author: CARAWAY, J.

text:
    SUCCESSION OF James B. GREER, et al, Plaintiffs-Appellants, v. Darryl L. MILLS, et al, Defendants-Appellees.
    No. 41571-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.
    Rehearing Denied Dec. 7, 2006.

      Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Jonesboro, for Appellants.
    Hudson, Potts & Bernstein, L.L.P., by Jan P. Christiansen, Monroe, for Appellee, American Century Casualty Co.
    Arbour & Aycock, by Larry Arbour, for Darryl L. Mills and Allstate Insurance Company.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   CARAWAY, J.

Lin this wrongful death action filed by the estate of an individual killed while riding as a passenger in a vehicle, the trial court granted summary judgment in favor of the decedent’s under/uninsured motorist insurer after finding that the insured had rejected UM coverage. Although the Louisiana Commissioner of Insurance form for the waiver of such coverage was utilized, the estate claims the options listed on that form were incorrectly marked at the time of the decedent’s execution of the form. Finding no error in the trial court’s ruling, we affirm.

Facts

On November 27, 2004, James Greer was a guest passenger in the vehicle driven by Darryl Mills. Mills failed to negotiate a turn on a highway near Ruston, Louisiana, and exited the roadway striking a tree. Greer was killed in the accident and his estate (the “Succession”) instituted suit against Mills and his automobile liability insurer and Greer’s UM carrier, American Century Casualty Company, (“American”).

The Succession’s claim against American is for uninsured motorist bodily injury coverage (hereinafter “UMBI Coverage”). American’s policy provided the statutory minimum for liability coverage of 10/20/10. See, La. R.S. 32:900. Greer purportedly executed a waiver of UMBI Coverage on the written form promulgated by the Louisiana Commissioner of Insurance (hereinafter the “LCI form”). La. Bulletin LIRC 98-01; see, Hobson v. King, 35,743 (La.App.2d Cir.2/27/02), 812 So.2d 776, writ denied, 02-10828, (La.5/24/02), 816 So.2d 851. American moved for summary judgment on the grounds that Greer had rejected UM coverage.

The LCI form which Greer executed includes the following five options and were marked as follows:

1. N/A I select UMBI Coverage which will compensate me for my economic an

non-economic losses with the same limits as my Bodily Injury Liability Coverage. Economic losses are those which can be measured in specific monetary terms including, but not limited to, medical costs, funeral expenses, lost wages, and out of pocket expenses.

2. N/A I select UMBI Coverage which will compensate me for my economic and

non-economic losses with limits lower than my Bodily Injury Liability Coverage limits:

$ N/A each person $ N/A each accident

3. N/A I select Economic-Only UMBI Coverage which will compensate me only for my

economic losses with the same limits as my Bodily Injury Liability Coverage limits.

4. N/A I select Economic-Only UMBI Coverage which will compensate me only for my

economic losses with limits lower than my Bodily Injury Liability Coverage limits:

$ N/A each person $ N/A each accident

5.s/JBG I do not want UMBI Coverage. I understand that I will not be compensated

through UMBI coverage for losses arising from an accident caused by an uninsured/under insured motorist.

The “JBG” in option 5 are the initials of Greer, and he also signed his name at the bottom of the LCI form. One of the two sentences on the LCI form above the signature line states: “[t]he choice I made by my initials on this form will apply to all persons insured under my policy.” In this contest over the effectiveness of Greer’s execution of the LCI form, neither party | spresented evidence revealing whether the “N/A” for selection number 1 was inserted on the form before its presentation to Greer.

The trial court granted American’s motion for summary judgment finding a waiver of UMBI Coverage. This appeal by the Succession ensued.

Discussion

Initially, we note that three of the five selection options under the LCI form in this case were not available to Greer. Selections numbered 4 and 5 concerned economic-only UMBI Coverage which American could choose not to issue. The LCI form expressly states that those options may be marked “Not Available.” This directive was not specifically followed by American which inserted only the initials “N/A” on Greer’s form. Nevertheless, whether viewed as an abbreviation for the requisite, “Not Available,” or for the more familiar, “Not Applicable,” the exclusion of those two options to Greer was allowable and clear. Likewise, since Greer’s policy limitations of liability coverage were the statutory minimum (10 — 20— 10), selection number 2 on the LCI form which allowed for lower limits was also allowed to be excluded by the “N/A” abbreviation placed on Greer’s form. The issue presented, however, is whether the marking of selection number 1 (hereinafter “Option 1”) with the “N/A” abbreviation makes invalid Greer’s purported rejection of UMBI Coverage under selection number 5.

Louisiana law requires UM coverage in every automobile liability insurance policy for an amount not less than the limits of bodily injury liability provided by the policy. La. R.S. 22:680. This minimum amount is ^automatically included in the policy unless the insured rejects the coverage or selects lower limits. La. R.S. 22:680(l)(a)(i); Hobson v. King, supra; Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1st Cir.09/27/96), 680 So.2d 1358, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375.

La. R.S. 22:680(l)(a)(ii) provides that “rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance,” and the “prescribed form shall be provided by the insurer and signed by the named insured or his legal representative.”

A valid rejection must be in writing and signed by the named insured or his legal representative. The insurer must place the insured in a position to make an informed rejection of UM coverage. The form used by the insurance company must give the applicant the opportunity to make a meaningful selection from his options provided by statute. Tugwell v. State Farm, Ins. Co., 609 So.2d 195 (La.1992); Duong v. Salas, 38,613 (La.App.2d Cir.6/23/04) 877 So.2d 269, writ denied, 04-1840 (La.10/29/04), 885 So.2d 590. The insured may either select UM coverage in an amount equal to the bodily injury limits of the policy, may select lower limits, may select economic-only coverage, or may reject UM coverage. La. R.S. 22:680. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. La. R.S. 22:680(1)(a)(ii). This statute embodies strong public policy and is to be liberally construed in favor of coverage, such that statutory exceptions to the UM coverage requirements are | ¡¡interpreted strictly. Duong, supra. Where the validity of a rejection of uninsured motorist coverage is at issue, the insurer bears the burden of proving that the insured rejected such coverage in writing or selected lower limits. Tugwell, supra; McFarland v. Southern Farm Bureau Cas. Ins. Co., 39,612 (La.App.2d Cir.5/11/05), 902 So.2d 1207, writ denied, 05-1564 (La.1/9/06), 918 So.2d 1045; Dixon v. Gene Moody Trucking, Inc., 36,420 (La.App.2d Cir. 10/23/02), 830 So.2d 392. Once the insurer has shown that a rejection form is valid, the burden shifts to the insured to prove otherwise. Duong, supra; Dixon, supra.

Louisiana courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Pursuant to a 1996 amendment to the summary judgment article, the summary judgment procedure is now favored under our law. La. C.C.P. art. 966(A)(2); Costello, supra.

In this case, American utilized the LCI form. That form provides first an explanation of UMBI- Coverage. It then states that “[b]y law, your policy |fiwill include UMBI Coverage at the same limits as your Bodily Injury Liability Coverage unless you request otherwise.” That statement is entirely in keeping with the effect of our law. See, La. R.S. 22:680(1)(a)(i); Daigle v. Authement, 96-1662 (La.4/8/97), 691 So.2d 1213. Nevertheless, the form then goes on to provide as selection number 1 an option for election of UMBI Coverage on the form itself. This Option 1 is technically superfluous in light of the prior explanation of the law’s automatic provision for UMBI Coverage as expressly stated on the form. Furthermore, Option 1 is not within the legislative directive to the Commissioner of Insurance under La. R.S. 22:680(l)(a)(ii) which requires a form only for the “rejection, selection of lower limits or selection of economic-only coverage.” Yet, from an overall reading of the LCI form, the inclusion of Option 1 does not lead to confusion or detract from the substance of the entire act. Option 1 is clearly in contrast to selection number 5 which is the specific option to waive UMBI Coverage.

In Daigle, supra, the insurance company’s form first advised the insured of the statutory coverage automatically afforded the insured. The form then gave the insured one response to the selection which read: “I HAVE BEEN OFFERED and hereby REJECT Uninsured Motorists Bodily Injury coverage.” Since the policy was for the minimum limits, the insured had no option for UMBI coverage at lower limits. Addressing and rejecting the insured’s argument of the form’s deficiency, the supreme court ruled:

The insured does not claim that she did not understand the form when she signed it or that she was misled in any way. She only claims that the form is defective on its face. She argues that the title makes the form ambiguous because it is labeled |/‘Uninsured Motorist Coverage-Coverage Selection,” when it is actually only used for rejection of coverage. We do not agree. If the insurance applicant fails to sign the form, the applicant is selecting the option of retaining the benefits of UM coverage mandated by law. The form provides a means of selecting between options, because by not signing the form, the applicant is choosing to keep that which the law stipulates for his or her benefit.

Id. at 1215-1216.

