author: MARC T. AMY, Judge.

text:
    Chester J. FREDERICK v. PORT AGGREGATES, INC.
    No. 07-552.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      Robert T. Jacques, Jr., Lake Charles, LA, for Plaintiff/Appellee, Chester J. Frederick.
    Shaun S. Gill, Yul D. Lorio, Blaine A. Doucet, Doucet Lorio, L.L.C., Lake Charles, LA, for Defendant/Appellant, Port Aggregates, Inc.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   MARC T. AMY, Judge.

| TThe claimant received indemnity and medical benefits for a work-related accident and injury. His medical benefits •were subsequently terminated when his employer discovered that he was selling watermelons. Filing a disputed claim form, the claimant sought medical benefits, penalties, and attorney fees. Following a hearing, the workers’ compensation judge found in the claimant’s favor. The employer appeals. For the following reasons, we affirm. Additional attorney fees are awarded for work performed on appeal.

Factual and Procedural Background

The claimant, Chester J. Frederick (Frederick), began working for the defendant, Port Aggregates, Inc. (PAI), in November 2003 as a cement truck driver. According to Frederick, on October 12, 2004, he was “[t]rying to get the cement chute off the back of the truck ... I went to twist it, get it off when I pulled something in my left arm.... ” Frederick testified that when he returned to the work premises, he reported the accident to Howard Manuel (Manuel), who advised him to come back if his pain worsened. His pain persisted; therefore, on the following day, Frederick requested that Warner Hanks (Hanks), plant supervisor, be notified of his accident.

Frederick testified that:

They took me to Business Health Partners the following week, and they put me on light duty, told me no straining, pushing, and pulling with that arm. They kept me on light duty one day, then Hanks — Warner Hanks called and told Manuel to put me back on the truck and he said that he needed everybody on the truck; and if I got to hurting too bad, he would pull me off the truck.

Frederick testified that he drove the truck for a brief period of time before he made the decision to stop. Frederick returned to Business Health Partners and the treating physician referred him to Dr. Alan Hinton, an orthopedic surgeon. He testified that Dr. Hinton administered a cortisone shot in his arm, which did not alleviate his pain. 12Pr. Hinton put him on light duty and referred him to Dr. James Perry, an orthopedic surgeon, for neck and back pain that, according to Frederick, began “when they put me back on the truck and ... they wasn’t supposed to do that.” Frederick stated that Dr. Perry gave him a cortisone shot in his neck to no avail.

Frederick stated that Dr. Perry placed him on light duty, which he worked for a couple of days. However, Frederick alleged that Hanks told him that “he didn’t f ing need me, to go home.... If you can’t get on the truck, I don’t fing [need] you.” Frederick maintained that Hanks “made me stop coming to work. He sent me home, told me not to come back.” Frederick complied and subsequently began receiving workers’ compensation benefits.

Frederick filed a disputed claim for compensation form on December 2, 2004, in which he alleged that.wage benefits had not been paid, medical treatment had not been authorized, he had not been allowed to select his choice of physician, and vocational rehabilitation had not been provided. He sought penalties and attorney fees, costs, and interest on all amounts.

Although his requests to see Dr. Clark Gunderson, his choice of orthopedic surgeon, were initially denied, the record indicates that Frederick visited with Dr. Gun-derson on March 9, 2005. On March 24, 2005, Dr. Gunderson requested that Frederick undergo a cervical discogram at the C3-4 and C4-5 levels. Because two ruptured discs were discovered in Frederick’s neck, Dr. Gunderson recommended surgery. Dr. Perry concurred.

Frederick testified that in October 2005, he was presented with several “Employee’s Monthly Report of Earnings” forms that he was told to complete. A review of the forms shows that Frederick was asked if he was “self-employed or | ¡¡involved in any business enterprise.” He was also asked if he received wages. Frederick testified that although he had sold watermelons during June and July 2005, he did not disclose this information on the forms. He maintained that he did not understand the questions and that he simply complied with his attorney’s instructions to sign the forms.

Frederick stated that he sold watermelons out of his truck on the side of the road, not for profit but, “to get out of the house, give me something to do because I was getting bored there being in the house all the time, cooped up. I was fixing to lose it. I couldn’t do anything.” He testified that he sold watermelons a couple of days a week, usually for three or four hours per day. Frederick claimed that he did not sell many melons and that in fact, he came “out in the hole.” He acknowledged that he was receiving workers’ compensation benefits at that time.

According to Frederick, PAI terminated his medical benefits when it learned of this activity; however, it continued to pay his indemnity benefits. He explained that “I didn’t think I was doing anything wrong.... Dr. Perry and Dr. Hinton said that I could be on light duty, so I figured doing that shouldn’t affect the money. Sitting there collecting money wasn’t nothing.” He emphasized that when he purchased the melons, they were loaded into his truck for him. Furthermore, when his customers “came to buy them, I told them, ‘if you want the melon, you will have to pick it up because I can’t do it. I have tried and I couldn’t do it. It make me hurt too bad.’ ”

Frederick subsequently filed a supplemental disputed claim form in which he alleged, among other things, that medical treatment had not been authorized. He sought penalties, attorney fees, and interest. Thereafter, PAI filed a motion ■ for summary judgment alleging that Frederick “admittedly made false statements and | ¿representations while receiving workers’ compensation benefits.” Specifically, PAI contended that Frederick made false statements/misrepresentations about his work ability and condition, his employment status, and wages received. Thus, PAI argued that Frederick violated La.R.S. 23:1208, thereby forfeiting his right to receive benefits. After a hearing, PAI’s motion for summary judgment was denied.

On October 30, 2006, a hearing was held in which the workers’ compensation judge found that Frederick did not commit fraud in violation of La.R.S. 23:1208. PAI was ordered to pay a $2,000.00 penalty “for failure to reasonably controvert Chester J. Frederick’s entitlement to authorization of regular continued medical treatment” and a $2,000.00 penalty for “failure to reasonably controvert Chester J. Frederick[’]s entitlement to surgery, the necessity of which, was verified by Port Aggregates, Inc.’s physician, Dr. James Perry, M.D.” The workers’ compensation judge additionally held that Frederick was entitled to surgery. Frederick was awarded $7,000.00 in attorney fees plus legal interest.

It is from this ruling that PAI appeals, designating the following as error:

A. The Trial Court was clearly wrong and committed a manifest error in establishing that the Claimant did not willfully defraud the workers compensation system.
B. The Trial Court was clearly wrong and committed a manifest error in not allowing the video surveillance of the claimant caught in the act of which he readily admitted to.
C. The Trial Court was clearly wrong and committed manifest error in awarding penalties and attorneys fees when the ruling is established from unsupported facts which would not be obvious to the employer.

Frederick answered the appeal, seeking additional attorney fees for work performed on appeal.

| ¡^Discussion

Violation ofLa.R.S. 23:1208

PAI argues that Frederick made willful, fraudulent statements regarding his work activity, thereby forfeiting his right to receive medical benefits under La.R.S. 23:1208. To support its position, PAI points to the Employee’s Report of Monthly Earnings forms as well as Frederick’s deposition testimony which, it alleges differs from his trial testimony.

Louisiana Revised Statutes 23:1208 provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

A violation of La.R.S. 23:1208 occurs when: “(1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, 94-3108, p. 7 (La.9/5/95), 660 So.2d 7, 12. Unless manifestly erroneous, the workers’ compensation judge’s finding of a violation of La.R.S. 23:1208 will not be overturned on appeal. Cajun Rental & Servs. v. Hebert, 05-482 (La.App. 3 Cir. 12/30/05), 918 So.2d 605.

In addressing whether the statute was violated, the workers’ compensation judge concluded:

The claimant herein is unsophisticated, unlearned and is inarticulate. He does not present himself very well; however, the court does not find that the claimant committed fraud, nor has the defendant | (¡proven that the claimant committed fraud. The claimant did not make a false statement or misrepresentation willfully for the purpose of obtaining workers’ compensation benefits as set forth in the Louisiana R.S. 23:1208. The defendant failed to prove its contention. In fact, the alleged surveillance which defendants [sic] argued as proof of the 1208 was not part of the evidence in this record. The claimant has failed to meet expectations as an ideal candidate for workers’ compensation payments and he may have a less than firm grasp of what is expected of him in order to avail himself of medical treatment under the Comp act, but he is not a cheat and a fraud.

After reviewing the record, we find that it supports the workers’ compensation judge’s determination that PAI did not prove that Frederick made willful, false statements for the purpose of obtaining workers’ compensation benefits. In its brief, PAI references Frederick’s deposition in which he acknowledged: (1) that he sold watermelons for profit, during which time he was receiving workers’ compensation benefits; (2) that he signed several Employee’s Monthly Report of Earnings forms in which he did not indicate that he was working and/or receiving wages; and (3) that he understood the forms and the penalty imposed for making false statements.

