author: PICKETT, Judge.

text:
    Kenneth D. LOPEZ v. TOWN OF ZWOLLE.
    No. 2007-76.
    Court of Appeal of Louisiana, Third Circuit.
    July 5, 2007.

      George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Claimant/Appel-lee, Kenneth D. Lopez.
    Joseph B. Stamey, Stamey & Miller, Natchitoches, LA, for Defendant/Appellant, Town of Zwolle.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

liThe defendant, the Town of Zwolle, appeals a judgment of an Office of Workers’ Compensation Judge (WCJ) finding the claimant, Kenneth Lopez, temporarily totally disabled and awarding the claimant workers’ compensation benefits, penalties and attorney’s fees. The claimant answered the appeal seeking an increase in attorney’s fees for work necessitated by this appeal. We affirm the judgment of the WCJ and award the claimant an additional $2500.00 in attorney’s fees.

FACTS

The claimant was employed by the Town of Zwolle Streets Department on October 2, 2002, when he allegedly injured his back, right arm and elbow while lifting an old, chest-type deep freezer into a dump truck. The Town of Zwolle disputed Mr. Lopez’s claim and refused to pay any workers’ compensation benefits. A Disputed Claim For Compensation Form was filed on December 12, 2002. Trial of the matter was held June 21, 2006, and, following a delay to allow the defense to depose a witness, reasons for judgment were read into the record on October 17, 2006. The WCJ found that the claimant had carried his burden of proving a work related accident, his subsequent disability, and that the defendant’s denial of the claim without adequate investigation was arbitrary and capricious. The WCJ awarded the claimant all back due weekly benefits, all medical expenses incurred in connection with the claimant’s injuries, and ordered the defendant to pay for an MRI recommended by Drs. Garland Miller and Carl Goodman. Additionally, the claimant was awarded $8,000.00 (combined award) in penalties for the defendant’s failure to pay indemnity and medical benefits. The claimant was also awarded $5,500.00 in ^attorney’s fees plus interest and costs. The defendant appeals arguing that the WCJ erred in finding that the claimant sustained his burden of proof in establishing an accident in the course and scope of his employment. The claimant answered the appeal seeking additional attorney’s fees necessitated by this appeal.

LAW AND DISCUSSION

The issues raised in this case have been discussed many times before. In Phillips v. Coca-Cola Bottling Co. United, 06-323 (La.App. 3 Cir 9/27/06), 939 So.2d 673, this court observed the following:

This court, in Monceaux v. R & R Construction, Inc., 05-533 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, writs denied, 06-0585 (La.5/5/06), 927 So.2d 325, 06-0636 (La.5/5/06), 927 So.2d 317, had occasion to address both the standard of review and a claimant’s burden of proof in workers’ compensation cases involving unwitnessed accidents. In that case, we said:
In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court discussed the standard of review in workers’ compensation cases:
In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La. App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La. App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).
Recently, this court addressed a claimant’s burden in proving the [sic] he/she suffered a work-related accident:
In order to recover workers’ compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered a “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A). An “accident” is defined as an “unexpected or unfor-seen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).
The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 18 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West, supra.

|4In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

As stated in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted):

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.
Bigge v. The Lemoine Co., 04-1191, pp. 2-4 (La.App. 3 Cir. 3/2/05), 896 So.2d 269, 271-72.
Monceaux, 919 So.2d at 798-800 (emphasis added).

Phillips, 939 So.2d at 675-77, [bolded emphasis in original].

Although the accident in Monceaux was unwitnessed, the principles of law enunciated therein are applicable to the case sub judice. In this case, even though the accident was witnessed by a fellow employee, Ricky Williams, Mr. Williams was not called as a witness at the hearing. The defendant did submit a hand-written statement 1 Bby Mr. Williams (D-4). That statement was objected to by the claimant. The WCJ noted the exception, but allowed the hand-written statement to be introduced. [We note that an abbreviated form of that statement was introduced in exhibit P-5, the Supervisor’s Accident Investigation packet.] At the close of the hearing on June 21, 2006, the WCJ left the record open for 60 days to allow for the taking of Mr. Williams’ deposition. The deposition contains no information that would differ significantly from that in exhibits D-4 and P-5. In the deposition Mr. Williams states, “I asked him [Mr. Lopez] would he lift up one end for me and after he did that I got it.... We both got on down against the end of it and we lifted up.... ”

We find the claimant’s case fits squarely under the burden of proof expounded by the supreme court in Bruno. The defense offered no evidence which discredited or cast serious doubt upon the claimant’s version of the incident. The claimant’s testimony is corroborated by the medical records and depositions of the physicians he saw following the alleged incident. His testimony is corroborated by the testimony of his spouse.

The WCJ chose to accept the claimant’s testimony and evidence, and we find nothing in the record to convince us that the findings of the WCJ are clearly wrong or manifestly erroneous.

The claimant answered the defendant’s appeal seeking additional attorney’s fees for the work necessitated by the defendant’s appeal. We find merit in this request and award the claimant $2,500.00 in additional attorney’s fees. All costs of this appeal are assessed against the defendant, the Town of Zwolle.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Elizabeth W. NAQUIN, et al. v. LAFAYETTE PUBLIC UTILITIES AUTHORITY, Through its Chairman Marc F. Mouton.
    No. 2007-42.
    Court of Appeal of Louisiana, Third Circuit.
    July 5, 2007.

      Patrick W. Pendley, Stan P. Baudin, Pendley Law Firm, Plaquemine, LA, Andre P. LaPlace, Christopher Shows, Pierce & Shows, Baton Rouge, LA, for Plaintiffs/Appellants, Elizabeth W. Naquin, et al.
    Patrick S. Ottinger, Lafayette, LA, for Defendant/Appellee, Lafayette Public Utilities Authority.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judge.
   COOKS, Judge.

| STATEMENT OF THE CASE

Elizabeth Naquin, individually and on behalf of others similarly situated, appeals the dismissal of a writ of mandamus against the Lafayette Public Utilities Authority. For the reasons assigned below, we affirm the decision of the district court.

STATEMENT OF THE FACTS

This case represents one of many challenges by residents of the City of Lafayette, and other interested parties, to prevent the construction and implementation of the Fiber-to-the-Home telecommunications system proposed by the Lafayette City-Parish Government and the Lafayette Public Utilities Authority (LPUA), the governing authority of the Lafayette Utilities System. See BellSouth Telecommunications, Inc. v. City of Lafayette, 05-1478, 05-1505 (La.App. 3 Cir. 1/5/06), 919 So.2d 844; Naquin v. Lafayette City-Parish Consol. Gov’t, 06-2227 (La.2/22/07), 950 So.2d 657. When efforts to enjoin LPUA from issuing bonds to fund the project failed, the Plaintiffs filed a class action suit in the Fifteenth Judicial District Court, Docket Number 20062014, Division D, to obtain a taxpayer refund of overcharges for electric services and to seek an injunction to prevent future rate overcharges to customers serviced by the LPUA through the Lafayette Utility System. The petition was served on the chairperson of the LPUA and on the 12Lafayette City-Parish President. In response, by letter dated March 22, 2006, LPUA informed the Plaintiffs of the following:

LPUA has never adopted rules to regulate a proceeding of this type, this being the first to be brought before the LPUA.
It will be necessary to formulate rules before any action can be taken with respect to your filing. The rules will eventually have to be adopted by the LPUA by resolution in an open meeting. I contemplate that the rules will be fashioned as appropriate in reference to the power and authority of the LPUA in matters of this type, as specified in the Home Rule Charter, and not in specific reference to the pleadings which you have now filed.
Pending the formulation of the rules, your pleading will be held in abeyance and no further action on your part is necessary.

After receiving the letter, Plaintiffs filed a petition for writ of mandamus in the Fifteenth Judicial District Court, Docket Number 20062266, Division B against LPUA. The petition demanded that it formulate and adopt rules of procedure for hearings regarding utility rate complaints brought before the LPUA in accordance with the Home Rule Charter — Section 4-07(1), which provides:

A person residing in an area served by the utility department may appeal to the authority any proposed rate increases or issuance of bonds. The decision of the authority shall be final, subject to appeal to the appropriate court.

