author: SAUNDERS, Judge.

text:
    Curtis RANDALL v. CONCORDIA NURSING HOME d/b/a Camelot Leisure Living.
    No. CA 2007-101.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 22, 2007.
    Rehearing Denied Oct. 3, 2007.

      James Brewster Gardner, Lunn, Irion, Salley, Carlisle, & Gardner, Shreveport, LA, John Sturgeon, Sturgeon & Boyd, Ferriday, LA, for Defendant/Appellant: Concordia Nursing Home.
    Kimberly A. Ramsey, Nix, Patterson & Roach, Shreveport, LA, for Plaintif^Appel-lee: Curtis Randall.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DeCUIR, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

_J¿This is a nursing home neglect and medical malpractice case brought by a plaintiff child, individually, and on behalf of his deceased mother. Through a petition and one supplement to that petition, the plaintiff brought an action against the nursing home under the Louisiana Nursing Home Resident’s Bill of Rights (hereinafter “NHRBR”) and, after a Medical Review Panel issued its findings, under the Louisiana Medical Malpractice statutes.

The plaintiff then dismissed his medical malpractice action and specifically reserved his NHRBR action. In response, the nursing home filed Peremptory Exceptions of No Right of Action, No Cause of Action and Prescription. The trial court denied these exceptions. The nursing home also filed a Motion in Limine to limit the evidence the plaintiff could submit to that which was from one year prior to his filing suit. This motion was also denied.

After a jury trial, the plaintiff was awarded $150,000.00 in damages for the loss of his mother’s dignity while she was a resident of the nursing home. The nursing home appealed the verdict, alleging six assignments of error. The plaintiff answered the appeal and requested additional attorney’s fees for work performed on the appeal.

We affirm the trial judge on all assignments alleging his error. Further, we find no abuse of discretion by the jury in finding that the decedent suffered damages under the Louisiana NHRBR, nor do we find any error in the jury’s failure to reduce the plaintiffs award by two-thirds based on the number of beneficiaries in the class that can recover for decedent’s damages. We find that the jury’s award of $150,000.00 to the plaintiff for his virile share of decedent’s damages was abusively high and amend that award to $100,000.00. We award the plaintiff $5,000 in additional attorney’s fees for all work performed on this appeal. All costs of this appeal are assessed to the 12nursing home.

FACTS AND PROCEDURAL HISTORY:

On March 18, 2004, Curtis Randall (hereinafter “Plaintiff’) individually and on behalf of the unopened succession of Francine Inez Randall (hereinafter “Mrs. Randall”), filed suit against Concordia Nursing Home, Inc. d/b/a Camelot Leisure Living (hereinafter “Camelot”). In his petition, Plaintiff alleged violations of Mrs. Randall’s rights as guaranteed to her under the Louisiana NHRBR. In addition, Plaintiff filed a letter of complaint with the Patients’ Compensation Fund, pursuant to La.R.S. 40:1299.47, et seq.

Plaintiff alleged in his original petition that from January 1996 through August 12, 2008, the date of his mother’s death, that his mother, as a resident at Camelot, was maltreated and her rights were violated under the Louisiana NHRBR. Subsequent to the Medical Review Panel reaching its findings, Plaintiff amended his petition to add his medical malpractice action to his NHRBR action against Camelot.

Plaintiff then moved for a voluntary dismissal of his medical malpractice action against Camelot on June 23, 2006. Plaintiffs motion for voluntary dismissal was granted on June 28, 2006.

Once Plaintiffs motion for voluntary dismissal was granted, Camelot filed Peremptory Exceptions of No Cause of Action, No Right of Action, and Prescription. Further, Camelot filed a Motion in Limine requesting that the trial court limit Plaintiffs evidence to the period of one year prior to suit being filed. The trial court denied all of Camelot’s peremptory exceptions and also denied its Motion in Limine.

Following an August 16, 2006, jury trial on the merits, the jury returned a verdict that Camelot had violated Mrs. Randall’s rights under the Louisiana NHRBR |sas she suffered a loss of dignity. The verdict awarded Plaintiff $150,000.00 in damages. Camelot appealed the trial court’s rulings regarding its Peremptory Exceptions of No Right of Action and Prescription, its Motion in Limine, and the jury’s verdict, asserting six total assignments of error. Plaintiff answered Camelot’s appeal requesting additional attorney fees for all work performed on the appeal.

We affirm the trial court on its finding that Camelot’s Peremptory Exception of No Right of Action and Prescription lacked merit. We also affirm the trial court on its finding that Camelot’s Motion in Limine lacked merit. We find no abuse of discretion by the jury in finding that Mrs. Randall suffered damages under the Louisiana NHRBR, nor do we find any error in the jury’s failure to reduce Plaintiffs award by two-thirds based on the number of beneficiaries in the class that can recover for Mrs. Randall’s damages. We find the jury’s award of $150,000.00 to Plaintiff for his virile share of Mrs. Randall’s damages was abusively high and amend that award to $100,000.00. We also affirm the trial court’s allowance for Plaintiff to recover money damages from Camelot despite our Legislature’s August 15, 2003, amendment to La.R.S. 40:2010.9 based upon the continuing tort doctrine. Finally, we award Plaintiff $5,000 in additional attorney’s fees for all work performed on this appeal. All costs of this appeal are assessed to Camelot.

ASSIGNMENTS OF ERROR:

1. Did the trial court err in denying Camelot’s Peremptory Exception of No Right of Action in light of Plaintiffs prior dismissal of his medical malpractice action?
2. Did the trial court err in denying Camelot’s Peremptory Exception of Prescription, and in denying its Motion in Limine to limit the evidence Plaintiff could submit to that which took place one year prior to filing suit?
3. Did the jury err in holding that the decedent, Mrs. Randall, sustained any injury or damages under the Louisiana Nursing Home Bill of Rights, absent any |4expert medical evidence and in the face of the opinions of four physicians that she received excellent care?
4. Did the jury err in failing to reduce its award of $150,000.00 to Plaintiff by two-thirds as Mrs. Randall had two other children that could recover damages on her behalf?
5. Did the jury err by excessively awarding $150,000.00 to Plaintiff?
6. Did the trial court err in failing to apply the amendment of the Louisiana NHRBR effective August 15, 2003, to remove the damages remedy to Plaintiffs suit filed on March 18, 2004?

ASSIGNMENT OF ERROR # 1:

Camelot argues that the trial court erred in denying its Peremptory Exception of No Right of Action in light of the plaintiffs prior dismissal of his medical malpractice action. This argument lacks merit.

Whether a plaintiff has a right of action is a question of law. Mississippi Land Company v. S & A Properties II, Inc., 01-1623 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200. An appellate court considers whether a trial court’s ruling on an Exception of No Right of Action is legally correct via a de novo review. Boyer v. Stric-Lan Cos. Corp., 04-872 (La.App. 3 Cir. 11/10/04), 888 So.2d 1037.

The burden of proving that a plaintiff has no right of action is on the movant. State on behalf of Jones v. Mallet, 97-611 (La.App. 3 Cir. 12/17/97), 704 So.2d 958. The test for the application of the Peremptory Exception of No Right of Action is whether this plaintiff has the capacity or legal interest to enforce the rights asserted in the petition. This exception is a threshold device that terminates suits brought by one who cannot enforce the right asserted judicially. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). “The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular ease is a member of the class that has a legal interest in |sthe subject matter of the litigation.” Indus. Cos., Inc. v. Durbin, 02-665, p. 12 (La.1/28/03), 837 So.2d 1207, 1216.

In the case before us, the plaintiff is a surviving child of the decedent, Mrs. Randall. In his supplemental petition, the plaintiff specifically plead the continuing tort doctrine and asserted claims on behalf of Mrs. Randall that she suffered damages due to the negligence of Camelot. The plaintiff alleged that due to chronic under staffing, Camelot violated Mrs. Randall’s rights under the NHRBR including failing to provide privacy in meeting personal needs per La.R.S. 40:2010.8(A)(8); failing to treat Mrs. Randall courteously, fairly, and with the fullest measure of dignity per La.R.S. 40:2010.8(A)(9); failing to allow Mrs. Randall to be free from mental and physical abuse per La.R.S. 40:2010.8(10); and failing to allow Mrs. Randall to rise and retire in accordance with her reasonable requests per La.R.S. 40:2010.8(21). The plaintiff also asserted a cause of action for wrongful death under La.C.C. art. 2815.2 and a survival action under La.C.C. art. 2315.1, inclusive of a lost chance of survival.

Camelot argues that this plaintiff cannot bring this action under the NHRBR because the NHRBR specifically provides that an action under La.R.S. 40:2010.9 “may be brought by the resident or his curator, including a curator ad hoc,” and the action in the case before us was not brought by either Mrs. Randall or her curator as required by the statute. While it is true that the plaintiff is neither Mrs. Randall nor her curator, it is also true that the plaintiff is a surviving child of Mrs. Randall and, as a surviving child of Mrs. Randall, if her claim under the NHRBR is heritable, then this plaintiff has the capacity or legal interest to enforce the rights asserted under the NHRBR in this petition.

