author: WALTER J. ROTHSCHILD, Judge.

text:
    Michael L. BRAUD v. Patricia Martin BRAUD.
    No. 05-CA-758.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.

      Brenda B. Birner, Attorney at Law, La-Place, Louisiana, Paula Adams Ates, Attorney at Law, Destrehan, Louisiana, for PlaintiffiAppellant.
    Pat M. Franz, Attorney at Law, Metair-ie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| aThe parties, Michael and Patricia Braud, were married on June 18,1977, and divorced on November 22, 2002. On May 4, 2004, Mr. Braud filed a Petition for Partition of Community Property. Trial of the community property partition was held on December 3, 2004, and a judgment was rendered on February 10, 2005. Thereafter, Ms. Braud filed a Motion for Partial New Trial. After a telephone conference with counsel for the parties, the trial court rendered an Amended Judgment on February 25, 2005. Both Mr. and Ms. Braud appeal portions of the Amended Judgment partitioning their community property. For the reasons which follow, we affirm the AÍnended Judgment in part and amend it in part.

On appeal, Mr. Braud asserts that the trial court erred in denying his claim for reimbursement of one-half of the proceeds from the sale of his separate property home, which he asserts was used to pay a community debt, the balance |3due on two community property lots. He argues that the trial court failed to understand and properly treat the difference between a collateral mortgage and a typical pure mortgage, and erroneously placed meaning on the cancellation dates of collateral mortgages when those cancellations had nothing to do with the separate funds received and then paid out by Mr. Braud. Ms. Braud responds that the trial court correctly found that Mr. Braud did not prove this claim for reimbursement.

At trial, Mr. Braud testified that he purchased a house on Madewood (“Made-wood property”) in LaPlace, Louisiana, on March 13, 1976 for $31,500. He paid a $10,089.84 down payment and assumed the seller’s mortgage for the rest of the purchase price. Mr. and Ms. Braud lived at the Madewood property after they were married in June of 1977.

On March 17, 1978, Mr. Braud purchased two lots in Belle Grove Estates, lots 22 and 23, from Calvin Perrilloux for $12,000 each. Lot 22 was purchased by a cash sale, whereby Mr. Braud borrowed the purchase price from the seller, Mr. Perrilloux. This loan was secured by a $12,000 second mortgage on the Made-wood property in favor of Mr. Perrilloux, at 8% interest and “payable on or before one year from date.” Lot 23 was purchased by a credit sale, whereby Mr. Braud paid a $1,000 down payment and executed an $11,000 promissory note in favor of Calvin Perrilloux, at 8% interest and “payable one year from date without the right of maker to pre-pay said note.”

The parties decided to build a house on lot 22. On August 8, 1978, Mr. and Ms. Braud obtained a loan in the form of a $65,000 collateral mortgage from River-lands National Bank, secured by lot 22. They obtained a $15,000 collateral mortgage, secured by lot 22, and a $15,000 collateral mortgage, secured by lot 23, 1¿from Riverlands National Bank on May 15, 1979. On June 26, 1979, they obtained financing in the amount of $72,000 for lot 22 and the house built thereon from Security Homestead. On September 21, 1979, the $65,000 and $15,000 collateral mortgages secured by lot 22 were cancelled. The $15,000 collateral mortgage secured by lot 23 was not cancelled until August 3, 2001.

On December 6, 1979, Mr. Braud sold the Madewood property for $50,000. He asserts that he used the proceeds from this sale to pay the balance owed on lots 22 and 23, which was a community obligation, and used the remaining proceeds for miscellaneous fees. Thus, he argues that he is entitled to reimbursement for one-half of the proceeds from the sale of the Made-wood property.

Ms. Braud disputes Mr. Braud’s assertion that he used the proceeds from the sale of the Madewood property to pay the balance due on the two community property lots. Ms. Braud testified that the proceeds from the sale of the Made-wood property were deposited into the parties’ joint checking and savings account, and they never remained separate. At the time, both parties worked and deposited their incomes into their joint accounts, because they did not maintain separate bank accounts.

A trial court has broad discretion in adjudicating community property issues and is afforded great latitude in arriving at an equitable distribution of the assets between the spouses. Sherrod v. Sherrod, 97-907 (La.App. 5 Cir. 3/25/98), 709 So.2d 352, 354, writ denied, 98-1121 (La.6/5/98), 720 So.2d 687. LSA-C.C. art. 2340 provides:

Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.

The presumption that things in the possession of a spouse during the marriage are community property extends to property acquired by a spouse before | Rthe marriage but possessed by the spouse during the marriage. Talbot v. Talbot, 03-0814 (La.12/12/03), 864 So.2d 590, 597.

LSA-C.C. art. 2365 provides in pertinent part:

If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of the spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations.

The party claiming reimbursement of separate funds bears the burden of proving that separate funds existed and were used for the benefit of the community. Rogers v. Rogers, 94-541 (La.App. 5 Cir. 12/9/94), 649 So.2d 7, 9. Accordingly, in the present case, it was Mr. Braud’s burden to prove that the proceeds from the sale of his separate property were used to pay a community debt.

At trial, Mr. Braud’s testimony was the only evidence indicating that Mr. Braud used the proceeds from the sale of his separate property to pay for two community property lots. Ms. Braud disputes Mr. Braud’s testimony and asserts that Mr. Braud’s separate property was never kept separate or used to pay for the two community property lots. Ms. Braud contends that while Mr. Braud may present a plausible scenario of how things occurred, an equally plausible scenario is that the balance due to Mr. Perrilloux for the two lots was paid from the proceeds of the collateral mortgage, not the proceeds from the sale of the Madewood property.

Mr. Braud argues that the trial court mistakenly concluded that Mr. Braud could not have used the money from the sale of his separate property to pay off the debt to Mr. Perrilloux, because the trial court found that the collateral mortgage on lot 22 was cancelled on August 3, 1979, which was several months prior to the time the Madewood property was sold. Mr. Braud asserts that the trial court failed |fito understand the difference between a collateral mortgage and a typical pure mortgage, and that the cancellations of the collateral mortgages had nothing to do with the separate funds received and paid out by Mr. Braud. Mr. Braud further contends that the trial court erred in finding that Mr. Braud could not have paid the $23,000 debt in December 1979 because he only received $2,000 from the sale of the Madewood property. We agree that the trial court’s reasoning and analysis regarding the cancellations of the collateral mortgages is flawed. We further agree that the trial court erred in finding that Mr. Braud only received $2,000 from the sale of the Madewood property, with the remainder to be paid in installments, because the evidence shows that the monthly installments were to be paid to Carruth Mortgage Corporation, not Mr. Braud.

Although the trial court made some errors in its analysis, considering the entire record, we agree with the trial court that Mr. Braud did not meet his burden of proving that he is entitled to reimbursement for one-half of the proceeds from the sale of the Madewood property. As stated above, the spouse claiming reimbursement has the burden of proving that his separate funds were used for the benefit of the community. Although Mr. Braud’s version of events may be possible, Ms. Braud’s version is at least equally plausible. Without any evidence supporting Mr. Braud’s position and considering the uncorroborated testimony of the parties and the entire record, it is impossible for this court to find that he met his burden of proving that he is entitled to reimbursement for one-half of the proceeds from the sale of the Madewood property. See also Rogers v. Rogers, supra. Accordingly, we affirm the trial court’s judgment, denying Mr. Braud’s claim for reimbursement of one-half of the proceeds from the sale of his separate property.

[7We now address the merits of Ms. Braud’s arguments on appeal. In her first argument, Ms. Braud asserts that the trial court erred in denying her claim for one-half of the rents received by Mr. Braud for a jointly-owned condominium. In a Consent Judgment dated April 15, 2002, the parties agreed that Ms. Braud would have exclusive use of the family home and Mr. Braud would have exclusive use of the community condominium pending the community property partition. Both parties agreed to pay the notes and insurance for the respective properties and to waive reimbursement for these payments, in exchange for each party’s waiver of rental value for the property used by the other party.

Although Mr. Braud was awarded exclusive use of the parties’ condominium, he did not personally reside in it. Rather, he rented it to third parties and purchased a different condominium in which to reside. Ms. Braud contends that she is entitled to one-half of the rents collected by Mr. Braud for the community condominium. She asserts that Mr. Braud was awarded the personal right to use and occupy the condominium, but the parties did not agree to allow Mr. Braud to rent the condominium to others and to profit from such rental. Mr. Braud responds that the parties agreed that he would have exclusive use, not occupancy, of the community condominium and that there is no provision in the consent judgment prohibiting him from choosing another living arrangement and renting the community condominium.

The trial court denied Ms. Braud’s claim for one-half of the rents received by Mr. Braud for rental of the community condominium, stating that “[n]o restrictions were placed on either party’s exclusive use of the property in their possession.” We agree. The parties could have specified in their consent judgment that each party was to have exclusive occupancy of the property in their possession or placed restrictions on each party’s use, but they did not do so. Mr. Braud’s |sdecision to purchase a new condominium and to rent the community condominium and retain the proceeds does not violate or exceed his award of exclusive use. Accordingly, we affirm this ruling of the trial court.

