author: JOAN BERNARD ARMSTRONG, Chief Judge. BELSOME, J.

text:
    Marcelino HERRERA v. The CAJUN COMPANY.
    No. 2006-CA-1627.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 2007.

      Marcelino Herrera, Lufkin, TX, In Proper Person, Plaintiff/Appellant.
    Philip J. Borne, Christovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

pThe plaintiff, Marcelino F. Herrera, appeals from a judgment of the Office of Workers’ Compensation dated April 2, 2005. The trial judge found that Mr. Herrera had not carried his burden of proving that he suffered a work-related accident that resulted in any disability or aggravation of any pre-existing condition. The trier of fact found further that Mr. Herrera is not entitled to any workers’ compensation medical or indemnity benefits for the alleged accident. The final judgment dismissed Mr. Herrera’s claim with prejudice, and assessed all costs to him. The judgment also dismissed the fraud claim filed pursuant to La.R.S. 23:1208 by Mr. Herrera’s employer, The Cajun Company (Cajun).

The Workers’ Compensation Judge granted a suspensive appeal by orders dated April 29, 2005 and May 3, 2005 , returnable to this Court on August 21, 2005. The trial court granted Mr. Herrera’s request to proceed in forma pauperis on July 6, 2006.

On February 22, 2007, Mr. Herrera filed in this court an unsigned, one single-spaced eight and one-half inch by eleven inch page entitled “Brief’. This | gdocument consists of Mr. Herrera’s statement of the facts surrounding his alleged work-related accident.

Mr. Herrera’s brief does not claim that the trial court committed any legal error or that its factual findings were manifestly wrong. In light of the absence of any allegation of legal or factual error, we affirm the judgment of the trial court insofar as it dismisses Mr. Herrera’s claim with prejudice and assesses all costs against Mr. Herrera.

Cajun answered the appeal, seeking restitution pursuant to the provisions of La. R.S. 23:1208.

In its reasons for judgment, the trial court made the following factual findings:

(1) Despite having carefully considered that any answers or actions by Mr. Herrera might have been caused by his confusion in testifying in English, which is not his native language, he was not a credible witness at trial or elsewhere.

(2) Although Mr. Herrera has some major medical disabilities, he did not prove that they were caused by a work-related accident. The court-appointed | ^independent medical expert, Dr. George Murphy, opined that he could not relate Mr. Herrera’s medical problems to the alleged accident.

(3) “It was a close call” but the trial court did not find that Mr. Herrera had the intent to defraud his employer and denied relief under La.R.S. 23:1208.

It is with respect to this third finding that Cajun appeals.

Louisiana Revised Statutes 23:1208 provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining ... any benefit or payment under the provisions of this Chapter, ... to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any' right to compensation benefits under this Chapter.

Cajun has the burden of showing that (1) Mr. Herrera made a false statement or representation; (2) that he made it willfully; and (3) that he made it for the purpose of obtaining a benefit or payment under the workers’ compensation statute. Resweber v. Haroil Const. Co., 94-2708 (La.9/5/95), 660 So.2d 7. The Louisiana Supreme Court discussed the application of the statute in these terms:

. Louisiana Revised Statutes 23:1208 applies to any false statement or misrepresentation, including one concerning a prior injury, made specifically for the purpose of obtaining workers’ compensation benefits and therefore generally becomes applicable at the time of an employee’s accident or claim. This broadly worded statute encompasses false statements or misrepresentations made to anyone, including the employer, physicians, or insurers, when made willfully or deliberately for the purpose of obtaining benefits. Resweber v. Haroil Const. Co., at pp. 1-2, 660 So.2d at 9.

|4The Supreme Court found Section 1208 to be “clear and unambiguous” and to be “applied as written”. Id. at p. 7, 660 So.2d at 12. The court also addressed the legislative intent of the anti-fraud statute:

The history of Section 1208 indicates a clear legislative intent to prevent and discourage fraud in relation to workers’ compensation claims, and Section 1208 should not be subjected to a strained interpretation which would undercut that legislative intent. Prior to 1989, Section 1208 required a criminal conviction under its provisions before the employee forfeited his benefits. However, the legislature eliminated the necessity of a criminal conviction as a prerequisite for a claimant’s forfeiture of benefits by amending Section 1208 to require only a “violation” of the Section. 1989 La. Acts. No. 454. Thus, the legislature chose to make it easier to establish grounds for a claimant’s forfeiture of benefits. H. Alston Johnson, Workers’ Compensation Developments in the Law, 50 La.L.Rev. 391, 401 (1989). A 1992 amendment to Section 1208 added civil penalties to the criminal penalties and made clear that a hearing officer is to determine whether a claimant violated the section, resulting in the disqualification from receiving benefits. 1992 La. Acts. No. 763. See generally, Denis Paul Juge, Louisiana Workers’ Compensation § 6:3 (1995). The legislature has determined workers’ compensation fraud is a severe and growing problem and has continually amended Section 1208 to make it easier to enforce and to make the penalties stiffer. It is clear from the history of the statute that the legislature intended that any false statements or representations willfully made for the purpose of obtaining benefits would result in forfeiture of those benefits, and this legislative intent cannot be ignored. Id. at pp. 7-8, 660 So.2d at 12-13.

Applying the manifest error standard of review, the court reinstated the workers’ compensation judge’s imposition of the statutory penalty in Mr. Resweber’s case based on his denial of any prior back injury more serious than a pulled muscle. He denied prior serious medical problems and intermittent Iow|5back pain with left lower extremity symptoms below the knee to the ankle prior to the date of his alleged on-the-job injury. These statements were contradicted by the evidence, showing that in 1989 he was treated for a two month history of low back pain with radiating pain in the right leg, which he incurred when weight lifting. Because Mr. Reswe-ber and his parents were present in 1989 when the doctor discussed the weight-lifting injury in detail, the hearing officer concluded that both Mr. Resweber and his parents knew that he had a possible herniated disc at that time. The officer rejected Mr. Resweber’s claim that he “maybe just did not remember”, noting that this kind of pain is not easily forgotten and found it incredible that Mr. Resweber could not remember in August of 1992 the pain he described to the attending physician in 1989.

The court also affirmed the appellate court’s affirmance of a hearing officer’s imposition of Section 1208 restitution in the consolidated claim of Roderick Storks against Manpower Temporary Services, Inc. (Manpower) In that matter, Mr. Storks was found to have injured his lower back in June, 1992. He then applied for work with Manpower, denying any disabling injury. He then allegedly injured himself in September, 1992, while working for Manpower. He gave two false statements, denying the prior back injury and denying having worked for his previous employer.

A sharply divided panel of the Louisiana Court of Appeal, Third Circuit, reversed a hearing officer’s finding denying the statutory penalty in Menard v. Mama’s Fried Chicken, 97-488 (La.App. 3 Cir. 3/6/98), 709 So.2d 303. The appellate court noted that Ms. Menard denied prior back injuries, prior treatment by physicians, prior domestic and civil claims, and prior convictions, and did not reveal the truth until confronted. There is no indication in the opinion that Ms. |fiMenard’s educational and language background limited her understanding in any way. Mr. Herrera, in contrast, testified both at his deposition and at trial to his prior accidents. His case is similar to that decided by the same court in Sumner v. Lake Charles Marine, 96-280 (La.App. 3 Cir. 6/5/96), 676 So.2d 653, where the plaintiff denied prior back injury in his deposition, but admitted that he suffered injuries in a previous accident. The court declined to impose the statutory penalty in Sumner.

A hearing officer’s failure to impose the statutory penalty was reversed in Bass v. Allen Cannery Co., Inc., 30,635 (La.App. 2 Cir. 6/26/98), 715 So.2d 142. Again, there is no indication of any limitation of Ms. Bass’s understanding, and the appellate court specifically found that the record provided no factual support for a conclusion that Ms. Bass misunderstood the questions asked of her at deposition and at trial.

