cause I just want to talk to her. I came back and I was drinking a beer. I got back there ... picked the knife up.”

Lemons stated that he then walked to Winston’s office with the knife hidden in his pants. He waited for her outside. After she drove up, he spoke to her, then followed her into the building and her office. Lemons stated that he was upset because he believed that Winston was having an affair. As they argued, Lemons grabbed Winston and turned her around. He only recalled stabbing her once in the neck. He watched her fall to the |afloor bleeding, then left the building. After talking to relatives on the phone, Lemons called the police to turn himself in.

Lemons was originally charged with manslaughter. On January 17, 2001, the state amended the charge to second degree murder. He entered a plea of not guilty by reason of insanity. On June 1, 2001, the defendant filed an “Application for Appointment of a Sanity Commission.” The trial court appointed a sanity commission, which examined the defendant.

On August 6, 2002, a hearing was held on the defendant’s motion to suppress his statement and to determine if he was competent to assist .counsel and capable to stand trial. The parties stipulated to the doctors’ reports. The debate was whether the defendant needed psychiatric help following his military tour of duty where he had to kill several people. Some of the medical experts felt that the defendant may be suffering from post-traumatic stress disorder, but they did not feel that it was sufficient for the defendant not to have been able to distinguish right from wrong when he committed the murder.

The trial court found that the defendant had not cooperated with the sanity commission and had not given it much, if any, substance to base a very definitive opinion on the defendant’s mental state. The trial court found the majority of the four medical reports concluded that the defendant was able to distinguish right from wrong at the time of the offense, and that he was able to assist counsel at the trial. After hearing testimony about the taking of the defendant’s statement, the trial court also found the 14defendant’s statement to the police was freely and voluntarily made, after being fully advised of his rights.

The defendant was tried before a jury. The state’s witnesses consisted of Bruce Williams, who testified about what he saw and heard the morning Ms. Winston was murdered; and four police officers, Larry Ludlow, William C. Webb, Paul Harper and Mark Nappier, who testified about their investigation of the crime and the statement by the defendant admitting to the crime. Dr. Stephen Cogswell, M.D. testified about performing the autopsy of Ms. Winston, and establishing that she had been stabbed 12 times in the neck, chest, back, abdomen and arms. He further testified that 3 of the stab wounds were fatal wounds. The fatal wounds were: a stab wound in the neck, cutting the carotid artery, a stab wound into the chest, cutting the pulmonary artery, and a stab wound into a kidney. Dr. Cogswell estimated that Ms. Winston could have survived only minutes after receiving those wounds.

After the state rested its case, the defendant’s counsel, outside the presence of the jury, stated to the trial court that the defendant wanted to abandon and withdraw his plea of not guilty by reason of insanity. The trial court questioned the defendant and his counsel to confirm that the defendant fully understood the significance of abandoning this defense. When the jury returned to the courtroom, the defendant’s counsel stated to the trial court that the defense rested, without adducing any evidence, and that the defendant was abandoning his defense of not guilty by reason of insanity.

| sAfter being read the instructions, the jury deliberated and announced a verdict of guilty as charged. When the jury was polled, the vote was nine for guilty as charged. Three jurors stated that was not their verdict. The trial court gave the jurors a new verdict form and sent them back to deliberate further. The defendant moved for a mistrial, asserting that one juror had assisted another in completing the polling form. The trial court denied the motion. The jury had been out for six minutes and returned with a verdict of second degree murder. The polling for this verdict was 10 for guilty as charged and 2 against. The defendant again moved for mistrial, asserting that the jury had not been out long enough to deliberate. This motion was denied. The trial court ordered a pre-sentence investigation report.

At sentencing, the defendant’s counsel argued that the life sentence was excessive in light of evidence of “some degree of provocation” and “great evidence of mental instability.” The trial court rejected the defendant’s argument and sentenced the defendant to life imprisonment, without benefit of probation, parole or suspension of sentence. This appeal followed.

DISCUSSION

Sufficiency of Evidence

Lemons argues that the evidence presented was insufficient to convict him of second degree murder, and at best, his actions amounted to manslaughter.

La. R.S. 14:30.1(A)(1) provides: |fiA. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or

La. R.S. 14:31(A)(1) provides:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or

Lemons argues that, when he stabbed his wife 12 times, he acted in immediate, sudden passion or heat of blood because she provoked him. The defendant argues his statements to the police are evidence supporting a finding that he committed the lesser crime of manslaughter rather than second degree murder.

“Sudden passion” and “heat of blood” have been found not to be separate elements of the offense, but are mitigating factors that may show less culpability than when a homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986). Provocation is a question of fact to be determined by the trier of fact. In order to be entitled to the lesser verdict of manslaughter, a defendant is required to prove mitigatory factors by a preponderance of the evidence. State v. Mackens, 35,350 (La.App.2d Cir.12/28/01), 803 So.2d 454; State v. Lombard, supra.

Winston was unarmed when the defendant went into her office and began stabbing her with a kitchen knife. Lemons claims that he was |7provoked when the victim began to berate him. However, the only evidence to support that the victim said or did anything to provoke the defendant was the defendant’s own statement to police investigators. It is noteworthy that Bruce Williams, who was outside of the victim’s office at the time of the murder, did not testify about hearing or seeing anything unusual while Lemons was in Winston’s office. His testimony established that the defendant waited outside the victim’s workplace for at least 20 to 30 minutes until she arrived, followed her into her office, and almost immediately began stabbing her. It is also noteworthy that despite the defendant’s argument that he was upset and suffering from mental instability, Williams testified that the defendant stopped and spoke to him as he entered the building. Williams did not notice anything unusual about the defendant’s demeanor other than the defendant was not neatly dressed, but was dressed in what appeared to be work clothes. Provided with this evidence and the evidence that the defendant followed, confronted, then stabbed his victim 12 times in less than a couple of minutes, the jury was free to draw its own conclusion and disregard defendant’s statements as evidence of any mitigation of defendant’s conduct.

Even if the jury determined that the victim did insult and berate the defendant, it could reasonably conclude that the victim’s actions were not sufficient to mitigate defendant’s action from second degree murder to manslaughter. Provocative acts held to rise to the level of mitigating conduct have involved physical threats or actions on the part of the victim. See State v. Lombard, supra, and State v. Ruff, 504 So.2d 72 (La.App. 2d Cir.1987), writs denied, 508 So.2d 64 (1987) and 508 So.2d 65 (La.1987). Moreover, our courts have not derogated from the principle that “mere words or gestures, however offensive or insulting, will not reduce homicide from murder to manslaughter.” State v. Massey, 535 So.2d 1135 (La.App. 2d Cir.1988); State v. Conerly, 48 La. Ann. 1561, 21 So. 192 (La.1896). Considering the totality of the record before this court, a rational trier of fact could have concluded that the defendant did not establish the mitigating factors for manslaughter, reasonableness of provocation and heat of blood, by a preponderance of the evidence.

The next inquiry is whether the evidence establishes that a reasonable trier of fact could have concluded that the defendant had the requisite intent to commit second degree murder.

Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989). Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993).

In this case, Dr. Cogswell testified extensively about the victim’s wounds. He found three lethal wounds. Her throat was cut several times, ^including one cut that severed her carotid artery. She was stabbed several times in the chest, including one stab in the heart area which severed her pulmonary artery. Lastly, she was stabbed in a kidney. She was also stabbed in the arms, indicating a futile attempt to defend herself. Due to the number of stab wounds, together with the serious nature of the wounds, a reasonable jury could have found that the defendant had the specific intent to kill or inflict great bodily harm upon his wife, without provocation, when he stabbed her. This assignment is therefore without merit.

Excessive Sentence

Lemons argues that although the life sentence is statutorily correct, it is unconstitutionally excessive because he suffers from some form of mental illness, possibly post traumatic stress disorder, which confused his moral perspective and made it difficult for him to distinguish between right and wrong.

The state argues the sentence is statutorily mandated and the argument that it is constitutionally excessive has been repeatedly rejected.

La. R.S. 14:30.1(B) provides:
B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

The defendant was convicted of second degree murder, a violation of La. R.S. 14:30.1, which carries a mandatory sentence of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. It is within the legislature’s authority to determine the length of the sentence imposed for crimes classified as felonies, and the courts are Uncharged with applying these punishments unless they are found to be unconstitutional. State v. Armstrong, 32,279 (La.App.2d Cir.9/22/99), 743 So.2d 284, writ denied, 1999-3151 (La.4/7/00), 759 So.2d 92. The decision to assess mandatory life sentences is within the prerogative of the legislature. State v. Armstrong, supra. The assertion that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Clem, 33,686 (La.App.2d Cir.11/1/00), 779 So.2d 763; State v. Ruffins, 32,870 (La.App.2d Cir.12/10/99), 748 So.2d 614; State v. Armstrong, supra; State v. Davis, 31,-711 (La.App.2d Cir.3/31/99), 732 So.2d 612, unit denied, 99-3114 (La.5/5/00), 761 So.2d 539.

In addition, the defendant has failed to show by clear and convincing evidence that his particular circumstances are an exception to the constitutional application of this mandatory sentence. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. In brief, the defendant argues that the life sentence is unconstitutionally excessive because he suffers from some form of mental illness, possibly post traumatic stress disorder, and this condition confused his moral perspective making it difficult for him to distinguish between right and wrong. However, we note that the defendant chose to abandon his defense of not guilty by reason of insanity during the trial. Moreover, the trial court, reviewing the same medical evidence argued on appeal, found the defendant to have been able to distinguish between right and wrong when he committed the murder. Even considering the defendant’s history of possible mental instability, a sentence of life |imprisonment without benefit of parole, probation, or suspension of sentence in the present case does not shock the sense of justice in light of the crime committed and the likely risk of harm to others by the defendant. This assignment is therefore without merit.

CONCLUSION

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

AFFIRMED.


author: JjLOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. James Edward LATTIN, Appellant.
    No. 37,917-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Bertha M. Hillman, Thibodaux, for Appellant.
    Paul J. Carmouche, District Attorney, Eddie Brossette, Assistant District Attorney, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   JjLOLLEY, J.

This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, James Edward Lattin (“Lattin”), was convicted of possession of a Schedule I controlled dangerous substance, methylen-edioxymethamphetamine (“MDMA”), in violation of La. R.S. 40:966(C). He was adjudicated a second felony offender, and sentenced to pay court costs or in default thereof to serve ten days in the parish jail. In addition, Lattin was ordered to serve eight years at hard labor, without benefit of probation, parole or suspension of sentence, with credit for time served. The sentence, in lieu of costs, was ordered to run concurrent with the hard labor sentence. Lattin appeals his conviction and sentence. We affirm for the following reasons.

FACTS

On October 21, 2001, Shreveport Police Department narcotics agents conducted a “knock and talk” at Lattin’s home. Officer Randy Benton (“Benton”) testified that he observed the defendant with his hand in his left pocket and that he gave the defendant a verbal command to remove his hand from his pocket. Benton stated that Lat-tin was then placed on the ground. According to Benton, he asked the defendant what was in his pocket and was told by Lattin that it was only his cell phone and that the police could search it. A pat down search revealed a cell phone and two tablets which appeared to the officers to be MDMA, otherwise known as Ecstasy.

Lattin was originally charged by bill of information with possession of a Schedule IV controlled dangerous substance in violation of La. R.S. |240:969(C). Subsequently, the state amended the bill of information to charge Lattin with possession of a Schedule I controlled dangerous substance, MDMA, in violation of La. R.S. 40:966(C). Lattin filed a motion to suppress the evidence he argued was illegally obtained at his arrest, which motion was denied. The defendant was tried by jury, found guilty of the charges, and sentenced as stated. This appeal by Lattin ensued.

DISCUSSION

On appeal, Lattin asserts one assignment of error, namely that the trial court erred in denying his challenge for cause as to one prospective juror, Margaret Lenley (“Lenley”), during the voir dire.

When a defendant uses a peremptory challenge after a challenge for cause has been denied, the defendant, in order to obtain a reversal of his conviction, must show erroneous denial of the challenge for cause and use of all peremptory challenges prior to completion of the jury panel. La. C. Cr. P. art. 800; State v. Ross, 623 So.2d 643 (La.1993).

Prejudice is presumed when a trial court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. State v. Robertson, 92-2660 (La.01/14/94), 630 So.2d 1278, 1280. This is because an erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Cross, 93-1189 (La.06/30/95), 658 So.2d 683, 686. Therefore, to prove there has been an error warranting reversal of a conviction and sentence, a defendant need only show: (1) the trial court’s 13erroneous denial of a challenge for cause; and (2) the use of all of his peremptory challenges. State v. Kang, 2002-2812 (La.10/21/03), 859 So.2d 649; State v. Cross, supra; State v. Robertson, supra.

In the instant case, the record reflects Lattin used all of his peremptory challenges. We therefore must determine only the issue of whether the trial judge erroneously denied the defendant’s challenge for cause of the juror, Lenley.

Lattin contends that Lenley demonstrated a bias in favor of the testimony of police officers over other witnesses. In support of his argument the defendant cites State v. Walker, 577 So.2d 770, 773 (La.App. 2d Cir.1991), writ denied, 581 So.2d 704 (La.1991), in which this court held:

A challenge for cause should be granted even where a prospective juror declares impartiality if the juror’s testimony on voir dire reveals the existence of facts from which bias, prejudice, or inability to render judgment according to the law may be reasonably inferred. State v. Smith, 430 So.2d 31 (La.1983); State v. Albert, 414 So.2d 680 (La.1982); State v. Lewis, 391 So.2d 1156 (La.1980). The true test of a juror’s qualification to serve is his or her ability to judge impartially based on the evidence adduced at trial, as gleaned from the totality of responses given at voir dire. State v. Williams, 410 So.2d 217 (La.1982).

