author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Carol DOUGLAS.
    No. 2006-KA-0319.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 2007.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell, IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME.
   ROLAND L. BELSOME, Judge.

| ¶ Defendant-Appellant Carol Douglas appeals from the trial court’s sentence of forty months at hard labor for attempted simple burglary on a multiple bill. We affirm.

STATEMENT OF THE FACTS

On the evening of August 7, 2004, as Joanne Howard and her daughter Shama-ria Howard were unloading items from Mrs. Howard’s vehicle, Shamaria noticed a woman inside the vehicle. When Shama-ria called for her mother, the Appellant exited the vehicle and began walking up the street. Mrs. Howard initially followed the Appellant on foot, and then her daughter picked her up in the vehicle. Mrs. Howard and her daughter followed the Appellant until she went into an area where they were unable to drive. While following the Appellant, the women called 911 and related what was occurring; however, the police were unable to apprehend the Appellant that evening.

The next day, Mrs. Howard was driving her vehicle when she observed the Appellant walking towards her. Mrs. Howard recognized the Appellant because she was wearing the same clothing that she had been wearing the previous evening, in addition to a pair of black slippers that were in the vehicle and belonged to Mrs. | ¡¿Howard. When the Appellant noticed Mrs. Howard, she entered a nearby church. The Appellant stayed inside the church until the police arrived in response to a 911 call placed by Mrs. Howard, who remained outside in her vehicle, watching the church doorway. The Appellant was then arrested.

Mrs. Howard testified that in addition to the slippers, one hundred and twenty dollars was stolen from her purse inside the vehicle. The money was not recovered. Mrs. Howard and her daughter were the only witnesses at trial.

PROCEDURAL HISTORY

The State filed a bill of information on October 15, 2004, charging the Appellant with one count of simple burglary, a violation of La. R.S. 14:62. A not guilty plea was entered at the arraignment on October 20, 2004. After waiving a jury trial, the Appellant was found guilty of attempted simple burglary at a bench trial on January 26, 2005. On February 10, 2005, the court sentenced the Appellant to two years at hard labor, and the State subsequently charged her as a third offender. A hearing on the multiple bill of information was then held on March 23, 2005, but the court did not rule at that time. After a second multiple bill hearing on April 20, 2005, the trial court adjudicated the Appellant as a third offender and sentenced her to forty months at hard labor. On April 21, 2005, the defense filed a motion to reconsider sentence, a motion to quash the multiple bill, and a motion for an appeal. The court denied the motion to reconsider and the motion to quash, but granted the motion for an appeal. This appeal followed.

ERRORS PATENT/ASSIGNMENT OF ERROR NUMBER 2

The Appellant requests a review of the record for errors patent; however, a review of the record reveals that there are no errors patent in this case.

| ^ASSIGNMENT OF ERROR NUMBER 1

In her first assignment of error, the Appellant argues that the trial court imposed an excessive sentence. That sentence, forty months at hard labor, was the statutory minimum under La. R.S. 15:529.1 and La. R.S. 14:27(62). Nevertheless, the Appellant contends that it is constitutionally excessive in light of her non-violent criminal record.

Louisiana jurisprudence dictates that the test to determine whether a sentence is excessive is two-pronged; the first prong is an examination of whether the trial court complied with LSA-C.Cr.P. art. 894.1. State v. Lobato, 603 So.2d 739, 751 (La.1992). Article 894.1 lists guidelines for courts during sentencing in criminal cases, such as taking aggravating or mitigating circumstances into consideration. LSA-C.Cr.P. art. 894.1. A trial court need not, however, specify each aggravating and/or mitigating factor as long as the record indicates that the 894.1 guidelines were adequately considered, because “the goal of the article is an articulation of a factual basis for the sentence rather than rigid or mechanical compliance with its provisions.” Lobato, 603 So.2d at 751 (citing State v. Landos, 419 So.2d 475 (La.1982)). We find that that the trial court conducted an appropriate review in this case. The trial court inquired as to the sentencing range, and upon being informed that the minimum sentence was forty months, sentenced the defendant to the minimum term without stating reasons. The defense lodged no objection, although a motion to reconsider was timely filed two days later. The defense made no showing at the hearing or in the motion to reconsider that there were any particular mitigating circumstances that would make the Appellant |4exceptional such that the mandatory minimum sentence was inappropriate. Finally, although the Appellant’s brief cites to the rule regarding a trial court’s consideration of the 894.1 factors, it does not allege that the trial court failed to appropriately conduct a review under LSA-C.Cr.P. art. 894.1 in this case.

Additionally, the trial court’s omission of any reasons for judgment is irrelevant under these circumstances. In State v. Jefferson, 2004-1960 (La.App. 4 Cir. 12/21/05), 922 So.2d 577, for example, this Court rejected the appellant’s argument that it should vacate the mandatory minimum sentence imposed because the trial court failed to mention any reasons for sentencing, including any sentencing factors enumerated in La.C.Cr.P. art. 894.1, stating that although the 894.1 sentencing factors must be considered in each case, “ ‘[w]hen the statute provides for a mandatory sentence, it is an exercise in futility for the trial court to enumerate its reasons for sentencing.’ ” Jefferson, p. 37, 922 So.2d at 603 (citing State v. Green, 992847, p. 8 (La.App. 4 Cir. 11/29/00), 779 So.2d 835, 840; State v. Brooks, 2000-2337, p. 3 (La.App. 4 Cir. 4/10/02), 817 So.2d 288, 290).

The second prong of the examination of whether a sentence is excessive involves a consideration of the particular circumstances of the case and the background of the defendant. Lobato, 603 So.2d at 751. In this case, the record shows that the appellant’s prior crimes were committed in 1995 and 2000, while the instant offense occurred in 2004, resulting in a nine-year felony criminal record. Additionally, the enhanced theft conviction occurred in 1995; thus, the Appellant must have committed at least two misdemeanor thefts prior to 1995. | ¡/Therefore, although her criminal history may be non-violent, it extends back many years. Finally, according to the docket master in the record, the Appellant was born in 1956, and youth is thus not a mitigating factor in this case.

A similar argument was asserted in State v. Williams, 98-651 (La.App. 5 Cir. 2/10/99), 729 So.2d 14, where the defendant was sentenced to twenty years as a fourth offender for the crime of attempted simple burglary. He argued that because all of his prior convictions were non-violent, the mandatory minimum sentence was excessive. Williams, 729 So.2d at 20. The appellate court rejected that argument in light of the defendant’s previous arrests and burglary convictions, noting that “pri- or criminal activity is one of the factors to be considered by the trial judge” during sentencing, and moreover, that “[pjrior criminal activity is not limited to convictions.” Id. at 21.

Therefore, although the appellant’s brief contends that the two prior convictions upon which the multiple offender adjudication were based were non-violent and essentially misdemeanors, pursuant to the guidelines of LSA-C.Cr.P. art. 894.1 and Louisiana jurisprudence, the lack of violence in the Appellant’s previous offenses is of no consequence in this case. This Court recently reiterated the general principles regarding excessive punishment in State v. Robert, 2005-1315, pp. 3-4 (La. App. 4 Cir. 5/31/06), 931 So.2d 1268, 1271 (emphasis added):

Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. La. Const. Art. I, 20; State v. Landry, 20031671 (LaApp. 4 Cir. 3/31/04), 871 So.2d 1235, 1239-1240. A sentence may violate a defendant’s constitutional right against excessive punishment even if it is within the statutory limit. Id.; State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). A sentence | ¡¡within the statutory limit is constitutionally excessive if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless imposition of pain and suffering. State v. Landry, 871 So.2d at 1239-1240, citing State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676.
It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional.
State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the present case that would rebut the presumption of constitutionality. Id. To merit a deviation below the mandatory minimum sentence, the defendant must clearly and convincingly show that he is exceptional. State v. Johnson, supra. Such downward departures should occur only in rare instances. Id.

In this case, the Appellant did not demonstrate any mitigating circumstances, nor did the Appellant show that the sentence imposed was grossly out of proportion to the severity of the crime. It should also be noted that although the court found the Appellant guilty of attempted simple burglary, the evidence was sufficient to sustain the original charge of simple burglary. If she had been convicted of that offense, the minimum sentence would have been eight years and the maximum twelve years. Instead, because the court found the Appellant guilty of only attempted simple burglary, the sentencing range decreased to forty months minimum and twelve years maximum. Thus, the Appellant received a substantial benefit by virtue of the verdict returned by the court in the bench trial.

Finally, it is worth noting that while the Habitual Offender Law is technically applicable to cases where the multiple offenders committed no crimes of violence, historically speaking, the intent was to create longer sentences |7primarily for individuals who had committed violent crimes. See State v. Lindsey, 1999-3302 (La.10/17/00), 770 So.2d 339, 347 (Johnson, J., dissenting). In Lindsey, Justice Johnson stated that “[w]hen the legislature passed the habitual offender statute, La. R.S. 15:529.1, the intent was to reach violent criminals, who demonstrate through their recidivism that they are beyond rehabilitation.” Lindsey, 770 So.2d at 347. Justice Johnson further noted that she was “not convinced” that the legislature had the defendant in that case “or other purse snatchers in mind when they put these mandatory sentences in place,” and remarked that “every petty thief, shoplifter and purse snatcher is subject to a mandatory life sentence because of the policy on multiple billing.” Id.

CONCLUSION

Although the penalty in this ease does not appear to fit the crime, we are required to uphold the sentence imposed by the trial court pursuant to the guidelines mandated by La. R.S. 15:529.1. The Appellant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . Notably, the sentencing range that was applicable to the appellant was not changed by the enactment of 2001 legislation that reduced some penalties for habitual offenders with crimes of violence and drug offenders.

