author: WILLIAMS, J.

text:
    J.D. GILLIARD, Plaintiff-Appellee v. Toniya D. COLLINS and Safeway Insurance Company of Louisiana, Defendant-Appellant.
    No. 42,460-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 7, 2007.
    Tracy L. Oakley, Anthony B. Inzina, for Appellant.
    Carl H. Franklin, Shreveport, for Appel-lee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   WILLIAMS, J.

I-i The defendants, Toniya Collins and Safeway Insurance Company of Louisiana (“Safeway”), appeal a judgment awarding $10,000 in total damages to the plaintiff, J.D. Gilliard. For the following reasons, we affirm.

FACTS

At approximately 10:00 a.m. on March 10, 2005, the vehicle driven by Toniya Collins collided with J.D. Gilliard’s vehicle at the intersection of Fairfield Avenue and Kings Highway in Shreveport, Louisiana. Safeway insured Collins’ automobile under an insurance policy that provided bodily injury liability limits of $10,000 per person and $20,000 per accident.

On March 11, 2005, the day following the accident, Gilliard sought treatment at Doctors’ Hospital complaining of left shoulder pain. The emergency room physician advised plaintiff to apply heat to his shoulder and prescribed pain medication. Dr. Joseph Sarpy, Jr., a family medicine physician, began treating plaintiff on March 16, 2005 and found strain and spasm of the muscle and ligaments of the neck, upper and lower back, left shoulder girdle and left upper arm. On the date of plaintiffs final visit, April 19, 2005, Dr. Sarpy found no evidence of permanent injury.

The plaintiff, Gilliard, filed a petition for damages against the defendants, Safeway and Collins, in Shreveport City Court. Safeway stipulated to the liability of Collins in causing the accident. Thus, quantum was the sole issue at trial.

Subsequently, the trial court rendered judgment awarding the plaintiff damages of $10,000, the insurance policy limits, plus interest and costs. | ¡^Safeway appeals the judgment.

DISCUSSION

The defendant contends the trial court erred in awarding excessive damages. Defendant argues that the trial court abused its discretion in awarding general damages of $6,801.80 for soft tissue injuries requiring one month of medical treatment.

General damages involve mental or physical pain and suffering, inconvenience and loss of intellectual or physical enjoyment. George v. Allstate Insurance Co., 32,899 (La.App.2d Cir.4/5/00), 758 So.2d 373. The trial court has much discretion in the assessment of damages, so that an appellate court should rarely disturb an award of general damages. LSA-C.C. art. 2324.1; Moody v. Blanchard Place Apartments, .34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281, writ denied, 01-2582 (La.12/14/01), 804 So.2d 647. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when an award is beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the individual plaintiff under the particular circumstances that the appellate court .should increase or reduce the award. George, supra; Morris v. United Services Automobile Association, 32,528 (La.App.2d Cir.2/18/00), 756 So.2d 549. An abusively low award is raised to the lowest amount, and an abusively high award is reduced to the highest amount, the trier of fact could have reasonably awarded. Moody, supra.

Whether an award is excessive depends upon a determination of |swhether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the factfinder. Moody, supra; Morris, supra. A victim is entitled to compensation for an aggravation of a pre-existing condition or injury. Morris, supra.

In the present case, the plaintiff went to the Doctors’ Hospital emergency room on March 11, 2005, the day after the accident, complaining of pain in his' left shoulder, neck and upper back. The physical examination showed that plaintiff experienced left-shoulder pain upon raising his left arm and there was tenderness of the left tra-pezius muscle and the left cervical paraspi-nous muscle. Plaintiff was diagnosed with cervical strain and muscle spasm. He was instructed to rest and apply heat to his shoulder and neck. The emergency room physician gave plaintiff prescriptions for Flexeril, Naproxen and Lorcet to relieve pain and inflammation.

On March 16, 2005, the plaintiff visited Dr. Joseph Sarpy, Jr., with complaints of injuries from the auto accident on March 10, 2005. At trial, Dr. Sarpy testified that he had prepared a written report summarizing the plaintiffs treatment. Dr. Sarpy reported that plaintiffs physical examination showed tenderness, strain and spasm of the posterior neck and trapezius muscle. Dr. Sarpy noted that plaintiff felt increased pain in turning his head from side to side and that there was tenderness, strain and spasm of the lumbar spinal musculature and of the muscles in the left shoulder girdle and left upper arm. Dr. Sarpy diagnosed plaintiff with strain and spasm of the muscles in the cervical, thoracic and lumbar spine, the left |4shoulder and left upper arm.

Dr. Sarpy treated plaintiff with therapy that consisted of applying hot packs to the areas of muscle pain and ultrasound massage three times per week. Dr. Sarpy reported that he gave plaintiff a prescription for a muscle relaxer and that plaintiffs last treatment was on April 15, 2005. Dr. Sarpy testified that considering the plaintiffs age he made steady progress and that when plaintiff was discharged on April 19, 2005, there was no evidence of permanent injury. The total charge for the medical treatment provided by Dr. Sarpy was $2,315.

The plaintiff testified that he did not seek medical treatment immediately following the March 2005 accident. Plaintiff stated that the next morning he felt pain in his left shoulder when trying to lift his left arm and he went to the emergency room at Doctors’ Hospital. Plaintiff testified that the emergency room physician prescribed pain medication and instructed him to rest and apply heat to his shoulder. Plaintiff stated that during the next week, he continued to feel pain in his left shoulder, which became stiff overnight, and that he needed help from his wife to put on his shirt in the mornings.

In addition, plaintiff testified that on March 16, 2005, he visited Dr. Sarpy, who provided treatment that helped relieve the pain and muscle soreness in his left shoulder and arm. Plaintiff stated that he was 75 years old and had retired from a manufacturing job, but was then self-employed in a part-time lawn care business. He testified that at the time of trial, he still felt intermittent pain in his left shoulder as a result of the accident. The |5plaintiff stated that he had been hospitalized in 2003 for pain in his left hand and arm due to carpal tunnel syndrome, but surgery had cured that pain.

