author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Corey A. EDWARDS.
    No. 06-KA-643.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas Butler, Frank Brindisi, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

^Defendant, Corey Edwards, appeals his conviction on a charge of aggravated battery, a violation of La. R.S. 14:34. For the reasons that follow, we affirm.

Defendant was charged by bill of information with aggravated battery. At his arraignment, defendant pled not guilty. After a two-day trial, a six-person jury found him guilty as charged. He was subsequently sentenced to seven years at hard labor with credit for time served. Defendant now brings this timely appeal.

Facts

While driving in Metairie on November 4, 2005, defendant’s wife, Chantel Edwards, lost control of the family’s Jeep Grand Cherokee, causing it to veer off the road and crash through a wrought iron fence at Bergeron Motors auto dealership. Frank M. Keen, III, testified at trial that he was working as a service manager at the dealership at that time. He heard a loud noise and went to investigate. He saw that the Jeep had torn through the fence, run over a concrete Ubumper in the business’ parking lot, and hit a vehicle belonging to the dealership. A customer’s vehicle was damaged by flying fence parts. At Mr. Keen’s request, Ms. Edwards turned off the vehicle’s engine and exited. Mr. Keen determined that Ms. Edwards was unharmed, and then he called 9-1-1 to report the accident.

Ms. Edwards re-entered the Jeep and attempted to drive it off the premises. Mr. Keen testified that he told her she could not leave the scene before police arrived. He then placed a second call to 9-1-1. At that point defendant, Corey Edwards, approached Mr. Keen and shouted, “Who’s the motherf* * *er who says I can’t move my car?” Mr. Keen told defendant he could not move the vehicle until the police arrived. According to Mr. Keen, defendant replied, “I’m going to run over your f* * *ing a*

Defendant got into the Jeep, started the engine, and put the vehicle in reverse. Mr. Keen, who was standing at the left rear corner of the Jeep, did not notice defendant’s actions until the vehicle began to move: He attempted to get out of the way, but the Jeep was moving too fast. Mr. Keen testified the vehicle hit him between his chest and his knees and he was knocked backwards a considerable distance onto his elbows. The Jeep continued towards him as he lay on the ground. Finally, defendant stopped the vehicle, put it in forward gear, and drove it onto the street.

Mr. Keen testified he sustained bruising down his right side from the impact. At the time he feared he had suffered damage to the site of his recent bladder cancer surgery. He was taken by ambulance to a hospital, but his injuries were not permanent.

Goldie Collins, another employee of Ber-geron Motors, witnessed the confrontation. She testified that when defendant arrived at the accident scene, he started cursing at Mr. Keen. Defendant told Mr. Keen that if he did not move frompbehind the Jeep, he would run over him. Defendant then got into his vehicle and drove it in reverse. According to Ms. Collins, the Jeep was going so fast that Mr. Keen- — who was standing one or two feet behind the vehicle — could not get out of the way. The impact threw Mr. Keen up and back about ten feet, into the street.

Bergeron employee Donald Ganucheau testified he was eighty feet away from the accident site when he heard someone yell, “Who says I can’t move my moth-erf* * *ing car.” Mr. Ganucheau approached the scene and found defendant screaming about moving his car. He saw defendant back the Jeep into Mr. Keen while traveling at fifteen to twenty miles per hour. Defendant pulled the Jeep out onto the street, and Mr. Ganucheau grabbed the vehicle’s door. At that point police arrived, and defendant pulled his vehicle over to the side of the road.

When Deputy Aaron Verrette of the Jefferson Parish Sheriffs Office arrived at the scene, Mr. Keen was lying in the street and defendant was still inside of his Jeep. Deputy Verrette testified that defendant told him his wife had been involved in an accident with the Jeep, and he was just trying to move the vehicle. After witnesses told the officer defendant had attempted to leave the scene, defendant became extremely angry and began cursing. Deputy Sam Minnis placed defendant under arrest.

Defendant testified at trial that he was upset with his wife when he learned about the accident. Because the Jeep was the family’s only vehicle, he had to enlist a neighbor, Brian Darby, to drive him to the scene. Defendant said he did not recognize Mr. Keen in court, but he recalled an older man standing at the back of the Jeep. He told the man he wanted to move his vehicle so he could see the damage. The man told him he could not do so. Defendant testified he told the man it was his “M fing car,” and he wanted to move it to check the damage.

| .^Defendant testified that he got into his vehicle and put it in reverse. He had backed up less than a foot when he heard Ms. Edwards say “stop.” He then saw Mr. Keen on the ground, approximately one foot behind the Jeep. Defendant said he did not intentionally hit Mr. Keen with his vehicle. He assumed Mr. Keen would move from behind the Jeep. Defendant said Mr. Keen must have been in his “blind spot,” because he did not see him when he checked his rearview mirrors. Defendant denied having told Mr. Keen he was going to run over him.

Defendant’s neighbor, Mr. Darby, testified on his behalf. Mr. Darby said an older white man from the dealership approached defendant to talk to him. He heard defendant say he was going to move his Jeep. He heard the vehicle start, and then he saw the older man fall to the ground behind the Jeep.

Assignments of Error

Defendant complains in his first assignment of error that the evidence at trial was insufficient to support his conviction for aggravated battery. Defendant does not deny running into Mr. Keen with his vehicle. He argues the State failed to prove he had the necessary criminal intent to complete the offense; and that he was, at most, criminally negligent. The State responds that it proved defendant intentionally used force or violence against Mr. Keen by employing his vehicle as a dangerous weapon.

The standard of review for determining the sufficiency of the evidence is whether, viewing both direct and circumstantial evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime 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. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). An appellate court does not determine 1 ¿whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events leading to the prosecution. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. Rather, the reviewing court must evaluate the evidence in the light most favorable to the State, and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof beyond a reasonable doubt.

La. R.S. 14:34 provides that “[a]ggravat-ed battery is a battery committed with a dangerous weapon.” La. R.S. 14:33 defines battery, in part, as “the intentional use of force or violence upon the person of another.” In order to convict a defendant of aggravated battery, the State was required to prove that 1) the defendant intentionally used force or violence against the victim, 2) the force or violence was inflicted with a dangerous weapon, and 3) the dangerous weapon was used in a manner likely to cause death or great bodily harm. State v. Rainey, 98-436 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1102, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28.

A dangerous weapon includes “any ... instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(3). An instrumentality may be considered a dangerous weapon not only because of the inherent danger it possesses, but also because it is used in a manner likely to cause death or great bodily harm. State v. Perkins, 99-1109 (La.App. 5 Cir. 4/25/00), 762 So.2d 67, 71, writs denied, 00-2745 (La.6/15/01), 793 So.2d 1240 and 01-1167 (La.6/15/01), 793 So.2d 1244. An automobile used in a manner calculated to produce or likely to produce death or great bodily harm has been found to be a dangerous weapon. State v. Trahan, 416 So.2d 65, 68 (La.1982). Neither the infliction of serious bodily harm nor the intent to inflict serious injury is required for aggravated battery to have been committed. State v. Perkins, supra. ^Aggravated battery does, however, require physical contact, whether injurious or merely offensive. Id.

Aggravated battery requires proof of general intent, i.e., a showing that “ ‘the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.’ ” State v. Howard, 94-0023 (La.6/3/94), 638 So.2d 216, 217, quoting La. R.S. 14:10(2). General intent may be proved by evidence that the defendant did the acts which have been declared criminal. Howard, supra. The fact that a defendant does not specifically intend the greater degree of harm to the victim does not prevent the jury from taking into account the reasonably foreseeable consequences, which aggravate the seriousness of the battery offense, in assessing the defendant’s culpability. Id.

Defendant argues he did not know Mr. Keen was behind his vehicle when he put it in reverse, and thus did not have the requisite intent to complete an aggravated battery. However, the State’s witnesses testified defendant was belligerent with Keen and verbally threatened to run over the victim with the Jeep. Donald Ganu-cheau and Goldie Collins both testified that Mr. Keen stood behind the vehicle throughout the incident. Ms. Collins said Mr. Keen was standing one or two feet behind the Jeep when defendant threatened him, and Keen did not move from that place before defendant backed into him. According to Ms. Collins, the Jeep was moving so fast that Mr. Keen did not have time to move out of the way.

The trier of fact in a criminal trial is free to accept or reject, in whole or in part, the testimony of any witness. State v. Evans, 00-1766 (La.App. 5 Cir. 4/11/01), 786 So.2d 781, 784, writ denied, 01-1390 (La.4/12/02), 812 So.2d 664. The jurors in this case apparently found the State’s witnesses to be more credible |sthan defendant. In any case, the law did not require that the jury find defendant intended to inflict serious injury in order to find him guilty of aggravated battery. Viewing the evidence in the light most favorable to the prosecution, we find a rational juror could conclude the State proved the essential elements of aggravated battery beyond a reasonable doubt.