Next, Ms. Braud asserts that the trial court made an error in its award to her for reimbursement of payments she made for air conditioner repairs on the family home. We agree.

In the original judgment of the community property partition, the trial judge awarded Mr. Braud “$2,500 representing reimbursement for payment for air conditioner on community home” and awarded Ms. Braud “2,230 representing reimbursement of ½ of the cost of repairs to the-air conditioner on family home.” Ms. Braud filed a Motion for New Trial, asserting that the trial court made an error in computation by awarding Mr. Braud full reimbursement of the $2,500 he paid for air conditioner repairs, but only awarding Ms. Braud reimbursement for one-half of the $4,460.00 that she paid for air conditioner repairs. Thereafter, the trial court rendered an Amended Judgment to correct its error. In this Amended Judgment, the trial court awarded Mr. Braud “$1,250 representing reimbursement for ½ of the cost of air conditioner on community home” and awarded Ms. Braud “$1,250 representing reimbursement of ½ of the cost of repairs to the air conditioner on family home.”

Ms. Braud argues that in the trial court’s attempt to correct one error, it made another error in the Amended Judgment. She argues that the correct amount that should be reimbursed to her for ½ of the air conditioner repairs in the family home is $2,230, not $1,250. Mr. Braud does not disagree with Ms. Braud’s argument on this issue, and he admits that she is entitled to relief. Accordingly, considering the evidence before us and noting Mr. Braud’s agreement with the relief requested by Ms. Braud, we amend the trial court’s Amended Judgment, and [3award Ms. Braud $2,230 for reimbursement for one-half of the cost of repairs to the air conditioner in the family home.

Finally, Ms. Braud asserts that the trial court erred in awarding one-half reimbursements to be paid from a jointly-owned escrow fund, rather than from the share of the party owing reimbursement. Mr. Braud agrees that the Amended Judgment should be amended to reflect that the one-half reimbursements for funds expended should be made from the patrimony of the spouse owing reimbursement, as set forth in LSA-C.C. art. 2358.1. Accordingly, we amend the Amended Judgment and order the jointly-owned escrow account to be divided equally between the parties, and the reimbursements due to each party shall be paid from the other party’s share of these funds.

DECREE

For the reasons set forth above, we affirm the trial court’s judgment, denying Mr. Braud’s claim for reimbursement of one-half of the proceeds from the sale of his separate property, and denying Ms. Braud’s claim for one-half of the rents received by Mr. Braud for the condominium. We amend the Amended Judgment to award Ms. Braud reimbursement of $2,230 for air conditioner repairs on the family home, instead of $1,250 as set forth in the Amended Judgment. We further amend the Amended Judgment and order that the jointly-owned escrow account is to be divided equally and then the reimbursements owed to each party shall be paid from the other party’s share of these funds.

AFFIRMED IN PART, AMENDED IN PART, AND RENDERED.

      . Although the documents reflect that only Michael Braud purchased the two lots, the parties agree that the two lots were community property.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Michael CLAY.
    No. 06-KA-37.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

laOn April 20, 2005, the Jefferson Parish District Attorney filed a bill of information charging defendant, Michael Clay, with possession of cocaine, a violation of LSA-R.S. 40:967 C. Defendant was arraigned on April 21, 2005, and pled not guilty.

Defendant filed various pre-trial motions, including a motion to suppress evidence. The trial court heard and denied the motion on June 16, 2005.

On August 5, 2005, the trial judge advised defendant of his constitutional rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant indicated he understood his rights and wished to waive them and enter a guilty plea. He reserved his appeal rights under State v. Crosby, 338 So.2d 584 (La.1976).

IsFollowing defendant’s guilty plea, the State filed a habitual offender bill of information, alleging defendant to be a second felony offender. The trial judge advised defendant of his right to remain silent and his right to a habitual offender hearing. Defendant waived his rights and entered an admission to the habitual offender allegations. In accordance with a sentencing agreement, the court imposed a sentence of two and one-half years at hard labor. The judge ordered that the sentence be served concurrently with any other sentences defendant was serving.

This timely appeal followed. Defendant argues that the trial court erred in denying his motion to suppress the evidence. For the reasons stated herein, we find this argument to have merit and we therefore reverse the trial court’s ruling.

FACTS

The facts surrounding the instant charge are found in the suppression hearing testimony of Deputy Christy Franklin of the Jefferson Parish Sheriffs Office. Deputy Franklin testified that on March 17, 2005, an anonymous caller reported that he or she had heard gunfire in the 900 block of Pailet Street. When the officer arrived in the area, she saw defendant and another man walking in the 800 block of Pailet Street. The two were walking from the block where the shots were alleged to have been fired.

Deputy Franklin testified that she and her partner, Deputy Shannon Johnson, stopped the two men. The officers conducted a field interview with defendant while Deputy Johnson did a pat-down frisk of his outer clothing for weapons. The second subject was also frisked and interviewed. Deputy Johnson told Deputy Franklin he had detected something in defendant’s clothing that felt like drugs. Deputy Franklin testified that Deputy Johnson recovered a rock of crack cocaine from defendant’s pants pocket.

|4The officers took defendant into custody. Deputy Franklin testified that she conducted a second pat-down search of defendant before transporting him to the Jefferson Parish Correctional Center. The officer did not testify that anything else was found on defendant’s person.

DISCUSSION

Defendant complains that Deputies Franklin and Johnson did not have reasonable suspicion to stop him and conduct a pat-down frisk, and that the resulting seizure of cocaine was, therefore, unlawful. Defendant moves this Court to reverse the trial court’s denial of his motion to suppress evidence.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. But the right of law enforcement officers to stop and interrogate those reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1 and by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

Although Article 215.1 permits an officer to stop a citizen in a public place and question him, such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, a criminal offense. State v. Temple, 02-1895, p. 4 (La.9/9/03), 854 So.2d 856, 860; State v. Collins, 04-751, p. 3 (La.App. 5 Cir. 11/30/04), 890 So.2d 616, 618. The detaining officer “ ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity....’” State v. Collins, supra, quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). Moreover, the officer must be able to articulate specific facts | aupon which his suspicion is based. State v. Becnel, 04-1266 (La.App. 5 Cir. 5/31/05), 904 So.2d 838, 852.

In determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, “giving deference to the inferences and deductions of a trained police officer ‘that might well elude an untrained person.’ ” State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1049 (per curiam), quoting Cortez, 449 U.S. at 418, 101 S.Ct. at 695. Factors that may support reasonable suspicion for an investigatory stop include an officer’s experience, his or her knowledge of recent criminal patterns, and his or her knowledge of an area’s frequent incidence of crime. State v. Mitchell, 04-136 (La.App. 5 Cir. 6/29/04), 877 So.2d 1151, 1155.

The State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703 D. The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Cooley, 03-418 (La.App. 5 Cir. 9/30/03), 857 So.2d 1209, 1216, writ denied, 03-3107 (La.3/12/04), 869 So.2d 818. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. State v. Becnel, supra.

Defendant argues that an anonymous report of gunfire and his presence in the area were not sufficient to support reasonable suspicion for an investigatory stop. Under certain circumstances, an informant’s tip can provide reasonable suspicion to detain and question a person. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); State v. Smith, 00-1838 (La.5/25/01), 785 So.2d 815, 816 (per curiam). Whether an informant’s tip creates reasonable suspicion necessary to justify an investigatory stop is determined by considering | fithe totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 2320, 76 L.Ed.2d 527 (1983); State v. Boss, 04-457, p. 6 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 586. The anonymous caller’s ability to predict the suspect’s future behavior goes toward proving reliability, as it demonstrates inside information and a special familiarity with the suspect’s affairs. See, Alabama v. White, 496 U.S. at 332, 110 S.Ct. at 2417; State v. Boss, supra. Independent corroboration of the details of an informant’s tip by police investigation is valuable to the totality of the circumstances analysis. State v. Boss, supra. A non-predictive anonymous tip paired with either police corroboration or independent police observation of unusually suspicious conduct can provide police with the reasonable suspicion needed to temporarily detain the suspect. Id. “[I]f a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” Alabama v. White, 496 U.S. at 330, 110 S.Ct. at 2416. See also, State v. Boss, supra.

The evidence adduced at the suppression hearing shows that the officers did not have reasonable suspicion to stop defendant. First, the anonymous tip had a low degree of reliability. Deputy Franklin testified that the caller did not report having seen someone firing a gun; rather, this person had only heard gunshots. Further, there was no description given of a perpetrator. Deputy Franklin could not say how long it took her to get to Pailet Street after she was dispatched. The greater the time span, the less likely it was that the perpetrator would still be at or near the scene. While the officer had reason to believe a crime (illegal discharge of a firearm) had been committed, she did not have reasonable suspicion that defendant had committed a crime. Deputy Franklin testified that neither defendant nor his companion exhibited behavior that indicated they were carrying weapons. |7She stopped them because they happened to be in the area where the gunfire was reported.

