source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Donald David HANSON, Appellant.
    No. 41,195-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Christopher A. Aberle, Mandeville, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Edward Bros-sette, Assistant District Attorneys, for Ap-pellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   WILLIAMS, J.

hA Caddo Parish Grand Jury returned an indictment charging the defendant, Donald David Hanson, with aggravated rape, in violation of LSA-R.S. 14:42. The matter proceeded to trial before a twelve-person jury which found the defendant guilty as charged. Thereafter, the trial court sentenced the defendant to serve the mandatory term of life imprisonment without benefit of parole, probation or suspension of sentence. The defendant has appealed. Finding no error, we affirm the defendant’s conviction and sentence.

FACTS

On July 1, 2002, the 52-year old female victim, P.W., a resident of Texas, was vacationing in Shreveport. She visited Hollywood Casino, and when she left, she entered the elevator of the casino’s parking garage with several other people. After leaving the elevator, P.W. realized that she had exited onto the wrong floor of the parking garage. She entered the stairwell to walk to the correct floor. While in the stairwell, P.W. heard footsteps. She looked over her shoulder and noticed a man approaching behind her, taking two steps at a time. She attempted to run, but the assailant grabbed her from behind, hit her head against the wall and placed his hand over her mouth. P.W. tried to escape by biting the assailant’s hand and scratching his face and neck. The attacker placed his hand around her throat and held it so tightly that her feet were not touching the floor, and she began “gurgling.” The attacker repeatedly pressed and released P.W.’s neck, and she lost consciousness at intervals. Throughout the attack, the assailant |2called her a “bitch” and a “whore” and told her, “I’m going to rape you, and I’m going to kill you.”

The attacker then pulled P.W.’s pants down and, in fear, she defecated on herself. The assailant attempted to penetrate P.W.’s anus with his penis, but was unsuccessful because he was unable to achieve a full erection. He continued to tell her that he was going to rape her anally and then kill her. At that point, he forced his penis into P.W.’s mouth, warning her that he would kill her if she hurt him. After making another unsuccessful attempt to penetrate her anus, he penetrated her vagina. P.W. testified, “I felt like my life was on the line. He made it clear to me that he was going to kill me.” She further stated that, throughout the attack, she begged the attacker to stop, screamed and “fought him with all I had.” She stated that she lost her voice and could barely scream.

The attack ended when someone entered the stairwell. The assailant ran away, and P.W. left the parking garage to get help. She reported the incident to the casino’s security officer, who called the police department. P.W. was able to provide a description of the attack, as well as a description of her assailant. She also informed the officers that she had scratched her assailant’s facial area “pretty bad.”

Whitney Brimmer, the person who had entered the stairwell during the attack, also testified during the trial. He stated that he left the casino and entered the stairwell. As he proceeded up the stairs, he heard someone |3screaming for help. He testified that he looked up the stairwell and saw a woman lying face down on the concrete with a man on top of her. The woman’s “pants were down below her ankles,” and “she was struggling a lot.” Brimmer ran out of the stairwell and reported the incident to the casino’s security department.

Police officers immediately began circulating the area surrounding the casino. Within 15 minutes of the attack, the defendant was observed walking approximately one mile from the casino. The officers noticed that the defendant had fresh scratches on his face and neck and a bite mark on his hand. The clothing he was wearing fit the description of the assailant’s clothing described by P.W.

Both P.W. and Brimmer positively identified the defendant as the assailant, and he was placed under arrest. Subsequent DNA testing revealed that the scrapings obtained from P.W.’s fingernails were consistent with a mixture of DNA from her and the defendant.

The defendant was initially charged with forcible rape, in violation of LSA-R.S. 14:42.1. However, he was subsequently indicted by the grand jury with aggravated rape, in violation of LSA-R.S. 14:42.

At the jury trial, P.W., Brimmer and police officers testified regarding the above-related facts. Both P.W. and Brim-mer identified the defendant in court as the perpetrator. At the conclusion of the trial, the defendant was convicted as charged of aggravated rape. The trial court denied the |4defendant’s motions for new trial and post-verdict judgment of acquittal, and sentenced him to serve the mandatory term of life imprisonment without benefit of parole, probation or suspension of sentence. The defendant now appeals.

DISCUSSION

In his sole assignment of error, the defendant contends the evidence was insufficient to support a conviction of aggravated rape. He argues that the evidence only supported a conviction of forcible rape.

The question of sufficiency of evidence is properly raised by a motion for post-verdict judgment of acquittal. LSA-C.Cr.P. art. 821; State v. Howard, 31,807 (La.App. 2d Cir.8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190; State v. Edwards, 25,963 (La.App. 2d Cir.5/4/94), 637 So.2d 600. Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of 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. State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.), writ denied, 605 So.2d 1089 (La.1992).

LSA-R.S. 14:42, in pertinent part, defines aggravated rape as follows:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
Is(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

LSA-R.S. 14:42.1 defines forcible rape as follows:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
(2) When the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim.

* * *

In State v. Howard, supra, this Court addressed the distinction between the offenses of aggravated rape and forcible rape, stating:

Forcible rape is merely a lesser degree of the crime of aggravated rape and is a responsive verdict to that crime. The only distinction between aggravated and forcible rape is the degree of force employed and the extent to which the victim resists. However, the jury is authorized to subject a guilty defendant to more severe punishment by convicting him of aggravated rape rather than forcible rape.

Id. at 54. See also, State v. Price, 40,408 (La.App. 2d Cir.12/16/05), 917 So.2d 1201, writ denied, 2006-0156 (La.6/16/06), 929 So.2d 1284.

In State v. Parish, 405 So.2d 1080 (La.1981), the supreme court concluded that it was the legislative aim to divide the continuum of acts of | (¡coerced sexual intercourse into two categories, thereby assigning to the fact finder the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force employed. The court described the proper standard of appellate review in these type of cases as follows:

[Wjhether any reasonable jury ..., viewing all of the evidence, in the light most favorable to the prosecution could find beyond a reasonable doubt that the defendant ... [caused] the results required by both the aggravated and forcible rape statutes and that the degree of force employed warranted punishment in the greater, rather than lesser, degree ....

Id. at 1087. See also, State v. Price, supra; State v. Stevens, 33,700 (La.App. 2d Cir.8/23/00), 766 So.2d 634.

The difference between aggravated rape and forcible rape is the “degree of force employed and the extent to which the victim resists.” State v. Price, supra; State v. Dixon, 2004-1019 (La.App. 5th Cir.3/15/05), 900 So.2d 929. A greater degree of force is necessary to justify the more serious punishment imposed for aggravated rape. Id. The degree of force employed and the determination of the grade of rape is for the jury to decide. Id. A victim need not suffer physical harm to constitute the high degree of force necessary to support a conviction of aggravated rape. State v. Gaston, 412 So.2d 574 (La.1982); State v. Howard, supra; State v. Clark, 437 So.2d 879 (La.App. 2d Cir.1983).

In the instant case, it is clear that the evidence supported a finding that the defendant was guilty of aggravated rape. It is undisputed that the defendant forced P.W. to perform oral sex on him, penetrated her vagina 17with his penis and attempted to penetrate her anus with his penis by threats of great and immediate bodily harm. The threats were accompanied by the defendant’s apparent power to execute those threats. P.W. testified that when she initially tried to escape from the defendant, he “slammed” her head against the wall. When P.W. attempted to scream, the defendant repeated continuously, “Be quiet, bitch; I’m going to kill you, bitch. You’re nothing but a whore. I’m going to rape you, and I’m going to kill you.” She also testified that she fought the defendant “with all [she] had,” and she bit him and scratched him. She further stated that the defendant continuously strangled her until she started to lose consciousness, and at one point, the defendant held her neck so tightly that her feet were not touching the ground. Additionally, when P.W. attempted to glance at the defendant, the defendant struck her in the head and told her, “Don’t look at me, bitch. Don’t look at me. I’m going to kill you.” She also stated that the defendant repeatedly threatened that he would kill her when he finished raping her. The defendant’s actions clearly placed P.W. in fear of great and immediate bodily harm, and any further resistance would have put her in further danger.