From our review of Daigle, we find that even with the “N/A” inserted for Option 1, Greer’s execution clearly reflects his waiver of UMBI Coverage. By initialing the number 5 selection and signing the form, Greer made a waiver of the UMBI Coverage with knowledge that the law would otherwise provide that coverage if he elected not to sign the form. The form expressly states, and he therefore acknowledged, that he was given and made a “choice” by initialing selection number 5. Therefore, Greer utilized the requisite LCI form, and in light of Daigle, his execution thereof reflects a valid waiver of UMBI Coverage.

For these foregoing reasons, the judgment of the trial court is affirmed at the Succession of Greer’s costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, CARAWAY and SEXTON, JJ.

Rehearing denied.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Cedric V. HUBBARD, Plaintiff-2nd Appellant, v. ALLIED BUILDING STORES, INC., Defendant-1st Appellant.
    No. 41,534-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Cook, Yancey, King & Galloway by S. Price Barker, Shreveport, for Defendant-lst Appellant.
    Hallack Law Firm by Dennis W. Hal-lack, West Monroe, for Plaintiff-2nd Appellant.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

L Claimant, Cedric Vashon Hubbard, worked primarily in a janitorial position for Allied Building Stores, Inc. (“ABS”) from February 25, 2004, to July 26, 2004. Hubbard alleges that on June 29, 2004, he slipped and fell in an oil spill during the course and scope of employment, resulting in a herniated disk in his back. ABS argued from the outset that Hubbard either faked or staged the accident; alternatively, the employer contended that he greatly exaggerated his injury.

Hubbard filed a claim seeking workers’ compensation benefits on October 12, 2004. The trial of this matter was conducted before a Workers’ Compensation Judge (“WCJ”) in May and August of 2005. The WCJ concluded that the accident could have happened in the manner described by Hubbard and rejected ABS’s argument that Hubbard faked or staged the accident. Further, the WCJ denied Hubbard’s request for indemnity benefits, penalties, and attorney’s fees, but found that he was entitled to receive medical treatment for his injuries. Finally, the WCJ denied ABS’s reconventional demand requesting reimbursement based on Hubbard’s alleged fraudulent misrepresentations. Both ABS and Hubbard have appealed from this judgment. For the reasons set forth below, we affirm.

Facts

Hubbard was initially employed by ABS as a janitor at a warehouse in Monroe, Louisiana. Hubbard briefly moved to a position in the receiving department in the warehouse; however, after problems arose with respect to his performance, Hubbard moved back to his former janitorial position, a move ABS contends was a demotion.

|2The accident at issue occurred on the morning of June 29, 2004, eight days after Hubbard’s demotion. Hubbard claims to have slipped and fallen in an oil spill in the “Door Shop” area of the warehouse. Hubbard testified that he walked with a trash can and dolly, looking for trash to pick up, past a forklift parked near several shipping pallets. He walked the entire length of the area before turning around to follow the same route in the opposite direction. On his return, Hubbard spotted near the forklift a small pile of sawdust that needed to be swept up and removed. Hubbard claims that as he approached the sawdust, he slipped in an oil spill he did not see, injuring his back.

On the other hand, ABS alleges that Hubbard took a jug of pneumatic oil from the Door Shop, poured the oil on the floor of the warehouse near the forklift, covered the oil partially with shipping pallets, and lay down in the oil, knocking over the trash can and dolly so as to attract attention to himself. In the alternative, ABS argued that Hubbard greatly exaggerated the injuries to his back so as to collect workers’ compensation.

Hubbard filed a claim seeking workers’ compensation benefits on October 12, 2004. The trial of this matter was conducted before the WCJ on May 19, 2005, August 22, 2005, and August 23, 2005. The WCJ also personally inspected the scene of the accident.

The issues considered at trial included: (1) whether Hubbard was involved in an accident in the course and scope of his employment; (2) whether Hubbard intentionally injured himself and/or actually faked the ^alleged accident; (3) the nature and extent of Hubbard’s disability; (4) Hubbard’s entitlement to rehabilitation services; (5) Hubbard’s request for penalties and attorney’s fees; and (6) whether Hubbard defrauded ABS, entitling the employer to reimbursement of the medical expenses paid on Hubbard’s behalf.

On November 3, 2005, the WCJ issued its ruling. The WCJ concluded that the accident happened during the course and scope of claimant’s employment and in the manner described by Hubbard. Specifically, the WCJ rejected ABS’s argument that Hubbard faked or staged the accident, believing that claimant “does not possess the level of ingenuity required to stage this accident.” The WCJ denied Hubbard’s request for indemnity benefits, but found that he was entitled to receive medical treatment for his injuries. Hubbard’s request for penalties and attorney’s fees was denied. Finally, the WCJ denied ABS’s reconventional demand requesting reimbursement based on Hubbard’s allegedly fraudulent misrepresentations. Both ABS and claimant have appealed from this judgment.

Discussion

Standard of Review

Factual findings in workers’ compensation cases are subject to the manifest error rule. Winford v. Conerly Corp., 04-1278 (La.03/11/05), 897 So.2d 560. Under this rule, the reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable. Id.; Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). When there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, even when the appellate court is convinced it would have weighed the evidence differently had it been sitting as trier, the court of appeal may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety. Id.; Williams v. Saint Gobain Containers, 39,313 (La.App.2d Cir.01/26/05), 893 So.2d 144.

Discrepancies in Testimony

It is a threshold requirement that the claimant in a workers’ compensation action establish “a personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). The claimant bears the burden of proving such a work-related accident by a preponderance of the evidence. Buxton v. Sun-land Construction, 34,995 (La.App.2d Cir.08/22/01), 793 So.2d 526. Although Louisiana’s workers’ compensation statute is often afforded a liberal construction, this burden of proof is not relaxed. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992).

The Louisiana Supreme Court, in Bruno, supra, laid out the parameters for proving an accident based upon the claimant’s testimony alone:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may |5be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.

Id. at 361. If a claimant’s testimony contains discrepancies and inconsistencies, that testimony alone does not meet the burden. Hammock v. Weyerhaeuser, 40,-464 (La.App.2d Cir. 12/14/05), 917 So.2d 733.

In Buxton, supra, the court held that where objective evidence so contradicts an employee’s testimony, or testimony is so internally inconsistent or implausible on its face that a reasonable factfinder would discredit the story, the reviewing court may well find manifest error or clear wrongness even in a credibility determination. Id.

ABS argues that Hubbard’s version of events is so internally inconsistent or implausible on its face that it warrants an adverse credibility determination. ABS asserted a myriad of instances where Hubbard’s testimony at trial conflicted with his deposition testimony and 40 instances during his deposition and at trial where claimant could not recall details regarding the day of the accident and basic background information. Typical examples of these inconsistencies and lapses in memory are Hubbard’s inability to remember whether any tools were on the floor at the time of the accident, whether he drank coffee with a fellow employee that morning, how many disks in his back were diagnosed as herniated, and whether he saw any shipping pallets on the floor that morning.

Hubbard’s herniated disk was corroborated by the deposition testimonies of Drs. Daniel Crook, Louis Crook, Temple Douglas, and Gary Lowder. In addition, Dr. Brian Bulloch ordered an MRI for Hubbard’s | ,¡back, and diagnosed Hubbard with having a herniated disk in his lower back.

While Hubbard’s deposition and trial testimony contain many discrepancies, none of these discrepancies, by themselves or taken as a whole, are irreconcilable with Hubbard’s version of the incident or suggest dishonesty on his part as to this accident. Rather, these discrepancies are easily dismissed as errors common to an imperfect memory. Further, Hubbard’s testimony is corroborated by medical evidence which includes several doctors’ testimony and the results of an MRI. Accordingly, we find the WCJ did not commit manifest error in finding Hubbard’s testimony to be credible and in basing her factual findings on this testimony.

Fraud

It is unlawful for a person to willfully make a false statement or representation for the purpose of obtaining workers’ compensation benefits. La. R.S. 23:1208(A). A purported claimant who violates this rule forfeits his right to workers’ compensation benefits. La. R.S. 23:1208(E). La. R.S. 23:1208 authorizes forfeiture of benefits upon proof that: (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Howard v. Holyfield Construction, Inc., 36,734 (La.App.2d Cir.03/18/03), 839 So.2d 1277, writ denied, 03-1109 (La.06/06/03), 845 So.2d 1097, appeal after remand, 38,728 (La.App.2d Cir.07/14/04), 878 So.2d 875, writ denied, 04-2303 (La.01/07/05), 891 So.2d 684. The statute applies to any false |7statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. Id.

Pursuant to La. R.S. 23:1208(D), any person who violates the provisions of La. R.S. 23:1208 may be ordered to make restitution for benefits claimed or payments obtained through fraud. The law is clear that no compensation shall be allowed for an injury caused by the injured employee’s willful intention to injure himself. La. R.S. 23:1081(l)(a).

ABS argues that: Hubbard had to see the oil spill on the floor; he simply lay in the oil instead of slipping; he greatly exaggerated the extent of his injuries; and the WCJ was manifestly erroneous in concluding otherwise. Further, ABS points out that there were no other possible sources for the oil on the floor except Hubbard himself, and the WCJ relied on incompetent, evidence of “horseplay” and practical jokes in surmising the source of the pool of oil.

