author: J^FOIL, J.

text:
    Precious JONES, Individually and on behalf of Her Minor Children, Melvin Jones, III and Michael Jones and Tonya Bickham on behalf of Her Minor Child, Jonathan Lewis v. NORTHLAKE DISPOSAL SERVICES, CO. Jonathan Lewis (Estate of Melvin Jones) v. Northlake Disposal Services, Co.
    No. 2002 CA 0076, 2002 CA 0077.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.

      Henri M. Saunders, Baton Rouge, for Appellants Plaintiffs Precious Jones, et al.
    Stephen W. Brooks, Jr., William G. Tabb, III, Covington, for Appellee Defendant Northshore Disposal Services Co.
    John Berry, River Ridge, for Appellee Defendant Mary Parker Jones.
    Before: FOIL, FOGG and KLINE, JJ.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   J^FOIL, J.

This workers’ compensation matter involves the disputed claims of two women who are seeking death benefits on behalf of their minor children. On appeal, they challenge the judgment of the Workers’ Compensation Judge denying their motion to nullify two prior judgments awarding death benefits to the decedent’s mother and granting the defendant employer’s peremptory exception of res judicata. For the reasons that follow, the judgment sustaining the exception of res judicata is reversed and the matter is remanded for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

On November 27, 1998, Melvin Jones, Jr. was killed in an accident while in the course and scope of his employment as a garbage collector with defendant, North-shore Disposal Services, Co. Following his death, two separate demands for death benefits were presented to Northshore: one by decedent’s mother, Mary Parker Jones, and one by his wife, Precious Jones. At the time of his death, decedent had three allegedly dependent children: Melvin Jones, III and Michael Jones, who were born of his marriage to claimant, Precious Jones; and Jonathan Lewis, the biological son of decedent and Tonya Bick-ham.

In response to the two claims for benefits, Northshore directed several letters to both claimants’ attorneys, requesting the production of documentation supporting their claims. According to Northshore, no response was ever received from either attorney. Without waiving any right to deny the claims, the workers’ compensation carrier paid $5,000 in funeral benefits. Then, on March 25, 1999, Northshore and its compensation carrier filed a disputed claim for compensation to have the com-pensability of the two opposing claims determined by the court. A mediation conference was scheduled by the Office of Workers’ Compensation for April 8, 1999. Ms. Berit Hanna was listed as attorney for Precious Jones and was copied with the notice on or about March 26, 1999. According to Precious Jones, on | ¡¡March 17, 1999, attorney Hanna had informed her via certified letter that her firm would no longer represent Ms. Jones’ interests.

After Precious Jones failed to appear, and Mary Parker Jones came forward claiming that her son had no dependent children, judgment was entered on June 18, 1999, confirming a preliminary default against Precious Jones. Then, a second judgment was entered on August 3, 1999, authorizing a compromise settlement whereby Northshore paid $20,000 to Mary Parker Jones. That judgment decreed that any other claims for benefits arising out of the death of Melvin Jones, Jr., were thereby dismissed and forever barred.

Some four months later, a disputed claim for death benefits was filed by a new attorney, Henri Saunders, for Precious Jones, on behalf of Melvin and Michael Jones, and for Tonya Bickham, on behalf of her minor son, Jonathan Lewis. North-shore filed a motion to dismiss or, alternatively, a peremptory exception of res judi-cata, and an answer to the two disputed claims.

On May 5, 2000, the WCJ, Delos R. Johnson, Jr., denied the defendant’s motion to dismiss or, alternatively, peremptory exception of res judicata. In reasons for judgment, he stated that there was a question as to the proper service of documents on Precious Jones, which should be heard at a trial of the matter. Northshore filed for supervisory writs with this court, which were denied. Jones v. Northshore Disposal Services Co., 00 CW 1126 (La.App. 1 Cir. 9/11/00).

The matter proceeded toward trial. The claimants filed a motion to nullify the previous judgments entered in connection with the disputed claim filed by North-shore. Oral arguments were heard on the motion on May 21, 2001, and the WCJ, Robert Varnado, Jr., took the matter under advisement. After submission of memoranda, the WCJ denied the claimants’ motion to nullify the prior judgments and declared them to be valid, final and enforceable. The WCJ further granted Northshore’s peremptory exception of |4res judicata and dismissed the disputed claims of Precious Jones and Tonya Bickham. This appeal by Ms. Jones and Ms. Bick-ham followed.

DISCUSSION

On appeal, Precious Jones and Tonya Bickham argue that the August 3, 1999 and June 18, 1999 judgments are absolutely null due to improper service made upon Precious Jones. They further urge that the WCJ erred in reconsidering and granting Northshore’s exception of res judicata. This exception had already been considered and denied by WCJ Delos Johnson on May 5, 2000. Northshore’s petition for supervisory writs was denied by this court on September 11, 2000. Appellants further argue that the exception should not have been granted on rehearing because La. R.S. 13:4231 states that the provision applies only to a valid and final judgment. As argued above, they assert that neither prior judgment was valid.

Certainly, the WCJ erred in granting the exception of res judicata as to Tonya Bickham. La. R.S. 13:4231 bars a second action between the same parties that arises out of the occurrence that was the subject matter of the prior action. Without identity between the parties in the first and subsequent actions, an exception of res judicata will not be maintained. It is undisputed that Tonya Bickham was not a party to this litigation until November 24, 1999. As such, the WCJ erred in maintaining the exception as to her.

We likewise find error in the WCJ’s maintaining the exception of res judicata as to Precious Jones. First, the motion had already been raised and denied by WCJ Delos Johnson. Writs were subsequently denied by this court. Further, as stated in WCJ Johnson’s reasons for judgment, there was, and still remains, a question as to the proper service of documents on Precious Jones, which should be heard at a trial of the matter. The cornerstone of res judicata is “a valid and final judgment.” Whether proper service was made upon Precious Jones in connection with the two prior judgments is a factor that certainly impacts the validity of those judgments.

| RThe burden of proof is on the pleader to establish the essential facts to sustain the plea of res judicata. The concept should be rejected when doubt exists as to whether a litigant’s substantive rights actually have been previously addressed and finally resolved. Patin v. Patin, 00-0969, p. 5 (La.App. 1 Cir. 6/22/01), 808 So.2d 673, 676. Since we find the presence of such a doubt in this case, we conclude it was error for the WCJ to sustain the exception of res judicata as to Precious Jones.

CONCLUSION

For these reasons, the judgment of the WCJ sustaining the exception of res judi-cata is reversed and the matter is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to defendant, Northshore Disposal Services, Co.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.


source: Caselaw Access Project

author: I,SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Lori VIARS v. ST. ANTHONY’S NURSING HOME.
    No. 02-CA-1042.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.
    Rehearing Denied Feb. 24, 2003.

      William R. Mustian, III, Stanga & Mus-tian, Metairie, Louisiana, for Appellant, Lori Viars.
    Wade A. Langlois, III, Windhorst, Gau-dry, Ranson, Higgins & Gremillion, L.L.C., Gretna, Louisiana, for Appellee, St. Anthony’s Nursing Home.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   I,SUSAN M. CHEHARDY, Judge.

In this workers’ compensation matter, after trial, the workers’ compensation judge found that the claimant suffered a compensable work-related injury, ordered claimant’s employer to pay all medical expenses resulting from that accident as well as supplemental earnings benefits for a specific period of time. The judge found, however, that claimant failed to establish a causal connection between her work-related accident and the disability that resulted from a subsequent motor vehicle accident. For the following reasons, we affirm.

Fact and Procedural History

In January of 1996, Lori Viars became a licensed practical nurse. In June of that year, Ms. Viars was in a serious motor vehicle accident, in which she suffered injuries to her neck, back, right knee, and head. Eventually, Viars returned to the work force.

In January of 2000, Lori Viars began working for St. Anthony’s Nursing Home(“St.Anthony’s”) as a licensed practical nurse. Unfortunately, on July 11, 2000, while attempting to clean out the bottom drawer of the nurse’s medication Iscart, Viars was injured when the cart fell over onto her and several items struck her on the head. According to Viars, her left arm, right knee, right hip, right lower back, and her neck were injured in this accident. Further, she began to experience severe headaches on the right side of her head after the accident. Although Viars continued her shift that day, Viars requested and received medical treatment, at her employer’s expense, on July 13, 2000 for injuries she received in the accident. After she was examined, the treating physician restricted Viars to “light duty” at work.

From July 11, 2000 until September 27, 2000, Viars continued to work at St. Anthony’s under a “light duty” restriction. Although the parties differ as to the reason, all agree that, from September 27, 2000 until October 4, 2000, Viars was suspended from work. On October 4, 2000, on her way to work, Viars was involved in another motor vehicle accident. In that accident, she suffered an injury that resulted in pain in her left lower back and shoulders.

