author: THIBODEAUX, Chief Judge.

text:
    ESTATE OF Frank DEGRAAUW v. TRAVELERS INSURANCE COMPANY.
    No. 2006-547.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Rehearing Denied Nov. 15, 2006.

      Roger Chadwick Edwards, Jr., Edwards & Edwards, Abbeville, LA, for Appellant, David M. DeGraauw.
    Frank Simo Slavich, III, Perret, Doise, Lafayette, LA, for Appellee, Travelers Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| plaintiff-appellant, David M. DeGraauw (DeGraauw), the court-appointed succession representative for the estate of deceased homeowner, Frank DeGraauw, sued the decedent’s homeowner’s insurer, The Standard Fire Insurance Company (Standard Fire), for breach of contract. The suit claimed that Standard Fire failed to pay the replacement costs for roof damage as covered by the policy. The trial court granted Standard Fire’s peremptory exception of prescription. DeGraauw appeals. For the following reasons, we affirm.

I.

ISSUE

Did the trial court erroneously apply La.R.S. 22:691(F) to sustain the defendant’s exception of prescription and dismiss the plaintiffs lawsuit on his claim for insurance proceeds?

II.

FACTUAL BACKGROUND

On October 3, 2002, the Abbeville, Louisiana home of decedent, Frank DeGraauw, was damaged by Hurricane Lili. Mr. De-Graauw possessed a homeowner’s insurance policy issued by “The Standard Fire Insurance Company, One of the Travelers Property Casualty Companies,” which covered losses to his residence. On October 16, 2002, Mr. DeGraauw filed a claim with Standard Fire. On November 8, 2002, an adjuster for the insurer prepared a repair estimate for the damages in the amount of $9,778.96. The estimate was itemized and included ^estimates of the costs for the repair of the roof, as well as for the repair of other damage to the dwelling.

On or about November 9, 2002, the insurer tendered to Mr. DeGraauw a payment in the amount of $6,176.63, which was the balance due after deductions of the applicable $1,000.00 deductible and the recoverable depreciation in the amount of $2,602.33. In a letter issued to Mr. De-Graauw from the insurer, he was advised that his loss would be settled in full, in accordance with the policy’s terms, once he provided notification to the insurer of the completion of the repairs or replacement of the damaged property. Standard Fire asserts that it received no further contact regarding the loss until June 2004.

Mr. DeGraauw passed away on May 16, 2004, and his son, David M. DeGraauw, was appointed as the succession representative. In June 2004, DeGraauw notified Standard Fire that his father had performed temporary repairs to the roof after receiving the first portion of the insurance settlement; however, those repairs were insufficient, and a new roof had to be installed at an additional total cost of $16,700.06. He requested reimbursement for these costs. On June 26, 2004, Standard Fire denied this request. On June 30, 2004, it offered to tender the previously withheld depreciation of $2,602.33. De-Graauw rejected this offer. On March 23, 2005, Standard Fire tendered a check to DeGraauw in the amount of the withheld depreciation, which DeGraauw has not negotiated.

On April 11, 2005, DeGraauw filed suit, alleging that Standard Fire breached the insurance contract. In the suit, he asserted that the initial payment relative to roof damage from the insurance company that was received by his father was intended to cover only temporary roof repairs as evidenced by the insurer’s estimate. He argued that because these repairs were insufficient the insurance |3company remained obligated to settle the loss under the “replacement cost coverage” terms of the policy.

Standard Fire answered and filed various exceptions, including an exception of prescription. Standard Fire asserted that the policy allowed one year from the date of loss to file lawsuits against the insurer and that DeGraauw’s suit was prescribed because it was filed on April 11, 2005, two years and six months after the October 3, 2002 date of loss.

The trial court granted the exception. In its ruling, the trial court found that the suit was prescribed because it was filed more than one year after the one-year prescriptive period had run. The court rejected DeGraauw’s contention that the insurance company’s original roof damage estimate addressed only temporary roof repairs. The court also reasoned that there was no evidence that the insurer had acted to waive the prescriptive period by any subsequent acknowledgment of the claim, nor was there evidence that the insurer acted to interrupt the running of the prescriptive period. The trial court added also that the claim for replacement of the roof constituted a new claim under the policy.

III.

LAW AND ARGUMENT

Prescription

Louisiana Revised Statutes 22:691 sets forth the standard provisions that are to be included in all standard fire insurance policies issued in Louisiana. Louisiana Revised Statutes 22:691(F) requires that the following limitation regarding the filing of lawsuits be included in standard fire policies:

Suit — No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been 14complied with, and unless commenced within twelve months next after the inception of the loss.

The policy issued to Mr. DeGraauw restates this limitation, as such:

SECTION 1 — CONDITIONS
8. Suit Against Us. No action can be brought unless the policy provisions have been complied with and the action is started one year after the date of loss.

DeGraauw has asserted that the trial court erroneously interpreted this suit limitation clause as that which establishes a prescriptive period and contends that this court should decline to adhere to prior jurisprudence interpreting it as such. De-Graauw asserts that because of the absence of any language in La.R.S. 22:691(F) designating this provision as a prescription clause and because this section of the statute is a provision of broader legislation intended to create a standard form- insurance contract, the suit limitations provision is not that which rises to the level of a prescriptive period.

Rather, DeGraauw argues that this one-year limitations clause is simply a contractual provision that is to be read in pari materia with the other provisions of the policy to determine if it is enforceable under the circumstances presented. When interpreted in this manner, he states that an inherent conflict and/or ambiguity between the lawsuit limitations provision and the policy’s “Loss Settlement” provision is apparent such that it should render the application of the suit limitations clause unenforceable.

The Loss Settlement provision of the policy states:

SECTION 1 — CONDITIONS
3. Loss Settlement. Covered property losses are settled as follows:
_k- ■ • •
(4) We will pay no more than the actual cash value of the damage until actual repair or replacement is complete. Once actual repair or replacement is complete, we will settle the loss according to the provisions of b.(l) and b.(2) above.

DeGraauw claims that this provision means that a loss will be settled in full once the actual repairs or replacement of the damaged property is completed, yet it provides no express time limitation for the completion of those repairs. He contends that this conflicts with the lawsuit limitations clause because the right to sue for recovery on a claim becomes time-barred by law within one year of the date of the applicable loss, regardless of whether repairs have been completed. DeGraauw argues that, under the rules of contractual interpretation, a conflict of this nature should be resolved in favor of the insured and the suit limitations clause should be deemed inoperative. Otherwise, he argues that the language of the policy provides an unfair escape clause for insurers, giving them the opportunity to avoid paying claims in full, even if neither party has, prior to that time, breached the insurance contract. This argument is meritless.

First, we reject DeGraauw’s assertion that the trial court erroneously interpreted and applied the insurance policy’s one-year limitations period as a prescriptive clause. By definition, liberative prescription is “a mode of barring of actions as a result of inaction for a period of time.” La.Civ.Code art. 3447. Louisiana Revised Statutes 22:691(F) is a prescriptive period established by legislation pursuant to La. Civ. Code art. 3457. In Gremillion v. Travelers Indemnity Co., 240 So.2d 727, 256 La. 974 (1970), the supreme court wrote that the twelve-month limitations period for filing actions that was established and mandated by La.R.S. 22:691(F) is a valid prescriptive period.

| ^Second, we reject the notion that the prescriptive period should be ignored because it is in conflict with the loss settlement provision of the policy. The one-year time limitation in the suits provision is one in which the insured must assert his or her claim judicially, but it does not require the insured to settle the claim within this time period. La.R.S. 22:691(F); Blum v. Cherokee Ins. Co., 336 So.2d 894 (La.App. 4 Cir.1976). Consequently, even if the claim is still pending, unless the insurer in some manner leads the insured to reasonably believe that the time limitation has been waived, the insured must file any lawsuit within the specified one-year time limitation. See Blum, 336 So.2d 894; Stephens v. Audubon Ins. Co., 27-658 (La.App. 2 Cir. 12/6/95), 665 So.2d 683, writ denied, 96-66 (La.2/28/96), 668 So.2d 363. Moreover, we are mindful that the contents of the policy constitute the law between the parties, which will be enforced as written if the terms are clear and express the intent of the parties. Stephens, 665 So.2d 683.

Now turning to the application of the one-year prescriptive period to the specific facts of this case, we note that prescription begins to run from the date of the loss. Gremillion, 240 So.2d 727. According to the record, the date of the loss at issue — damage to the roof — occurred on October 3, 2002. The lawsuit was filed on April 11, 2005, more than two years after the date of the loss. Therefore, we find, as did the trial court, that the suit is prescribed on its face. The burden thus shifted to DeGraauw to show that the action was not prescribed. See Cichirillo v. Avondale Indus., Inc., 04-2894, 04-2918 (La.11/29/05), 917 So.2d 424.