By his second assignment of error, defendant complains his seven-year sentence is excessive, arguing the trial court failed to consider mitigating circumstances such as his minimal criminal record, the negligible injuries suffered by the victim, the fact that he was the sole support of his wife and several children, and the excessive stresses that played on people such as him who suffered loss in the wake of Hurricane Katrina. Defendant further complains that the trial court failed to articulate his reasons for sentencing as prescribed by La.C.Cr.P. art. 894.1. Defendant asks this Court to vacate his sentence and remand for re-sentencing, ordering the trial court to follow the provisions of that article.

In his third assignment of error, he argues his trial counsel was ineffective in failing to file a motion to reconsider sentence.

The record shows defendant did not make or file a motion to reconsider sentence stating specific grounds, as provided under La.C.Cr.P. art. 881.1 B. He is therefore entitled only to a bare review of his sentence for constitutional excessiveness. State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La.1/25/02), 807 So.2d 243. Defendant complains his attorney’s omission prevents him from receiving meaningful review of his sentence for excessiveness.

Claims for ineffective assistance of counsel are most appropriately addressed through application for post-conviction relief in order to afford the parties an adequate record for review. State v. Williams, 00-1850 (La.App. 5 Cir. 4/11/01), 9786 So.2d 785, 793, writ denied, 01-1432 (La.4/12/02), 812 So.2d 666. But an appellate court can address the issues if the record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal. State v. Hamilton, 92-2639 (La.7/1/97), 699 So.2d 29, 31, cert. denied, 522 U.S. 1124, 118 S.Ct. 1070, 140 L.Ed.2d 129 (1998); State v. Pendelton, 783 So.2d at 465-466. In this instance we find the record contains sufficient evidence for us to decide the issue.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. Courts apply a two-pronged test in assessing a claim of ineffective counsel. A defendant must show his attorney’s performance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450 and 94-1361 (La.11/4/94), 644 So.2d 1055. An error is prejudicial if it was so serious that it deprived the defendant of a fair trial, or “a trial whose result is reliable.” Strickland, supra; State v. Serio, 94-131 (La.App. 5 Cir. 7/1/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. In order to show prejudice, a defendant must demonstrate that but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Soler, supra.

This Court routinely reviews sentences for constitutional excessiveness despite the defendant’s failure to file a timely motion to reconsider sentence. State v. Williams, 786 So.2d at 794. Moreover, this Court has held that a defendant is not prejudiced by his defense counsel’s failure to object to a sentence in the trial |]0court when the sentence is reviewed for constitutional ex-cessiveness on appeal. Id. We find, therefore, that defendant’s ineffectiveness of counsel claim has no merit.

We now turn to defendant’s excessive sentence claim. The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. In reviewing a sentence for excessiveness, the reviewing court must consider the crime and punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992).

Factors to be considered in reviewing a defendant’s sentence are the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes by the same court and other courts. State v. Knightshed, 00-1410 (La.App. 5 Cir. 3/28/01), 783 So.2d 501, 504-505. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id.; State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 879-880.

Defendant’s sentencing exposure for aggravated battery was imprisonment with or without hard labor for not more than ten years, a five thousand dollar fine, or both. La. R.S. 14:34. Defendant received a mid-range sentence, and the trial court did not impose a fíne.

Although the trial court did not order a pre-sentence investigation, it was clearly aware of defendant’s background and criminal history. Defendant testified at trial that he was convicted of burglary in 1991 at the age of seventeen, and that|nhe pled guilty to a “peeping tom” offense in 2004. The prosecutor commented at the time of sentencing that the State would refrain from filing a habitual offender bill of information against defendant. Defendant further testified that he lived with his wife — who was pregnant at the time of trial — and his five children. Defendant testified he owned his own trucking business, and his job was the family’s sole source of income. Following the jury’s verdict, defendant made the trial court aware that his wife would not be able to support the family by herself; that she and the children would probably have to move in with her mother.

Defendant further complains that the trial court failed to consider the fact that the victim, Mr. Keen, did not suffer serious or permanent injuries from the incident. Moreover, defendant suggests that Mr. Keen in fact “decided not to move from behind the Jeep” to avoid injury. The record shows the trial court was fully aware of the nature and extent of Mr. Keen’s injuries. The victim testified that he suffered bruising down his side as a result of the impact, and that he felt better after about four days. As to the question of whether Mr. Keen chose to expose himself to injury, the testimony of the victim and other State witnesses indicates the Jeep was traveling so fast in reverse that he did not have time to move. We recognize that, despite the fact that Mr. Keen apparently suffered no permanent injury from the incident, the damage could have been considerably worse. This is particularly so because Mr. Keen was recovering from bladder cancer.

Compare State v. McGee, 37,919 (La. App. 2 Cir. 12/10/03), 862 So.2d 452, in which the defendant was convicted of aggravated battery and received a sentence of six years. The reviewing court found the defendant acted in an egregious manner by intentionally driving his van into the victim at a high rate of speed, dragging him under the van, and then leaving the scene. The court | ^commented that any reasonable person would find the defendant’s actions abhorrent, and noted that defendant could have received a ten-year sentence.

As was the case in McGee, defendant could have received a ten-year sentence, but instead received a mid-range sentence. When defendant’s crime and punishment are viewed in light of the harm done to society, the seven-year hard labor sentence does not shock the sense of justice. We do not find that the trial court abused its broad discretion in imposing a seven-year sentence.

As defendant points out, the trial judge did not articulate reasons for sentencing. La.C.Cr.P. art. 894.1 C requires the trial court to “state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” When the trial judge does not articulate reasons for his sentencing choice, but the record demonstrates an adequate factual basis to support the sentence imposed, a remand for re-sentencing is unnecessary, even where there is not full compliance with Article 894.1. State v. Clemons, 01-1032 (La.App. 5 Cir. 2/26/02), 811 So.2d 1047, 1054, writ denied, 02-0866 (La.11/22/02), 834 So.2d 972, cert. denied, 538 U.S. 1063, 123 S.Ct. 2228, 155 L.Ed.2d 1117 (2003). A trial court’s articulation of the factual basis for the defendant’s sentence, not rigid or mechanical compliance, is the goal of La.C.Cr.P. art. 894.1. State v. Crawford, 05-494 (La.App. 5 Cir. 1/31/06), 922 So.2d 666, 670.

Defendant argues his trial counsel was ineffective in that he failed to present the following mitigating circumstances to the court at the time of sentencing: 1) defendant had no significant criminal history, 2) defendant was only thirty-one years old at the time of the offense, 3) defendant was gainfully employed, and was the sole support of his wife and five children, 4) defendant’s wife was expecting his sixth child, 5) defendant was an involved father, and 6) defendant had rejected a pre-trial plea bargain out of concern for the effect his imprisonment would have liRon his family. Defendant further complains that his trial counsel failed to object when the trial judge ordered his immediate imprisonment and rejected defendant’s request that he be allowed time to help his wife move in with her mother.

As we noted above, the trial judge was made aware of nearly all of defendant’s mitigating circumstances through defendant’s testimony. The only mitigating factor not expressed during trial or at sentencing was the rejected plea offer. Even so, defendant informed the trial court following trial that he desperately needed time to take care of his wife and children before beginning his sentence. Defendant does not show how counsel’s failure to re-urge those factors at the time of sentencing was deficient. Defendant also fails to show how he was prejudiced by counsel’s failure to act. See, Strickland v. Washington, supra. We do not find that defendant’s trial counsel was ineffective.

In his fourth and final assignment, defendant, who is African-American, contends the trial court erred in denying his Batson objections to the State’s discriminatory use of peremptory challenges to pick an all-white jury. Defendant specifically argues that potential jurors Michael Tucker and Katherine Gonsoland were dismissed by prosecutors because they are African-American. He maintains that the “race neutral” reasons the State gave for excusing those potential jurors were specious, because some of the non-African-American jurors accepted by the State were similarly situated and gave answers during voir dire that tracked those of the excused jurors. In support of this argument, defendant cites the recent Supreme Court holding in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). The State responds that the trial court did not err in determining there was no showing of purposeful discrimination.

114The United States Supreme Court held in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that an equal protection violation occurs when a party uses a peremptory challenge to exclude a prospective juror on the basis of race. If the challenger makes a prima facie showing of discriminatory strikes, the burden shifts to the opposing party to offer racially-neutral explanations for the challenged juror. This second part of the process does not require the State to give an explanation that is plausible, or even persuasive; so long as it is not inherently discriminatory. Burkett v. Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per curiam).