Gloria Gilliard, the plaintiffs wife, testified that he complained of pain in his left shoulder after the accident and that she helped him to get dressed for some time afterward. Although at one point, Mrs. Gilliard stated that she was not sure which shoulder plaintiff had injured in the accident, she said that plaintiff continued to complain of pain in his left shoulder at the time of trial.

In their appellate brief, the defendants argue that the accident merely aggravated plaintiffs pre-existing shoulder pain and that the evidence did not support the trial court’s finding that plaintiff sustained a new onset of pain as a result of the accident. The medical records introduced into evidence demonstrated that plaintiff experienced muscle spasms in his left shoulder and neck after the accident. In his report, Dr. Sarpy noted that on April 8, 2005, plaintiff continued to have muscle spasms in his left shoulder muscles, but was improving. In his testimony, Dr. Sarpy opined that plaintiffs muscle strain and pain were caused by the auto accident and that the medical care provided to plaintiff was reasonably necessary to treat those injuries. Contrary to defendants’ assertion in their brief, Dr. Sarpy did not testify that plaintiff was asymptomatic on his final visit in April 2005. Although Dr. Sarpy reported that he did not find evidence of permanent injury, he did not state that plaintiff was free of pain symptoms at that time.

The trial court heard the testimony and weighed the credibility of the witnesses. Considering the medical evidence and witness testimony | presented, we cannot say the trial court was clearly wrong in finding that plaintiff sustained an injury to his left shoulder in the auto accident and that plaintiff was still experiencing intermittent left-shoulder pain at the time of trial. After reviewing the record, we conclude that the trial court did not abuse its broad discretion in the award of general damages for the particular injuries to this plaintiff. Thus, the assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellants, To-niya Collins and Safeway Insurance Company of Louisiana.

AFFIRMED.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jeffrey Scott YOUNG, Appellant.
    No. 42,730-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 7, 2007.

      Louisiana Appellate Project, by Annette Roach, Lake Charles, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before GASKINS, PEATROSS & DREW, JJ.
   PEATROSS, J.

11 Defendant, Jeffery Scott Young, was charged by bill of indictment with two counts of aggravated rape. As a result of a plea agreement, the charges were reduced to two counts of forcible rape and Defendant pled guilty. The trial court subsequently imposed the maximum sentence of 40 years for each count with the sentences to run consecutively. A timely motion for reconsideration of sentence was denied, and this appeal followed. For the following reasons, we affirm.

FACTS

On January 26, 2006, Defendant was at home with his two and three-year-old stepdaughters while their mother was working. According to Defendant, he heard the two-year-old crying in her room and found that she needed a diaper change. As he attempted to change the diaper, Defendant stated he noticed loose stool coming from the young victim’s rectum and a bruise. Defendant called an ambulance, and the victim was taken to the hospital. Upon arrival at the hospital, the doctors observed what they believed to be obvious signs of sexual trauma. Police were contacted, and the child was transported to LSU Medical Center by child protective services where she underwent surgery to repair the injuries to her anus and colon. Dr. Ann Springer of LSU Medical Center advised detectives investigating the incident that it was probably one of the worst cases of child sexual abuse she had seen in her many years of caring for child victims. Dr. Springer also examined the victim’s three-year-old sister and found she also showed signs of recent anal rape as well.

| {.During his interview with detectives, Defendant maintained that he did not injure the child, but the child had apparently fallen from her bed and injured herself on a toy. Defendant consistently maintained this version of the events even when confronted with information that doctors opined that it would have been impossible for the child’s severe injuries to be caused by falling from a bed and the lack of finding any diaper material imbedded in the child’s anal cavity.

Detectives obtained permission from Defendant and his wife to search their home on the day of the incident. During the search, detectives observed that the children’s room did not have any toys on the floor or about the room that could have caused the young victim’s injuries as alleged by Defendant. Two bottles of massage oil were observed in Defendant’s bedroom. Prior to leaving for work, the mother had changed the two-year-old’s diaper, and she did not notice any bruise or any other injuries. When questioned ■ later, the victims’ mother indicated that the massage oil was not kept in the place where it was found, and it had not been there when she left the home for work that morning. From interviews with both Defendant and the victims’ mother, detectives were able to learn that the couple met in March 2005 on a chat line. The couple married in July 2005.

Defendant was initially charged with two counts of aggravated rape; and, as a result of the plea agreement, Defendant was allowed to plead guilty to two counts of forcible rape. A pre-sentence investigation was ordered. Defendant was sentenced to 40 years at hard labor without benefit of probation, parole or suspension of sentence on each count, with the | ¡¡sentences to run consecutively. A timely motion to reconsider sentence was denied by the trial court, and this appeal followed.

DISCUSSION

Defendant now alleges that his sentence is too severe considering his age and his first offender status. The State counters that Defendant greatly benefitted from the reduction of the charges; and, considering the facts and circumstances of this case, the sentence is not excessive.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The second inquiry involves a determination of whether the sentence imposed is too severe. This inquiry depends on the circumstances of the case and the background of Defendant.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. McCall, 37,442 (La. App.2d Cir.8/20/03), 852 So.2d 1162, writ denied, 04-0039 (La.12/17/04), 888 So.2d 858. A defendant’s lack of remorse is a proper sentencing consideration. State v. Shipp, 30,562 (La.App.2d Cir.4/8/98), 712 So.2d 230, writ denied, 98-1199 (La.9/25/98), 724 So.2d 775; State v. Daniels, 607 So.2d 620 (La.App. 2d Cir.1992).

|4The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id. At the sentencing hearing held April 19, 2007, the trial court noted the reduction of the original charges and Defendant’s guilty plea to the reduced charges. The trial court also noted that it had reviewed the information contained in the PSI and set forth the information contained therein for the record. It observed that Defendant was born on July 2, 1985, making him 20 years old at the time of the offense and that he was a first-felony offender with no reported criminal history. The trial court reiterated the facts of the crime, including that Dr. Springer noted that the abuse to the two-year-old was the worse case she had seen and that the child’s colon was protruding from her rectum when she was examined. The trial court also noted that, in Defendant’s statement given for the pre-sentence investigation, he basically denied any culpability for the acts. Defendant | ¡¡stated he only pled guilty because his lawyers recommended doing so. The trial court also noted that it received a letter from the victims’ mother regarding the severe physical and emotional trauma the children had suffered as a result of Defendant’s actions.

