author: KUHN, J.

text:
    In the Interest of D.M.
    No. 2005 CJ 2046.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Sherry Powell Crain, Baton Rouge, Counsel for Plaintiff/lst Appellant Department of Social Services Office of Community Services.
    Kimberly S. Morgan, Baton Rouge, Counsel for Defendant/2d Appellant D.M.J.
    Audrey M. Lamb, Baton Rouge, Counsel for Defendant/Appellee G.D., Jr.
    Shawn Q. Bray, Baton Rouge, Counsel for Defendant/Appellee D.M.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   KUHN, J.

|2The Department of Social Services, Office of Community Services (OCS) filed a petition to terminate the parental rights of the mother and father of the minor child, DM. The trial court rendered a judgment, which terminated the mother’s parental rights but dismissed the petition for termination of the father’s parental rights. The mother and OCS appeal. We affirm in part, reverse in part, and render.

FACTUAL AND PROCEDURAL BACKGROUND

The child, the mother’s third daughter, was born in May 1998 as a result of an out-of-marriage union with the father. In June 2000, July 2001, and February 2003, OCS intervened in the mother’s custody, and the child was temporarily removed from the mother’s home due to allegations that she physically abused the child. The child was placed in the care of her maternal great-grandmother.

The whereabouts of the father were unknown in June 2000. When the child was born, the father had recently been released from prison after serving a four-year sentence for indecent behavior with a minor. He was involved in the child’s life only sporadically and was imprisoned again in September 2000 after having been convicted of contributing to the delinquency of a minor and an offense involving a minor. He was released from prison in January 2003, and in March, he contacted the child at her great-grandmother’s house. Due to a parole restriction, he was unable to provide a place of residence for the child.

OCS filed a petition for termination of the parental rights of both parents in September 2004. After a five-day trial on the merits, the trial court ordered | stermination of the mother’s parental rights based on a finding that the mother had physically abused and medically neglected the child. The trial court refused to terminate the father’s parental rights, concluding that OCS failed to include the father in the requisite proceedings. Thus, the trial court reasoned the ground upon which termination was sought was impeded by omissions attributable to OCS. A judgment in conformity with the trial court’s determinations was signed on May 20, 2005.

In her appeal, the mother urges that OCS failed to meet its burden of proof. She also contends that the trial court failed to consider the best interest of the child or to properly weigh testimony suggesting that she has reformed. In its appeal, OCS complains that the trial court incorrectly dismissed the petition seeking termination of the father’s rights.

LAW

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents. State ex rel. SNW v. Mitchell, 2001-2128, p. 8 (La.11/28/01), 800 So.2d 809, 814 (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982)). A corollary principle is that in an involuntarily termination of parental rights proceeding, a court must delicately balance the natural parent’s fundamental right and the child’s right to a permanent home. Mitchell, 2001-2128 at p. 8, 800 So.2d at 814-15.

Seven statutory grounds for the involuntary termination of parental rights are set forth in La. Ch.C. art. 1015. Only one ground need be established; however, the trial court must also find that termination is in the child’s best interest. La. Ch.C. Rarts. 1015, 1039; Mitchell, 2001-2128 at p. 10, 800 So.2d at 816. Given the draconian nature of an involuntary termination proceeding, OCS is required to prove the statutory ground on which it relies by clear and convincing evidence. La. Ch.C. art. 1035 A; Mitchell, 2001-2128 at p. 10, 800 So.2d at 816. A trial court’s findings on factually-intense termination issues are governed by the manifest error standard of review. Mitchell, 2001-2128 at p. 10, 800 So.2d at 816.

TERMINATION OP THE MOTHER’S PARENTAL RIGHTS

Tjie ground upon which the trial court predicated termination of the mother’s parental rights is set forth in La. Ch.C. art. 1015(3)(i), which states in part:

Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit ... [a]buse or neglect which is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement.

The record establishes that in June 2000, the two-year old, who had been living with her mother and the child’s two sisters, was found with severe bruises on her buttocks, the inside of her thighs, and on her vaginal area. Bruises on her lower extremities and chest as well as thermal burns were also present on the child.

Earl K. Long pediatrician Dr. Bryan Despinasse, II, who treated the child in June 2000, concluded that the child had been physically abused, having received the injuries as a result of non-accidental trauma. He testified that the mother admitted that she had administered corporal punishment with a belt because the child had defecated on herself, and had explained that the thermal burns had been a result of the child sitting in a tub of hot water. Dr. Despinasse determined that the child had | Joeen subjected to emotional maltreatment since the mother had stated that she whipped the child because the child did not want to potty train. Dr. Despinasse explained that the child was not developmentally able to potty train and so the beating for something she could not possibly do amounted to emotional maltreatment. He also opined that the child had been medically neglected based on the presence of a four-centimeter laceration under the child’s chin that should have been sutured but for which no medical treatment had been sought.

As a result of this intervention, the mother was provided parenting education and therapy, the child was placed in protective daycare, and OCS monitored the family. In August 2000, after the child defecated on herself with diarrhea, the mother called OCS and requested that the child be removed from the home. The child was placed in the custody of OCS, where she remained until May 2001, when a court ordered her returned to her mother’s custody with three-month OCS supervision.

In July 2001, the child was again removed from the mother’s custody after OCS received a report of marks and bruises on the child’s body. The child reported that she had been handcuffed after she had wet on herself.

The child was examined by another pediatrician at Earl K. Long Pediatric Clinic, Dr. Charmaine Venters, who found deep abrasions around both ankles. Additionally, she testified that the child suffered from bruises around her ankles and wrists, healed scars, superficial marks, and superficial belt marks on her thighs and buttocks. Dr. Venters also noted the child was missing a tooth, which was developmentally unusual for a three-year old.

1 (¡Dr. Venters concluded that the child had suffered non-accidental trauma, explaining that the marks were consistent with a rope, belt, or handcuffs having been tied around the ankles and wrists. She testified that some of the marks on the child’s body were administered by a belt, describing how the entire belt impression was evident from the child’s body. According to Dr. Venters, the marks and bruises on the child’s body were not as a result of normal activity for a three-year-old child. She concluded that the child was at risk of further physical abuse in the mother’s custody.