While these suggested conclusions may be valid alternatives, it is not in the discretion of this court to replace the WCJ’s reasonable findings with equally reasonable conclusions of our own. Even when the appellate court is convinced it would have weighed the evidence differently had it been sitting as trier of fact, the court of appeal may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety. Winford, supra.

The WCJ investigated the matter extensively, even making a personal inspection of the accident site, and interpreted the evidence in a reasonable fashion. In determining Hubbard’s injuries, the WCJ relied on ample |smedical evidence in concluding that claimant does indeed suffer from a herniated disk. As to the source of the oil pool, many witnesses testified that oil was regularly on the floor of the Door Shop, and the source of this specific pool of oil does not need to be positively confirmed in this case, especially in light of ABS’s inability to identify exactly what type of oil was on the floor of the Door Shop. Accordingly, we can find no manifest error on the part of the WCJ in its determination that Hubbard did not commit fraud.

Indemnity Benefits

Hubbard contends that the WCJ erred when it found that he had not proven that he was unable to return to work because he “was not released from work by a physician” and was therefore not entitled to indemnity benefits.

To justify an award of indemnity benefits, claimant is required to prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. Collins v. Patterson Drilling, 39,668 (La.App.2d Cir.5/11/05), 902 So.2d 1264. The question of disability is determined by a reference to the totality of the evidence, including both lay and medical testimony, and is ultimately a question of fact. Thomas v. Casino Magic, 39,725 (La.App.2d Cir.05/11/05), 902 So.2d 1283, writ denied, 05-1970 (La.02/03/06), 922 So.2d 1183. The workers’ compensation judge’s determination that claimant failed to prove an inability to engage in employment cannot be reversed absent a showing of manifest error. Id.

| sHubbard notes a North Monroe Medical Center (“NMMC”) document bearing a handwritten statement by Dr. Daniel Crook stating “bed rest until rechecked in occupational medicine in a.m. 6/30/04.” Further, a June 29, 2004, emergency room note dictated by Dr. Crook stated “[t]he patient was told to remain at bed rest until rechecked by occupational medicine tomorrow morning on June 30, 2004.”

In addition, Hubbard relies upon an injury status report from NMMC dated July 2, 2004, which states that Hubbard could return to work as of that day with many nearly unworkable restrictions. An identical report was issued on June 30, 2004. Both reports were authorized by Shane Delman, a family nurse practitioner at NMMC’s occupational medicine clinic.

The reports represent only a small portion of the medical evidence considered by the WCJ, and indeed were each issued within four days of the accident, and are not sufficient to carry Hubbard’s burden of establishing an entitlement to indemnity benefits.

Penalties and Attorney Fees

Hubbard contends that the WCJ erred in denying him statutory penalties and attorney’s fees.

An employer or insurer is liable for reasonable attorney’s fees if it acted arbitrarily, capriciously or without probable cause in failing or refusing to pay an employee’s benefits. La. R.S. 23:1201.2. Whether the withholding of benefits is arbitrary, capricious or without probable cause depends on the facts known by the employer or insurer at the time that benefits are denied. Vernon v. Wade Correctional Institute, 26,053 (La.App.2d Cir.08/19/94), 642 So.2d 684. Additionally, an employer or insurer is liable for statutory penalties if it volitionally failed to pay benefits without evidence to reasonably controvert the employee’s right to such benefits. La. R.S. 23:1201(E). To reasonably controvert an employee’s right to benefits, the factual and medical information possessed by the employer or insurer must reasonably counter that of the claimant. Roberts v. BE & K Construction Co., 27,-116 (La.App.2d Cir.06/28/95), 658 So.2d 314.

Although workers’ compensation statutes are generally liberally construed, the statutory provisions permitting the assessment of penalties and attorney’s fees for nonpayment of workers’ compensation benefits are penal in nature and must be strictly construed. Freeman v. Triad Builders, 39,657 (La.App.2d Cir.05/11/05), 902 So.2d 1220, writ denied, 05-1562 (La.12/16/05), 917 So.2d 1118. Whether or not a refusal to pay benefits is arbitrary, capricious, or without probable cause, for purposes of workers’ compensation statutes relating to the imposition of penalties and awards of attorney fees, depends primarily on the facts known to the employer or insurer at the time of its action; the crucial inquiry is whether the employer has articulable and objective reasons for denying or discontinuing benefits at the time it took that action. Id. The workers’ compensation judge is afforded a great deal of discretion in awarding or denying penalties and fees. This discretion is not to be disturbed on appeal absent an abuse of discretion. Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.04/07/04), 870 So.2d 515.

InHubbard was terminated by a July 26, 2004, letter which stated, among other things, that ABS suspected Hubbard to have staged or faked the accident. Ms. Lewis, the human resources director for ABS, testified that this suspicion was based in part on “the doctor’s reports that we had received to that point.” However, Ms. Lewis later testified that as of that time, ABS only had a statement from the EMT.

At trial, however, ABS asserted ample “articulable and objective reasons” for suspecting Hubbard of something less than sincerity, and therefore denying him benefits. The WCJ found that ABS “had a reasonable basis to deny claimant’s workers’ compensation claim. Said reasonable basis was derived from inconsistent statements by claimant concerning the accident and the extent of his injuries.” This being the case, the WCJ did not err in denying claimant’s request for penalties and attorney fees.

Conclusion

For the reasons set forth above, the WCJ’s judgment is AFFIRMED. Costs of this appeal are to be borne equally by the parties.

      . ABS sent a sample of the oil to the University of Louisiana at Monroe for chemical analysis, but ULM was unable to identify the oil.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Mark A. CHATTERSON, Appellant.
    No. 41,4444-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Louisiana Appellate Project by Carey J. Ellis III, for Appellant.
    Don M. Burkett, District Attorney, Michael E. Daniel, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART and LOLLEY, JJ.
   STEWART, J.

_JjAfter his motion to suppress evidence was denied, the defendant, Mark A. Chat-terson, entered a Crosby plea to possession of a Schedule II CDS, methadone, and possession of firearms by a convicted felon. He was sentenced to serve 5 years for possession of methadone and 15 years for possession of firearms by a convicted felon, to run consecutively. The defendant now appeals. Finding no merit in the issues raised on appeal, we affirm his convictions and sentences.

FACTS

The defendant was originally charged by bill of information with (count one) possession of a Schedule II controlled dangerous substance, methadone; (count two) possession of firearms by a convicted felon; (count three) cruelty to juveniles; and (count four) pornography involving juveniles. The defense filed a pretrial motion to suppress evidence seized from his home. A hearing on the motion to suppress was held, and the motion was subsequently denied.

The defendant then entered a guilty plea und4r State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appellate review of the denial of the motion to suppress. He pled guilty to (count one) possession of a Schedule II CDS, methadone, and (count two) possession of firearms by a convicted felon. He received the agreed sentences of 5 years imprisonment at hard labor for possession of methadone and 15 years imprisonment at hard labor for possession of firearms by a convicted felon. The sentences were ordered to run consecutively. The state agreed to nol pros all other ^charges and not to file a multiple offender bill in this matter. The defendant now appeals the trial court’s denial of his motion to suppress evidence.

On the evening of May 13, 2005, while caring for his daughter at his Logansport residence in DeSoto Parish, the defendant realized that he might have given her some of his medicine (methadone). After the child’s mother, Leiloni Chatterson, and Stephanie Ward, a relative of the defendant, returned home from running errands, the child began having difficulty breathing and subsequently became unresponsive. A call to 911 was made shortly before midnight, and the child was subsequently airlifted to a Shreveport hospital for treatment.

When DeSoto Parish Sheriffs Deputy Phillip Daniels arrived at the scene, he found the child on the floor of the living room being attended by EMS personnel. Present were the defendant, Leiloni Chat-terson, Stephanie Ward and Chestaline Lewis. At the request of EMS, Deputy Daniels left to set up a nearby landing zone for an emergency helicopter and returned shortly thereafter. When he returned, the child had been removed and the defendant and Leiloni had left for the hospital. Deputy Brett Cooper testified that when he joined Deputy Daniels at the residence, only Ward and Lewis were present. Lewis, who is the child’s grandmother, told both deputies that she lived in the residence, where she had her own room and paid some of the household bills.

While Deputy Cooper questioned Lewis and Ward, both he and Deputy Daniels noticed several pill bottles, a marijuana cigarette and a “roach” (a remnant of a burnt marijuana cigarette) clipped in a pair of Lhemostats on the computer desk in the living room in plain view. There was also a computer printout of an article regarding what to do in the event of a methadone overdose. It was pinned up in the living room in plain view. The deputies further observed several pornographic tapes on a low shelf where any child could get to them.

Deputy Cooper then asked Lewis if she had a problem with him looking around the house, and she replied that she did not. Deputy Daniels was present and witnessed Lewis orally consent to the search. Deputy Cooper took two pill bottles from the living room. The two bottles looked exactly alike except one had the child’s name on the label and the other had the defendant’s name on the label and his initial, an “M,” on top. Ward related that the defendant put the “M” on his bottle that night after he suspected that he had given the child the wrong medicine.

