author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. James Cody TILL, Appellant.
    No. 41,659-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.
    Louisiana Appellate Project by Sherry Watters, for Appellant.
    Jerry L. Jones, District Attorney, Brian Harkins, Assistant District Attorney, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   MOORE, J.

|, James Cody Till, the defendant herein, pled guilty to simple robbery and was sentenced to serve seven years imprisonment at hard labor. The defendant now appeals his sentence as constitutionally excessive. He also argues that the trial court failed to sufficiently tailor his sentence and improperly considered the sentencing range for the charged offense. Finding no merit to the defendant’s assignment of error and arguments, we affirm.

The defendant was originally charged by bill of information with the armed robbery of a store clerk. The defendant entered the Easy Mart Store located at 7900 Des-iard Street in Monroe, Ouachita Parish, on December 14, 2001, armed with a metal tire iron. He struck the clerk in the head with the metal tire iron and took a pack of Doral menthol cigarettes. After he was apprehended, the defendant made a post-Miranda recorded statement admitting his crime to the police.

Pursuant to a plea bargain agreement, the defendant pled guilty to simple robbery. A pre-sentence investigation report was ordered, and no agreement was made regarding any cap on the defendant’s sentence. The trial court thoroughly advised the defendant of his rights as per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and made a diligent effort to determine his competence, literacy and understanding.

Before sentencing the defendant, the trial court noted that it had considered letters written on the defendant’s behalf and the defendant’s criminal and social history. The court allowed the defendant the opportunity to speak. The defendant expressed his remorse for his crime, | s>and his desire to treat his addictions and prove himself to society by supporting his wife, child and stepchild. After discussing aggravating and mitigating factors, and the facts of the crime, including the physical harm inflicted upon the victim with the tire iron, the trial court sentenced the defendant to the maximum sentence of seven years imprisonment at hard labor. The trial court advised the defendant of his right to post-conviction relief, and advised of the time limitations for post-conviction relief. The defendant was granted an out-of-time appeal.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2 Cir. 6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, 13employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2 Cir. 04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0886 (La.9/20/96), 679 So.2d 430. Absent a showing |4of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2 Cir. 5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App. 2 Cir. 1/28/04), 865 So.2d 280, writ denied, 04,057 (La.9/24/04), 882 So.2d 1165.

The record shows that the trial court carefully evaluated the defendant’s background including any aggravating and mitigating circumstances in this case, thereby complying with La. C. Cr. P. art. 894.1. The court tailored its sentence to the gravity of this offense and this offender. Specifically, the court noted that while the defendant expressed to the court that he had changed because of religious beliefs, the court was nevertheless concerned about the defendant’s recidivism based upon the report in the pre-sentence investigation regarding the defendant’s substantial juvenile history of delinquency. Our review substantiates the trial court’s conclusions regarding the defendant’s troubled past.

Furthermore, although the defendant is a first felony offender who was given the maximum sentence for the crime of simple robbery, he received tremendous benefit from his plea bargain agreement. His sentencing exposure was reduced from a mandatory minimum sentence of 10 years and a maximum sentence of 99 years without benefits for armed robbery because he was allowed to plead guilty to the reduced charge of simple robbery.

Hence, finding no manifest abuse of discretion, this court may not set aside this sentence as excessive. See State v. Guzman, supra; State v. June, supra; State v. Lingefelt, supra. Accordingly, the defendant’s sentence is affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Michael JONES, Plaintiff-Respondent, v. Joseph FOSTER, et al., Defendants-Applicants.
    No. 41,619-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Mayer, Smith & Roberts, L.L.P. by Deborah Shea Baukman, Shreveport, for Applicants Nelson Tree Service, Inc. and Liberty Mutual Ins.
    Nelson, Zentner, Sartor & Snellings by Thomas G. Zentner, Jr., Monroe, for Inter-venors Ouachita Parish Sheriffs Office and Clarendon National Ins.
    Neal G. Johnson, Monroe, for Respondent.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

|! Nelson Tree Service and its commercial general liability insurer, Liberty Mutual Insurance Company (collectively referred to as “Nelson Tree Service” herein), seek supervisory review of the denial of their motion for summary judgment. We now grant the writ and the motion for summary judgment, and remand for further proceedings.

Factual and Procedural Background

The accident occurred at 5:30 pm on Saturday, May 22, 2004. The plaintiff, Michael Jones, was driving his Ouachita Parish Sheriffs cruiser, a 2002 Crown Victoria, south on Old Hwy. 15 in the Claiborne area of West Ouachita Parish. As he neared the “T” intersection with Hillside Park North, a Honda ATV 4-wheeler barreled through the stop sign at a high rate of speed, made a wide right turn and ran into the front bumper of Jones’s Crown Victoria. The Crown Victoria was totaled and Jones was injured.

The driver of the 4-wheeler, Joseph Foster, admitted to state police that he was drunk and had two prior DWIs. He also disclosed that the 4-wheeler belonged to his employer, Nelson Tree Service.

Jones filed this suit in May 2005 against Foster, Nelson Tree Service and Liberty Mutual, seeking general damages, medical expenses and lost wages and earning .capacity. The Ouachita Parish Sheriffs Office (OPSO) and its insurer intervened, seeking property damage for the loss of the Crown Victoria. Foster, who never returned to work after the accident and left no forwarding address, was never served.

Nelson Tree Service filed a motion for summary judgment, urging in essence that Foster was not in the course and scope of his employment at the |?jtime of the accident and had no authority to drive the 4-wheeler. In support, they attached the affidavit of Randall K. Gray, Nelson Tree Service’s regional manager. Gray stated that Foster was indeéd an employee, and his foreman was a relative of Foster’s, Fred Brown; the 4-wheeler had been issued to Brown for business purposes only; at the time of the accident, Foster was neither on assignment nor on call, but attending a family cookout at Brown’s house; and Foster’s use of the 4-wheeler was a violation of company policy.

The Ouachita Parish Sheriffs Office and its insurer opposed the summary judgment, urging that contrary to La. C.C.P. art. 967, Gray did not have personal knowledge of many of the facts stated in his affidavit. In support, they offered Gray’s deposition, in which he admitted that he works out of the regional office in Hammond, Louisiana, was not present at the scene of the accident, and got most of his information about the incident from Fred Brown, notably that Brown did not authorize Foster to use the 4-wheeler. (He was certain, however, that Nelson Tree Service was not working on weekends.) OPSO urged that because Gray lacked firsthand knowledge, his affidavit did not establish anything. Dominio v. Folger Coffee Co., 2005-0357 (La.App. 4 Cir. 2/15/06), 926 So.2d 16; Roberts v. Orpheum Corp., 93-1224 (La.App. 4 Cir. 12/30/93), 630 So.2d 914.

Later, Jones also opposed the summary judgment, largely adopting OPSO’s argument. He also contended that Liberty Mutual’s policy covered Foster’s acts under the “mobile equipment” definition.

laNelson Tree Service argued that both by affidavit and deposition, Gray testified that the company was not working on weekends, so it was not possible for Foster to be in the course and scope of his employment on a Saturday afternoon. Similarly, not even the foreman, Brown, had authority to use the 4-wheeler on the weekend, so he obviously could not authorize Foster to use it then. Nelson Tree Service contended that neither the plaintiff nor the intervenors had tendered any evidence to create a genuine issue of material fact.

The district court denied the motion for summary judgment in a written ruling that noted, “genuine issues of material fact remain at this time in that the ingredient of ‘personal knowledge’ required under La. C.C.P. art. 967 appears to be wanting at this time.”

Nelson Tree Service applied for supervisory review, which this court referred to the docket.

General Principles

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Foley v. Sportran, 40,624 (La.App. 2 Cir. 5/17/06), 930 So.2d 368. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. The motion should be granted if the pleadings, depositions, answers to interrogatories Land admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B.

Supporting and opposing affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” La. C.C.P. art. 967 A. Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source. Barnes v. Sun Oil Co., 362 So.2d 761 (La. 1978); Wells v. Red River Parish Police Jury, 39,445 (La.App. 2 Cir. 3/2/05), 895 So.2d 676, writ not cons., 2005-0854 (La.5/13/05), 903 So.2d 438.

The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court the absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Foley v. Sportran, supra. If the plaintiff then fails to produce such evidence, then summary judgment is proper. King v. Phelps Dunbar LLP, 98-1805 (La.6/4/99), 743 So.2d 181.