Prescription may be defeated if it can be shown that the period was interrupted or that the right to plead prescription was renounced. See Lima v. Schmidt, 595 So.2d 624 (La.1992). De-Graauw attempted to satisfy this burden by arguing that the insurer interrupted the prescriptive period by twice acknowledging 17that the policy covered the repair or replacement of the roof. According to DeGraauw, the acts of acknowledgment were the insurer’s tender of the first portion of the insurance settlement on or about November 9, 2002, and the insurer’s act of tendering the withheld depreciation amount on March 23, 2005. We disagree.

Prescription may be legally interrupted when one acknowledges the rights of the person against whom he had commenced to prescribe. La.Civ.Code art. 3464. The supreme court has stated that, “[sjubstantively, acknowledgment is the recognition of the creditor’s right or obligation that halts the progress of prescription before it has run its course.... ” Lima, 595 So.2d at 631. The legal effect of acknowledgment is the erasing of the time that has accrued, with prescription recommencing anew from the date of interruption. See id. Acknowledgment that is sufficient to interrupt prescription does not have to be in any particular form. See Bennett v. State Farm Ins. Co., 03-1195 (La.App. 3 Cir. 3/24/04),. 869 So.2d 321. “The acknowledgment need not be of a certain amount of damages, only of the defendant’s responsibility and plaintiffs right against that defendant.” Bennett, 869 So.2d at 329 (citing Lima, 595 So.2d 624).

In regard to an insurer’s acknowledgment of a claimant’s rights sufficient to interrupt the running of prescription, we have stated before that a tacit waiver or interruption of prescription may be found to have occurred if the insurer “(1) continues negotiations, thereby inducing the insured to believe the claim will be settled or not contested, (2) makes an unconditional offer of payment, or (3) performs acts of reparation or indemnity.” Id. at 330 (citations omitted). However, we further stated:

[U]nless the insurer in some manner leads the insured to reasonably believe the time limitation has been waived while the claim is under consideration or in some other way acts so as to induce the insured to withhold suit, the lssuit must be filed within the prescribed period even if the claim is pending. Blum v. Cherokee Ins. Co., 336 So.2d 894, 898, (La.App. 4 Cir.1976).

After reviewing the record, we find no evidence of any direct or tacit actions on the part of the insurer to interrupt the running of the one-year prescriptive period. Specifically, we find no evidence in the record that Standard Fire took any action to induce either the deceased Mr. DeGraauw or his succession representative to delay the filing of any lawsuit. In fact, there is no indication in the record that there were ever any discussions, orally or in writing, between the insurer and the decedent, or the decedent’s succession representative, or any legal counsel for the insured or his estate until after the period had run. Once prescription runs, it cannot be interrupted. Lima, 595 So.2d 624. We also find it significant that, for a span of almost two years following the initial payment by the insurance company, there was no contact between the parties about the claim.

In addition, we do not find that the insurer’s negotiations with DeGraauw commencing in June 2004 or the insurer’s subsequent tender of the withheld depreciation amount of $2,602.33 on March 23, 2005, were acts of renunciation of the insurer’s right to plead prescription. La. R.S. 22:651. Renunciation by definition ^“obliterates the effect of prescription that has run” and is subject to more strict requirements than acknowledgment. Lima, 595 So.2d at 631. It has to be “clear, direct, and absolute and manifested by words or actions of the party in whose favor prescription has run.” Id. When renunciation occurs, a new and binding, unilateral obligation to pay or perform has been created by the debtor after prescription has accrued. See id. This has not occurred in this case.

Accordingly, we find no legal or manifest error in the trial court’s judgment sustaining the exception of prescription.

IV.

CONCLUSION

The judgment sustaining the exception of prescription is affirmed. Costs of this appeal are assessed to the plaintiff-appellant, David M. DeGraauw.

AFFIRMED.

      . Standard Fire Insurance Company is a subsidiary of Travelers Insurance Company and is the company that issued the homeowner’s policy at issue. Standard Fire is the only defendant that has appeared and answered the suit.

      . Louisiana Revised Statutes 22:651 states:
      § 651. Claim administration not waiver
      None of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder:
      (1)Acknowledgment of the receipt of notice of loss or claim under the policy.
      (2) Furnishing forms for reporting a loss or claim, for giving information relative thereto, or for making proof of loss, or receiving or acknowledging receipt of any such forms or proofs completed or incom-pleted.
      (3) Investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Trent MILLER.
    No. 06-595.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Anna L. Garcie, Assistant District Attorney, Many, LA, for Appellee, State of Louisiana.
    C.R. Whitehead, Jr., Whitehead Law Offices, Natchitoches, LA, for Defendant/Appellant, Trent Miller.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

11 Defendant, Trent Miller, was convicted of second degree murder while engaged in the perpetration of cruelty to a juvenile, a violation of La.R.S. 14:30.1(A)(2)(b) and sentenced to life imprisonment. Defendant now appeals to this court assigning three errors.

FACTS

The events pertinent to the current appeal occurred from Friday, February 27, 2004, through February 29, 2004. On that Friday, the four-year-old victim, Melenia Martínez, stayed at the home of her maternal great-grandparents. Her mother Whitney Martinez, her six-year-old brother, Tristine, and Defendant were also there, because her great-grandmother and her grandmother had been in an automobile wreck. Throughout that Friday and Saturday, the victim appeared to behave and function normally.

At about 2:00 p.m. on Sunday, February 29, 2004, the victim, her mother, her brother, and Defendant left the grandparents’ residence to go home. When they arrived at about 2:30 p.m., Melenia’s mother entered the residence first, by herself; the victim exited the car and walked into the building next. According to a statement Defendant gave to police, he and Tristine unloaded the car, then entered the residence. Upon entering, he heard the victim whimpering in her room; when he checked on her, she was unsuccessfully trying to hang her coat on a hanger. He told her that he would be back to help her, then checked on her sick mother, in the bathroom. He returned to Melenia’s room, and found her sitting in a chair. When he began demonstrating how to hang the coat, she got up and stood near him. According to Defendant’s statement, her eyes suddenly rolled up in her head and she fell into his arms.

12Pefendant and the victim’s mother put her in the ear and took her to Sabine Medical Center. Because she manifested signs of brain injury, the Sabine hospital staff transferred her to the LSU medical facilities in Shreveport. Doctors there concluded she had suffered a massive brain injury; she had a large subdural hematoma and retinal hemorrhages in her eyes. Initial testing indicated she had Chlamydia in her rectum, but trial testimony indicated the testing was unreliable. The victim died on March 2, 2004.

At trial, doctors testified that the victim’s brain and eye injuries were signs of “shaken baby syndrome.”

SUFFICIENCY OF EVIDENCE

Defendant first challenges the sufficiency of the evidence adduced against him at trial. At the outset, the Defendant observes that there were no eyewitnesses to the offense, therefore the State’s case relied upon circumstantial evidence. He argues that the controlling law is in State v. Merritt, 03-946 (La.App. 3 Cir. 3/17/04), 875 So.2d 80, writ dismissed, 04-2827 (La.3/18/05), 896 So.2d 987. We note that Merritt cited State v. Porter, 99-1722, pp. 14-16 (La.App. 3 Cir. 5/3/00), 761 So.2d 115, 123-124, in which this court explained:

We find no reported cases discussing second degree murder convictions pursuant to La.R.S. 14:30.1(A)(2)(b). In order to convict a defendant of second degree murder pursuant to this section, the State must prove that the death of three-year-old Morgan Bonton occurred while the Defendant was engaged in the perpetration of cruelty to juveniles.
Cruelty to juveniles is set forth in La.R.S. 14:93(A), and it provides that cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect of a child whereby unjustifiable pain or suffering is caused to the child. The term “intentional” within the meaning of this statute, requires general criminal intent to cause a child unjustifiable pain and suffering. State v. Cortez, 96-859 (La.App. 3 Cir. 12/18/96); 687 So.2d 515, 519, citing State v. Morrison, 582 So.2d 295 (La.App. 1 Cir.1991). Mistreatment as used in this statute means |s“abuse.” State v. Cortez, 687 So.2d at 519, citing State v. Comeaux, 319 So.2d 897, 899 (La.1975).
Thus, in order for the State to prove that the Defendant was guilty of the second degree murder of Morgan Bon-ton it had to establish either (1) that the Defendant intentionally mistreated or neglected the child, or (2) that the Defendant was criminally negligent in his mistreatment or neglect of the child. To be criminally negligent in his mistreatment or neglect of the child, the Defendant must have such disregard of the interest of the child that his conduct amounted to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances. See La.R.S. 14:12.
Circumstantial evidence consists of the proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Guillory, 670 So.2d at 304, citing State v. Donahue, 572 So.2d 255 (La.App. 1 Cir.1990). The circumstantial evidence rule does not require the State to exclude every possible theory of innocence, but only the reasonable hypotheses of innocence. State v. Lilly, 468 So.2d 1154 (La.1985). In circumstantial evidence cases, this court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, this court, evaluating the evidence in the light most favorable to the prosecution, determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Davis, 92-1623 (La.5/23/94); 637 So.2d 1012, certiorari denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

Defendant claims the State did not prove beyond a reasonable doubt that he committed cruelty to a juvenile. More specifically, he argues there was no evidence the victim “suffered or endured unjustified pain or suffering,” and no evidence that he abused the victim or her brother. These statements are inaccurate.