Ward informed Deputies Daniels and Cooper that there were some other pill bottles belonging to the child in the defendant’s bedroom. The deputies entered the defendant’s bedroom to look for the child’s other pill bottles. They found pill bottles containing multiple roaches, marijuana cigarettes and a couple of baggies containing what looked like marijuana seeds. He also found pill bottles containing the child’s name. While in the defendant’s bedroom, Deputies Daniels and Cooper also observed three guns-a shotgun hanging over the bedroom door, and a .22 pistol and a .22 rifle on the shelf close to the bed. Deputy Cooper took all of the pill bottles Land other drugs he recovered with him to the hospital so that the doctors could properly treat the child for the suspected overdose. These pills and drugs were later placed into evidence. A report from the North Louisiana Criminalistics Laboratory confirmed that one of these pill bottles contained methadone.

While Deputy Cooper was on his way to the hospital, Deputy Daniels radioed him the defendant’s rap sheet, which included information that the defendant was currently on probation for a felony conviction of possession of methadone. Overnight, Deputy Cooper obtained a search warrant, which he executed at the residence early the next morning. Items seized pursuant to the search warrant included the three guns, a computer and CD’s, pornographic materials, and a remote camera system which included a hidden camera in the bathroom.

After hearing the testimony of Deputies Daniels and Cooper, the trial court listened to arguments from both sides. It then denied the motion to suppress without giving any oral reasons.

DISCUSSION

Illegal Search and Seizure

The defense cites applicable law and argues that the defendant was subjected to an illegal search resulting in the seizure of evidence used to convict him of possession of methadone and possession of firearms by a convicted felon. It contends that there was no search warrant for the items used against him and there was no valid exception to the warrant requirement that would render the evidence admissible. The defense notes [ Bthat during the initial search, the deputies had no search warrant, no written consent to search, and observes that no mention of the oral consent to search was made in the reports. It also notes that the defendant was not at his residence during the initial search and did not give the police permission to search his home. The defense contends that since the child had already been taken from the home, no exigent circumstances existed to justify the officers’ warrantless entry into his home. The defense argues that the officers should have obtained a search warrant. It concludes that the trial court should have suppressed the evidence, and therefore the conviction must be reversed and the case remanded for further proceedings.

The state argues that the evidence presented was clear and convincing that Lewis was a resident of the home, and as a cohabitant, gave a valid oral consent to search. It notes that the officers brought the drugs to the hospital to aid in the recovery of the child/victim. The state further notes that the firearms were retrieved pursuant to a valid search warrant, the validity of which has not been questioned on appeal. It concludes that the trial court’s denial of the motion to suppress should be upheld.

The right of every person to be secure in his person, house, papers and effects, against unreasonable searches and seizures, is guaranteed by the Fourth Amendment to the U.S. Constitution and Article I, § 5 of the 1974 Louisiana Constitution. A search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333 (La.04/09/03), 842 So.2d 330; State v. Tatum, 466 So.2d 29 (La.1985); State v. Johnson, 40,847 (La.App.2d Cir.4/12/06), 926 So.2d 781; State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168.

One of the exceptions to the warrant requirement is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Strange, 04-0273 (La.05/14/04), 876 So.2d 39; State v. Wilson, 467 So.2d 503 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985); State v. Johnson, supra; State v. Hudnall, 39,723 (La.App.2d Cir.05/11/05), 903 So.2d 605. Oral consent is valid. State v. Hudnall, supra; State v. Crews, 28,153 (La.App.2d Cir.05/08/96), 674 So.2d 1082.

The burden is on the state to prove that the consent was freely and voluntarily given. Id. Voluntariness is a question of fact to be determined by the trial court under the facts and circumstances of each case. This determination is to be given great weight on appeal because of the trial court’s opportunity to observe witnesses and assess credibility. State v. Hudnall, supra; State v. Jennings, 39,543 (La.App.2d Cir.03/02/05), 895 So.2d 767, writ denied, 05-1239 (La.12/16/05), 917 So.2d 1107; State v. Paggett, 28,843 (La.App.2d Cir.12/11/96), 684 So.2d 1072.

Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); State v. Bodley, 394 So.2d 584, 588 (La.1981); State v. Shumaker, 40,275 (La.App.2d Cir.10/28/05), 914 So.2d 1156; State v. Owens, 480 So.2d 826, 830 (La.App. 2d Cir.1985), writ denied, 486 So.2d 748, cert. denied, 479 U.S. 840, 107 S.Ct. 145, 93 L.Ed.2d 87 (1986).

This common authority stems not so much from one’s property interest, “but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” United States v. Matlock, supra, 94 S.Ct. at 993, fn. 7. When the facts do not support a finding of actual authority, a search is reasonable within the meaning of the Fourth Amendment if the consent giver apparently has actual authority. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); State v. Shumaker, supra.

The plain view doctrine is also an exception to the warrant requirement. State v. Young, 39,546 (La.App.2d Cir.03/02/05), 895 So.2d 753; State v. Ray, 471 So.2d 831 (La.App. 2d Cir.1985), writ denied, 475 So.2d 364 (La.1985). The plain view doctrine renders a warrantless search and seizure of evidence reasonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object’s incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Young, supra; State v. Nolen, 29,284 (La.App.2d Cir.04/04/97), 691 So.2d 379.

The state correctly notes, and the record confirms, that the firearms were seized pursuant to a search warrant. The validity of that warrant has not been questioned below or on appeal. The remaining issue is whether the methadone was seized pursuant to an exception to the search warrant requirement. A review of the record supports the trial court’s denial of the motion to suppress with regards to the methadone. First, the facts support the finding that the methadone was in plain view when the deputies entered the residence in response to the 911 call. The plain view doctrine is an exception to the warrant requirement. See State v. Young, supra; State v. Ray, supra. The deputies’ warrantless search and seizure of methadone was reasonable because the deputies were lawfully in the living room from which they viewed the methadone in response to the 911 call that the child had been overdosed with the defendant’s methadone; the methadone’s incriminating character was immediately apparent; and the deputies had a lawful right of access to the methadone under the circumstances surrounding the child’s methadone overdose. See State v. Young, supra; State v. Nolen, supra. Second, the record clearly supports the finding that Lewis was a co-inhabitant who had the right to permit the inspection in her own right, and who freely and voluntarily consented to the search. See State v. Shumaker, supra. These arguments are meritless. Thus, this assignment is without merit.

| .CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions and sentences.

AFFIRMED.

      . A written consent to search was obtained days later on May 17, 2005. On cross-examination, Deputy Cooper admitted that no mention was made of the oral consent to search in his reports.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Delandro Chamichael DAVIS, Appellant.
    No. 41,430-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Louisiana Appellate Project by Annette F. Roach, for Appellant.
    Paul J. Carmouche, District Attorney, Dale G. Cox, Edward M. Brossette, Assistant District Attorney, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| ,This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Delandro Chamicheal Davis, pled guilty to a reduced charge of first degree robbery, and he was sentenced to eight years at hard labor without benefit of parole, probation or suspension of sentence. La. R.S. 14:64.1. Davis now appeals, and for the following reasons, we affirm.

Facts

The following facts were taken from police incident reports, testimony from a preliminary examination, and testimony during Davis’ plea hearing.

On November 16, 2002, shortly after 12:00 a.m., Davis and three others, Gatson Craig, Brian Robinson, and Derrick White, went to the residence of Katrina Oliver and Marquell Pierson located at 2544 Malcolm Street in Shreveport, Louisiana with the intent to commit a home invasion robbery. Pierson was not at the residence at the time; however, Oliver was there with her young son who slept during the entire event.

Davis admitted that he and Craig gained entry into the home under the pretense that Davis (who knew Oliver personally) was having car trouble and needed to use the telephone. White acted as a look-out in the front of the house while Robinson went to the back of the house. Once Oliver opened the door for Davis, who pretended to go over and use her telephone, Craig entered the residence, placed a gun to Oliver’s head, and forced her to the floor. Oliver then told the pair something to the effect that what they wanted was in the closet. Davis then retrieved money and ^approximately two pounds of marijuana from the closet. Prior to leaving the residence, Davis took a turn holding the gun to Oliver’s head.

The home invasion team left the scene of the robbery and headed to Craig’s house to drop off the gun used during the robbery. Oliver left her residence, traveling nearby to a friend’s (Michelle Lindsey) home from where she telephoned police and Pierson. At the time he received Oliver’s telephone call, Pierson was a passenger riding in a black Toyota Corolla owned by Lindsey and being driven by Broderick Gandy, Lindsey’s boyfriend. After receiving the call, Pierson and Gandy proceeded to Lindsey’s home. While in route to Lindsey’s, Pierson spotted Davis in the car being driven by Robinson.