However, at trial, Frederick testified that he did not know the purpose of the Employee’s Monthly Report of Earnings forms and that he did not understand the questions. Rather, Frederick stated that he simply signed the forms per his attorney’s instructions.

At trial, PAI’s attorney noted that a question on the form asked, “For the period covered in this report, were you self-employed or involved in any business enterprise? These include but are not limited to farming, sales work, operating business (even if the business lost money), child care, yard work, mechanical work, or any type of family business.” Frederick checked the “No” box. He reasoned that he did not consider himself self-employed because he “wasn’t receiving a paycheck. I wasn’t 17receiving any wages. It’s not a job. It was something to get me out the house, something for me [to] do, keep me occupied, keep me from going nuts.”

Additionally, PAI’s attorney pointed out that Frederick answered, “No” to the question, “For the period covered in this report, did you receive a salary, wage, sales commission, or payment,' including cash, of any kind?” According to Frederick, he did not understand that he should have indicated that he received money even though he did not generate a profit. Further, he testified that during his deposition, he stated that he understood the penalty for providing false information on the forms because he “didn’t think ■ [he] was doing anything wrong on the side of the road selling watermelons.”

Given the circumstances; the workers’ compensation judge’s finding that Frederick did not willfully make false statements or representations for the purpose of obtaining workers’ compensation benefits was not manifestly erroneous. It is clear from the record that Frederick, who did not graduate from high school, did not fully understand and/or was not aware of what kinds of activity were prohibited under the statute. Frederick testified that he thought he was complying with the light duty restriction, did not consider himself self-employed, and did not believe that he needed to report any income because he came “out in the hole.” Given this testimony, we find no manifest error in the workers’ compensation judge’s conclusion that there was no violation of La.R.S. 23:1208. See Herrera v. Cajun Co., 06-1627, pp. 13-14 (La.App. 4 Cir. 6/6/07), 960 So.2d 1161, 1169 (wherein the fourth circuit noted that after observing the elaim-ant’s demeanor and testimony, the workers’ compensation judge found that his “misstatements were not intentional and were the result of his |slimited ability to read relevant documents and to understand his situation.” Thus, the court concluded that the claimant’s inadvertent statements did “not support imposition of the harsh remedy provided by the anti-fraud statute.”)

This assignment is without merit.

Video Surveillance

PAI contends that the workers’ compensation judge erred in allowing Frederick to invoke his right against self-incrimination when it sought to introduce into evidence a videotape of him selling watermelons. According to PAI, the workers’ compensation judge “committed an .error in not allowing the claimant to view the video before any questions were raised.” It asserts that “[h]ad the claimant had an opportunity to view the video, he could have identified himself, thus making the video authenticated.” PAI points out that Frederick had already admitted to engaging in this activity.

During the cross-examination of Frederick, counsel for PAI stated that, “I want to show the defendant [sic] something right quick, which is the video surveillance we have all gone over and we have all seen before, and I will just ask him simply to identify the man in the video.” The following exchange then occurred:

MR. JACQUES [Frederick’s attorney]:
I don’t know what video that is, Your Honor.
MR. GILL [PAI’s attorney]:
It’s the same one I have provided you. MR. JACQUES:
Who is going to identify it?
(MR. GILL)
Q. Mr. Frederick, I’m playing this for you.
RMR. JACQUES:
Objection, Your Honor.
THE COURT:
Stand at ease for a moment. Let’s take a brief recess. (A discussion was held off the record).
THE COURT:
Gentlemen, I think we took a recess at the objection of the video surveillance testimony. Did you gentlemen need to put further objections on the record? MR. JACQUES:
Your Honor, I’m going to object for no foundation, and that would be self-incriminating. This is a fraud case.
THE COURT:
Would you like to respond, Mr. Gill? MR. GILL:
Your Honor, you know, the claimant has already made an admission to doing that on the record. I can show him a video, could be of anybody, and he can identify if that individual in the video is him or somebody else; and I would think that that would make the video admissible if he identified it as being a person in this courtroom today.
THE COURT:
Well, to get him to authenticate the video, that is improper and, further, it is a violation of his fifth amendment rights, to which Mr. Jacques has objected. And I do not believe the video surveillance is currently in evidence; therefore, I am going to sustain the objection.

After reviewing the record, we find that the workers’ compensation judge did not abuse her discretion in refusing to require Frederick to view the videotape. Medine v. Roniger, 03-3436 (La.7/2/04), 879 So.2d 706. We note that there is no indication that Frederick was familiar with the recording of the videotape, the date on which it was taped, and/or the location of the recording. Also, Frederick had already admitted to selling the melons. Therefore, this assignment has no merit.

_J¿¡¡Penalties

PAI asserts that Frederick “was admittedly working selling watermelons for money while receiving workers’ compensation.” Thus, it argues that it “reasonably controverted the claimant’s injury, and in an effort to err on the side of caution, only terminated medical benefits related to the claimant. An award of ... penalties is wholly inappropriate given the nature of the circumstances surrounding the case.”

Louisiana Revised Statutes 23:1201(E) states that “[mjedical benefits ... shall be paid within sixty days after the employer or insurer receives written notice thereof.” Louisiana Revised Statutes 23:1201(F) provides in pertinent part:

Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

If medical treatment is not authorized within sixty days, the sanctions of La.R.S. 23:1201(F) will be applied. Lambert v. Brookshire Grocery Co., 06-1001 (La.App. 3 Cir. 12/20/06), 945 So.2d 918. This court has explained that:

To avoid the imposition of penalties and attorney fees, the employer and its insurer must provide factual and medical evidence to ^reasonably controvert a workers’ compensation claim. Whether or not the employer is cast with attorney fees and penalties is a question of fact that will not be reversed on appeal absent manifest error. Id. at 927. (citations omitted).

In her reasons for ruling, the workers’ compensation judge remarked:

Based on the evidence presented, [this] court finds that the claimant is entitled to penalties in the amount of $4,000 for the defendant’s failure to authorize medical treatment as well as for defendant’s failure to reasonably] controvert the request for surgery. Defendant’s own doctor, Dr. James Perry, concurred in the need for surgery.
Claimant is further entitled to attorney’s fees for defendant’s arbitrary and capricious handling of this claim. Attorney’s fees are owed in the amount of $7,000. Defendants [sic] shall pay all costs of these proceedings, including interest.

Medical Treatment with Dr. Gunderson and Dr. Lopez

After reviewing the record, we find that it supports the workers’ compensation judge’s imposition of a $2,000.00 penalty for PAI’s failure to authorize medical treatment with Dr. Gunderson, Frederick’s choice of orthopedic surgeon, and Dr. Frank Lopez, his choice of pain-management physician. According to a letter dated November 10, 2004, Frederick’s attorney requested that PAI authorize visits with both physicians. However, the parties’ stipulations demonstrate that Frederick’s treatment with Dr. Gunderson was not authorized until March 4, 2005. Nevertheless, Dr. Gunderson was notified that no further treatment would be authorized following Frederick’s November 15, 2005 appointment. As for Dr. Lopez, Frederick was not able to visit him until October 24, 2005.

With regard to Dr. Gunderson’s recommended course of treatment, the stipulations state that:

112On March 24, 2005 Dr. Clark A. Gunderson requested authorization for a cervical discogram at C 3-4 and C 4-5 [, which] was denied pending a second medical opinion with Dr. James Perry, initially scheduled for July 11, 2005 and re-scheduled by the claimant for August 8, 2005. The discogram was approved on September 12, 2005 for River Oaks Imaging in Houston, Texas.

The record clearly reflects that PAI did not timely consent to Frederick’s request to be seen by his choice of treating physi-dans. Nor did it timely authorize the discogram. Insofar as PAI did not reasonably controvert Frederick’s claim, we find that the workers’ compensation judge’s imposition of a penalty pursuant to La.R.S. 23:1201(F) was not manifestly erroneous.

This assignment is without merit.

Surgery

The record indicates that on October 25, 2005, Dr. Gunderson requested authorization for an anterior cervical fusion at the C3-4 and C4-5 levels. The parties stipulated that: “Authorization was denied on October 26, pending Dr. Perry’s opinion. On November 15, 2005 Dr. Clark A. Gunderson received further notification that surgery was denied[.]” On March 27, 2006, Dr. Perry agreed with Dr. Gun-derson’s recommendation; however, the surgery still was not authorized.

On April 4, 2006, Frederick’s attorney sent a letter to PAI’s attorney requesting that the adjuster handling Frederick’s claim approve the surgery. Two subsequent demand letters were sent to PAI. By correspondence sent to Frederick’s attorney on April 13, 2006, PAI denied authorization “until the conclusion of the trial on this matter.” This position was reiterated in correspondence dated April 26, 2006, in |1swhich PAI stated, “our client will not be approving and/or paying for Mr. Frederick’s surgical procedure until all legal remedies have been exhausted and a final judgment adverse to my client has been rendered.” Nevertheless, Frederick once again sought approval in September 2006, one month prior to the hearing on this matter.