The officer stated she knew the street where she saw defendant as a high crime area with a great deal of drug activity. However, a person’s mere presence in a high crime area, without more, does not provide police with reasonable suspicion based upon articulable facts to make an investigatory stop. See, State v. Washington, 03-1134 (La.App. 5 Cir. 2/10/04), 866 So.2d 1058, 1062. See also, State v. Blasio, 98-0077 (La.App. 4 Cir. 10/21/98), 720 So.2d 749, 750 (“A stop in which a defendant is merely walking in a high crime area is unjustified”).

In State v. Cabler, 526 So.2d 1177 (La.App. 3 Cir.1988), police investigated a complaint by a man who said he had been beaten by three “biker-type fellows,” two of whom wore their hair in pony-tails, and a third who had long hair. The man said his attackers had run into a group of people standing nearby. The officers did not ascertain the victim’s name, or how much time had elapsed since the altercation. The victim then left the scene, and was never interviewed again.

The officers in Cabler ordered several men and women in the group to stand against a wall so they could be searched for the weapon that had been used to strike the victim. The defendant was among those searched. An officer felt what he believed was a knife in the defendant’s pocket. When he pulled the object out, he discovered it was a prescription bottle containing lysergic acid diethyla-mide tablets. The defendant was placed under arrest, and the officers recovered a bottle of diazepam tablets when he was searched incident to arrest.

The defendant in Cabler was charged with possession of the illegal drugs. He filed a motion to suppress the evidence seized from his person, which the district court denied. The defendant applied for supervisory writs from the district ^court’s ruling. The Third Circuit reversed the trial court’s ruling, finding that the police officers did not have reasonable suspicion to stop and frisk the defendant. The court reasoned that the stop was based on a vague description given by an unknown victim. The officers simply went in the direction where the victim said his attackers fled, and searched the first people they came across who looked like biker types. The victim did not file a complaint or identify his assailants, and the officers did not ascertain how much time had elapsed since the attack. Cabler, 526 So.2d at 1182.

The facts in the instant case are comparable to those in Cabler, in that the officers responded to a report made by an unknown complainant, and they simply approached the first people they saw in the area. The officers in the instant case had even less to go on than those in Cabler, since they never spoke to the complainant, and they did not have even a vague description of the perpetrators.

The holding in State v. Sneed, 95-2326 (La.App. 4 Cir. 9/11/96), 680 So.2d 1237, writ denied, 96-2450 (La.3/7/97), 689 So.2d 1371, also supports defendant’s position. In that case, police officers received information from an untested confidential informant that wholesale heroin distribution was taking place at a particular residence. The police set up surveillance of the house that day, and officers saw defendant stop his car and enter the house. A short time later, the defendant exited and drove away from the house. Police stopped the defendant and a subsequent search of the vehicle yielded nineteen packets of heroin from under a seat. The Fourth Circuit held that the officers did not have reasonable suspicion to stop a defendant after he briefly visited a residence that was under surveillance for drug activity. The court reasoned, in part, that there was no testimony that the area had a reputation for drug trafficking or that there had been a succession of brief visits to the house by other individuals. Sneed, 95-2326 at p. 4, 680 So.2d at 1239. As in the instant case, the officers in Sneed based their stop solely on information received from a confidential informant without having the information verified by independent investigation.

See also, State v. Temple, 02-1895 (La.9/9/03), 854 So.2d 856, in which the Louisiana Supreme Court reversed the defendant’s cocaine conviction upon finding that police officers did not have reasonable suspicion for an investigatory stop. In that case, two New Orleans police officers responded to a report of an attempted burglary. The victim informed the officers that four individuals had attempted to enter her apartment without her permission. The officers inspected the outside of the apartment building and found four individuals sitting on a front porch step.

When they saw the officers, a male subject “quickly leaned against the wall,” and a woman and the defendant sat down. The defendant handed the woman a white object. She placed it in her pocket and attempted to walk away. One of the officers testified that at that point, he “ ‘formulated a plan to try to stop the persons to interview them for, ah, interview purpose or whatever ... ”’ The officers “detained” all four subjects. Temple, 854 So.2d at 858. A female officer was summoned to conduct a “pat-down” search of the woman. Sixty bags of cocaine and 141 pieces of crack cocaine were found in her pocket. The woman said the defendant had told her to hold the object he had handed her. The defendant was the only person arrested. Id. The Temple court concluded that the evidence was unlawfully seized because the police lacked reasonable suspicion of criminal activity when they detained the defendant and his companions.

In the present case, the record fails to contain any evidence to support reasonable suspicion necessary for an investigatory stop. The information contained in the anonymous tip was not specific and predictive enough to create ^reasonable suspicion that defendant was engaged in criminal activity. Further, the record fails to contain sufficient evidence that the officers had reasonable suspicion in observing defendant that a crime had been committed. Accordingly, we conclude that the officers were not justified in stopping defendant, and the evidence seized during the course of this stop was unlawfully obtained.

Finally, the record was reviewed for errors patent according to La.C.Cr.P. art. 920, and no errors patent were found.

DECREE

For the reasons set forth above, the trial court ruling denying the defendant’s motion to suppress is set aside and reversed. We hereby vacate the defendant’s conviction and sentence, and we remand the matter for further proceedings. See, State v. Tovar, 03-513 (La.App. 5 Cir. 10/15/03), 860 So.2d 51, 57.

REVERSED AND REMANDED.

      . Defendant does not ask this Court to review the pat-down and seizure. He only challenges the initial stop.


text:
    STATE of Louisiana v. Jose PEREZ.
    No. 05-KA-1006.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Ken Dohre, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellant.
    Warren G. Deagano, Jr., New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| .This is the State’s third appeal in this matter. The following is the relevant procedural history leading up to the instant appeal:

Defendant, Jose Perez, was charged with third offense operating a vehicle while intoxicated (“DWI”) on October 12, 2001, following DWI convictions in 1997 and 1999, in violation of LSA-R.S. 14:98(D). He pled not guilty and filed a motion to quash the bill of information on the basis that he was unrepresented in the 1997 DWI guilty plea, that he was not advised of the right to appointed counsel if he was indigent, and that he had not validly waived his right to counsel. The trial judge granted the motion, finding that the transcript of the predicate plea did not show that defendant was advised of his right to appointed counsel if he was indigent.

[¡¡Following the State’s appeal, this Court vacated the judgment and remanded the matter to the trial court to reopen the hearing on the motion to quash to determine whether “the information regarding the right to .appointed counsel was contained in the waiver of rights form” that was signed by defendant. State v. Perez, 02-587 (La.App. 5 Cir. 11/26/02), 831 So.2d 542, 547, writ denied, 03-0221 (La.5/2/03), 842 So.2d 1100. (hereinafter Perez I).

On June 12, 2003, the trial court held a hearing at which the State introduced a waiver of rights form signed by defendant from his 1997 guilty plea. The form reflected that defendant was advised of his right to appointed counsel if indigent. However, the trial judge granted the motion to quash, finding that the transcript of the 1997 hearing, which had been introduced at the previous hearing, did not reflect that defendant had been personally advised by the trial judge that he was entitled to appointed counsel if he was indigent.

In the State’s second appeal, this Court vacated the judgment of the trial court and remanded the matter for further proceedings in State v. Perez, 04-1052 (La.App. 5 Cir. 1/25/05), 895 So.2d 50, 55, (hereinafter Perez IP). This Court found that based on the evidence presented, which included a waiver of rights form reflecting defendant was advised of his right to counsel if indigent and a transcript of the 1997 guilty plea, the State met its burden of proof with regard to the validity of the predicate plea. The Court further found that, considering defendant had offered no countervailing evidence to meet his burden, the trial court erred in granting the motion to quash the bill of information.

On July 21, 2005, defendant filed a “MOTION TO REOPEN /REURGE MOTION TO QUASH PURSUANT TO 5TH CIRCUIT’S RULING WITH RESPECT TO PRIOR CONVICTION AS INVALID PREDICATE.” On August 1, 2005, the trial court held a hearing, at which defendant once again urged the trial |4court to grant his motion to quash previously filed in this matter. While defendant did not testify or introduce any physical evidence at this hearing, the State and defendant entered into a stipulation that, if defendant’s wife were to testify, she would say that defendant could not read English in 1997. Thereafter, the trial judge granted the motion to quash. This appeal follows.

DISCUSSION

In this appeal, the State contends that the trial judge erred in granting defendant’s motion to quash, because the record of defendant’s 1997 DWI guilty plea establishes a valid waiver of the right to counsel. Specifically, the State contends that the trial judge committed error because he failed to consider the totality of the circumstances of the predicate plea when he granted the motion to quash based on the stipulation entered into with defendant. The State points to the 1997 transcript, which reflects that defendant was personally advised of his right to counsel by the trial court and waived that right, along with the waiver of rights form, which reflects that defendant was advised of the right to counsel if indigent and waived that right.

When a defendant challenges the constitutional validity of a predicate DWI conviction resulting from a guilty plea, the State bears the initial burden of proving the existence of the guilty plea and that an attorney represented the defendant during the plea. State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556, 559. When a defendant is unrepresented during a guilty plea, the State must also show a waiver of counsel. State v. Deville, 04-1401 (La.7/2/04), 879 So.2d 689, 690. If Rthe, State meets this burden, the defendant must produce affirmative evidence indicating an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to meet his burden, the State must prove the constitutionality of the plea. Id. at 691; State v. Carlos, supra at 559.

