author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Erica M. BOWERS, Appellant.
    No. 42,390-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Louisiana Appellate Project by Annette Roach, Lake Charles, for Appellant.
    Paul J. Carmouche, District Attorney, William Jacob Edwards, Dhu Thompson, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY; JJ.
   MOORE, J.

|T Erica M. Bowers was charged by bill of information with manslaughter, La. R.S. 14:31 A(2)(a), and hit-and-run driving, La. R.S. 14:100, arising from an incident at a Kroger grocery store. She elected a bench trial and was found guilty as charged on both counts. The state then charged her as a fourth felony habitual offender; the court adjudicated her as charged and denied her motion for acquittal.' The court sentenced her, as a fourth felony offender, to 47 years at hard labor on the manslaughter charge, and to a concurrent five years at hard labor on the hit- and-run. Bowers now appeals her convictions and sentences; we affirm.

Factual Background

On the afternoon of April 23, 2004, Ms. Bowers and an accomplice, Rhonda Mosely, drove to the Kroger on Mansfield Road in Shreveport. , Ms. Bowers was carrying a checkbook belonging to a Mr. Monsour, who had reported it as stolen. The car they were driving, a 1982 Chrysler Fifth Avenue, had license plates stolen from another vehicle. Ms. Bowers went into the store while Ms. Mosely waited ih the car, which was parked in the middle of the fire lane in front of the main entrance.

Ms. Bowers rolled a shopping cart around the store, loading it up chiefly with baby items — four cases of Similac Advance, two packages of Huggies — as well as some T-shirts and a purse, and proceeded to the checkout area. However, the friendly cashier to whom she intended to pass a stolen check was not present, so Ms. Bowers pushed the cart to the pharmacy area and then sauntered out the door.

| ^Seeing this, store manager Rita Small and two other Kroger employees hurried down from the upstairs office and pursued Ms. Bowers as she walked out the door without paying for nearly $270 of merchandise. (The indoor portion of the incident was recorded on the store’s video camera.) Ms. Small told Ms. Bowers that she would have to pay for the items she was taking; Ms. Bowers cursed at her and continued down the shallow ramp to the waiting Chrysler; Ms. Small was close behind. Ms. Bowers then told her she was not paying for the things, and pushed the cart back to Ms. Small; it still contained all the items she had taken from the store, as well as Mr. Monsour’s checks and a Louisiana ID card belonging to yet another person, but crudely altered to look like Monsour’s. Ms. Bowers then opened the driver’s door of the Chrysler and started to get in as the car drove forward.

The victim, Daniel “Danny” Maguire, was a 74-year-old Kroger courtesy clerk. He was gathering shopping carts from the lot to return to the store, not involved in the confrontation with Ms. Bowers but unfortunately standing in the path of the Chrysler. The car ran over him, breaking both his legs.

Not surprisingly, many people were nearby and witnessed the incident. Then-accounts varied in minor particulars, but all essentially agreed that when Ms. Bowers opened the ear door, the other woman, Ms. Mosely, was either sitting behind the wheel or close to it, and Ms. Bowers had to shove her over to get into the driver’s seat. Several witnesses saw a “struggle” or “confrontation” for the wheel, and the car started moving ^before Ms. Bowers had shut the door behind her. Maguire did not see the car coming until it was too late; he was hit almost immediately. Ms. Small and her customer service manager, Brenda Burcham, both testified that the Chrysler first knocked him down, paused, and then ran over him fast with all four wheels. Several witnesses were unsure which woman was driving when all this happened; however, an assistant store manager, Scott Miles, and a customer in the parking lot, Jennifer Scott, told police that it was the woman who had just left the store.

After running over Maguire, Ms. Bowers and Ms. Mosely zigzagged out the parking lot and sped away, but vigilant store patrons Byron and Tami Hazelwood followed them long enough to get the Chrysler’s tag number. Police discovered that the license plate had been stolen from another vehicle, a Ford Tempo, but through that car’s owner they developed Ms. Bowers as a suspect. Several witnesses identified Ms. Bowers from a photo lineup that was also used to investigate the forgery of Mr. Monsour’s at a local Rite Aid drugstore.

Detective Shawn Parker of the Shreveport Police Department located Ms. Bowers in the Harrison County, Texas jail; he and Det. Tim Hunt interviewed her there on April 30. She waived her Miranda rights and gave a recorded statement which was played at trial. She admitted that she had Mr. Monsour’s checks without his permission and planned to pass one of them at Kroger; however, the person she expected to be working one of the cashier lanes was not there, so she took the loaded cart out of the store. She insisted that Ms. Mosely was driving the car when it struck Maguire.

| ¿After the incident, an ambulance carried Maguire to LSU Medical Center in Shreveport. He had a badly broken left leg that required surgical repair as well as other contusions and abrasions. He died 42 hours after being admitted. The Caddo Parish Coroner, Dr. George McCormick, wrote an autopsy report listing the cause of death as acute myocardial ischemia; Maguire had “eardiomegaly which was consistent with hypertension, resulting in coronary arteriosclerosis.” However, Dr. McCormick noted that Maguire’s injuries, though not life-threatening, combined with his heart disease to result in acute myocardial ischemia and cardiorespiratory failure; in the death certificate, he listed the manner of death as homicide.

Procedural History and Trial

As noted, the state charged Ms. Bowers with manslaughter, La. R.S. 14:31 A(2)(a), in that she killed Maguire while she was engaged in the perpetration of middle-grade theft of goods, R.S. 14:67.10 B(2), and in the perpetration of forgery, R.S. 14:72, and with hit-and-run driving, La. R.S. 14:100. The bill of information was filed August 5, 2004; just prior to a free and voluntary hearing on September 26, 2005, Ms. Bowers waived her right to a jury trial. Trial began on September 30, 2005, and was continued on six separate days, ending on February 28, 2006.

At trial, Michelle Williams, a deputy coroner, testified that Dr. McCormick, who performed the autopsy on Maguire, died in September 2005, and that she did not personally participate in the autopsy. However, she was the custodian of coroner’s records, and the autopsy was a record of the Irregular business conducted in the office. Over defense objection, the court admitted the autopsy report. A forensic pathologist, Dr. James G. Traylor Jr., testified on the basis of the autopsy and the hospital records that Maguire had a severe degree of natural disease, but the accident and surgery were stressors that exacerbated his underlying condition. He estimated that had Maguire not been run over by Ms. Bowers, there would be “at least an 80- to 90-percent chance that he would still be alive.”

The district court found Ms. Bowers guilty as charged of manslaughter and hit- and-run driving, and denied her timely motion for acquittal. The state then charged her as a fourth felony habitual offender, citing her (1) July 1991 guilty plea to middle grade felony theft in Caddo Parish, (2) January 1996 guilty plea to middle grade felony theft in Bossier Parish, and (3) April 1998 guilty plea to forgery in Dallas County, Texas. Ms. Bowers objected to the habitual offender bill, urging that in the first predicate offense, the court failed to inquire into her educational background and determine that she could read, write and understand English; and in the third, the records did not show she received her Boykin rights or was represented by counsel when she pled guilty. At a hearing in August 2006, the state introduced certified records of all three guilty pleas without defense objection. Ms. Bowers argued that the Texas minutes were not a contemporaneous transcript and thus did not satisfy State v. Shelton, 621 So.2d 769 (La.1993). The court commented that at one time, a guilty plea from another state could not serve as a predicate offense without a transcript of the Boykin colloquy but she was bound to follow recent ] (jurisprudence under Shelton. The court found Ms. Bowers a fourth felony offender and sentenced her to 47 years at hard labor, without benefits, to run concurrently with any other sentence. On the hit-and-run conviction, the court sentenced her to five years at hard labor. Ms. Bowers has appealed her convictions and sentences, raising six assignments of error.