Appellate review of the grant or denial of a summary judgment is de novo. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Row v. Pierremont Plaza LLC, 35,796 (La.App. 2 Cir. 4/3/02), 814 So.2d 124, writ denied, 2002-1262 (La.8/30/02), 823 So.2d 952.

Discussion: Sufficiency of Affidavit

By its first assignment of error, Nelson Tree Service urges that there was no evidence that Foster was in the course and scope of his employment at the time of the accident. It does not specifically address the issue cited by the district court, i.e., the lack of personal knowledge in Gray’s affidavit, but asserts, “Gray personally knows that Nelson Tree Service performed no work on weekends.” Further, there was no evidence that Foster was using the 4-wheeler to benefit Nelson Tree Service, or was under the latter’s control or motivated by its concerns at the time of the accident. In the absence of any evidence to support a finding of respondeat superior, La. C.C. art. 2320, Ermert v. Hartford Ins. Co., 589 So.2d 2 (La.1991), Nelson Tree Service contends it was entitled to summary judgment.

Jones reiterates that Gray lacked personal knowledge of the facts surrounding the accident. In deposition, Gray admitted he learned from Fred Brown that Foster was riding the 4-wheeler off company time, and had no personal knowledge that Foster had ever received a copy of the employee handbook outlining company policy for work vehicles. Jones submits that Gray’s secondhand knowledge does not satisfy Art. 967, and leaves open the genuine issue of whether Foster really was serving his employer’s interests at the time of the accident. Roberts v. Orpheum Corp., supra.

Affidavits to support or oppose a motion for summary judgment must be based on personal knowledge in accordance with La. C.C.P. art. 967 A. [6On de novo review we find that portions of Gray’s affidavit were not based on personal knowledge, but rather on what he heard from Brown, the local foreman. However, other significant portions were clearly within his personal knowledge and included facts about which he was competent to testify. The district court erred in not considering those latter portions. Panameno v. Louisiana Riverboat Gaming Partnership, 36,172 (La.App. 2 Cir. 10/23/02), 830 So.2d 489. As the regional manager, Gray had personal knowledge that employees would not be working on Saturday. There is nothing in either the affidavit ox-deposition that would undermine his direct, personal knowledge of this major term of employment.

The competent portions of Gray’s affidavit and deposition show the lack of evidence necessary to support an essential element of Jones’s case. Ermert v. Hartford Ins. Co., supra. The burden therefore shifted to Jones and the intervenors to produce some evidence in support of their claim; they failed to do so. For this reason, the district court should have granted summary judgment in favor of Nelson Tree Service.

Permissive Use

By its second and third assignments of error, Nelson Tree Service urges that there was no evidence to trigger insurance coverage under the omnibus clause. La. R.S. 32:900 B(2). The party claiming coverage has the burden of proving express or implied permission to use the vehicle. Perkins v. McDow, 92-2192 (La.2/22/93), 615 So.2d 312; Wade v. Autoland Inc., 32,903 (La.App. 2 Cir. 5/26/00), 767 So.2d 766, writ denied, 2000-2180 (La.10/13/00), 771 So.2d 651. Specifically, Nelson Tree Service urges, |7Gray’s deposition establishes that Foster had no permission whatsoever to use the company 4-wheeler.

Jones contends that in the context of an omnibus clause, “permission” must be given a wide and liberal meaning in determining coverage. Norton v. Lewis, 92-2178 (La.9/3/93), 623 So.2d 874; Arceneaux v. Norman, 05-1536 (La.App. 3 Cir. 5/24/06), 931 So.2d 484, writ denied, 2006-1629 (La.10/6/06), 938 So.2d 76. According to Jones, Nelson Tree Service “never disputed that Mr. Foster had the initial permission” to operate the 4-wheeler, but only contended that he violated the scope of his permission by using it off hours. Jones submits that this leaves open the genuine issue of permissive use.

Nelson Tree Sex-vice correctly argues that the plaintiff has the burden of proving express or implied permission of the insured in order to obtain coverage under the omnibus clause. Manzella v. Doe, 94-2854 (La.12/8/95), 664 So.2d 398. The fact of initial permission must be proved as any other fact by a preponderance of the evidence without the aid of any presumptions. Norton v. Lewis, supra. Gray’s deposition established that Nelson Tree Service entrusted the 4-wheeler to Brown solely for work authorized by management specifically for customers, no such work was performed on weekends, and Brown’s use of the vehicle was limited to business purposes. In short, there was no initial permission for Brown to use the 4-wheeler at this time. Campbell v. Verrett, 02-0695 (La.App. 3 Cir. 10/30/02), 829 So.2d 1141, writ denied, 2002-2911 (La.2/14/03), 836 So.2d 116.

IsWith this showing, the burden shifted to Jones and the intervenors to offer evidence of Foster’s permissive use of the vehicle; nothing was offered to this effect. Admittedly, the summary judgment evidence is not quite as strong as it was in Campbell v. Verrett, supra. In that case, the driver admitted in deposition that he lacked permission to borrow the truck to attend a party; in the instant case, Foster did not testify, as he was never located. Nonetheless, the absence of evidence will not defeat Nelson Tree Service’s well-supported motion. The district court should have granted summary judgment.

Conclusion

For the reasons expressed, we grant the writ and make it peremptory; grant summary judgment in favor of the applicants, Nelson Tree Service and Liberty Mutual Insurance Company; and remand the case for further proceedings. Costs are to be paid by the respondent, Michael Jones.

WRIT GRANTED; SUMMARY JUDGMENT GRANTED; CASE REMANDED.


author: SEXTON, J.

text:
    STATE of Louisiana, Appellee, v. James Dave SHIRLEY, Appellant.
    No. 41,608-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Louisiana Appellate Project by Annette Roach, for Appellant.
    Jerry L. Jones, District Attorney, George D. Ross, Assistant District Attorney, for Appellee.
    Before BROWN, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

| defendant, James Dave Shirley, pled guilty to aggravated incest and was sentenced to 20 years’ imprisonment at hard labor, without benefit of probation, parole or suspension of sentence. He now appeals, assigning sentencing errors and ineffective assistance of counsel. For the reasons stated herein, Defendant’s conviction is affirmed, his sentence is amended to delete the denial of parole eligibility and the sentence, as amended, is affirmed.

FACTS

The victim, Defendant’s 14-year-old stepdaughter, reported to police that she and Defendant had an ongoing sexual relationship beginning in March 2004 and ending in October 2004. The relationship consisted of various sex acts, including partial vaginal and anal intercourse and oral sex, occurring in both Ouachita and West Carroll Parishes. Defendant was over the age of 30 and married to the victim’s mother at the time of the offenses. He was charged by bill of information with four counts of aggravated incest. After being properly advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and waiving those rights, Defendant pled guilty to one count of aggravated incest pursuant to a plea bargain agreement with the State. A pre-sentence investigation report was ordered.

At sentencing, the trial court allowed family members the opportunity to speak. None responded. The trial court stated that it had considered the applicable sentencing provisions contained in La. C. Cr. P. art. 894.1 and reviewed the presentence investigation report, including the fact that 1 ..Defendant is a first-felony offender. It noted and set forth Defendant’s “substantial adult criminal record.” The trial court further noted Defendant’s social history, including his claim that he was abused by his stepfather at an early age. The trial court extensively discussed the “graphic details” of Defendant’s conduct with the victim, which clearly showed the grave and heinous nature of the offenses and the ongoing efforts of Defendant in exploiting this young victim. The court noted that Defendant appeared to show no remorse for his crime and that he blamed the victim for intentionally initiating sexual contact during “wrestling.” The trial court found none of the mitigating factors listed in La. C. Cr. P. art. 894.1 to be applicable. Based on the aggravating facts enumerated, the trial court found that Defendant had been shown sufficient leniency through the plea bargain agreement. Finding an undue risk that Defendant would commit another crime during a period of suspended sentence or probation, that he is in need of correctional treatment or a custodial environment that can be provided most effectively by commitment to an institution and that a lesser sentence will deprecate the seriousness of the crime, the trial court sentenced Defendant to serve 20 years’ imprisonment at hard labor. The remaining three counts were dismissed at sentencing, pursuant to the plea agreement. Defendant now appeals.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred in finding no mitigating factors were present in this case and in failing to consider the applicable mitigating factors, in violation of La. C. Cr. P. art. 894.1.