      . A writ has been applied for in the Supreme Court.

      . One conviction was for a crime against nature and the other was for multiple offender theft.

      . Before the trial commenced, the defense attorney placed on the record the fact that the State had offered a plea bargain wherein the defendant would receive a three-year sentence and no multiple bill would be filed, but that she had rejected the offer. The sentence ultimately imposed by the trial court cannot be deemed in any way an additional penalty from the trial court for her choice to exercise her right to a trial considering that it was only ten months more than what was offered in the plea bargain, albeit without benefit of good time under La. R.S. 15:529.1.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Bennie WASHINGTON.
    No. 2006-KA-1014.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 2007.

      Eddie J. Jordan, Jr., District Attorney, Anthony J. Ibert, Assistant District Attorney, New Orleans, LA, for PlaintiffiAppel-lee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

On December 29, 2004 the State charged the defendant Bennie Washington with one count each of purse snatching and armed robbery. At his arraignment on January 5, 2005 he pled not guilty to both counts. On January 31 the State amended the bill of information as to the date and the name of the victim in the robbery count, and Washington pled not guilty to the amended charge. The State amended the bill again on the day of trial, March 28, to charge Washington with attempted armed robbery, and again Washington pled not guilty to the amended charge. On that date, a twelve-person jury found him guilty as charged in the purse snatching count; it could not reach a verdict on the robbery count. The State filed a multiple bill against Washington on April 15, to which he pled not guilty, and the court reset the matter. On April 26, Washington filed a motion to quash the multiple bill, and the court denied the motion. After a hearing, the court found Washington to be a second offender and ordered a presentence investigation report. On July 8, 2005 the court sentenced Washington to serve thirty years at hard labor without benefit of probation or suspension of sentence and without good time eligibility. The court denied Washington’s motion to reconsider sentence but | ¡.granted his motion for appeal. On July 18, 2005 the court amended Washington’s sentence to delete his ineligibility for good time.

FACTS

Nita Breckenridge testified that on October 24, 2004 she lived at 1222 Antonine Street. She testified that at approximately 9:30 p.m. on that date she left her house to pick up her son from work and then dropped him off at Tulane University. She stated that at approximately 11:00 p.m. she returned to her home, parking down the street from her condo because she could not get a parking place right in front. She testified that she walked down the middle of the street until she reached the sidewalk leading to her home. As she turned and started walking down the sidewalk, a man she positively identified as the defendant Bennie Washington came out from behind a tree and started following her. She stated that Washington fumbled under his shirt as he approached her, but he did not remove anything from under the shirt. She stated that she tried but failed to push her car’s panic button as Washington approached. She testified that Washington then grabbed her purse, pushing her sideways and taking the purse as she fell to the ground. Ms. Breckenridge testified that she screamed, and the man ran off toward Magazine Street. She stated that she got up and yelled after him that the purse contained nothing valuable and that she could identify him. She stated that she also chased him down Antonine Street until she lost him somewhere in the vicinity of Camp Street. She stated that she then went back home and called the police, describing | sher assailant as having short hair and a medium black complexion, and wearing a white shirt and black pants and shoes.

Ms. Breckenridge stated that she was able to get a good look at Washington’s face because she could see it plainly in the streetlight. She testified that approximately one to two hours after the purse snatching police officers told her that they had captured a suspect that they wanted her to view. She stated that they took her to the corner of Magazine and either Peni-ston or Amelia Streets, where they took a man out of the back of a police car and put lights on him. She stated that she identified the man, Washington, as the person who snatched her purse. She stated that he was wearing at the time black pants and shoes, as well as a white shirt that was not the same shirt he was wearing when he snatched her purse.

Ms. Breckenridge testified that at the time it was taken her purse contained a wallet with credit cards, her driver’s license, keys, a brush, perfume, lipstick, cigarettes, and a lighter. She testified that after she identified Washington, the officers searched him and found a pack of cigarettes that was the same type as was in her purse and a lighter which, like the one in her purse, was almost out of fluid and had the top piece broken off of it. She also testified that her purse was later found by someone in the area, but it did not contain her keys or her wallet. She did, however, find her keys in the grass near the purse.

On cross-examination, Ms. Breckenridge estimated that she saw her assailant for thirty seconds during the purse snatching and then made her identification one to two hours after the purse snatching. She reiterated that the shirt that the assailant was wearing at the time he snatched the purse was a white |/T-shirt, while Washington was wearing a shirt with a small symbol on it when she identified him.

Sgt. Anthony Micheu, IV, testified that he was on patrol on Magazine Street when he saw a man running down Amelia Street holding something like a person would hold a football. Sgt. Micheu testified that the man then turned and ran toward Peni-ston, and Sgt. Micheu began following him. At that point, he heard a broadcast concerning the purse snatching, and the man he saw running matched the description given. He testified that he saw the man run down an alleyway between two houses and jump a fence, and Sgt. Micheu called for backup. Sgt. Micheu stated that he and other officers set up a perimeter of Magazine, Camp, Amelia, and Peniston Streets, and soon thereafter other officers positioned in the 900 block of Peniston apprehended a man. He testified that he went to that location and identified the man, Washington, as the man.he saw running down Amelia Street. Although Sgt. Micheu could not remember the description given of the purse snatcher, he testified that Washington fit that description.

Officers Andres Gonzalez and Ronald Bodenheimer were responding to the purse snatching call when they heard Sgt. Micheu’s call for backup. While Off. Bo-denheimer remained at the corner of Peni-ston and Magazine, Off. Gonzalez walked to the middle of the 900 block of Peniston. Off. Gonzalez stated that after approximately thirty minutes, he saw Washington, who fit the description given of the purse snatcher, walk down an alleyway next to a house into the street. Off. Gonzalez stopped Washington, who told him that he had entered the alleyway because he had to urinate. Off. Gonzalez testified that he later walked into the alley and found no wet spot on the ground. Sgt. Micheu soon arrived and identified Washington as the man he saw running down Amelia Street clutching Issomething. However, Washington was not carrying anything when he walked out of the alley. Ms. Breekenridge later arrived and identified Washington as the man who snatched her purse. Off. Gonzalez arrested Washington, advised him of his rights, and searched him, finding a wallet (apparently not the victim’s), a pack of cigarettes, a lighter, and a cell phone. Ms. Breekenridge then identified the pack of cigarettes as the same brand which had been in her purse and the lighter as the one that had been in her purse. Off. Gonzalez identified the clothing Washington was wearing at his arrest: a grey shirt with “Bourbon Street” written on the front, a white undershirt Washington had been wearing under the grey shirt, and dark pants. Off. Gonzalez testified that the cell phone seized from Washington was not identified by Ms. Breekenridge. Off. Bodenheimer testified that he heard Ms. Breekenridge state that she had gotten a good look at Washington’s eyes during the offense and recognized them when she viewed him in the 900 block of Peniston. DISCUSSION

A. Errors Patent

A review of the record reveals no patent errors.

B. Assignment of Error

By his sole assignment of error, the appellant contends that the State failed to produce sufficient evidence to support his purse snatching conviction. Specifically, he alleges that the State failed to prove that he was the person who snatched Ms. Breckenridge’s purse.

In State v. Brown, 2003-0897 (La.4/12/05), p. 22, 907 So.2d 1, 18, the Court set forth the standard for determining a claim of insufficiency of evidence:

lfiWhen reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).

See also State v. Sykes, 2004-1199 (La. App. 4 Cir. 3/9/05), 900 So.2d 156.

The appellant was charged with and convicted of purse snatching, which is defined by La. R.S. 14:65.1 as “the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.” See State v. Pierre, 2004-0010 (La.App. 4 Cir. 2/25/04), 869 So.2d 246.

Here, the appellant does not dispute that a purse snatching occurred. Indeed, the evidence supports a finding of purse snatching because Ms. Breckenridge’s purse was snatched from her by an assailant who pushed her down and grabbed the purse as she fell: The appellant insists, however, that the evidence was insufficient to support his conviction because the State did not prove that he was the person who snatched the purse. In State v. Holmes, 2005-1248, pp. 8-9 (La.App. 4 Cir. 5/10/06), 931 So.2d 1157, 1162, this court discussed the standard to be used when an appellant disputes his identity as the perpetrator of an offense:

, When a key issue at trial is whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof beyond a reasonable doubt. State v. Bright, 1998-0398 (La.4/11/00); 776 So.2d 1134, 1147. The fact-finder weighs the respective credibilities of the witnesses, and a reviewing court will |7geherally not second-guess those determinations. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). However, the touchstone of Jackson v. Virginia is rationality and that “irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witnesses. State v. Hampton, 98-0331 (La.4/23/99); 750 So.2d 867, 880.

The appellant argues that the evidence does not negate the possibility that the victim misidentified him as the perpetrator. He argues that the victim did not get an adequate opportunity to observe him during the purse snatching, and thus her identification is not credible. In support, he cites various factors which he maintains shows that the victim’s identification of him as the purse snatcher is suspect.

First, the appellant cites to the discrepancy between the time the victim testified the purse snatching occurred and the time Sgt. Micheu testified he first saw the man running down the street. The transcript indicates that the victim testified that the offense happened at approximately 11:00 p.m. However, Sgt. Micheu did not explicitly testify that he saw the man running down Amelia Street sometime between midnight .and 2:00 a.m. Instead, at the beginning of Sgt. Micheu’s testimony the prosecutor asked him where he was between the hours of midnight and 2:00 a.m. In any event, the victim testified that the offense occurred at “roughly” 11:00 p.m., and further she testified that she briefly chased the offender down the street then turned back and called the police. Sgt. Micheu testified that it was just after he saw the appellant running down Amelia Street that he got the call about the robbery. Thus, whatever time the offense actually |soccurred, Sgt. Micheu received the broadcast about the purse snatching right after seeing the appellant running down the street. Contrary to his assertions, a long period of time did not elapse between the purse snatching and Sgt. Mi-cheu’s discovery of the appellant fleeing down Amelia Street.