The medical evidence adduced at trial clearly demonstrated that the victim died due to non-accidental trauma to her brain. Dr. Elizabeth Miller, the forensic pathologist who performed the autopsy, testified to this effect, as did LSU emergency room physician, Dr. Steven Conrad. Dr, Aftab Karim, the neurosurgeon who operated on the victim, testified similarly, although his conclusion was partially based on his not receiving any history of an accident in connection with the child’s injuries. 14Pr. Alan Richards, a pediatric ophthalmologist, who examined the victim, testified the victim’s injuries were symptomatic of “shaken baby syndrome.” He explained the victim’s symptoms were consistent with “a non-accidental trauma caused by child abuse, most likely caused by violent shaking by a caretaker.” Dr. Scott Benton, an expert on pediatric forensics, testified to the same effect. Specifically, he testified the cause of death was damage to the brain itself. Dr. Ken Ward, a pediatric radiologist, testified that the victim’s injuries were equivalent to those that would result from a high-velocity car wreck, or a three-story fall onto a sidewalk.

At trial, Defendant did not appear to challenge the conclusion that the victim died due to non-accidental trauma. The gist of his defense theory, as seen in his opening and closing statements, was that the State did not prove beyond a reasonable doubt that he inflicted said injuries. He repeats that argument in his brief to this court, and also argues the State failed to prove the elements of the underlying offense of cruelty to a juvenile.

In his review of the medical evidence, Defendant argues that none of the testifying physicians were able to establish a “timeline” regarding when the victim’s injuries occurred. However, he acknowledges that Dr. Karim testified the injuries likely occurred within the seventy-two hours preceding the victim’s admission to the hospital. He further notes that Dr. Ward testified the injuries occurred between six and seventy-two hours before the CT scans were taken. Dr. Ward testified the CT scans were taken at approximately 6:49 p.m. on February 29, 2004.

However, as the State points out in its brief, Dr. Karim testified the effects of the victim’s injuries were of a type that would have manifested immediately. Dr. Benton testified similarly, noting that activities such as walking from the car to the house and making a conscious attempt to hang up her coat (victim’s activities shortly | ^before her collapse, as indicated by Defendant’s statements to police, and by her mother’s testimony) would not have been possible after the victim sustained the degree of brain damage demonstrated by the medical evidence. Dr. Miller agreed that such ability to perform normal, day-to-day functions would be unlikely after such trauma.

Whitney Martinez, the victim’s mother, testified that the young girl was fine, performing normal activities on Friday, February 27, 2004. She also testified that the victim performed normal activities, such as playing with blocks, eating, and playing “school,” on Saturday. On Sunday morning, the victim and her brother woke up, ate breakfast, and watched cartoons. Martinez and Defendant, who had both made early morning visits to the hospital, napped from late morning until about 1:30 p.m. She testified her grandparents were awake at this time. When the sound of the telephone woke her up, the children were still playing and watching television.

The telephone call was from Defendant’s supervisor, telling him to come in to work. Therefore, Martinez, Defendant, the victim, and her brother got dressed; the children put on their coats and shoes, and all four of them drove back to their trailer.

The trip to their residence was approximately twenty minutes, and the victim fell asleep on the way. Martinez woke the child up when they arrived at the residence. Defendant let the victim out of the car, and she walked into the house ahead of her mother. The little girl headed toward the children’s bedroom, and Martinez headed for the bathroom, due to her illness. Martinez began to bathe; then Defendant came in looking for a washcloth. He left, then came back and told her that something was wrong, that she needed to come see the victim. When Martinez entered the living room, her daughter was lying on the couch. The little girl’s breathing was labored, and Defendant advised Martinez that she had defecated on 1 fiherself. Defendant and Martinez took the victim to Sabine Medical Center and that facility transferred her to LSU Health Sciences Center in Shreveport. Medical and surgical efforts to save the victim failed, and she died at the latter facility on March 2, 2004.

The trial court viewed videotapes of two separate statements Defendant gave to police. He told police that on Sunday, when they returned to their residence from Martinez’s grandparents’ home, the victim walked into the trailer. When Defendant entered, he heard a whining sound, and found the victim trying to hang up her own jacket. He told her to wait, and he went to check on Martinez in the bathroom. Also, he told the victim’s brother to start separating the clothes they had brought back with them. When he returned to the children’s bedroom, the victim was sitting in a chair. He started to hang up her jacket, and she came and stood beside him. Suddenly, according to Defendant’s statement, her eyes rolled up in her head, she collapsed, and he caught her in his arms. Defendant told police he was around the victim a lot from Wednesday through Sunday on the week of the offense, and that he did not recall seeing indications that she was sick. However, he stated she slept unusually late on Saturday night and into Sunday morning.

The victim’s grandmother, Nawana Remedies, also testified that she observed the victim on the Friday before the offense, and that the child seemed to be playing and otherwise behaving normally. She also saw the victim on Saturday, for “two to three hours,” and the child appeared to be fine; she ate, played, talked, and watched television. She saw the victim only briefly on Sunday, and the child was asleep.

The testimonies of Remedies and Martinez, and Defendant’s own statements, combined with the medical testimony, overwhelmingly narrow the window of time during which the victim’s injuries could have occurred. It is clear from the evidence |7recounted above that the little girl’s injuries had to have been inflicted immediately before she became symptomatic. The testimony of Martinez and Defendant’s own statement show that he is the only person who was in a position to have inflicted those injuries. Martinez was in the bathroom at the relevant time, and was apparently quite ill. The record is not clear regarding the whereabouts and activities of the victim’s older brother, Tristine, after the family entered the house. However, since Defendant admitted in his statement that the victim was still able to get up and walk that last time he entered her room, any theory that the boy could have inflicted the injuries is negated. Further, Defendant told police that shortly before re-entering the children’s bedroom to help the victim with her jacket, he saw Tristine and instructed the boy to separate the laundry. The Defendant appears to concede that Tristine knows nothing about the crime.

Thus, we find the trial evidence was sufficient to exclude any reasonable hypothesis that someone other than Defendant inflicted the fatal injuries.

In Defendant’s other argument under this assignment, he notes he was charged and convicted of second degree murder, because the killing occurred when he was committing cruelty to a juvenile, even though he lacked intent to kill or inflict bodily harm. Further, he observes the statutory definition of cruelty to juveniles, set forth in La.R.S. 14:9S(A), which states in pertinent part, “A. Cruelty to juveniles is: (1) The intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.... ”

Defendant argues there was no evidence “that the victim ... suffered or endured unjustified pain or suffering.” This particular portion of the argument fails, [gbecause it is clear the victim died as a result of “shaken baby syndrome.” Thus, the young girl was shaken to death.

Accordingly, the victim’s injuries are indicative of unjustified pain and suffering. First of all, it is logical to conclude that a child shaken in this manner would in fact experience unjustified pain and fear, even if only for an instant before lapsing into unconsciousness. Second, a defendant should not be able to put himself outside the prohibitions and punishment mandated by La.R.S. 14:98, simply by knocking out a child victim with the first assault. This cannot have been the legislative intent.

Defendant also argues the facts do not demonstrate that he had the general intent to inflict pain or suffering upon the victim, or that he was negligent in his care of the victim. Defendant cites State v. Cortez, 96-859 (La.App. 3 Cir. 12/18/96), 687 So.2d 515, as support for his position. In Cortez, this court held the evidence was insufficient to support the defendant’s conviction for attempted cruelty to a juvenile. However, we find that case distinguishable from the present one, as the State’s theory in Cortez was that the defendant had delayed treatment of injuries the victim had suffered.

As present defendant observes, part of the reason for the reversal in Cortez was this court’s conclusion that the circumstantial evidence did not demonstrate when the injury occurred. Id. As already demonstrated, that difficulty does not exist in the case sub judice, because the testimony of two lay witnesses, and the Defendant’s own statements to police, combined with the extensive medical testimony to establish the time-frame and manner of the injuries at issue. Further, Cortez is distinguishable because the present case involves the intentional infliction of injuries upon the victim, | flwhile Cortez involved the withholding of treatment for an injury. Therefore, this portion of Defendant’s argument fails.