The trial court set the matter for a full hearing. Prior to a hearing on the writ of mandamus, LPUA adopted a resolution establishing procedures for utility rate complaints and appeals of proposed rate increases. On May 80, 2006, a hearing was held on the petition for writ of mandamus. On the morning of the hearing, the Plaintiffs filed an amending and supplemental petition challenging the content of the rules of procedure adopted by LPUA and the manner in which they were adopted. The Plaintiffs argued the Home Rule Charter requires rules of procedure to be enacted by ordinance instead of by resolution and the adopted rules did not comply with the ^requirements of due process. The trial court found merit in the Plaintiffs’ argument, but concluded a writ of mandamus was not the appropriate vehicle to challenge the content of the rules of procedure or the manner in which they were adopted. The trial court stated:

[I]t appears to me that the Lafayette Public Utilities Authority does not have the discretion not to issue any rules. And, in fact, conducting business without rules on how to appeal decisions, it appears to me, may, in fact, be a per se denial of procedural due process. And so, having said all that, it seems to me that the appropriate vehicle for accomplishing the relief the petitioners are seeking would be a petition for declaratory judgment. I don’t see how I can issue a writ of mandamus to accomplish what the plaintiffs are seeking.
The Council and the Lafayette Public Utility Authority, they have the discretion to pick and choose which rules would best provide for procedural due process. After they have done that, if the plaintiffs believe that the rules are not appropriate, that can’t be corrected with a writ of mandamus.
I do think that the adoption of an ordinance is a discretionary function, it’s not a ministerial function, and so I don’t think that a writ of mandamus can be granted which directs a legislative body to perform a discretionary function. Again, I believe that this Court has the authority to adjudicate a request for declaratory judgment. And it seems like all of the things you describe as problems with the rules, as adopted through resolution, not an ordinance, would be properly addressed in a suit to declare that those rules violate substantive and procedural due process requirements.

The Plaintiffs appeal the decision of the trial court, asserting the following assignments of error:

(1) The trial court erred in denying Plaintiffs petition for writ of mandamus.
(2) The trial court erred in refusing to consider whether the writ of mandamus should issue based on the method of enactment of the procedures, and to consider the legality and constitutionality of the procedures adopted by LPUA.

LPUA answers the appeal, claiming damages for a frivolous appeal. We affirm the decision of the trial court and decline to award damages for a frivolous appeal.

LLAW AND DISCUSSION

We agree with the trial court under Section 4-07(1) of the Home Rule Charter persons residing in an area served by the utility department have a right to challenge rate increases before LPUA. Prior to May 25, 2006, there were no procedures in place for an individual to enforce this right. However, LPUA has since enacted, by resolution, rules of procedures for utility rate complaints and appeals of proposed rate increases and issuance of bonds. The Plaintiffs now take issue with the manner in which the rules were adopted and the content of the procedures and assert judicial review of the alleged deficiencies is proper in a mandamus proceeding. We disagree.

It is within the authority of a trial court to test the sufficiency of the procedural rules adopted by LPUA against statutory regulations and due process requirements; however, a writ of mandamus is not the proper procedural vehicle to raise such a challenge. A writ of mandamus is a summary proceeding, which lies to compel the performance of a ministerial act. La.Code Civ.P. art. 2592(6); La.Code Civ.P. art. 3863. A ministerial act is one “that is so clear and specific that no element of discretion can be exercised in its performance; if a duty requires the exercise of judgment and discretion by a public officer, it is not ministerial for purposes of a cause of action for mandamus.” Concordia Bank & Trust Co. v. Webber, 548 So.2d 61, 63 (La.App. 3 Cir.1989)(quoting Acadiana Bank v. Hayes, 498 So.2d 275, 278 (La.App. 1 Cir.1986). While the obligation to promulgate regulations is mandated under Section 4-07(1) of the Home Rule Charter, the manner and the content of the rules adopted is within the discretion of the public body and are not subject to review through a writ of mandamus. Moreover, mandamus is an extraordinary remedy which is only “issued in all cases where the law provides no relief by ordinary means or Lwhere the delay involved in obtaining ordinary relief may cause injustice.” La.Code Civ.P. art. 3862; Louisiana Dept. of Treasury v. Williams, 451 So.2d 1308 (La.App. 1 Cir.1984). The Plaintiffs are not without relief in testing the sufficiency of the rules adopted by LPUA. They may bring a suit in ordinary process where all parties will have an opportunity to conduct discovery and fully litigate the issues before the district court. Accordingly, we affirm the decision of the trial court denying the writ of mandamus.

LPUA asserts the appeal taken by the Plaintiffs was lodged in bad faith and solely for the purpose of harassment or delay and requests damages. See La.Code Civ.P. art. 2183(A). This case involves substantive issues of interest to residents of the City of Lafayette who pay utilities and other interested parties. We do not find this appeal was lodged in bad faith or solely for the purpose of harassment or delay. Therefore, we decline to award damages for frivolous appeal.

DECREE

Based on the foregoing review of the evidence, we affirm the judgment of the trial court dismissing Plaintiffs’ claims. All costs of this appeal are assessed against the Plaintiffs.

AFFIRMED.

      . LPUA consists of those members of the Lafayette City-Parish Council whose council districts include sixty percent or more of the persons residing within the boundaries of the City of Lafayette as they existed on the date the Lafayette City-Parish Consolidated Government Home Rule Charter became effective.

      . The merits of the Plaintiffs’ claim for a refund of overcharges and injunctive relief are not at issue in this appeal. The record also indicates a petition involving the same parties was filed in the Fifteenth Judicial District Court, Docket No. 2005-1751, Division G, in which the trial court found it lacked subject matter jurisdiction over the complaints involving excessive utility rates and required Plaintiffs to first bring the claim before LPUA.


author: GREMILLION, Judge. COOKS, J.,

text:
    Barbara ARDOIN v. LEWISBURG WATER SYSTEM.
    No. 2007-180.
    Court of Appeal of Louisiana, Third Circuit.
    July 18, 2007.

      Gilbert J. Aucoin, II, Platte, LA, for Plaintiff/Appellant: Barbara Ardoin.
    Jimmy L. Dauzat Dauzat, Falgoust, Ca-viness & Bienvenu, L.L.P., Opelousas, LA, for Defendant/Appellee: Lewisburg Water System.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   GREMILLION, Judge.

liThe plaintiff, Barbara Ardoin, appeals from the trial court’s grant of summary judgment in favor of the defendant, Lewis-burg Water System, and the dismissal with prejudice of her claims against it. For the following reasons, we affirm.

FACTS

Ardoin and her husband rented an apartment at the Landos Royal Heights Apartments in Opelousas, Louisiana. In March 2005, she had visited a friend in a nearby apartment and was on her way back to her apartment in the next building when she decided to check her mail. Her mailbox was located at the rear of the apartment buildings. Thus, she had to walk between the two apartment buildings to reach her mailbox. Eight in-ground water meters were located between these two buildings. At this particular time, approximately three of the covers were off the meters and lying on the ground. Ar-doin tripped on one of the covers and fell across several of the meters, with her leg inside one. As a result of this accident, she suffered injuries to her lower back and right shoulder.

Ardoin filed the instant suit against Water System, alleging that the water meters were in its possession and control, thus, it was liable to her pursuant to theories of negligence, strict liability, and res ipsa lo-quitur. Water System answered and then filed a motion for summary judgment. AI-though the trial court denied this motion, a second motion for summary judgment was granted, dismissing Ardoin’s claims with prejudice. This appeal by Ardoin followed.

J^ISSUE

On appeal, Ardoin argues that the trial court erred in granting summary judgment in this matter.

SUMMARY JUDGMENT

It is well settled that an appellate court performs a de novo review of the record on the appeal of a trial court’s grant of summary judgment. Pursuant to La.Code Civ.P. art. 966(B), summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Although the burden of proof remains with the movant, if that party will not bear the burden of proof at the trial on the merits, then the movant is only required to point out that the plaintiff will be unable to prove a necessary element of his/her evi-dentiary burden of proof at trial. La.Code Civ.P. art. 966(C)(2).