The defendant further asserts that the state failed to present evidence that the injuries were medically serious. Dr. Barbara Bellaire, a specialist in obstetrics and gynecology, testified that she examined P.W. on the night of the rape. Dr. Bel-lame stated that P.W. had bruising around her neck, which was consistent with strangulation. P.W. also had bruises on the middle of her back, side and arm. Dr. Bellaire noted that P.W. had lacerations on her | slower lip and the back of her skull, and blood was in her hair. According to the report from the rape examination kit, P.W. had bruising and abrasions in her vaginal and anal areas. Dr. Bellaire testified that the bruises were inconsistent with consensual intercourse.

On cross examination, Dr. Bellaire stated that she did not find any pubic hairs or semen. Dr. Bellaire stated that, during the examination, P.W. told her that the defendant did not ejaculate; therefore, the lack of semen was not unusual.

Moreover, Michelle Collins, a forensic scientist for the Northwest Crime Lab, also testified at trial. According to Ms. Collins, DNA testing revealed that the samples of blood and skin obtained from under P.W.’s fingernails were likely to be that of the defendant within a statistical probability of 1 in 1.3 quadrillion.

Viewing the evidence in the light most favorable to the prosecution, we conclude that any reasonable juror could have found beyond a reasonable doubt that the defendant was guilty of the greater offense of aggravated rape. The victim was prevented from resisting the defendant by threats of great and immediate bodily harm, and the threats were accompanied by apparent power of execution. The defendant attempted to strangle the victim and struck her several times. Therefore, this assignment is without merit.

ERROR PATENT

A review of the record reveals that the trial court, apparently without objection from the defense, omitted the responsive verdicts of “simple rape” Land “attempted simple rape” from the verdict forms and jury instructions, as listed in LSA-C.Cr.P. art. 814(8). An alleged error concerning the sufficiency of the list of responsive verdicts given the jury, like error in the judge’s charge to the jury, is not reviewable under LSA-C.Cr.P. art. 920(2) as error patent and may not be considered unless objection is made in the trial court in time for the trial judge to correct the error. See, State v. Craddock, 307 So.2d 342 (La.1975); State v. Houston, 40,642 (La.App. 2d Cir.3/10/06), 925 So.2d 690.

In the instant case, during the trial, following a discussion between the parties and the trial court with regard to the responsive verdict forms, the defense requested the responsive verdict of “aggravated sexual battery” be added, but that request was denied. The defense did not object to the omission of the responsive verdicts of “simple rape” and “attempted simple rape.” Thus, the omission is not reviewable by this court.

CONCLUSION

For the reasons set forth herein, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The victim's initials are used because of victim confidentiality requirements applicable to the instant case under LSA-R.S. 46:1844(W).

      . Subsequently, P.W. was treated at the emergency room at Louisiana State University Health Sciences Center in Shreveport. The sexual assault examination revealed a laceration on the back of her head and on her lower lip, scratches on her hands, neck, and elbows and bruises on her neck and lower back. The examination of her vagina and anus showed bruising and erythema.

      . According to the report of the DNA analysis, "The probability of finding the same DNA profile if the DNA had come from an unknown, unrelated Caucasian individual other than Donald Hanson was approximately 1 in 1.3 quadrillion."


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Robert HARTLEY, Appellant.
    No. 41,178-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.
    Louisiana Appellate Project, by Carey J. Ellis, III, Louis G. Scott, for Appellant.

      Jerry L. Jones, District Attorney, Charles L. Brumfield, Edward D. Young, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   STEWART, J.

hThe defendant, Robert Hartley, was convicted as charged of the second degree murder of his infant daughter. He was sentenced to a mandatory term of life imprisonment without benefits. Arguing insufficiency of the evidence, the defendant now appeals. We find no merit to the defendant’s assignment of error, thus we affirm his conviction and sentence.

FACTS and PROCEDURAL HISTORY

The defendant and his girlfriend, De-wanna Jones, were living together at the time of the crime in a trailer home in Bastrop, Louisiana, with their twin infant daughters, who were born December 9, 2002. The defendant’s mother, Stacy Caldwell, and her husband lived a few hundred yards away.

Sometime between 12:30 and 1:00 p.m. on February 26, 2003, Dewanna walked to Stacy’s house to ask her about a ride to a medical appointment, leaving the defendant alone with their two infant girls. De-wanna made a phone call from Stacy’s house to reschedule the appointment. After staying at Stacy’s about 30 minutes, Dewanna rode with Stacy to Dewanna’s and the defendant’s trailer. When they arrived, the defendant opened the door. He was holding one of the twins, Skyler, and said he was glad they were there because he could not get her to stop crying. Stacy, a licensed practical nurse, reached for Skyler, heard her gasp, and realized that she was not breathing. Skyler’s arms were limp. Stacy 12immediately asked the defendant if he had shaken the infant, and he answered, “No, Ma’am.” Stacy yelled for Dewanna to call 911 and she began to perform CPR on the infant.

Dewanna went to a nearby neighbor’s house to call 911. At 1:15 p.m., the 911 dispatcher for the Morehouse Parish Sheriffs Department received the emergency call from Dewanna, who reported that her infant had stopped breathing. Skyler was taken to the local hospital, and then to the pediatric ICU at St. Francis Medical Center in Monroe. Dr. Aristóteles Pena-Miehes, a pediatric neurologist, examined Skyler, performed various tests and conclusively opined that Skyler had suffered “shaken baby syndrome” from a “very forceful activity” that occurred the same day she was admitted into the hospital. Dr. Pena-Miehes stated that trauma of this magnitude can only be produced by either a hit by an eighteen wheeler or shaking. Dr. Pena-Miehes further stated that the lack of external signs of trauma does not exclude shaken baby syndrome.

When Dewanna first discussed Skyler’s condition with the doctor, she was told that there was some swelling and bleeding. Dewanna asked what caused it, and the doctor said “[Y]ou know.” Dewanna protested twice that she did not know, after which she became very distraught and cried that she was going to kill the defendant. Approximately two days later, tests confirmed that Skyler was brain dead. She was taken off life support and died in Dewanna’s arms minutes later. The subsequent autopsy conducted by the forensic pathologist confirmed that Skyler’s death was caused by shaken baby syndrome.

join the early morning hours of February 27, 2003, Deputy Cassandra Tubbs, a juvenile investigator, conducted an investigation and took statements. The defendant gave a recorded statement. He admitted that he was alone with the twins when Skyler started crying. He picked Skyler up out of her swing, bumping her head on the swing in the process, and she began to cry louder. The defendant then admitted rocking, bouncing, and shaking Skyler as he cradled her in his arms to get her to quit crying. He indicated that he changed her diaper, after which she “started crying again real loud.” He admitted that the loud crying “got irritating to [him]” and that he was “getting a little angry.” He also described himself as “a little upset” and “fairly agitated.” He stated that he took deep breaths to try to calm himself down. He admitted that he did not realize that he was shaking Skyler “too hard” and “harder than what I thought” until he noticed her head “coming up off’ his arms. He further admitted that he quit shaking Skyler when he realized that her head was bouncing up and down off of his arm a couple of times, which was about the same time that his mother arrived at the trailer.

