author: CHARLES R. JONES, Judge.

text:
    In re TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC. Stephen Schweitzer and Sandra Miller, Individually, and as the Natural Tutors and Custodians of the Minor Child, Shannon Schweitzer. v. Transit Management of Southeast Louisiana, Inc. d/b/a Regional Transit Authority and Michael J. Metoyer.
    Nos. 2004-CA-0632, 2004-CA-0633.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 20, 2006.
    Rehearing Denied Nov. 15, 2006.
    Robert G. Harvey, Sr., Law Office of Robert G. Harvey, Sr., APLC, and W. Patrick KIotz, Klotz & Early, New Orleans, LA, for Intervenors.
    Brent D. Burley, Burley Law Firm, L.L.C., Gonzales, LA, for Stephen Schweitzer, on Behalf of his Minor Child, Shannon Schweitzer.
    Louis C. LaCour, Jr., Adams and Reese LLP, New Orleans, LA, for Appellant, Lexington Insurance Company.
    Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD.
   CHARLES R. JONES, Judge.

_JjWe review a second motion to dismiss. This convoluted appeal, has seen countless writ applications and appeals post trial.

STATEMENT OF THE CASE:

Intervenors, W. Patrick Klotz and Robert G. Harvey, Sr. (hereinafter “Interve-nors”), are plaintiffs’ former counsel who seek the dismissal of defendant Lexington Insurance Company’s (hereinafter “Lexington”) appeal which is currently pending in this Court. Intervenors, who acted as plaintiffs’ trial counsel, originally filed the present motion on behalf of plaintiffs on May 14, 2004. They argued that Lexington’s suspensive appeal should be dismissed because this Court lacked the requisite jurisdiction to entertain the appeal. Specifically, intervenors argued that the October 13, 2003, judgment from which Lexington took its suspensive appeal had been recast as a result of: 1) this Court’s granting of Lexington’s writ application seeking the reversal of the trial court’s denial of Lexington’s motion for new trial, and 2) the rendition of a new final judgment on January 28, 2004. Intervenors further argued that because the October 13, 2003, judgment had been essentially vacated and replaced by the judgment of January 28, | ?2004, Lexington’s motion for suspensive appeal, which was filed in response to the October 13, 2003, judgment, was no longer valid. In other words, in-tervenors argued that the granting of Lexington’s motion for new trial set aside the original judgment and that this Court lacked jurisdiction to hear Lexington’s appeal because Lexington failed to file a motion for appeal from the January 28, 2004, judgment. This Court granted the May 14, 2004, motion to dismiss filed by intervenors on behalf of plaintiffs. Therein, we stated, “... that the above captioned appeals Nos. 2004-CA-6332 CfW 2004-CA-6333 are hereby DISMISSED for lack of Appellate Jurisdiction”. Judge Kirby’s concurrence stated that:

“I concur in the majority’s dismissal of Appeal No. 2004-CA-6332 C/W 2004-CA-6333 for lack of appellate jurisdiction. Pursuant to this Court’s November 18, 2003 order, the trial court on December 3, 2003 granted Lexington Insurance Company’s motion for new trial and recast the judgments previously rendered. The trial court subsequently rendered an amended judgment on January 28, 2004. The granting of a new trial sets aside the original judgment. Carrier Leasing Crporation[Corporation] v. Ready-Mix Companies, Inc., 372 So.2d 601 (La.App. 4 Cir.1979). Lexington’s November 12, 2003 suspen-sive appeal is from judgments that are no longer valid.”

However, Lexington sought writs of cer-tiorari with the Louisiana Supreme Court who reversed this Court. Specifically, Chief Justice Calogero, writing for the Court, stated: “Writ granted; appeal reinstated; remanded. Because appeals are favored in law, and especially given the unique procedural facts of this case, we reverse the court of appeal’s ruling dismissing the relator’s appeal and remand for further proceedings.” In Re Transit Management of S.E. La., 04-1193 (La.10/29/04), 885 So.2d 570.

Upon remand to this Court, the parties filed briefs in response to Lexington’s motion for suspensive appeal. Further, as intervenors note, plaintiffs discharged ^intervenors as their attorneys of record and hired them present attorney. Inter-venors further note that plaintiffs’ new attorney removed this matter to Federal Court after placing the minor child, plaintiff Shannon Schweitzer, in bankruptcy. Intervenors assert that the Bankruptcy Court declined jurisdiction over this matter. It is possible that intervenors mean to state that the Bankruptcy Court declined jurisdiction over this appeal because plaintiffs’ and Lexington’s memoranda in opposition to intervenors’ motion to dismiss both assert that Schweitzer is, in some capacity, before the Bankruptcy Court. Moreover, plaintiffs and Lexington also note that they have settled all outstanding claims and that they anticipate the Bankruptcy Court approval of their settlement agreement on October 10, 2006. Furthermore, Lexington also notes that it has requested that this Court remove its appeal from this Court’s active docket until the Bankruptcy Court approves the settlement. However, no motion has been filed in this record.

DISCUSSION:

We begin our discussion by reiterating the procedural history post jury verdict as evidenced by the record before this court:

Further, in reviewing the remand from the Supreme Court, we note that we are not directed to permit “... briefing, argument and opinion ... Rather, we are bordered to consider the matter “... for further proceedings.” Thus, we conclude that the Supreme Court is directing' this court to give a more thorough discussion of the case prior to granting the Motion to Dismiss.

Intervenors’ present motion to dismiss reurges the grounds for dismissal presented to this Court on plaintiffs’ behalf in the May 14, 2004, motion. We note that with the exception of the last two paragraphs of the present motion both motions are essentially identical. Indeed, intervenors clearly assert in the present motion that they are reurging this Court to dismiss Lexington’s appeal for the same grounds advanced in plaintiffs’ May 14, 2004, motion to dismiss. While they assert no new grounds for the dismissal of Lexington’s appeal, intervenors do make the bare bones assertion that the Supreme Court’s reversal of this Court’s dismissal, reinstatement of Lexington’s appeal, and remand to this Court fails to confer jurisdiction upon this Court to entertain Lexington’s appeal. Intervenors motion does not explain how the Supreme Court’s rather explicit ruling fails to confer jurisdiction upon this Court. Further, intervenors also assert that a failure by this Court to dismiss Lexington’s appeal will result in a violation of their due process and equal protection rights. Again, intervenors’ motion does not explain how their rights will be violated should this Court fail to act upon their motion.

As previously noted, plaintiffs and Lexington have filed opposition memoranda in response to intervenors’ motion to dismiss. Plaintiffs and Lexington both argue that this Court should deny intervenors’ motion because the Supreme Court’s prior ruling conclusively rejected the position now advanced by intervenors and reinstated Lexington’s appeal. Moreover, plaintiffs object to intervenors’ motion by hinting that intervenors’ motion is, in some unexplained | sway, designed to interfere with, or nullify, plaintiffs’ current attempts to settle their claims with Lexington.

APPEAL DELAYS

Code of Civil Procedure article 2083(A) provides that a “final judgment is appeal-able in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814. An appeal is taken by obtaining an order therefore, within the delay allowed, from the court which rendered the judgment. C.C.P. art. 2121. Further, Code of Civil Procedure art. 2123(A) states in pertinent part:

A. Except “as otherwise provided by law, an appeal that suspends the effect of the execution of an appealable order or judgment may be taken, and the security therefore furnished, only within thirty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.
B. Whenever one or more parties files motions for a new trial or for judgment notwithstanding the verdict, the delay periods specified herein commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court.
C. An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions.

|flThe rules respecting devolutive appeals are substantially similar to those for sus-pensive appeals. Specifically, Code of Civil Procedure art. 2087 provides in pertinent part:

A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.
B. When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in Paragraph A of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.
C. When one or more parties file motions for new trial or for judgment notwithstanding the verdict, the delay periods specified herein shall commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court.
D. An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions.

Additionally, Code of Civil Procedure art. 2088 provides that the “jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the l^order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal.”

However, the jurisprudence provides that the granting of a new trial sets aside the original judgment, which cannot thereafter afford the basis of a plea of res judicata or an appeal. Larose v. Naquin, 145 La. 1025, 83 So. 230, 232 (1919); Gilley v. Wendy’s, Inc., 31,353 (La.App. 2 Cir. 12/9/98), 723 So.2d 517, 523; Mitchell v. Windham, 426 So.2d 759, 760 (La.App. 3 Cir.1983); Carrier Leasing Corporation v. Ready-Mix Companies, Inc., 372 So.2d 601, 603 (La.App. 4 Cir.1979). The judgment from the new trial becomes the final judgment from which an appeal may be taken. Carrier Leasing Corporation, 372 So.2d at 603. Therefore, a judgment that is set aside by a later judgment granting a new trial or a motion for judgment notwithstanding the verdict cannot form the basis for a later appeal because the original judgment is superseded by the later judgment. Accordingly, a court of appeal has no jurisdiction to entertain an appeal from a judgment that has been recast by the trial court because of post-trial motion practice.

The essence of the movers’ motion is that this court lacks jurisdiction to entertain an appeal wherein there has been no motion for appeal. Specifically, movers argue that the motion for appeal predates the amended judgment of January 28, 2004. This fact was noted by J. Kirby in his concurrence when he initially dismissed the appeal.