Although OCS requested custody of the child after the July 2001 incident, it was denied. In September 2001, the mother and OCS reached an agreement allowing custody to continue with the mother supervised by OCS. Additional protective orders required the child be placed in Head Start at Southern University. The mother was to inform the school of any reason for the child’s absence and, in the event the child missed more than two days, the mother was required to present with a doctor’s excuse. One-weekend monthly visitation with the child’s great-grandmother was ordered. The trial court also ordered the mother to maintain monthly contact with OCS and to attend individual counseling. The family, including the great-grandmother, the mother’s boyfriend, and the child’s two siblings, was required to submit to evaluations by the LSU Family Assessment Team. This arrangement remained in effect until March 2002, when OCS’s supervision ended in accordance with the terms of the agreement.

In February 2003, the child, who was then four years old, was brought by a family member to the emergency room at Earl K. Long with a bruised, black eye, a swollen stomach, and multiple bruises and marks over her body. The child’s body _[¿was swollen and full of scars, both healed and unhealed, which appeared to have been belt marks.

According to Earl K. Long pediatrician Dr. Michael Christner, the child advised him that she had been whipped for stealing peanut butter and bread from the kitchen at her mother’s home. The child also stated that she had been hit in the eye with a belt for having consumed Dimetapp medicine, explaining that she had been hungry and wanted something to eat. Apparently, no medical treatment had been sought for the child at the time it was discovered she had consumed the medicine. Dr. Christner found the child’s injuries to be consistent with her explanation and concluded it was not safe for the child to return to the mother’s home. Concerned about the child’s protuberant belly, which he indicated was not fat, and having noted an enlarged liver, Dr. Christner recommended additional medical treatment, opining that the child was suffering from mid-mild, chronic malnutrition.

The child was subsequently treated at the Children at Risk Evaluation (CARE) Center at Children’s Hospital. A review of the child’s Earl K. Long medical record indicated that the child had advised that on occasion she slept on the bathroom floor because the mother did not trust'the child to abstain from eating food in the middle of the night; the mother whipped her and turned hot water on in her shower; the mother had kicked the child into a wall when the child had not vacuumed correctly; the child slept in a cupboard; and the child stayed in a closet until the other children returned to the house.

CARE Center Medical Director and supervising physician, Dr. Scott Anthony Benton, testified that the pattern-shaped scars on the child’s body were inflicted trauma, i.e., neither accidental nor self-inflicted. Dr. Benton stated that CARE IsCenter’s physical findings were consistent with the child’s explanation of how she had received many of the injuries. The CARE Center concluded that there was definitive physical abuse and found that the child’s explanation was indicative of neglect. Viewing photos he had taken of the child upon her arrival to the CARE Center, Dr. Benton stated that five days after her initial hospitalization at Earl K. Long, the child still was clearly not normal and warranted immediate medical attention. That her mother did not seek medical attention to address the child’s obvious abnormal physical condition constituted medical neglect in Dr. Benton’s opinion. If the child were returned to the mother, there was a high risk for further abuse according to the CARE Center Medical Director and, thus, it was recommended that the child be protected by placing her in a safe environment.

Dr. Benton reviewed the child’s medical history and agreed with the medical opinions of Drs. Despinasse, Venters, and Christner that the child had been physically abused. Dr. Benton explained that the mother, who had been provided extensive services, including, individual and parental counseling by the time of the July 2001 incident,,was administering physical abuse as a result of premeditated motives rather than reacting .from an impulsive control disorder. The escalation of physical abuse by the -mother subsequent to her participation in services specifically fashioned to address the impulsive reaction to the child heightened the CARE Center’s concern for the child’s safety when in the mother’s custody. After the third incident in February 2003, Dr. Benton concluded that the prior interventions by OCS had been unsuccessful. He stated that the abuse this child suffered was as “severe as it gets short of actually killing somebody.”

| flBased on the extensive testimonial evidence, including that which we- have highlighted, we find no manifest error in the trial court’s finding that the mother is guilty of physically abusing and medically neglecting the child in a manner that constitutes extreme abuse, cruel and inhuman treatment, and has been life threatening, disabling, and injurious—physically and psychologically—to the child. The testimony of the medical physicians who treated the child, the OWC employees who monitored and supervised the family since the first allegation of abuse was made in June 2000, and family members, including that of the mother and her husband, is clear and convincing evidence sufficient to support the trial court’s finding.

Although the mother urges that the testimony of social worker, Celia Mellad, who has counseled the mother since May 2003, proves that she has reformed and therefore is no longer a threat to the child, we cannot say the trial court erred in discounting Mellad’s testimony and giving greater weight to the testimony of the child’s treating physicians and the other witnesses. We note that despite the mother’s earlier appearance of reformation subsequent to the June 2000 and July 2001 incidents of abuse, the child was again abused at her hands in February 2003. And Mellad’s testimony of the mother’s reformation was circumspect. Several times, Mellad underscored that her recommendation that the mother’s parental rights not be terminated was dependent on implementation of multiple safeguards and the mother’s commitment to change. This equivocal testimony cannot usurp our duty to affirm the trial court’s factual findings. See Stobart v. State Through Dep’t of Transp. and Dev., 618 So.2d 880, 881-82 (La.1993).

ImThe mother urges that the trial court’s failure to expressly state that it found termination of the mother’s parental rights to be in the best interest of the child warrants a reversal.

Where the grounds for termination are proved, then ordinarily termination will be in the best interest of the child. But even after a ground for termination under La. Ch.C. art. 1015 has been proven, the court may, in an exceptional case, refuse to terminate based on a best interest determination. State ex rel. J.T., 38,149 p. 12 (La.App. 2d Cir.12/17/03), 862 So.2d 1130, 1137.

Implicit in the trial court’s judgment terminating the mother’s parental rights is a finding that termination was in the best interest of the child. Additionally, we note the trial court found that (1) the mother’s “treatment of her daughter was life threatening, chronic and has resulted in gravely disabling disfigurement” and (2) “there is no reasonable expectation that [the mother] has been sufficiently reformed to insure [the child’s] safety.” From these findings, we can glean that the trial court determined reunification of the child with her mother was not in the child’s best interest. Moreover, each medical physician who treated the child recommended removal of the child from the mother’s home for the child’s safety. The record clearly and convincingly demonstrates that it was in the best interest of the child to terminate the mother’s parental rights. The trial court’s conclusion is supported by the evidence and, therefore, not manifestly erroneous.

For these reasons, we find no error in the trial court’s termination of the mother’s parental rights based on La. Ch.C. art. 1015(3)(i).