In addition, the appellant points out that he was captured by Off. Gonzalez thirty to forty-five minutes after Sgt. Micheu saw the man fleeing down the street; thus, he argues that he could not have been the man Sgt. Micheu saw. Nonetheless, Off. Gonzalez testified that he positioned himself half-way down the block and stayed there for thirty minutes before the appellant appeared from between two houses. Off. Gonzales testified that during that time no one walked into the block, and the alleyway from which the appellant emerged dead-ended in a fence. Thus, Off. Gonzales would have seen the appellant if he had entered the block just prior to his capture.

The appellant points out that the man Sgt. Micheu saw running down the street was carrying an object, yet the appellant was not carrying anything when he was apprehended by Off. Gonzalez. However, thirty minutes had passed, and the appellant had jumped at least one fence between the time Sgt. Micheu saw him on Amelia Street and Off. Gonzalez captured him in the next block. Thus, he had ample time and opportunity to discard anything he might have been carrying.

The appellant points out that the victim admitted she only saw the perpetrator for thirty seconds during the purse snatching, and when she observed the appellant two hours later she viewed only him, when he was standing outside the police car, bathed in lights. Nonetheless, one-on-one identifications have been found to be reliable where the suspect is captured and the victim views the suspect within a short time of the crime. One-on-one identification procedures assure 19reliability and foster the prompt release of innocent suspects. State v. Robinson, 404 So.2d 907 (La.1981); State v. Lewis, 2004-0227 (La.App. 4 Cir. 9/29/04), 885 So.2d 641. Here, the victim testified that she saw the assailant’s face clearly because of the nearby street light. She identified the appellant one to two hours after the purse snatching. The fact that the appellant was the only person she viewed would not invalidate her identification of him.

The appellant next points to a discrepancy between the shirt worn by the purse snatcher and that worn by him when he was captured. The victim testified that the assailant was wearing a white T-shirt with sleeves, but when the appellant was captured he was wearing a grey shirt with a collar, under which he wore a white T-shirt. The victim also testified, however, that it appeared that the perpetrator had something bunched under his T-shirt, and that the perpetrator had his hand under his shirt as he approached her. In addition, Sgt. Micheu testified that the person he saw running down the street was wearing a white shirt. As noted above, approximately thirty minutes elapsed between the time Sgt. Micheu saw the man jump the fence and Off. Gonzalez apprehended the appellant a block away, and during that time he would have had ample opportunity to take the grey shirt out from under his white T-shirt and put it on over the white shirt.

The appellant next points to the fact that the victim was never able to recover her wallet or her keys. However, the victim testified that she found the keys near where her purse had been abandoned, which was in a yard somewhere in the area. The appellant then notes that the items from the purse that he was accused of keeping, the package of cigarettes and the broken lighter, were not so distinctive that the victim could identify them as having been in the purse when it was stolen. Nonetheless, the cigarettes found in the appellant’s pocket were the same brand as those in the purse when it |inwas stolen, and the lighter also found in his pocket had the top broken off and was almost out of lighter fluid, just like the lighter that was in the victim’s purse when it was stolen.

The appellant also notes that it was unknown how the officers knew to look for the cigarettes and the lighter when the victim did not mention them until after she had identified the appellant at the scene. However, the officers did not arrest the appellant and search him incident to that arrest until after the victim had identified the appellant as the assailant.

The jury was aware of the discrepancy (if any) in the time frame given by the victim and the officers and the discrepancy in the shirt worn by the perpetrator, and still it chose to believe the testimony of the victim and the officers over the appellant’s theory that he was in the alleyway only because he needed to urinate. Indeed, Off. Gonzalez did not see anyone enter the block in the thirty minutes he stood there during the perimeter search, and he also testified that he did not find a wet spot on the ground in the alleyway to corroborate the appellant’s statement. A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 20001082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432. Given the facts of this case, we find the jury did not abuse its discretion by finding the identifications of the victim and Sgt. Micheu credible. Thus, there was sufficient evidence to negate any possibility of misidentification, and the evidence presented at trial supported the jury’s finding that the appellant was the person who snatched the victim’s purse. This assignment of error has no merit.

| ^Accordingly, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Because the jury could not reach a verdict as to the second count, attempted armed robbery, evidence pertaining to this count has not been included in the statement of the facts. The victim in the attempted armed robbery count was Matthew Davis.

      . Writ den. 2005-0233 (La.5/6/05), 901 So.2d 1095.


author: Judge PATRICIA RIVET MURRAY.

text:
    Mark W. HANEY, Robert L. Haney, Jr., Ellis P. Carter, Mary Carter Stokes, Martin C. Carter, Jr., David A. Carter, Pamela Carter Cabiro, Marcelle Carter LeBlanc and Ronald T. Carter v. Leonard A. DAVIS, Russ M. Herman, Delta Petroleum Company, Inc., Paul B. Maxwell, Jon Maxwell, Delta Rocky Mountain Petroleum, Inc. and Herman, Herman, Katz & Cotlar, L.L.P.
    No. 2006-CA-1058.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 2007.

      Roy Raspanti, Metairie, LA, for Plaintiff/Appellant.
    Jacques F. Bezou, Candice L. Jenkins, The Bezou Law Firm, Covington, LA, for Defendani/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY).
   Judge PATRICIA RIVET MURRAY.

I,This is a nullity action. The factual and procedural background of this nullity action as well as the underlying case is set forth in several published opinions that have been rendered by this court. Haney v. Davis, 99-0170 (La.App. 4 Cir. 10/6/99), 748 So.2d 36, writ denied, 99-3177 (La.1/14/00), 753 So.2d 217 (Haney I); Haney v. Davis, 01-0636 (La.App. 4 Cir. 3/6/02), 811 So.2d 1200, writ denied, 02-1384 (La.9/13/02), 824 So.2d 1169 (Haney II); Haney v. Davis, 04-0856 (La.App. 4 Cir. 5/11/05), 904 So.2d 53 (Haney III); and Haney v. Davis, 04-1716 (La.App. 4 Cir. 1/19/06), 925 So.2d 591, writ denied, 06-0413 (La.4/28/06), 927 So.2d 293(Haney IV).

The underlying suit arises out of a December 1983 tender offer to the shareholders of Delta Petroleum Company, Inc. (“Delta”). Asserting breach of fiduciary duty claims, a group of former Delta shareholders — Mark W. Haney; Robert L. Haney, Jr.; Ellis P. Carter; Mary Carter Stokes; Martin C. Carter, Jr.; David A. Carter; Pamela C. Carter Cabiro; Mar-celle Carter LeBlanc; and Ronald T. Carter (collectively referred to as “Plaintiffs”) — filed the underlying suit against, among others, Delta; its subsidiary, Delta Rocky Mountain Petroleum, Inc. 12(“DRMP”); and Jon Maxwell, one of Delta’s officers and directors (collectively referred to as the “Delta Defendants”).

The principal issue presented in the underlying suit is whether the Delta Defendants had knowledge of a set of cash flow projections for DRMP and whether they had a duty to disclose such projections to Plaintiffs as part of the tender offer (referred to as the “Projections”). The Projections, according to Plaintiffs, evidence that the true value of the shares of Delta stock that the Delta Defendants purchased from them was significantly higher than the Delta Defendants represented to them (i.e., that the true value of the stock was at least $1,847.00 to $1,700.00 a share instead of the $1,000.00 a share the Delta Defendants paid to Plaintiffs).

In 1999, the trial court granted the Delta Defendant’s motion for partial summary judgment. The court found that the Delta Defendants had no duty to disclose the Projections in connection with the tender offer and dismissed all Plaintiffs’ claims arising out of the Delta Defendants’ failure to disclose the Projections. This court affirmed that decision in Haney I.

In 2001, the trial court granted the Delta Defendant’s motion for summary judgment and dismissed Plaintiffs’ entire suit. This court affirmed that decision in Haney II. On September 18, 2002, the Louisiana Supreme Court denied Plaintiffs’ writ application, rendering the dismissal of Plaintiffs’ underlying suit final.

hOn Monday, September 15, 2003, Plaintiffs filed a Petition for Nullity of Judgment and for Damages against, among others, the Delta Defendants. In their nullity petition, Plaintiffs outline the circumstantial evidence from which they allege they made the logical inference that the Delta Defendants committed fraud or ill practice in denying their Request for Admission in the underlying suit. A chronological summary of those circumstances is as follows:

• March 1998 — Plaintiffs propounded the Request for Admission as well as Interrogatories and Request for Documents upon the Delta Defendants through their attorneys of record. The Request for Admission sought to have the Delta Defendants admit or deny that Jon Maxwell (one of the Delta Defendants) prepared the Projections.
• June 22, 1998 — Leonard A. Davis, counsel for the Delta Defendants, called Plaintiffs’ counsel and proposed that the Delta Defendants would answer the Interrogatories and Request for Documents if Plaintiffs would agree not to make them answer the Request for Admission. Plaintiffs’ counsel refused the offer.
• July 2, 1998 — The Delta Defendants filed a motion for partial summary judgment on the issue of whether they owed a duty to disclose the Projections as part of the tender offer.
• July 17, 1998 — The trial court granted Plaintiffs’ motion to compel and ordered the Delta Defendants to respond to Plaintiffs’ discovery requests.
• July 30, 1998 — The Delta Defendants, through their attorneys, denied the Request for Admission.