We recognize that the manifest error standard of review strictly limits an appellate court’s ability to modify factual findings of the trier of fact. It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great |7deference to the trier of fact’s finding. However, where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest' error or clear wrongness even in a finding purportedly based upon a credibility determination. But, where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

The hearing officer’s basis for denying statutory restitution was the finding that Mr. Herrera did not intend to misrepresent the facts. This Court has held that statutory forfeiture is a harsh remedy that must be strictly construed. Hernandez v. ESCO, Inc., 00-0174, p. 3 (La.App. 4 Cir. 11/15/00), 773 So.2d 865, 867. In determining whether a statement is willful, the courts have considered whether the statement is merely inadvertent or inconsequential. Inadvertent or inconsequential statements will not give rise to a finding of willful misstatement, triggering statutory penalties. Id., cited in Meyer v. Carr Stone & Tile Co., 01-1422, p. 4 (La.App. 4 Cir. 3/13/02), 813 So.2d 529, 531-32.

Black’s Law Dictionary 759 (6th ed.1990) defines inadvertence:

Heedlessness; lack of attention; want of care, carelessness; failure of a person to pay careful and prudent attention to the progress of a negotiation or a proceeding in court by which his rights may be affected. Used chiefly in statutory and rule enumerations of the grounds on which a judgment or decree may be vacated or set aside; as, “mistake, inadvertence, surprise, or excusable neglect.” [Citations omitted.]

bit is our constitutional duty on appeal to determine whether, applying the manifest error standard of review, it is reasonable to conclude that the admittedly false statements made by Mr. Herrera were merely inadvertent or inconsequential.

In the instant case, we are faced with a record containing numerous internal inconsistencies and self-contradictions in Mr. Herrera’s trial and deposition testimony. Indeed, these statements were the basis for the hearing officer’s conclusion that Mr. Herrera’s testimony as to his accident was not worthy of belief. The record clearly supports that conclusion. However, the record taken as a whole also supports the hearing officer’s conclusion that Mr. Herrera’s lack of formal education, confusion and limited understanding of the English language made his misstatements inadvertent.

The parties stipulated that Mr. Herrera was employed by Cajun on August 29, 2002, the date on which he alleges he was injured on the job.

Mr. Herrera introduced the records of his treating physician, Dr. Michael Brant-meier, D.C. Dr. Brantmeier is Vice-President of Physicians Total Rehabilitation. According to the history Mr. Herrera gave to Dr. Brantmeier, he was working for Cajun on September 5, 2002 on the second floor of a platform when three hoses hanging on the third floor of a platform fell on him. According to Mr. Herrera, this was the last day of work. A couple of days later, he felt discomfort all over his body and, although he tried to go to work at another job, he felt worse, especially when climbing stairs. As the days went by, his condition worsened. On October 9, 2002, he saw Dr. Brantmeier, and complained of neck, shoulder, mid back and low back pain and radiating pain from hips, buttocks and both legs, together with thumb and finger numbness, headaches and trouble sleeping. In his Application for Treatment dated October 9, 2002, Mr. Herrera left 19blank his past history, a section of the application eliciting information as to medical treatment in the past year, any chiropractic treatment, dates of any operations, unusual diseases, serious illnesses or accidents he had had, including broken bones, and a list of all drugs recently used. On January 28, 2003, Dr. Brantmeier wrote to Cajun’s attorney, describing the accident as set forth in the notes of his initial interview with Mr. Herrera.

Cajun offered a 1987 record from Charity Hospital at New Orleans in which Mr. Herrera gave a history of having fallen down five steps on February 15, 1987, as a result of which he was complaining of worsening pain from the neck down. He continued to be treated as an outpatient at Charity, as reflected by hospital notes dated March 18, 1987, January 14, 1988 (detailing results of a CT scan), May 8, 1989, December 12, 1989, March 15,1990, March 19, 1990, January 21, 1994, and January 24, 1994. On August 7, 1998 he was seen by Dr. Edward Halton, M.D. at the Medical Center of Louisiana at New Orleans for low back pain and radiating pain that he claimed to have sustained in an April 1998 motor vehicle accident. According to the history given to Dr. Halton, Mr. Herrera had been sent by his attorney to physical therapy, which he attended once a week for three months without alleviation of his pain. Mr. Herrera was referred to Tulane’s neurosurgery department. Cajun offered an MRI report from Crescent City MRI showing that Mr. Herrera underwent an MRI examination on October 23, 1998. Radiologist Dr. Thompson Dietz, M.D. stated his impression:

1. questioned old or chronic spondylo-lysis at L5 on the right with up to 8mm or so grade I — II anterior spondylolisthesis of L5; asymmetrically pronounced to the right in association with bilateral advanced severe chronic hypertrophic facet joint | ^degenerative change; 3 mm or so circumferential bulge of a narrowed and severely dehydrated L5-S1 disc;

2. combination of above finding productive of asymmetrically pronounced and severe stenosis of the right neural foramen with moderate to severe narrowing and stenosis of the lateral recesses on either side;

3. similar 3 mm or so circumferential bulges of severely dehydrated L3-L4 and L4-L5 discs with fairly advanced chronic bilateral hypertrophic facet joint degenerative change at the L4-5 level on either side;

4. no significant abnormality referable to T-12-L-1 through L2-3 disc levels;

5. recommend routine radiographic correlation.

Cajun offered an Orthopedic Consultation Report by F. Allen Johnston, M.D. dated January 20, 1999, rendered in connection with an automobile accident that allegedly occurred in April 1998. Dr. Johnston recommended an MRI, EMG and Nerve Conduction Studies, continued therapy and an oral anti-inflammatory drug. According to Mr. Herrera’s initial report of the auto injury, he denied any previous injury to his neck, shoulders or back. Dr. Johnston released Mr. Herrera to return to full activity on April 7, 1999. Cajun offered billing information as of May 5, 1999 showing 104 visits or specific treatments relating to his back complaints between April 28, 1998 and February 24, 1999.

Cajun offered records from Dr. Andrew Kucharchuk, M.D., beginning on January 20, 1999. In the initial report, the doctor notes that the injury occurred on April 28, 1998 in an automobile accident.

Just over a year later, on June 13, 2000, Mr. Herrera returned to Dr. Johnston, this time complaining of lower back pain and radiating pain down into his right leg with spasm. Mr. Herrera claimed that his injury derived from another |uautomobile accident, this one having occurred on June 3, 2000. Mr. Herrera admitted to only the prior motor vehicle accident. He was seen again on October 18, 2000 and for followup on November 28, 2000. At the latter visit, Mr. Herrera said he was much improved but still had some occasional left leg pain. The doctor continued his physical therapy and Celebrex. On October 30, 2000, he received a physical therapy evaluation by Metropolitan Health Group, prescribing physical therapy twice weekly for four weeks. Dr. Johnston saw him again on November 27, 2000 and on January 9, 2001, at which time he was released, having had therapy on November 28, 2000, December 2, 2000, December 7, 2000, December 11, 2000, December 21, 2000 and December 26, 2000. On December 26, 2002, Dr. Johnston issued a letter stating his opinion that the accident of April 28, 1998 caused the injuries described in his report of January 20,1999.

Cajun offered a note from Metropolitan Health Group showing that Mr. Herrera was seen there on May 28, 1998. Notes of Dr. Norman D. Ott, M.D., of the Group, indicate that he saw him in connection with the April 28, 1998 accident and diagnosed cervical and lumbar strains on July 27, 1998. Dr. Ott prescribed thrice weekly physiotherapy treatments.

Subsequent to this history, in connection with his application for employment by Cajun, Mr. Herrera submitted a medical questionnaire in which he was asked if he had then or previously any of certain diseases or injuries, and checked “no” with respect to all diseases and injuries, including disease of or injury to joints, back, frequent headaches, and backaches. We note that his medical history, as provided by Cajun, demonstrates that Mr. Herrera’s responses to those questions were inaccurate. Mr. Herrera testified at trial that he did not | ^read the form, and filled it out from his memory of a previous form he had completed, and that his supervisor told him to write “no” to each question.