A trial judge is afforded great discretion in determining whether cause has been shown to reject a prospective juror. Such determinations will not be disturbed on review unless a review of the voir dire as a whole indicates an abuse of discretion. State v. Kang, supra; State v. Johnson, 36,014 (La.App.2d Cir.06/12/02), 821 So.2d 652; State v. George, 26,867 (La.App.2d4 Cir.04/05/95), 652 So.2d 1382, writ denied, 95-1151 (La.09/29/95), 660 So.2d 855; State v. Walker, supra.

A challenge for cause is not warranted where a prospective juror has volunteered an opinion seemingly prejudicial to the defense, but subsequently on further inquiry has demonstrated the ability and willingness to decide the case impartially according to the law and evidence. State v. Eastin, 419 So.2d 933 (La.1982); State v. Johnson, supra; State v. Wiley, 614 So.2d 862 (La.App. 2d Cir.1993).

Lenley was called and examined with a panel of prospective jurors. The initial questioning was routine, with Lenley being asked the same questions as the other prospective jurors. Lenley stated that she understood the trial court’s instructions and could follow them. During the voir dire, she stated that she had no questions about the difference between actual and constructive possession and agreed with the other prospective jurors that she would follow the law as instructed by the trial judge. She stated that she had no problems with the legal definition of criminal intent and agreed that the burden of proof was on the state and that the defendant did not have to prove anything.

In questioning by the defendant’s counsel, Lenley, as well as the other prospective jurors, acknowledged that she would not know if she had Ecstasy in her hand. All of the prospective jurors, including Lenley, indicated to counsel that if the state got real close to, but not beyond, reasonable doubt, they would not have a problem finding a verdict of not guilty.

| sAgain, Lenley was asked if she could find the defendant not guilty if the state came up just a little bit short of its burden of proof. She replied, “Yes.” When asked, along with the other prospective jurors, if she did not like what the judge told her the law was, would she have any problem or hesitation following the law, to which question Lenley answered, “No.” She also agreed that in considering the evidence, she would give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence.

After both counsel had questioned the prospective jurors, the defense counsel challenged Lenley for cause, arguing “she indicated that she would find a police officer more creditible [sic] than a lay person,” and therefore could not be impartial. The state responded with a request for time to rehabilitate her.

As is shown in the following excerpt from the transcript, when Lenley was brought back in to be rehabilitated, she acknowledged that was her position. The questions by the state commenced as follows:

THE COURT: Ms. Lenley, you indicated in response to a question concerning listening to and finding credibility or more creditable [sic] or less creditable [sic] as far as police officers or law enforcement officers and lay persons. Can you put in your own words how you feel about that?
MS. LENLEY: From the question he asked if I were speaking to them on the street or somewhere I would find them to be equal. But if it was on the witness stand and I didn’t know him or the other person and I was listening to both of them and they were telling two opposite tales then I would have to lean more credibility to the police officer.
THE COURT: Is that just because they were a police officer?
|fiMS. LENLEY: Because of their training.
THE COURT: If the other person had an equal amount of training—
MS. LENLEY: Then they would be equal.
THE COURT: If there was no evidence one way or another about their training—
MS. LENLEY: I believe the question they asked, like I said the other day when I said the same thing, that if a police officer said one thing and the witness contradicted it and said something else which of the two would I give credibility to, and I would have to go with the police officer because of his job, because of the investigation that he did.
THE COURT: That’s based on your experience concerning your training and your observation?
MS. LENLEY: That’s based on my observation and also how I feel.
THE COURT: Any other questions?
MR. BROSSETTE: Ms. Lenley, if a person said one thing and a lay person or another witness said totally the opposite and it was a trial and the state couldn’t produce any other evidence to show guilt do you think that would be sufficient for beyond a reasonable doubt?
THE COURT: That’s an entirely different question. Restate the question.
MR. BROSSETTE: Ms. Lenley, if you found a police officer to be, his testimony to not be creditable [sic ] and the Judge instructed you if you find a witness’s testimony not creditable [sic], that you may disbelieve the entirety of his testimony would you have any problem under the law disbelieving the entirety of a police officer’s testimony?
MS. LENLEY: No, if it was a problem and he was not creditable [sic ].
MR. BROSSETTE: If you found a lay person or a witness to be creditable [sic ], yet you found the police officer to be uncreditable [sic ] based on your observations would you have difficulty believing the lay person?
|7MS. LENLEY: Not as long as — you’re asking me two things that observed a single incident?
MR. BROSSETTE: Yes, ma’am.
MS. LENLEY: I have two people observing the same thing and I don’t know either one of these people. But all of sudden I have two people saying “I saw it happen this way” and “I saw it happen this way.” In my mind which one has been trained to be more observant as to the incident that occurred. There are two people saying they saw the same thing but yet they didn’t see the same thing, and if that is all they are telling me.
MR. BROSSETTE: If there is independent evidence that cast doubt on the police officer’s testimony would you have any difficulty—
MS. LENLEY: No, if there was sufficient evidence.
THE COURT: If the State failed to meet its burden beyond a reasonable doubt would you find the defendant not guilty?
MS. LENLEY: Of course.
MR. BROSSETTE: Would you follow the law as given to you by the Judge?
MS. LENLEY: Of course.
MR. BROSSETTE: Would you apply that law in your evaluation of witnesses whether they be law enforcement or lay persons?
MS. LENLEY: To the best of my ability.
MR. BROSSETTE: Thank you.
MR. CUCCI: No questions, Judge.
THE COURT: Ms. Lenley, what it gets down to, among other things, even if you have feelings concerning police officers what you would be expected to do as a juror is to listen carefully of [sic ] every witness, whether they are law enforcement officers or lay persons, their ability to recall and relate facts to which they testify, their demeanor on the witness stand, any interest they may have in the case or lack of interest, and all those things that help you in weighing their credibility, but treat them equally. Can you do that?
CMS. LENLEY: Of course.

Generally, an individual who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve as a juror; however, the fact that a prospective juror states she would give weight to a law enforcement officer’s training in the area of observation when assessing his credibility is not automatic grounds for a peremptory challenge, if the entire transcript shows that the potential juror demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Kang, supra. Here, Lenley acknowledged that she would be more likely to believe the testimony of a police officer when his testimony involved areas where the officer’s training and experiences may make him more observant than a lay witness in the same situation. Furthermore, Lenley did not state that she would always believe a police officer over a lay witness.

Lenley also unequivocally stated that she would follow the law as given by the trial court and listen carefully to every witness, whether law enforcement or lay. Further she would assess each witness’ credibility by their ability to recall and relate facts to which they testify, their demeanor on the witness stand, their interest or lack of interest, and that she would treat each witness equally. Clearly, the state was able to show that despite Lenley’s opinion, she was able and willing to decide the case impartially according to the law and evidence before her. So considering, there is no showing that the trial court’s decision was an abuse of its discretion, and we |9conclude that defendant’s assignment of error is without merit. Therefore, for the foregoing reasons, defendant’s conviction and sentence is affirmed.

