text:
    Andrew ELLIS and Kelly Jane Workman, Plaintiffs-Appellees, v. Robert JENKINS and AAA Insurance Company, Defendants-Appellants.
    No. 41,475-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 9, 2006.
    Johnson & Siebeneicher, Inc., by Michael Thomas Johnson, Victoria Reed Murry, Alexandria, for Defendants-Appellants, Robert Jenkins and AAA Insurance Company.

      Mayer, Smith & Roberts, L.L.P. by Steven Eric Soileau, Shreveport, for Plaintiffs-Appellees, Andrew Ellis and Kelly Jane Workman.
    Jody Todd Benson, for Defendant-Ap-pellee, State Farm Mutual Automobile Insurance Company.
    Before GASKINS, DREW and LOLLEY, JJ.
   DREW, J.

11 Andrew Ellis was the driver of a pickup truck involved in an October 16, 2004, accident in Bossier City with a pickup truck driven by Robert Jenkins. Kelly Workman, Ellis’ fiancée at the time and now his wife, was a passenger in Ellis’ truck.

Ellis and Workman sued Jenkins, his liability insurer, AAA Insurance Company (“AAA”), and Workman’s UM carrier, State Farm Mutual Automobile Insurance Company (“State Farm”). Their petition stated that “the amount of any individual plaintiffs claims does not exceed the amount required to allow a trial by jury.” An answer to the petition was filed by Jenkins and AAA on February 18, 2005, in which they responded that any damages would not exceed the amount required to allow a trial by jury. State Farm filed its answer on March 28, 2005, and ultimately settled with Workman. The next day, March 29, 2005, counsel for plaintiffs wrote to the Bossier Parish Clerk of Court to request that the bench trial for the case be set on the trial docket for August 23, 2005.

In a pretrial memo filed on July 26, 2005, plaintiffs asserted that Workman’s injuries would exceed the $50,000/$100,000 limits of the AAA policy. On August 9, 2005, Jenkins and AAA amended their answer to assert the affirmative defense of failure to mitigate damages against Workman.

A bench trial was held in this matter on September 14, 2005. At the beginning of the bench trial, AAA and Jenkins raised an objection regarding the amount of damages. They objected to any evidence which would expand the pleadings, and also requested a trial by jury. They argued Ijjthat plaintiffs were precluded from seeking damages in excess of $50,000. Plaintiffs complained that AAA and Jenkins had not previously requested a jury trial. The trial judge stated that he was not inclined to rule on the issue at that time, and the trial proceeded. The trial court assigned 100% of fault in causing the accident to Jenkins, and awarded a total of $68,966.73 in general and special damages to Ellis and against Jenkins, with $50,200.00 of that amount awarded in soli-do against AAA. In addition, the court awarded a total of $40,602.83 in general and special damages to Workman.

Jenkins and AAA filed a motion for partial new trial on the ground that damages in excess of $50,000 were awarded to Ellis despite the allegation in the petition that the amount of any individual plaintiffs claim did not exceed the amount required to allow a jury trial. The motion was denied.

DISCUSSION

Ellis maintains that it was the duty of AAA and Jenkins to request a trial by jury once they became aware that Ellis’ injuries could exceed the applicable policy limits of $50,000. Ellis contends that this awareness should have been triggered by the following:

• A May 17, 2005, letter from plaintiffs’ counsel (“Soileau”) to AAA and Jenkins’ counsel ( counsel ) in which Soi-leau wrote that the general damages portion of Workman’s claim could exceed policy limits.
• An MRI report sent to counsel on July 18 that documented Ellis’ right shoulder problems.
• A pretrial memo filed on July 26, 2005, in which plaintiffs asserted that Workman’s injuries would exceed the $50, 000/$100,000 limits on the AAA policy.
• An August 9 letter to counsel in which Soileau wrote that he believed that Jenkins had exposure in excess of his policy limits.
Is* An August 19, 2005, letter from Soi-leau to counsel stating that Workman’s damages would likely exceed the policy limits.
• An August 23, 2005, letter in which Soileau wrote to counsel that it was clear the damages were going to exceed the policy limits.

Ellis further contends that after a deposition where defendants’ attorney raised the issue of damages not exceeding the policy limits, Soileau wrote in a September 7, 2005, letter to defendants that he had been asserting for months that the amounts sought might exceed policy limits.

The allegation in the petition that “the amount of any individual plaintiffs claims does not exceed the amount required to allow a trial by jury” was done in compliance with La. C.C.P. art. 893, which provides, in relevant part:

A. (1) No specific monetary amount of damages shall be included in the allegations or prayer for relief of any original, amended, or incidental demand. The prayer for relief shall be for such damages as are reasonable in the premises except that if a specific amount of damages is necessary to establish the jurisdiction of the court, the right to a jury trial, the lack of jurisdiction of federal courts due to insufficiency of damages, or for other purposes, a general allegation that the claim exceeds or is less than the requisite amount is required. By interrogatory, an opposing party may seek specification of the amount sought as damages, and the response may thereafter be supplemented as appropriate.

The right to a jury trial in a civil case does not come into existence unless the petitioner’s cause of action exceeds the requisite jurisdictional amount, and either the plaintiff or the defendant may allege that the claim exceeds the requisite amount. Prudential Ins. Co. v. Gideon, 2002-0532 (La.App. 1st Cir.2/14/03), 845 So.2d 437. La. C.C.P. art. 1732(1) 1¿provides that a jury trial shall not be available in a suit where the amount of no individual petitioner’s cause of action exceeds $50,000 exclusive of interest and costs.

La. C.C.P. art. 5 states that:

When a plaintiff reduces his claim on a single cause of action to bring it within the jurisdiction of a court and judgment is rendered thereon, he remits the portion of his claim for which he did not pray for judgment, and is precluded thereafter from demanding it judicially.

Ellis argues that defendants did not mention a desire for a jury trial until the date of the bench trial, when they asserted that if either plaintiff was entitled to damages exceeding $50,000, then they wanted a jury trial. Nevertheless, it was plaintiffs who first asserted in their petition that neither plaintiffs claim was in excess of $50,000. It was also plaintiffs who never attempted to amend their petition once they believed that either Ellis or Workman’s damages could exceed that amount.