Discussion

(1) Sufficiency of the Evidence as to Manslaughter

By her first assignment of error, Ms. Bowers urges the evidence was insufficient to sustain the conviction of manslaughter. The felony murder statute under which she was charged, La. R.S. 14:31 A(2)(a), requires proof that the offender performed the act of killing “while simultaneously engaged in the perpetration of an unenu-merated felony.” State v. Myers, 99-1849 (La.4/11/00), 760 So.2d 310. Specifically, she performed none of the acts listed in R.S. 14:67.10 from which an intent to permanently deprive may be inferred: she did not conceal the goods, transfer, alter or remove any price tags, place any item inside another container (except for two $9.99 T-shirts), or damage any goods. Further, because she returned the loaded shopping cart when confronted by the store manager, there was no actual theft, but at most an attempted theft, which is not a felony. State v. Behre, 03-896 (La.App. 5 Cir. 12/9/03), 864 So.2d 668; State v. Bridgewater, 01-507 (La.App. 5 Cir. 10/17/01), 800 So.2d 964; State v. Effit, 467 So.2d 856 (La.App. 2 Cir.1985). Finally, even if the state proved an underlying felony, it failed to prove a “causal relation between the defendant’s conduct and the harm for which the prosecutor seeks to impose criminal sanctions.” State v. 7Kalathakis, 563 So.2d 228 (La.1990). She submits that forgery and theft of goods are nonviolent crimes, relatively minor felonies not normally associated with homicide; the injuries to Maguire were remote and indirect consequences of a shoplifting which no reasonable person could have foreseen.

The state responds that based on the fact that Ms. Bowers placed merchandise in a grocery cart and exited the store with the cart, a rational fact finder could infer that she intended to deprive Kroger of the goods permanently, thus proving this element of theft of goods. State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830; State v. Weidenbacker, 00-931 (La.App. 5 Cir. 1/23/01), 782 So.2d 1040. Moreover, legal cause in a criminal case requires proof only that the defendant’s act was a “substantial factor in bringing about the forbidden result.” State v. Kalathakis, supra. The state submits that running over Maguire was a substantial factor in causing his death. State v. Gourdine, 41,469 (La.App. 2 Cir. 12/13/06), 946 So.2d 277.

The constitutional standard of appellate review for sufficiency of the evidence 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 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. This standard, now legislatively embodied in La. |SC. 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. It is not the function of a reviewing court to assess credibility or reweigh evidence. State v. Marcantel, 2000-1629 (La.4/3/02), 815 So.2d 50.

As it pertains to this case, manslaughter is defined as a homicide committed without any intent to cause death or great bodily harm, when the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in La. R.S. 14:30 or 14:30.1, or of any intentional misdemeanor directly affecting the person. La. R.S. 14:31 A(2)(a). The state relied on middle grade theft of goods as the unenumerated felony. At the time of the offense, theft of goods was defined as follows:

A. Theft of goods is the misappropriation or taking of anything of value which is held for sale by a merchant, either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking is essential and may be inferred when a person:
(1) Intentionally conceals, on his person or otherwise, goods held for sale.
(2) Alters or transfers any price marking reflecting the actual retail price of the goods.
(3) Transfers goods from one container or package to another or places goods in any container, package, or wrapping in a manner to avoid detection.
(4) Willfully causes the cash register or other sales recording device to reflect less than the actual retail price of the goods.
(5) Removes any price marking with the intent to deceive the merchant as to the actual retail price of the goods.
19(6) Damages or consumes goods or property so as to render it unmerchantable.
B. * * * (2) When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years or may be fined not more than two thousand dollars, or both.

Contrary to Ms. Bowers’s claim, the evidence is sufficient to prove an intent to permanently deprive Kroger of the merchandise. In State v. Victor, 368 So.2d 711 (La.1979), the court held, “A theft occurs when the thing is taken, although it may remain in the possession of the thief for only seconds.” Quoting from preliminary drafts of the Louisiana Criminal Code, the court elaborated:

The concept of appropriation serves to differentiate completed property offenses from attempts. This is a difficult problem because all theft partakes of the character of attempt. The thief proposes to make the property his own more or less permanently; but he is nonetheless a thief if, shortly after he exerts his dominion over the property of another, he is prevented from making off with it.
368 So.2d at 714 (emphasis added).

In State v. Ellis, 24,827 (La.App. 2 Cir. 5/5/93), 618 So.2d 616, the defendant contended she was guilty of only attempted felony theft because after she left the store and walked 10 feet into the mall with stolen clothing concealed in her purse, she reentered the store and threw the clothing beneath a rack where other clothing was displayed. We disagreed:

One who takes the property of another, intending at the time of the taking to permanently deprive the owner of that property, is nonetheless guilty of the crime of theft though she (1 plater, becoming frightened or having a change of heart, decides to return it and does so. 618 So.2d at 617-618 (emphasis in original).

As in Ellis, the only reason Ms. Bowers returned the merchandise was that her theft had been detected and she was being pursued by several Kroger employees. The court was entitled to find the completed offense of theft of goods. -The state correctly notes that in State v. Behre and State v. Bridgewater, supra, the perpetrators had not left the stores when they were apprehended. In State v. Effit, supra, we deferred to the trial court’s verdict of attempted theft despite our own finding that the defendant intended to permanently deprive. On the instant facts, we will again defer to the district court’s finding of a completed offense.

We are equally unpersuaded by Ms. Bowers’s contention that the state failed to prove causation. In State v. Matthews, 450 So.2d 644 (La.1984), the supreme court held that it is not essential for the state to prove that the defendant’s action was the sole cause of death; it is sufficient if her conduct hastened the termination of life, or contributed, mediately or immediately, to the death, in a degree sufficient to be clearly a contributing cause. Subsequent cases have confirmed the “substantial factor” standard. State v. Kalathakis, supra; State v. Myers, supra; State v. Gourdine, supra. Dr. Traylor, the forensic pathologist, confirmed that Ma-guire had advanced cardiovascular disease, but that without the trauma of being run over by a car, with the resultant injury, pain and major surgery to his femur, he had an 80-90% chance of surviving until the date of trial. There was no evidence to contradict Dr. Traylor’s assessment. On this record, the district court was Identified to find Ms. Bowers’s conduct á substantial factor in causing Maguire’s death. This assignment of error lacks merit.

(2) Sufficiency of the Evidence as to Hit-and-Run Driving

By her second assignment of error, Ms. Bowers urges the evidence was insufficient to sustain the conviction of hit-and-run driving. The statute, R.S. 14:100, clearly requires that the defendant be driving the vehicle at the time it is involved in the accident, but most of the witnesses could not say to a certainty that she was the driver. Citing State v. Nelson, 612 So.2d 837 (La.App. 1 Cir.1992), writ denied, 616 So.2d 700 (1993), she concludes that the state’s evidence did not exclude the reasonable hypothesis of innocence that Ms. Mosely was driving the car.

The state responds that viewed in the light most favorable to the prosecution, the evidence supports the finding that Ms. Bowers had control of the car when it struck Maguire. It adds that in order to have control of a car, the defendant need only exercise some' control or manipulation over it. State v. Rossi, 98-1253 (La.App. 5 Cir. 4/14/99), 734 So.2d 102, writ denied, 99-0605 (La.4/23/99), 742 So.2d 886.

The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94. The trier of fact may therefore accept or reject, in whole or in part, the testimony of any witness. State v. Updite, 38,423 (La.App. 2 Cir. 6/23/04), 877 So.2d 216, writ 12denied, 2004-1866 (La.11/24/04), 888 So.2d 229.