On October 25, 2000, the claimant, Lori Viars, filed a disputed claim for compensation with the Office of Workers’ Compensation against her employer, defendant, St. Anthony’s, and its insurer, LUBA. Viars alleged that she suffered a compensable injury while in the course and scope of her employment with St. Anthony’s, which was exacerbated to the level of disability by a subsequent motor vehicle accident, but that defendants refused to pay disability benefits or authorize medical treatment after the subsequent motor vehicle accident.

On October 25, 2001, the matter proceeded to trial before the Office of Workers’ Compensation judge, who took the matter under advisement and left the record open for submission of post-trial mem-oranda. On December 11, 2001, the judge rendered judgment, finding that Viars suffered a compensable work-related injury on July 11, 2000; awarded supplemental earnings benefits of $384.00 per week from September 27, 2000 through October 4, 2000 (the date of the |4subsequent accident); and ordered payment of all medical bills and medication expenses resulting from the July 11, 2000 accident. The judge found, however, that the claimant did not' establish a causal connection between her July 11, 2000 work-related accident and the disability that she suffered after her October 4, 2000 motor vehicle accident.

Viars has appealed, assigning four errors: the trial court erred in failing to recognize that job-related injuries that are later aggravated in a subsequent accident remain compensable; the trial court erroneously concluded that plaintiffs ‘disability’ ended on October 4, 2000 when she had a second accident; the employer’s responsibility for medical expenses should be specified since the trial court failed to make a specification; and penalties and attorney’s fees are warranted, but were not awarded by the trial court.

It is well settled that the claimant in a workers’ compensation case has the burden of proving a work-related accident and resultihg injury by a preponder-anee of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). The claimant’s testimony may suffice to meet the burden, provided there is no other evidence sufficient to discredit or cast doubt upon the claimant’s version of the incident, and his testimony is corroborated by circumstances following the accident. Id. Corroboration of the worker’s testimony may, be provided by the testimony of fellow workers, spouses or friends; corroboration may also be provided by medical evidence. Id.

When a work-related injury is subsequently exacerbated, the aggravation is regarded as a development of the initial accident, and not an intervening cause, even though it occurs away from work and even after the employment is terminated. Hanover Ins. Co. v. Allstate Ins. Co., 554 So.2d 1261, 1264 (La.App. 1st Cir.1989). It is a compensable injury for workers’ compensation purposes, and the employer is obligated to continue paying benefits. Stewart v. Hospitals Affiliates Int’l, 404 So.2d 944, 945 (La.1981). The key question is whether the off-the-job injury was foreseeable and came about as a result of the work injury having predisposed the victim to future injury. If so, the subsequent injury is compensable. Hanover, 554 So.2d at 1264.

Lastly, although the claimant does not necessarily have to establish the exact cause of the disability, the claimant must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. Woods v. Ryan Chevrolet, Inc., 30,206 (La.App. 2 Cir. 2/25/98), 709 So.2d 251, writ denied, 98-1169 (La.6/5/98), 720 So.2d 689. An injured worker’s disability is presumed to have resulted from an accident, if before the accident the worker was healthy and thereafter the symptoms of the disabling condition appear continuously, and if the medical evidence shows a reasonable possibility of a causal connection between the accident and the injury. Lucas v. Insurance Co. of North America, 342 So.2d 591 (La.1977). If the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry her burden of proof. Bernard v. O’Leary Brothers Signs, Inc., 606 So.2d 1331 (La.App. 3 Cir.1992).

The standard of review of findings of fact of a hearing officer in a workers’ compensation case is manifest error. Doucet v. Baker Hughes Prod. Tools, 93-3087, p. 4 (La.3/11/94), 635 So.2d 166, 168 n. 3; Bruno v. Harbert Int’l, supra. Under this standard, the reviewing court does not ask whether the factfinder is right or wrong, but whether its conclusion was reasonable. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993). These findings will be reversed only if they are clearly wrong.

In written reasons, the workers’ compensation judge found that the claimant was injured in a work-related accident on July 11, 2000, but that claimant failed to establish a causal connection between that work-related accident and the disability that resulted from a subsequent motor vehicle accident. We have reviewed the | (¡entire record in this case, including the volumes of Viars’ medical records introduced at the workers’ compensation hearing, particularly those for treatment in the year 2000. We observed the following from the record.

In June of 1996, Viars was in a serious motor vehicle accident, in which she suffered injuries to her head, neck, back, and right knee. She candidly testified that she was unable to remember the eighteen months that followed that accident. At the time of trial, Viars had undergone two surgeries on her right knee and continued to receive treatment for neck and back pain. She also reported that she was still involved in litigation over this accident, in which she alleged that she suffered a closed head injury when the air bag deployed during the accident. Further, she testified that she had suffered with migraines since the 1970’s.

When Viars began working for St. Anthony’s, she had recurring pain in her neck, back, and right knee, and muscle spasms in her back from her motor vehicle accident. She was still taking prescription pain medication on a regular basis, and continued to see her treating orthopedist, Dr. Courtney Russo, for “maintenance.” In fact, Dr. Russo’s records indicate that Viars had five office visits between January and July of 2000 (during which she received treatment and medication) and telephoned for medication refills on at least three other occasions during the same time period.

Interestingly, although Viars testified that she was physically able to perform her work duties at St. Anthony’s without medical restrictions, her treating orthopedist, Dr. Russo, stated that, based on his observation of Viars since February of 1999, Viars should not be “... lifting, bending, reaching when you have a neck and back problem and knee problem.” He characterized her as “regulated to a very sedate-type activities[sic].” In sum, her treating orthopedist |7stated that she had ongoing medical problems from her 1996 motor vehicle accident.

We find that there is ample evidence in the record to support the workers’ compensation judge’s finding that, on July 11, 2000, Viars was injured in a work-related accident. According to Viars, her left arm, right knee, right hip, right lower back, and her neck were injured in this accident. After receiving medical treatment, Viars was placed on “light duty.” When Dr. Russo examined Viars after the St. Anthony’s accident, he found that she did not suffer any increased restrictions and could continue to work on “light duty.” Regina Patterson, a claims adjuster for St. Anthony’s insurance administrator, testified, at trial, that she relied on Dr. Russo’s diagnosis in determining that Viars’ accident at St. Anthony’s exacerbated her pre-existing injuries, but did not result in a disability.

In fact, Viars continued to work at her pre-injury wage until she was suspended on September 27, 2000. Further, St. Anthony’s records reflect that Viars regularly worked ten and twelve-hour work days and overtime from July to September of 2000. Moreover, in a recorded statement to Regina Patterson on August 22, 2000, Viars stated that St. Anthony’s was “really working with me” regarding scheduling and working within her restrictions.

Finally, the record shows that the injuries that she received when she fell at St. Anthony’s were predominantly to the right side of her body, but the motor vehicle accident on October 4, 2000 caused injuries to the left side of her body.

At trial, Viars reported that her headaches have gotten so severe that she has been dizzy eleven times in the past year and has passed out five times in the past year. According to the record, although Viars reports that she began to experience Lsevere headaches only after her fall at St. Anthony’s, the record indicates that Viars has suffered with and received treatment for migraines since the late 1970’s and also that she suffered a closed head injury in her 1996 motor vehicle accident. Clearly, Viars had a history of headaches as well as a head injury. Furthermore, there is no medical testimony in the record to support Viars claim that the St. Anthony’s accident exacerbated her pre-existing headache symptoms. In fact, in September of 2000, Viars underwent a CT scan, which revealed results within normal limits.

Finally, although Dr. Russo examined Viars several times between her July 11, 2000 accident at St. Anthony’s and her October 4, 2000 motor vehicle accident, he did not declare her disabled from work until after her October 4, 2000 motor vehicle accident. Clearly, in this case, the workers’ compensation judge found that Viars failed to establish that her disabling injuries (headaches and the injuries to her left side) that allegedly resulted from her off-the-job injury (the October 4, 2000 motor vehicle accident) were foreseeable and came about as a result of the work injury having predisposed the victim to future injury. Based on our thorough review of the record, we cannot say that the workers’ compensation judge was clearly wrong. Consequently, we find that claimant’s first and second assignment of error lack merit.

In her third assignment of error, claimant argues that the workers’ compensation judge should have specified the employer’s responsibility for medical expenses. In her written reasons for judgment, the workers’ compensation judge stated that, “Claimant is entitled to the payment' of all medical bills, and medication expenses for her head, neck, back, right knee, arms, and hip injuries, resulting from the accident on July 11, 2000.”

Claimant alleges that the employer has failed to pay for treatment by Dr. Russo, and will not authorize an MRI of her right knee and a neurological consult. |3 The record does not support her allegations. Our review indicates that payment was made to Dr. Russo for his treatment of Viars between July 11, 2000 and October 4, 2000. Further, while Dr. Russo recommended a neurological consult, he also admitted that he was unaware when he made that recommendation that Viars had a CT scan in September of 2000, which reflected results within normal limits. Finally, with regard to her right knee, she admitted that she had two previous surgeries on that knee and other extensive problems. The record did not contain medical testimony that the current status of her right knee is related to her fall at St. Anthony’s. Claimant’s third assignment of error is without merit.