The record shows that the trial court appropriately considered Defendant’s age, his offender class, his criminal history, social history and prior education in determining the appropriate sentence for Defendant. The trial judge was not required to give any factor a particular weight in determining Defendant’s sentence.

A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a needless and purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La. App.2d Cir.4/2/97), 691 So.2d 864.

Despite Defendant’s contentions, we do not find constitutional error in the imposition of the maximum consecutive sentences in this case. Even considering the litany of cases cited by Defendant wherein lower sentences were imposed, we are not compelled to conclude that the sentences imposed upon Defendant for these particularly heinous offenses are excessive. |fiConsidering the facts of this case, particularly the harm done to the children and their extreme youth, these sentences are appropriate to the circumstances of this case. The maximum sentences imposed in this case are lawful and are neither grossly disproportionate to the severity of the offenses of conviction, nor are they shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of these sentences.

CONCLUSION

For the reasons set forth above, the sentence of Defendant, Jeffrey Scott Young, is affirmed.

AFFIRMED.


author: DREW, J.

text:
    Phoebe M. HUDSPETH, Plaintiff-Appellant v. James G. SMITH, Attorney and Carol D. Powell-Lexing, Attorney, Defendant-Appellee.
    No. 42,647-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 7, 2007.

      Phoebe Marcella Hudspeth In Proper Person.
    James Garland Smith, In Proper Person.
    Sir Clyde Lain, II, Monroe, for Appellee Carol D. Powell-Lexing.
    Before BROWN, GASKINS and DREW, JJ.
   DREW, J.

| -iThis appeal arises from an action brought by plaintiff, Phoebe M. Hudspeth, against her attorneys, James G. Smith and Carol D. Powell-Lexing, alleging negligence, theft, breach of fiduciary duty, misrepresentation, and breach of contract. Powell-Lexing was dismissed with prejudice in a September 18, 2006, judgment sustaining an exception of no cause of action based on lack of an attorney-client relationship between Powell-Lexing and Hudspeth. Subsequently, in a September 21, 2006, judgment, the trial court dismissed Hudspeth’s claims against Smith. Hudspeth filed a motion to appeal this latter judgment, and the trial court determined the motion to be timely. For the following reasons, we affirm the trial court’s judgment.

FACTS

Hudspeth was employed for a short period of time as a Regional Human Resources Manager for Spectra Communications in Missouri. On November 3, 2000, Spectra fired her, and on May 4, 2001, she filed a claim with the EEOC alleging racial discrimination. She later filed suit against Spectra Communications Group, L.L.C., in the federal court for the Western District of Missouri. Hudspeth alleged that she had suffered disparate treatment because of her race and gender, a hostile work environment because of her race, and retaliation. In January of 2003, the federal district court dismissed Hudspeth’s lawsuit on Spectra’s motion for summary judgment. The dismissal was affirmed in an unpublished opinion. Hudspeth v. Spectra Communications Group, L.L.C., 83 Fed. Appx. 145 (8th Cir.2003).

12In January 2005, Hudspeth wrote two letters to Smith to see if he would provide legal representation for her in litigation related to her former employment. Smith indicated in the letters that CenturyTel, together with Spectra Communications, had intentionally defrauded and taken advantage of her, that they misled her into believing that Spectra was her employer, and that as a result of the deception she had neglected to name CenturyTel in her initial legal action. Later that month, Hudspeth and Smith met at a restaurant to discuss Hudspeth’s interest in pursuing a lawsuit against CenturyTel. Hudspeth wanted Smith to find a way to sue Centu-ryTel. According to Smith, he indicated that he would be glad to investigate and consider representing Hudspeth, and that his hourly rate was $150. Smith denied being willing to take the case on a contingency basis. Hudspeth denied that Smith told her his hourly rate, and indicated that Smith had orally offered her a contingency contract.

In March 2005, Hudspeth wrote Smith two more letters. The first acknowledged their meeting and indicated that enclosed were a number of “file documents,” including among other things, complaints filed in the initial litigation, a motion for and opposition to summary judgment, and a district court order as well as an appellate court decision. The second letter indicated that it enclosed “additional file documents to aid in your review,” but did not further identify the documents. Both letters bore a caption indicating that they were regarding “Potential Employment/Torts Litigation based on Equitable Tolling.”

|sIn April, Hudspeth sent Smith a certified letter with the same caption, asking if he had received her “numerous telephone voicemail messages” and indicating that she had tried to communicate numerous times via voicemails and written correspondence. She asked Smith to inform her whether “we still need to meet or move forward with processing.”

In May, Hudspeth met with Smith and Powell-Lexing. At that time, Hudspeth gave Smith a check for $1,000 as a retainer. Smith endorsed the check over to Powell-Lexing. Smith testified that the money was not adequate to cover the work already done, and that because he was busy, Smith had Powell-Lexing come in to do research along with Smith’s legal assistant. Smith also indicated he used the check as a deposit for Powell-Lexing’s participation. Hudspeth testified that although there was a contingency fee contract, Smith asked for the money so he could start working on her case.

