author: WILLIAMS, J.

text:
    Becky CRISLER and Jim Crisler, Plaintiff-Appellee, v. PAIGE ONE, INC. d/b/a McDonald’s and St. Paul Fire and Marine Insurance Company, Defendant-Appellant.
    No. 42,563-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Lawrence W. Pettiette, Jr., Joseph S. Woodley, Tam C. Bourgeois, Baton Rouge, for Appellant, Paige One, Inc.
    William S. McKenzie, Baton Rouge, Lawrence W. Pettiette, Jr., Joseph S. Woodley, Margaret L. Tooke, Tam C. Bourgeois, Baton Rouge, for Appellant, St. Paul Fire and Marine Insurance Company.
    James H. Colvin, Shreveport, Fiona C. York, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   WILLIAMS, J.

| plaintiff's, Becky Crisler and Jim Cris-ler, sued for damages after Mrs. Crisler fell outside a McDonald’s restaurant owned by defendant, Paige One, Inc. (“Paige One”). Prior to trial, the trial court denied a motion in limine, in which Paige One sought to exclude evidence of a post-accident installation of a rail near the site of Mrs. Crisler’s fall. Following the trial, the jury found that the premises contained a condition that presented an unreasonable risk of harm and apportioned 60% fault to Paige One and 40% fault to Mrs. Crisler. The jury awarded a total of $578,132.22 in damages. The trial court rendered judgment ratifying the jury’s verdict. For the following reasons, we affirm.

FACTS

On December 23, 2001, Becky and Jim Crisler stopped for breakfast in Arcadia, Louisiana at McDonald’s restaurant owned by Paige One. The door on the north side of the restaurant opened to a brick sidewalk. Once customers exiting the restaurant reached the end of the sidewalk, they had to step down off a concrete curb onto the parking lot. Customers stepping down from the curb entered a traffic lane of the parking lot which was generally used by vehicles entering the restaurant’s drive-thru lane. The distance between the threshold of the door to the step-down of the sidewalk was approximately six feet.

As the Crislers exited the restaurant, Mr. Crisler held the door open for Mrs. Crisler, and she turned to thank him. As she stepped onto the sidewalk, she looked to her right for oncoming traffic. She failed to observe the step-down curb and fell, sustaining serious injuries to her knees.

|2The Crislers filed suit against Paige One and its insurer, St. Paul Fire and Marine Insurance Company, alleging, inter alia, that Paige One failed to: (1) protect its customers from a dangerous condition; (2) warn patrons of the presence of a potentially dangerous condition; (3) keep its parking lot and curbs free from unreasonably dangerous conditions, vices and/or defects; (4) place warning signs or cones; and (5) provide a smooth, flat parking and walking surface for customers exiting the restaurant.

Following a trial, the jury specifically found: (1) the premises contained a condition that presented an unreasonable risk of harm to plaintiff; (2) the unreasonable risk of harm was reasonably foreseeable; and (3) defendant or its employees had actual or constructive notice of the unreasonably dangerous condition prior to the occurrence. The jury apportioned 60% fault to Paige One and 40% fault to Mrs. Crisler and awarded a total of $578,132.22 in damages. The trial court rendered judgment ratifying the jury’s verdict. The court denied Paige One’s motion for judgment notwithstanding the verdict/motion for new trial. This appeal followed.

J^DISCUSSION

Evidentiary Ruling

In its first assignment of error, Paige One contends the trial court abused its discretion by allowing plaintiffs to introduce testimony and exhibits with regard to the post-accident installation of a rail near the site of Mrs. Crisler’s fall. According to Paige One, the evidence constituted evidence of a subsequent remedial measure and should not have been admitted.

LSA-C.E. art. 407 provides:

In a civil case, when, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This Article does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility.

The prohibition against evidence of subsequent remedial measures is designed to bring within the scope of the rule any change, repair or precaution subsequent to an accident. Northern Assur. Co. v. Louisiana Power & Light Co., 580 So.2d 351 (La.1991); Reichert v. State, Dept. of Transp. and Dev., 26,800 (La.App.2d Cir.5/8/96), 674 So.2d 1105, aff'd, 96-1419, 96-1460 (La.5/20/97), 694 So.2d 193. The prohibition covers only measures taken after an event, such as post-accident repairs, installation of safety devices, changes in design, the removal of dangerous conditions, changes in procedure, the dismissal of an employee charged with causing an accident, changes in regulations or instructions. Id.

pError may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. LSA-C.E. art. 103(A). If the probative value of the evidence is outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, then it is inadmissible although relevant. LSA-C.E. art. 403.

In the instant case, plaintiffs introduced into evidence at trial a photograph of the accident site which showed that a rail was installed after Mrs. Crisler’s fall. Plaintiffs also elicited testimony from witnesses with regard to the rail. Prior to the trial, Paige One filed a motion in limine, seeking to exclude the photograph. In opposition to the motion, plaintiffs’ counsel contended the evidence would be used to show that the rail was a feasible precautionary measure. The trial court denied the motion in limine, but agreed to instruct the jury that evidence of the installation of the rail was not admissible to prove negligence or culpable conduct on the part of Paige One.

During his opening statement, plaintiffs’ counsel stated:

Photograph number 2 depicts a rail that was installed by an employee of McDonald’s after this incident occurred .... Now, that rail that is there cost less than $100.00 and an afternoon’s work to install, and you will hear the testimony that this would have, and could have, and does, in fact, stop the very condition that created the hazard that Mrs. Crisler succumbed to on that particular day.

Plaintiffs’ counsel also questioned various witnesses with regard to the installation of the rail. Nina Mitchell Robertson, the manager of the restaurant at the time of the accident, and Stephanie Jones, the shift manager on duty at the time of Mrs. Crisler’s fall, both testified that no one had | ^stumbled or fallen near the exit since the rail was installed.

Jack Barnridge was accepted by the court as a safety expert. During his testimony, Barnridge stated, “[B]ut you could put a guardrail there ... which they did after this, but they could put a guardrail there to catch their attention that they can go, and then they have time to look.... ” Larry Smith, the owner of Paige One, was also questioned with regard to the installation of the rail.

Following the testimony of plaintiffs’ witnesses, the trial court admonished the jury as follows:

Ladies and gentlemen, please listen carefully. In this case, the fact that McDonald’s placed a rail after the incident is not to be considered by you as fault, but it can be considered as proof of other issues such as feasibility.

The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Graves v. Riverwood Intern. Corp., 41,810 (La.App.2d Cir.1/31/07), 949 So.2d 576, writ denied, 2007-0630 (La.5/4/07), 956 So.2d 621, citing Roberts v. Owens-Coming Fiberglas Corporation, 2003-0248 (La.App. 1st Cir.4/2/04), 878 So.2d 631, writ denied, 2004-1834 (La.12/17/04), 888 So.2d 863; Emery v. Owens-Corporation, 2000-2144 (La.App. 1st Cir.11/9/01), 813 So.2d 441, writ denied, 2002-0635 (La.5/10/02), 815 So.2d 842.

At trial, a party must make a timely objection to evidence that the party considers to be inadmissible and must state the specific ground for the objection. LSA-C.E. art. 103(A)(1); LSA-C.C.P. art. 1635; Graves, supra; McWilliams v. Courtney, 41,725 (La.App.2d Cir.12/13/06), 945 So.2d 242. | i;On appeal, the court must consider whether the complained-of ruling was erroneous and whether the error affected a substantial right of the party affected. If not, a reversal is not warranted. Graves, supra, citing LSA-C.E. art. 103(A); Emery, supra; Brown v. Associated Insurance Consultants, Inc., 94-1451 (La.App. 1st Cir.4/4/96), 672 So.2d 324, writ denied, 96-1106 (La.6/7/96), 674 So.2d 970. The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case, and it is the complainant’s burden to so prove. Graves, supra, citing Emery, supra.