Finally, claimant alleges that she is entitled to penalties and attorney’s fees. In J.E. Merit Constructors, Inc. v. Hickman, 00-943 (La.1/17/01), 776 So.2d 435, 437-438:

Under La. R.S. 23:1201.2, reasonable attorney’s fees are awarded as a penalty under the workers’ compensation law when an employer discontinues payment of benefits, ‘when such discontinuance is found to be arbitrary, capricious, or without probable cause.’ Arbitrary and capricious behavior is willful and unreasonable action, without consideration and regard for the facts and circumstances presented. An award of attorney’s fees in a workers’ compensation case is essentially penal in nature, as it is intended to discourage indifference and undesirable conduct by employers and insurers. Attorney’s fees should not be imposed in doubtful cases, where a bona fide dispute exists as to the employee’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. (Citations omitted).

Applying these precepts to the case before us, it is clear that St. Anthony’s actions do not rise to the level of being arbitrary, capricious, or without probable cause. In both instances, a bona fide dispute existed between St. Anthony’s and Viars concerning the facts and the law. Significantly, the workers’ compensation judge found in favor of Viars regarding her status as an injured employee and for St. Anthony’s on the disputed issue of disability after her subsequent injury. The finding of the workers’ compensation judge in favor of St. Anthony’s is virtually ^Inconclusive that its actions were reasonable and were not arbitrary and capricious. Claimant’s fourth assignment of error also lacks merit.

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge. Costs of this appeal are assessed equally among the parties.

AFFIRMED.

      . That accident is the subject of a personal injury lawsuit, which is not connected with the instant action.

      . At trial, both Viars and her supervisor, Rene Apostol, testified that Viars did not have difficulty performing her job from January until July 11, 2000.

      . Interestingly, Viars testified at trial her headaches were so bad that she told the other nurses at St. Anthony's to catch her if she passed out from the pain. When her attorney reminded her that she did not go back to work at St. Anthony's after her October 4, 2000 car accident, she indicated that she had experienced dizziness before her October 4, 2000 motor vehicle accident.


author: liWILLIAMS, Judge.

text:
    Cindi TOUCHET, Plaintiff-Appellant, v. Jason TOUCHET, Defendant-Appellee.
    No. 36,881-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Ross E. Shacklette, Bossier City, for Appellant.
    Frank V. Zacearía, Jr., Gretna, for Ap-pellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   liWILLIAMS, Judge.

In this child custody proceeding, the plaintiff, Cindi Touchet, appeals a judgment which modified a prior custody decree and awarded sole custody of the parties’ minor children to the defendant, Jason Touchet. For the following reasons, we amend the judgment and affirm as amended, reinstate and amend the original joint custody implementation plan to designate Jason Touchet as the domiciliary parent of the minor children and render.

FACTS

Jason Touchet (“Jason”) and Cindi Tou-chet (“Cindi”) were married on July 6, 1996 and are the parents of two minor children, Brittani Gilmer, born June 2, 1992, and Dalton Touchet, born August 18, 1994. In October 2000, Cindi filed a petition, which was later dismissed, for domestic abuse protection pursuant to LSA-R.S. 46:2131, et seq. The district court issued an interim order awarding Cindi the provisional custody of the minor children subject to Jason’s right to supervised visitation. As a provision of this order, Jason was prohibited from consuming alcohol during his visits.

In December 2000, the plaintiff, Cindi Touchet, filed a petition for divorce seeking an award of joint custody and child support payments. By consent judgment signed in January 2001, the parties were awarded the joint custody of the minor children, with Cindi designated as domiciliary parent subject to Jason’s visitation rights pursuant to a Joint Custody Implementation Plan. Jason was ordered to pay child support in the amount of $300 per month. The parties were later divorced with all prior judgments to remain in full force.

1 ^Subsequently, Cindi filed a “Rule for Contempt and To Accrue Child Support Arrearage.” In response, Jason filed a Rule to Show Cause for Contempt, alleging the nonpayment of certain debts. In May 2002, Jason filed a “Rule for Change of Custody” seeking to be awarded the sole custody of the minor children. The Rules for Change of Custody and for Contempt and to Accrue Child Support .Ar-rearage were heard together.

After the hearing, the trial court found clear and convincing evidence that it was in the best interest of the children to award sole custody to Jason, despite the court’s concern about the amount of Jason’s drinking. The court rendered judgment awarding Jason sole custody of the children, subject to supervised weekend visitation by Cindi at the paternal grandmother’s home. The court prohibited overnight visitation until Cindi provided the court with proof that she had obtained employment and housing. The court limited Cindi’s telephone contact with the children to one night per week for a total of 30 minutes, prohibited Jason from becoming intoxicated in the children’s presence and ordered both parties to complete parenting classes. Cindi appeals the judgment.

DISCUSSION

The plaintiff contends the trial court erred in admitting evidence of her prior felony conviction. She argues that the evidence was irrelevant since the conviction occurred before the prior custody judgment.

The primary consideration in any determination of child custody is the best interest of the child. LSA-C.C. art. 131. The court shall consider all relevant factors in determining the best interest of the child. LSA-C.C. | ¡¡art. 134. The trial court may consider evidence of events that occurred prior to the previous custody award in making its determination of the child’s best interest. Hargrove v. Hargrove, 29,590 (La.App.2d Cir.5/9/97), 694 So.2d 645.

In the present case, the trial court admitted evidence of plaintiffs conviction for attempted terrorizing over her objection. Although the plaintiffs conviction occurred prior to the custody agreement, we note that she also acknowledged she had forged a former worker’s signature while working at a loan company at the end of 2001. Thus, this event occurred during the time period following the prior custody judgment. In addition, the plaintiffs conviction for making threats to the defendant’s present wife is relevant to plaintiffs ability to encourage a continuing relationship between defendant and the children, a factor under Article 134. Based upon this record, we cannot say the trial court abused its discretion in considering the plaintiffs prior criminal behavior. The assignment of error lacks merit.

Custody Modification

In several assignments of error, the plaintiff contends the trial court erred in modifying the prior joint custody agreement. She argues that the defendant failed to establish a material change of circumstances sufficient to support a modification of custody.

In cases such as this one, where the original custody decree is a stipulated judgment, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best | interest of the child. Masters v. Masters, 33,438 (La.App.2d Cir.4/5/00), 756 So.2d 1196.

Article 134 provides that the factors to be utilized in determining the best interest of the child in a custody dispute may include the following:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference. (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties, and
(12) The responsibility for the care and rearing of the child previously exercised by each party.

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The trial court is afforded great discretion in the determination of custody issues and its discretion will not be disturbed on appellate review in the absence of a clear showing of abuse. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972); Roberie v. Roberie, 33,168 (La.App.2d Cir.12/8/99), 749 So.2d 849.

In the present case, plaintiff testified that in February 2002, she lost her job and was forced to live in a motel room with her two children, a former boyfriend and a former female roommate. Plaintiff stated that she moved to a different motel in March 2002 with her female roommate and that because of her living situation, plaintiff allowed her children to live in the home of their paternal grandmother. The plaintiff explained that at the time of the hearing, she was living in Bossier City with another friend, Cindy Johnson, in a three-bedroom home where the friend’s husband, daughter and granddaughter also lived.

Plaintiff stated that she was not employed, but had been looking for work. Plaintiff testified that she was very involved with her children’s education, that she had spoken often with the teachers, had assisted in the classroom and that she helped her daughter with homework each night. The plaintiff asserted that it would be better for the children to live with her as the domiciliary parent because she has a closer emotional relationship with the children, whereas the defendant had not been involved with caring for the children, he works long hours and drinks too much.

The defendant testified that he had seen his daughter at his mother’s house the Saturday before the hearing, that it had been one month since his |filast visit with his children and that approximately two months had passed between that time and the last prior visit. Defendant stated that during the first six months of 2002, he had been in physical contact with his daughter two or three times and once with his son. Defendant attributed his lack of visitation with the parties’ children to plaintiffs failure on one occasion to meet him when he was supposed to take the children for a weekend visit. He asserted that he had not attempted to contact' plaintiff after that time to arrange visitation because he did not know her current telephone number. He stated that he had -spoken with the plaintiff “maybe once” since the beginning of 2002.

The defendant testified that he currently lives in a three-bedroom, two-bath trailer with his present wife, Lisa Touchet, and them three-year-old son. Defendant stated that his daily work hours were generally 8 a.m. to 6 p.m., but that he could work additional hours, that he worked every other weekend and that he was on call to work overnight during the week. The defendant acknowledged that he had consumed four beers the night before the hearing and that he drinks eight to twelve beers in a week.