Ms. Bowers correctly shows that according to most witnesses, she was not- entirely inside the car when it started moving, and several could not positively state that Ms. Bowers, not Ms. Mosely, was holding the steering wheel when Maguire was struck. However, all witnesses agreed that Ms. Bowers was struggling to take the wheel; other than Ms. Bowers’s own statement to detectives, nobody testified that she was uninvolved in the events that led to the accident. Even if she did not. take full control of the steering wheel and accelerator, a rational fact finder could conclude that her conduct was a significant factor in causing the car to run over Maguire.

We note parenthetically that State v. Nelson, cited in brief, was a DWI case which “rested purely on circumstantial evidence.” The court invoked La. R.S. 15:438, the circumstantial evidence rule, under which such evidence “must exclude every reasonable hypothesis of innocence.” The instant case, by diametrical contrast, involved direct evidence: the testimony of at least eight eyewitnesses that Ms. Bowers struggled to take control of the car to elude Kroger employees. There is no application of R.S. 15:438 here. This assignment of error lacks merit.

(3) Admission of Autopsy Report and Expert Testimony

By her third assignment of error, Ms. Bowers urges the district court erred in admitting into evidence the autopsy report allegedly written by Dr. McCormick. She concedes that a coroner’s report is competent evidence of death and the cause of death, La. C. Cr. P. art. 105, and that Dr. McCormick died on September 20, 2005, a few days before trial began, thus making it | isadmissible hearsay. This, however, compromised her right of confrontation by prohibiting cross-examination of the author of the report. State v. Berry, 324 So.2d 822 (La.1975), cert. denied, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976); State v. Leonard, 2004-1609 (La.App. 1 Cir. 4/27/05), 915 So.2d 829, rev’d on other grounds, 2005-1382 (La.6/16/06), 932 So.2d 660. She was entitled to disprove that the coroner “had no strong motive to misrepresent, and in all probability the report of the results of the examination was trustworthy.” State v. Prestridge, 399 So.2d 564 (La.1981). Factually, shortly after Dr. McCormick’s death, the Caddo Parish District Attorney began an investigation into his public and private offices, uncovering allegations of irregularities (e.g., that lab assistants performed the bulk of the examinations without Dr. McCormick even being present, a secretary wrote autopsy reports from card notes, and an assistant routinely forged his name and drafted “dummy” death certificates to meet deadlines) that were disclosed in discovery responses in the instant case. Against this backdrop, Ms. Bowers questions whether the autopsy report is trustworthy. Further, she argues that because it was based on the tainted autopsy report, Dr. Tray-lor’s testimony was not reliable and should have been excluded. In the alternative, if trial counsel failed to object to any of this evidence, she is - entitled to a finding of ineffective assistance of counsel.

The state responds that the autopsy report was a permanent record of the coroner’s office prepared in connection with ordinary duties of the coroner; this coroner’s report is expressly admissible under the comments to 114 La. C. Cr. P. art. 105. The coroner’s report was essentially non-testimonial hearsay as it only provided descriptions of findings, and thus admissible. State v. Anderson, 41,489 (La.App. 2 Cir. 11/1/06), 942 So.2d 625, and citations therein. Ms. Bowers did not introduce into evidence any of the discovery matters concerning alleged irregularities in Dr. McCormick’s offices, and thus these factual contentions are not properly before the court. Finally,' claims of ineffective assistance of counsel are normally relegated to post conviction relief, not direct appeal. State v. Seiss, 428 So.2d 444 (1983); State v. Green, 27,652 (La.App. 2 Cir. 1/24/96), 666 So.2d 1302, writ denied, 97-0504 (La.10/31/97), 703 So.2d 14.

A coroner’s report is competent evidence of death and the cause of death. La. C. Cr. P. art. 105. It is excepted from the hearsay rule and is admitted in evidence as proof of death and the cause thereof. State v. Kelly, 375 So.2d 1344 (La.1979); State v. Garner, 39,731 (La.App. 2 Cir. 9/8/05), 913 So.2d 874, writ denied, 2005-2567 (La.5/26/06), 930 So.2d 19. This court discussed a Sixth Amendment argument very similar to Ms. Bowers’s in the recent case of State v. Anderson, supra:

The defendant also contends that he was deprived of his confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The threshold question under Crawford is whether the autopsy report was testimonial or nontestimonial in nature. In State v. Leonard [supra ], that court found that the narrowly drawn La. C. Cr. P. art. 105 rendered the coroner’s report as nontestimonial hearsay and thus admissible under Crawford because it was admissible only for the purpose of proving death and cause of death. Courts in other -states have found that autopsy reports are |1sgenerally nontes-timonial under Crawford. * * *
According to the autopsy report, the victim’s cause of death was “multiple gunshot wounds.” The “narrative of findings” recounted that his death was due to “multiple penetrating and perforating, indeterminate range gunshot wounds, resulting in laceration of vital organs and blood loss.” The report then detailed 12 gunshot wounds, two of which were to the head, three to the chest, six to the abdomen, and one to the arm. The autopsy report describes the location of the wounds, the injuries inflicted by each wound, the path of the bullet, and whether a projectile was recovered. The information in the autopsy report was routine, descriptive, and nonanalytical; i.e., it was nontestimonial in nature and thus did not trigger the Crawford mandate for cross-examination pursuant to the Confrontation Clause.

State v. Anderson, supra at pp. 5-6, 942 So.2d at 628-629 (citations omitted).

On close review, we find the instant coroner’s report to be similar in nature. It primarily describes Maguire’s injuries and the condition of his cardiovascular system. It identified the cause of death, acute myocardial ischemia, completely in accord with Art. 105. As in Anderson, we find this nontestimonial. There was no denial of confrontation.

Admittedly, the “narrative of findings” is not completely descriptive: it erroneously states that Maguire was killed “while chasing a shoplifter.” However, any error in admitting this testimonial statement was harmless beyond a reasonable doubt given the numerous witnesses to the event, all of whom portrayed Ma-guire as an uninvolved bystander. Moreover, defense counsel thoroughly cross-examined Dr. Traylor, emphasizing the fairly advanced state of Maguire’s preexisting illness and the probability that the auto accident contributed to his death. On this record we perceive no denial of confrontation rights. This argument lacks merit,

|1fiMs. Bowers’s alternative claim of ineffective assistance is better raised by application for post conviction relief, where under La. C. Cr. P. art. 930 a full evidentiary hearing may be held. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App. 2 Cir. 6/21/00), 764 So.2d 1164. The instant record is not sufficient to support or refute the claim. Trial counsel objected to the coroner’s report on grounds of hearsay and denial of confrontation, and he extensively cross-examined Dr. Traylor; however, when questioning the deputy coroner, Ms. Williams, he did not explore the allegations of misconduct so graphically depicted by appellate counsel in brief. On this record, we will defer the claim of ineffective assistance to post conviction relief.

(4) Denial of Fair and Speedy Trial

By her fourth assignment, Ms. Bowers urges her constitutional rights were violated “by the manner in which her trial was conducted, including the fact this bench trial was conducted over a five-month period while the same judge simultaneously tried a codefendant charged in a separate bill of information with manslaughter from the same incident.” She contends she was prejudiced by the long delays between trial dates: the presentation of the evidence was .disjointed, certain exhibits were given duplicate numbers, and the state was allowed to rest with the option to reopen its case for “housecleaning.” In the alternative, trial counsel was ineffective for failing to object to these procedures.