Camelot contends that the claims asserted by this plaintiff under the NHRBR Rare not heritable based upon two arguments. Camelot’s first argument is that the allegations of violations of the NHRBR in the plaintiffs petition are not heritable because they are not related to medical treatment. Camelot cites Short v. Plantation Management Corp., 99-899 (La.App. 1st Cir.12/27/00), 781 So.2d 46, contending in its brief that “an alleged violation of the NHRBR should not be deemed heritable unless the alleged violation is related to medical treatment.” Camelot’s basis for this bright line rule is the following quote from Short, “[i]n this regard, violations of the provisions of the Resident’s Bill of Rights law, relating to medical treatment, constitute an ‘offense or quasi-offense.’ As such they give rise to the application of La.C.C. art. 2315.1, and the right of a survival action.” Id at 54. (Emphasis Camelot’s).

Our reading of Short is that the First Circuit found that all claims asserted under the NHRBR are heritable. The rule as stated in Short is summed up in the sentence following the quote relied upon by Camelot, “[w]e thus conclude that the causes of action advanced pursuant to the Residents’ Bill of Rights Law constitute heritable actions that can be asserted by a party’s successor.” Short, p. 8, 781 So.2d at 54. We adopt this reading for Short because this court did not find any other case that can be interpreted to stand for the proposition put forth by Camelot. However, this court found several cases, including one decided by our own Louisiana Supreme Court, Richard v. Louisiana Extended Care Centers, Inc., 02-978 (La.1/14/03), 835 So.2d 460, that have found, either by implication or directly, that actions brought under the NHRBR are heritable regardless of whether the alleged violations are related to medical treatment. As such, Camelot’s first argument, that the allegations |7of violations under the NHRBR in the plaintiffs petition are not heritable because they are not related to medical treatment, lacks merit.

Camelot’s second argument is that the legislature never intended for claims asserted under the NHRBR to be heritable. We disagree.

On August 15, 2003, the legislature amended La.R.S. 40:2010.9 to eliminate civil enforcement via claims for actual money damages and instead provided for civil enforcement only via injunctive relief. Prior to August 15, 2003, La.R.S. 40:2010.9 stated:

A. Any resident whose rights, as specified in R.S. 40:2010.8, are deprived or infringed upon shall have a cause of action against any nursing home or health care facility responsible for the violation. The action may be brought by the resident or his curator, including a curator ad hoc. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual damages for any deprivation or infringement on the rights of a resident. Any plaintiff who prevails in such action shall be entitled to recover reasonable attorney’s fees, costs of the action and damages, unless the court finds that the losing plaintiff has acted in bad faith with malicious purpose, and that there was an absence of a justicia-ble issue of either law or fact, in which case, the court shall award the prevailing party his reasonable attorney fees. B. The remedies provided in this action are in addition to and cumulative with other legal and administrative remedies available to a resident and to the Department of Health and Hospitals or other governmental agencies. (Emphasis added.)

After the legislature amended La.R.S. 40:2010.9 on August 15, 2003, it states, in pertinent part:

A. Any resident who alleges that his rights, as specified in R.S. 40:2010.8, have been deprived or infringed upon may assert a cause of action for injunc-tive relief against any nursing home or health care facility responsible for the alleged violation. The action may be brought by the resident or his curator, including a curator ad hoc. The action may |sbe brought in any court of competent jurisdiction to enforce such rights or to enjoin any deprivation or infringement on the right of a resident. Any plaintiff who prevails in such action shall be entitled to recover reasonable attorney fees, and costs of the action, unless the court finds that the losing plaintiff has acted in bad faith which malicious purpose, and that there was absence of a justiciable issue of either law or fact, in which case the court shall award the prevailing party his reasonable attorney fees. (Emphasis added.)

Camelot contends that because the only remedy that the legislature made available in the current La.R.S. 40:2010.9 was that of injunctive relief, the legislature was indicating that it never intended any actions under the NHRBR to be heritable. This supposition is contrary to the legislative intent expressed in La.R.S. 40:2010.6.

Louisiana Revised Statute 40:2010.6 states, in pertinent part:

The legislature finds that persons residing within nursing homes are isolated from the community and often lack the means to assert their rights as individual citizens. The legislature further recognizes the need for these persons to live within the least restrictive environment possible in order to retain their individuality and some personal freedom. It is therefore the intent of-the legislature to preserve the dignity and personal integrity of residents of nursing homes through the recognition and declaration of rights safeguarding against encroachments upon nursing home residents’ right to self-determination. (Emphasis added.)

Given these clear legislative findings that residents in nursing homes are in need of help to represent themselves as they “lack the means to assert their rights as individual citizens,” Camelot’s argument that the legislature never intended causes of action to be heritable under the NHRBR is counterintuitive.

Moreover, causes of action set out in the NHRBR have been held to be heritable since 1985, as established by Richard, 835 So.2d 460; Short, 781 So.2d 46; and those cases cited in Footnote 1. This jurisprudence has never been overturned legislatively or otherwise. The legislature had never intended for the causes of action in the NHRBR to be heritable, as Camelot argues, the August 15, 2003, amendment would have addressed whether causes of action under the NHRBR were heritable leather than focus on the removal of recovery for actual money damages. As such, we find that Camelot’s argument that the legislature never intended for causes of action asserted under the NHRBR to be heritable is also without merit.

Finally, Camelot argues that the plaintiff has no right of action because the negligence the plaintiff alleged in his petition is related to medical treatment, and should be considered part of his medical malpractice claim that he voluntarily dismissed when he filed a Motion and Order for Voluntary Partial Dismissal. Camelot contends that when the trial court signed an order stating, “IT IS HEREBY ORDERED that the Plaintiffs claims asserted under the Medical Malpractice Act are hereby dismissed, with prejudice, reserving Plaintiffs right to pursue the claim asserted under the Louisiana Nursing Home Residents’ Bill of Rights,” plaintiff waived any cause of action he had against it. This argument also lacks merit.

The plaintiffs petition clearly contains allegations that are not covered by. the Medical Malpractice Act. In plaintiffs petition, he asserted claims on behalf of Mrs. Randall that she had suffered damages from being, “[ljeft to lie for hours at a time in dirty, soiled conditions from dried human waste.” Further, the plaintiff asserted a claim on behalf of the decedent for a loss of dignity due to Camelot’s “reckless disregard for the consequences of its actions caused staffing levels to be set at a level where personnel on duty at any given time could not reasonably tend to the basic life needs of the residents.... ”

In Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, our Louisiana Supreme Court used six factors to determine whether a claim is covered under the Medical Malpractice Act. Those six factors are:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert | inmedical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional.

The First Circuit and Second Circuit Courts of Appeal have dealt with these virtually identical allegations regarding failure to change adult diapers and bed linens. Using the six factors set out in Coleman above, both courts determined that this type of allegation does not require submission to a medical review panel and therefore is not part of a medical malpractice claim.

We agree with our fellow circuits as is evidenced in Quinney v. Summit of Alexandria, 05-237 (La.App. 3 Cir. 6/1/05), 903 So.2d 1226. Using the six factors in Coleman we find no reason to find that the plaintiffs voluntary dismissal of any medical malpractice claims is inclusive of a claim for loss of dignity under the NHRBR based upon Camelot’s chronic un-derstaffing. Allegations that Camelot allowed Mrs. Randall to lie in her own waste and failed to change Mrs. Randall’s linens are not “treatment related” or caused by a dereliction of professional skill, nor do the allegations require expert medical evidence to determine whether the appropriate standard of care was breached. As such, Camelot’s contention that the plaintiff dismissed all of his remedies available when he voluntarily dismissed his _[ilmedical malpractice action is without merit.

Moreover, it is clear from the current version of La.R.S. 40:2010.9(B) that causes of action for money damages based upon other legal remedies, for example those based upon La.C.C. art. 2315, are not barred. Louisiana Revised Statute 40:2010.9(B) states, “The remedies provided in this Section shall not be construed to restrict other legal and administrative remedies available to a resident and to the Department of Health and Hospitals or other governmental agencies.” Given that the plaintiffs petition asserted a survival action and wrongful death action based upon La.C.C. art. 2315, and the plaintiff is a surviving child of the decedent, Mrs. Randall, we find no merit in the assertion that this plaintiff had no right of action against Camelot.

As such, Camelot’s various contentions that the claims set forth in the plaintiffs petition provide him with no right of action are without merit. We affirm the trial court’s denial of Camelot’s Peremptory Exception of No Right of Action.

ASSIGNMENT OF ERROR # 2:

Camelot argues that the trial court erred in denying its Peremptory Exception of Prescription. We disagree.

The exception of prescription is a peremptory exception. La.Code Civ.P. art. 927(A)(1). The Peremptory Exception of Prescription may be brought by the defendant at any stage of the proceeding in the trial court prior to the submission of the case for a decision. La.Code Civ.P. art. 928(B). “If the peremptory exception has been filed after the answer, but at or prior to the trial of the case, it shall be tried and disposed of either in advance of or on the trial of the case.... ” La.Code Civ.P. art. 929(B). “When evidence is introduced and evaluated at the trial of a peremptory 112exception, an appellate court must review the entire record to determine whether the trial court was manifestly erroneous with its factual conclusions” Parker v. Buteau, 99-519, p. 3 (La.App. 3 Cir. 10/13/99), 746 So.2d 127, 129.

“Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s 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.” Id. at 1112.

Louisiana Revised Statute 40:2010.9(c) states:

Any claim brought pursuant to R.S. 40:2010.8 et seq. shall be filed in a court of competent jurisdiction within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including, but not limited to, minors, interdicts and all persons adjudicated to be incompetent of handling their own affairs.

The party alleging that a claim has prescribed ordinarily bears the burden of proof. However, when it appears that prescription has run from the face of the pleadings, the burden of proof then shifts to the party not asserting prescription to prove that prescription has been interrupted or suspended. Younger v. Marshall Indus., Inc., 618 So.2d 866 (La.1993).

“When the tortious conduct and the resulting damages continue, prescription does not begin until the conduct causing the damages is abated.” South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531, 533 (La.1982). If a defendant’s | ^conduct is continuous and it gives rise to damages successively occurring from day to day, then a continuing tort exists. When such a situation arises, prescription does not begin to run until the continuous, damage causing conduct ceases. Coulon v. Witco Corp., 03-208 (La. App. 5 Cir. 5/28/03), 848 So.2d 135; Wilson v. Hartzman, 373 So.2d 204 (La.App. 4 Cir.1979), writ denied, 376 So.2d 961 (La. 1979); Craig v. Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (1968).

The plaintiff alleged in his petition that the continuing toft doctrine applied to the case at bar. In his petition, the plaintiff alleged that Camelot’s damaging conduct, chronic and continuous understaffing, led to day to day violations of Mrs. Randall’s “right to be treated courteously, fairly and with the fullest measure of dignity,” as guaranteed to her in the NHRBR.

Whether Mrs. Randall suffered due to the continuous understaffing at Camelot is a necessary finding to prove the allegation in the plaintiffs petition. This court must determine whether the trial court was “manifestly erroneous” or “clearly wrong” in its factual conclusions by looking at the entire record.

After thoroughly reviewing the record, we find that the trial court’s determination regarding whether Camelot was continuously and habitually understaffed was not “manifestly erroneous” or “clearly wrong.” The testimony of Sadie Dixon, an aide at Camelot while Mrs. Randall was a resident, was that she would find Mrs. Randall lying in dried bowel movements and urine in the mornings when she would come into work “two or three times a week.” Ms. Dixon testified that Mrs. Randall was found in this condition because Camelot “didn’t have enough people to help, you know, turn her or something like that. We [Camelot] didn’t have enough people to help really do anything.”

| 14Ms. Dixon only worked four times a week. Ms. Dixon’s testimony that Mrs. Randall was in this condition due to under-staffing two or three times a week of the four days a week that she worked is evidence that Camelot was understaffed continuously.

Further, there is the testimony of Leah Ballard. Ms. Ballard was a CNA at Camelot while Mrs. Randall was a resident. She testified that “[u]sually, we [Camelot] were very short staffed. There was usually four people supposed to work the night shift and at least three or four times a week there was only two to three CNAs.”

Finally, there is the testimony of Ms. Lakisha Washington. Ms. Washington was also a CNA at Camelot while Mrs. Randall was a resident. Ms. Washington testified that she also would find Mrs. Randall lying in dried bowel movement and dried urine “two to three times a week” when she would come into work in the mornings.

Camelot counters these testimonies that they were continually understaffed by pointing out that it was only cited twice for understaffing during the time that Mrs. Randall was a resident. Camelot’s argument is greatly undermined, however, when, during Ms. Lakisha Washington’s testimony, counsel for the plaintiff asked if the staffing would change when the State would come to Camelot and Ms. Washington replied, “[y]es, ma’am. We would have more help and department heads helping out more.” Directly after this testimony, when asked what would.happen once the State would leave, Ms. Washington replied, “[w]e’d go back to the way we was before they came.”

Moreover, we note that if Camelot does not receive a citation for being | ^understaffed on one particular day, that does not mean that Camelot was properly staffed on that particular day, it simply means that the State was not aware of whether Camelot was understaffed that day.

While there was other testimony from management personnel that Camelot was not continuously understaffed, it is not this court’s duty under the applicable standard of review to weigh the evidence, nor make any credibility determinations. As reflected by its ruling, the trial court chose to believe that Camelot was continuously understaffed. As noted above, there was a plethora of testimony that Camelot was understaffed on a regular basis. These testimonies create a reasonable basis for the trial court to have chosen to believe that the plaintiff proved what he needed to prove in order to overcome the presumption that his claims had prescribed. It was a reasonable finding that Camelot’s continuous understaffing was damaging to Mrs. Randall on a day to day basis. As such, we cannot reverse the trial court for its reasonable determination and, therefore, affirm the trial court’s denial of Camelot’s Peremptory Exception of Prescription.

Camelot also argues in this assignment of error that the trial court erred in denying its Motion in Limine to limit the evidence the plaintiff could submit to those actions which occurred within one year of the plaintiff filing suit

A Motion in Limine is an evi-dentiary matter and great discretion is given to the trial court on its rulings on such evidentiary matters. Heller v. Nobel Insurance Group, 00-261 (La.2/2/00), 753 So.2d 841; Scott v. Dauterive Hosp. Corp., 02-1364 (La.App. 3 Cir. 4/23/03), 851 So.2d 1152, unit denied, 03-2005 (La.10/31/03), 857 So.2d 487. As we noted above, there is ample evidence in the record to uphold the trial court’s denial of Camelot’s Motion in Limine.

| ^ASSIGNMENT OF ERROR # 3:

Next Camelot argues that the jury erred in holding that the decedent, Mrs. Randall, sustained any injury or damages under the Louisiana NHRBR, absent any expert medical evidence and in the face of the opinions of four physicians that she received excellent care. This argument is misguided.

In brief, when arguing the merits of this assignment of error, Camelot again contends that when Plaintiff filed a Motion and Order for Voluntary Partial Dismissal dismissing his medical malpractice claims, he also dismissed his NHRBR claims as they are “inherently subsumed” within Plaintiffs medical malpractice claims. We have already discussed the merits of this argument in Assignment of Error # 1, and found it baseless.

Next Camelot contends that it was unreasonable for the jury to find that the damage suffered by Mrs. Randall was causally related to the fact that she was allowed to sit in her waste for prolonged periods of time. This argument is also without merit.

Plaintiff, on behalf of Mrs. Randall, was awarded by the jury for her loss of dignity. The jury found that her loss of dignity resulted from Camelot’s chronic under-staffing. Plaintiff did not need to put forth expert medical testimony to combat the testimony of four physicians in order to prove that Mrs. Randall suffered a loss of dignity; Plaintiff merely had to put forth evidence that Mrs. Randall suffered a loss of dignity due to Camelot’s chronic understaffing. Plaintiff did this via the testimony of Sadie Dixon, Leah Ballard, Lakisha Washington and the plaintiff himself. Their testimonies, as discussed in Assignment of Error #2 above, provide the jury with ample evidence to find that Mrs. Randall sustained damages under the NHRBR due to her loss of personal dignity. Accordingly, we affirm the jury’s determination that|17Mrs. Randall did sustain injury and damages under the Louisiana NHRBR

ASSIGNMENT OF ERROR # 4:

Camelot argues that the jury erred in awarding $150,000.00 to the plaintiff. Camelot contends the award should be reduce by two-thirds as Mrs. Randall had two other children besides the plaintiff and the plaintiff is only entitled to recover his virile share. We are convinced that Plaintiff is only entitled to recover his virile share.

Louisiana Civil Code Article 2315.1 provides, in part, that:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year for the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

Louisiana Civil Code Article 1788 states that, “[w]hen an obligor owes just one performance intended for the common benefit of different obligees, neither of whom is entitled to the whole performance, the obligation is joint for the obligees.”

Louisiana Civil Code Article 1815 states that, “[a]n obligation is divisible when the object of that performance is susceptible of division.”

Louisiana Civil Code Article 1789 states, in pertinent part, “When a joint obligation is divisible, each joint obligor is bound to perform, and each joint obligee is entitled to receive, only his portion.”

In the case before us, Mrs. Randall’s right to recover under La.R.S. 40:2010.9 for damages inflicted upon her by Camelot survived her death per La.Civ.Code art. 2315.1(A). This right to recover is bestowed upon her surviving three children as they are the highest ranking beneficiaries under La.Civ.Code art. 2315.1(A)(1). Included in this class of beneficiaries is Plaintiff. Camelot, the obligor, owes one performance, payment of damages to Mrs. Randall. This performance is intended under 11sLa.Civ.Code art. 2315.1(A)(1) for the common benefit of different obligees, Mrs. Randall’s three children. None of Mrs. Randall’s children are entitled to the whole performance. Therefore, under La. Civ.Code art. 1788, Camelot’s obligation to Mrs. Randall’s children is a joint obligation.

The object of Camelot’s performance, money damages, is susceptible of division; therefore, the obligation is divisible per La.Civ.Code art. 1815. Because the obligation owed by Camelot to Mrs. Randall’s children is both divisible and joint, each joint obligee, one of which is Plaintiff, is entitled to recover only his share.