The defendant asserted that he could offer the children a more stable living environment than the plaintiff, since he was employed and his wife remained home and cooked regular meals. Defendant acknowledged that he had not gone to the children’s schools and did not know the names of their teachers.

Sandra Smith, the paternal grandmother of the children, testified that she told plaintiff the children could stay at her home until the plaintiff was 17able to get a job and find an apartment. Smith stated that the children began living with her on March 6, 2002 and that plaintiff had provided food for the children and the household approximately one time each month and visited the children during the week and on weekends. Smith testified that she was concerned that the plaintiff lacked a stable residence, transportation and a job. Smith stated that the defendant sometimes worked seven days per week for ten to twelve hours a day. Smith testified that she was willing to supervise the plaintiffs weekend visitation at her home.

Lisa Touchet, the defendant’s present wife, acknowledged that because of his work schedule, she would be caring for the children 70% of the time. Lisa Touchet stated that defendant drinks one to three beers on an average work night and perhaps as many as eighteen beers during weekends when he was not working. Lisa Touchet testified that she was expecting a child in August 2002 and that she would be able to care for her baby and the other children.

Continuity and stability of environment are important factors to consider in child custody matters. LSA-C.C. art. 134; Ro-berie, supra. In evaluating the evidence in light of the Article 134 factors, we note that the testimony demonstrated that although defendant works long hours and is often away from home, at the present time he is in a better position to provide a stable living environment for the children and supply their material needs. However, there was also evidence showing that as between the parties, plaintiff had been more personally involved with the children’s education and had previously exercised the primary responsibility for the | scare of the children. Unfortunately, the testimony also showed that plaintiff was unable to provide a stable and permanent residence for the children.

After reviewing the record, we share the trial court’s concerns about the defendant’s prior lack of involvement with the children and his drinking and about the plaintiffs current situation. Both parents have issues which must be addressed regarding their ability to provide adequate care for their children. Joint custody is favored absent clear and convincing contrary evidence. LSA-C.C. art. 132.

The evidence presented established that for various reasons, the plaintiff is unable to continue as domiciliary parent at the present time. However, contrary to the trial court’s finding, the evidence is not sufficient to support an award of sole custody to the defendant. Consequently, we amend the trial court’s custody modification to award the parents joint custody of the minor children, designate the defendant as domiciliary parent and reinstate and amend the original January 2001 joint custody implementation plan to grant plaintiff the same visitation and other privileges previously provided to the defendant.

Child Support

The plaintiff contends the trial court erred in dismissing the rule for contempt against the defendant for failure to pay child support. The trial court is vested with much discretion in modifying awards of child support and the court’s reasonable determination will not be disturbed absent a clear abuse of discretion. Gould v. Gould, 28,996 (La.App.2d Cir. 1/24/97), 687 So.2d 685.

In the present case, the parties reviewed in court the child support payments made by defendant as reflected by money order receipts payable to the plaintiff. Based on this evidence, the trial court determined that defendant had paid child support through March 2002 and that he owed $300 for the month of April 2002. On the defendant’s motion, the court ordered that defendant’s support obligation had terminated in May 2002, when the rule to change custody was filed. Based upon this record, we cannot say the trial court abused its discretion in declining to find the defendant in contempt for failure to pay child support. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, that part of the trial court’s judgment awarding Jason Touchet sole custody subject to the supervised visitation of Cindi Touchet is amended to award the parties joint custody of the minor children, designate Jason Touchet as the domiciliary parent, and the judgment is otherwise affirmed. The original joint custody implementation plan is hereby reinstated and amended to grant Cindi Touchet the same visitation and other privileges previously provided to the defendant. Costs of this appeal are assessed to the appellee, Jason Touchet.

AMENDED AND AFFIRMED AS AMENDED; ORIGINAL JOINT CUSTODY IMPLEMENTATION PLAN REINSTATED AS AMENDED; RENDERED.

      . In the court below, the original joint custody implementation plan should be amended to conform with this opinion.


author: CARAWAY, J.

text:
    WAL-MART STORES, INC. and Sam’s East, Inc., Plaintiffs-appellants, v. Edward A. FITCH, Administrator, Caddo-Shreveport Sales and Use Tax Commission, in his Capacity as Administrator of Sales and Use Taxes for the City of Shreveport, The City of Vivian, The Caddo Parish School Board, and the Law Enforcement District of the Parish of Caddo, Defendants-appellees.
    No. 36,762 CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    McGlinchey Stafford, PLLC, by Craig L. Caesar, Jaye A. Calhoun, New Orleans, for Appellants.
    Rainer, Anding & McLindon by Robert R. Rainer, Frederick Mulhearn, Baton Rouge, for Appellees.
    Before GASKINS, CARAWAY and KOSTELKA, JJ.
   CARAWAY, J.

In this case, the local taxing authority seeks to impose a sales and use tax on a “sale of services” as defined in our law involving club membership dues for access to the appellant’s commercial retail outlet store. The trial court held that the dues transaction was taxable under the law. From our statutory interpretation of the sales and use tax provision, we agree and affirm the trial court’s ruling.

Facts

The Caddo-Shreveport Sales and Use Tax Commission (“Commission”) conducted a sales and use tax audit of all Sam’s Club stores in Caddo Parish for the periods July, 1995 through June, 1999. Based on its audit, the Commission issued an audit assessment letter dated June 29, 2000. All Sam’s Club stores were owned and operated by Wal-Mart Stores, Inc. between July, 1995 and January, 1997. Thereafter, Sam’s East, Inc., a wholly owned subsidiary of Wal-Mart Stores, Inc., owned and operated the stores. On September 12, 2000, Wal-Mart Stores, Inc. (hereinafter “Wal-Mart” or “Sam’s Club”) remitted $451,588.07 to the Commission, under protest. The amount represented sales and use taxes, interest and penalties assessed on the sales price of Sam’s Club membership fees during the audit period and collectible by the Commission under the applicable provisions of the Caddo-Shreveport sales and use tax ordinances governing “sales of services.” Wal-Mart filed suit to recover this amount on October 12, 2000.

Access to shopping at Sam’s Club stores is restricted to Sam’s Club members. Non-members are not allowed access to a store unless 12accompanied by a member. Sam’s Club advertises “exceptional value on name brand merchandise at ‘members-only’ prices,” and promotes itself as “the nation’s leading ‘members-only’ warehouse.”

Examples of Sam’s Club services include member checks, travel club services, internet access, auto buying program, boat and recreational vehicle buying program, health services discount network, residential long distance telephone, time management seminars and software training. Sam’s Club’s advertising states:

Better Benefits. — One of the secrets of our world-class Member Benefits package is that utilizing even one can save you more than the cost of your low annual membership fee. Plus, you’ll enjoy substantial savings on services that enhance your quality of life or business throughout the year.

Sam’s Club membership guidelines provide as follows:

Membership is subject to any and all rules adopted by SAM’S Club and these rules may be amended from time to time without notice.
Membership cards are non-transferable. Sales tax will be charged on membership where applicable. Memberships may be terminated at SAM’S Club’s discretion. Your membership card is valid at all SAM’S Club locations. Please show your card when entering a SAM’S Club and when checking out at a register. Members are required to present their receipt when exiting. Report a lost or stolen card to your local SAM’S Club Membership Desk.
The primary member must authorize renewal or cardholder changes, including additions or deletions, and is responsible for the account. You will receive a renewal notice by mail each year. You may remit your renewal fee by mail or renew at any SAM’S Club. Members approved for SAM’S Club credit will automatically be billed for their renewal. YOU WILL NOT RECEIVE NEW CARDS EACH YEAR.
Members may purchase with checks by showing the appropriate ID, including driver’s license.
|3We welcome your children and up to two guests. However, both must stay with you and only you may purchase items. Parents are responsible for their children and should not put them in shopping baskets. SAM’S Club may refuse entry to anyone at our discretion. Members are responsible for any packages opened or damaged by their guests, children, or themselves.
SAM’S Club Elite SM Membership is for the primary member and the complimentary spouse cardholder only. Please see the SAM’S Club EliteSM Benefit Booklet for more details on this exclusive member program.

After a hearing on cross motions for summary judgment, the trial court granted summary judgment in favor of the Commission and dismissed Wal-Mart’s petition with prejudice. It further ordered the release from escrow of all sums paid under protest, and distribution to the appropriate taxing authorities. Noting that Sam’s Club described itself as an “exclusive club,” the trial court’s written reasons interpreted the statute dealing with taxable sales of services for the privilege of access to clubs to include Sam’s Club stores, and construed the statute to include shopping clubs. It is from this judgment that Wal-Mart appeals.