The state responds that the grant or denial of a recess is largely within the discretion of the trial court. State v. Sharp, 321 So.2d 331 (La.1976).

| 17Further, none of Bowers’s complaints prejudiced her case.

Where the law is silent, the court has the inherent authority to fashion a remedy which will promote the orderly administration of justice. La. C. Cr. P. art. 17; State v. Mims, 329 So.2d 686 (La.1976). The judge hearing the instant trial was simultaneously hearing the trial of the codefendant, Ms. Mosely. Ms. Bowers’s trial began on September 30, 2005, and was continued on November 14 and December 19, 2005, and January 30, and February 6, 24 and 28, 2006. The main explanation in the record for the widely spaced trial dates was that the judge was unavailable for other dates. While this procedure seems unusual, it does not strike us as an abuse of discretion. Notably, this was a bench trial, so inconvenience to the jury was not an issue, and any disruption in the flow of the evidence would seem more likely to prejudice the state than the defense. Also, trial counsel did not object to the progress of trial. On this record, we find no' prejudice, and this assignment of error lacks merit.

The claim of ineffective assistance of counsel is deferred.to post conviction relief for the reasons already discussed.

(5) Habitual Offender Adjudication

By her fifth assignment, Ms. Bowers urges that two of the predicate offenses used to prove her fourth felony status were deficient. First, the minutes of the July 1991 guilty plea in Caddo Parish merely recite that she was advised of her Boykin rights but do not show that the court explained these to her or ascertained her level of comprehension. Next, the minutes of the April 1998 guilty plea in Dallas County are “generic” in nature, do not |1sspecifically refer to her by name, docket number or charge, and do not show that she was represented by counsel. She contends she affirmatively showed “an infringement of [her] rights or a procedural irregularity” under State v. Shelton, supra, thus shifting the burden to. the state to prove the validity of the predicate conviction by producing a “perfect” transcript. She concludes that the state failed to meet its burden of proving, beyond a reasonable doubt, the constitutionality of these two predicates. State v. Longo, 560 So.2d 530 (La.App. 1 Cir.1990).

The state responds that although Ms. Bowers filed a pretrial objection to the multiple bill, at the hearing she did not object to the introduction of these exhibits. Further, both filings show that Ms. Bowers was represented by counsel and received advice of her Boykin rights, thus proving the predicate offenses.

If the defendant denies the allegations of the bill of information charging her as a multiple offender, La. R.S. 15:529.1, the burden is on the state to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. State v. Shelton, supra. Once the state carries this initial burden, the burden of production shifts to the defendant “to produce some affirmative evidence showing an infringement of [her] rights or a procedural irregularity in the taking of the plea.” Id.; State v. Madison, 2000-0074 (La.8/31/00), 768 So.2d 593. If she does so, the burden returns to the state to prove the validity of the predicate; this may be done with a “perfect” transcript, but a “perfect” transcript is not required. State v. Shelton, supra; State v. Townsend, 2004j0005ig (La.4/23/04), 874 So.2d 152. The court must weigh the evidence to determine whether the state has met its burden of proving the prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. Id.; State v. Zachary, 2001-3191 (La.10/25/02), 829 So.2d 405.

Based on our examination of the record, we need not address the state’s contention that Ms. Bowers failed to object to the evidence of her prior felony convictions. The state introduced a “perfect” transcript of the January 1994 guilty plea in Caddo. Parish. This showed that Ms. Bowers was represented by counsel, the court advised her of her Boykin rights, and counsel explained the plea to her. We perceive no infringement of rights or other irregularity that would warrant quashing this predicate offense.

The state introduced court minutes of the April 1998 guilty plea in Dallas County; these contain the standard recitation of rights, and approach the computer-generated “fill-in-the-blank” form disallowed in State v. Longo, supra. However, the state also offered documents entitled “Pled Bargain Agreement,” setting out the agreed sentence in detail and signed by Ms. Bowers, her counsel and the prosecutor, and “Waiver of Jury, Felony Plea of Guilty,” setting out the Boykin rights in extenso and signed by Ms. Bowers three times, as well as by her counsel, the prosecutor and the judge. These signed forms cure any weakness in the court minutes. We perceive no infringement of rights or any irregularity that would warrant quashing this predicate offense. This assignment of-error lacks merit.

19a(0) Excessive Sentence

By her final assignment of error, Ms. Bowers urges her 47-year sentence is unduly harsh and serves no legitimate purpose. She suggests that Maguire’s death resulted from the “hasty, clumsy escape and the confusion brought about” when she tried to get into the car, and there was no premeditation. She concedes several prior felonies,' but most of these were nonviolent theft or forgery charges. Without elaboration, she argues that a deviation below the statutory minimum would be warranted.

The state responds that Ms. Bowers had an extensive criminal history and was on bond for a charge of armed robbery when the instant offense occurred; at sentencing, the trial judge commented that Ms. Bowers ultimately received 30 years on the armed robbery charge. The state also argues that a lesser sentence would deprecate Maguire’s death.

Appellate review of sentences for exces-siveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. Ms. Bowers does not allege any specific errors in the court’s recitation of the factors; although compliance was minimal, it established an adequate factual basis for sentence. State v. Smith, 433 So.2d 688 (La.1983); 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.

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 needless and purposeless infliction of pain and suffering. State v. Dorthey, 92-3120 (La.9/10/93), 623 So.2d 1276. 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, 99-1753 (La.5/16/00), 769 So.2d 1158.

As a fourth felony offender, Ms. Bowers faced a sentence of 40 years to life at hard labor and without benefits. La. R.S. 15:529.1 A(l)(c)(i). Her criminal record is genuinely remarkable, in the most pejorative sense; starting in 1991, she has logged 22 charges for various grades of theft, leading to 13 different pleas and adjudications. She has been on probation of some sort almost continuously since 1991. Her record is not free of violence: she has arrests for resisting an officer and battery of an officer, and at the time of sentencing had a pending charge of illegal use of a weapon. She was arrested in Bossier Parish in March 2003 for armed robbery, and was out on bond for that charge when the instant offense occurred. In 2004, she was convicted on the armed robbery charge and sentenced to 30 years at hard labor without benefits. Her record is of a life suffused with theft and dishonesty, recently spiraling toward violence, culminating in the senseless death of an innocent man. The sentence neither shocks our sense of justice nor frustrates acceptable penal goals. This assignment of error lacks merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. For the reasons expressed, we affirm Erica M. Bowers’s 1 ^convictions, multiple offender adjudication and sentences.

AFFIRMED.

      . In its opening statement, the state conceded that Ms. Bowers abandoned her intended forgery when she could not find a particular cashier.

      . She also contends that the court erred in finding that she, and not her accomplice Ms. Mosely, was driving the car when it struck Maguire, but we will address this argument in the second assignment of error.

      . Pursuant to a 2006 amendment, the range for middle grade theft of goods is now a value of $300 or more, but less than a value of $500. La. Acts 2006, No. 143, § 1.

      . "Since the word coroner’ is defined in Art. 8 to include deputies and assistants, it is unnecessary for this article to state expressly that the reports and findings of the coroner's assistants are admissible in evidence.” La. C. Cr. P. art. 105, Official Revision Comment (e).


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Quierza LEWIS, Appellant.
    No. 42,365-KA.
    Court of Appeal of Louisiana,' Second Circuit.
    Sept. 19, 2007.

      Kenota P. Johnson, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

_[jThis criminal appeal arises from the 26th Judicial District Court, Parish of Webster, State of Louisiana, • where the-defendant, Quierza Lewis, was convicted of possession of a Schedule II controlled dangerous substance, namely cocaine, in an amount in excess of 28 grams but less than 200 grams, a violation of La. R.S. 40:967(F)(1)(a). Ultimately, Lewis was adjudicated as a habitual offender and was sentenced to life imprisonment. Lewis now appeals. For the following reasons, Lewis’s conviction and sentence are affirmed.