Because Plaintiff is only entitled to recover his virile share, Camelot argues that the $150,000.00 award should be reduced by two-thirds to Plaintiffs virile share. There is no evidence in the record that supports this argument.

Both Plaintiff and Camelot cite Guilbeau v. Bayou Chateau Nursing Center, 05-1131 (La.App. 3 Cir. 5/17/06), 930 So.2d 1167, writ denied, 06-1496 (La.10/13/06), 939 So.2d 365. Much like the case before us, the Guilbeau case involved surviving children bringing a survival action on behalf of their mother for damages she suffered while in the care of a nursing facility. In Guilbeau, four of the decedent’s five children brought an action that resulted in an award of $100,000.00. The defendants in Guilbeau, like Camelot here, argued that the trial court did not account for the remaining child’s virile share and the award should be reduced accordingly. The Guilbeau court found that because the trial court was aware of the decedent’s fifth child, and because there was no evidence that the trial court failed to take this fact into consideration when it made its award, there was no reason to adjust the award given at the trial level based upon a finding that the existence of other beneficiaries was not taken into account.

119Here, it is also true that the finder of fact on the trial level was aware that the decedent, Mrs. Randall, had other children that were not a part of the case before them. Further like in Guilbeau, there is also no evidence in the record here that the jury failed to take this fact into consideration when it made its award. As such, this court, like the Guilbeau court, will not adjust the award based upon this argument.

ASSIGNMENT OF ERROR # 5:

Camelot argues that the jury erred by excessively awarding $150,000.00 to Plaintiff. We agree.

This court, in Guillot v. Doe, 03-1754, pp. 5-6 (La.App. 3 Cir. 6/30/04), 879 So.2d 374, at 379-80, when discussing the correct procedure for reviewing damage awards, stated the following:

An appellate court should rarely disturb an award of damages due to the great and, even, vast discretion vested in the trial court. We can disturb such awards, only, when the trial court clearly abused its discretion.
Reasonable people often disagree over the appropriate measure of general damages in a particular case. Yet, “[i]t is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” We should not rely on a comparison of prior awards in cases with similar medical injuries to decide whether the trial court abused its discretion. “The primary considerations in assessing damages are the severity and duration of the injured party’s pain and suffering.” (Citations omitted.)

“The appropriate procedure for testing whether the jury abused its discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury.” Schexnayder v. Carpenter, 346 So.2d 196,198 (La.1977).

If an abuse of discretion is found, the appellate court will only lower the award 12nto the highest (or raise the award to the lowest) point which is reasonably within the discretion afforded the court; the appellate court does not substitute its judgment for that of the trial court judge or jury in this situation. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

After reviewing the record, we find that the jury abused its discretion in making its award. Given our finding that the jury’s award of $150,000.00 is the virile portion of Plaintiff in Assignment of Error # 5, it would then follow that the jury believed the total damages suffered by Mrs. Randall to be $450,000.00. This is an unreasonable sum to this court. As such, we are called to lower the award to the highest point within a court’s discretion given the facts of the case.

If we are to view the evidence in a light most favorable to Plaintiff, the dignity of Mrs. Randall was violated over a three year period. We find that the highest sum that Mrs. Randall could reasonably be awarded under the facts of this case is $300,000.00. Given that Plaintiff is one of three members of the class of beneficiaries, Mrs. Randall’s children, Plaintiff is entitled to $100,000.00. Accordingly, we reduce the award to Plaintiff from $150,000.00 to $100,000.00.

ASSIGNMENT OF ERROR # 6:

Camelot argues that the trial court erred in failing to apply the amendment of the Louisiana NHRBR, effective August 15, 2003, to remove the damages remedy to Plaintiffs suit filed on March 18, 2004. This argument lacks merit.

As discussed in Assignment of Error # 2, the legislature amended La.R.S. 40:2010.9 effective August 15, 2003. Louisiana jurisprudence, which has not been overturned legislatively or otherwise, has found that the August 15, 2003, amendment |aiis not retroactive. The plaintiff alleged incidents of negligence that occurred prior the August 15, 2003, amendment. We upheld the trial court’s findings in Assignment of Error #2 that those prior incidents of negligence were not prescribed due to the continuing tort doctrine. Therefore, the plaintiff was entitled to recover actual money damages under the NHRBR for acts that he alleged occurred prior to the August 15, 2003, amendment. As such, Camelot’s contention is without merit and we affirm the trial court’s award of actual money damages under the NHRBR.

ANSWER TO APPEAL:

Plaintiff answered Camelot’s appeal requesting additional attorney’s fees for work performed on this appeal under La. R.S. 40:2010.9. We grant this request.

Our review of the record convinces us that an additional award of $5,000 is warranted for appellate work performed by Plaintiffs counsel.

CONCLUSION:

Camelot asserts six assignments of error. We affirm the trial court on its finding that Camelot’s Peremptory Exceptions of No Right of Action and Prescription lacked merit. We also affirm the trial court on its finding that Camelot’s Motion in Limine lacked merit. We find no abuse of discretion by the jury in finding that Mrs. Randall suffered damages under the Louisiana NHRBR, nor do we find any error in the jury’s failure to reduce Plaintiffs award by two-thirds based on the number of beneficiaries in the class that can recover for Mrs. Randall’s damages. We find that the jury’s award of $150,000.00 to Plaintiff for his virile share of Mrs. Randall’s damages was abusively high and reduce that award to $100,000.00. We also affirm | ¡¡¡¿he trial court’s allowance for Plaintiff to recover money damages from Camelot despite our Legislature’s August 15, 2003, amendment to La.R.S. 40:2010.9 based upon the continuing tort doctrine. Finally, we award Plaintiff $5,000 in additional attorney’s fees for all work performed on this appeal. All costs of this appeal are assessed to Camelot.

AFFIRMED AS AMENDED.

      . See Pender v. Natchitoches Parish Hospital, 01-1380 (La.App. 3 Cir. 5/15/02), 817 So.2d 1239; Rachal v. Peters, 28,655 (La.App. 2 Cir. 9/25/96), 680 So.2d 1280; Carl v. Naquin, 93-1725 (La.App. 1 Cir. 5/20/94), 637 So.2d 736; Schenck v. Living Centers-East, Inc., 94-2514 (E.D.La.4/21/96), 917 F.Supp. 432; Petre v. Living Centers-East, Inc., 94-1004 (E.D.La.4/8/96), 935 F.Supp. 808.

      . See Davis v. St. Francisville Country Manor, LLC, 05-72 (La.App. 1 Cir. 2/10/06), 928 So.2d 549, writ denied, 06-604 (La.5/26/06), 930 So.2d 25; Womack v. Autumn Leaves Nursing & Rehabilitation Center, L.L.C., 39,-710 (La.App. 2 Cir. 5/11/05), 902 So.2d 1280; Rogers v. Hickory Manor Nursing & Rehabilitation, L.L.C., 39, 626 (La.App. 2 Cir. 5/11/05), 902 So.2d 1150; Burks v. Christus Health Monroe, 39,540 (La.App. 2 Cir. 4/6/05), 899 So.2d 775, writ denied, 05-1184 (La. 11/28/05), 916 So.2d 146; Henry v. West Monroe Guest House, Inc., 39,442 (La.App. 2 Cir. 3/2/05), 895 So.2d 680, writ denied, 05-875 (La.5/13/05), 902 So.2d 1032.

      . See Davis, 928 So.2d 549, writ denied, 06-604 (La.5/26/06), 930 So.2d 25; Furlow v. Woodlawn Manor, Inc., 39,485 (La.App. 2 Cir. 4/20/05), 900 So.2d 336, writ denied, 05-1320 (La. 12/9/05), 916 So.2d 1064.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    James Carey PAHAL, Plaintiff-Appellee v. Debra Lynn TAYLOR, Pahal Sepulvado, Defendant-Appellant.
    No. 42,698-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 2007.

      McKeithen Law Firm, by Anita D. McKeithen, Shreveport, for Appellant.
    Thomas Norman Thompson, Shreveport, for Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   DREW, J.

hln this child custody matter, Debra Sepulvado appeals a judgment denying her request to be named domiciliary custodian of her 16-year-old son. We affirm the ruling of the learned trial court.

FACTS

James Pahal (“Pahal”) and Debra Sepul-vado (“Sepulvado”) were married in 1988. In November of 1990, Sepulvado, who was six months pregnant, left Pahal and moved in with a high school boyfriend, who had been released from prison that same month. In November of 1991, these parents each sought custody of their son, M.P., born in January of 1991.

Following a contested hearing, the trial court:

• granted joint custody, with Pahal designated as the domiciliary custodian;
• stated that it was in the best interests of M.P. for his father to be the domiciliary parent because of Sepulvado’s affair with a twice convicted felon, a better opportunity for timesharing, Sepulvado’s lack of credibility, Pahal’s commitment to providing religious education for his son, and Pahal’s better family support.

On appeal, this court found no error in the awarding of domiciliary custody to Pahal. Pahal v. Pahal, 606 So.2d 1359 (La. App. 2d Cir.1992).