La. C. Cr. P. art. 881.1(E) provides:

| .-¡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 excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

No motion to reconsider was filed in the case sub judice; therefore, La. C. Cr. P. art. 881.1 applies to Defendant’s sentence. This article precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. In such a circumstance, as here, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App. 2d Cir.2/25/98), 707 So.2d 164. Nevertheless, we will briefly address Defendant’s argument in this regard.

Defendant recognizes that the record contains extensive considerations by the trial court; however, he argues that the trial court failed to give proper consideration to mitigating factors. He emphasizes his lack of a substantial criminal record and discusses the details of that record. Defendant points to factors including that the victim is not a blood relative, was over the age of 12 at the time of the offenses and consented to the sexual conduct. Defendant argues that he is not the worst type of offender to justify the imposition of the maximum sentence.

The record shows that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge thoroughly reviewed the | ¿factors he considered in sentencing Defendant, specifically noting that he considered the mitigating factors of article 894.1 and found none applicable. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. The important elements, such as Defendant’s personal history, prior criminal record, seriousness of offense and the likelihood of rehabilitation, were considered. See State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

This assignment of error is meritless.

Assignment of Error Number Two (verbatim): The maximum sentence imposed on this first felony offender is cruel, unusual and excessive, and in violation of Article I, § 20 of the Louisiana Constitution of 1974 as it serves no useful purpose of rehabilitation.

A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are ^viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App. 2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, a court of appeal may not set aside a sentence as excessive. See State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App. 2d Cir.1/28/04), 865 So.2d 280, writ denied, 04-0597 (La.9/24/04), 882 So.2d 1165.

The record reflects that the trial court did not abuse its broad discretion in sentencing Defendant to the maximum sentence for aggravated incest, considering the scope and nature of the sexual conduct, the long-lasting and detrimental effects on his young victim and Defendant’s personal and criminal history. He has received a significant reduction in potential exposure to confinement through a plea bargain where three counts of aggravated incest were dismissed. Defendant’s total sentencing exposure on four counts of aggravated incest was 80 years, reduced to a | impossible 20-year maximum on one count. Thus, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. See State v. Black, supra. We find no manifest abuse of that discretion and, therefore, will not set aside this sentence as excessive. See State v. Guzman, supra; State v. June, supra; State v. Lingefelt, supra.

This assignment is, therefore, without merit.

Assignment of Error Number Three (verbatim): Trial counsel rendered ineffective assistance of counsel for failing to file a motion to reconsider sentence in this case.

Defendant argues that his trial counsel should have filed a motion to reconsider sentence urging the excessiveness of the sentence because of the trial court’s failure to consider mitigating factors. He argues that he was prejudiced by this error. We disagree.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App. 2d Cir.6/21/00), 764 So.2d 1164. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id. When the record is sufficient, as it is here, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App. 2d Cir.9/27/95), 661 So.2d 673.

The mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A basis for ^ineffective assistance of counsel may only be found if a defendant can “show a reasonable probability that but for counsel’s error, his sentence would have been different.” State v. Allen, 03-1205 (La.App. 5th Cir.2/23/04), 868 So.2d 877. See also State v. White, 03-1535 (La.App. 3d Cir.4/28/04), 872 So.2d 588.

Considering the discussion regarding Defendant’s sentence contained herein, we conclude that Defendant has failed to prove that, but for trial counsel’s failure to file a motion to reconsider sentence, the sentence would have been different. State v. Allen, supra. The record shows that the sentencing factors set forth in La. C. Cr. P. art. 894.1 were extensively considered, as discussed supra, and that Defendant’s sentence was tailored to both the offense and the offender. Again, we emphasize that Defendant has received a significant reduction in potential exposure to confinement through a plea bargain where three counts of aggravated incest were dismissed.

This assignment of error is meritless.

ERROR PATENT

The trial court’s judgment reflects that Defendant’s sentence is to be served without benefit of probation, parole or suspension of sentence. La. R.S. 14:78.1 does not provide for the denial of such benefits. In State v. Moseley, 36,550 (La.App. 2d Cir.10/23/02), 830 So.2d 354, this court explained:

The statute of conviction, La. R.S. 14:78.1, does not provide for the denial of parole, probation, or suspension of sentence. As two other courts have already noted, “A sentence upon a conviction of aggravated incest, La. R.S. 1478.1, is not |srequired to be served without these benefits.” State v. Terrebonne; 2001-2632 (La.App. 1st Cir.6/21/02), 822 So.2d 149; State v. May, 00-43 (La.App. 5th Cir.5/17/00), 760 So.2d 1260. However, under La. R.S. 15:538 A and B, the denial of Moseley’s eligibility for probation, parole, or suspension of sentence is self-executing unless he is prohibited from engaging in certain work which would expose him to minor children.

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C. Cr. P. art. 882 A. Defendant’s sentence is, therefore, amended to delete that portion denying him parole eligibility, noting that La. R.S. 15:538 is self-executing regarding such denial.

DECREE

For the foregoing reasons, the conviction of James Dave Shirley is affirmed. His sentence is amended to delete ineligibility of parole and, as amended, is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . Defendant's appellate counsel assigns trial counsel's failure to file the motion as error and ineffective assistance of counsel, addressed infra.


text:
    William R. McDANIEL and Nell McDaniel, Plaintiff-Appellants, v. Alexander HAMILTON, Kenneth J. Smith, Farm Bureau Insurance Company and XYZ Insurance Co., Defendant-Appellees.
    No. 41,588-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      M. Randall Donald, West Monroe, for Appellants.
    Cotton, Bolton, Hoychick & Doughty, L.L.P. by David P. Doughty, Rayville, for Appellees.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

11Appellants, William R. McDaniel and Nell McDaniel, appeal a judgment awarding general damages of $4,000.00 and $2,000.00 respectively. For the reasons assigned below, the judgment of the trial court is affirmed.

FACTS

William R. McDaniel and Nell McDaniel filed suit in the Sixth Judicial District Court against Alexander Hamilton, his employer, Kenneth J. Smith and Smith’s insurer, Farm Bureau Insurance Company, for injuries sustained in-an 'accident on U.S. Highway 65 on August 27, '2003. The McDaniels were. traveling southbound on Highway. 65 in a 1999 GMC Suburban and towing a travel trailer when an escort vehicle for a mobile home waved them to the side to stop just south of the bridge, in order to allow a mobile home passage over the bridge. The defendant, Mr. Hamilton, was driving a grain truck loaded with corn and traveling in the same direction on Highway 65. 'Another 18-wheeler had stopped behind the McDaniels. Unable to timely stop his rig, Mr. Hamilton went into the ditch. The grain truck overturned and slid into the rear-end of the McDaniels’ travel trailer and knocked both the trailer and the Suburban forward. The trailer was damaged extensively but the Suburban apparently suffered damage only to the hitch. The McDaniels alleged in their petition that they both suffered injuries from the collision.

Prior to trial, the parties stipulated to the liability of Mr. Hamilton and his employer, Mr. Smith, to the limits of the policy issued by ' Farm Bureau of $100,000.00 per person and $300,000.00 per accident." The parties | ^stipulated to the special damages for Mrs. McDaniel in the amount of $4,680.79, and for Mr. McDaniel in an amount of at least $6,171.78. The only dispute as to special damages was one bill in the amount of $228.00, reflecting a visit by Mr. McDaniel to thé Orthopedic Clinic on June 29, 2005, which the defendants contended was unrelated to the accident. The parties also stipulated to the introduction of the accident report and accident scene photographs, the McDan-iels’ medical records and the deposition of Dr. Robert Louis Gavioli, an orthopedic surgeon, for consideration by the court in its determination of the general damage awards to be made. The matter came for trial on February 1, 2006, where the trial court heard testimony from the McDaniels and Mr. Smith.

The evidence established that Mr. McDaniel was driving and Mrs. McDaniel was a passenger when their Suburban was struck by the tractor trailer. Neither made any complaints of injuries at the scene of the accident. Nevertheless, they were taken by ambulance to the emergency room at the Madison Parish Hospital. The medical records reflect that once there, Nell McDaniel complained of pain in her left shoulder and x-rays were taken of her spine, skull and shoulder. Other than revealing the presence of degenerative disc disease, Mrs. McDaniel’s x-rays indicated no fractures or other abnormalities.

