author: STEWART, J. CARAWAY, J., BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Andrea C. ALEXANDER, Appellant.
    No. 42,957-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Louisiana Appellate Project by Paula C. Marx, for Appellant.
    Jerry L. Jones, District Attorney, Robert N. Anderson, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART and CARAWAY, JJ.
   STEWART, J.

_JjThe defendant, Andrea C. Alexander, pled guilty to aggravated criminal damage to property, a violation of La. R.S. 14:55, and received a sentence of 10 years at hard labor with credit for time served. The defendant now appeals. Because the record does not show an adequate factual basis for the sentence, we vacate the sentence and remand for resentencing.

FACTS

On March 15, 2007, Alexander was charged by bill of information with aggravated criminal damage to property. The bill asserted that on or about January 5, 2007, Alexander committed aggravated criminal damage to a 2004 Chevrolet Trailblazer occupied by Brandon Singleton and Bernard Jackson. Alexander, who was 17 and had been in jail for six months, pled guilty as charged on June 12, 2007.

At the beginning of the guilty plea hearing, the assistant district attorney reminded the trial court of the basic facts, namely, that shots were fired and hit a car. After the defendant was sworn in, he explained that he had dropped out of school in the tenth grade and was supposed to start GED school, but had “got locked up.” He indicated that he worked on cars with his stepfather. When asked if he had ever been “detained in a juvenile court proceeding, anything like that,” he responded, “One. One time.” However, he claimed that he was not on juvenile probation.

Rather than follow the usual guilty plea procedure of asking the district attorney to set forth the facts, having the defendant confirm the facts, and having the defendant waive his Boykin rights, the court began ^questioning Alexander about the crime and the other individuals involved. Referring to the officer’s affidavit of probable cause to arrest without a warrant, which was not entered into evidence, the trial judge noted that the boxes indicating criminal history and probation/parole were marked ‘Yes.” The trial judge recognized that this information could be incorrect but stated that it suggested to him that the defendant had a number of prior arrests. The defendant denied this and stated that he was no longer on juvenile probation.

When the trial judge asked what happened in this case, Alexander explained that the week before the incident at issue Singleton and Jackson had shot at him at a Shell station and had hit his friend in the leg. As he came out of the store on the night of the incident at issue, he recognized Singleton and Jackson. Alexander grabbed a gun and fired shots at the trunk of the car in which Singleton and Jackson were riding. The court then asked what he was trying to hit, and Alexander responded, “Nothing really. I don t know. He went on to explain that it was “a gang bang thing.” Apparently, Alexander belonged to one of two rival groups. Alexander denied that other people were around when he fired the gun.

The court then asked Alexander’s mother why he was not in school. She replied that he was too old. She also said he was put on a waiting list to go to the alternative school in West Monroe, but she had never been contacted about it. During the hearing, the trial court observed that Alexander “might have been a troublemaker at school” and that his mother did not appear to be able to control him. His mother denied that he was a |stroublemaker, noting that he had played football. She also denied being unable to control him. She explained that she had just gotten out of the hospital on the night of the incident and was home sick in bed. She also told the trial court that Alexander was next to the youngest of her four children.

After confirming with Alexander that he could read and write, the court asked him if he knew the charge against him. Alexander replied, “aggravated criminal damage to property.” The court noted that it looked like he had been booked on attempted second degree murder. However, the assistant district attorney admitted that Alexander was never charged with that crime. The trial court then, in a rather rambling fashion, went over the Boykin rights. Alexander indicated that he understood. The court confirmed that the sentencing range was from one to fifteen years, with or without hard labor and then pronounced the defendant guilty.

After additional discussions about the prior incident, the trial court concluded that Alexander had to go to prison and the only issue to be decided was for how long. The court stated:

I m not required by law to order a pre-sentence investigation. My thinking on this is — well, we just can’t have that, people shooting ... I figure you’re going to do it again. The worst I can do is lock you up for 15 years. Probably you’ll get out and commit other felony offenses.

Alexander’s counsel, who had not yet spoken, asked if the court would consider putting Alexander on probation, ordering him to get a GED, and giving him a chance to straighten up. The court declined, stating, “I don’t want to. I mean, I really don’t. I mean why shouldn’t I send you to 14prison? I don’t think you really care all that much right now, do you? You’re in the mood?” Alexander replied, “Sir?” The court then asked the mother what good it would do to order Alexander to get his GED. She asked the court to send him to an alternative school to get his GED. But the court then stated:

No. That’s for people who want to learn. I don’t think he wants to. That’s my opinion. I mean, I don’t know him. Let me look at the sentencing guidelines here. Let me see if I have any justification to send him to prison. That’s just my — I just think there’s jokers going around shooting guns in public places whether it’s 1:00 in the morning or 8:30 at night. Somebody needs to go to prison. And it looks like you’re the one that’s elected right now. Don’t you agree?

Alexander responded, “No, sir.” The court went on to note that Alexander could have shot anyone when he fired the gun and that he did not give “serious thought” to the consequences of his action.

The court then proceeded to address the factors of La. C.Cr.P. art. 894.1 to determine the sentence of imprisonment. The court stated:

The law says, “Where the defendant has been convicted of a felony or a misdemeanor, the Court should impose a sentence of imprisonment if any of the following occurs. One, there is an undue risk that during the period of suspended sentence or probation the defendant will commit another crime.” Do I have any information that leads me to believe that? I think that to be true. But I’m having a hard time articulating why I believe that to be true. I don’t have any hard evidence. I have information that you had maybe some trouble as a juvenile. You dropped out of school some time ago. You can’t tell me when. Your mother indicates to me that you’re uncontrollable. You’ve been involved in two shooting incidents. What you told me is that you saw an individual and the only provocation that caused you to shoot him was an incident that occurred a week or two weeks before at the Shell station. Now, did I miss something here? Nobody shot at you at that Tan-glewood station, did they? (Emphasis added.)

1 .^Alexander responded, “No, sir.” The trial judge continued by addressing Alexander’s need for correctional treatment or a custodial environment. The trial judge stated that he did not know what kind of correctional treatment was available in prison and observed that a custodial environment is basically a means of “warehousing” people. Next, the trial judge stated, “Firing a gun like it’s Dodge City in a populated area at a commercial establishment where strangers and otherwise congregate there and carry on commerce is a serious offense.” Although the trial judge mentioned that he had already concluded he would not impose a suspended sentence, he observed that while Alexander’s conduct may not have manifested deliberate cruelty to a victim, it did show a callous indifference to the safety of others. The trial judge then stated:

I’m thinking about giving him ten years. But I have had individuals who were shot, cases where individuals were actually shot by the offender and they’ve received less sentence. Am I off here, Mr. Walker?

Alexander’s counsel then responded, ‘Well, it does seem kind of harsh for a first time offense and nobody was injured.” The trial judge then admitted, “I’m trying to articulate why this case offends me so much.” But he then went on to say:

All right. I think I’ve already said it though. It’s just somebody shooting out — I mean. This guy is involved in two shooting incidents, some stupid gang thing. Somebody needs to go to prison. Something needs to happen to somebody.

Alexander’s counsel pointed out that Alexander had already done six months, and the assistant district attorney, in an apparent attempt to steer the court toward a lesser sentence, reminded the court:

|fiI don’t remember the name, but I had a case in front of Your Honor more than a year ago that was fairly similar to this. And if I recall, you gave the guy eight years and suspended all but, I think, two.

The trial judge did not remember the case, but he noted that there must have been something about that particular defendant that led to the result. With regard to Alexander, the trial court concluded

I just think this guy here, the guy standing before me, is not going to be anything but trouble in the future. That’s what I’m thinking. . He’s got a concerned mother here, but she can’t do anything for him. Sentenced to ten years at hard labor, custody of the Louisiana Department of Public Safety and Corrections. You are given credit for any and all time previously served in connection with the commission of this offense....

The trial judge then realized that the sentencing delay had not run and asked if defendant would waive it. Defense counsel asked if the court would impose a better sentence if they waited, but the court responded in the negative. Defense counsel then moved to vacate the sentence based on the statutory delay. The trial judge vacated the sentence and reset the matter for sentencing.

At the sentencing hearing, the trial judge articulated the lack of evidence indicating that Alexander understood the “enormity of his crime” or showing that he had any remorse as additional factors for imposing the same 10-year sentence.

DISCUSSION

On appeal, Alexander raises seven assignments of error all relating to the excessiveness of his sentence. He points out that he is a first offender who did not contemplate that his act would cause serious harm, that there is no showing that he would not benefit from probation, and that there is no |7showing that he poses an undue risk of committing another crime while on probation. He argues that the trial judge failed to adequately consider the mitigating factors in this case, including his youth, his lack of a prior criminal record, and the likelihood of rehabilitation. He also points out that the record does not support many of the “general assumptions” made by the court, particularly noting that his mother did not say that he was uncontrollable.