Insofar as Frederick repeatedly requested approval for the anterior cervical fusion, which PAI denied without possessing any medical evidence that surgery was not necessary, we conclude that the $2,000.00 penalty imposed by the workers’ compensation judge was not manifestly erroneous. See Vincent v. Napa Auto Parts & Supply, 03-295 (La.App. 3 Cir. 6/23/04), 879 So.2d 301, unit denied, 04-1845 (La.10/29/04), 885 So.2d 591 (wherein this court awarded penalties for the employer’s failure to timely authorize the employee’s discogram, even after the initial request was corroborated by the employer’s physician of choice).

Accordingly, this assignment has no merit.

Attorney Fees

PAI contends that the workers’ compensation judge erred in awarding attorney fees insofar as it reasonably controverted Frederick’s claim.

In Lambert, 945 So.2d at 933, this court stated:

Louisiana Revised Statutes 23:1201(F) allows an award of attorney’s fees when the employer fails to timely pay medical expenses and/or authorize treatment. Although there is no limitation on the amount of attorney’s fees which may be awarded, the award must be reasonable, and it will not be overturned absent manifest error. Alexander [v. Autozone, Inc., 04-871 (La.App. 3 Cir. 12/8/04) ], 889 So.2d 366. The reasonableness of an award of attorney’s fees is determined from “the degree of skill and ability exercised, the amount of the claim, and the amount recovered for the plaintiff, and the amount of time devoted to the case.” Id. at 378 (quoting Semere v. Our Lady of Lourdes Hosp., 03-1702, p. 14 (La.App. 3 Cir. 6/29/04), 875 So.2d 1048, 1057.)

| |4Because PAI did not timely authorize treatment, an award of attorney fees is proper under La.R.S. 23:1201(F). Further, the fee is reasonable in light of our view of the record. Accordingly, we find that the workers’ compensation judge did not abuse her discretion in awarding $7,000.00 in attorney fees. Jackson v. Christus Health Cent. La., 05-983 (La.App. 3 Gir. 2/1/06), 922 So.2d 748. This assignment has no merit.

Answer to Appeal

Frederick answered the appeal seeking additional attorney fees for work performed on appeal. Accordingly, we award $2,500.00 for work on this appeal.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is affirmed. Additional attorney fees for work performed on appeal in the amount of $2,500.00 are awarded to Frederick. All costs of this appeal are assessed against the defendant, Port Aggregates, Inc.

AFFIRMED. ADDITIONAL ATTORNEY ..FEES AWARDED FOR WORK PERFORMED ON APPEAL.

      . Frederick testified that he failed three times before he quit school in the tenth grade. He stated that, "I don’t read too well and some words, I don’t understand what they are....”

      . We note that PAI did not proffer the excluded evidence.

      . The evidence shows that Frederick’s attorney sent demand letters dated April 11, 2005 and July 29, 2005 for the approval of the discogram.

      . According to a notation in Dr. Gunderson’s records, surgery was denied on November 14, 2005.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE of Louisiana v. Timothy D. PERKINS.
    No. 07-0423.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      John F. DeRosier, District Attorney, Sharon D. Wilson, Assistant District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Timothy D. Perkins.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   PETERS, J.

hA jury convicted the defendant, Timothy D. Perkins, of the offense of attempted distribution of cocaine, a violation of La. R.S. 14:27 and La.R.S. 40:967(A)(1). Thereafter, the trial court sentenced the defendant to serve twenty years at hard labor, with the first year of the sentence to be served without the benefit of probation, parole, or suspension of sentence. He now appeals his conviction and sentence, asserting six assignments of error. For the following reasons, we affirm the defendant’s conviction in all respects, but decline to consider the issues related to the defendant’s sentence, finding that those issues are not properly before us.

DISCUSSION OF THE RECORD

The incident giving rise to the conviction now before this court occurred on February 16, 2005, when Jennifer Guidry, a Cal-casieu Parish resident, telephoned the defendant and requested that he assist her in obtaining some cocaine. After exchanging a number of telephone calls, Ms. Guidry and the defendant agreed that she would pick him up at his residence and the two of them would contact his supplier and retrieve the cocaine for her. What the defendant did not know is that Ms. Guidry was working undercover for the Louisiana State Police when she initiated the contact with him.

Ms. Guidry testified at trial as did Chris Gray, Christopher Ivey, and Steven La-fargue, three Louisiana State Police officers who participated in the investigation. The facts established by these witnesses are that Ms. Guidry approached the Louisiana State Police in early 2005, and offered to share her information concerning illegal narcotics trafficking with that agency in a last-ditch effort to break her own dependency on narcotics. Part of the information she shared with the State Police related to the defendant’s involvement in illegal narcotics activity. After taking steps 1 gto verify information Ms. Guidry provided to the agency, the officers working regional narcotics investigations solicited her assistance in effecting a purchase of illegal narcotics from the defendant. After she agreed to help in their investigation of the defendant, the State Police installed a tracking devise as well as video/audio surveillance equipment in Ms. Guidry’s vehicle.

When she telephoned the defendant on February 16, 2005, Ms. Guidry was in the presence of three State Police officers who monitored the calls. Before she left to pick up the defendant, the officers searched her person and her vehicle for contraband, money, or weapons. Finding none, they provided her with $150.00 for the proposed purchase and allowed her to travel to the defendant’s residence. During the trip leading up to the purchase, Ms. Guidry and the defendant were under constant visual surveillance by at least one of the three officers, and their conversations were constantly monitored by use of the audio surveillance equipment.

The video camera installed in Ms. Gui-dry’s vehicle recorded a. man approach Ms. Guidry’s vehicle and hand the defendant two small bags in exchange for some money. The defendant then provided one of the small bags to Ms. Guidry in exchange for the agreed price of $150.00. Ms. Guidry then dropped the defendant off at his residence, met the officers at a predetermined location, and gave them the bag she had obtained from the defendant. Although the officers had kept Ms. Guidry under constant surveillance,'they again searched her and her vehicle, finding no contraband, money, or weapons. Later scientific testing of the contents of the bag Ms. Guidry gave the officers established that it contained cocaine.

On April 5, 2005, the state charged the defendant by bill of information with distribution of cocaine, a violation of La.R.S. 40:967(A)(1). A three-day trial began |son September 6, 2006, and, after completion of the evidentiary phase of the trial, the jury returned a verdict finding the defendant guilty of the lesser and included offense of attempted distribution of cocaine. The trial court rejected the defendant’s November 21, 2006 motion for new trial after a January 5, 2007 hearing. On that same day, and immediately after ruling on the defendant’s motion for new trial, the trial court sentenced the defendant. Thereafter, the defendant filed the appeal now before us. In this appeal, his attorney has asserted three assignments of error:

1. The evidence was insufficient to convict the Mr. Perkins [the defendant] of attempted distribution of cocaine.
2. The Trial Court erred in its denial of the motion for new trial.
3. The sentence of 20 years at hard labor was excessive in light of the facts of the case.

Additionally, the defendant has asserted three pro se assignments of error:

1. Did perjured testimony by the State’s witness effect [sic] the outcome of Defendant’s trial?
2. Was entrapment used by law enforcement?
3. Was Defendant’s due process violated?

OPINION

Assignment of Error No. 1 and Pro Se Assignment of Error No. 1

In the first assignment of error asserted by his attorney, the defendant argues that the evidence presented by the state is insufficient to support his conviction of attempted distribution of cocaine. It is well established in our law that when a defendant raises the issue of sufficiency of evidence on appeal, the reviewing court must review the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found all of the critical elements of the |4offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also State v. Ordodi, 06-207, (La.11/29/06), 946 So.2d 654.

It is unlawful for any person to knowingly or intentionally distribute cocaine, which is classified as a controlled dangerous substance. La.R.S. 40:967(A)(1); La.R.S. 40:964. “A defendant is guilty of distribution of cocaine when he transfers possession or control of cocaine to his intended recipients.” State v. Anderson, 29,282, p. 3 (La.App. 2 Cir. 6/18/97), 697 So.2d 651, 655. To establish the offense of distribution of a controlled dangerous substance, the state’s burden is to establish beyond a reasonable doubt “(1) ‘delivery’ or ‘physical transfer;’ (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance.” Id.

It is also unlawful for any person who has a specific intent to commit distribution of a controlled dangerous substance to do or omit an act with the purpose of accomplishing the commission of that offense, i.e., to attempt to commit that offense. La.R.S. 14:27(A). Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). Furthermore, “[a]n attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.” La.R.S. 14:27(C).

The defendant does not seriously argue that the state failed to establish physical transfer or guilty knowledge, or that the substance transferred was not a controlled dangerous substance. Instead, he asserts that he intended that he and Ms. Guidry Iswould consume the cocaine together. Therefore, he argues, he is not guilty of distribution, but merely of possession of cocaine. The supreme court rejected a similar argument in State v. Smith, 04-1123 (La.9/24/04), 885 So.2d 508, wherein it concluded that a defendant’s act of taking delivery of illegal narcotics, bringing the narcotics to another’s residence, and sharing the narcotics with someone at that residence sufficiently establishes the offense of distribution of a controlled dangerous substance. We find no merit in this argument as well.