On a similar note, Martinez testified the victim suffered apparently minor injuries while in Defendant’s care:

Q. And you took them — you took Mele-nia, excuse me, to see Amy Garcie on February 12th.
A. Yes, ma’am.
Q. And you didn’t see any marks or bruises on her before you took her to the doctor, is that correct?
A. No, ma’am.
Q. But you did see marks on her between the 12th and the 17th?
A. Yes, ma’am.
Q. Regarding the bruise on her buttocks that was thought to be a bite mark, you didn’t find that did you?
A. No, ma’am.
Q. Who found that?
A. Trent.
Q. While he was keeping them?
A. Yes, ma’am.
Q. And the fall to her wrist, who reported that to you?
A. Trent.
Q. That occurred while he was keeping her?
A. Yes, ma’am.

Martinez also testified that Defendant advised her not to take the victim to a doctor’s appointment to check for abuse, because OCS would blame Martinez, and take her children. The Defendant’s second statement was generally corroborative of Martinez’s testimony regarding these injuries. Further, Dr. Ward testified the victim |1f)had a minor arm fracture that was less than seven days old. He also stated that such injuries are very common, and that there was little he could conclude regarding the injury, other than stating it was evidence of trauma. However, Dr. Benton testified the arm injury, and other bruising on the child’s body, indicated there was “probably out-of-control discipline going on.”

As already discussed, the State developed a strong circumstantial case identifying the Defendant as the offender, based upon events that occurred on the last weekend of the victim’s life, combined with the medical evidence.

In another argument, Defendant mentions that none of his DNA was found on the victim’s shirt or coat. However, this has little bearing on the case since Defendant’s statements and Martinez’s testimony showed that he touched the victim, at the very least to catch and carry her unconscious body. Thus, the lack of DNA is merely inconclusive in the context of the overall case.

Also, Defendant notes that Dr. Miller, who performed the autopsy, testified there was no apparent damage to the victim’s neck muscles or blood vessels; however, this was but one fact for the trial court to weigh. Dr. Miller acknowledged that such neck damage would be possible in a shaken-baby situation, but did not indicate that such damage would be inevitable, or even likely.

For the reasons discussed, this assignment lacks merit.

ADMISSION OF EVIDENCE

In this assignment of error, Defendant argues the trial court erred by allowing into evidence the victim’s medical records from the LSU facility in Shreveport. He claims, as he did below, the purported certification of those records did not comply with the requirements set forth in La.R.S. 13:3715. The statute states:

Whenever a certified copy of a chart or record of any state operated health care facility is offered in evidence or when any court of | n competent jurisdiction has ordered the production of any chart or record of a state operated health care facility, certified copies of such chart or record, signed by the administrator or the medical records librarian of such hospital and attested by the seal of the hospital, shall be received in evidence with the same force and effect as though the original document were produced, and it shall be a sufficient compliance with any such order of court to furnish copies so certified.

Defendant notes the records at issue were certified by a person identified as the “Director, Health Information Management Dept.,” rather than a person specifically designated as a librarian. Further, he argues the statute should be strictly construed so as to exclude the records at issue. For support, he cites State v. Wilkinson, 00-339 pp. 18-19 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 768, unit denied, 00-3161 (La.10/12/01), 799 So.2d 494, which discussed a similar statute, La.R.S. 13:3714:

In State v. Trahan, 332 So.2d 218, 220 (La.1976), the court explained that, because the medical records rule is an exception to the hearsay rule created by statute, it is essential that all of the formalities prescribed in the statute be followed before such records are admissible in evidence. After finding that the records which the Defendant sought to introduce were not certified by any of the authorities named in the statute, the Trahan court concluded the records did not qualify for introduction under the hospital records exception to the hearsay rule and that the trial court correctly sustained the State’s objection to their admission. The Trahan court further concluded that, based on the evidence presented, no great prejudice was suffered by the defendant because of his inability to introduce the medical records in question. See also, State v. Day, 00-64, p. 8 (La.App. 5th Cir.5/30/00), 762 So.2d 264, 268, wherein this court held medical records were improperly admitted at trial since the proper party did not sign or verify the records as required by LSA-R.S. 13:3714.
The records sought to be introduced here recite that they were certified by a supervisor in Health Information Management, rather than the administrator or medical records librarian as required by the above statute. Thus, we find they were properly excluded.

In State v. Spooner, 368 So.2d 1086, 1088 (La.1979), the supreme court faced a similar problem:

Trial of this matter was held May 22 through May 24, 1978. At trial defendant sought to introduce into evidence the file from the East Louisiana State Hospital which covered the period of his commitment there. He was allowed to introduce only the cover letter, which showed |12the duration of the commitment; he was not permitted to produce the file which would contain any observations of his condition at the time of admission or the diagnosis which was made, though there is in the record of this case prior to trial a series of psychiatric evaluations showing that the defendant was a borderline mental retardate suffering from schizophrenia, paranoid type, that prior to his arrest in December of 1974 he had been hospitalized at Mandeville, and that this time of the arrest was a brief period between hospitalization at Mandeville and hospitalization at Jackson.
Defendant claims that the refusal of the court below to consider the hospital records was error, as the records would show that he was not mentally competent at the time he made the inculpatory statements introduced at the trial. Inclusion of the records in evidence might show that the State would have the burden of proving that defendant was competent to give a credible inculpatory statement.
The State argues that the exclusion of the records was proper, that the exception to the hearsay rule which is established by R.S. 13:3714 should be very narrowly interpreted, so that only the “administrator or the medical records librarian of the hospital in question” would be the ones who could certify any records so as to qualify them for admission in evidence. Because the records herein were certified by the “Superintendent” of the East Louisiana State Hospital, the State argues they are inadmissible.
That hearsay evidence may not be admitted is a fundamental rule. R.S. 15:434. However, R.S. 13:3714, as revised in 1977, establishes one of the limited exceptions to the hearsay rule. The question for our consideration is whether a “Superintendent” is an “administrator” for the purpose of this exception.
Courts of this state may take judicial notice of the state statutes. R.S. 15:422. It is noted that the legislature has enacted statutes dealing with the establishment of the various state hospitals and the duties of those charged with operating them. See generally R.S. Title 28 and R.S. 40:2001, et seq.; for more particular examples see R.S. 28:2(14) and R.S. 40:2013.3. It is clear that the person denominated “Superintendent” by the acts of the legislature is the one who is the “administrator,” and we so hold. The general term “administrator” is not to be limited to one who is given that title, but is to be read as applying to those who in fact fulfill the functions of an administrator.
The court below erred in excluding the record which the East Louisiana State Hospital certified through its Superintendent.

(Emphasis added).

|13The Spooner court’s conclusion that a “superintendent” and an “administrator” accord with the common understanding of those terms. Our survey of current statutes has not revealed a clear statutory correlation between the terms “librarian” and “health information manager.” However, at trial Dr. Conrad, the attending physician, testified that at LSU Health Sciences Center the librarian for medical records holds the title “Director of Health Information Management.” Defendant indicated he would cross-examine the doctor on this point, but did not do so.

As the Spooner court correlated the terms “administrator” and “superintendent” based upon a review of the statutes, we find, based upon Dr. Conrad’s testimony, that a “health information manager” or “director of health information management” is a librarian, for purposes of La. R.S. 13:3715. The strict reading advocated by Defendant would place any number of legitimate, authentic medical records beyond the parameters of the statute. Under his interpretation, whenever a medical facility used a term other than “librarian” for its custodian of records, neither La. R.S. 13:3714 nor 13:3715 would apply. Spooner shows this would not be a proper result. Trahan has never been overruled, and its call for procedural caution in applying La.R.S. 13:3714 is sound. However, Spooner tempers Trahan, by demonstrating that the application of the statute is not limited to the exact job titles that appear in its language. Further, the same reasoning would apply to both La.R.S. 13:3714 and 13:3715.

For the reasons discussed, this assignment lacks merit.

HEARSAY EVIDENCE

Defendant contends that the trial court erred by allowing the State to introduce hearsay evidence, in the form of a certificate from the Center for Disease Control. The document negated the presence of sexually-transmitted diseases in the victim’s rectal area.

luAs the State points out in its brief, the Defendant appears to combine this assignment of error in the heading for his sufficiency argument. However, Defendant does not include any argument on this issue. Thus, the State argues this assignment should be considered abandoned, pursuant to Uniform Rules, Courts of Appeal, Rule 2-12.4.