Discussion

Louisiana’s sales and use tax law defines “sales of service” in Section 301(14) of the law. La. R.S. 47:301(14). Taxable services listed in the law include fees for, among other things, hotel rooms, storage and parking lot privileges, laundry services, and repairs to automobiles and other tangible personal property. Section 302(C) then levies a tax on such “sales of service.” La. R.S. 47:302(C). The particular activity in this dispute, which is claimed by the Commission to be included as a taxable sale of services | ¿under Section 301(14)(b)(i) (hereinafter the “Statute”), is defined as follows:

The sale of admissions to places of amusement, to athletic entertainment other than that of schools, colleges, and universities, and recreational events, and the furnishing, for dues, fees, or other consideration of the privilege of access to clubs or the privilege of having access to or the use of amusement, entertainment, athletic, or recreational facilities; but the term “sales of services” shall not include membership fees or dues of nonprofit, civic organizations, including by way of illustration and not of limitation the Young Men’s Christian Association, the Catholic Youth Organization, and the Young Women’s Christian Association.

Sam’s Club argues that its store memberships are not taxable services within the scope and purpose of the Statute. It claims that its no frills, warehouse-style store caters to buyers of products in bulk, and such business does not represent a sale of services. Moreover, the business is essentially a “commercial retail merchandise outlet” and therefore, according to Sam’s Club, not a club within the intent of the Statute. Specifically, Sam’s Club argues that the Statute’s overall language confines its application to organizations that primarily sell or provide pleasurable, social, recreational and athletic experiences.

The starting point for interpretation of any statute is the language of the statute itself. Cat’s Meow, Inc. v. City of New Orleans through Dep’t of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in ^search of the intent of the legislature. La. C.C. art. 9.

Sam’s Club memberships are allegedly taxable because of the language of the Statute which includes as a taxable service, “the furnishing, for dues, fees, or other consideration of the privilege of access to clubs.” Addressing the initial question of whether Sam’s Club is a club, the dictionary defines “club” as “a group of people organized for a common purpose.” The American Heritage Dictionary of the English Language, Fourth Edition. In one sense, Sam’s Club and its parent company, Wal-Mart, may be considered the principal organizers of the Sam’s Club business, since they first planned and built the commercial facility. Nevertheless, members of Sam’s Club are eventually recruited and organized into the business structure. Their participation is vital to the business. A common purpose of the members is to have access to a no frills place of business for making purchases of products sold for cheaper prices in bulk. Through their membership fees, the members pay for access to a special shopping facility that is not open to the general public. Although the members may not be acquainted with one another, or have designated times for meetings at the facility, this does not preclude their collective memberships from constituting a club. Similarly, members of health clubs may not be acquainted with all of the other members of the health club, or attend regularly scheduled meetings. Yet, Sam’s Club’s argument necessarily concedes that the fees or dues for such clubs are taxable under the Statute. See, e.g., City of Lake Charles v. Dave’s Swedish Spa Resort, 441 So.2d 50 (La.App. 3d Cir.1983); writ denied, 444 So.2d 120 (La.1984).6 We therefore conclude from the common meaning of the word “club” as used in the Statute, that the membership of Sam’s Club constitutes a club.

Sam’s Club is a commercial retail merchandise outlet where individual sales to members occur with sales tax applicable to those transactions of non-exempt retail purchasers. Before those transactions can occur, however, the member acquires the privilege of access to the facility through a separate transaction, for the payment of a membership fee. This transaction, required for access to and use of the facility, is not unlike other taxable transactions which the legislature has defined as the sale of services. The legislative definitions do not necessarily involve tangible personal property and the idea of service can be broad. A parking lot privilege furnishes access to an immovable facility and is a “sale of services,” even though no attendant need be present at the parking lot to provide service to the customer. Thus, from the context of “sales of services” under Louisiana’s sales and use tax law, we cannot say that the legislative choice to tax this membership transaction produces an absurd consequence that is foreign to the general taxing scheme of the law.

We therefore find no contextual absurdity in this choice of taxation for “the furnishing ... of the privilege of access to clubs,” as a sale of services. Despite the diversity of these transactions as defined in the various categories for “sales of services,” Sam’s Club argues for a narrowing of the “access to clubs” provision because other examples of taxable services listed in the Statute involve amusement, entertainment, |7athletics or recreational facilities. According to Sam’s Club, the discussion of those items serves to modify and limit the taxation of club membership dues. For purposes of this summary judgment review, the Sam’s Club store is apparently not a place of amusement or entertainment and clearly has no athletic or recreational facilities.

In considering Sam’s Club’s argument, we find the source statute of the current provision, Acts 1948, No. 9, § 6, helpful. The original enactment contained a slightly different sentence structure and none of the exempting language now included in the Statute. The “access to clubs” phrase of the 1948 Act is identical to the current law as shown by the following:

The sale of admissions to places of amusement and to athletic, entertainment, or recreational events, and the furnishing, for dues, fees, or other consideration, of the privilege of access to clubs or the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities.

The original version clearly delineates through sentence structure, (i) the “sale” of admissions to amusement and athletic/recreational events; “and” (ii) the onerous “furnishing” of either the privilege of access to clubs “or” the privilege of access or use of amusement, entertainment, athletic or recreational facilities. The actual activities or transactions addressed by the Statute are also more diverse than Sam’s Club’s argument would suggest. The admission to an amusement is a one-time event that might have no connection whatsoever with an athletic event or recreational facility. The payment of dues for a club suggests longer term involvement, and not payment for a one-time event.

| ¡¡From this review of the original enactment, the “sale” and “furnishing” clauses of the Statute certainly indicate an intent for the taxing of different transactions which need not have such close affinity as argued by Sam’s Club. This brings us to the main phrase of the Statute upon which Sam’s Club’s argument must rest, “the furnishing, for dues, fees or other consideration, of the privilege of access to clubs or the privilege of having access to or the use of amusement, entertainment, athletic, or recreational facilities.” This provision has not changed since the 1948 enactment.

The sentence structure for this provision repeats the phrase, “the privilege,” twice and separates the two by the disjunctive coordinating conjunction, “or.” In common usage, this means that two distinct, alternative privileges are addressed. See, e.g., Blackburn v. National Union Fire Ins. Co. of Pittsburgh, 00-2668 (La.4/3/01), 784 So.2d 637; Duncan v. State, Dep’t of Transp. and Dev., 615 So.2d 305 (La.1993). Clearly, there may be significant distinctions between the activities covered by the two privilege phrases. Just as a one-time fee for use of a recreational facility may not provide club membership, club membership may not involve the use of a recreational facility. Likewise, the fact that the two privilege phrases can overlap in coverage of the same activity, e.g., a health club membership, does not limit the legislative intent of these provisions only to those activities covered by both phrases. If so, only the second privilege phrase of the Statute need be used, since it alone would cover the narrow category of clubs argued by Sam’s Club. Such interpretation, however, would violate the principle set forth in ABL Management, Inc. v. Bd. of Supervisors of Southern Univ., 00-0798 (La.11/28/00), 773 So.2d 131:

... It is presumed that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the Legislature inserted idle, meaningless or superfluous language in the statute or that it intended for any part or provision of the statute to be meaningless, redundant or useless.

Id. at 135, citation omitted.

In summary, the language of the “access to clubs” provision is clear and unambiguous. It does not lead to an absurd consequence when considered in the context of the general taxing authority for “sales of services.” Likewise, in the more specific context of the Statute, its meaning is clear and unambiguous in relation to the other access privileges addressed in the Statute and is made independent of those privileges by the use of the disjunctive conjunction.

Next, Sam’s Club argues that the trial court erred in allowing the Commission to file the affidavit of a marketing expert, who gave an opinion regarding the entertainment value of the shopping experience at Sam’s Club. Since neither the trial court nor this court has interpreted the Statute in reliance upon the fact that Sam’s Club is a place of entertainment or amusement, the testimony of the Commission’s expert is not relevant to the question of law presented by this appeal. This assignment of error is without merit.

The next argument raised by Sam’s Club asserts that the Commission is bound by a 1992 decision of the Louisiana Board of Tax Appeals (hereinafter the “BTA”), BTA Docket No. 3696 (1992 WL 532696). The | mparties to the action were Wal-Mart Stores, Inc. and the Louisiana Department of Revenue and Taxation. The BTA’s judgment was “that the fees for memberships charged by [Wal-Mart] for membership in its Sam’s Clubs are not taxable” under Louisiana sales and use tax law. After the rendition of this judgment, which is not appealed, the State discontinued taxation of Sam’s Club membership fees.

