author: 1 .GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Tommy L. LINGEFELT, Sr., Appellant.
    No. 38,038-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.
    Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, for Appellant.
    William R. Coenen, Jr., District Attorney, Penny Douciere, K. Douglas Wheeler, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   1 .GASKINS, J.

The defendant, Tommy L. Lingefelt, Sr., was charged with the offenses of: (1) manufacture of methamphetamine; (2) conspiracy to manufacture methamphetamine; and (3) possession of marijuana with intent to distribute. A jury found him guilty as charged on the first two counts, and guilty of the lesser and included offense of simple possession of marijuana on the third count. On the first count, the court imposed a sentence of 22 years at hard labor without benefits plus a fine of $50,000. On the second count, the court imposed a sentence of 10 years at hard labor, with five of those years to run consecutively with the sentence on count one. For the possession of marijuana, the court imposed a sentence of six months to be served concurrently with the other two sentences. The defendant filed a timely motion for reconsideration of sentence, which was denied. He now appeals.

FACTS

The defendant manufactured methamphetamine with his sons and other individuals at two residences in Richland Parish. He was arrested when the authorities investigated his son, James Thomas, and an associate, James Thornhill, following their purchase of items used in the manufacturing process. The police searched Thorn-hill’s vehicle and found the items, as well as methamphetamine and marijuana on Thornhill.

Based on details learned from that investigation, including information that the defendant had sent Thomas and Thornhill to purchase the materials, the police executed search warrants at the residences where the defendant and one of his sons lived. The search disclosed items needed 12to manufacture and use methamphetamine. They included an anhydrous ammonia tank and snorting straws, as well as two holes in the ground in which to hide buckets. Starting fluid and pseudoephed-rine pills were found in a bucket in the defendant’s bedroom, as were coffee filters. Five glass jars containing pseu-doephedrine tablet residue were found in or near the buckets. Starting fluid and a container holding methamphetamine were found in the living room of the defendant’s house. Two wooden spoons, used to mix pseudoephedrine and lithium, were also found inside the defendant’s bedroom closet. The police found lithium batteries and recovered marijuana and marijuana seeds. The marijuana found in the defendant’s bedroom weighed 122 grams.

The defendant made an out-of-court statement in which he admitted possession of the items by claiming he was holding them for someone else to cook. However, Thornhill testified at trial that he visited the defendant once or twice a week during the 18 months before his arrest, and the defendant- kept the anhydrous ammonia tank to use in cooking methamphetamine. Thornhill explained that the defendant cooked methamphetamine at his trailer and at his house. He kept the materials for cooking in two buckets that he hid in a hole in the ground. The defendant usually cooked batches using 800 pseudoephedrine pills. Thornhill had seen the defendant going through the cooking process during the four days prior to his arrest. Thornhill also testified that on the day of their arrests, he and James Thomas went to buy the other items needed for the manufacturing process for the defendant.

13William Henley, another associate of the defendant, testified at trial that he had seen the defendant cooking methamphetamine two to three times per week during the 18 months before the arrests. He also testified that on the day of the arrest, the defendant had already begun to soak pseu-doephedrine pills, the first step in the cooking process, and thus was “in the manufacturing process.”

JURY INSTRUCTION

The defendant argues that the trial court erred in denying his objection to the state’s proposed jury instruction.

During voir dire, trial and final argument, defense counsel maintained a theme that the defendant could only be found guilty of attempted manufacture. The state requested a special jury charge to define certain “technical” terms included in the statutory definition of manufacturing. The proposed instruction used the Webster’s Collegiate Dictionary’s definitions of “preparation,” “compound,” and “process.” The court gave the requested special instruction to the jury.

The defense objected that the definition of “manufacture” meant a finished product had been achieved, rather than including the steps in the process. However, the defense’s desired definition would not be in accord with the statute involved. The statutory definition of manufacture, La. R.S. 40:961(24), does not use the term “finished product”; it does use the phrase “production, preparation, propagation, compounding, or processing.” Nor does the definition of production, La. R.S. 40:961(34), use the term “finished product.”

|4La. C. Cr. P. art. 807 provides that the state and the defendant have the right to submit special charges for the jury. A requested special charge shall be given if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. The jurisprudence also requires that a requested instruction must be supported by the evidence. State v. Craig, 95-2499 (La.5/20/97), 699 So.2d 865, 869, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997).

The charge as given was accurate. As given to the jury, the instruction tracked the statutory language and came directly from a recognized dictionary. It was pertinent and supported by the evidence, including the facts that the defendant had started to soak his pseudoephedrine tablets and had procured other supplies to be used in the cooking process. There is no explanation of the defendant’s claims that the instruction was overly broad or prejudicial.

This assignment of error lacks merit.

EXCESSIVE SENTENCE

The defendant asserts that the sentences imposed were excessive. He argues that the trial court did not give adequate consideration to all the sentencing guidelines in that only three of the 20 factors listed in La. C. Cr. P. art. 894.1 applied to him.

Prior to imposing sentence, the trial court reviewed a presentence investigation (PSI) report. The defendant was 51 years old at the time of sentencing. After reciting the evidence presented at trial, the court discussed the defendant’s criminal history, which included convictions for |RreckIess operation of a vehicle, speeding, resisting an officer, disturbing the peace, hit and run, simple burglary and DWI. Probation on the simple burglary was revoked when the defendant was convicted of possession of marijuana with intent to distribute. The court also reviewed his social history. He was the ninth of 13 children; his parents worked at various jobs, including farming. The defendant quit school in the seventh grade, but obtained a GED and a small engine certificate. He worked for a tree service and a gas station.

The defendant had three children from a marriage which ended in divorce in 1974. He married again, had two more children, and divorced in 1986. He lived with a third woman from 1987 until 1999 and had two more children. All seven of his children were adults at the time of sentencing.

Information from the Richland Parish Sheriffs Department indicated the defendant had been manufacturing methamphetamine for approximately 20 years. He involved his family in the drug business and even bragged about how he had taught them the business. He had been heard in jail telling fellow inmates that when he got out he would start cooking again because it was easy money.

The court then reviewed a letter from the defendant and listened to him tell an elaborate story of cooking methamphetamine undercover at the request of the police, of his efforts to help people get off methamphetamine, and of the police’s efforts to set him up. He denied having any prior dealings with crystal methamphetamine at any time in his life. He said the police were after him and that everything was a lie. He also disputed ^portions of his criminal record. The court noted that two of defendant’s sons had pled guilty to drug charges in connection with this case.

The court found a high probability that the defendant would commit another crime if granted probation. He was in need of lengthy correctional treatment in a custodial environment. A lesser sentence would deprecate the seriousness of the offense. The court believed manufacture and conspiracy to manufacture methamphetamine were very serious offenses because the drug was ruining the lives of people in the parish and within the judicial district. The court found the defendant had been persistently involved in criminal activity. The defendant was a leader and organizer of his family and other young people in conspiring to manufacture and in manufacturing methamphetamine. The defendant had made money from his ongoing drug activities which threatened serious harm in the parish. The court felt the defendant contemplated or should have contemplated that his criminal conduct would cause or threaten serious harm to those who would be taking the drugs and learning how to manufacture them. There was no excuse or justification for the defendant’s criminal conduct. Imprisonment would not entail excessive hardship on his dependents.

The jurisprudence holds that 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. Landos, 419 So.2d 475 (La.1982).