Because of non-traditional work schedules, the Joint Custody Implementation Plan (“JCIP”), was somewhat complicated:

• Sepulvado had physical custody of M.P. every other weekend from noon on Friday to noon on Monday.
|⅞* On non-visitation weekends, she had physical custody on Monday from 9:00 a.m. to 8:00 p.m. if Pahal’s work required him to be out of town on that day.
• On visitation weekends, Pahal was permitted to have custody of M.P. for a few hours on Sunday to take him to church for morning and evening services.
• In addition to physical custody during holidays, each party was to have three weeks of uninterrupted visitation during the summer.
• This court calculated that Sepulvado had approximately 125-135 days of physical custody per year under the JCIP.

Several amendments were made to the JCIP by this court in the 1992 appeal. Sepulvado had requested six weeks of physical custody during the summer and at all times when Pahal was out of town. In order to give the parties a more equal sharing of physical custody, this court amended the plan to give Sepulvado six weeks of physical custody during the summer, with Pahal having two weekends of visitation during this period.

This court also amended the JCIP to afford Sepulvado the opportunity to take M.P. to morning and/or evening church services on Sundays when she had physical custody, with the requirement that she notify Pahal of her intent to do so before noon of the preceding Friday.

On October 9, 2002, the trial court increased Sepulvado’s child support.

It also modified the JCIP as per agreement by the parties:

• During the school year, Sepulvado had physical custody of M.P. on every other weekend from 5:00 p.m. on Friday to Sunday at 5:00 p.m.
• If she did not plan to take M.P. to church, then she was to inform Pahal of this by noon on Saturday, and then he could pick up M.P. at 9:00 a.m. on Sunday and return him later that day at 1:00 p.m.
|3* During the summer, weekend visitation was suspended, and Sepulvado was to have uninterrupted physical custody for five consecutive weeks beginning the Monday after Father’s Day.
• Although weekend visitation would not resume until the weekend after school started, M.P. could request weekend summer visitation.

On November 15, 2005, the mother filed a rule for change of custody, alleging that she should be designated as the domiciliary parent because Pahal had neglected to get and refused to pay for medical treatment for M.P., and because M.P. wanted to live with his mother.

On January 17, 2006, the father responded by filing a rule requesting:

• allocation of non-covered healthcare expenses,
• increased child support,
• modification of the JCIP concerning custody of M.P. during the 4th of July holiday, and
• transportation of M.P. by the party with physical custody.

Following a hearing on the rules, the trial court maintained Pahal as the domiciliary parent.

However, the court wisely ordered that:

• Each party timely provide the other with all dental, medical, and school information either receives about their son.
• Sepulvado be listed on his school records as M.P.’s mother and as an additional person allowed to pick him up.
• M.P. be allowed to have a cell phone provided by his mother while at his father’s, by which to communicate with his mother,
• Pahal to have physical custody of M.P. every Sunday from 9:00 a.m. to 1:00 p.m. for morning church services, and from 30 minutes before and 30 minutes after Sunday evening church services.
!,[• Sepulvado to have physical custody of M.P. on every other weekend from 5:00 p.m. on Friday to 8:00 a.m. on Monday. If this schedule is disrupted by the holidays, then her weekend visitation would resume on the first weekend she is off work after the holidays.
• Sepulvado to have physical custody of M.P. on every other Wednesday from 5:00 p.m. until Thursday at 5:00 p.m. beginning on February 14, 2007, and on every other Tuesday from 5:00 p.m. until Wednesday at 5:00 p.m. beginning on February 21, 2007.
• Physical custody of M.P. is to be alternated for the Spring Break, 4th of July and Labor Day holidays.
• Sepulvado is not to allow M.P. to have access to mature-rated video games while he is at her home.

The trial court denied any additional modification of the JCIP, increased Sepul-vado’s child support obligation, allowed Pa-hal to declare M.P. as a dependent on his income tax returns, and ordered each party to bear a portion of M.P.’s necessary and noncovered dental, medical, orthodontic and ophthalmic expenses.

DISCUSSION

Sepulvado contends on appeal that the trial court erred in failing to modify custody to designate her as the domiciliary parent. She further contends that the Ber-geron standard for changing a considered custody decree should not be applied in this case. She has not asked us to alter the visitation schedule.

When a trial court has made a considered decree of permanent custody, the party seeking a change in custody bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or proving by clear and convincing evidence that the harm likely to be caused by a change of J^environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986). A considered decree is one for which evidence as to parental fitness to exercise custody is received by the court. Oglesby v. Oglesby, 25, 974 (La.App.2d Cir.8/17/94), 641 So.2d 1027.

Because the 1991 judgment naming Pa-hal as domiciliary parent was a considered decree, the Bergeron standard was properly applied by the trial court in the most recent litigation in this case, and we find no clear error in the trial court maintaining Pahal as the domiciliary parent.

Sepulvado’s primary evidence in support of a modification of custody is that M.P., who is now 16 years old, asked her to request the change. M.P. wants to live with his mother because he wants to spend more time with her, and because Pahal does not allow him to visit his mother whenever he wishes. M.P. believes that if he lived with his mother, then she would permit him to visit his father at any time that he wanted. Sepulvado would be open to allowing M.P. to visit his father whenever he wanted. M.P. also stated that he believed that his life would be easier for him if he lived with his mother because then he would not have to do as much work around the house as he does with his father, one example of which was helping his father put a roof on their house. M.P. added that he was not implying that his mother allows him to do what he wants, as she disciplines him, expects him to keep his room clean, and makes him go to sleep at a reasonable hour. Because his mother only lives about four miles from his father, he would |fiattend the same school and even ride the same bus to school, even with a change in custody.

In most respects, Sepulvado has gotten her life in order since Pahal was awarded domiciliary custody. She graduated from nursing school in May of 2006 and works at Minden Medical Center, though her work schedule is not always harmonious with her visitation schedule. Her marriage to the ex-convict ended after nine years, and she has been married to her current husband for six years.

Still, Sepulvado has exhibited poor judgment in recent years:

• She allowed two cousins who were known drug users to live with her. While her efforts to help her cousins straighten out their lives is commended, it was not in M.P.’s best interest to expose him to the cousins. It is noted that the cousins are no longer welcome in her home, and that she even filed charges against them after they apparently took some money from her and used a family vehicle without permission.
• She has not always ensured that M.P. remained in her presence when she had physical custody of him. During the Summer of 2005, she allowed M.P. to go on a week-long trip to the Midwest without her but with a family friend whom Pahal knew little about. Pahal stated that he did not know how to contact M.P. during the trip, and that he never heard from M.P. during the trip. Sepulvado has, during her visitation period, allowed M.P. at times to stay with her sister.
• Sepulvado’s husband Christopher used poor judgment involving M.P. He twice allowed M.P., when he was 12 or 13, to ride in the back of his pickup truck, which Christopher did not think was unsafe. He has also twice let M.P., who at the time had not taken a hunter safety course, to be in a deer stand with a loaded rifle and another youth with no adult present. Christopher saw nothing wrong with this.
• There was abundant testimony about an incident involving some “Mature” rated video games belonging to Christopher. These games were kept next to a television in the living room, and on one occasion when M.P. was hurriedly packing his games for a church sleep over, he inadvertently put these violent games into his backpack. When Pahal found out, he removed the games from M.P.’s backpack, which prompted Sepulvado to call the police in order to retrieve them. M.P. 17stated that he has never played these games because he knew it was not allowed. Preventing access to these games was addressed by the trial court.

In his effort to undermine Sepulvado’s case, Pahal places great emphasis on a clothed “lap dance” that Sepulvado performed in 2001 in her home for the benefit of twin brothers who were apparently celebrating their 18th birthdays. The dance was documented by several photos, which show, among other things, Sepulvado’s thong. What alarms this court is not only that Sepulvado performed the dance, but also that her six-year-old son was present in the room at the time, and that she found nothing unusual about her younger son seeing his mother “play.” She also did not think it would be inappropriate for M.P. to see her now acting in that manner.

M.P. is a well-adjusted young man who has thrived while his father has been the domiciliary custodian. On the other hand, this court cannot consider Pahal’s conduct to always be in the best interests of M.P. Pahal, a railroad employee, is a stickler for the letter of the JCIP, and is not in the habit of being flexible when the realities of life collide with the visitation schedule set forth in the JCIP. This record indicates he based his lack of cooperation on a rigid interpretation of the visitation schedule when common courtesy would have resulted in Pahal’s compromising occasionally.

M.P. feels that his mother would be the more flexible of his parents. We agree, but the Bergeron case applies here, and we cannot say the trial court was clearly wrong in its application of this landmark jurisprudence.

IsWhen Sepulvado completed her nursing studies, it was marked by a graduation ceremony and a pinning ceremony that were to take place when M.P. was not in her physical custody. Pahal allowed M.P. to attend the pinning ceremony, but would not allow his attendance at her graduation because he would miss school, even though the record shows that he had good grades and probably would not have suffered academically had he been allowed to attend this milestone event. M.P. also was not allowed to eat with Sepulvado’s family in celebration of her graduation.

Pahal also refused to allow M.P. to attend a family dinner organized for M.P.’s uncle before deployment to Iraq. When Sepulvado called Pahal to ask if her brother could see M.P. to tell him goodbye, Pahal responded that M.P. was unavailable because he was at a friend’s home, when, in fact, he was with his paternal grandparents who lived next door to Pahal. Thankfully, the grandparents allowed the meeting.