One week later, Mrs. McDaniel went to see Dr. Gavioli complaining of pain in her neck and lower back, headaches and blurred vision. He diagnosed a cervical and lumbar strain which aggravated a preexisting, but asymptomatic, degenerative disc condition. Dr. Gavioli recommended 25 13mg per day of Vioxx and physical therapy. Per these recommendations, Mrs. McDaniel attended 10 physical therapy sessions at the Jackson Parish Therapy Center before returning to see Dr. Gavioli on September 29, 2003. His notes indicate that Mrs. McDaniel’s injures improved although she still reported some persisting pain in her neck and shoulder. She opted not to take the Vioxx as a result of the side effects and indicated that she would be discontinuing physical therapy and would be doing the exercises on her own. The doctor’s notes further indicate his belief that her symptoms should resolve over the next couple of months.

Mrs. McDaniel was 70 years old at the time of the accident. She testified at trial that she did not recall complaining of any injuries at the scene of the accident, but that by the time she arrived at the hospital she was experiencing some pain in her left shoulder. She gave no indication about the degree of the pain she was experiencing or whether it impeded her ability to engage in certain activities. She asserted that her pain had resolved itself by the end of the year. While she testified that her back still hurts sometimes when she does housework, it is unclear from her testimony whether she attributed that pain to the accident. She also stated that she was wearing a lift in her shoe upon the recommendation of the physical therapist because one of her legs was shorter than the other as a result of the accident.

Mr. McDaniel’s medical records indicate that when he presented to the emergency room he was complaining of pain in his neck. X-rays were taken of his skull and cervical spine which indicated that while Mr. McDaniel also suffered from some degenerative disc changes, he had no ^fractures or other abnormalities. He also went to see Dr. Gavioli on September 5, 2003, complaining of headaches and pain in his neck and lower back. The records indicate that Mr. McDaniel was also diagnosed with cervical and lumbar strains which aggravated a pre-existing, but asymptomatic, degenerative disc disease. Dr. Gavioli recommended that Mr. McDaniel also undergo physical therapy and that he take Celebrex.

Mr. McDaniel attended 11 physical therapy sessions before he returned to see Dr. Gavioli on September 29, 2003. Unlike his wife’s condition, however, Mr. McDaniel’s condition had not improved at the followup visit. He reported persisting neck pain and headaches and complained of his right arm falling asleep when he lies on his right side. Mr. McDaniel indicated that he had back surgery approximately 14 years earlier and has had intermittent lower back pain ever since. However, Mr. McDaniel stated that the accident had made the pain worse.

The doctor’s physical exam from the September 29th visit indicated an old injury to Mr. McDaniel’s right arm. Mr. McDaniel reported he received the injury during “the war.” The notes indicate diminished grip strength in Mr. McDaniel’s right hand. Mr. McDaniel attributed the diminution to the war injury, but indicated that it had worsened since the accident. Dr. Gavioli prescribed a Medrol Dosepak (cortisone) and recommended a cervical MRI. His notes also indicate the recommendation of a neurosurgical consultation if the headache symptoms persist. Mr. McDaniel next saw Dr. Gavioli on October 14, 2006, after undergoing an MRI. He complained of nausea and trouble sleeping which Dr. Gavioli attributed to | sthe cortisone. Dr. Gavioli’s notes indicate the MRI findings of moderate spondylosis with apo-physeal osteoarthropathy in the cervical region, mild central stenosis at C4-5 with cord impingement and bilateral foraminal stenosis at C4 to T1 levels and on the left at C3-4. Dr. Gavioli’s notes further indicate his conclusion that the accident caused a flare-up of Mr. McDaniel’s preexisting arthritis in his neck, but that he had no acute disc herniation or fracture. Mr. McDaniel declined Dr. Gavioli’s recommendation that he see a pain management specialist. In his deposition, Dr. Gavioli confirmed most of the aforementioned findings reflected in his notes. However, he unequivocally stated that the fact Mrs. McDaniel has one leg shorter than the other cannot be attributed to the accident. It is most likely a result of her pre-existing scoliosis (curvature of the spine). As to the conclusion in his notes that Mr. McDaniel’s pre-existing degenerative disc condition was asymptomatic before the accident, Dr. Gavioli attested that this was based on Mr. McDaniel’s representations to that effect. He further indicated that the soft-tissue injuries suffered by Mr. McDaniel as a result of the accident would most probably have been resolved somewhere between a few weeks and a few months. However, because of Mr. McDaniel’s pre-existing and aggravated arthritis, his pain would not necessarily have subsided entirely. Dr. Gavioli also indicated that Mr. McDaniel came back to see him in June of 2005 with increasing neck pain, hand numbness and dizzy spells, but Dr. Gavioli was not inclined to attribute those symptoms to the accident.

IfiMr. McDaniel was 77 years old at the time of the accident. He testified at trial that he did not experience any pain until he arrived at the hospital on the day of the accident. At that time he reported having pain in the back of his head and in his neck. He was treated and released the same day, but he testified that his neck and shoulder pain and trouble with headaches persisted. He testified about his treatment with Dr. Gavioli and indicated that while he had some improvement with the pain in his neck and shoulder, the pain had not completely subsided even at the time of trial. On direct examination he denied having any history of neck pain, but on cross-examination re-affirmed earlier deposition testimony in which he admitted to having experienced some arthritis-related pain in his neck prior to the accident. He also admitted to having “significant arthritis problems up and down [his] spine for years,” although not in his neck. Lastly, he admitted that while working as a truck driver in the early 1990’s he had suffered a back injury which required him to undergo surgery. He has been on disability ever since.

After hearing all the evidence,' the trial court issued findings that both the McDan-iels had suffered soft tissue injuries which aggravated pre-existing arthritic conditions. The court found that the testimony and evidence supported a “generous” award of general damages in the amount of $4,000.00 to Mr. McDaniel and in the amount of $2,000.00 to Mrs. McDaniel. A judgment incorporating the general damage awards and the stipulated special damage awards was signed on March 3, 2006. The instant appeal followed.

^DISCUSSION

On appeal, the McDaniels argue that the trial court abused its discretion in its award of general damages. In support of this argument they rely on their combined medical expenses exceeding $10,000.00, Mr. McDaniel’s persistent neck pain which he did not have prior to this accident, and Mrs. McDaniel’s continued experience with occasional pain when performing housework, as well as her need to wear a shoe lift to compensate for her shorter leg.

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Keeth v. State, 24,720 (La.App. 2 Cir. 5/5/03), 618 So.2d 1154, writ dismissed, 93-1569 (La.6/18/93), 619 So.2d 563. Much discretion is accorded to the trier of fact in fixing general damage awards. La. C.C. art. 2324.1. This discretion is so vast that an appellate court should rarely disturb an award of general damages. 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).

The question before a reviewing court is not whether a different award may have been more appropriate, but whether the trial court’s award can be reasonably supported by the record. Gladney v. May, 29,373 (La.App. 2 Cir. 5/7/97), 697 So.2d 1022, writ denied, 97-2417 (La.1/9/98), 705 So.2d 1101. To determine if the quantum is inadequate, the appellate court | Smust view the evidence in the light most favorable to the defendant. O’Brien v. Remington Arms Co., 601 So.2d 330 (La.App. 2 Cir.1992), writ denied 604 So.2d 1003 (La.1992). Only after an articulated analysis of the record discloses an abuse of discretion may the appellate court determine that the award is either excessive or insufficient. Reck v. Stevens, 373 So.2d 498 (La.1979); Gladney, supra.

Looking at the specific facts of this case, we find no abuse of discretion. Both the McDaniels did suffer cervical and lumbar strains which aggravated pre-existing degenerative disc and arthritic conditions. They both suffered attendant pain and discomfort, but the record contains no evidence as to the severity of that pain and discomfort. The record also contains little evidence as to the disruptive effect of this pain on the plaintiffs’ lives. In that regard, the trial court’s ability to observe the demeanor, tone and inflection of the witnesses during their testimony lends added weight to its determination as to the impact of the plaintiffs’ injuries and the appropriate general damage award to compensate for that impact.

The record does not unequivocally support the plaintiffs’ argument that Mr. McDaniel continues to suffer neck pain as a result of the accident or that Mr. McDaniel was asymptomatic in this regard prior to the accident. Dr. Gavioli stated that his determination that Mr. McDaniel was asymptomatic prior to the accident was based strictly on Mr. McDaniel’s representations, which, in point of fact, were somewhat contradicted by Mr. McDaniel on the stand. The trial court stated on the record its belief that Mr. McDaniel did have pre-existing pain but failed to tell Dr. Gavioli of the |9pre-existing pain because of a high tolerance for pain and his disinclination to complain.

Dr. Gavioli’s deposition testimony also indicates that the cause of Mr. McDaniel’s complaints of pain and discomfort at the time of trial was not likely the August 2003 accident. While he did not discount the possibility, he indicated that it was more likely a result of his pre-existing conditions and advancing age.