A trial court has broad discretion to sentence within the statutory limits. State v. Mandosia, 36,827 (La.App.2d Cir.4/9/03), 842 So.2d 1252. Absent a showing of manifest abuse of that discretion an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Here, the evidence demonstrated that the defendant had a history of involvement in the drug trade, including a prior conviction for possession with intent. The evidence showed that he had cooked methamphetamine many times, in fairly large batches, and he intended to do so again upon his release from confinement. He engaged in these activities for the economic benefit, without regard to the harm caused to those he supplied with drugs. He involved several young persons in his enterprise, including family members who now have convictions due to their association with him. Although he possessed a relatively large quantity of marijuana, he garnered a relatively light sentence for it. The sentences are lawful and are affirmed.

This assignment of error is merit-less.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The defendant filed a pro se brief in which he alleged that his Fourth Amendment rights were violated because the searches were conducted without probable cause. This claim is waived when it is not raised prior to trial. La. C. Cr. P. art. 703. However, we note that the searches were conducted pursuant to warrants and there was testimony that prior to the warrants being issued, the police were given information that the drug-related offenses occurred on the defendant’s property.


source: Caselaw Access Project

author: JjMOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Rufus HAMPTON, III and Louis Hargrove, III, Appellants.
    Nos. 38,017-KA to 38,022-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      Louisiana Appellate Project, by Paula C. Marx, Carey J. Ellis, III, for Appellants.
    John Schuyler Marvin, District Attorney, Sherburne Sentell, III, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   JjMOORE, J.

A jury convicted the defendants Hampton and Hargrove of armed robbery, conspiracy to commit armed robbery, and aggravated second degree battery of the victim, Eldred Ford Lowe, Jr. For each defendant, the trial court imposed consecutive sentences of 50 years for the armed robbery, 25 years for the conspiracy, and 15 years for the aggravated second degree battery. The court denied timely motions for reconsideration of sentence. Defendants appeal the convictions and sentences. For the reasons stated herein, we affirm.

Facts

Around 9:00 p.m. on the evening of May 30, 2001, Eldred Ford Lowe, Jr., a teacher at Northwest Louisiana Technical College, pulled his car into his driveway at 804 Claiborne Street in Minden. As he exited his car, he saw a small red sport utility vehicle stop at the end of his driveway. Illuminated by a bright street lamp, Lowe could see that the vehicle was driven by a black male. The passenger, also a black male later identified as the defendant Hampton, got out of the vehicle armed with a pistol aimed at Lowe and approached him shouting profanities and demanding money. Hampton grabbed Lowe and hit him several times in the face and head with the pistol, knocking him to the ground. Lowe sustained a large gash on the top of his forehead and across his nose. Hampton reached in the victim’s pocket and took a money clip holding $154 in cash and several credit cards. Lowe, who remained on the ground, heard Hampton get back into the ^vehicle, which sped away. Lowe’s wife notified authorities and took her husband to the hospital.

Minutes after the robbery, the defendants purchased items from the local Wal-Mart store using Lowe’s credit card. Video surveillance tapes showed them arriving at the Wal-Mart in the red Kia Sportage and subsequently making a purchase of items including a cassette tape with one of Lowe’s credit cards. Police found several items in the vehicle including a price tag for a pair of Wrangler shorts purchased from Wal-Mart whose bar code identified it as one of the purchases from that store with the victim’s credit card.

The state charged both defendants by bill of information with armed robbery, aggravated second degree battery and conspiracy to commit armed robbery.

At trial, Detective Dan Weaver, chief criminal investigator for the Minden Police Department, testified that he was notified of the crime at about 9:20 p.m. on May 30, 2001. Lowe told Detective Weaver that the two black males involved in the robbery were in a small SUV, possibly red or maroon. One man, who was wearing a skullcap, got out of the SUV and committed the robbery; the other man stayed in the vehicle. The police took a picture and made a cast of a footprint at the crime scene that made an unusual oval shape.

The following day, Detective Weaver, spotted a red Kia Sportage matching the description of the robbery SUV occupied by Hargrove in the driver’s seat in a store parking lot. Hampton came out of the store and got [3in the vehicle. Detective Weaver called in other police units. Police subsequently stopped the vehicle for speeding. Hampton was wearing a nylon skullcap such as the one described by the victim. A consent search of the SUV disclosed a .177 caliber pellet pistol hidden in the engine compartment under the hood. Hampton’s tennis shoe matched the footprint from the crime scene.

Detective Weaver advised both defendants of their Miranda rights. Hargrove stated that he and Hampton had been in Minden on the night of the robbery and had returned to Shreveport. Hampton stated that he had not been in Minden that night.

The victim viewed a photographic lineup and immediately picked Hampton. The victim also identified a photo of an SUV that he described as looking “mostly like” the one involved in the robbery. The photo depicted the red Kia Sportage that had been stopped by police and occupied by Hargrove and Hampton. No identifiable fingerprints were found on the pistol. However, DNA evidence obtained from the pistol matched the DNA of the victim.

Detective Scott Tucker testified that he was the first investigator to arrive at the crime scene. The lighting was good because there was a street light “right there at the street.” He noticed the unique footprint and had Detective Weaver make a cast. Tucker went to shoe stores the next day and learned the K-Swiss shoes were only recently introduced into the retail market and were distributed only at Dillard’s stores.

| ¿The red Kia Sportage was a rental car. Rental papers found in the car authorized Hampton to drive the vehicle. In addition to the items mentioned above, police found a shopping list in the back seat of the Kia. The list matched items purchased with Lowe’s credit card. A “2 Pac Outlaws” cassette tape that was purchased with Lowe’s credit card was in the player/radio of the Kia. Also, a Minden newspaper with the headline, “Local Teacher Robbed,” was in the car.

Bill Fields, Wal-Mart’s loss prevention agent, testified that his store routinely runs videotape surveillance in the store. He laid the foundation for playing a videotape of events inside the store on the night of the robbery. He then identified credit card receipts of transactions made with the victim’s card on the night of the robbery between 9:15 and 9:23 p.m. The tag found in the back of the Kia matched one of the credit card receipts.

The victim, Eldred F. Lowe, Jr., testified that on the night of the robbery he arrived at his home at about 9:00 p.m. After he got out of his vehicle, he heard a car pull up to the curb “real fast” and stop at the end of his driveway. A black male stepped out of the car. He had what looked like an automatic pistol pointed directly at Lowe. He approached Lowe quickly.

The man had come from the passenger side of a small SUV which was red and relatively new. It was under the street light. Lowe identified State Exhibit 9 as the pistol used by Hampton. Lowe got an unobstructed look at the robber’s face. He was wearing a tight-fitting black or dark skullcap. The robber demanded money and hit Lowe three or four times, knocking him to the ground. The robber used the pistol to hit Lowe. The | srobber put his hand in Lowe’s pocket and removed his money clip, driver’s license, cash and credit card. Then the robber ran to the SUV. As the SUV pulled away, Lowe noticed the driver appeared to be a black male but Lowe did not see any distinguishing features.

Detective Tucker testified that the victim’s house is within a mile of the Minden Wal-Mart. Tucker had viewed the Wal-Mart surveillance videotape numerous times. The state played the tape, which showed the red Kia pulling into the parking lot at 9:00 p.m. Two men got out of the vehicle. One pushed a buggy; the other had a black hat on his head. The next film clip showed the two men buying the Tupac cassette. Tucker said the time displayed on the tape could be off by a few minutes. The next film clip showed the men buying a DVD player. One of the men was wearing shoes with a unique look and distinctive tips. The shoes had a unique red tip on the front, the same as the shoes taken from Hargrove when he was arrested.

A jury convicted the defendants as charged on all counts. The trial court imposed consecutive sentences totaling 90 years at hard labor for each defendant. Defendants now appeal alleging that the evidence is insufficient to sustain the convictions for armed robbery, aggravated second degree battery and conspiracy to commit armed robbery and that the consecutive sentences are harsh and excessive.

Discussion

Sufficiency of Evidence

Although the record does not reflect that either defendant filed a |r,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. 2 Cir. 02/26/97), 691 So.2d 1273.