The state points out that the defendant was booked on the charge of attempted second degree murder, that he admitted the offense was gang related, and that his only explanation for shooting at the victims was they had shot at him a week before he reciprocated. Thus, this was the second shooting involving the defendant. For these reasons, the state argues that the plea to aggravated criminal damage to property does not adequately describe the defendant’s conduct. Also, the state asserts that his conduct endangered the lives of not only his victims, but also innocent store patrons. Suggesting that the defendant obtained some sentencing benefit, the state notes that the maximum sentence for aggravated criminal damage to property is 15 years, and that the maximum for attempted second degree murder is 50 years without benefits. Finally, the state asserts that the trial court “thoroughly articulated” reasons under La. C. Cr. P. art. 894.1 for the sentence imposed.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. part. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983). The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Haley, 38,258 (La.App. 2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, unit denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

A trial court has broad discretion to sentence within the statutory |fllimits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App. 2d Cir.12/13/06), 945 So.2d 267. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

A trial court is not required to render a suspended sentence or probation on a first felony offense. The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. State v. Flores, 27,736 (La.App. 2d Cir.2/28/96), 669 So.2d 646.

Under the provisions of La. C. Cr. P. art. 894.1(A), when a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if any of the following occurs:

(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.

The article then goes on to list 33 grounds in Section B that shall be accorded great weight in the trial court’s determination of suspension of sentence or probation. As previously noted, the trial judge found there was an undue risk of commission of another crime, but he admitted having a Imhard time articulating why that was true. The court also found that none of the grounds in Section B applied herein to warrant a suspended or probated sentence.

Alexander pled guilty to aggravated criminal damage to property, which is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion. La. R.S. 14:55. The crime is punishable by a fine of not more than ten thousand dollars, imprisonment with or without hard labor for not less than one nor more than fifteen years, or both. Id.

In State v. Ezernack, 408 So.2d 907 (La.1981), the defendant was charged with aggravated criminal damage to property, pled guilty to attempt, and was sentenced to five years at hard labor. Testimony presented at the guilty plea hearing indicated that the offense caused extensive damage to the victim’s truck and mobile home as a result of the discharge of three shotgun blasts. In imposing sentence, the judge noted that the threat to human life posed by the blind discharge of a firearm into an occupied home was, in itself, sufficient to justify a significant term of imprisonment. However, the court felt that the defendant’s first offender status warranted a sentence somewhat less that the maximum of seven and one-half years; thus, the sentence imposed was five years at hard labor.

In reviewing the sentence for excessiveness, the supreme court stated:

[T]he trial court’s preoccupation with the seriousness of the offense caused it to neglect several important mitigating factors weighing in the defendant’s favor. This Court has repeatedly cautioned that “... the sentencing court should indicate that it has considered not only circumstances militating for incarceration, but also any mitigating factors.” State v. Franks.[,] 373 So.2d 1307, 1308 (La.1979). While the trial judge need not articulate every aggravating and mitigating circumstance under Article 894.1, State v. Guiden, 399 So.2d 194 (La.1981), the record left of sentencing should reflect that the trial court considered not only the seriousness of the offense and the past record of the accused, but also the defendant’s personal history (age, mental status, dependents, family ties, employment record, emotional and physical health) and his “... potential for rehabilitation.” State v. Molinet, 393 So.2d 721, 722 (La.1981); State v. Jones, 398 So.2d 1049 (La.1981); State v. Jackson, 360 So.2d 842 (La.1978).

The court then noted that the 28-year-old defendant had been continuously employed since graduation from high school, that he had a wife and two young children, and that the PSI suggested the offense was induced by a combination of jealousy, intoxication, and emotional strain caused by a brief period of separation from his wife and family. While acknowledging that the circumstances hardly justified the defendant’s conduct, the supreme court stated that the circumstances plainly suggested an improbability that it would be repeated, and that the defendant’s prospects for rehabilitation were further underscored by his lack of a prior criminal record and his express willingness to compensate the victim for the damages to his property. Thus, the court stated that having failed to consider the defendant’s background and character, the trial court’s recitations were insufficient to constitute full compliance with Article 894.1, and that absent such compliance, the court lacked appropriate criteria by which to measure whether the sentence imposed was excessive. The court then affirmed the conviction, but vacated the sentence and remanded for resentencing.

| i2In the instant case, Alexander is a first felony offender who had only recently turned 17 at the time of the offense. We glean that the defendant got into some trouble as juvenile, but nothing in the record suggests it was an offense involving violence. It does not appear that he was on juvenile probation at the time of the instant offense. From the record, we observe that Alexander has a family, which includes his mother, a stepfather, and three siblings. His employment history is not clear, but he stated that he worked on cars with his stepfather. Although he had dropped out of school, he stated that he was to enroll in a GED class before being “locked up.” His mother denied that he had been a troublemaker at school or that he was uncontrollable. Other than the offense itself, which Alexander admitted was “a gang bang thing” precipitated by a recent incident in which the victims shot at him and a friend, there is simply nothing in this brief record to show that there is an undue risk that this young offender will commit another crime during a period of a suspended sentence or probation.

It is clear that the record would contain more information about Alexander relevant to tailoring an appropriate sentence if the trial judge had ordered a pre-sentence investigation (“PSI”) report. We recognize that La. C. Cr. P. art. 875 does not mandate a PSI, and that the failure of the trial court to order a PSI is not subject to reversal absent an abuse of discretion. See State v. Collins, 32,409 (La.App. 2d Cir.9/22/99), 763 So.2d 618. Nevertheless, in State v. Lockwood, 439 So.2d 394 (La.1983), the supreme court has recognized the importance of the PSI investigation and report to both the defendant and the integrity of the judicial system. The court 11sobserved that the PSI must be fair and not based solely on impression or opinion; rather, it must be based on conclusions rationally derived from information based on identifiable sources.

Thus, while the lack of a PSI in this case does not alone provide a basis for vacating the sentence, the integrity of the judicial system requires that any sentence, whether based in part on a PSI or not, must not be based merely on unsupported impression or opinion, but on conclusions rationally derived from identifiable sources. When the conclusions of the trial court for sentencing purposes are based on mere impressions, opinions, or false factual conclusions, the failure to order a PSI bears relevance in concluding that there was not full compliance with Article 894.1. Absent a PSI or any identifiable basis for the sentencing court’s observations, the reviewing court lacks the appropriate criteria by which to measure whether the sentence imposed was excessive.

From our review of the record, we find that the trial judge’s observations and conclusions about Alexander were largely the result of personal opinion and unsupported impressions. For instance, the trial judge’s conclusions that Alexander did not want to learn and that he was “not going to be anything but trouble in the future” are essentially impressions that were not rationally derived from facts before the court. The same is true of the statements that after being sent to prison, the defendant probably would “get out and commit other felony offenses,” and that the court did not think the defendant really cared much whether he was sent to prison. The trial judge admitted he was having a hard time 114articulating why he believed that this first offender would commit another crime and admitted that the court had no hard evidence to that effect. We find that this same lack of “hard evidence” suggests that the factual information before the court would not support the conclusion that the 17-year-old defendant was in need of “correctional treatment” in the form of a 10-year hard labor sentence.

Moreover, we find that part of the trial judge’s factual conclusions are not supported by the record. The trial judge found that the mother had indicated that the defendant was uncontrollable, but as previously noted, that is not an accurate statement. Furthermore, the trial judge indicated that the defendant was involved “in two shooting incidents.” However, this characterization is less than accurate where the defendant was the victim in the first incident and his friend was actually shot in the leg by the victims of the instant offense.

When considering whether a lesser sentence would deprecate the seriousness of the offense, we agree with the trial court’s conclusion that this is indeed a serious offense. Even though no one was injured, the potential for injury or loss of life appears to have been high, particularly with respect to the occupants of the vehicle at which Alexander shot. Though the state argues that the crime of aggravated criminal damage to property does not adequately describe Alexander’s conduct, he was not charged with a specific intent crime, such as attempted second degree murder. Rather, an element of aggravated criminal damage to property is simply the foreseeability that human life might be endangered. See La. R.S. |1B14:55. We note that the trial judge concluded that Alexander did not give serious thought to the consequences of his shooting at the vehicle.

This is a case where a 17-year-old impulsively shot at a vehicle leaving a parking lot, because the two occupants had shot at him a week or two before. The only damage was a broken taillight. The state surely realized that specific intent to kill would be hard to prove. We note that Alexander, who appears to be a first felony offender, pled guilty and received no benefit from a plea bargain. Thus, we find that the record does not support the conclusion that a sentence less than ten years at hard labor would deprecate the seriousness of the offense.