11 TERMINATION OF THE FATHER’S PARENTAL RIGHTS

The petition for termination of the father’s parental rights was asserted on the ground that at least one year had elapsed since the child had been removed from the father’s custody pursuant to a court order; there had been no substantial parental compliance with a case plan for services, which had been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there was no reasonable expectation of significant improvement in the father’s condition or conduct in the near future, considering the child’s age and her need for a safe, stable, and permanent home. See La. Ch.C. art. 1015(5). We further find that termination of the father’s parental rights is in the best interest of the child. See La. Ch.C. art. 1037.

The substantive elements proving lack of substantial parental compliance with a court-approved case plan are enumerated in La. Ch.C. art. 1036 C(6), which provides that La. Ch.C. art. 1015(5) may be evidenced by “[t]he parent’s lack of substantial improvement in redressing the problems preventing reunification.” See also La. Ch.C. art. 1036, Official Comment c (noting this is a relatively new provision that was meant to clarify vague terms such as “no significant, substantial indication of reformation”).

The substantive elements proving lack of a reasonable expectation of significant improvement in the near future are enumerated in La. Ch.C. art. 1036 D(2), which states that this may be evidenced by “[a] pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.”

I^In its dismissal of the petition for termination of the father’s parental rights, the trial court stated:

Because [the father] was systematically not included in [all] case plans, it [cannot] be said that he failed to substantially comply therewith and there has been no earlier interventions,- therefore it [cannot] be said that had there been so, no substantial improvement would have occurred.
Hence, it is impossible for [the father] to attend Family Team Conferences, and case plan meetings if he was incarcerated a large percentage of the time and OCS failed to arrange for his transport thereto. Barring an opportunity to fully participate in [the child’s] case plan it [cannot] be said that ... there is no reasonable expectation of significant improvement.
Therefore, the Court finds that [the father] could not have substantially complied with a case plan for services because he was systematically excluded from those proceedings.

OCS introduced into evidence a Family Team Conference Case Plan, dated May 16, 2003, which was signed by the father. On August 7, 2003, the trial court signed a judgment approving the case plan as it related to the father and ordering compliance. The father neither objected to nor appealed the judgment.

The onus was on the father — who was directly affected by the case plan — to object if he deemed the plan to be unreasonable or if it failed to meet his particular needs. See Mitchell, 2001-2128 at p. 14, 800 So.2d at 818. Moreover, because the trial court approved the plan, the father was expressly given the right to appeal. La. Ch.C. art. 700 B; see also La. Ch.C. art. 710 C (providing right to appeal permanent placement plan). Mitchell, 2001-2128 at p. 14, 800 So.2d at 818. The trial court cannot subsequently render a decision collaterally attacking the August 7, 2003 judgment, which approved the case plan, because it found the father was “systematically excluded” from participation. See Mitchell, 2001-2128 at pp. 14-15,113800 So.2d at 818. Therefore, we find that the collateral attack of the August 7, 2003 judgment interdicted the fact finding process.

When a legal error interdicts the fact finding process, the manifest error standard no longer applies. If the record is otherwise complete, the reviewing court should conduct a de novo review. Landry v. Bellanger, 2002-1443, p. 15 (La.5/20/03), 851 So.2d 943, 954.

The record establishes that when the child was born, the father had recently been released from prison after serving a four-year term for indecent behavior with a minor. By the time of his termination trial, he was again incarcerated for violation of his parole after having served a sentence for subsequent convictions of, according to his testimony, contributing to the delinquency of a minor and having had relations with a juvenile.

When OCS initially intervened in June 2000, the mother was unable to provide information on the whereabouts of the father. The father contacted OCS in September 2000, advising that he could not keep the child or offer an alternative plan for the child’s placement. Although he was advised of an upcoming Family Team Conference, he failed to attend. In March 2003, subsequent to OCS’s February 2003 intervention, the father contacted OCS and, in May 2003, attended a Family Team Conference at which a case plan was established. Among the terms of the May 16, 2003 case plan, approved by the trial court on August 7, 2003, was the stipulation that the father would provide financial support for his child. This required the father to maintain suitable employment and to contribute to the child’s financial support. Another stipulation of the May 16, 2003 case plan was that the father would provide a permanent plan for the child within 15 months and that he |14would give OCS relative resources for an alternative placement. The father was also required under the terms of the case plan to keep OCS aware of his residence in the event that he moved.

Since he agreed to the May 16, 2003 case plan, the father testified that he has attempted to maintain employment. Although he stated that he maintained a job for about a year, OCS case worker, Lynn Farris, was unable to substantiate this employment. The father could not state how much he had earned, but indicated he made $200 a week at one point in time. While he indicated that he had maintained some form of employment from May 2003 until May 2004, he admitted that he never paid any child support. Since his release from prison in January 2003, he has been restricted from living with a minor as a condition of parole. He resides with his girlfriend and relies on her to lend him financial help in between employment. The father has not provided OCS with the names of any relatives for alternative placement of the child, although he apparently has 22 siblings.

While the father has made himself available to OCS, he has not advised of or had a consistent residence. The original address he provided to OCS was not correct; mailings were returned undelivered. When he moved in with his girlfriend, he did not advise OCS of the new address. When arrested for a violation of his parole some time subsequent to the Family Team Conference but before the termination trial, the father failed to advise OCS of the change in his living arrangements.

Based on our de novo review of the evidence, we find the father failed to substantially comply with the case plan and that there is no reasonable expectation of substantial improvement. He has not achieved permanency for his child or ^provided an alternative living arrangement other than that arranged by OCS’s custody. He has not maintained employment or provided financial support for his child. He has spent most of the child’s life in prison and, while nothing in the record establishes that he has harmed the child physically, his convictions are a result of inappropriate sexual conduct with a minor.

We find that the father’s pattern of repeated incarceration renders him unable to care for the immediate and continuing physical and emotional needs of the child for an extended period of time and that there is no a reasonable expectation of significant improvement in the near future. Accordingly, we order termination of the father’s parental rights.