AFFIRMED.


author: J^DREW, J.

text:
    Tonya LEWIS, Plaintiff-Appellee, v. CHATEAU D’ARBONNE NURSE CARE CENTER, Defendant-Appellant.
    No. 38,394-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Hudson, Potts & Bernstein, L.L.P. by Brian P. Bowes, Monroe, for Appellant.
    Law Offices of Street & Street by C. Daniel Street, for Appellee.
    Before BROWN, GASKINS and DREW, JJ.
   J^DREW, J.

Chateau D’Arbonne Nurse Care Center appeals from an Office of Workers’ Compensation (OWC) judgment awarding compensation benefits, penalties, and attorney fees to claimant, Tonya Lewis. The employer contends that (1) claimant was not a credible witness and failed to prove her claim, and (2) the Worker’s Compensation Judge (WCJ) erred in awarding penalties and attorney fees. We affirm.

FACTS

Chateau is an inpatient health care facility in Farmerville. Lewis, a certified nursing assistant, worked for Chateau over several different periods during the past decade. Prior to this alleged accident, her most recent period of employment had commenced in November 2002. Her responsibilities included feeding and moving patients.

On December 29, 2002, claimant and another employee, Alice Kelly, were lifting a 200-pound male patient from a bed into a wheelchair. As they lifted the patient, Lewis felt something “pop” in her back. She described the sensation as feeling “like someone had stabbed her.” Kelly confirmed that during the process of lifting the patient, Lewis started screaming and complaining of back pain as she bent over the bed in apparent pain. The two women called for the nursing supervisor, who spoke with both ladies and sent Lewis to the emergency room at Union General Hospital in Farmerville. The nursing supervisor also prepared an incident report for Chateau’s records.

Claimant had a back x-ray at the hospital and was told that she had perhaps pulled a muscle; the only abnormality noted on Lewis’ x-ray report | ?.was “minimal narrowing L5-S1 disc space.” The doctor prescribed Toradol (an analgesic), Flexeril (a muscle relaxant), and Bextra (an anti-inflammatory), and instructed Lewis not to work for three to four days and to return only to light-duty work. Claimant purchased the Toradol and Flexeril but could not afford to buy the Bextra. She went home to rest for the prescribed period. In addition to the Toradol and Flexeril, Lewis said that she also took Lortab (hydroco-done) and Darvocet (propoxyphene) to relieve the pain, explaining that she had previously been prescribed these medications for pain stemming from ulcerative colitis, a condition from which she has suffered since age 13. The next day, she returned to the hospital for a drug screen test.

Lewis said that she attempted to return to work, but experienced great pain on her first day back while sitting in a chair, and had to go home. Learning that Chateau would pay for her medication, she then filled the Bextra prescription.

On February 6, 2003, after another brief respite at home, she again attempted to return to work, but had to leave due to pain suffered as she tried to remove a patient’s shoes. She testified that the day after this incident, she attempted to go to her class at college but was unable to sit for very long and had to go to the emergency room for further treatment.

The emergency room doctor gave claimant a shot of Demerol and set her up with a February 10 appointment to see her general practice doctor, Dr. Steven Unkel. Lewis gave Dr. Unkel a history of injuring her back when lifting a patient. Dr. Unkel believed that she had sprained her back, | ¡¡restricting her from working. Dr. Unkel prescribed steroids, muscle relaxants, and pain killers; and recommended physical therapy. At his deposition, Dr. Unkel recalled prescribing hydrocodone, hydromor-phone (Dilaudid), and Darvocet for Lewis’ pain from ulcerative colitis in the past. In another deposition, Dr. John Smiarowski said that he- might have prescribed Darvo-cet to her. Lewis attempted to undergo physical therapy but said that her pain became worse upon performing the therapy, and she elected not to continue.

Claimant saw Dr. Unkel again on February 20, complaining of worse back pain and shooting pain in her left leg. The doctor again prescribed steroids, anti-inflammatory medicine, and pain killers, and added a prescription for Elavil, an antidepressant that the doctor said sometimes helps with nerve-related pain. Lewis next saw Dr. Unkel on March 5, 2003, and reported that her pain, while still present, was improved. Dr. Unkel recommended exercise.

On March 7, 2003, Chateau’s director of nursing, Tammy Matthews Dankleson, called Lewis. Dankleson had received that day a copy of the drug screen performed on claimant the day after the accident. The drug screen was positive for drugs (hydrocodone and hydromorphone) not listed by Lewis on the forms she completed upon her most recent employment with Chateau. Dankleson was concerned that Lewis had been working under the influence of those drugs, and that day Dankleson fired claimant. Lewis later provided prescriptions for these drugs to Dankleson, but Chateau refused to rehire Lewis.

|4On March 11, 2003, claimant saw Dr. Unkel again, and the doctor released her to return to light-duty work. However, Lewis’ pain, including numbness in her left leg, persisted. On March 14, 2003, Lewis filed a disputed claim for compensation against Chateau; Chateau did not pay Lewis indemnity benefits or provide her with additional medical treatment.

Claimant saw an orthopedic surgeon, Dr. Douglas Brown, on March 17, 2003. Lewis denied having any prior back troubles. Dr. Brown reviewed a new x-ray of Lewis’ back and found that her L5-S1 disc was ruptured/herniated. A later MRI confirmed this diagnosis and also confirmed Dr. Brown’s observation of some degenerative changes at the L3-4 disc. The doctor explained in his deposition that the symptoms claimant described — a “pop” feeling in the back and pain radiating into the legs — are the classic presentations of an acute disc injury. He also said that the events in December 2002 and in February 2003 “certainly ... made the disc worse.” Dr. Brown recommended surgery, a lami-nectomy, to remove the disc. The doctor restricted Lewis from working and said that Lewis would be unable to work with the disc in its ruptured condition.

In mid-May of 2003, at the request of Chateau, Lewis saw another orthopedic surgeon, Dr. Carl Goodman, for an evaluation. Claimant again denied having any prior back troubles. Dr. Goodman confirmed the disc herniation observed by Dr. Brown and also recommended surgery. Dr. Goodman believed the injury to be an acute injury rather than the result of a degenerative problem because the images of Lewis’ back showed disc material outside the disc space. The doctor said that the pain and numbness |Bthat Lewis said she suffered in her left leg immediately after the December 2002 incident were consistent with this type of acute disc injury.

Claimant denied having any problems with her back prior to the December 2002 incident. At her deposition, Lewis said she did not recall having any previous complaints of, or treatment for, back pain. Dr. Goodman reviewed Lewis’ medical records and noted that she had made complaints of back pain and leg numbness prior to the 2002 incident, but said that the symptoms with which she presented to him related back to the 2002/2003 events at work.

Indeed, Lewis’ history does include complaints of back pain prior to the accident at Chateau. The record shows that Lewis went to the emergency room at Union General Hospital in October 1992, December 2000, and June 2002, with complaints of back pain. Also, on December 31, 2001, she visited the emergency room with a complaint of right hip pain radiating down to her right foot. Dr. Unkel explained that the 1992 problem was a pelvic infection, not a low back injury. The doctor also said that he had treated Lewis in August 2000 for complaints of abdominal and back pain secondary to her ulcerative colitis.