In the instant case, we cannot say that the trial court’s decision to instruct the jury with regard to the rail, rather than granting defendant’s motion in liminie, was so erroneous as to be prejudicial. The trial court admonished the jury with regard to the installation of the railing and instructed the jury that the evidence with regard to the rail could not be used as evidence of fault, only as proof of other issues such as feasibility. We find that the admonition was sufficient to cure any prejudicial effect of the photograph and testimony. Moreover, defendant has not demonstrated that the trial court’s ruling had a substantial effect on the outcome of the case. Therefore, we cannot say that the trial court abused its discretion in allowing the evidence. This assignment of error is without merit.

Merchant Liability

The imposition of tort liability on a merchant for a patron’s injuries resulting from an accident is governed by LSA-R.S. 9:2800.6. A merchant owes a duty to persons who use his premises to exercise reasonable care to 17keep the premises free of any hazardous conditions which might reasonably give rise to damage. LSA-R.S. 9:2800.6(A). A person who brings a claim for an injury sustained in an accident due to a condition existing on the merchant’s premises must prove that: (1) the condition presented an unreasonable risk of harm that was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the dangerous condition; and (3) the merchant failed to exercise reasonable care. LSA-R.S. 9:2800.6(B).

A plaintiff must prove each of the three elements set forth in LSA-R.S. 9:2800.6(B). Failure to prove any of these required elements will prove fatal to a plaintiffs claim. White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081; Bell v. American General Inv. L.L.C., 40,117 (La.App.2d Cir.9/21/05), 911 So.2d 408.

The determination of whether a defect presents an unreasonable risk of harm involves factual findings which differ in each case. Thus, there is no fixed or mechanical rule for determining whether a defect presents an unreasonable risk of harm. Lawrence v. City of Shreveport, 41,825 (La.App.2d Cir.1/31/07), 948 So.2d 1179, writ denied, 2007-0441 (La.4/20/07), 954 So.2d 166; Buchignani v. Lafayette Ins. Co., 41,384 (La.App.2d Cir.8/23/06), 938 So.2d 1198; Reitzell v. Pecanland Mall Assoc., Ltd., 37,524 (La.App.2d Cir.8/20/03), 852 So.2d 1229.

The trier of fact determines whether a defect presents an unreasonable risk of harm. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362; Lawrence, supra; Reitzell, supra. The unreasonable risk of harm |sanalysis requires the trier of fact to balance the gravity and risk of harm against individual and societal rights and obligations, the thing’s social value and utility, and the cost and feasibility of repairing the defect. Id. The question for the trier of fact is whether the social value and utility outweigh, and thus justify, the potential harm to others. Reed, supra; Lawrence, supra. The accident history of the defect is also a pertinent consideration. Id.

The trial court’s findings pursuant to LSA-R.S. 9:2800.6 are subject to the manifest error standard of review. A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Dev., 617 So.2d 880 (La.1993). The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. The reviewing court must always keep in mind that if the findings of the trial court or jury are reasonable in light of the record reviewed in its entirety, the court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Ambrose, supra; Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

I aBecause of its superior position to view the demeanor of witnesses, the trial court’s decision to credit the testimony of one of two or more witnesses can virtually never be plainly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are more reasonable. Id.; Collins v. City of Shreveport, 35,172 (La.App.2d Cir. 10/31/01), 799 So.2d 630.

In the instant case, during the trial, plaintiffs argued that the configuration of the sidewalk, step-down curb and traffic lane was unreasonably dangerous. Jack Barnridge, plaintiffs’ safety expert, testified that the combination of patrons exiting the door, while their attention was diverted to the right to look for traffic, created the dangerous condition. Barn-ridge stated:

So, this is ... diverting your attention to watch out for these ... cars, so that you’re concerned about that and that would then divert your — or distract you in your walking rhythm to come out of there.
Well, again, it would be distracting you undertaking a task.... Here, your attention is being diverted that if you’re seeing a vehicle come there, which is dangerous.

Barnridge stated that the fact that other patrons had stumbled at the curb when exiting the restaurant was “a tell-tale sign that you have an exposure that you need to be aware of and look out for ... and do something about it.” On cross-examination, Barnridge conceded that it is impossible to eliminate every hazard, but he testified that hazards that cannot be 11(leliminated should be controlled. He testified that the step-down curb could not be eliminated, but steps could have been undertaken to control it. Barnridge further testified that the fact that the configuration of the sidewalk/step-down/traffic lane did not violate any known- safety standard was unremarkable because some existing hazards have not been addressed.

Nina Robertson testified that, as manager of the restaurant, she was concerned about the configuration of the step-down/curb/traffic lane. She stated that some vehicles drove through the drive-thru lane “pretty fast.” Robertson stated:

I was pretty much in fear of the safety of children and elderly patrons in particular. Of the children coming out of the door without even ... looking and not watching traffic and I’ve had some of the elderly folks having to watch and step down and watch the traffic before they enter into the parking lot.

She stated that she had expressed her concern to Smith and suggested the installation of speed bumps, but Smith “acted like he had no concern.” Robertson testified that prior to Mrs. Crisler’s fall, she had seen four patrons stumble on their way out of the restaurant while looking to their right for oncoming traffic. Stephanie Jones, a shift manager at McDonald’s, also testified that she had observed vehicles speeding in the drive-thru lane of the restaurant.

Joseph Frenzel, defendant’s expert, categorized the configuration of the accident site as “an acceptable level of risk, one which we encounter every day.” Frenzel pointed out that the site contained good contrast and color, noting that the sidewalk was made of red brick, the curb was concrete and the traffic lane was made of asphalt blacktop. He also noted that the Inexit had “good visibility to the right and left” and the step-down was “where you would expect to find it.” He stated that the configuration of the sidewalk/curb/traffic lane was “well-marked, well designed, well constructed [and] properly placed.” Frenzel stated that the configuration at issue was a “typical” McDonald’s layout which is “pretty much repeated around the country.” He also expressed his belief that traversing the configuration required patrons to be able to simultaneously walk and look, which, in his belief, is something everyone is able to accomplish.

After hearing the evidence submitted, the jury was instructed as follows:

If a negligence claim is brought against a merchant by a person who is lawfully on the merchant’s premises for damages sustained as a result of a fall due to a condition existing in or on a merchant’s premises, the statute specifies the plaintiffs burden of proving, by a preponderance of the evidence, in addition to all other elements of the plaintiffs claim, that the condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable; the merchant either created or had actual or constructive knowledge of the condition which caused the damage prior to the occurrence; and the merchant failed to exercise reasonable care. In determining whether the condition presented an unreasonable risk of harm, you should consider the purpose served, the utility and effectiveness of the condition, the likelihood that the condition would cause harm, the severity of the harm that may result, and the usefulness of the condition. However, hazardous conditions are not presumed to exist merely because an accident occurs.

After deliberating, the jury specifically found that the premises contained a condition that presented an unreasonable risk of harm which was foreseeable. The record reveals that the facts necessary to com-píete the | ^balancing tests were presented to the jury. It is apparent that Mrs. Cris-ler’s injuries were substantial. She was diagnosed with meniscus tears in both knees, both of which required surgery. Moreover, the evidence supported a conclusion that the risk of harm was great. Although Mrs. Crisler was the only person reported to have fallen, the restaurant’s manager testified that she had personally witnessed several people stumble at the site.

Also, weighing against the risk and gravity of injury is the social utility, including the cost of repair. It was undisputed that the sidewalk/step-down curb/traffic lane had social utility. The evidence established that the cost of installing a rail and providing a warning to customers to correct or mitigate the defect was approximately $100 and one afternoon’s labor.