FACTS

On February 13, 2005, Sergeant Willie Evans of the Webster Parish Sheriffs Office and Lieutenant Marvin Garrett of the Minden Police Department set up surveillance at 212 Chrysler Street, Minden, Louisiana, following a report from a confidential informant regarding illegal drug activity involving the defendant, Quierza Lewis, and Kelly Combs, Lewis’s cousin. When law enforcement arrived, they observed Combs and Lewis leaving the residence. Combs got into his vehicle and Lewis sat in the passenger seat of a black Grand Am, where his girlfriend, Bridget Sumlin, was waiting in the driver’s seat. A few minutes later, Lewis got out of the Grand Am and into the driver’s seat of Combs’s vehicle. The two vehicles then drove a couple' of blocks to Lewis’s mother’s home located at 217 Main Street. Officers, in a marked patrol car, pulled directly behind Combs’s vehicle. Lewis and Combs exited the vehicle and went inside the residence, while Sumlin remained in the Grand Am outside. After police officers pursued the two into the residence and detained them, the officers Lmade contact with Sumlin who turned over a black skull cap containing a silver pair of digital scales commonly used to weigh narcotics, razor blades, and a box of “baggies” inside. While waiting on a search warrant for Sumlin’s car, police officers returned to Marshall’s house where the officers discovered several items consistent in the manufacturing of crack cocaine, including a Pyrex dish, a used box of baking soda, a whisk, a plastic bag containing cocaine, and a notebook containing calculations. After the search warrant for Sumlin’s vehicle was obtained, officers seized a plastic bag containing cocaine inside Sumlin’s purse. The crime lab confirmed that the substance was cocaine and determined the weight to be 349.8 grams.

Combs, Sumlin, and Lewis were all placed under arrest and charged with possession of cocaine in excess of 200 grams but less than 400 grams, a violation of La. R.S. 40:967. After a jury trial, Lewis was convicted of possession of a Schedule II CDS, in an amount more than 28 grams but less than 200 grams. Hp was originally sentenced to 20 years at hard labor and fined $50,000.00. Later, the state filed a multiple offender bill under a new docket number. After the habitual offender hearing, Lewis was adjudicated a third felony offender, the original sentence was vacated and Lewis was given a life sentence. This appeal ensued.

LAW AND DISCUSSION

Lewis argues that the evidence presented by the state failed to prove beyond a reasonable doubt that he possessed crack cocaine, nor did the evidence prove that he had the specific intent to distribute crack cocaine. We disagree.

|,.¡The standard for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). This standard was legislatively adopted in La. C. Cr. P. art 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983). 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.09/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.02/05/99), 737 So.2d 747. It is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Lee, 32,272 (La.App.2d Cir.08/18/99) 742 So.2d 651, writ denied, 1999-2730 (La.03/17/00), 756 So.2d 326.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, §, 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury’s |4decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

In the instant case, the elements of the offense are that: (1) the defendant knowingly or intentionally possessed cocaine; and (2) the amount of cocaine possessed was between 28 and 200 grams. La. R.S. 40:967(F)(l)(a). One need not actually possess the controlled dangerous substance to violate the prohibition against possession. Constructive possession is sufficient. A person may be in constructive possession of a drug even though it is not in his physical custody if it is subject to his dominion and .control. State v. Sweeney, 443 So.2d 522 (La.1983). Also, a person can have constructive possession if he jointly possesses the drug with a companion, and he willfully and knowingly shares with a companion the right to control it. State v. Trahan, 425 So.2d 1222 (La.1983). The determination of whether there is possession sufficient to convict depends on facts peculiar to each case. Id.; State v. Spates, 588 So.2d 398 (La.App. 2d Cir.1991).

The state need not prove actual possession or actual dominion and control over a controlled dangerous substance when the state proves that a defendant is a principal in the crime under La. R.S. 14:24. State v. Green, 476 So.2d 859 (La.App. 2d Cir. 1985), writ denied, 481 So.2d 627 (La.1986). Under La. R.S. 14:24, all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act | ¡¡constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime, are principals.

In the case at hand, Sergeant Willie Evans testified that he and Lieutenant Marvin Garrett set up surveillance at the residence of Bruce Marshall after receiving information from a reliable and confidential informant involving illegal drug activity. He further testified that upon arriving at the residence, he observed a vehicle parked in the driveway and saw Lewis and Combs exit the residence 45 minutes later. Sergeant Evans testified that Combs walked over to his own vehicle and sat in the passenger seat, while Lewis walked over to a black Grand Am and climbed into the passenger seat. Lewis’s girlfriend, Bridget Sumlin was in the driver’s seat of the Grand Am.

Thereafter, Sgt. Evans observed Lewis get out of the Grand Am and get into the driver’s seat of Combs’s vehicle. Lewis proceeded to drive to his mother’s house while Sumlin followed behind in her vehicle. Sergeant Evans testified that Officer Heath Balkom, in a marked patrol car, pulled directly behind Combs’s vehicle in an apparent attempt to stop the car. Sergeant Evans stated that Lewis and Combs exited the vehicle in a hurried manner and went inside the residence. Sergeant Evans also testified that it appeared as though the subjects were trying to avoid contact with the police officers. He explained that the officers immediately went into the residence and detained Combs and Lewis for “further investigation.”

After Combs and Lewis were detained, Sgt. Evans then went back outside and questioned Sumlin. Sumlin indicated that Lewis had placed a 1 ¡¡black skull cap inside her vehicle. Sergeant Evans seized the skull cap and discovered a silver pair of digital scales, razor blades, and a box of “baggies” inside. Sergeant Evans stated that when he asked Sumlin if there was anything else in the vehicle, Sumlin asked if he had a search warrant. She was detained while the officers obtained a search warrant.

In the meantime, Sgt. Evans explained that he and Lt. Garrett drove to Marshall’s house and after being asked to search his residence, Marshall gave his consent. Sergeant Evans discovered several items consistent with the manufacturing of crack cocaine, including a Pyrex dish, a used box of baking soda, a whisk, a plastic bag containing cocaine, and a notebook containing calculations. Crack cocaine residue was also found on the refrigerator. The officers seized the evidence and proceeded to the sheriffs office to obtain a search warrant for Sumlin’s car. After obtaining a search warrant for Sumlin’s car, Sgt. Evans testified that he retrieved a plastic bag containing cocaine which the crime lab verified and determined the weight to be 349.8 grams.

Bruce Marshall corroborated the information obtained from the informant during his testimony at trial. He testified that Lewis called and asked if he and Combs could cook some cocaine at his house, and that Lewis offered to pay him money in exchange. He testified that he saw Lewis walk to Sumlin’s car after the cocaine had been cooked, but he could not recall seeing Lewis with anything.

Bridget Sumlin also testified at trial. She stated that on the previous day, she and her friend Shameka Moore followed Combs and Lewis to |7Texas. Lewis and Combs rode together in the same vehicle while Sumlin and Shameka followed behind in her car. Sumlin explained that Lewis did not tell her the reason for the trip to Texas, and she did not question him about it. Once they arrived in Dallas, Sumlin testified they met up with one of Lewis’s friends who led them to a house. Sumlin stated that she and Shameka remained at the house while Lewis and Combs left with their friend. When Lewis returned, Sumlin stated that he handed her a brown paper bag which she placed in the glove compartment.