DUTY-RISK ANALYSIS

The law pertaining to the duty-risk analysis regarding premises liability was laid out in Bozeman v. Scott Range Twelve Ltd. Partnership, 03-903, pp. 5-6 (La.App. 1 Cir. 4/2/04), 878 So.2d 615, 619 (citations omitted):

The owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. This duty is the same under the strict liability theory or La. Civ.Code art. 2317 and the negligence theory of La. Civ.Code art. 2315. Under either theory, the plaintiff has the burden of proving that: (1) the property that caused the damage was in the “custody” of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was | :ia cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk.
In general, defendants may have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. The degree to which a potential victim may observe a danger is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury that results from a condition that should have been observed by the individual in the exercise of reasonable care or was as obvious to a visitor as it was to the landowner. Whether a condition is unreasonably dangerous requires consideration of: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility or whether it is dangerous by nature.

In support of its motion, Water System introduced the deposition of Ardoin to point out that the hazard she complains of was an obvious one for which it owes her no duty of protection. Ardoin testified that she and her husband had lived at the Landos Royal Heights Apartments for approximately four years prior to her accident. During that time, she testified that she had walked through the subject passageway a couple of times to check her mail. She stated that she normally accessed her mailbox through the rear door of her apartment because she knew that the meters were located in that passageway and because the covers were always off them. She further stated that the apartment manager had called Water System numerous times complaining about the covers being off the meters.

On the day in question, Ardoin stated that she saw the water meters and that three of the covers were off. She denied carrying anything in her hands and said that she was looking straight ahead and was not distracted by anything. Ardoin testified that she was walking close to the left side of the building when her right foot | ¿hit a cover, which caused her to fall forward across water meters.

In view of Ardoiris testimony, we find that the water meters and their covers presented an obvious condition which should have been and was observed by Ardoin prior to her fall. As stated in Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 9 (La.2/20/04), 866 So.2d 228, 235, “A pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear.” In this instance, Ardoin saw the covers lying on the ground and still chose to traverse the passageway. While doing so, her foot hit a cover, causing her to fall. Since the meter covers were obvious to her, we find that they did not present an unreasonably dangerous condition for which Water System owed her a duty.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Lewisburg Water System is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Barbara Ardoin.

AFFIRMED.

COOKS, J., dissents with written reasons.

COOKS, J.,

dissents.

In Whatley v. City of Winnfield, 35,132 (La.App. 2 Cir. 12/5/01), 802 So.2d 983, the court found an unreasonably dangerous condition present where a plaintiff was injured after stepping into a partially uncovered water meter. Evidence was presented that a city employee acted to remove the cover with a key, and ten days later the meter cover was unlocked and ajar when the plaintiff fell over the covers. In this case, it is undisputed that a number of covers to water meters were off and lying on the ground. Marty Landos, the landlord of Plaintiffs apartment complex, stated in an affidavit he called Lewisburg Water System many times to complain about the dislodged covers. The majority’s opinion does not question these facts, but instead affirms the dismissal of Plaintiffs case on summary judgment because she observed the unreasonably dangerous condition, yet did not avoid it.

The majority’s analysis is both harsh and shortsighted. There is no argument that the dislodged cover presented an unreasonable risk to the general public. However, even though it posed an unreasonable risk of harm it may nevertheless not be the cause or only cause of Plaintiffs injuries. To determine eause-in-fact, the courts have long applied the “but for” test. This inquiry asks “but for” the unreasonable risk of harm presented by the loose cover, would the accident have occurred? Clearly, had the cover been in its proper position, Plaintiff would not have fallen. Next, we must inquire if Plaintiff, in any way, contributed to the cause of her 12injuries. Again, using the “but for” inquiry, the question becomes “but for” plaintiff not avoiding the cover, would the accident have happened? Clearly, the answer is no. Rather than preventing any recovery for Plaintiff, as the majority would do, I find the present situation is why Louisiana adopted a comparative fault system.

The majority opinion seems to revert to the old “last clear chance” doctrine, which set forth that the person with the “last clear chance” to avoid the accident, was at fault in causing it. This doctrine was created as an “equitable remedy designed to alleviate some of the harsh realities of the law of contributory negligence,” which barred any recovery by the plaintiff if he were negligent in any way. See Arcadian Corp. v. Olin Corp., 01-1060 (La.App. 3 Cir. 5/8/02), 824 So.2d 396, 407. With the advent of comparative negligence, this “ ‘faded negligence’ analysis [is] no longer ... appropriate.” Id. One noted commentator has recognized that the last clear chance doctrine is no longer relevant in today’s comparative fault system:

It is almost universally accepted that the last clear chance doctrine must disappear whenever a comparative fault regime — particularly, a “pure” comparative fault regime like Louisiana’s — goes into effect.

David W. Robertson, Lave and Fury: Recent Radical Revisions to the Law of Comparative Fault, 59 La. L.R. 175, 188-89 (Fall 1998).

Clearly, Plaintiffs failure to avoid the covers, which she admittedly was aware of, requires only that she be assessed with some portion of the fault. Her failure to avoid the covers did not cause the unreasonably dangerous condition to magically disappear. This is a summary judgment ruling. A jury might well assign negligence to both parties. The record supports a finding that an unreasonably dangerous condition existed for which the Water System owed a duty to remove or fix. Whether that condition caused or contributed to Plaintiff’s injury is a question of fact which is genuinely disputed in this case. I would, therefore, reverse the trial court’s grant of summary judgment.


author: SAUNDERS, Judge.

text:
    Charles LAYSSARD v. STATE of LA., DEPT. OF PUBLIC SAFETY AND CORRECTIONS.
    No. CA 2007-78.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 8, 2007.

      Otis Edwin Dunahoe, Jr., Dunahoe Law Firm, Natchitoches, LA for PlaintiffiAp-pellee, Charles Layssard.
    Victoria R. Murry, Louisiana Department of Justice, Alexandria, LA, for Defendant/Appellant, State of Louisiana, Dept, of Public Safety and Corrections.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

11 This is a case involving an automobile accident. A Department of Public Safety and Corrections Officer, who was within his course and scope of employment, collided with a left turning vehicle driven by Plaintiff. Plaintiff had slowed down and was beginning a left turning maneuver. Plaintiff filed suit against the officer, and his employer, the State of Louisiana through the Louisiana Department of Public Safety and Corrections (hereinafter “Defendants”). After a jury trial on the matter, the jury allocated 100% of the fault to the Defendants and awarded Plaintiff $222,192.00 in damages. Defendants now appeal said judgment.

We affirm in part, and reverse in part.

FACTS AND PROCEDURAL HISTORY

The instant litigation arises out of an automobile accident that occurred on June 18, 2001, in Rapides Parish on Highway 8, approximately 600 feet east of its intersection with Highway 119. Plaintiff, Charles Layssard, was driving a two-ton pick-up truck and was towing a thirty-foot trailer loaded with a backhoe. Plaintiff was being followed by an escort vehicle. Plaintiff was attempting to make a left turn from the right eastbound lane of travel, across the westbound lane of travel, into a private drive located across the westbound lane. While Plaintiff was attempting to make this left turn, defendant driver, Department of Public Safety and Corrections Officer Harold Stanley Cook, came over a hill behind Plaintiff and attempted to pass the escort vehicle and Plaintiffs vehicle. Defendant driver collided with Plaintiffs pick-up truck.

Plaintiff filed suit against Officer Harold S. Cook, and his employer, the State of Louisiana, through the Louisiana Department of Public Safety and Corrections (hereinafter “DPSC”), on June 3, 2002. In his petition, Plaintiff alleged that as a 12result of Officer Cook’s negligence in causing the accident, he incurred injuries to his right wrist, left ring finger, and left hip, which eventually led to the need for total a hip replacement, which was performed in June 2003.

The matter came to a jury trial on September 25, 2006. Upon the close of evidence, the jury deliberated and rendered a verdict in favor of Plaintiff and against Defendants, in solido, for the sum of $222,192.00. The jury found that Officer Cook’s actions constituted negligence, and that his negligence was the sole cause of the accident. The jury further found that Plaintiff suffered damages as a result of the collision and awarded him $87,000.00 for physical pain and suffering (past and future), $37,000.00 for mental pain and suffering (past and future), $37,000.00 for disfigurement and disability and loss of enjoyment of life, $53,768.00 for past medical expenses, $5,000.00 for future medical expenses, and $2,424.00 for property damage. A judgment pursuant to the jury verdict was signed on October 11, 2006. Defendants timely filed a motion and order for a suspensive appeal from said judgment on November 13, 2006. Plaintiff subsequently filed an answer to Defendants’ appeal, on February 2, 2007, seeking an increase in the amount of general damages awarded by the jury, alleging that the damages awarded were inadequate.