Hampton, the defendant who actually beat and robbed the victim, argues that the evidence is insufficient to support the conviction for conspiracy to commit armed robbery. He specifically argues that the state did not produce any direct evidence of specific intent, a necessary element of conspiracy, citing State v. Guillory, 540 So.2d 1212, 1215 (La.App. 3 Cir.1989). The defense also cites State v. Lowery, 609 So.2d 1125 (La.App. 2 Cir.1992), writs denied 617 So.2d 905 (La.1993), for the proposition that the state failed to prove a “joining of the minds to accomplish a concerted action with an unlawful purpose.”

Hargrove, who served as the driver of the getaway car, argues the evidence was insufficient to convict him on any of the charges. He specifically argues there was no physical evidence to link him to the crime scene and that there was no proof of an agreement between him and his co-defendant to commit an armed robbery.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App. 2 Cir. 09/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.04/19/02), 813 So.2d 424. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2 Cir. 09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24.

To convict a defendant of armed robbery, the state is required to prove: (1) a taking (2) of anything of value (3) from a person or in the |simmediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Jeselink, 35,189 (La.App. 2 Cir. 11/02/01), 799 So.2d 684. A dangerous weapon is any instrumentality which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(3).

Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury. “Serious bodily injury” is defined as injury which involves, inter alia, extreme physical pain or protracted and obvious disfigurement. La. R.S. 14:34.7.

The elements of the crime of conspiracy are an agreement or combination of two or more persons for the specific purpose of committing a crime and an act done in furtherance of the object of the agreement or combination. La. R.S. 14:26; State v. Valrie, 99-226 (La.App. 3 Cir. 10/13/99), 749 So.2d 11, writ denied, 99-3236 (La.04/20/00), 760 So.2d 343.

For purposes of the crime of conspiracy, specific intent may be inferred from the circumstances of the transaction and actions of the defendant. State v. Johnson, 01-1084 (La.App. 3 Cir. 02/06/02), 817 So.2d 120; State v. Taylor, 96-1043 (La.App. 3 Cir. 02/05/97), 688 So.2d 1262, 1268. The overt act need not be unlawful; it may be any act, innocent or illegal, accompanying or following the agreement, which is done in furtherance of the object of the agreement. State v. Taylor, supra.

1 flThe evidence presented in this case sufficiently supports all convictions beyond a reasonable doubt. The jury viewed the videotape of the defendants in Wal-Mart using Lowe’s stolen credit card to make purchases which were traced to them through credit card receipts and the shopping list. Mr. Lowe positively identified Hampton as the man who confronted him with a weapon, beat him with it leaving permanent scars, and who took his money clip, cash, credit card and other valuables. The weapon used in the armed robbery and aggravated battery was found in the defendants’ car. Hampton was listed as a driver on the rental car agreement.

Viewing the evidence in a light most favorable to the prosecution, the evidence is easily sufficient to sustain the convictions for armed robbery and the aggravated second degree battery.

On the conspiracy charge, a jury could reasonably conclude, based on the testimony of the victim, that there were two black males in the red SUV and Hampton was the passenger who attacked him. Additional evidence permits an inference that Hargrove was the driver at the scene of the robbery. The red Kia identified by the victim was seen on the surveillance videotape just minutes after the robbery arriving at the Wal-Mart parking lot. The defendants were video recorded in the store making purchases with the victim’s credit card. Hargrove’s distinctive shoes recovered at his arrest were visible on this videotape. Thus, this videotape evidence placed the red Kia SUV, Hargrove and Hampton together within minutes of the robbery. Hargrove was the driver of the vehicle the next day, which tends to confirm he was the unidentified driver at the time of the robbery. The videotape, as hnwell as Lowe’s testimony that the driver was a black male and not a female, demonstrates there was no change of driver between the robbery and the car’s arrival at the Wal-Mart. Furthermore, Hargrove admitted he traveled to Minden with Hampton on the night of the robbery. All of these evidentiary matters permit the inference that Hargrove was with Hampton at the time of the robbery. The robbery was committed when the driver of the SUV, acting either on a predetermined plan or at Hampton’s direction, stopped the vehicle at Mr. Lowe’s driveway. This act shows that the driver of the vehicle, Hargrove, was acting in concert with Hampton.

The jury apparently found Hargrove’s hypothesis that he was not the driver unbelievable and ruled it out. The jury was within its authority and its findings are supported by the record.

Thus, with respect to both Hampton and Hargrove, after viewing the evidence' in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crimes, including conspiracy, were proven beyond a reasonable doubt.

Sentencing

Hampton and Hargrove argue that the trial court erred in imposing unduly harsh and excessive consecutive sentences in the absence of particular justification for acts arising out of the same course of conduct. Hampton argues that this constitutes a violation of the double jeopardy provisions in that the same conduct is being punished twice. Hargrove argues that the consecutive sentences are excessive and the trial judge failed to state the factors considered and the reasons for imposing consecutive Interms.

The double jeopardy claim lacks merit. Each offense involves elements which are not common to the other. The jurisprudence generally approves of consecutive sentences for defendants convicted of conspiracy and of committing the principal offense. State v. White, 35,235 (La.App. 2 Cir. 10/31/01), 799 So.2d 1165; State v. Zeno, 99-69 (La.App. 5 Cir 08/31/99), 742 So.2d 699.

The test imposed by the reviewing court in determining the excessiveness of a 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. 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); State v. Dunn, 30,767 (La.App. 2 Cir. 06/24/98), 715 So.2d 641. 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. 2 Cir. 04/02/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2 Cir.), writ denied, 521 So.2d 1143 (1988).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App. 2 Cir. 02/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979. Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App. 2 Cir. 04/02/97), 691 So.2d 864.

As to Hargrove, the court considered the facts of the case and noted that, at the time of these offenses, the defendants were wearing clothes and jewelry purchased on a credit card taken from a third party in Shreveport, i.e., the defendants had committed the same crimes before. The court noted for the record that Hargrove had a smirk on his face during trial and at sentencing. He had convictions for theft, illegal possession of stolen things, simple robbery pled down from armed robbery, a parole revocation, possession of marijuana with intent to distribute, another parole revocation, and was on parole at the time of these offenses. He had an unrelated 1 ^pending charge of possession of a firearm by a convicted felon. Hargrove, now 31, was a third felony offender. The court discussed his educational background, which included graduation from high school. He was not married, but claimed to have four children. His employment record included jobs at restaurants, a car wash, Sears, the Isle of Capri and Hamel’s Park. He had not shown any remorse and had thrown gang signs to fellow inmates while talking with the probation officer who was preparing the PSI report. Hargrove said, “Ain’t none of that true.” The court found a lesser sentence would deprecate the seriousness of the offenses. There was no justification or mitigation noted by the trial court.

As to Hampton, the court again considered the facts of the case and noted that Hampton persisted in claiming he was innocent. He had shown no remorse and “copped an attitude” with the probation officer preparing the PSI report. He smirked and laughed all the way through the trial. His adult record began in 1993 with a simple robbery. Probation was revoked. He was released on parole, but it was revoked four times. He was arrested for auto theft, but was allowed to plead to misdemeanor illegal possession of stolen things. The instant offenses occurred less than two weeks after Hampton’s most recent release on parole. The court found no justification or mitigation and again found that a lesser sentence would deprecate the seriousness of the offense. Hampton also had been throwing gang signs while talking with the probation officer for the PSI report. Hampton said that was a lie.

| uBoth defendants are multiple offenders with records involving robbery and theft. The instant offenses were committed in an unnecessarily brutal manner. The individual sentences, therefore, are not excessive.