As to Mrs. McDaniel’s complaint of experiencing back pain when she performs housework, there is no evidence which would directly attribute that pain to the accident. Also, her argument that the accident has shortened one of her legs, necessitating the need to wear a shoe lift, was directly contradicted by Dr. Gavioli in his deposition. He stated, and this court agrees, that such a condition would not have been caused by the accident and is most likely attributable to her pre-existing scoliosis.

Lastly, despite the McDaniels’ contention, there is no necessary correlation between the amount of special damages and the award of general damages.

Although the trial court characterized its general damage awards as “most generous,” we conclude that, on the contrary, the general damages awarded under the circumstances of this case are very near the lowest amount that can be reasonably supported by this record and not constitute an abuse of trial court’s vast discretion. Accordingly, the general damage award to Mr. McDaniel and Mrs. McDaniel in the amount of $4,000.00 and $2,000.00, respectively, is affirmed.

^CONCLUSION

For the reasons stated above, the judgment of the trial court is hereby affirmed. The costs of this appeal are to be borne by the appellants.

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. William SHUMAKER, Appellant.
    No. 41,547-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.
    Rehearing Denied Jan. 18, 2007.

      Stephen A. Glassell, for Appellant.
    J. Schuyler Marvin, District Attorney, J. Michael Lawrence, Assistant District Attorney, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| !This criminal appeal arises from the Twenty-sixth Judicial District Court, Parish of Bossier, Louisiana. The defendant, William Shumaker, was convicted for the manufacture of a Schedule II controlled dangerous substance, methamphetamine, and was sentenced to 10 years without benefit of parole, probation, or suspension of sentence and a $10,000 fine or an additional 18 months in prison. La. R.S. 40:967 A. Shumaker appeals his conviction and sentence, which, for the following reasons, we affirm.

Facts

Shumaker, along with co-defendants Teresa Waddell and Charles Estis, was arrested by Bossier Parish sheriff deputies and subsequently charged with violating La. R.S. 40:967 A for the manufacture of Schedule II CDS, methamphetamine. At his trial, the following facts were adduced.

On March 29, 2003, Shreveport Police Corporal Jeff Peters, who incidentally happened to be assigned to the narcotics division, was standing behind William Shu-maker in the checkout line at a Wal-Mart in Shreveport, Louisiana and observed him buying three boxes of cold medicine. Corporal Peters then saw Shumaker hand those cold pills to another man outside the store before returning inside to buy two more boxes of cold medicine and plastic gloves. Corporal Peters, because of his experience in narcotics investigation and knowledge regarding the manufacturing of methamphetamine, was suspicious of Shu-maker buying so much cold medicine. After Shumaker left the Wal-Mart, Cpl. Peters followed Shumaker and the other man to a Target store, again in Shreveport. Corporal Peters wrote down the license plate number on the vehicle, and he loused this information to find Shumaker’s address, which he determined to be 120 Maplewood, Haughton, Bossier Parish, Louisiana. Corporal Peters conveyed this information to Deputy A1 Langley of the Bossier Parish Sheriffs Office.

According to Dep. Langley, officers from the Bossier Parish Sheriffs Office then conducted a “trash pull,” where they searched the garbage left at the curbside and found the following items: stems that field-tested positive as marijuana and ‘ a suspected marijuana cigarette; burned tin foil, which Dep. Langley said was commonly used to heat methamphetamine for inhalation; several plastic sandwich bags with the corners cut out, which is a common way to store methamphetamine for resale; and, a piece of paper with Shumaker’s name and that street address — confirming that the mobile home was Shumaker’s residence. Based upon Cpl. Peters’s observation of Shumaker buying large amounts of cold medicine, along with the items found in the trash of Shumaker’s residence and information from a reliable confidential informant indicating that Shumaker was manufacturing and using methamphetamine, Dep. Langley obtained a warrant on April 25, 2003, to search Shumaker’s residence and any vehicles on the premises.

Upon arriving to execute the search warrant, Deputy Langley recounted that officers noticed the odor of burned marijuana and saw Shumaker and another man sitting at a table. During the search of the residence, officers found the following items: burned marijuana cigarettes throughout the mobile home; syringes and spoons; a plate with a straw that tested positive for containing methamphetamine residue; digital scales;' 1 ¡¡numerous boxes of cold medicine with ephedrine, the main ingredient of methamphetamine; and, a coffee can containing filters with methamphetamine residue. Additionally, officers found an ice chest in the back of a truck parked at. the residence, and Dep. Langley testified that there was a strong ammonia odor when the chest was opened, and he believed the ice chest was used to store anhydrous ammonia. Inside the ice chest, officers found a thermos, a strainer, coffee filters containing debris from the crushed medicine pills, a plastic jug, funnels,, and rubber tubing — all items necessary for the production of methamphetamine. Also, inside the truck, officers found three cases of starter fluid, which contained ether, a plastic bag with approximately 2000, cold medicine pills, lithium batteries, and receipts from Wal-Mart showing where the cold medicine had been purchased. Behind the residence, officers found a coffee pot that tested positive for methamphetamine residue.

Based upon the evidence presented at trial, the jury convicted Shumaker of manufacturing methamphetamine, a Schedule II CDS. He was sentenced to 10 years without benefit of parole, probation, or suspension of sentence and a $10,000 fine or an additional 18. months in prison. This appeal by Shumaker ensued.

1 ¿DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Shumaker argues that the trial court erred in denying his motion for post-verdict judgment of acquittal on the ground that the evidence was insufficient to support his conviction for manufacturing methamphetamine. Specifically, Shumaker argues that the evidence was insufficient, because (1) the residence was not a functional lab at the time of the search; (2) there was no evidence connecting him to the truck on the premises, which contained evidence of a methamphetamine lab; and (3) it was not clear from the testimony whether the bag of cold medicine pills was actually found inside the residence.

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

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165, 1166. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 443. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App.2d Cir.09/18/02), 828 So.2d 622, 626, writ denied, 2002-2595 (La.03/28/03), 840 So.2d 566, and writ denied, 2002-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, 515, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,903 (La.App.2d Cir.09/25/95), 719 So.2d 610, 614, writ denied, 1998-2723 (La.02/05/99), 737 So.2d 747. This court has previously explained how to evaluate circumstantial evidence in the context of the sufficiency of the evidence:

The rule as to circumstantial evidence is that, assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. However, this statutory rule for circumstantial evidence does not provide a separate test from the Jackson v. Virginia sufficiency of the evidence test whenever the state |firelies on circumstantial evidence to prove an element of the crime. Although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it emphasizes the need for careful observation of the usual standard and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson v. Virginia, to satisfy a rational jury that the defendant is guilty beyond a reasonable doubt.

State v. Dukes, 609 So.2d 1144, 1150-1151 (La.App. 2d Cir.1992), writ denied, 618 So.2d 402 (La.1993), writ denied, 93-1421 (La.12/15/95), 664 So.2d 435- (citations omitted).

Here, Shumaker was convicted for violating La. R.S. 40:967 A, which states:

A. Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute,' or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II;
(2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule II (footnotes omitted).

Methamphetamine is listed as a Schedule II controlled dangerous substance. La. R.S. 40:964.

The prosecution presented evidence showing that Shumaker was under suspicion after: (1) being observed by a narcotics investigator buying the largest quantities of cold medicine allowed by store policy on three separate occasions in one day; and, (2) a search of his garbage revealed' several plastic sandwich bags with the corners cut out and burned tin foil. 17The state also presented evidence of items police found inside the residence: burned marijuana cigarettes throughout the residence; syringes and spoons; a plate with a straw that tested positive for containing methamphetamine residue; digital scales; several boxes of cold medicine with ephedrine in the bathroom; a coffee can containing filters with methamphetamine residue; and, behind the residence near the steps of the back porch, a coffee pot that tested positive for methamphetamine residue. Additionally, the state presented evidence of items found in the truck parked at Shumaker’s residence, including paraphernalia typically used for the production of methamphetamine, as well as 2000 cold medicine pills — containing the key ingredient in methamphetamine.