ASSIGNMENTS OF ERROR:

1.Was the jury in error in finding DPSC Officer Harold S. Cook 100% at fault in causing the accident at issue?
2. Was the jury manifestly erroneous in awarding damages to Plaintiff for a total left hip replacement?
3. Was the jury manifestly erroneous in awarding future medical treatment to Plaintiff?

ASSIGNMENT OF ERROR # 1:

| ¡¡Defendants argue that the jury erred in finding that Officer Cook was 100% at fault in causing the accident. We disagree.

The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La.10/30/00), 773 So.2d 670, 680-81, set forth the standard for reviewing comparative fault determinations as follows:

This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id.

Therefore, a trier of fact’s allocation of fault is subject to the manifestly erroneous or dearly wrong standard of review. A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

The Louisiana Supreme Court addressed what factors to consider when attempting to review an allocation of fault in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985):

[Vjarious factors may influence the degree of fault assigned, including: |4 (l)[W]hether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Id at 974.

These factors also guide an appellate court’s determination as to the highest or lowest percentage of fault that could reasonably be assessed to each party. Clement, 666 So.2d at 611. Thus, the Clement court directs that the allocation of fault is not an exact science, nor is it the search for a precise ratio. Rather, much like that of quantum assessment, allocation of fault is the finding of an acceptable range and any allocation by the trier of fact within that range cannot violate the manifest error standard of review. When we look to the applicable laws and standard of review, this court is to make a determination of whether any reasonable person could have made the allocation of fault that the jury made under the facts of this case.

Louisiana Revised Statutes 32:104 states:

A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.
B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.
C. No person shall stop or suddenly decrease the speed of | Ba vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.
D. The signals provided for in R.S. 32:105(B) shall be used to indicate an intention to turn, change lanes or start from a parked position and shall not be flashed on one side only on a parked car or disabled vehicle, or flashed as a courtesy or “do pass” signal to operators of other vehicles approaching from the rear.

Defendants general argument in this assignment is that pursuant to La.R.S. 32:104 and Thomas v. Champion Insurance Co., 603 So.2d 765 (La.App. 3 Cir. 1992), because Plaintiff was in the process of making a left hand turn at the time of the accident at issue, he is presumed negligent. Defendants argue that Plaintiff did not overcome this presumption of liability and prove that he was free from negligence.

Defendants first assert that Plaintiff should be found to have had some fault as he did not fulfill his duty to look to the rear and check for overtaking vehicles. We do not agree.

This court clarified the application of La.R.S. 32:104, in Thomas, when it stated, “[a] left-turn is generally a dangerous maneuver which must not be undertaken until the turning motorist ascertains that the turn can be made in safety (Citations omitted.) A left-turning motorist involved in an accident is burdened with a presumption of liability and the motorist must show that he is free from negligence. (Emphasis added.) Id. at 767.

In the case before us, Plaintiff testified that he checked the rear of his vehicle and the road twice before he began making his turn. When discussing what he saw the first time he checked the rear of the vehicle, Plaintiff testified, “I checked the | ¿mirrors, it was clear, the road was clear.” When testifying as to what he saw the second time he checked his mirrors, Plaintiff testified, “... when I was starting to make a wide turn to make my turn, I checked my mirrors again, everything was clear.” A reasonable jury could choose to believe Plaintiffs testimony and find that Plaintiff had fulfilled his duty to ascertain that the left turn could be made in safety.

Moreover, Sargent Fred Stevens, an accident reconstruction expert, testified that Officer Cook was traveling at a speed of 60.7 miles per hour when he applied his brakes and collided with Plaintiff. This testimony, coupled with Officer Cook’s testimony that he had slowed down 10-15 miles per hour prior to applying his brakes, leads a reasonable person to find that Officer Cook was traveling at, or near, 75 miles per hour prior to the accident.

Further, there is the fact that the lay of the land did not allow Plaintiff to see as far behind him as he normally would have been able to see had the accident happened on a totally flat stretch of highway. The collision took place between the vehicles just over a hill that could have obscured Plaintiffs view behind him. Officer Cook’s speed, coupled with the fact that there was a hill that he had to cross over before colliding with Plaintiff, provides a reasonable basis for Plaintiff to fail to see Officer Cook attempting to pass him prior to making his left turn. Given these facts, it is reasonable for the jury to have found that Officer Cook’s excessive speed was the sole cause of the accident. As such, Defendants’ first contention is without merit.

Next, Defendants argue that Plaintiff failed to use his turn signal and a reasonable person could not find that a driver is free from fault if he fails to use his turn signal. There is a conflict in testimony as to whether Plaintiff fulfilled his duty under La.R.S. 32:104(B), which requires the driver of a left-turning vehicle to gjve|7a signal of his intention to turn left not less than one hundred (100) feet before turning. Plaintiff testified that he engaged his left signal in preparation of making the left-hand turn into the driveway. Officer Cook testified that he saw no lights on the trailer and no left turn signal engaged on Plaintiffs vehicle prior to it beginning its turn across his path. Officer Steve Turner, a guest passenger in Officer Cook’s car at the time of the accident, also testified that he did not recall seeing any turn signal or lights engaged prior to the left turn maneuver.

While there is more testimony that Plaintiff did not engage his turn signal than there is testimony that Plaintiff did engage his turn signal, this court’s duty is not to count the number of testimonies, our duty is to ascertain whether it was reasonable for the jury to find what it found. A reasonable jury could find that Plaintiff was a more credible witness on the topic of whether he engaged his turn signal. As such, this contention by thé Defendants has no merit.

Finally, Defendants argue that they should not be assessed 100% of the fault in the instant case because of the testimony of the investigating officer, Lt. Michael A. Cain. Lt. Cain testified that either driver had the opportunity to observe the other and stop his vehicle in time to avoid the collision. Defendant argues that if either party had the opportunity to avoid the accident, then the jury’s finding of 100% of fault for one of the parties is unreasonable.

The Defendants base their argument on one statement made by the investigating officer. Lt. Cain also testified that Officer Cook was careless in the operation of his vehicle, was traveling in excess of the posted limit, and that had Officer Cook decided to slow down and stop, he would have been able to avoid the accident. A reasonable jury could have found that per the testimony of Lt. Michael |SA. Cain, defendant driver, Officer Cook, had the “last clear chance” to avoid the accident. As such, this contention by the Defendants is also meritless.

The burden on Defendants, in attempting to disturb a fact finder’s allocation of fault, is not to demonstrate that it would be reasonable to find some fault on the part of Plaintiff. Instead, they are burdened with proving that it was Unreasonable for the fact finder to allocate 100% of the fault to the defendant driver, Officer Cook.

We find that there is ample evidence in the record for the trial court to find that Officer Cook was 100% at fault for the accident at issue. Accordingly, we affirm the jury’s allocation of fault in this case.

ASSIGNMENT OF ERROR # 2:

In their second assignment of error, Defendants contend that the jury erred in awarding damages to Plaintiff for a total hip replacement that was performed in June 2003. Defendants argue Plaintiff failed to meet the burden of proof required to establish a causal link between the accident and the subsequent injury by a preponderance of the evidence. We disagree.

It is well-settled that a plaintiff bears the burden of proving the causal connection between the injury sustained and the accident which caused said injury. American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991). The plaintiff must prove through medical testimony by a preponderance of the evidence that subsequent injuries were caused by the accident. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615 (La.2/20/95), 650 So.2d 757.

The Louisiana Supreme Court in Housley v. Cerise, 579 So.2d 973 (La.1991), created a presumption that aids a plaintiff in proving that there is a causal link | ([between an accident and subsequent injury. Housley establishes that three factors must be shown in order to apply the presumption: (1) The plaintiff múst demonstrate that he was in good health prior to the accident at issue; (2) He must demonstrate that subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves afterwards; (3) He must demonstrate that through evidence, medical, circumstantial, or common knowledge, a reasonable possibility of causation between the accident and the injury claimed.

“The application of the Hous-ley presumption is a factual issue as is the determination of causation, both of which are subject to the manifest error standard of review.” Detraz v. Lee, 05-1268, p. 9 (La.1/17/07), 950 So.2d 557, 563. Therefore, in order for this court to disturb the jury’s finding that Plaintiff was entitled to recover damages for a total hip replacement, Defendants must show that, based on the evidence in the record, it was unreasonable for the jury to find that the accident caused the injuries to Plaintiffs hip.