The defendant was charged by bill of indictment with second degree murder. He entered a plea of not guilty at arraignment. After a hearing on the defendant’s motion to suppress his statements, the defendant changed his plea to not guilty and not guilty by reason of insanity. A motion for appointment of a sanity commission was granted, and the defendant was later found to be competent to proceed.

|4Puring the trial, the state presented witnesses and evidence supporting the facts and circumstances of the crime and investigation described hereinabove. According to Stacy, the defendant’s mother, the defendant completed the second grade in regular school and was educated through special education thereafter. Evidence was subsequently presented through another witness that the defendant’s grade equivalency test score was an average of third grade, second month. After the second grade, the defendant was institutionalized for mental disorders, and was in and out of mental institutions for much of his life. Stacy related that the defendant had been receiving outpatient treatment for his mental disorders, and had been taking his medications except for the time when his Social Security benefits were briefly discontinued in 2002. She said the defendant was ecstatic to be a father, and she had coached him on how to properly hold his infant girls.

The state and defense also presented various witnesses, including expert witnesses, regarding the defendant’s mental diagnoses, sanity, and educational level. Dr. Richard Warren Williams, a psychiatrist who evaluated the defendant one time in July 2004, testified for the state that the defendant, in his opinion, was competent to stand trial and that he knew right from wrong at the time of the offense. Dr. Williams found the defendant to be in the range between low average and borderline intelligence, but certainly not even moderately mentally retarded. His diagnosis of the defendant included intermittent explosive disorder, which he described as an impulse control disorder. Dr. Williams further found the defendant to have both anti-social and borderline type traits. Dr. Williams 1 ¡-^classified the defendant as being “not even close” to needing hospitalization but also not functioning in the high sense that you might need to perform in many jobs. Dr. Williams found that the defendant “without question” had the ability to provide adequate care for an infant and was not psychotic.

The defense’s witnesses included C.J. Beck, a clinical manager and family evaluator, who first met the defendant in 1997 in his capacity as counselor at the Methodist Children’s Home. Beck’s contact with the defendant ended in 1998, and began again later from about 2001 until January 2003 at River South Rehabilitation Center. Beck discussed the defendant’s diagnosis of bipolar disorder and his counseling team’s work in helping the defendant deal with mood changes, including anger and depression. He related that the defendant’s attendance became sporadic and he became less compliant with services, including not taking his medication consistently. Beck testified that at a family counseling session, he advised Dewanna not to leave the children alone with the defendant, because he was not on his medication at the time, and he had a history of behavior digressions when he was not medicated. Beck also reinforced this with the defendant’s mother.

When Dewanna testified for the state, she denied that anyone had ever cautioned her not to leave the defendant alone with the babies. She stated that the defendant had been attending therapy about once a week, but quit because of transportation issues. Dewanna further related that the defendant had not taken his medications from about October or November 2002 until the date of the crime.

IfiThe defense presented various witnesses who testified that Skyler initially had trouble feeding, and had a bruise on her head on January 13th. The defense also presented witnesses who stated that the defendant was a good father who helped to take care of the babies.

The defendant’s treating psychiatrist, Dr. Aruna Gullapalli, explained that it was hard to pinpoint a specific diagnosis for the defendant. She described him as exhibiting a lot of impulsive behavior and mood swings. She stated that he knew right from wrong with regard to knowing not to kill or harm a person, but she did not believe that he knew right from wrong with regard to how to console a crying infant.

After the defendant’s trial before a 12-person jury, he was found guilty as charged of second degree murder. The defendant subsequently filed a motion for post-verdict judgment of acquittal, which was denied by the trial court. The defendant was sentenced to the mandatory term of life imprisonment without benefits. This appeal followed.

DISCUSSION

The defendant’s sole assignment of error relates to the sufficiency of the evidence. He argues that the circumstantial evidence offered by the state was insufficient to support the jury’s verdict of second degree murder. He contends that, although he admitted shaking the infant, he did not admit shaking her violently enough for shaken baby syndrome to have occurred. He notes that there were no eyewitnesses to the events leading to the infant’s death, and that the arrest and subsequent conviction were apparently based on the opinion of the doctors.

17The state notes that the defendant admitted shaking the infant. It recounts the expert testimony given by the pediatric neurologist and forensic pathologist that this was a case of an infant that had been severely shaken to death. The state disagrees that the conviction is based solely on circumstantial evidence, noting that the defendant’s statement is not circumstantial evidence. It concludes that the evidence presented, viewed in the light most favorable to the prosecution, supports the defendant’s conviction of second degree murder.

Applicable Law

The defendant was convicted as charged of second degree murder. La. R.S. 14:30.1 A(2)(b) defines second degree murder as the killing of a human being when the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or to inflict great bodily harm.

Cruelty to juveniles, as it relates to this matter, is defined in La. R.S. 14:93 as:

(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.

Criminal negligence is defined in La. R.S. 14:11 as follows:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

The question of sufficiency of evidence is properly raised by a motion for post-verdict judgment of acquittal. State v. Howard, 31,807 (La.App. 82d Cir.8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190. La. C. Cr. P. art. 821 provides that a motion for post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. This is a question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App. 2d Cir.), writ denied, 604 So.2d 973 (La.1992).

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. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 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. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. 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. Rather, 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.

| aThe 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 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, 98-2723 (La.2/5/99), 737 So.2d 747.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

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 support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

11()Application of the Law to the Facts

A review of the entire record reveals that the evidence, viewed in the light most favorable to the prosecution, including the facts established by the direct evidence and inferred from the circumstances established by that evidence, were sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime of second degree murder. See State v. Sutton, supra; State v. Owens, supra. Direct evidence in the case sub judice included the defendant’s statement in which he admitted that the infant’s crying upset him and he was “fairly agitated” and “getting a little angry.” The defendant further admitted shaking, bouncing, and rocking the infant “hard,” and “harder than I thought.” He stated that her head was “coming up off’ his arms. The defendant’s admissions, coupled with the expert testimony that the infant’s death resulted from recently inflicted shaken baby syndrome, was clearly sufficient to support the defendant’s conviction as charged of second degree murder. This killing occurred when the defendant was engaged in the perpetration of cruelty to a juvenile, which does not require intent to kill or to inflict great bodily harm. See La. R.S. 14:30.1 A(2)(b). Cruelty to juveniles is defined as the intentional or criminally negligent mistreatment or neglect whereby unjustifiable pain or suffering was caused to the infant. See La. R.S. 14:93. Such cruelty was clearly present here. The defendant shook his infant daughter in response to her crying and realized that he was shaking her too hard. It cannot be said that he did not know what he was doing was wrong.

| n Therefore, this assignment is without merit.

CONCLUSION

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . La. R.S. 46:1844 W(l)(a), regarding confidentiality of crime victims who are minors and victims of sex offenses, provides in part that the public disclosure of the name of the juvenile crime victim by any public official or officer or public agency is not prohibited when the crime resulted in the death of the victim. Such is the case here.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Montgomery David MALHIOT, Appellant.
    No. 41,175-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Louisiana Appellate Project, by Christopher Albert Aberle, Mandeville, Mary Lee Harried, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Lea R. Hall, Jr., Brian H. Barber, Ron Christopher Stamps, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   DREW, J.

| Montgomery David Malhiot was convicted at jury trial for the crime of attempted armed robbery. Sentenced to 15 years at hard labor without benefit of parole, probation, or suspension of sentence, he now appeals. We affirm.

FACTS

On or about September 6, 2004, the defendant, a heroin addict, was in a gambling mood, so he took a bus from Texas to a Shreveport area casino, packing some heroin and a lot of bad luck.