At this time, the home invasion team had traveled from Craig’s house to Hearne Avenue in route to a convenience store. As they were traveling northbound on Hearne Avenue, the car, being driven by Gandy, made a u-turn and followed them. Somewhere near the intersection of Hearne and Malcolm Street, shots were fired from the black ear. The vehicle carrying the home invasion team, driven by Robinson, turned on Malcolm Street away from the shooter in the black vehicle. Both Robinson and Davis, by a photographic lineup, later identified Pierson as the shooter and Gandy as the vehicle driver.

As police officers were taking the report from Oliver regarding the earlier home invasion, they heard the shots being fired, then saw the car driven by Robinson pass their location with a broken-out driver’s side ^window. The officers pursued the vehicle that eventually stopped with the driver, Robinson, running from the vehicle. Officers ordered the back seat passengers (Davis and Craig) from the vehicle and discovered White slumped in the front seat-he was pronounced dead at the scene. Davis and Craig were both eventually arrested for armed robbery. Codefendant Robinson later surrendered to police and was charged with armed robbery as well.

During their investigation, police took statements from many of those involved in the two crimes including the three remaining members of the home invasion team (Davis, Robinson, and Craig), Pierson (the shooter), Gandy, Oliver, and Lindsey. Pierson was eventually arrested for White’s murder.

Pursuant to a plea agreement with the state, Davis agreed to testify at the trial of his codefendants in connection with the robbery case and in Pierson’s murder trial. Davis was allowed to plead guilty to a reduced charge of first degree robbery, as per the agreement with the state. Furthermore, the state agreed not to file a habitual offender bill against Davis. Ultimately, Davis was sentenced to 8 years of hard labor, without the benefit of parole, probation or suspension of sentence, to be served consecutively with a prior sentence. The trial court denied Davis’ motion to reconsider his sentence, and this appeal ensued.

Discussion

In his only assignment of error, Davis argues that the trial court imposed a sentence exceeding what Davis was told he should expect to | ¿receive as inducement for his plea of guilty. Specifically, Davis states that as part of his plea agreement, he was told that his sentence would be between six and seven years and that the sentence would be consecutive to another sentence he was already serving. Davis further argues the remedy for the breached plea agreement is specific performance whereby he would receive a sentence between six and seven years. We disagree.

It is well settled that a plea agreement is considered a contract between the state and the criminal defendant. State v. Peyrefitte, 2004-0742 (La.10/15/04), 885 So.2d 530; State v. Wynne, 40,921 (La.App.2d Cir.04/12/06), 926 So.2d 789.

A guilty plea is invalid when the defendant is induced to plead guilty by a plea agreement or by what the defendant reasonably believes is a plea agreement and the terms of the bargain are not satisfied. State v. Dixon, 449 So.2d 463, 464 (La.1984); State v. Beverly, 37,301 (La.App.2d Cir.08/20/03), 852 So.2d 1149. Even in the absence of a plea bargain, if a defendant justifiably believes there was one and pled guilty in part because of that justifiable belief, the guilty plea was not knowingly made, and in such a case, the plea must be set aside and the defendant allowed to plead anew. State v. Robinson, 38,921 (La.App. 2d Cir.11/01/00), 770 So.2d 868. When a plea bargain is breached, the defendant has the options of specific performance or to withdraw the guilty plea. State v. Byrnside, 34,948 (La.App.2d Cir.08/22/01), 795 So.2d 435.

A plea of guilty will not be set aside upon a defendant’s unfulfilled expectation of gaining release as early as possible. State ex rel. Turner v. Maggio, 463 So.2d 1304 (La.1985). However, if a guilty plea is induced by a plea bargain, or by what a defendant justifiably believes was a plea bargain and he pleaded guilty in part because of that justifiable belief, the bargain must be enforced or the relator be allowed to withdraw from the plea. State ex rel. Miller v. Whitley, 615 So.2d 1335 (La.1993).

In determining the validity of agreements not to prosecute or of plea agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant’s constitutional right to fairness may be broader than his or her rights under contract law. The first step under contract law is to determine whether a contract was formed in the first place through offer and acceptance. La. C.C. art.1927. The party demanding performance of a contract has the burden of proving its existence. In the context of plea bargains, a defendant may demand specific performance of the state’s promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right. State v. Givens, 1999-3518 (La.01/17/01), 776 So.2d 443.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an. appellate court may not set aside ■ a sentence as excessive. State v. Guzman, 1999-1753 (La.05/16/00), 769 So.2d 1158; State v. Bright, 39,003 (La.App.2d Cir.10/27/04), 886 So.2d 1183.

Based on the record, we do not believe that there was an agreed or predetermined sentence promised in connection with Davis’ plea agreement. | (While the trial court did mention a possible sentencing range, there was no absolute agreement as to the sentence that Davis would receive prior to the guilty plea being entered.

During the hearing where Davis entered his guilty plea, the state presented the following:

State: ... Your Honor, pursuant to the bench conference it’s the state’s understanding that the defendant wishes to enter a plea of guilty to one count of first degree robbery, responsively, with the understanding that the sentencing will be by the Court. The only thing that the State is putting on the record, the state has stated to defense counsel and the defendant that it will not file a habitual offender bill. However, that is subject to the defendant testifying truthfully against the codefendant and truthfully in the Marquell Pierson homicide trial.... (Emphasis added).

Counsel for Davis indicated his agreement and understanding to the plea bargain. After questioning Davis regarding his understanding of the agreement, the following exchange took place:

The Court: And finally, with respect to your own sentence for your guilty plea to first degree robbery this Court has discussed with your lawyer on Monday — or I shouldn’t say Monday because Mr. Swift [Davis’ trial counsel] was not a part of that discussion — that I discussed with the state and the attorneys for the codefendants Mr. Robinson and Mr. Ga-ston that if certain circumstances develop you would receive from this court 6 years at hard labor. That was not accepted on Monday but I’ve indicated to Mr. Swift your lawyer on yesterday evening and this morning that if everything works out favorably in terms of you testifying and whatnot, then this Court unit consider a sentence of 6 to 7 years. Has this been explained to you? Defendant: Yes, sir.
The Court:, But you understand you will not be sentenced today?
Defendant: Yes, sir.
[7The Court: I want to wait and see how you cooperate and to what extent you cooperate before the Court determines what your sentence will be. I don’t want you to be misled and misunderstand that your sentence is locked in at 6 or 7 years. I don’t want you to — But I’m telling you and I’m saying it on the record, if everything works out as we are discussing then that would be the type of sentence you will get. (Emphasis added.)
Defendant: Yes, sir.
The Court: And the reason I went up to seven is because had you agreed do (sic) this on Monday it would have been six but you waited until today so then it will probably be seven. Do you understand that?
Defendant: Yes, sir.
The Court: Okay. Now, with that understanding-Let me mention one other thing. I mentioned to Mr. Swift that at the time of this offense took place I’m told that you were on probation.
The Defendant: Right.
The Court: And that you were backing up some time.
The Defendant: Right.
The Court: But I told Mr. Swift that I’m not making a commitment to whether this will run concurrent or consecutive to that time that you’ve been in jail on that other charge. Do you understand that?
The Defendant: Yes, sir.
The Court: But I will consider it again based upon how all of this works out with your testimony.
The Defendant: Yes, sir.
The Court: Okay. Because the State wants the Court to favorably consider your testimony in these other matters. Do you follow me?
The Defendant: Yes, sir.
|sThe Court: Anything I’ve said so far you don’t understand?
The Defendant: No, sir.
(Emphasis added). Thereafter, the trial court went on to accept Davis’ guilty plea to first degree robbery.
When inquiring about promises made to Davis, the trial court stated the following:
The Court: Now, I know we promised you what the charge would be, first degree robbery. I know we promised you that you would not be multi-billed, and I have indicated to you with respect to sentencing the court will probably sentence you to 6 or 7 years if everything works out. And I will make a determination whether or not it would be consecutive or concurrent, but I didn’t promise you that I would do that. I just indicated to you that’s what the court will do if these matters turned out like we want them to; is that correct?
Defendant: Yes, sir.
The Court: Has anybody promised you anything else that we need to talk about on the record?
Defendant: No, sir.

(Emphasis added).

On November 7, 2005, Davis was brought again before the trial court for sentencing. The sentencing occurred almost two years after Davis entered his guilty plea on October 16, 2003. From the dialogue at the sentencing hearing, it appears that Davis testified as requested in Pierson’s murder trial, which ended in a mistrial. Because Pierson died prior to his retrial, Davis was not required to testify again. Also, it appears that all of Davis’ codefendants pled guilty without the necessity of a trial.

| flAt the sentencing, the trial judge noted:

Now, all of the Court’s consideration for sentencing had to do with your willingness to participate as a witness for the State in a homicide case, for which you did participate, but that case resulted in a mistrial, and as I’ve already stated, Mr. Pierson has since died and was not retried as we had anticipated for purposes of your sentence which would have helped you even more so, or possibly could have helped you more so.