After carefully reviewing the record, we find no manifest error in the jury’s conclusion that the premises contained an unreasonably dangerous condition. The jury apparently gave more weight to the opinion of plaintiffs’ expert with regard to what constituted an unreasonably dangerous condition. The jury’s finding was a permissible view of the evidence, and as such, will not be disturbed.

Quantum

General Damages

Defendant also contends the jury’s award of damages was excessive. Defendant argues that the record does not support the jury’s award of $200,000 for pain and suffering. According to defendant, Mrs. Crisler failed to prove that the injuries to her knees resulted from the fall at | ^McDonald’s.

General damages are those which may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.” Kaiser v. Hardin, 2006-2092 (La.4/11/07), 953 So.2d 802, 808, quoting Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2d Cir.1993), writ dismissed, 619 So.2d 563 (La.1993). In the assessment of damages in cases of offenses, quasi offenses and quasi contracts, much discretion must be left to the judge or jury. LSA-C.C. art. 2324.1.

In Duncan v. Kansas City Southern Railway Co., 2000-0066 (La.10/30/00), 773 So.2d 670, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001), the Louisiana Supreme Court set forth the standard for appellate review of general damage awards as follows:

Vast discretion is accorded the trier of fact in fixing general damage awards. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.
The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Only after a determination that the trier of fact has abused its “much discretion” is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion.

| uIcL at 809 (internal citations omitted), The proper procedure for determining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact. Manuel v. State Farm Mut. Auto. Co., 30,765 (La.App.2d Cir.8/19/98), 717 So.2d 277.

In the instant case, it was undisputed that Mrs. Crisler fell on both knees on the date in question. Mrs. Crisler testified that prior to the accident, she had never fallen or injured either knee. She was able to stand all day, which was required by her job, and she was able to perform other activities without pain or other symptoms in her knees. After the fall, she began to experience pain in her knees and she has had difficulty walking and sleeping. She now has to sit while performing her job as a massage therapist because she is unable to stand for long periods of time.

Following the accident, Mrs. Crisler underwent surgery on both of her knees. Dr. H. Ryan Bieknell, Mrs. Crisler’s orthopedic surgeon, testified that the tear in her left.knee had acute and chronic components, but the tear in the right knee was consistent with traumatic injury. Dr. Bieknell testified that although Mrs. Cris-ler’s left knee condition had a chronic component, arthritis, the fall at McDonald’s constituted an acute component which exacerbated her pre-existing arthritis condition. He opined that the injuries to both knees were more than likely related to the accident at issue. According to Dr. Bick-nell, the fall “accelerated her condition of arthritis,” as well as her need for future knee replacement surgery.

|1KViewing the evidence in the light most favorable to Mrs. Crisler, we find that the $200,000 general damages award was not an abuse of the jury’s broad discretion. Based upon the extent of the injuries Mrs. Crisler suffered and the fact that her condition will continue to worsen over time, we cannot conclude that the award was excessive. Accordingly, we affirm the award.

Special Damages

Defendant also argues that the awards of $50,000 in future medical expenses, $40,000 for loss of enjoyment of life and $250,000 in future lost wages are not supported by the record. According to defendant, these awards should be either eliminated or “reduced significantly.”

Special damages are those which have a “ready market value,” such that the amount of the damages theoretically may be determined with relative certainty, including medical expenses and lost wages. McGee v. A C And S, Inc., 2005-1036 (La.7/10/06), 933 So.2d 770. In reviewing a jury’s factual conclusions with regard to special damages, an appellate court must satisfy a two-step process based on the record as a whole: There must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong. Guillory v. Ins. Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029.

Future Medical Expenses

Defendant contends the jury erred in awarding damages for future medical expenses related to “anticipated” future knee replacements. The cost of future medical treatment and expenses cannot be precisely measured; h (¡however, the plaintiff must still establish, with some degree of certainty, through medical testimony, that such expenses are indicated and their probable cost. Lewis v. State Farm Ins. Co., 41, 527 (La.App.2d Cir.12/27/06), 946 So.2d 708; Sepulvado v. Turner, 37,-912 (La.App.2d Cir.12/10/03), 862 So.2d 457, writ denied, 2004-0089 (La.3/19/04), 869 So.2d 855.

As stated above, Dr. Bicknell testified that Mrs. Crisler’s fall accelerated her arthritis and explained her need for future knee replacements. He testified that future knee replacement surgery would cost approximately $20,000 to $80,000 per knee. The jury’s award of $50,000 was within this range and does not constitute an abuse of discretion. Therefore, we hereby affirm the award.

Loss of Enjoyment of Life

Loss of enjoyment of life, sometimes known as hedonic damages, refers to the detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed. McGee, supra; Day v. Ouachita Parish Sch. Bd., 35,831 (La.App.2d Cir.8/8/02), 823 So.2d 1039, writ denied, 2002-2532 (La.12/19/02), 833 So.2d 343. Loss of enjoyment of life constitutes damage that is compensable under LSA-C.C. art. 2315, and the jury may be allowed to give a separate award for this damage. McGee, supra. Whether or not loss of enjoyment of life is recoverable depends on the particular facts of the case, and should be left to the trial court’s discretion on a case-by-case analysis. Id.

|17In the instant case, Mrs. Crisler testified that prior to the accident, her hobbies included dancing and horseback riding. She stated that she has not been able to perform either since the accident. Mr. Crisler also testified with regard to the activities they can no longer perform because of his wife’s limitation:

Well, we can’t dance anymore. She can’t. She can’t handle it. Not able to do that. Definitely hadn’t rode [sic] any more horses. Can’t even ride the wagon wheel. Can’t get up on the wagon.... Sexually, it’s been bad....
* * *
Becky used to just — she was very active. She helped me with everything; [she would] get out and work in the yard. She always cooked, just stay[ed] in the kitchen_She can’t stay up and do it. She’ll cook from time to time, but it’s hard on her.
* * *

Based on the foregoing evidence, we cannot say that the jury abused its vast discretion in awarding damages in the amount of $40,000 for loss of enjoyment of life. Therefore, we affirm the award.

Future Lost Wages

Defendant also contends the jury erred in awarding Mrs. Crisler $250,000 for future lost wages. Defendant argues that even if Mrs. Crisler is unable to continue working as a massage therapist, she is capable of obtaining a “more sedentary” position.

Since awards for future lost income are inherently speculative and intrinsically insusceptible of being calculated with mathematical certainty, the courts must exercise sound judicial discretion to determine these awards. |1R Nesbitt v. Nesbitt, 40,442 (La.App.2d Cir.1/13/06), 920 So.2d 326, writ denied, 2006-0720 (La.6/2/06), 929 So.2d 1255. The awards should be consistent with the record. Robbins v. State ex rel. Dept. of Labor, 31,590 (La.App.2d Cir.2/24/99), 728 So.2d 991.

Factors to be considered in awarding damages for future loss of income include the plaintiffs physical condition before and after his injury, the plaintiffs work history and consistency thereof, the amount the plaintiff would have earned had the injury not occurred and the probability of the plaintiff continuing to earn wages over his or her working life. Collins v. Shelter Mut. Ins. Co., 36,528 (La.App.2d Cir.12/11/02), 833 So.2d 1166, writ denied, 2003-0124 (La.3/21/03), 840 So.2d 539; Moody v. Blanchard Place Apartments, 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281, writ denied, 2001-2582 (La.12/14/01), 804 So.2d 647.