In the present case, the record contains the transcript of defendant’s 1997 guilty plea colloquy, which was introduced at the first hearing on the motion to quash. This transcript reflects that the trial judge advised defendant of his Boykin rights. The transcript also reveals that the trial judge informed defendant of his right to counsel and that defendant waived that right. In Perez I, this Court found that the transcript did not reflect that the trial judge told the defendant he was entitled to appointed counsel if indigent. Mindful of the Louisiana Supreme Court’s emphasis that a waiver of counsel depends on the entire record, not just certain “magic words” used by the trial judge, this Court remanded the matter for consideration of whether the waiver of rights form contained “information regarding the right to appointed counsel.” State v. Perez, supra at 547.

At the second hearing, the State produced the contemporaneously executed waiver form signed by defendant and the trial judge. The form outlined defendant’s rights and the fact that defendant was waiving these rights by pleading guilty. Specifically, the form advised defendant of his Boykin rights, as well as the right to have the assistance of an attorney, and to appointed counsel if he could not afford an attorney. The form further provided that defendant acknowledged the trial judge thoroughly explained his rights to him; he understood them; he had no further questions to ask; and that he entered the pleas knowingly, intelligently, freely, and voluntarily. The defendant’s signature, along with the trial judge’s signature, appears at the bottom of the form.

| ¿This Court recognized in Perez II that a valid waiver of the right to counsel was found under similar circumstances in State v. Theriot, 00-870 (La.App. 5 Cir. 1/30/01), 782 So.2d 1078. In Theriot, the predicate record reflected that the trial judge properly advised defendant of his Boykin rights, but failed to advise defendant at all of his right to counsel in his predicate guilty plea. However, the record contained a waiver of rights form, encompassing all of the rights stated by the trial judge, as well as the right to counsel and appointed counsel if indigent. Further, the record of the predicate offense reflected that the defendant had been advised of his right to counsel at arraignment. Based on all of these factors, the Theriot court concluded the record reflected a valid waiver of the right to counsel, even though the trial judge did not inquire into defendant’s background or education, and even though the trial judge did not verbally advise defendant of his right to counsel. State v. Perez, supra at 55; State v. Theriot, supra at 1085.

In Perez II, this Court found that, as in Theriot, the waiver of rights form informed Perez of his right to counsel, and to appointed counsel if indigent. As such, this Court in Perez II concluded that the form, in addition to the transcript from the 1997 guilty plea, showed a valid waiver of counsel. Based on the evidence, the Court in Perez II found that the State met its initial burden of proof and that the trial court erred in granting defendant’s motion to quash the bill of information, considering that defendant offered no countervailing evidence to meet his burden.

At the most recent hearing on August 1, 2005, defendant offered no physical evidence and he did not testify. Rather, defendant stated that he intended to call his wife to testify, but she was unavailable. Defendant then asked the State if it would stipulate that defendant’s wife would testify that defendant could not read English when he entered his guilty plea in 1997, and that he would not have been j7able to read or understand the form unassisted in 1997. The State agreed to stipulate that defendant’s wife would testify as such if she were called. Thereafter, defendant argued that, because he could not read English, the form should not be considered when determining whether he validly waived his right to counsel. Defendant argued that this Court had accepted the record and assumed defendant was capable of reading the form. In addition, defendant stated that the 1997 transcript showed that the judge did not ask defendant if he read the form. Defendant further argued that the waiver of rights form was deficient because it did not list the crime to which he was pleading guilty.

The State highlighted several aspects of the 1997 transcript, including that the transcript reflected that the trial judge inquired of defendant whether he had reviewed the form; that defendant answered affirmatively; and that defendant answered “yes” when asked if he had signed the form. The State argued that nothing had changed since this Court had ruled most recently.

Thereafter, the trial judge granted the motion as follows:

THE COURT:
All right. Well, the Court has before it an uncontradicted stipulation that calls into question this man’s ability to read, at least as far as I’m concerned back in 1997.

The State did not stipulate that defendant could not in fact read the English language. Rather, it was stipulated that defendant’s wife would testify that he could not read English. It appears that the trial judge either misinterpreted the State’s stipulation or based his determination solely on the stipulation instead of considering the totality of the circumstances.

The Louisiana Supreme Court has recognized that the determination of the validity of the accused’s waiver of counsel rests on the totality of the circumstances in each case, not “inflexible criteria or a magic word formula.” See | State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843, 845. Further, determining the defendant’s understanding of his waiver of counsel in a guilty plea to an uncomplicated misdemeanor requires less judicial inquiry than determining his understanding of his waiver of counsel for a felony trial. State v. Strain, 585 So.2d 540, 544 (La.1991). In State v. Simmons, 05-1462 (La.3/17/06), 924 So.2d 137 (per curiam), the Louisiana Supreme Court stated:

Strain otherwise did not establish a rigid set of criteria for determining the voluntariness of a plea in misdemeanor cases and an accompanying waiver of counsel because a trial judge who personally addresses the accused during the colloquy ... is in a position ‘to assess the extent of inquiry necessary to determine the knowing, intelligent and voluntary nature of the waiver of counsel as well as of the guilty plea.’ ” (Internal citation omitted).

In the instant case, the totality of the circumstances shows that defendant’s waiver of counsel was valid. The trial judge personally addressed defendant in 1997, inquiring whether he had reviewed the waiver form and whether he had signed it. Defendant answered affirmatively and gave no indication that he could not read the waiver of rights form. After personally addressing him, the trial judge determined that defendant knowingly and voluntarily waived his rights when entering the 1997 guilty plea. Defendant asked no questions, even though the trial judge told him that he would explain any matters to him if defendant had a question. As pointed out in Simmons, the trial judge was in the position to assess the extent of the inquiry to necessary to determine the knowing, intelligent and voluntary nature of the waiver of counsel.

Considering the colloquy and the contemporaneously executed waiver of rights form, we find that the trial court erred in granting defendant’s motion to quash the bill of information. Accordingly, we vacate the trial court’s judgment granting defendant’s motion to quash, and we remand the matter for the State to proceed with the prosecution of its claims against defendant for third offense DWI.

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

DECREE

For the reasons set forth above, we vacate the trial court’s judgment which granted defendant’s motion to quash, and we remand the matter for the State to proceed with the charges in the present case against defendant.

JUDGMENT VACATED; REMANDED.

      . Defendant’s appellee brief was due on February 21, 2006. On February 24, 2006, defendant filed a motion entitled, "MOTION AND ORDER BY DEFENDANT-APPELLEE FOR CONSIDERATION OF BRIEFS PREVIOUSLY FILED ON BEHALF OF DEFENDANT-APPELLEE, ALTERNATIVELY, FOR AN EXTENSION OF TIME TO FILE DEFENDANT-APPELLEE BRIEF.” This Court granted defendant until March 10, 2006 to file an appellee brief, but as of this date, defendant has not filed a brief responding to the instant appeal. This Court referred to the merits defendant's request to have the briefs that he filed in prior appeals considered in this appeal. After consideration of this request, we find that defendant is not entitled to the relief sought. Accordingly, we deny defendant's request for consideration of previously filed briefs.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Richard J. HEBERT.
    No. 05-KA-1004.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.

      Paul D. Connick, Jr. District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Kia M. Habisreitinger, Assistant District Attorneys, Gretna, Louisiana, for PlaintiffAppellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendani/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

I ¡.The defendant, Richard Hebert, was found guilty of attempted second degree murder after a bench trial, and was sentenced to ten years at hard labor without benefit of parole, probation or suspension of sentence. The defendant now appeals his conviction and sentence.

FACTS

On September 7, 2002, Stacey Burd sustained a stab wound to his chest causing injuries to his diaphragm, liver, and lung that required surgery. At trial, the State presented evidence that the defendant stabbed Burd with a knife through the eyewitness testimony of Burd and Ramona Arceneaux. The defendant testified that Burd was the aggressor, and that he did not intend to kill him.