Upon his arrival in Shreveport, the defendant:

• quickly lost at the casinos whatever money he had on him;
• unsuccessfully sought to secure a motel room;
• desperately sought lodging at a Salvation Army shelter; and
• greedily consumed all his heroin, waking up quite ill.

A shelter employee kindly drove the defendant to the LSU medical center. The defendant checked into the hospital, but after several hours of waiting, left, heading to a nearby liquor store, where he asked for a bottle of rum. Things started to run off into the ditch, as this chronology unfolded:

• Feeling an intense craving for some relief, the defendant opened the bottle at the sales counter before the transaction was completed by the store owner, Mr. Mohammed.
• The owner grabbed the bottle and explained that it was illegal to open alcohol in the store.
• The defendant became angry, put Mr. Mohammed in a headlock, doused him with rum, then threatened to set him on fire if he did not give him some money.
12* A struggle ensued, and Mr. Mohammed yelled to his brother, who was in the back office, to get a gun and call 911.
• The “gun” his brother retrieved and slid out to Mr. Mohammed was actually a BB gun.
• The store owner gained control of the BB gun, and held it on the defendant, who was sprawled on the floor in a bad way.

The defendant was charged with armed robbery, to which he pled not guilty. On May 12, 2005, a petit jury convicted him of the responsive verdict of attempted armed robbery. On August 19, 2005, the trial court denied the defendant’s motions for new trial and post verdict judgment of acquittal. On August 29, 2005, the court sentenced the defendant to 15 years at hard labor, mistakenly believing that the benefits of parole, probation, and suspension of sentence were available to the defendant. On September 2, 2005, pursuant to the state’s Motion to Correct an Illegal Sentence, the court resentenced Malhiot to 15 years without benefit of parole, probation, or suspension of sentence. At the resentencing proceedings, the defense noted their objection to the granting of the state’s motion to resentence.

DISCUSSION

Sufficiency of Evidence

The defendant’s arguments on sufficiency are as follows:

• The State failed to prove beyond a reasonable doubt that the rum that was splashed on the store owner was a “dangerous weapon” as required by La. R.S. 14:64, for the reason that (unlike acid or other caustic substances) rum, by itself, is not a dangerous weapon.
• Gasoline is extremely flammable, but rum is not, further reasoning that no bar would stock rum if it actually was extremely flammable.
| ?,• At the time of the incident, he had no lighter, nor any matches.
• The trial court, during sentencing, expressed doubt that the defendant knew there were matches on the counter.
• Therefore, at most, he could only be guilty of attempted first degree robbery, not armed robbery, as he was not armed with a dangerous weapon.

The state argues that the verdict is proper because:

• the defendant doused the victim with highly-flammable rum, placed the victim in a headlock, and threatened to ignite the rum if the victim did not comply with his demand for money;
• even with no lighter and no matches on his person, there were lighters for sale in the immediate area;
• the victim was severely frightened of being burned, due to the fact that he was not aware that the defendant did not possess any means of ignition;
• this threat of being burned created a highly-charged environment of fear;
• rum, by itself, can be considered a dangerous weapon based on the fact that even a toy gun has been found to be a dangerous weapon when presented as a “real” gun;
• therefore, any rational trier of fact could have found that rum plus the threat of being ignited is a “dangerous weapon” consistent with the statute.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court is controlled by the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The court must determine whether the evidence, viewed in the light most favorable to |4the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Nealy, 450 So.2d 634 (La.1984); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989).

To convict a defendant of attempted armed robbery, the state must prove that the defendant, having the specific intent to commit armed robbery, did or omitted an act for the purpose of and tending directly toward the taking of anything of value belonging to another, from the person of another or in the immediate control of another, by the use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:27 and 64. State v. Musgrove, 33,977 (La.App. 2d Cir.12/15/00), 774 So.2d 1155, writ denied, 2001-0356 (La.9/28/01), 798 So.2d 112.

A “dangerous weapon” includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. La. R.S. 14:2(3).

The supreme court has also held that “the term ‘dangerous weapon’ is not limited to those instrumentalities which are inherently dangerous, but includes any instrumentality which in the manner used, is calculated or likely to produce death or great bodily harm.” State v. Bonier, 367 So.2d 824, 826 (La.1979). See R.S. 14:2(3). Louisiana jurisprudence reveals that numerous everyday items have been held to constitute a dangerous weapon, in the manner used, including:

• a stick, State v. McClure, 34,880 (La.App. 2d Cir.8/22/01), 793 So.2d 454;
Is* an ink pen, State v. Johnson, 598 So.2d 1152 (La.App. 1st Cir.1992); and
• a tennis shoe, State v. Munoz, 575 So.2d 848 (La.App. 5th Cir.1991).

This record clearly reflects that there was sufficient evidence for a trier of fact to find that all of the required elements were present by which to prove that a dangerous weapon had been used, considering:

• a person was doused with Bacardi 151 rum, a liquid known to have a high alcohol content, accompanied by
• the threat of being ignited, along with
• the availability of a lighter within arm’s reach.

We agree with the state. Considering the violent and senseless environment created by the defendant, there is no doubt that taking the rum and the threats together constituted ample evidence by which to sustain this conviction of attempted armed robbery.

Sentencing

The defendant argues that at the original sentencing hearing, the trial court believed that the penalty for attempted armed robbery was subject to a condition of parole. On the state’s motion, the trial court corrected the sentence to include the denial of all benefits (parole, probation, suspension of sentence).

The defendant further argues that the trial court could have done more than correct the sentence but may have thought it was limited to that specific matter. In light of the brevity of the proceedings, the defendant argues the trial court could not have taken into consideration whether a | filower sentence would serve the court’s original sentencing intent without a full hearing.

The state disagrees, because the defendant:

• only orally objected to the correction of the illegal sentence;
• failed to file a motion to reconsider sentence, limiting any review of the defendant’s sentence to constitutional excessiveness only;
• was exposed to 491/2 years at hard labor without the benefit of probation, parole, or suspension of sentence, and received a much lighter sentence than the maximum;
• had the benefit of the trial court clearly reviewing the facts and circumstance of this case and this defendant before sentence.

Defense counsel, at the hearing for the state’s Motion to Correct an Illegal Sentence, stated, “We would note for the record objection to the granting of the State’s motion and objection to the resentencing of Mr. Malhiot for the record.” The trial court subsequently corrected the defendant’s sentence to 15 years at hard labor to be served without benefit of parole, probation, or suspension of sentence, with credit for time served.

The trial court considered the defendant’s criminal history, drug addiction, rehabilitation efforts, a PSI report, the defendant’s family, a letter written by the defendant’s father, and the relevant facts of the case. The trial court acknowledged that the defendant created a dangerous situation, but given the circumstances, a maximum punishment was not necessary. In fact, during the original sentencing hearing, the trial court stated:

I do not believe that [the offense] carries with it the provision that, whatever the term the Court orders must be served without benefit of probation, parole, or suspension of sentence. I did advise the district attorney and the defense lawyer here at the bench that if we find out that’s different, notify me by way of a 17motion to reconsider, and I will correct any issue that needs to be corrected.

Emphasis added.

Defendant’s actual objection to his re-sentencing contested the procedure used to resentence, not the length of the sentence or the denial of benefits. We note that the original sentence would have been corrected, had the trial court not done so, because the failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefits does not affect the statutory requirement that all or a portion of the sentence be served without benefits.

The defendant cites State v. Everett, 2005-214 (La.App. 3d Cir.11/2/05), 916 So.2d 1210, 1213, where that court remanded for resentencing an attempted possession of a firearm offense and stated that, “had [the trial court] known that the entire term of imprisonment must be served without benefit of parole, the trial court may have imposed a lesser term of imprisonment for the Defendant.”