Finally, we note that the trial judge’s additional considerations stated at the sentencing hearing, namely the defendant’s lack of appreciation of the “enormity of his crime” and the lack of evidence of remorse, add little support for the sentence for two reasons. First, the record shows that the trial judge had already decided that Alexander had to go to prison before even considering Article 894.1. Second, the trial judge never asked Alexander at either of the two hearings if he had anything to say before he was sentenced. Nor did he have the opportunity to express any remorse or regret in a PSI interview. One would not expect a 17-year-old high school dropout to know he should speak up in court without being asked. Under these circumstances, we conclude that Alexander’s failure to address his appreciation of his crime or his remorse does not justify the sentence given to him under the facts and circumstances of this case.

^CONCLUSION

For the reasons set forth above, we find that the trial judge abused his sentencing discretion by relying on impressions and false factual conclusions in arriving at this harsh 10-year hard labor sentence for this 17-year-old first offender. As in Ezer-nack, supra, and because the trial court’s unsupported recitations were insufficient to constitute compliance with Article 894.1, we find that there was no adequate factual basis for the sentence imposed. Accordingly, we affirm the conviction, but vacate the sentence and remand for resentencing.

CONVICTION AFFIRMED AND REMANDED FOR RESENTENCING.

CARAWAY, J., concurs with written reasons.

BROWN, C.J., dissents with written reasons.

CARAWAY, J.,

concurring.

_JjI respectfully concur.

The confusion surrounding the trial court’s pronouncements for sentencing in this case demonstrate an abuse of discretion in the trial court’s election not to order a presentence investigation report. I concur in the remand for that reason alone. The ten-year sentence itself, which was not the maximum sentence for the charged offense, may ultimately be an appropriate sentence.

BROWN, Chief Judge,

dissenting.

| ^though arrested for attempted second degree murder, defendant was charged with aggravated criminal damage to property and pled guilty to that charge. The trial court reviewed the police report which is in the record and gave defendant the opportunity to respond and explain his actions. The trial court addressed defendant’s mother concerning defendant’s family, schooling and work history. The trial court obtained a family and personal history as well as defendant’s version of the crime. In specific detail, the trial court addressed and weighed the factors listed in La. C. Cr. P. art. 894.1 in explaining and imposing its sentence. Although I favor a PSI, I cannot say in this case that the failure to obtain a PSI was an abuse of discretion.

As stated by defendant, his actions were part of the continuing violence between gangs from the east side of Highway 165 and Tanglewood. This shooting occurred when two gang members from the east side came to Tanglewood (defendant’s turf), and the previous shooting occurred when defendant and members of his gang went to the east side. The impression expressed in the (majority) opinion that, “[T]his is a case where a 17-year-old impulsively shot at a vehicle leaving a parking lot, because the two occupants had shot at him a week or two before,” is flawed. It was not an aberrant occurrence but a continuing course of criminal behavior between rival gangs.

The trial court noted:

Firing a gun like it’s Dodge City in a populated area at a commercial establishment where strangers and (others) congregate there and carry Don commerce is a serious offense ... it was just a callous indifference to the safety of others.

The trial court made judgments and formed impressions in sentencing this defendant in the same manner that these determinations are made in most cases, taking into account such factors as, the likeliness of continued criminal behavior, etc.

The 1981 case cited in the (majority) opinion, State v. Ezemack, involved marital separation, jealousy and intoxication; it did not involve ongoing gang violence and is unrepresentative of current cases.

I cannot say that the trial court abused its sentencing discretion. I respectfully dissent and would affirm.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Johnny Lee O’NEAL, Appellant.
    No. 43,055-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Louisiana Appellate Project, by Mark Owen Foster, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Lea R. Hall, Jr., Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   LOLLEY, J.

11 This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana, where a unanimous jury convicted defendant, Johnny Lee O’Neal, of second degree murder, a violation of La. R.S. 14:30.1. O’Neal was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. O’Neal now appeals. For the following reasons, we affirm.

FACTS

During the early evening hours of December 23, 2005, 43-year-old Calvin Moore began mowing the lawn at his house located in Caddo Parish, Louisiana. The defendant, O’Neal, lived next door to Moore. Tony Randall lived next door to O’Neal and two doors down from Moore. Randall was standing in his front yard and saw Moore mowing his lawn and noticed O’Neal walking towards Moore. Randall testified that he could hear Moore telling O’Neal to “get out of my face,” but he could not hear what O’Neal was saying. Randall explained that he stepped behind the ear in his driveway sensing something was about to happen and then heard Moore say, “Man, get the hell away from me. Get the hell away from me.” Randall then heard eight or nine gunshots and took off running inside his house, from where he heard more gunshots fired. Because Randall did not have a telephone, he drove around the block to use someone else’s telephone; but by this time, he saw police driving towards the scene. Around the same time, Huey Pickard was stopped at a stop sign while on his way to his mother’s house when he noticed Moore down the street mowing his lawn. |2Pickard looked down for a moment but looked up when he heard shots fired. Pickard testified that when he looked up he saw a man shooting at O’Neal.

After the shooting, O’Neal went inside his house and called 911, alleging that he was standing in his front yard and that his next door neighbor had tried to run him over with the lawnmower. At approximately 6:00 p.m., Shreveport Police Officer Corley Lovett was dispatched to O’Neal’s residence in response to his 911 call. Officer Lovett testified that O’Neal told him that Moore continued cutting the grass on O’Neal’s property after he had asked Moore to stop, and that this had been an ongoing problem with Moore. O’Neal explained to Officer Lovett that when he asked Moore to stop cutting the grass, Moore came at him with the lawnmower with the blades up. O’Neal then told Officer Lovett that he pulled out his gun and shot at Moore; Officer Lovett testified that this was the first time he heard that there was shooting involved.

Officer Lovett asked O’Neal if he actually shot Moore, and O’Neal said he did not know. At this time, Officer Lovett went to Moore’s home to check on him, but no one answered. In the meantime, another neighbor, Shawn Fuller, had called 911 to report that a man was lying down in the middle of the street. The Shreveport Fire Department was dispatched to check on the man’s condition. Just after Officer Lovett rang Moore’s doorbell, he heard sirens and observed the Shreveport Fire Department arriving on the scene; Officer Lovett then saw Moore lying in the grass. Moore was found 10-15 yards away from the lawnmower in his driveway. As Shreveport Fire Department rendered aid to Moore, Officer Lovett took |?,O’Neal into custody and read the Miranda rights to him. After O’Neal indicated that he understood his Miranda rights, Officer Lo-vett asked O’Neal about the gun, and O’Neal indicated that it was on a shelf in his front room. After obtaining permission to go into the house, Officer Lovett found the gun where O’Neal had indicated.

While O’Neal was in the back of a Shreveport Police Unit, he told Detective James Cromer that Moore had attempted to attack him with a lawnmower and that Moore had the lawnmower up with the blades showing. O’Neal told Detective Cromer that he fired his gun at least five times before going inside his house, where he then reloaded the weapon because he was afraid that Moore might come back and shoot him. Moore ultimately died as a result of multiple gunshot wounds. O’Neal was indicted and convicted by a unanimous jury for second degree murder. The trial court sentenced him to mandatory life imprisonment without benefit of parole, probation, or suspension of sentence. This appeal ensued.

LAW AND ARGUMENT

Sufficiency of the Evidence

Self-Defense

In his first assignment of error, O’Neal argues that the evidence is not sufficient to support his conviction, because the state did not prove beyond a reasonable doubt that he did not act in self-defense. Conceding that there is no question regarding the fact that he shot and killed Calvin Moore, O’Neal argues that the state’s failure to prove the exact location of the property line prevented it from negating the possibility that Moore was | trespassing with a deadly weapon, the lawnmower, in order to pick a fight with O’Neal. O’Neal further argues that Moore’s trespassing onto his property with a deadly weapon in the dark gave him a subjectively reasonable apprehension of danger and that it does not require much effort for a lawnmower to inflict great bodily harm.

The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.04/02/97), 691 So.2d 347, 348, writ denied, 1997-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra. In the absence of internal contradictions or irreconcilable conflict with physical evidence, the testimony of one witness is sufficient support for a requisite factual conclusion if that witness is believed by the trier of fact. State v. Jones, 31,613 (La.App. 2d Cir.04/01/99), 733 So.2d 127, 138, writ denied, 1999-1185 (La.10/01/99), 748 So.2d 434, citing State v. Ford, 28,724 (La.App. 2d Cir.10/30/96), 682 So.2d 847, writ denied, 1999-0210 (La.05/15/99), 745 So.2d 12.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 1996-1048 (La.10/04/96), 680 So.2d 1165, 1166. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442, 443. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, 626, writs denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.08/30/02), 827 So.2d 508, 515, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

According to La. R.S. 14:30.1(A)(1), second degree murder “is the killing of a human being: (1) when the offender has the specific intent to kill or to inflict great bodily injury.” The state proved that O’Neal shot Moore six times with a .45 caliber semiautomatic handgun, thereby causing Moore’s death. According to La. R.S. 14:10(1), “specific intent” is defined as “that state of mind which exists when the circumstances indicate that the |fioffender actively desired the prescribed criminal consequences to follow his act or failure to act.” Further, the specific intent to kill may be inferred by the trier of fact from the circumstances, such as discharging a firearm at close range to the victim. State v. Wilson, 40,767 (La.App. 2d Cir.08/23/06), 938 So.2d 1111, 1120, writ denied, 2006-2323 (La.04/20/07), 954 So.2d 159, cert. denied, — U.S. ——, 128 S.Ct. 275, 169 L.Ed.2d 201 (2007).