Perhaps the Louisiana Supreme Court, in its remand to this court, is suggesting that in those instances where a motion for appeal is filed and the judgment sought to be appealed is eclipsed by a subsequent amended judgment, then there is no need for a new motion for appeal.

| ^Therefore, while we are mindful of the remand from the Supreme Court, the Motion to Dismiss does in fact have merit, as there has not been a timely filed motion for appeal.

DECREE

For the reasons stated herein, the MOTION TO DISMISS APPEAL IS GRANTED, and the Appeal of Lexington Insurance Company is DISMISSED.

MOTION GRANTED; APPEAL DISMISSED.

      . Plaintiffs' opposition memorandum asserts that intervenors were discharged for cause and stand “accused in federal bankruptcy court of conversion of the minor plaintiff’s settlement funds from several pre-trial settlements, conflicts of interest with the minor on multiple fronts and legal malpractice.”

      . There has been no notice to this Court of a settlement in this case.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    HOUSE OF RAEFORD FARMS OF LOUISIANA, L.L.C., Plaintiff-Appellee, v. Justus OSEI-TUTU, d/b/a Thanks Jesus Trucking, Defendant-Appellant.
    No. 41,586-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Stewart & Stewart by Jonathan M. Stewart, for Appellant.
    Gold, Weems, Bruser, Sues & Rundell by B. Eric Crooker, Randall L. Wilmore, Alexandria, for Appellee.

      Before STEWART, GASKINS & LOLLEY, JJ.
   LOLLEY, J.

b Defendant Justus Osei-Tutu, d/b/a Thanks Jesus Trucking, appeals a default judgment taken against him by Plaintiff, House of Raeford Farms of Louisiana, L.L.C. Plaintiff sued Defendant for losses suffered by Defendant’s failure to deliver a truckload of frozen chickens produced by Plaintiff. After several attempts to serve Defendant under the long arm statute, Plaintiff took a default judgment against Defendant for $34,622.34, plus $5,000 in attorney fees. For the reasons stated herein, we amend the judgment and, as amended, affirm.

FACTS

Plaintiff regularly hired Defendant to transport frozen chickens from Arcadia to Texas. On March 4, 2005, Defendant picked up a load of frozen chickens worth $34,622.34, which he failed to deliver. According to Plaintiff, it sent invoices to Defendant for the lost goods, and he agreed to make payments, but never did. Attorneys for Plaintiff sent Defendant an amicable demand for payment by certified letter, return receipt requested, dated July 22, 2005. Defendant received the letter on July 26, 2005. Plaintiff filed this instant suit on November 14, 2005.

On November 18, 2005, Plaintiff sent Defendant a certified copy of the petition and long arm citation, including a warning that failure to comply would result in default judgment. The petition and citation were sent by certified mail to Defendant’s registered address and were returned unclaimed after three attempted deliveries. Plaintiff confirmed the registered address with the post office.

|2The trial court entered a preliminary default on January 26, 2006, after Defendant failed to respond to the citation. On March 20, 2006, Plaintiff filed a Motion for Confirmation of Default, attaching a copy of the demand letter, an invoice for Defendant’s account and an affidavit of correctness executed by Michelle Caugh-man, credit manager for Plaintiff. Plaintiffs attorney certified that the suit was on an open account, that the required number of days had elapsed after the receipt of the demand letter and the filing of the suit, that Plaintiff had issued service and that the court had entered a preliminary default. The Clerk of Court certified on March 20, 2006, that no answer or responsive pleadings had been filed. Finding that Plaintiffs evidence established a prima facie case and that no hearing was necessary, the trial court rendered judgment for $34,622.34 in favor of the Plaintiff, plus $5,000 in attorney fees. Defendant appeals. For the reasons stated below, we reverse the award of attorney fees and affirm the remainder of the judgment.

DISCUSSION

Defendant assigns as error the characterization of this case as an action on an open account. Louisiana Revised Statute 9:2781(C) provides that an:

‘open account’ includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. ‘Open account’ shall include debts incurred for professional services, including but not limited to legal and medical services.

Further, inherent in the concept of an open account is that the account is for services or goods rendered by the debtor. Mine & Smelter v. Ceres Gulf, Inc., 526 So.2d 404 (La.App. 4th Cir.1988). In Mine & Smelter, the plaintiff hired the defendant to haul equipment and then sued the defendant on an open account for damages that the defendant caused to the equipment. The appellate court refused to recognize the cause of action as an open account because, in part, the “claim for payment was not due for purchases or services rendered, as the open account statute contemplates.” Id. (Emphasis added.) Likewise, the case sub judice arises from a service rendered for debtor-Plaintiff and not by him. The mere creation of a debt owed to a plaintiff does not give him an action on an open account. Plaintiffs claim is, therefore, not an open account.

Defendant’s next assignment of error is that the trial court erred in confirming the default judgment without requiring sufficient proof. Confirmation of a default judgment requires the plaintiff to present sufficient proof to establish a pri-ma fade case. La. C.C.P. art. 1702. The plaintiff establishes a prima fade case by proving the essential allegation of the petition to the same extent as if the defendant had specifically denied the allegations. Thibodeaux v. Burton, 538 So.2d 1001 (La.1989); Martin v. Sanders, 35,575 (La.App.2d Cir.1/23/02), 805 So.2d 1209. In reviewing a default judgment, an appellate court is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. Martin, supra.

Although a presumption exists that the evidence presented supports a default judgment, this presumption does not attach when the record of the confirmation hearing is before the appellate court. Crump v. Bank One Porp., 35,990 (La.App.2d Cir.5/8/02), 817 So.2d 1187. In such a case, the reviewing court is able to determine from the record whether the evidence upon which the judgment is based was sufficient and competent. Crump, supra; Bordelon v. Sayer, 01-0717 (La.App. 3d Cir.3/13/02), 811 So.2d 1232, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340. On appeal, the record of a default confirmed without a hearing contains the entirety of the evidence before the trial judge and the appellate court is able to determine whether the evidence was competent and sufficient. The presumption is unnecessary and does not attach. See Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (La.1972).

The evidence contained in the record shows that Plaintiff established a prima facie case with sufficient evidence of Defendant’s liability under La. C.C. art. 2754. That article creates liability on carriers for the loss or damage to things intrusted in their care, unless the carrier can prove the damage was cause by accidental and uncontrollable events. To establish a prima facie case against a carrier for damage to goods, the claimant must prove (1) receipt by the carrier in good condition, (2) arrival in a damaged condition and (3) the amount of the loss. Hornsby v. Richard, 460 So.2d 735 (La.App. 3d Cir.1984). After a claimant establishes these elements, the burden is on the carrier to prove that the loss resulted by accidental or uncontrollable events. Id. Damages for loss of freight are computed by the difference between market value of property in condition in which it should have arrived at place of destination and its market value in damaged ^condition in which it actually did arrive. Rabon v. Red Ball Motor Freight, Inc., 292 So.2d 332 (La.App. 2d Cir.1974).

Plaintiff proved a prima fade case through the affidavit of correctness and the invoice attached to the motion for confirmation. The sworn affidavit of correctness of Michelle Caughman, credit manager for Plaintiff, establishes that the chicken was delivered to Defendant in good condition, that the Defendant failed to deliver the chicken and that the amount of loss to the Plaintiff was $34,622.34. Proof of failure to deliver is sufficient proof of the damaged condition of the goods. See, e.g., Hornsby, supra. Further, the attached invoice shows a balance of $34,622.34 and establishes the amount of loss. The complete failure to deliver renders the chicken to have no market value at delivery to off set against its market value while in possession of Defendant. The affidavit of correctness swears out that all credits and payments were accounted for in the amount. Based on this evidence, we conclude that Plaintiff put forth sufficient evidence to establish his prima facie case and confirmation of his default judgment was proper.

Finally, Defendant also challenges the award of attorney fees. At oral argument, Plaintiffs counsel correctly admitted that he has no basis for attorney fees if this action was not an open account; accordingly, we reverse the award of attorney fees. We, therefore, pretermit any discussion of Defendant’s point of error challenging the amount of attorney fees awarded.

|fiIn summary, although improperly styled as an open account, Plaintiff submitted sufficient proof of competent evidence to establish his prima facie case. Default judgment was proper.

CONCLUSION

The confirmation of default judgment in the amount of $34,622.34 is affirmed. The trial court, however, erred in awarding attorney fees because this case is not properly considered a suit on an open account. Accordingly, we reverse the award of attorney fees. Costs are assessed equally to both parties.

AMENDED, AND, AS AMENDED, AFFIRMED.

      . In his “issues presented for review,” Plaintiff also contends that the trial court erred by confirming the default judgment without a hearing. Plaintiff did not argue this issue in his brief or at oral argument. The issue is abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4.


author: BROWN, Chief Judge.

text:
    Patsy N. WALKER, Plaintiff-Appellee, v. Allen Dean WALKER, Defendant-Appellant.
    No. 41,573-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Allen Dean Walker, In Proper Person, Appellant.
    Thomas N. Thompson, Lafayette, for Appellant.
    Bobby Sutton, Shreveport, for Appellee.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, Chief Judge.