If a race-neutral reason is given, the trial court must then decide whether the challenger has proven purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1724. This third and final step in the Batson analysis involves an examination of the credibility of the State’s “race-neutral” reasons, but the ultimate burden of persuasion as to racial motivation in exercising a peremptory challenge rests with, and never shifts from, the opponent of the challenge. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771; Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Edüd 395 (1991).

The Batson test is codified in La.C.Cr.P. art. 795 C, which provides:

No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.

Whether there has been intentional racial discrimination is a question of fact. State v. Scott, 04-1312 (La.1/19/06), 921 So.2d 904, 921, cert. denied, — U.S. —,_⅛127 S.Ct. 137, 166 L.Ed.2d 100 (2006). The trial court’s evaluations of discriminatory intent are to be accorded great deference on review, and should not be reversed unless they are clearly erroneous. State v. Snyder, 98-1078 (La.9/6/06), 942 So.2d 484, 488.

In Miller-El, the United States Supreme Court, in the context of a challenge of an African-American prospective juror, held the defendant had established a case of purposeful discrimination under Batson, and was entitled to federal habeas relief. In so holding, the high court observed, “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Miller-El, 545 U.S. at 241, 125 S.Ct. at 2325. The Louisiana Supreme Court has found that Miller-El does not alter the standard of review for Batson claims on direct appeal. State v. Elie, 05-1569 (La.7/10/06), 936 So.2d 791, 796; State v. Snyder, supra. This is evidenced by the recent opinion in Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 973-974, 163 L.Ed.2d 824 (2006), in which the Supreme Court restated and employed the three-step Batson analysis.

The record shows the prosecution and the defense both used all of their six allotted peremptory challenges during jury selection. After all six jurors had been seated, but before the alternate juror was selected, defense counsel made a Batson challenge. The prosecutor commented that one of the seated jurors was African-American. Defense counsel responded, “She’s Spanish, she’s not black.” The trial judge did not comment on what race he believed the juror in question to be. In point of fact, aside from comments made by the attorneys, there is no indication in the record as to the race of any of the potential jurors.

|1(iThe trial judge instructed the prosecutor to give race-neutral reasons for his use of peremptory challenges to excuse African-Americans from the jury, beginning with Ms. Gonsoland. The prosecutor stated, “Judge, I think Ms. Gonsoland said she has two sons, twenty-seven and twenty-five, which she may identify with the Defendant.” As to Mr. Tucker, the prosecutor said, “Tucker sat there the whole time and very seldom made eye contact with me, Judge. He had his arms folded the whole time, Judge, and he made very little eye contact with me, and I didn’t feel like I was bonding, at all.” As to those two jurors, the judge ruled the State had articulated race-neutral reasons sufficient to justify peremptory challenges. Defense counsel objected to the judge’s ruling. Since the judge found the State’s explanations were race-neutral, defendant’s challenge did not go beyond step two of the Batson analysis.

We do not find the trial court’s rulings clearly erroneous. The fact that a potential juror has a child the same age as the defendant (and that he might, therefore, sympathize with the defendant) has been found to be an acceptable race-neutral reason for using a peremptory challenge. State v. Manning, 03-1982 (La.10/19/04), 885 So.2d 1044, 1084-1085, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005). Similarly, the courts have held a potential juror’s body language or failure to make eye contact to be an acceptable race-neutral explanation. State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, 559-560, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, 375, cert. denied, 520 U.S. 1199, 117 S.Ct. 171558, 137 L.Ed.2d 705 (1997); State v. Parker, 04-1017 (La.App. 5 Cir. 3/29/05), 901 So.2d 513, 523, writ denied, 05-1451 (La.1/13/06), 920 So.2d 235.

The trial judge is in the best position to determine whether a race-neutral explanation is offered in good faith, or is a subterfuge for racial bias. State v. Parker, 901 So.2d at 524; State v. Jackson, 03-0417 (La.App. 5 Cir. 10/28/03), 860 So.2d 134, 137, writ denied, 03-3506 (La.4/8/04), 870 So.2d 269. In this case, nothing in the record rebuts the determination of the trial court that the State’s expressed reasons for exclusion were non-pretextual and legitimate grounds for exercise of the challenges against the two African-American jurors at issue.

Defendant argues that the traits upon which the State claimed to base its peremptory challenges of the two African-American jurors also applied to white jurors who were accepted by the State, evidencing the State’s discriminatory intent. He asks this Court to do a comparative analysis of those jurors such as the one the Supreme Court performed in Miller-El. We decline to perform such a review here, first, because the Miller-El analysis pertains to the third step of Batson, which is not at issue here. See, State v. Draughn, 05-1825, p. 12 (La.1/17/07), 950 So.2d 583. Secondly, in the instance of such a review, the burden is on the defendant to provide support for his argument that there was purposeful discrimination. Defendant does not offer such support here.

We have reviewed the record for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990). We find none which merit consideration.

For the above discussed reasons, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . The record shows that Dinah Cooper, another prospective juror who is apparently African-American, was initially excused by the State, but was thereafter accepted as an alternate on defendant’s jury.

      . The trial court addressed the second Batson step without ruling on whether defendant met his burden as to the first Batson step. When the trial judge does not rule on whether a defendant met his burden to establish a prima facie case of racial discrimination, but rules on the ultimate question of intentional discrimination after the State offers a race-neutral explanation for the peremptory challenges, the issue of whether defendant made a prima facie showing is moot. State v. Robinson, 04-964 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115, 1122.


source: Caselaw Access Project

author: THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Derrick Dwayne TOMLINSON.
    No. 06-KA-892.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2007.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Megan L. Gorman, Vincent Paciera, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   THOMAS F. DALEY, Judge.

|2The Defendant, Derrick Dwayne Tom-linson, appeals his sentence as a multiple offender. This is the defendant’s third appeal in this case. His conviction for distribution of cocaine and original sentence were previously affirmed by this Court. State v. Tomlinson, 04-992 (La. App. 5 Cir.1/25/05), 895 So.2d 45, 46. A previous adjudication as a multiple offender was vacated by this Court. State v. Tomlinson, 05-201 (La.App. 5 Cir. 10/6/05), 916 So.2d 1200. In this appeal, defendant claims that his 25-year enhanced sentence is constitutionally excessive, and that the trial court erred by not giving reasons for its enhanced sentence. For the reasons that follow, we affirm.

Defendant argues that the trial court erred by imposing an excessive sentence without giving reasons pursuant to LSA-C.Cr.P. art. 894.1. He contends that his 25-year enhanced sentence was excessive because the evidence indicated that he was an addict and not a supplier; that he worked and provided for his wife and two young children; that for almost ten years he had not been charged with any felonies; that this was not a crime of violence; that this was a one-time occurrence; Land that the legislature had shown an intent to impose lesser sentences and/or alternative programs to treat people convicted of drug-related problems. He notes that the trial court reduced his original sentence from 14 to 10 years, and that the record does not support an increase of the sentence to 25 years in light of the reduction previously given.

The state responds that defendant did not file a Motion to Reconsider Sentence and, therefore, appellate review is limited to a determination of whether the sentence is constitutionally excessive. It argues that even if defendant were entitled to review on the issue of the trial judge’s failure to provide reasons for the sentence, defendant is not entitled to relief because there is an adequate factual basis in the record to support the sentence. The state also responds that the trial court did not abuse its discretion by imposing a 25-year enhanced sentence.

The record reflects that, on September 13, 2006, the trial judge found defendant to be a third felony offender, vacated the original sentence, and resentenced defendant to imprisonment at hard labor for 25 years without benefit of probation or suspension of sentence. The trial judge did not provide reasons for his sentence. Defense counsel objected to the multiple offender finding and to the excessiveness of the sentence.

The record reflects that defendant did not file a Motion to Reconsider Sentence as required by LSA-C.Cr.P. art. 881. The failure to file a Motion to Reconsider Sentence, or to state the specific grounds on which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342. Accordingly, the sentence will be reviewed only for constitutional ex-cessiveness.

I/The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992).

In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing the sentence. State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 879.

In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 868 So.2d at 880. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not provide reasons for the sentence. State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 933, writ denied, 04-1640 (La.11/19/04), 888 So.2d 192.