The parties stipulated that Mr. Herrera received a copy of his deposition within 30 days of the date it was taken. He was not represented by counsel at his deposition.

Mr. Herrera testified that he received formal education through eighth grade level in his native Peru. He testified that although he could understand written and oral English, he was unable to write in that language. At trial, he noted that his reading ability was also limited. In the course of his testimony, it was clear that at times his understanding of the questions and of the answers they elicited was limited.

He testified that he came to New Orleans in 1987 and worked for D R Marine from 1987 to 1994. Because the work was not steady, he trained to work in asbestos remediation and worked for Basic Industries, for about four different companies that he could not name from memory from 1994 through 1997 when he went to work for Cajun.

Mr. Herrera testified that his right arm and shoulder were injured in 1998 while he was working for Cajun. He saw a company doctor and received three weeks of physical therapy, whereupon he returned to work. By four or five months after the injury, he was no longer having problems with his arm, but the shoulder problem never completely went away. He also testified to automobile accidents in 1998 and 2002 in which he suffered injuries to his neck and mid-back for which he received therapy at Metropolitan Health Group.

Cajun laid off Mr. Herrera in April of 2002 and he collected unemployment until Cajun called him back to work in August of 2002. His deposition and trial | ^testimony concerning the date of his August 2002 injury and which of his co-workers were present is inconsistent. Mr. Herrera attributes the inconsistency to his own confusion. The medical records belie Mr. Herrera’s claim that he had no lower back symptoms or treatment prior to the accident at issue in this case.

Dr. George A. Murphy, M.D. examined Mr. Herrera on October 21, 2004, and issued a report that same day to the hearing officer. According to that report, Dr. Murphy opined that Mr. Herrera had advanced degenerative changes in his neck and back that pre-existed the reported injury while employed by Cajun. Dr. Murphy concluded that neither of Mr. Herrera’s conditions are related to that reported injury.

The record supports the conclusion that Mr. Herrera had limited understanding of English, and limited formal education. It demonstrates that he was a willing worker, who undertook the difficult and dangerous work that was available to him. Based on the record considered in its entirety, we cannot say that the hearing officer’s conclusion that Mr. Herrera lacked the intent required by the statute was unreasonable. The record supports a finding that Mr. Herrera’s misstatements come within the concept of inadvertence. As inadvertent statements, they do not support imposition of the harsh remedy provided by the anti-fraud statute. The hearing officer’s finding that Mr. Herrera did not willfully make false statements or representations for the purpose of obtaining workers’ compensation benefits was not manifestly erroneous or clearly wrong. The hearing officer was able to observe Mr. Herrera’s demeanor and testimony and to evaluate his level of understanding first-hand. Based on that observation and evaluation, she concluded that Mr. Herrera’s misstatements were not intentional and were the result of his limited ability to read relevant documents and to understand his 114situation. While a review of the cold record might lead another fact finder to reach a different conclusion, we cannot say that the hearing officer’s determination was unreasonable under the totality of circumstances presented by this particular case.

For the foregoing reasons, we affirm the judgment of the Louisiana Office of Workers’ Compensation Administration.

AFFIRMED.

BELSOME, J. concurs with reasons.

BELSOME, J.

concurs with reasons.

hi respectfully concur in the result but write separately to recognize a lower court’s duty to provide a translator for parties whose primary language is not English. In this instance, the trial judge determined that the presence of a translator was necessary. Thus, the translator assisted the court by eliminating the potential for a misrepresentation or misunderstanding that may have resulted from the language barrier.

      . The Order is dated the "3rd day of May, 2004”; however, it appears that the correct year is 2005.

      . The brief does not comply with the requirements of Rule 2-12.4, Uniform Rules — Courts of Appeal in the following respects:
      (1) It does not set forth the jurisdiction of the court;
      (2) It does not contain a concise statement of the case;
      (3) It does not refer to the ruling or action of the trial court;
      (4) It does not contain a specification or assignment of alleged errors on which he relies;
      (5) It does not contain a statement of the issues presented for review;
      (6) It does not contain an argument confined strictly to the issues of the case, giving accurate citations of the pages of the record and the authorities cited;
      (7) It does not contain a conclusion stating the precise relief sought;
      (8) It does not include a copy of the judgment, order, or ruling complained of and a copy of either the trial court’s written reasons for judgment, transcribed oral reasons for judgment, or minute entry of the reasons, if given.

      . In footnote 4, the Supreme Court referred to a 1993 amendment providing more severe criminal penalties and increasing the civil penalties for violation of this section. 1993 La. Acts. No. 829.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    SCOTT CONSTRUCTION EQUIPMENT COMPANY, Plaintiff-Appellant, v. TRINITY OILFIELD CONSTRUCTION COMPANY, INC., et al., Defendant-Appellee.
    No. 42,181-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.
    Watson, McMillin & Harrison by W. Michael Street, Monroe, for Appellant Scott Construction.
    Mills, Turansky & Assoc, by George H. Mills, Jr., Shreveport, for Appellee Trinity Oilfield.
    Theus, Grisham, Davis & Leigh by Clint R. Hanchey and Jenny Thompson Garrett, for Appellee Great American Ins. Co.
    Before BROWN, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

B Scott Construction Equipment Co., L.L.C., appeals a summary judgment from the Third Judicial District Court, Parish of Union, State of Louisiana, which ruled in favor of Great American Insurance Company of New York. For the following reasons, we affirm.

FACTS

Trinity Oilfield Construction, Inc. (“Trinity”) leased a linkbelt model 2700 trackhoe (“Equipment”) from Scott Construction Equipment Co., L.L.C. (“Scott”). Although the lease was discussed in October 2000, in December 2000 the parties agreed that the equipment lease would be a rent-to-own agreement from October 11, 2000 to October 10, 2001 and accordingly reduced this agreement to writing.

On May 29, 2001, the Equipment flipped over and caught on fire becoming a total loss while in Trinity’s possession and custody. Trinity had insurance coverage with Great American Insurance Company of New York (“Great American”). On June 1, 2001, Trinity submitted a claim for the loss of the Equipment to Great American. The claim was denied on July 2, 2001, for lack of coverage under the policy. Thereafter, on February 27, 2002, Scott filed suit against Trinity for the loss of the Equipment.

On February 17, 2004, nearly two and a half years after the Equipment was lost, Great American was brought into the matter by third party demand filed by Trinity. Scott asserted an independent claim directly against Great American on November 22, 2004. On June 6, 2005, Great American filed a Motion for Summary Judgment and argued that it should be granted because: 1) the insured failed to timely file suit within the 12two-year limitation contained in the policy and, 2) the lack of coverage under the policy based on the original lease between Scott and Trinity for the Equipment. This motion was denied. On July 12, 2006, Great American filed the Motion for Summary Judgment at issue, and this time argued only that the insured failed to timely file suit within the two-year limitation contained in the policy and therefore the claim has prescribed. The second Motion for Summary Judgment was granted. Scott now appeals.

LAW AND DISCUSSION

Appellate courts review summary judgments de novo using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs. of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.01/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App.2d Cir.01/25/06), 920 So.2d 355.

The burden of proof is on the movant. If, as in this case, the moving party will not bear the burden of proof at trial on the matter before the court on the motion and points out that there is an absence of factual support for Done or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must come forward with factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Patton v. Strogen, 39,829 (La.App.2d Cir.08/17/05), 908 So.2d 1282, writ denied, 2005-2397 (La.03/17/06), 925 So.2d 548.