Lin this post-divorce action, defendant, Allen Dean Walker, has appealed from the trial court’s judgment finding plaintiff, Patsy N. Walker, free from fault in the dissolution of the marriage and awarding her final periodic spousal support. Defendant also challenges, in the alternative, the amount of the final periodic spousal support. For the reasons contained herein, we affirm.

Facts and Procedural Background

Allen and Patsy Walker were married on December 29, 1989, and physically separated on April 18, 2005. They were both previously married and had children and grandchildren from their prior unions. Their marriage to each other, however, did not produce any issue. On April 21, 2005, Patsy filed a petition for divorce, requesting interim and final periodic spousal support pursuant to La. C.C. art. 102.

On June 30, 2005, a Rule Nisi was heard by the trial court and Allen was ordered to pay interim periodic support to Patsy in the amount of $750 per month retroactive to the date Patsy filed for divorce. Following the hearing on interim support, on March 22, 2006, the trial court heard Patsy’s Rule Nisi for final periodic support, as well as her motion for an article 102 divorce. After hearing testimony from a number of witnesses, the trial court rendered a judgment of divorce and termination of the community. The trial court found that Patsy was free from fault and ordered that Allen pay final spousal support in the sum of $500 per month for 32 months.

12Allen now appeals pro se, alleging that the trial court erred in finding that Patsy was without fault and awarding her final periodic spousal support.

Discussion

Fault

Allen contends that the trial court erred in finding that Patsy was free from fault in the dissolution of their marriage and therefore entitled to final periodic spousal support. Allen alleges that Patsy abandoned him and treated his children and grandchildren cruelly and therefore, the trial court was clearly wrong in finding that she was free from fault.

Fault is a threshold issue in a claim for spousal support. Hutson v. Hutson, 39,901 (La.App.2d Cir.08/09/05), 908 So.2d 1231; Jenkins v. Jenkins, 38,873 (La.App.2d Cir.09/22/04), 882 So.2d 705. In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of the party and the ability of the other party to pay. La. C.C. art. 111. A spouse who petitions for permanent support need not be totally blameless. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Id.; Lyons v. Lyons, 33,237 (La.App.2d Cir.10/10/00), 768 So.2d 853, writ denied, 00-3089 (La.01/05/01), 778 So.2d 1142. Legal fault includes, but |8is not limited to, habitual intemperance or excesses, cruel treatment or outrages, and abandonment. Id.

The trial court has immense discretion in matters regarding determination of fault for purposes of precluding final periodic support. The trial court’s finding of fact on the issue of fault will not be disturbed unless manifestly erroneous. Roan v. Roan, 38,383 (La.App.2d Cir.04/14/04), 870 So.2d 626. Even in situations where an appellate court feels its own evaluations are more reasonable than the factfinder’s, reasonable evaluations of credibility should not be disturbed where conflict exists in testimony. Id.

The two grounds upon which Allen alleges that Patsy’s legal fault is based are cruel treatment and abandonment. To prove abandonment a party must show that the other party has withdrawn from the common dwelling without lawful cause or justification, and the party has constantly refused to return to live with the other. Id.; Hutson, supra. It is undisputed that Patsy moved out of the matrimonial domicile and that she refuses to return. What is disputed, however, is whether Patsy’s withdrawal from her and Allen’s common dwelling was justified.

Patsy moved out of the matrimonial domicile on April 18, 2005. She testified that prior to moving out she had endured years of physical and verbal abuse and as a result the marriage was insupportable. More specifically, Patsy and her grandson Joshua testified that the Saturday before she moved out, Allen raised his fist over Patsy and threatened to “beat her to a pulp.” Allen vehemently denied ever abusing Patsy. LObviously, the trial court made a credibility call and found that Patsy’s withdrawal from the common dwelling was justified. This decision was within the trial court’s discretion.

To prove cruel treatment a party needs to show a continued pattern of mental harassment, nagging, and griping by one spouse directed at the other so as to make the marriage insupportable as mere bickering and fussing do not constitute cruel treatment for purposes of denying alimony. Lyons, supra; Hutson, supra.

Allen contends that Patsy’s treatment of his children and grandchildren impacted his peace of mind and his relationship with his children. Allen, his son and daughter-in-law, and his grandchildren all testified that Patsy did not invite them over, she would not let them wear their shoes in the house, she would fuss when they wasted soda or took the phone outside, and she would call them derogatory names. Whether this conduct was such as to rise from fussing to cruel treatment is a fact question. After taking this testimony into consideration, the trial court implicitly found that Patsy’s actions did not rise to the level of cruel treatment so as to make the marriage insupportable. Accordingly, given the trial court’s vast discretion, we cannot say that its determination was manifestly erroneous.

Final Spousal Support

Allen, in the alternative, argues that if Patsy is found to be free from fault she should be precluded from final spousal support because it would be “double dipping.” Allen, who recently retired, will collect a monthly | ¡¡check from Social Security and the National Electrical Benefit Fund, as well as a one-time lump sum payment from his local profit sharing plan. The latter two plans make up Allen’s retirement. Allen contends that since Patsy will receive money from both plans, in proportion to the number of years they were married, he should be precluded from having to pay her additional money from his remaining portion. As Allen argues it, allowing Patsy to receive her portion of his retirement money as well as part of his portion would be “double dipping.” Although Allen’s “double dipping” argument is without merit, the portion of community funds that Patsy will receive from the National Electrical Benefit Fund and from the profit sharing plan have a bearing on Allen’s ability to pay and Patsy’s need for receiving final spousal support.

Allen argues that paying $500 per month for 32 months would prevent him from being able to afford the necessities of life since he is no longer physically capable of working. Through Social Security and the National Electrical Benefit Fund, Allen’s monthly income is approximately $2,100 to $2,500. His portion of the profit sharing plan is $104,000, which can be withdrawn in one lump sum. Patsy will receive $28,000 from the profit sharing plan, which she can withdraw in a lump sum. She will also receive $240 monthly for the remainder of her life from the National Electrical Benefit Fund. In addition, at the end of the 32-month period, she will be eligible for Social Security benefits. Patsy owns her own mobile home but pays $100 per month for lot rental. However, due to her disabilities, she has to pay $300 per month in prescription costs.

| (/Thus, after taking into account the parties’ monthly income and expenses, both parties’ inability to work, and each one’s portion of the profit sharing plan, we cannot say that the trial court abused its discretion in determining the amount of the support award.

Conclusion

For the reasons set forth above, the judgment of the trial court awarding final periodic support to Patsy Walker in the amount of $500 per month for 32 months is hereby affirmed.

      . The trial court did not state any factual findings or reasons for judgment. However, a request pursuant to La. C.C.P. art. 1917(A) was not made by either party.

      . In addition to arguing Patsy's fault, Allen argues that he was not at fault. This argument, however, is of no consequence since the only fault presently at issue is Patsy's.

      . Allen has also argued that the testimony of one of the witnesses was prejudicial hearsay. This, however, is not appealable since it was not objected to at trial. Thus, we have decided to forgo further discussion on the matter.


text:
    Derrick LATSON, Plaintiff-Appellant, v. Leon HARVEY, Michael Mitchell and State Farm Mutual Insurance Company, Defendants-Appellees.
    No. 41,570-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Davis Law Office by S.P. Davis, for Appellant.
    Casten & Pearce by Theodore J. Casten, Shreveport, for Appellees, State Farm Mutual Ins. Co. and Michael Mitchell.
    Hubley, Marcotte, Rhodes & Hussey by Michael S. Hubley, Shreveport, for Appel-lee, Leon Harvey.
    Before BROWN, STEWART and LOLLEY, JJ.
   LOLLEY, J.

11 Plaintiff, Derrick Latson, appeals a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana, which denied his demand for penalties and attorney fees sought under La. R.S. 22:658. For the following reasons, we affirm.

FACTS

On August 7, 2004, Derrick Latson was driving his motorcycle in the 1800 block of Hollywood Avenue, Shreveport, Louisiana, when he was struck by a pickup truck driven by Leon Harvey, Jr. The truck was owned by Michael Mitchell who was away on vacation at the time of the collision. Harvey worked as a laborer for Mitchell’s roofing and remodeling business. Latson brought suit against Harvey, Mitchell, and Mitchell’s insurer, State Farm, for the accident.

Following a bench trial, the trial court found in favor of Latson against Harvey and State Farm, in solido, for the sum of $25,500.00 and against Harvey, personally, for the sum of $225,000.00. All claims against Mitchell were dismissed. Latson also demanded penalties and attorney fees pursuant to La. R.S. 22:658; however, the trial court found that Latson did not carry his burden of proof that the statute applied to the instant case. This appeal, limited to the issue of penalties and attorney fees, ensued.

LAW AND DISCUSSION

Latson argues that the trial court erred in failing to award penalties and attorney fees pursuant to La. R.S. 22:65s. Louisiana R.S. 22:658 sets forth, in pertinent part:

LA. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
* * *
(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.
(4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of twenty-five percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, twenty-five percent of the difference between the amount paid or tendered and the amount found to be due.