O’Neal concedes that there is no question regarding the fact that he shot and killed Moore. Even so, O’Neal argues that he was acting in self-defense when he did so. When self-defense is raised as an issue by O’Neal, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. State v. Garner, 39,731 (La.App. 2d Cir.09/08/05), 913 So.2d 874, writ denied, 2005-2567 (La.05/26/06), 930 So.2d 19. Self-defense is justification for a killing only if the person committing the homicide reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20 A(1); State v. Dooley, 38,763 (La.App. 2d Cir.09/22/04), 882 So.2d 731, 742, writ denied, 2004-2645 (La.02/18/05), 896 So.2d 30; State v. Cotton, 25,940 (La.App. 2d Cir.03/30/94), 634 So.2d 937, 939. Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Spivey, 38,243 (La.App. 2d Cir.05/12/04), 874 So.2d 352, 357; State v. Hardeman, 467 So.2d 1163, 1170 |7(La.App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726, 730 (La.1982).

When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Wilson, 42,440 (La.App. 2d Cir.09/19/07), 965 So.2d 992, 996, citing State v. Matthews, 464 So.2d 298 (La.1985). Here, the claim of self-defense was raised in opening statements, where it was alleged that Moore charged at O’Neal using a lawnmower with its blades exposed after a heated exchange when O’Neal first asked Moore not to cut his grass. Evidence of the statements O’Neal made after the shooting were presented, namely his 911 call where he reported that his next door neighbor had tried to run him over with the lawnmower and his statements to Officer Lovett and Detective Cromer that Moore came at him with the blades up after he asked him to stop cutting his grass.

However, the state presented two eyewitnesses who did not see Moore chasing O’Neal with the lawnmower. Tony Randall, an auto mechanic, testified that he did not hear the lawnmower running at the time O’Neal and Moore were in a heated exchange and that Moore had positioned the lawnmower away from O’Neal. Huey Pickard testified that the two men were facing each other when the shooting began, but then RO’Neal turned to run after the shooting began. Pickard also testified to the following: that both men were standing up straight; the lawnmower was just sitting there during the exchange; the lawnmower (handlebar) had not been pushed down to the ground; and, that the shooter was not being chased.

While O’Neal argues that the witnesses were not credible because a website shows that it would have been dark at the time of the shooting, he did not offer any evidence at trial to contradict the witnesses who testified that there was enough light to see what was happening. Randall testified that it was getting dark and that a light was on from someone’s house; Pickard testified that it was late evening, but there was still some daylight. Officer Lovett testified that it was dusk, but not quite dark, when he arrived at the scene. Further, the appellate court does not assess the credibility of witnesses, which is a matter of the weight of the evidence, not the sufficiency of the evidence. State v. Allen, supra; State v. Gilliam, supra.

The state demonstrated to the jury how the lawnmower would have to be positioned in order to expose the blades and how implausible it was for Moore to have chased O’Neal while operating the lawnmower in such a fashion. The state presented evidence that the thick blanket of leaves in O’Neal’s yard did not appear to have been disturbed, raising suspicion with respect to O’Neal’s claim that he was being chased around with a lawnmower. Also giving little credence to O’Neal’s allegation that Moore mowed O’Neal’s lawn after being told to stop was Shreveport Police Detective Rod Johnson who testified that it appeared that someone had just started mowing because neither yard appeared to have been mowed.

While Moore and O’Neal had past disputes regarding loud noise and property lines, there was no evidence of violence between them or any other evidence to indicate that O’Neal had any reason to fear Moore. Thus, considering the totality of the circumstance, the state presented sufficient evidence from which a reasonable jury could determine that O’Neal had no reasonable belief that he was in imminent danger of losing his life or receiving great bodily harm and that deadly force was necessary to save his life.

Further, with O’Neal’s admission that he was armed with a gun when he approached Moore and given Randall’s testimony that he saw O’Neal walk toward Moore, it would appear that O’Neal was actually the aggressor. As set forth in La. R.S. 14:21, “[a] person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.” State v. Lathan, 41,855 (La.App. 2d Cir.02/28/07), 953 So.2d 890, 896-897, citing State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993), writ denied, 1993-2054 (La.02/11/94), 634 So.2d 371. Thus, as the aggressor, O’Neal is not entitled to the claim of self-defense; rather, the totality of the evidence indicates that O’Neal’s statements that he acted, in self-defense were self-serving. Even if O’Neal thought he was in danger, there was a disproportion in the choice of weapons when O’Neal pulled out a gun to defend against a lawnmower. Accordingly, the state presented evidence from which a reasonable jury |incouId determine that O’Neal committed second degree murder and that O’Neal did not kill Moore out of self-defense. This assignment is therefore without merit.

Manslaughter

In his second assignment of error, O’Neal argues, in the alternative, that even if the state did prove it was not self-defense, then the evidence was only sufficient to prove manslaughter. O’Neal argues that he had no plan to kill Moore when he went out there to confront him over the grass cutting. Instead, he argues that the confrontation led him to kill Calvin Moore out of “sudden passion” or “heat of blood.”

“Sudden passion” and “heat of blood” are. mitigating factors in the nature of a defense, and when such factors are established by a preponderance of the evidence, a verdict for murder is inappropriate. State v. Baker, 41,555 (La.App. 2d Cir.08/15/07), 962 So.2d 1198, 1202, citing State v. Leger, 2005-0011 (La.07/10/06), 936 So.2d 108, cert. denied, — U.S. -, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The burden is on the defendant to prove by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood.” State v. Robinson, 32,794 (La.App. 2d Cir.03/01/00), 754 So.2d 311, 321, writ denied, 2000-0989 (La.03/23/01), 787 So.2d 1008. In pertinent part, La. R.S. 14:31(A)(1) defines manslaughter as a “homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and In cool reflection.” State v. Ellis, 42,286 (La.App. 2d Cir.07/11/07), 961 So.2d 636, 639, fn. 1. The defendant is not obligated to establish the factors affirmatively; the jury may infer them from the evidence presented. Id.

Provocation shall not reduce a homicide to manslaughter if the jury finds that the defendant’s blood had actually cooled or that an average person’s blood would have cooled, at the time the offense was committed. “ Tf a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act.’ ” State v. Leger, 936 So.2d at 171. Questions of provocation and time for cooling are questions for the jury to determine under the standard of the average or ordinary person with ordinary self-control. Id. Physical threats or actions on the part of the victim have been found to be sufficient provocation. State v. Ruff, 504 So.2d 72 (La.App. 2d Cir.1987), writs denied, 508 So.2d 64, 65 (La.1987). Even so, mere words or gestures, no matter how insulting, will not reduce a homicide from murder to manslaughter. State v. Mitchell, 39,202 (La.App. 2d Cir.12/15/04), 889 So.2d 1257, 1263, writ denied, 2005-0132 (La.04/29/05), 901 So.2d 1063, citing State v. Massey, 535 So.2d 1135 (La.App. 2d Cir.1988).

As conceded by O’Neal, there is no dispute regarding the fact that he fatally shot Moore. The evidence presented at trial showed that O’Neal confronted Moore while armed with a loaded .45 caliber semiautomatic handgun. The autopsy report reflects that Moore had been shot twice in the back which supports the eyewitnesses who testified that Moore was running away when O’Neal continued to shoot at him. Afterwards, O’Neal went | Y?back to his home to reload his gun. O’Neal’s statements to police indicated that the reason for the confrontation was to ask Moore to stop mowing what he believed to be his grass. As discussed previously, O’Neal’s claim that Moore attacked him with a lawnmower was adequately refuted by the state’s evidence, and the jury’s verdict indicates that it rejected any claims of self-defense. Mere words are insufficient to establish provocation that would reduce second degree murder to manslaughter. Further, we are confident that a reasonable person would not lose his cool and kill over whether a neighbor mowed a small area of his lawn. O’Neal did not meet his burden of proving that he killed Moore while acting in “sudden passion” or “heat of blood,” and, thus, he was not entitled to a verdict of manslaughter. This argument is therefore without merit.

Incomplete Trial Record

In his final assignment of error, O’Neal argues that the trial record is incomplete because it did not preserve in-court demonstrations, specifically when witnesses manipulated the lawnmower in front of the jury. O’Neal argues that this violates his right to review a complete record as set forth in La. Const. Art. 1, § 19 which states that, “No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.”