When Davis expressed his displeasure in receiving a sentence greater than six or seven years, the following exchanged occurred:

The Court: And does the transcript say that you were committed to six to seven years?
The Defendant: It said you would be inclined to give me six to seven years for my cooperation.
The Court: That’s right. And when I heard the testimony that I heard, I never would have given you that kind of consideration based upon the evidence that I heard. This was a horrible incident for which you are being given favorable consideration because you testified, and I don’t take that lightly. And I even have given you some consideration because now I think you are a different person than you are (sic) at the time you committed this crime. So I just want to make certain you understand, I considered it and I considered it favorably for you, because I wouldn’t have given you eight years based upon what you did. And why you didn’t get what other people get (sic) had — or got, I’m sorry — you didn’t get the sentence that some other individuals received had to do with what this Court understood your participation, your actions, and individually what your criminal history was compared to others....

Considering the record as a whole, we conclude that there was no specific sentence guaranteed or promised to Davis as part of the plea agreement. The state met its obligations under the plea agreement-to reduce the charges against Davis and not to file a multiple offender bill of information. The state kept this agreement. Davis was to testify truthfully against his codefendants and Pierson. It appears that Davis’ testimony linagainst the codefen-dants was unnecessary, and further testimony against Pierson was moot after his death. However, the trial judge indicated during the plea hearing that the sentence would be determined at a later date and that several factors would be considered in making the determination, including Davis’ cooperation with the prosecution of his codefendants and with the prosecution of Pierson. While the trial court did give a potential range for the sentence, he did not commit to a particular sentence or whether the sentence imposed would be consecutive or concurrent to the sentence Davis would receive for his probation violation. The trial court went to great lengths to inform Davis that the sentence had not been determined at the time the guilty plea was accepted. There was no agreement between Davis and the state as to the actual sentence, which the state indicated at the time would be left to the trial court. Davis, who agreed to this at the time the plea was entered, cannot now allege there was a sentencing agreement that demands specific performance. The trial judge was well within his sentencing discretion, and thus, this sentence should not be disturbed by this court. This assignment is without merit.

Conclusion

For the foregoing reasons, Delandro Chamicheal Davis’ conviction and sentence are affirmed.

AFFIRMED.

      . Katrina Oliver told police she had just gotten paid and the money ($430) was in the home.


text:
    STATE of Louisiana, Appellee, v. Richard B. WOODS, Appellant.
    No. 41,420-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Louisiana Appellate Project by Sherry Watters, Carey J. Ellis III, Richard B. Woods, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.

      Before STEWART, CARAWAY and LOLLEY, JJ.
   STEWART, J.

|¶The defendant, Richard B. Woods, was convicted of the second degree murder of Julie Woods, aggravated battery of Keith Wyman, and attempted manslaughter of James Sullivan. He was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence on the conviction for second degree murder. He was sentenced to serve 10 years at hard labor on the conviction for aggravated battery and 12 years at hard labor on the conviction for attempted manslaughter. The sentences were ordered to run concurrently. A motion to reconsider was denied, and this appeal followed. For the reasons set forth below, we affirm the defendants’ convictions and sentences.

FACTS

Richard and Julie Woods were husband and wife. Richard Woods, who had alcohol and drug problems before meeting Julie, went through rehabilitation and then moved to West Monroe, Louisiana where he met Julie, who had recently completed treatment for substance abuse. The couple moved into a trailer that belonged to Julie’s mother, Aleda Johnson. Their relationship was troubled, and Julie often stayed several days out of the week in the nearby home of James Sullivan who was a longtime friend of Julie and her family. Mr. Sullivan, who was 70 years old, had taken Julie to receive treatment for her substance abuse. Mr. Sullivan’s house was located across the field from Mike’s Cabinet Shop where Richard worked. An abandoned mechanic shop was on the property adjoining Mr. Sullivan’s home, and there was a lot of drug activity in the area. Julie suffered a relapse, and her drug problems recurred. As will be discussed more fully 12below, there is a factual issue in this case as to whether Mr. Sullivan was supplying drugs to Julie and allowing others to use his property for drug use, or whether Mr. Sullivan was simply living in a bad neighborhood and trying to help Julie. However, there is no dispute that Richard Woods was not happy about his wife staying at Sullivan’s house and wanted her to live with him in the trailer. As a result, he went Sullivan’s house on numerous occasions to try to persuade his wife to return home. These disputes set the backdrop for the violent events of July 30, 2004, in which Richard Woods murdered his wife by cutting and stabbing her, and severely injured Keith Wyman and James Sullivan with the same knife.

Witnesses for the Prosecution

The first witness to testify for the prosecution was Sgt. Ricky Bade of the Ouachi-ta Parish Sheriffs Office (OPSO). Sgt. Bade testified that on July 30, 2004, he received a report of a stabbing in progress on Bailey Street and that the suspect was a white male wearing a red t-shirt and blue jeans, heading toward a Spirit gas station. When Sgt. Bade arrived in the area, Richard Woods exited the Spirit service station and said, “I guess you’re looking for me.” Woods then showed Bade where he had left the knife in a nearby field.

The next witness was Cpl. Sams also of OPSO. Like Sgt. Bade, Cpl. Sams indicated that he had taken a call regarding a stabbing on Bailey Street and that the suspect allegedly was enroute to the Spirit gas station there. Because two units were already at the station when he arrived, Sams went to Bailey Street where he was met by Keith Wyman, who was holding a towel |oon the side of his face and hysterically screaming that he and some other people had been stabbed. Cpl. Sams stated that Wyman’s knife wound appeared to go all the way through the side of his face into the inside of his mouth. Cpl. Sams also observed two subjects lying on the porch of the residence. The subjects were Julie Woods and James Sullivan, who were “pretty much covered in blood from head to toe.”

Jim Gregory, a captain at the OPSO, also testified. His testimony was used to introduce into evidence the knife used to commit the murder. He testified as to the appearance of the Sullivan house after the murder took place as depicted in trial photographs. He also testified to finding some crack pipes in the house; the pipes were located under some carpet in a bedroom in the middle of the house.

Julie Woods’ mother, Aleda Johnson, was the next witness to testify. She indicated that she had told them if there was going to be any fussing and fighting “they could take it somewhere else.” She noted that Richard Woods worked at Mike’s Cabinet Shop when Richard and Julie moved into the trailer on her property. She also testified that she has known Mr. James Sullivan ever since they were in grade school, and that he lived on Bailey Street only about a mile and a half from her home. According to Ms. Johnson, their families had been friends for many years and he was like a “godfather” to her children. In the week before the murder, Ms. Johnson indicated that Julie had stayed at Mr. Sullivan’s house for a couple of days, and that Julie normally went there when she and “Ricky” would “get into a fuss.” The day before the murder, Woods came to Johnson’s house and got phis clothes out of the trailer indicating that if Julie was not going to stay there, he was not going to stay there. Johnson also saw Richard Woods at Mike’s Cabinet Shop on the day of the murder where he had asked her if she wanted to buy a DVD player from him for $10.00.

One of the more significant witnesses in the case was Dr. Frank Peretti, a forensic pathologist who testified concerning the wounds inflicted on Julie Woods. He began his description of those wounds starting at the top of her head and working downward. He stated that the wounds were caused by a knife, indicating that while all the wounds contributed to death by blood loss, there was one wound more fatal than the others. That wound was behind Julie Woods’ left knee. It was a stab wound measuring two and a half inches in length that went through the skin, the underlying tissues, muscles, tendons, and completely cut the left popliteal artery and vein, ultimately causing Julie Woods to exsanguinate. The wound was two and three quarters inches deep. There also was an irregular jagged cutting wound on her left leg that indicated she was moving and twisting, attempting to get away from the person inflicting the wound on her. Some of the wounds he described as being defensive wounds. He also stated that there was cocaine in Julie Woods’ bodily fluids indicating that she had consumed cocaine within a 24-hour period prior to her death. Dr. Peretti stated that Julie Woods had 15 cuts and 1 stab wound, and he reiterated that she had what he called defensive wounds on her arms. He opined, based on his experience, that the type of injuries sustained were not accidentally sustained.

|fiThe next prosecution witness was Keith Wyman. Mr. Wyman was the boyfriend of Rhonda Allbritton, who at one time had been married to Mr. Sullivan’s son. Wyman and Allbritton were visiting Sullivan’s house at the time of the murder. According to Wyman, he and Allbritton had only been at Sullivan’s house for a few minutes before the incident occurred. He met Julie Woods for the first time there, and nobody else was at the house besides Mr. Sullivan and Julie Woods when they arrived. Richard Woods knocked on the door while they were there, wanting to talk to Julie. After consulting with Julie, Mr. Sullivan told Woods that she did not want to talk to him and that he should come back later. However, Woods came into the house anyway. Mr. Sullivan then indicated to Woods that he should leave, Woods became upset, and Wyman could tell “by the look in the eyes” that Woods was going to jump on Mr. Sullivan. Wy-man stepped between Sullivan and Woods, and pushed Sullivan back with his arms. He was then cut on his face by Woods. According to Wyman, he did not know that Woods had a weapon until that point. The wound required 79 stitches to close.