Sepulvado also complained that Pahal was unreasonably inflexible when her work schedule over the holidays interfered with her visitation schedule. She asserted that when she approached Pahal about an adjustment, and even offered to give Pahal two weekends with M.P. in a row as an inducement to be flexible, he refused and said he was adhering to the JCIP. Pahal agreed that he told Sepulvado that they would comply by the papers, but he explained that the holidays always throw the weekend schedules off and they had never had to make the adjustment in the past. He also denied that Sepulvado offered him two consecutive weekends.

lain these and countless other ways, large and small, Pahal has done his dead level best to frustrate M.P.’s relationship with his mother. Every child should have easy, relaxed access with both parents, even if they are divorced. M.P. has been denied this. Pahal simply has not taken the minimal steps necessary to include Sepulvado as an active participant in M.P.’s life:

• She is not listed as his mother on M.P.’s school records, although Pahal’s wife of 12 years is listed as his stepmother.
• She is not listed as an emergency contact or someone allowed to pick up M.P. from school.
• If M.P. is ill, she only hears about it from her other son, who rides the same bus, or if she happens to call M.P.

Somehow, someway, M.P. has turned out to be a fine young man, despite the bickering of his parents. It is amazing how resilient young people can be, even when reared by two immature parents, one who lacks judgment, and the other who behaves like a tyrant, schedule-wise, when life doesn’t, and shouldn’t, operate like that.

A wonderful opportunity for cooperation has been squandered, with the parties living only four miles apart, in the same school district. Hopefully, the. remainder of time during which these parties are bound by the visitation schedule can be marked by a concerted effort on the part of both parents to cooperate with M.P. and each other so that his parents can participate as fully as possible in the remainder of his childhood.

| ^CONCLUSION

We hold that the Bergeron standard applies to the instant litigation, and that the trial court was not clearly wrong in refusing to change the domiciliary status of the parents. Although the son desires that his mother now take that role, the court is not bound to abide by his wishes alone. The trial court was not clearly wrong in maintaining Pahal as the domiciliary custodian of M.P.

The trial court took great pains in tweaking the visitation schedule to foster more contact between M.P. and his mother. Sepulvado’s job schedule made this difficult. She works an 11:00 a.m to 11:00 p.m. shift on a rotation of two days on, two days off, two days on, two days off, then three days on, three days off. Pahal’s job schedule with Kansas City Southern Railroad is more regular, as he is off on evenings and weekends.

Our preference, with a child this age, would be to keep things simple and responsive to the reality of M.P.’s teenage years. That apparently not being possible, we conclude that the learned trial court’s visitation schedule is the best it can be under the circumstances. It is obvious that our brother judge below struggled mightily to make the most out of a messy and distasteful situation. We urge these parents, during the last 17 months of this young man’s childhood, to look in the mirror. She needs to continue growing up, and he needs to have a heart, not a piece of paper.

Sepulvado has not asked us to revisit the visitation schedule, only that she be named the domiciliary parent. Under the facts of this case, we are not able to accommodate this'request.

InDECREE

With each party to bear their own costs, the judgment is AFFIRMED.

      . A second felony offender.

      . Initials are used in lieu of the child’s name.

      .His parents lived next door to him.

      . With the proviso that the phone is to be turned off at 9:00 p.m. on school nights.

      . Now sixteen and one-half years old.


text:
    STATE of Louisiana, Appellee v. Phillip BROWN, Appellant.
    No. 42,054-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 2007.

      W. Jarred Franklin, for Appellant.
    Phillip Brown, pro se.
    Paul Joseph Carmouche, District Attorney, Dale G. Cox, Assistant District Attorney, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   DREW, J.

11 Phillip Brown was convicted as charged of two counts of second degree murder. He was sentenced to life imprisonment without benefits on each count, to be served concurrently. He appeals. We affirm in all respects.

FACTS

On October 10, 2002, two groups of young Shreveport men began arguing at Woodlawn High School. Gang signs were exchanged. A couple of days later, Phillip Brown was in a group leaving a skating rink when Randy Wilson and others exchanged words with them. Wilson fired shots in their direction.

Two days later, a fight broke out at Woodlawn as the school day ended. Donnie Morgan, a young man from the Hollywood area, was beaten and bruised. Assistant principal Jim Cowdin chased a group of men, including Brown, away from campus.

Marquell Chambers discharged a gun from a departing car driven by Floyd Whitaker, injuring the leg of Jonathan Guiden, a bystander from the Cedar Grove area. Whitaker drove the car to Hattie Perry Park, where the Hollywood group typically gathered. Those present at the park included Tony Taylor, Jermichael Lewis, Morgan, and Wilson.

A little later, some of the Cedar Grove group, including Brown, Courtney Beaner, Carlton Brooks, Aaron Wallpool and Jem-arcus Monroe gathered outside Wallpool’s Shreveport home, located at Wallace and West | .,76th Street. A group of young men from the Hollywood area, including Tony Taylor (the driver), Kevin Taylor (Tony’s cousin), Morgan, and Lewis, drove past in a Lincoln automobile. According to Tony, Brown fired gunshots at the Lincoln and/or in the air. The Taylors related that their group later retaliated with a drive-by shooting directed at the Wallpool group. Nobody was hurt.

Monroe testified that the Lincoln drove past once, with shots being fired at the Cedar Grove group. Monroe denied that anyone returned fire.

At about 5:00 p.m., members of the Cedar Grove group, including Brown, Beaner, Brooks, and Shamichael Tillman, drove to Hattie Perry Park, hoping to. retaliate against Wilson. The attempt was thwarted because the police were at the park arresting Chambers for being the shooter in the Woodlawn drive-by.

LaDonna Austin lived at a Lexington Street home with her sister, LaDorothy Austin. LaDonna and LaDorothy witnessed Brown, Beaner, Shamichael Tillman, and Marlon Washington discussing the Woodlawn fight and making plans to retaliate against Wilson for the earlier Wallace/West 76th Street shooting. La-Dorothy heard Brown say he was going to “shoot.” She saw Brown and Beaner with guns. LaDonna and LaDorothy saw the group of men dress in black clothing with hoods and leave the Lexington Street home in a white Honda.

While LaDonna left for a quick trip to the grocery store, LaDorothy saw the men return and then leave again. Their first drive-by attempt had been deterred by police presence. Monroe went with the others. He said | .-¡Brooks drove and Brown sat in the front passenger seat. Brown, Tillman, and Beaner all had guns.

At approximately 9:00 p.m., Ronnie Chambers went to pick up his 15-year-old sister, Chiquita Chambers, on the corner of Oakdale and Ledbetter, at a home where some of the Hollywood group hung out. When Ronnie arrived, there were several young men standing in the yard, including Wilson and Lewis. Ronnie parked his car on the street and his sister ran out of the house toward him. A white Honda Accord with a sunroof and tinted windows drove by on Ledbetter. Chiquita was standing in the street behind Ronnie’s car when the white Honda pulled up within a few feet of her. Two guns emerged from the Honda’s sunroof and fired several shots “point blank” at Chiquita, striking her in the chest. She was pronounced dead that night. Lewis died early the next morning. Wilson (the target) was shot in the arm. No witness to the shooting testified that the victims were armed.

Monroe witnessed all three men-Brown, Tillman and Beaner — shoot their guns as their car drove past the group of people standing on the corner.

The group of men returned in the Honda to the Lexington Street home about 15 minutes after they had departed, where they told LaDonna that they did a “drive-by” shooting on Ledbetter. LaDorothy saw Tillman drive off in the Honda. Brown admitted shooting from the sunroof, but didn’t know if he hit anyone.

LaDorothy saw Beaner and Brown return home and heard Brown say that:

14* he did not know that the girl was on the porch;

• the girl was at the wrong place at the wrong time;

• the rest “of them deserve what they got”;

• they wanted to kill Wilson; and

• his (Brown’s) gun jammed, so Beaner shot first, and then he (Brown) also fired.

The subsequent crime scene investigation yielded numerous .380 and .40 caliber shell casings. Police searched the Lexington Street home the next day and seized two firearms from LaDorothy’s room — a Lorcin .380 caliber semiautomatic pistol and a Bryco .380 semiautomatic pistol with a red sight — plus magazines and live ammunition. After interviewing Beaner, it was determined that he had been armed with the Bryco. The police never located a .40 caliber pistol during this investigation.

Bullet slugs were recovered from the bodies of Chiquita and Lewis during autopsies. Richard Beighley, a firearms expert with the North Louisiana Criminalis-tics Laboratory, concluded that:

• the slug recovered from Chiquita’s body was fired from the Bryco .380, as were six of the fired .380 caliber cartridge casings recovered from the scene;

• five of the .380 caliber cartridge casings were fired from the .380 Lorcin; and

• the slug from Lewis’s body was fired by a .40 caliber semiautomatic pistol.

The white Honda, which had been stolen the night before, was later recovered by police. It was burned almost beyond recognition.