La. R.S. 22:1220, cited in section 658, states in relevant part:

A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
|3B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
* * *
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause. C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

As the trial court correctly noted, these statutes are penal in nature and should be strictly construed. Reed v. State Farm Mutual Automobile Ins. Co., 2003-0107 (La.10/21/03), 857 So.2d 1012. Here, Latson had the burden of proving that the insurer received satisfactory proof of loss, failed to pay the claim within the applicable statutory period, and that the failure to timely tender a reasonable amount was arbitrary, capricious, or without probable cause. Block v. St. Paul Fire & Marine Ins. Co., 32,306 (La.App.2d Cir.09/22/99), 742 So.2d 746. However, the statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense. Id. Because this is a factual inquiry, the trial court’s finding should not be disturbed on appeal absent a finding of manifest error. Id.

Although the record does not reflect that a clear “satisfactory proof of loss” was established, of more significance is State Farm’s assertion that they had a serious defense. A central issue throughout the trial in the instant case was whether Mitchell had given Harvey permission to drive the vehicle | involved in the accident while Mitchell was away. According to Mitchell’s policy, coverage for a third party existed only if permission was granted by the insured. Where the insurer has legitimate doubts about coverage, the insurer has the right to litigate these questionable claims without being subjected to damages and penalties. Calogero v. Safeway Ins. Co. of Louisiana, 1999-1625 (La.01/19/00), 753 So.2d 170.

State Farm relied on Mitchell’s steadfast assertion that he had not given Harvey permission to use the truck. The fact that the trial court found that Harvey had implied permission from Mitchell to use the vehicle, resulting in coverage, is not dispositive. The record supports that State Farm was reasonable to believe they had a good-faith defense, and accordingly, Latson failed to prove that State Farm acted arbitrarily, capriciously, or without probable cause.

CONCLUSION

After reviewing the record, we do not find that the trial court erred in failing to award penalties pursuant to La. R.S. 22:658. For the foregoing reason we affirm. Costs of this appeal are assessed against plaintiff, Derrick Latson.

AFFIRMED.

      . We note Latson cites to a previous version of La. R.S. 22:658(B)(1) that was amended in 2003 and no longer provides for attorney fees. Attorney fees are not allowed in Louisiana except when authorized by statute or contract. Rivet v. State, 96-0145 (La.09/05/96), 680 So.2d 1154.


author: MOORE, J.

text:
    Ruby BROCK, Plaintiff-Appellant, v. FRYMASTERS, Defendant-Appellee.
    No. 41,561-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Michael D. Cox, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, L.L.P. by Robert A. Dunkelman, Shreveport, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

hThe claimant, Ruby Brock, appeals a judgment rejecting her claim for workers’ compensation benefits. We affirm.

Factual Background

Ms. Brock was first employed by Fry-master, a manufacturer of industrial deep fryers, in October 1997; by April 2004, she was working as a machine operator at the Line Avenue plant at an average weekly wage of $694.16. Frymaster’s human resources and safety manager, Judy Lazarus, testified that part of Ms. Brock’s job was to use a hook to pull a “slug pan” into position that it could be lifted by a crane. Nobody was precisely sure how much a slug pan weighed, empty or full, but estimates ranged from 75 lbs. to 300 lbs.

Ms. Brock testified that she injured herself on the night shift of April 1, 2004; she described “a throbbing pain” in her lower back which she first noticed while pulling the slug pan. For several years, however, she had suffered with chronic, severe diverticulitis, which she said also caused throbbing, aching pain in her lower back. On April 1 she thought she was suffering a flare-up of her colon, not a back injury. She completed her shift in pain and worked for several more days until it became unbearable.

On April 16, she went to her regular internist, Dr. Wen Liu, and reported lower back pain. Ms. Brock was certain that neither Dr. Liu nor his nurse ever asked her if any particular incident had touched off this recurrence of symptoms; however, Dr. Liu was positive that both he and the nurse asked Ms. Brock and she replied she had “not injured her back.” He wrote in his report, “pain was precipitated by nothing.” Dr. Liu ordered a | ¡^colonoscopy.

Ms. Brock also had a history of psychiatric problems; prior to April 2004 she had two prior hospital admissions for major depression and was on regular medication from her psychiatrist, Dr. Kay Kennedy. On April 19, she returned to Dr. Kennedy for a major depressive episode, which she felt was prompted by diverticulitis. Dr. Kennedy placed her on long-term medical leave under FMLA, effective April 1, 2004. Dr. Kennedy could not explain why she selected April 1; at the time, Ms. Brock had not reported a work-related accident, on that date or any other.

Ms. Brock underwent the colonoscopy on April 27; this found two polyps which proved to be benign. Unlike a prior (December 2002) endoscopy, however, this one did not relieve her lower back pain. Because of her continued symptoms, she made an appointment with an orthopedic surgeon, Dr. James Zum Brunnen.

She saw Dr. Zum Brunnen on May 11, complaining of lumbar pain of about one month’s duration. He asked the nature of her work; she mentioned lifting 75 lbs. at a time and (according to the doctor’s notes) felt she might have pulled her back “the last week worked.” He ordered an MRI; this showed “mild generalized bulging at L4-5” which he described as preexisting. However, by mid-May Ms. Brock was certain she had injured her back at work on April 1.

Ms. Brock testified that she phoned a receptionist at Frymaster named “Helen” (nobody knew any receptionist by this name) to ask about filing a workers’ compensation claim; Helen told her it was “too late.” On June 29, l3she called Frymas-ter’s human resources director, Una Palmer, who also told her it was too late to file for comp. Ms. Brock added that by the time Dr. Kennedy released her on psychiatric grounds, Dr. Zum Brunnen had placed her on a 20-lb. lifting restriction which exceeded any available work at Fry-master.

WCJ Proceedings

Ms. Brock retained counsel and filed the instant disputed claim on September 23, 2004. In her Form 1008, she alleged that she had reported an accident on April 1, 2004, and that Frymaster had paid her no wage benefits.

At trial in March 2006, however, she admitted that she did not report the accident to her coworkers or supervisor until June 4, when she phoned “Helen” to ask about filing a comp claim. She testified that she told her mother about it the next morning, and a friend named Ken Johnson, but she did not call either of these persons to testify. She adamantly denied telling anyone at Frymaster that she “hurt herself at home.” On cross examination, she disputed Dr. Liu’s recollection that she denied any injury; she also admitted she may not have told Dr. Zum Brunnen that she was lifting 75-lb. loads. She showed that Dr. Zum Brunnen took a second MRI in January 2006, finding a herniated disc.

Frymaster’s human resources and safety manager, Ms. Lazarus, testified that Ms. Brock did not report a back injury until August 18, over four months after it allegedly occurred; she investigated and could not find any employee to corroborate the occurrence of an accident. Frymaster also showed that according to the medical records, Ms. Brock did not report an ^accident to any healthcare provider until over two months after it allegedly occurred. Frymaster argued that her failure to mention it to Dr. Kennedy, her psychiatrist, was particularly unusual as Ms. Brock had normally given this doctor minute details of anything that bothered her. Frymaster also showed that Dr. Zum Brunnen and Dr. Carl Goodman, an orthopedist who examined her at Frymaster’s request, felt the bulging disc shown on the May 2004 MRI was preexistent and not due to an accident.

Frymaster’s benefits administrator, Beth Swim, testified that Ms. Brock said in a phone conversation that she “hurt herself at home,” but she had no written record of this call. Frymaster argued that no work-related accident had occurred, and Ms. Brock merely concocted the story when her psychiatric FMLA expired and she discovered the degenerative disc disease.

The WCJ ruled from the bench that a worker’s testimony alone may be sufficient to discharge her burden of proof, but that Ms. Brock failed in that burden. First, she was simply not credible, owing to the many inconsistencies between her deposition and trial testimony, her statement to Ms. Swim that she hurt her back at home, and her disparate accounts of the injury to Drs. Zum Brunnen and Goodman. Second, Ms. Brock did not report an accident until after the first MRI, and after she initially told Drs. Liu and Zum Brunnen that there was no accident. Finally, when Ms. Brock ultimately reported the pain to Dr. Liu, she said it started over a week after the alleged accident. The WCJ concluded that these facts cast serious doubt on Ms. Brock’s version of events and provided no corroboration. He dismissed the claim with prejudice.

| ¡¡Ms. Brock has appealed, raising three assignments of error.

Discussion

By her first assignment of error, Ms. Brock urges the WCJ committed legal error “in concluding that the claimant could not meet her burden of proving an ‘accident’ based upon her own testimony.” The transcript clearly shows, however, that the WCJ stated the correct legal standard as enunciated in Bruno v. Harbert Int’l Inc., 91-1444 (La.1/17/92), 593 So.2d 357, 361:

“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.”

Just because the WCJ ultimately found Ms. Brock’s testimony discredited and uncorroborated does not mean that he applied the wrong burden of proof. This assignment of error lacks merit.