DECREE

For these reasons, that portion of the judgment, which dismisses OCS’s petition to terminate the parental rights of the father, GD, is reversed. In all other respects, including the termination of the parental rights of the mother, DMJ, the judgment is affirmed. Judgment is rendered, terminating the parental rights of GD and certifying the child, DM, free and eligible for adoption. See La. Ch.C. art. 1037 F. Appeal costs are assessed one-half to DMJ and one-half to GD.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . The mother of the minor child, DM, is DMJ, and the father is GD, all of whom we identify by their respective initials to protect the minor child. See La. R.S. 46:1844 W(l)(a).


source: Caselaw Access Project

author: CARTER, C.J. DOWNING, J.

license: Public Domain

text:
    STATE of Louisiana v. Daniel BONIT.
    No. 2005 KA 0795.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      J. Phil Haney, District Attorney, Franklin, for the State of Louisiana.
    Holli Herrle-Castillo, Marrero, for Defendant/Appellee, Daniel F. Bonit.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   CARTER, C.J.

| ¡/The defendant, Daniel Bonit, was charged by bill of information with one count of armed robbery, a violation of LSA-R.S. 14:64, and with using a firearm during the commission of an armed robbery, a violation of LSA-R.S. 14:64.3. He pled not guilty. Following a jury trial, he was found guilty of armed robbery, with the jury also finding that he had used a firearm during the commission of an armed robbery. Thereafter, the State filed a habitual offender bill of information against the defendant, alleging he was a second felony habitual offender. He was sentenced to forty years at hard labor without benefit of parole, probation, or suspension of sentence and an additional five years at hard labor without benefit of parole, probation, or suspension of sentence to run consecutive to the forty-year sentence. Following a habitual offender hearing, he was adjudged a second felony habitual offender, the prior sentence imposed was vacated, and he was sentenced to sixty-five years at hard labor without benefit of parole, probation, or suspension of sentence and an additional five years to run consecutive to the sixty-five year sentence. He now appeals, designating three assignments of error. We affirm the conviction, the habitual offender adjudication, and the sentence.

FACTS

The victim, Keith Hebert, managed a combination Cracker Barrel/Church’s fried chicken store in Patterson, Louisiana. The defendant was a former cook at the Church’s fried chicken store.

hOn August 20, 2003, the victim attempted to make a deposit of approximately $4,500 at his local branch of the Whitney Bank. He parked his vehicle and walked towards the bank with a bag containing the deposit money. Before he reached the bank building, however, he heard someone saying, “[H]ey, hey.” The victim also saw the person’s reflection on the glass of the bank building as the person came up behind him. When the victim turned around, the robber was pointing a revolver at him. The robber took the deposit money from the victim and fled in a car with another person. The victim was unable to identify the robber because he wore gloves, sunglasses, a mask, and a coat with a hood that covered his head.

On August 20, 2003, at approximately 9:50 a.m., Pamela Taylor, an employee of Missy’s Supermarket located near the Whitney Bank, saw a man wearing a ski mask and carrying a bag of money get into a champagne colored Grand Am, which then drove away quickly. Taylor followed the vehicle for a short while, but lost sight of it in Bayou Vista.

Patterson Police Department Detective Gary Stevenson testified at trial that a gray colored (Pontiac) Grand Am was visible on the surveillance videotape of the robbery.

Donald Nicholas, III, also testified at trial. He was serving a fifteen-year sentence for driving the vehicle used in the robbery. He indicated the defendant had been the gunman in the robbery.

William Christopher Closson had a conversation with the defendant on August 19, 2003, the day before the robbery. The defendant indicated to Closson he was going to rob the store and “throw out the dude at the bank.”

Ashley Nichole Rebardi of Pro Auto Sales and Rentals rented a silver Pontiac Grand Am to the defendant on August 19, 2003. The vehicle was supposed to be ^returned on August 21, 2003. The defendant, however, returned the vehicle at approximately 11:20 a.m. on August 20, 2003. It had broken glass on the driver’s side, and the defendant paid for the damage with cash.

On August 20, 2003, in a statement to Detective Stevenson, the defendant stated that he, Donald Nicholas, and William Closson had gathered together previously to “rob the store.” The defendant claimed he was disappointed with how much money he was earning at Church’s chicken and was trying to get extra money to take care of his kids. On that earlier occasion, the defendant had rented the car to be used in the robbery, but when the men got to the bank to commit the robbery, the deposit had already been made, so they decided to commit the robbery another time.

In regard to the instant offense, on August 20, 2003, the defendant stated that he had been the driver and Donald Nicholas had been the gunman during the robbery. In a statement given to Detective Stevenson on August 25, 2003, however, the defendant confessed that he had been the gunman and Nicholas had been the driver during the robbery. He stated that the window on the rental car was damaged while he was lying on the back seat of the vehicle waiting for someone from Cracker Barrel to arrive at the bank with the store’s deposit. The defendant accidentally fired his gun while looking to see if anyone had arrived with the deposit.

The police recovered $3,982 in cash and a .38 caliber revolver from the Plantation Inn, room 116, in Bayou Vista. The key to the motel room was recovered from the defendant’s pocket.

| .MOTION TO HIRE PRIVATE COUNSEL; MOTION FOR SELF-REPRESENTATION

In assignment of error number 1, the defendant contends the trial court erred in denying his motion to hire private counsel. In the alternative, the defendant contends the trial court erred in failing to allow him to represent himself. '

At each stage of the proceedings, every person is entitled to assistance of counsel of his choice or to counsel appointed by the court if he is indigent and charged with an offense punishable by imprisonment. LSA-Const. art. I, § 13. The Sixth Amendment to the United States Constitution likewise carries such a guarantee. Although the Sixth Amendment primarily guarantees the right to effective counsel, it also includes the right to select and be represented by counsel of choice. However, a criminal defendant’s right to the counsel of his choice is not absolute. State v. Brown, 03-0897 (La.4/12/05), 907 So.2d 1, 11-12.

An indigent defendant does not have the right to have a particular attorney appointed to represent him. An indigent’s right to choose his counsel only extends so far as to allow the accused to retain the attorney of his choice, if he can manage to do so, but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. Brown, 907 So.2d at 12.

Both the Louisiana and United States Constitutions guarantee a criminal defendant’s right to the assistance of counsel. Nevertheless, a defendant may elect to represent himself if the choice is “knowingly and intelligently made” and the assertion of the right is “clear and unequivocal.” U.S. Const. amend. VI; LSA-Const. art. I, § 13; Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); Brown, 907 So.2d at 21-22.