As experts in the,investigation of narcotics and the production of methamphetamine, Dep. Langley and Dep. Phillips testified that they believed Shumaker’s residence to be a methamphetamine lab. Specifically, Dep. Langley testified that:

• coffee filters are commonly used to filter the debris during the methamphetamine production process;
• lithium is commonly removed from lithium batteries so that it can be mixed with ephedrine and anhydrous ammonia;
• the ether in the starter fluid is often used in methamphetamine production to separate the methamphetamine oil from the “sludge”;
• the coffee pot was probably used to actually cook the methamphetamine since it had residue;
• the microwave inside the residence could have been the heat source;
Is*the rubber tubing connected to the plastic jug was an HCO generator, which is used to “salt out” the methamphetamine in the final stage of production; and
• the approximate 2000 cold medicine pills with ephedrine would have produced six ounces of methamphetamine, which has a street value of $6,000.

The only missing component to make Shumaker’s residence a functioning methamphetamine lab at the time of the search and seizure was the anhydrous ammonia. However, the fact that the residence was not a functioning methamphetamine lab at the time of the search and seizure does not negate the sufficiency of the state’s evidence proving that Shumaker was manufacturing methamphetamine. Deputy Langley testified that it is not uncommon for those manufacturing methamphetamine to begin the process in one place and take it to another place to complete it, or to break down the lab after finishing a batch and store the components in different places.

Notably, there is no language in La. R.S. 40:967 A requiring the state to prove that Shumaker was in the actual process of manufacturing methamphetamine at the time of the search and seizure. Additionally, it is of no importance that the police failed to find actual methamphetamine in the residence. The statutory definition of manufacture, La. R.S. 40:961(24), does not use the term “finished product”; it does use the phrase “production, preparation, propagation, compounding, or processing.” Nor does the definition of production, La. R.S. 40:961(34), use the term “finished product.” See State v. Lingefelt, 38,038 (La.App.2d Cir.01/28/04), 865 So.2d 280; writ denied, 2004-0597 (La.09/24/04), 882 So.2d 1165. | flFurthermore, proof of methamphetamine residue is obviously evidence that Shumaker had succeeded in manufacturing the drug.

Moreover, the jury was clearly within its discretion to infer from the circumstantial evidence — i.e., the fact that Shumaker made multiple purchases of cold medicine on a single day, coffee filters with methamphetamine residue, a coffee pot with methamphetamine residue, and other surfaces with methamphetamine residue — that Shu-maker had manufactured methamphetamine at that residence. Whereas the state did not present evidence showing that Shumaker owned the truck on the premises that contained the HCO generator, lithium batteries, and bag of cold medicine pills, the jury could have reasonably inferred that those items on his premises, along with what was found inside and around the residence, were being used by Shumaker to produce methamphetamine.

Therefore, based upon the evidence presented at trial, there was sufficient evidence for a rational factfinder to conclude that Shumaker was guilty of manufacturing methamphetamine. Accordingly, the trial court did not abuse its discretion by denying his motion for post-verdict judgment of acquittal, and this assignment is without merit.

Motion to Suppress Evidence

In his second assignment of error, Shu-maker argues that the trial court erred in denying his motion to suppress the evidence seized for the following reasons: (1) there was a lack of probable cause for the search warrant; and (2) the original search warrant was lost, an illegible date was |inon the state’s copy and, Shumaker’s copy of the search warrant left at the residence did not contain language authorizing a nighttime search.

Probable Cause

The Fourth Amendment to the United States Constitution protects “[the] right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. The La. Const, art. I, § 5 provides similarly. Accordingly, La. C. Cr. P. art. 162 implements the requirements of the federal and state constitutions regarding the issuance of search warrants:

A search warrant is issued only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.

Probable cause to search exists when the totality of the circumstances allows the conclusion that there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Wells, 593 So.2d 465, 467 (La.App. 2d Cir.1992), writ denied, 598 So.2d 357 (La.1992), citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized. State v. Casey, 1999— 0023 (La.01/26/00), 775 So.2d 1022, 1028, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Further, the affidavit must contain, within its four corners, the facts establishing the existence of probable cause for issuing the warrant. Id.

In Probable cause for the issuance of a search warrant does not involve certainties of proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior as understood by persons trained in law enforcement and based on the totality of the circumstances. State v. Johnson, 27,522 (La.App.2d Cir.12/06/95), 665 So.2d 1237, 1246, citing State v. Rodrigue, 437-So.2d 830 (La.1983). Further, the affidavit heed not eliminate all possible innocent explanations of the described behavior. State v. Loera, 530 So.2d 1271, 1278 (La.App. 2d Cir.1988), writ denied, 536 So.2d 1252 (La.1989). In State v. Loera, supra at 1279, this court quoted from Illinois v. Gates, supra, for the proposition that “innocent” behavior can provide the basis for probable cause:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime mil be found in a particular place . . .
[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to ... impose a drastically more rigorous definition of probable cause than the security of our citizens demands-In making a determination of probable cause the relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of sitspicion that attaches to particular types of noncriminal acts. (Citations omitted; emphasis added).

Thus, firsthand observation of criminal activity or contraband in the place to be searched, either by a police officer or by an informant, is not required to establish probable cause.

| ^Consequently, the issuing magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there exists a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Profit, 2000-1174 (La.01/29/01), 778 So.2d 1127, 1130. The task of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. State v. Profit, supra. Further, a 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. Lawrence, 40,278 (La.App.2d Cir.03/15/06), 925 So.2d 727, 728.

Here, Dep. Langley’s affidavit in support of the search warrant for Shumaker’s residence cited that:

• affiant had significant law enforcement experience in narcotics identification and investigation;
• affiant had received information from a reliable confidential informant that Shumaker was using and manufacturing methamphetamine;
• Corporal Peters had observed Shu-maker and another man purchasing the maximum amount of cold medicine allowed by store policy at Wal-Mart, placing it in the trunk of his vehicle, and going back to purchase more cold medicine, starter fluid, and rubber gloves, and the practice of purchasing these items is common among those manufacturing methamphetamine; and,
• officers, in a search of the garbage left at the curbside of the residence, found a piece of paper with Shumaker’s name and address, a substance that field-tested positive as marijuana, a piece of burned tin foil (common in the use of methamphetamine), and several plastic bags with the corners cut (common in the distribution of methamphetamine).

11sUnder the totality of the circumstances, a trained law enforcement officer with experience in narcotics investigation can view the purchase of large quantities of cold medicine, lighter fluid, and rubber gloves as behavior suspicious of methamphetamine production because, the ephedrine in the cold medicine is the main ingredient for methamphetamine, lighter fluid is commonly used in the manufacturing process and rubber gloves are commonly used by those manufacturing methamphetamine due to it being a toxic process. Considering this, along with what was found in the search of Shumaker’s trash, the judge had substantial basis for concluding that there was a fair probability that evidence of methamphetamine production would be found at Shumaker’s residence.

Further, there was a nexus between suspecting that Shumaker was involved in manufacturing methamphetamine and the search of Shumaker’s residence. Corporal Peters used the license tag number off of the vehicle Shumaker was driving that day to learn that the vehicle was registered to Shumaker and that his address was 120 Maplewood in Haughton. In the search of the garbage at that location, officers found a piece of paper with Shumaker’s name and that address. Given the likelihood that a person manufacturing methamphetamine would have contraband at his residence and the fact that officers found plastic bags with the corners cut out, which the affiant averred was a known way to store methamphetamine for resale, there was a nexus between the suspected illegal drug activity and the search of Shumaker’s residence. See State v. Profit, supra at 1130-1131.

114Shumaker also argues that the affidavit lacked probable cause, because there was no information establishing the reliability of the confidential informant. The affidavit simply stated that affiant had received information from a reliable confidential informant that Shu-maker was using and manufacturing methamphetamine. Deputy Langley testified that he did not remember who the confidential informant was on this case and, therefore, could not testify as to the reliability of this confidential informant. However, Dep. Langley also testified that this confidential informant must have proven himself in the past or he would not have alleged that it was a reliable confidential informant. Recitations in an affidavit that the informant has previously given information leading to arrest are generally adequate to support the informant’s reliability. State v. Johnson, supra at 1248. Even so, this search warrant was not dependent upon the confidential informant’s reliability; rather, the warrant primarily relied upon the observations of Cpl. Peters and the evidence found in Shumaker’s garbage. When a search warrant is not dependent upon the credibility of the confidential informant but on police observation, lack of evidence regarding the informant’s credibility will not render a search warrant invalid. State v. Johnson, supra, citing State v. Grey, 408 So.2d 1239 (La.1982).