Defendant states in his Jackson argument that he is discussing both assignments in the same argument, but he does not mention the admissibility issue. Accordingly, the State’s position is correct; therefore, this assignment lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: GENOVESE, Judge.

text:
    STATE of Louisiana In the Interest Of G.R.
    No. 06-453.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      L. Antoinette Beard, Lafayette, Louisiana, for Plaintiff/Appellant, State of Louisiana, Department of Social Services.
    Michael Harson, District Attorney — Fifteenth Judicial District, ADA Angela H. Wagar, Crowley, Louisiana, for Plaintiff/Appellant, State of Louisiana.
    Brett A. Stefanski, Edwards, Stefanski & Zaunbrecher, L.L.P., Crowley, Louisiana, for Minor Child G.R.
    J. Marshall Montgomery, Lafayette, Louisiana, for Parents/Appellees, M.R. and S.H.
    Edward G. Saal, Jr., Gueydan, Louisiana, for Maternal Grandparents/Appellees, R.H. and M.H.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| /This is an appeal by the State of Louisiana, Department of Social Services (DSS), from a dispositional review hearing wherein the trial court rendered a judgment dividing the legal and physical custody of the minor, G. R., placing him in the legal custody of the DSS, and the physical custody of his maternal grandparents. The DSS asserts that the trial court erred in dividing the physical custody and legal custody of G.R. between it and the minor’s maternal grandparents. For the following reasons, we reverse the judgment of the trial court and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 14, 2005, G.R. was placed in the temporary custody of the DSS pursuant to an oral instanter order which was confirmed by a written instanter order that same day. A continued custody hearing was held on October 17, 2005. The trial court ordered that custody of G.R. continue with the DSS; however, a handwritten notation also appeared on the order of continued custody declaring “[t]he placement of the child is to be split equally between the maternal grandparents ... and the paternal grandmother.... ”

On October 25, 2005, the DSS filed a petition to adjudicate G.R. as a child in need of care pursuant to La.Ch.Code art. 606(A)(2). G.R. was continued in the custody of the DSS and was subsequently adjudicated in need of care at a hearing held on December 5, 2005. The trial court entered a judgment of adjudication and Indisposition granting the legal custody of G.R. to the DSS, and the physical custody to the maternal grandparents of G. R., with visitation granted to the paternal grandmother. It is from this judgment that the DSS appeals.

LAW AND DISCUSSION

“[A]n appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong.” In re A.J.F., 00-948, p. 25 (La.6/30/00), 764 So.2d 47, 61.

The DSS argues that La. Ch. Code art. 672 grants it the sole authority to make placement determinations for children in its custody; therefore, the DSS contends that the trial court erred by dividing the physical custody and legal custody of G.R. between it and the minor’s maternal grandparents. We agree.

Article 672 of the Louisiana Children’s Code provides:

A. Whenever custody of a child is assigned to the Department of Social Services, the child shall be assigned to the custody of the department rather than to a particular placement setting. The department shall have sole authority over the placement within its resources and sole authority over the allocation of other available resources within the department for children judicially committed to its custody.
B. The court shall not divide legal and physical custody whenever assigning custody to a department in accordance with this Article, Articles 619, 622, 627, 681, 700, or 716, or any other statute or provision of law. The court shall specify other public agencies or institutions that have legal or financial responsibility, or both, to provide their particular services identified at disposition or subsequent case review. Placing custody of a child with one state department shall not remove the obligation of any other state department to provide services to that child from their resources for which the child is eligible under state or federal statute or state or federal appropriation, including but not limited to twenty-four-hour care.

(Emphasis added.)

In State in the Interest of L.C.B., 01-2441, p. 7 (La.1/15/02), 805 So.2d 159, 163, the supreme court interpreted La.Ch.Code art. 672 stating that “when the court | ^assigns custody of a child adjudicated in need of care to [DSS], the Department has ‘sole authority’ over the placements within its resources of those children.” The court further elaborated:

Under the statutory scheme in place for children adjudicated in need of care and placed in the custody of [DSS], the court retains the ultimate authority over a child’s placement and may approve or reject a case plan submitted by the Department, but it may not revise the plan or make any particular placements itself.

Id. at 165.

Following the supreme court’s rationale in L.C.B., this court in State ex rel. D.B. v. M.O., 03-1408, p. 6 (La.App. 3 Cir.2004), 870 So.2d 1143, 1146 (emphasis added) held that:

This article [La.Ch.Code art. 672(A) ] has been interpreted to mean once eus-tody of a child is placed with [DSS], if the court finds the child is not being properly cared for it may remove the child from the custody of the [DSS]. However, the court is without power to designate a particular treatment plan or placement.

In the instant ease, the trial court’s order that G. R., a child adjudicated in need of care and placed in the legal custody of the DSS, be placed in the physical custody of his maternal grandparents, with visitation granted to his paternal grandmother, was in violation of La.Ch.Code art. 672. The trial court exceeded its authority by dividing the legal and physical custody of G.R. which, in effect, ordered a particular placement that DSS alone was entitled to make.

DECREE

For the foregoing reasons, that portion of the trial court’s judgment granting the physical custody of G.R. to his maternal grandparents, with visitation granted to his paternal grandmother, is hereby reversed and vacated. We remand this matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding.

        . Louisiana Children’s Code article 606(A)(2) provides that allegations of a child in need of care must be made when the child is a victim of neglect.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Warren Todd DOSSMAN.
    Nos. 06-449, 06-450.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Charles A. Riddle, III, District Attorney, Norris Joseph Greenhouse, Assistant DA, Marksville, LA, for PlaintiffiAppellee, State of Louisiana.
    William Jarred Franklin, LA Appellate Project, Bossier City, LA, for Defendant/Appellant, Warren Todd Dossman.
    Warren Todd Dossman, pro se.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

hThe Defendant, Warren Todd Doss-man, was convicted of unauthorized entry of an inhabited dwelling, a violation of La.R.S. 14:62.3. After the State filed a motion requesting that Defendant be sentenced as a habitual offender, pursuant to La.R.S. 15:529.1(A)(l)(a), he was sentenced to serve six years at hard labor, without the benefit of parole, probation, or suspension of sentence. He now appeals his conviction and sentence asserting that the evidence was insufficient to support his conviction and that his sentence is unconstitutionally excessive. Additionally, Defendant claims that the trial court erred when it failed to instruct the jury that criminal trespass was a lesser responsive verdict to the charged crime of unauthorized entry of an inhabited dwelling. For the following reasons, we affirm Defendant’s conviction and sentence, as amended with instructions.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find that there are two errors patent. First, the record does not indicate Defendant was advised of his right to remain silent or his right to have the State prove its case against him before he was adjudicated a habitual offender. We have found such error to be harmless when the defendant is adjudicated a habitual offender after a full hearing, and the defendant does not testify or acknowledge his status as a habitual offender. See State v. Alexander, 05-276, 05-277 (La.App. 3 Cir. 11/2/05), 916 So.2d 303.

In the present case, Defendant denied the habitual offender allegations, a hearing was held, and he was adjudicated a second habitual offender. Although the | ¡.State presented evidence to prove Defendant’s prior conviction of simple criminal damage to property, we note that he stipulated to his second or the instant conviction. This stipulation did not constitute an admission of Defendant’s status as a habitual offender; thus, the stipulation does not affect our present harmless error analysis because the only disputable issue at a habitual offender hearing is whether or not the defendant committed the prior conviction^) alleged in the charging instrument:

In habitual offender cases, the charges to be defended against are the prior convictions alleged. A defendant is unable to defend against the recent underlying offense(s) because the trial court has the right to take judicial notice of any prior proceeding in cases over which it presided. State v. Valentine, 397 So.2d 1299 (La.1981).

State v. Freeman, 00-238, p. 12 (La.App. 3 Cir. 10/11/00), 770 So.2d 482, 490, writ denied, 00-3101 (La.10/5/01), 798 So.2d 963.

The trial court in the present case presided over the trial of Defendant’s most recent conviction, as well as the habitual offender proceeding. Thus, the trial court had the right to take judicial notice of Defendant’s second or most recent conviction. Considering this fact, Defendant’s stipulation to his second or most recent conviction was a stipulation to a non-disputable fact and did not constitute an admission to his habitual offender status. Accordingly, we find that the trial court’s failure to advise Defendant of his rights in the instant case was harmless error because a hearing was held at which he was adjudicated a second habitual offender without acknowledging his habitual offender status.