Un Faretta, the United States Supreme Court recognized that a trial court may not force a lawyer upon a defendant when the defendant insists he wants to conduct his own defense and voluntarily and intelligently elects to proceed without counsel. However, he must ask clearly and unequivocally to proceed pro se and he must also make his request in a timely manner. Faretta, 95 S.Ct. at 2541. Further, a defendant must be made aware of the dangers and disadvantages of self-representation so that the record demonstrates that “ ‘he knows what he is doing and his choice is made with his eyes open.”’ Id., 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)). Faretta made clear that the accused’s “technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself.” Id., 95 S.Ct. at 2541. In State v. Santos, the Louisiana Supreme Court held that where a trial judge is confronted with an accused’s unequivocal request to represent himself, the judge need determine only whether the accused is competent to waive counsel and is “voluntarily exercising his informed free will.” State v. Santos, 99-1897 (La.9/15/00), 770 So.2d 319, 321 (quoting Faretta, 95 S.Ct. at 2541); Brown, 907 So.2d at 22.

In McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), the United States Supreme Court confirmed the right of a criminal defendant to represent him or herself pro se while allowing the trial court to appoint standby counsel “to explain and enforce basic rules of courtroom protocol.” McKaskle, 104 S.Ct. at 954. The Court further found that standby counsel may participate in the trial as long as his or her participation does not “seriously [undermine the defendant’s] appearance before the jury in the status of one representing himself.” Id., 104 S.Ct. at 956. Brown, 907 So.2d at 22.

|7The defendant was arrested for the instant offense on August 20, 2003. He was officially charged by bill of information filed September 22, 2003. At his arraignment on October 22, 2003, he was advised of his right to an attorney, either retained or, if he could not afford to retain an attorney, court-appointed, and informed the court that he had no attorney, no funds with which to hire an attorney, and desired a court-appointed attorney. The court referred the case to the indigent defender for the appointment of counsel, and attorney Gregory P. Aucoin of the indigent defender’s office stood with the defendant for arraignment. Following arraignment and prior to voir dire, Aucoin appeared in court on behalf of the defendant on January 12, 2004 (pre-trial conference), February 27, 2004 (motion to suppress), and March 4, 2004 (State’s motion for pre-trial determination of admissibility of the defendant’s statement).

On April 19, 2004, the defendant filed a pro se motion to dismiss counsel. In the motion, the defendant alleged the indigent defender’s office represented both him and his co-conspirator, Donald Nicholas, who would be a witness against the defendant.

Aucoin also appeared on behalf of the defendant for voir dire on April 26, 2004. Outside of the presence of the prospective jurors, the defendant advised the court that he had not heard anything concerning his motion to dismiss counsel. The court offered the State and defense counsel an opportunity to respond to the motion. The State indicated Nicholas was in another section of court, was represented by a different attorney assigned by the indigent defender, and had already pled guilty. Aucoin indicated he had had no dealings with Nicholas’s attorney (Colwart) concerning Nicholas’s case, had not seen Nicholas’s file, and did not share an office with Colwart. Aucoin did not know whether or not Colwart had access to the defendant’s file in the | smdigent defender’s office. The court indicated that it had had no dealings whatsoever with the case against Nicholas and had had no contact with Colwart. The court found there was no conflict of interest and denied the motion to dismiss counsel.

The defendant then stated he desired to hire his own attorney.

The court stated the defendant had had an opportunity to hire his own counsel, now it was the day for trial, and the defendant had waited too long to move to hire his own attorney.

The defendant then stated:

Well, what about representing myself, I would have to be given enough time to look over my papers and get myself prepared for that. I don’t think he’s doing me any help. He’s doing more harm than help being on my case.

The court told the defendant it would not continue his case because everything was in place to conduct the jury trial the defendant had requested.

The court stated it was trial day, the defendant had always had a right to hire his own lawyer, but chose not to do so, and thus, the indigent defender had been appointed to represent him. The court reiterated it was not going to dismiss the indigent defender from representing the defendant. The court advised the defendant that he also had the right to represent himself, but if he chose to do that, the court would need to ask him some questions concerning his ability to represent himself.

The defendant asked if he could “at least” act as co-counsel for himself with the right to “speak up and cross-exam everything.” The court asked the defendant if he was trained as a lawyer, and the defendant indicated he was not. The defendant also indicated he had never studied the law or criminal procedure. The court advised the defendant he had to conduct himself properly in court; he had a right to represent himself, to call witnesses to testify on his behalf, and to ask those witnesses questions; | nthe district attorney would follow the rules of criminal procedure and evidence, and the defendant would also be expected to follow those rules; if the defendant attempted to do something the district attorney felt was improper under the rules of law, evidence, or procedure, he would object, and if the court agreed, that objection would be sustained; by the same token, if the district attorney failed to comply with the rules of evidence or procedure, and the defense objected, then the court would rule. The court pointed out to the defendant, however, the gentlemen with the district attorney’s office had been prosecuting cases for quite some time and knew the rules, while he did not.

The court advised the defendant that if he chose to represent himself he would be permitted to do so, but would have to follow rules he really did not know; and Aucoin, through the indigent defender, would be appointed to assist him during trial and would be available to him to advise him on the rules of evidence, procedure, and law. The court cautioned the defendant, however, that generally speaking, persons who were unfamiliar with the law, criminal law, procedure and evidence, did themselves a disservice by representing themselves, but the decision was his to make.

The defendant responded, “I’m not quite sure I want to do that right now.”

The court recommended to the defendant that Aucoin represent him, and as the case progressed, that the defendant discuss issues with him. The defendant thanked the court.

The trial court correctly denied the motion to hire private counsel. The day of trial was too late of a stage for the defendant to assert his right to hire private counsel. Granting of the motion would have obstructed the orderly procedure of the trial court. There was also no error in the trial court’s alleged failure to permit the defendant to represent himself. The defendant’s request to represent himself was not clear and |inunequivocal. After the court duly advised the defendant of the dangers and disadvantages of self-representation, he withdrew his request to represent himself.

This assignment of error is without merit.

REGISTRATION INVOICE FROM THE PLANTATION INN

In assignment of error number 2, the defendant contends the court erred in admitting the registration invoice from the Plantation Inn. He argues Detective Washington had no personal knowledge as to who filled out the document and did not observe the person allegedly logging the defendant as the renter of room 116.