Shumaker further maintains that the warrant lacked probable cause because the information from Cpl. Peters about Shumaker buying large quantities of cold medicine was stale. A warrant may become stale if facts and circumstances at the time of its execution show that probable cause no longer exists. State v. Casey, supra at 1028. Staleness is only an issue 11Rwhen the passage of time makes it doubtful that the object sought in the warrant will be at the place where it was observed. Id. Corporal Peters observed Shumaker on March 29, 2003, the search warrant was signed on April 25, 2003, and the search warrant was executed on May 1, 2003. The passage of approximately one month did not make it doubtful that evidence of manufacturing methamphetamine would be found at Shumaker’s residence. Therefore, staleness is not an issue in this case.

Original Warrant Lost and Language Authorizing a Nighttime Search

Shumaker also argues that the trial court erred in denying his motion to suppress because the original warrant signed by the trial judge was lost and he disputes whether the original warrant contained language authorizing a nighttime search. Shumaker further argues that the trial court erred because the date on the state’s copy of the warrant is illegible.

The best evidence rule does not mandate production of the original warrant when testimony shows that the original has been lost or destroyed and there is no bad faith by the state. State v. Jackson, 30,473 (La.App.2d Cir.05/13/98), 714 So.2d 87, 94, writ denied, 1998-1778 (La.11/06/98), 727 So.2d 444, citing La. C.E. arts. 1002, 1004. Further, the “best evidence” rule is to be applied sensibly and with reason. Id. at 95. The original writing is required to prove the contents of the writing, unless otherwise provided. La. C.E. art. 1002. According to La. C.E. art. 1003, “[a] duplicate is admissible to the same extent as an original unless ... [a] genuine question is raised as to the authenticity of the original.... ” Further, La. C.E. art. 1004 allows evidence proving the contents of the |1swriting if the original is lost or destroyed, unless the proponent did so in bad faith. Ultimately, under La. C.E. art. 1008, whether the evidence of the contents correctly reflects the contents of the original is an issue for the trier of fact to determine. State v. Jackson, supra at 94.

Deputy Langley testified that when he prepared the search warrant, he printed two copies, placed a piece of carbon paper between the copies, and had the judge sign the top copy in blue ink — the bottom copy had a carbon-copy of the judge’s signature. At the hearing on the motion to suppress, the state presented the original affidavit, signed in blue ink, and a duplicate original of the search warrant with the carbon-copy signature. Deputy Langley testified that he normally left the duplicate original of the search warrant with the carbon-copy signature at the residence and that the back side of that document contained a carbon-copy of the return from the search warrant, showing what was seized from the residence. This duplicate original of the search warrant with the carbon-copy signature contained the original return on the search warrant, showing what was seized from the residence. Deputy Langley testified that he believed the original warrant signed in blue ink was left at the residence instead of the duplicate original with the carbon-copy signature.

The duplicate original presented by the state at the hearing on the motion to suppress contains language authorizing a nighttime search of the described premises to be searched. Shumaker presented a copy of the search warrant left at his residence, not the original document left at his house, but that document does not contain language authorizing a nighttime search. 117Both La. C. Cr. P. art. 163(B) and La. R.S. 40:985 state a search or seizure shall not be made during nighttime unless the warrant expressly permits it. When comparing the two documents, it is obvious that one of the documents was altered. The signatures and handwritten date on both copies appear to be identical, but the signature line and date line are much higher on the page of Shumaker’s copy than it is on the page of the state’s copy. The state’s copy clearly contains a carbon-copy of the signature and the date. If Shumaker’s copy was truly representative of the original search warrant signed in blue ink, the date and signature line would be placed lower on the page. Accordingly, the trial court did not err in finding that the state’s duplicate original was representative of the original search warrant. The trial court also was reasonable in dismissing Shumaker’s claim that the original search warrant did not contain language authorizing a nighttime search.

Ultimately, a practical, common-sense evaluation of the circumstances set forth in the affidavit established a fair probability that evidence of methamphetamine use and production would be found at Shumaker’s residence, and the issuing magistrate had a substantial basis for concluding that probable cause existed to search Shumaker’s mobile home. The trial court’s decision to deny his motion to suppress is due great weight, and the preponderance of the evidence does not favor'suppression. Therefore, Shumaker’s claim that the search warrant was not supported by probable cause is without merit.

11SMotion to Reconsider Sentence

In his final assignment of error, Shumaker argues that the trial court erred in denying his motion to reconsider sentence. Specifically, Shumaker maintains that his sentence for this offense should have been imposed concurrently with his conviction for attempted creation or operation of a clandestine laboratory for the unlawful manufacture of CDS. Additionally, in his motion for reconsideration of sentence, Shumaker alleged that he was a drug abuser and not a major drug dealer, and that his age of 54 made his total sentence for both offenses — lllh years— excessive. Finally, Shumaker argues that imposition of the $10,000 fine or an additional 18 months in prison was excessive because it was discretionary. For the following reasons, we agree with the trial court’s sentence.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688, 698 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641, 643. Where the record liadeaiiy shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049, 1051-52 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, 753, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Bonanno, 384 So.2d 355, 358 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985). There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385. The trial court has broad discretion to sentence within the statutory limits, and the appellate court will not set aside a sentence as excessive absent a showing of manifest abuse of Indiscretion. State v. Hardy, 39,-233 (La.App.2d Cir.01/26/05), 892 So.2d 710, 712-713.

According to La. R.S. 40:967(B)(3), the sentencing range for manufacturing methamphetamine is not less than 10 years nor more than 30 years, and at least 10 years of that sentence must be served without benefit of parole, probation, or suspension of sentence. Review of the record shows that the trial court was cognizant of the sentencing considerations of La. C. Cr. P. art. 894.1. The transcript of the sentencing hearing shows that the trial court reviewed the presentence investigation report, letters from residents in Shumaker’s community that urged the trial court to impose a consecutive sentence, letters from Shumaker’s family urging the trial court to impose a lenient sentence, Shumaker’s statement to the probation and parole officer, and, Shu-maker’s significant criminal history, which includes numerous alcohol and drug related offenses. So considering, we do not believe that the trial court’s imposition of the mandatory minimum sentence of 10 years was unreasonable — said sentence is not grossly disproportionate to the seriousness of the offense, nor does it constitute needless infliction of pain and suffering. Further, considering that the trial court had the discretion to impose a fine of not more than $500,000, the imposed fine of $10,000 is not grossly disproportionate to the seriousness of the offense, nor does it constitute needless infliction of pain and suffering.

As to the trial court imposing the sentence consecutive with a previous sentence rather than concurrent, the trial court specifically stated that it was doing so because doing otherwise would lessen the nature of the |g1 offense and the verdict of the jury. According to La. C. Cr. P. art. 883, sentences for offenses which were not part of a common scheme or plan “shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.” Where offenses are committed on widely disparate dates, the trial court does not abuse its discretion by imposing consecutive sentences. State v. Griffin, 85,282 (La.App.2d Cir.12/05/01), 803 So.2d 245, 248.

Here, the presentence investigation shows that Shumaker committed the offense of creation or operation of a clandestine laboratory for the manufacturing of a Schedule II CDS almost one year after his arrest in the present case. Therefore, imposing a consecutive sentence was appropriate under La. C. Cr. P. art. 883. Further, considering the dangers of methamphetamine to society and the fact that Shumaker committed another methamphetamine-related offense after his arrest in the present case, the consecutive sentences do not shock the sense of justice. Rather, as the trial court noted, imposing concurrent sentences under the circumstances would have truly deprecated the seriousness of Shumaker’s actions because he continued his illegal methamphetamine-related activities after this first arrest for manufacturing methamphetamine. Considering Shumaker’s recent criminal history, the imposition of consecutive sentences was clearly not abusive. In fact, it is apparent that only lengthy incarceration will put a stop to Shumaker’s propensity for illegal drug behavior. Thus, the trial court did not abuse its discretion, and the consecutive 10-year sentence is not constitutionally excessive. This assignment is therefore without merit.

| ^.Conclusion

Therefore, for the foregoing reasons, William Shumaker’s conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before CARAWAY, DREW, MOORE, LOLLEY and SEXTON, JJ.

Rehearing denied.

        . Deputy Langley also described how officers called Waddell to come and pick up her 2-year-old child, who was asleep in the house while the search ensued. When Waddell arrived, she consented to a search of her vehicle, wherein officers found a metal breath mint container with 7.7 grams of methamphetamine inside of it. Waddell also lived at the residence.

      . The search warrant included a search of all vehicles present on the property as well as any and all outbuildings.