Stacey Burd, the victim, testified that he knew the defendant, Richard J. Hebert, prior to September 7, 2002, for a short period of time. He met Ramona Arcen-eaux twice. On September 7, 2002, Burd received a paycheck of between $340 and $360, and then visited the defendant, at his house in Jefferson Parish. According to Burd, the defendant was aware that he had cashed his paycheck, because he told him he had and that he had the money on his person. Burd and the defendant shot darts and drank beers, at the defendant’s house. They attempted |sand failed to buy marijuana in St. Rose, then returned to the defendant’s house, shot some more darts, and drank some more beer. Burd testified that he was not intoxicated, and believed that the defendant was coherent and alert, not totally intoxicated. Subsequently, he drove the defendant and Ar-ceneaux to a Circle K, located less than half a mile from the defendant’s house, to buy some more beer. He went into the store to buy the beer. The defendant accompanied him into the store, but took a little time getting out of the car. On the trip back to the defendant’s house, he drove with Arceneaux seated in the passenger seat and the defendant behind him, the same positions they were in on the trip to the Circle K. After they arrived at the house and he parked the car, the defendant asked Arceneaux, “What do you think, Ramona?” twice, back to back. Burd testified that when he looked at Ramona “her eyes were stretching and she was smiling, you know, like, but she wasn’t moving, she was totally still.” He thought she looked nervous, because she knew something was going to happen, but was afraid to say anything. Then, the defendant grabbed him around the throat with his left hand, and stabbed him in his chest muscle through his rib cage. He thought the defendant was trying to kill him and take his money. When he saw the butcher knife coming at him again, he caught it and pinned the defendant’s hand to the roof, ripped his hand off his throat, and opened his door. As he exited the car, he pulled the defendant out, and then twisted the defendant’s hand making him drop the knife, on the ground outside the car. The defendant got out and walked off with Arceneaux. Burd testified that he got back in his car and attempted to call 911, then the defendant turned around and walked toward his vehicle. As defendant approached, Burd put the car into reverse, backed out of the driveway, and called 911. At some point, he threw the butcher knife used by the defendant on the backseat of his car. He was unaware that there was another knife in his car. |4He remained at the scene, in his car, watching the apartment to make sure the defendant and Ar-ceneaux did not leave, until the police arrived. When the police arrived, he told them where the defendant and Arceneaux were. He was later taken by ambulance to the hospital, and eventually to surgery for the stab wound that punctured his liver and scarred his lung.

Ramona Arceneaux testified that she entered into a deal with the State in which the State agreed to dismiss the attempted second degree murder charge and she agreed to plead guilty to attempted armed robbery, if she testified. Arceneaux testified that she knew the defendant, because he was her lover for two years and lived in the same apartment complex as her. She also knew Burd through her relationship with the defendant. She only had contact with Burd for a second time on the day of the incident. On the day of the incident, the defendant called her to come over to his apartment in Metairie. When she arrived, Burd and the defendant were there drinking beer. She brought a slab of crack cocaine for her and the defendant to smoke, but the defendant took her aside, into the bathroom, and told her not to say anything, because Burd only drank beer and smoked marijuana. As far as she knew, Burd did not know about the crack cocaine.

Later, after playing darts, she and the defendant went into the bathroom to smoke crack, without Burd’s knowledge. While they were in the bathroom, the defendant told her that he wanted to rob and kill Burd. He told her he wanted the money because “he was financially broke ‘cause ... he was on a 30-day crack roll,” which meant, “he’s been up for 30 days smoking crack.” The defendant told her that he knew Burd had money, because Burd wanted him to buy him some marijuana. She refused, and the defendant told her to “go along” with the story or he would kill her. She testified that the defendant previously had beaten her and tried to kill her twice. However, she blew off his threat against Burd, because the |Rdefendant had threatened to kill her ex-boyfriends and never followed through with it. She did not think he “could even confront another man not [sic] much less try to kill one,” after he had beaten her. Afterwards, she and the defendant returned to the front of the apartment where Burd was, and the defendant made some phone calls on Burd’s cell phone, attempting to buy Burd some marijuana, but was unsuccessful. Then, according to Arceneaux, she and the defendant left with Burd pretending they were going to buy marijuana, but the defendant intended to buy crack with Burd’s money. Burd was unaware of the plan. They parked in front of a closed corner store. She remained in the car drinking with Burd, while the defendant and the crack dealer were “gone for a good while.” When the defendant came back, he handed Burd the money, and they went back to the defendant’s apartment to play darts. On the last trip to get beer, Burd got out of the car and went into a convenience store, after the defendant told him that he wanted to kiss Arceneaux and tell her he loved her. According to Arceneaux, the defendant actually handed her two knives and told her to put them underneath the driver’s seat mat, toward the back of the car. She took the knives and placed them under the mat, but toward the front of the car. She recognized the knives from the defendant’s kitchen. After they arrived at the defendant’s apartment, and Burd parked the car, she “hear[d] a knife com[ing] around the seat.” Burd was stabbed. She continued to see the knife come in Burd’s direction quite a few times. At some point during the incident, the defendant told her to hit Burd on the head with a bottle. She saw Burd fight for the knife, and eventually disarm the defendant. Burd told the defendant that he “couldn’t believe what was happening,” and to get out of his car. After the defendant got out, she saw “[the defendant] going back at [Burd] again” trying to get the knife. While Burd was calling 911 and fighting off the defendant, she left. She hid behind a boat across the street, because she feared | fifor her own life. Later, Arceneaux testified that she called the defendant over and told him to take off his white T-shirt, because the police would see it in the dark. She claimed to have done this, because she was trying to find the knife she thought he had brought to stab her. Then, the defendant ripped her shirt and bra, and told her to tell the police that Burd attempted to rape her and that is why the defendant stabbed him. She testified that she only agreed to get the defendant to the police. Burd neither raped nor attempted to rape her. The police found her and the defendant in the apartment complex. She identified the defendant in court as the person she saw stab Burd.

Deputy Ricardo Ramos with the Jefferson Parish Sheriffs Office testified that when he responded to the scene of the stabbing in Metairie, he observed a black male holding his chest. The victim had blood coming out onto his shirt. He was suffering and in pain, because of the stab wound. The victim told him what happened earlier in the day and that, upon his return to the apartment complex, he was stabbed in the chest after which his friend and his friend’s girlfriend left. The perpetrators were caught and brought back to the scene. Burd identified both Hebert and Arceneaux at the scene. He identified Richard Hebert, without hesitation and by name, as the person who stabbed him. He was one hundred percent positive. Hebert, the defendant, stated that he stabbed Burd, the victim, because he tried to rape Arceneaux. After the defendant and Ar-ceneaux were separated, she stated that Burd had not tried to rape her, and that the defendant had tried to rob Burd. This was corroborated by a lack of evidence both from her and on her. Arceneaux’s shirt and bra were ripped, but she did not have any physical marks on her consistent with being battered or held down. In her statement to the police, Arceneaux stated that they were all at the defendant’s house. The defendant knew that Burd had a large amount of money, and he wanted to rob him. |7Arceneaux initially did not agree, but changed her mind after the defendant threatened to kill her. Later when they went out, she reluctantly hid the knives under the front seat. When they returned to the apartment complex parking lot, the defendant asked her twice what she thought, then took the knife and stabbed Burd. The defendant also told her to hit Burd on the head with a bottle.

Dr. Richard E. Deno, an emergency room physician at East Jefferson, testified that, as a result of the stab wound, Burd had blood in his chest, an injury to his diaphragm and his liver, and arterial bleeding in his lung that required surgery.

The defendant testified that he met Burd a month and a half before the incident. He claimed that he never used crack cocaine, and neither was he in a 30-day crack cocaine binge on the day of the incident. In addition, he did use crack cocaine with Arceneaux, in the bathroom, on the day of the incident. He testified that on the night of the incident Arceneaux was already at his apartment, because she had moved in the Sunday before. Later, Burd came over. He noticed that Burd and Arceneaux were whispering behind his back. Burd had already been drinking, and asked him for the first time to get him some marijuana. He called a friend, and they went to St. Rose to buy the marijuana. Burd gave him $60.00 to buy the marijuana. However, the dealer only had crack cocaine. He did not purchase any, but the dealer gave him a $5.00 piece of crack cocaine for Arceneaux, after seeing her in the car. When they returned to the apartment, Arceneaux went into the bathroom to use the crack cocaine. Later, he went into the bathroom to get her when he and Burd decided to go get more beer. After getting the beer, they returned to the apartment complex and remained in the car. Burd and Arceneaux started whispering to each other again. He asked Arceneaux what she thought was going on, and she looked uncomfortable. Then, he saw Burd reach down toward |sthe passenger’s seat near the floor where the defendant saw two knives. He instinctively grabbed the knife, and tried to put the knives on the seat beside him. When Burd grabbed his right wrist, it caused one of the knives to fall on the seat. As Burd pulled his right arm toward the front seat, he grabbed Burd by the throat with his left hand. In his struggle to get free, Burd was unintentionally stabbed. After Burd was stabbed, the knife was dropped. He got out of the car, because he was terrified. Burd called the police on his cell phone. Arceneaux ran to his apartment, and he went to her. When he got to his apartment, Arceneaux ripped her shirt and bra, and told him that she was going to tell the police that Burd tried to rape her. He found a set of keys that Arceneaux told him belonged to Burd. He attempted to return them, but Arceneaux grabbed them, threw them into a drain, and ran. He ran after her, and the police found them. He claimed that he had no need to rob Burd, because he cleared about $1800 per month in salary and his mother helped him financially.

ANALYSIS

In his first allegation of error, defendant challenges the sufficiency of evidence to sustain his conviction. He argues that the evidence was insufficient to establish that he intended to kill Burd. Rather, he claims that Burd was the aggressor. The State argues that the evidence proved the defendant stabbed Burd with the specific intent to kill based on the location of the wound, in the middle of his chest, and the extent and severity of his injuries.

The standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of |fla criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Barnes, 98-932, p. 3 (La.App. 5 Cir. 2/10/99), 729 So.2d 44, 46, writ denied, 99-1018 (La.9/17/99), 747 So.2d 1099. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. The trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Baker, 01-1397, (La.App. 5 Cir. 4/30/02), 816 So.2d 363, 365. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id.

Second degree murder is the killing of a human being when the offender has a specific intent to kill. LSA-R.S. 14:30.1 “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended.” LSA-R.S. 14:27. To prove attempted second degree murder, the State must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. State v. Cepriano, 00-213, (La.App. 5 Cir. 8/29/00), 767 So.2d 893, 897. Specific intent to inflict great bodily harm is sufficient to support a murder conviction, but second degree attempted murder requires a specific intent to Mil. Id. at 898. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1); Cepriano, 767 So.2d at 897. Specific intent to Mil may be inferred from the extent and severity of the victim’s injuries. State v. Stacker, 02-768, (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 606, writ denied, 03-0411 (La.10/10/03), 855 So.2d 327.

In the present case, the State proved that the defendant specifically intended to Mil a human being and that he committed an overt act in furtherance of that goal. Burd testified that the defendant, who was known by him prior to the incident, grabbed him around the throat with his left hand, and stabbed him in his chest muscle through his rib cage. He thought the defendant was trying to kill him and take his money. When the defendant tried to attack him again with the butcher knife, he caught it and pinned the defendant’s hand to the roof, ripped his hand off his throat, opened his door, and exited the car. He pulled the defendant out of the car while defendant was still holding the knife, and then twisted his hand to make him drop the knife. While he attempted to call 911, the defendant turned around and walked toward his vehicle forcing him to put the car into reverse, and back out of the driveway before calling 911.

Ramona Areeneaux testified that the defendant took her aside, into the bathroom, and told her that he wanted to rob and Mil Burd. Later on a trip to get beer, the defendant actually handed her two knives and told her to put them underneath the driver’s seat mat, toward the back of the car. After they arrived, at the defendant’s apartment, she “hear[d] a knife com[ing] around the seat,” when the defendant stabbed Burd. She saw Burd fight for the knife, and eventually disarm the defendant. After the defendant got out of the car, she saw him go back, fight with Burd and try to get the knife.

Dr. Richard E. Deno testified that, as a result of the stab wound, Burd had blood in his chest, an injury to his diaphragm and his liver, and arterial bleeding in |nhis lung that required surgery. He opined that it took a considerable force for the knife to go through Burd’s rib cage. The force required would be “a considerable effort by a strong man and somebody that’s fighting with them [sic] to actually go through a rib cage.” He noted that it was not uncommon for a bullet to be deflected by the rib cage.

The trial court found Arceneaux’s testimony, which was corroborated by Burd’s testimony, to be more credible than the testimony of the defendant. The evidence adduced supports the defendant’s conviction for attempted second degree murder. Compare State v. Zaldivas, 02-0690, (La.App. 5 Cir. 12/30/02), 836 So.2d 577, 579-581, writ denied, 03-0705 (La.10/17/03), 855 So.2d 757; State v. Martin, 92-811, (La.App. 5 Cir. 5/31/94), 638 So.2d 411; State v. Armant, 97-1256, pp. 3-8 (La.App. 5 Cir. 5/27/98), 719 So.2d 510, 512-517, writs denied, 98-1884 (La.11/20/98), 729 So.2d 3 and 98-1909 (La.11/20/98), 729 So.2d 4. We find that this assignment of error lacks merit.

In his second allegation of error, the defendant alleges that the trial court erred in failing to grant a mistrial. He argues that the trial court should have granted a mistrial, because he was denied his right to a fair trial after the State questioned him about what he said and did not say after his arrest. He contends that the mistrial should have been granted regardless of the fact that the defendant testified and the testimony was elicited for impeachment purposesj and that the trial was a bench trial.

In Doyle v. Ohio, 426 U.S. 610, 611-620, 96 S.Ct. 2240, 2242-2246, 49 L.Ed.2d 91 (1976), the defendants were charged with selling marijuana. In their separate trials, each defendant claimed they were framed. The prosecutor attempted to impeach individually the defendants’ credibility on cross-examination by inquiring why they had not informed the arresting officer that they were framed. |^On appeal, the defendants appealed arguing the State erred in using their silence to impeach their credibility at trial. The United States Supreme Court held that reference to a defendant’s silence at the time of his arrest and after Miranda warnings for impeachment purposes violates the defendant’s due process rights.

However, this Court, in State v. Williams, 04-1309 (La.App. 5 Cir. 4/26/05), 902 So.2d 485, writ denied, 05-1640 (La.2/3/06) 922 So.2d 1173 concluded that not every mention of a defendant’s post-arrest silence is prohibited by Doyle. This Court found that Doyle only condemns the use of the defendant’s silence at the time of arrest and after his Miranda warnings for impeachment purposes. Therefore, the State cannot make a reference to an accused having exercised his constitutional right to remain silent after being advised of the right, solely to ascribe a guilty meaning to his silence or to undermine, by inference, an exculpatory version related by the accused, for the first time at trial. Id. However, an oblique and obscure reference to a defendant’s post-arrest silence does not constitute reversible error when the examination does not stress the right to remain silent or attempt to elicit testimony regarding the defendant’s failure to respond to police questioning. Id. As a result, the State may pursue a line of questioning that attempts to summarize the extent of the investigation when the questions are not designed to use the defendant’s failure to claim his innocence, after his arrest, to impeach his testimony or attack his defense. Id. In addition, the State can refer to evidence of post-arrest silence when it is relevant to rebut the defense’s assertion that the arresting officer failed to investigate properly, or the defendant actively cooperated with police when arrested. Id.

In the present case, the defendant was asked by his attorney whether he gave a statement to the police. The defendant replied no. Later, he stated that after Burd identified him, he told “no one in particular,” while in 'the vicinity of the 11sambulance on the scene, that Arceneaux told him she was going to tell the police that Burd tried to rape her. The defendant admitted that there were a few police officers, in the area, but claimed that he did not direct the statement toward anyone, even though he knew he was under arrest, at the time. The defendant also testified that the reason he didn’t tell the police officer that he stabbed the victim because he thought the victim was reaching for the knife was “Because I didn’t make a statement.”

The admissibility of evidence in a bench trial is different from the requirements in jury trials, because a judge by virtue of training and knowledge of the law is capable of disregarding any impropriety. State v. Anderson, 02-273 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, 521, writ denied, 02-2519 (La.6/27/03), 847 So.2d 1254. LSA-C.Cr.P. art. 771 is designed to guard against improprieties in the presence of the jury. This article does not mandate a mistrial in a bench trial when a prohibited question is propounded. State v. Marshall, 359 So.2d 78, 83 (La.1978). Compare, State v. Anderson, supra and State v. Myers, 584 So.2d 242, 253 (La.App. 5 Cir. 1991), writ denied, 588 So.2d 105 (La.1991).

Even if State’s line of questioning was designed to use the defendant’s failure to claim his innocence, after his arrest, to impeach his testimony or attack his defense, we find no basis for the granting of a mistrial. The defendant was tried and convicted in a bench trial. Therefore, the trial court was able to disregard any inferences that would have prejudiced the defendant. In addition, the record shows that the trial was fairly conducted, and there was strong proof of the defendant’s guilt. We find this allegation of error to be without merit.

In his third allegation of error, the defendant alleges that the trial court imposed an excessive sentence and should have imposed a sentence less than the mandatory minimum under State v. Dorthey, 623 So.2d 1276 (La.1993). The | T ¿defendant argues that his 10-year sentence, the minimum allowed for attempted second degree murder, is cruel and unusual punishment under Dorthey, because he has no prior criminal history and a stable employment history. In addition, he argues that the trial court failed to consider various mitigating circumstances under LSA-C.Cr.P. art. 894.1.

Initially, we note that the defendant failed to file a motion for reconsideration of sentence. “Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of exeessiveness, shall preclude ... the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” LSA-C.Cr.P. art. 881.1(E). Therefore, the defendant’s failure to move for reconsideration of sentence or state specific grounds upon which the motion is based limits the defendant to a bare review of the sentence for constitutional excessiveness. State v. Zaldivas, 836 So.2d at 582-583. Accordingly, the defendant’s sentence is limited to an examination only for constitutional excessiveness.

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

|1sThe three factors are considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. State v. Knightshed, 00-1410, p. 4 (La.App. 5 Cir. 3/28/01), 783 So.2d 501, 504-505, State v. Watts, 99-311, p. 6 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 7583 So.2d 145. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id., State v. Allen, 03-1205, p. 3 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 879-880.

In State v. Dorthey, surpa, the Louisiana Supreme Court held that when a trial court determines the minimum sentence mandated by the Habitual Offender Law, LSA-R.S. 15:529.1, makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d at 1280. Even though Dorthey involved a mandatory sentence under the habitual offender laws, the sentence review principles espoused in Dorthey are applicable to mandatory sentences imposed by substantive criminal statutes. State v. Brown, 01-160, (La.App. 5 Cir. 5/30/01), 788 So.2d 667, 675.