Hudspeth testified that after the May meeting, Smith ignored her calls to him checking on the progress of the case, and she wrote additional letters in August, October, and December 2005 seeking an update. She testified that on January 14, 2006, Powell-Lexing called to say she and Smith had been working on the case, and that they would have a conference call with her to discuss it; however, the conference call never occurred. A January 16, 2006, letter from Hudspeth to Powell-Lexing made reference to Powell-Lexing’s response and went over what Hudspeth considered to be the major issues, while a January 27, 2006, fax to Smith and Powell-Lexing indicated that she and the attorneys had agreed to meet the following Monday “to |4finalize and file documents.” According to Hudspeth, this meeting took place on Monday, January 30, 2006, at which time she learned that Smith had not drafted any documents. Hudspeth testified that Smith told her at the time that he would “go downtown on Jackson Street” and file her case the following Monday. Smith denied ever making that statement.

Hudspeth further testified that on February 2, 2006, Smith informed her that he had concerns about whether filing the case would “bring CenturyTel to the table.” On cross-examination, she admitted Smith advised her in February 2006 that he had determined that because CenturyTel had been a joint venturer with Spectra, the entity against which Hudspeth had filed her initial legal action, an action against CenturyTel would be subject to res judica-ta. Hudspeth sent Smith a letter dated February 2, 2006, expressing her displeasure and disappointment, and requesting Smith to return all file documents and funds to her. She followed up the letter with a March 1, 2006, fax indicating that she had not yet received anything and requesting Smith’s immediate attention and prompt action.

Hudspeth filed suit against Smith and Powell-Lexing on March 27, 2006, making the allegations previously noted. In addition to her testimony, she introduced into evidence copies of the letters and faxes she had sent, as well as the $1,000 check. She also introduced a list of her claimed expenses and damages. However, she attempted unsuccessfully to introduce a document purportedly from the Louisiana State Bar Association in connection with her assertion, which she raises on appeal, that Smith was | ¡^ineligible to practice law during a period of the attorney-client relationship between them. The trial court sustained an objection based on lack of relevance, and Hudspeth did not proffer the document.

After Hudspeth concluded her presentation of the case, the court dismissed Powell-Lexing on an exception of no cause of action. The court also denied a motion for a directed verdict by Smith, who then testified to his due diligence in looking at all aspects of the matter and eventually concluding that res judicata would apply to a suit against CenturyTel. He indicated that Hudspeth “wasn’t too pleased” with his analysis which she considered to be “a narrow interpretation.” Smith denied ever promising Hudspeth that he would file a lawsuit, or indicating that he had prepared a petition, or was on his way to the courthouse. He also denied talking to Hudspeth about a contingency fee contract and indicated that approximately 20 hours of research had been performed in assessing whether a successful claim could be made against CenturyTel.

Smith expressed his belief that he had been “very nice and lenient” by not demanding a large deposit, and stated that while Hudspeth may have been disappointed that she was not his only client, he and his staff “could not all the time just continually talk to her” each time she wanted to discuss matters, particularly when they were “working trying to develop her case.” Smith also indicated on cross-examination that while he remembered receiving the February letter requesting return of Hud-speth’s documents, he had given instructions to his paralegal to send them and thought the matter was concluded until he later heard from Hudspeth.

| (¿Pursuant to his cross-examination of Hudspeth, and over her objection, Smith introduced several items from Hudspeth’s prior suit against Spectra. The order dismissing her federal lawsuit indicated that Spectra was a joint venture consisting of several investors, including CenturyTel. The federal court found no material facts in dispute and that Hudspeth was discharged as a direct result of numerous complaints made against her by her coworkers, not because of racial animus. The court also found that she had put forward no evidence that she was discharged because of her gender, that she had provided absolutely no factual basis for her claim of hostile work environment, and that she had been unable to show that Spectra’s proffered reason for terminating her — the numerous complaints regarding her performance — was a pretext for discrimination. The court also noted that while Hudspeth’s complaint was the first EEOC complaint against Spectra, Hud-speth had “filed EEOC complaints against every employer for whom she has worked since 1978 (as listed by her resume), and filed suit against all but one.”

In the instant case, the trial court found that $1,000 “would not be out of line with the work performed,” and found that Hud-speth failed to satisfy her burden of proof. With respect to Hudspeth’s complaints at trial concerning the confidentiality of contents of her file that Smith had put into evidence, the court stated that “when you sue ... the lawyer alleging he failed to do the work, it would be natural for him to defend it by showing his files.” The court also denied a reconventional demand that Smith had filed for the value of legal services in excess of $1,000.

| .DISCUSSION

On appeal, Hudspeth raises the following four issues in her pro se appellate brief:

• The trial court erred and abused its discretion in denying the ineligibility evidence from the Louisiana State Bar Association, which prevented and denied plaintiff the opportunity to establish her malpractice claim.
• The trial court erred and abused its discretion in dismissing her case because Smith had “unclean hands” by refusing to return her case file.
• The trial court erred and abused its discretion in granting Powell-Lexing’s exception of no cause of action and motion to strike.
• The trial court erred, abused its discretion, and committed prejudicial error by allowing improper, inadmissible, and unfairly prejudicial evidence.

Ineligibility Evidence

To establish a claim for legal malpractice, a plaintiff must prove: (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence. Failure to prove one of these elements is fatal to the claim; a plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim. Dark v. Marshall, 41,711 (La.App.2d Cir.12/13/06), 945 So.2d 246.

While Hudspeth has unquestionably shown an attorney-client relationship between her and Smith, she has not shown that his brief period of ineligibility resulted in any loss to her. Additionally, with respect to 18proof of loss, we note that her suit against Spectra was dismissed on summary judgment, and she did not establish how a suit against CenturyTel would have fared any better. Nor has she set forth any legal arguments why res judica-ta would not apply to such a lawsuit.

Furthermore, concerning Hud-speth’s allegation on appeal that Smith violated the Rules of Professional Conduct by not accounting for and returning unearned fees, we note that the court essentially found the work performed on the case was worth the $1,000 paid by Hud-speth. An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Bright Morning Star Missionary Baptist Church v. Brown, 38,333 (La.App.2d Cir.5/28/04), 877 So.2d 1003, writ not considered, 2004-2136 (La.11/15/04), 887 So.2d 466. We detect no abuse of discretion here. Additionally, we note that outside the context of actual loss suffered, Hudspeth’s claims on appeal of lack of diligence, failure to communicate, failure to cooperate, and failure to notify of ineligibility to practice law are properly addressed through complaints to the Louisiana State Bar Association.