Defendant was convicted of distribution of cocaine in violation of LSA-R.S. 40:967 A. The penalty for a violation of that statute is imprisonment at hard labor for not less than two years or more than 30 years, with the first two years to be served without benefit of parole, probation, or suspension of sentence, and a possible fine of not more than $50,000.00. LSA-R.S. 40:967 B(4)(b).

| .-^Defendant was subsequently found to be a third felony offender. The trial judge vacated his original sentence and resen-tenced him under the multiple bill statute to imprisonment at hard labor for 25 years without benefit of probation or suspension of sentence. Defendant was not fined. However, this Court vacated the habitual offender finding and enhanced sentence. Another multiple bill hearing was held, and the trial judge again found defendant to be a third felony offender. He vacated the original sentence and resenteneed defendant under the multiple bill statute to imprisonment at hard labor for 25 years without benefit of probation or suspension of sentence.

LSA-R.S. 15:529.1 A(l), the multiple bill statute, provides in pertinent part:

(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.

According to LSA-R.S. 40:967 B(4)(b) and LSA-R.S. 15:529.1 A(l)(b)(i), defendant’s sentencing exposure on his enhanced sentence was 20 to 60 years. Therefore, defendant’s 25-year enhanced sentence was on the lower end of the sentencing range.

In a similar case, State v. Lott, 02-702 (La.App. 5 Cir. 12/30/02), 836 So.2d 584, 587-589, writ denied, 2003-0499 (La.10/17/03), 855 So.2d 755, cited by the state in its brief, defendant was convicted of two counts of distribution of cocaine, found to be a third felony offender, and sentenced to imprisonment at hard labor for 25 years. This Court held that the 25-year enhanced sentence was not excessive, noting that, even though defendant’s prior offenses did not involve ^crimes of violence, the sentence was at the low end of the sentencing range, defendant had prior convictions for possession of cocaine and possession of stolen property, and defendant’s most recent conviction progressed to distribution of cocaine.

The enhanced sentence is not constitutionally excessive. Tomlinson has a history of criminal convictions, the sentence was at the low end of the sentencing range, and the jurisprudence supports the sentence.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La. App. 5 Cir.1990). The review reveals no errors patent requiring correction.

AFFIRMED.

      . The multiple bill reflects that defendant’s predicate convictions were for publishing a forged check with the intent to defraud in 1990 and felony breaking and entering in 1995.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Kelvin HARRISON.
    No. 06-KA-897.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2007.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, William C. Credo, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|aOn May 11, 2005, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kelvin Harrison, with four counts of battery upon a police officer while in jail, violations of LSA-R.S. 14:34.2(B). On January 11, 2006, defendant proceeded to trial on counts one, two and four before a six-person jury, which found him guilty as charged on counts one and two and guilty of simple battery on count four.

On January 27, 2006, the trial judge sentenced defendant to imprisonment at hard labor for three years on counts one and two, without benefit of parole, probation or suspension of sentence, and six months in the Jefferson Parish Correctional Center on count four. The judge ordered that the sentences be served consecutively with each other and with any other imposed sentence.

That same day, the state filed a multiple offender bill of information alleging defendant to be a third felony offender. On June 30, 2006, the state amended the multiple offender bill to allege that defendant was a second felony offender, and the matter thereafter proceeded to a hearing. After considering the evidence presented, the trial judge found defendant to be a second felony offender, vacated | sthe sentence on count one, and resentenced defendant to imprisonment at hard labor for ten years without benefit of probation, parole or suspension of sentence. The judge ordered that the sentence be served consecutively with any other sentences being served by defendant. Defendant now appeals.

FACTS

On April 4, 2005, Lieutenant Gary Cook and Deputy David Biondolillo of the Jefferson Parish Sheriffs Office were supervising a search of the inmate housing areas, known as “pods,” in the Jefferson Parish Correctional Center. The actual searches were being conducted by twelve trainees. Defendant was among fifty inmates in the pod. Lieutenant Cook explained that the individual inmates were removed from the pod and told to face the wall. The inmates then were instructed to spread their legs and place their hands up high on the wall.

During the searches, Lieutenant Cook heard some argument on the opposite side of the area where he was located. He observed a trainee, Deputy Christopher Williams, trying to spread defendant’s feet wider and place his hands higher on the wall. Defendant refused to comply. Lieutenant Cook intervened and told defendant that he needed to spread his feet wider and to put his hands up on the wall. Defendant answered that he had put his hands up and had spread his feet. Lieutenant Cook told defendant he had not done so far enough. When defendant still did not comply, Lieutenant Cook put his hand on defendant’s shoulder and used his foot to move defendant’s feet out further. He then picked up defendant’s hand and placed it higher on the wall. Defendant started “mouthing off’ and making threats. As a result, Lieutenant Cook handcuffed defendant’s right wrist and placed it behind defendant’s back. Defendant then twisted away from the wall, but Lieutenant Cook pushed him back to the wall. Other officers intervened and they all ended up in a struggle. They fell first to the table and then to the floor. | ¿During the struggle, defendant struck Lieutenant Cook with his hand-cuffed right hand.

Deputies Biondolillo and Turner testified they assisted Lieutenant Cook. Deputy Biondolillo put defendant in an arm-hold after observing defendant spin away from Lieutenant Cook. During the struggle, defendant bit Deputy Biondolillo’s finger and kicked Deputy Turner in the shin. Deputy Biondolillo had to go to the hospital for a tetanus shot.

Following the incident, an investigation by another officer revealed no wrongdoing by the deputies involved. In addition, none of the inmates filed complaints against any of the officers involved.

At trial, defendant testified that Lieutenant Cook kicked his ankles, which prompted defendant to curse at Lieutenant Cook. Thereafter, Lieutenant Cook placed defendant in handcuffs and Deputy Bion-dolillo struck him because he had cursed at Lieutenant Cook. Defendant testified that he did not see Deputy Turner at the jail that day. Defendant emphatically denied touching any of the officers. According to defendant, the officers beat him up. Defendant admitted that he did not file a complaint against any of the officers.

On appeal, defendant challenges the sufficiency of the evidence used to convict him. Specifically, defendant contends that the evidence is insufficient to support his convictions because the state failed to prove that the officers were performing their lawful duties when they were injured. According to defendant, the officers were not performing their lawful duties because they were abusing him and their aggressive behavior provoked the defendant’s vulgar comments.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the | r,essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Collins, 04-1443 (La.App. 5 Cir. 7/26/05), 910 So.2d 454, 457.

Defendant was convicted of two counts of LSA-R.S. 14:34.2(B), which provides in pertinent part:

A. (1) Battery of a police officer is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a police officer acting in the performance of his duty.
(2) For purposes of this Section, “police officer” shall include commissioned police officers, sheriffs, deputy sheriffs, marshals, deputy marshals, correctional officers, constables, wildlife enforcement agents, state park wardens, and probation and parole officers.
(3) For purposes of this Section, “battery of a police officer” includes the use of force or violence upon the person of the police officer by throwing feces, urine, blood, saliva, or any form of human waste by an offender while the offender is incarcerated by a court of law and is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility.
B. (1) Whoever commits the crime of battery of a police officer shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence.
(2) If at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Public Safety and Corrections, or is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years. Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.

Defendant was also convicted of one count of simple battery, which is defined in LSA-R.S. 14:35 as “a battery committed without the consent of the victim.” A battery is defined in LSA-R.S. 14:33 as “the intentional use of force or | (¡violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.”

In this case, the thrust of defendant’s argument is that the officers were inadvertently injured when the officers abused him after he uttered an expletive to Lieutenant Cook, which was prompted by Lieutenant Cook’s kicking him. At trial, the jury heard the testimony from Lieutenant Cook that defendant struck him while he attempted to subdue defendant after his refusal to cooperate. They also heard the testimony of Deputy Biondolillo that defendant bit him while he was attempting to assist Lieutenant Cook. Further, Deputy Turner testified that defendant kicked him while he was attempting to help the other two officers. All three officers testified they were in uniform and were performing their duties at the jail. The jury also heard defendant’s testimony that he cursed at Lieutenant Cook when he kicked defendant’s ankles, as well as his denial that he struck, bit, or kicked any of the officers.

The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge upon the fact finder’s discretion only to the extent necessary to guarantee fundamental due process of law. State v. Howard, 98-64 (La.4/23/99), 751 So.2d 783, 801, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). In returning the guilty verdicts, the jury obviously rejected defendant’s version of the events and resolved any credibility issues in favor of the state. Viewing the evidence in the light most favorable to the prosecution, rational jurors could have found beyond a reasonable doubt that the defendant was guilty as charged in counts one and two (Lieutenant Cook and Deputy Biondolillo) and guilty of the responsive verdict of simple battery in count four (Deputy Turner).

|7We have also reviewed the record for errors patent, according to LSA-C.Cr. P.art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors which require corrective action.

For the reasons set forth herein, we affirm defendant’s convictions and sentences.

AFFIRMED.