The investigation led to the arrest of Brown, who related that:

• he had been the target of gunfire earlier in the day;

Is* he heard that the shooter was Wilson;

• “everybody” decided to “go shoot;”

• he was in the front passenger seat of the car and was armed with a .380 semiautomatic pistol;

• he shot his gun out of the sunroof as the car was going up the hill;

• after the shooting, he took his gun home; and

• Beaner later picked up the gun.

After a trial by jury, Brown was convicted as charged of two counts of second degree murder. He was sentenced to a term of life imprisonment without benefits on each count, to be served concurrently.

DISCUSSION

Sufficiency of Evidence

The defense argues that:

• the state failed to meet its burden of proving beyond a reasonable doubt that Brown killed the victims while committing a drive-by shooting;

• none of the bullets recovered from the victims was linked to a weapon possessed or fired by the defendant;

• Brown specifically told LaDonna that the shots were not meant for the girl; and

• the state failed to prove specific intent with regard to Chiquita’s death.

In the alternative, it is argued that the homicides were justifiable because Wilson had shot at Brown and made death threats on previous occasions, so that Brown had to take action against Wilson to avoid being killed himself. This argument falls somewhere between depressing and offensive.

| sThe state responds that there is no requirement of proof that Brown fired the fatal shots because he was proved to be a principal in both killings. Arguing that a reasonable jury could easily conclude that Brown did not act in self-defense, the state notes that:

• there was a long gap in time between the earlier afternoon attacks by Wilson and the retaliatory drive-by at 9:00 p.m. that resulted in the double homicide, during which time the defendant’s temper should have cooled; and

• after the homicide Brown did not appear to be scared and it was clear that the shootings were acts of revenge, not rage.

Although the record does not reflect that defendant filed a motion for post verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Henson, 38,820 (La.App.2d Cir.9/22/04), 882 So.2d 670. Our law on review for sufficiency of evidence is well settled.

Second degree murder, in relevant part, is the killing of a human being (1) when the offender has a specific intent to kill or to inflict great bodily harm; or (2) when the offender is engaged in the “perpetration or attempted perpetration of ... [a] drive-by shooting ..., even though he has no intent to kill or inflict great bodily harm.” La. R.S. 14:30.1. A “drive-by |7shooting” means the discharge of a firearm from a motor vehicle on a public street or highway with the intent either to kill, cause harm to, or frighten another person. La. R.S. 14:37.1.

Regarding principals, La. R.S. 14:24 provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. See State v. Robinson, 2002-1869 (La.4/14/04), 874 So.2d 66. It is of no consequence whether a defendant, in firing his weapon into a group of people, intended to hit one person or several people. See State v. Tyler, 342 So.2d 574 (La.1977), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227.

The state bears the burden of proving beyond a reasonable doubt that the homicide was feloniously committed and was not perpetrated in self-defense. State v. Patterson, 295 So.2d 792 (La.1974).

In State v. Smith, 41,048, p. 11 (La. App.2d Cir.6/30/06), 935 So.2d 797, 804, this court held:

Under La. R.S. 14:20(1), a homicide is justifiable when committed in self-defense by one who reasonably believes she is in imminent danger of being killed or receiving great bodily harm and that the homicide is necessary to save herself from danger. When self-defense is raised as an issue by the defendant, the state has the burden of proving, beyond a reasonable doubt, that the homicide was not perpetrated in self-defense. When the defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond |sa reasonable doubt that the homicide was not committed in self-defense.

Citations omitted.

A thorough review of the record reflects that the evidence is sufficient to support the defendant’s convictions of second degree murder under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Viewed in the light most favorable to the prosecution, the evidence was sufficient for a reasonable trier of fact to conclude that Brown was a principal in a retaliatory, drive-by shooting that resulted in the death of the two victims. The defendant’s specific intent to kill or at least inflict great bodily harm may be inferred from his act of pointing a gun and firing at the group of people. It is of no consequence whether defendant, in firing his weapon into a crowd, intended to hit one person or several people. Moreover, Brown clearly and actively participated in an assault by drive-by shooting, leading to two deaths, which satisfies the elements of felony second degree murder, even if specific intent to kill or inflict great bodily harm had been unproven. Finally, the record further supports the conclusion that the state proved that the drive-by homicides were not perpetrated in self-defense, but were feloniously committed.

Other Crimes Evidence

Defendant argues that the trial court erred in admitting evidence of other crimes. The law on the evidence of other crimes is well settled.

[9The state filed a pretrial motion to allow the admission of La. C.E. art. 404(B) other crimes evidence during the trials of several defendants, including Brown. The evidence, offered to prove motive, intent, preparation and plan for the double homicide, is summarized as follows:

• Evidence of a verbal altercation and the exchanging of gang signs between men associated with the Hollywood area and the Cedar Grove area during a Woodlawn pep rally.

• Evidence of a fistfight on the Woodlawn campus on the afternoon of October 14, 2002, involving Beaner, Brooks (both associated with the group from the Cedar Grove area) and Morgan (who was associated with the group from the Hollywood area).

• Evidence of a shooting near Woodlawn in which Guiden was shot in the leg. Chambers did the shooting while Whitaker drove.

• Evidence of a shooting at West 76th Street and Wallace Street involving a group of men near the home of Wall-pool and a group of men firing shots from a Lincoln automobile.

• Evidence of the presence of a group from Hollywood and a group from Cedar Grove at Hattie Perry Park on the afternoon of October 14, 2002, and the fact that the Cedar Grove group’s attempt to “settle the score” was thwarted by police presence.

• A white Honda automobile owned by Ed-rina Smith was stolen on October 13, 2002, and used in the homicides the next day.

• The Cedar Grove group burned the white Honda on the night of October 14, 2002, after using it to perpetrate the double homicide.

|in* Brooks, Beaner, Tillman and Brown were in a Cedar Grove gang; Morgan, Lewis, and the Taylors were members of a Hollywood gang.

At the Prieur hearing, the state’s witnesses were cross-examined. During the cross of Det. Hinderberger, Brown’s attorney asked questions about threats on the defendant’s life. The state objected that such cross-examination was beyond the scope of cross-examination and irrelevant. The trial court overruled the objection, commenting that it seemed implicit in the direction of the defense questioning that the defense was not going to object to the testimony. Defense counsel continued to question Det. Hinderberger regarding events that preceded the double homicide.

The state called Det. Cromer, who was cross-examined. Brown’s attorney then objected to the admission of the evidence listed in the motion, including:

• any reference to the defendant’s gang affiliation;

• that Whitaker and Marquell were the subjects of attack as opposed to the attackers (during the shooting at Woodlawn); and

• any evidence purporting to connect Brown with ongoing criminal activity.

Brown’s counsel also made a general objection that the state lay the proper foundations at trial before the introduction of any evidence under La. C.E. art. 404(B).

The trial court found the listed evidence admissible in accordance with La. C.E. art. 404(B) because it tended to prove motive, opportunity, intent, preparation, plan, knowledge, and identity and, further, could be said to constitute an integral part of the alleged double homicide. The court allowed evidence of gang association at trial.

InThe defense now argues on appeal that:

• the state failed to show that Brown was involved in the crimes listed in the La. C.E. art. 404(B) motion;

• the testimony was in conflict as to whether Brown fired shots at the Lincoln while in front of the Wallace/West 76th Street home;

• the only connection between any of these crimes and Brown was LaDorothy’s testimony that Brown drove by Hattie Perry Park and saw the police;

• the other crimes referenced by the state were sufficiently removed in time from the charged offenses to have no probative value for motive, intent or system; and

• the state offered this great volume of other crimes evidence merely to prove the alleged bad character of the defendant, substantially violating his rights.

The state counters that:

• the defense failed to object to the introduction of the other crimes evidence and thereby waived the right to contest the evidence on appeal;

• the evidence was admissible to prove motive and intent for this retaliation shooting and purported justification of self-defense;

• because Brown was the intended victim of the earlier shooting and had been involved in the fight at Woodlawn, he had a motive to retaliate against Wilson;

• Brown had been a victim of a shooting by Wilson the week before; and

• the trial court was correct in determining that the events of October 14, 2002, were close enough in time and space to constitute one continuing transaction.

This court observed in State v. Barnes, 28,835 (La.App.2d Cir.12/11/96), 685 So.2d 1148, that members of gangs are not regarded as model citizens, and there is an inherent connotation that a gang member is involved in criminal activity, which could create an image of a bad person |1⅞⅛ the eyes of the jury. This court concluded that the evidence of the defendant’s gang affiliation was prejudicial because the evidence was not relevant to any of the elements of the armed robbery. However, this court deemed the error to be harmless because there was direct evidence that placed the defendant in possession of items identified with the armed robbery. Thus, the gang evidence did not contribute to the guilty verdict.

In State v. Williams, 02-645 (La.App. 5th Cir.11/26/02), 833 So.2d 497, writ denied, 2002-3182 (La.4/25/03), 842 So.2d 398, the court found that the defendant’s gang affiliation had independent relevance in establishing the defendant’s motive and intent for second degree murder.

In State v. Weatherspoon, 06-539 (La. App. 5th Cir.12/12/06), 948 So.2d 215, the defendant was charged with the first type of second-degree murder, making specific intent an issue. The court noted that the state’s theory was that the shooting was a result of gang members seeking revenge for an earlier altercation and hence, the gang-related revenge evidence was relevant to show defendant’s motive of specific intent to injure. The court found that the admission of such evidence was not improper.