The Union General records reflect that Lewis had many other visits to the emergency room with complaints of abdominal pain generally that were suspected to be secondary to her ulcerative colitis. She explained that, “When I go to the emergency room, it’s for my colitis.”

Claimant had also been in a car accident in 1999; she testified that the only injury she suffered in that accident was some scarring on her face. She 1 fiadmitted that she had complaints of back and leg pain at that time but said that the doctor diagnosed her with tendinitis in her hip, not a back problem, and at trial she indicated that the pain from the accident was in a different area. Records of the treating physician, Dr. Richard Ballard, confirm the tendinitis diagnosis.

Lewis called in sick on September 8, 2002, to miss work at Chateau due to a backache. Rebecca Norton, the Chateau employee who took the call, had no independent memory of the cause of this complaint. Claimant explained that on that date, she was having back pain secondary to her menstrual cycle.

After hearing the testimony of the witnesses and considering the medical records, the WCJ found in favor of Lewis, observing that:

• The symptoms claimant described at the time of the December 2002 incident were consistent with those described by the doctors as symptoms of an acute disc injury.
• Kelly witnessed the incident and the nursing supervisor arrived at the scene shortly after it occurred.
• Lewis had carried her burden of proof that she suffered the acute back injury on December 29, 2002, in the course of her employment.

The WCJ ruled that claimant was entitled to temporary total disability benefits from February 7, 2003, and to medical benefits, including the recommended surgery.

The WCJ also found that Chateau had been arbitrary and capricious in denying indemnity and medical benefits to Lewis. The WCJ observed that:

• If Chateau had investigated the incident, the employer would either have come to the conclusion that Lewis had been injured when she |7claimed to have been, or would have decided they were not going to pay for arbitrary and capricious reasons.
• Dr. Brown’s examination made it clear that Lewis’ injury was a new injury, not a pre-existing problem, and that Chateau offered no alternative cause for the injury.
• Lewis appeared at a previous hearing “walk[ing] in a bent-over condition” and that she continued to walk in this position.

The WCJ awarded the maximum penalty for both the failure to pay benefits and the failure to authorize surgery and noted that “the only reason I’m assessing a two thousand dollar penalty for their failure to authorize the surgery is because the law won’t let me go any higher on that one.” The trial court assessed Chateau with $6,000.00 in attorney fees for each of the two failures to pay benefits.

LAW AND DISCUSSION

Proof of Injury

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of her employment. La. R.S. 23:1031. The injured employee bears the initial burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. The claimant is not required to establish the exact cause of the disability, but must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. Quinones v. U.S. Fidelity and Guar. Co., 93-1648 (La.1/14/94), 630 So.2d 1303; Thompson v. Dillard’s Department Store, 32,974 (La.App.2d Cir.5/10/00), 759 So.2d 1074. Proof by a preponderance of the |sevidence exists when the evidence, taken as a whole, shows the facts sought to be proved are more probable than not. Thompson, supra.

The causal connection can be established when the employee proves that before the accident she was in good health, but commencing with the accident, symptoms of the disabling condition appeared, and there is sufficient medical evidence to show a reasonable possibility of a causal connection between the accident and the disabling condition. Quinones v. U.S. Fidelity and Guar. Co., supra; Thompson, supra. An employee’s pre-existing condition does not disqualify her claim if the work-related injury either aggravated or combined with the infirmity to produce the disability for which compensation is claimed. Thompson, supra. When a claimant proves that she had no disabling symptoms before the accident, but that commencing with the accident, the disabling symptoms appeared, and there is medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition, a claimant’s work injury is presumed to have aggravated a pre-exist-ing infirmity to produce his disability. Thompson, supra.

On appeal, Chateau urges that the circumstances of this incident showed that claimant’s account was not credible. Chateau, in particular, points to the lack of obvious trauma at the time of the accident and the medical evidence of Lewis’ back problems prior to the incident. We observe that the type of injury Lewis sustained is not the sort that is usually accompanied by an obvious trauma. The symptoms claimant reported as commencing at the time of the incident were those described by Dr. Brown Las the classic presentation of a disc injury. Further, according to the medical evidence and deposition testimony, Lewis’ prior back troubles were consistent with her ulcerative colitis, infection, or pain from a car accident and were not consistent with a recent acute disc injury.

The judge’s finding that Lewis proved that she suffered an injury is essentially a finding of fact, based, at least in part, upon claimant’s credibility. Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Harris v. Coushatta Industrial Sand, Inc., 31,977 (La.App.6/16/99) 741 So.2d 143. Factual findings in workers’ compensation cases are subject to the manifest error rule. Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Stobart v. State, 617 So.2d 880 (La.1993); Graham v. Georgia-Pacific Corp., 26,165 (La.App.2d Cir.09/23/94), 643 So.2d 352. An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart, supra. The trial court is in a superior position to evaluate the credibility of witnesses than is the appellate court. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra. In this case, we find no manifest error in the trial court’s conclusion that Lewis proved that she suffered a back injury at work.

|inTemporary Total Disability Benefits

An injured employee seeking temporary total disability benefits must prove by clear and convincing evidence that she is physically unable to engage in any employment, regardless of its nature, including employment while working in pain. La. R.S. 23:1221(1); Atwood v. Ewing Timber, Inc., 34,045 (La.App.2d Cir.12/15/00), 774 So.2d 1140, unit denied, 2001-0543 (La.5/11/01), 792 So.2d 733. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable; i.e., much more probable than its nonexistence. Knotts v. Snelling Temporaries, 27,773 (La.App.2d Cir.12/6/95), 665 So.2d 657. A claimant may prove disability through medical and lay testimony. The WCJ must weigh all of the evidence to determine if the claimant has met her burden of proving temporary total disability. Atwood v. Ewing Timber, supra.

Claimant testified that she attempted to return to work after the incident on at least two occasions but suffered pain too great to allow her to continue to work. By March 11, 2003, Dr. Unkel released Lewis to return to light-duty work, but her pain persisted, and less than a week later, March 17, 2003, Dr. Brown restricted Lewis from working. Additionally, Dr. Brown said that Lewis’ back injury prevented her from working. Given the objective evidence of the disc injury commencing in December 2002, the circumstances clearly show that claimant was temporarily totally disabled as a result of this injury.

In Medical Expenses

A workers’ compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition caused by a work-related injury. Tatum v. St. Patrick’s Psychiatric Hosp., 32,616 (La.App.2d Cir.12/30/99), 748 So.2d 1276, unit denied, 2000-0288 (La.3/24/00), 758 So.2d 157. The employee must prove by a reasonable preponderance of the evidence the necessity and relationship of the physician’s treatment to the work-related accident. La. R.S. 23:1203; Balsamo v. Jones, 28,885 (La.App.2d Cir.12/11/96), 685 So.2d 1140. Both Dr. Brown and Dr. Goodman opined that Lewis needed surgery to correct her back injury, and it was not error for the trial court to find this treatment to be necessary.