Since it is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional, a court may only depart from the mandatory sentence if it finds clear and convincing evidence in the present ease that would rebut the presumption of constitutionality. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. The burden is on the defendant to rebut the presumption of constitutionality by showing:

11fi[h]e is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, 709 So.2d at 676, quoting State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223.

Downward departures from the minimum sentence mandated by La. R.S. 15:529.1 should only occur in rare situations. State v. Davis, 01-123, p. 6 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 132. State v. Ventress, 01-1165, p. 7 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 384. A defendant’s record of non-violent offenses should not be the sole reason, or even the major reason, for declaring a mandatory minimum sentence excessive. State v. Johnson, 709 So.2d at 676. The Louisiana Supreme Court has explained:

This is because the defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses.

State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339, 343.

There must be substantial evidence to rebut the presumption of constitutionality. A trial court may not depart from the legislatively mandated minimum, because of some subjective impression or feeling about the defendant. State v. Bell, 97-1134, p. 7 (La.App. 5 Cir. 2/25/98), 709 So.2d 921, 927, writ denied, 98-792 (La.9/16/98), 721 So.2d 477. The Louisiana Supreme Court has cautioned that a departure downward from a mandatory minimum sentence should only be made in rare cases. State v. Johnson, 709 So.2d at 677.

[17The penalty for a second degree murder conviction is a sentence of life in prison at hard labor without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:30.1(B). The attempt provision states that “if the offense so attempted is punishable by death or life imprisonment, [the defendant] shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.” LSA-R.S. 1457(D)(1). Therefore, the sentencing exposure for the offense of attempted second degree murder is ten to fifty years. State v. Robicheaux, 03-1063, p. 5 (La.App. 5 Cir. 12/30/03), 865 So.2d 149, 153, writ denied, 04-0381 (La.6/25/04), 876 So.2d 830.

In the present case, the defendant was sentenced to the statutory minimum sentence for attempted second degree murder. The trial judge stated that he considered the defendant’s prior and criminal records, the serious nature of the crime, the defendant’s demeanor and testimony, and the pre-sentence investigation before sentencing the defendant. In his appeal, as well as at the sentencing hearing, the defendant only argues that his employment and residential history, and his lack of criminal convictions, not arrests, makes him exceptional. A review of Louisiana jurisprudence revealed no case in which a stable employment and residential history were found to be factors that made a defendant exceptional. The defendant has failed to carry his burden of proving a downward departure from the mandatory minimum ten-year sentence was warranted.

This Court has previously upheld 25 and 50 year sentences imposed on defendants convicted of attempted second degree murder, who lacked prior felony convictions. See State v. Napoleon, 01-1222, pp. 2-5 (La.App. 5 Cir. 2/26/02), 811 So.2d 980, 981-984 and State v. Stacker, 836 So.2d at 608. We find that this allegation of error is without merit.

The record has been reviewed for errors patent in accordance with LSA-C.Cr.P.art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). We note the following.

First, the bill of information charged the defendant, in count one, with attempted second degree murder, but erroneously stated that it was a violation of LSA-R.S. 14:30.1. In addition, the bill of information charged the defendant, -in count two, with attempted armed robbery, but erroneously stated that it was a violation of LSA-R.S. 14:64. On the day of trial, the State amended the bill of information to reflect the correct statutory violations. However, while defense counsel stated he did not have an objection to the amendment, the record does not reflect that defendant was arraigned on the amended bill of information. LSA-C.Cr.P. art. 555 provides that a “failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.” Since the defendant proceeded to trial without an objection, any irregularity in the arraignment was waived. State v. Charles, 00-1586 (La.App. 5 Cir. 6/27/01), 790 So.2d 705, 712.

Second, the commitment/minute entry indicates that the trial court informed the defendant that he had two years after his judgment of conviction and sentence became final to seek post-conviction relief. However, the sentencing transcript indicates that the trial court incorrectly informed the defendant that he had two years to file for post-conviction relief. LSA-C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. It is well settled that when the 11fltranscript and a minute entry conflict, it is the transcript that prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). See, State v. Wilkinson, 00-339, p. 13 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 771, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494. Therefore, we remand this case and order the trial court to inform the defendant of the correct prescriptive period for filing for post-conviction relief by sending appropriate written notice to the defendant after the rendition of this Court’s opinion and filing written proof that the defendant received the notice in the record. State v. Hutchinson, 02-60, (La.App. 5 Cir. 5/15/02), 817 So.2d 500, 509.

Accordingly, we affirm the defendant’s conviction and sentence. We remand the case to the district court with instructions for the trial court to correctly inform the defendant of the prescriptive provisions for seeking post-conviction relief.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED.


author: GREMILLION, Judge.

text:
    Phyllis GREEN v. Edwin SPRIGGS, et al.
    No. 05-1105.
    Court of Appeal of Louisiana, Third Circuit.
    April 26, 2006.
    Rehearing Denied June 28, 2006.

      Jarvis J. Claiborne, Opelousas, LA, for PlaintifftAppellant, Phyllis Green.
    Geraldine Fontenot Roberts, Pride Justin Doran, Williams & Doran, PLLC, Lafayette, LA, for Defendants/Appellees, Fidelity & Deposit Cos. of Maryland, Edwin Spriggs.
    J. Ricky LaFleur, Abbeville, LA, for Intervenor/Appellee, J. Ricky LaFleur.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

hThe plaintiff, Phyllis Green, appeals rulings made by the trial court and damage awards and findings of fault made by the jury in relation to an automobile accident. The trial court excluded Green’s submissions of evidence finding that both were untimely. Further, Green argues that the jury erred by awarding her nothing for loss of enjoyment of life, insufficient damages for permanent disfigurement, and in finding her twenty-five percent at fault in causing the accident. We affirm the judgment as amended.

FACTS

On August 24, 2000, Green was traveling west on the two-lane Louisiana Highway 14 in Vermilion Parish, just outside of Abbeville, Louisiana. Ahead of her was a vehicle driven by Edwin Spriggs. Spriggs was test-driving a vehicle owned by Gulf State Bank and insured by the Fidelity and Deposit Companies (F & D). Although the testimony is contradictory as to what exactly occurred, Green attempted to pass Spriggs just as he executed a left turn into a private driveway. The resulting impact caused Green’s vehicle to flip several times before coming to rest headed in an easterly direction. Spriggs’ vehicle was spun around by the impact and also came to rest headed east.

Subsequently, Green filed suit against Spriggs and F & D (referred to collectively as Spriggs) seeking damages for injuries she suffered in the accident. Spriggs answered the petition and requested a trial by jury. The matter proceeded to a jury trial, after which it awarded Green $49,998.32 in damages, but found her 1 ^twenty-five percent at fault in causing the accident. Judgment was rendered in this matter on November 12, 2004. This appeal by Green followed.

ISSUES

On appeal, Green raises four assignments of error. She claims that the trial court erred in excluding the testimony of Dr. Kenneth Bouillion, a psychologist, and in excluding photographs of her scars caused by broken glass. She further argues that the jury erred in failing to award her damages for loss of enjoyment of life and sufficient damages for the permanent disfigurement she suffered as a result of the accident. Finally, she argues that the jury erred in finding her twenty-five percent at fault in causing the accident.

PRELIMINARY RULINGS

In her first two assignments of error, Green argues that the trial court erred in excluding evidence she would have presented during her case-in-chief. First, she argues that the trial court erred in excluding a report by Dr. Bouillion, pertaining to the mental anguish she suffered due to disfiguring scars caused by glass broken during the accident. Next, she claims that the trial court erred in excluding all photographs of her scarring taken after September 2001, including photographs taken three days prior to the start of trial.

The trial court excluded both the report and the photographs as being presented untimely. Although Green’s counsel informed Spriggs of his intention to add Dr. Bouillion to the previously submitted witness list, via a March 24, 2004 letter, and included his report as an exhibit in his pretrial memorandum of March 30, 2004, he did not actually receive Dr. Bouillioris report until April 1, 2004. A copy of that ^report was faxed to Spriggs’ counsel that same day. The excluded photographs were taken on December 31, 2001, June 3, 2002, March 24, 2003, and April 2, 2004, and were presented by Green’s counsel for submission into evidence on April 6, 2004, the second day of the trial. However, none of these photographs were ever provided to Spriggs prior to trial.

With regard to Dr. Bouillioris report, Green argues that it was furnished to Spriggs within the sixty-day deadline provided by the trial court’s scheduling order. Although a copy of the trial court’s order was not included in the record, a standard scheduling order was obtained from the trial court, which provides for the “FINAL EXCHANGE OF COPIES OF REPORTS OF TREATING PHYSICIANS” at sixty days prior to trial.

It should be noted that trial in this matter was originally scheduled for January 26, 2004. On January 14, 2004, Green filed a Motion to Withdraw and Substitute Counsel of Record so that she could substitute her current counsel for her original counsel. On January 16, 2004, the trial court granted her motion and continued the trial in this matter until April 5, 2004. The trial court’s scheduling order was evidently sent out on February 6, 2004, which required the exchange of reports by treating physicians at sixty days prior to trial. On March 31, 2004, Green filed her pretrial memorandum, which included Dr. Bouillioris report as an exhibit. A copy of this report was sent to Spriggs on April 1, 2004.