By her second assignment of error, Ms. Brock urges the WCJ committed manifest error in finding her testimony was “inconsistent or incredible, while finding the testimony of Beth Swim was credible.” By her third assignment, she urges the WCJ was clearly wrong in finding that any alleged inconsistencies were material to her credibility. She contends that she had a perfectly good reason not to suspect a work-related injury at first, as the low back pain was virtually identical to that which she had previously suffered with diverticulitis. Thus, she contends, she had “no substantial or material discrepancies in her testimony at trial, in her pretrial deposition or in the history that she gave to the health care providers.” Most importantly, IfiShe contends that the testimony of Ms. Swim was hearsay, contradicted by Ms. Brock and not supported by any Frymas-ter documents; as a result, the WCJ simply could not have accepted Ms. Swim’s testimony over her own. She concludes that the WCJ “had a highly inaccurate memory with regard to what the claimant said she remembered about her coworkers” and “paid no attention to the dates whatsoever.”

Frymaster responds that the WCJ’s findings are not plainly wrong. It contends that Ms. Brock did not describe an on-the-job accident at trial, did not report one to any coworker or supervisor, denied any accident when asked by Drs. Liu and Zum Brunnen, and even failed to mention it to Dr. Kennedy. In effect, she is “now trying to bootstrap preexisting psychiatric problems onto an alleged work-related injury.” Frymaster submits that the record was sufficient to discredit Ms. Brock’s account of injury under Bruno v. Harbert Int’l, supra. It also urges that her failure to call corroborating witnesses, without explanation, created the presumption that the witnesses would be adverse to her. Wise v. Bossier Parish School Bd., 2002-1525 (La.6/27/03), 851 So.2d 1090, 180 Ed. L. Rep. 378.

An employee is entitled to workers’ compensation benefits if she “receives personal injury by accident arising out of and in the course of [her] employment.]” La. R.S. 23:1031 A. Although the workers’ compensation law is liberally construed in favor of coverage, the claimant’s burden of proving an accident is not relaxed; she must prove by a preponderance of the evidence that an accident occurred. Bruno v. Harbert Int’l, supra; McLin v. Industrial Specialty Contractors Inc., 2002-1539 (La7/2/03), 851 So.2d 1135.

A claimant’s testimony alone may be sufficient to establish an accident, under the circumstances stated in Bruno v. Harbert Int’l, supra, and quoted above. In determining whether the Bruno elements are satisfied, commentators have articulated six pertinent factors the courts may consider: (1) late report; (2) supervisor and coworker testimony; (3) family and friends’ testimony; (4) medical evidence; (5) continuing to work; and (6) prior injuries. Blair v. Wal-Mart Stores Inc., 2001-2211 (La.App. 4 Cir. 5/15/02), 818 So.2d 1042, citing 13 H. Alston Johnson III, Workers’ Compensation Law and Practice (La. Civil Law Treatise), § 253 (3d ed.1994); 1 Denis Paul Juge, Louisiana Workers’ Compensation, § 8:1 (2d ed.2002). This court has used these factors. Sheppard v. Isle of Capri, 40,048 (La.App. 2 Cir. 8/17/05), 909 So.2d 699.

Factual findings in workers’ compensation cases are subject to manifest error review. Winford v. Conerly Corp., 2004-1278 (La.3/11/05), 897 So.2d 560. The reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable. Id., citing Stobart v. State, 92-1328 (La.4/12/93), 617 So.2d 880. When there are two permissible views of the evidence, the factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id.; Moore v. Transmissions Inc., 41,472 (La.App. 2 Cir. 9/27/06), 940 So.2d 694.

We have closely reviewed the record for manifest error. Ms. Brock candidly admitted not reporting her accident until weeks or months after it allegedly occurred. She claimed to have told her mother and a friend about lRit shortly afterward, but her failure to call these witnesses raises the presumption that they would not have corroborated her. Wise v. Bossier Parish School Bd., supra; Guidry v. United Furniture Distributors, 544 So.2d 100 (La.App. 3 Cir.1989). The first three factors of Blair v. Wal-Mart Stores, supra,, weigh against Ms. Brock.

Further, the WCJ accepted Ms. Swim’s testimony that in a phone conversation Ms. Brock admitted hurting her back at home. While some corroboration of this statement would have been, helpful, the WCJ is not bound by the technical rules of evidence. La. R.S. 23:1317 A. Hearsay is admissible if it has indicia of reliability. Chaisson v. Cajun Bag & Supply, 97-1225 (La.3/4/98), 708 So.2d 375; Mitchell v. Brown Builders Inc., 35,022 (La.App. 2 Cir. 8/22/01), 793 So.2d 508, writ denied, 2001-2649 (La.12/14/01), 804 So.2d 636. The WCJ, in its unique position to hear and see both witnesses, obviously found Ms. Swim more sincere and credible; we cannot overturn this finding.

Contrary to Ms. Brock’s argument, the medical evidence also fails to corroborate her claim. Dr. Zum Brunnen interpreted the June 2004 MRI as showing degenerative disc disease; according to his notes, Ms. Brock said she might have pulled her back “last week” (which would have been in early May), but never described any event or accident as triggering the pain. He was positive that the disc fragment shown on the January 2006 MRI was unrelated to any incident in April 2004. Dr. Goodman interpreted the first MRI as “nothing significant,” only “mild bulging” that would be expected in any 51-year-old woman. In short, the orthopedic evidence was unhelpful | flto Ms. Brock’s case.

Dr. Liu testified that Ms. Brock had complained of low back pain intermittently since 2002; perhaps because she failed to report an accident or injury when she visited him on April 16, 2004, he ascribed her symptoms to diverticulitis. He remained unaware of her alleged accident until his deposition in May 2005.

Dr. Kennedy s testimony is perhaps the most favorable, in that it left open the possibility that because of her prior intestinal inflammation and bouts of major depression Ms. Brock might not have ascribed her symptoms to her work. However, Dr. Kennedy could not recall that Ms. Brock ever said an accident precipitated her symptoms, an omission she considered “unusual.” In short, the medical evidence offers only the possibility that an accident occurred as claimed by Ms. Brock. It does not prove this claim by a preponderance.

Viewed as a whole, the evidence discredits or casts serious doubt on Ms. Brock’s version of the incident and fails to corroborate it. The WCJ was therefore entitled to find that she failed in her burden of proof. Sheppard v. Isle of Capri, supra. The assignments of error lack merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by Ms. Brock to the extent permitted by La. C.C.P. art. 5186.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Alexis SMITH, Appellant.
    No. 41,544-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Louisiana Appellate Project by Laura Pavy, for Appellant.
    Don Burkett, District Attorney, Michael E. Daniel, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS & MOORE, JJ.
   MOORE, J.

| defendant, Alexis Smith, was convicted by a jury of armed robbery and two counts of attempted first degree murder. The trial court granted Defendant’s motion to modify his conviction, thereby reducing one count of attempted first degree murder to aggravated battery. The trial court sentenced Defendant to 40 years at hard labor for armed robbery, 30 years for attempted first degree murder and 10 years for aggravated battery, all to run concurrently. Defendant’s motion to reconsider his sentences was denied. On appeal, Defendant seeks review of his sentences, arguing that the sentences are excessive. For the reasons stated herein, Defendant’s sentences are affirmed.

DISCUSSION

When, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123. As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991).

| ¡¡The evidence presented at trial showed that, on November 26, 2004, Defendant robbed patrons of Wilbert’s Country Kitchen and Barbeque because he wanted to recoup money he had lost there earlier in the evening during an illegal dice game. Defendant, armed with a nickel-plated revolver and wearing a bandana around his face, fired shots in the air, told everyone to get on the floor and demanded money. During this time, he shot Lincoln Howard in the leg. After wrestling with restaurant owner Wilbert Bowers, Defendant shot Mr. Bowers in the thigh and threatened to kill him if he did not give him more money. When Defendant realized that he had gotten all the money available, he slammed the door behind him and fired more shots into the restaurant. As soon as Defendant left, Mr. Bowers and other customers got their guns and started shooting after him. Mr. Bowers and another customer, Danny Brokenberry, testified that they recognized the robber as Defendant because they saw him there regularly and rode horses with him, and the robber was wearing the same clothes that Defendant had been wearing earlier in the evening. Mr. Bowers testified that the bandana Defendant used as a mask had been worn around his neck when he was there earlier.

In his motion to reconsider sentence, Defendant argued that his sentences were excessive based upon the fact that he had not shown violent behavior prior to these charges. At sentencing, the trial court considered the facts of the case, the fact that Defendant had been on probation in Arkansas for possession of a Schedule II controlled dangerous substance at the time of the offense, the pre-sentence investigation report and a letter Defendant Dwrote to the trial court. The trial judge stated that he hoped Defendant’s time during incarceration would help him understand the error of his ways and that this type of behavior is totally unacceptable.

On this record, we do not find constitutional error. Defendant was given a mid-range sentence for armed robbery and attempted first degree murder, which is neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice. While Defendant was given the maximum sentence for the aggravated battery of Mr. Howard, the ten-year sentence is proportional to the severity of the offense, especially in light of the lifelong damage to Mr. Howard’s leg. There is no showing of an abuse of the district court’s discretion in the imposition of these sentences.