Compare this matter to Book v. State Farm Mut. Auto Ins. Co., 2002-1348 (La.App. 3rd Cir.4/2/03), 843 So.2d 515, where the plaintiffs, prayed for damages “in a sum ... LESS THAN THE REQUISITE AMOUNT FOR [A] JURY TRIAL.” The trial court found that one plaintiff had sustained over $56,000 in general and special damages. However, the trial court reduced that plaintiffs award to $50,000 as it was limited by the terms of the petition to a maximum of $50,000.

In Hill v. Coregis Ins. Co., 40,199 (La.App.2d Cir.9/21/05), 911 So.2d 939, the Hills, a married couple, sued to recover for damages arising out of an auto accident in which the wife was involved. The wife sought an 1 fiaward of damages for pain and suffering, mental anguish, and medical expenses, while the husband’s claim was for loss of consortium. Their petition alleged that “Plaintiffs [sic ] claim will not exceed the sum of $50,000.” After a defendant moved for a jury trial, the Hills responded with a motion to strike in which they asserted that each of their claims would not exceed the sum of $50,000. Following a bench trial, the court found that the wife had established general damages of $50,000 and past and future medical expenses of just over $50,000. The husband was awarded $4,000 on his loss of consortium claim. The trial court concluded that although the petition alleged that only the wife incurred medical expenses, those expenses were a community obligation. The trial court rendered judgment in favor of the wife for $50,000 in general damages, and in favor of the husband for $45,000. The tortfeasor’s liability insurer was also ordered to pay $5,000 in medical payment reimbursement to the Hills’ UM carrier. The liability insurer appealed, complaining that the trial court’s action deprived it of a jury trial. The insurer sought a remand of the case for a jury trial, or in the alternative, a reduction of the judgment to $50,000.

This court concluded in Hill that the trial court was plainly wrong in treating the wife’s claims for general and special damages as separate causes of action. Therefore, the judgment was reversed. Nevertheless, this court concluded that a strict application of La. C.C.P. art. 5 would unfairly penalize the wife for her attorney’s pretrial strategy. Accordingly, the entire case was remanded for a trial by jury.

|fiThe equitable concerns present in Hill are not nearly as pronounced in the instant matter.

First, Ellis’ co-plaintiff Workman was a practicing attorney in Louisiana at the time of the accident. As contrasted with the plaintiffs in Hill, she was in a much better position by which to analyze her attorney’s strategy in pleading for damages for both herself and her fiancé Ellis in an amount below the jury trial threshold.

Second, the wife’s past and future medical expenses in Hill were slightly more than $50,000, with past medical expenses alone being $40,186. With the virtual certainty that the amount of special damages would approach $50,000, her attorney should have realized that a jury trial request would have benefited the Hill plaintiffs.

By contrast, in the present matter, Ellis’ special damages, including lost wages, totaled $18,966.73. His attorney presumably had a more difficult strategic decision regarding general damages and the $50,000 ceiling. His experienced trial attorney would have taken this into account in any pretrial strategy relative to a jury trial.

Because this strategic decision did not play out as plaintiffs’ trial counsel presumed it would, we find that remanding for a jury trial in this instance is inappropriate. Ellis alleged in the petition that damages were less than $50,000, in the hopes of getting a bench trial. When the trial judge awarded damages in excess of $50,000, that left the defendants with three choices:

• paying the judgment in full;
17* seeking a remand for a jury trial, which would cause the defendants to incur additional costs; or
• appeal, and ask this court to limit the Ellis award to the amount specified in the pleadings.

Defendants chose door number three, and we hereby grant them relief.

For the foregoing reasons, we amend the judgment to reduce the amount awarded to Ellis to $50,000. In all other respects, the judgment is affirmed.

DECREE

The judgment is AMENDED to reduce the amount awarded to Ellis to $50,000. As AMENDED, and at appellees’ costs, the judgment is AFFIRMED.

      . The Hill court also noted that the trial court was plainly wrong not to classify the wife’s personal injury damages as her separate property.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Veda Beth TERRY and Carol Ann Flowers, Plaintiffs-Appellants v. RED RIVER CENTER CORPORATION d/b/a Riverview Care Center, Defendant-Appellee.
    No. 41,473-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 15, 2006.

      Peters, Ward, Bright & Hennessy, by J. Patrick Hennessy, Shreveport, for Appellants.
    Lunn, Irion, Salley, Carlisle & Gardner, by Ronald E. Raney, Shreveport, for Ap-pellee.
    Before BROWN, STEWART and DREW, JJ.
   STEWART, J.

| Neda Beth Terry and Carol Ann Flowers, appeal the trial court’s denial of their action against Riverview Care Center for its alleged failure to follow the advance directive of their mother Doris Lee, who died while in the care of Riverview. Finding no merit in the plaintiffs’ contentions, we affirm the ruling of the trial court.

FACTS

Plaintiffs are the surviving daughters of Doris Lee. Doris Lee died at Riverview Care Center (“Riverview”). Ms. Lee died at Riverview on April 28, 2002. However, she was revived through the efforts of the EMTs called by request of the defendants and taken to Willis Knighton-Pierremont where resuscitative efforts were discontinued in accordance with the advance directive found by the emergency room physicians in Doris Lee’s chart from Riv-erview. Lee was then allowed to die naturally at 11:36 p.m.

DISCUSSION

Standard of Review

Our review of the factual findings in this case are governed by the manifest error/clearly wrong standard of review. It is a well-settled principle that an appellate court may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of Rthe evidence exist, the factfinder’s choice between them cannot be manifestly wrong. Rosell, supra; Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra. Where the factfinder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra.

The reviewing court must always keep in mind that, if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that, if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). For the reviewing court, the issue to be resolved is not whether the trier of fact was wrong, but whether the factfinder’s conclusions were reasonable. Stobart, supra; Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305.

Statutory Background

Twenty years ago, the legislature enacted La. R.S. 40:1299.58.1 et seq., recognizing the right of a person to refuse medical care and to declare that refusal in advance of a circumstance when the person might be unable to make the decision herself. In the intervening years, no reported Louisiana decisions have interpreted these provisions to determine the | ¡¡validity of a written declaration.