In the instant case, we must determine whether the suit brought by Scott against Great American was timely filed. Great American contends that this is purely a breach of contract case and since they were not brought into the suit within the two year time limitation required by the insurance policy, the claim has prescribed. The insurance policy in effect at the time of the lease clearly contains a time limitation in which to institute a suit:

C. Legal Action Against Us
No one may bring a legal action against us under this Coverage Part unless:
1. there has been full compliance with all the terms of this Coverage Part; and
2. the action is brought within 2 years after you first have knowledge of the direct loss or damage.

(Emphasis added.) In general, in the absence of a statutory prohibition, a clause in an insurance policy fixing a reasonable time to institute suit is valid. La. R.S. 22:629(B); Mathews v. Hixson Bros., Inc., 2002-124 (La.App. 3d Cir.07/31/02), 831 So.2d 995, writs denied, 2002-2286 (La.12/13/02), 831 So.2d 984 and 2002-2305 (La.12/13/02), 831 So.2d 984.

Scott asserts, on the other hand, that this involves both breach of contract and tort claims and therefore the original lawsuit brought against Trinity, the insured, interrupted the two-year time limitation by way of the Louisiana Direct Action Statute — La. R.S. 22:655. Scott does not dispute that Great American was not brought into the lawsuit until February 17, 2004.

Louisiana R.S. 22:655 states, in pertinent part:

B. (1) The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only.

Louisiana jurisprudence has long established that the direct action statute applies only to tort claims and not to claims for breach of contract. Quinlan v. Liberty Bank and Trust Co., 575 So.2d 336 (La.1990); Taylor v. Fishing Tools, Inc., 274 F.Supp. 666 (E.D.La.1967). Scott argues that the tort action stems from La. C.C. art 2687 which states that “the lessee is liable for damage to the thing caused by his fault or that of a person who, with his consent, is on the premises or uses the thing.”

The resolution of the prescription issue lies squarely with the determination of the type of action involved. Under Louisiana civil procedure, no technical forms of pleading are required. La. C.C.P. art. 854. lsA plaintiff need not plead a specific theory of the case, but only the facts that would support recovery. Graves v. Riverwood Inter. Corp., 38,842 (La.App.2d Cir.08/18/04), 881 So.2d 140, 143. After a thorough review of the record, we do not find that a tort action arose out of the loss of the Equipment. The contract between Scott and Trinity clearly addresses the issue at hand, namely that Trinity agreed to pay for any damage or loss of the Equipment, regardless of cause, while the Equipment was in its possession. The contract is the law among the parties. White v. Crook, 426 So.2d 334 (La.App. 2d Cir.1983). Here, to allow an independent tort action to arise from an event that is clearly covered by the lease defeats the purpose of the creating a binding contract.

Trinity’s failure to compensate Scott is solely a breach of contract. Scott merely attempts to circumvent the plain language of the contract for litigation purposes. We find Scott’s argument unpersuasive and unsupported by the record. It is undisputed that Great American was not brought into the suit until February 17, 2004, more than two years after the Equipment was lost. Because the breach of contract did not interrupt the two-year limitation to bring suit against Great American, the instant suit is prescribed. Since the action has prescribed, we pretermit any discussion of policy coverage for the loss of the Equipment.

CONCLUSION

For the foregoing reasons, the Motion for Summary Judgment is affirmed. Costs are assessed against Scott Construction Equipment Co., L.L.C.

AFFIRMED.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Jerry Lynn CROW, Appellant.
    No. 42,173-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.
    Louisiana Appellate Project, by James E. Beal, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   STEWART, J.

LThe defendant, Jerry Lynn Crow, was tried before a jury on a count of attempted second degree murder and a count of aggravated battery. He was acquitted of attempted second degree murder, but was convicted as charged of aggravated battery. The trial court sentenced the defendant to ten years’ imprisonment at hard labor, to run consecutively with any other sentence. He now appeals his sentence as excessive. For the reasons explained more fully herein, we affirm the defendant’s sentence.

FACTS

Crow was charged by bill of information under two different docket numbers with attempted second degree murder and aggravated battery. The matters were consolidated for trial. The evidence adduced at trial revealed that on July 28, 2005, there was a verbal argument between Crow and the victim over the defendant’s daughter. The victim was leaving an apartment complex during the early morning hours of the next day and was in a wooded area when Crow approached him from behind and hit the man on the head with a revolver. A physical altercation ensued during which the victim blocked Crow’s second blow and struck him twice. Crow then fired gunshots at the victim as the victim ran away. The next morning, the victim was taken to the hospital where his head wound was stitched closed.

Following a trial, the jury found the defendant not guilty of attempted second degree murder, but guilty as charged of aggravated battery. At the sentencing proceeding held August 28, 2006, the trial court noted the circumstances of the instant crime and outlined the defendant’s extensive criminal history. It observed that Crow is a fifth felony offender and is a ^danger to society. The trial court sentenced him to the maximum term of ten years’ imprisonment at hard labor, to run consecutively with any other sentence. No motion to reconsider sentence was filed on the defendant’s behalf. However, defense counsel filed a motion for out-of-time appeal on October 13, 2006, which was granted. This appeal followed.

DISCUSSION

Excessive Sentence

The defense argues that in setting forth the reasons for sentencing, the trial court gave undue weight to the attempted second degree murder charge for which the defendant was acquitted. It contends that this maximum sentence of ten years’ hard labor is excessive and not supported by the record. The defense asks this court to review the mitigating factors in this case, including the fact that the battery occurred as a result of a verbal altercation between the victim and the defendant over the defendant’s young daughter. It concludes with a request that this court vacate the defendant’s sentence and remand for the imposition of a non-excessive sentence particularized to this offender and offense.

The state cites La. C. Cr. P. art. 881.1(E) and argues that the defendant is precluded from raising excessiveness of sentence on appeal because no motion to reconsider sentence was made or filed on the defendant’s behalf. It further contends that the assignment of error is nonetheless meritless because of the defendant’s extensive prior criminal history and the trial court’s compliance with the provisions of La. C. Cr. P. art. 894.1 in sentencing the defendant.

| ¡¡The state correctly notes that La. C. Cr. P. art. 881.1 applies to defendant’s sentence. This article precludes the defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional exces-siveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/03), 862 So.2d 1121; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

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

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Brisco, 33,179 (La.App.2d Cir.4/5/00), 756 So.2d 644, writ denied, 2000-1478 (La.5/25/01), 792 So.2d 749; State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991).

|4A thorough review of the record, including the defendant’s presentence investigation report, supports the finding that the defendant’s maximum ten year sentence, when the crime and punishment are viewed in light of the harm done to society by violent recidivists, does not shock the sense of justice. See State v. Weaver, supra; State v. Lobato, supra; State v. Hogan, supra; State v. Bradford, supra. Therefore, the defendant’s sentence is not unconstitutionally excessive. This assignment is therefore without merit.

ERROR PATENT

At sentencing, the trial court did not adequately advise the defendant of the time period within which to apply for post-conviction relief. The trial court simply advised the defendant he had two years to seek post-conviction relief. The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of the limitations period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

The trial court should have advised defendant, and we now advise him by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922.

|,CONCLUSION

For the foregoing reasons, the defendant’s sentence is affirmed.

AFFIRMED.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Darrell A. McDUFFEY, Appellant.
    No. 42,167-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Louisiana Appellate Project, by Sherry Watters, New Orleans, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before STEWART, PEATROSS & DREW, JJ.
   PEATROSS, J.

I , Defendant, Darrell A. McDuffey, was convicted by a jury of the responsive verdicts of forcible rape and attempted oral sexual battery. He was sentenced to 37 years at hard labor without benefits for forcible rape, and 3 years at hard labor without benefits for attempted oral sexual battery, to run consecutively. Defendant now appeals. For the reasons stated herein, Defendant’s convictions and sentences are affirmed.