      . On April 21, 2004, after Shumaker’s arrest in this matter, Shumaker was presumably free on bail awaiting the instant trial in Bossier Parish, when Caddo Parish Sheriff Officers arrested him. He was charged with conspiracy to manufacture a Schedule II CDS and creation or operation of a clandestine laboratory for the unlawful manufacture of a CDS. Shumaker was ultimately convicted of attempted creation or operation of a clandestine laboratory for the unlawful manufacture of a CDS. He was sentenced to Vk years at hard labor and fined $10,000.00. See State v. Shumaker, 40,275 (La.App.2d Cir.10/28/05), 914 So.2d 1156.


author: BROWN, Chief Judge.

text:
    Edward MULREANY, Plaintiff-Appellant, v. Steve WILLIAMS and the Housing Authority of the City of Shreveport, Defendants-Appellees.
    No. 41,569-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.
    Wilson & Stephens by Gerald L. Stephens, Shreveport, for Appellant.
    Lunn, Irion, Salley, Carlisle, & Gardner by James A. Mijalis, Shreveport, for Ap-pellees.
    Before BROWN, GASKINS, and CARAWAY, JJ.
   BROWN, Chief Judge.

11Plaintiff, Edward Mulreany, filed this action against Steve Williams and The Housing Authority of the City of Shreveport to recover for damage to his vehicle and for personal injuries allegedly arising out of an automobile accident caused by Williams while driving a truck owned by the Housing Authority. The trial court awarded plaintiff the sum of $556.32 for the property damage to his vehicle but found that the accident did not cause plaintiffs personal injuries. Mulreany appealed the denial of his claim for bodily injuries. For the following reasons, we affirm the trial court’s judgment.

Facts

In March 2004, Steve Williams was driving a Chevrolet pickup truck westbound on Interstate 20 in Shreveport, Louisiana. The truck pulled a one-ton flatbed trailer that contained items Williams was taking to a landfill. Williams was acting in the course and scope of his employment with the Shreveport Housing Authority.

Mulreany was driving a Chevrolet Blazer on 1-20 behind Williams at the time of the accident. According to Mulreany, two 18-wheelers passed Mulreany and Williams, one truck on each side, causing a wind that lifted the tarp covering the load being pulled by Williams. Debris fell from Williams’ trailer. Mulreany first swung his truck to the left to avoid the debris but had to swing back to the right lane because of a rapidly approaching ear in the left lane. Most of the debris went under Mulreany’s truck; however, a small amount struck the right front corner of the truck. 12This incident did not cause either Mulreany’s truck to stop or Mulreany to be tossed about his truck.

After the incident, Mulreany drove up alongside Williams’ vehicle and signaled for Williams to pull over to the side of the road. The two men examined their vehicles, and Mulreany stated that he did not believe the police needed to be called. They exchanged information, and Mul-reany proceeded to a dental appointment.

At the dental office, a nurse jerked down the dental chair causing Mulreany to experience pain. Plaintiff described a “tweaking in my neck,” but stated that he had no soreness until the next morning when he could barely get out of bed. On cross examination, Mulreany testified that the dental chair had been pulled back quickly and “that it was rough enough for me to feel the twinge in my neck.” Mulreany stated that the next day he was sent by his attorney to a chiropractor, Dr. Robert Rougeau, who referred Mulreany to Dr. Richard Kamm. The medical bills and reports of the two doctors, along with the deposition of Dr. Rougeau, were introduced into evidence at trial.

Dr. Rougeau was unaware, until his deposition, of Mulreany’s incident with the dental chair. After being made aware of the incident, Dr. Rougeau was unable to opine as to the effect of the dental chair incident but emphasized that it is not uncommon for injuries to become manifest a day or two after an accident. Thereafter, Dr. Rougeau read Mulreany’s deposition and wrote a letter to Mulreany’s attorney which stated: “It has been my ^experience that an auto accident such as Mr. Mul-reany has described would, more probably than not, have caused the type of pain and symptoms as described in these depositions and that the incident at the dental office would not have been the cause.” This letter was submitted with Dr. Roug-eau’s medical report and bill.

In his report dated April 5, 2004, Dr. Kamm indicated that Mulreany described the details of the incident on the roadway. However, the report did not indicate that Dr. Kamm was aware of the incident at the dental office. Dr. Kamm performed an examination on Mulreany and, as part of his impressions, listed musculoligamen-tous strain of both the cervical and thoracic region of the back, along with soft tissue injury to the right shoulder, judged to be related to the automobile accident. Dr. Kamm’s impressions also noted that Mul-reany was having headaches, “muscular tension or stress type,” judged to be secondary to the automobile accident. Dr. Kamm wrote a prescription and directed Mulreany to continue his treatment with the chiropractor.

Following trial, the court awarded property damages to Mulreany in accordance with the estimate provided. However, the trial court declined to award personal injury damages to Mulreany. The court noted the uncontested testimony that, after the accident, Mulreany got down and looked under the vehicle without any pain and that Mulreany first felt pain when the dental chair suddenly dropped. Therefore, the trial court found that it was unable to say that the automobile accident was more likely than |4not the cause of Mulreany’s injuries. The court also found insufficient evidence to place any comparative fault on the drivers of the 18-wheel-ers.

It is from this judgment that Mulreany has appealed.

Discussion

On appeal, Mulreany asserts that he met his burden of proof in that both Dr. Kamm and Dr. Rougeau opined that the automobile accident caused his injuries. Additionally, Mulreany asks this court to apply the presumption of causation set forth in Housley v. Cerise, 579 So.2d 973 (La.1991), in which the Louisiana Supreme Court stated that a claimant’s disability is presumed to have resulted from an accident if the injured person was in good health before the accident, the symptoms of the injury appeared and continually manifested themselves afterwards, and the medical evidence supported a reasonable possibility of a causal connection between the accident and the disabling condition.

The issue in this case is simply whether the incident on 1-20 caused any bodily injury to Mulreany. The facts are not seriously disputed. Debris fell from defendant’s trailer causing light damage to plaintiffs vehicle. Plaintiff did not strike anything inside his vehicle nor did his truck stop. Plaintiff had no pain following the incident and, as noted by the trial court, immediately after the incident, plaintiff got down and looked under his truck. Plaintiff left the scene after concluding that the police were not needed. Shortly thereafter, the incident in the dental chair occurred and for the first time plaintiff experienced pain.

| sWhether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error. Mart v. Hill, 505 So.2d 1120 (La.1987); Wallace v. State Farm Mutual Automobile Insurance Co., 36,099 (La.App.2d Cir.06/14/02), 821 So.2d 704. If the trial court findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently; where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneously or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In Morris v. Allstate Insurance Company, 25,148 (La.2d Cir.02/23/94), 632 So.2d 1209, this court was presented with the factual issue of whether an injury was caused by an automobile accident or by the plaintiff lifting an obese patient during the course of her employment as a nurse’s aide nine days later. The trial court had rejected the plaintiffs demands, finding that the injury was caused by lifting the patient, “a separate, independent, and intervening act.” In affirming the trial court’s judgment, this court acknowledged the presumption of causation discussed in Housely, supra. This court also observed that a medical expert may opine as to the reasonable possibility of the causal connexity between an accident or an incident and the ultimate medical condition. We further stated, however, that the ultimate determination of more-probably-than-not rests with the court. In Morris, supra, one of two conclusions could have been drawn by the trial court: either the accident contributed to the lifting ^incident and the two combined to cause the low back injury, or the low back injury was caused by the lifting, a separate and independent act. The court concluded that any prima facie showing or presumption that the plaintiffs low back condition was caused by the automobile accident was negated by the evidence of the lifting incident, a separate traumatic event. Accordingly, this court declined to find that the trial court was clearly wrong.

In the case sub judice, as in Morris, supra, the trial court was faced with two possible explanations for Mulreany’s injuries. The court could have concluded that Mulreany’s injuries were caused by his attempt to avoid the debris falling on the roadway, then perhaps aggravated by the dental chair incident. On the other hand, the court could have concluded that the dental chair incident was the true cause of his injuries, negating any presumption of causation from the roadway incident. As in Morris, supra, we cannot say that the trial court’s choice was clearly wrong. Accordingly, the trial court’s judgment is affirmed at appellant’s costs.

Conclusion

For the reasons set forth above, the trial court’s judgment is AFFIRMED. Costs of this appeal are assessed to plaintiff-appellant, Edward Mulreany.

AFFIRMED.

      . After Mulreany left, Williams called his supervisor, who called the police to come to the scene and make a report.