It is the plaintiffs burden of proving that his disability will cause him to suffer a lack of income. Beasley v. Yokem Toyota, 33,805 (La.App.2d Cir.8/23/00), 767 So.2d 149; Higginbotham v. Ouachita Parish Police Jury, 513 So.2d 537 (La.App. 2d Cir.1987). In computing loss of future income, it is necessary to determine whether and for how long a plaintiffs disability will prevent Mm from engaging in work of the same or similar kind that he was doing at the time of the injury. A determination must also be made of whether the plaintiff has been disabled from work for which he is fitted by training and experience. Beasley, supra; Rose v. Cablvision of Shreveport, 32,855 (La.App.2d Cir.4/5/00), 755 So.2d 1039, writs denied, 2000-1177 (La.6/16/00), 764 So.2d 964, 2000-1289 (La.6/16/00), 765 So.2d 340.

In this case, Dr. Randolph Rice, an economist, testified that the present day value of Mrs. Crisler’s future lost wages totaled $251,475. Dr. Rice further stated that Mrs. Crisler’s future lost wages would total $382,679 if she were completely disabled.

Dr. Bicknell testified that Mrs. Crisler would become disabled as soon as 2006, and he opined that she would become disabled from working as a massage therapist, a profession for which she is fitted by training and experience. Mrs. Crisler testified that she continued to experience pain in her knees. She also stated that she had begun reducing her work hours because it was becoming too difficult to perform her job.

Dr. Richard Galloway, plaintiffs’ expert in vocational rehabilitation, testified that based on Mrs. Crisler’s work history, education and market for sedentary jobs, Mrs. Crisler would suffer a loss of approximately $23,000 per year in income earning capacity. Lenora Maatouk, defendant’s vocational rehabilitation expert, testified that with Mrs. Crisler’s background, work history and interests, she would be employable as a legal secretary, executive secretary or dispatcher. Maatouk also testified that Mrs. Crisler could obtain a' “good paying job” if she was unable to work as a massage therapist. On cross-examination, Maatouk conceded that she did not perform a labor market survey to determine whether any sedentary jobs were readily available in the Arcadia area. Maatouk also conceded that if Mrs. Crisler obtained a position in one of the jobs suggested, her earning potential would decrease approximately $23,520 per year.

| gpBased on the facts presented, we do not find that the jury’s award for future lost wages constitutes an abuse of discretion. Accordingly, we affirm the award.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is hereby affirmed at defendant’s costs.

AFFIRMED.

      . Damages were awarded as follows:
      Past medical expenses: $ 38,132.22
      Future medical expenses: $ 50,000
      Pain and suffering: $ 200,000
      Loss of enjoyment of life: $ 40,000
      Future lost wages: . $ 250,000


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF A.D.W, A.N.W and S.S.W.
    No. 43,012-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Michael Nerren, Indigent Defender Board, for Mother, A.W., Appellant.
    Audie L. Jones, Shreveport, for the Department of Social Services, Appellee.
    Karen Stubbs, Assistant District Attorney, for the State, Appellee.
    Calvin Shirey, for Father, J.D.W., Ap-pellee.
    Brad Smitherman, for Children, Appel-lees.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   GASKINS, J.

11 A.W., the mother of three minor children, appeals from a trial court judgment terminating her parental rights. We affirm the trial court judgment.

FACTS

The children (A.D.W., born in 2001; A.N.W., born in 2002; and S.S.W., born in 2004) were placed in the custody of the Department of Social Services (DSS) in May 2005 due to allegations of abuse and neglect by the mother and J.D.W., the presumed biological father of A.D.W. and the legal father of the other two children. In particular, the two older children had significant bruising and teeth rotten to the gum line. All three children were adjudicated to be in need of care. DSS established a plan for reunification for the family after the children were placed in foster care.

In January 2007, DSS filed a petition for termination of the parental rights of both parents. Following a hearing in July 2007, the trial court rendered written reasons in August 2007. J.D.W.’s rights were terminated following a showing that he had failed to work the case plan. The trial court found that he has abandoned the children.

As to the mother, the court noted that she initially made efforts to comply with portions of the plan. However, the court found that she failed to show “substantial measurable progress as it relates to the parenting classes and anger management class.” During her visits with the children, she failed to implement the techniques taught in those classes. According to the case workers, the mother inappropriately disciplined and even hit one of the children during supervised visitation. The trial court expressed concern 12for the safety of the children given the mother’s noncompliance even in a supervised environment.

The trial court considered the evidence submitted by Dr. John Simoneaux; he testified that he evaluated the mother in August 2006 and later in June 2007. He found little change in the mother in. the period between his evaluations. Dr. Simo-neaux did not believe that she recognized her alcohol abuse problems.

The trial court also found that the mother had failed to keep DSS informed of her whereabouts and that she had not established a home suitable for the children. It further noted the mother’s criminal conviction for manslaughter in 1990; this arose from the mother killing her eldest child, R.W., in August 1989, by placing the crying infant in a freezer.

After concluding that the evidence showed by clear and convincing proof that the children could not be safely returned to the mother and that the mother had failed to make substantial, measurable progress in the 19 months since the children were removed from her care, the trial court ordered the termination of her parental rights. Judgment in conformity with the court’s ruling was signed on August 29, 2007.

The mother appealed.

LAW

Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights. Permanent termination of the legal relationship existing between natural parents and children is one of the most |sdrastic actions the state can take against its citizens. State ex rel. A.T., 2006-0501 (La.7/6/06), 936 So.2d 79.

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child: Parents have a natural, fundamental liberty interest to the continuing companionship, care, custody, and management of their children. These interests warrant great deference and require full, vigilant due process protection that fair procedure be followed when the state seeks to terminate the parent-child legal relationship. Balanced against those protections is the child’s profound interest in terminating parental rights which prevent adoption, and hamper the establishment of secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing the parents’ and the child’s interests, the courts of this state have consistently found the interests of the child to be paramount over those of the parents. State ex rel. L.B. v. G.B.B., 2002-1715 (La.12/4/02), 831 So.2d 918.

The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child |4for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the state remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. State ex rel. L.B. v. G.B.B., supra; State ex rel. C.M.M. v. T.P.M., 42,288 (La.App.2d Cir.5/9/07), 957 So.2d 330.

Termination of parental rights is a severe and terminal action, so the legislature has mandated that, in order to terminate these rights, the state must satisfy an onerous burden of proof. Namely, it bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence. La. Ch. C. art. 1035; State in Interest of D.G. v. Danny G., 30,196 (La.App.2d Cir.10/29/97), 702 So.2d 43; State ex rel. B.H. v. A.H., 42,864 (La.App.2d Cir.10/24/07), 968 So.2d 881. Although there are several statutory grounds for involuntary termination of parental rights set forth in La. Ch. C. art. 1015, only one ground need be established. State ex rel. SNW v. Mitchell, 2001-2128 (La.11/28/01), 800 So.2d 809; State in Interest of D.G. v. Danny G., supra. Even upon finding that the state has met its evidentiary burden, a court still should not terminate parental rights unless it determines that to do so is in the child’s best interests. La. Ch. C. art. 1039; State ex rel. C.M.M. v. T.P.M., supra.

La. Ch. C. Art. 1015 provides, in relevant part:

The grounds for termination of parental rights are:

(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable | ^expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

In termination of parental rights cases, the trial court’s factual findings, including the finding that a parent is unfit and there is no reasonable expectation of reformation, will not be set aside in the absence of manifest error. State ex rel. B.H. v. A.H., supra.

Children have a need for permanency. Forcing children to remain in' foster care indefinitely, when there is no hope of reuniting them with their families, runs afoul of the state and federal mandates to further the best interests of the child. State ex rel. C.M.M. v. T.P.M., supra.