We will first address whether it was unreasonable for the jury to find that Plaintiff was entitled to the Housley presumption. Defendants argue that the first factor in a Housley presumption is lacking because Plaintiffs hip was not in “good health” prior to the accident at issue. Defendants point to Plaintiffs medical records from the VA Medical Center that indicate complaints of severe hip pain dating back as many as ten years before the accident at issue.

While those records may indicate that Plaintiffs hip was not in perfect health, it does not mean that his hip was not in “good health” for purposes of Hous-ley. Plaintiffs records indicate that over a period of ten years before the accident, there are only three documented reports of hip pain, one ten years before the accident, one [10five years prior to the accident, and one three years prior to the accident. Three complaints of pain in the same area of the body, the latest of which is three years prior to the accident, does not necessitate a finding by the jury that Plaintiff was not in good health prior to the accident.

Moreover, Plaintiff testified that he was in relatively good health before the accident and could engage in normal, day-to-day activities without any difficulty. He also testified that he was not seeing a doctor for his hip, nor was he taking any medications for his hip. Further, Plaintiff testified that he had never had any discussions concerning hip replacement surgery. Plaintiffs testimony, coupled with absence of medical records that indicate that Plaintiffs hip was not in good health, provide a reasonable basis for the jury to have found that Plaintiff did meet the first factor necessary for the Housley presumption, that he was in good health prior to the accident.

Defendants next assert that Plaintiff was not entitled to the Housley presumption because neither of his treating physicians were able to state that there was more than a possibility that Plaintiffs preexisting degenerative arthritic condition was aggravated by the accident, nor were they able to testify as to whether his hip replacement was causally related. This assertion lacks merit.

This court’s reading of Housley is that there should be medical testimony that there is a “reasonable possibility of causal connection between the accident and the disabling condition.” Housley, 579 So.2d at 980. (Emphasis added). Both Dr. Vanda Davidson, Plaintiffs treating orthopae-dist, and Dr. William Bundrick, the orthopedic surgeon who performed Plaintiffs left hip replacement, testified that there is a reasonable possibility that the acceleration of the osteoarthritis in Plaintiffs hip was In caused by the trauma sustained in the accident.

Due to the testimonies above, we find that there is ample evidence to lead a reasonable person to conclude that Plaintiff demonstrated, through evidence that is medical, circumstantial, or common knowledge, that a reasonable possibility of causation between the accident and the injury claimed. As such, Plaintiff was entitled to the Housley presumption that the problems with Plaintiffs hip, and his subsequent hip replacement, are causally related to the accident in question.

Defendants next assert that even if Plaintiff is entitled to the Housley presumption, the jury erred in awarding damages to Plaintiff for a total hip replacement that was performed in June 2003. This assertion lacks merit.

Plaintiffs injury is assumed to be causally related to the accident due to the Housley presumption. The burden then shifted to Defendants to show that Plaintiffs injury was not causally related to the accident. Defendants, in claiming that the jury erred in finding that Plaintiffs injury was causally related, must demonstrate that the jury was unreasonable in not finding that the Defendants carried their necessary burden of proof. We find that Defendants have not done so.

Defendants attempt to bolster their position by pointing to the testimonies of Dr. Davidson and Dr. Bundrick. Even though Dr. Davidson replied, “Not a whole lot” when asked whether Plaintiffs left hip problems were related to the accident as issue, Dr. Davidson went on to testify that he would be more inclined to make an association between the accident and Plaintiffs hip problems if Plaintiff experienced a period of continuous discomfort after the accident. Plaintiff did, in fact, testify to such continuous discomfort after the accident. Plaintiff testified at trial that he had injured his hip in the accident, and to a varying degree, it caused him continual pain [ ^thereafter.

Dr. William Bundrick, the orthopedic surgeon who performed Plaintiffs left hip replacement, testified, “there’s a possibility that it, you know, aggravated the problem. And it’s hard to say whether it accelerated the fact that he-when he would have a total hip.” He went on to testify that although an accident does not cause the osteoarthritis, it can accelerate the symptoms of osteoarthritis, as well as the disease process.

While the physician’s testimonies above do not answer the question of whether Plaintiffs hip injury was more probably than not related to the accident, they do not make it unreasonable for the jury to find that the injury was related to the accident. The testimonies above suggest to a trier of fact that it was just as probable as not that the accident caused the injury to Plaintiffs hip. Given that it was Defendants that needed to move the jury from dead center due to the Housley presumption, the result the jury reached is reasonable. Accordingly, we affirm the award of damages to Plaintiff for the hip replacement made by the jury.

ASSIGNMENT OF ERROR # 3:

Defendants contend that the jury committed manifest error in awarding Plaintiff damages for future medical expenses in the amount of $5,000.00. We agree.

An award of future medical expenses must be supported by medical testimony indicating both the need and the probable cost. McDaniel v. Carencro Lions Club, 05-1013 (La.App. 3 Cir. 7/12/06), 934 So.2d 945.

There is no testimony of any kind from either of Plaintiffs treating physicians that Plaintiff would need future medical treatment related to the accident, nor did __[^either physician testify as to how much such medical treatment would cost. Dr. Davidson is the only physician who testified regarding any future medical treatment when he testified that it was a “possibility” that Plaintiff would require surgery in the future for the arthritic condition in his right wrist.

Based on the record, we find that the fact finder erred in awarding Plaintiff $5,000.00 in future medical expenses, as there was not adequate evidence in the record to warrant such an award. Accordingly, we reverse the award of damages in the amount of $5,000.00 to Plaintiff.

Answer to the Appeal:

In his answer to Defendants’ appeal, Plaintiff asserts that the amount of damages awarded to him by the jury was inadequate and requests an additional award of $100,000.00.

Ordinarily, a quantum award is reviewed on appeal by the “much discretion” standard. Reck v. Stevens, 373 So.2d 498 (La.1979). If an abuse of discretion is found, the appellate court will only lower the award to the highest (or raise the award to the lowest) point which is reasonably within the discretion afforded the court; the appellate court does not substitute its judgment for that of the trial court judge or jury in this situation. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

After reviewing the record in its entirety, we do not find the amount of damages awarded to Plaintiff to be inadequate. Accordingly, we affirm the jury’s award of $222,192.00 to Plaintiff.

CONCLUSION

After our review of the record, we find that the jury was reasonable in 114allocating 100% of the fault to Defendants. We further find that the jury did not err in awarding Plaintiff damages for a total hip replacement. However, we reverse the jury’s award of damages in the amount of $5,000.00 for future medical expenses, as the record does not contain ample evidence to warrant such an award. Additionally, we deny Plaintiffs request for an increase in his damage award, as we find the damages awarded by the trier of fact to be adequate. All costs of this appeal are to be divided evenly between the parties.

AFFIRMED IN PART, REVERSED IN PART.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Marcus D. GULLEY, Appellant.
    No. 42,237-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Eric Anthony Wright, New Orleans, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Philip House, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

11 While consorting with a prostitute in a local motel, Kenneth Graham was robbed at gunpoint by an intruder. Graham identified defendant, Marcus Gully, as the perpetrator, and a jury convicted defendant of armed robbery. Defendant was adjudicated a second felony offender and sentenced to 49½ years at hard labor without benefit of parole. The two issues raised by defendant in his appeal are whether the evidence presented at trial met due process sufficiency standards and whether the conduct of defendant’s counsel during the trial met constitutional competency standards. We affirm.

Sufficiency of the Evidence

Defendant argues that the jury should not have believed the testimony of the victim, Kenneth Graham, and defendant’s accomplice, Nicole Myers (the prostitute who was with the victim at the time of the robbery), because they were high on cocaine at the time of the robbery, and their testimony contained inconsistencies and contradictions.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the court wrote:

In short, [In re] Winship[, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ], presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.

12The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court a means to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-8116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a 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.08/30/02), 827 So.2d 508, writs denied, 02-3090 (La.11/14/03), 858 So.2d 422, 05-0947 (La.01/27/06), 922 So.2d 541.

The critical inquiry is whether the record evidence, viewed in the light most favorable to the prosecution, could reasonably support a finding of guilt beyond a reasonable doubt.