Sumlin testified that once they were back in Minden, Lewis removed the bag from her vehicle. The following day, Lewis called her and asked for a ride to Marshall’s residence. According to Sumlin, Lewis called again later that day with instructions to retrieve the brown paper bag from his mother’s house and to bring it to Marshall’s residence where he was located. Sumlin testified that once she arrived at Marshall’s house, Lewis came outside and placed a zip-lock bag containing crack cocaine inside her car. He also placed a silver scale and a black skull cap inside her vehicle. Thereafter, Lewis told her to meet him at his mother’s house. Lewis and Combs followed behind her in another car. She testified that once they arrived at the residence, the police arrived.

After a thorough review of the record, we find that the evidence was sufficient to support Lewis’s conviction. In short, the facts establish that Quierza Lewis traveled to Dallas to obtain the cocaine, used Bridget Sumlin to transport the cocaine, cooked the cocaine at Bruce Marshall’s house, and was a principal in this case. Lewis aided and abetted in the commission of |sthe offense and directly counseled and procured another, Sumlin, to commit the crime. Sumlin, for the most part, acted as a courier on his behalf so that Lewis would never be caught with the narcotics in his possession. Further, Lewis gave instructions to Sumlin regarding the transportation of the drugs and closely monitored Sumlin’s movement when she had actual possession of the drugs. At all times, Lewis controlled how and when the drugs would be transported from one place to another.

Testimony was also presented that Lewis tried to distance himself from the narcotics when the police arrived at his mother’s residence. An attempt to avoid apprehension indicates consciousness of guilt, and therefore, is one of the circumstances from which a juror may infer guilt. State v. Davies, 350 So.2d 586 (La.1977). Although Lewis did not have actual possession of the drugs, the weight of the evidence establishes that Lewis did, however, have constructive possession. Viewed in the light most favorable to the prosecution, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Lewis was guilty of possession of cocaine.

Additionally on this appeal, Lewis assigned as error that the 20-year sentence he originally received was excessive. However, since this sentence has been vacated, any discussion of an excessive sentence based on the 20-year sentence is pretermitted as it is moot. At the time of this opinion, the life sentence Lewis received after being adjudicated a third felony offender had not been appealed and is therefore not before us on this instant appeal.

hCONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Quierza Lewis.

AFFIRMED.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Gerald GRANT, Appellant.
    No. 42,470-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Louisiana Appellate Project, by Edward K. Bauman, Lake Charles, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Joseph A. Gregorio, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

11 Defendant, Gerald Grant, pled guilty to the amended charge of attempted armed robbery and was sentenced to 25 years’ imprisonment at hard labor. Defendant now appeals the denial of his motion to reconsider his sentence and asserts that his sentence was unconstitutionally excessive. We affirm.

FACTS

On December 17, 2000, Defendant, Way-Ion Brown and Rodney White entered the Whataburger in Bossier Parish. They produced handguns and ordered the employees to open the cash registers. They then took all of the money. Defendant escorted the employees to the back cooler, locked them in, and the robbers attempted to leave the scene. An employee called 911 from a cell phone, and police arrived as the three robbers were walking to their car. The robbers were apprehended as they attempted to escape on foot. Police recovered the cash taken in the robbery, which totaled approximately $2,000. The robbery was recorded on surveillance video, which showed that all three robbers produced handguns during the robbery. Defendant admitted his participation to police. Defendant’s handgun was recovered from the top of the restaurant next to the Whataburger, exactly where he said he had thrown the weapon. Police later discovered that the robbery was an “inside job” — one of the Whataburger employees present during the crime was Rodney White’s cousin and had assisted Rodney in staging the robbery.

Defendant was charged by bill of information with armed robbery, which is punishable by imprisonment at hard labor without benefits for not | ¡.less than 10 and not more than 99 years. La. R.S. 14:64. On September 23, 2003, Defendant accepted a plea bargain agreement and entered a voluntary plea of guilty to the reduced charge of attempted armed robbery, which is punishable by up to 49 1/2 years’ imprisonment at hard labor without benefits. La. R.S. 14:64 and 14:27; State ex rel. Sullivan v. Maggio, 432 So.2d 854 (La.1983); State v. Everett, 05-214 (La.App. 3d Cir. 11/2/05), 916 So.2d 1210. A pre-sen-tence investigation report (PSI) was ordered. The State agreed that it would not file a habitual offender bill, and Defendant agreed to testify truthfully against one of his co-defendants if that co-defendant went to trial.

At the sentencing hearing held November 28, 2006, the trial court noted that it had reviewed the information contained in the PSI and set forth the information contained therein for the record. It observed that Defendant is a second-felony offender with an extensive criminal history. The trial court reiterated the facts of the crime, including Defendant’s use of a handgun and his placing of employees into the cooler. It also set forth the sentences received by the co-defendants and discussed the sentencing guidelines, including the inapplicability of La. C. Cr. P. art. 894.1(B)(22) through (33), as mitigating factors. As stated above, the trial court sentenced Defendant to 25 years imprisonment at hard labor. Defendant appeals his sentence as unconstitutionally excessive.

DISCUSSION

The defense cites applicable law. and argues that the trial court failed to give adequate consideration to the sentencing guidelines in |aparticularizing Defendant’s sentence. It notes that certain mitigating factors were not considered. The defense also argues that the case did not involve sufficient aggravating- circumstances to warrant the sentence imposed. It concludes that, under these facts, Defendant’s sentence is grossly out of proportion to the severity of the crime.

The law regarding excessive sentence claims is well settled. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-prongedl 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 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); 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.]404/22/04), 873 So.2d 747, writ denied, 04-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.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.

The record shows that the trial court took adequate cognizance of the criteria set forth in La. C. Cr. P. art. 894.1 in tailoring this sentence to Defendant. Furthermore, when Defendant’s active participation in this armed robbery and his punishment are viewed in light of the harm done to society by such serious offenses, Defendant’s sentence does not shock the sense of justice. This record does not support a finding that Defendant’s sentence is unconstitutionally excessive.

This court’s error patent review reveals that the trial court failed to impose the sentence for attempted armed robbery without benefit of probation, parole or suspension of sentence. See State ex rel. Sullivan v. 5Maggio, supra; State v. Everett, supra; State v. Moore, 96-1835 (La.App. 1st Cir.6/20/97), 696 So.2d 657. La. R.S. 15:301.1 is self-activating, however, and makes the denial of benefits self-operative. See, State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Neely, 35,993 (La.App.2d Cir.5/8/02), 818 So.2d 829.

CONCLUSION

For the reasons set forth above, the sentence of Defendant, Gerald Grant, is affirmed.

AFFIRMED.


author: LOLLEY, j.

text:
    Beverly Margaret LOWERY, Plaintiff-Appellant v. WAL-MART STORES, INC., Defendant-Appellee.
    No. 42,465-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Bobby L. Culpepper, Jonesboro, for Appellant.
    Blanchard, Walker, O’Quinn & Roberts, Paul M. Adkins, Scott R. Wolf, Shreveport, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   LOLLEY, j.

| Beverly Margaret Lowery appeals the grant of a motion for summary judgment by the Third Judicial District Court, Parish of Lincoln, State of.Louisiana, in favor of Wal-Mart Louisiana, L.L.C. and Wal-Mart Stores, Inc. (collectively, “Wal-Mart”). For the following reasons, we affirm.

Facts

On June 16, 2006, Lowery was a customer in a Wal-Mart store in Ruston, Louisiana. As she was leaving the ladies’ restroom, she was allegedly injured when the restroom door struck her. She claimed that the door was abruptly opened by three young boys, ranging in approximate ages of four to eight, as they were running into the ladies’ restroom mistaking it for the men’s .restroom. The boys were under the supervision of their grandmother, who apologized to Lowery for the mishap. The identities of the boys and their grandmother is unknown.