The instant case is distinguishable from State v. Everett, supra, because in the case at bar, the trial court considered all the mitigating factors at the original sentencing hearing, the trial court had the opportunity to review the sentence at the resen-tencing hearing, and nothing in the record [¿reflects the trial court’s desire to impose a lesser sentence in light of the restriction on benefits. The resentencing was proper.

DECREE

Defendant’s conviction and sentence are AFFIRMED.

      . Somewhere in these facts may lurk a possible country-western song.

      . Presumably by barter, since he'd had a bad night at the dice halls.

      . Nowhere near enough firepower for Shreveport, Louisiana.

      . In support of this counterargument, the state goes back over a quarter century ago, citing State v. Bonier, 367 So.2d 824 (La.1979), which held that, while it is not determinative of the issue, the subjective reaction of the victim may be some evidence of whether there was an actual likelihood of danger.

      . See State v. Kemp, 39,358 (La.App. 2d Cir.3/11/05), 896 So.2d 349 (Drew, dissenting), writ denied, 2005-0937 (La.12/9/05), 916 So.2d 1052.

      . La. R.S. 15:301.1(A) provides:
      When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole or suspension of sentence, each sentence imposed under that statute shall be deemed to contain the provisions relating to the service of that sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefits shall not affect the statutory requirement that all or a portion of the sentence be served without benefits.


text:
    Ralph ABRAHAM, M.D., Randy W. Head, M.D., and Ron Morgan, M.D., Plaintiff-Appellant v. RICHLAND PARISH HOSPITAL SERVICE DISTRICT 1-B d/b/a Richland Medical Center, David Kervin, Robert Maddox, M.D., and SEC/EmCare Emergency Care, Inc., Defendant-Appellee.
    No. 41,141-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.
    Rehearing Denied Sept. 21, 2006.

      Joseph R. Ward, Jr., Covington, Gregory Scott Moore, Mason L. Oswalt, for Ralph Abraham, M.D. and Randy W. Head, M.D.
    David E. Yerlander, III, Monroe, Joseph R. Ward, Jr., Covington, for Ron Morgan, M.D.
    Gordon L. James, Monroe, Jan Peter Christiansen, Monroe, for Richland Parish Hospital Service District 1-B and David Kervin.
    Thomas More Flanagan, New Orleans, for Robert Maddox, M.D. and SEC/Em-Care Emergency Care, Inc.
    Before STEWART, GASKINS and DREW, JJ.
   DREW, J.

hln this lawsuit, Drs. Ralph Abraham, Randy Head, and Ron Morgan (“plaintiffs”) asserted that defendants violated Louisiana law by conspiring to restrain trade in violation of La. R.S. 51:122, and conspiring to monopolize in violation of La. R.S. 51:123. Among plaintiffs’ other claims is that defendants violated Louisiana’s Unfair Trade Practices laws. However, the antitrust claims of restraint of trade and monopoly are the only causes of action at issue in this appeal of the granting of defendant’s renewed motion for partial summary judgment. We affirm.

FACTS

In 1992, the Richland Parish Hospital Service District 1-B d/b/a Richardson Medical Center (“Hospital”) contracted with Dr. Ron Morgan to run a clinic it owned in Mangham. This clinic was leased to Dr. Morgan. In 1995, Dr. Ralph Abraham and Dr. Randy Head joined Dr. Morgan at the Clinic. The Hospital offered plaintiffs, who are family and general practitioners, contracts guaranteeing each an annual income of $100,000, reimbursement of up to $8,000 in monthly expenses, and assistance in purchasing and maintaining a computer system.

In late 1995, the plaintiffs opened a satellite clinic in Rayville which supposedly challenged the hospital’s Rayville clinic, the Northeast Louisiana Rural Health Clinic (NELRHC), in the Rayville primary care market. Also, the plaintiffs began admitting some patients to St. Francis Hospital in Monroe. Plaintiffs contend that in 1996, the hospital retaliated |2by ceasing payments to Drs. Abraham and Head, and by accelerating the rent payments under the clinic lease. They also contend that when their patients went to the emergency room at the Hospital, Dr. Robert Maddox, an emergency room physician, not only refused or delayed medical treatment to the plaintiffs’ patients, but also attempted to have their patients choose other physicians. Dr. Head left the practice in 1996 and moved his office to Monroe, and in 1997, the other two plaintiffs closed their Rayville clinic. They later dissolved their joint practice in Mang-ham, but continued to practice separately there.

On September 30, 2002, plaintiffs filed suit against the Hospital; David Kervin, the hospital’s administrator; SEC/EmCare Emergency Care, Inc. (“Spectrum”), which provided emergency room doctors to the hospital; and Dr. Maddox, who was employed by Spectrum. In their petition, the plaintiffs asserted violations of the Louisiana antitrust laws and the Louisiana Unfair Trade Practices Act, and alleged that defendants breached their contracts and made libelous statements against them. Regarding the antitrust claims, plaintiffs contended in their petition that the defendants’ conduct constituted “a conspiracy to unfairly restrain trade in the Mangham-Rayville area[.]” They complained that the defendants’ conduct was “an attempt to monopolize the practice of medicine in the Mangham-Rayville area, particularly with regard to the examination of patients in the emergency room of the Hospital, the leveraging of an |sessential facility (the ER) to require admissions at [the Hospital], and the practice of primary care medicine.”

The defendants filed motions for partial summary judgment seeking dismissal of the antitrust claims. In their motions, the defendants asserted that the plaintiffs failed to properly define the relevant geographic markets and to show that the defendants possessed market power in the relevant geographic markets. In opposition to the motions for partial summary judgment, the plaintiffs offered the affidavit of economist Dr. Frank Gollop. The trial court denied the motions for partial summary judgment, finding that the definitions of the relevant markets were triable issues.

The defendants appealed, arguing only that the plaintiffs had failed to define the geographic markets for primary care medicine or for hospital services. This court affirmed the denial of the motions for summary judgment. Abraham v. Richland Parish Hosp. Service Dist. 1-B, 39,841 (La.App. 2d Cir.2/8/05), 894 So.2d 1229, writ denied, 2005-0450 (La.4/22/05), 899 So.2d 571.

In affirming the denial of the motion, this court explained that Dr. Gollop had adequately defined the relevant market for primary care services:

The third geographic market is primary care medicine. In his original affidavit, Dr. Gollop wrote that this market is “relatively local” and that “patients typically affiliate with doctors in their local community for well-visits and routine non-specialized care.” Rayville residents typically see Rayville doctors, and Mangham residents see Mangham doctors. 14Although some Mangham residents might travel to Rayville, a larger city, for primary care, Dr. Gollop felt it was unlikely that Rayville residents would travel to Mangham. However, he noted that with the exception of some Rayville residents who established relationships with the plaintiffs while they had their Rayville clinic, Rayville residents generally do not seek primary care in Mangham. Thus, he concluded that the Rayville and Mangham primary care services constituted separate antitrust markets. In his supplemental affidavit, Dr. Gollop emphasized that the important factor here was where the Rayville residents, not residents of Mangham or rural areas, go for care. As to determining the antitrust issue of where consumers could turn for alternative products if a competitor raised prices, he again stated that any price sensitivity test as to physician substitution was mooted by third-party payors such as insurers. He reiterated that where “consumers go indicates the geographic boundaries of where they could practicably go if prices were to increase.” The trial court concluded that this market also appeared to be adequately defined for summary judgment purposes. Again, the court noted that trial evidence might cause the definition to be expanded to Richland, Franklin, and Ouachita parishes; thus, the matter was a triable issue not suitable for summary judgment.
The defendants argue that the deposition testimony shows that the plaintiffs have too narrowly drawn the primary care medicine market-that Rayville residents are not limited to Rayville doctors for basic medical care.
The trial court stated that the plaintiffs had survived summary judgment on this matter because reasonable persons could disagree on the definitions of the markets and Dr. Gollop’s uncontradicted expert opinion provided a basis for the definitions. We agree. For purposes of summary judgment, we find that the plaintiffs have adequately defined the markets, primarily through the competent and reasonable expert testimony of Dr. Gollop. To the extent that the depositions of some of the plaintiffs’ witnesses presented conflicting evidence, these are matters which must be resolved at trial on the merits.