Penalties and Attorney fees

The remaining questions concern the penalties and attorney fees awarded by the WCJ for Chateau’s failure to pay indemnity and medical benefits. The employer’s failure to provide payment of compensation or medical benefits owed shall result in the assessment of a penalty and reasonable attorney fees, unless the employer has reasonably controverted the claim. La. R.S. 23:1201(F); Baker v. Libbey Glass, Inc., 32,748 (La.App.2d Cir.5/10/00), 759 So.2d 1007; writ denied, 2000-1676 (La.9/15/00), 768 So.2d 1280. To reasonably controvert a claim, the employer must have sufficient factual or medical information to reasonably counter the evidence provided by claimant. Balsamo v. Jones, supra. La. R.S. 23:1201.2 provided for an assessment of attorney fees when the employer | ^arbitrarily and capriciously discontinued benefits without probable cause. Thomason v. Wal-Mart Stores, Inc., 37,520 (La.App.2d Cir.9/04/03), 852 So.2d 1283, writ denied, 2003-2774 (La.12/19/03), 861 So.2d 573. Although this employer initially paid some of Lewis’ medical expenses, the claimant never received any weekly benefits.

Statutory provisions permitting the assessment of penalties and attorney fees for nonpayment of workers’ compensation benefits are penal in nature and must be strictly construed. Davis v. Jones Baldwin Music Co., 27,545 (La.App.2d Cir.11/1/95), 662 So.2d 803. The WCJ’s decision concerning whether or not to assess statutory penalties and attorney fees will not be disturbed absent an abuse of discretion. Balsamo v. Jones, supra.

The amount of attorney fees awarded rests within the discretion of the WCJ, and that determination will not be disturbed absent an abuse of that discretion. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694; Ward v. Phoenix Operating Co., 31,656 (La.App.2d Cir.2/24/99), 729 So.2d 109. The factors to be considered in determining the amount of the attorney fees include the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case. McCarroll, supra; Ward, supra.

Although we strictly construe these statutes, we cannot conclude that the trial court erred in awarding these penalties and attorney fees for Chateau’s failure to pay benefits. Claimant’s medical records did show 11sevidence of back pain predating this incident. She had called in sick once to Chateau with a backache. However, these records show that she frequently visited the local emergency room with complaints of abdominal pain caused by her ulcerative colitis, a condition that she had previously disclosed to Chateau. The medical evidence from the time of her car accident showed a hip injury, not a back injury. Further, she suffered the type of injury described by Drs. Brown and Goodman as an acute injury rather than a recurring or chronic problem. The back injury was objectively confirmed with x-ray and MRI as an acute injury. Given these facts, the evidence of prior back pain was insufficient to reasonably controvert Lewis’ claim for her ruptured disc. Under either statutory standard, reasonably controverted in La. R.S. 23:1201(F), or arbitrary, capricious, and without probable cause in La. R.S. 23:1201.2, the penalties and attorney fees were properly awarded.

CONCLUSION

For the above reasons, the judgment of the OWC is affirmed in all respects. Costs of this appeal are assessed to Chateau D’Arbonne Nurse Care Center.

AFFIRMED.

      . This action was filed March 14, 2003, and the judgment was rendered August 12, 2003, and signed August 21, 2003. Effective August 15, 2003, Act 1204 of the Regular 2003 Louisiana Legislature repealed La. R.S. 23:1201.2 and amended portions of La. R.S. 23:1202(F) concerning penalties and attorney fees. This matter is governed by the acts in effect at the time of the injury. Travelers Insurance Co. v. Reliable Homes Health Care, Inc., 99-0314 (La.App. 4th Cir.6/7/00), 765 So.2d 445, writ denied, 2000-2025 (La.10/6/00), 771 So.2d 87.


author: 11 GASKINS, J.

text:
    AMERICAN CENTRAL INSURANCE CO., Plaintiff-Appellant v. BOUCHER & SLACK INSURANCE AGENCY, et al., Defendants-Appellees.
    No. 38,310-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.
    Rehearing Denied May 6, 2004.

      Hayes, Harkey, Smith & Cascio by Joseph D. Cascio, Jr., Monroe, John C. Roa, for Appellant.
    Sharp, Henry, Cerniglia, Colvin, Weaver & Hymel, by James H. Colvin, Shreveport, for Appellees.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   11 GASKINS, J.

The plaintiff, American Central Insurance Company, appeals the trial court judgment applying principles of comparative fault in apportioning damages arising from the failure of its agent, Boucher & Slack Insurance Agency, Inc., to obtain an uninsured motorist coverage form from an insured. For the following reasons, we reverse the trial court judgment.

FACTS

Boucher & Slack Insurance Agency, Inc. (Boucher & Slack) is an independent insurance agency selling policies for numerous insurers, including the plaintiff, American Central Insurance Company (American). Over the years, Teddy Hanson purchased various policies of automobile liability insurance coverage from American through Boucher & Slack. In June 1991, Mr. Hanson had only one policy, MEZV38473 (73). That policy had bodily injury liability limits of $500,000 and underinsured/uninsured (UM) coverage limits of $50,000. Mr. Hanson executed the UM coverage form specifying that the UM limits would be less than the bodily injury limits.

In August 1993, American installed computer equipment and software called FormLink at Boucher & Slack for the paperless transmission of insurance applications. Boucher & Slack was instructed to obtain signatures on UM rejection forms and to keep those on file at their office. American periodically conducted audits to insure that Boucher & Slack secured the necessary UM forms.

In November 1994, Mr. Hanson sought to add a 1995 pickup truck to his policy. American would only allow four vehicles to be listed on a | ^policy. Because Mr. Hanson already had four vehicles on policy 73, American required that a new policy be purchased. Employees of Boucher & Slack conveyed the new policy application to American by computer. The application indicated that Mr. Hanson wanted bodily injury liability coverage of $500,000 and only $50,000 in UM coverage, as he had on policy 73. However, Boucher & Slack failed to have Mr. Hanson execute a UM rejection form.

American accepted the application and issued a policy of insurance for the fifth vehicle, bearing policy number MEZ043183 (83). American assumed that Boucher & Slack had obtained a signed UM rejection form pursuant to prior instructions and routine procedures. Mr. Hanson was billed as though his coverage on the new policy was the same as on policy 73.

On December 31, 1997, Mr. Hanson’s son Micah, a resident family member of the Hanson household, was seriously injured while a passenger in a vehicle operated by a friend. The friend’s insurance carrier paid its $50,000 bodily injury liability limit and the Hansons made a claim for UM benefits with American on policy 83.

American requested that Boucher & Slack produce the signed UM form on policy 83. Boucher & Slack informed American that the UM form had not been executed by Mr. Hanson. American conceded that without the UM rejection form, the UM limits were equal to the bodily injury limits of $500,000. American paid $420,000 on the UM claim. American then filed suit against Boucher & Slack and its professional liability insurer, l3Employers Reinsurance Company (ERC), to recover $370,000 it argued that it was forced to pay due to Boucher & Slack’s failure to obtain the executed UM rejection form. American asserted that Boucher & Slack breached its duty as agent for American.