The evidence establishes beyond a reasonable doubt that the defendant distributed cocaine to Ms. Guidry. The jury chose to return a responsive verdict which is clearly provided for in La.R.S. 14:27(C). Such a compromise verdict is permissible “so long as the evidence supports either the verdict given or the original charge.” State v. Charles, 00-1611, p. 5 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519, writ denied, 01-1554 (La.4/19/02), 813 So.2d 420 (citing State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983)).

In the first assignment of error asserted by his attorney, the defendant also attacks Ms. Guidry’s credibility, and the defendant does the same in his first pro se assignment of error. The defendant further asserts in his first pro se assignment of error that Chris Gray committed perjury. As pointed out in Ordodi, 946 So.2d 654, the reviewing court will not generally second-guess the determinations of the fact finder with regard to the weight given the respective credibility of the witnesses beyond that required under the Jackson standard of review. Thus, we find no merit in this issue as raised in the first assignment of error submitted through the defendant’s attorney, or as asserted in his first pro se assignment of error.

| ⅛Assignment of Error No. 2 and Pro Se Assignment of Error No. 3

In the second assignment of error filed by his attorney, the defendant asserts that the trial court erred in denying his motion for new trial. In the third pro se assignment of error, the defendant asserts that his due process rights were violated when the trial court denied his motion for new trial.

The defendant’s motion for new trial was based on La.Code Crim.P. art. 851(5), which provides that the trial court shall grant a new trial whenever “[t]he court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.” The defendant supported his motion with an affidavit executed by his attorney wherein the attorney asserted that Ms. Guidry had revealed to him that she committed perjury when testifying at the defendant’s trial. Specifically, the affidavit asserts that Ms. Guidry lied about the reasons she initially contacted the Louisiana State Police. At trial, she had testified that she contacted State Police in a last-ditch effort to address her own personal illegal narcotics problem. According to the affidavit, Ms. Guidry informed the defendant’s attorney that the State Police had actually contacted her, requesting assistance in making a criminal case against the defendant.

At the hearing on the motion for new trial, Ms. Guidry testified that the information in the affidavit was false, and that the testimony she presented at trial was true. She admitted that she had given this false statement to the defendant’s attorney, but said that she did so because she was pressured by friends and family. The trial court rejected the defendant’s motion.

|/This court has routinely held that denial of a motion for new trial to serve the ends of justice is not subject to review upon appeal. State v. Bell, 04-1183 (La.App. 3 Cir. 3/2/05), 896 So.2d 1236, writ denied, 05-828 (La.11/28/05), 916 So.2d 143; State v. Giles, 04-359 (La.App. 3 Cir. 10/6/04), 884 So.2d 1233, writ denied 04-2756 (La.3/11/05), 896 So.2d 62; State v. Jason, 01-1428 (La.App. 3 Cir. 7/10/02), 820 So.2d 1286. We choose to follow that holding and decline to review these assignments of error.

Pro Se Assignment of Error No. 2

In this second pro se assignment of error, the defendant asks whether entrapment was used by law enforcement. However, he neither asserted nor argued this affirmative defense at trial. A legal argument cannot be made for the first time on appeal. Uniform Rules-Courts of Appeal, Rule 1-3. Therefore, we decline to consider this assignment of error as it is not properly before this court.

Assignment of Error No. 3

In the third assignment of error filed by his attorney, the defendant asserts that the sentence imposed is excessive. We decline to address this assignment of error because we find that it is not properly before us.

When the state initially filed the bill of information charging the defendant with distribution of cocaine, the filing was assigned Docket Number 5949-05, and all subsequent proceedings through the January 5, 2007 hearing on the defendant’s motion for new trial were heard under this docket number. However, the defendant was not sentenced under this docket number.

After his conviction, the state filed pleadings requesting that the defendant be sentenced as an habitual offender. However, the state did not file the pleadings in | sDocket Number 5949-05, but filed the pleadings under an entirely different docket number, Docket Number 17386-06.

When the January 5, 2007 hearing began, the state made the following comment concerning the issues then before the trial court:

Your Honor, this is State of Louisiana v. Timothy D. Perkins. It is Docket No. 5949-05. Under that docket number, this defendant was found guilty of attempted distribution of cocaine.
[The defendant’s attorney] filed a motion for new trial which was set for today. Also, he is set for sentencing. And the State also filed under Docket No. 17386-06 a habitual offender bill.

After hearing the argument and evidence addressing the motion for new trial, the trial court rejected the motion. When the trial court inquired of the state concerning the next matter to be considered, the assistant district attorney responded that “[u]nder Docket No. 17386-06,” the state had charged the defendant with being an habitual offender and requested that the trial court proceed with his sentencing “Only as it relates to habitual offender second and the offense of distribution of cocaine.” When the trial court asked the defendant’s attorney if he had any response, the attorney responded “No, Judge.” The trial court then sentenced the defendant as an habitual offender.

On January 17, 2007, the defendant filed a document entitled “Motion for Appeal and Designation of Record.” It referenced only Docket Number 5949-05 and stated the following:

NOW INTO COURT comes defendant herein, through undersigned counsel and on suggesting to the Court that the record herein shows error to his prejudice and that he is desirous to appeal to the Third Circuit Court of Appeal of the State of Louisiana and that the Louisiana Appellate Project [Paula Marx, Regional Supervisor, P.O. Box 80006, Lafayette, LA 70598-0006] be appointed to appeal this case, pursuant to R.S. 15:150.
J^FURTHER, PURSUANT TO C.Cr.P.,[sic]Art. 914.1(A), the defendant respectfully Designates the entire transcript of each hearing herein and all of the pleadings for inclusion in the appellate record.

On that same day, the trial court executed an order prepared by the defendant’s attorney granting the defendant’s appeal and setting a return date. This order referenced only Docket Number 5940-05. The Notice of Appeal filed in this court referenced only Docket Number 5940-05. We find no motion, oral or written, that references Docket Number 17386-06.

Louisiana Code of Criminal Procedure Article 911 provides that “[a]ppeal is the exercise of the right of the state or the defendant to have a judgment or ruling reviewed by the proper appellate court.” However, “[t]he jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal.” La.Code Crim.P. art. 916. Thus, in this matter, jurisdiction of this court has only attached to the proceedings in Docket Number 5940-05. Because jurisdiction in Docket Number 17386-06 is still vested in the trial court, and because all sentencing issues are found in that docket number, this court has no jurisdiction to consider those issues. See State v. Felix, 05-637 (La.App. 3 Cir. 12/30/05), 918 So.2d 577, writ denied, 06-1137 (La.11/22/06), 942 So.2d 548.

DISPOSITION

We affirm the defendant’s conviction in all respects. We decline consideration of issues involving the excessiveness of the defendant’s sentence, finding that the trial court has not been divested of jurisdiction as to those issues.

CONVICTION AFFIRMED; SENTENCE NOT CONSIDERED.


author: BROWN, C.J.

text:
    Luzon JOINER, Plaintiff-Appellant v. Robert S. ABERCROMBIE and Brenda Kay Hobson Abercrombie, Defendants-Appellees.
    No. 42,638-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 2007.
    Rehearing Denied Nov. 29, 2007.

      Kenneth L. Harper, for Appellant.
    Donald L. Kneipp, Monroe, for Appel-lees, Bruce E. Hampton.
    Before BROWN, GASKINS, and DREW, JJ.
   BROWN, C.J.

hOn February 18, 2004, plaintiff, Luzon Joiner, an elderly World War II veteran, sold a 198-acre tract of land located on Highway 33 in Union Parish to defendants, Robert S. Abercrombie and Brenda Kay Hobson Abercrombie, for $110,000. Robert Abercrombie, a timber buyer and manager, had bought and cut timber on this tract from Joiner in the past. The deed was drafted and notarized by attorney Bruce Hampton. Within one month of the sale, on March 17, 2004, defendants transferred the property by an exchange deed to Pinoak Investments, LLC, which developed and sold the property as a residential area. Attorney Hampton, one of the owners of Pinoak, signed the exchange deed as the duly authorized manager of Pinoak. Exactly what Pinoak paid for the property is at issue in this action for damages. Plaintiff alleges lesion beyond moiety, contending that the sale price of his transfer to the Abercrombies was less than one-half of the value of the property. The trial court found that plaintiff did not prove lesion and dismissed his lawsuit. We reverse and render judgment in favor of plaintiff.