Trial Testimony

Kenneth Graham testified that on the evening of May 2, 2004, he was driving in Shreveport when he saw a young white female he knew as “Nicole” on the street. Graham gave Nicole (who has several aliases but whose full name is Nicole Myers) a ride to the nearby Sessions Motel (also known as the Livingston Motel) on Pete Harris Drive, where Ms. Myers had a room. In her testimony, Ms. Myers stated that the two went to “handle business.” She clarified that she was a prostitute and that Graham was one of her customers. Graham stated that once they got to the motel, Ms. Myers left the room briefly, then returned with some crack cocaine. Graham | ^admitted that he was “buying sex from her” and that they had previously been together more than once but less than five times. On the other hand, Ms. Myers stated that they had previously been together between 10 and 30 times.

Graham testified that he and Ms. Myers smoked crack and had sex. According to Graham, he smoked about two rocks of crack. Ms. Myers estimated that the pair smoked about 40 rocks of crack, or $400 worth. According to Graham, Ms. Myers acted nervous and, after their encounter, she left the room a second time. When she returned, she was accompanied by a black male armed with a handgun. The armed man pointed the gun at Graham and said, “drop it, homeboy.” Graham did not understand the request so the intruder told him to drop his money. Graham turned over his wallet, which was empty, but refused to tell the man where his money was. The armed man cycled the slide on his pistol, ejecting a live cartridge onto the motel room floor, and ordered the victim to remove his clothes. Graham complied. Meanwhile, Nicole searched the room and went through Graham’s personal effects. She found money in Graham’s pants pocket and gave it to the armed man. The intruder took Graham’s pants and wallet, ordered the victim not to report the crime because “he knew where I lived,” and then fled along with Nicole Myers.

After waiting for a short time, Graham looked out the window of the motel room and saw his pants on the ground outside the room. As he retrieved his pants, Graham spotted a police officer nearby. Graham | reported the crime to Shreveport Police Department Officer Tracy Stovall, who went back to the room with Graham and found a live .380 caliber bullet on the floor of the room. Graham told Officer Stovall that he knew the woman as “Nicki” and that he did not know the armed man. The officer’s report states that Graham identified the armed robber as a black male; there are no other physical descriptions of the robber in the report. Graham did not tell Officer Stovall that he had smoked crack cocaine and had sex with Nicole Myers. The crime occurred.at approximately 8:00 p.m.

No suspects were apprehended that night. On May 11, 2004, SPD Detective Michael McConnell interviewed Graham, who admitted to having sex ■ with Ms. Myers on the date of the incident, but did not reveal that the two had smoked crack. Graham related to the detective that as he was putting his clothes back on, Nicki left the room and came back with a man, who pulled a semi-automatic on him and forced him to give up his money. The female assisted by searching Graham’s clothing. According to Det. McConnell, Graham said that he could identify Nicki, but “might not” be able to identify the male suspect because he [Graham] “was trying to keep from looking at him [the robber].” At trial, however, Graham testified that the robber stood by the door, about five feet from him, and Graham was able to see the man clearly, without any obstructions of his view. He denied telling officers that he attempted to avoid making eye contact with or looking at the robber.

Days later, Det. McConnell located Nicole Myers on a street corner in the Allen-dale area of Shreveport. Police officers photographed Ms. Myers |Rand used that picture in a photo lineup. Graham, without hesitation, identified Ms. Myers from the photo lineup as the woman involved in the robbery. Det. McConnell arrested Nicole Myers as a principal to armed robbery. Ms. Myers denied any knowledge of the crime and stated she was in Ohio on the date of the robbery.

Thereafter, an informant called Detective McConnell and told him that Marcus Gully was the man involved in the robbery. Detective McConnell testified without objection that, “[A confidential informant] advised that he had heard that I had arrested Nicki and that the individual who committed the armed robbery was the defendant, Marcus Gully. He gave me his [Gully’s] tag information, his vehicle information.” With that information, McConnell created a photo lineup which included a picture of Gully. This lineup was shown to Graham, who identified Gully as the armed robber. Detective McConnell obtained an arrest warrant for defendant, who voluntarily surrendered to police. Defendant advised Det. McConnell that he had the wrong man.

At trial, Graham again identified Gully as the man who robbed him. Graham testified that he had not known defendant prior to the offense and that after the robbery, “different people [were] calling me, asking me to drop the charges. His [defendant’s] mother said- — offered to pay the money back.”

At trial, Nicole Myers testified to the details of the crime and identified defendant as the man involved in the armed robbery. According to Ms. Myers, at the time of the offense, she did not know defendant’s real | ¿name. Ms. Myers testified that she pled guilty to attempted armed robbery and was sentenced to seven years imprisonment for her part in this incident. She also testified that she had a subsequent conviction for distribution of a schedule II controlled dangerous substance.

Defendant did not testify at trial. However, he showed the jury that his two front teeth had gold caps, a feature that Graham never mentioned to anyone. In addition, several witnesses testified as to defendant’s whereabouts on the evening of the robbery. Defendant’s uncle, Bernard Gully, testified that he was with defendant, defendant’s mother, defendant’s girlfriend Tanya, and several of defendant’s friends at an apartment on Looney Street in Shreveport from about noon until 9:30 p.m. Bernard related that he and defendant sat on the porch of the apartment all afternoon drinking and discussing defendant’s upcoming birthday and that he [Bernard] left at 9:00 or 9:30 p.m. Bernard admitted that he was not with defendant the entire time and that it was possible that defendant could have left the apartment and come back during the course of the evening.

Defendant’s friend, Robin Jacobs, testified that she was at the Looney Street apartment on the evening of May 2, 2004. Ms. Jacobs stated that she was with defendant the entire night except for a short period of time when defendant left with his mother and girlfriend to take defendant’s mother home. Ms. Jacobs stated that she went with defendant and Tanya to a convenience store around midnight.

Defendant’s mother, Patricia Gully, stated that on the evening of May 2, 2004, defendant and his girlfriend came to her house to pick her up |7between 6:00 and 7:00 p.m. They brought her to their apartment, leaving only once to go to the store. Defendant and his girlfriend brought her back home around midnight.

Tanya Miller Gully, defendant’s girlfriend at the time of the incident and wife as of trial, also testified. Ms. Gully stated that she rented the apartment at 1464 Looney Street, where the group had gathered on May 2, 2004. She stated that she and defendant went to defendant’s mother’s home between 6:00 and 7:00 p.m. to pick her up. They later went to a convenience store and at the end of the evening they drove defendant’s mother home. They made no other stops that night. Ms. Gully also testified that defendant had his gold front teeth when she met him in 2002 and had them on May 2, 2004.

As the above testimony reflects, both of the witnesses to the crime stated unequivocally that defendant was the armed man involved in the robbery. Although Graham’s and Nicole Myers’ stories differed in some ways regarding the history of their relationship and their activity prior to the robbery, both had no trouble identifying defendant as the armed man who robbed Graham. Further, the jury was fully apprised of the discrepancies in their stories and of the opportunity that both witnesses had to see the robber during the crime.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App. 2d Cir.09/18/02), 828 So.2d 622, writs denied, 02-2595 (La.03/28/03), 840 So.2d 566, 02-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir.05/08/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.06/26/98), 719 So.2d 1048.

This includes the testimony of accomplices. An accomplice is a competent witness to testify against her co-perpetrator even if the prosecution offers her inducements to testify; these inducements weigh on the witness’s credibility. State v. Jetton, 32,893 (La.App. 2d Cir.04/05/00), 756 So.2d 1206, writ denied, 00-1568 (La.03/16/01), 787 So.2d 299. The credibility of an accomplice’s testimony is not within the province of the court of appeal to decide. Id. Rather, credibility evaluations are within the province of the trier of fact. Id. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

We note that defendant’s wife testified that she and defendant left the gathering on Looney St. for a period of time after 7:00 p.m. The jury chose |9to credit the testimony of the victim and defendant’s accomplice over that of defendant’s witnesses, and we cannot say that this choice was unreasonable and thus outside of their province as the fact finder.