EVIDENCE

Dr. Ann Springer, an expert in pediatrics and in child abuse and neglect, testified that she examined the children in May 2005 when they came into DSS custody. A.D.W. was almost four years old; he had multiple teeth which were rotten to the gum line and his speech was almost unintelligible. The area around his mouth showed signs of old and new injuries; Dr. Springer testified that the evidence indicated multiple episodes of being hit in the mouth. He was not developmentally on scale for his age in areas of fine motor control, speech, language and possibly cognition. A.N.W. was two and a half years old; she likewise had teeth rotted to the gum line. She also had abnormal motor development and pattern bruising on her lower back above the diaper line. The doctor concluded that A.N.W.’s bruising, like her brother’s, was caused by nonacci-dental trauma. RS.S.W., an infant of eight or nine months, had conjunctivitis, and both of her ears were infected.

All three of the case workers who supervised the mother’s case testified at the hearing. They affirmed that the mother visited with the children regularly and that she completed classes in parenting and anger management. However, each recounted that, even after completing these classes, the mother was unable to demonstrate that she had benefitted from them and learned anything. She still required close monitoring during her supervised visitation with the children at the agency office. As recently as three or four months before the hearing, she had angrily “gotten in the face” of the current case worker in a dispute over a phone call.

The cáse workers testified as to the mother’s erratic behavior during her visits with the children — sometimes she was able to act appropriately, sometimes she could not. Even in these controlled situations where she knew she was under scrutiny, the mother still repeatedly lost control. The first case manager described the mother as shaking the children in front of her. She noted that even after the mother completed portions of the case plan like the parenting and anger management classes “on paper,” she could not demonstrate that she had learned anything. The second -case worker recounted the mother pulling her hand back to spank the oldest child several times; on one occasion, she actually struck him. According to this case worker, this incident occurred even after she had instructed the mother that corporal punishment could not be used on the children. She arranged for the mother to receive counseling sessions to try to teach her parenting skills. |7The third and current case manager testified that the mother admitted that she “popped” the second oldest child during a visit; she also got in the children’s faces and screamed at them. She was only able to note some recent improvement in the mother’s behavior. While all of the case workers commented upon the mother’s inability to control the children, the first case worker noted that the foster parents who are currently caring for the children had no problems controlling them; she also observed that the children bonded with these foster parents unusually quickly.

In addition to attending parenting and anger management classes and supervised visitation with the children, the mother was also required to keep DSS informed of her whereabouts and circumstances and to establish a suitable home. The case workers indicated that the mother did not always keep them informed of where she was living. She also refused to allow the case workers to verify her housing or visit her home, usually stating that whoever she was living with did not want DSS in their home. The testimony was consistent that the mother never established a stable home.

Dr. John C. Simoneaux, a clinical psychologist, testified that he evaluated the mother twice, in August 2006 and again in June 2007. He noted that during their initial interview she was “defensive of everything”; among other things, she minimized the children’s dental problems and speculated that the social worker had something against her. Given the fact that she was drinking at the time she killed her first child and that she served a prison sentence for the child’s death, Dr. Simoneaux expressed surprise that she was still drinking. The mother insisted that her drinking was not |Rsevere; she denied having any alcohol-related problems. The doctor found that she had borderline personality traits. He opined that she had problems with parenting due to her personality problems and that just learning parenting in classes was not the issue. He also described her as hedonistic.

During the first evaluation, Dr. Simo-neaux noted that, despite all the problems in her life, which included her children’s placement in foster care, her relationship problems with her husband and a lack of a place to live, the mother was surprisingly stress free. She did not appear to be disturbed by the fact that she did not know where she would be sleeping that night.

When he saw her again the following year, the mother had improved in only two areas — she was no longer unemployed, having gotten a job in a fast food restaurant, and she had a place to stay, living with an older woman whom she was taking care of. However, she was already expressing discontent with the job, and she was somewhat vague about the housing situation. As to her alcohol problems, she said she was attending AA meetings; however, she could not tell Dr. Simoneaux how long she had been sober. Also, she was dating a man she met at an AA meeting; Dr. Simoneaux was troubled that she was minimizing his drinking as she had done her husband’s.

Dr. Simoneaux was concerned about the mother’s judgment. The testing he administered revealed that the mother has a full scale IQ of 76. Her profile as revealed by testing was more “troublesome” than when he evaluated her the first time. It reflected her impulsivity, poor judgment, inability to delay gratification, and low tolerance for frustration. According lflto Dr. Simoneaux, her low tolerance for frustration is seen in her visitations with the children when she is unable to control herself even when she knows she is under scrutiny. He also diagnosed the mother as being narcissistic. He noted that between his first and second evaluations the mother had become more ingrained in her belief that everything wrong in her life is someone’s else fault. According to Dr. Simo-neaux, a narcissistic personality disorder is one of the most difficult disorders to treat. He did not foresee any significant improvement in the mother’s situation in the near future.

DISCUSSION

The mother argues that she has substantially and successfully complied with the case plan by completing the classes required of her, regularly attending visitation with her children, and attending AA meetings which she maintains are unnecessary. She also contends that she has ben-efitted from the classes she took and has shown improvement in her behavior toward the children.

The mother’s performance of the case plan cannot be characterized as successful under the circumstances presented in this case. Despite completion of the mandated parenting classes — and her attendance of additional parenting sessions which were deemed necessary as a result of her failure to benefit from the initial classes — she has not demonstrated a consistent ability to interact with her children appropriately even under controlled and supervised conditions. Although she completed anger management classes within a few months of the children’s placement in |infoster care, the case workers repeatedly observed inappropriate bursts of anger in which the mother lashed out not only against the children but also against the case workers. She has also failed to recognize and take responsibility for her alcohol abuse, a circumstance which played a role in the death of her oldest child.

The mother is dismissive of her killing of the oldest child as an issue in this matter, arguing that it occurred years before these children were born and that she served her prison sentence. (She is currently on parole for her manslaughter conviction and will remain so until 2010.) She contends that the state failed to show that her homicidal actions as a teenager adversely affected her ability to raise these children. The state argues that once a parent murders one child, he or she loses the benefit of the doubt about his or her parenting abilities.

DSS is rightly concerned by the mother’s killing of her oldest child in 1989 and fearful of what she might do to these children. This is especially true since the two children entered DSS custody with evidence of having been battered. The mother’s alcohol consumption was a factor in the death of the oldest child. Even though she was told to attend AA meetings in September 2005, she cannot prove any compliance with this requirement until May 2007, two months before the termination hearing.

We agree with the trial court that the state carried its burden of proving by clear and convincing evidence that the mother failed to substantially comply with the case plan and that there is no reasonable expectation of significant improvement in her condition or conduct in the Innear future. Even if the mother’s assertions are true that she has shown some degree of improvement in recent months, these children have already languished in foster care for more than two and a half years. Given the expert testimony of Dr. Simoneaux that she is unlikely to improve significantly in the near future and that narcissism makes her virtually untreatable, we find no manifest error in the trial court’s decision.

The record reveals that termination of the mother’s parental rights is in the best interest of the children. In their mother’s care, the children were subjected to physical abuse which left bruises and scarring; they also were neglected to the point that they suffered severe health ramifications, including teeth rotted to the gum line. The children have bonded with their foster parents who are willing to adopt them.

We find no manifest error in the trial court’s decision to terminate the mother’s parental rights, thereby freeing these children to be adopted into a safe, stable, and permanent home.

CONCLUSION

The judgment of the trial court terminating A.W.’s paternal rights to her three children is affirmed. Costs are assessed against A.W.

AFFIRMED.