Discussion

Lesion beyond moiety is a sale of a corporeal immovable for which the buyer paid less than one-half of its fair market value. Lesion can be claimed only by the seller. La. C.C. art 2589. Fair market value is defined as the amount a willing and informed buyer would pay a willing and informed seller for a particular piece of property, with neither being under any compulsion to buy or sell. Cook v. Mixon, 29,491 (La.App.2d Cir.08/22/97), 700 So.2d 1264, writ denied, 97-2443 (La.01/09/98), 705 So.2d 1101; Mullins v. Page, 457 So.2d 64 (La.App. 2d Cir.1984), unit denied, 459 So.2d 538 (La.1984). The immovable sold must be evaluated according to the state in which it was at the time of the sale. La. C.C. art. 2590.

When the sale price is lesionary, the buyer may elect to either return the immovable to the seller or keep the property and pay the seller a supplement equal to the difference between the price paid and the fair market value. La. C. C. art. 2591. However, when the buyer has sold the immovable, the seller may not bring an action in lesion against a third person. In such a case, the seller may recover whatever profit the buyer realized from the sale, not to exceed the supplement the seller would have received had the buyer kept the property. La. C.C. art. 2594. The seller carries the burden of proving lesion. Mullins, supra; Caillouet v. Zwei Bruderland, 99-590 (La.App. 3d Cir.11/03/99), 746 So.2d 752. The trial court’s determination of fair market value is a finding of fact and is reviewed on appeal under the manifest error standard. Id.

Attorney Client Privilege

In In re Eddie Douglas, 06-0630 (La.11/29/06), 943 So.2d 341, the supreme court recognized the potential for confusion when an attorney wears a multitude of hats.

In this case, Buree Hampton drafted the deed transferring the property from plaintiff to the Abercrombies. He also handled the closing with the bank that loaned the money to the Abercrombies for the purchase. Thereafter, Pinoak, an LLC, which was owned by Attorney Hampton and | a Joel Kent Antley, bought the property from the Abercrombies. Hampton acted as manager of the LLC which immediately developed the property for residential use and had successfully sold all of the lots by the time this case went to trial.

The trial court ruled in a pre-trial motion to compel that there was an attorney-client relationship between the Abercrom-bies and Bruce Hampton and that their discussions concerning these transactions were privileged.

Rules of Professional Conduct Rule 1.8 provides:

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Obviously, an attorney-client relationship existed between Hampton and the Abercrombies when they purchased the property and borrowed the purchase price from the bank. If Hampton was representing the Abercrombies when Hampton purchased the property for Pinoak, then he may have been in violation of the rules of professional conduct. The record does not disclose if Hampton complied with the requirements of Rule 1.8. It is our belief that Hampton was wearing another hat when he purchased the |4property for Pin-oak and acting as a land developer. Therefore, the trial court was in error in denying Joiner the right to examine Hampton about the details of the transaction and in particular, the structuring of the purchase price between the LLC and the Abercrombies.

The Purchase Price

This lesion case arises from the sale of 198 acres on Highway 33 between Farmer-ville and Ruston, by plaintiff, Luzon Joiner, to defendants, Robert and Brenda Abercrombie. Robert Abercrombie had bought and cut the timber on this tract and had the trust of Joiner. The Aber-crombies, without obtaining an appraisal, purchased the land for $110,000 on February 18, 2004.

Approximately one month after purchasing the property from Joiner, the Aber-crombies sold the land to Pinoak Investment, LLC. The purchase price paid by Pinoak is in conflict. The Abercrombies contend that they sold the property to Pinoak for $155,000 cash and the exchange of a 22-acre tract of property worth $55,000. Thus, the price was $210,000 and not lesionary.

This price, however, does not include the $90,000 timber management agreement that Robert Abercrombie entered into with Pinoak. The $90,000 was considered an advance, and it bound Robert Abercrombie to provide timber management services to Pinoak for either 35 years or until Pinoak ceased to own the subject property, whichever occurred first.

Three things cause this court to seriously question the propriety and actual purpose of the timber management agreement. First, Larry Culp | ¡¡testified that he offered the Abercrombies $300,000 for the entire tract, but that Robert Abercrombie informed him that he was selling it to Bruce Hampton for more. Second, Robert Abercrombie testified that he has been in the timber business for 12 years and, as far as he knows, he has never heard of or seen anyone getting paid in advance for timber management services. Finally, Pinoak immediately started developing and selling the subject property as residential, with all of the lots being sold before the case went to trial. Once all of the property was sold, Robert Abercrombie’s agreement to manage the timber terminated. In fact, the “timber management” agreement terminated without Abercrombie ever going onto the property or performing any service after he sold it to Pinoak.

It is clear that the timber management agreement was a sham, designed to conceal the true purchase price received by the Abercrombies, which was $300,000. We again note that the trial court disallowed Joiner’s attorney’s attempts to question Bruce Hampton or the Abercrombies about their dealings on the Pinoak purchase. This was error.

Fair Market Value

At trial Robert Horton and William Maxwell testified as experts in the area of real estate appraisal and valuation, respectively. Horton valued the property at $237,500 as of February 2004, and Maxwell valued the property at $2,500 per acre. However, John Messina, an expert in real estate appraisal testifying by oral deposition for the defense, determined that the fair market value of the property was $134,000.

| f;Testifying by oral deposition, Joel Kent Antley was tendered by plaintiff as an expert in real estate valuation. Defendants, however, objected to his being accepted as an expert and the trial court never ruled on the objection. Antley testified that he believed that the property was worth $300,000 because that was what he thought Pinoak, in which he and Bruce Hampton were partners, paid for the tract of land.

The Abercrombies contend that Joiner failed to prove the fair market value of the property through clear and convincing evidence. Moreover, the Abercrombies assert that Joiner’s, as well as his experts’, valuations of the property were speculative, as they were based on the property being classified as residential and not cut-over timberland. To support this assertion, the Abercrombies cite Valley Land Corp. v. Fielder, 242 So.2d 358 (La.App. 2d Cir.1971), in which this court found that in lesion cases, evaluations may not be based on conjecture, possibility or speculation.

In Valley Land Corp., supra, the plaintiffs experts concluded that the highest and best use of the property in question was for the development of a residential subdivision. While noting that the highest and best use of property may be considered, along with other evidence of value, to show the value of the property at the time of the sale, this court found that to evaluate that particular piece of property as a residential subdivision would be indulging in speculation. Id.

Based upon our finding in Valley Land Corp., supra, the Abercrombies argue that for this court to value the property based upon its highest and best use, i.e. residential, would require us to indulge in ^speculation. We, however, do not agree with this argument as the property currently at issue and the property at issue in Valley Land Corp., supra, are different. In Valley Land Corp., this court found that the disputed land was “not suitable for a subdivision” and that “there were no residential areas within miles.” The property in the instant action, however, is located in an area with rapid residential growth, is propitiously situated between Ruston and Farmerville, and has a large amount of road frontage. Furthermore, three out of four experts testified that the highest and best use of the property was residential.

In an attempt to invalidate the experts’ conclusion that the highest and best use of the property was residential, the Aber-crombies posit that at the time of the sale the property was cutover timberland and that Joiner had no intentions of using the property for residential purposes. Thus, the Abercrombies conclude, to value the property based on the possibility that it could be used as residential is speculative and does not show the value of the property in the condition it was in at the time of the sale.

After reviewing the jurisprudence, we find that there is no rule of law restricting the application of the highest and best use, when determining fair | ^market value in a suit for lesion, to the actual use of the property at the time of the sale. This court previously stated in Mullins, supra at 72:

[T]he plaintiff in a lesion suit may present proof of the highest and best use of the property rather than solely the actual use of the property at the time of the sale. Such proof may be considered along with all the other evidence of property value provided that it tends to show the value of the property at the time of the sale.

See also Nation v. Wilmore, 525 So.2d 1269 (La.App. 3d Cir.1988).

We find that the trial court’s reliance solely on the appraisal of the one expert who evaluated the property as cut-over timberland without considering the testimony of the three experts who concurred that, inasmuch as the property in question was ideally located and in an area with a burgeoning residential market, its highest and best use was residential was clear error. Further, within a month of the sale, the land was bought and developed as residential property.

Having found that the property should have been evaluated as residential, we must now determine the fair market value of the property at the time Joiner sold it to the Abercrombies. As we have found, within one month of the sale from petitioner to the Abercrombies the property was sold for $300,000 for residential development. Larry Culp testified that the Aber-crombies were asking $300,000 before they purchased the property and that he offered $300,000 for the property. This price is supported by the valuations determined by the three experts who considered the property as residential rather than cutover timber.

Louisiana Civil Code art. 2594 states: IflWhen the buyer has sold, the immovable, the seller may not bring an action for lesion against a third person who bought the immovable from the original buyer.
In such a case the seller may recover from the original buyer whatever profit the latter realized from the sale to the third person. That recovery may not exceed the supplement the seller would have recovered if the original buyer had chosen to keep the immovable.

Finding the fair market value to be $300,000 and that the profit realized by the Abercrombies was $190,000, we find that Joiner is entitled to damages in the amount of $190,000.