FACTS

The eight-year-old victim, J.B., and her mother, L.B., were living with Defendant, who was L.B.’s boyfriend, in a trailer home located on Splane Drive in West Monroe when Defendant began sexually abusing J.B. several times a week. The trailer home was initially rented by Defendant— L.B. and J.B. moved in approximately three or four months later. Defendant was 40 years old at the time of trial. The abuse consisted of oral sex and vaginal sexual intercourse. The victim was born in January 1994 and was 11 years old in April 2005 when she first reported the crimes to Defendant’s sister, Kimberly. The victim also told her mother, L.B., and Defendant’s other sister, Dewanna. On or about April 23, 2005,- the victim began living temporarily with Dewanna.

L.B., Defendant and Kimberly all worked at a carwash near the trailer home. While getting his car washed on May 10, 2005, Detective C.J. Beck of the Monroe Police Department was approached by two employees ^regarding the possible sexual abuse of L.B.’s daughter (the victim) by Defendant. Further investigation revealed the victim’s name and the fact that she was living with Dewanna. Detective Leslie Williams contacted Dewanna, who brought J.B. in for an interview. Dewan-na related that she did not contact the police because she spoke to L.B., the victim’s mother, about the suspected abuse and L.B. said that she would report it. L.B., however, never contacted the police. In her interview, J.B. described in detail various personal care products used as a lubricant by Defendant during the abuse. She further described identifying characteristics of Defendant’s genitals in detail. A search warrant was obtained and executed at the residence on May 12, 2005, and two products were seized.

On May 12, 2005, officers also obtained an arrest warrant for Defendant and a search warrant for Defendant’s body for the purpose of photographing his genitals, but Defendant could not be located. After May 12, 2005, Det. Williams testified that he returned to the trailer home “several times,” including May 18, 2005, in an attempt to locate Defendant. During these attempts, either nobody was home or Det. Williams was told that Defendant was not there. Det. Williams attempted to speak with Kimberly, who was now living at the trailer home, but she was uncooperative and denied knowing Defendant’s location.

Det. Williams continued to search in and around West Monroe for Defendant. She had received information from Dewanna that Defendant sometimes drove a tan Mazda automobile. On May 21, 2005, Defendant’s mother was stopped for a traffic violation while driving the described ^automobile. Det. Williams arrived at the traffic stop and spoke with Defendant’s mother, advising her that she had an arrest warrant for Defendant and needed to locate and speak to him. Defendant’s mother stated that Defendant was not at his trailer home on Splane Drive and she had no idea where Defendant was located.

Defendant was finally arrested on June 15, 2005, when he turned himself in to police. Defendant had called and obtained a ride from his Splane Drive landlord, Troy Kennedy, who picked up Defendant on DeSiard Street. According to Det. Williams, the landlord had previously driven Defendant to turn himself in approximately a week prior to the arrest, but Defendant was turned away because of a discrepancy between the name on his birth certificate, “Darren,” and the name he uses, “Darrell.” This caused confusion when the police records were searched for his name as a person with an outstanding warrant. Although the landlord opined that Defendant’s first attempt to turn himself in occurred approximately three weeks prior to his arrest on June 15, 2005, he couched this opinion with disclaimers that he did not “know” and did not “recall.” In fact, when asked what he would say if another witness had a different time frame, the landlord replied that he did not remember.

Defendant was charged by bill of indictment with aggravated rape and oral sexual battery of J.B., a juvenile under the age of 15 years. Numerous pretrial motions filed by the defense, including a motion to quash and motion for continuance, were heard and denied. Defendant was tried before a jury. The State presented evidence of the facts and circumstances 14related hereinabove. Dr. Meade O’Boyle, a board-certified pediatrician specializing in child sexual abuse victims, testified that the victim’s physical exam revealed a prepubescent female whose hymenal ring was completely open. This was an unusual finding for such an immature child, and Dr. O’Boyle opined that the physical finding was consistent with frequent sexual intercourse. The defense also presented several witnesses. As previously stated, Defendant was found guilty of the responsive verdicts of forcible rape and attempted oral sexual battery.

Defendant was sentenced on April 11, 2006. At that hearing, Defendant made a statement describing his new relationship with God, but denied responsibility for the crimes and asked the court for mercy. The trial court acknowledged Defendant’s oral and written statements and the fact that it considered the statements, together with the information included in the pre-sentence investigation report. Both were filed into the record. The trial court noted that it had conducted extensive research and gave citations of several cases involving crimes similar to those committed by Defendant.

The trial court next set forth Defendant’s age (41), work and social history, second-felony offender status and the details of Defendant’s lengthy criminal history. It was observed that Defendant was the male father figure in the home for his young victim. The trial court noted that Defendant had already received considerable leniency and mercy from the jury’s responsive verdicts.

In addition, the court discussed the facts of the case, including the length of time over which the crimes were perpetrated and the sad fact that |Rfamily members knew of, but never reported, the abuse. The trial court found it particularly disturbing to know that a child as young as 11 years old could give such a detailed description of Defendant’s genitalia. Defendant’s steadfast denial of the allegations against him and his nonchalant manner were noted as evidencing his lack of remorse. The trial court further observed that, although no DNA evidence was presented, Dr. O’Boyle had testified that the child’s genitalia were like those of an adult who had frequent sexual intercourse. It noted that the victim’s description of personal care products used during the abuse was corroborated by the items seized from the trailer home. The victim’s testimony that she feared Defendant and was threatened by him was also noted. The trial court observed that these were crimes against a person and were sex crimes. It noted that Defendant had created a “train wreck” in the victim’s world which cannot be repaired and will forever affect her trust of men and of those who love her.

After discussing in detail its consideration of the sentencing guidelines set forth in La. C. Cr. P. art. 894.1, the trial court sentenced Defendant to serve 37 years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence for forcible rape and to serve 3 years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence for attempted oral sexual battery. The sentences were ordered to be served consecutively. Defendant was advised of the prescriptive period for filing for post-conviction relief pursuant to La. C. Cr. |fiP. art. 930.8. His timely filed motion to reconsider sentence was denied. This appeal followed.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred in giving a jury instruction on flight that was contrary to the evidence that the defendant had been trying to turn himself in for three weeks.

The following is the jury charge read by the court concerning flight:

BY THE COURT:
—Flight. Evidence of flight concealment and attempt to avoid apprehension is relevant. It indicated consciousness of guilt and therefore is one of the circumstances from which you the Jury may infer guilt.

Defendant asserts that the officer went to his trailer home twice, on May 12, 2005, and May 18, 2005, to execute the arrest warrant, but none of his relatives knew where he was located. He submits that he unsuccessfully attempted to turn himself in to police three weeks before his arrest on June 15, 2006. According to Defendant, under these circumstances, the jury instruction regarding flight was erroneous, misleading and unsupported by the evidence.

On the other hand, the State suggests that it is clear from the evidence that Defendant fled his usual place of abode when the complaint was made regarding his sexual assaults against the victim. The State contends that Defendant remained in hiding and his family claimed not to know his location for over a month. Further, the State notes that Defendant gave the incorrect name when he initially attempted to turn himself in to police. It contends that this is ample evidence of flight and concealment and an early attempt to avoid apprehension. We agree.

17The court shall charge the jury: (1) As to the law applicable to the case; (2) That the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and (3) That the jury alone shall determine the weight and credibility of the evidence. La. C. Cr. P. art. 802. A requested special charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La. C. Cr. P. art. 807; State v. Gipson, 28,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402. A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity or variance which does not affect substantial rights of the accused. La. C. Cr. P. art. 921.

In the. case sub judice, the record supports the trial court’s granting of the State’s request for the special jury instruction regarding flight. The requested special charge did not require qualification, limitation or explanation, and was wholly correct and pertinent. It was not included in the general charge or in another special charge to be given. See La. C. Cr. P. art. 807; State v. Gipson, supra. Hence, the trial court did not err in granting the State’s request for the special jury instruction.