Simply stated, the basis for Plaintiffs’ nullity action is their allegation that the Delta Defendants knew that Jon Maxwell prepared the Projections and that the Delta Defendants’ denial of the Request for Admission was “a knowing misrepresentation to the court for the purpose of ending plaintiffs’ case.”

In response to the nullity action, the Delta Defendants filed exceptions of res judicata, no cause of action, and prescription. Although the trial court granted the ^exception of res judicata, this court reversed and remanded in Haney III. On remand, the Delta Defendants reurged their other exceptions. From the trial court’s decision sustaining the exceptions of no cause of action and prescription, Plaintiffs appeal.

On appeal, Plaintiffs assert the following assignments of error:

1. The trial court erred in granting Delta Defendants’ exceptions of no cause of action and prescription and dismissing Plaintiffs’ claims against the Delta Defendants with prejudice.
2. The trial court erred in allowing the judgment sought to be annulled herein, ie., Mark W. Haney, et al v. Delta Petroleum Co., Inc, et al, No. 92-20105 in the Civil District Court for the Parish of Orleans to serve as the basis for the Delta Defendants’ exception of no cause of action.
3. The trial court erred in granting the Delta Defendants’ exception of prescription despite the fact that Plaintiffs filed suit within one year of the discovery by Plaintiffs of the fraud and ill-practices of the Delta Defendants.
4.The trial court erred in denying Plaintiffs’ motion to compel the deposition of Leonard A. Davis and in failing to find Leonard A. Davis in contempt of court for failing to obey a deposition subpoena.

Because we find Plaintiffs’ action untimely and affirm the dismissal of this suit on that basis, we do not address Plaintiffs other arguments.

As noted, the basis of Plaintiffs’ nullity action is that the Delta Defendants engaged in fraud or ill practices in obtaining a summary judgment dismissing their suit. This action is thus governed by La. C.C.P. art. 2004, which provides in pertinent part as follows:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

[sThe jurisprudence has construed this provision as placing the burden of proof on the party seeking the nullity to establish that the one-year period has not elapsed. Gennuso v.State, 339 So.2d 335, 338 (La.l976)(collecting cases). In an apparent attempt to satisfy their burden of proof, Plaintiffs allege in their second supplemental and amending petition that:

[They] did not realize the significance of the actions of defendants from 1998-2002 until after the conclusion of the litigation on September 13, 2002 when the Supreme Court denied their writ of certiorari. Subsequently, and after comparing the defendants^] Third Motion for Summary Judgment filed in 1998, their response to plaintiffs’ writ of certiorari in the Supreme Court and the reasons of the Fourth Circuit Court of Appeal in its opinion, plaintiffs realized that one of the arguments that defendants made in all of those briefs and the basis of the opinion of the Fourth Circuit Court of Appeal was the argument referred to in Paragraph XIV (supra).

The argument to which Plaintiffs refer— Paragraph XIV — was made by the Delta Defendants in support of their July 2, 1998 motion for partial summary judgment. The argument, which addresses the Projections, reads as follows:

Despite the many years of discovery in this case, the plaintiffs have been unable to find one witness who can state 1) the date the alleged projections were made; 2) who made the alleged projections; 3) the basis for the alleged projections; 4) the premises relied upon for any of the numbers used in the alleged projections; and 5) any assumptions made in creating the alleged projections.

Plaintiffs contend that the Delta Defendants could not have made this argument if they had not denied the Request for Admission. Continuing, they contend that their nullity action, which they filed in September 2003, is timely because they neither made the logical inference that the Delta Defendants’ denial of the Request for Admission must have been fraudulent nor realized the significance of the Delta Defendants’ actions until the Louisiana Supreme Court denied their writ application, in September 2002.

| (¡In support of their position, Plaintiffs cite La. C.C. art. 1957, which provides that “[fjraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence” and the official comments to that article, which state that fraud sometimes can be inferred from suspicious conditions or events. Plaintiffs contend that the events which occurred during the five-month interval between March 1998 when they propounded the Request for Admission on the Delta Defendants and July 1998 when the Delta Defendants denied it are the suspicious circumstances from which the Delta Defendants’ fraud can be inferred. (A chronological summary of these events is set forth earlier in this opinion.)

Although Plaintiffs contend that they did not realize the significance of the Delta Defendants’ actions until the Louisiana Supreme Court denied their writ application, the facts that form the basis for Plaintiffs’ nullity action have been in their possession since at least July 30, 1998, the date that the Delta Defendants denied the Request for Admission. The chronological summary of the events that Plaintiffs contend constitute the suspicious circumstances from which fraud can logically be inferred reflects that all of these events occurred before July 30, 1998. The jurisprudence has held that “[i]t is the knowledge of these facts, and not their legal consequences which commences the running of prescription under C.C.P. art.2004.” Succession of Albritton, 497 So.2d 10, 12 (La. App. 4th Cir.1986); A.S. v. M.C. and P.C., 96 0948, p. 10 (La.App. 1 Cir. 12/20/96), 685 So.2d 644, 649 (citing Albritton, supra). Prescription commenced when Plaintiffs had knowledge of the facts that form the basis of their nullity action, which was no later than July 30, 1998. Thus, the one-year period provided by La. C.C.P. art. 2004 was expired when Plaintiffs filed their nullity suit.

|7Assuming Plaintiffs state an additional cause of action for damages, we find their damage claim likewise is untimely. The applicable prescriptive period for the damage claim is one year. La. C.C. art. 3492. As the Delta Defendants point out, Plaintiffs failed to provide a date (or dates) that the alleged deceit or misrepresentations took place. We find, as the Delta Defendants suggest, that the date that should be used is the same date as for the nullity action, July 30, 1998, the date the Delta Defendants denied the Request for Admission. We thus find the damage claim is untimely.

DECREE

For the forgoing reasons, the judgment of the trial court is amended to delete the reference to Paul Maxwell, and, as amended, is affirmed.

AFFIRMED AS AMENDED.

      . In this appeal, as in Haney III, the trial court judgment states that Plaintiffs’ claims against Paul Maxwell, one of the other defendants in this nullity action and the underlying suit, are dismissed. See Haney III, 04-0856 at p. 1, 904 So.2d at 53 n. 1. However, the record does not show that Paul Maxwell joined in the exceptions of prescription and no cause of action. He was not represented at the trial court hearing on these exceptions, nor is he represented in this appeal. The trial court's inclusion of Paul Maxwell in the judgment apparently was an inadvertent error, which we amend the judgment to correct.

      . Plaintiffs also named as defendants the attorneys who represented the Delta Defendants in the underlying suit: Leonard A. Davis, Russ M. Herman, and Herman, Herman, Katz & Cotlar, LLP. (the "Herman Defendants”). The Herman Defendants' motion for summary judgment was granted by the trial court, and this court affirmed that decision. Haney IV. The Herman Defendants are thus not before us.


author: GREMILLION, Judge.

text:
    Virgie Mae Bertrand TRAHAN, Individually and as Administratrix of The Succession of Olivia Bellard Bertrand. v. Alfred Louis BERTRAND, Sr.
    No. 06-1274.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 21, 2007.
    James B. Doyle, Michael E. Roach, Lake Charles, LA, for Plaintiff/Respondent, Virgie Mae Bertrand Trahan, Succession of Olivia Bellard Bertrand.
    Tim Cassidy, Cassidy & Gunnell, Jennings, LA, for Defendant/Applicant, Alfred Louis Bertrand, Sr.
    Court composed of GLENN B. GREMILLION, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GREMILLION, Judge.

For the reasons discussed in Trahan v. Bertrand, 06-1271 (La.App. 3 Cir. 2/21/07, 952 So.2d 809, 2007 WL 518777, the writ application seeking supervisory review of the trial court’s judgment granting in part and denying in part Alfred Louis Bertrand, Sr.’s peremptory exception of no right of action and denying a peremptory exception of prescription is denied.

WRIT DENIED.


text:
    Virgie Mae Bertrand TRAHAN, Individually and as Administratrix of the Succession of Olivia Bellard Bertrand v. Alfred Louis BERTRAND, Sr.
    No. 06-1271.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 21, 2007.

      James B. Doyle, Michael E. Roach, Lake Charles, LA, for Plaintiff/Respondent, Virgie Mae Bertrand Trahan, Succession of Olivia Bellard Bertrand.
    Tim Cassidy, Cassidy & Gunnell, Jennings, LA, for Defendant/Applieant, Alfred Louis Bertrand, Sr.
    Court composed of GLENN B. GREMILLION, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GREMILLION, Judge.

liThe plaintiff, Virgie Mae Bertrand Tra-han, and the defendant, Alfred Louis Bertrand, Sr., both seek supervisory writs on the trial court’s judgment granting in part and denying in part a peremptory exception of no right of action in favor of Alfred and the denial of his peremptory exception of prescription. For the foregoing reasons, we deny the writs.

FACTS

Ira Bertrand and Olivia Bellard Bertrand were the parents of Virgie and Alfred. On September 24, 1992 and September 30, 1992, Ira and Olivia executed inter vivos donations of immovable property in favor of Alfred. Ira passed away on October 25, 1992. Olivia passed away on September 2, 2000, after which Virgie was appointed administratrix of her estate. On July 11, 2005, Virgie filed a Petition to Declare Donations Null and Void seeking to have the 1992 donations to Alfred declared null and void as donations omnium bonorum, pursuant to La.Civ.Code art. 1489. She filed the petition individually as an heir and as administratrix of her mother’s estate. In her petition, she alleged that the two donations divested her parents of all of their real estate and its accompanying income leaving them in necessitous circumstances. Thus, she alleged that the property or its value should be returned to her parents’ estates and that Alfred was indebted to the estates for all proceeds generated from the property.