During the testimony of Corporal Skylar Vanzant, from the Shreveport Police Department’s Crime Scene Investigation Unit, the prosecutor asked him to step down from the witness stand to examine the |1slawnmower, which was State’s Exhibit 9. The prosecutor wanted Cpl. Van-zant to show how one would have to hold down the bar that acts as a “kill switch” in order to start the lawnmower. The prosecutor asked Cpl. Vanzant to stand at the push bar of the lawnmower and demonstrate how far one would have to push the mower down in order for the blades to be pointed at someone, and the following exchange occurred:

MR. HALL: I would ask for you to stand at the push bar and tell me, how far you have to push that mower down in order for those blades to be up to where they’re pointed at somebody?
CORPORAL VANZANT: I would just about have to touch the floor.
MR. HALL: Okay. Can you demonstrate what you’re talking about?
CORPORAL VANZANT: (Witness complies.)
MR. HALL: Okay. Can you run like that?
CORPORAL VANZANT: No, sir.
MR. HALL: You’re not going to be able to chase me around?
CORPORAL VANZANT: No.
MR. HALL: Let the ladies and gentlemen see what it looks like at your shins.
CORPORAL VANZANT: (Witness complies.)
MR. HALL: Down at your knees, please, sir.
CORPORAL VANZANT: (Witness complies.)
MR. HALL: Now, at your thighs.
CORPORAL VANZANT: (Witness complies.)
MR. HALL: Even right there — I get— it’s a much better position to run from; isn’t it?
CORPORAL VANZANT: Yes.
MR. HALL: Is it — would it be easy?
CORPORAL VANZANT: No.
MR. HALL: Okay. Thank you, sir. According to what you and other officers observed and the jury has now seen, in order to get those blades up, you’ve really got to exaggerate your moves; is that correct?
CORPORAL VANZANT: Correct.

Later, during Pickard’s testimony, the prosecutor asked him to demonstrate the position he witnessed of O’Neal and Moore in relation to the lawnmower at the time of the shooting:

| UMR. HALL: Mr. Pickard, I’m going to ask you a couple of questions about those folks using me and Mr. O’Callaghan to kind of act out what you saw.
(Mr. O’Callaghan demonstrating with lawn mower.)
MR. PICKARD: Can I get up and show you?
MR. HALL: Yeah, please do.
MR. PICKARD: Like the — like the lawn mower — from where I was sitting, it looks like the lawn mower is pretty much like this, right here. And that guy is standing about, right here.
MR. HALL: Okay.
MR. PICKARD: Probably, you know, he’s just close—
MR. HALL: Okay.
MR. PICKARD: — from what it looks like to me, from where I’m sitting, he’s that close, shooting.
MR. HALL: Okay. So if — if I’m the shooter—
MR. PICKARD: About that far apart.
MR. HALL: — this is what they were like?
MR. PICKARD: It’s about what it looked like, right there.
MR. HALL: Okay. But the lawn mower is not—
MR. HALL: And, Mr. O’Callaghan, help me with this. And if you would do with it what Detective Vanzant — Skyler was doing yesterday. The best you can, push it down.
MR. HALL: It wasn’t like that?
MR. PICKARD: No. They — he was— they were both standing up straight.
MR. HALL: He wasn’t — that lawn mower, he wasn’t being—
MR. HALL: Thank you, sir.
MR. HALL: He wasn’t being chased around?
MR. PICKARD: No. That lawnmower be — he would have to be bent over or have his foot on it. They were both standing up straight. And when he was shooting, Calvin turned and went, like, to run. And that’s when I took off up the street.
MR. HALL: Okay. Please take the witness stand again.
MR. PICKARD: (Witness complies)

The record reflects that these in-court demonstrations with the lawnmower indicate that the prosecutor had witnesses manipulate the lawnmower to show the jury-how implausible it would be for Moore to have chased O’Neal with the lawnmower in a way that the blades would be pointed at him. Here, O’Neal did not object to the in-court demonstrations nor did he argue on appeal that the trial court should have excluded them. Since the in-court demonstrations were not the subject of an assignment of error, the failure to | ¶ ¡^preserve the in-court demonstrations is not prejudicial because it is immaterial. For the purposes of this appeal, the transcript gives such a clear description of the in-court demonstrations that it is sufficient for the record.

Furthermore, the lack of a recording of these in-court demonstrations is not prejudicial because the lawnmower itself was admitted as evidence and the jury would have had the opportunity to conduct a similar physical inspection of the lawnmower pursuant to La.C.Cr.P. art. 793(A), which states in pertinent part, “[u]pon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.” Such an examination by the jury would not have been recorded and made part of the appellate record, but the physical manipulation of evidence would have been something upon which the jury could have considered in reaching its verdict. See State v. Johnson, 34,902 (La.App. 2d Cir.09/26/01), 796 So.2d 201, 210-211, writ denied, 2003-2631 (La.11/8/04), 885 So.2d 1124. Thus, O’Neal suffered no prejudice by any such omission of a recording in the present ease.

O’Neal cites State v. Draughn, 2005-1825 (La.01/17/07), 950 So.2d 583, cert. denied, — U.S. -, 128 S.Ct. 537, 169 L.Ed.2d 377, and State v. Pinion, 2006-2346 (La.10/26/07), 968 So.2d 131, for the proposition that he is entitled to a new trial because the failure to preserve these demonstrations for the record prejudices him on appeal. Draughn and Pinion are distinguishable from the case sub judice because neither of them deal with the failure to record in-court demonstrations. In fact, there are several statutes pertaining to what must be recorded during criminal proceedings and none require that in-court demonstrations be recorded so that they may become part of the appellate 11 (¡record. See La.C.Cr.P. art. 888; La.C.Cr.P. art. 843; See also La. R.S. 13:962.

In reviewing the case law pertinent to in-court demonstrations, this court has previously commented on admissibility of in-court demonstrations but did not contemplate whether such should be recorded and made part of the appellate record. See State v. Hearold, 567 So.2d 132, 138 (La.App. 2d Cir.1990), reversed on other grounds, 603 So.2d 731 (La.1992), citing State v. Rault, 445 So.2d 1203 (La.1984), cert. denied, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 154 (1984); State v. Mays, 315 So.2d 766 (La.1975). In short, there is neither statutory nor case law authority for the position that in-court demonstrations, as a matter of procedure, must be recorded and made part of the record.

Here, O’Neal does not challenge the actual demonstration, which could arguably result in the need to preserve the in-court demonstrations; instead, O’Neal merely asserts that the record is incomplete for a review on appeal. Again, since the demonstrations are not the subject of an assignment of error, the alleged omissions are immaterial and did not prejudice O’Neal. This assignment is therefore without merit.

CONCLUSION

For the foregoing reasons, Johnny Lee O’Neal’s conviction and sentence are affirmed.

AFFIRMED.


author: PEATROSS, J.

text:
    Wilbert J. LEMONS, Plaintiff-Appellee v. GEORGIA PACIFIC CORPORATION, Defendant-Appellant.
    No. 42,950-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Hurlburt, Privat & Monrose by Shannon Seiler Dartez, Lafayette, for Appellant.
    Caldwell & Caldwell by James D. Caldwell, Shreveport, for Appellee.
    Before STEWART, PEATROSS & DREW, JJ.
   PEATROSS, J.

__|¿This appeal arises from the claim of Plaintiff, Wilbert J. Lemons, for workers’ compensation benefits. Plaintiff was injured in 1984 while working for Defendant, Georgia Pacific Corporation. He was treated at the time for an injury to his back and received workers’ compensation benefits for that injury.

In February 2004, Plaintiff slipped and fell on ice while working as a contractor for a different employer. After the fall, Plaintiff underwent back surgery at the recommendation of his doctor and sought workers’ compensation benefits from Defendant claiming that the fall merely aggravated the old injury to his back from when he worked for Defendant. The workers’ compensation judge (“WCJ”) granted Defendant’s exception of prescription on Plaintiffs claim for indemnity benefits. After a trial on Plaintiffs claim for medical benefits, the WCJ held that the 2004 slip and fall was an aggravating injury to his 1984 injury and was compensable by Defendant. The WCJ awarded Plaintiff medical benefits, plus penalties and attorney fees. Defendant appeals, arguing that the 2004 injury is an intervening and superseding injury for which no workers’ compensation benefits are due and, in the alternative, that the WCJ erred in the amount of medical expenses awarded. Plaintiff answered the appeal, arguing that his claim for indemnity benefits had not prescribed and seeking additional attorney fees.

| ¡..FACTS

Plaintiff was injured in 1984 while moving 100-pound cartons of asphalt in the course of his employment with Defendant. After moving 23 cartons, Plaintiff heard his back “pop” and felt some discomfort in his back. Defendant paid indemnity and medical benefits associated with the injury. The last indemnity payment was on or about December 31, 1986, and the last payment for the injury was February 19, 1987.