Furthermore, even if considered as error, the jury instruction did not affect substantial rights of the accused. La. C. Cr. P. art. 921. Even without considering the issue of flight, Defendant’s guilt of the two offenses is wholly supported by evidence contained in the record. The evidence | ¿included the victim’s credible testimony, which was corroborated in part by physical evidence and expert testimony.

This assignment is without merit.

Assignment of Error Number Two (verbatim): The trial court erred in imposing unconstitutionally excessive sentences on Darrell McDuffey, particularly by ordering the sentences to be served consecutively.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compli-anee with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that 19specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Dagenhart, 39,874 (La.App.2d Cir.8/17/05), 908 So.2d 1237, writ denied, 05-2421 (La.4/24/06), 926 So.2d 539; State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010.

Although La. C. Cr. P. art. 883 favors the imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive |inpenalties in cases where the offender’s past criminality or other circumstances in his background justify treating him as a grave risk to the safety of the community. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Feaster, 36,868 (La.App.2d Cir.3/5/03), 840 So.2d 675; State v. Johnson, 35,487 (La.App.2d Cir.1/23/02), 806 So.2d 960.

Among the factors to be considered are the defendant’s criminal history, State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); defendant’s apparent disregard for the property of others, State v. Parker, 503 So.2d 643 (La.App. 4th Cir.1987); the potential for defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983), State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987); and whether defendant has received a benefit from a plea bargain, State v. Jett, supra; State v. Adams, supra. See State v. Maxie, 30,877 (La.App.2d Cir.8/19/98), 719 So.2d 104.

As this court has noted previously, jurisprudence has moved away from requiring remand under certain circumstances involving the imposition of consecutive sentences without the trial court’s having specifically stated reasons therefor. State v. Hampton, supra. The cases cited in Hampton |T, conclude that the failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support the consecutive sentences imposed.

The record in the present case contains more than sufficient articulation by the trial court of the factual basis for the sentences as per La. C. Cr. P. art. 894.1. The trial court meticulously set forth its reasons for sentencing and consideration of the sentencing guidelines set forth therein. Moreover, when Defendant’s heinous crimes and punishment are viewed in light of the harm done to society by sexual predators in general, and to this young victim in particular, the sentences do not shock the sense of justice. See State v. Weaver, supra; State v. Lobato, supra; State v. Hogan, supra; State v. Bradford, supra. We conclude that Defendant’s sentences are not constitutionally excessive.

It also cannot be said that, on this record, the trial court abused its discretion in imposing consecutive penalties, considering Defendant’s past criminality and other circumstances in his background which justify treating him as a grave risk to the safety of the community. See State v. Walker, supra; State v. Feaster, supra. Any perceived failure on the part of the trial court to articulate specific reasons for consecutive sentences does not require remand because the record provides an adequate factual basis to support consecutive sentences. See State v. Hampton, supra.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, Darrell A. McDuffey, are affirmed.

AFFIRMED.

      . The facts of these lurid crimes are described herein only as necessary to adequately examine the assigned errors, which do not include a challenge to the sufficiency of the evidence supporting the convictions.

      . The victim’s initials are used because of victim confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W). The victim’s mother's initials are used for the same reason.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Jerry Wayne BEASLEY, Appellant.
    No. 42,143-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Louisiana Appellate Project by G. Paul Marx, Lafayette, for Appellant.
    Paul J. Carmouche, District Attorney, Lea R. Hall, Jr., Dhu Thompson, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   MOORE, J.

11 Jerry Wayne Beasley was charged by bill of information with three counts of molestation of a juvenile over whom the offender has control or supervision, La. R.S. 14:81.2 A, C. Tried on one count, he was found guilty as charged. The state then charged him as a second felony offender; the district court adjudicated him as such and sentenced him to 30 years at hard labor. Beasley now appeals, urging the sentence is excessive. We affirm.

Factual Background

The case arose when the victim, 16-year-old ELT, got pregnant by her mother’s 51-year-old boyfriend, Beasley. The mother, BRM, and Beasley were girlfriend and boyfriend about nine years; Beasley had met BRM at a bus station and moved in with her and her daughters, ELT and ERM. By 2002, they were in distressed circumstances, as only BRM was working to support the family, which was staying in a room at the Palomar Motel in the Hollywood area of Shreveport. BRM would leave early in the morning for her job at a nursing home, leaving ELT in close quarters with Beasley.

ELT testified that Beasley began by walking around the motel room naked, walking in on her while she was bathing, and talking to her about feminine hygiene. Finally, close to her 16th birthday in September 2002, “he forced himself on me, as in physically attacked me and got on top of me.” He pried her legs apart and had his way with her. ELT did not tell her mother about this because Beasley was BRM’s boyfriend, and he did it again on “four or more” other occasions. ELT later became pregnant.

The baby, ANT, was born on June 12, 2003. ELT initially told BRM that the father was a school friend, but she eventually admitted that Beasley |¡>molested her several times. BRM reported the matter to authorities, who reexamined prior reports of sexual abuse of the sister, ERM, that had been closed as invalid. Investigators also reviewed an allegation raised by the daughter of another of Beasley’s girlfriends. ELT positively identified Beasley as her attacker. DNA tests yielded a paternity index of 0.9999, making Beasley 133 million times more likely to be the father than a randomly-selected black male.

As noted, the state charged Beasley with three counts of molestation of a juvenile but proceeded to trial only with the count involving ELT. After the jury found him guilty as charged, the state charged him as a second felony offender, based on his 1996 guilty plea to unauthorized entry of an inhabited dwelling. The court then sentenced him to 30 years at hard labor and later denied a motion for reconsideration.

Discussion

By one assignment of error, Beasley urges the district court imposed an unconstitutionally excessive sentence of 30 years for a defendant who was suffering from colon cancer and faced the habitual offender sentencing range of 7⅜ to 30 years. He concedes that the facts of the case are repulsive, but shows the state elected not to charge him with the more serious offense of rape. He argues that the court did not weigh his colon cancer, thus failing to particularize the sentence as required by La. C. Cr. P. art. 894.1 and State v. Smith, 433 So.2d 688 (La.1983). He concludes that the maximum sentence is simply not appropriate.

LThe state agrees with Beasley’s characterization of the facts of the case and shows that Beasley’s criminal record was equally repulsive: 23 arrests and 14 convictions in the period from 1969 to 2004, with more than one prior felony. This alone, the state submits, would justify the maximum sentence. Further, the court is not required to list every aggravating or mitigating factor as long as the record shows an adequate consideration of the guidelines. State v. Smith, supra. The state concludes the sentence of 30 years is fully supported.

Appellate review of sentences for alleged excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Smith, supra; State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lanclos, 419 So.2d 475 (La.1982). The court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiam-bao, supra. In selecting a proper sentence, the court is not confined to evidence of prior convictions but may consider all prior criminal activity. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218; State v. Houston, 40,642 (La.App. 2 Cir. 3/10/06), 925 So.2d 690, writ denied, 2006-0796 (La.10/13/06), 939 So.2d 373. The court has great discretion in imposing a sentence within the statutory limits; absent a manifest abuse of that discretion, the appellate Rcourt will not disturb a legal sentence. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 92-3120 (La.9/10/93), 623 So.2d 1276; State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is deemed grossly disproportionate if, when the crime and punishment- are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, supra. Maximum sentences are reserved for the most serious violations of the charged offense and the worst kind of offender. State v. Quebedeaux, 424 So.2d 1009 (La.1982); State v. Gatti, 39,833 (La.App. 2 Cir. 10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511.

The district court carefully reviewed the evidence as it pertained to the Art. 894.1 factors, notably Beasley’s criminal record. Even a cursory review of his horrendous history shows that for much of his life, Beasley’s modus vivendi has been theft and dishonesty, a pattern interrupted only by occasional stretches in jail. The circumstances that gave rise to the instant offense — befriending and then, living off BRM — appear totally in his |scharacter. His one prior conviction for rape, and others for violent crimes, show that the instant event is really no anomaly. In addition to the obvious betrayal of trust, the court accurately noted that ELT’s pregnancy and childbirth would adversely affect her education and, in all likelihood, place financial strain on the public welfare system. We observe that this ease presents the most serious instance of the charged offense and that Beasley is the worst kind of offender.