The legislative purpose, findings and intent are stated in R.S. 40:1299.58.1:

A. Purpose and findings. (1) The legislature finds that all persons have the fundamental right to control the decisions relating to their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances where such persons are diagnosed as having a terminal and irreversible condition.
(2) The legislature further finds that the artificial prolongation of life for a person diagnosed as having a terminal and irreversible condition may cause loss of individual and personal dignity and secure only a precarious and burdensome existence while providing nothing medically necessary or beneficial to the person.
(3) In order that the rights of such persons may be respected even after they are no longer able to participate actively in decisions concerning themselves, the legislature hereby declares that the laws of the state of Louisiana shall recognize:
(a) The right of such a person to make a declaration instructing his physician to withhold or withdraw life-sustaining procedures or designating another to make the treatment decision and make such a declaration for him, in the event he is diagnosed as having a terminal and irreversible condition; and
(b) The right of certain individuals to make a declaration pursuant to which life-sustaining procedures may be withheld or withdrawn from an adult patient who is comatose, incompetent, or otherwise physically or mentally incapable of communication, or from a minor, in the event such adult patient or minor is diagnosed and certified as having a terminal and irreversible condition.
(4) In furtherance of the rights of such persons, the legislature finds and declares that nothing in this Part shall be construed to be the exclusive means by which life-sustaining procedures may be withheld or withdrawn, nor shall this Part be construed to require the application of medically inappropriate treatment or life-sustaining procedures to any patient or to interfere with medical judgment with respect to the Lapplication of medical treatment or life-sustaining procedures.
B. Intent. (1) The legislature intends that the provisions of this Part are permissive and voluntary. The legislature further intends that the making of a declaration pursuant to this Part merely illustrates a means of documenting a patient’s decision relative to withholding or withdrawal of medical treatment or life-sustaining procedures.
(2) It is the intent of the legislature that nothing in this Part shall be construed to require the making of a declaration pursuant to this Part.
(3) It is the intent of the legislature that nothing in this Part shall be construed to be the exclusive means by which life-sustaining procedures may be withheld or withdrawn, nor shall this Part be construed to require the application of medically inappropriate treatment or life-sustaining procedures to any patient or to interfere with medical judgment with respect to the application of medical treatment or life-sustaining procedures.

There were three advance directives purportedly executed by Doris Lee that the trial court reviewed in its determination of whether Riverview failed to follow Lee’s wishes and is responsible for her alleged pain and suffering. Doris Lee had executed three advance directives instructing health care professionals that she not be resuscitated.

The first form was executed in 1996, which the trial court correctly determined was invalid on its face. The main and most obvious difficulty for the plaintiffs’ claim as to the 1996 DNR is that it was not, as required by its own terms, confirmed through the signatures of two physicians. This is shown simply by looking at the fact of the physician signature page which appears in the Joint Exhibit at page 8-only Dr. Reilly is shown as having signed. By its own language, there is absolutely no language in the 1996 DNR that requires nurses or a nursing home to rely upon its purported | sdeclaration. Furthermore, the directive was executed six years before Mrs. Lee’s death in another facility. The record also demonstrates that Mrs. Lee had reached the brink of death on several occasions, but to the surprise of the children, she survived.

The second form was executed in 2001, and the trial court found that it contained contradictory terms. The form indicated that medical personnel should “admit (Ms. Lee) to ICU” but contained an instruction to not use CPR. The trial court found that this contradiction invalidated this directive. While this Court does not agree with the proposition that the form contained irreconcilably contradictory terms because it says “admit to ICU” but “do not use CPR,” that conclusion does not require a reversal because the record does not demonstrate that Riverview had this particular directive in its charts for Mrs. Lee at the time of her death.

The 2002 form was not signed by Mrs. Lee. Rather, it was signed by Ms. Flowers. There is nothing in the record to support that Ms. Lee had conferred such authority upon Ms. Flowers.

On appeal, plaintiffs erroneously argue that the 1996 and 2002 directives can be combined to meet the two signature requirement. This argument is completely without legal support. If the plaintiffs’ argument were to be accepted, then hospital and nursing home patients would be simply allowed to die because it is more convenient to do so rather than address the condition at hand. The record was clear that Mrs. Lee had been under the care of several physicians and had several close calls with death, but had continued to survive. Calling 911 was not a violation of the DNR by RRiverview as such a call would not amount to heroic measures in the purview of a nursing home facility’s duty of care to its patients. Therefore, we find no error in the trial court’s conclusion that Riverview complied with her wishes and did not violate the DNR.

Plaintiffs also argue that the trial court erred by finding that Mrs. Lee wished to die in a hospital. This contention is without merit. While is it true that there is no direct statement in the evidence that Riverview had been told of Mrs. Lee’s wish to die in the hospital, it is likewise true that there is no evidence to the contrary in the testimony or the various DNRs. Even if this were true, then Mrs. Lee’s wish to die in the hospital was ultimately fulfilled and that should end the inquiry. Lastly, the plaintiffs assert that 911 should not have been called because Balentine was stated as the ambulance service of preference. However, preference does not mean “requirement.” Therefore, this assignment is without merit.

Expert Testimony

Plaintiffs also argue that the defense expert, Dr. David Henry, should not have been allowed to testify at trial as to the interpretation of the various DNR forms at issue. At the outset of this discussion, however, it must be stated that Dr. Henry’s testimony encompassed more than the interpretation of advance directives, but included topics such as standards of nursing conduct, explanation of medical terms and conditions and other medical issues — issues that would require expert testimony. Plaintiffs’ reliance on Terry v. Red River Corporation, 37,991 (La App.2d Cir. 12/10/03), 862 So.2d 1061 is misplaced. Finally, it should be noted that the plaintiffs |7attempt to argue the merits of the case in this assignment rather than whether certain aspects of the expert testimony should be inadmissible. As shown by the testimony of Dr. Henry, Mrs. Lee became a patient of the EMS crew upon their arrival at the nursing home and at that moment ceased to be the patient of Riverview until such time as she might have returned. If plaintiffs are truly relying solely upon the 1996 DNR, then the only issue presented is who should be called upon to determine whether Mrs. Lee’s condition was imminently terminal, and whether or not life sustaining measures were utilized. There is nothing in the 1996 DNR which required that active treatment cease merely because only a pulse, not respiration, can be measured. At any rate, such decision would clearly involve the type of medical judgment contemplated by La. R.S. 40:1299.58.1.

Damages and Attorney Fees

There can be no attorney fees awarded, because there has been no breach of the standard of care nor any other basis of liability established on the part of River-view. Additionally the matter falls under the Medical Malpractice Act, precluding any such award. Thus, this assignment is without merit.