      . We observe that the two younger children have spent at least half or more of their young lives in foster care.


author: LOLLEY, J.

text:
    STATE of Louisiana IN the INTEREST OF C.N., Plaintiff-Appellee v. Angela Noble HARTE, Defendant-Appellant.
    No. 42,977-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Donald Weathersby, II, for Plaintiff-Ap-pellee, C.N.
    Lunn, Irion, Salley, Carlisle & Gardner, by Karen E. Stubbs, Shreveport, for State of Louisiana, Dept, of Social Services.
    Ross E. Shacklette, Bossier City, for Defendant-Appellant, Angela Noble Harte.
    J. Bradley Smitherman, for Defendant-Appellee, Ryan Hawkinberry.
    Before DREW, MOORE and LOLLEY, JJ.
   LOLLEY, J.

_JjThe mother, Angela Noble Harte, appeals a judgment from the Bossier City Court, Parish of Bossier, State of Louisiana, which granted guardianship of her son, C.N., to Michelle Snyder. For the following reasons, we affirm.

FACTS

On May 22, 2005, C.N. came into the care, custody and control of the State of Louisiana, Department of Social Services, Office of Community Services, Bossier Parish (“OCS”) after allegations that, among other things, he had been left unattended by his parents. C.N. was adjudicated to be a child in need of care after a hearing on September 9, 2005. An initial Permanency Hearing was held on February 2, 2007, and a judgment was signed and filed February 12, 2007. A final Case Review Hearing was held on July 6, 2007, and a judgment vacating custody with OCS and granting guardianship of C.N. to a relative, Michelle Snyder, was signed and filed on August 7, 2007. It is from this judgment, the mother, Angela Noble Harte, now appeals.

LAW AND DISCUSSION

In her first assignment of error, Angela argues that the trial court erred in vacating custody without finding that reasonable efforts had been made to reunite her with C.N. We disagree.

The trial court’s award of custody at a disposition hearing is entitled to great deference and will not be reversed on review except in the clearest case of abuse of that great discretion. State in Int. of J.W., 2000-1445 (La.App-2 4 Cir. 01/10/01), 779 So.2d 961. Louisiana Ch. C. art. 702(C) orders that the trial court determine the permanent plan for a child that is most appropriate and in the best interest of the child.

Louisiana Ch. C. art. 702(E) provides, in pertinent part, that:

[T]he court shall determine whether the department has made reasonable efforts to reunify the parent and child or to finalize the child’s placement in an alternative safe and permanent home in accordance with the child’s permanent plan. The child’s health and safety will be the paramount concern in the court’s determination of the permanent plan.

In the February 12, 2007 judgment, the trial court did state, “that reasonable efforts have been made by the Department to reunify the family unit since the child was placed in foster care.... ” Although the trial court did not reiterate that “reasonable efforts” were made to reunify C.N. with Angela in its August 7, 2007 judgment, the record bears out that nothing had changed in the five months leading up to the final Case Review hearing.

Notably, the trial court stated in the final judgment that granting guardianship to Snyder is “consistent with [C.N.’s] health and safety and in his best interest.” This is the ultimate goal of La. Ch. C. art. 702(C), and it has clearly been achieved here. Several reports found that C.N. was thriving at Snyder’s house, benefitted from being near his brother A.B., and was close to his grandfather and cousins. In addition, C.N. expressed a strong opinion to stay with Snyder. Furthermore, a comprehensive report completed by the Court Appointed Special Advocate (“CASA”) right before the August 2007 judgment specifically addressed the same issue and recommended C.N. be placed with Snyder. The CASA report also indicated that Angela agreed that she could not be a “good mother” for C.N. given her | ^current incarceration. One permanent placement option, which was utilized here, is placement with a legal guardian. La. Ch. C. Art. 702(C)(3). So considering, we do not find that the trial court abused its discretion.

Next, Angela argues that the trial court violated the “Interstate Compact” on the placement of children by vacating custody. Specifically, Angela urges that La. Ch. C. Art. 1612(A) was violated in that the statute requires the concurrence of the appropriate authority in the receiving state which was not obtained. Louisiana Ch. C. Art. 1608 through 1617 outlines the provisions of the Interstate Compact on the placement of children.

Louisiana Ch. C. Art. 1612(A) provides: The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment, and disposition of the child which it would have had if the child had remained in the sending agency’s state, until the child is adopted, reaches majority, becomes self-supporting, or is discharged with the concurrence of the appropriate authority in the receiving state. Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law. The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement. Nothing contained herein shall defeat a claim of jurisdiction by a receiving state sufficient to deal with an act of delinquency or crime committed therein.

Angela’s interpretation is misguided. This article involves the interim retention of jurisdiction with Louisiana as the sending state which was essential here since C.N. was placed with Snyder in Ohio for more than two years while this matter was pending. However, once the trial court made a finding of what was in C.N.’s best interest, nothing in La. Ch. C. art. 1612 prevents OCS from placing the child in the guardianship of Snyder in Ohio.

|4We further note that the record reflects an incredible amount of cooperation between Ohio’s Job and Family Service division and Louisiana’s OCS — including the home study investigations which allowed OCS to make their recommendations. Clearly, the sending and receiving states were aware of C.N.’s placement issue, and accordingly worked together to determine what was in the best interest of C.N. Therefore, this argument is without merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment vacating custody with OCS and granting guardianship of C.N. to Michelle Snyder, is affirmed. Costs are to be borne by Angela Noble Harte.

AFFIRMED.

      . The February 12, 2007 judgment found that C.N. was still in need of care and continued him in the custody of OCS.


text:
    STATE of Louisiana, Appellee, v. Keith McDANIEL, Appellant.
    Nos. 42,926-KA, 42,927-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Paula C. Marx, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, GASKINS and MOORE, JJ.
   GASKINS, J.

Irin these consolidated appeals, the defendant, Keith McDaniel, pled guilty to aggravated battery and distribution of a Schedule II controlled dangerous substance, cocaine. He was sentenced to serve seven years at hard labor for aggravated battery and 15 years at hard labor for distribution of cocaine, with the first two years to be served without benefit of parole, probation, or suspension of sentence. The sentences were ordered to be served concurrently. The defendant appealed his sentences as excessive. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

The defendant was charged with aggravated battery and armed robbery of a female victim committed on October 1, 2006. He was also charged in a separate proceeding with distribution of a Schedule II controlled dangerous substance, cocaine, committed on July 5, 2006. On December 18, 2006, pursuant to a plea agreement, the defendant entered a plea of guilty to aggravated battery and the armed robbery charge was dismissed. He also pled guilty to the charge of distribution of cocaine. As part of the plea agreement, the state dismissed a charge of possession of drug paraphernalia. The state further agreed that the sentences would run concurrently and that the defendant would not be charged as a habitual offender.

The defendant then filed a motion to set aside his guilty plea on the aggravated battery charge. The motion was denied in April 2007. The trial court sentenced the defendant to serve seven years at hard labor for the | aggravated battery conviction and 15 years at hard labor for the distribution of cocaine conviction, with the first two years to be served without benefit of parole, probation, or suspension of sentence. The sentences were ordered to be served concurrently. The trial court advised the defendant of his right to post-conviction relief and the time limitations for applying for post-conviction relief. The defendant filed a motion to reconsider his sentences; the trial court denied the motions. The defendant appealed his sentences as excessive.

LEGAL PRINCIPLES

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, 438 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. 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. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. 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, 2000-1467 (La.2/2/01), 783 So.2d 385.

Second, 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. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. 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. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

DISCUSSION

The defendant contends that the sentences imposed are excessive under the circumstances of these cases. Regarding the aggravated battery, the defendant claims that the victim sustained only a small cut on her neck |4which did not require medical attention. He further argues that regarding the distribution of cocaine conviction, he only sold one rock of cocaine for $20.00. These arguments are without merit.

The trial court set forth extensive reasons for the sentences imposed. In the aggravated battery offense, the defendant knocked down a female victim and cut her neck with a razor blade while demanding money. The trial court considered the victim’s statement that she lives in fear that the defendant will “get out” and kill her. Regarding the offense of distribution of cocaine, the trial court noted that the prosecution possessed a videotape showing the defendant making the sale of cocaine to a confidential informant.