Conclusion

For the foregoing reasons, the judgment of the trial court dismissing Luzon Joiner’s petition for lesion is hereby reversed and judgment is rendered in favor of plaintiff in the amount of $190,000, together with interest from the date of judicial demand. Costs are assessed to defendants, Robert and Brenda Abercrombie.

APPLICATION FOR REHEARING

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

Rehearing denied.

MOORE, J., would grant rehearing.

      . The property has road frontage along Willard Hill Road and Highway 33, which runs through a portion of the property in such a way that the property has road frontage on both sides of Highway 33. Due to the large amounts of road frontage, the property was considered ideal for a residential development.

      . One of the "experts,” Joel Kent Antley, testified by oral deposition and was tendered as an expert in the area of real estate valuation by the plaintiff but was objected to by defendants. A review of the record does not reflect whether the trial court accepted Antley as an expert. It should also be noted that Antley was Bruce Hampton’s partner in Pinoak. Furthermore, one of the other experts, Robert Horton, was hired by Bruce Hampton to appraise the property prior to Pinoak purchasing the property from the Abercrombies. Both Antley and Horton, along with Maxwell, considered the highest and best use of the property to be residential.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Bobby Lee BOOKER, Appellant.
    No. 42,596-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 2007.

      Sherry Watters, New Orleans, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Brady O’Callahan, Dhu Thompson, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

hA jury found Bobby Lee Booker guilty as charged of cruelty to the infirmed in violation of La. R.S. 14:93.3. He was sentenced to three years at hard labor and now appeals his conviction and sentence. We affirm.

Facts

In August of 2006, Zenobia Bryant, a retired 95-year-old school teacher, shared her Shreveport home with Booker. Ms. Bryant had “adopted” Booker’s mother, who died when he was less than a year old. Ms. Bryant was in her late 70’s when she began rearing Booker and referred to him as her grandson.

In the days preceding August 8, 2006, Ms. Bryant was hospitalized for dehydration. She had no other relatives in the area and returned to her home with Booker. Her physician arranged home health care for follow-up treatment. On August 7, 2006, home health care nurses attempted to begin treating Ms. Bryant. No one answered her door. On August 8, 2006, at approximately 3:30 p.m., home health care nurses once again attempted to visit but could not gain entrance into the home.

Upon hearing a faint female voice from inside the home, the home health care nurse contacted Ms. Bryant’s physician’s office. The physician’s certified medical assistant, who had befriended Ms. Bryant and helped her in the past, came to the home in an attempt to get Ms. Bryant to answer the door. When she did not, police and firefighters were dispatched to the scene. Ms. Bryant was discovered unable to get up from her couch, sitting nude in her own waste with roaches crawling on her. She appeared | ¡.to be incoherent but said she was thirsty and asked for water. She was transported to a hospital and diagnosed with dehydration and malnutrition.

At trial, photographs of the horrible conditions of the home were introduced into evidence. The state also presented the testimony of Shreveport firemen and police who responded and gained entrance into Ms. Bryant’s home. The first responders described a home in deplorable condition. They encountered a strong foul smell and a home filled with trash, dirty dishes and clothes strewn around the house. They observed no sheets on the beds and found no fresh food in the house. The room where Ms. Bryant was located had no air conditioning and areas where floorboards were missing created holes in the floor through which small animals could enter and exposed the ground beneath the house. The photographs corroborated this testimony.

During these events, 18-year-old Booker returned home. In a statement to police at the scene, Booker acknowledged that he was the caregiver for his grandmother, he handled all of the bills and was the only person living with Ms. Bryant. He further stated that he and his grandmother had no other family in Shreveport. After his arrest, Booker gave a recorded statement to police and admitted that he paid the bills with Ms. Bryant’s money. He asserted that he was doing the best he could and admitted that he needed some help taking care of his grandmother.

Booker was charged by bill of information with cruelty to the infirmed, in violation of La. R.S. 14:93.3. A six-person jury returned a unanimous verdict finding the defendant guilty as charged. Booker’s | amotion for -new trial was denied. The trial court found that Booker would be best served by a three-year hard labor sentence and recommended the intensive incarceration program (“IMPACT Program”), also known as boot camp. The defendant was given credit for time served. No motion to reconsider sentence was filed on the defendant’s behalf. This appeal followed.

Discussion

In his first assignment of error, Booker argues that the evidence was insufficient to support his conviction. Booker argues that the state failed to prove that he assumed any responsibility for caring for his grandmother, or that he was capable of doing so. He further contends that the state failed to prove that he committed criminally negligent mistreatment or neglect, or that his actions or inactions caused his grandmother any unjustifiable pain, malnourishment or suffering. Rather, Booker contends that the evidence was sufficient to prove only that she was thirsty and possibly “uncomfortable.” Booker also argues that the state failed to prove that his remaining jn the house where he was reared and with the person who reared him, without any break in the continuity or clear reversal of roles, constituted “assuming voluntary residence,” which is another factor used in determining whether a person is a “caregiver” under the statute. Booker concludes that, at most, he committed misdemeanor negligent injury out of ignorance.

Although the record does not reflect that defendant filed a motion for post verdict judgment of acquittal pursuant to La.C.Cr.P. art. 821, this court |4will consider sufficiency arguments in the absence of such a motion. State v. Henson, 38,820 (La.App.2d Cir.9/22/04), 882 So.2d 670; State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

When issues are raised on appeal both as to the sufficiency of the evidence and one or more trial errors, the reviewing court first reviews the sufficiency claim. This is because the defendant may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if the evidence is constitutionally insufficient. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). This standard was legislatively adopted in La.C.Cr.P. art. 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983). 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 defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir 9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. It is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Lee, 32,272 (La.App.2d Cir.8/18/99), 742 So.2d 651, unit denied, 99-2730 (La.3/17/00), 756 So.2d 326; State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), unit denied, 617 So.2d 905 (La.1993).

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Barakat, 38,419 (La.App.2d Cir.6/23/04), 877 So.2d 223; State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. To convict a defendant based upon circumstantial evidence, it must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Barakat, supra.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, unit denied, 02-3090 (La.11/14/03), 858 So.2d 422.

La. R.S. 14:93.3 provides in pertinent part:

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

La. R.S. 14:12 defines criminal negligence as follows:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

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

Here, the word neglect is preceded by “or” and indicates that the “criminally negligent” qualifying words apply to neglect as well as mistreatment.

The court then reviewed the definition of criminal negligence set forth in La. R.S. 14:12.

Criminal negligence requires a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. It calls for substantially more than the ordinary lack of care which may be the basis of tort liability, and furnishes a more explicit statement of that lack of care which has been variously characterized in |7criminal statutes as “gross negligence” and “recklessness.” State v. Brenner, supra. Or, as stated by this court in State v. Baker, 41,325 (La.App.2d Cir.11/1/06), 942 So.2d 677, ordinary negligence does not equate to criminal negligence; thus, the state is required to show more than mere deviation from the standard of ordinary care to prove criminal negligence. State v. Beason, 26,725 (La.App.2d Cir.4/7/95), 653 So.2d 1274, unit denied, 95-1388 (La.10/27/95), 661 So.2d 1359; State v. Wilcoxon, 26,126 (La.App.2d Cir.6/22/94), 639 So.2d 385, writ denied, 94-1961 (La.12/16/94), 648 So.2d 386.

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

Unjustifiable is a term of limitation intended to distinguish that pain and suffering which is an inevitable consequence of care and treatment from that which is not justified by medical needs.

When we review the definition of this crime, our Supreme Court in State v. Brenner, supra, reminds us that “criminally negligent neglect is punishable.” Id. at 105. Although actual mistreatment by an affirmative act against the elderly victim is proscribed, “criminally negligent ... neglect” for one’s failure to act is also punished. In this connection, the crime’s definition also addresses this 18-year-old defendant’s duty to act. He was a caregiver because he was an adult relative who had “assumed voluntary residence with the aged or infirmed person.” He may have also “assumed ... the care” of the victim, and failed in that duty greatly. Nevertheless, despite defendant’s arguments concerning his lack of assumption of a care duty, it is undisputed that he voluntarily resided with jsthe victim and, by that act alone, received a duty under the law. That duty is not lessened in the eyes of our law by the fact that the defendant had recently reached the age of 18 and his role with his grandmother regarding care had reversed.

Although the length of time of defendant’s neglect of the victim is unclear, the record indicates that Ms. Bryant recently came home from the hospital after being treated for dehydration. At 95 years old, she was described by her friend, the medical assistant, as suffering from “early Al-zheimers.” The record indicates that she had been home at least over two days. Defendant admitted that the victim could not walk upon her return from the hospital. The August heat of the room in which she was found made the squalor and smell unbearable to the arresting officer. There was evidence of an air conditioner in another room of the frame house where the victim was not located. The house was described by the officer as having large holes in the floor, and one of the firemen described rat bites on the victim’s feet.