In regard to errors patent, this Court notes that the trial court failed to state that Defendant’s sentences for armed robbery and attempted first degree murder are to be served without benefit of parole, pardon or suspension of sentence. In accordance with La. R.S. 15:301.1-, those sentences are deemed to be served without benefit of parole, pardon or suspension of sentence despite the trial court’s omission at sentencing.

CONCLUSION

For the foregoing reasons, the sentences of Defendant, Alexis Smith, are affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    Lee Roy JOYNER, M.D., Plaintiff-Applicant, v. Samuel F. LIPRIE, et al., Defendants-Respondents.
    No. 41,535-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Sedrie E. Banks, Monroe, for Plaintiff-Applicant.
    Shotwell, Brown & Sperry by George Wear, Jr., Monroe, for Defendant-Respondent, Interventional Therapies, LLC.
    McLeod Verlander by David E. Verlan-der, III, Monroe, Adams & Reese by Mary L. Meyer, Gregory F. Rouchell, New Orleans, for Defendants-Respondents, Advantage Capital Corporation, Crichton Brown, and Gerald J. Daigle, Jr.
    Abbott, Simses & Kuchler by Lawrence E. Abbott, Amy L. Maccherone, André E. Maillho, Covington, for Defendant-Respondent, Tyco International Ltd.
    Borne & Wilkes by Keith M. Borne, Lafayette, for Defendants-Respondents, Samuel F. Liprie, Dr. Mark Harrison, An-giorad, LLC, and Angiorad, Inc.
    Hudson, Potts & Bernstein by W. Craig Henry, Monroe, Vinson & Elkins by D. Ferguson McNiel, for Defendant-Respondent, United States Surgical Corporation.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   GASKINS, J.

11 This case is assigned to Civil Section 3 in the Fourth Judicial District Court. Judge Alvin Sharp was assigned to that section, but on January 1, 2006, he rotated into another section. The plaintiff requested that this case be transferred to the new section with Judge Sharp. Both Judge Sharp and the judge rotating into Civil Section 3, Judge Benjamin Jones, ruled that the case should remain in its assigned section. The plaintiff applied to this court for supervisory writs. The writ was granted and the matter was docketed. Finding no abuse of discretion by the trial court, we recall the writ as improvidently granted.

FACTS

In 1996, the plaintiff, Dr. Lee Roy Joyner, filed two law suits in the Fourth Judicial District Court (JDC), No. 96-0541 and 96-0542. The instant matter arises from No. 96-0541.

The Fourth JDC in Ouachita and More-house parishes has nine district court judges; each judge is elected to a division. [ A XXXX-XXXX ] court committee analyzed whether the judges should go to a civil/criminal section system. The judges chose to do so and requested that the legislature pass a statute to allow the change.

In 2001, La. R.S. 13:587.2 was enacted to allow the Fourth JDC to assign its divisions to either a criminal, civil, drug, juvenile or other section. Lit also provided that no division could be assigned to a particular section for more than three years without the division’s consent. In implementing this new discretionary authority, the Fourth JDC created four numbered sections with two divisions assigned to each section — one judge in each section being the criminal judge and the other being the civil judge. The ninth division was assigned to a separate juvenile section.

Rule 3.1 of the Fourth JDC, as amended effective January 9, 2004, outlines this system:

The Judges of the Court are divided into Section 1, Section 2, Section 3, Section 4, and the Juvenile Section. Two Judges are assigned to each numbered Section. One Judge in each numbered Section, hereinafter referred to as the criminal judge, shall primarily handle criminal matters and the other Judge in the same numbered Section, hereinafter referred to as the civil judge, shall primarily handle civil matters. The Judge in the Juvenile Section shall primarily handle juvenile matters. All Judges retain general jurisdiction. Rotations of primary duties within each Section shall be in accordance with the Court Schedule published annually and posted to the Court web site www.4jdc.com, and in the office of the Clerk of Court.
To avoid confusion and for judicial economy, when the initial division into criminal/civil Sections occur on January 1, 2002, and later when Divisions rotate in and out of civil/criminal Sections, each Division may keep any case originally assigned to it, including but not limited to cases where testimony has been taken or substantial hearings held. All criminal probation violation hearings will be heard by the sentencing judge.

Rule 9.4 of the Fourth JDC provides, in relevant part, for random initial allotment to a section:

All initial petitions must be presented to the Clerk of Court for random allotment to a Section. Thereafter, the civil judge assigned to the Section will act on all filings requiring orders or settings.

Every two years, the judges decide whether to rotate. Usually this decision involves the two judges partnered together in a section deciding ^whether to rotate between the civil and criminal courts. If the judges agree, they can switch courts, rotating from civil to criminal or vice ver-sa. Likewise, they may choose not to rotate. In addition to rotations within a section, there are also rotations between sections. The partnering of the various judges or divisions within sections changes periodically. For example, should the judge in the juvenile court section choose to rotate from that section, that judge would rotate into a civil/criminal section and another judge would rotate into the juvenile court section.

Under the new system, Judge Alvin Sharp was assigned to Civil Section 3, where he remained until December 31, 2005. Judge Sharp was partnered in Section 3 with Judge Benjamin Jones. At the time of the section rotation on January 1, 2004, no changes were made in Section 3. However, at the time of the rotation on January 1, 2006, Judge Sharp moved to Civil Section 4 and Judge Jones went from Criminal Section 3 to Civil Section 3.

The instant case was assigned to Civil Section 3. At an October 2005 status conference, Judge Sharp informed the litigants of the upcoming change and directed them to furnish the court with a “written position” about his division maintaining the case after December 31, 2005. On December 5, 2005, counsel for several of the defendants (Samuel Liprie, Mark Harrison and Angiorad, LLC) requested that the case remain in its present assigned section and be adjudicated by the judge taking over the section.

|4On December 8, 2005, the plaintiff filed a rule to show cause, objecting to the case being handled by a judge other than Judge Sharp. He asserted that the defendants were essentially being allowed to “judge shop” in violation of La. C.C.P. art. 253.2 and Rule 9.2 of the Louisiana District Court Rules. In a record entry and order on December 13, 2005, Judge Sharp stated that he was being “cautious” in not “picking and choosing” cases to take to a different section. He held that the case would remain as currently assigned in Civil Section 3 pending a hearing or determination by the division of court seated in Civil Section 3 in 2006 as to whether justice required the case be conclusively adjudicated by him in Civil Section 4.

On February 10, 2006, the plaintiff filed a motion requesting, among other things, a hearing to determine who would be the trial judge for the case. A hearing was held on April 26, 2006, before Judge Jones. Chief Judge Marcus Clark of the Fourth JDC testified about the court rules and procedures for assigning cases. At the conclusion of Judge Clark’s testimony, Judge Jones ruled that the case would stay as assigned with Civil Section 3. Judgment was signed in conformity with this ruling in May 2006. The plaintiff filed the instant writ application. The writ was granted to docket on June 23, 2006.

LAW

La. C.C.P. art. 253.1 provides:

All pleadings filed shall be randomly assigned to a particular section or division of the court by either of the following methods:
(1) By drawing indiscriminately from a pool containing designations of all sections or divisions of court in the particular jurisdiction in which the case is filed. 15 (2) By use of a properly programmed electronic device or computer programmed to randomly assign cases to any one of the sections or divisions of court in the particular jurisdiction in which the case is filed.

La. C.C.P. art. 253.2 states:

After a case has been assigned to a particular section or division of the court, it may not be transferred from one section or division to another section or division within the same court, unless agreed to by all parties, or unless it is being transferred to effect a consolidation for purpose of trial pursuant to Article 1561. However, the supreme court, by rule, may establish uniform procedures for reassigning cases under circumstances where an expeditious disposition of cases may be effectuated.

Rule 9.2 of the Louisiana District Court Rules provides, in relevant part:

Except as allowed by La.Code Civ. Proc. art. 253.3, all contested matters must be heard by the judge to whom the matter was allotted. If all parties and the court receiving the matter consent, a judge other than the one allotted the action may hear the matter.

In pertinent part, Rule 9.3 of the Louisiana District Court Rules states:

All pleadings filed shall be randomly assigned to a particular section or division of the court in accordance with La.Code Civ. Proc. art. 253.1 before presentation of a pleading to any judge. The method of allotment for each district court is set forth in Appendix 3.

DISCUSSION

In support of his position that Judge Jones’ ruling violated the requirement of random assignment of cases, the plaintiff cites State v. Sprint Communications Company, L.P., 96-3094 (La.9/9/97), 699 So.2d 1058.

In State v. Sprint Communications Company, L.P., a judge of the 18th Judicial District Court transferred two class action asbestos cases to another judge who “was more experienced in class action lawsuits.” It was asserted | fithat the transfers were made in the interest of “judicial economy and case management.” While the original assignments of the cases were random, the later transfers were not. The Louisiana Supreme Court found that these nonrandom interdivisional transfers violated La. C.C.P. art. 253.1, Local Rule 9 of the 18th JDC, and public policy. It held that transfers that permit judges to circumvent the random allotment process to funnel particular types of cases to one judge violate the spirit and purpose of La.C.C.P. art. 253.1. The deliberateness of the transfers and the failure to comply with the random allotment system provided in Rule 9 resulted in a violation of that rule which made the transfers void and unenforceable.