The trial court recounted the facts in the presentence investigation report which showed that the defendant had an extensive criminal record including a lengthy history of aggressive and potentially dangerous behavior. According to the trial court, the defendant was a third felony offender and not eligible for a probated sentence. The court observed that the defendant had three prior convictions for simple battery, as well as convictions for criminal damage to property, simple robbery, and a robbery conviction in Texas. The record shows that the trial court considered the guidelines enumerated in La. C.Cr.P. art. 894.1. According to the trial court, any lesser sentences than those imposed would deprecate the seriousness of the offenses.

The maximum term of incarceration that may be imposed for aggravated battery is 10 years at hard labor. La. R.S. 14:34. The maximum |fisentence of incarceration for distribution of cocaine is 30 years at hard labor, with the first two years to be served without benefit of parole, probation, or suspension of sentence. La. R.S. 40:967(B)(4)(b). The sentences imposed in this case were in the middle range. Further, the trial court ordered that the sentences be served concurrently. In light of the defendant’s significant criminal history and the substantial reduction in potential exposure to confinement gained through the plea agreement in this case, the sentences imposed were not excessive. The sentences were tailored to the offender and the offenses. The trial court did not abuse its discretion in this case.

ERROR PATENT

The district court minutes for the sentencing proceedings in both convictions are incorrect. The minute entries contained in the record switched the sentences on the two charges. The minutes for aggravated battery incorrectly reflect a 15-year sentence, and the minutes for distribution of cocaine reflect a 7-year sentence. The trial court is instructed to correct this error in the minutes, as the transcript controls over the minutes where there is a conflict. State v. Lynch, 441 So.2d 732 (1983).

CONCLUSION

For the reasons stated above, we affirm the convictions and sentences of the defendant, Keith McDaniel.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Thomas HEDGSPETH, Appellant.
    No. 42,921-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Peggy J. Sullivan, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, John F. McWilliams, Lea R. Hall, Jr., Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

h This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana, where the defendant, Thomas Hedgspeth, was convicted of aggravated rape and aggravated burglary, violations of La. R.S. 14:42(A) and La. R.S. 14:60, respectively. On the aggravated rape charge, he was sentenced to the mandated life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; on the aggravated burglary charge, he was sentenced to 30 years’ imprisonment at hard labor to run consecutively with the life sentence. Hedgspeth now appeals. For the following reasons, we affirm.

PACTS

On October 16, 2003, the 17-year-old defendant, Thomas Hedgspeth, and his friend, Christopher Jackson, broke into a house, located in Caddo Parish, intending to steal the homeowner’s car. The house was owned by 79-year-old victim, M.J., who resided on the same street as Hedgs-peth. M.J. testified that she was alone in the house preparing to take a shower when she heard a noise. Thinking it was her son, she peeked around the hallway door to see if he needed her. She testified that instead she saw two black men wearing hooded sweatshirts standing near the front door, one taller than the other. She attempted to run to the bedroom to call for help. Before she could get the bedroom door locked, Hedgspeth, described as the taller of the two, went into the room. A struggle ensued, during which M.J. |2was hit and choked. Hedgspeth insisted that she turn over her car keys, which she did. At that point, Hedgspeth forced M.J. to perform oral sex on him. When M.J. could not perform this act, he again struck her and pushed her onto the bed, where he proceeded to have vaginal intercourse with M.J. against her will.

The two men left the house in MJ.’s car, and M.J. called the police. A Shreveport police K-9 officer spotted a group of people standing around a car matching the description of MJ.’s vehicle, but as the officer drove up to the vehicle, Hedgspeth and Jackson fled on foot. During the subsequent investigation and interviews with witnesses who were near the car, Hedgs-peth and Jackson were named as suspects and were eventually apprehended. M.J. was taken to the hospital for a rape examination.

During an interrogation, Hedgspeth admitted breaking into M.J.’s house and further admitted that he raped M.J.: “I poked her. What else do you want to know?” At trial, however, we note that Hedgspeth admitted he told police he had sex with M.J. but said his statement to the police was a lie. Hedgspeth and Jackson consented to have their cheeks swabbed for an epithelial cell submission. The DNA tests later revealed that the DNA profile obtained from the samples taken from the rape kit was consistent with the defendant’s DNA profile. According to Kelli Langley, an expert in DNA identification and analysis, the probability of finding the same DNA profile from a randomly-selected individual other than the defendant was approximately 1 in 46.8 trillion. The DNA test ruled out Jackson as the | Srapist. Jackson confirmed at trial that Hedgspeth was the person who raped M.J.

On April 27, 2006, the jury unanimously returned a verdict of “guilty as charged” against Hedgspeth as to both counts of aggravated rape and aggravated burglary. On May 19, 2006, the trial court sentenced the defendant on the aggravated rape count to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, and on the aggravated burglary count to 30 years’ imprisonment at hard labor to be served consecutively to the life sentence. This appeal ensued.

LAW AND DISCUSSION

Motion for Continuance

In his first assignment of error, Hedgspeth argues that the trial court erred by granting the state a continuance of the trial after the trial commenced. He contends that the sole purpose of the continuance was to give the state additional time to prepare for trial and that his due process rights were violated because he was entitled to a trial before the jurors who had been already accepted and agreed upon.

Initially, the trial began on January 9, 2006, during which 10 of the 12 jurors were selected and sworn. The next morning, on January 10, 2006, the state orally moved for a “continuance.” The state explained that it had been under the impression that the results of the DNA testing were inconclusive, but the state since discovered that the DNA testing was never actually performed by the crime lab. The defense admitted that they had been under the same impression as the state, but objected to the request for a | ¿continuance on the grounds that 10 jurors had already been selected. The trial judge at these first proceedings stated:

[I]f this evidence is analyzed at the crime lab, it could basically exonerate Mr. Hedgspeth. That’s how important it is. On the other hand, if it’s analyzed it could provide very clear and compelling evidence of his guilt. Either way, I think it’s potentially critical .evidence to the case. I believe that the state’s motion has merit and is therefore granted. We’ll have to reset this matter, and there will need to be clear instructions to the crime lab to get busy.

The trial was rescheduled to April 24, 2006, at which time it was before a different trial judge and an entirely new panel of jurors was called, questioned, and selected.

Louisiana C. Cr. P. art. 708 provides:

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced. (Emphasis added.)

Here, in order to determine whether the grant of the motion for continuance was proper, we must first determine if the initial trial had “commenced.” Louisiana C. Cr. P. art. 761 provides that, “a jury trial commences when the first prospective juror is called for examination.” Since it is undisputed that 10 of the 12 prospective jurors had been selected, pursuant to articles 761 and 708 the trial had already commenced. Thus, the trial court was without authority to grant a “continuance,” and in effect the action was an illegal [.^dismissal. However, Hedgspeth must show he has been prejudiced by this action, as the dismissal alone does not constitute reversible error. State v. Love, 2000-3347 (La.05/23/03), 847 So.2d 1198.

On appeal, Hedgspeth complains that as a result of this “continuance” the state was given additional time to prepare for trial and that he was entitled to have his case tried before the jurors already selected. The right to have one’s trial completed by a particular tribunal is within the protection of the constitutional guarantee against double jeopardy, since it is that “right” that lies at the foundation of the rule that jeopardy attaches when the whole jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). However, in the instant case, that “right” had not yet attached when the trial court granted the state’s motion and dismissed the partial jury. Louisiana C. Cr. P. art. 790 provides:

When selection of jurors and alternate jurors has been completed, and all issues properly raised under Article 795 [time for challenges; method; racially based peremptory challenges; restrictions] have been resolved, the jurors shall then be sworn together to try the case in a just and impartial manner, each to the best of his judgment, and to render a verdict according to the law and the evidence. (Emphasis added.)