We recognize that at Beasley’s age and with his medical condition, a 30-year sentence may well amount to life. We are constrained to note, however, that ELT graphically described Beasley’s physical condition and symptoms as she saw them at the time of the offense. If his illness and disability were no deterrent to this criminal conduct, they should be no impediment to correctional treatment. On this record, the court was entitled to find that Beasley’s poor health was not a mitigating factor. State v. Collins, 2003-388 (La.App. 3 Cir. 10/8/03), 865 So.2d 117; State v. Thomas, 556 So.2d 1349 (La.App. 5 Cir.), writ denied, 563 So.2d 1151 (1990).

The instant sentence, although it is the maximum, is easily within the district court’s discretion, and does not shock this court’s sense of justice. This assignment of error lacks merit.

Conclusion

We have reviewed the entire record pursuant to La. C. Cr. P. art. 920(2) and find nothing we consider to be error patent. For the reasons expressed, the conviction and sentence are affirmed.

AFFIRMED.

      . After sentencing, the state dismissed the other two charges.

      . Beasley’s record included convictions (in Louisiana, Texas and California) of larceny in 1969, theft in 1970, theft in 1971, aggravated assault and simple escape in 1972, unauthorized use of a movable, impersonation of an officer and forgery in 1973, unauthorized use of an access card in 1974, larceny in 1975, forcible rape in 1976, simple battery, aggravated assault and illegal possession of a weapon by a convicted felon in 1981, theft in 1988, theft in 1991, resisting an officer and unauthorized entry of an inhabited dwelling in 1996, simple battery in 1998, and traffic offenses in 2001.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Clifford Ray LATIN, Jr., Appellant.
    No. 42,134-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Larry English, English & Associates, LLC, for Appellant.
    Don Burkett, District Attorney, Richard Z. Johnson, Jr., Assistant District Attorney, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   GASKINS, J.

|,The defendant, Clifford Ray Latin, Jr., was convicted of attempted possession with intent to distribute a Schedule II controlled dangerous substance, cocaine. He was sentenced to serve seven and one-half years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served. The defendant appeals, arguing that the evidence was insufficient to support his conviction. For the following reasons, we affirm the conviction and amend the sentence.

FACTS

At around 2 a.m. on March 24, 2005, Philip Daniels, a deputy with the DeSoto Parish Sheriffs Office, observed the defendant driving a maroon Ford Taurus eastbound on Highway 84, coming into Lo-gansport from Texas. The defendant turned left off Highway 84 onto Second Street in front of Deputy Daniels who had been traveling westbound. Deputy Daniels began to follow the defendant as he turned right onto Elm Street, making the turn “way too wide almost going off the edge of the road on the other side.” The defendant accelerated down Elm Street. Deputy Daniels testified that the defendant’s vehicle almost ran off the right shoulder of the road near a car wash at Elm Street’s intersection with Third Street. At that point, Deputy Daniels noticed “an item being lightly tossed from the driver’s window.” Deputy Daniels made a mental note of the location and continued to follow the defendant.

The defendant proceeded to the intersection of Elm Street and Marshall Road where he made a left turn onto Marshall Road without 1¡¡obeying a stop sign. At this point, Deputy Daniels activated the lights on his patrol car and pulled the defendant over.

Deputy Daniels requested that another unit come to the scene because of the item which had been tossed from the defendant’s vehicle. Once the defendant’s vehicle came to a stop, Deputy Daniels noticed that the driver’s side window was open and the defendant stuck both of his arms out the window. Deputy Daniels asked the defendant to step out of the vehicle. The defendant complied and produced a valid driver’s license. Deputy Daniels asked the defendant about the traffic violations to which the defendant allegedly admitted.

Shortly after the stop began, the defendant’s brother, Michael Latin, drove up, parked across the street, and began yelling at Deputy Daniels. Another person was in the car with Michael. Deputy Daniels instructed Michael to return to the opposite side of the road. He eventually complied. The defendant denied that he called his brother to tell him that he was being stopped. When the requested back-up unit arrived, Deputy Daniels testified that he did not direct the other deputy to the tossed item at that point because of the safety issue presented by the arrival of the defendant’s brother.

Deputy Jeff Linger, who was driving the back-up unit, dealt with Michael while Deputy Daniels completed the stop. Deputy Linger testified that Michael was agitated and that he indicated that the defendant had called him on the cell phone to tell him that he was being stopped and asked that he come to that location.

| -¡Deputy Daniels conducted a pat down of the defendant for weapons, but did not find any. He also conducted a search of the vehicle after the defendant volunteered the opportunity. All he found in the vehicle were pieces of torn cellophane which the deputy indicated could be associated with the packaging of drugs. When Deputy Daniels asked the defendant whether the cellophane was drug-related, he neither admitted nor denied it; he simply responded that sometimes his girlfriend drove the car.

Deputy Daniels asked the defendant if he had tossed anything from the vehicle prior to the stop; the defendant said that he had not. Deputy Daniels said that during the stop the defendant “was continually looking up the roadway to where the item was thrown from the vehicle.” Deputy Daniels decided to release the defendant, but told him that if they recovered the item tossed from the car, they would come to his home and arrest him.

Once the defendant was released, Deputy Daniels informed Deputy Linger about the item that the defendant tossed from the window and its location. Deputies Daniels and Linger proceeded in their separate vehicles to that location and recovered a clear plastic bag containing suspected crack cocaine. Deputy Daniels donned a rubber glove, retrieved the item and placed it in an evidence bag.

The deputies went to the defendant’s home at the instruction of Sergeant James Clements. Deputy Linger asked the defendant to accompany him to the sheriffs substation for questioning. The defendant complied. Upon arrival at the substation, the defendant was placed under arrest and read his Miranda rights. The defendant refused to sign a waiver |4of those rights. Deputy Daniels explained to the defendant why he had been arrested and that no other vehicles had been seen driving by the location where the bag was found. The defendant, who had not been told where the evidence was recovered, pointed to the area where the package was found and told Deputy Daniels that other vehicles had in fact driven by that location.

The defendant was charged with possession with intent to distribute a Schedule II controlled dangerous substance, cocaine. The defendant was tried by a jury in June 2006. At trial, Deputies Daniels and Linger related the events leading to the defendant’s arrest. Deputy Daniels also identified a videotape recording of the stop made by a video camera automatically activated in his patrol ear when he turned his lights on. However, Deputy Daniels explained that the audio portion of the system was not operational and therefore none of his interaction with the defendant can be heard. A review of the tape indicates that the stop occurred mostly as recalled by both Deputy Daniels and the defendant. The video also reflects that a truck drove by on Marshall Road in the opposite direction from which the defendant had been traveling just prior to the stop.

Sergeant Clements testified that his involvement was limited to instructing the deputies to bring the defendant in and transporting the defendant and the evidence from the substation to the DeSoto Parish Sheriffs Office. He identified the item retrieved by Deputy Daniels as the evidence which he placed in the evidence locker at the DeSoto Parish Sheriffs Office.

| ^Horace Womack, a deputy with the DeSoto Parish Sheriffs Office, testified that he dusted the cellophane package retrieved from the roadway by Deputy Daniels for fingerprints. He stated that he found no prints, but that the absence of fingerprints was not unusual because cellophane does not develop prints well. He said that he forwarded the evidence to the crime lab for testing of the substance in the cellophane packaging. The state introduced into evidence the report from the North Louisiana Criminalistics Laboratory indicating that the packaged white substance was cocaine.