In its conclusion, the supreme court stated:

Swapping or transferring a case is impermissible where a judge simply feels uncomfortable with a lawyer, a party, or a particular type of litigation. Transfers that circumvent the random allotment process to funnel particular types of cases to one judge are similarly inappropriate and impermissible. A practice of case swapping among judges which permits non-random transfers after initial random allocation, encourages “judge shopping,” which we have declared a problem.

Several groups of defendants oppose the plaintiffs position. They include Samuel Liprie, Dr. Mark Harrison, Angiorad, Inc., and Angiorad, LLC; Interventional Therapies, LLC; United States Surgical Corporation; Tyco International Ltd.; and Crichton Brown, Gerald J. Daigle, Jr., and Advantage Capital Corporation. They argue that Judge Jones’ decision to keep the case in Civil Section 3 was proper under La. C.C.P. art. 253.2, asserting that once a case is randomly allotted to a particular section of court, it cannot be transferred from that section unless all of the parties [7agree. Several defendants argue that the plaintiffs attempt to keep the case with Judge Sharp amounts to judge or forum shopping.

La. C.C.P. art. 253.1, La. C.C.P. art. 253.2, and Rule 9.3 of the Louisiana District Court Rules provide for cases to be randomly assigned to a division or a section. Under the rules currently in place in the Fourth JDC, cases are randomly assigned to a section. The rotation system provides for divisions (or judges) to periodically rotate among the sections. When a judge rotates from a section, the usual practice is for the majority of cases to remain in the section to be handled by the judge rotating into it. A case following the judge is the exception to the rule. However, the court rules permit a judge to keep a case in order to avoid confusion and for judicial economy. While a case may be kept if “testimony has been taken or substantial hearings held,” Chief Judge Clark of the Fourth JDC testified that a case may be kept if, in view of the totality of circumstances, switching it would not serve the interest of justice or judicial economy.

When the Fourth JDC was allowed to implement a rotating criminal/civil section system, the instant case was assigned to Civil Section 3. At the beginning of 2006, Judge Alvin Sharp rotated from Civil Section 3 as permitted by the court rules. He elected not to exercise his discretion to take the case with him. Additionally, there was no unanimous agreement among the parties for a transfer from the assigned section, as required by La. C.C.P. art. 253.2. Judge Jones, who rotated into Civil Section 3, ruled that the case should remain in the section to which it had been assigned.

IsThe record does not reveal any compelling reason mandating that the case be conclusively adjudicated by Judge Sharp. While the case had been assigned to Judge Sharp for several years, the record shows that many of the defendants were only added in 2005. No proceedings involving the taking of substantial testimony had taken place which would have required that the case stay with Judge Sharp as a matter of judicial economy.

We find that, under the circumstances present in the instant case, allowing the case to remain in its assigned section— instead of following the division or judge into a different section — comports with the provisions of La. C.C.P. art. 253.2 and the dictates of the Sprint case which prohibits nonrandom interdivisional transfers. The situation here does not involve the deliberate reassignment of particular cases which alarmed the supreme court in the Sprint case. Rather, it concerns an ordinary and normal section rotation which causes a different judge to preside over the cases assigned to a section as a routine matter of course.

CONCLUSION

Finding no abuse of discretion in the trial court’s decision, we recall the writ as improvidently granted. Costs are assessed against the plaintiff, Dr. Lee Roy Joyner.

WRIT RECALLED AS IMPROVIDENTLY GRANTED.

      . See Joyner v. Liprie, 39,342 (La.App.2d Cir.3/11/05), 896 So.2d 363, which involved No. 96-0542.

      . In 2002, Rule 3.1 of the Louisiana District Court Rules was adopted as to district courts splitting into divisions or sections. It provided, in relevant part: “Courts may by en banc order divide into divisions or sections for the purpose of allotting matters within the court's jurisdiction.”


text:
    STATE of Louisiana, Appellee, v. Andre ANDERSON, Appellant.
    No. 41,489-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Edward Kelly Bauman, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Melissa Sugar, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   GASKINS, J.

11 Following a jury trial, the defendant, Andre Anderson, was convicted of second degree murder. The trial court sentenced the defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals. We affirm.

FACTS

On September 7, 2001, the body of Richard Holloway was discovered in a wooded area near Highway 160 in Bossier Parish. He had been shot multiple times, including two gunshot wounds to the head.

Subsequently, the police received anonymous tips implicating the defendant in Holloway’s murder. The authorities also learned of a shooting incident on November 21, 2001, at the home of Carlos and Alice Stewart in which Mr. Stewart was injured; the defendant was identified as the shooter. Comparison of the .45 caliber shell casings in the Holloway murder and several of the .45 shell casings in the Stewart case revealed they were fired by the same .45 caliber gun. The defendant also had admitted to the Stewart couple that he killed a black man from Mooretown in Bossier with a .45 for stealing approximately $30 in crack cocaine from him.

The defendant was arrested and charged with second degree murder. At trial, his girlfriend, Latarsha Smith, testified that on September 4, 2001, the defendant came to her home with Holloway and Daniel Lewis. The defendant told her he wanted her to drive the men to a location in Bossier Parish where they were going to burglarize a house. She was directed to a rural location; the three men exited the car. A few minutes later, she heard | ggunshots; the defendant and Lewis then returned to the vehicle without Holloway.

Lewis testified that once he and the other two men got out of the car, they walked down a dirt path single file, first Holloway, then the defendant, and finally Lewis. At some point, the defendant shot Holloway in the head. As Holloway lay on the ground, the defendant shot him several more times. The defendant then gave Lewis a .22 caliber gun and ordered him to shoot the victim; the defendant said this would prevent Lewis from reporting the murder. Because he feared for his own life and because he was certain Holloway was already dead from the multiple shots fired by the defendant, Lewis complied. He shot Holloway five or six times in the lower stomach area. (The autopsy report stated that there was a cluster of small caliber gunshot wounds to the victim’s abdomen.) When Lewis asked the defendant why he killed Holloway, the defendant stated that Holloway had stolen crack cocaine from him.

The defendant was convicted as charged by a unanimous jury. He was sentenced to the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence.

AUTOPSY REPORT

The defendant asserts that the trial court erred in allowing a court employee to read the victim’s autopsy report to the jury without adequately determining that the pathologist who performed the autopsy was unavailable to testify at trial. He contends that his right to cross-examine the | apathologist, “the only medical witness who had possibly exculpating knowledge,” was violated.

Dr. Stephen Cogswell performed the autopsy on Holloway. By the time of trial, Dr. Cogswell had moved to Florida and was in poor health. Additionally, he was caring for his ill father. The state arranged for Dr. George McCormick, the coroner of Caddo Parish, to testify in his expert capacity as coroner as to the findings of Dr. Cogswell’s report. However, Dr. McCormick died suddenly less than a week before trial.

The trial court declared both Dr. McCormick and Dr. Cogswell unavailable. The court accepted the prosecutor’s representations, as an officer of the court, that she had spoken to Dr. Cogswell and that, despite the state’s reasonable efforts to secure his presence, he was unwilling to obey the subpoena to testify due to his poor health and that of his father. The court found that Dr. Cogswell was unavailable to testify under La. C.E. art. 804.

As to the autopsy report, the court held that it was a self-proving document and found no prejudice in having a layperson read it to the jury. The defendant objected to anything other than the fact of death and cause of death being read into the record. The trial court allowed a court employee to read the autopsy report into the record.

A coroner’s report is competent evidence of death and the cause of death, but not of any other fact. La. C. Cr. P. art. 105. It is excepted from the hearsay rule and is admitted in evidence as proof of death and the cause thereof. State v. Kelly, 375 So.2d 1344 (La.1979); State v. Rhodes, 29,207 (La.App.2d Cir.1/22/97), 688 So.2d 628, writ denied, 97-0753 (La.9/26/97), 701 So.2d 980; State v. Garner, 39,731 (La.App.2d Cir.9/8/05), 913 So.2d 874, writ denied, 2005-2567 (La.5/26/06), 930 So.2d 19. The coroner or one of the coroner’s deputies may testify as to the victim’s death or the cause thereof, even where the testifying witness did not perform the autopsy or prepare the report. State v. Rhodes, supra; State v. Gamer, supra.

In State v. Vincent, 338 So.2d 1376 (La.1976), the defendant argued that the trial court improperly allowed a law clerk to read portions of the coroner’s report to the jury and improperly admitted the coroner’s report without the testimony of the coroner to verify the report. The Louisiana Supreme Court did not find any error in having the law clerk read the coroner’s report to the jury and found any error pertaining to a lack of authentication to be harmless in light of the fact that the coroner’s report was cumulative evidence of the cause of death.

The admission of the coroner’s report was competent evidence of Holloway’s death and the cause thereof. Consequently, the fact that the trial court allowed a court employee to read the autopsy report to the jury was not prejudicial.