The jurisprudence holds that when two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment “shall be served concurrently unless the court expressly directs that some or all be served consecutively.” La.C.Cr.P. art. 883. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App. 2 Cir. 11/01/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App. 2 Cir. 04/05/00), 756 So.2d 1218, writ denied 00-1572 (La.03/23/01), 787 So.2d 1010.

Concurrent sentences arising out of a single cause of conduct are not mandatory, State v. Pickett, 628 So.2d 1333 (La.App. 2 Cir.1993), writ denied 94-0348 (La.05/20/94), 637 So.2d 476; State v. Nelson, 467 So.2d 1159 (La.App. 2 Cir.1985), and consecutive sentences under those circumstances are not necessarily excessive. State v. Williams, 445 So.2d 1171 (La.1984); State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Mills, 505 So.2d 933 (La.App. 2d Cir.), writ denied, 508 So.2d 65 (1987).

Although La.C.Cr.P. art. 883 favors the imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other | ^circumstances in his background justify treating him as a grave risk to the safety of the community. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Feaster, 36,868 (La.App. 2 Cir. 03/05/03), 840 So.2d 675.

Among the factors to be considered are the defendant’s criminal history, State v. Ortego, supra; State v. Jacobs, 493 So.2d 766 (La.App. 2 Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2 Cir.), writ denied, 496 So.2d 355 (1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4 Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1 Cir.), writ denied, 435 So.2d 433 (1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); defendant’s apparent disregard for the property of others, State v. Parker, 503 So.2d 643 (La.App. 4 Cir.1987); and the potential for defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983), State v. Lighten, 516 So.2d 1266 (La.App. 2 Cir.1987). All of these factors apply to these defendants in favor of consecutive sentences.

However, the jurisprudence requires that when consecutive sentences are imposed, the court “shall state the factors considered and its reasons for the consecutive terms.” State v. Green, 614 So.2d 758 (La.App. 2 Cir.1993). A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Strother, 606 So.2d 891 (La.App. 2 Cir.1992), writ denied 612 So.2d 55 (La.1993); State v. Thompson, 543 So.2d 1077 (La.App. 2 Cir.), writ denied, 551 So.2d 1335 (1989).

|1fjln this case, the court did not specifically state any reasons for making the sentences consecutive, even though the court discussed many of the factors prior to imposing the sentences that would support consecutive sentences. Ordinarily, remand to the sentencing court is required for specific articulation of reasons for running the sentences consecutively.

Recently, however, the jurisprudence has moved away from requiring remand under certain circumstances. In State v. Jarrett, 37,928 (La.App. 2 Cir. 12/10/03), 862 So.2d 440, we affirmed the trial court’s imposition of consecutive sentences even though it did not specifically state the reason for consecutive sentences, but discussed during sentencing certain factors that supported the ruling. Similarly, in State v. Blanchard, 03-0612 (La.App. 5 Cir. 11/12/03) 861 So.2d 657, the Fifth Circuit held that the trial court did not err in when it ordered the defendant to serve a DWI, third offense, sentence to run consecutively to the first degree vehicular negligent injuring sentence, even though the trial court failed to give any reasons justifying the consecutive nature of the sentence, but the record provided adequate facts to support a consecutive sentence. In State v. Bradley, 02-KA-1130 (La.App. 5 Cir. 03/11/03), 844 So.2d 115, 118, the court concluded in obiter dicta that the failure to articulate specific reasons for imposing a consecutive sentence does not require remand if the record provides an adequate factual basis to support a consecutive sentence. The Bradley court reasoned:

We do note that LSA C.Cr.P. art. 883 does not specifically require the trial court state reasons justifying the imposition of a consecutive sentence when the crimes arise out of a single course of conduct. Rather, the history of the | ^jurisprudence reveals that the requirement for articulating specific reasons for imposing a consecutive sentence is based on LSA C.Cr.P. art. 894.1, which requires a sentencing court to “state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” State v. Franks, 373 So.2d 1307, 1308 (La.1979). Over time, the Louisiana Supreme Court has found that the failure to articulate reasons for sentence pursuant to Article 894.1 does not require a remand when the sentence imposed is not “apparently severe” and there is an adequate factual basis for the sentence contained in the record. State v. Robicheaux, 412 So.2d 1313, 1319 (La.1982). Therefore, it logically follows that the failure to articulate specific reasons for imposing a consecutive sentence also does not require a remand if the record provides an adequate factual basis to support a consecutive sentence.

Although the sentences imposed on the defendants herein are admittedly severe, we find the Bradley court’s reasoning persuasive in this instance. The trial court in this case reviewed the factors relevant to imposition of consecutive sentences although it did not expressly state the “magic words” referring to La. C.Cr.P. art. 894.1. Cf. State v. Jackson, 552 So.2d 445 (La.App. 4 Cir.1989). (The fact that the sentencing court did not specifically use the phrase, “The reasons for these consecutive sentences are as follows:,” is of no consequence where the sentencing transcript clearly indicates that the sentencing court explained the reasons for sentencing as they pertained to the sentence as a whole, including reasons for the imposition of consecutive sentences.) In this instance, the sentencing transcript reflects a long recitation of each defendant’s criminal history and the instant crimes for which the sentences were being imposed. With respect to Hargrove, the court noted that he had prior convictions for theft, illegal possession of stolen things, simple robbery pled down from armed robbery, a parole revocation, possession of marijuana with intent to distribute, another parole revocation, and was on parole at the time of these 11Roffenses. He had an unrelated pending charge of possession of a firearm by a convicted felon. Hargrove was a third felony offender. Additionally, the crime was particularly vicious — the victim was pistol-whipped even though he offered no resistance. The victim remains fearful for his safety due to the brutality of this crime. Hargrove showed no remorse and his parole violation record indicates he poses a perennial risk to society.

Likewise, the court reviewed Hampton’s criminal history. His adult record began in 1993 with a simple robbery. Probation was revoked. He was released on parole, but it was revoked four times. He was arrested for auto theft, but was allowed to plead to misdemeanor illegal possession of stolen things. The instant offenses occurred less than two weeks after Hampton’s most recent release on parole. Although Hampton maintained that he was innocent, the evidence overwhelmingly supports his conviction, and it was Hampton who actually performed the brutal pistol-whipping of Mr. Lowe, resulting in stitches on his head and nose and permanent scarring. Mr. Lowe continues to suffer from the psychological effects of this crime. Hampton has shown no remorse. His record of parole violations indicates he is a continuing menace to society.

In view of these facts and the applicable jurisprudence, we conclude that the facts clearly support consecutive sentences and remand is not required.

Conclusion

For these reasons, the convictions and consecutive sentences of the defendants are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      . The trial court’s failure to state that the sentences for the armed robbery and the conspiracy convictions are to be served without benefits will be corrected automatically by operation of La. R.S. 15:301.1. See State v. Klasek, 843 So.2d 646, 37,114 (La.App.2d Cir.4/11/03), writ denied 860 So.2d 1149, 2003-1359 (La.12/12/03).


author: JJMOORE, J.

text:
    Bernice Wadsworth HINES and Wendi Wadsworth, Plaintiff-Appellants, v. Charles GARRETT, OneBeacon Insurance Co. and American Central Insurance Co., Defendant-Appellees.
    No. 38,013-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.
    Rehearing Denied Feb. 26, 2004.

      Wellborn Jack, Jr., for Appellants.
    William R. Jones, for Appellee, Charles Garrett.
    Joseph B. Stamey, for Appellee, American Central Insurance Company.
    Before GASKINS, DREW and MOORE, JJ.
   JJMOORE, J.

The plaintiffs, Bernice Hines and her daughter, Wendi Wadsworth, appeal a summary judgment that dismissed their personal injury claims against Charles Garrett and his insurer, American Central Insurance Company. For the reasons expressed, we affirm.