Finally, we note that evidence that has been excluded should have been proffered. See La. C.C.P. art. 1636. It is incumbent upon the party who contends its evidence was improperly excluded to make a proffer, and if it fails to do so, it waives its right to complain of the exclusion on appeal. Goodwin v. Goodwin, 618 So.2d 579 (La.App. 2d Cir.1993), writ denied, 623 So.2d 1340 (La.1993); Engineered Mechanical Services, Inc. v. Langlois, 464 So.2d 329 (La.App. 1st Cir.1984), writ denied, 467 So.2d 531 (La.1985).

The Case File

For the reasons set forth above, not returning the case file, standing alone, does not equate to legal malpractice. Hudspeth has not shown how she suffered any loss because the file was not promptly returned. We note that Hudspeth introduced copies of the faxes and letters she had sent, thus showing that Smith’s possession of the file did not inhibit her in that regard, and she does not allege that there was anything else in the file that she needed, but did not have access to, in preparing her case against Smith.

Exception of No Cause of Action

While Hudspeth argues against the dismissal of Powell-Lexing, she did not appeal the judgment granting the exception of no cause of action. That final judgment was signed on September 18, 2006, but Hudspeth’s motion for appeal only requests an appeal from the September 21, 2006, judgment. Accordingly, the former judgment is final and definitive and cannot now be questioned on appeal.

Introduction of the Case File into Evidence

In Hudspeth’s last argument, she complains about Smith introducing her case file into evidence over her objection. She asserts that the file contained “confidential and privileged documents” and that it had no relevance to the proceeding. According to Hudspeth, Smith used the file to “stack the deck” against Hudspeth.

| mlnitially, we note that Hudspeth does not identify any particular document or documents or explain how their introduction worked against her. Instead, if the file had no relevance to the proceeding, as Hudspeth alleges on appeal, then even erroneous introduction of file contents would not suggest any resulting harm or prejudice. On the other hand, we note that La. C.E. art. 506 recognizes the lawyer-client privilege under which a client has a privilege to prevent a lawyer from disclosing a confidential communication, whether oral, written, or otherwise, made for the purpose of facilitating the rendition of professional services. However, La. C.E. art. 506 has a specific exception under which there is no privilege for a communication “which is relevant to an issue of breach of duty by a lawyer to the client or by a client to the client’s lawyer.” Hudspeth asserted numerous breaches of duty by Smith, as well as theft, and Smith was entitled to introduce evidence from the case file in defense of the allegations against him. The defense exhibits herein consisted of various items, including briefs and depositions, from the initial litigation against Spectra. These items concerned the factual and legal background of the matter on which Hudspeth wanted Smith to file a lawsuit and they were relevant to the complexity of the research and difficulty of the work that Smith undertook. Therefore, they had relevance to the value of the legal services rendered.

DECREE

For the reasons set forth above, at appellant’s costs, the judgment of the trial court is AFFIRMED.

      . According to the federal district court's order dismissing Hudspeth's suit, CenturyTel was a partner in the joint venture known as Spectra Communications.

      . According to a document attached to Hud-speth's reply brief, Smith had been ineligible to practice from October 31, 2005, to January 30, 2006, because of his failure to pay his annual State Bar dues and annual Disciplinary Board assessment. This covers only a portion of the time that Smith represented Hudspeth in this matter, and the record is unclear whether Smith earned any part of his fee during this period.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Charlie L. MOORE, Appellant.
    No. 42,762-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 7, 2007.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    Jerry L. Jones, District Attorney, John Michael Ruddick, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART, and GAKSINS, JJ.
   BROWN, Chief Judge.

| defendant was originally charged by bill of indictment with aggravated rape of the victim, his then 12-year-old stepdaughter, a violation of La. R.S. 14:42(A)(4). The offense was alleged to have occurred between January 1, 2003, and May 30, 2003. The victim gave birth to a child in February 2004. The state then filed an amended bill of indictment charging defendant with aggravated incest, a violation of La. R.S. 14:78.1, and defendant pled guilty. On February 14, 2007, defendant was sentenced to the maximum term of 20 years of imprisonment at hard labor.

This appeal followed, and defendant’s appellate counsel has filed a Benjamin brief, alleging that he could find no non-frivolous issues to raise on appeal and has moved to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlines the facts and procedural history of the case. Defense counsel further verifies that he has mailed copies of the motion to withdraw and his brief to defendant, in accordance with the above cited jurisprudence. On August 7, 2007, this court notified defendant, Charlie L. Moore, that he could file a brief in this appeal within 30 days of its order. Defendant has not requested the record, nor has he filed a brief.

This court has conducted an error patent review of the appellate record; no such errors were found. Furthermore, the record supports defendant’s sentence of 20 years of imprisonment at hard labor for this heinous crime.

12Conclusion

The motion to withdraw is granted, and defendant’s conviction and sentence are affirmed. AFFIRMED.

      . State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).


text:
    STATE of Louisiana, Appellee v. Leon MITCHELL, Appellant.
    No. 42,747-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2007.

      Louisiana Appellate Project by Cary J. Ellis, III, for Appellant Leon Mitchell.
    Paul Joseph Carmouche, District Attorney, Lea R. Hall, Jr., John Ford McWil-liams, Jr., Assistant District Attorneys, for Appellee.
    Before GASKINS, PEATROSS and DREW, JJ.
   DREW, J.

|, Leon Mitchell, a/k/a Leon Mitchell Brockett, a/k/a Leon Bradford, was convicted of obscenity, La. R.S. 14:106. Adjudicated as a fourth felony offender, he appeals his sentence of life imprisonment at hard labor without benefits. We affirm.