Second, the trial court improperly denied Defendant parole eligibility. The trial court sentenced Defendant to six years at hard labor without benefit of probation, parole, or suspension of sentence. Although Section G of the habitual | ^offender statute requires all enhanced sentences to be imposed without benefit of probation or suspension of sentence, it does not authorize the trial court to impose enhanced sentences without benefit of parole. La.R.S. 15:529.1(G). “[T]he restrictions on parole eligibility imposed on multiple offender sentences under La.R.S. 15:529.1 ‘are those called for in the reference statute.’ ” State v. Tate, 99-1483, pp. 1-2 (La.11/24/99), 747 So.2d 519, 520 (citation omitted). The penalty provision for unauthorized entry of an inhabited dwelling, the reference statute in the present case, does not authorize the trial court to impose any portion of the sentence without benefit of parole. La.R.S. 14:62.3. Thus, the trial court improperly denied parole eligibility. Accordingly, we amend Defendant’s sentence to delete the denial of parole eligibility. See State v. Buckley, 02-1288 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193 and State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694. Further, we instruct the trial court to make an entry in the minutes reflecting this change. See Tate, 747 So.2d 519.

SUFFICIENCY OF EVIDENCE

Defendant asserts on appeal that the evidence presented was insufficient to support his conviction. In support of this assignment of error, Defendant argues that the State failed to prove that the structure he allegedly entered was an inhabited dwelling or place of abode. He also argues that he did not actually enter the structure.

In determining sufficiency of the evidence on appeal, this court has previously stated:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could 14have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).
In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. In order for this court to affirm a conviction, the record must reflect that the State has satisfied this burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). “The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony; thus, a reviewing court may impinge on the ‘fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.’ ” State v. Johnson, 03-1228, pp. 4-5 (La.4/14/04), 870 So.2d 995, 998 (quoting State v. Sylvia, 01-1406, p. 2-3 (La.4/9/03), 845 So.2d 358, 361).

Defendant was convicted of unauthorized entry of an inhabited dwelling, as prohibited by La.R.S. 14:62.3(A), which states the following in pertinent part: “Unauthorized entry of an inhabited dwelling is the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.”

| ^Defendant argues that the State did not prove that the structure involved was actually an inhabited dwelling or place of abode. He states that to be an “inhabited dwelling” within the statute, a person must actually be living in the structure, deem it to be a place of abode, and treat it as such. In support of these statements, he cites State v. Smith, 28,280 (La.App. 2 Cir. 6/26/96) 677 So.2d 589, writ denied, 97-850 (La.11/14/97), 703 So.2d 1287, and State v. Black, 25,527 (La.App. 2 Cir. 12/1/93), 627 So.2d 741.

However, we note that Smith says that a house may be classified as inhabited if it is only lived in part of the time, even where the inhabitant does not have an intent to remain. Smith, 677 So.2d 589. The Smith court pointed to jurisprudence which determined that a rented motel room could be considered an inhabited dwelling, citing State v. Surtain, 529 So.2d 1375 (La.App. 5 Cir.1988). Additionally, the Smith court discussed the Black ruling, stating that “this court held that a house which is lived in for only part of the time may be classified as ‘inhabited’ for the purposes of the inhabitation requirement of the burglary statute.” Smith, 677 So.2d at 592.

At approximately 2:00 a.m. on June 8, 2003, Defendant went to the home of Flossie Simmons in Bunkie, Louisiana. Flossie lived in the house with her son, her daughter, Joyce Simmons, and Joyce’s two sons. Defendant had previously had a relationship with Joyce and is the father of her sons. During the trial, Flossie and Joyce both testified that they were inside the structure, which they both called an apartment, at the time of the incident. The women described the building as a wash room that had been renovated to include a bathroom and an area with a sofa, chair, television, and air conditioner. Flossie stated that Joyce often entertained | ¿friends in the apartment where she could have more privacy and slept there even though she also maintained a bedroom in the main house and usually slept there. Joyce also testified that she often entertained in the apartment and occasionally slept there, although she did say on cross-examination that she basically lived in the main house. Additionally, Defendant admitted in his own testimony that he went to the apartment and pushed the air conditioner through the wall in order to see inside because he wanted to see if Joyce was entertaining a boyfriend there. There was no testimony offered at trial to suggest that Defendant went to the main house prior to approaching the apartment. Consequently, Defendant’s actions demonstrated that he went there because he was aware, at least, that Joyce spent sufficient time in the apartment and that she would be likely to be found there if she was entertaining. Finally, we note that Joyce and Flossie were actually in the apartment when this episode occurred.

As the factfinder, it was well within the province of the jury to accept Joyce and Flossie’s testimony that Joyce spent time entertaining there and that she occasionally slept there, as well as in the main house. “It is not uncommon for people to have two places of abode, and for both of them to be deemed inhabited for purposes of LSA-R.S. 14:62.2.” Black, 627 So.2d at 746. The State presented sufficient evidence that the apartment was used, at least part-time, as a place of abode for Joyce. Accordingly, we hold that the State met its burden in proving that the structure constituted an inhabited dwelling.

Next, Defendant argues that insufficient evidence was presented to support a finding that he actually entered the apartment. He points out that both |7Flossie and Joyce testified that the apartment door was locked and that he did not have a key. He also suggests that the evidence supports his account of the events because he testified that he gave his watch to Flossie immediately before his arrest and she actually had it and presented it to the court.

Flossie testified that after Defendant pushed the air-conditioning unit through the wall, he stuck his arm through the hole and began to threaten Joyce. She also testified that Defendant then went around to the door of the apartment and entered the main room while Joyce hid in the apartment’s bathroom. Flossie stated that while in the apartment, Defendant hit her in the eye and that she “tussel[ed]” with him. She testified that she then convinced him to leave the apartment and go outside with her, giving Joyce a chance to run from the apartment to the main house and contact police.

Joyce testified that she was sitting in the apartment with her mother when the air-conditioning unit came through the wall. She said that she saw that Defendant “was at the window attempting to reach in the window,” so she ran to hide in the bathroom. Joyce testified that from the bathroom, she heard Defendant threatening to kill her and “the door being kicked in and a lot of commotion after that.” She stated that she also “felt and also heard a big bam on the door like he was trying to come in behind me like three or four times on the bathroom door.” However, on cross-examination, she stated that she never saw Defendant enter the apartment and that her mother, due to her age, occasionally becomes confused or forgetful when she is nervous.

IsDefendant testified that on the night of the incident he had heard that Joyce was entertaining a man and that he went to her house to see who the man was. He admitted that he pushed the air-conditioning unit through the wall, but stated that he did not enter the apartment. He said that when he saw that there was no other man in the apartment, he walked around to the front of the house, Flossie met him outside, and the two conversed. He stated that when the police arrived, he gave his keys and watch to Flossie to hold in case of his arrest.

Because it is the role of the jury as the factfinder to make credibility determinations, we will not question those determinations beyond the standard for evaluating the sufficiency of evidence outlined in Jackson. See Touchet, 897 So.2d 900. “A victim’s or eyewitness’s testimony alone is usually sufficient to support a verdict.” State v. Davis, 02-1043, p. 4 (La.6/27/03), 848 So.2d 557, 559; State v. Hills, 99-1750, p. 8, n. 8 (La.5/16/00), 761 So.2d 516, 522.

The jury heard the testimony above and convicted Defendant as charged. Because Defendant was not inside the apartment when police arrived, the jury had to determine whether he had entered it based on the accounts presented by Defendant, Flossie, and Joyce. The jury apparently believed the testimony of Flossie and Joyce that Defendant entered the apartment at least once. In viewing the evidence in a light most favorable to the prosecution, we find that the jury reasonably determined that the State proved beyond a reasonable doubt all of the elements of the crime of unauthorized entry of an inhabited dwelling. Accordingly, this assignment of error is without merit.

^FAILURE TO GIVE A JURY INSTRUCTION

For this assignment, Defendant argues that the trial court failed to instruct the jury that criminal trespass is a lesser included offense of unauthorized entry of an inhabited dwelling. Defendant argues that his conviction should be reversed because the jury may have chosen the lesser responsive verdict, had they been advised of it.

Louisiana Code of Criminal Procedure Article 803 requires a trial court to advise the jury of the law applicable to all offenses charged, as well as any other offenses for which the accused could be found guilty under La.Code Crim.P. arts. 814 and 815. Because Article 814 does not provide any statutory responsive verdicts for unauthorized entry of an inhabited dwelling, the provisions of Article 815 apply. Article 815 states that in those cases not provided for by Article 814, the responsive verdicts are guilty, not guilty, or “[gjuilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor.”