Procedural Background

Late on the evening of October 1, 2000, the plaintiffs were riding as passengers in an 18-wheeler being driven north on La. Hwy. 1 by Mrs. Hines’s husband. A few miles before they reached the Caddo Parish line, the rig struck cows on the highway. The cows were owned by Charles Garrett, who was leasing a ranch with pastures on both sides of Hwy. 1.

The plaintiffs filed this suit alleging personal injuries, Lejeune damages and loss of consortium. They named as defendants Garrett and his homeowners’ insurer, American Central. They specifically alleged that Garrett failed to comply with R.S. 3:2803, the “stock law,” and failed to maintain adequate garde of his cattle.

The plaintiffs took Garrett’s deposition in April 2002. Garrett testified that he had leased the property, comprising some 789 acres, in February 2000, and moved into the house in April of that year. He found the existing fences were “run down”; not wishing to take any chances, he began putting up all new fences. He hired Juan Andrade to install five-strand barbed-wire fences; he produced invoices totaling over $15,000, |2dated June and July 2000. Garrett testified that by July 2000, the fence around the 220-acre pasture enclosing the farm house on the east side of Hwy. 1 was completed and he began keeping about 50 cattle, including 34 grown cows, in that pasture; he was using no other pastures at the time of the accident. He testified that he visually inspected this fence and his cattle every day. He specifically recalled that between 11:00 a.m. and noon on October 1, a Sunday, he rode the entire perimeter of the fence and found nothing wrong with it. The next morning he received a phone message that some of his cows had got out and caused an accident.

Garrett immediately rode onto the pasture and found that a large oak tree, some 45-60 feet tall and 20" in diameter at the trunk, had fallen over the fence, breaking the top two strands and pushing the rest to the ground. He assumed the cows had gotten out through this opening. He testified that the tree did not appear dead, and he was unsure why it fell. He added that the tree was not visible from the house, as it was about a quarter-mile away. He promptly pulled the tree off the fence and repaired the broken barbed wire. He cut up the wood with a chain saw and disposed of it. He took no photographs of the fallen tree and, to his knowledge, nobody else saw it before he removed it; however, he admitted telling three people about it. Because the fence was easily repaired, he filed no insurance claim. He drew a crude map showing the bottom of the fallen tree was inside the fence at a location to the southeast of the house.

|3In June 2002, Garrett moved for summary judgment. Further discovery ensued, including a September 2002 site inspection in which Garrett showed attorneys a stump depression outside the fence and to the northeast of the house. He then gave a second deposition in December 2002, admitting that he had drawn his first map incorrectly; the fallen tree was actually to the northeast of the house. He also explained that because more of the fallen tree landed inside the fence, he had mistakenly replied in the first deposition that it “stood” inside the fence. In point of fact, he now admitted, the tree had actually “stood” outside the new fence, but perhaps inside an older, dilapidated fence. He reiterated that he checked his fences regularly, and that nobody else came out and looked at the fallen tree before he removed it.

The plaintiffs filed nothing in opposition to Garrett’s motion for summary judgment, but at a hearing in February 2003 argued that the depositions created credibility issues sufficient to preclude the judgment. After taking the case under advisement, the district court granted the motion for summary judgment without written reasons, and rendered judgment dismissing all claims against Garrett. The plaintiffs have appealed devolutively.

Applicable Law

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. |4C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the non-moving party to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

Once the burden has shifted, the opponent must produce factual support to avert the summary judgment. If the opponent fails to produce such evidence, summary judgment is mandated. La. C.C.P. art. 966 C(2); Racine v. Moon’s Towing, supra; Garsee v. Bowie, 37,444 (La.App. 2 Cir. 8/20/03), 852 So.2d 1156. Mere speculation is not sufficient; the prospect that a fact finding might discredit the mover’s summary judgment evidence will not defeat a properly supported motion. Babin v. Winn-Dixie La. Inc., 2000-0078 (La.6/30/00), 764 So.2d 37; Garsee v. Bowie, supra. The court in deciding a motion for summary judgment must assume that all affiants are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226; Garsee v. Bowie, supra.

|kA fact is “material” when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially assure or preclude recovery, affect a litigant’s ultimate success or determine the outcome of the legal dispute. Hardy v. Bowie, supra; Garsee v. Bowie, supra.

Appellate review of the grant or denial of summary judgment is de novo. Ross v. Conoco Inc., 2002-0299 (La.10/15/02), 828 So.2d 546.

The portion of Hwy. 1 involved in this accident is subject to the “stock law,” which provides:

No person owning livestock shall knowingly, willfully or negligently permit his livestock to go at large upon the following public highways of this state: * * * (19) La. 1 Jet. U.S. 190 near Er-winville to Shreveport.

Under this statute, when an automobile strikes a horse or cow on one of the “stock law” highways, the burden of proof rests with the owner of the animal to exculpate himself from “even the slightest degree of negligence.” Ourso v. Grimm, 92-1274 (La.App. 3 Cir. 1/5/94), 630 So.2d 963, writs denied, 94-0346, 0339 (La.3/25/94), 635 So.2d 230, 231; Womack v. Rhymes, 300 So.2d 226 (La.App. 2 Cir.), writ ref'd, 303 So.2d 179 (1974). Nevertheless, the owner of livestock overcomes this burden by showing he took “all reasonable prudent precautions to enclose his livestock [and] explain the presence of the livestock on the highway by showing how the animal escaped.” Hartford Accident & Indemn. Co. v. Kimball, 340 So.2d 651 (La.App. 2 Cir.1976). Routine inspection of a fence adequate to contain the livestock will satisfy this burden. Pitcher v. Audubon Ins. Co., 193 So.2d 833 (La.App. 1 Cir.), writ denied, 250 La. 372, 195 So.2d 645 (1967). A livestock owner who diligently maintains his fence is not liable for cattle that escape because a tree falls on the fence. Brown v. Fulton Ins. Co., 211 So.2d 412 (La.App. 3 Cir.), writ denied, 252 La. 870, 214 So.2d 545 (1968).

The liability of animal owners is regulated by La. C.C. art. 2321, which provides in pertinent part:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable only for the damage upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Since a 1996 amendment to Art. 2321, strict liability has been abolished for all animal owners except dog owners. Allen v. State Farm Fire & Cas. Co., 36,377 (La.App. 2 Cir. 9/18/02), 828 So.2d 190, writ denied, 2002-2577 (La.12/19/02), 833 So.2d 343. Even prior to the 1996 amendment, the jurisprudence held that a livestock owner’s duties under Art. 2321 were coextensive with those under the “stock law.” Womack v. Rhymes, supra; Hartford Accident & Indem. Co. v. Kimball, supra; Sims v. Ainsworth, 120 So.2d 371 (La.App. 2 Cir.1960).

Discussion

By one assignment of error the plaintiffs urge that genuine issues of material fact and credibility questions remain as to whether Garrett could exonerate himself from the “slightest negligence” as required under Ourso v. Grimm, supra. Specifically, they contend that Garrett gave differing versions of where the tree fell (inside the fence and to the southeast of the 17house versus outside the fence and to the northeast of the house) and that he failed to present any corroborating testimony. Because Garrett’s own account would be the only evidence that he complied with R.S. 3:2803, the plaintiffs submit that his credibility is an issue which can be resolved only by trial on the merits.