LSA-C.E. art. 803 provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted, by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term “business” as used .in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

To be admitted under a business records exception, the person who actually prepared the documents need not have testified, so long as other circumstantial evidence and testimony' suggests their trustworthiness. State v. Smith, 04-0800 (La.App. 1 Cir. 12/17/04), 897 So.2d 710, 715-16. Even so, the language of LSA-C.E. art. 803(6) establishes criteria that must be met before evidence can be admitted under this hearsay exception. Smith, 897 So.2d at 716.

Patterson Police Department Detective Rogers Washington testified at trial. He indicated he was able to ascertain that the defendant had rented Plantation Inn, room 116 on August 19 and August 20, 2003. He also indicated he was able to ascertain certain documents kept in the normal course of business at Plantation Inn identifying the defendant as the renter of room 116. When the State attempted to show Detective Washington State Exhibit 11, the defense objected on the basis of inadequate foundation. The State indicated the registration at issue was a business record of Plantation Inn. The trial court overruled the objection, citing the fact that there had been a lot of testimony that the defendant was registered.

State Exhibit #11 was a computerized invoice/receipt for Plantation Inn, room 116, reflecting that the defendant had paid rental on room 116 on August 19 and August 20, 2003. The invoice was not properly admitted into evidence under LSA-C.E. art. 803(6). No witness with ■personal knowledge testified as to how State Exhibit # 11 was generated or that it was identical to the record contained in the computer. See Smith, 897 So.2d at 716.

However, error in the admission of State Exhibit # 11 was harmless in this case. Confrontation errors are subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Van Arsdall, 106 S.Ct. at 1438. Factors to be considered by the reviewing court include “the importance of the witness’ testimony in [ 12the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Van Arsdall, 106 S.Ct. at 1438; State v. Wille, 559 So.2d 1321, 1332 (La.1990), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992). The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, 817, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

State Exhibit #11 was cumulative of other evidence at trial in the strong case against the defendant. In his confession, the defendant indicated he went back to Plantation Inn, room 116 after renting the car to be used in the robbery and returned to the Plantation Inn after the robbery. Detective Washington identified State Exhibit #25 as the weekly rates from Pro Auto Sales. That exhibit included a copy of the defendant’s driver’s license and indicated his room number was “116.” Donald Nicholas, III, the driver of the car used in the robbery, indicated that he and the defendant went back to the Plantation Inn after the robbery and after he (Nicholas) had picked up the defendant in a cab after the defendant returned the car to the car rental place. Florita Webb, a dispatcher at Pat’s Cab, indicated that on August 20, 2003, .there was a call from Plantation Inn, room 116, to pick someone up at Pro Auto Sales. Before the taxicab driver left Pro Auto Sales, she indicated she also had someone else and was returning to Plantation Inn. Patterson Police Department Sergeant James Carinhas identified State Exhibit # 21 as the key to Plantation Inn, room 116, taken from the defendant’s person by Officer Declouet. Patterson Police Department Officer |1sDaniel Paul De-clouet indicated, on August 20, 2003, he was involved in the investigation of the armed robbery, and that investigation led to Plantation Inn, room 116. At Plantation Inn, room 116, Officer Declouet arrested the defendant and recovered the key to Plantation Inn, room 116, from the defendant’s pocket. Accordingly, the guilty verdict rendered in this particular trial was surely unattributable to the error' in the admission of State Exhibit # 11.

This assignment of error is without merit.

LEGALITY OF SENTENCE

In assignment of error number 3, the defendant contends the trial court imposed an illegal sentence. He argues the applicable sentence under the habitual offender law replaces the sentence for the underlying crime under LSA-R.S. 14:64 and LSA-R.S. 14:64.3, citing State v. White, 39,634 (La.App. 2 Cir. 6/16/05), 907 So.2d 180.

LSAR.S. 14:64 provides:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation,' while armed with a dangerous weapon.
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

LSAR.S. 14:64.3, in pertinent part, provides:

A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.

The defendant in White was convicted of armed robbery with the use of a firearm, a violation of LSA-R.S. 14:64 and LSA-R.S. 14:64.3, and was subsequently 114ad.judicated a fifth felony habitual offender with two prior convictions for crimes of violence. White, 907 So.2d at 181. He was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence and an additional consecutive sentence of five years at hard labor without benefit of parole, probation, or suspension of sentence for the conviction of armed robbery with a firearm. Id.

On appeal, two members of the appellate panel in White noted as patent error the trial court’s imposition of the additional five-year sentence under LSA-R.S. 14:64.3 and ordered the additional five-year term deleted as illegal. White, 907 So.2d at 183. These judges viewed the crime of armed robbery with the use of a firearm as a more serious . form of armed robbery. White, 907 So.2d at 183. They reasoned the defendant’s adjudication under the habitual offender law subjected him to the penalty under that provision only, with the sentence under the habitual offender law replacing the sentence for the underlying crime under La. R.S. 14:64.3. White, 907 So.2d at 183-84.

Judge Williams dissented from the error patent review, finding the conclusion that the defendant’s habitual offender sentence replaced his mandatory sentence under LSA-R.S. 14:64.3 erroneous, unsupported by authority, and contrary to the decisions in State v. Williams, 34,369 (La.App. 2 Cir. 2/28/01), 781 So.2d 673 and State v. Lewis, 03-1234 (La.App. 4 Cir. 6/2/04), 876 So.2d 912, writ denied, 04-1855 (La.11/24/04), 888 So.2d 229. White, 907 So.2d at 184-85. See also State v. Williams, 34,370 (La.App. 2 Cir. 2/28/01), 781 So.2d 682, 691; State v. Green, 38,335 (La.App. 2 Cir. 5/12/04), 873 So.2d 889, 899, writ denied, 04-1795 (La.11/24/04), 888 So.2d 227.

We do not find the reasoning of the majority decision in White persuasive, and thus, decline to follow that decision. It is not a crime to be a habitual offender. The 11Rstatute increases the sentence for a recidivist. The penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute. State v. Bruins, 407 So.2d 685, 687 (La.1981).

The “reference statute” in the instant case was both LSA-R.S. 14:64 and LSA-R.S. 14:64.3. Under LSA-R.S. 14:64.3, because the dangerous weapon used in the commission of the armed robbery was a firearm, the defendant’s sentence was subject to an additional period of five years without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentence imposed under the provisions of R.S. 14:64 as enhanced by the habitual offender law.

This assignment of error is without merit.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

DOWNING, J., concurs and assigns reasons.

DOWNING, J.