In response to the petition, Alfred filed an answer and peremptory exceptions of no right of action and prescription. Following a hearing on the exceptions, the trial court rendered judgment sustaining the exception of no right of action as to Virgie’s standing to file the petition in her capacity as administratrix of her mother’s estate and in her individual capacity as a forced heir to her mother. However, it denied the exception as to her capacity as a forced heir of her father. [ 2Finally, it denied the exception of prescription finding that a cause of action based on a donation omnium bonorum was impre-scriptible. Virgie and Alfred both sought supervisory writs from this judgment.

ISSUES

In his writ application, Alfred questions whether Virgie has a right of action to challenge the donations made to him by his father, pursuant to La.Civ.Code art. 1498, and whether her claim has prescribed pursuant to the civil code articles pertaining to reduction of an excessive donation. Virgie, on the other hand, questions whether she has the right, as an heir of her mother, to seek the nullity of a donation omnium bonorum following the abolition of forced heirship pursuant to La.Civ.Code' art. 1493. She further asks whether she has a right to seek the nullity of the donations in her capacity as administratrix of her mother’s estate, and to sue for the loss of income to the estate occurring during the lifetime of the donor.

DONATION OMNIUM BONORUM

The cause of action known as a donation omnium bonorum is found in Article 1498 of the Louisiana Civil Code, which provides:

The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence. If he does not do so, a donation of a movable is null for the whole, and a donation of an immovable is null for the whole unless the donee has alienated the immovable by onerous title, in which case the donation of such immovable shall not be declared null on the ground that the donor did not reserve to himself enough for his subsistence, but the donee is bound to return the value that the immovable had at the time that the donee received it. If the donee has created a real right by onerous title in the immovable given to him, or such right has been created by operation of law since the donee received the immovable, the donation is null for the whole and the donor may claim the immovable in the hands of the donee, but the property remains subject to the real right that has been created. In such a case, the donee and his successors by gratuitous title are ^accountable for the resulting diminution of the value of the property.

Although there is not an abundance of jurisprudence, the following findings are evident from our review of the law pertaining to donations omnium bonorum. First, the right to attack such a donation may only be brought by the donor, during his/ her lifetime, or by their forced heirs. Maxwell v. Maxwell, 180 La. 35, 156 So. 166 (La.1934); Haynes v. Haynes, 02-535 (La.App. 1 Cir. 5/9/03), 848 So.2d 35; Owen v. Owen, 325 So.2d 283 (La.App. 2 Cir.1975), reversed on other grounds, 336 So.2d 782 (La.1976); Succession of Moran v. Moran, 25 So.2d 302 (La.App. 1 Cir.1946).

Second, a donation omnium bono-rum is absolutely null and, as such, is imprescriptible. Broussard v. Doucet, 236 La. 217, 107 So.2d 448 (La.1958); Abshire v. Levine, 546 So.2d 642 (La.App. 3 Cir.1989); Owen, 325 So.2d 283; Givens v. Givens, 273 So.2d 863 (La.App. 2 Cir.), writ denied, 275 So.2d 868 (1973). Louisiana Civil Code Article 7 provides, “Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity.” It is well settled that the public policy behind this statute is to prevent a donor from divesting him/herself of all of their property such that they become a ward of the state.

Based on the foregoing, we find that the trial court correctly granted the peremptory exception of no right of action with regard to Virgie’s standing to bring this suit in her capacity as the administra-trix of Olivia’s estate. Further, based on the forced heirship laws in effect at the time of Olivia’s death, the trial court correctly held that Virgie had no standing to bring this action as a forced heir of Olivia, but did |4have standing as a forced heir of Ira. The forced heirship laws, as amended in 1996, provided that only a child, twenty-three years old or younger at the time of his/her parent’s death, qualified as a forced heir. The record suggests that Virgie was in her sixties in 1992; thus, she would have been well past the age limit for forced heirship when Olivia died in 2000.

Alfred argues that Virgie’s claim in her capacity as a forced heir of Ira is prescribed as her claim is simply an action to reduce an excessive donation impinging on her legitime. He cites La.Civ.Code arts. 1503 and 1504. Louisiana Civil Code Article 1503 states, “A donation, inter vi-vos or mortis causa, that impinges upon the legitime of a forced heir is not null but merely reducible to the extent necessary to eliminate the impingement.” Louisiana Civil Code Article 1504 provides:

An action to reduce excessive donations may be brought only after the death of the donor, and then only by a forced heir, the heirs or legatees of a forced heir, or an assignee of any of them who has an express conventional assignment, made after the death of the decedent, of the right to bring the action.

He further cites La.Civ.Code art. 3497, which allows an heir five years in which to bring an action to reduce an excessive donation.

Alfred cites several cases and the Louisiana Civil Law Treatise in support of his argument. The treatise states that “[florced heirs have been permitted to challenge such donations after the donor’s death, yet only to the extent of their legi-times.” Frederick William Swaim, Jr., and Kathryn Venturatos Lorio, 10 Louisiana Civil Law Treatise, Succession and Donations, § 11.11, p. 290 (1995) (citing Succession of Turgeau, 130 La. 650, 58 So. 497 (1912)). The authors then Imposed the following question:

An interesting question remains as to the time forced heirs have to challenge such a donation. Is it five years as with any reduction, or is the action not sub-jeet to prescription because a donation omnium bonorum is absolutely null? If the action is to be treated as a reduction, limiting the forced heirs to their legi-time, then perhaps the prescriptive period for reduction should control.

Id.

We disagree that the five-year liberative prescriptive period applies in this instance. Virgie’s cause of action is based on alleged prohibited donations omnium bonorum, in which Olivia and Ira divested themselves of so much of their property that they could no longer support themselves. We agree with the trial court that once a donation is an absolutely nullity, it cannot somehow become legitimate again. As stated in Pardon v. Moore, 39,949, pp. 1011 (La.App. 2 Cir. 8/17/05), 908 So.2d 1253, 1259 (citing Gram Realty Co. v. Northern Homes, Inc., 308 So.2d 502 (La.App. 1 Cir.1975)), “The prescription of five years cannot cure a defect in a tax sale which is absolutely null and void as no peremptive or prescriptive period can breathe life into something that never existed.” If the donations by Ira and Olivia are found to be donations omnium bonorum, then they are prohibitive donations which are absolutely null and void and considered as never having existed. Thus, we find no merit in Alfred’s argument that just because the action is brought by Virgie, the donations are revived so that Article 3497 prevents her from pursing her cause of action. Rather, we agree with the second circuit that Article 3497 does not act in such a way that the five-year prescriptive period found therein cures the defective donations and then acts to deprive her of her cause of action. Accordingly, we find that the trial court correctly held that Virgie’s right to bring this suit, in her capacity as a forced heir of Ira, is imprescriptible.

| .CONCLUSION

For the foregoing reasons, the writ filed by Alfred Louis Bertrand, Sr., on the peremptory exceptions of no right of action and prescription is denied. We further deny the writ filed by Virgie Mae Bertrand Trahan. The costs of these writs are assessed equally to the parties.

WRIT DENIED.


author: EZELL, Judge. AMY, J.,

text:
    Ernest BROUSSARD, Individually and on Behalf of Grace Broussard, and Keith Broussard, Individually v. MEDICAL PROTECTIVE COMPANY and Dr. John Burton.
    No. 06-331.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 21, 2007.

      John E. Bergstedt, The Bergstedt Law Firm, Lake Charles, LA, for Defen-danVAppellee, Truck Insurance Exchange Company Dr. John Burton.
    Todd A. Townsley, Townsley Law Firm, Lake Charles, LA, Edmund M. Thomas, Shreveport, LA, for Plaintiff/Appellant Ernest Broussard.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS; MARC T. AMY, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   EZELL, Judge.

Lin this matter, the family of Grace Broussard appeals the decision of the trial court that Dr. John Burton met his required standard of care in treating her. They assert that the heart-related etiology for her presented symptoms should have been more fully investigated before her discharge from the emergency room. The jury hearing the case, after struggling to understand the required standard of care, found in favor of Dr. Burton. We find the jury’s findings to be manifestly erroneous and accordingly, reverse and render judgment.

Grace Broussard presented to the emergency room of Christus St. Patrick Hospital around 2:00 a.m. on November 25, 2001, complaining chiefly of chest pain. She was sixty years old, a smoker, had previously undergone a hysterectomy, and had a dramatic family history of heart disease, with several of her family dying extremely young. Accompanying her complaint of chest pains were complaints of nausea, vomiting, and diarrhea. She described her chest pain as “burning.” Dr. Burton examined Mrs. Broussard and ordered an EKG, lab tests, and chest x-rays.

The EKG results noted: “Normal sinus rhythmf;] T wave abnormality, consider lateral ischemia[;] Abnormal ECG.” Dr. Burton confirmed that the EKG readings could be consistent with cardiac ischemia. Dr. Burton noted a differential diagnosis of “gastroenteritis, angina, CW pain.” Based on the complaints of nausea, vomiting, and diarrhea, and the outcome of the blood tests, Dr. Burton diagnosed Mrs. Broussard as having gastroenteritis and prescribed a GI cocktail for her symptoms. This eased her nausea, but her chest pain did not subside. Dr. Burton eventually gave her a shot 12of morphine for her pain. He recommended she follow-up with a cardiologist the next week. Mrs. Broussard was never given any aspirin or nitroglycerine for her chest pain. Mrs. Broussard was discharged from St. Patrick Hospital at 5:46 that morning.

Mrs. Broussard returned home with her husband, Ernest, who assisted in putting her to bed. When he attempted to wake her just before noon, he was unable to do so. Mrs. Broussard’s death certificate lists the time of death as 7:00 a.m., just over an hour after she left the hospital.