On close review, we do not find that the discrepancies in Garrett’s deposition testimony create genuine issues of material fact. As the owner of livestock that damaged the plaintiffs, Garrett had the duty to show his freedom from fault. Ourso v. Grimm, supra. Garrett showed that his five-strand barbed wire fence was only a few months old and had never permitted any cows to escape; he had inspected it almost daily, never finding any defects in it. This satisfied his burden of showing all reasonably prudent precautions to enclose his livestock. Hartford Accident & Indem v. Kimball, supra. He admitted that an apparently healthy tree fell, downing a portion of the fence. This was likely how the cows escaped, but is not negligence on his part. Brown v. Fulton Ins. Co., supra. It is obviously not material whether the tree fell to the northeast or southeast of the farm house. Moreover, Garrett explained that his first description that the tree “stood to the inside of the fence” was wrong; correcting this error does not create a genuine issue of material fact.

The plaintiffs strongly urge that Garrett’s credibility remains an issue. In his first deposition, Garrett named three people whom he had told about the fallen tree, but he said that none of them actually came out and saw it. In his second deposition, he reiterated that to the best of his knowledge, | ¿nobody saw the tree and damaged fence except himself. On these facts, there is absolutely no merit to the plaintiffs’ contention that Garrett should have filed affidavits or depositions from those three persons to corroborate his account of the incident. The prospect that a jury might discredit Garrett’s testimony is inadequate to defeat his properly supported motion. Babin v. Winn-Dixie La., supra. The court was entitled to accept Garrett’s depositions as true. Garsee v. Bowie, supra.

In summary, Garrett presented evidence showing lack of support for an essential element of the plaintiffs’ claim. The burden shifted, but the plaintiffs offered nothing to demonstrate genuine issues of material fact or genuine credibility questions. Upon de novo review, we find that summary judgment was properly granted. The judgment will be affirmed.

Conclusion

For the reasons expressed, the summary judgment is affirmed. The plaintiffs, Bernice Wadsworth Hines and Wendi Wadsworth, are cast with all costs.

AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990), and La. C.C. art. 2315.6.

      . They also named "OneBeacon Insurance Company,” which never answered and, according to American Central, does not exist; by amended petition, they also named Louisiana Farm Bureau, Garrett’s general liability insurer, which was dismissed by summary judgment and is not the subject of this appeal.

      .Garrett responded that by "cattle” he meant "boys, girls and neutered,” and that by "grown cows" he meant female and male adults. Dep., 63.


author: I .MOORE, J.

text:
    Marion HARRIS, Plaintiff-Appellant v. CASINO MAGIC, Defendant-Appellee.
    No. 38,137-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      The Young Firm by Timothy J. Young, New Orleans, Shannon V. Lobell, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner by Walter S. Salley, Shreveport, for Appel-lee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   I .MOORE, J.

On February 20, 2001, claimant Marion Harris filed a disputed claim for compensation against Casino Magic seeking compensation benefits for back injuries he attributed to a slip and fall accident at work on March 19, 2000. Trial was held before the Office of Workers’ Compensation (“OWC”) on October 8, 2002, and the record was held open for the submission of additional medical evidence and depositions. During this time, the workers’ compensation judge (“WCJ”) who heard the case retired, and the case was submitted to a successor judge for a decision. The WCJ found that Harris failed to prove that his back injury was caused by his slip and fall and rejected his claim for compensation. Harris now appeals. For the reasons that follow, we reverse and remand.

Facts

At the time of the accident, Harris was a 67-year-old maintenance technician for Casino Magic, a riverboat casino on the Red River docked at Bossier City, Louisiana. He testified that while he was on lunch break, he entered one of the restrooms and suffered a fall when his feet “just slid out from under me.” He “laid there a minute checking [himself] out to see if [he] had broken anything.” Finding nothing broken, he went back to the break room. No one witnessed the incident, but Harris related the incident to one of his coworkers, Me-Shell Cook.

The following day, Harris reported the accident to his immediate supervisor, David Ashley. Ashley was off on the day of the accident. The record contains a Casino Magic “Incident Statement,” signed by Harris, Ashley and Me-Shell Cook, wherein Harris wrote the following account:

| ¡(While going to lunch, I entered into the mens RR in the hold of the boat. Upon entering I slipped due to soap and water residue on the floor slightly injuring my right side hip/ankle. There were no signs propped up on the outside or placed in the middle of the floor. The only sign was propped — “leaning” against the wall (bulkhead) with the mop bucket — no sign posted. Reported to other employees on shift — then reported to my supervisor the following day 3-20-2000.

Harris did not obtain or seek medical treatment for any injuries sustained from the fall until five months later on August 25, 2000. He testified that although he was sore from the fall, he did not believe he had been injured. Harris visited Dr. Rheams on March 21, 2000, two days following the accident, but he did not mention the fall or the injury; he only complained about recent weight loss. Dr. Rheams stated in his deposition that he would have made a notation on the patient’s record if Harris had complained of any back or lower extremity pain.

Harris visited Dr. Rheams next on May 9, 2000 for an upper respiratory infection. Again, there is also nothing in the medical record of this visit regarding any complaint of any back pain or lower extremity pain, nor did Dr. Rheams recall that Harris made any such complaint.

During this time, Harris continued to work. In July of 2000, he applied for and was awarded a promotion from Maintenance Technician to Maintenance Supervisor, taking David Ashley’s place on the swing shift (3:00 p.m. to 11:00 p.m.). Ashley moved to the graveyard shift as |smaintenance supervisor.

On August 25, 2000, five months after the accident, Harris visited Dr. Wen Liu, a specialist in internal medicine, complaining of low back pain. Referring to his notes, Dr. Liu stated that Harris told him and his nurse that he had fallen two months earlier in a Casino Magic bathroom. He told Dr. Liu that his back pain had started approximately one month ago and had worsened in the past two weeks. Dr. Liu’s examination notes state that Harris had left back tenderness two to three centimeters off midline. He notes that Harris could elevate both legs to 90 degrees. He suspected that Harris had possible lumbar disc herniation. Dr. Liu ordered an X-ray which showed moderate spondylolysis (disintegration of the vertebrae) of the lum-brosacral spine and a questionable spondy-lolysis of L-5 on left side. Dr. Liu stated that spondylolysis is associated with age and normal wear and tear. However, the L-5 “questionable” spondylolysis could indicate a herniated disc.

Harris returned to see Dr. Liu on September 26, 2000, with continued back pain and additional complaints of pain radiating in the left groin area and left leg. The doctor believed the additional complaint could be caused by disc herniation with nerve compression symptoms and recommended an MRI. The MRI radiologist reported a possible disc herniation at L4-L5, and Dr. Liu subsequently referred Harris to Dr. Carl Goodman, an orthopedist.

|4Pr. Goodman first examined Harris on October 17, 2000. Dr. Goodman testified by deposition that he related a history of an accident on March 19, 2000 and symptoms of back pain increasing three months prior to the date of the office visit. He noted that Harris said he was still working full-time in a supervisory job with very little physical work. Harris told Dr. Goodman that his pain was 100 per cent in his back, but he did experience some numbness and tingling in is left leg. Harris denied any prior back problems.

Dr. Goodman’s physical examination involved several tests to determine any nerve encroachment problems. All the tests were negative, indicating that there was no nerve root involvement. The tests did not reveal any objective findings, but his review of the radiology studies led him to believe that Harris had some degenerative changes between the L3-L4 and L4-L5 vertebrae. Dr. Goodman said that there was no way to determine what caused these changes or how long Harris had this condition. Dr. Goodman ultimately diagnosed lumbar strain and sprain along with degenerative lumbar disc disease. Dr. Goodman recommended that Harris continue with the medication therapy prescribed by Dr. Liu and believed that Harris could continue working.

In January 2001, Harris returned to see Dr. Liu with continuing complaints of back pain and a history of falling on the wet floor at work. Dr. Liu recommended that Harris not work where he had to walk on slippery floors, but was of the opinion that Harris could work if not required to lift heavy objects. Harris saw Dr. Goodman again in March 2001 with a [scomplaint of increased numbness in his right foot.