Contrary to the plaintiffs’ contentions, this matter is not actionable under the Nursing Home Residents’ Bill of Rights (NHRBR). La. R.S. 40:1299.41 et seq. When Mrs. Lee was found unresponsive on April 28, 2002, medical knowledge was required in order to distinguish such from mere sleeping behavior. The actions of the EMS crew did not cause Mrs. Lee’s swelling as seen by her daughters when they arrived at the emergency | sroom. Instead, such was caused by her existing illnesses, primarily renal failure and heart failure. Thus, there can be no award of damages for any such injury.

Everything that occurred with Mrs. Lee on the date of her death was medical and does not fall under the ambit of the NHRBR La. R.S. 40:1299.41 et seq.

Plaintiffs’ position in this matter reduces to one in which they assert any time a nursing home resident has executed a DNR then experiences adverse symptoms so that she appears to be going down hill, the nursing home should do nothing and let the patient die. This position is simply untenable and not actionable under the NHRBR.

CONCLUSION

Finding no merit in the appellants’ contentions, we affirm the decision of the trial court. Costs assessed to appellants.

AFFIRMED.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Travis Orlando ALLEN, Appellant.
    No. 41,548-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 15, 2006.

      W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Cynthia P. Lavespere, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

| gravis Orlando Allen was convicted of second degree murder in violation of La. R.S. 14:30.1 and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. Allen appeals his conviction and sentence. We affirm.

Facts

Claude Brown was concerned after his daughter, Antinissin Kirston Brown (“Brown”), unexpectedly missed a weekly family meeting. When family members called Brown’s cell phone, it was answered by Grace Robinson, who told them she found it near a school. When the family retrieved the phone from Ms. Robinson, it looked bloody. Mr. Brown went to his daughter’s home. His knocks at the front door went unanswered, so he checked the back door and found it unlocked. Hearing loud music playing inside, Mr. Brown decided to call the police.

The officers found the small house in disarray. Going through the home, they found blood droplets in a hall leading towards the front/living room area. Once in the hall, officers opened the bathroom door and found a bloody scene. Across the hall, officers saw Brown’s nude body lying on the bedroom floor. Her head was covered by a blanket. Brown had been “hogtied” with seven types of ligatures including an iron cord, a cable cord, an extension cord and a purse strap. Her head had been covered by cloth which was bound at her neck by one of the ligatures. After removing the head covering, officers discovered a sock stuffed in Brown’s throat. Brown’s head lacerations resulted from blows using a claw hammer found Lat the crime scene. The coroner determined the cause of Brown’s death as suffocation and brain hemorrhage.

Brown’s cell phone call activity showed she had talked to someone named Travis. Brown’s banking records showed activity occurring after her death on April 17, 2005. Police obtained surveillance photographs of an individual using Brown’s bank card to withdraw cash from her account. As police were seeking more information on “Travis,” they received an anonymous tip that someone named Travis worked at a restaurant in the mall and had been acting suspicious. After confirming that Travis Allen was employed at the restaurant, Detective Mark Nappier interviewed him and identified Allen as the same individual who used Brown’s bank card. Allen was taken into custody.

Allen eventually confessed to killing Brown with whom he had a relationship for two months. He also admitted spending $2,700 shopping with her savings after her death. At trial, Allen claimed the murder was caused by a fight that just got out of hand. The jury convicted Allen of second degree murder. This appeal ensued. '

Discussion

Sufficiency of the Evidence

Allen argues that the killing was in fact manslaughter because the victim was the initial aggressor, and the fight “got out of hand.” He also contends that the state failed to prove that the offense was committed during the perpetration of an armed robbery.

|sWhen issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992).

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; 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, 02-3090 (La.11/14/03), 858 So.2d 422.

1 /The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382. Specific intent need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993), writ denied, 93-2054 (La.2/11/94), 634 So.2d 371. Specific intent may be established by circumstantial evidence alone if every reasonable hypothesis of innocence is excluded. State v. Cousan, supra. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Brown, 618 So.2d 629 (La.App. 2d Cir.1993), writ denied, 624 So.2d 1222 (La.1993).

LA defendant’s confession is direct evidence, for it is an acknowledgment of guilt for which no inference need be drawn. La. R.S. 15:449; State v. McNeal, 34,593 (La.App.2d Cir.4/4/01), 785 So.2d 957; State v. Jones, 451 So.2d 35 (La.App. 2d Cir.1984), writ denied, 456 So.2d 171 (La.1984). It is well settled that a person cannot be convicted on his confession alone. State v. Hopkins, 35,146 (La.App.2d Cir.11/02/01), 799 So.2d 1234. However, once proof independent of the confession confirms the fact of death by violent means, the confession alone can supply the proof linking the accused to the crime. Additionally, the confession can prove the elements essential to determining the degree of the crime, such as intent, or the underlying felony in a felony-murder prosecution. State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556; State v. Cutwright, 626 So.2d 780 (La.App. 2d Cir.1993), writ denied, 632 So.2d 761 (La.1994). This corroboration rule requires only that there be some evidence other than the confession that a criminal act was committed. State v. Cutwright, supra.

La. R.S. 14:30.1 provides, in pertinent part, that second degree murder 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)(a) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery, ... or simple robbery, even though he has no intent to kill or to inflict great bodily harm.

La. R.S. 14:64 provides in part that armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

IfiLa. R.S. 14:31 defines manslaughter in pertinent part as:

A.(l) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

Manslaughter is a homicide which would either be first or second degree murder but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his cool reflection and self-control. La. R.S. 14:31(A)(1). The elements of “sudden passion” and “heat of blood” are mitigatory factors in the nature of a defense, and when the defendant establishes such factors by a preponderance of the evidence, a verdict for murder is inappropriate. State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108; State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254, 1260, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002). In addition, provocation and time for cooling are questions for the jury to be determined under the standard of the average or ordinary person, one with ordinary self-control. See Reporter’s Comment to La. R.S. 14:31 and State v. Mayfield, 186 La. 318, 322, 172 So. 171, 172 (1937).

A jury is not required constitutionally to agree on a single theory to convict a defendant where it is instructed as to alternate theories. Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991); State v. Vergo, 594 So.2d 1360 (La.App. 2d Cir.1992), writ denied, 598 So.2d 373 (La.1992).

|7The physical evidence in this case depicted extreme violence through blood drops on the hall floor and blood spattering on the bedroom and bathroom walls. The coroner’s testimony described three wounds to the victim’s head causing trauma sufficient to result in death. In the coroner’s opinion, Brown died from a combination of injuries. In addition to head trauma, evidence of strangulation, suffocation from a blood-soiled sock (stuffed) down her throat and protruding from her mouth was presented. The coroner noted the victim was alive when she was asphyxiated.