Abraham, 894 So.2d at 1235.

Subsequently armed with patient statistics and an opinion from their own expert, the defendants reurged the motion for partial summary judgment on the antitrust claims, but only on the narrow question of 1 Bwhether Rayville is a separate and independent market for primary care medicine. They contended that Dr. Gollop’s opinion that Rayville and Mangham were separate antitrust markets had since been shown to be incorrect based upon documents, particularly patient lists, produced by the plaintiffs. According to defendants, these patient lists showed that each plaintiff treated a substantial number of Ray-ville patients at their offices outside of Rayville. The defendants added that Drs. Abraham and Morgan’s records demonstrated that they regularly saw patients in Mangham from not only Rayville and Mangham, but also from Monroe, Winns-boro, and Delhi, and that Rayville residents made up between 24-81% of the new patients for each Mangham plaintiff. Defendants argued that because the plaintiffs had improperly defined the market for primary care, their antitrust claims must fall.

A hearing on defendants’ motion for partial summary judgment was held in October of 2005. In granting the motion, the trial court stated:

Defendants argue that Dr. Gollop’s analysis is severely flawed because his 2005 deposition revealed that the relevant market for this litigation should be confined to the corporate limits of Ray-ville even though the NELHRC draws most of its patients from the entire Ray-ville zip code which extends well beyond the corporate limits of the town of Ray-ville and the fact that the Rayville doctors compete directly with Mangham and Monroe doctors for the same pool of patients.
Defendants have submitted expert opinion from Dr. William Lynk who determined that at a minimum the Rayville and Mangham communities are in the same geographic market for primary-care medicine. Also, the report of pollster, John Grimm, would lead one to believe that the Town of Rayville is not an independent market.
Plaintiffs counter that Dr. Gollop is correct and that the geographic market for medical services can be smaller than the 1 ^defendant's service area citing a couple of federal cases to support their position. Also, plaintiffs contend that defendants and their expert, Dr. Lynk, have misused the patients’ address data supplied to them by incorrectly assuming that anyone with the 71269 zip code resides in the Town of Rayville.
* * :|:
The first inquiry under the Surgical Care decision is to determine the product and service area in which the NELHRC attracts the substantial majority of its business. That service area, from the record, extends throughout the 71269 zip code and beyond. The second step under Surgical Care is to determine the geographical locations of other primary-care doctors that also serve a substantial number of the patients in that same medical service area. The plaintiff doctors have confirmed in their depositions that a significant number of the residents in the 71269 zip code area visit them in Mangham and in Monroe. Consequently, Doctors Abraham, Morgan, and Head compete with the doctors in Rayville for the same patient base. Yet, Dr. Gollop states that in his opinion few residents of the Town of Rayville receive primary care from doctors outside of Rayville.
The jurisprudence on this subject indicates that, in defining an antitrust market, the plaintiff is required to show where consumers could go beyond the service area in response to anti-competitive conduct. After reviewing the record, this court finds that there is too much inflow of patients from outside the Town of Rayville to the medical providers there and too much outflow of the patients living in Rayville to medical providers in Mangham and elsewhere to classify the Town of Rayville as a separate geographic market. It appears that at a minimum the relevant geographic market must be at least as large as the NELHRC’s service area. Even plaintiffs’ petition states that there was a conspiracy to restrain trade in the Mangham-Rayville area. Because Mangham and Rayville are not separate markets, the plaintiffs’ antitrust claims must be dismissed.... This court finds based on the record that there is no question of fact that physicians in the Towns of Rayville and Mangham compete with one another for patients residing in the 71269 zip code and beyond. This court has rejected Dr. Gollop’s contrary conclusions as a matter of law because his methodology in determining the relevant geographic market is flawed since it is not based on the data and the testimony made available in the record of these proceedings and since his conclusions do not meet with the guidelines in determining relevant geographic markets as defined in the jurisprudence.

^DISCUSSION

La. R.S. 51:122(A) states that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal.” A claim under this statute must include an allegation of damage to competition. Plaquemine Marine, Inc. v. Mercury Marine, 2003-1036 (La.App. 1st Cir.7/25/03), 859 So.2d 110.

La. R.S. 51:123 prohibits a person from monopolizing or attempting to monopolize, or combining, or conspiring with any other person to monopolize any part of the trade or commerce within Louisiana. In order to establish a cause of action for monopoly, the pleadings must state facts sufficient to show that defendant (1) possessed monopoly power in a clearly defined economic and geographic market (the relevant market) and, (2) that defendant had the specific purpose or intent to exercise or maintain that power, as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. Plaquemine Marine, Inc. v. Mercury Marine, supra.

Dr. Gollop believes that the Town of Rayville is the relevant market, or submarket as he sometimes refers to it, for primary care services in this case. The relevant market is defined as the area of effective competition within which the defendant operates. It includes a geographic market as well as a product market. The geographic market is the section of the country in which sellers of a particular product operate. The product market encompasses the differences among various commodities and the |swillingness of buyers to substitute one product for another. Plaquemine Marine, supra; Abraham, supra. The geographic element consists of the area where sellers of the defendant’s product operate, and to where buyers can practicably turn to obtain that product. Id.

In reurging their motion for summary judgment, the defendants contended that the court had been misled by Dr. Gollop, who reported that few Rayville residents would be expected to travel to Mangham for primary care. After the denial of the first motion for summary judgment, defendants gathered and analyzed information about where patients lived, deposed Dr. Gollop, presented an opinion from their own expert, and commissioned a survey of Rayville residents.

Defendants discovered that the plaintiffs treat a substantial number of residents of the Rayville ZIP Code at offices in Mang-ham and Monroe. A legal assistant for one of defendants’ attorneys had examined plaintiffs’ patient records and calculated that:

• From July 1997 to 2005, 30.76% of the patients who registered at Dr. Abraham’s Mangham clinic were from the Rayville ZIP Code.
• From January 2003 to 2005, 23.87% of the patients who registered at Dr. Morgan’s Mangham clinic came from the Rayville ZIP Code.
• From July 1997 to 2005, Dr. Head registered 500 patients from the Ray-ville ZIP Code at his office in Monroe.

Defendants contend that this information shows that Rayville residents will travel outside of Rayville for primary medical care.

In further support of their argument that Rayville is within a larger geographic market, defendants point to deposition testimony from various | flphysicians, including plaintiffs, who practice or had practiced in Rayville. Dr. Morgan stated in his deposition that he considered doctors in Rayville to be his competitors. Dr. Abraham testified that any other family doctor within 20 miles of Mangham would be his competition. Dr. Albert Kerr estimated that 10% of his patients in Rayville come from Monroe. Dr. Dan Lafleur stated that he has patients come from as far as Tallulah to see him in Rayville. Dr. David Thompson stated that he has a fair Delhi clientele at his Rayville office. Dr. Ron Hubbard testified that when he moved from Rayville, he turned over a lot of his patients to Dr. Ron Morgan and Dr. Charles Morgan in Monroe. Dr. Charles Krin thought it would be impossible to monopolize the market for primary care medicine in Rich-land Parish because there were two hospitals and two different groups of doctors in the area, as well as a large number of family practice doctors in Monroe. Dr. Krin, who has a family practice in the Rayville area, estimated that he draws patients from a seven-parish area.