In support of his argument, Defendant points to State v. Simmons, 01-293 (La.5/14/02), 817 So.2d 16. In that case, the defendant was charged with unauthorized entry of an inhabited dwelling. The facts of that case showed that the defendant “forced his way into the apartment of his ex-girlfriend and smashed her television set with a mallet.” Id. at 18. Although the defendant requested that the trial court add criminal trespass to the list of responsive verdicts, the trial court denied the request. The defendant was subsequently found guilty of attempted unauthorized entry of an inhabited dwelling. The court of appeal affirmed the | inconviction, finding that the trial court had properly refused the lesser jury charge because the defendant had not presented a written request for the charge prior to trial. Considering the issue, the Louisiana Supreme Court stated:

Lesser and included offenses are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State v. Porter, 93-1106 (La.7/5/94), 639 So.2d 1137; State v. Dufore, 424 So.2d 256 (La.1982); State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982). Stated another way, “if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive.” State v. Simmons, 422 So.2d 138, 142 (La.1982) (quoting State v. Poe, 214 La. 606, 38 So.2d 359, 363 (1948) (on rehearing)). Consequently, evidence which would support a conviction of the charged offense would necessarily support a conviction of the lesser and included offense. Dufore at 258; Elaire, at 248-49. Because this is the case, when the defendant requests that the jury be instructed on the law applicable to an offense which is truly a lesser and included offense of the charged offense, the trial court has no discretion to refuse to give the requested instruction. Dufore at 258.

Id. at 19.

The supreme court then determined that Simmons’ request for the criminal trespass instruction was a responsive verdict pursuant to Article 815 and was not a special charge which required advance, written notice pursuant to La.Code Crim.P. art. 807. After noting that the defendant had specifically requested that the criminal trespass charge be given to the jury, the supreme court said that criminal trespass is a lesser and included offense of unauthorized entry of an inhabited dwelling. The supreme court explained:

Unauthorized entry of an inhabited dwelling, the charged offense, is defined by La. R.S. 14:62.3 as “the intentional entry by a person without authorization into any inhabited dwelling or other [ n structure belonging to another and used in whole or in part as a home or place of abode by a person.” Likewise, La. R.S. 14:63 provides for the crime of criminal trespass in pertinent part as follows:
A. No person shall without authorization intentionally enter any structure, watercraft, or movable.
B. No person shall intentionally enter immovable property owned by another:
(1) When he knows his entry is unauthorized, or
(2) Under circumstances where he reasonably should know his entry is unauthorized.
Criminal trespass thus includes the unauthorized and intentional entry of any structure, elements which are also found in the crime of unauthorized entry of an inhabited dwelling. We cannot imagine a situation in which a person can be guilty of unauthorized entry of an inhabited dwelling without also being guilty of criminal trespass. We therefore find that criminal trespass is a lesser included offense and a responsive verdict to a charge of unauthorized entry of an inhabited dwelling.
The trial court erred in denying the defendant’s request to give the jury on [sic] instruction on criminal trespass. This error was not harmless because there is a reasonable possibility that the error affected the outcome. Given the fact that the jury, after requesting further instruction, returned a verdict of the only lesser included offense offered, it is entirely possible that the jury would have returned a verdict for the lesser misdemeanor offense of criminal trespass if that charge had been given. This difference is significant since defendant would have escaped sentencing as a multiple offender under La. R.S. 15:529.1 if the jury had convicted him of criminal trespass, a misdemeanor. Defendant’s conviction for attempted unauthorized entry of an inhabited dwelling must therefore be reversed.

Id. at 20-21.

Based on Simmons’ holding that criminal trespass is a lesser included offense of unauthorized entry of an inhabited dwelling, Defendant herein requests that we find that the trial court erred in not instructing the jury on criminal trespass |12and consequently reverse his conviction. Defendant argues that as in Simmons, a reasonable possibility exists that the jury would have convicted him of criminal trespass, a misdemeanor offense, and he would not have been sentenced pursuant to the habitual offender statute.

However, the instant matter can be distinguished from Simmons for two reasons. First, the jury found Defendant guilty of unauthorized entry of an inhabited dwelling by a unanimous vote. The trial court’s instructions read to the jury included responsive verdicts for unauthorized entry of an inhabited dwelling, attempted unauthorized entry of an inhabited dwelling, and not guilty. In Simmons, the jury was offered the same three potential responsive verdicts as in the instant matter, but convicted Simmons of attempted unauthorized entry (emphasis added). The Simmons court noted in its opinion that the attempt verdict was the only lesser included offense provided, suggesting the possibility that the jury may have chosen the criminal trespass misdemeanor verdict had it been offered. As in Simmons, the jury in the instant matter had the option of choosing the lesser included attempt verdict; however, it did not do so. Instead, the jury unanimously found Defendant guilty of the offense as charged. In that regard, we find that the failure of the trial court to give the jury charge is harmless error.

Next, the instant matter is distinguishable from Simmons because it is unclear from the record whether Defendant requested the criminal trespass instruction be provided or entered an objection when it was not. As stated above, the Simmons court found that a request for a criminal trespass instruction is a responsive verdict and, therefore, need not be made in writing. However, when the supreme 113court considered the merits of Simmons’ assignment, it “note[d] defendant specifically asked the trial court to charge the jury on the law applicable to the offense of criminal trespass.” Id. at 20.

In State v. Hernandez, 02-340 (La.App. 5 Cir. 7/30/02), 824 So.2d 529, the appellate court relied heavily on Simmons in a similar matter. In Hernandez, the defendant was sentenced as a subsequent offender based on a conviction of unauthorized entry of an inhabited dwelling. The Hernandez jury also was not instructed that criminal trespass was a responsive verdict. Due to the trial court’s refusal to include criminal trespass as a responsive verdict, the fifth circuit reversed the defendant’s conviction and remanded the matter for a new trial. Discussing Simmons, the Hernandez court stated, “[i]n this case, defendant likewise specifically requested the trial court to charge the jury on the law applicable to the offense of criminal trespass.” Id. at 530.

Turning to the instant matter, we cannot say that the record affirmatively reflects that Defendant requested, either orally or in writing, that a criminal trespass instruction be given to the jury, nor does the record reflect that he lodged an objection when one was not given. The trial transcript reveals that the following discussion took place immediately after the assistant district attorney finished his rebuttal closing argument and before the trial court charged the jury:

(Closing arguments concluded.)
BY THE COURT:
All right thank you. Counsels need to approach.
BENCH CONFERENCE — RE-
CORDED — UNINTELLIGIBLE
BY THE COURT:
| uThe attorneys have a right to look at the charges before I give them to you and give me any input they want.
We’ve had a charge conference [sic] any objections by the State as to the charges and verdict form that I intend to proceed with?
BY MS. MOREAU:
No objection, your Honor.
BY THE COURT:
O.K. Any objections by the defense?
BY MR. WILLIAMS:
What’s that, Your Honor?
BY THE COURT:
We’ve had a charge conference, are there any objections to the proposed instructions?
BY MR. WILLIAMS:
Only the ones we discussed, Your Honor.
BY THE COURT:
All right, thank you.
COURT’S FINAL CHARGE TO JURY

Based on the excerpt above, it appears as though defense counsel had voiced some objection to the proposed instruction during the bench conference. However, the nature of the objections discussed is unclear as no record was made of those objections.

In order to preserve an issue for appeal, a party must make a contemporaneous objection. Louisiana Code of Criminal Procedure Article 841(A) provides, in part, that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” Louisiana courts have consistently recognized this as the contemporaneous objection rule, noting its dual purposes: “(1) to put the trial judge on notice of the alleged irregularity so that hej^may cure the problem and (2) to prevent a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection.” State v. Potter, 591 So.2d 1166, 1169, n. 6 (La.1991), writ denied, 619 So.2d 574 (La.6/18/93) (quoting State v. Thomas, 427 So.2d 428, 432 (La.1982)). See also State v. Bias, 95-541 (La.App. 3 Cir. 1/31/96), 674 So.2d 265; State v. Stracener, 94-998 (La.App. 3 Cir. 3/1/95), 651 So.2d 463, writ denied, 97-0696 (La.11/7/97), 703 So.2d 1261.

Based on the excerpt above, we find that neither a request for the criminal trespass instruction nor an objection to its omission from the list of responsive verdicts appears in the record. Defendant did not reiterate any objections outside of the bench conference for the record, and we could not locate any other indication that an objection was formally entered into the record at any time before or after the jury had been excused for deliberations.

Louisiana Code of Criminal Procedure Article 801(C) states:

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of the objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

Additionally, we note that in his appellate brief to this court, Defendant does not assert that the criminal trespass instruction was actually requested. He also does not make any assertion as to what objection, if any, was made during the bench conference. Instead, his entire argument relating to this assignment consists of a detailed analysis of the Simmons case and a brief factual comparison of the instant matter to Simmons. Consequently, recognizing that the record does not indicate that 11fiDefendant specifically objected to the lack of a criminal trespass responsive verdict at trial and that he does not allege on appeal that one was made to preserve the issue, he may not raise the issue on appeal. See La.Code Crim.P. art. 801; State v. Odle, 02-226 (La.App. 3 Cir. 11/13/02), 834 So.2d 483, writ denied, 03-625 (La.6/20/03), 847 So.2d 1219. Accordingly, this assignment of error is without merit.