This assignment is without merit. Ineffective Assistance of Counsel

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 rather than by appeal. This is because PCR creates the opportunity for a full evidentiary 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.06/21/00), 764 So.2d 1164, writs denied, 01-3049 (La.09/20/02), 825 So.2d 1166, 03-1670 (La.05/21/04), 874 So.2d 166. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id. When the record is sufficient, however, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App. 2d Cir.09/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

| mFirst, defendant must show that counsel’s performance was deficient. This requires a showing that his attorney made errors so serious that she was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The assessment of an attorney’s performance requires that her conduct be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming she has exercised reasonable professional judgment. State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991). See also State v. Tilmon, 38,003 (La.App. 2d Cir.04/14/04), 870 So.2d 607, writ denied, 04-2011 (La.12/17/04), 888 So.2d 866.

Second, defendant must show that his attorney’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. He must show that but for his attorney’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App. 2d Cir.04/05/95), 653 So.2d 174, writ denied, 95-1398 (La.11/03/95), 662 So.2d 9.

Failure to Object to Hearsay Testimony

The actual question asked by the ADA to Detective McConnell was “did you ever develop anyone else as a suspect?” The detective responded affirmatively but added on his own that he was given defendant’s name by a Inconfidential informant as the man who committed the robbery. This was not responsive or prompted by the ADA’s question. Once the detective had a name, he was able to conduct another photo line-up where defendant was identified by the victim.

Defendant asserts that his attorney’s failure to object was a serious error as Detective McConnell’s statement was objectionable hearsay because it contained the statement or out-of-court assertion [by the confidential informant] that the defendant was the person who committed the crime. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); State v. Legendre, 05-1469 (La. App. 4th Cir.09/27/06), 942 So.2d 45.

Detective McConnell’s statement was not responsive to the question asked by the ADA; however, the answer explained the course of the officer’s investigation and the steps leading to the presentation of the photographic line-up to the victim. See State v. Maise, 00-1158 (La.01/15/02), 805 So.2d 1141.

If an objection had been made, it would have only emphasized the confidential informant’s information and at best, resulted in an instruction from the court for the jurors to disregard. A reviewing court must give deference to the trial counsel’s judgment and tactical decision. In any event, there is no reasonable probability that the outcome of the trial could have been different had defense counsel objected and the jury been instructed to disregard the remark. Such errors are subject to a harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See State v. Legendre, supra

Defendant also argues that his attorney should have objected to the victim’s statement that defendant’s mother offered to pay him the money that had been taken from him during the robbery. This related a direct statement by defendant’s mother to Graham. Defendant’s mother testified and could have denied the statement but was not asked. This was not hearsay. Even if considered hearsay, the outcome of the case would not have been different had defendant’s attorney made a successful objection.

Failure to File a Motion to Suppress the Photo Lineup

Defendant next urges that his attorney was ineffective for failing to move for the exclusion of the photo lineup evidence and resulting identification. Specifically, defendant points to the fact that Graham1 did not provide a description of the robber to police and his statement to the investigating officer that he tried to avoid looking at the robber’s face.

In order to suppress an identification, a defendant must show that the identification was suggestive and that there was a likelihood of misidentifieation by the eyewitness. Even if the identification procedure was suggestive, the identification will be admissible if, under the totality of the circumstances, it is found to be reliable. State v. Birch, 41,979 (La.App. 2d Cir.05/09/07), 956 So.2d 793; State v. White, 28,095 (La.App. 2d Cir.05/08/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 98-0282 (La.06/26/98), 719 So.2d 1048. See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The factors to be considered include the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the identification, and the time between the crime and the identification. Manson, supra; State v. White, supra. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson, supra.

Considering the Brathwaite factors listed above, the line-up was not suggestive and was reliable. Defendant’s actual objection goes to the credibility of the victim and the sufficiency of the evidence.

Failure to Conduct an Adequate Voir Dire of Juror Ramsey

Finally, defendant contends that his attorney was ineffective in handling the voir dire of one juror, Martha Ramsey, who stated during questioning that both her husband and her cousin had been murdered. We note that defendant used only eleven peremptory challenges and thus, under those facts can not show prejudice.

Ms. Ramsey said that these incidents would not affect her in serving on the jury, and there is nothing in the voir dire that shows, on the record, that counsel was ineffective for failing to challenge Ms. Ramsey peremptorily. This assignment of error is without merit.

Error Patent Review

We have reviewed the record for errors patent on the face of the record and have found none.

1 uConclusion

For the above set-forth reasons, defendant’s conviction and sentence are AFFIRMED.

      . Defendant's name is spelled "Gulley” in the bill of information and on the cover of the appeal. However, the correct spelling of defendant’s surname appears to be “Gully”. During trial, the state obtained, without objection from defendant, a verbal order from the trial court deleting the "e” from all references to defendant’s last name. Rp. 439.

      . Both victim and defendant are black; Myers is white.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Anthony Ray BARRETT, Appellant.
    No. 42,303-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Anthony Ray Barrett, Pro Se.
    Louisiana Appellate Project, by Mary C. Hanes, for Appellant.
    Paul J. Carmouche, District Attorney, John F. McWilliams, Dhu Thompson, Lea R. Hall, Jr., Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| ,This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Anthony Ray Barrett, was convicted of simple burglary pursuant to La. R.S. 14:62. Thereafter, he was adjudicated a fourth felony offender. He was sentenced to 40 years at hard labor, with credit for time served, to run consecutively with any other sentence. Barrett was also ordered to pay restitution to the victim in the amount of $500.00. Barrett appeals his conviction and sentence, which we affirm for the following reasons.

Facts

Barrett was charged by bill of information with simple burglary for the burglary of Southern Automotive Services (“Southern Automotive”) in Shreveport, Louisiana, a felony offense in violation of La. R.S. 14:62. He was convicted after a jury trial. The state filed a multiple offender bill under La. R.S. 15:529.1, and Barrett was adjudicated a fourth felony offender after a multiple offender hearing. He was sentenced to 40 years at hard labor, with credit for time served, to run consecutively with any other sentence. In addition, Barrett was also ordered to pay restitution to Southern Automotive in the amount of $500.00. This appeal by Barrett ensued.

* Discussion

In his first assignment of error, Barrett argues that there was insufficient evidence to support his conviction for simple burglary. Specifically, Barrett maintains that the state failed to prove beyond a reasonable doubt that he had the specific intent to commit a theft or felony inside Southern Automotive, arguing that specific intent cannot be inferred Rfrom the fact that he was found hiding in the attic of the main building. Barrett asserts that he hid in the attic out of fear of the K-9 dogs and police officers and that no items were found missing from the premises. Barrett concludes that a rational trier of fact, after viewing ■ the evidence in the light most favorable to the prosecution, would not have found him guilty of simple burglary, and thus, the verdict must be set aside. We disagree.

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.04/02/97), 691 So.2d 347, writ denied, 1997-1203 (La.10/17/97), 701 So.2d 1333.

When considering the issue of sufficiency of evidence, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 1995-1377 (La.02/28/96), 668 So.2d 1132. It is the role of the fact finder to weigh the respective credibility of the witnesses and, therefore, an appellate court accords great deference to a 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.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. In the absence of internal contradiction or irreconcilable conflict with other evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir.05/08/96), 674 So.2d 1018, writ denied, 1996-1459 (La.11/15/96), 682 So.2d 760, writ denied, 1998-0282 (La.06/26/98), 719 So.2d 1048.

To convict an accused of simple burglary, the prosecution must prove there was an unauthorized entry of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in La. R.S. 14:60. La. R.S. 14:62; State v. Bullard, 29,662 (La. App. 2d Cir.09/24/97), 700 So.2d 1051.

The only contested issue in this case was whether Barrett entered Southern Automotive with the intent to commit a theft. Although intent is a question of fact, it need not be proved as a fact. State v. Robinson, 29,488 (La.App. 2d Cir.06/18/97), 697 So.2d 607, writ denied, 1997-1845 (La.12/12/97), 704 So.2d 1200. It may be inferred from the circumstances. State v. Kahey, 436 So.2d 475 (La.1983); State v. Robinson, supra. Moreover, it is not necessary that an actual theft occur. State v. Hall, 26,505 (La.App. 2d Cir.12/07/94), 647 So.2d 453. Flight and attempt to avoid apprehension are circumstances from which the jury may infer a guilty conscience. State v. Fuller, 418 So.2d 591 (La.1982); State v. Roberson, 40,809 (La.App. 2d Cir.04/19/06), 929 So.2d 789.

|4On October 8, 2005, police officers responded to a silent alarm that was triggered at Southern Automotive. The business establishment was locked and closed for business. Officer Robert Rivet of the Shreveport Police Department, one of the first responding officers, testified at Barrett’s trial that he heard movement inside the store and called for the K-9 unit. Officer Joseph Dews testified that he observed a hole in the back of the building. He also testified that Sammy Goldman, Southern Automotive’s manager, had to unlock the building so that the officers could begin their investigation. Goldman testified that he arrived at the scene to allow the police officers access into the building so that the officers could begin their investigation.