The trial court properly found this other crimes evidence admissible under La. C.E. art. 404(B). The state proved with clear and convincing evidence the defendant’s gang affiliation and his participation in the various gang-related altercations, shootings and other criminal activities surrounding the instant offenses. The state also proved that the evidence came under one of the exceptions set forth in La. C.E. art. 404(B). The fact of gang affiliation was relevant to show his motive to specifically injure the | ^intended victim, who was affiliated with a rival gang. The record further supports the trial court’s finding that the evidence relates to conduct that constitutes an integral part of the alleged double murder. Finally, a review of the record supports the conclusion that the state showed that the evidence was more probative than prejudicial.

The Confession

The defendant was implicated as one of the shooters during the course of the investigation conducted by the Shreveport Police Department. He was arrested for first degree murder on October 17, 2002, and orally advised of his Miranda rights. Brown submitted to a recorded interview by Det. Hinderberger. The statement began after Brown was advised that he was under arrest for first degree murder. Det. Cromer and Det. Hinder-berger were present during alternating portions of the defendant’s interrogation. Det. Hinderberger ascertained the defendant’s age (19), grade in high school (12th), and the fact that he could read and write the English language. Brown was advised of his Miranda rights, which were read from a standardized Miranda waiver of rights form. Brown told Det. Hinderber-ger that he did not understand the reason for the “under arrest part,” categorically denied being involved in the shooting, and told a story about walking home from school and then riding a bike to his grandmother’s house. After the detective explained that he and the individuals who had implicated him were all under arrest for first degree murder, punishable by death or life imprisonment, Brown acknowledged that he understood his rights and signed the Miranda waiver of rights form. |uHe agreed to give an epithelial cell sample, taken by Det. Cromer. Det. Hinderberger then asked Det. Cromer to “sit in” on the interview. Det. Cromer told Brown that he needed to think about cooperating because it makes a difference down the road, to be a man and to do the right thing. Cromer also told Brown that it was “fine” if they only intended to scare the victims and this was a big accident. Det. Cromer denied making any promises to Brown.

According to all three detectives, Brown understood all questions, gave appropriate answers, did not appear to be under the influence of alcohol or drugs and never requested any food, water or rest. Also, all three detectives testified that they did not strike Brown, or make any threats or any promises to him in exchange for his statement. Brown admitted his participation in the shooting.

The defendant argues that his Miranda waiver was ineffective because it was made under undue influence and coercion. In support of his argument, Brown notes that:

• at the time he didn’t understand the “under arrest” part of his detention;

• he was a high school student;

• the detective’s office, with three detectives in it, was small;

• there was a lack of ascertainment as to his literacy;

• nobody was present besides Det. Hinder-berger during the advisement of rights;

|1ñ» during the interview, Det. Hinderber-ger told Brown that he did not believe him and discussed the penalty for first degree murder but not responsive verdicts;

• Det. Cromer’s advice to Brown was that it was “fine” if they only intended to scare the victims and this was a big accident; and

• the detectives tried to frighten and coerce him into giving a statement, making it involuntary and therefore inadmissible.

The state responds that:

• there is no prohibition against more than one law enforcement officer being present during a custodial interrogation;

• the penalty for the charged crime may be discussed;

• there is no rule that responsive verdicts be discussed during a statement;

• much of Brown’s statement was an attempt to deceive Det. Hinderberger;

• none of the detectives ever threatened him, nor did any of them offer any inducements to make his statement; and

• the defendant’s statement was freely and voluntarily given.

At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La. App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288.

The law regarding the admissibility of confessions was set out in great detail in State v. Bowers, 39,970, pp. 10-12 (La. App.2d Cir.8/19/05), 909 So.2d 1038, 1046-7:

Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; 16La. C. Cr. P. art. 703(D); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Roddy, supra; State v. Walker, 28,577 (La. App.2d Cir.10/4/96), 681 So.2d 1023.

In State v. Jackson, 381 So.2d 485 (La.1980), and State v. Morvant, 384 So.2d 765 (La.1980), the Louisiana Supreme Court stated the principles under which the admissibility of a confession must be judged. As a matter of federal constitutional law, any confession obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, must be considered involuntary and inadmissible. State v. Roddy, supra.

In Louisiana, the statutorily mandated test for voluntariness is not whether a confession was induced by improper external forces, but whether the confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; State v. Roddy, supra.

The admissibility of a confession is a question for the trial court. State v. Roddy, supra. When determining admissibility, the trial court’s conclusions on the credibility and weight of the testimony with regard to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Benoit, 440 So.2d 129 (La.1983); State v. Roddy, supra; State v. Dailey, 607 So.2d 904 (La.App. 2d Cir.1992), citing State v. Jackson, supra. We place great weight upon the trial court’s factual determinations because of its opportunity to observe the witnesses and assess credibility. State v. Roddy, supra; State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Henderson, 31,986 (La.App.2d Cir.8/18/99), 740 So.2d 240. See State v. Trotter, 37,325 (La.App.2d Cir.8/22/03), 852 So.2d 1247, writ denied, 2003-2764 (La.2/13/04), 867 So.2d 689.

When the defendant alleges police misconduct in eliciting a confession, it is incumbent upon the state to specifically rebut each instance of alleged misconduct. State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363; State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 17cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359; State v. Walker, 28,577 (La.App.2d Cir.10/4/96), 681 So.2d 1023.

Courts have routinely held that a mild exhortation to tell the truth, or a remark that if the defendant cooperates the officer will “do what he can” or “things will go easier,” will not negate the voluntary nature of a confession. State v. Blank, 2004-0204 (La.4/11/07), 955 So.2d 90.

Illiteracy, like low intelligence and moderate mental retardation, does not by itself vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. See State v. Brown, 414 So.2d 689 (La.1982). The main question is whether the defendant understands his rights. Id.

In State v. Allen, 41,548 (La.App.2d Cir.11/15/06), 942 So.2d 1244, the defendant’s confession was determined to be freely and voluntarily given although the officers stated during custodial interrogation that the defendant needed to be honest if he hoped to have any chance of spending time with his son outside of prison, and that if defendant went to trial, he faced the death penalty. This court agreed with the trial court that the statements regarding defendant’s son and the death penalty were mere musings and not beyond what the defendant could have concluded on his own. It was further noted that the defendant was advised of his Miranda rights and waived them.

The state affirmatively proved that the defendant’s confession was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Brown was 11Radvised of and waived his Miranda rights. His rights were explained, not just read to him. The trial court had ample evidence to conclude that Brown understood his rights and voluntarily waived them. Nothing here supports the defendant’s claims of coercion. Mild exhortation to tell the truth does not negate the voluntary nature of a confession.

Excessiveness of Sentence

The defense takes the position that even though life sentences are mandatory for second degree murder, they are nonetheless unconstitutionally excessive because they serve no purpose other than the needless imposition of suffering. The state notes that there was no basis on which the court could vary from these legislatively mandated sentences, given the serious nature of the offenses.

Second degree murder requires a harsh mandatory sentence, but this is a harsh crime. La. R.S. 14:30.1(B). The argument that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Parker, 416 So.2d 545 (La.1982); State v. Roberson, 40,809 (La.App.2d Cir.4/19/06), 929 So.2d 789.

In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the supreme court addressed the issue of mandatory sentences in the context of the habitual offender law. The court held that the downward departure from a mandatory minimum sentence may occur if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure |1flto assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. This rule has been extended to mandatory minimum sentences beyond habitual offender cases. See State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274; State v. Chandler, 41,063 (La.App.2d Cir.9/8/06), 939 So.2d 574, writ denied, 2006-2554 (La.5/11/07), 955 So.2d 1277.

The sentences imposed-are neither illegal, grossly disproportionate to the severity of the offense, nor shocking to the sense of justice. There is nothing in this record to show Brown as an exceptional defendant or that there were unusual circumstances not considered in this case. Brown fired a gun during a drive-by, resulting in the deaths of two innocent bystanders. This conduct, personifying an appalling disregard for the sanctity of human life, amply justifies the two concurrent life sentences.

DECREE

The defendant’s convictions and sentences are AFFIRMED.

      . One group from Hollywood Heights, and the other group from Cedar Grove.

      . LaDorothy Austin testified to these facts at trial.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. 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.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La. 11/14/03), 858 So.2d 422.

      . Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that the prosecution provides reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B). For evidence of other crimes to be admissible, the state must prove with clear and convincing evidence that the other acts or crimes occurred and were committed by the defendant; demonstrate that the other acts satisfy one of the requirements of La. C.E. art. 404(B); and show that the probative value of the evidence outweighs its prejudicial effect. State v. Jackson, 625 So.2d 146 (La.1993); State v. Smith, 41,048 (La. App.2d Cir.6/30/06), 935 So.2d 797.
      A trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Smith, supra; State v. Butler, 30,798 (La.App. 2d Cir.06/24/98), 714 So.2d 877, writ denied, 98-2217 (La.01/08/99), 734 So.2d 1222.

      . Brown printed his name on the waiver of rights form.