^Because Mr. Bonit withdrew his request to represent himself and because he does not raise the issue of attorney conflict of interest on appeal, I concur with the majority opinion. However, Mr. Bonit has a right to conflict-free counsel, State v. Cisco, 01-2732, passim (La.12/3/03), 861 So.2d 118, passim, and it is unclear from the record that this right was adequately protected.

In State v. McNeal, 99-0070 (La.1/31/92), 594 So.2d 876, the Louisiana Supreme Court reversed a ruling of the Fourth Circuit that held attorneys employed by an indigent defender board are not members of a law firm such that they would be prohibited by Rules of Professional Conduct, Rule 1.10 from representing clients with conflicting interests. In his dissent to the Fourth Circuit opinion, Judge Plotkin clearly explained why employees of an indigent defender board may well have a conflict of interest when they represent defendants with potentially adverse positions. McNeal, 91-2750, 593 So.2d at 730-31. In explaining that attorneys working for an Indigent Defender Board operate as law firm under the meaning of Rule 1.10, Judge Plotkin observed that, “[t]he defendant is entitled to ^misrepresentation that does not create the slightest risk that his tactics or evidence can be compromised by inadvertence or intentional disclosure.” Id.

Such risk was not obviated in the matter before us where counsel stated that he did not know if counsel for a co-defendant had access to Mr. Bonit’s file. It also was not obviated for the reasons that Judge Plot-kin explained. Id. Further, it is not clear from the record whether both counsel were employed by the Indigent Defender Board or whether one or both were hired contract attorneys.

Judge Plotkin explained the statutory scheme for avoiding such conflicts. He points out that La. R.S. 15:145 B allows the appointment of outside counsel in the event of a potential conflict. Id.

For these reasons, based on the information available from the record, I suggest that the trial court was erroneous in its finding that there was no conflict of interest between attorneys in the matter before us.

      . Donald Nicholas was also charged with the same offense on the bill of information.

      . The predicate offense was set forth as the defendant’s May 14, 2001 conviction, under Thirty-first Judicial District Court docket # CR-953-00-2, of possession with intent to distribute marijuana.

      . We reference the trial transcript for the spelling of Nicholas's name.

      . State v. McNeal, 91-2750 (La.App. 4 Cir. 1/8/92), 593 So.2d 729.


author: GAIDRY, J.

text:
    Diane LABORDE v. ST. JAMES PLACE APARTMENTS, Money Hill Plantation, LLC and United National Group Insurance Company.
    No. 2005-CA-0007.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 15, 2006.

      Marti Tessier, Mandeville, Counsel for Plaintiff/Appellant Diane Laborde.
    Robert A. Redwine, New Orleans, Counsel for Defendants/Appellees St. James Place Apartments, Money Hill Plantation, LLC and United National Insurance Co.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

Lin this action for damages sustained by a tenant in a fall at an apartment complex, the trial court rendered judgment in favor of the plaintiff and awarded damages, but found plaintiff to be fifty percent at fault. Plaintiff appealed, and defendants answered the appeal. For the following reasons, we affirm.

DISCUSSION

Plaintiff, Diane LaBorde, moved into St. James Place Apartments with her two minor children in 1996. The apartment complex consisted of multiple apartment buildings with a common area between the buildings which was grassy and wooded. According to Mark Cardella, who performed lawn maintenance at the apartment complex from 1992 until March 1999, the common area contained tree roots and “quite a few” sawed-off tree stumps which protruded a few inches from holes in the ground. The same year they moved in, LaBorde’s daughter told her that she had tripped and fallen in the common area due to a stump sticking out of a hole in the ground.' LaBorde complained about the stump to the apartment complex’s on-site manager, Margaret Kern, and assumed that it would be taken care of.

On May 27, 1999, LaBorde discovered a cat tearing into garbage bags on her porch. She had had problems with cats getting into her garbage in the past and became angry. She began chasing the cat through the common area in the hopes that it would leave her garbage alone in the future. While running after the cat, LaBorde’s foot hit a stump protruding from a hole in the ground and she fell, injuring her left ankle. LaBorde crawled back to her apartment and called Kern, who brought her to the hospital. X-rays were performed, and LaBordé was diagnosed with a sprained ankle. She was put into a soft cast and instructed to follow-up with an orthopedic specialist.

IsLaBorde began treating with Dr. Mark Hontas, an orthopedist, in June 1999. She was put into a walking cast and given physical therapy. An MRI revealed a bone fragment in her foot, for which surgery was performed in December 2000. She was briefly confined to a wheelchair after the surgery, then placed in a cast, and eventually underwent eight more weeks of physical therapy. Dr. Hontas discharged LaBorde in July 2001 and diagnosed her with a five percent total post7 surgery disability. He also indicated that she would likely develop some degree of post-traumatic degenerative arthritis of the ankle. At the time of trial, LaBorde claimed to still suffer from ankle problems, and she wears orthopedic shoes and an ankle sleeve for this reason.

LaBorde filed suit against St. James Place Apartments, its owner, Money Hill Plantation, and their insurer, United National Group Insurance Company (referred to collectively as “Defendants”). LaBorde stipulated that her damages were less than $50,000.00, and a bench trial was held. Kern, who was no longer employed by the apartment complex, was subpoenaed to testify by LaBorde, but did not appear due to health problems. When LaBorde attempted to testify at trial as to what Kern told her about the stump and hole when she complained about them in 1996, the court sustained the defendants’ hearsay objection. The matter was held open for some time to allow LaBorde to depose Kern, but LaBorde’s attorney eventually rested her case without Kern’s testimony and instead proffered LaBorde’s excluded testimony.

The court rendered judgment in favor of LaBorde, awarding $20,000.00 in general damages and $18,396.93 in special damages. The trial judge also found LaBorde to be fifty percent at fault in causing her injuries.

|4The trial judge gave the following oral reasons for his ruling:

The Court ... finds that the property was defective because it had a condition which caused an unreasonable risk of harm to the plaintiff[.][T]he defendant [had] been put on notice of ... the hole by the plaintiff after her daughter tripped and fell prior to this accident.
Moreover, there are no sidewalks [through] the common areas of the apartment complex!,] so it is foreseeable by the lessor that tenants would walk through the wooded areas and grassy areas to travel through on their way to a neighbor’s apartment. In fact, Ms. La-Borde testified that residents commonly walked through the wooded and grassy areas and that children also played in there. Accordingly, the lessor has a duty to maintain those areas in a safe condition[,][t]he cost of which would be minimal compared to the risk of harm to its lessees[,] and it failed to do so.
Finally, the Court finds that the defective conditions of the premises caused the injuries to the plaintiff. The court, however, would also apply the rule of law that pedestrians must face "some responsibility for avoiding injury and should see that which ... should be seen by a reasonable ... person. The Court finds that although she testified that she was watching where she was going, plaintiff established by her own testimony that she was not entirely attentive .... She stated that she had had it with the cat and was very angry [as] she set out to chase the cat across the wooded area.
Accordingly, the Court assigns fifty percent liability to the defendants, fifty percent liability to the plaintiff.