In 1996, Plaintiff left his employment with Defendant and started his own trucking company. He leased his services to Landstar Inway and, in February 2004, Plaintiff was in Michigan for his work with Landstar. While he was tying down his load, he slipped on the ice and fell. A subsequent MRI in May 2004 revealed an extruded disc fragment that was severely impinging a nerve root. Plaintiffs treating physician, Dr. Austin W. Gleason, recommended surgery. Landstar Inway paid some medical and disability benefits as a result of the accident, but denied his claim for the surgery because of his pre-existing back injury from 1984. Plaintiff then filed a claim with Defendant seeking medical and indemnity benefits. Defendant denied the claim and this suit ensued.

Early in the proceedings, the WCJ granted Defendant’s exception of prescription, finding that Plaintiffs claim for indemnity benefits had prescribed. Following a trial on the merits, the WCJ, in oral reasons for | ¡judgment, found that the extruded disc was a result of Plaintiffs 1984 injury and that medical benefits were due. The WCJ awarded Plaintiff medical expenses in the amount of $36,207.80, plus legal interest from date of judicial demand. The WCJ also found that Defendant failed to timely pay the claim; and, therefore, assessed Defendant a $2,000 penalty and awarded Plaintiff $3,000 in attorney fees.

DISCUSSION

Exception of Prescription

In his answer to this appeal, Plaintiff argues that the WCJ erred in finding that Plaintiffs claim for indemnity benefits had prescribed. La. R.S. 23:1209 A provides three prescriptive periods for the filing of compensation claims: (1) one year from the accident when the injury immediately manifests; (2) one year from the last payment of compensation benefits (three years for supplemental earnings benefits); and (3) one year from the time the injury develops, but not more than two years from the accident, when the injury does not result at the time of or develop immediately after the accident. Smith v. Fruehauf Trailer Operations, 1427,864 (La.App. 2d Cir.1/24/96), 666 So.2d 1246. The third period is commonly known as the “developing injury” rule. Id. The two-year provision contained in the developing injury rule is prescriptive and not peremptive and may be interrupted or suspended. Id. This court has rejected, however, the rationale that, under the doctrine of contra non valentem prescription is suspended simply because the cause of action, in this case the work-related disability, was not known or reasonably knowable to him. Id.

Plaintiff argues that his claim has not prescribed, under the developing injury rule, because a new prescriptive period started with the 2004 slip and fall that aggravated the work-related injury. In support, Plaintiff quotes the following from Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 384 (4d Ed.2002), to wit:

An initial accidental injury may leave the worker highly susceptible to a second mishap, which, upon its occurrence, produces disability. Though some compensation may have been paid during treatment for the first injury, the prescriptive period on a suit for disability benefits resulting from the second and disabling accident does not start running until that accident takes place.

The prescriptive period Professor Johnson was referring to, however, was the one-year period from the date of the injury and not the two years from the date of the on-the-job accident. Importantly, in a footnote to the above quoted language, Professor Johnson clarifies that “[T]he claimant is always subject to the period of two years from the accident,” referring to the original on-the job-accident.

Appellate courts have held that an aggravating injury that makes a | ¡¡previous injury into a disability starts the one-year period anew. Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859 (La.4/10/95), 652 So.2d 1323; Stewart v. Hosp. Affiliates Int’l Inc. of Baton Rouge, 394 So.2d 647 (La.App. 1st Cir.1980), aff'd 404 So.2d 944 (La.1981). In those cases, however, the claim was still filed within two years from the date of the on-the-job accident. Claims filed two years after the on-the-job accident are prescribed, even if the disability arose outside of two years from the accident. Smith v. Fruehauf Trailer Operations, supra; Mackie v. Coast Quality Construction, 95-668 (La.App. 5th Cir.12/13/95), 666 So.2d 1173, writ denied, 96-0687 (La.5/10/96), 672 So.2d 922. In the case su,b judice, the two years from the original accident have long expired as has the other two prescriptive periods provided for in La. R.S. 23:1209 A. Even under the developing injury rule, Plaintiff had to have brought his claim for indemnity benefits within two years of his 1984 accident. We, therefore, affirm the granting of Defendant’s exception of prescription.

Aggravation of Injury

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even | ^though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

The employee in a workers’ compensation action bears the burden of proving his disability and its causal relation with the employment accident. Allor v. Belden Corp., 393 So.2d 1233 (La.1981); Hughes v. General Motors Guide Lamp Division, 469 So.2d 369 (La.App. 2d Cir.1985). The law is well settled that an aggravation of a work-related injury is regarded as compensable and as resulting from the initial work accident even though it occurs away from work and even after the employment is terminated. Kelly v. City of New Orleans, 414 So.2d 770 (La. 1982); Hollingsworth v. East Baton Rouge Parish School Bd., 94,0518 (La.App. 1st Cir.12/15/95), 666 So.2d 376, writ denied, 96-0165 (La.3/15/96), 669 So.2d 422; Hanover Ins. Co. v. Allstate Ins. Co., 554 So.2d 1261 (La.App. 1st Cir.1989); Hughes, supra. It is a compensable injury for workers’ compensation purposes, and the employer is obligated to continue paying benefits. Kelly, supra; Stewart v. Hospitals Affiliates Int’l, Inc. of Baton Rouge, 404 So.2d 944 (La.1981).

In the case sub judice, the uncontrovert-ed evidence shows that Plaintiffs 2004 fall on the ice aggravated the 1984 work-related injury. Plaintiffs treating physician, Dr. Gleason, testified in his deposition that it |7was his opinion that the extruded disc was related to the 1984 injury. His deposition testimony is consistent with his May 17, 2004 progress report when he stated:

It is my opinion, after carefully evaluating his chart, that this problem that he is having now is, in fact, directly related to his original injury of 1984. These recent episodes of sleeping in his cab and slipping on the ice were aggravations but not the absolute cause of his original herniated disc.

While Defendant asserts that some testimony in the record indicates that the surgery may not have been necessary if Plaintiff had not fallen on the ice, such a possibility does not adequately controvert Dr. Gleason’s clear opinion.

In addition, Defendant focuses on the comparison of an MRI of Plaintiffs back taken in January 2004 to one taken in May 2004 subsequent to his fall. Defendant argues that, because no extruded disc fragment was apparent on the January 2004 MRI, the extruded disc must be considered to be related to the slip and fall. The evidence that most supports Defendant’s argument is a letter from Dr. Donald Smith, the neurosurgeon who performed Plaintiffs back surgery. In comparing the two MRI images, Dr. Smith states, “[b]oth studies show some disc abnormalities at L4-5 and L5-S1 level. The L5-S1 level on the right side is much larger on the May films than is depicted on the January imaging.” Even if the size of the abnormality shown on the MRI is markedly larger, the WCJ was not clearly wrong in finding that the increased severity of Plaintiffs condition was an aggravation of the 1984 injury. Notably, the extruded fragment was in the same location as Plaintiffs previous injury.

| ^Although Defendant highlights the evidence that the fall on the ice certainly worsened the Plaintiffs previous back injury, Defendant remains liable for aggravation of a work-related injury. Defendant presented no evidence that the extruded fragment was unrelated to the 1984 injury. After our review of the record, we cannot say that the WCJ’s ruling was manifestly erroneous, and we affirm the ruling that Defendant is liable for medical expenses related to the 2004 aggravation of Plaintiffs 1984 work-related injury.

Amount of Medical Expenses

Defendant further argues, however, that the WCJ erred in the amount of medical expenses awarded to Plaintiff. The WCJ awarded Plaintiff the medical expenses detailed on one of his exhibits, totaling $36,207.80. Under La. R.S. 23:1203, medical payments are separate and distinct from compensation indemnity benefits. Taylor v. Wal-Mart Stores, Inc., 40,179 (La.App. 2d Cir.9/21/05), 914 So.2d 579, writ not considered, 06-0144 (La.4/17/06), 926 So.2d 500, cert. denied, — U.S. -, 127 S.Ct. 982, 166 L.Ed.2d 783 (2007). A workers’ compensation claimant may recover medical expenses that are reasonably necessary for the treatment of a medical condition related to a work-related injury. Id.

To recover medical expenses authorized under La. R.S. 23:1203, the claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work-related injury. Roussell v. St. Tammany Parish School Board, 04-2622 (La.App. 1st Cir.8/23/06), 943 So.2d 449, writ not considered,_[¿)6-2362 (La.1/8/07), 948 So.2d 116. An award of medical expenses must be limited to those expenses shown to have been made necessary by the work-related accident. A claimant is not entitled to recover for medical expenses where he or she fails to substantiate a claim. Id. Nonetheless, when a claimant alleges that he or she incurred medical expenses and that allegation is supported by a bill, unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident, it is sufficient to support the inclusion of the item in the judgment. Id. Whether the claimant is entitled to medical benefits is ultimately a question of fact, and the fact finder’s resolution of that issue may not be disturbed by the appellate court in the absence of manifest error. Id.