The investigating officers presented the evidence describing the crime scene. Officer Kenneth Hancock was accepted as an expert in crime scene and blood spatter analysis. He found both transfer and castoff blood on the bathroom walls which was probably “splashed” on the wall from the hammer as Allen raised it in between blows to the victim.

Detective Quentin Holmes testified that although blood and hair follicles were present on the hammer’s tip, the hammer was not extremely bloody and may have been wiped off. He also stated the victim was bound with various ligatures, including clothing, an electric iron cord, a purse strap, cable cord, a regular extension cord, and a heavy duty orange extension cord. Brown’s ankles were tied together with clothing and her bound hands and feet were connected by another cord.

Allen testified in his own behalf and stated that he and Brown fought on April 17, 2005, and the argument escalated into a physical confrontation. After some pushing and shoving, Allen began punching Brown and she picked up the hammer during the fight. Brown did not swing the hammer. |sAllen took it away from her and ultimately used it to kill her. Allen testified that he initially hit Brown in the head with the hammer in the foyer area near the bathroom. Then he pushed her into the bathtub and went into her bedroom. The victim walked into the bedroom from the bathroom. Allen testified that he “felt that she would probably come trying to ... come at me.” The defendant acknowledged that Brown was not “really aggressive” at this point, but he nevertheless wrestled her onto the mattress, where he held her in a choke hold until she was unconscious. He admitted that he put the sock down her throat to stop her from yelling and that he tied Brown up with six or seven straps to prevent her from getting up.

In his trial testimony, Allen also admitted that he moved the victim’s purse from the living room into the bedroom and removed $30 and the victim’s bank card. Allen then left the house in the victim’s car to ride around the block, looking to see if any police were in the area. Not seeing any officers, the defendant returned to Brown’s house and after kicking her foot, realized she was dead. At this time, Allen went to Brown’s bank and withdrew $20.00 from the ATM using Brown’s personal identification number. Next, Allen went to a convenience store and withdrew $400.00 from the bank account. Allen claimed he withdrew the money only after realizing, “I knew that I was going to eventually get caught. I wanted to take care of the last ... the three people that I cared about.” He again testified that the murder accidentally happened after á fight gone wrong. Allen stated that he threw a blanket over Brown to suffocate her and washed the hammer off before he left.

1 flThat evening, he took another girlfriend to Wal-Mart and purchased clothing for her using Brown’s money. The following morning, he cashed a forged check belonging to Brown obtained from her purse. He then spent several hours at the mall using Brown’s card buying for his child and mother items like roses and jewelry. Kim Williams, one of Allen’s girlfriends, confirmed that they went to Wal-Mart in the late evening of April 17, 2005. Allen told her he robbed someone but she did not believe him. She saw blood stains on his pants while they were shopping.

At trial, Allen recanted part of his confession in which he claimed to have killed Brown because she threatened to tell her girlfriend about their relationship and because he did not want her to go to Las Vegas. He also denied statements that he hit Brown more than once with the hammer in an effort “to finish it off’ so he would not go to jail. Allen’s confession was played for the jury.

When viewed in the light most favorable to the state, we find the evidence sufficient to convict Allen of the second degree murder of Brown. Because there were no independent eyewitnesses to the crime, proof of the offense was by circumstantial evidence and the direct evidence contained in Allen’s statements. Although at trial Allen claimed to have only hit the victim once with the hammer, the physical evidence corroborates Allen’s confession statement that the victim was hit more than once on the head with the hammer. In fact, the blood spattering and head lacerations showed that she was probably hit three times. The jury was free to accept those statements |10and the evidence as being the most credible. Although Allen argues that it was the parties’ argument and fight that caused him to lose his cool and murder the victim, he also admitted in his confession that the victim never took a swing at him, that he was aware that he did not need the hammer to win the fight, that he later washed the hammer, and that he committed the theft of the victim’s property. Such rational considerations and deliberate actions during this type of confrontation undercut the reasonableness of Allen’s claim to have lost his self-control or cool reflection. Even if the jury had considered that the argument precipitated the first blow, the remaining evidence plainly establishes that Allen developed the specific intent to kill Brown. In his confession, Allen admitted that he hit the victim the second time to “finish it off.” At trial, he acknowledged that when she walked into the bedroom she was not in an aggressive posture, yet he bound her and choked her to unconsciousness. From the energy, time and thought required to secure that number of ligatures and tie the victim, the jury could have reasonably inferred that Allen had regained any composure lost by the initial fight and by this point, clearly understood and purposefully intended the consequences of his actions. The physical evidence corroborates his pre-trial confession.

Based upon the evidence relating to Allen’s actions, his confession to police and the nature and extent of the victim’s injuries, we find that a rational trier of fact could have found beyond a reasonable doubt that Allen was guilty of second degree murder both under the felony (armed robbery) Uand specific intent portions of La. R.S. 14:30.1(A)(1) and (2)(a). The evidence supports the finding that Allen did not meet his burden of proving that he acted in sudden passion or heat of blood. While the victim might have introduced the hammer into the altercation, the defendant had ample opportunity to minimize the situation rather than escalate it. From this evidence, the jury could have reasonably rejected his manslaughter claim. Thus, no reversible error exists in the jury verdict.

Expert Testimony

Allen next argues that the state failed to show that Officer Hancock was qualified to present testimony regarding blood spatter, and that he was prejudiced by admission of the testimony.

As provided by La. C.E. art. 702, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the 112trial court to act in a gatek-eeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786. In Foret, supra, the court adopted these observations as a helpful guide for our lower courts in considering this difficult issue. Id. Thus, Louisiana has adopted Daubert’s requirement that in order for technical or scientific expert testimony to be admissible under La. C.E. Art. 702, the scientific evidence must rise to a threshold level of reliability. Daubert’s general “gatekeeping” applies not only to testimony based upon scientific knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Id. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in |13respect to its ultimate reliability determinations. Kumho, supra at 526 U.S. 142, 119 S.Ct. 1167.