To counter Dr. Gollop’s definition of the relevant market for primary care services, defendants offered the opinion of Dr. William Lynk, who is the Senior Vice-President and Senior Economist at Lexecon, an economic consulting firm in Chicago, where he specializes in health economics. Prior to joining Lexecon, Dr. Lynk was Director of the Health Economics Research Department at the national Blue Cross and Blue Shield Association, where he conducted and supervised economic research on health care market issues.

|inDr. Lynk noted that there were around seven primary care doctors who practiced in and around Rayville. He also noted that the term “primary care” generally refers to the medical specialities of general practice, family practice, internal medicine, and pediatrics.

Dr. Lynk concluded that the relevant health economics research in general, and the empirical evidence in the case in particular, rejects the view that Rayville and Mangham are separate primary care geographic markets. Dr. Lynk found that, at a minimum, primary care physician practice sites in Rayville, Mangham, and Monroe are within the same relevant geographic market, and the plaintiffs have not been excluded from this market because they have moved around within it. Dr. Lynk particularly noted that although the Rayville clinic was closed by plaintiffs in October of 1997, the number of visits at their Mangham clinic rose enough within a few months to offset the loss of visits in Rayville. Dr. Lynk believed this implied that Rayville and Mangham were together in one primary care services market.

Both Dr. Gollop and Dr. Lynk follow the Surgical Care two-step test to define the relevant geographic market. The two steps are:

(1) Determine the product and service area in which [defendant] attracts the substantial majority of its inpatient business; [and]
(2) determine the geographic locations of other [physicians] that also currently serve a substantial number of the patients residing in the [defendants’] service area. These other [physicians] are those competitors who have the ability to serve [defendants’] current patients should those patients choose to seek out alternative sources of [treatment.]

| nSurgical Care Center of Hammond, L.C. v. Hospital Service District No. 1 of Tangipahoa Parish, 2001 WL 8586 (E.D.La.2001), affirmed, 309 F.3d 836 (5th Cir.2002).

In step one, Dr. Lynk prefers using 90% to determine the product and service area of the health care provider at issue. In other words, he defines that provider’s patient service area as the “narrowest area sufficient to account for 90 percent of its patient business.” Dr. Lynk offers that the 90% statistical criterion has largely become the norm. Dr. Gollop prefers to use 70%.

Table 4 attached to Dr. Lynk’s report lists statistics pertaining to patient registrations at the NELRHC from 2000 to 2005. This table shows that 72.08% of the clinic’s patients were from the Rayville ZIP Code. Ranked second and third were Delhi and Monroe, which provided 5.47% and 3.83% of the patient registrations respectively. Using the 90% standard, one would have to add patients from Start (Richland Parish), Mangham, and Oak Ridge (Morehouse), as well as Delhi and Monroe, to the Rayville ZIP Code patients in order to collectively come close to the 90% plateau. Thus, using the 90% standard, the defendants’ service area in the field of primary care services encompasses an area larger than the Rayville ZIP Code area, an area obviously larger than merely the town limits of Rayville. Dr. Gollop stated in his October 2005 report that he does not “have any issue with Dr. Lynx’s use of a 90% criterion for determining the outer boundaries” of NELRHC’s service area. In any event, even if the 70% | ^standard is utilized, 72.08% of the NELRHC’s patients came from the Ray-ville ZIP Code, not just from the Town of Rayville.

As for the second step, a telephone survey of 760 households in the Rayville ZIP Code that was conducted between March and May of 2005 showed that approximately 44% of respondents and members of their households used a primary care physician located in a place other than the Town of Rayville. Moreover, patient registration records from plaintiffs showed that the plaintiffs in Mangham and Monroe are an option for Rayville ZIP Code residents seeking primary care services. While obviously not all of these residents of this ZIP Code hail from Rayville proper, it is equally obvious that this group would include residents of the town itself.

Dr. Gollop counters that his analysis shows that of plaintiffs’ new patients, only a small number are from the Town of Rayville, specifically 2.45% for Dr. Morgan, 3.32% for Dr. Abraham in 2004, and only 0.13% for Dr. Head in 2004. Dr. Gollop also criticizes Dr. Lynk for confusing the residents of the Rayville ZIP Code with the residents of the Town of Rayville alone. However, Dr. Gollop is missing the point. Step one established NELRHC’s service area as being far beyond just the Town of Rayville; accordingly, step two examines the primary care options for patients throughout this service area, not just those who live within the corporate limits of the Town of Rayville.

Dr. Gollop contends that the application of the second step of the Surgical Care test in this case can actually decrease the size of the area | isdetermined in step one as the service area. This is incorrect. As noted by the district judge in Surgical Care, the second step of the geographic market analysis switched the focus from where does the defendant get its patients to where do patients who reside in the defendant’s service area go for hospitalization if they do not go to the defendant. Moreover, the trial court noted that the definition of the relevant geographic market by Surgical Care’s expert was improper as he did not perform step two of the test. “[T]he geographic market is not comprised of the region in which the seller attempts to sell its product, but rather is comprised of the area where his customers would look to buy such a product.” Tunis Bros. Co., Inc. v. Ford Motor Co., 952 F.2d 715, 726 (3rd Cir.1991), cert. denied, 505 U.S. 1221, 112 S.Ct. 3034, 120 L.Ed.2d 903 (1992). In terms of primary care services, Rayville is not an economically isolated market from Mangham as physicians in Mangham present an alternative for patients within NELRHC’s service area.

Our de novo review of this record convinces us that summary judgment was properly granted in this case. Plaintiffs next argue that their restraint of trade claim remains viable because that claim does not contain the definition of a market as an element. This is incorrect. La. R.S. 51:122 is a counterpart to § 1 of the Sherman Anti-Trust Act. State ex rel. Ieyoub v. Bordens, Inc., 95-2655 (La.App. 4th Cir.11/27/96), 684 So.2d 1024, writ denied, 97-0339 (La.3/14/97), 690 So.2d 42. A claim under section 1 of the Sherman Act requires proof of three elements: that the defendant (1) engaged in a conspiracy (2) that restrained trade (3) in a particular market. 14Spectators’ Communication Network Inc. v. Colonial Country Club, 253 F.3d 215 (5th Cir.2001). In Surgical Care Center, the 5th Circuit noted that in order to show an unreasonable restraint of trade in violation of Section 1 of the Sherman Act, plaintiff had “to prove that North Oaks engaged in concerted action that produced anticompetitive effects in the relevant markets.... ” Surgical Care Center, 309 F.3d at 836.

DECREE

At appellants’ costs, the judgment is AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, DREW and MOORE, JJ.

Rehearing denied.

      . According to the 2000 census, the Town of Rayville has a population of 4,234, and the Rayville ZIP Code area has 12,655 residents. The Town of Rayville covers approximately 2.25 square miles.

      . Plaintiffs had originally presented a federal antitrust claim, as well as state-law claims, in a suit in federal court. However, the federal court dismissed the federal antitrust claim on the grounds that the defendants were entitled to immunity from federal antitrust suits. De-dining to exercise jurisdiction over the remaining state-law claims, the federal court dismissed those claims without prejudice.

      . Dr. Gollop agreed that except for the present case, he had no experience determining the geographic market for primary care medicine.

      . Rayville is approximately 12 miles north of Mangham.

      . These are steps one and two of a three-step test used in Surgical Care to determine market power in a submarket.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Gary RANKIN, Appellant.
    No. 41,128-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Paula Corley Marx, Laura M. Pavy, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, John W. Montgomery, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   GASKINS, J.

hThe defendant, Gary Rankin, entered an Alford plea to attempted second degree murder and was sentenced to 50 years at hard labor without benefit of probation, parole or suspension of sentence. He appeals. We affirm.