Harris resigned his position with Casino Magic shortly after this visit due to his back pain. He is currently receiving social security retirement benefits, and said that he would like to work but has not looked for work because of his back pain.

In April 2001, Harris returned to see Dr. Liu with the same complaints of back pain; Dr. Liu maintained his recommendation that he should do only mild lifting and limited sitting and standing at a job.

From July 2002 through October 2002, Harris saw Dr. Pierce Nunley, an orthopedist, and underwent physical therapy that reduced his back pain. The visits to Dr. Nunley cost $2,515.00 and the physical therapy cost $1,346.77, neither of which were paid by Casino Magic.

On November 6, 2002, Dr. Goodman reexamined Harris, repeating his original diagnosis, but he was ambivalent about Harris’ return to work. He recommended that Harris not do maintenance work, but approved a supervisory job in which he would not do any heavy lifting.

After considering all of this evidence, the WCJ concluded that Harris had failed to carry his burden of proving the causal connection between his -accident and his back pain. Harris appeals.

Discussion

Applicable Law

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La. R.S. 23:1031. The injured employee bears the initial burden of establishing the causal |ficonnection between the disability and the employment accident by a reasonable preponderance of the evidence. The claimant is not required to establish the exact cause of the disability, but must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. Quinones v. USF & G, 93-1648 (La.1/14/94), 630 So.2d 1303; Thompson v. Dillard’s Department Store, 32,974 (La.App. 2 Cir. 5/10/00), 759 So.2d 1074. Proof by a preponderance of the evidence exists when the evidence, taken as a whole, shows the facts sought to be proved are more probable than not. Thompson, supra; Harris v. Coushatta Industrial Sand, Inc., 31,977 (La.App. 2 Cir. 06/16/99), 741 So.2d 143.

The causal connection can be established when the employee proves that before the accident he was in good health, but commencing with the accident, symptoms of the disabling condition appeared, and there is sufficient medical evidence to show a reasonable possibility of a causal connection between the accident and the disabling condition. Quinones v. USF & G, supra; Thompson, supra. However, an employee’s pre-existing condition does not disqualify his claim if the work-related injury either aggravated or combined with the infirmity to produce the disability for which compensation is claimed. Thompson, supra; Harris, supra. When the claimant proves that he had no disabling symptoms before the accident, but that commencing with the accident, the disabling symptoms appeared, and there is medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition, a claimant’s work injury is presumed to have aggravated a 17pre-exist-ing infirmity to produce his disability. Thompson, supra; Harris, supra.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Harris, supra. Factual findings in worker’s compensation cases are subject to the manifest error rule. Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207; Harris, supra. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Stobart v. State, 617 So.2d 880 (La.1993); Graham v. Georgia-Pacific Corp., 26,165 (La.App. 2 Cir. 09/23/94), 643 So.2d 352. The manifest error/clearly wrong standard of appellate review applies in compensation actions even when the trial court’s decision is based solely upon written reports, records or depositions. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992). However, the appellate court is not required by the manifest error principle to affirm the trier of fact’s refusal to accept as credible uncontradicted testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles. Bruno, supra, citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979).

Analysis

The causation problem in this case arises out of the five-month period of time that elapsed between the date of the accident and the first medical record of complaints regarding the injury. Dr. Rheams testified that sometimes people have accidents that start hurting only a day or two later. | R He speculated that perhaps Harris did not tell him about his complaints because he did not think he was that kind of doctor. Dr. Liu testified that it was possible that the fall caused Harris’ back pain, but normally, with regard to disc herniation, back symptoms begin within a day or two of the accident. Dr. Goodman, an orthopedic surgeon, was deposed twice. He stated the following in his first deposition:

Q. Now, doctor, with regards to his complaints of low back pain with left leg numbness, as far as an opinion of causation of those symptoms, how do you determine whether or not symptoms are related to an accident?
A. I have to depend on the history as what the patient told me.
Q. And what type of history are you looking for to determine whether or not symptoms are related to an accident?
A. Well, I mean, he just — he had a-— he fell and he hurt himself and had pain.
Q. * * * Is there a time frame after the accident of March 19, 2000 that you would expect that Mr. Harris would begin to develop pain if his back if, in fact, it is related to that accident?
A. Yes
Q. What would that be?
A. Fairly immediate, within days.

(Exhibit J-7, p. 13)

But Dr. Goodman later stated:

Q. Now, as far as the causation issue, would you have any opinion more probable than not as to whether or not the right foot numbness was related to the accident of March 19, 2000?
A. If I assume that he hurt his back in March of 2000 and aggravated a preexisting degenerative disc problem, I | flwould have to relate this to that, yes.

(Exhibit J-7, p. 15)

Dr. Goodman equivocated somewhat, stating that the degenerative changes in Harris’ back were a result of wear and tear. Dr. Goodman did not have an opinion that these changes were caused by the at-work accident. However, he said that previously asymptomatic degenerative disc disease could be made symptomatic by even a mild traumatic event such as a fall. The doctor stated that pain as a result of an accident typically surfaces within a few days or perhaps up to two weeks from the accident and that the pain can begin and steadily increase to a point where the patient needs treatment.

In summary, Harris’ medical records and the depositions of his doctors reveal no complaints of back pain for several months after the accident, and this is clearly a relevant factor. Nevertheless, the failure to make a prompt complaint to a physician does not necessarily defeat the claim. Bruno v. Harbert International, Inc., supra. Even though Harris did not see a physician immediately after the accident, he stated in the accident report that he injured his right side hip and ankle. He testified at trial that he thought the injury to his hip was due to landing on his radio attached to his side. He testified that he felt “soreness” after the accident that progressed to the point of severe back pain about three months after the accident. He testified, “[Before, I just thought that it was, you know, bruised up, or something, and I’d get over it.... But about that three months is when I started realizing that — that it wasn’t that; that I was hurt.” Hislmwife testified that she did not recall when Harris first complained of back pain after the accident, but she said that he complained of pain “ever since it happened” and that the pain gradually got worse.

Dr. Goodman observed that a trauma can make a previously asymptomatic degenerative disc become painful, and that he would expect this pain to arise within two weeks after the trauma. Harris’ testimony about when his back pain began was not especially precise. However, the record as a whole, including the depositions of the doctors, shows that the only conclusion to be drawn from the evidence is that Harris’ symptoms of back pain commenced after the accident. Dr. Liu reported that Harris reported no back pain prior to the accident, and Harris testified that his “soreness” commenced with the fall and progressed into pain. None of the medical records introduced into evidence contradict this portion of Harris’ history to Dr. Liu. Harris’ wife corroborated all his essential complaints, and Dr. Goodman confirmed that this type of pain could become gradually worse. On this record, the WCJ was plainly wrong not to find causation.

Conclusion

We conclude that the record as a whole permits only the conclusion that Harris’ back pain was caused by his fall at work. Accordingly, the judgment of the OWG is reversed and this matter is remanded to the OWC for further proceedings. Costs of this appeal are assessed to appellee, Casino Magic.

REVERSED AND REMANDED.

      . Karen Phillips, an administrative assistant and manager of Facilities in Marine Operations for Casino Magic, testified that when Harris was given the supervisor’s position, David Ashley volunteered to move to graveyard shift, thinking that Marion Harris’ health was so bad that he would be unable to work the graveyard shift. Ms. Phillips testified that Harris was in poor health and complained frequently of a variety of health problems, including hip problems and chest pains among others. Harris denied ever discussing his health with Ms. Phillips.