For purposes of determining when double jeopardy attaches, the swearing of the jury “together to try the case” is distinguished from the individual swearing of jurors, also known as tendering, provided for in La. C. Cr. P. | fiart. 788. See State v. Sermon, 404 So.2d 261 (La.1981). It is clear that double jeopardy did not attach when the trial court dismissed the partial jury. Indeed, Hedgspeth never alleges that he was placed in double jeopardy during the subsequent recommenced proceedings.

Moreover, the public has an interest in affording the state one full and fair opportunity to present its evidence to an impartial jury. See Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). The right to have one’s case tried before the jurors already selected cannot serve as a barrier to full and fair prosecution of the defendant under these particular circumstances. See State v. Marshall, 410 So.2d 1116 (La.1982). In the case at hand, since the jury was not sworn pursuant to La. C. Cr. P. art. 790, nothing prevents the state from pursuing a full and fair prosecution.

Further, we find that the record does not support, nor are we persuaded, that the additional preparation time afforded the state warrants reversal. Had the state moved for and been granted a continuance only a day earlier (prior to the examination of the first prospective juror), or had the trial been originally scheduled for a later date, such actions would not have been an abuse of discretion. The trial judge found that the DNA results were critical to the case because they could essentially exonerate the defendant or provide strong evidence of his guilt. The state explained that the crime lab was backlogged and that the earliest available trial date for the recommenced proceedings would be April 24, 2006, to which defense counsel responded: “That date’s agreeable, Your Honor.”

|7In fact, under these circumstances, if the trial court denied the continuance motion, the state could have immediately nolle prosequied, the charges and reinsti-tuted the prosecution under a separate docket number (which, practically speaking, would have been tried at a later date). In State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.1983) writ denied, 433 So.2d 711 (La.1983), the prosecutor entered a nolle prosequi at a first trial after 6 of 12 jurors had been selected. In Albert, the subsequent conviction and sentence were affirmed. In State v. Payton, 2006-1202 (La.App. 4th Cir.02/28/07), 954 So.2d 193, the trial court held that the state’s failure to timely seek a continuance did not bar reinstitution of the same charges after the prosecutor entered a nolle prosequi immediately upon the denial of its motion for a continuance on the day trial was originally set to begin.

Hedgspeth has failed to show how the trial court’s dismissal of the partial jury on January 10, 2006, deprived him of the opportunity for a fair trial or otherwise necessitates reversal of his convictions and sentences. This assignment is therefore without merit.

Imposition of Consecutive Sentences

Next, Hedgspeth argues that the trial court erred in imposing consecutive sentences for offenses arising from a single course of conduct without articulating factors sufficient for such consecutive sentences. 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.

IsConcurrent sentences arising out of a single cause of conduct are not mandatory, and it is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Coleman, 32,906 (La.App. 2d Cir.04/05/00), 756 So.2d 1218, writ denied, 2000-1572 (La.03/23/01), 787 So.2d 1010.

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Mitchell, 37,916 (La.App.2d Cir.03/03/04), 869 So.2d 276, writ denied, 2004-0797 (La.09/24/04), 882 So.2d 1168, cert. denied, 543 U.S. 1068, 125 S.Ct. 905,160 L.Ed.2d 801 (2005).

Among the factors to be considered are the defendant’s criminal history; the gravity or dangerousness of the offense; the viciousness of the crimes; the harm done to the victims; whether the defendant constitutes an unusual risk of danger to the public; the potential for defendant’s rehabilitation and whether defendant has received a benefit from a plea bargain. State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986).

Here, in explaining the sentences imposed, the trial judge expressly noted the circumstances and particularly the heinous nature of the crimes committed by defendant on a then 79-year-old woman. The harm done to the victim was obvious. The trial judge stated that “[t]his was one of the worst cases that this Judge has heard.” As the trial judge aptly noted, the _[gdefendant committed at least two distinct sex acts against the victim’s will. The trial court found that defendant is a “very dangerous person who needs to be removed from the public.” After a thorough review, the record is more than adequate to support consecutive sentences in this case.

Excessive Sentence

Finally, Hedgspeth argues that the imposition of the mandatory life sentence for aggravated rape was constitutionally excessive in this case, especially given his youth and his borderline intellectual functioning. Appellate review of sentences for excessiveness is two-pronged. First, the record must show that the trial court complied with La. C. Cr. P. art. 894.1. The trial court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Woods, 41,420 (La.App.2d Cir.11/01/06), 942 So.2d 658, writs denied, 2006-2768, 2006-2781 (La.06/22/07), 959 So.2d 494. Where there is a mandatory sentence, there is no need for the trial court to justify, under Article 894.1, a sentence it is legally required to impose. State v. Burd, 40,480 (La.App.2d Cir.01/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/09/06), 941 So.2d 35.

The second prong is constitutional excessiveness. 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 imposition of pain and suffering. State v. Smith, 2001-2574 (La.01/4/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are |inviewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 1999-1753 (La.05/16/00), 769 So.2d 1158. As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Brisco, 33,179 (La.App.2d Cir.04/05/00), 756 So.2d 644, writ denied, 2000-1478 (La.05/25/01), 792 So.2d 749. The record clearly reflects that as a result of the victim’s age and the use of force and threats of great and immediate bodily harm to overcome the victim’s resistance, Hedgspeth committed aggravated rape. The offenses committed by Hedgspeth were of a shocking and heinous nature. Hedgspeth was the principal aggressor in the offenses. He initially accosted the elderly victim, choked and hit her, and then repeatedly raped her. The circumstances here do not militate against the legislature’s determination that 17-year-old aggravated rapists are to be treated as adults without varying the punishment according to the age of the accused. State v. Foley, 456 So.2d 979 (La.1984). Similarly, a diminished mental capacity does not automatically render the mandatory life sentence for aggravated rape unconstitutionally excessive. See State v. Wilson, 28,403 (La.App.2d Cir.08/21/96), 679 So.2d 963.

Here, not only was the life sentence for aggravated rape a mandatory sentence, the trial court provided extensive reasons for both sentences, specifically noting the defendant’s youthful age; however, this was negated by the gravity and the viciousness of the offenses. Also weighing heavily in h,favor of the sentences was Hedgspeth’s lack of remorse during the proceedings and his continued efforts at trial to evade responsibility for the rape despite overwhelming evidence to the contrary.

There is nothing in this record to suggest that the punishment is constitutionally excessive. As the Louisiana Supreme Court has stated, “aggravated rape deserves a harsh penalty; it is one of the most violent felonies a person can commit.” State v. Foley, 456 So.2d at 983.

This assignment is without merit.

CONCLUSION

For the foregoing reasons, Thomas Hedgspeth’s convictions and sentences are affirmed.

AFFIRMED.

      . The victim’s initials are used because of victim confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W).

      . To put this statistic into context, the current world population is only 6.6 billion.

      . It is well settled that whether the motion was improperly styled as one of continuance, recess or mistrial (essentially a motion to dismiss the jury), the court may examine the motion as though it had been properly denominated. State v. Spears, 39,302 (La.App.2d Cir.09/27/06), 940 So.2d 135, writ denied, 2006-2704 (La.08/31/07), 962 So.2d 424. However, given the set of circumstances presented here, there is nothing procedurally that allows a jury to be "dismissed” as a result of lack of trial preparation, and not want of a legal defect in the proceedings. State v. Payton, 2006-1202 (La.App. 4th Cir.02/28/07), 954 So.2d 193.

      . Interestingly, the tried court was skeptical whether Hedgspeth truly had a diminished mental capacity in light of his diction during his testimony.