Sam’s Club’s position is based upon the legislature’s power to define the extent of sales and use taxes, including sales of services. La. Const, art. VI, § 29(A); B.P. Oil Co. v. Plaquemines Parish Gov’t, note 1 supra. The local government may not, through a local ordinance, tax a sale of services unless that sale of services has been first defined by the legislature. Sam’s Club argues that the Commission is now imposing a sales tax on the same type of transaction and the same taxpayer that the State of Louisiana may no longer tax following the 1992 litigation between the State of Louisiana and Wal-Mart. While this may be true, it is not the result of the legislature’s failure to extend the taxing power to dues on the privilege of access to clubs, as interpreted above. It would only be true between the State of Louisiana and Wal-Mart because of the principle of res judicata, depending upon the final resolution of those parties’ dispute in 1992. The Department of Revenue still has the power to tax another company collecting store club membership dues under the Statute. Therefore in this dispute, the local government has not exceeded the legislature’s taxing authority. Moreover, as noted by the court in City of Lake Charles v. Dave’s Swedish Spa Resort, supra., the principles of res judicata and collateral estoppel do not apply [^regarding a prior judgment of the BTA, since the parties to that litigation are different from the present parties. This assignment of error likewise is without merit.

Finally, without citation to any authority, Sam’s Club argues that because it has relied for years on the 1992 BTA judgment, the Commission’s imposition of penalty and interest, in addition to the sales and use tax assessed, is unwarranted and unfair. We have examined the applicable provisions of the Caddo Parish Sales and Use Tax Ordinance, and the legislative statutes referred to therein, as well as the jurisprudence interpreting those statutes, and have found no provisions requiring the court to remit the interest and penalty imposed by the Commission. Additionally, we note that under URCA Rule 2-12.4, the court may consider as abandoned any specification or assignment of error which has not been briefed. Miller v. Miller, 35,934 (La.App.2d Cir.5/8/02), 817 So.2d 1166; Brown v. Ruskin Mfg. Co., 33,015 (La.App.2d Cir.4/5/00), 756 So.2d 667. Accordingly, the award for interest and penalties is affirmed.

Conclusion

For the reasons expressed herein, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . The Caddo Parish taxing ordinance mirrors the Statute. Local taxing authorities may enforce collection of sales taxes "in the manner provided for collection of taxes due the state.” La. R.S. 33:2841; see also, La. Const. Art. VI, § 29(A). We will therefore focus on the interpretation of the Statute. See, B.P. Oil Co. v. Plaquemines Parish Gov’t, 93-1109 (La.9/6/94), 651 So.2d 1322, 1333.


author: JjGASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Bruce FARRAR, Appellant.
    No. 36,764-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Jason Waltman, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   JjGASKINS, J.

The defendant, Bruce Farrar, appeals his conviction of indecent behavior with a juvenile, claiming there was insufficient evidence upon which to base his conviction. For the following reasons, we affirm the conviction and sentence.

FACTS

On June 27, 2001, the five-year-old victim was living with her mother and older sister in Shreveport. The defendant rode by their house on his bicycle as the child’s mother was standing in the driveway, trying to get her van started. The defendant offered to help. The mother declined the offer, but talked briefly with the defendant. She stated that the defendant smelled of alcohol and offered to marry her. The mother declined that offer as well.

Later that evening, the defendant knocked on the door of the house, holding one of the family’s kittens. The victim let him in. The mother was engaged in a telephone conversation and was shocked that the defendant walked into the house. She told the victim to put the cat in the back yard and continued talking on the phone.

The victim and the defendant went into the back yard. About five minutes later the victim came back into the house extremely upset. She told her mother that the defendant held her on his lap and exposed himself to her. He offered her bubble gum in exchange for oral sex. The child managed to get away from the defendant.

The mother immediately called the police and reported the incident. The defendant had left the scene by the time they arrived. However, the next day, he returned to the house and asked the victim’s mother if there | ¿were any jobs around the house he could do. She told him that she was on the phone and to wait. She called the police. The defendant was still waiting outside when the police arrived. He was arrested and charged with indecent behavior with a juvenile.

The child was interviewed twice by the police and the interviews were videotaped. The defendant also gave a statement to the police, denying the incident. The defendant waived his right to a trial by jury.

A bench trial was conducted on May 7, 2002. Following the presentation of the evidence, the trial court found the defendant guilty as charged. On May 9, 2002, the defendant was sentenced to serve three years at hard labor, with credit for time served. He was also ordered to register as a sex offender. He now appeals.

SUFFICIENCY OF THE EVIDENCE

On appeal, the defendant attacks his conviction, arguing that there was insufficient evidence to support the verdict of indecent behavior with a juvenile. He argues that the victim was not able to identify him in court as the perpetrator. He also argues that the state failed to show that the exposure was done with the intent to arouse or gratify sexual desires. We find that these arguments are without merit.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most lafavorable to the prosecution, any trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. 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.

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, 1998-2723 (La.2/5/99), 737 So.2d 747.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. George, 34,621 (La.App.2d Cir.4/4/01), 785 So.2d 975. A reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App.2d Cir.8/30/02), 827 So.2d 508. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the | ^credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760,1998-0282 (La.6/26/98), 719 So.2d 1048.

In order to convict a defendant of indecent behavior with a juvenile, the state must prove that the defendant: (1) committed any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen; (2) was over the age of seventeen and more than two years older than the victim; and (3) had the intention of arousing or gratifying the sexual desires of either person. La. R.S. 14:81; State v. Free, 26,267 (La.App.2d Cir.9/21/94), 643 So.2d 767, writ denied, 94-2846 (La.3/10/95), 650 So.2d 1175.

On the day the defendant was arrested, the victim was taken to the Gingerbread House Children’s Advocacy Center where she was interviewed by Paula Langford Vasquez, a Shreveport Police Department officer in the sex crimes unit. Officer Vasquez had extensive training and experience interviewing abused children. The child was interviewed out of the presence of the mother. Officer Vasquez said that the child was relaxed during the interview. The videotaped interview was introduced into evidence at trial.

|BIn this interview, the victim stated that the man went into the back yard with her and exposed himself to her. She described his genitalia as “long and pink.” When shown an anatomically correct drawing of a male, the child correctly circled the genitalia as the area she had seen. The child described the man as having on blue jeans and underwear, and that he unzipped the blue jeans to expose himself. The child stated that the man pulled her onto his lap and told her that if she would “suck on this and I’ll give you some bubble gum.” The child said that she then screamed and ran to her mother to tell her to call the cops.

Some time later, the child said that the defendant also touched her. The child said that she forgot to tell them about that. The child then gave another videotaped interview which was also admitted at trial.

The victim was five years old at the time of the offense and six years old at the time of the trial. She appeared and testified in conformity with her videotaped police interview that, while putting a family cat in the back yard, the defendant exposed himself to her and offered her bubble gum in exchange for oral sex. At trial, she said that the defendant did not touch her private parts. She was not able to identify the defendant in the courtroom.

The victim’s mother testified that she talked to the defendant in her driveway on the day of the offense. She stated that later in the day, the defendant entered the house, holding one of the family cats. The victim’s mother stated that the victim went into the back yard and very shortly reentered the house, extremely upset. At that time, the victim reported the offense in graphic detail and identified the defendant as the perpetrator. [fi According to the witness, within a week or two of the incident, the child began exhibiting inappropriate behavior. Since the offense, the child has been in counseling at Gingerbread House. The mother identified the defendant as the man who went into the back yard with her daughter just prior to the offense.

The defendant gave a tape-recorded statement to police which was introduced into evidence. The defendant indicated that he was 39 years old. He admitted stopping at the victim’s house and offering to help with the mother’s van. He denied any inappropriate behavior with the child. He claimed that after he left the victim’s house, he went to a local fast food restaurant for a meal and then went home. The security cameras in the restaurant were not functional and there was no corroboration of the defendant’s story.

In arguing that there was insufficient evidence to convict in this case, the defendant points out that the victim was not able to identify him at trial. He maintains that there is no independent evidence of the commission of the offense and that the victim’s testimony was contradictory and not reconcilable with statements she gave in police interviews.

The trial was more than one year after the offense and the victim was a young child. The defendant was not someone that the victim knew well or saw often. Under these circumstances, the victim’s inability to identify the defendant in court goes to the weight of the testimony.

It is significant that the testimony of the victim’s mother corroborated the victim’s testimony that the defendant entered the house and was alone 17with the child immediately before the child reported the offense. These facts are also corroborated by the defendant’s own statements during the investigation of this offense. The victim contemporaneously reported to her mother that the defendant committed the offense. Her identification of the defendant at the time of the offense was unequivocal.

Under these circumstances, the failure of this young child to recognize the defendant in the court room after the passage of a significant period of time is not sufficient to void the conviction. It was within the discretion of the trial court to accept the victim’s testimony without a positive identification in court of the defendant by the victim. See State v. Stokes, 2001-2564 (La.9/20/02), 829 So.2d 1009.

The defendant argues that the evidence fails to establish that any exposure of his genitalia was for sexual gratification. He claims that perhaps the display could have been from him urinating. However, the defendant never contended that he urinated while in the back yard with the child. The child stated that the defendant was holding his “privates” which were “long and pink” while forcefully holding her on his lap and soliciting oral sex in exchange for bubble gum.