Mr. Broussard filed this suit along with his son, Keith. Dr. Burton and his medical malpractice insurer were named as defendants. The Broussards allege that Dr. Burton failed to adequately rule out what they claim to be a deadly cardiac problem which led to Mrs. Broussard’s death.

After twice seeking clarification as to the standard of care, the jury found in favor of Dr. Burton, stating that the Broussards failed to prove by a preponderance of the evidence that Dr. Burton deviated from the standard of care for an emergency room physician. From this decision, the Broussards appeal, asserting three assignments of error. They claim that the jury erred in failing to find that Dr. Burton breached the standard of care in the treatment rendered, that the jury erred in not finding that Dr. Burton’s negligence contributed to Mrs. Broussard’s death, and that the jury erred in failing to award damages as a result of the alleged malpractice. Because the first two assignments of error concern whether Dr. Burton was liable for medical malpractice, we will address them together.

LIABILITY

Louisiana Revised Statute 9:2794 sets forth the burden of proof applicable to medical malpractice claims, providing, in part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:
13(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

On appeal, a jury’s determination is considered under the manifest error standard of review. Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272 (La.1991). We find the decision of the jury that Dr. Burton did not fail to meet his standard of care to be manifestly erroneous, unsupported by the record, and a result of jury confusion.

The jury instructions for the trial included a paragraph which read:

BASED ON THE BASIC RULES OF MEDICINE, DR. BURTON MUST RULE OUT ALL LIFE THREATENING ILLNESSES THAT A PATIENT’S SYMPTOMS COULD HAVE INDICATED. PHYSICIANS ARE OBLIGATED TO RULE OUT THESE IMMINENT, SERIOUS AND LIFE THREATENING CAUSES FIRST. FAILURE TO ELIMINATE THESE CAUSES CAN SUBJECT A PATIENT TO A FORSEEABLE RISK OF HARM AND WOULD FURTHER CONSTITUTE A BREACH OF THE APPLICABLE STANDARD OF CARE.

We find this to be the correct, applicable standard of care, as was indicated by all experts in this case, including Dr. Burton. While Mrs. Broussard presented with symptoms that could be diagnosed as indicative of problems other than cardiac in nature, the simple fact of this case is that she presented with an abnormal EKG that indicated possible cardiac ischemia. This fact was known by Dr. Burton, and it was 14his duty to rule out this possible life-threatening condition before discharging her.

Dr. Larry Parker, an expert for the defense, testified that he saw the abnormal T Wave in the EKG done on Mrs. Burton. He testified that this should lead one to consider lateral ischemia. Furthermore, he stated that a positive test such as this has a 75% sensitivity, meaning a positive test is indicative of cardiac ischemia 75% of the time. He testified that differentiating between patients with benign conditions and those with life threatening ones is the most important responsibility in the emergency room. He stated that nausea and vomiting can be associated with cardiac ischemia and that while GI problems are unlikely to kill a patient, cardiac ischemia could kill within 24 hours.

Dr. Steven Hedlesky, another expert for the defense, also testified that nausea and vomiting can be consistent with cardiac ischemia. Mrs. Broussard described her chest pain by clenching her closed fist to her chest. Dr. Hedlesky noted that this is called a “Levine sign,” and is an indication of tightness in the chest that can be associated with cardiac ischemia. He stated that an ST-depression, like the one presented by Mrs. Broussard’s EKG, was a significant abnormality and should be “yielded more weight” when seen without an older EKG to compare it to. Moreover, when presented with a hypothetical patient who had the same family history, complaints of chest pain, and EKG readings as Mrs. Broussard, he stated that the treating emergency room physician should give nitrates and aspirin.

Dr. Burton himself admitted that he had no prior EKG to compare to Mrs. Brous-sard’s EKG from that morning, and that because of this, he had to consider the fact that the cardiac ischemia could be acute. Dr. Burton also admitted that EKGs indicating cardiac ischemia require a repeat EKG. He did not perform this second, admittedly required test. He agreed that medical textbooks state that indications of cardiac ischemia require treatment with nitroglycerine, aspirin, oxygen, and eventually |5morphine if pain does not subsist. He did not take any such action until Mrs. Broussard was administered morphine a mere fifteen minutes before her discharge. She was never given nitroglycerine or aspirin. He stated there was no reason not to give nitroglycerine to Mrs. Broussard, and that if she had responded well to it, he would have admitted her to the hospital. He further testified that had she been admitted to the hospital, she would have had a ninety percent chance of surviving her cardiac ischemia.

While he stated that the results of the blood work and chest x-rays led him to believe Mrs. Broussard was suffering from gastroenteritis, Dr. Burton testified that these tests did not rule out cardiac ische-mia. In fact, Dr. Burton testified himself that Mrs. Broussard was discharged from the hospital without cardiac ischemia, a potentially life-threatening condition, being ruled out. This is the most damning testimony. Dr. Burton clearly admits that he breached the standard of care in failing to rule out a potentially life threatening condition prior to the discharge of Mrs. Broussard. Accordingly, we find that the jury, clearly confused by the instructions, committed manifest error in failing to find that Dr. Burton failed to meet the standard of care. We further find that this breach contributed to Mrs. Broussard’s demise, as she would have had a ninety percent chance of surviving her ischemia had she been admitted to the hospital, according to Dr. Burton. Therefore, we reverse the decision of the jury and render judgment in favor of the Broussards.

DAMAGES

Once it has been determined that the trier of fact is clearly wrong, the appellate court is empowered by LSA-C.C.P. Art. 216[4] to render any judgment which is just, legal and proper. Courts of appeal may award damages when the trial court initially rejects plaintiffs demands and where the record contains sufficient proof of damages. In making an initial award of damages at the appellate level, we are not limited to an award of either the lowest or highest amount we would affirm. Instead, we set the award in an amount which is just compensation for the damages revealed by record.

Gordon v. Willis Knighton Med. Ctr., 27,044 (La.App. 2 Cir. 6/21/95), 661 So.2d 991, 999, writs denied, 95-2776, 666 So.2d 679, 95-2783, (La.1/26/96), 666 So.2d 679.

Louisiana Civil Code Article 2315.1 grants to designated beneficiaries a cause of action to recover the damages that a person suffered and would have been entitled to recover from a tort-feasor, if the person had lived. The survival action permits recovery only for the damages suffered by the victim from the time of the injury to the moment of death. The elements of damage for the survival action are pain and suffering, loss of earnings, and other damages sustained by the victim up to the moment of death. Pierre v. Lallie Kemp Charity Hosp., 515 So.2d 614, 618 (La.App. 1 Cir.), writ denied, 515 So.2d 1111 (La.1987); La.Civ.Code art. 2315.1. Fright, fear, or mental anguish while an ordeal is in progress is also legally compensable. Dawson v. James H. Stuart and Deaton, Inc., 437 So.2d 974 (La.App. 4 Cir.1983).

The record establishes that Mrs. Broussard feared for her cardiac health due to her extreme family history of the disease. She was extremely stressed during her stay in the emergency room, vomiting and suffering from diarrhea. She agonized in this fear, suffering from chest pain for over three hours. The Broussards ask for $50,000 in their survival action for this pain and anguish, and we find that to be an appropriate award. See Gordon, 661 So.2d 991.

The Broussards also seek damages for the wrongful death of Mrs. Brous-sard. The elements of damage for wrongful death are loss of love and affection, loss of services, loss of support, medical expenses, and funeral expenses. Todd v. Sauls, 94-10 (La.App. 3 Cir. 12/21/94), 647 So.2d 1366, writs denied, 95-0206, 95-0219 (La.3/24/95), 651 So.2d 289. The record establishes medical expenses in the amount of $2,665.16 and funeral expenses in the amount of $10,956.94. These amounts are hereby awarded to the Brous-sards. Additionally, Mrs. Broussard was working full time as a clerk at a drug store at the time of her death. Dr. Charles Bettinger found the |7loss of support Mr. Broussard suffered as a result of her death to be $178,812. This amount is also awarded to Mr. Broussard.

Finally, the record establishes close, affectionate relationships between Mrs. Broussard and both her husband and son. Mr. and Mrs. Broussard were married for forty-one years and had a loving union. He became depressed and withdrawn after her death. She was equally active and important in Keith’s life, as well as those of his children and grandchildren. We hereby award Earnest Broussard $128,782.95 in wrongful death damages and Keith Broussard $128,782.95 in wrongful death damages.

The trial court also taxed the Broussards with the costs of the trial and expert witness fees in the amount of $500 each for the testimonies of Drs. Parker and Hedlesky. In accordance with our other findings in this case, we also reverse the award of these costs.

DECREE

In accordance with the above reasons, the judgment of the trial court is hereby reversed. Judgment is hereby rendered in favor of the Plaintiffs as follows: $128,782.95 in wrongful death damages for Ernest Broussard; $128,782.95 in wrongful death damages for Keith Broussard; $50,000 for the survival action; $178,812 in loss of support and services; $10,956.94 in funeral expenses; and $2,665.16 in medical expenses. All awards are made with legal interest thereon from the date of judicial demand until paid. Costs of the trial, expert witness fees, and of this appeal are assessed against Dr. John Burton and Truck Insurance Exchange Company.

REVERSED AND RENDERED.

AMY, J., dissents and assigns written reasons.

AMY, J.,

dissenting.

1 Without question this is a tragic case, all the more so as we view the events in hindsight. Having said this, it is crucial to remember that the jury charged with deciding this case first heard the facts before concluding that the plaintiffs failed to establish their case. Even if this court might have decided those facts differently, it may not substitute its own judgment for that of the trier of fact absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). After reviewing the record, I do not find manifest error in the jury’s determination. The trial judge found similarly in his denial of the plaintiffs’ motion for new trial.