Additionally, the state presented the victim’s death certificate which described his death as a homicide and stated that he was “found with multiple gunshot wounds.” Death certificates are admissible as an exception to hearsay and the availability of the declarant is immaterial under La. C.E. art. 803(9). The state also called Daniel Lewis, who testified that |Bhe saw the defendant initially shoot the victim in the head and then several times when he was lying on the ground. Lewis testified that Holloway was already dead before the defendant forced him to fire additional bullets into the body. Therefore, because the coroner’s report was cumulative evidence of the victim’s death and the cause thereof, any failure to present the coroner’s report as evidence, without the coroner’s testimony to authenticate the report, is not a substantial violation of the defendant’s statutory or constitutional rights. Thus, we find that it is unnecessary to address the issue of whether the trial court improperly declared Dr. Cogswell unavailable.

The defendant also contends that he was deprived of his confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The threshold question under Crawford is whether the autopsy report was testimonial or nontestimonial in nature. In State v. Leonard, 2004-1609 (La.App. 1st Cir.4/27/05), 915 So.2d 829, reversed on other grounds, 2005-1382 (La.6/16/06), 932 So.2d 660, that court found that the narrowly drawn La. C. Cr. P. art. 105 rendered the coroner’s report as nontestimo-nial hearsay and thus admissible under Crawford because it was admissible only for the purpose of proving death and cause of death. Courts in other states have found that autopsy reports are generally nontestimonial under Crawford. See State v. Lackey, 280 Kan. 190, 120 P.3d 332 (2005), cert. denied, — U.S. -, 126 S.Ct. 1653, 164 L.Ed.2d 399 (2006); People v. Durio, 7 Misc.3d 729, 794 N.Y.S.2d 863 (N.Y.Sup.2005); Moreno Denoso v. State, 156 S.W.3d 166 (Tex.App.2005).

According to the autopsy report, the victim’s cause of death was “multiple gunshot wounds.” The “narrative of findings” recounted that his death was due to “multiple penetrating and perforating, indeterminate range gunshot wounds, resulting in laceration of vital organs and blood loss.” The report then detailed 12 gunshot wounds, two of which were to the head, three to the chest, six to the abdomen, and one to the arm. The autopsy report describes the location of the wounds, the injuries inflicted by each wound, the path of the bullet, and whether a projectile was recovered. The information in the autopsy report was routine, descriptive, and nonanalytieal; i.e., it was nontestimonial in nature and thus did not trigger the Crawford mandate for cross-examination pursuant to the Confrontation Clause.

The defendant complains that the state’s failure to present Dr. Cogswell as a witness prevented him from cross-examining him as to whether the victim was still alive when Lewis fired shots at him because “[o]nly the autopsy report and the testimony of the person who prepared it can verify which bullet wounds may have caused Richard Holloway’s untimely death.” However, any medical expert— including one subpoenaed by the defense— could have addressed this issue utilizing the information contained in the coroner’s report. Furthermore, the issue of which bullet wounds were fatal is immaterial to the defendant’s guilt. According to Daniel Lewis’ unrefuted testimony, he was compelled by the defendant to |7fire shots at the victim after the defendant had already shot the victim several times. Thus, even had the shots fired by Lewis been fatal, the defendant would still be a principal to second degree murder. La. R.S. 14:24.

This assignment of error is meritless.

OTHER CRIMES EVIDENCE

The defendant also argues that it was prejudicial error to allow Carlos Stewart to testify about another crime committed by the defendant without first conducting a Prieur hearing. The state argues that the evidence was properly admitted for the purpose of “narrative cohesiveness and completeness” to explain how law enforcement discovered that the same weapon was used in shooting Richard Holloway and Carlos Stewart. The state argues that this falls within the doctrine of integral act evidence, formerly known as res gestae, and that evidence of other crimes used to complete the story of the crime is admissible.

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146, 148 (La.1993). This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126, 128 (La.1973). However, evidence of other crimes may be admissible if the state establishes an independent and relevant reason, i.e., to show motive, | sopportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1). Even when the other crimes evidence is offered for a purpose allowed under Article 404, the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defense. The probative value of the extraneous crimes evidence must outweigh its prejudicial effect. La. C.E. art. 403; State v. Jacobs, 1999-0991 (La.5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002); State v. Hatcher, 372 So.2d 1024, 1033 (La.1979).

A trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Cooks, 36,613 (La.App.2d Cir.12/4/02), 833 So.2d 1034.

The state gave pretrial notice of its intent to use other crimes evidence in two separate pleadings. Early in the trial, the court heard arguments on the issue and ruled that the evidence of the Stewart shooting was admissible.

Identity was a key issue in the instant case. Evidence that the same gun was used in both the September 2001 murder of Richard Holloway and the November 2001 shooting of Carlos Stewart was relevant to show that the defendant killed Holloway. Mr. Stewart testified that the defendant was the man who shot him at his residence. Mrs. Stewart, who was in another room of the house at the time of the shooting, testified as to the defendant’s presence in the house before and after the shooting. She further testified that when she asked Mr. Stewart who shot him immediately afterwards, he 19was too gravely injured to answer her verbally; however, he was able to give her a look that communicated to her that the defendant was involved. As soon as the police removed the defendant from her presence, Mrs. Stewart informed an officer that she believed the defendant was involved in Mr. Stewart’s shooting.

We find that the state proved the defendant’s role in the other crime by clear and convincing evidence. There was no substantial-likelihood of misidentification given Mr. Stewart’s testimony that the defendant shot him.

Since we find that the other crimes evidence was properly admitted to prove identity, we pretermit the issue of evidence of integral acts, or res gestae.

This assignment of error is without merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The standard for determining a defendant’s connexity with the other prior crimes, i.e., by a preponderance of the evidence or by clear and convincing evidence, for purposes of determining admissibility of other crimes evidence, remains an open question in the Louisiana Supreme Court. See La. C.E. art. 1104. See also State v. Jacobs, supra, at footnote 15; and State v. Galliano, 2002-2849 (La. 1/10/03), 839 So.2d 932, at footnote 1.


text:
    STATE of Louisiana, Appellee, v. John M. TICHELI, Appellant.
    No. 41,467-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.

      Louisiana Appellate Project by Peggy J. Sullivan, for Appellant.
    Jerry L. Jones, District Attorney, Brian Harkins, Cynthia P. Lavespere, Assistant District Attorney, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

hThe defendant, John M. Ticheli, seeks review of his sentence for aggravated crime against nature. La. R.S. 14:89.1 A (6). The trial court imposed a sentence of 10 years without benefit of probation, parole, or suspension of sentence and denied a timely motion for reconsideration of sentence. We affirm.

On June 15, 2003, 13-year-old C.W.W. was riding his bicycle to a friend’s house when the defendant, traveling in a silver truck, approached and asked the young boy to perform oral sex for $10.00. C.W.W. refused and the defendant rode off. Approximately 20 minutes later, as C.W.W. was headed home, the defendant again approached and repeated the offer to have the victim perform oral sex for $10.00. C.W.W. again refused, went home, notified his father who called police.

On October 17, 2006, the defendant pled guilty to one count of aggravated crime against nature. As a result of a plea agreement, other pending charges against the defendant were dismissed, including count two of the bill of information in the instant case as well as at least eight other pending charges of aggravated crime against nature. The state agreed not to file a habitual offender bill against the defendant.

The defendant alleges that his sentence is excessive based on two factors. First, his advanced age, 66 years old at the time of sentencing; second, the defendant alleges that the sentence is excessive considering that no sexual contact occurred during the charged incident.

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. 2 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. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2 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 offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2 Cir. 04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a 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. 2 Cir. 4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App. 2 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; State v. June, 38,440 (La.App. 2 Cir. 5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App. 2 Cir. 1/28/04), 865 So.2d 280, writ denied, 04,057 (La.9/24/04), 882 So.2d 1165.

In this case, the trial court reviewed the defendant’s PSI report and considered, among other things, the defendant’s prior criminal history, his family situation, and his age. The court noted that although the defendant was 66 years old, the kind of criminal behavior the defendant engages in does not appear to be affected by age. He was still capable of engaging in 14the same type of behavior. Nevertheless, the court considered the defendant’s age in not imposing the maximum sentence. Additionally, the court noted that the defendant had previous convictions, dating back to 1983, for aggravated crime against nature and contributing to the delinquency of a juvenile. The trial court observed that the defendant’s children were all adults.

On this record, we do not find the defendant’s sentence to be constitutionally excessive. The defendant benefitted greatly from the dismissal of several other pending charges of a similar nature as a result of the plea agreement. While the defendant did not attempt to force the victim, he attempted to persuade the very young teen to engage in oral sex by offering him money. The record indicates that defendant has a history of offering other minor victims gifts, money, alcohol, cigarettes and marijuana to induce them into a sexual relationship. The trial court gave the defendant the right of allocution, that is, the right to speak to the court prior to sentencing. The court listened to the defendant and considered various factors. Although defendant argues that he deserves a lesser sentence because he did not actually engage in sex with the victim in this case, the statutory offense to which the defendant pled guilty, La. R.S. 14:89.1, incorporates the statutory definition of “crime against nature” which includes the “solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.” La. R.S. 14:89(A)(2). The sentence is lawful and is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of | ¿justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence.

The sentence is affirmed.

AFFIRMED.