LaBorde appealed from the trial court’s judgment, asserting that the court erred in assigning comparative fault, in awarding only $20,000.00 in general damages, and in sustaining defendants’ hearsay objection. Defendants answered the appeal, and asserted that the trial court had erred in finding that they were liable for LaBorde’s injuries. Specifically, the defendants alleged that LaBorde had removed herself from the scope of the duty owed to her when she left the safety of the sidewalk or path and ran through a wooded area with high grass which was obviously not intended for pedestrian use; that the tree stump and hole, located in the tall grass off of a trail in the wooded common area of the apartment complex, did not pose an unreasonable risk of harm to a person using ordinary care under the | .¡circumstances; and that LaBorde did not exercise the ordinary care expected of a reasonably prudent person under the circumstances.

DISCUSSION

Comparative Fault

Like all factual findings, the standard of review of comparative fault allocations is that "of manifest error. Watson v. State Farm, Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985). The court" in Watson listed a number of factors to be considered in determining the portion of fault attributable to the parties, including the level of the risk; whether the behavior was inadvertent or done with awareness of the danger; the significance of what "was sought; the capacities of the parties; and any other extenuating circumstances. Watson, 469 So.2d at 974.

Considering the Watson factors in light of the-particular facts of this case as outlined above, we cannot say that the trial court committed manifest error in making its allocation. LaBorde knew that there had been a sawed-off stump and hole in the common area and that it was a danger to pedestrians, as her own daughter had fallen a few years prior and she had felt it necessary to report it to the apartment manager so that the hazard could be removed. While she may have believed that the apartment manager had had the stump cut out and the hole filled, the common area was still grassy and wooded and contained both tree roots and sawed-off stumps. LaBorde was understandably angry at the cat for tearing into her garbage, but a reasonably prudent adult would surely understand that it is more important to watch where one is running than to attempt to teach a cat a lesson. There is no merit to this assignment of error.

|fi Quantum

LaBorde next complains that the general damages award of $20,000.00 is abusively low. The discretion vested in the trier of fact in fashioning an award of general damages is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). While we might have made a higher award had we been sitting as trier of fact, after conducting a thorough review of the record we conclude that the $20,000.00 general damages award is not below that which a reasonable trier of fact could assess under the circumstances of this case.

Hearsay and the “Uncalled Witness Rule

LaBorde alleges on appeal that the trial court erred in excluding as hearsay La-Borde’s testimony regarding Kern’s statements to her. The excluded testimony included statements allegedly made by Kern both before and after the accident, and several statements were made after Kern ended her employment with defendants. LaBorde claims that Kern’s statements fall under one of the hearsay exceptions enumerated in- La.Code Evid. art. 801(D). Specifically, she cites the following provisions of the article:

D. Statements which are not hearsay!
A statement is not hearsay if:
(2) Personal, adoptive, and authorized admissions. The statement is offered against a party and is:
|7(a) His own statement, in either his individual or a representative capacity;
(3) Relational and privity admissions. The statement is offered against a party, and the statement is:
(a) A statement by an agent or employee of the party against whom it is offered, concerning a matter within the scope of his agency or employment, made during the existence of the relationship;

LaBorde also argues that the trial court erred in failing to apply the “uncalled witness rule.” According to the “uncalled witness rule,” when a party having control of a favorable witness fails to call them to testify, a presumption arises that the facts, as that party would have them, do not exist. Driscoll v. Stucker, 04-0589, pp. 18-19 (La.1/19/05), 893 So.2d 32, 47.

The first provision cited by La-Borde, La.Code Evid. article 801(D)(2)(a), is not applicable to this situation since Kern is not a party, and this article applies to a party’s own statements which are offered against him. Furthermore, while Kern’s statements made during her employment would be admissible under 801(D)(3)(a), anything she said to LaBorde during their telephone conversation after her employment was terminated would be inadmissible as hearsay. Finally, LaBorde asserts that the “uncalled witness rule” should have been applied, creating a presumption that the defendants did not call Kern to testify because her testimony would have been contrary to their version of the facts. Since Kern was no longer employed by defendants, we fail to see how she was under their “control” for purposes of the “uncalled witness rule.” However, regardless of the applicability of article 801(D)(3)(a) or the uncalled witness rule, there is nothing in the proffered testimony that would change the outcome of the|scase had it been allowed in. The trial court found that the defendants had notice of the stump and hole, that it constituted a dangerous condition, that it was foreseeable that residents of the complex would traverse the common areas of the property, and that defendants failed to fix the dangerous condition even though it would have been relatively inexpensive to do so. Kern’s statements would not have any effect on the findings of the court with which LaBorde is aggrieved, i.e., the amount of general damages awarded and the issue of comparative fault. The trial judge’s assignment of fifty percent fault to LaBorde is due to its finding that she failed to behave as a reasonably prudent pedestrian when she chased a eat across a wooded area. Nothing in the proffered testimony would change this. Thus, there is no merit to this assignment of error.

Defendants’ Assignment of Error

The defendants assert in their answer to the appeal that because LaBorde left the safety of the sidewalk and ran through a wooded area with high grass which was obviously not intended for pedestrian use, they were not responsible for her injuries. The defendants took the position that a tree stump in a hole located in the tall grass of a wooded area does not pose an unreasonable risk of harm to a pedestrian exercising reasonable care. However, we find no error in the trial court’s finding that it was reasonably foreseeable that residents of the complex would walk through the wooded or grassy area to reach their apartment or a neighboring apartment building and that a stump and hole in the ground in a grassy area such as this would present an unreasonable risk of harm. Defendants’ assignment of error is likewise without merit.

|,,DECREE

For the above reasons, the trial court judgment is affirmed, and costs of this appeal are to be. shared equally by the parties.

AFFIRMED.