Defendant testified that he had left the house early that morning and returned for two hours at noon. The state did not attempt to show that he had left the victim for any greater length of time. Nevertheless, the victim had suffered through the situation of the heat and the squalor of the unkept conditions and human waste for a lengthy period of time. The defendant, for the most part, did not offer any justification for his failure to affirmatively act. He never testified that the victim refused to eat or drink 19and that his attempts at care failed. On cross-examination, he admitted the following:

Q. So I just want to make sure I understand you. It’s your testimony that after she came back from the hospital she couldn’t go to the bathroom so you had diapers on her?
A. Yes, sir.
Q. You were living in this house with her all the time?
A. Yes, sir.
Q. And the only reason you left her there was to go apply for food stamps and pay her bills?
A. Yes, sir.
Q. And she had no air conditioning where she sat?
A. No, sir.
Q. And she was too weak to get up and get her own food and water?
A. Yes, sir.
Q. How did you live with the smell?
A. I don’t know, sir.
Q. The cops and firemen weren’t lying, right? It smelled to high heaven in there, right?
A. Yes, sir.

In considering the sufficiency of the evidence, we are mindful of Booker’s arguments and disturbed by the overall plight of poverty of the parties. Nevertheless, Booker’s assertions regarding the reach of this crime’s definition are not accurate, and when viewed in the light most favorable to the state, we find the evidence sufficient to support a conviction of cruelty to the infirmed.

|inIt is undisputed that the victim is an aged person under the provisions of La. R.S. 14:93.3 C. The evidence also supports the jury’s conclusion that Ms. Bryant endured unjustifiable pain, malnutrition or suffering caused by Booker’s criminal negligence. Her doctor testified that Ms. Bryant suffered from dehydration and malnourishment caused by the lack of food and water. He stated that the effects of malnutrition and dehydration are “uncomfortable.” The evidence showed that Ms. Bryant had been in the house and unable to answer the door for at least two days. There was no food in the home, other than a small opened can of chili, the age of which Booker could not identify. The photographs depicted no bedding on any of the beds. The officers testified that the condition of the home did not occur overnight. Upon the officers’ entry into the house, Ms. Bryant’s thirst was evident as she immediately requested water and held out an empty milk container. The firemen immediately observed the seriousness of her dehydration. Obviously, her hospital diagnosis established that she had not gotten adequate nutrition for an extended period of time.

The defendant was an adult on whom our law placed a duty of care by virtue of his choice of residency with the elderly victim. The heat and filth of his relative’s living conditions required him to act to relieve her pain and suffering. To be clear, his duty was not to end the abject poverty of their situation nor was it even to remain in the setting permanently as a caregiver. Nevertheless, having admitted his residency with the victim in the days before her rescue, he grossly neglected even the most basic duty of care that caused needless suffering of the victim and placed her in great danger. He |nwas aware of the other avenues of care that Ms. Bryant had previously received. Therefore, even if he could not adequately provide care, he could not abandon the victim to the conditions in which she was found.

The defendant’s failure to take appropriate measures while residing with his grandmother reasonably supports the jury’s determination that Booker’s conduct was a gross deviation from the standard of care. The evidence, viewed under the Jackson standard, supports the jury’s unanimous verdict.

In his second assignment of error, Booker argues that the trial court erred in refusing to give the jury every statutory responsive verdict to the crime of cruelty to the infirmed. The responsive verdicts for the that crime are set forth in La. C.Cr.P. art. 814(A)(58) as follows:

Guilty.
Guilty of attempted cruelty to the infirm.
Guilty of simple battery.
Guilty of assault.
Guilty of negligent injuring.
Not guilty.

After the presentation of evidence, and out of the presence of the jury, the state moved to exclude simple battery and assault from the responsive verdicts in this case. The state argued that it had not alleged that the defendant battered or assaulted the victim, and therefore, those responsive verdicts would be contrary to law and evidence. The trial court agreed:

The State’s motion is granted. There is no evidence in my opinion of battery. There is no evidence in my opinion of assault. My duty is to make sure that the jury charge conforms to the evidence that’s been adduced.

|12The defense entered an objection to the ruling. The responsive verdicts given in the charge to the jury and on the verdict form were:

1. Guilty as charged of cruelty to the infirmed;
2. Guilty of attempted cruelty to the infirmed;
3. Guilty of negligent injuring;
4. Not guilty.

During jury deliberations, the jury foreman sent a note to the trial court stating, “Need clear definition of possible verdicts number one and verdict number three.” The trial court reread the portions of the written jury charge regarding the verdicts of guilty as charged of cruelty to the in-firmed and guilty of negligent injuring. After further deliberation, the six-person jury rendered its unanimous verdict of guilty as charged of cruelty to the in-firmed.

On appeal, Booker argues that the trial court was required to give the responsive verdicts and by failing to do so, deprived the jury of the option of considering a compromise verdict.

La.C.Cr.P. art. 803 provides that when a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of La.C.Cr.P. art. 814, the court “shall” charge the jury as to the law applicable to each offense. Instructions on permissible verdicts prescribed by law are therefore mandatory. Failure of the trial judge to fully charge the permissible verdicts then applicable to the charge in the indictment requires a reversal of the conviction. State v. Ferguson, 358 So.2d 1214 (La.1978).

Nevertheless, the mandatory nature of these provisions is tempered by La.C.Cr.P. art. 814(C) as follows:

113[u]pon motion of the state ..., the court shall exclude a responsive verdict listed in [La.C.Cr.P. Art. 814(A) ] if, after all the evidence has been submitted, the evidence, viewed in a light most favorable to the state, is not sufficient reasonably to permit a finding of guilty of the responsive offense.

Thus, if there is no evidence reasonably supporting a verdict, then such a verdict may be excluded as a possible responsive verdict. La.C.Cr.P. art. 814(C); State v. George, 26,867 (La.App.2d Cir.4/5/95), 652 So.2d 1382, writ denied, 95-1151 (La.9/29/95), 660 So.2d 855; State v. Harris, 627 So.2d 788 (La.App. 2d Cir. 1993), writ denied, 634 So.2d 851 (La.1994).

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

The record before us clearly supports the trial court’s exclusion of battery and assault as responsive verdicts because there is no evidence reasonably supporting such verdicts. The jury here maintained the option to compromise and render one of the lesser verdicts listed, which verdicts were supported by the evidence including the misdemeanor charge of negligent injuring. It chose to convict as charged. These arguments are meritless.

In his third assigned error, Booker contends that his three-year hard labor sentence is excessive even though it is within statutory limits because of its length and because the circumstances warrant a less onerous sentencing alternative.

114Before sentencing Booker, the trial court noted his lack of prior convictions. However, the court opined that this situation was a “textbook example of an extreme case of cruelty to the infirmed” under the applicable statute, noting that the pictures of the situation in which the victim was left were absolutely deplorable. The trial court reiterated that the victim was found dehydrated, naked and sitting in her feces and urine. It observed that the defendant seemed very detached and completely without remorse “for whatever reason.” The trial court stated, “[F]urther-more, I don’t think he was living there,” finding it inconsistent with the physical evidence.

When a defendant fails to timely file a La.C.Cr.P. art. 881.1 motion to reconsider sentence, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jones, 41,449 (La.App.2d Cir.9/20/06), 940 So.2d 61; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

Even so, the record in the instant case shows 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. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. 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); State v. Hampton, 38,017 (La. App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57, 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered (were considered here even without the benefit of a pre-sentence investigation report) 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.04/22/04), 873 So.2d 747, writ denied, 04-2606 (La.06/24/05), 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, 00-1467 (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, 01-2574 (La.1/14/03), 839 So.2d 1; 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. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992).

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

For the offense, Booker faced maximum sentencing exposure of ten years with or without hard labor. La. R.S. 14:93.3. Thus, the imposed sentence is in the minimum range. In the circumstances of this matter, we cannot find the imposed sentence to be constitutionally excessive.

Further, the trial court recommended the defendant for participation in the IMPACT Program, which it felt would best meet Booker’s particular needs for discipline and training. Amelioratory factors, such as eligibility for early release alternatives, including parole, the intensive incarceration program and diminution of sentence for good behavior, may be considered in gauging excessiveness of a sentence. See State v. Green, 418 So.2d 609 (La.1982); State v. Cook, supra; State v. Laiche, 570 So.2d 168 (La.App. 5th Cir. 1990), writ denied, 576 So.2d 26 (La.1991). Ultimately, when the crime committed against this victim and Booker’s punishment are viewed in light of the harm .done to society by cruelty to the aged and in-firmed, it does not shock the sense of justice.

|17In his final assignment of error, Booker raises an ineffective assistance of counsel claim. Booker specifically argues that counsel’s performance was deficient because he failed to ask for a bill of particulars, pre-sentence investigation report or motion to reconsider sentence. Booker also urges that counsel’s performance was deficient in his failure to subpoena Ms. Bryant’s medical records, defendant’s school records and the food stamp records showing that Booker actually visited the food stamp office on August 8, 2006 and in failing to call Ms. Bryant to testify. Booker argues that counsel should have noticed Booker’s demeanor and his limited sixth grade education and requested a competency hearing and psychological evaluation and objected to police officer testimony regarding Booker’s lackadaisical attitude. Booker also asserts that counsel’s representation was deficient in failing to object to opinion testimony by a fireman regarding the source of alleged bites on Ms. Bryant’s feet. Finally, Booker claims that counsel was ineffective in allowing evidence suggesting that he was guilty of fraud and theft to be introduced into evidence.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentia-ry hearing under La.C.Cr.P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App.2d Cir.6/21/00), 764 So.2d 1164. Only when the record on its face discloses sufficient evidence to decide the issue of ineffective assistance when raised 11sby assignment of error should the issue be addressed on appeal. State v. Seiss, 428 So.2d 444 (La.1983).