Sullivan told Julie to run. Rhonda ran to the backdoor but could not get the door to open, so Wyman kicked the door open and Rhonda ran out. At this point, Wy-man turned around and saw Mr. Sullivan fall to his knees in the living room and saw Woods walking into the bedroom where Julie had gone. Wyman went to the kitchen to look for something he could use to arm himself and found a frying pan and a bow saw. When he turned around, he saw Woods “just slashing on Ms. Woods, hollering you know I_[¿ove you, you don’t understand I love.... ” Wyman then ran after Woods who ran out of the house. Although Wyman caught up with Woods who had tripped and fallen in a ditch, Wyman did not attack Woods because Rhonda had screamed out to him. Instead, Wyman returned to the house where Sullivan and Julie Woods had managed to get to the front porch. Wyman tried to help the two who were bleeding, but Wyman testified that he realized Woods was dying and there was nothing more he could do.

Wyman admitted that he had a criminal history including convictions for simple burglary, second degree battery, simple kidnapping, and forgery. He also indicted that he was currently awaiting trial on a drug charge. However, he denied supplying Julie with drugs and indicated he had never sold drugs in his life. He also denied that he or Rhonda was using drugs that day.

Rhonda Allbritton was the next prosecution witness. Her version of the events surrounding the murder largely corroborated that of Wyman. She testified that no one besides Woods had a weapon at the time Woods pulled out the knife, that she did not see anyone jump on Woods before he pulled out the knife, and that no one was threatening Woods. She testified that Julie was not aggressive toward Richard Woods at the time, that Sullivan had no weapons that she saw, and that he did not attack Richard Woods in any way. She denied knowing that there were any drugs being used at the house when she was there, but she admitted to being convicted of a marijuana charge in the '80’s and to having a shoplifting charge. She also admitted to having pending charges for simple possession and |7paraphernalia. All-britton saw Wyman and Sullivan get cut, but she did not see what happened to Julie.

Allbritton testified that she knew Julie stayed in the bedroom in Sullivan’s house, and that the room was “kind of like a rent room where others had stayed.” She indicated that a Bobby Taylor and a Mike Davis had stayed there before, but she denied knowing that the room was known as the crack room or that people would go there to smoke crack. However, she admitted that she had smoked crack “once or twice” before. According to Allbritton, she had never met Richard Woods before that day, but had met Julie a few times at Sullivan’s house. Although she admitted that she did not go from room to room in the house that day, she did not think anyone else was in the back part of the house.

The last witness for the prosecution was James Sullivan, who testified that he had known Richard Woods for about a year or better, and that he had been knowing Ale-da Johnson ever since she was seven or eight years old. He also knew all of Johnson’s children. He also indicated that Rhonda Allbritton had been married to his son who had passed away, and that she came to visit him periodically. With respect to Julie Woods, he stated that he was aware she had a substance abuse problem and that he had tried to help her by taking her for treatment to Alexandria, Louisiana where there was a substance abuse treatment center. He indicated that there were occasions after she married Richard Woods that she would come and stay at his house, and that she had been there off and on for over two years. He indicated that he had allowed Bobby Taylor to stay at his house when |sTaylor had no place to stay, but he denied allowing people to consume drugs in his house, and he denied selling drugs. He also indicated that before the day of his testimony he was unaware that the police had found crack pipes in the back bedroom under the carpet. Sullivan also indicated that when Julie was staying at his house, Richard Woods would come down to see her and that he had asked Woods to leave because Julie did not want to have anything to do with him.

Sullivan stated that on the day of the murder Woods had come to his house around 9:00 a.m. to talk to Julie, but Julie did not want to talk to him, so he asked Woods to leave. Rhonda Allbritton and Keith Wyman came to Sullivan’s house around 10:30 a.m. Sullivan was in the kitchen cooking some peas and a duck. When they arrived, the only people in the house were Sullivan and Julie, and as they talked, Richard Woods arrived. Sullivan again told Woods that Julie did not want to talk to him, and Sullivan did not invite him in. Sullivan tried to convince Woods to leave, but Woods forced his way into the home. According to Sullivan, he asked Woods about four or five times to get out of the house, and Allbritton and Wyman also told Woods he should leave. When Wyman started to get up, Woods pulled a knife out of his shirt and struck Wyman across the face. When Sullivan told All-britton to run out of the house, he was struck by the knife in the area near his collarbone. Sullivan threw up his arms and was struck about three more times. Sullivan saw Woods strike Julie a couple of times before he fled outside to cry for help. Sullivan could hear Julie hollering, but he could not tell what she said because he was in poor ^condition himself. Sullivan indicated that before Woods pulled the knife out, he did not know there was going to be an attack on him or any of the other people.

Lastly, Sullivan denied allowing Julie or others to use his house to smoke crack, and testified that he did not use drugs, drink, or smoke. He also indicated that he had no criminal record. On cross examination, Sullivan admitted that Julie came to his house regularly to stay Thursday through Sunday, and sometimes longer. He did not think it strange that she came to his house “because she would show me bruises and everything where he had jumped onto her.” He indicated that there was a shop next to his house where people hung around and that there could have been illegal activity going on, but he did not “meddle in nobody’s business.” Sullivan admitted to threatening Woods with his machete after he caught him in his backyard a couple of months before the incident.

Witnesses for the Defense

The first witness for the defense was Mike Garrett, the owner of the cabinet shop and the employer of Richard Woods. Garrett said that Julie usually came to the cabinet shop every Friday, and that Friday was Woods’ payday. Garrett said that he was familiar with the fact that Julie would spend days at Sullivan’s house, and Garrett stated that people were hanging around Sullivan’s house all the time. Garrett indicated that on the morning of the murder, he saw Woods near the home of Garrett’s daughter who lived near Sullivan.

ImGarrett further stated that Woods had walked up to his truck and told him that the men he had been talking to had a gun, that they wanted money for crack, and that if Woods did not have the money by noon they were going to shoot him. Garrett then went to his shop, made out the payroll, and later paid Woods who left around 11:00 a.m. In the meantime, Woods had attempted to pawn a DVD player to get money to pay for the crack. According to Garrett, the last time he saw Woods that day was on the porch of Sullivan’s house; the three men who had been talking to Woods that morning were sitting in the front yard.

Garrett testified to his knowledge of Julie’s substance abuse problems, and he stated that Woods had told him that Julie was clean until two or three weeks before the murder. He denied knowing that Woods had been on a two-or-three-day binge of drinking and smoking crack prior to the murder. However, he indicated he was aware that the area around Bailey Street was an area where drugs were sold on a regular basis.

Richard Woods testified in his own defense. Woods testified that he was aware of Julie’s drug dependency problem before they married. He admitted that he had had a drug dependency problem also, but had gone to rehabilitation prior to moving back to West Monroe. According to Woods, Julie frequently stayed at Sullivan’s house after their marriage until Woods had rented a trailer. However, Julie still returned to Sullivan’s house just about every weekend. Woods stated that he had confronted Sullivan many times asking, “why do you just keep giving her the dope and letting her in your house, why don’t you just turn her away.” Woods also stated that he|nhad seen Sullivan buy dope for Julie, and that there were people around Sullivan’s house all the time using drugs. He claimed that Julie’s drug problems caused him serious financial problems.

Woods’ testimony about events leading to his going to Sullivan’s house on the day of the murder essentially matched those of Garrett. Woods indicated that the three black men who approached him that day wanted money for dope that he had gotten about a month before. Woods then went to the cabinet shop for a while and later returned to Sullivan’s house where Sullivan and Julie were sitting on the porch with the three black men in the yard. Woods allegedly told them that Garrett would come over to pay them at three o’clock. Woods admitted to having a knife in his pants, so he would have something to scare the men in case he ran into them when he went to talk to Julie.

On Wood’s second trip to Sullivan’s, Al-britton and Wyman drove up, and everyone was in the house by the time Woods arrived, except for the three black men who were still outside sitting in chairs. Sullivan allegedly came out of the house and bought dope from one of the black men and went back into the house. Woods claimed that he asked Sullivan if he would ask Julie if she would talk to him. Next, Wyman came out of the house, but was called back in by Albritton who told him that Sullivan said that they could smoke the dope in the house. When Woods came into the house, he tried to persuade her to leave. Wyman allegedly asked Sullivan if he wanted him to get Woods. Woods admitted getting excited and yelling while talking to Julie and stated that Albritton told him that he needed to quiet down. Julie hsthen got up and told Woods to leave her alone and went into the kitchen with Woods following her. Julie then left the kitchen and sat back down on the couch, but then jumped up and went to Sullivan’s bedroom. Again, Woods followed her and tried to persuade her to come home.