Subsequently, Lowery brought this action solely against Wal-Mart, claiming it was negligent for:

1) failing to provide a restroom door that would not slam in a person’s face;
2) failing to properly monitor the children;
3) allowing children to run in the store; and,
4) failing to post signs warning that children were allowed to run in the store.

In response (and after filing its answer), Wal-Mart filed its motion for summary judgment, maintaining that it was not responsible for the supervision and control of minor children who may accompany a parent or ^guardian into its store, and as a result, it was entitled to summary judgment as a matter of law.

After a hearing of the matter, the trial court ruled in favor of Wal-Mart, determining that there were no facts in dispute and that the case came down to a determination of whether a duty was owed. Finding that Wal-Mart owed Lowery no duty to protect her from someone else’s children, the trial court granted Wal-Mart’s motion for summary judgment and dismissed Lowery’s claims with prejudice. This appeal by Lowery ensued.

Discussion

On appeal, Lowery raises only one assignment of error, arguing that the trial court erred in granting Wal-Mart’s motion for summary judgment because contested material facts existed. Lowery only points to one “fact” she contends was contested, that being whether Wal-Mart fulfilled its duty to exercise reasonable care when it allowed children to run in the store after repeatedly asking them to stop running. Lowery argues that Wal-Mart had a duty to do something about the children, because, she alleges, they had been caught running in the store twice before. Additionally, Lowery argues that it was probable and foreseeable that the boys would continue to run in the store. Basically, Lowery argues that Wal-Mart could have done more to prevent the children from being unruly in the store, and that its failure to do so resulted in her injury. We disagree.

Appellate courts review summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Shelton v. Standard/700 Associates, 2001-0587 3(La.10/16/01), 798 So.2d 60; Mackey v. Jong’s Super Value No. 2, 41,440 (La.App.2d Cir.09/27/06), 940 So.2d 118. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The procedure is favored under Louisiana law and shall be construed to accomplish these ends. Id. Summary judgment shall be rendered “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).

The burden of proof on a motion for summary judgment remains with the mov-ant, in this case, Wal-Mart. La. C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial, its burden does not require it to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to his claim. Id. If the movant meets this initial burden of proof, the burden shifts to the adverse party to produce factual support sufficient to establish that he will be able to meet his evidentiary burden at trial. Id. Here, if Lowery fails to meet this burden, there is no genuine issue of material fact, and Wal-Mart is entitled to summary judgment. La. C.C.P. art. 966.

As provided in La. C.C.P. art. 967(B), Lowery may not rest on the mere allegations of her pleading in response to a properly made and supported motion for summary judgment; rather her response, by affidavits |4or otherwise, must set forth specific facts showing that there is a genuine issue for trial. If she does not so respond, summary judgment, if appropriate, shall be rendered against her. La. C.C.P. art. 967(B).

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of Louisiana Civil Code article 2315. For liabihty to attach under a duty-risk analysis, a' plaintiff must prove five separate elements: (1) the defendant had a duty to conform his.conduct to a specific standard of care; (2) the defendant failed to conform his conduct to the appropriate standard of care; (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.04/03/02), 816 So.2d 270. Duty is a question of law. Beck v. Schrum, 41,647 (La.App.2d Cir.11/01/06), 942 So.2d 669. The inquiry is whether a plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support his or her claim. Hardy v. Bowie, 1998-2821 (La.09/08/99), 744 So.2d 606.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. Posecai v. Wal-Mart Stores, Inc., 1999-1222 (La.11/30/99), 752 So.2d 762. Whether a legal duty is owed by one party to another depends on the facts and the circumstances of the case and the relationship of the parties. 1 Haskins v. State Farm Fire & Cas. Co., 612 So.2d 990 (La.App. 2d Cir.1993).

Louisiana law is clear that no duty to protect against or control the actions of a third party exists unless a special relationship exists to give rise to such a duty. Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App.2d Cir.01/25/06), 920 So.2d 355. In general, the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing them to unreasonable risks of harm or injury. Mundy v. Department of Health and Human Resources, 620 So.2d 811 (La.1993); Mosley, supra. However, while a business establishment is under a duty to take reasonable care for the safety of its patrons, it is not the insurer of their safety. Id.

Here, the facts are strikingly similar to those in Mosley, where the plaintiff was knocked down and injured by unidentified running boys at a church fair. The Mosley court. concluded that the church had no duty to protect against a “sudden and precipitous event that the church would have been hard pressed to prevent.” Such is the case here. Whereas Lowery argues that Wal-Mart had a duty to her to protect her from the allegedly unruly children, she offers no actual evidence to indicate that Wal-Mart indeed was on notice of the boys’ rowdy behavior. In fact, she only offers hearsay evidence that a Wal-Mart employee had prior knowledge of the boys running through the store. And, even if Wal-Mart employees were aware of the boys’ activities, there is additionally no proof that its employees knew that the boys’ actions were endangering the safety of its | (¡patrons. Notably, Lowery testified in her deposition that she had no knowledge of the boys’ actions prior to their attempting to enter the ladies’ restroom. Finally, we note that in a store as large as a Wal-Mart store, which caters to a clientele that very often includes families with young children, it would be virtually impossible for Wal-Mart to police the actions of every child in the store. To impose a duty on Wal-Mart to protect patrons from rambunctious children, as in this case when there was no evidence that Wal-Mart had any notice that the children were creating havoc and were potentially dangerous, would be unduly burdensome. Generally under facts such as these, such a duty must lie with the parents or guardians of the unruly children. So considering, we conclude that the trial court was not in error in granting Wal-Mart’s motion for summary judgment.

Conclusion

For the foregoing reasons, the judgment of the trial court granting the motion for summary judgment filed by Wal-Mart Louisiana, LLC and Wal-Mart Stores, Inc. and dismissing the claims by Beverly Lowery is affirmed. ' Costs of this appeal are assessed to Lowery.

AFFIRMED.


author: STEWART, J.

text:
    Roger Wayne PLAYER, Plaintiff-Appellant v. Robert BAKER dba RB’s Car Wash and Legion Indemnity Company, Defendants-Appellees.
    No. 42,451-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Davis Law Offices, by S.P. Davis, for Appellant.
    Rick Fayard, Bossier City, for Appel-lees.
    Before STEWART, GASKINS and PEATROSS, JJ.
   STEWART, J.

h Roger Wayne Player sued Robert Baker d/b/a RB’s Car Wash and Legion Indemnity Company for personal injury and property damages sustained when the rupture of a hose caused him to lose control of the spray wand while washing his truck. The trial court denied Player’s claim upon finding that the defendants exercised reasonable care in their maintenance of the car wash and could not have know of the ruin, vice, or defect in the hose. Player asserts that the trial court erred in ruling in favor of the defendants and in allowing testimony by two “surprise” witnesses for the defense. Finding no error, we affirm the trial court’s judgment.

FACTS

On February 4, 2000, Roger Player went to RB’s Car Wash in Plain Dealing, Louisiana, to wash his 1984 Chevy Silverado truck. RB’s Car Wash is a self-service facility with three bays for washing vehicles. Player held the spray wand in his left hand while he inserted the coins to start the wash. According to Player’s testimony, he heard the sound of the wash starting and then felt a blast of water hit his head. The spray wand was “snatched” out of his hand and began moving uncontrollably around the bay, hitting Player and his truck numerous times before he could turn the wash off. Player injured the left side of his head and the left wrist. His truck sustained damages to the hood, windshield, along the passenger side, and to the back fender area.