The victim described the offense in sufficient detail so as to rule out any possibility that the defendant’s actions were misconstrued. The child gave statements regarding sexual matters that no five-year-old would have known without having been exposed to such things. The child described the male anatomy and a solicitation for oral sex. At the time the victim claimed the offense occurred, she was visibly upset.

I ¡¡In this case, the evidence was sufficient to show that the defendant was the person who committed the offense. Also, the evidence is sufficient to establish all the elements of the offense. The defendant’s argument that there is insufficient evidence to convict him of this offense is without merit.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Bruce Farrar.

AFFIRMED.

      . 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 in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.


author: LPEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. James W. GLEASON, Appellant.
    No. 36,774-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Louisiana Appellate Project By: Carey J. Ellis, III, Rayville, for Appellant.

      Richard Ieyoub, Attorney General, William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Penny Douciere, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS & PEATROSS, JJ.
   LPEATROSS, J.

Defendant, James W. Gleason, was charged by bill of information with armed robbery in violation of La. R.S. 14:64. Defendant ultimately pled not guilty and not guilty by reason of insanity and waived his right to a trial by jury. After the bench trial, he was found guilty as charged and subsequently sentenced to 30 years at hard labor without the benefit of probation, parole or suspension of sentence. A motion to reconsider sentence was filed and denied and Defendant now appeals his conviction and sentence. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 26, 2000, at approximately 12:40 p.m., Defendant entered the Gilbert Branch of the Winnsboro State Bank with the intention of robbing it. While the door to the bank is normally locked during this time, the two employees who were present, Claudine Prather and Vickie Collins, mistakenly assumed it would be safe to allow Defendant to enter, since he appeared to be well dressed and he was carrying a briefcase. Once inside, Defendant began to ask numerous questions about the procedures for opening a new business account. After a few minutes, he opened his briefcase and pulled out a .45-caliber handgun, which he pointed at the two women. Defendant began to make demands, telling them not to set off any alarms and also questioned them about the layout of the bank. During the initial encounter, Defendant spoke on a cellular phone, informing someone: “It’s quiet. It’s only two of them.” He told the women he had back up to 12call in if they did not cooperate. Defendant then removed what appeared to be dynamite or a bomb from his briefcase and laid it on the desk.

Ms. Collins and Ms. Prather testified that it appeared that Defendant knew certain fundamental procedures about banking security that an ordinary person might not be aware of, insisting, for example, that the victims not give him any “bait” money, and carefully looking in every place where money was normally hidden. After he had the two women place approximately $118,000 into a trash bag, which he had retrieved from the bank lobby, he instructed one of the women to retrieve the videotape from the security camera. Defendant then locked the woman in the restroom and told them that, if they attempted to open the door, the bomb he had attached to the doorknob would go off. Defendant left the bank in a rented vehicle. When another co-worker returned from lunch, she released the two victims. After calling 911, the women waited outside the bank, fearing the building would explode. It was later determined that the bomb was fake. The victims were able to give police a description of the perpetrator, including identifying marks such as a tattoo on his wrist, his clothing, shoes, etc. The victims also gave a description of the perpetrator’s car and its direction of travel.

Shortly after the robbery, Tensas Parish Deputy Kenneth Morgan received a “be on the lookout” (BOLO) on the vehicle and suspect involved in the bank robbery. The BOLO described the perpetrator as a white male driving a newer model gold automobile with no tag information. Deputy Morgan testified that he observed a vehicle matching the description driving | ¡¡south on Highway 65, passing other vehicles in an unsafe manner. Deputy Morgan stopped the vehicle. Deputy Morgan reported that the driver of the vehicle, Defendant, was coherent and calm. Since Defendant matched the description of the suspect, two additional officers were sent to the location of the stop. Defendant consented to a search of the vehicle, which revealed an automatic pistol in the front seat and a large plastic bag filled with cash in the back floorboard.

Defendant was arrested and, during his transport back to Franklin Parish, he voluntarily stated that the “fat lady had finally sung,” and “his kids should be proud of him now,” and that he was bankrupt and needed the money. A full search of the vehicle yielded a .38-caliber Smith and Wesson revolver, an AK47-assault weapon, a fully semi-automatic UZI, a fake bomb, fake tattoos (including packaging for one he had placed on his wrist), fake license plates and the bank security tape. Also discovered was a notebook with entries pertaining to additional small town isolated banks and a roll of electrical tape. Both Ms. Collins and Ms. Prather identified the Defendant in a photographic lineup shortly after the robbery.

After arraignment, at which he pled not guilty, Defendant retained counsel who raised the issue of Defendant’s mental capacity to proceed. A sanity commission was appointed; however, the record indicates that Defendant refused to cooperate with the examining psychiatrists. The court, therefore, ordered Defendant to the Eastern Louisiana Mental Health System for evaluation to determine his capacity to proceed and assist counsel and to determine his sanity at the time of the alleged offense. The Levaluators concluded that Defendant was mentally capable of proceeding and assisting in his defense and the court entered judgment to that effect. Defendant then withdrew his plea of not guilty and entered a plea of not guilty and not guilty by reason of insanity, based on his alleged involuntary intoxication resulting from his use of the anti-depressant Prozac.

At trial, the State presented the testimony of the arresting and investigating officers, the victims and other witnesses who established the facts of the armed robbery as well as Defendant’s behavior at the time of the commission of the crime and shortly thereafter. The defense stipulated that the State had proven all of the elements of the offense, but focused on Defendant’s alleged Prozac-induced mental incapacity which prevented Defendant from distinguishing right from wrong at the time of the offense. After a six-day bench trial, Defendant was found guilty as charged.

DISCUSSION

On appeal, Defendant raises two assignments of error: (1) the sufficiency of the evidence and (2) excessive sentence.

Sufficiency of evidencelinsanity defense

Defendant urges that the evidence was insufficient to support a guilty verdict; he contends that he was insane at the time of the offense and, thus, the proper verdict should have been not guilty by reason of insanity. The State, however, maintains that Defendant failed to meet his burden of proof regarding his defense of insanity; and, therefore, the defense was properly [¿rejected by the trial judge. The State further submits that the record fully supports the judge’s findings and the conviction should be affirmed. We agree.

Louisiana law presumes a defendant is sane and responsible for his or her actions. La. R.S. 15:432. This presumption is re-buttable, however, and the defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence. La. C.Cr.P. art. 652; State v. Appacrombie, 33,551 (La.App.2d Cir.9/12/00), 766 So.2d 771, writ denied, 00-2856 (La. 10/5/01), 798 So.2d 961; State v. Colvin, 452 So.2d 1214 (La.App. 2d Cir.1984), writ denied, 457 So.2d 1199 (La.1984).

Legal insanity is proved if the circumstances indicate that a mental disease or mental defect rendered the offender incapable of distinguishing between right and wrong with reference to the conduct in question. La. R.S. 14:14; State v. Appacrombie, supra; State v. Colvin, supra. The standard of review when a defendant pleads the affirmative defense of insanity and claims the record does not support a finding of guilty beyond a reasonable doubt is whether, under the facts and circumstances of the case, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the defendant had not proved by a preponderance of the evidence that he was insane at the time of the offense. State v. Peters, 94-0283 (La.10/17/94), 643 So.2d 1222; State v. Appacrombie, supra; State v. Sepulvado, 26,-948 (La.App.2d Cir.5/10/95), 655 So.2d 623, writ denied, 95-1437 (La.11/13/95), 662 So.2d 465. In reviewing a claim of insufficiency of evidence in regard to a defense of insanity, this court applies the test set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The determination of sanity is a factual matter reserved to the jury or other fact finder. Expert testimony is relevant to the issue of whether a defendant is insane; but, even where experts opine that the defendant is insane, the issue is for the jury to decide. State v. Appacrombie, supra; State v. Sepulvado, supra.

All evidence, including expert and lay testimony, besides the defend uit’s conduct and actions, should be m erved for the fact finder to establish whether the defendant has proven by a preponderance of the evidence that he was insane at the time of the offense. Lay testimony concerning the defendant’s actions, both before and after the crime, may give the fact finder a rational basis for rejecting unanimous medical opinion that the defendant was legally insane at the time of the offense.

State v. Horne, 28,327 (La.App.2d Cir.8/21/96), 679 So.2d 953. A trier of fact may accept or reject the opinion expressed by a medical expert. State v. Reese, 34,-275 (La.App.2d Cir.12/20/00), 774 So.2d 1164; State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27. The importance placed upon such testimony is largely dependent upon the expert’s qualifications and the facts that form the basis of his opinion. Id. A reviewing court accords great deference to a fact finder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Sepulvado, supra; State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987).