Sullivan told Woods he needed to leave, and Woods then told Sullivan that he wanted to know the truth about what was going on between him and Julie, because he was not “buying all that dope” without getting something out of it. Julie then allegedly stated, “I do what I have to do to support my habit,” and Woods then left the bedroom, told her there would be a divorce, and told her not to call his job anymore. At this point, Wyman allegedly jumped up and grabbed Woods, who then struck him in the face and knocked him back down into his chair. Woods claimed that Sullivan then grabbed and held him while Wyman approached with something in his hand. Woods said he then grabbed the knife and cut Wyman’s face. Sullivan purportedly “fell into” the knife when he had Woods by the throat and Woods stabbed at Sullivan to get Sullivan off of him. Woods said he then “saw a foot come up” and he slashed at the foot. Woods then recognized that he had cut Julie on the back of her leg. Woods asserted that he was trying to look at the cut when Julie allegedly “leaned back on the knife and the knife was in her and I was trying to get it out of her and it wouldn’t come out and then I pulled it out she was bleeding....”

On cross-examination Woods’ only explanation for how Julie received the other cuts was that they occurred when he was swinging the knife. He said that he did not realize who or what he was cutting. He l13testified that about a month before he had given Julie crack and smoked it with her, but that his intent was to get her away from Sullivan’s house. He also admitted that during the three days prior to the killing he had been drinking and smoking crack. He also admitted that during this period of time he was getting angry at Julie, because she had promised that she was not going to return to Sullivan’s. Significantly, Woods admitted that someone had told him that night before the killing that Julie had offered to sell herself to a man in order to get crack and that Woods had later told Deputy Sams that after hearing this his heart was pounding and he was hurt. Woods also had admitted that the same night he had told Garrett’s son-in-law as “a joke” that he had stabbed Julie.

DISCUSSION

Sufficiency of Evidence

The defendant argues that the State’s evidence was insufficient in two ways: (1) the State failed to prove beyond a reasonable doubt that Woods had a specific intent to kill Julie Woods; and (2) while the mitigating factors of heat of blood or sudden passion were proven by preponderance of the evidence, the State failed to rebut these factors. The defense points out that Richard and Julie Woods were having problems concerning her drug use, and the defense asserts that James Sullivan and his home facilitated her addiction. The defense also argues that when Woods was talking with Julie about leaving, there was no physical contact until the others intervened and escalated the situation. According to the defense, this shows that there was no specific intent to kill, but that what happened was an impulsive, | uunplanned act in the sudden heat of blood or passion. Additionally, the defense argues that whether or not Wyman had a weapon is irrelevant, as Woods perceived himself to be under attack from Wyman, a larger man, thus “raising his heat of blood.” Finally, the defense argues that despite Sullivan’s and others’ denials that they were using drugs in the house, Julie’s cocaine level was very high at the time of her death and, when considering the facts in the light most favorable to the State, no rational trier of fact could have found that the mitigating factors were not established by a pi'eponderanee of the evidence. Accordingly, the defense’s position is that the State only proved manslaughter.

On the other hand, the State argues that the jury obviously chose to believe the testimony of Wyman, Albritton and Sullivan, who were eyewitnesses to Wood’s unprovoked brutal attack on the unarmed victim. The State points out that according to Wyman, Woods approached Sullivan as if he wanted to jump on him, and then Wyman stood between the two to prevent an altercation. At that point, Woods produced a knife and cut Wyman from his ear to his mouth. After Wyman helped Albrit-ton get away, he noticed that Sullivan had been cut, and he observed Woods in the bedroom attacking Julie with a knife, using a slashing motion at least fifteen times upon the victim. The State points out that Albritton’s testimony corroborated Wy-man’s testimony, and that Sullivan had testified he asked Woods four or five times to leave. Furthermore, Sullivan testified that he never had a weapon during the attack. The State also noted Dr. Peretti’s testimony concerning the multiple wounds that caused the victim to bleed to |1ñdeath and his testimony that the wounds were intentionally inflicted. Finally, the State pointed out that Woods himself admitted to smoking crack and drinking over a three-day period prior to the killing, that he was mad with his wife for returning to Sullivan’s house, that he was upset because he had heard that she was selling herself for crack, and that on the night before the murder he “joked” that he had stabbed his wife. Thus, the State argues that the evidence presented supports the jury’s verdict of second degree murder, and that the defendant failed to prove by a preponderance of the evidence the presence of mitigatory factors that would entitle him to the responsive verdict of manslaughter.

The provisions of La. R.S. 14:30.1 state in pertinent part that second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act. La. R.S. 14:10(1); State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993). Specific intent is a state of mind and need not be proved as a fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982). The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Dean, 528 So.2d 679 (La.App.2d Cir.1988). In reviewing the correctness of such a determination, the court should review the evidence in the light most favorable to the prosecution and must determine whether the evidence l1fiis sufficient to convince a reasonable trier of fact of the guilt of the defendant beyond a reasonable doubt as to every element of the offense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2081, 61 L.Ed.2d 560 (1979); State v. Huizar, supra.

In contrast, one definition of manslaughter under La. R.S. 14:31(A)(1) is a homicide which would be murder under either Section 30 (first degree murder) or Section 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that an offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

The evidence in the record is sufficient to support the defendant’s conviction for second degree murder. As pointed out by the State, the testimony of Wyman, Albrit-ton, and Sullivan indicates that Woods was not provoked by anyone in the Sullivan home into committing the crimes. These witnesses all indicated that Woods was confronted about his behavior and was asked to leave, that Julie Woods did not agree to leave with her husband, that Woods was the aggressor, and that the actions of the others present were defensive. Woods himself admitted to becoming excited and loud while talking to his wife. The dispute as to whether Wyman armed himself should be resolved in the light most favorable to the prosecution. Furthermore, there is Woods’ admission that he was angry on the night |17before the crime, and that he even “joked” that he had stabbed his wife. Additionally, there is no dispute that he had armed himself with a knife before going to Sullivan’s house, even though he claimed it was for protection against drug dealers.

Considering all the evidence in the light most favorable to the prosecution, the jury easily could have concluded that Woods had the specific intent to stab his wife with a knife if she refused to return home with him from Sullivan’s house. Furthermore, when viewing the evidence in the light most favorable to the prosecution, the jury also could have reasonably concluded that Woods failed to establish that the killing was committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Woods had been angry at his wife the night before the killing, rather than first becoming angry immediately before the attacks. Even if a jury might have considered Woods’ knowledge of his wife’s alleged offer to sell herself for crack as being sufficient to deprive an average person of self-control, the jury also reasonably could have concluded that he regained his self-control by the next day.

Excessive Sentence

The defendant argues that he received an excessive sentence on count two, the aggravated battery of Keith Wyman for which Woods was sentenced to 10 years at hard labor. Woods asserts that he had no felony convictions and no history of violent crime, that Wyman’s injury was not life threatening, and that Wyman’s actions and interference with Woods’ l1smarriage precipitated the incident. According to Woods, a sentence in the mid-range or on the lower side, rather than the maximum, would have been more appropriate.

In contrast, the State points out that the trial court has broad discretion to sentence within the statutory limits, and that this is particularly true when the offense involves violence against the victim’s person. The State notes that Woods was an uninvited guest who was asked to leave on several occasions, that he introduced a weapon into the encounter where no one else was armed, that Woods did not know Wyman, who had stepped in to prevent an altercation, and that Wyman needed 79 stitches as a result of the cut which severed his saliva gland, tendon, and muscles, resulting in Wyman suffering from occasional dry mouth and permanent disfigurement. The State also points out that the trial judge sentenced Woods to far less than the maximum on the attempted manslaughter involving Sullivan and that the trial judge took the overall circumstances of the defendant’s actions into account when he sentenced Woods on the aggravated battery count. Additionally, the State points out that the trial judge noted the defendant’s abuse of alcohol and drugs, and that the defendant had admitted at trial that he spent three days prior to the victim’s death drinking and consuming cocaine. Finally, the State argues that it is obvious from the sentence imposed that the mitigating factors were taken into consideration, that the trial court referred to the defendant’s testimony indicating how much he loved the victim, and that the court had received letters on the defendant’s behalf.

iiflUnder the provisions of La. R.S. 14:34, aggravated battery is a battery committed with a dangerous weapon. Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

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

The trial court has broad discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Adger, 35,111 (La.App.2d 9/26/01) 797 So.2d 146.

Contrary to appellant counsel’s arguments, the sentencing transcript clearly shows that the trial judge did adequately comply with Article 894.1 and provide a factual basis for the sentence imposed for aggravated battery. The trial judge considered Wood’s criminal history, his alcohol and drug |2iproblems, and the letters submitted on Woods’ behalf. Furthermore, although the trial judge initially indicated that he was going to sentence Woods on the two lesser offenses without regard to the homicide, when Woods’ counsel asked for reconsideration because Woods received the maximum sentence on the aggravated battery, the trial judge stated “this is one instance where I’m not consistent in what I say.” The judge then indicated he was imposing the maximum sentence for the aggravated battery “because I consider the fact the same conduct resulted in the death of his wife.”

Next, we note that Woods initially was charged with attempted second degree murder of Wyman, but the jury returned the verdict of aggravated battery instead. Furthermore, this particular aggravated battery falls within the category of the worst offenses because it was part of a criminal incident in which another individual was murdered and a third nearly died.

CONCLUSION

For the reasons expressed more fully above, we affirm the defendant’s convictions and sentences.

AFFIRMED.