From our review of these claims of ineffective assistance of counsel, we find that further investigation of these issues would be better accomplished by an evidentiary hearing on post-conviction relief. Accordingly, the claims of this assignment of error cannot be reviewed on the present record.

Conclusion

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

CONVICTION AND SENTENCE AFFIRMED.


text:
    Philip N. TAYLOR, Mrs. Geri Taylor, and Ms. Leesa McCarley Plaintiffs-Appellants v. Michael HADDOX, individually and d/b/a Village Green Mobile Home Park Defendants-Appellees.
    No. 42,557-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 2007.
    Rehearing Denied Nov. 29, 2007.

      Bobby L. Culpepper, Jonesboro, for Appellant, Leesa McCarley.
    Wray & Pierce, L.L.P., by Russell W. Wray, Baton Rouge, Dawkins & Carter, APC by Robert G. Dawkins Ruston, for Appellee.
    Before BROWN, MOORE, and LOLLEY, JJ.
   BROWN, C.J.

11 This action for damages arises out of a suit brought by Philip and Geri Taylor and Leesa McCarley for damages allegedly sustained by their shared pond due to the neighboring business operations of Michael Haddox. The Taylors dismissed their claim prior to trial, leaving Leesa McCar-ley as the sole plaintiff. Ms. McCarley has appealed from the trial court’s judgment dismissing her action against defendant, Michael Haddox. Finding no error, we affirm.

Facts and Procedural History

Original plaintiffs, Philip and Geri Taylor and Leesa McCarley, own property south of and adjoining property owned by defendant, Michael Haddox. On his property, Haddox operates the Village Green Mobile Home Park. The Taylors’ and McCarley’s tracts share a pond which they claimed was damaged by construction on the Haddox property.

On June 1, 2002, defendant commenced clearing 7.08 acres to add 50 mobile home sites. Haddox had removed the existing mechanical waste water treatment plant and replaced it with a new treatment facility consisting of three oxidation ponds in a new location farther away from both the mobile homes and plaintiffs’ property. The construction required the removal of pine trees and excavation of the land. Dean Dick was the engineer for the project, and Dusty Taylor was the contractor.

In August of 2002, Mrs. Taylor contacted defendant, complaining that mud and silt ran into the pond due to his operations, resulting in cloudiness and discoloration. Mrs. Taylor then made a report to the Department of Environmental Quality (“DEQ”) and the Department of Health and Human h,Resources (“DHHR”). Michael Stroud, a surveillance employee of DEQ, visited the property for inspection and discovered that Haddox did not have a storm water permit. Defendant claimed that this was an oversight, and applied for a permit, which was denied because the application did not include a storm water prevention plan. A valid permit was finally issued on November 13, 2002. During this period, operations continued, and no sanctions were imposed.

Stroud returned to the site in February of 2003. Stroud stated that he found storm water controls in place which included the placement of hay bales and seeding of the levees. In the spring of 2003, heavy rains inundated the area. Mrs. Taylor contacted Haddox and DEQ regarding storm water runoff. Stroud conducted a walkthrough with defendant, and concluded that the storm water controls had failed. Stroud noted that defendant had not maintained documentation of his inspections as required by DEQ. Kevin Harper, defendant’s superintendent, testified by deposition that he had made daily inspections, but had not kept up with his paperwork.

On June 1, 2003, Haddox informed Harper that there appeared to be a leak in the oxidation pond. Defendant decided to make a controlled break in the levee in order to reheve the pressure, fearing a break under pressure could damage the nearest mobile homes, which were approximately twenty feet away. The controlled break released six to eight inches of water into the natural drainage. The leak in the levee was discovered and repaired, and soil was removed and transported to Lincoln Asphalt for use determination.

IsFollowing the levee break, Mrs. Taylor and Ms. McCarley noted further discoloration of the pond, and complained of a foul odor. Mrs. Taylor complained to DEQ and the Department of Health and Hospitals (“DHH.”) On June 4, 2003, Stroud examined Ms. McCarley’s pond and found no visible signs of pollution. Stroud stated that he did not detect any discernible odor at the time. No testing for pollution was performed.

Suit was filed by the Taylors and Ms. McCarley on August 5, 2003, alleging that their property was damaged in the form of contaminated ground around the pond, dead fish, damage to surrounding trees and wildlife, intolerable odors from the pond, and loss of use and enjoyment of the pond.

Testing performed by Red River Laboratories in March of 2005 revealed that the water in the pond was normal for the typical pond in that area. The Taylors requested that their claim be dismissed on March 7, 2005, leaving Leesa McCarley as the lone plaintiff.

Trial on the matter began on December 21, 2005, and was completed on March 3, 2006. The trial court found that defendant used reasonable care to prevent runoff, silting, and pollution. In support of its holding, the trial court specifically noted that Harper made daily inspections of the hay bale placements; that heavy rains during the spring of 2003 were a cause in fact of the runoff which defendant could not have reasonably prevented; and that no evidence was submitted to show that the controlled break in the oxidation pond’s levee polluted Ms. McCarley’s pond. The court found that the controlled break was an action made in good faith to prevent further [4damage. Accordingly, the trial court found in favor of Haddox, signing the judgment on September 26, 2006. This appeal followed.

Discussion

Louisiana Civil Code article 667 provides:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works 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. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. An ultra-hazardous activity as used in this Article is strictly limited to pile driving or blasting with explosives.

Under the provisions of La. C.C. art. 667, in order for plaintiff to establish liability on the part of defendant, she must prove that defendant failed to exercise reasonable care. Ms. McCarley argues that the trial court erred in finding that Had-dox exercised reasonable care in preventing runoff from his operations from polluting her pond. Specifically, plaintiff argues that defendant acted unreasonably by only placing hay bales and seeding the levee to prevent drainage from his property from depositing silt into her pond. In particular, Ms. McCarley lists the following additional precautions Haddox could have taken: vegetative buffer strips, mulching, temporary vegetation, permanent vegetation, sod stabilization, silt fences, earth dikes, | Rsettlement traps, check dams, subsurface drains, pipe slope drains, level spreaders, and settlement basins.

An appellate court may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Henderson v. Nissan Motor Corp., 03-606 (La.02/06/04), 869 So.2d 62. The issue to be resolved by the appellate court is not whether the trial court was right or wrong, but whether its conclusion was a reasonable one. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993) Where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Carr v. Oake Tree Apartments, 34,539 (La.App.2d Cir.05/09/01), 786 So.2d 230.

Plaintiff cites Rizzo v. Nichols, 03-1394 (La.App. 3rd Cir.03/03/04), 867 So.2d 73, a case in which plaintiff landowner informed defendant of a drainage problem created by his construction project. Defendant in that case consulted two plumbers, but took no action. The obvious distinction between Rizzo and the case at bar, as the trial court noted, is that in the instant case, defendant did not merely consult experts, but took action in the form of laying down hay bales and seeding levees to prevent damage to plaintiffs property. These actions carry the added merit of having had the DEQ’s approval.

| (¡After fairly listing the many evidential considerations presented at trial and found in the record, the trial court noted certain facts it used in judging the question of the reasonableness of defendant’s actions. These facts include: Kevin Harper’s testimony that he inspected the hay bale precautions daily; the abnormal strength of the heavy rains that caused some runoff into plaintiffs pond; the lack of evidence that the controlled levee break contributed any pollution to plaintiffs pond; and the DEQ’s approval of defendant’s measures to prevent runoff and create a controlled break in the levee in order to find and fix the leak.

We may not substitute our opinion of the facts but must consider only whether the trial court’s conclusions were reasonable. Carr, supra. We cannot say that the trial court was manifestly erroneous in concluding that defendant exercised reasonable care as required by La. C.C. art. 667; thus, plaintiffs suit must necessarily fail.

Conclusion

For the reasons set forth above, the trial court’s dismissal of Leesa McCarley’s suit is AFFIRMED. Costs are assessed to plaintiff, Leesa McCarley.

APPLICATION FOR REHEARING

Before BROWN, STEWART, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.