      . Count three of the bill of information was subsequently dismissed.


text:
    STATE of Louisiana v. Desiree A. MORRISON.
    No. 07-KA-5.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2007.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|¡>On March 7, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Desiree A. Morrison, with unauthorized entry of an inhabited dwelling leased to Nick Davidson and located at 600 Deerfield Road, Apartment 2806, in violation of LSA-R.S. 14:62.3. On August 22, 2006, a six person jury found defendant guilty as charged.

On September 20, 2006, defendant filed a motion in arrest of judgment and alternatively a motion for new trial which was denied by the trial court. Thereafter, on September 27, 2006, the trial judge sentenced defendant to three years imprisonment at hard labor and also imposed a $500 fine. That same day, the state filed a multiple offender bill of information alleging defendant to be a third felony offender. After being advised of her rights, defendant waived them and stipulated to the allegations contained in the multiple offender bill of information. The trial court then vacated defendant’s original sentence and re-sentenced her, as |sa third felony offender, to six years imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant now appeals.

FACTS

At trial, Deputy Nick Davidson, employed by the Jefferson Parish Sheriffs Office, testified that on October 18, 2005, at approximately 11:20 p.m., he was on patrol; however, things were slow so he was watching an apartment complex from a parking lot on Terry Parkway. He watched this complex regularly and had been there several times since Hurricane Katrina, because one of the apartments was his. Deputy Davidson observed defendant exit a vehicle, go up the stairway and enter Apartment 2806. A male was walking around and got in the car when Deputy Davidson pulled up. When the male was asked what he was doing there, he answered that his mother was there to get something out of her apartment. When defendant walked towards Deputy Davidson, he greeted her and asked what she was doing there. She answered that she was getting some things she left behind during the storm. When Deputy Davidson asked which apartment was hers, she stated the one with the missing roof. After they walked closer she pointed up and said, “That one right there, 2806.” She stated she had been living there for a year and a half before the storm. She argued with Deputy Davidson after he told her it was not her apartment, that it was his apartment, and then she claimed she lived in the apartment next door. Deputy Davidson testified that he did not give defendant permission to enter his apartment.

A search of defendant’s vehicle revealed items she stated she brought back from Texas; however, Deputy Davidson testified the items were covered in sheetrock dust and dirt.

Deputy Davidson testified his apartment was vacant on October 18, 2005, because it had sustained severe damage from the storm. The entire roof was blown |4off and his apartment did not have electricity. He recalled writing in his police report that all of the apartments were vacant and were condemned; however, he stated he had no knowledge if the apartments were officially condemned.

Deputy Davidson stated that he went to his apartment just about every day to get things he needed. He asserted that everything he had was in the apartment, including a living room set, a kitchen set, kitchen utensils, microwave, pots and pans, three bedroom sets, a washer and a dryer, a television, food, uniforms, his clothes, and his children’s clothes and toys. According to Davidson, although he was not sleeping at the apartment, he still considered it his home and place of abode and had intentions of returning.

Jason Ward, the director of operations for River Oaks Management, who managed Acadian Village, testified that Nick Davidson leased Apartment 2806 with Aca-dian Village and that he had no knowledge of defendant leasing an apartment in the complex. He stated he did not know if the property was ever condemned, but acknowledged the property was damaged throughout.

Defendant testified that on October 18, 2005, she stopped at the apartment complex at 600 Deerfield Road and took items from the dumpsters. However, she denied entering Apartment 2806. She testified that the officer lied about several things that occurred that night.

On appeal, defendant challenges the sufficiency of the evidence used to convict her of unauthorized entry of an inhabited dwelling. Specifically, defendant argues that the state failed to prove that the apartment was inhabited at the time of the offense. She asserts that, at most, the evidence supported a conviction of criminal trespass.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 1.(1979), requires a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

Unauthorized entry of an inhabited dwelling is defined by LSA-R.S. 14:62.3(A) as “the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.” An unauthorized entry is an entry without express or implied consent. In the case of a private residence, consent must be given by one with authority or capacity to consent. State v. Rivet, 01-353 (La.App. 5 Cir. 9/25/01), 798 So.2d 219, 224.

Deputy Davidson testified he did not give defendant permission to enter his apartment; however, defendant is not challenging whether this was an unauthorized entry. The only element of the offense challenged by defendant is whether the apartment was an “inhabited dwelling.” In support of this argument, defendant notes the deputy’s family was no longer sleeping there and the apartment had no electricity, no roof, and was condemned because of Hurricane Katrina.

It is not necessary that a person be present in the dwelling at the time of the unauthorized entry to satisfy the inhabitation requirement; however, it must be proven that someone was actually “living” in the dwelling at the time. State v. Conn, 420 So.2d 1123, 1124 (La.1982); State v. Tran, 97-640 (La.App. 5 Cir. 3/11/98), 709 So.2d 311, 317; State v. Smith, 28,280 (La. App. 2 Cir. 6/26/96), 677 So.2d 589, 592, writ denied, 97-0850 (La.11/14/97), 703 So.2d 1287.

A house lived in only part of the time may be classified as inhabited. See, State v. Mayeux, 556 So.2d 142 (La.App. 5 Cir.1990), writ denied, 564 So.2d 315 (La.1990). In State v. Mayeux, the victim rented an apartment, but then | ^reconciled with her husband, making the community home her permanent domicile. When the defendant broke into the apartment, she was occupying the apartment on a part-time basis, using it only occasionally to apply makeup before going to work and sometimes she spent the night. This court decided this was sufficient to meet the requirements of the simple burglary of an inhabited dwelling statute.

In State v. Conn, 420 So.2d at 1124—1125, another case involving simple burglary of an inhabited dwelling, the victim’s husband died approximately one month prior to the burglary and at the time of the burglary she was staying with her daughter. Her intentions were to move in with her daughter permanently. The court noted she was still paying rent, her furniture and clothes were still there and she still considered herself domiciled at the apartment. The Conn court found the apartment was inhabited.

In State v. Black, 627 So.2d 741 (La. App. 2 Cir.1993), which also involved simple burglary of an inhabited dwelling, a person was renting the home, but was in the process of moving out. The Second Circuit noted that the record reflected at the time of the unauthorized entry all of the utilities wére still connected, some of her belongings were still in the house, she intended to return to the house the day after the incident and she deemed the house to be her place of abode. She testified that she was not spending the night at the home. The Second Circuit noted that not spending the night at the home, alone, was not determinative of whether the home was inhabited. The court further noted that it was not uncommon for people to have two places of abode and for both of the places to be deemed inhabited. Even though she was in the process of moving out, the court determined the inhabitation element had been satisfied.

|7In the present case, Deputy Davidson admitted he was not living in his apartment on October 18, 2005, because it was severely damaged after the storm. However, he testified that he considered the apartment his home and place of abode. Although he was forced out of his apartment on a full-time basis by Hurricane Katrina’s damage, he tried to still maintain control of the apartment as suggested by his testimony that he watched the complex regularly because one of the apartments was his. Further, he went to the apartment almost daily to retrieve things he needed from it. Deputy Davidson testified everything he had was in the apartment, including a living room set, a kitchen set, kitchen utensils, microwave, pots and pans, three bedroom sets, a washer and a dryer, a television, food, uniforms, his clothes, and his children’s clothes and toys. Deputy Davidson stated his intentions were to return to the apartment.

The verdict in this case turned on a credibility determination. In finding defendant guilty, the jury obviously rejected the version of events given by defendant and gave credence to Deputy Davidson’s testimony. It is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence. State v. Rivet, 798 So.2d at 226.

Considering the evidence in the light most favorable to the prosecution, we find that the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the apartment was inhabited and that defendant committed an unauthorized entry of that dwelling. Consequently, we find no merit to the sufficiency arguments raised by defendant.

We have also reviewed the record for errors patent, according to LSA-C.Cr. P.art. 920; State v. Oliveaux, 312 So.2d 337 (La.1976); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note that there are several inconsistencies between the transcript and the commitments. Both the multiple bill commitment and the commitment on defendant’s original sentence reflect that defendant pled guilty to LSA-R.S. 14:62.3. It is clear, however, that defendant proceeded to a jury |strial, and the jury found defendant guilty as charged. Further, the transcript provides defendant stipulated to being a multiple offender and the trial court found she was a third felony offender. The commitment reflects that defendant was advised of her rights and waived them, but does not reflect the actual stipulation to the multiple offender bill of information. Also, defendant’s multiple bill sentence was imposed without benefit of probation or suspension of sentence; however, the commitment does not reflect this. Finally, the commitment provides a $500 fíne was imposed when defendant was sentenced on the multiple bill. While the transcript from the original sentencing reflects that a $500 fíne was imposed, the multiple offender sentencing transcript does not reflect such a fine.

Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, to avoid confusion and any possible prejudice to defendant, we remand the matter and direct the district court to correct the commitment to accurately reflect the proceedings in this matter.

Therefore, for the reasons set forth herein, defendant’s conviction and sentence are affirmed, and the matter is remanded to the district court for correction of the commitments.

CONVICTION AND SENTENCE AFFIRMED; REMANDED TO CORRECT COMMITMENTS.


author: EDWIN A. LOMBARD, Judge.

text:
    Alvin G. HOSLI II v. RENT-A-CENTER, INC.
    No. 2006-CA-1466.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2007.

      Gregory J. Hubachek, Workers’ Compensation, LLC, Metairie, LA, for Plaintiff/Appellee.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, David B. Parnell, Raba-lais, Unland & Lorio, Covington, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| ¡.Defendant/Appellant, Rent-A-Center, Inc., (“Rent-A-Center”) appeals the trial court’s judgment finding that its employee, Claimant/Appellee, Alvin Hosli (“Mr. Hos-li”), suffered a work-related accident that caused injury to his lower back and rendered him temporarily totally disabled, entitling him to past and future medical treatment and disability benefits. Mr. Hosli appeals the portion of the judgment denying him penalties and attorney’s fees.

Relevant Facts

Mr. Hosli was a long-time employee of Rent-A-Center. On February 5, 2004, Mr. Hosli was employed as a market manager, overseeing several Rent-A-Center locations. On that date, Mr. Hosli’s regional supervisor, Jay Brewer, met him at one of the locations to check on operations there. Mr. Brewer was unhappy with the condition of the store and with the fact that merchandise was missing, and insisted upon conducting an immediate inventory check. This task required Mr. Hosli to move and/or slide over large electronic devices and appliances to obtain the relevant serial numbers while Mr. Brewer recorded the information on a clipboard.

Mr. Hosli claims that during the course of moving a refrigerator in an effort to locate its serial number, he felt a “pop” in his back. However, because the [ ¡¡injury was not so immediately painful, he did not report the injury to anyone at the time and he continued working. Later in the afternoon, Mr. Hosli and Mr. Brewer traveled to another Rent-A-Center store where Mr. Brewer directed Mr. Hosli to fire the store manager. Shortly thereafter, as a result of Mr. Brewer’s unhappiness with Mr. Hosli’s recent job performance, Mr. Brewer demoted Mr. Hosli from market manager to store manager and gave him the next two days (Friday and Saturday) off to think about it.

Mr. Hosli claims that after he returned home that evening, the pain in his back worsened dramatically. He sought treatment the next day at Ochsner clinic. Medical records from Ochsner indicate that Mr. Hosli told the doctor that he hurt his back moving merchandise at work on the previous day. On Sunday, February 8, Mr. Hosli reported the accident to his employer. Mr. Hosli’s treating physician, Dr. Waitt, placed him on a no work status. Rent-A-Center initially began making workers’ compensation payments to Mr. Hosli, but later terminated the payments after investigating the claim.

Action of the Trial Court

At trial, Rent-A-Center argued that Mr. Hosli did not suffer a work-related accident on February 5, 2004. Rather, Rent-A-Center argued that Mr. Hosli was upset about being demoted and the consequential pay cut, and fabricated the accident and injury. In support, Rent-A-Center presented testimony from several of Mr. Hosli’s co-workers including Mr. Brewer, who was with Mr. Hosli the entire day of the alleged accident, Mr. Greg Chapman, a store manager who saw Mr. Hosli on the day of the accident, and Mr. Maurice Thompson, who shared an office with Mr. Hosli and who claims to have seen Mr. Hosli in the office on the |4day after the accident. These three witnesses testified that Mr. Hosli never mentioned anything about injuring his back on February 5.

Although he did not present any witnesses to attest to the occurrence of the accident, or fact witnesses to corroborate his testimony as to the events following the accident, Mr. Hosli did present medical evidence from Dr. Waitt, as well as an orthopedist, Dr. Chimento, and a neurosurgeon, Dr. Thomas, that he had suffered a work-related injury on February 5 and was temporarily disabled from working.

At the conclusion of the trial, the trial court found that “the credibility of this claimant coupled with the opinions of these doctors that his injury is a work-related injury equates to a clearly compensable claim.” The court further found that there was nothing viable to discredit the claimant or the actions he took. The court also found that RenL-A-Center was not arbitrary and capricious in terminating Mr. Hosli’s indemnity benefits, and that Renb-A-Center did not violate La. R.S. 23:1201 for non-payment of medical benefits. The trial court awarded costs to Mr. Hosli.

Rent-A-Center appeals the trial court’s ruling in favor of Mr. Hosli. It argues on appeal that the trial court erred in finding that Mr. Hosli met his burden of establishing the occurrence of an “accident,” that the court made unreasonable credibility and factual determinations based on the testimony and documents in evidence, that the court erred in awarding temporary total disability benefits to Mr. Hosli, and that the court erred in finding it liable for unpaid past and future medical expenses and costs.

Law and Discussion

To establish that he is entitled to workers’ compensation benefits, a claimant |Bmust prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability. Kennedy v. Security Indus. Ins. Co., 623 So.2d 174, 176 (La.App. 3 Cir.1993), writ denied, 629 So.2d 389 (La.1993); reconsideration denied, 630 So.2d 251 (La.1993). A preponderance of the evidence requires a plaintiff to show the fact sought to be proved is more probable than not. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993). Once he has established the aforementioned elements, a claimant must then show by “clear and convincing” evidence that he is temporarily totally disabled. La. R.S. 23:1221(1).

In workers’ compensation cases, it is well-settled that the appropriate standard of appellate review is the manifest error or clearly wrong standard. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 710. Under that standard, “[t]he 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.” Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La.1992).

A. Work-Related Accident

Rent-A-Center contends that the trial court erred in finding that Mr. Hosli met his burden of proving that a work-related accident occurred. To support its argument, Rent-A-Center points to the suspicious timing and circumstances surrounding the alleged accident. Rent-A-Center also cites the testimony of three coworkers, all of whom stated that Mr. Hosli did not mention to them that an | (¡accident occurred or that he suffered any injury on February 5, 2004. However, “Louisiana courts consistently have interpreted the work-related accident requirement liberally.” Williams v. Regional Transit Authority, 546 So.2d 150, 156 (La.1989). “A plaintiffs testimony alone may sufficient to establish that an accident occurred provided that: ‘(1) no other evidence discredits or casts serious doubts upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.’ ” Blair v. Wal-Mart Stores, Inc., 01-2211 (La.App. 4 Cir. 5/15/02), 818 So.2d 1042, 1047, citing Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992).

Although Mr. Hosli was the sole witness to the accident, the circumstances following the alleged incident and the medical records in this case further support his claim that an accident occurred and that he suffered an injury as a result. The records clearly establish that Mr. Hosli sought immediate treatment for his injury the day after the accident and that he followed up on that medical treatment with recommended visits to an orthopedist and a neurosurgeon. The objective medical findings of several physicians establish that Mr. Hosli suffers from a bulging disc. Renb-A-Center offered no evidence to rebut the medical evidence presented by Mr. Hosli nor cast serious doubt upon Mr. Hosli’s version of the incident. The testimony of the three co-workers that Mr. Hosli did not tell them about the accident does not disprove that the accident occurred. The trial court, in its unique position to hear and see the witnesses, found Mr. Hosli’s testimony that he suffered a work-related accident while conducting the inventory check on February 5, 2004 to be credible. Accordingly, based on the record, we cannot say that the trial court was manifestly erroneous or clearly wrong in its factual finding that a work-related accident occurred.

|7B. Causation

Once a claimant proves an accident occurred followed by a disability, the burden shifts to the employer and his insurer to prove the absence of a causal connection between the accident and the injury. Bruno v. Guaranty Bank & Trust Co., 617 So.2d 1351 (La.App. 3 Cir.1993). In an effort to cast doubt on Mr. Hosli’s claim that the alleged accident caused his back injury, RenL-A-Center introduced evidence that Mr. Hosli had been treated for back pain before the accident and that he was taking Vicodin for pain at the time of the alleged accident. Mr. Hosli admitted at trial that he may have been taking Vicodin on the day of the accident, but stated that he had previously sought treatment for neck pain and not lower back pain. However, even if there were a preexisting latent back disability, workmen’s compensation benefits are nevertheless payable when a work related accident aggravates or accelerates it, producing disability. Thomas v. Proctor & Gamble-Louisiana Folger Coffee, 04-0277, p. 2 (La. App. 4 Cir. 6/09/04), 875 So.2d 1072, 1073, citing, Bruno v. Harbert Intern. Inc., 593 So.2d 357, 363 (La.1992). The fact that an injury similar to the one that is alleged to have occurred at work is generally irrelevant in a workers’ compensation claim as the employer takes the employee as he finds him. Blair v. Wal-Mart, supra, at 1048.