Simply, the parties presented the jury with two competing views of the evidence. The plaintiffs presented Dr. Howard Snyder and Dr. Christopher Martinez, both accepted as experts in the field of emergency medicine. Both testified that Dr. Burton breached the applicable standard of care in that a patient presenting with chest pain of the nature described and with an abnormal EKG, should be administered oxygen and certain medications, including nitroglycerin and beta-blockers. Dr. Snyder further stated that “the only way to exclude or rule out, ..., a heart attack or cardiac ischemia with certainty is to admit the patient to the hospital, do a series of tests over 24 hours relatively speaking....”

In opposition, Dr. Burton and his witnesses focused on whether Mrs. 12Broussard’s presentation indicated that an acute cardiac process or acute cardiac ischemia was underway. Dr. Burton testified that, while he found Mrs. Broussard’s EKG abnormal, he saw no indication of an acute process. Rather, he explained that some individuals “just have abnormal EKGs, that’s just the way that their electrical impulses show on their heart, and that’s just the way some people’s hearts are.” Dr. Burton explained that, rather than relying solely on the EKG, he eliminated an ongoing acute coronary syndrome from his diagnosis based on, among other things, Mrs. Broussard’s laboratory testing results and x-rays. He reviewed both of these for the jury and found neither revealed an acute cardiac process.

The jury also heard Dr. Burton review Mrs. Broussard’s history and his physical exam insofar as they factored into his determination not to further pursue the possibility of a heart-related etiology of her symptoms. He testified that chest pain is one of the most common complaints in the emergency department and that Mrs. Broussard reported that her pain was better upon sitting rather than lying. Dr. Burton explained that cardiac ischemia is not usually positional in nature, but that improvement upon sitting is consistent with a gastrointestinal etiology. Also, while vomiting and nausea are not specific to any one condition and can be consistent with a heart-related process, Dr. Burton explained that diarrhea is not so related and is more indicative of an intestinal problem. Dr. Burton denied that oxygen was required for Mrs. Broussard as her pulse oximetry reading was within normal limits. He also denied finding Mrs. Brous-sard’s breathing to be labored on examination. Finally, Dr. Burton testified that, upon physical examination, he recorded that Mrs. Broussard demonstrated “marked palpable tenderness” in the chest wall. He remarked that he underlined the term “marked” on his notes and that the area had been tender to the extreme as “just a light touch would elicit pain, and sitting up — I mean, she — it really created a lot of pain, a lot more than you would expect with just some little soreness |afrom little muscular things.” Dr. Burton distinguished this type of finding from “cardiac pain” which he noted was often difficult for patients to pinpoint. Given his findings, the laboratory testing results, and the x-rays, Dr. Burton determined that Mrs. Broussard was sufficiently stable for discharge. As noted on the discharge sheet, he felt that she should report to her cardiologist the following week.

The jury was also presented with the opinion of the Medical Review Panel wherein the panel unanimously concluded that Dr. Burton did not breach the applicable standard of care and made further findings favorable to Dr. Burton. The opinion provides, in part:

The evidence does not support the conclusion that the defendant, Dr. John M. Burton, failed to comply with the appropriate standard of care as charged in the complaint.
Responses to Specific Allegations:
1. Did Dr. Burton’s failure to administer nitrates both to relieve her pain and to enable detection of a cardiac etiology of Mrs. Broussard’s chest pain constitute a breach in the acceptable standard of care? No.
2. Did Dr. Burton’s failure to order telemetry monitoring of Mrs. Broussard constitute a. breach in the acceptable standard .of care? No.
3. Did Dr. Burton’s failure to consult a cardiologist when faced with an abnormal EKG and chest pain constitute a breach in the acceptable standard of care? No.
4. Did Dr. Burton’s failure to administer oxygen both to relieve her pain and to enable detection of a cardiac etiology of Mrs. Broussard’s chest pain constitute a breach in the acceptable standard of care? No.
5. Did Dr. Burton’s failure to treat Mrs. Broussard’s hypertension both as a precautionary matter and to enable a diagnosis of hypertensive angina constitute a breach in the acceptable standard of care? No.
6. Did Dr. Burton’s failure to admit Mrs. Broussard to a telemetry or intensive care unit for hour monitoring and follow up constitute a breach in the acceptable standard of care? No.
7. When faced with a patient with acute chest pain and cardiac | ⅛risk factors who denies abdominal pain; did the diagnosis of gastroenteritis constitute a breach in the acceptable standard of care? No.
8. Did Dr. Burton’s failure to order a repeat EKG and repeat cardiac enzymes prior to discharge of a patient with an abnormal EKG and chest pain that resolves only after the administration of Morphine constitute a breach in the acceptable standard of care? No.
This patient presented with symptoms that were consistent with a GI etiology, not a cardiac etiology. Dr. Burton prudently pursued a limited cardiac workup — adequate in our opinion — to satisfactorily exclude the'likelihood of acute cardiac illness. The EKG and cardiac enzymes results are not consistent with pain of cardiac etiology of eight to nine hours duration. Also, the presence of frequent diarrhea is not consistent with the cardiac etiology of her symptoms, and the air fluid levels of the x-ray are consistent with the GI etiology of her symptoms. Finally, the cause of the patient’s unfortunate demise was never determined.
Additionally, we do not feel it is appropriate to retrospectively analyze the findings in the ER, based upon the knowledge of the patient’s subsequent death.

Thus, the jury was presented with the concise findings of three experts who found unanimously that Dr. Burton responded appropriately given the presentation.

Moreover, the jury heard testimony at trial from two of the panel members, Dr. Larry Parker and Dr. Steven Hedelsky. Both physicians’ views were consistent with Dr. Burton’s assessment of Mrs. Broussard’s symptoms and test results. Dr. Parker, a board certified family practitioner who limits his practice to emergency medicine, confirmed that the evidence did not support the conclusion that Dr. Burton failed to meet the applicable standard of care. Dr. Parker testified that both the' EKG and the patient’s complaints of pain must be considered together. Like Dr. Burton, he explained that Mrs. Brous-sard’s description of her chest pain as “burning” in nature was consistent with a gastrointestinal problem as was the improvement of symptoms upon a positional change. Dr. Parker also referenced diarrhea as being “much more likely on the gastrointestinal stomach side.” Neither did he find that oxygen was required given the pulse oximetry reading. Summarizing other factors significant in |Bthe Medical Review Panel’s evaluation, Dr. Parker referenced the abdominal x-ray suggesting a stomach etiology, the elevated white blood cell count suggesting an infection, and profuse diarrhea, vomiting, and nausea. He stated that: “[a]ll of these things, when you put them together, tend to suggest strongly this is a lady who’s having a really bad stomach problem.”

Dr. Hedelsky, a physician board certified in emergency medicine, also confirmed his view of the accuracy of the Medical Review Panel Opinion. He again found Mrs. Broussard’s presentation more consistent with a gastrointestinal etiology and explained that, in his opinion, the EKG was normal for this patient. In response to questions regarding algorithms prescribing certain procedures based on a patient’s presentation, Dr. Hedelsky distinguished lateral cardiac ischemia, the consideration suggested by the EKG, from cardiac ischemic pain. The former, Dr. Hedelsky explained, is a pathology, whereas cardiac ischemic pain is a symptom. He observed that “[m]ost chest pain is not unstable angina or angina or ischemic pain” and further confirmed that one can have ischemic changes that are not is-chemic chest pain. Dr. Hedelsky explained that in assessing chest pain, the physician must speak with the patient in order to obtain the history and character of the pain, along with symptoms associated with it. He also stated that the physician must acquire the patient’s risk factors and determine whether there are indications “of other illness processes that would exclude — that would point you in a different direction and you have to take that whole clinical picture, and then along with that do whatever lab tests you think are appropriate with that clinical picture, and put those together.” Dr. Hedelsky referenced the importance of Dr. Burton having performed a.physical exam at the time he was making his diagnosis as opposed to consideration based only on the medical records.

Obviously, the jury was called upon to consider conflicting witness testimony | fiand opinion. In Lasyone v. Kansas City Southern Railroad, 00-2628, p. 11 (La.4/3/01), 786 So.2d 682, 692, the supreme court observed that “it is well accepted that the trier of fact is charged with the determination of what credibility it assigns to expert witnesses and then to decide which expert among those testifying that it finds more credible.” While the responsibility of credibility determinations rests with the trier of fact, an appellate court may find manifest error if documents or objective evidence “so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness’s story[.]” Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201, pp. 6-7 (La.10/19/99), 748 So.2d 417, 421. In the absence of such factors, however, “and [if] a fact-finder’s determination is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Id. (Emphasis added.)

In light of the above evidence, I find no manifest error in the jury’s determination of the standard of care issue in favor of Dr. Burton. The plaintiffs attempted to prove that the standard of care required Dr. Burton to consider Mrs. Broussard’s EKG as sufficiently suggestive of a cardiac-related etiology of her symptoms so as to require more extensive treatment. Notwithstanding its ability to reject this presentation outright, the jury was also presented with the defendant’s expert testimony indicating that, at most, Mrs. Broussard’s EKG suggested a non-emergent pathology which, when combined with the other circumstances of her presentation, led Dr. Burton to view her chest pain and symptoms in another light. Dr. Burton’s experts found this not to be a breach of the standard of care. Despite rigorous cross-examination, the defense experts’ testimony was not so contradicted, internally inconsistent, or implausible that it was unreasonable to accept.

For these reasons, I conclude that the jury’s determination was not manifestly |7erroneous. I respectfully dissent.