The defendant was arrested and charged with obscenity arising out of a May 12, 2006, incident which occurred in downtown Shreveport around 1:00 p.m, a time when large numbers of the public were present.

Shreveport Police Department officer Laura Sorrells testified that:

• she saw the defendant in connection with her patrol of that area;
• he was fondling himself and masturbating;
• she called out twice for him to “put it away;”
• he refused to comply; and
• she arrested him.

Mitchell was convicted as charged of one count of obscenity, after which the state filed a habitual offender bill of information, charging him as a fourth felony offender. Adjudicated as such, he was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. A timely motion to reconsider sentence was filed and denied by the trial court with excellent and thorough written reasons, which we adopt and attach as an appendix hereto.

The defendant argues that:
• the sentence imposed of life imprisonment is disproportionate to the severity of the crime and shocks one’s sense of justice;
• there was no physical harm to anyone;
• there were no witnesses to the events other than the officer;
13» though he has a significant criminal history, the trial court failed to tailor the sentence to his situation; and
• the crime of obscenity does not warrant a life sentence.

The state responds that:

• the defendant has not shown that the trial court manifestly abused its discretion in imposing Mitchell’s sentence;
• the record supports the sentence imposed; and
• the trial court gave ample reasons to justify the sentence.

DISCUSSION

Our law on the review of sentences is well settled.

The learned trial court:

• reviewed the sentencing guidelines found in La. C. Cr. P. art. 894.1;
• examined the defendant’s staggering criminal history, which included illegal sexual contact and attempted illegal sexual contact with children;
Is* noted a sentencing range of 20 years to life; and
• ordered that the defendant serve the maximum sentence.

Defendant’s Criminal History

• In 1973, the defendant pled guilty to simple burglary and was sentenced to three years at hard labor, for which he was paroled, and his parole subsequently revoked.
• In 1983, the defendant was arrested for aggravated rape against a three-year-old child, an offense which almost resulted in the child’s death. He confessed to taking the child behind a storage facility where he laid her on the ground, removed her pants, and inserted his right index finger into her vagina. The temperature at the time in question was 32° and the child’s temperature upon admittance at the hospital was less than 92°. He was found guilty by a jury of aggravated sexual battery and sentenced to serve 15 years at hard labor.
• In 1993, the defendant was charged with aggravated burglary, attempted sexual assault, and unauthorized entry of an inhabited dwelling. At 2:15 a.m., he attempted to enter a home through a bedroom window where two young girls slept, both under the age of 12 years old. One child saw him, pushed him out, and shut the window. He again tried to enter, but the child was unable to prevent his entry. He pled guilty to unauthorized entry of an inhabited dwelling and was sentenced to three years at hard labor.
• In 1998, Mitchell pled guilty to unauthorized entry of a place of business, for which felony he was sentenced to serve a three-year suspended sentence.

We agree with the trial court that the defendant is a dangerous sexual predator. Mitchell’s criminal record, including numerous other arrests and misdemeanor convictions, is daunting. This maximum sentence does not shock the conscience nor is it a needless imposition of pain and suffering. There is no showing of an abuse of the district court’s great discretion.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

APPENDIX

1 ¿STATE OF LOUISIANA

VERSUS

LEON MITCHELL

NUMBER: 251, 297

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

RULING ON MOTION TO RECONSIDER SENTENCE (FILED 1/9/07)

The court has for consideration a Motion To Reconsider Sentence filed by counsel for Leon Mitchell (also known as Leon Brockett, Leon Bradford and Leon Mitchell Brockett) in which he complains that the sentence is excessive because (1) no one was “physically harmed and the only victim was the arresting officer”; and (2) “there is no evidence that anything of value was ever taken in this offense”. Defense counsel asserts that the sentence is “excessive, cruel and unusual and violates the 8th Amendment to the U.S. Constitution”. For the reasons which follow, the Motion To Reconsider Sentence is denied.

A jury convicted the defendant of Obscenity; the district attorney filed a multiple offender bill of information, and the court adjudicated the defendant as a fourth felony offender. Thus, the defendant faced a minimum of twenty years hard labor and a maximum of life imprisonment as a multiple offender. On January 5, 2007, this court articulated detailed reasons for sentencing the defendant to life in prison at hard labor without benefit of parole, probation or suspension of sentence. See R.S. 15:529.IG.

Any reviewing court will closely examine the reasons articulated on January 5, 2007 as reflected by the sentencing transcript. However, Curt will reiterate its rationale as follows: On May 12, 2006, during the noon hour, the defendant was on the south of the Texas Street bridge in the downtown area of Shreveport. As several ladies either going to or from lunch passed the general area, the defendant stepped away from the bridge in pain view and commenced masturbating. Shreveport Police Officer Laura Sorrels, who routinely patrols the downtown area on bicycle, observed the defendant; she approached him and twice ordered him to “put it away”. The defendant, however, defiantly continued to masturbate in plain view of Officer Sorrels and the public. After several commands. which were ignored, the defendant was arrested.

While this crime, if a first felony offense, might result in supervised probation, perhaps with a special condition of 30 to 60 days in jail coupled with an order of | scounseIing and therapy and other appropriate special conditions of probation, this case is extraordinary. Defendant has an extensive criminal history. Most importantly, the defendant was found guilty by jury of sexual battery in 1984 and was sentenced to 15 years hard labor. That case involved the molestation of a three year old child by the defendant after which he callously and maliciously left the baby in 30 degrees weather which caused further injuries requiring .hospitalization. Following the defendant’s release from the penitentiary, in about 1993, he was arrested in connection with a 2:15 a.m. attempted unauthorized entry into the house and specifically the room occupied by 12 year old twin girls.

With those particular previous felony convictions coupled with the obscenity conviction, the court concludes that the defendant is a pervert, child molester and sexual predator who will likely never be cured and who is likely to strike again.

The defense has argued that “the offense resulted in no one being physically harmed and the only victim was the arresting officer”; however, the court disagrees in part: in addition to officer Sorrels, the victim is the public, which deserves to be free of previously convicted sex offenders who continue to commit obscene acts.