The trial court found that Mr. Hos-li met his burden of proving that an accident occurred on February 5, 2004. Rent-A-Center does not dispute that Mr. Hosli was sliding and/or moving heavy merchandise at the time of the alleged accident or that he was diagnosed with a bulging disc directly after the alleged accident. The evidence that Mr. Hosli was treated for a similar pre-existing condition before the accident does not prove the absence of a connection between the accident and this injury. Based on a careful review of the record, we do not |sfind that the trial court’s finding was manifestly erroneous.

C. Extent of Disability

Renfr-A-Center’s next assignment of error concerns the trial court’s finding that Mr. Hosli proved by “clear and convincing” evidence that he is totally disabled, i.e. he is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(l)(e). Under Louisiana law, “[T]he question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony.” Dugas v. Rosary House, 93-42 (La.App. 3 Cir. 4/6/94); 635 So.2d 570, 572. Mr. Hosli presented medical testimony from his treating physician, Dr. Waitt, indicating that he is “NOT ABLE to work at present” as of Friday, February 6, 2004. Dr. Waitt repeated his declaration that Mr. Hosli is temporarily and totally disabled on each of Mr. Hosli’s subsequent visits. Further, Mr. Hosli provided documentation that the orthopedic surgeon and physical therapist who were treating him also agree that he is temporarily totally disabled. Mr. Hosli’s doctor recommended that surgery be performed to relieve Mr. Hosli’s back pain, although as of the date of trial, the surgery had not yet been performed. Based on this evidence, the trial court found Mr. Hosli to be temporarily totally disabled. In this case, the objective medical evidence supports the trial court’s finding that Mr. Hosli is temporarily totally disabled and will continue to be until such time as he recovers from the proposed surgery. Therefore, the court’s finding on this issue is not manifestly erroneous.

Penalties, Attorney’s Fees, and Costs

In a single assignment of error, Mr. Hosli argues that the trial court erred in failing to award him penalties and attorney’s fees. The penalty provisions of | flLouisiana Revised Statute section 23:1201 are invoked if workers’ compensation benefits are denied and the employer or his insurer did not reasonably controvert the employee’s right to compensation. The test to determine whether the employee’s right has been reasonably controverted turns on whether the employer or his insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. Chelette v. American Guar, and Liability Ins., 480 So.2d 363 (La.App. 3 Cir.1985). “An unjustified belief that an employee’s injury did not result from an accident does not excuse failure to pay worker’s compensation benefits.” Nelson v. Roadway Exp., Inc., 588 So.2d 350, 355 (La.1991). A determination of whether a defendant should be cast with penalties is essentially a question of fact that will not be disturbed absent clear error by the trial court. Here, the trial court found that Rent-A-Center’s decision to terminate benefits was reasonable. We agree, especially in light of the suspicious timing and circumstances surrounding the alleged accident as well as the fact that Mr. Hosli previously sought treatment for a pre-ex-isting injury. As such, we find no manifest error in the trial court’s finding that Rent-A-Center acted reasonably in controverting Mr. Hosli’s claim.

On the issue of attorney’s fees, Louisiana Revised Statute section 23:1201.2 provides in pertinent part that the failure of an insurer to pay workers’ compensation benefits within sixty (60) days after receipt of written notice shall subject it to reasonable attorney fees if it is found to have acted arbitrary, capricious, or without probable cause. La.Rev. Stat. 23:1201.2. In the instant case, the trial court found that Rent-A-Center was not arbitrary and/or capricious in terminating Mr. Hosli’s benefits and found that an award of attorney’s fees was not | inwarranted. We find no error in the trial court’s finding.

Generally, costs are to be paid by the party cast in judgment unless the court, in equity, rules otherwise. La.Code Civ. Proc. art. 1920. Absent an abuse of discretion, an appellate court will not interfere with an award of costs. Vela v. Plaquemines Parish Gov., 00-2221, p. 29 (La.App. 4 Cir. 3/13/02), 811 So.2d 1263, 1283. We do not find that the trial court abused its discretion in awarding costs in favor of Mr. Hosli.

Based on the record, we cannot say the trial court was manifestly erroneous or clearly wrong in its factual findings on any of the issues presented for review by both parties. For the foregoing reasons, the judgment of the trial is AFFIRMED. Costs of this appeal are to be split between the parties.

AFFIRMED.


text:
    Grade S. ATKINS, et al v. HARCROS CHEMICALS INC., et al.
    No. 2006-CA-1347.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2007.

      John L. McKnight, Jr., New Orleans, LA, In Proper Person, Appellant.
    Mark R. Beebe, Ronald J. Sholes, Jason M. Cerise, Adams and Reese LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| -iAppellant, John L. McKnight, appeals from an April 2004 judgment of the trial court denying his motion to amend and modify a settlement agreement. Because Appellant’s Motion for Appeal raises no appealable issues and was filed well after the delays for filing an appeal had run, the appeal is DISMISSED in accordance with Uniform Court of Appeal Rule 2-16.2(1).

Background:

During the course of a class action case styled Grade S. Atkins v. Horeros Chemicals, Inc. et al., a settlement was entered into by the parties to the litigation and was memorialized in a document entitled “Supplemental Preliminary Settlement Agreement” executed on June 5, 1996. Section 5.52(a) of the agreement placed $1,000,000 of settlement proceeds in a donor-advised fund to be managed by the Greater New Orleans Foundation (GNOF). This section also established a “Donor Advisor Group” that was charged with consulting with GNOF regarding the distribution of grants from the Donor Fund. In June of 2003, when it became clear that the Donor Ad-visor Group proved unable to effectively and efficiently facilitate the | ¡^distribution of grant funds, GNOF moved to modify Section 5.52(a) of the Agreement to replace the Donor Advisory Group. After a contradictory hearing on the motion in August 2003, the trial court ordered the appointment of a “Special Master” to analyze the issues and report to the court with his recommendations.

On March 16, 2004, Appellant filed a motion to amend and modify Section 5.52(a) of the Agreement, seeking to replace the GNOF with Gert Town Enterprise Economic Redevelopment, Inc., an entity associated with the Appellant. A hearing was held on the motion on April 16, 2004 and the motion was denied in open court. At this same hearing, the district court ordered the parties to hold a status conference within two weeks to discuss the Report of the Special Master and to permit the court to issue an appropriate order regarding the current status of the donor fund and the constitution of the Donor Advisor Group. On April 27, 2004, the interested parties, including Mr. McKnight, participated in the aforementioned status conference. On April 30, 2004, the trial court issued a written Order memorializing the denial of Mr. McKnight’s motion and ordering the reconstitution of the Donor Advisory Committee. Notice of the signing of the Order is dated May 5, 2004. The instant appeal arises from this judgment.

During our initial review of the record, we noticed that although notice of the Judgment denying Appellant’s motion was issued on May 5, 2004, Appellant did not file his Motion for Appeal in the trial court until October 12, 2006, over two years later. Therefore, as a preliminary matter at the oral argument, we asked Appellant to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant’s only response |swas that he believes he definitely filed the motion for appeal in a timely manner. The record reflects otherwise.

Although it is unclear when Appellant received notice of the signing of the judgment, Appellant was present at the April 16, 2004 hearing and the April 30, 2004 status conference during which the trial court rendered its decision to deny the motion. Further, Appellant made no Request for notice of the signing of the judgment. Therefore, the delay for taking an appeal commenced to run upon the signing of the judgment. Mitchell v. Louisiana Power and Light Co., 380 So.2d 743 (La. App. 4 Cir.1980). Consequently, pursuant to Louisiana Code of Civil Procedure Article 2087, which provides that a devolutive appeal must be taken within sixty days of the expiration of the delay for applying for a new trial, Appellant’s motion for appeal should have been filed in mid-July 2004. See La.Code Civ. Proc. Art.2087 (West 2007). The record clearly shows that Appellant filed his motion for appeal in the trial court in October 2006. Because Mr. McKnight’s appeal was filed well after the delays for filing an appeal had run, it must be dismissed on the basis of lack of jurisdiction. Moreover, even if it had been filed timely, Appellant’s appeal brief is devoid of any statement regarding any errors made by the trial court, the issues presented for review, relevant law, nor the nature of the relief sought.

In his brief, Appellant lists five assignments of error that pertain to information and/or evidence he feels was not made available to the trial judge. He specifically points to the following:

(1) the trial court did not have all of the reported information to make a denial decision; (2) yearly statements on the account were purposely | ¿omitted; (3) [lack of] document reports on GNOF involvement with the donor advisory committee; (4) the court made a ruling on another matter that was not included in the motion being heard; and (5) no minutes were ever taken.