      . Mrs. Broussard’s father died of heart problems when he was 55. She also had five siblings, three sisters, and two brothers, die due to heart conditions between the ages of 36 and 42.

      . Ischemia is a blockage of the blood vessels or coronary arteries that supply blood to the heart. This blockage reduces blood flow to the heart, can result in chest pain, and untreated, can lead to arrhythmia or heart attack.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Dejoshua L. WILLIAMS.
    No. 06-KA-755.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 27, 2007.
    Rehearing Denied April 2, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Megan L. Gorman, Martin Belanger, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Joseph A. Marino, III, Attorney at Law, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J.
    ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡.Defendant, Dejoshua Williams, appeals his conviction for aggravated flight from an officer arising from a guilty plea made in accordance with State v. Crosby, 338 So.2d 584 (La.1976). For the following reasons, we reverse the trial court’s denial of defendant’s motion to quash. We grant the motion to quash, and vacate his guilty plea and sentence.

The Jefferson Parish District Attorney filed a bill of information charging defendant with aggravated flight from an officer, a violation of La. R.S. 14:108.1 C. Defendant pled not guilty to the charge at his arraignment. Defendant filed a “motion to quash on the basis of double jeopardy,” arguing he had already pled guilty in Second Parish Court to several traffic offenses that constituted statutory elements of the aggravated flight charge; and the State was thus barred from prosecuting him for aggravated flight. The trial court heard arguments on the |smotion to quash on September 1, 2006. The trial judge denied the motion, stating in part, “[A]g-gravated flight is a ‘separate and distinct— even though those other ones have to — are part of the proof of it; it is a separate and distinct offense.”

On the same day, defendant withdrew his plea of not guilty and entered a plea of guilty as charged, reserving his right to appeal the trial court’s denial of his motion to quash. The trial court sentenced defendant to two years at hard labor. The court suspended the sentence and placed defendant on active probation for two years.

The known facts in this case are contained in the police incident report admitted as a defense exhibit at the motion hearing. Deputy Susan McCartney of the Jefferson Parish Sheriffs Office wrote that on March 22, 2006, she and Deputy McGee were on patrol in a high crime area of Harvey when they saw defendant sitting in the driver’s seat of a parked car. An unknown man was standing next to the car, leaning into the driver’s window. The officers saw the men engage in what appeared to be a hand-to-hand narcotics transaction.

The deputies approached on foot, and McCartney asked defendant to step out of the vehicle. Defendant refused to comply, and put his car into reverse gear. McCartney drew her gun and again ordered defendant to exit the vehicle. By that time, deputies Hill and Matthews had arrived at the scene in a marked police unit. Defendant continued to operate the car in reverse, nearly hitting Deputy Hill’s vehicle. Deputy Hill turned on her car’s lights and siren. Defendant then drove the car away from the scene at a high rate of speed. Deputies Hill and Matthews pursued him. They eventually stopped defendant and placed him under arrest.

Deputy Thelma Hill wrote in the police report that during the chase, defendant traveled at a rate of speed in excess of sixty-five miles per hour. 14Pefendant disregarded several stop signs and caused other drivers to veer off the roads in order to avoid him.

Deputy McCartney wrote that Hill and Matthews removed defendant from the car. The deputies found a plastic bag containing marijuana in plain view on the car’s front floorboard. Defendant had $537.00 in cash on his person. Defendant’s son, who was less than two years old, was sitting unrestrained on the front passenger seat. The deputies issued defendant citations for speeding, reckless operation of a motor vehicle, failure to wear a safety belt, and failure to use a child restraint. Defendant also received five citations for failing to stop at a stop sign. On August 28, 2006, defendant pled guilty as charged in Second Parish Court to all of those citations.

Defendant assigns five errors on appeal. We find two of defendant’s claims have merit, pretermitting consideration of the remaining issues.

By his second and third assignments of error, defendant contends the trial court erred in denying his motion to quash because double jeopardy precluded his prosecution for aggravated flight from an officer when he had already pled guilty to reckless operation of a vehicle and speeding charges arising from the same series of events. The State responds that the trial judge properly denied the motion to quash because the offenses are separate and distinct, and defendant was not subject to double jeopardy.

Both the Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. The guarantee against double jeopardy includes constitutional protections against 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. State v. Smith, 95-61 (La.7/2/96), 676 So.2d 1068, 1069, citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

La.C.Cr.P. art. 596 provides:
Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

Louisiana courts employ both the Block-burger test and the “same evidence” test to evaluate double jeopardy claims. State v. Steele, 387 So.2d 1175 (La.1980). Defendant maintains he was subject to double jeopardy under both tests.

The Blockburger test is taken from the United States Supreme Court’s opinion in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), which provides:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

See also, State v. Knowles, 392 So.2d 651, 654 (La.1980).

In the instant case, defendant was charged with aggravated flight from an officer, which is defined in La. R.S. 14:108.1 in pertinent part as follows:

C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle.
|fiD. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle commits at least two of the following acts:
(1) Leaves the roadway or forces another vehicle to leave the roadway.
(2) Collides with another vehicle.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
(4) Travels against the flow of traffic.

The bill of information does not specify which two of the four types of conduct listed in paragraph D it planned to use to prove the aggravated flight. And because defendant pled guilty, there is no trial transcript from which we can garner those facts. But we can refer to the evidence produced at the hearing on the motion to quash. State v. Solomon, 379 So.2d 1078, 1079 (La.1980).

The police report entered in evidence at the motion hearing does not show any allegations that defendant either collided with another vehicle during the police chase, or that he traveled against the flow of traffic. The report does show allegations that defendant drove at an excessive rate of speed, and that he forced other drivers to leave the roadway. Therefore, we must conclude that the state could only have used the first and third acts listed in subpart D to prove the aggravated flight charge.

Defendant pled guilty in parish court to reckless operation of a vehicle, which is defined in La. R.S. 14:99 as “the operation of any motor vehicle, aircraft, vessel, or other means of conveyance in a criminally negligent or reckless manner.” Criminal negligence occurs in those instances in which neither specific nor general criminal intent is present, but there exists “such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below theJjjStandard of care expected to be maintained by a reasonably careful man under like circumstances.” La. R.S. 14:12.

Defendant also pled guilty to speeding under La. R.S. 32:64 A, which provides:

No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.

A comparison of the foregoing offenses reveals that aggravated flight from an officer requires proof of a visual and audible signal from an officer to stop, while reckless operation of a vehicle does not. Reckless operation requires proof that the accused operated a vehicle in a criminally negligent or reckless manner, while aggravated flight from an officer does not. The elements of reckless operation are not, as defendant argues, subsumed in the elements of aggravated flight from an officer. Under the Blockburger test, both of those offenses require an element of proof that the other does not.

But the offense of speeding does not require an additional element of proof to the elements required by the aggravated flight statute. Since the State, under the known facts in this case, would necessarily rely on speeding as an element of aggravated flight, and since defendant has already been convicted of speeding, the aggravated flight charge exposes him to double jeopardy under the Blockburger analysis.

We turn now to the “same evidence” test, which is somewhat broader in scope than the Blockburger test. See, State v. Murray, 00-1258 (La.9/18/01), 799 So.2d 453, 455. The Louisiana Supreme Court outlined the “same evidence” test in State v. Steele, 387 at 1177:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial, (citations omitted).

The “same evidence” test precludes the state from “relabeling the offense to charge defendant a second time with the same criminal conduct.” Steele, 387 So.2d at 1178.

In applying the “same evidence” test to this case, the pertinent question is whether the evidence needed to prove the instant offense, aggravated flight from an officer, is the same as the evidence needed to prove offenses to which defendant has already pled guilty (reckless driving and speeding). Defendant argues he was subject to double jeopardy under the “same evidence” test because the same evidence required to prove aggravated escape would support convictions for reckless operation and speeding, assuming again that the State would rely solely on the elements in La. R.S. 14:108.1 D(l) (leaving the road or forcing another vehicle to leave the road) and (3) (exceeding the posted speed limit by at least 25 miles per hour) to support the aggravated flight charge.

We find the evidence necessary to prove reckless operation of a vehicle is not the same evidence needed to prove aggravated flight. We recognize that the State could have used incidents during the police chase other than defendant’s forcing other vehicles to leave the roadway to prove reckless operation. Therefore, we do not find there was double jeopardy under the “same evidence” test with regard to defendant’s reckless operation conviction. We do find that defendant was subject to double jeopardy based on his prior conviction for speeding. The | {¡evidence needed to prove the speeding element in La. R.S. 14:108 D(3) is the same evidence needed to prove the speeding offense of which defendant has already been convicted.

We liken the instant case to cases in which Louisiana courts have found it is a double jeopardy violation to charge a defendant with first-degree felony murder as well as the underlying felony used to support the murder charge. See, e.g., State ex rel. Williams v. Butler, 05-0427 (La.1/27/06), 922 So.2d 526; and State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990). Defendant in this case was charged with aggravated flight, a charge for which the act of speeding was a supporting offense, when he had already been convicted of speeding based on the same incident.

We conclude that the prosecution for aggravated flight constitutes double jeopardy. We find that defendant was subject to double jeopardy under both the Block-burger and “same evidence” tests, and the trial court erred in denying the motion to quash. Accordingly, we grant defendant’s motion to quash, vacated the guilty plea and sentence.

REVERSED; MOTION TO QUASH GRANTED; GUILTY PLEA AND SENTENCE VACATED.

      . While Louisiana Supreme Court recognizes both tests, it seems to have principally relied on the "same evidence” test in evaluating double jeopardy claims. See State v. Cotton, 00-0850 (La. 1/29/01), 778 So.2d 569, 573; State v. Miller, 571 So.2d 603, 606 (La.1990).