Boucher & Slack and ERC answered, denying the plaintiffs claims and asserting the affirmative defenses of waiver and es-toppel. Boucher & Slack argued that because the computer program supplied by American did not contain all the information necessary for the company to issue a policy, including information about UM coverage, American waived its right to complain. Boucher & Slack also argued that American’s FormLink software only allowed for four vehicles to be insured on one policy. If American had not imposed this limit, the fifth vehicle could have been placed on the existing policy and would have been subject to the UM form already executed and on file. Boucher & Slack further contended that, if it was found to be liable to American, the amount of recovery should be reduced by the percentage of negligence attributable to American.

A bench trial was held on July 15-16, 2002. The trial court issued reasons for judgment, noting that in issuing policy 83, American did not require Boucher & Slack to show that the UM rejection form had been executed. The court cited the statutory and jurisprudential changes regarding UM rejection forms in recent years and noted that, in light of the | ¿complexities of UM forms, American should have taken more care to see that the form was properly executed.

The court said that most insurance companies require satisfactory proof that a UM rejection form has been executed. According to the court, “Given the ease of obtaining that information by fax, balanced by the seriousness of the issue, American Central has mainly itself to blame for issuing the policy without first viewing a validly executed UM rejection form.”

The court apportioned fault 75 percent to American and 25 percent to Boucher & Slack. A judgment to that effect against American and ERC was signed on June 4, 2003. The defendants appealed.

LIABILITY FOR LOSS

American argues that the trial court erred in assessing it with any percentage of fault. In the alternative, American argued that the trial court assessed too great a percentage of fault. American urges that it was reasonable in relying upon Boucher & Slack, as its agent, to obtain signatures on the UM forms when necessary. American contends that Boucher & Slack breached a duty to obtain the UM rejection form on policy 83. This was Boucher & Slack’s responsibility and its employees were trained to comply with this requirement.

American stated that periodic audits were held and deficiencies in compliance were noted. American points out that this case is not about an ambiguity or a legally deficient UM rejection form. Rather, it involves the total failure to execute the form. According to American, the fact that it | shoes not require Boucher & Slack to submit each form for inspection does not constitute negligent behavior by American. American maintains that Boucher & Slack was required to fulfill its mandate with prudence and diligence.

American asserts that the facts in this matter are not in dispute. Rather it contends that the trial court came to the wrong legal conclusion and therefore no deference should be given to its allocation of fault. These arguments have merit.

The parties argue as to the applicable standard of review in this case. The plaintiff contends that the trial court erred as a matter of law in applying principles of comparative fault to this case, and therefore, the matter should be reviewed de novo. The defendant urges that the manifest error standard of review should be applied to affirm the trial court judgment. We find it unnecessary to determine whether principles of comparative negligence are applicable in this case. We find that, even under the manifest error standard of review, the trial court erred in assessing any degree of fault to American.

This case concerns the duty owed by an agent to its principal. La. C.C. art. 2989 defines mandate as follows:

A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.
La. C.C. art. 3001 provides that:
The mandatary is bound to fulfill with prudence and diligence the mandate he has accepted. He is responsible to the principal for the loss that the principal sustains as a result of the mandatary’s failure to perform.

| Jt is settled law that where an insurer is exposed to liability for policy claims because of action by its agent beyond the agent’s authority or contrary to instructions, the agent is accountable to the insurer for the latter’s loss. American Fire & Marine Insurance Company v. Seymour, 144 So. 775 (La.App. 2d Cir.1932); Richard v. American Federation of Unions Local 102, 378 So.2d 564 (La.App. 3d Cir.1979); Toups v. Equitable Life Assurance, 94-1232 (La.App. 3d Cir.5/3/95), 657 So.2d 142, units denied, 95-2102, 95-2103, 95-2110 (La.12/8/95), 664 So.2d 421; Chiasson v. Whitney, 427 So.2d 470 (La.App. 5th Cir.1983), writs denied, 433 So.2d 179, 180, 183 (La.1983).

The relevant facts in this case are not disputed. American was Boucher & Slack’s principal and charged the company, as its agent or mandatary, with correctly completing applications for insurance policies and transmitting the applications by computer to American. In addition, Boucher & Slack was charged with securing valid UM forms, signed by the insured, and with maintaining the executed forms in the files at Boucher & Slack’s office. Boucher & Slack admits that in this case, it failed to fulfill its duty as American’s agent. Because of that failure, American was required to pay $370,000 on Mr. Hanson’s UM claim that it would not have been liable for had Boucher & Slack fulfilled its mandate with prudence and diligence. Accordingly, under La. C.C. art. 3001, Boucher & Slack is responsible to American for this loss.

We reject arguments by Boucher & Slack that American is partially responsible for the risk it suffered. Boucher & Slack contends that, because |7American audited their records and sometimes found deficiencies in the maintenance of the required UM forms, American was somehow at fault in this matter. We are also not persuaded by Boucher & Slack’s contention that American “assumed the risk” in this matter by failing to have the company submit proof of the completion of UM forms with each insurance application, a practice it contends is standard in the insurance industry. Based upon these factors, Boucher & Slack argues that American has waived its complaint or is estopped from recovering for a clear breach of duty by Boucher & Slack.

Regarding the periodic audits, the failure of Boucher & Slack to perform in other instances has no bearing on the matter at hand. However, it does reinforce the fact that Boucher & Slack was fully aware of its obligation to American, accepted that obligation, and, in this instance, failed to fulfill its duty.

Further, American was not at fault, but rather had the right as a principal to delegate to Boucher & Slack, as its agent, the responsibility for securing the signed UM forms and keeping them on file at the Boucher & Slack office. The agreements between other insurance companies and their agents have no bearing upon the agreement at issue here. The record shows that Boucher & Slack accepted the responsibility from American of securing the completed UM forms and maintaining them in their files. In this instance, Boucher & Slack breached that duty and is solely laible for American’s loss.

|8Our conclusion that Boucher & Slack is liable to American for the loss sustained by its failure to secure an executed UM form is supported by the jurisprudence. In Toups v. Equitable Life Assurance, supra, an insurance agent did not write down all the information that he was given in an application, resulting in the insurer, paying a claim it would not otherwise have covered. The court found that the agent was liable to the insurer for his failure to comply with the insurer’s instructions.

In Richard v. American Federation of Unions Local 102, supra, the local union, as agent for Blue Cross Insurance Company, improperly certified that Richard was eligible for health insurance. Only union members who were actually working could be covered. Richard was not working due to a disability and therefore not eligible for health insurance. The court allowed Richard to recover on the insurance policy, but granted a third party demand by Blue Cross against the local union. According to the court, the union was the agent of Blue Cross, knew the requirements for insurance eligibility, and certified Richard as eligible for coverage when he was not. Because the union acted beyond its authority and contrary to the instructions of its principal, Blue Cross, it was found to be liable to the insurer.