FACTS

On April 5, 2003, the defendant, age 20, went to the nursing home where his former girlfriend, the victim in the instant case, was employed. When she refused to reconcile with him, he pulled a gun from his waistband and shot her in the back of the head. The 19-year-old victim subsequently died.

The defendant was indicted for second degree murder. Following his request for a sanity commission, two of the three doctors on the commission opined that the defendant was competent to proceed. The trial court ruled that the defendant was competent to stand trial and assist his counsel.

The defendant was allowed to enter an Alford plea to attempted second degree murder. The trial court imposed a sentence of 50 years at hard labor without benefit of probation, parole or suspension of sentence. The defendant filed a motion to reconsider which asserted that his sentence was excessive due to his youth, mild retardation, and status as a first felony offender. The motion was denied.

CAPACITY TO PROCEED

The defendant claims that the trial court erred in finding that he was competent to proceed when the court was presented with conflicting |2evidence in the reports submitted by the members of the sanity commission. He argues that the trial court should not have adopted Dr. George Seideris conclusion “in the face of the more compelling [Dr. Mark] Vigen report.” The defendant contends that his “lack of remorse” could denote mental difficulties in recalling and relating facts “pertaining to his actions and whereabouts at certain times.” The state responds that it was not just Dr. Seiden who found the defendant competent to stand trial, but Dr. Paul Ware as well. The state notes that the defendant did not object to the ruling of competency at the guilty plea hearing.

Law

A criminal defendant has a constitutional right not to be tried while legally incompetent. A state must observe procedures adequate to protect a defendant’s right not to be tried while incompetent, and its failure to do so deprives the defendant of his due process right to a fair trial. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579, 120 L.Ed.2d 353, 365-66 (1992) [quoting Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ]; State v. Carmouche, 2001-0405 (La.5/14/02), 872 So.2d 1020.

Louisiana’s statutory scheme for detecting mental incapacity jealously guards a defendant’s right to a fair trial. State v. Nomey, 613 So.2d 157 (La.1993). In Louisiana, “[m]ental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” La. C. Cr. P. art. 641; see also Nomey, supra. The law also imposes a legal |spresumption that a defendant is sane and competent to proceed. La. R.S. 15:432; State v. Martin, 2000-0489 (La.9/22/00), 769 So.2d 1168.

The defendant has the burden of proving by a preponderance of the evidence his incapacity to stand trial. State v. Frank, 96-1136 (La.10/4/96), 679 So.2d 1365 [citing Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) ]. A reviewing court owes the trial court’s determinations as to the defendant’s competency great weight, and the trial court’s ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. State v. Bridgewater, 2000-1529 (La.1/15/02), 823 So.2d 877, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).

In State v. Bennett, 345 So.2d 1129, 1138 (La.1977), the Louisiana Supreme Court set forth the considerations necessary in determining whether a defendant is fully aware of the proceedings against him:

The decision as to a defendant’s competency to stand trial should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case and the gravity of the decisions with which he is faced. Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused’s ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained | ¿alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. [Citations omitted.]

Discussion

The defendant filed an application for appointment of a sanity commission on December 29, 2003. The trial court appointed Drs. George Seiden and Mark Vi-gen to examine the defendant’s mental condition. Dr. Seiden concluded that while the defendant’s intelligence was below average (estimated IQ of 70), he was able to consult with his attorney “with a reasonable degree of rational understanding.” Dr. Seiden opined that the defendant understood the charges, was aware of the nature of the proceedings, understood possible verdicts and consequences of conviction, could assist in preparing or maintaining a defense, and could testify in his own defense if necessary. Dr. Seiden wrote that the defendant’s condition was “not likely to deteriorate significantly under the stress of trial.” Dr. Vigen approximated that the defendant had an IQ of 65, and stated that, in his opinion, the defendant was not at that time competent to stand trial because he failed the Georgia Court Competency Test with no evidence of malingering.

On May 3, 2004, the trial court appointed Dr. Paul Ware to prepare a sanity report. No copy of Dr. Ware’s report is included in the record, but at the sanity hearing held on October 8, 2004, both the prosecution and defense counsel agreed that Dr. Ware had opined that [ sthe defendant was competent to stand trial. Based on the experts’ opinions, the trial court found the defendant competent to stand trial.

There is no showing that the trial court abused its discretion in this ruling. The defendant had the burden of proving incapacity to stand trial, and the trial court appointed a sanity commission at his request. Two of the three appointed experts found that the defendant was capable of understanding the proceedings and assist in his defense. Dr. Seiden’s report detailed many of the considerations that the Louisiana Supreme Court set forth in Bennett, supra, as determining factors in deciding whether a defendant is fully aware of the proceedings against him. As the defendant failed to rebut the presumption of sanity by proving incapacity by a preponderance of the evidence, this assignment is without merit.

EXCESSIVE SENTENCE

The defendant argues that the imposition of the maximum sentence possible under the plea agreement was constitutionally excessive, citing his age, “otherwise clean criminal record,” and “compromised mental ability.” The state argues that the defendant received considerable benefit from the reduced charge under the plea agreement, that the trial court clearly considered many factors in determining the appropriate sentence, and that the sentence imposed was not excessive.

\c,Law

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1. As second degree murder is a crime punishable by life imprisonment, a person guilty of attempting to commit that crime shall be imprisoned at hard labor for not less than 10 nor more than 50 years without benefits. La. R.S. 14:27(D)(l)(a).

In reviewing claims of excessive sentence, an appellate court uses a two-step process. 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 articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). A trial judge shall exercise his sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). In tailoring the sentence to the individual, 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);7 State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. 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, 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. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

[ ¡^Discussion

The defendant was indicted for second degree murder, a crime which carries a mandatory sentence of life imprisonment without benefits. He pled guilty to attempted second degree murder which has a sentencing range of 10 to 50 years imprisonment at hard labor without benefits. Therefore, the plea agreement resulted in a significant reduction in the time of potential imprisonment.

At the sentencing hearing, the victim’s mother said that her daughter had been completing entrance exams to join the U.S. Army the same week that she was shot in the back of the head by the defendant. She spoke of the hardships of seeing her child at the hospital, “hooked onto these respirators and all of this.”

According to the facts revealed at sentencing, the defendant and the victim dated for approximately five years before breaking off the relationship. The defendant went to the nursing home where the victim was employed to attempt to reconcile. When the victim refused and turned away from him, the defendant told her, “If I can’t have you, nobody will have you.” He then pulled a revolver from the waistband of his pants and shot her in the back of the head. He confessed to police that he had shot and killed the victim. During the presentence investigation, the defendant said that it had been an “accidental discharge.” The defendant stated at the sentencing hearing that “what happened was an accident.” The defense counsel urged the trial court to consider that the defendant was mentally ^retarded and had no prior criminal record. The trial court stated that the defendant needed to be imprisoned to protect society and not for rehabilitation. The defendant was sentenced to 50 years at hard labor without benefits.

Our review of the record reveals that the trial court adequately complied with La. C. Cr. P. art. 894.1. The defendant went to the victim’s workplace and shot her in the back of the head when she refused to resume their prior relationship. The sentence is not grossly disproportionate to the severity of the offense of conviction nor does it shock the sense of justice. The defendant was greatly benefited by the plea agreement and the reduction of the original charge.

This assignment of error is without merit.

ERROR PATENT

The defendant requested that the record be reviewed for errors patent. This request is unnecessary since such a review is made automatically in all criminal cases. State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556. Our review reveals none.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).