Because of the information pertained in the 1984 pre-sentenced investigation report (filed in the report) coupled with the entire history regarding the defendant, including his propensity to play the name game (Leon Mitchell/Leon Bradford/Leon Mitchell Brockett/Leon Brockett) in an obvious effort to elude accountability for his actions, the court concludes that the defendant has earned the maximum possible sentence in connection with this fourth felony offender adjudication. Accordingly, the Motion To Reconsider Sentence filed January 9, 2007, is denied.

Signed this 2nd day of March, 2007 in Shreveport, Caddo Parish, Louisiana.

SCOTT J. CRICHTON

DISTRICT JUDGE

DISTRIBUTION:

Lee R. Hall, Jr.

Brady O’Callaghan

Jerry Kircus

Sarah Giddens

      . In reviewing a sentence for excessiveness, 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.1/25/06), 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.4/2/97), 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 vi-olative 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 (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.6/24/98), 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, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.


text:
    STATE of Louisiana, Appellee v. Alvin J. STEWARD, Appellant.
    No. 42,643-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2007.

      Louisiana Appellate Project by Annette Roach, for Appellant.
    Paul J. Carmouche, District Attorney, Lea Hall, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

h Defendant, Alvin J. Steward, was convicted by a jury of aggravated battery and was sentenced to five years of imprisonment at hard labor. Defendant now appeals. For the reasons stated herein, the conviction and sentence of Defendant are affirmed.

FACTS

On April 3, 2006, Defendant and Kimberly Jasmin, who was Defendant’s live-in girlfriend at the time, went to wash some clothes at the home of Defendant’s grandmother, Doris Jones (hereinafter referred to as “Doris”), which is located on Freddie Street in Shreveport. Defendant’s father, Alvin Jones (hereinafter referred to as “Jones”), also lived at the residence. According to Ms. Jasmin, she and Defendant had been at the home approximately 20 to 30 minutes when a confrontation and/or argument began between Defendant and Jones. Defendant exited the house, followed by Jones, and retrieved a shotgun from the trunk of his and Ms. Jasmin’s car. The two men stood “face to face” and continued arguing. Ms. Jasmin, who had gotten into the back seat of the car, heard the gun go off, but did not see the shooting because Defendant was standing between her and Jones. Jones was shot in the back of the middle part of his right leg. Defendant and Ms. Jasmin then left the scene in their car. Defendant was later arrested when police arrived at the home of Ms. Jasmin’s mother, as he was attempting to flee the home through the back door. Ms. Jasmin’s relationship with Defendant ended in August and Ms. Jasmin moved back into her mother’s home at that time.

12Pefendant was subsequently charged by bill of information with aggravated battery, a violation of La. R.S. 14:34. At trial, Ms. Jasmin testified to the facts set forth hereinabove. In addition, Jones and Doris had related the circumstances of the incident to police officers on the evening the shooting occurred. At trial, however, Jones refused to admit that he gave a statement to police and was adamant in his testimony that the shooting was an accident. Jones asserted that he only told the police at the scene that he had been shot and did not want to press charges. When asked if the police interviewed him at the hospital, he emphatically responded that they did not. The district attorney impeached Jones with the substance of his statement contained in Officer Julian Anderson’s narrative supplement of a police report in which the officer recorded that Jones had acknowledged that he and Defendant had had an argument about an hour prior to the shooting and that he had told Defendant “you know you can’t whip me so what are you going to do, shoot me?” In his testimony, however, Jones maintained that he did not say what was contained in the report. He testified that he had shown Defendant a shotgun he had recently purchased and that Defendant put it in the trunk of his car to take it somewhere to try it out. Jones also testified that the gun accidently went off when it hit the bumper as Defendant was taking it out of the trunk of the car. He further asserted that, after he had been shot in the leg, he directed Defendant to leave the scene.

Doris, Defendant’s grandmother, testified that she was trying to sleep when she heard the gunshot. She admitted talking to officers on the evening |sof the shooting, but said she was in shock and “told the police something.” When impeached with the substance of her statement contained in Officer Anderson’s narrative supplement of the police report, Doris denied telling the officers that Defendant and Jones were arguing about a lawn mower when Defendant said he would kill Jones, then got a gun out of his vehicle and shot Jones in the leg.

Officer Anderson testified that he interviewed Doris at the scene and she stated that Defendant and Jones were arguing over a lawn mower. Doris said that Jones warned Defendant that he would be whipped if he did not stop being disrespectful in front of his grandmother. Defendant replied that if Jones did, he would kill him. According to Officer Anderson, Doris stated that Defendant then went to the vehicle, pulled out a shotgun and shot Jones. Officer Anderson further testified that, when he spoke with Jones at the scene, Jones said he had been shot in the leg by Defendant. Officer Anderson observed that Jones was in a lot of pain and was not able to give a full statement on the scene. Officer Anderson further identified the Winchester .12-gauge double-aught buckshot casing recovered from the scene.

Detective Lane Smith testified that he also interviewed Doris at the crime scene. Her account of what transpired was basically the same as that related by Officer Anderson. Detective Smith further testified that he spoke with Jones at the hospital, at which time Jones confirmed that he and Defendant had been arguing. Jones said that he approached Defendant, a statement was made that he could not whip him and Jones said, “So what 14are you going to do, shoot me?” At this point, Jones related to Detective Smith that he turned away and Defendant shot him in the leg. Nothing Jones said to Detective Smith on that evening indicated that the shooting was an accident. Within two weeks of Defendant’s arrest, Detective Smith received a phone call from Jones, who strongly urged that he did not want to pursue the matter and did not want Defendant to go to jail over the shooting because it was accidental.

Defendant testified at trial, basically claiming that the shooting was an accident. He explained that his argument.with Jones had ended earlier and the gun accidentally fired when he was handing Jones the gun. Defendant further testified that Jones directed him to leave, and he was not aware of the warrant for his arrest until a day or two prior to his arrest.