The defendant’s brother, Michael, testified for the defense. He denied that the defendant called to tell him he was being pulled over. He asserted that he learned it from a friend who had been passing by and saw the defendant being pulled over. Michael stated that the other person in his vehicle when he arrived on the scene was his ex-girlfriend. He testified that as he crossed the street, Deputy Daniels told him to “go back to your damned car.” Only then did Michael get angry because a “law officer” had cussed at him.

He admitted that when the deputies came to the family home later that evening, they did not question the defendant or place him under arrest; they simply asked that the defendant go with them for questioning. Michael also admitted that he had two misdemeanor convictions, the first for inciting a riot and the second for disturbing the peace.

The defendant took the stand and testified that when he was pulled over, he was returning to Logansport from Texas where he had been drinking with friends. He had a fight with his girlfriend, was angry, and | Bwas trying to get in touch with her. He admitted that he was speeding as he came over the bridge on Highway 84 into Logansport, but testified that he was going less than 15 to 20 miles per hour after he had turned onto Second Street. He explained that when he was pulled over, he stuck his hands out the window to indicate that he was “straight or whatever.” He denied throwing anything out of the vehicle’s window. He also denied that he was under the influence of any illegal drugs at the time, that he ever used illegal drugs or that he dealt drugs. On cross-examination, however, the defendant admitted that he had previously pled guilty to one charge of possession of cocaine.

On June 13, 2006, the jury returned a verdict of guilty to the responsive offense of attempted possession of cocaine with intent to distribute. The trial judge ordered a presentence investigation, and, after a hearing, sentenced defendant to seven and one-half years at hard labor without the benefit of probation, parole or suspension of sentence, with credit for time served, to be served concurrently with any other sentence. The defendant appealed.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence was insufficient to support his conviction on the charge of attempted possession of cocaine with intent to distribute. The defendant contends that the evidence did not establish that the cellophane package containing cocaine, recovered by the deputies, was the item thrown from his car. The defendant argues that no evidence was given as to the condition of the bag which might indicate how long the item |7had been on the road. He also urges that the lapse in time between the stop and the discovery of the drugs makes it possible for other passing traffic to have been the source of the drugs. He contends that the police video shows that a truck traveled down the same street while the defendant was being detained. This argument is without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

|sThe Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must' resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747. In the absence of internal contradiction or irreconcilable conflict with physical evidence/ one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

La. R.S. 40:967(A) provides, in pertinent part, that it shall be unlawful for any person knowingly or intentionally to possess with intent to distribute a controlled dangerous substance or controlled substance classified in Schedule II. Cocaine is a Schedule II controlled dangerous substance. See La. R.S. 40:964, Schedule 11(A)(4). The defendant was found guilty of attempted possession of cocaine with the intent to distribute. La. R.S. 14:27 states that any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly [ stoward the accomplishing his object is guilty of an attempt. See also La. R.S. 40:979.

Discussion

The only issue presented in this appeal is whether the evidence was sufficient to support the jury’s finding that the cocaine recovered from the roadway was the item tossed by the defendant from the vehicle just prior to being pulled over. The record supports the jury’s verdict.

Deputy Daniels testified unequivocally that the defendant “lightly tossed” an item opt of the driver’s side window as he traveled down Elm Street in front of a car wash near the intersection of Elm Street and Third Street. Deputy Daniels testified that once the traffic stop was completed, he and Deputy Linger went to the location where he remembered the. item had been tossed and located the package of cocaine.

Deputy Daniels stated that during the stop, the defendant kept looking back to the area where the package was tossed out of the car. Later, at the substation, while being questioned about this incident, the defendant exhibited knowledge of the area where the drugs were located, without being prompted by the deputies. Deputy Linger’s testimony corroborated Deputy Daniels’ testimony.

The defendant contended that the drugs were thrown from some other vehicle. He claims that the video from the patrol car shows that a truck traveled down the road where the drugs were found. Actually, the truck was traveling on Marshall Road, not on Elm Street where Deputy Daniels hnobserved the defendant throw something from his car and where the drugs were recovered.

When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676 (La.1984). In the instant matter, the defendant’s hypothesis of innocence was based on the theory that someone else discarded the cocaine discovered on the roadway. The defendant’s argument that the cocaine could have been there for some time or could have been disposed of by subsequent traffic is a hypothesis of innocence which the jury rejected. This evidence is sufficient to support the conviction of attempted possession of cocaine with the intent to distribute.

ERROR PATENT

In our review for error patent on the face of the record, we note that the sentence imposed by the trial court is illegal in that it orders that all of the defendant’s sentence be served without benefit of parole, probation, or suspension of sentence. According to La. R.S. 40:967(B)(4)(b), the penalty for possession of Schedule II CDS, cocaine, with intent to distribute is “a term of imprisonment at hard labor for not less than two years nor more than Inthirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence.” When a defendant is convicted of an attempted offense, the punishment is “in the same manner as for the offense attempted,” but the term of imprisonment shall not exceed “one-half of the longest term of imprisonment prescribed for the offense so attempted.” La. R.S. 14:27; La. R.S. 40:979. There is no express statutory minimum sentence for being convicted of an attempt, and principles of lenity require that the statute be strictly construed. State v. Callahan, 95-1331 (La.3/29/96), 671 So.2d 903. The language in the attempt statutes of La. R.S. 14:27 and 40:979 is now virtually identical. Therefore, under either statute, the reasoning of State v. Callahan, supra, applies and there is no longer a mandatory minimum sentence for an attempt. State v. Howard, 37,580 (La.App.2d Cir.9/24/03), 855 So.2d 881. See and compare State v. Odle, 2002-0226 (La.App. 3d Cir.11/13/02), 834 So.2d 483, writ denied, 2003-0625 (La.6/20/03), 847 So.2d 1219. See also State v. Brown, 2000-2120 (La.App. 4th Cir.12/19/01), 804 So.2d 863, writ denied, 2002-0308 (La.2/7/03), 836 So.2d 85, holding that where the completed offense requires that only the minimum sentence be served without some combination of benefits, that requirement does not exist for an attempt.

11?Thus, the trial court improperly ordered that all of the defendant’s sentence be served without benefit of parole, probation, or suspension of sentence. Because there is no mandatory minimum sentence for an attempt, under the statutory scheme in this case, the sentence cannot be ordered to be served without benefit of parole, probation, or suspension of sentence. Under the authority granted this court in La. C. Cr. P. art. 882, we amend the sentence by setting aside the requirement that any portion of the sentence be served without benefit of parole, probation, or suspension of sentence.

CONCLUSIONS AND RECOMMENDATIONS

For the foregoing reasons, we affirm the defendant’s conviction and amend his sentence to delete the requirement that any portion of the sentence be served without benefit of parole, probation, or suspension of sentence.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . This case is distinguishable from State v. Hongo, 2006-829 (La.App. 3d Cir. 12/6/06), 944 So.2d 856, cited by the defendant. In State v. Hongo, supra, an object was thrown out the passenger window of the defendant’s car just prior to a traffic stop. There was a passenger in the car with the defendant and there was no evidence as to who threw the object from the car. A bag containing cocaine was recovered shortly after the defendant was released. The third circuit found that the evidence was insufficient to prove that the plastic bag was the object recovered from the defendant's car or that the defendant exercised dominion’or control over the drugs. In the present case, the defendant was alone, Deputy Daniels saw the defendant throw an object from the car, and the defendant exhibited knowledge of the location where the package was discarded. ■

      . In contrast, the third circuit in State v. Everett, 2005-214 (La.App. 3d Cir.11/2/05), 916 So.2d 1210, ruled that a sentence for attempted possession of a firearm by a convicted felon could be ordered to be served without benefit of parole, probation, or suspension of sentence because La. R.S. 14:95.1(B) required that the entire sentence imposed be served without benefits. This is distinguishable from statutes such as those in the present case where the penalty for the completed offense requires only that the statutory minimum be served with benefit of parole, probation, or suspension of sentence. See State v. Rodriguez, 2000-0519 (La.App. 4th Cir.2/14/01), 781 So.2d 640.