      . Dr. Liu’s notes and testimony reflect that Harris complained about pain and numbness in his left leg. Dr. Goodman testified by deposition that Harris complained of numbness in his left leg at his initial visit of October 17, 2000. Dr. Goodman saw Harris again in March of 2001 and reported that Harris complained of pain and numbness in his right foot. When asked to explain the inconsistency in his record, Dr. Goodman speculated that the inconsistency could be a dictation error.


author: I .BROWN, C.J.

text:
    SUCCESSION OF Patricia Louise SAMPOGNARO.
    No. 38,112-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.
    Paul Henry Kidd, Jr., Monroe, for Appellant.

      Noah, Smith & Johnson, L.L.P. by Dewey J. Smith, Jay B. Mitchell, Monroe, for Appellee.
    Before BROWN, WILLIAMS, and DREW, JJ.
   I .BROWN, C.J.

Patricia Williams Sampognaro died on December 18, 2002. Shortly before her death, on December 2, 2002, she executed a notarial testament, pursuant to La. C.C. art. 1577, leaving her entire estate to her youngest child, Thomas Craig Sampogna-ro. The trial court invalidated this will because the signatures of the two witnesses and notary were above, rather than below, the attestation clause. The testatrix signed both above and below the attestation clause and at the bottom of each page of the two page testament. We reverse and remand for further proceedings.

Discussion

There is a paramount presumption that a testament is valid. Succession of Boisseau, 33,861 (La.App.2d Cir.09/27/00), 768 So.2d 743, writ denied, 00-2993 (La.12/15/00), 777 So.2d 1233. The intent of a testator controls the interpretation of her will. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit. La. C.C. art. 1611; Succession of Hawsey, 02 0285 (La.App. 3rd Cir.10/30/02), 829 So.2d 1092. Under the provisions of La. C.C. art. 1577, the requirements of form for a notarial testament are as follows:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page. (2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this_ day of__,_”
The revision comments to La. C.C. art. 1577 state in part:
The testator is disposing of property, appointing an executor or making other decisions in the body of the testament itself. He need only sign at the end of the dispositive, appointive or directive provisions. The witnesses and the notary are attesting to the observance of the formalities; they need only sign the declaration. (Emphasis added).

The December 2002 testament clearly evinces the testatrix’s signatures at the end of the dispositive provisions of the two page testament. The essential question herein is whether the witnesses and notary attested to the “observance of the formalities” when they signed above the attestation clause rather than below.

In Porche v. Mouch, 288 So.2d 27 (La.1973), the Louisiana Supreme Court observed that the purpose of the attestation clause is primarily to evidence, at the time of the will’s execution, that the statutory formalities were satisfied; when the instrument as a whole shows that the | informalities were satisfied, “technical variations” in the attestation clause should not defeat the dispositive portions of an otherwise valid will. The court also noted that an attestation clause is not self-proving; witnesses in person or by affidavit must be produced at the probate to prove the will. The principal function of the witnesses in the attestation requirement is to supply a source of proof that the testator signed what he formally indicated to be his testament.

In Succession of Guezuraga, 512 So.2d 366 (La.1987), the Louisiana Supreme Court observed that in accordance with the legislative intent, courts liberally construed and applied the statutory will statute, maintaining the validity of a will if at all possible, as long as the will was in substantial compliance with the statute. In a similar vein in Succession of Boyd, 306 So.2d 687 (La.1975), the supreme court stated that there is no law preventing courts from hearing testimony and entertaining evidence to throw light upon an obscure date and remove all doubt, uncertainty, or ambiguity concerning an uncertain date.

The first page of the December testament contains the dispositive provisions, is dated December 2, 2002, and is signed at the bottom of the page by the testatrix. At the top of the second page is the following language:

THUS DONE AND PASSED before me, Notary Public, and the undersigned competent witnesses this 2 day of December, 2002, in Monroe, Ouachita Parish, Louisiana.

Underneath the above-quoted sentence is the signature of two witnesses, the signature of the testatrix (her second signature on the will), |4and the signature of the notary public. The attestation clause follows the four signatures and reads:

The above and forgoing instrument was read aloud by the undersigned notary, in the presence of the TESTATRIX and to the above signed and undersigned witnesses, and each other, such reading having been followed on copies of the Will by the undersigned and above signed witnesses, the TESTATRIX declared that he [sic] heard the said reading and she also declared this instrument to be his [sic] last will and testament, and in our presence she signed and dated the instrument at the end and on each other separate page and, following that, we, the said witnesses and Notary Public, each did sign the instrument at the end thereof, in the presence of said TESTATRIX, and in the presence of each other, all on the 2 day of December, 2002; and further, in the presence of said TESTATRIX, and we have hereunto subscribed our names on the said date at Monroe, Oua-chita Parish, Louisiana, on this £ day of December, 2002.

Immediately following the attestation clause, and on the right-hand side of the page, is the signature of the testatrix (her third signature on the will). Finally, the will again bears the date of December 2, 2002, at the bottom of the second page, and immediately next to the date in the bottom center of the second page is the signature of testatrix (her fourth signature on the will).

The testatrix signed her name at the end of the testament and on each of the two pages. Furthermore, the will was signed by two witnesses and a notary public, and contained an attestation clause, the substance of which was substantially similar' to the wording found in La. C.C. art. 1577(2). The will’s only doubt or ambiguity is due to the witnesses and notary signatures above, rather than below, the attestation clause. The obvious problem is the possibility that the attestation clause could have been added after the witnesses and notary had signed immediately below the dispositive portions |sof the will. If that were the case, then they would not actually be attesting to the observance of the formalities.

We believe that this uncertainty, like the uncertain date present in Boyd, supra, is the type of doubt upon which a court may hear testimony and entertain evidence. As noted in Porche, supra, the attestation clause is not self-proving, and witnesses are necessary to prove the will. Furthermore, pursuant to a stipulated judgment, the issue of any undue influence has been waived, and there is no allegation of fraud. We also note that the testatrix did sign immediately after the attestation clause, thus affirmatively showing that she was aware of the witnesses’ attestation on December 2, 2002, the same date the witnesses, notary, and testatrix signed the instrument. Finally, we observe that even when a notarial testament is prepared in full compliance with the form requirements of La. C.C. art. 1577, doubt can arise when the dispositive provisions of the will and the testator’s signature thereto are on a separate page from the attestation clause and its signatures. The fact that doubt with respect to the attestation clause can arise even when the form requirements are strictly followed indicates that evidence should be allowed to cure such doubts, rather than void the testament.

Conclusion

For the reasons set forth above, the trial court’s judgment is hereby REVERSED, and the matter is REMANDED to the trial court for further proceedings. Costs are assessed to appellee, MARY PAMELA SAMPOGNARO EUBANKS.

REVERSED AND REMANDED.

      . On January 10, 2003, decedent’s daughter, Mary Pamela Sampognaro Eubanks, filed a petition to probate a testament executed by Mrs. Sampognaro on November 6, 2002. The testament bequeathed the entirety of Mrs. Sampognaro's estate to her four children, Russell Eric Sampognaro, Maiy Pamela Sam-pognaro Eubanks, James Kevin Sampognaro, and Thomas Craig Sampognaro, or their descendants, share and share alike.
      On January 15, 2003, decedent’s son, Thomas Craig Sampognaro, filed a petition to annul the November 2002, will on the grounds that Mrs. Sampognaro had subsequently executed a testament on December 2, 2002. That same day, he filed a petition to probate the December 2002, testament, executed just over two weeks before Mrs. Sam-pognaro's death. The December testament left the entirety of Mrs. Sampognaro’s estate to Thomas. In April 2003, Mary Pamela answered Thomas’ petition to annul the November testament; she denied the allegations of his petition and, further answering, alleged that the December testament was the product of undue influence. The trial court’s judgment which invalidated this December will included a stipulation by the parties that there was no undue influence.