Green argues that the report was sent to Spriggs within the sixty-day deadline mandated by the trial court’s scheduling order. Although Green’s counsel may have submitted the report within sixty days of the trial court’s February 6, 2004 |4scheduling order, we find that he has misinterpreted the order’s language. The order requires the exchange of reports sixty days prior to the date of trial, not within sixty days of the order’s receipt.

La. C.C.P. art. 1551 gives a court wide discretion to provide for implementation of a pretrial order and to insure that the items of the pretrial order are enforced. The theory inherent in pretrial procedure is the avoidance of surprise and the allowance of the orderly disposition of the case. The pretrial order controls the subsequent course of action, though it can be modified at trial to prevent substantial injustice. Vernon v. Wade Correctional Center, 26,053 (La.App.2d Cir.8/19/94), 642 So.2d 684. The trier of fact is given broad discretion to determine whether to modify a pretrial order. This discretion is controlled by the principle that it must be exercised to prevent substantial injustice to the parties who have relied on the pretrial rulings or agreements and structured the preparation and presentation of their cases accordingly. Absent an abuse of discretion, the trier of fact’s decision will be upheld. Vernon v. Wade Correctional Center, supra.

Robinson v. Apria Healthcare, Inc., 38,438, p. 13 (La.App. 2 Cir. 5/27/04), 874 So.2d 418, 426.

In this instance, the trial court excluded Dr. Bouillion’s report as its submission violated the scheduling order and because its late presentation denied Spriggs the right to depose Dr. Bouillion on its contents and the right of cross-examination during the trial. Although Green’s counsel did come to this fight late, we find that he still had sufficient time to obtain a psychological evaluation of Green and to get that information to Spriggs. To allow the report into evidence would result in a substantial injustice to Spriggs for the very reasons enunciated by the trial court. Accordingly, we find that the trial court did not abuse its vast discretion in excluding Dr. Bouillion’s report from evidence.

We hold likewise with regard to the excluded photographs. The trial court excluded those photographs as Green failed to provide them to Spriggs prior to |RtriaI. Once again, this decision was within the trial court’s discretion and we find no abuse of that discretion. Accordingly, these two assignments of error are without merit.

DAMAGES

In her third assignment of error, Green argues that the jury awarded her insufficient damages for permanent disfigurement and erred in awarding her zero damages for loss of enjoyment of life.

A jury’s award of damages is reviewed in light of the standard set out in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, we first must determine if the jury’s award for the particular injury and its effect under the particular circumstances on this plaintiff is a clear abuse of the jury’s “much discretion.” Id. at 1260. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Id. at 1261.

Disfigurement

Following the accident, Green suffered scars and lesions as a result of glass parti-cíes from the windows of her vehicle which embedded in her skin. As the particles worked their way out of her body, they caused the skin to become infected and irritated, resulting in open, draining wounds, which healed into round hyper-pigmented areas. Dr. Darrell Henderson, a plastic and reconstructive surgeon, testified that approximately 400 of these were located over large areas of Green’s four _J^extremities and the front of her trunk at his initial examination on September 19, 2001. He described these areas as being-five to six times darker than her normal skin color. Dr. Henderson further stated that this scarring was permanent and markedly disfiguring. Although he testified that the initial scarring was related to the automobile accident, he stated that Green started developing lesions in areas where she was not initially injured; he related the cause of these to something other than the accident. However, as of June 3, 2002, he could still feel sharp little spicules of glass in her skin.

Dr. Daniel Dupree, a dermatologist, examined Green approximately three years after her accident, upon a referral by Dr. Henderson. He noted numerous oval to round, thickened hyper-pigmented areas on her arms, legs, torso, and neck. He diagnosed her with Lichen Simplex Chron-icus, associated with hyper-pigmentation, and multiple cutaneous excoriations. Dr. Dupree disagreed with Dr. Henderson that these lesions were caused by embedded glass, although he did not offer an opinion as to whether she did indeed have embedded glass in her skin after the accident. He felt that the lesions were self-induced by chronic scratching, rubbing, and picking; he did not feel that they were consistent with foreign body granulomas. Dr. Dupree felt that Green’s condition was caused by stress she was under from work, although he admitted that an automobile accident could result in behavior which would lead to self-induced lesions.

After reviewing the photographs taken of Green and noting the numerous hyper-pigmented areas on her extremities, we find that the jury abused its discretion by awarding only $10,000 in damages for disfiguration. In Bonin v. Ferrellgas Inc., 02-1031, p. 23 (La.App. 3 Cir. 8/6/03), 855 So.2d 781, 803, reversed in part on other grounds, 03-3024 (La.7/2/04), 877 So.2d 89, we defined disfigurement as “that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner.” The photographs show numerous circular areas on Green’s legs, arms, back, and torso, which are definitely darker than her normal skin tone and are easily discernable. As this scarring is permanent, we find that it impairs Green’s appearance such that it is disfiguring. After reviewing other cases involving scarring and taking into consideration the amount of scarring found on her body, we find that the lowest amount that the jury should have awarded her is $30,000. Accordingly, the trial court’s judgment is amended to award Green $30,000 in damages for disfigurement.

Loss of Enjoyment of Life

In Basco v. Liberty Mutual Insurance Co., 05-143 (La.App. 3 Cir. 8/17/05), 909 So.2d 660, we noted that damages for loss of enjoyment of life are recoverable upon proof that a plaintiffs lifestyle has been detrimentally altered or that she was forced to give up activities as a result of her injury.

Prior to the accident, Green testified that she enjoyed fishing, dancing, walking, jogging, trail rides, and participating in church activities. She also stated that she liked wearing shorts all the time. After the accident, she stated that she curtailed her dancing, walking, and jogging due to pain in her right knee. However, she said that her knee bothers her once in a while now, depending on her activity. She also testified that she stopped wearing shorts, except around her house, because she was afraid someone would see the scarring on her body.

| RClara Landry, Green’s friend, testified that prior to the accident, they would go out and eat and fish together. After the accident, she stated that Green stopped going out because she was embarrassed about how her body looked.

Green was awarded nothing for her loss of enjoyment of life. After reviewing the evidence, we cannot say that the jury erred in finding that she failed to prove that the accident detrimentally altered her life. The evidence reveals only that she no longer wears shorts in public. With regard to her physical activities, Green testified that her knee was her biggest problem in curtailing her jogging, dancing, and fishing. However, she admitted that this condition had mostly resolved itself by the time of trial. Accordingly, we find that it was reasonable for the jury to find that Green’s life was not detrimentally altered as a result of her injuries. The judgment of the trial court awarding her zero damages for loss of enjoyment of life is affirmed.

FAULT

In her final assignment of error, Green argues that the jury erred in finding that she was twenty-five percent at fault in causing this accident. As this is a finding of fact, it is reviewed pursuant to the manifest error — clearly wrong standard of review. Stobart v. State, through Dep’t Transp. and Dev., 617 So.2d 880 (La.1993). In reviewing the record, we find that the jury was presented with differing views of the evidence pertaining to the issue of fault.

The jury heard evidence that Green was attempting to pass two cars when the accident occurred. In a telephone statement to Allstate Insurance Company four days after the accident, Green indicated the presence of a white vehicle in between her’s and Spriggs’ vehicles prior to the impact. She said that the vehicle was|flnot involved in the accident. She further said that Spriggs had started slowing down at the time she tried to pass him. When questioned, Green testified that she was heavily medicated when she gave the statement, that she did not recall giving the statement, and that no such vehicle was present prior to the accident. However, despite her medicated state, she correctly related to the interviewer information pertaining to personal data and her speed, direction of travel, and visual awareness prior to the impact.

Spriggs testified that he was traveling at forty-five to fifty miles per hour and had activated his left turn signal a hundred feet prior to turning into a private driveway. He stated that he looked into his rear-view mirror and did not see Green’s vehicle. He said that he never saw her attempting to pass his vehicle and that he had completed his left-hand turn when the impact occurred.

Louisiana State Trooper Dexter Bo-urque, the investigating officer, testified that a witness said there were at least four cars in line when Green attempted her passing maneuver; however, neither Spriggs nor Green mentioned the presence of any other vehicles. His report did not state whether Spriggs had his turn signal on prior to the accident, nor could he independently recall such. He further stated that Spriggs related that he never saw Green’s vehicle prior to impact.

Based on these conflicting views, we cannot say that it was unreasonable for the jury to find that Green bore some of the fault in causing the accident. The jury was in the best position to evaluate the testimony and the evidence and, considering the conflicting testimony it heard from Green herself, we cannot say that it erred in | infinding her twenty-five percent at fault. Accordingly, the judgment of the trial court is affirmed and this assignment of error is dismissed as being without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is amended to award the plaintiff-appellant, Phyllis Green, $30,000 in damages for disfigurement. The judgment is affirmed in all other respects. The costs of this appeal are assessed fifty percent to Green and fifty percent to the defendants-appellees, Edwin Spriggs and Fidelity and Deposit Companies.

AFFIRMED AS AMENDED.