An interesting contrast to the facts present here is found in Gardiner v. Commercial Union Insurance Companies, 488 So.2d 1331 (La.App. 3d Cir.1986). In Gardiner, the insured’s signature was forged on a waiver of UM coverage. There was no proof of who signed the form. The court | flfailed to find the agency liable to the insurer because it was not established that the insurer ever required that its agents verify signatures of policyholders electing lower limits of UM coverage. Conversely, in the present matter, it is undisputed that Boucher & Slack knew that it was required to obtain validly executed UM forms and to maintain them in their files.

Accordingly, we find that Boucher & Slack was totally at fault in failing to obtain the required form lowering Mr. Hanson’s UM limit to $50,000, rather than maintaining it at the bodily injury limit of $500,000. Therefore, Boucher & Slack and its professional liability insurer, Employers Reinsurance Company, are liable to American for the total loss caused by this breach of duty, $370,000.

CONCLUSION

For the reasons stated above, we reverse the trial court judgment which assessed American with 75 percent fault in the failure of its agent to secure a validly executed form lowering the UM limits of its insured on the policy at issue here. We find that the defendant, Boucher & Slack Insurance Agency, Inc., was solely at fault in failing to secure the form. Boucher & Slack is liable for the loss sustained by its principal, American Central Insurance Company. We award judgment to American Central Insurance Company against Boucher & Slack Insurance Agency, Inc. and its professional liability insurer, Employers Reinsurance Company, in the _[i¡)amount of $870,000, with legal interest from the date of judicial demand. Costs are taxed to the defendants.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, DREW, and LLOLEY, JJ.

Rehearing denied.

      . American paid $420,000 on the claim, but it only sought to recover $370,000 from Boucher & Slack, acknowledging that it would have had to pay the difference, $50,000, even if the UM waiver had been executed.

      . See also American Fire & Marine Insurance Company v. Seymour, supra, in which an agent was found to be liable for selling an insurance policy without authorization.


text:
    STATE of Louisiana, Appellee, v. Daniel David ROARK, Appellant.
    No. 38,248-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Edward Kelly Bauman, Lake Charles, for Appellant.
    Terry R. Reeves, District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   JjLOLLEY, J.

This criminal appeal arises from the Eighth Judicial District Court for the Parish of Winn, State of Louisiana. Daniel David Roark (“Roark”) entered a guilty plea to theft over five hundred dollars pursuant to La. R.S. 14:67 B(l), for which he was sentenced to serve nine years imprisonment. Roark now appeals. For the following reasons, the defendant’s conviction is reversed, his sentence is vacated, and the matter is remanded for further proceedings.

Facts

In May 2002, Roark and a companion illegally entered ten hunting camps belonging to the members of the Flatcreek Hunting Club and took several items, including binoculars, shot gun shells, a VCR, gloves, and other items, the value of which totaled in excess of $500.00. For his part in the crime, Roark was initially charged with one count of simple burglary of ten hunting camps, in violation of La. R.S. 14:62, punishable by imprisonment of not more than 12 years, with or without hard labor and an optional fine of up to two thousand dollars. As part of a plea-bargain agreement, the state agreed to accept a guilty plea to the reduced charge of theft of things valued five hundred dollars or more, a violation of La. R.S. 14:67 B(l). The defendant was advised of his Boykin rights and indicated that he understood and waived those rights. The state set forth the factual basis for the plea into the record, and the trial court accepted the defendant’s guilty plea as freely and voluntarily given.

Also as part of the plea-bargain, the state agreed to sentencing under La. C. Cr. P. art. 893, which sentencing would take place the following 12month. Roark’s sentencing exposure was ten years imprisonment with or without hard labor and an optional fine of not more than three thousand dollars.

After his sentencing hearing, Roark was sentenced under La. C. Cr. P. art. 893, to pay a fine of one thousand dollars and court costs. Imposition of the jail sentence was suspended, and he was placed on three years supervised probation with special conditions. However, due to violation of the terms of his parole, Roark’s probation subsequently was revoked, and he was sentenced to serve nine years imprisonment. At the sentencing, an oral objection to the sentence was made. The defendant was advised of the time delays within which to apply for post-conviction relief under La. C. Cr. P. art. 930.8, and of his right to appeal. Roark now appeals his sentence as excessive under the facts and circumstances of the case.

Discussion

As stated, Roark was originally charged with simple burglary and pled guilty to the reduced charge of theft of things valued five hundred dollars or more. On appeal, he argues that the district judge imposed an excessive sentence. Our review discloses an error patent invalidating defendant’s plea. Accordingly, we reverse the conviction, vacate the sentence, and remand the case for further proceedings.

Jurisdictional defects, discoverable as error patent on the face of the record, are those defects which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged. State v. Cook, 372 So.2d 1202 (La.1979); State v. Kendrick, 34,097 (La.App.2d Cir.12/20/00), 779 So.2d 884; State v. Gooden, 523 So.2d 283 (La.App. 2d Cir.1988), writ denied, 530 So.2d 570 (La.1988). In addressing appeals from guilty pleas, we may review jurisdictional defects discoverable as error patent on the face of the record. State v. Cook, supra; State v. Gooden, supra; see also La. C. Cr. P. art. 920(2). Jurisdiction ratione materiae is nonwaivable and, without it, the trial court’s action is an absolute nullity. State v. Gooden, supra. Such deficiencies, even when arising through a guilty plea, must be recognized upon review. State v. Rivers, 28,565 (La.App.2d Cir.09/25/96), 681 So.2d 39; State v. Monroe, 25,825 (La.App.2d Cir.03/30/94), 635 So.2d 481.

In all prosecutions, the Louisiana Constitution requires that the accused be informed of the nature and cause of the accusation against him. La. Const. Art. 1, §§ 13. A defendant cannot plead guilty to a crime with which he is not charged, and the trial judge is without authority to accept such a plea. State v. Kendrick, supra; State v. Rivers, supra; State v. Gooden, supra. Here, the original bill of information charged Roark with simple burglary. The state agreed to accept the defendant’s guilty plea to the reduced charge of theft of things valued five hundred dollars or more. However, that crime is not a responsive verdict to the original bill of information charging the defendant with simple burglary. See, La. C. Cr. P. art. 814 A(44).

A defendant is not prohibited from entering a plea of guilty to a crime non-responsive to the original indictment when such a plea is acceptable to the district attorney. La. C. Cr. P. art 487 B. Although the district attorney 14is not required to file a new indictment to charge the crime to which the plea is offered, in such a case, however, the district attorney must amend the indictment to indicate the non-responsive crime. State v. Gooden, supra.

In the case sub judice, no oral or written amendment to the original bill of information appears of record. Thus, the trial court lacked jurisdiction to accept Roark’s guilty plea to a non-charged offense. The conviction and sentence are therefore illegal and are annulled. The defendant’s conviction is reversed, his sentence is vacated and the matter is remanded for further proceedings.

CONVICTION REVERSED, SENTENCE VACATED AND REMANDED.