Plaintiff supported his medical expenses with bills from his various medical providers. The medical records included in the record establish that the services were necessary for Plaintiffs work-related injury. Plaintiffs medical records were admitted into evidence from most of his health care providers and those records established that the provided services were for treatment of Plaintiffs back injury, including after his 2004 fall aggravated his prior injury. Those records also contain sufficient evidence that the remaining charges, for which the medical records were not submitted, were also for treating Plaintiffs work-related injury.

Defendant argues that some of the medical expenses from Dr. Gleason are extinguished as having been previously paid. La. R.S. 23:1212(A) provides that:

Except as provided in Subsection B, payment by any person or entity, other than a direct payment by the employee, a relative or hpfriend of the employee, or by Medicaid or other state medical assistance programs of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses. This Section shall not be regarded as a violation of R.S. 23:1163. If the employee or the employee’s spouse actually pays premiums for health insurance, either as direct payments or as itemized deductions from their salaries, then this offset will only apply in the same percentage, if any, that the employer of the employee or the employer of his spouse paid the health insurance premiums.

This provision is not self-operating. Authement v. Wal-Mart, 02-2434 (La.App. 1st Cir.9/26/03), 857 So.2d 564. The employer must plead its La. R.S. 23:1212 offset and prove it with evidence showing that a payment of a certain amount of the employee’s medical expenses was made by a person other than the employee, a relative or friend of the employee. Id,.; Gros v. Gaudin, 02-309 (La.App. 5th Cir.10/16/02), 831 So.2d 304.

While Defendant made a sufficient pleading, it submitted no evidence as to what expenses were paid or that those expenses were not paid by Plaintiff, a relative or a family member. Defendant simply points to a statement of account from Dr. Gleason’s office that has some notations that there were arguably insurance payments and offsets. Defendant must submit evidence, however, that the premiums for such insurance were not paid by Plaintiff. Smith v. Roy O. Martin Lumber Co., 03-1441 (La.App. 3d Cir.4/14/04), 871 So.2d 661, writ denied, 04-1311 (La.9/24/04), 882 So.2d 1144. We conclude, therefore, that Defendant failed to carry its burden of proving extinguishment under La. R.S. 23:1212(a).

Defendant also argues that the medical expenses should have been reduced to the amount recoverable under the workers’ compensation fee In schedule as mandated by La. R.S. 23:1203(B). When an employer denies the claim from the beginning, it must pay the actual medical expenses incurred and cannot avail itself of the fee schedule. Louviere v. Food & Fun, Inc., 06-469 (La.App. 3d Cir.10/11/06), 941 So.2d 155; Smith v. Roy O. Martin Lumber Co., supra. This is because claimant is then forced to fund the costs of medical treatment himself and because, if the employer denies the claim from the outset, it has no right to pre-approve any treatment. La. R.S. 23:1142(E); Smith v. Roy O. Martin Lumber Co., supra. Since Defendant has continuously denied its liability, it is liable for the actual medical expenses incurred by Plaintiff.

Penalties and Attorney Fees

Failure to make timely payments subjects an employer to penalties and attorney fees unless the claim is reasonably controverted. La. R.S. 23:1201. For a claim to be reasonably controverted, an employer must have some valid reason or evidence upon which to base its denial of benefits. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885. The employer must have engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the information presented by the claimant. Id. The determination that penalties and attorney fees are warranted is determined based on the h ¡¡facts known by the employer at the time of its refusal. Spence v. Industrial N.D.T., 31,744 (La.App. 2d Cir.3/31/99), 731 So.2d 473. The assessment of penalties and attorney fees is a finding of fact which should not be disturbed on appeal absent manifest error. Id.

Defendant argues that Plaintiffs claim for medical expenses was reasonably converted based on the evidence that the medical expenses were associated with the 2004 slip and fall and did not relate back to the 1984 accident. It argues that its denial was proper because the 2004 slip and fall was a possible superseding and intervening accident and because the May 2004 MRI showed a greater injury to Plaintiffs back than appeared on the January 2004 MRI. Such an argument ignores the above discussed law that an employer is liable for an aggravation of a work-related injury. An employer cannot deny a claim simply because a second accident may have contributed to the injury. This is particularly true when the claimant’s physician was of the clear opinion that the injury was work-related. Without evidence that would create a reasonable challenge to Dr. Gleason’s opinion, we cannot say that the WCJ was clearly wrong in assessing Defendant penalties and attorney fees.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ in favor of Plaintiff, Wilbert J. Lemons, is affirmed. The exception of prescription dismissing Plaintiffs claim for indemnity benefits is affirmed. Costs are assessed equally between the parties.

AFFIRMED.

      . Defendant asserts that, according to its records, the accident occurred in 1986. The exact year of the initial injury to Plaintiff is irrelevant, however, due to the length of time that has passed from either date.

      . Plaintiff appealed the grant of the exception of prescription and this court held that the judgment on that ruling alone was not an appealable judgment and remanded for further proceedings. Lemmons v. Georgia Pacific Corp., 42,142 (La.App. 2d Cir.4/18/07), 955 So.2d 273. We note that Defendant’s surname was misspelled in some of the documents from the Office of Worker’s Compensation and that misspelling was continued to the previous appeal. We, however, style the case with the correct spelling.

      . La. R.S. 23:1209 A provides:
      A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

      . La. R.S. 23:1203(B) provides:
      B. The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less. Any out-of-state provider is also to be subject to the procedures established under the office of workers' compensation administration utilization review rules.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Chester Lee KINSEY, Appellant.
    No. 42,935-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      James E. Beal, Jonesboro, for Appellant.
    Chester Lee Kinsey, Pro Se.
    Walter E. May, Jr., District Attorney, Hubert R. Davis, Kenneth P. Haines, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   WILLIAMS, J.

hThe defendant, Chester Kinsey, was charged by grand jury indictment with aggravated rape, a violation of LSA-R.S. 14:42. After a jury trial, the defendant was found guilty as charged. Defendant’s motions for new trial and for post verdict judgment of acquittal were denied. The trial court sentenced defendant to serve the mandatory term of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant appeals his conviction. For the following reasons, we affirm.

FACTS

On November 22, 2003, in Ringgold, Louisiana, seven-year-old MM informed her adult cousin, S. A., that the defendant (the brother of the child’s caretaker) had placed his penis in the child’s anus. S. A. reported the matter to the Bienville Parish Sheriffs Office (“BPSO”), and the child wrote out a statement to the BPSO naming defendant as the offender.

Several days later, Dr. Ann Springer, a pediatrician at LSUHSC, performed a physical examination of MM. The examination was unremarkable except for the anal exam. Dr. Springer testified that she “noted fissuring which are cracks in the surface of the tissue surrounding the anus,” and that the injuries were still in the process of healing. The child told the doctor that defendant had, among other sexual acts, “put his thing in my butt.”

Subsequently, the defendant was arrested and charged with aggravated rape. During her testimony, the victim, who was eleven years old at the time of trial, described several incidents of abuse by the defendant. In particular, the child testified that on one occasion in |2November 2003, she was lying down on her grandmother’s couch when the defendant came into the room, removed her underwear and placed his penis in her anus, an act the child described as painful. At trial, the child identified the defendant as the man who raped her. The defendant testified in his own defense. He admitted his prior convictions for distribution of cocaine and for simple robbery, but he denied any sexual contact with MM. The jury, believing the child’s testimony, found the defendant guilty of aggravated rape. As stated above, the defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This appeal followed.

DISCUSSION

The defendant contends the trial court erred in denying a continuance in which to obtain the appearance of a critical defense witness. Defendant argues that the court’s failure to allow a reasonable period of time in which to produce the witness effectively denied defendant the right to confront his accusers.

When a trial has already commenced at the time it becomes apparent that a witness is unavailable, any delay in the proceedings would be referred to as a recess rather than a continuance. LSA-C.Cr.P. art. 708; State v. Spears, 39,302 (La.App. 2d Cir.9/27/06), 940 So.2d 135, writ denied, 2006-2704 (La.8/31/07), 962 So.2d 424. The standard of review of a motion for recess is the same as the review of a motion for a continuance. Id. The granting or denial of a motion for continuance or recess is within the sound discretion of the trial court, and its ruling will not be disturbed on | ^appeal absent a showing of abuse of that discretion and specific prejudice. LSA-C.Cr.P. art. 712; Id. LSA-C.Cr.P. art. 709 provides:

A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

During trial in the instant case, the court engaged in the following exchange with defendant’s counsel regarding a defense witness:

Court: Mr. Clark, the bailiff has told me that one of your witnesses which is—I don’t know her name. A young girl. I think she came in and we put her in your office while you were talking to your client. I don’t know what her name is. Do you know her name? Defense counsel: ML.
Do you want to bring her in and have her placed under the rule at this time? Defense counsel: Yes, sir. That’s fine.