17As previously stated, Defendant does not dispute that he committed the armed robbery. Defendant took $118,000, which was in the immediate control of Ms. Prather and Ms. Collins, from the Winnsboro State Bank. He committed the armed robbery with the use of intimidation and force by leading the victims to believe they would be killed or seriously injured if they failed to comply with his demands. He was armed with a .45-caliber handgun and a fake explosive device.

The record contains clear evidence of premeditation and reveals that Defendant extensively planned the robbery. He “cased” the bank the day before the robbery, choosing a small, isolated bank at a time of day when only a few employees were present. The night before the robbery Defendant purchased the materials to make a fake explosive device, which he used to carry out the robbery. Defendant also applied a temporary tattoo on his wrist. He entered the bank armed with a handgun and the fake bomb (in a briefcase) and, after demanding money from one of the employees, placed a call on his cellular phone to an alleged “back up” individual(s) to make the victims believe he had an accomplice(s) ready to assist him if necessary. Defendant had prepared for the robbery by becoming familiar with banking practices such as knowing where the money was kept and how to ask for it. Specifically, he told the victims not to give him any “bait” money — only larger bills. After noting the presence of the security camera, he ordered one of the victims to retrieve the security tape. He locked the women in the restroom and left the bank in his rented vehicle. Found in the vehicle were [¡¿more firearms, a make-up kit, additional license plates with magnets and notes on other small, isolated banks.

In addition, Defendant had committed an almost identical armed robbery of another small bank one year prior to this offense. Reba Tarpley, Manager of the Toledo Branch of the Sabine State Bank, testified that, on April 28, 1999, the Sabine State Bank was robbed in an almost identical manner as the Winnsboro State bank. The perpetrator of that robbery, identified at trial as James Gleason, was wearing similar clothes, used a gun and a fake bomb, told the victims that he had an accomplice, stated he did not want ones or fives or “bait” money and also retrieved the videotape from the security camera. Ms. Tarpley testified that Defendant had also been in the Sabine Bank a couple of days before that robbery “casing” the bank.

Despite his admission that he engaged in all of the above activities, Defendant claims that he was insane at the time of the offense. He testified that he had taken more than his prescribed dose of Prozac that day, which had caused him to drink excessive amounts of vodka and had rendered him unable to discern that his actions were wrong. Defendant argues that, prior to 1998, he was a “normal” person, that he behaved normally, spoke normally and thought normally. He emphasizes that he had even served time in the U.S. armed forces, graduated from college, married and had children. Defendant was also a successful businessman, primarily in sales. As a result of consultation with his family physician in 1998, however, he was diagnosed as being depressed and was prescribed Prozac. Defendant testified that, since his use of Prozac, he has suffered from depression, | adefects in his intellectual and cognitive functioning, as well as a wide array of other mental disabilities, including headaches, insomnia, night sweats, nightmares, paranoia and increased alcohol intake. Instead of continuing his life as a businessman, Defendant stated that he bought a motorcycle, wore a bandana, grew long hair and abandoned his family. He claimed that his value system was completely gone, he did not understand right from wrong and that he changed into another person without morals or principles.

Among those testifying on behalf of Defendant were several members of his family, each of whom related his or her perceived behavioral changes of Defendant after he began taking Prozac. These personality changes included Defendant not caring about his family, to which he had once been a loving and devoted husband and father, and his abandoning a successful business career to ride motorcycles and dress accordingly.

Dr. E.E. Johnstone, accepted by the court as an expert in general psychiatry, testified that Defendant suffered from Prozac-induced abnormal behavior at the time of the offense. Based upon his examination of Defendant, his meeting with the family and study of the records and reports, Dr. Johnstone concluded that Defendant “could distinguish that his crime was an improper act, but was unable to conform his actions.” Specifically, Dr. John-stone stated that Defendant “didn’t care” whether his actions were legal or not. Dr. Johnstone further stated, “[o]h, I think he understood that he could get into some trouble, but I don’t think he truly grasped the — the extent of the trouble he would be in.” Dr. Johnstone explained that his conclusions support his finding that Defendant was unable to distinguish |inright from wrong at the time of the offense and this inability was the result of Defendant’s taking Prozac. We find Dr. Johnstone’s testimony to be contradictory and not tailored to the standard utilized by our courts in insanity cases. In Louisiana, the inability of a defendant to conform his or her behavior to a moral standard is not the relevant inquiry in a case involving an insanity defense. We do not find Dr. Johnstone’s remarks to support a conclusion that Defendant was insane under Louisiana’s standard, i.e., an ability to distinguish right from wrong at the time of the offense.

Dr. George Seiden was accepted by the court as an expert in forensic psychiatry and testified on behalf of the State. While both doctors agreed that Defendant is an alcoholic, Dr. Seiden disagreed with Dr. Johnstone regarding the effects of Prozac on Defendant’s alcohol consumption and his criminal behavior. Dr. Seiden opined that Defendant’s consumption of Prozac and alcohol did not cause his criminal actions and that, on April 26, 2000, Defendant was able to distinguish right from wrong. When questioned about the factors which led him to this conclusion, Dr. Seiden testified as follows:

A: Yes, sir. If I had no other information, if the only information I had was the information about him returning to get the video tape, the surveillance video tape, if I had only that piece of information that would tell me that he knew that what he was doing at the time was wrong because of his attempt to hide his involvement in that behavior. If — • that piece of information alone would be sufficient, but there’s a lot of other information that supports that.
Q: What are the other factors that— that would tend to confirm his ability to understand and distinguish between right and wrong?
In A: Among them is the fact that he contemplated doing it and deliberated whether he should or should not have done that, that he said that he understood the potential consequences of his behavior and it wasn’t that he didn’t know it but that he didn’t care that much about the consequences, and his statement to me during the evaluation that there has never been a time in his adult life when he did not know that robbing a bank was wrong.

Additional factors supporting Dr. Seiden’s conclusion were the presence of temporary tattoos and a make-up kit, which would disguise his identity, and the additional license plates, which would assist him in getting away from the scene of the crime. Finally, Dr. Seiden opined that the prior bank robbery was “strong evidence against insanity” because it shows a pattern of behavior and his “ability to plan out the behavior [and] get away with the behavior.” On this record, we conclude that a rational trier of fact could easily have concluded that Defendant failed to prove by a preponderance of the evidence that, due to mental disease or defect, he was unable to distinguish between right and wrong at the time of the offense. This assignment is without merit.

Excessive Sentence

Defendant argues that the 30-year sentence is excessive. He claims that the record fails to support the sentence and the trial court failed to consider mitigating factors. We disagree.

The test imposed by the reviewing court in determining the exces-siveness of sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. I^art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983). The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (La.1988). There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

La. R.S. 14:64 provides for a sentence on an armed robbery conviction of not less than 10 nor more than 99 years, without benefit of parole, probation or suspension of sentence. On June 18, 2002, Defendant was sentenced to serve 30 years at hard labor without benefit of probation, parole or suspension of sentence. A sentence which falls within the | ^statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, however, the court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and, therefore, is nothing more than the needless imposition of pain and suffering. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. The trial judge has broad discretion and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

Defendant argues that the trial court failed to consider the factors in La.C.Cr.P. art. 894.1 in imposing sentence. According to Defendant, the trial court failed to adequately consider that he is a true first offender and his only other conviction was for a DWI, first offense in 1985. He also urges that he is college-educated, served successfully in the armed services and had a less than fortunate childhood. Further, Defendant states that, until his demise attributable to Prozac, he was a successful businessman and family man who always worked.

The trial court did, however, consider the guidelines found in La.C.Cr.P./ art. 894.1. Those considerations, along with the facts found in the transcripts of the trial and the pre-sentence investigation report, provide an adequate basis for the sentence. Considering the same factors cited in mitigation by Defendant, we find the sentence to be justified. Defendant is highly educated and had an opportunity to make good choices. Due to his background or life-history, we cannot disagree with the trial judge that this crime is absolutely deplorable.

| uThe trial court considered the dangerous nature of the crime and Defendant’s calculated and detailed planning of the robbery. Armed with a .45-caliber handgun and what appeared to the victims to be dynamite or a bomb, Defendant demonstrated that he is extremely dangerous and exercises no restraint in obtaining his wants and desires, whether legal or illegal. Under these circumstances, the sentence imposed is tailored to the offender and the offense and does not shock the sense of justice or constitute a needless or purposeless imposition of pain and suffering.

CONCLUSION

For the foregoing reasons, James W. Gleason’s conviction and sentence are affirmed.

AFFIRMED.

      . The bill of information was later amended to add charges of second degree kidnapping and use of a fake explosive device; however, only the armed robbery charge was tried and is the subject of this appeal.

      . This case was initially allotted to Division C, Judge Rudolph McIntyre, Jr. presiding. After two days of trial, Defendant filed a motion to recuse, which was granted, and a mistrial declared. The case was then assigned to Division A, Judge Glen Strong presiding; and, after motions were re-heard and decided, Defendant's second trial commenced on March 25, 2002.