A trial court has great discretion in determining the competence of an expert witness, and that determination will not be overturned absent an abuse of discretion. La. C.E. art. 702; State v. Gipson, 37,132 (La.App.2d Cir.6/25/03), 850 So.2d 973, writ denied, 03-2238 (La.1/30/04), 865 So.2d 75. The test of competency of an expert is his knowledge of the subject about which he is called upon to express an opinion. A combination of specialized training, work experience, and practical application of the expert’s knowledge can combine to demonstrate that a person is an expert. State v. Gipson, supra.

This court has previously noted that blood spatter analysis is not a precise discipline. See State v. Powell, 598 So.2d 454 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992). The jurisprudence of the Louisiana Supreme Court subsequent to State v. Foret, supra, has allowed experts to qualify in the field of blood spatter analysis. See State v. Allen, 03-2418 (La.6/29/05), 913 So.2d 788; State v. Manning, 03-1982 (La.10/19/04), 885 So.2d 1044.

There is no rule of law, statutory or jurisprudential, which requires that different standards be placed on those witnesses who seek to be qualified as an expert in a field for the first time. Rather, the same standard of competency applies to all and a trial judge is only required to satisfy himself that the witness’s competency has been established prior to qualifying him as [14an expert. State v. Allen, supra; State v. Smith, 448 So.2d 778 (La.App. 2d Cir.1984).

Allen complains that Officer Hancock did not have enough specialized training in blood spatter analysis to be accepted as an expert. Officer Hancock testified that he processed the crime scene. A video of the crime scene was played for the jury and narrated by Officer Hancock. He discussed the blood evidence found on the scene. The defense objected on the ground that there was no foundation for the witness being qualified as an expert in the field of evaluating blood evidence. The state then began voir dire regarding the witness’s qualifications. Officer Hancock testified that he had 17 years experience as an officer and attended classes in the identification and collection of various forms of evidence. His duties included observing different types of blood evidence. He attended three schools teaching skills in working with blood evidence. The officer also testified as to his expertence with numerous crime scenes involving blood spatter identification.

During cross-examination, Officer Hancock acknowledged he did not have specific certification for blood spatter evidence, but was certified in crime scene collection. A portion of this schooling included instruction in blood spatter technique. He also had on-the-job training involving investigating crime scenes with blood spatters. The defense’s objection was to the witness’s qualifications in the particular field of blood spatter. The trial court accepted the witness as an expert in both the field of crime scene | ^investigation and in blood spatter. The court informed the jury that it would weigh the witness’s testimony just like any other witness.

We cannot discern an abuse of discretion by the trial court in the qualification of Officer Hancock as an expert in the area of blood spatter. Officer Hancock’s testimony indicates he had sufficient training and on-the-job experience and application by working numerous crime scenes to provide the background sufficient for establishing him as an expert. (See State v. Manning, supra at 1089 and cases cited therein comparing blood spatter experts’ qualifications.) The fact that this witness has not been previously qualified in this area does not preclude him from being accepted as an expert in this case. State v. Allen, supra. The trial court clearly instructed the jury to determine the weight and credibility that his testimony deserved. The defendant cross-examined the witness as to his qualifications and the conclusions drawn by the witness from his expert analysis. Additionally, Allen has failed to show the likelihood of prejudice from the witness’s testimony by only making general allegations of prejudice and not presenting specific claims. Thus, this argument lacks merit.

Voluntariness of Confession

Allen contends that despite being advised of his right to remain silent, he never made an effective waiver of that right because undue influence and coercion were exercised upon him when he confessed. Specifically, he claims that several statements made by police detectives during their interrogation prompted his confessions.

| ¶(¡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; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App.2d Cir.8/19/05), 909 So.2d 1038; State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 00-1427 (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. Bowers, supra; State v. Roddy, supra. 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, supra

In State v. Jackson, 381 So.2d 485 (La.1980), and State v. Morvant, 384 So.2d 765 (La.1980), the 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. The admissibility of a confession is a question for the trial court. When determining admissibility, the trial court’s conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 922, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000); State v. Bowers, supra. Great weight is given to the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Thibodeaux, 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. Bowers, supra; State v. Henderson, 31,986 (La.App.2d Cir.8/18/99), 740 So.2d 240.

During Allen’s trial, the trial court conducted a “free and voluntary” hearing at which the detectives who worked on the case testified. Allen made several statements while in custody; however, the prosecution only introduced Allen’s recorded confession of the crime to Detectives Mark Nappier and Quentin Holmes.

On the day of the confession, Detective Nappier and another officer asked to speak with Allen. After information regarding the police investigation was revealed, Allen decided to confess in light of that overwhelming evidence. Detective Holmes was brought into the room and again read Allen his Miranda rights prior to Allen’s confession. The officers testi-fled that Allen agreed to waive those rights.

On appeal, Allen alleges that two coercive statements were made during his interrogation by police that coerced him into this final confession. The first statement was made by Detective Nappier. Detective Nappier admitted he told Allen that if he hoped to have any chance of spending time [18with his son outside of prison, he needed to be honest. According to Detective Nappier’s trial testimony, the statement was not to coerce the defendant. When queried as to why he made the statement to the defendant, Detective Nappier further testified, “I just felt that was the best thing for him to do.”

The other statement was made by Detective Thomas Rhodes in the first interview that Allen gave to police after his arrest. In that interview, Detective Rhodes told Allen that if the case went to trial, he faced the death penalty. Detective Holmes also admitted that in a pre-confession interview, he also mentioned the death penalty to Allen in order to educate the defendant on the differences between possible charges.

After hearing the testimony of the detectives, the trial court ruled that considering the totality of the circumstances, Allen’s statements were freely and voluntarily given. According to the trial judge, the statements made by the officers regarding the defendant’s son and the death penalty could be considered as musings, not beyond what the defendant could have concluded for himself. We agree.

Allen does not contend that he was not advised of or failed to understand his rights. Indeed, Allen was twice advised of his rights prior to confessing, and had been advised of his rights numerous times in pre-interview statements. A clear waiver of those rights exists on this record. Moreover, statements by police to a defendant that he would be better off if he cooperated are not “promises or inducements designed to extract a confession.” State v. Petterway, 403 So.2d 1157, 1160 (La.1981); State v. Dison, 396 So.2d 1254 (La.1981). The fact that Allen would not be free to see his son while in prison is an obvious fact which Allen would have known. Further, this court has held that any discussion of the penalties for the different grades of homicide are superficial when not done in a threatening manner. Here, the officers testified that they told him of the death penalty to educate Allen on the different grades of offenses. Allen presented no contrary evidence. Thus, the trial court was free to accept that testimony as credible. With the great discretion granted to the trial court in determining the free and voluntary nature of a confession, we find no error in the admission of Allen’s confession into evidence.