As previously stated, a six-person jury found Defendant guilty as charged. Defendant filed a motion for post-verdict judgment of acquittal, which was denied by the trial court, and Defendant was sentenced to serve five years of imprisonment at hard labor, with credit for time served. Defendant’s timely-filed motion to reconsider sentence was denied by the trial court without a hearing. A motion for out-of-time appeal was granted.

DISCUSSION

Assignment of Error Number One (verbatim): The evidence introduced at the trial of this ease when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove all of the elements of the offense of aggravated battery beyond a reasonable doubt.

Defendant admits that he shot Jones, but argues that the State failed to prove that he had the necessary criminal intent to support the conviction. J^The question of sufficiency of evidence is properly raised by a motion for post-verdict judgment of acquittal. State v. Howard, 31,807 (La. App.2d Cir.8/18/99), 746 So.2d 49, writ denied, 99-2960 (La.5/5/00), 760 So.2d 1190.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. 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.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

|fiThe Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In order to convict a defendant of aggravated battery, the state must prove that the defendant intentionally used force or violence upon the victim, that the force or violence was inflicted with a dangerous weapon and that the dangerous weapon was an instrumentality used in a manner likely or calculated to cause death or great bodily harm. State v. Moore, 38,355 (La. App.2d Cir.6/23/04), 877 So.2d 177, writ denied, 04-2084 (La.1/7/05), So.2d 670; State v. McGee, 37,919 (La.App.2d Cir.12/10/03), 862 So.2d 452.

'An aggravated battery conviction requires proof of only general criminal intent or a showing that the defendant in the ordinary course of human experience must have adverted to prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2); State v. McGee, supra; State v. Dunn, 30,560 (La.App.2d Cir.2/25/98), 709 So.2d 852. The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of this determination is to be guided by the standards of Jackson v. Virginia, supra. State v. McGee, supra, and cases cited therein.

As a threshold matter, we will first address Defendant’s assertion that the trial court improperly overruled Defendant’s objections to the use of the narrative supplement to the police report for impeachment purposes and that the fact finder improperly relied upon the statements in the report as substantive evidence of Defendant’s guilt.

La. C.E. art. 607(D)(2) allows the introduction of a witness’s prior inconsistent statement when offered solely to attack the credibility of the witness. Such prior inconsistent statements may not be used as substantive evidence of guilt. State v. Robert, 42,036 (La.App.2d Cir.5/9/07), 956 So.2d 750. In the case sub judice, the trial court properly stated this principle when overruling Defendant’s objection to the use of the statements in the report. The court expressly limited the introduction of the evidence to impeachment purposes and instructed the jury accordingly. We are not | ^persuaded by Defendant’s argument that the State’s case fails without substantive consideration of this impeachment evidence. Rather, as discussed below, we find sufficient evidence on this record to support Defendant’s conviction without consideration of the statements of Jones and Doris in the police reports. Moreover, we agree with the State that the jury had the opportunity to observe Defendant’s father and grandmother as witnesses and discern whether their familial relationship to Defendant may have colored their testimony.

After viewing the evidence contained in the instant record in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found all of the essential elements of the crime proven beyond a reasonable doubt. See Jackson v. Virginia, supra; State v. Tate, supra. That is, when the direct evidence, including the eyewitness testimony of Ms. Jasmin, is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence were sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime, including the requisite general criminal intent. See State v. Sutton, supra; State v. Owens, supra. As the State points out, Ms. Jasmin, who was not Defendant’s girlfriend at the time of trial, was in the best position to tell her story as it really happened. Ms. Jasmin testified that Defendant and Jones began arguing shortly after she and Defendant arrived at Doris’ home. She further testified that she exited the house with the two men and that they continued arguing once outside. According to her eyewitness account, Ms. Jasmin | atestified that the arguing continued as she sat down in the back seat of the car and Defendant retrieved the shot gun from the trunk. While she did not have a direct view of the actual shooting, she heard the gunshot. She testified that Defendant then got in the car and they left the scene.

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. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, unit denied, 06-1083 (La.11/9/06), 941 So.2d 35; State v. Jones, 31,613 (La.App.2d Cir.4/1/99), 733 So.2d 127, unit denied, 99-1185 (La.10/1/99), 748 So.2d 434; State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, supra. Likewise, 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. See State v. Gilliam, supra. We find that the testimony of Ms. Jasmin is sufficient to support the conviction of Defendant.

This assignment is without merit.

Assignment of Error Number Two (verbatim): The five-year hard labor sentence imposed in this case is excessive and serves no useful purpose.

Aggravated battery is punishable by a fine of not more than five thousand dollars, imprisonment with or without hard labor for not more than ten years, or both. La. R.S. 14:34. As previously stated, Defendant was | msentenced to serve five years of imprisonment at hard labor, with credit for time served.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show, as it does here, that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La. App.2d Cir.4/2/97), 691 So.2d 864.

At sentencing, the trial court heard the testimony of Defendant’s aunt. She basically testified that Defendant was respectful, but fearful, and his home life had been abusive. Defendant’s aunt testified that she was unaware of his prior convictions. Before sentencing Defendant, the trial judge summarized the facts of the case and noted that Defendant’s four prior criminal convictions during a short amount of time were all anger related. The judge further noted Defendant’s failure to participate in anger management training pursuant to a special condition of probation in connection with a prior criminal conviction. The trial judge stated that he considered all of the appropriate factors and considered this to be a very serious crime that could have had a deadly result. He further observed that | iathe prior convictions and “event” show a pattern of great concern. The trial judge considered Defendant’s young age as a mitigating factor.

This record supports the finding that the sentence of Defendant is not unconstitutionally excessive. When Defendant’s crime and sentence are viewed in light of the harm done to society by violent crimes, his five-year hard labor sentence does not shock the sense of justice.

This assignment is, therefore, without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Alvin J. Steward, are affirmed.

AFFIRMED.