The court then put the child and another witness under the rule of sequestration, and the child remained at the courthouse during the course of the trial that day. At the close of the state’s case that afternoon, defendant’s counsel obtained a brief recess, stating “I have a change in what I thought would take place, and I need to discuss momentarily with my client ... And I think it’s going to short-circuit a lot.” The defendant called one witness whose testimony was brief, and then defense counsel stated “Your Honor, that would leave us at the point of where I discussed with you in chambers.” | /The court, noting that the time was almost 4 o’clock in the afternoon, allowed the jury to leave for the day.

The next morning, the defendant testified. At the conclusion of the defendant’s testimony, defense counsel had this exchange with the court:

Defense counsel: I anticipated that was going to be a little longer than it turned out to be. If they have the young girl, ML, on her way here from school. She’s being brought here at this moment.
Court: Did you subpoena her?
* * *
Defense counsel: I mean, she was voluntarily being here.
Court: How long do you think it’s going to be for her to be here?
Defense counsel: I wouldn’t say more than hopefully 10 or 15 minutes from Bienville.
Court: Do you need a recess?
Defense counsel: If I could, yes.

Court: All right.

After the recess, the discussion resumed:

Court: I think we’re waiting for one of your witnesses—
Defense counsel: ML.
Court: — to come testify, is that correct? Defense counsel: That is correct.
Court: And she is not here as of yet. I think we took a break, what, at 10:30? Defense counsel: I believe that’s approximately the time, yes, sir.
Court: ... My understanding is ... you want to recall [the victim] |fito the stand first. Is that correct?
Defense counsel: That is correct, Your Honor.

At that point, the prosecutor objected to recalling the victim to the stand on the grounds that the defendant previously had been able to cross-examine the girl about any issue. Defense counsel stated that he wanted to recall the victim to ask if she knew the defense witness ML and had spoken to her about the alleged incidents. The defense counsel further explained:

It was yesterday afternoon before they took her back to school at, I think, 2:00, 2:30, that she and I sat and spent about 10 uninterrupted minutes together talking, and that’s when I said-and asked her point blank, now, this wasn’t something someone told you they heard [the victim] say, because you can’t sit there and testify if someone else told you “Oh, guess what I heard [the victim] say.” I mean, and I explained that aspect of it to her. She responded to me again. She said, Mr. Clark, said she came to me. She and I talked. We talked. They live in the same area. They apparently go to the same school.

The state then informed the court that the case had been pending for some time, had been reset once from an original trial date in December 2006, and that the defense attorney had been aware of the trial date since January 2007 and had received sufficient time to secure the witness to testify. The court expressed its reluctance to allow the victim to be recalled to the stand if the defendant’s attorney knew about ML’s testimony at the time the victim initially testified, and the defendant’s attorney reiterated that he did not know the substance of ML’s testimony until the afternoon of the previous day. The court and the defense attorney then had the following exchange:

Court: And the other thing that concerns me, I know that [ML] is in school and she’s having a LEAP test, but, I mean, if you were going to have her as a witness, why wasn’t she here at |fi9:30 and we could get this — all this done? Why are we sitting here waiting for the jury to sit out here for another hour, or hour and a half, because it’s a witness that you knew you — were going to testify and she’s not here?
Defense counsel: Judge, I thought this lady was going to have her here at 9:30. That’s—
Court: Well, the thing about it is, that it’s not cost to your — or your client to subpoena people, subpoena them and they’ll be here.... I’m just concerned, you know, it concerns me that the case is dragging on because you’re not subpoenaing your witnesses, you’re not having them here. What I ought to do is just say if you [don’t have] a witness here, we’ll move on to the next thing. If they’re not here, then you — they don’t get to testify. That’s just the way the law — that’s just the way life is and the way law goes.... If the girl is not here by 11:30, we’re proceeding. So, if she’s not here by then, we’re going on.
Defense counsel. I understand.
Court: It’s 11:15 now. We’re in recess.
Court: It’s 11:25 now and the jury is not present but Mr. Kinsey is, along with Mr. Clark, and both the assistants. Mr. Clark has indicated to me outside during the break that the little girl was on a field trip. Is that correct? ML?
Defense counsel: Your honor, I have learned — as I learned it, I came into your chambers and advised you that we did find out the person that was going to drive her back here went into the school and was told that the class, her class, was on a field trip and was in fact not at the school. So, we don’t know where that field trip took her. We don’t — she may be here, but based on that information, I have no choice but to advise the Court and proceed forward from here.
Court: Any other witnesses, then?
Prosecutor: Your Honor, the only request I would like to make, and I don’t know if this is in the record or not, that this particular witness, ML, was not subpoenaed to be here today.
Court: Madam Clerk, is that correct?
Clerk: That’s correct.
|7Court: Let the record so reflect. Any other witnesses, Mr. Clark?
Defense counsel: No, Your Honor.
Court: You rest your case then, is that correct?
Defense counsel: That’s what we’re going to do, yes.

The defense counsel made no further objection or request for a continuance relating to this witness.

Initially, we note that after the trial court granted a recess during trial to give defendant an opportunity to secure the presence of the witness ML, defendant did not object to the trial court’s refusal to grant yet another recess so that the defense could find the witness whose whereabouts were uncertain. The defendant cannot avail himself of an error after verdict unless it was objected to at the time of occurrence. LSA-C.Cr.P. art. 841(A). In any event, even if there had been an objection, defendant’s argument would not succeed.

The record shows the defense attorney suggested that the missing witness would testify that the victim had made inconsistent statements “that she was not telling the truth about what took place and who did anything to her.... ” Evidence of prior inconsistent statements by the victim may be admissible in appropriate circumstances. LSA-C.E. arts. 607(D)(2) and 613. However, the defendant’s attorney-failed to secure the appearance of the witness via the court’s subpoena power, and did not state a probable time when the child witness could appear because she was on a school field trip at an apparently unknown location.

Moreover, unlike the factual situation in Spears, supra, in which the |saccused told a witness not to appear, there was no showing in this case that a party had any role in the failure of the witness to appear or that there was a last-minute breach of the witness’s promise to testify. The witness ML was present and available to testify on the previous day, but the defendant seemingly agreed to an early recess of court at that time, after an unrecorded conference in chambers. The facts surrounding the child’s failure to appear the next day are unclear from this record; the child was first thought to be taking the LEAP test and later was believed to be on a field trip. Regardless of the reason why the child was absent, the child was apparently within the jurisdiction of the court’s subpoena power, yet no subpoena was issued for her appearance. Based upon this record, we cannot say the trial court abused its discretion in declining to further delay the trial when defendant’s witness was not present to testify and had not been compelled to appear.

An accused has the right to confront and cross-examine the witnesses against him. La Const, art. 1, sec. 16. The main and essential purpose of confrontation is to secure for the opponent the opportunity for cross-examination. State v. Robinson, 01-0273 (La.5/17/02), 817 So.2d 1131.

Contrary to the defendant’s argument, this case does not involve a situation where defendant was denied his right to confront the witnesses against him. The unavailable witness, ML, was to testify in defendant’s behalf. Significantly, defendant was given the opportunity to cross-examine the victim and all of the other witnesses presented by the state. Thus, the defendant has failed to show that he was denied his right to confrontation. The assignment of error lacks merit.

| ⅜Assistance of Counsel

The defendant contends he was denied effective assistance of counsel. Defendant argues that his attorney’s failure to subpoena an impeachment witness to testify at trial constituted ineffective assistance of counsel.

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

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991).

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires defendant to establish that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App. 2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant claiming | inineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App. 2d Cir.4/3/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03), 845 So.2d 1067.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court, because PCR creates the opportunity for a full evidentiary hearing under LSA-C.Cr.P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App. 2d Cir.6/21/00), 764 So.2d 1164.

The defendant urges that his trial counsel’s performance seriously infringed upon his right to confront the principal witness against him, the child victim, because the jury had no opportunity to hear evidence that would have challenged the credibility of the witness. On this record, the effect of trial counsel’s failure to secure the presence of the child witness ML cannot adequately be measured. It remains uncertain what testimony the witness would have given and whether that testimony would have been admissible under the rules of evidence. Although counsel is ineffective when he fails to interview known witnesses, the election to call or not to call a particular witness is a matter of trial strategy and is not, per se, evidence of ineffective assistance. State v. Butler, 41,985 (La.App. 2d Cir.6/20/07), 960 So.2d 1208. It remains unknown whether counsel might have opted not to pursue a third recess as a matter of trial strategy or for some other reason |nnot apparent from this record.

Consequently, the record is insufficient for this court to review the issue of ineffective assistance. The defendant’s remedy is post-conviction relief wherein the quality of the attorney’s performance can be fully developed and explored in an evidentiary hearing. Thus, the assignment of error is not properly before this court and we will defer the claim of ineffective assistance of counsel to post-conviction relief. State v. McGhee, 554 So.2d 145 (La.App. 2d Cir.1989).

We have examined the record for error patent and found none.

CONCLUSION

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

AFFIRMED.