Excessive Sentence

Allen finally submits that his imposed sentence is constitutionally excessive because the sentence imposed is grossly disproportionate to the crime allegedly committed and represents nothing more than the needless imposition of pain and suffering.

It is the legislature’s prerogative to determine the length of a sentence imposed for the crimes classified as felonies, and the courts are charged with applying those punishments unless they are found to be unconstitutional. State v. Armstrong, 32,279 (La.App.2d Cir.9/22/99), 743 So.2d 284, writ denied, 99-3151 (La.4/7/00), 759 So.2d 92. The decision to assess mandatory life sentences is within the authority of the legislature. State v. Armstrong, supra. Moreover, the judiciary should afford great deference to the legislature’s determination of an appropriate minimum sentence. State v. Ruffins, 32,870 (La.App.2d Cir.12/10/99), 748 So.2d 614. The argument | ¡,nthat 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. Roberson, 40,809 (La.App.2d Cir.4/19/06), 929 So.2d 789; State v. Thornton, 36,757 (La.App.2d Cir.01/29/03), 836 So.2d 1235, writ denied, 03-0861 (La.10/31/03), 857 So.2d 474; State v. Koon, 31,177 (La.App. 2d Cir.02/24/99), 730 So.2d 503; State v. Davis, 31,711 (La.App.2d Cir.3/31/99), 732 So.2d 612, writ denied, 99-3114 (La.5/5/00), 761 So.2d 539.

In order to overcome the legislative mandate, there must be clear and convincing evidence that the defendant is exceptional or that, because of unusual circumstances, he is the victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.

Where there is a mandatory sentence, there is no need for the trial court to justify, under Article 894.1, a sentence it is legally required to impose. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219; State v. Hill, 40,023 (La.App.2d Cir.9/21/05) 911 So.2d 379; State v. Koon, supra.

Although not required, the trial judge in this case articulated reasons why this sentence was appropriate for Allen in addition to considering that the mandatory sentence was appropriate and individualized to this defendant. During the sentencing hearing, the victim’s father made an impact statement outlining how the family, including the victim’s four sons, suffered since losing their loved one. In reviewing the sentence, the trial judge found that 121 the defendant had two adjudications as a juvenile and that he served time for these offenses. The trial judge noted he looked at the facts of the case and found the crime to be a very violent one caused by the defendant’s desire not to go to jail. The judge outlined the factors he considered including whether the defendant’s criminal conduct caused or threatened serious harm, whether the defendant contemplated the fact that his actions would cause serious harm, whether the defendant acted under strong provocation, and whether the victim induced or facilitated the crime. All of these questions were answered against the defendant. The judge found that the defendant has a background of violent crimes and that he would likely turn to crimes of violence if released prior to serving the entirety of his life sentence. The court also found that imprisonment of the defendant would not entail an excessive hardship on his dependents.

According to the trial judge, aggravating circumstances present in this case were the fact that the motive for the premeditated murder was to escape jail (time) for a battery offense, the defendant’s violent criminal history, and undue risk that the defendant would commit another crime if released on probation or parole. The court also found the defendant to be in need of correctional treatment in a custodial environment, and that a lesser sentence would deprecate the seriousness of the crime.

We affirm the imposed mandatory sentence. Allen neither argued nor provided any evidence to show that he is exceptional or that there were unusual circumstances not considered in this case. The trial judge | ^meticulously evaluated whether the life sentence was appropriately tailored to this defendant and found the mandatory life sentence appropriate. The violent and heinous nature of the crime justifies the mandatory life sentence which is meaningfully tailored to the culpability of this offender, the gravity of the offense, and the circumstances of the case. The sentence is affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . The stipulated testimony of the mother of Allen’s son confirmed that he brought these items to her home.

      . The evidence also supports the conviction under the armed robbery murder theory. Allen confessed that he robbed someone shortly after the murder. Additionally, it would have been reasonable for the jury to conclude that Allen killed (used force against) Brown to prevent her seeing and objecting to his departure with the funds and her vehicle which the jurisprudence considers to have been under her control. See Reporter's Comment La. R.S. 14:64. Louisiana jurisprudence does not distinguish between the armed robbery which occurs before the killing of the victim and the robbery of the victim whom the defendant has already killed. State v. Goodley, 01-0077 (La.6/21/02), 820 So.2d 478. In such a case, the evidence supports the conclusion that the murder facilitated the armed robbery and formed part of one continuous transaction. See State v. Goodley, supra; State v. Nelson, 459 So.2d 510 (La.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 322 (1985).

      . The record also shows that Allen had also given pre-confession interviews. The officers testified that on each occasion, Allen indicated he understood his rights and wished to waive them and discuss the matter with the detectives. During those visits, the officers observed that Allen did not appear to be under the influence of any substances and appeared to understand his rights.

      . The record shows that at age 13, Allen was charged and adjudicated guilty for the crimes of oral sexual battery and battery upon a school teacher and was committed for a period not to exceed his 20th birthday (oral sexual battery) and 6 months (battery).


text:
    Demetria Bouchaund HENDERSON and Dylan Lovely, Plaintiffs-Appellants, v. UNION PACIFIC RAILROAD, Brandon Shifflett, Samuel Rivera, State of Louisiana through the Department of Transportation and Development, and Caddo Parish Commission, Defendants-Appellees.
    No. 41,596-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 15, 2006.

      Dumas & Associates Law Corporation by Walter C. Dumas, Baton Rouge, for Appellants, Demetria B. Henderson and Dylan Lovely.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by Joseph S. Wood-ley, Shreveport, for Appellee, Caddo Parish Commission.
    Charles Foti, Attorney General, Gregory S. Barkley, Assistant Attorney General, for Appellee, State of Louisiana, DOTD.
    Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for Appel-lees, Union Pacific Railroad and Samuel Rivera.
    Before STEWART, GASKINS and MOORE, JJ.
   STEWART, J.

| iThis is an appeal by plaintiffs, Demet-ria Henderson and Dylan Lovely, from the trial court’s denial of their motion for continuance and grant of the defendant’s motion for summary judgment. For the reasons that follow, we affirm the trial court.