In response, GNOF argues that Appellant was required to bring any evidence to the trial court’s attention at the hearing on the motion and cannot introduce new evidence for the first time on appeal. Moreover, if Appellant could not have obtained this evidence with due diligence before the hearing, GNOF argues that the trial court is the proper forum for this relief, and it is the trial court that should determine whether a new trial is warranted. GNOF further argues that the allegedly missing accounting statements referenced by the appellant were produced to the trial court for an in camera inspection and that Appellant was provided with a copy of a letter to the court evidencing this, although Appellant made no attempt to obtain these statements at the trial court level. Finally, GNOF argues that the reports of the Special Master were submitted to the trial court and are part of the record. Therefore, it is GNOF’s position that Appellant has raised no appealable issues. We agree.

Rule 1-8 of the Uniform Rules of the Courts of Appeal, entitled “Scope of Review,” dictates that a court of appeal may only review issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise. See La. C.A. Rule 1-3 (West 2007). Clearly, Mr. McKnight takes issue with the trial court’s judgment denying his motion and ordering the reconstitution of the Donor Advisory Group. However, he praises no specifications of error on the part of the trial court nor appeal-able issues for our review. The issues raised by Mr. McKnight are either non-appealable, because they were not raised at the trial court level, or irrelevant to this appeal. Moreover, even after oral argument, it is unclear what, if anything, Appellant would have this Court do to remedy the perceived injustice.

In conclusion, Appellant’s Motion for Appeal was not timely filed and must be dismissed. Moreover, even if Appellant’s motion for appeal had been filed timely, Appellant’s appeal brief is devoid of facts indicating any error on the part of the trial court and presents no appealable issue for our review. Accordingly, the appeal is hereby dismissed in accordance with Uniform Court of Appeal Rule 2-16.2.

APPEAL DISMISSED.

      . It is unclear when Appellant actually received notice of the signing of the judgment, since the record reflects that there was no address on file for the Appellant. However, Appellant did not raise a notice argument when questioned as to why he filed his appeal two years after the statutory deadline.

      . Appellant’s assertion that the trial court’s April 30, 2004 Order constitutes a ruling on the August 2003 motion filed by GNOF is inaccurate. The trial court entered the April 30, 2004 Order as a direct consequence of matters discussed during the court-ordered status conference conducted for the purpose of considering the recommendations of the Special Master.


author: ROLAND L. BELSOME, Judge.

text:
    Dana ESCOFFIER v. The CITY OF NEW ORLEANS, New Orleans Police Department and ABC Officers.
    No. 2006-CA-1005.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2007.

      Keith Couture, Law Office of Keith Couture, Mandeville, LA, for Plaintiff/Appellant.
    Penya Moses-Fields, City Attorney, Albert Thibodeaux, Chief Deputy City Attorney, Heather M. Valliant, Assistant City Attorney, Shawn Lindsay, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| ¶Plaintiff-Appellant Dana Escoffier appeals the trial court’s grant of an Exception of Prescription in favor of Defendants-Appellees, the City of New Orleans, the New Orleans Police Department, and ABC Officers. We affirm.

FACTS

Appellant Dana Escoffier (hereafter “Appellant”) filed a lawsuit against the City of New Orleans, the New Orleans Police Department, and Officers ABC (hereafter collectively “Appellees”) on May 20, 1996, alleging that Appellees failed to respond appropriately to his 911 emergency call that his vehicle was being stolen on May 28,1995.

PROCEDURAL HISTORY

On January 30, 2004, the Civil District Court for the Parish of Orleans issued an order dismissing Appellant’s case as of July 23, 2002. The dismissal was also stamped with a certification verifying that the last item on the docket for that case (i.e., the last step in the prosecution or defense of the case) was the | ¡¡“Defendant’s Witness List” filed on July 13, 1999. The order dismissing the case as of July 23, 2002 was then served on Appellant February 6, 2004.

On February 25, 2004, Appellant filed a second petition for damages, and Appellees filed a Peremptory Exception of Prescription on May 3, 2004. After a hearing on October 8, 2004, the trial court signed an order granting the exception on June 20, 2005. This appeal followed.

STANDARD OF REVIEW

Whether Appellant’s suit was abandoned is a question of law. Olavarrieta v. St. Pierre, 04-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568. This Court has held that with regard to suits that have been deemed abandoned, the standard of review of the appellate court is simply to establish whether the lower court’s interpretive decision is correct. Meyers ex rel. Meyers v. City of New Orleans, 05-1142, p. 2 (La.App. 4 Cir. 5/17/06), 932 So.2d 719, 721 (citing Olavarrieta, supra).

DISCUSSION

Appellant, in his sole assignment of error, contends that the trial court improperly ruled on Appellees’ Exception of Prescription “by calculating the time before the judgment became final.” We disagree.

It is well settled in Louisiana that a suit is abandoned when either party fails to take steps in furtherance of the prosecution or defense of the case for at least three years. La. C.C.P. art. 561(A)(1); Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La.5/15/01), 785 So.2d 779, 784. Accordingly, no action by the court is required for abandonment to occur; abandonment is self-executing. La. C.C.P. art. 561(A)(2); Clark, 00-3010, p. 6, 785 So.2d at 784.

| sAbandonment is governed by La. C.C.P. art. 561, which provides, in pertinent part:

This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial.
Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

La. C.C.P. art. 561 (emphasis added). Thus, the Appellant, seeking a remedy for the dismissal due to abandonment, had two clear options: either file a motion with the trial court to set aside the dismissal within thirty days of the order, La. C.C.P. art. 561(A)(3), or file an appeal of the dismissal within sixty days of the order. La. C.C.P. art. 561(A)(4). Appellant in this case did neither.

Additionally, although filing suit generally interrupts prescription, LSA-C.C. art. 3462, filing a subsequent suit does not interrupt prescription when the initial suit has been ordered abandoned:

|4An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.

LSA-C.C. art. 3463 (emphasis added); Baham v. Medical Center of Louisiana at New Orleans, 2000-2022, p. 8 (La.App. 4 Cir. 7/11/01), 792 So.2d 85, 90 (citing Tug Alamo Inc. v. Electronic Service Inc., 275 So.2d 419 (La.App. 4 Cir.1973)). Moreover, “[o]nce abandonment occurs, no action by the plaintiff or inaction by the defendant can revive the abandoned action.” Springer v. Louisiana Bd. of Registration, 2005-0878, p. 4 (LaApp. 4 Cir. 3/15/06) 929 So.2d 152, 154 (citing Clark, 785 So.2d at 789). Appellant’s lawsuit could thus not be “revived” in this case by simply re-filing another petition for damages.

We conclude that, under these facts, the trial court properly found that filing a separate petition for damages did not serve to interrupt prescription and appropriately ordered the case abandoned and dismissed as of July 23, 2002. In this case, once the accrual of abandonment automatically occurred, any interruption of prescription for the 1996 suit was deemed to never have occurred. Roberts v. New Orleans Symphony, 2003-2206, p. 4 (LaApp. 4 Cir. 9/1/04), 883 So.2d 452, 456; La. Civ.Code art. 3463. Accordingly, the only method by which Appellant could have interrupted or suspended prescription for the 1996 suit via a new petition for damages would have been to file the new lawsuit prior to July 23, 2002. Because Appellant did not file a new petition until February 25, 2004, the only other available alternatives would have been to appeal the dismissal | swithin sixty days of the February 6, 2004 judgment, or file a motion to set aside the dismissal within thirty days of the judgment; Appellant attempted neither. Therefore, we find that this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment granting the exception of prescription.

AFFIRMED.

      . Specifically, the petition for damages alleged that the 911 operator failed to correctly prioritize Mr. Escoffier’s call reporting the theft; that this failure caused a lost opportunity for the vehicle to be recovered; that the city of New Orleans failed to instruct and supervise its employees regarding the proper evaluation of 911 calls; and that the city of New Orleans failed to recognize the severity of the crime that Mr. Escoffier reported and failed to supervise the daily decisions of its employees. We also note that while Appellant’s brief references the date May 25, 1995, the petition for damages references May 28, 1995 as the date that the theft occurred.

      . Article 3462 provides, in pertinent part:
      Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue.
      LSA-C.C. art. 3462.

      . See also Henderson v. Meshell, 579 So.2d 1113, 1114 (La.App. 2d Cir.1991)(holding that "Louisiana courts have consistently held that the interruption of prescription continues only if the original suit is still pending or viable when the second action or intervention is filed”)(emphasis in original).