The officers gave loud verbal warnings to the perpetrator, indicating that the K-9 units would soon enter. After no response, a K-9 dog went inside the building and led the officers into an attic space above the office area. Barrett was discovered in a back corner area, lying between two rafters with a plywood board on top of him. Officer T.G. Morrison advised him to show his hands, and after Barrett refused to comply, Off. Morrison ordered his K-9 dog to bite Barrett. The dog obeyed his command, causing Barrett to begin kicking and punching the dog. After Barrett followed the officer’s verbal commands, he was placed under arrest. Barrett was led down from the attic space whereupon Goldman informed the arresting officers that Barrett was not an employee nor did he have permission to be inside the building. Thereafter, Barrett was advised of his Miranda rights. When the officers questioned Barrett as to whether he had heard their loud Rverbal warnings announcing their presence before they entered the building, he indicated that he had heard the warnings but chose to hide.

Goldman testified that Barrett did not have permission to be inside Southern Automotive. He further testified that there were valuable pieces of equipment inside the building, including hand tools, power tools, computers, and small electrical equipment that could easily be picked up and carried out. Goldman testified that after the burglary, he noticed that two tires had been removed from inside the building and left in a field. He had no explanation for the tires being in the field other than the burglary. Furthermore, he testified that the tires would have had to be removed for Barrett to gain entry into the building.

Additionally, we note that Barrett did not voluntarily surrender when the police officers gave verbal warnings announcing their presence. Instead, a K-9 dog had to be called out to locate Barrett, because he would not come out of hiding as requested by the police. Moreover, when ordered to do so, Barrett refused to show his hands. As a result, Off. Morrison ordered his K-9 dog to bite him, and Barrett retaliated by punching and kicking the dog.

In light of the circumstances, it was reasonable for a jury to infer that Barrett entered the store with the intent to commit a felony or theft. Thus, upon viewing the evidence in the light most favorable to the prosecution, it was reasonable for any rational trier of fact to find that the state proved all elements of simple burglary beyond a reasonable doubt. We conclude that this assignment is without merit.

| ⅛Habitual Offender Proceedings

In his second assignment of error, Barrett argues that the trial court erred in denying his motion to quash the multiple bill of information and, from that, in finding him to be a quadruple offender. Specifically, he argues that the plea transcript for one of the predicate offenses was permanently missing, and, therefore, he was thwarted in his attempt to meet his burden of proof to show that his plea was involuntary.

Citing State v. Shelton, 621 So.2d 769 (La.1993), Barrett argues that a defendant is entitled to a transcript of a plea hearing to use in proving that his guilty plea was not made knowingly and voluntarily. In Shelton, supra, the issue was whether there was sufficient proof of a prior felony conviction under La. R.S. 15:529.1 where the state, at the habitual offender hearing, introduced a minute entry which stated the judge “gave the defendant his rights” and a well-executed guilty plea/waiver of rights form, rather than introducing the actual transcript of the plea colloquy.

The state’s burden of proof in habitual offender proceedings under La. R.S. 15:529.1 is stated in Shelton, supra at 779-80:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his ^accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights.

The Shelton court held that this new procedure would give appropriate significance to the presumption of regularity which attaches to judgments of conviction which have become final.

In the instant case, it was impossible for the state to produce the guilty plea transcript for Barrett’s second felony conviction in Docket No. 187,036. As a result, the state produced a certified copy of the bill of information with Barrett’s fingerprints and a certified copy of the trial court minutes. The certified court minutes reflect that Barrett was represented by counsel and was Boykinized. At his habitual offender proceeding, Barrett urged, however, that the minutes of the guilty plea did not affirmatively show that he was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers as required by Boy-kin, supra. After hearing arguments from both sides and reviewing the documentation presented by the state, the trial court ruled that the state had satisfied its burden of proof and denied Barrett’s motion to quash. This was not in error.

Barrett admits that the state met its initial burden of proof with the introduction into evidence of the certified copies of the bill of information and minute entry, which showed he pled guilty to simple burglary after being advised of his rights per Boykin. Thus, the sole issue to be addressed |sis whether the unavailable transcript was the only means by which Barrett could have met his burden of proving that his plea was involuntary.

A defendant can attempt to meet his burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence. Shelton, supra at 779. Only when this is accomplished will the state be required to establish the constitutionality of the previous conviction. State v. O’Neal, 34,814 (La.App. 2d Cir.10/12/01), 795 So.2d 1292.

Pursuant to Shelton, the introduction of the guilty plea transcript was not the only means Barrett had to attack the habitual offender charges against him. Barrett could have testified regarding the taking of his guilty plea or presented other affirmative evidence, such as a guilty plea/waiver of rights form, showing some defect in the proceeding. Thus, he was not precluded from offering evidence other than the plea transcript that became permanently unavailable. Moreover, because Barrett failed to object to the introduction of the court minutes or offer any affirmative evidence, he failed to meet his burden. Thus, the trial court did not err in denying Barrett’s motion to quash the multiple bill of information and adjudicating him a fourth felony offender. This assignment is without merit.

Sentencing

In his final assignment of error, Barrett argues that the forty-year sentence imposed on him as a habitual offender is excessive under the circumstances of this case. He argues that his sentence is excessive given 18that he has only been convicted of burglaries and one other property-related crime. He further argues that he is a non-violent, petty criminal and the forty-year sentence imposed is grossly disproportionate to the seriousness of his crimes and does not warrant such an excessive sentence. We disagree.

In reviewing a sentence for ex-cessiveness, this court must first determine whether there has been compliance with La. C. Cr. P. art. 894.1 in the imposition of sentence. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. State v. Price, 40,437 (La.App. 2d Cir.01/25/06), 920 So.2d 389. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App. 2d Cir.04/02/97), 691 So.2d 864.

A second inquiry is made to determine whether the sentence is too severe given the circumstances of the case and the defendant’s background. If it is a needless imposition of pain and suffering and is grossly disproportionate to the seriousness of the offense so as to shock one’s sense of justice, the sentence is considered unconstitutionally excessive as violative of La. Const. art. 1, § 20. Both inquiries must be made to ^determine if the sentence imposed is proper. State v. Lobato, 603 So.2d 739, 751 (La.1992).

A trial court has broad discretion to sentence within the statutory limits. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.06/24/98), 715 So.2d 641. Absent a showing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2d Cir.05/12/04), 873 So.2d 939.

Before imposing the sentence, the trial court ordered a presentence investigation report (the “PSI”) and carefully reviewed the sentencing guidelines as required by La. C. Cr. P. art. 894.1. The trial court observed that Barrett had an extensive criminal record, including prior convictions for armed robbery, simple kid-naping, and simple escape in 1982. He was also convicted of simple burglary in 1986, other numerous burglaries and some misdemeanors. Most significantly, the trial court noted that Barrett was on parole at the time he committed the instant offense.

Moreover, Barrett’s social history, as outlined in the PSI, provides little explanation for his extensive criminal record. In the report, Barrett suggests that he had a relatively normal childhood and was raised in a good home. Additionally, Barrett has no history of mental illness or serious drug use. Nonetheless, Barrett is a career criminal and has admittedly never held any long-term employment — other than crime, that is.

| ¶ Barrett’s sentence is not too severe given the sentencing statutes and his criminal background. After determining the sentencing range of penalties under the habitual offender law to be 20 years to life imprisonment at hard labor for a fourth felony offender, the trial court held discussions with both sides and concluded that a forty-year sentence at hard labor was appropriate for Barrett. Thus, in light of the circumstances, the sentence is not grossly disproportionate to the seriousness of the offense so as to shock the sense of justice. We find no error by the trial court on this issue.

Conclusion

For the foregoing reasons, Anthony Ray Barrett’s conviction and sentence are affirmed.

AFFIRMED.