FACTS

On or about September 16, 2004, John Bland Jr. was fatally injured near the railroad crossing located at the intersection of Hoadley Street and Southern Avenue in Shreveport when he was struck by a freight train owned by defendant, Union Pacific Railroad (“UPR”). On September 7, 2005, the plaintiffs sued UPR, Brandon Shifflet, Samuel Rivera, State of Louisiana through the Department of Transportation and Development and the Caddo Parish Commission (“Commission”) asserting that the railroad crossing at the subject intersection was improperly signed. The Commission answered asserting that the crossing was located in the City of Shreveport and that it had no duty to maintain the crossing.

The Commission propounded discovery to the plaintiffs, but the plaintiffs made no attempt to conduct any discovery in the case. On November 4, 2005, the Commission filed a motion for summary judgment. Attached to that motion was an affidavit of the Director of Public Works for Caddo Parish which denied that the Commission was responsible for the intersection. The motion was set for argument on December 12, 2005. Plaintiffs took no steps to conduct any discovery prior to the hearing. On or about December 9, 2005, plaintiffs filed a motion for continuance. Argument on the motion for summary judgment was reset for February 6, 2006.

|gOn January 20, 2006, plaintiffs propounded requests for admissions to the Commission. These requests were answered on January 23, 2006. On January 25, 2006, plaintiffs advised counsel that they took issue with the response to request for admission number 3. On January 27, 2006, counsel for respondent advised counsel for plaintiffs that Caddo Parish did not maintain the crossing. Plaintiffs asked for a continuance of the February 6 argument on the motion for summary judgment, and it was reset for February 27, 2006.

On February 3, 2006, plaintiffs propounded requests for production to the Commission. Those requests were answered on February 13, 2006, with the Commission advising the plaintiffs that it had no documents responsive to those requests. Plaintiffs also requested a third continuance of the motion for summary judgment on February 24, 2006. Plaintiffs never filed an opposition to the motion for summary judgment and have produced no countervailing affidavits.

At the February 27 hearing, the trial court denied the plaintiffs motion for a continuance and granted the Commission’s motion for summary judgment. This appeal ensued.

DISCUSSION

Standard of Review

On appeal, a trial court’s ruling on a motion for summary judgment is reviewed pursuant to the de novo standard of review. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002.

Our law provides that the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, | -¡except those disallowed by law; 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.05/14/02), 817 So.2d 21. If the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law, then summary judgment shall be rendered. La. C.C.P. art. 966; Patton v. Strogen, 39,829 (La.App.2d Cir.8/17/05), 908 So.2d 1282, writ denied, 2005-2397 (La.3/17/06), 925 So.2d 548.

As explained in La. C.C.P. art. 966(C)(2) and throughout our jurisprudence, the burden of proof on a motion for summary judgment remains with the movant. However, when the movant will not bear the burden of proof at trial on the matter before the court on the summary judgment motion, the burden does not require the movant to negate all essential elements of the adverse party’s claim, but rather to point out that there is an absence of factual support for one or more elements essential to that claim. La. C.C.P. art. 966(C)(2). If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact. Id.

As provided in La. C.C.P. art. 967(B), the adverse party may not rest on the mere allegations or denials of his pleading in response to a properly made and supported motion for summary judgment; rather, his response, by affidavits or otherwise, must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment shall be rendered against him, if appropriate. La. C.C.P. art. 967(B).

14A material fact is one whose existence or nonexistence may be essential to the plaintiffs action under the applicable theory of recovery. Such facts potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.07/05/94), 639 So.2d 730; Patton, supra. Not all disputed facts are material, and summary judgment may be granted if contested facts present no legal issues. Harvey v. Francis, 2000-1268 (La.App. 4th Cir.3/21/01), 785 So.2d 893. Whether a disputed fact is material is determined in light of the substantive law applicable to the case. Id. Genuine issues are triable issues for the fact that reasonable persons could disagree as to the conclusion. Patton, supra.

A denial of a motion for continuance will not be disturbed absent a showing of an abuse of discretion by the trial court. Woods v. City of Shreveport, 30,393 (La.App.2d Cir.10/26/05), 914 So.2d 635.

The record before this Court clearly shows that the motion for summary judgment filed came before the trial court on three occasions. Prior to the first setting, the plaintiffs took absolutely no steps to conduct any discovery. On the Friday before the argument was to be held, appellants sought a continuance to conduct discovery. The motion for summary judgment was reset for argument on February 6, 2006, with all discovery to be completed by January 31, 2006.

On January 20, 2006, the plaintiffs served requests for admissions on the Commission. This was their first attempt to conduct any discovery in the case. Responses were not due within the time frame allowed by the j Rcourt nor were they due before argument on the motion for summary judgment. Nevertheless, that discovery was responded to. The plaintiffs took issue with the defendant’s response to their request for admission number 3 and sought another continuance on the motion for summary judgment. The only opposition the plaintiffs have ever filed to the properly supported motion for summary judgment has been in the nature of a continuance.

The Commission argued that it appropriately responded to the discovery requests and further advised the appellants that it had no responsibility for the signing on this crossing. The trial court properly ruled that the response to this request was clear and adequately shows that the Commission was in no way involved in the marking of the crossing.

After a review of the entire record in this case, it is clear that the trial court allowed the plaintiffs ample time for discovery before proceeding to the merits of the properly supported motion for summary judgment. The responses of the Commission to discovery were adequate and timely. Unfortunately, plaintiffs waited until the eve of the various settings of the motion for summary judgment before requesting any discovery. This was a dilatory tactic that was not allowed by the trial court after the third time. There was no showing of abuse of discretion by the trial court in denying the continuance.

Further, the motion for summary judgment filed by the Commission was properly supported by the affidavit of Woodrow Wilson, the Director of Public Works for Caddo Parish. Mr. Wilson stated that the crossing at | tissue in this case is located within the City of Shreveport. As such, neither the surrounding streets nor crossing are maintained by the Parish. Because the Parish has no responsibility for the crossing, it cannot be liable to the plaintiffs as a matter of law. As such, the plaintiffs’ contentions are without merit.

CONCLUSION

Based on the above, we affirm the decision of the trial court denying the plaintiffs’ motion for continuance and granting the defendant’s motion for summary judgment. Costs assessed to the plaintiffs.

AFFIRMED.