EXCESSIVE SENTENCE

In his final assignment of error, Defendant asserts that the sentence imposed is unconstitutionally excessive. He filed a Motion to Reconsider in accordance with La.Code Crim.P. art. 881.1. Under Article 881.1, a defendant must file a motion to reconsider the sentence setting forth the specific grounds upon which the motion is based in order to raise any sentencing claims on appeal. State v. Mims, 619 So.2d 1059 (La.1993). In order to preserve a claim of constitutionally excessive sentence, the defendant need only claim that his sentence is excessive. Id.

In his Motion to Reconsider, Defendant argued that he should receive the minimum sentence for which he was eligible, which was three years. He argued that he had sympathy for his victims and that he had enrolled in anger management and substance abuse courses while incarcerated. Additionally, Defendant stated that if released, he would stay away from the victims and would be able to work to support his children.

However, he does not raise those arguments to this court, but instead asserts that his sentence was excessive because it was imposed pursuant to the felony unauthorized entry of an inhabited dwelling conviction. He asserts that “[t]here is a reasonable possibility that had the jury been instructed that criminal trespass was |17a lesser and included offense, the jury would have convicted [him] of the misdemeanor charge of criminal trespass.” He points out that such a misdemeanor conviction would have allowed him to escape sentencing as a multiple offender. Therefore, Defendant’s argument on appeal appears to be that the failure of the trial court to include the criminal trespass jury charge resulted in an excessive sentence.

The supreme court, in Mims, 619 So.2d at 1059-60, held:

If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness.

Therefore, Defendant’s argument in support of this assignment is substantially the same as his argument relating to the former assignment. Because Defendant did file a Motion to Reconsider based on ex-cessiveness and has not alleged any other new claims related specifically to sentencing, we will review the sentence under a bare excessiveness review.

We have set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99—192[p.5] (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 [p. 3] (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331.

In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, we have held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-0719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061.

Louisiana Revised Statute 14:62.3 states that the penalty for unauthorized entry of an inhabited dwelling is a fine of not more than one thousand dollars or imprisonment with or without hard labor for not more than six years, or both. Defendant was also adjudged a second offender pursuant to La.R.S. 15:529.1(A)(l)(a), which authorizes “a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first convietion[.]” Consequently, after the multiple offender determination, the Defendant faced a potential sentencing range of three to twelve years.

|19In sentencing Defendant, the trial court considered the nature of the crime and Defendant’s background, especially as it related to the two victims in this matter. The trial court expressed concern regarding his past harassment of Joyce and his violation of a restraining order she had against him. In his reasons for sentencing, the trial court also noted Flossie’s allegations that Defendant had pushed her and threatened to kill Joyce during the incident. At the Motion to Reconsider hearing, the trial court additionally noted a serious concern for Defendant’s history of harassing Joyce and a concern that he would continue to pursue her if given a lesser sentence.

In State v. Williams, 32,998 (La.App. 2 Cir. 3/1/00), 754 So.2d 418, the Second Circuit affirmed a sentence of five years for a similar crime. In Williams, the defendant went to his girlfriend’s apartment, but she told him she did not want to see him. The defendant kicked in the door of the apartment, entered, and had an argument with the victim. Although he physically restrained her, the victim managed to escape the apartment and contact a friend for assistance. The defendant was charged with unauthorized entry of an inhabited dwelling and, following a jury trial, received a five-year sentence.

In this case, Defendant’s six-year sentence is a mid-range sentence. The trial court outlined its understanding of the history between Defendant and Joyce and was clear in its concern that Defendant could possibly continue to harass or otherwise threaten her, as evidenced by his violation of the restraining order. The trial court also considered other aggravating circumstances including the threats and pushing of Flossie during the incident. Consequently, we find that the sentence of lansix years at hard labor was not excessive and that this assignment of error lacks merit.

CONCLUSION

Defendant’s conviction and sentence for the offense of unauthorized entry of an inhabited dwelling is affirmed. However, his sentence of six years at hard labor without the benefit of probation, parole, or suspension of sentence is amended to delete the denial of parole eligibility, and the trial court is instructed to make an entry in the minutes of this case to reflect this change.

AFFIRMED AS AMENDED WITH INSTRUCTIONS.

      . Louisiana Code of Criminal Procedure Article 807 mandates that where either the defendant or the state would request any special charges be given to the jury, such requests must be made in writing prior to trial.


text:
    Tarita MANOR v. ABBEVILLE GENERAL HOSPITAL.
    No. 06-500.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Harold D. Register, Jr. Attorney at Law, Lafayette, LA, for PlaintiffAppel-lant, Tarita Manor.
    Troy Allen Broussard, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Abbeville General Hospital.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

| garita Manor appeals the judgment of the trial court granting the motion for summary judgment filed by her employer, Abbeville General Hospital. We affirm.

FACTS

On February 25, 2003, Tarita Manor was employed as a nurse at Abbeville General Hospital. A mentally ill patient with prior violent tendencies pushed Manor through a wooden door. As a result of the incident, Manor experienced and continues to suffer extreme pain in her neck and shoulders and is no longer capable of working in her field.

Manor filed suit against Abbeville General Hospital. Abbeville General Hospital filed a motion for summary judgment alleging that it was immune from suit and that Manor’s exclusive remedy was provided by workers’ compensation law. In an attempt to overcome the employer’s statutory immunity, pursuant to La.R.S. 23:1032(A), Manor alleged that her injuries were substantially certain to occur because the mentally ill patient had struck other individuals in the past and Abbeville General was aware of this propensity to violence. The trial court granted the motion for summary judgment. Manor lodged this appeal.

LAW

At the outset, we note that appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether or not summary judgment was appropriate. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no | ¡.genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La.3/13/98), 712 So.2d 882. After which, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Id. Thus, summary judgment is apropos when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Id.

“Facts are material if they determine the outcome of the legal dispute.” Soileau, 702 So.2d at 821. The determination of the materiality of a particular fact must be made in light of the relevant substantive law. Id.

The relevant substantive law is found in La.R.S. 23:1032. If an employee is injured or killed in the course and scope of his employment, the exclusive remedy is workers’ compensation. La.R.S. 23:1032(A). However, when the injury occurs from an intentional act, the employee and his family may seek other remedies. La.R.S. 23:1032(B). This statute, giving a worker and his family a remedy for an intentional injury, states:

Nothing in this Chapter [Chapter 10 Workers’ Compensation] shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

The factual issue at the heart of the case before us is whether Abbeville General’s conduct was intentional. Manor contends that the accident was substantially certain to follow because Abbeville General was aware of the patient’s | ¡¡propensity to violence and failed to take appropriate action to prevent it and the failure to take action to prevent further violent acts by the patient was an intentional act. We find that to be too broad an interpretation of the the intentional act exception to the workers’ compensation exclusivity provisions. In Ponthier v. Brown’s Manufacturing, Inc., 95-1606, pp. 5-6 (La.App. 3 Cir. 4/3/96), 671 So.2d 1253, 1256, we said:

Our brethren on the First Circuit, Court of Appeal visited this issue recently in Landry v. Uniroyal Chemical Co., Inc., 94-1274 (La.App. 1 Cir. 3/3/95); 653 So.2d 1199, writ denied, 95-1381 (La.9/15/95); 660 So.2d 461. That court rendered as follows:
Louisiana courts have narrowly interpreted the intentional act exception to the worker’s compensation exclusivity provisions. (Citations omitted.) In White v. Monsanto Co., 585 So.2d 1205, 1208 (La.1991), the supreme court explained the meaning of “intentional act” under Revised Statute 23:1032(B):
[T]he person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional, Bazley v. Tortorich, 397 So.2d 475 (La.1981).
The term “substantially certain” has been interpreted to mean “nearly inevitable,” “virtually sure,” and “incapable of failing.” (Citation omitted.) It requires more than a reasonable probability, even more than a high probability, that an accident or injury will occur. (Citation omitted.) Mere knowledge and appreciation of risk does not constitute intent, nor does reckless or wanton conduct or gross negligence. (Citation omitted.)
[4Our courts have held that allegations of failure to provide a safe place to work, deficiently designed machinery and disregard of OSHA safety provisions, failure to correct unsafe working conditions, and failure to provide specifically requested safety equipment are not sufficient to invoke the intentional act exception of Revised Statute 2S:1032(B) absent proof (or in the case of summary judgment, disputed issues of fact) of either defendant’s desire to harm plaintiff or defendant’s knowledge that his conduct would nearly inevitably cause injury to plaintiff. (Footnotes omitted.) Id. at 1202.

In the present case, the allegations that Abbeville General was aware of the danger and failed to remedy it are insufficient to establish an intentional act under the law. Under these circumstances and in view of the foregoing discussion, we find that the grant of Abbeville General’s motion for summary judgment was appropriate.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Tarita Manor.

AFFIRMED.