John D. Montgomery, a friend of Player’s, testified that he was at the car wash with Player, but in the next bay, when the incident happened. He heard unusual noises and went around the bay to investigate. Montgomery |gsaw Player “wrestling” with the hose and spray wand on the passenger side of his truck.

After the wash stopped, Montgomery went for help and procured the assistance of Officer Jeffery Allen Jones. Officer Jones had no recollection of the incident. According to the accident report Jones prepared, Player complained of damage to his vehicle. No personal injury was noted on the report.

Also after the incident, Player called a number posted at the car wash and spoke to Rosemary Baker about what happened. Mrs. Baker called her husband, who went to the car wash with his son-in-law, Chris Ayres. Mr. Baker testified that he observed a one-inch split in the hose about four feet up from the spray handle. He described the hose as a Goodyear rubber hose with three layers of stainless steel wire mesh and a one-eighth inch skin covering it to protect automobiles from damage. He described seeing a “limb scratch” from the front to the back of Player’s truck and a “peck” on the windshield underneath a wiper blade. Baker testified that he and his wife own five car washes. They check the car washes every morning by inserting coins into each machine and running the cycles. Mrs. Baker testified that she checked the Plain Dealing car wash the morning of February 4, 2000. No problems were found.

Player sought medical treatment for his injuries at North Caddo Medical Center. Medical records from that visit note him to have minor contusions to his left head and wrist, but no significant soft tissue swelling. |sOn February 6, 2000, he sought treatment at the emergency room of Willis-Knighton in Bossier City. He was diagnosed with acute closed head injury, but a CT scan was negative. He was also noted as having nonspecific left wrist tenderness, diagnosed with acute left wrist contusion, and given a splint to wear. He sought follow-up treatment for headaches from his primary care physician, Dr. Attlia Ba-lough, until mid-March 2000.

After suit was filed, trial was delayed for some time due to the parent company of the Bakers’ insurer being placed into rehabilitation. A bench trial was finally held on October 30, 2006. The trial court ruled in the defendants’ favor finding that the Bakers had exercised reasonable care in their maintenance of the car wash and that they could not have known of any ruin, vice, or defect in the hose prior to it bursting. Judgment was rendered in favor of defendants, and this appeal by Mr. Player followed.

DISCUSSION

The law applicable to the plaintiffs claim of negligence by the defendants is set forth in La. C.C. Art. 2317.1 as follows:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The addition of Article 2317.1 to the Civil Code in 1996 did away with the concept of strict liability for defective things by imposing on plaintiffs the added burden of proving the defendant either knew or, with the exercise of reasonable care, should have known of the ruin, vice, or | ¿defect. Johnson v. Entergy Corp., 36,323 (La.App.2d Cir.9/20/02), 827 So.2d 1234; Davis v. Diamond Shamrock Refining and Marketing Co., 34,309 (La.App.2d Cir.12/6/00), 774 So.2d 1076, In addition to proving this knowledge element, the plaintiff must also prove that the defendant had custody of the thing which caused injury, that the thing contained a defect (meaning a condition that created an unreasonable risk of harm), and that the defective condition caused the plaintiffs injury. Davis, supra.

The Bakers’ custody of the car wash and its equipment is not in question, nor is the fact that Player sustained some, injury from the accident. Player argues that the rupture of the hose was a defect that created an unreasonable risk of harm. Moreover, he argues that the defect should have been discovered by the Bakers if they conducted daily inspections as they stated in their testimony. Player notes that the Bakers did not produce any records to support their claim of daily inspections, and he suggests that they either failed to inspect the car wash that day or failed to inspect the hose on the day of the accident.

Assuming that the rupture of the hose, as described by the plaintiff, is a defect or condition that created an unreasonable risk of harm, the plaintiff must still prove that the defendants either knew or, with the exercise of reasonable care, should have known of the defect in the hose. This means that Player must prove the Bakers had actual or constructive knowledge of the defect. Johnson, supra. Under the concept of constructive knowledge, the defendant has the duty to act reasonably to discover apparent defects in things under his garde. Id.

|fiThe trial court rendered a judgment in favor of the defendants. As explained in its reasons for judgment, the trial court found that the Bakers exercised reasonable care in checking the car washes daily and found no apparent defect in the hose or indication of its potential to burst. The trial court concluded the Bakers could not have known of the ruin, vice or defect in the hose through the exercise of reasonable care. The trial court’s judgment denying the plaintiffs claim is subject to the manifest error standard of review. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). The issue to be resolved is not whether the trial court was right or wrong, but whether its conclusion was a reasonable one in light of the record reviewed in its entirety. Id.

The only evidence pertaining to the knowledge element came from the Bakers. Mr. Baker testified that he and his wife, Rosemary, shared the job of checking the five car washes they own. He explained that the car washes are open twenty-four hours a day and are checked once a day, typically some time in the morning, by operating each wash through the various cycles. However, they keep no written policies, procedures, or records of their daily maintenance. On the day of the accident, his wife had checked the car wash in Plain Dealing where the accident occurred. When Mr. Baker inspected the hose after the accident, he found a one-inch gap or split which he described as “protruding from outside in.”

Rosemary Baker testified that she assists her husband with maintenance of the car washes and that she had checked the Plain Dealing car wash on the morning of the accident. She checked the equipment in | fieach bay by inserting money and running the washes through the cycles. She found no problems.

We note that plaintiffs counsel .objected, to Mrs. Baker’s testimony on the grounds that she was a surprise witness who was not disclosed in discovery. Plaintiff argues on appeal that the trial court erred in allowing her testimony, because it formed the cornerstone of the court’s ruling and prejudiced his ease. Plaintiffs counsel’s complaint that Mrs. Baker’s name was not listed as witness in response to discovery requests is unsupported. The discovery referred to is not in evidence. Moreover, counsel should have been on notice of the possibility of Mrs. Baker being a witness from the fact that Player spoke to her after the accident when he called the phone number posted at the car wash to report what had occurred. We find no error in the trial court’s overruling plaintiffs objection to Mrs. Baker’s testimony.

The Bakers’ testimony established that they checked their five car washes each day by running the equipment at each through all the cycles. Both Richard and Rosemary testified that Rosemary checked the Plain Dealing car wash on the morning of the accident and no problem was discovered. Though Mr. Player had the burden of proving that the Bakers knew or should have known of the defect in the hose, he produced no evidence and offers on appeal only the unsupported supposition that theJjBakers neglected to check the Plain Dealing car wash on the day of the accident. The Bakers exercised reasonable care in checking the car wash daily. There is no showing that they knew or should have known of the defect in the hose prior to the incident.

There is also no evidence in the record as to what exactly caused the slit in the hose. We do not know whether it was a sudden burst or rupture due to wear and tear that might have been visible upon inspection prior to the incident, or whether it was a cut or gash in the hose that could have been made by some mechanical means after Mrs. Baker had inspected the car wash that morning. The fact that an accident occurred does not allow us to infer the existence of an unreasonable risk of harm, nor does it allow us to infer that the Bakers failed to exercise reasonable care which otherwise would have led them to discover some defect in the hose.

Having reviewed the record in its entirety, we find no manifest error in the trial court’s judgment.

CONCLUSION

For the reasons stated, we affirm the trial court’s judgment. Costs are assessed to appellant.

AFFIRMED.

      . Though the plaintiff’s petition named Robert Baker as the defendant, Mr. Baker testified at trial that his name is Richard Baker.

      . Plaintiff also assigned error to the trial court's ruling which allowed defense counsel to stipulate that the testimony of Chris Ayres, the Bakers’ son-in-law, would be the same as Mr. Baker's testimony regarding their post-accident testing of the carwash equipment. However, plaintiff did not argue this error in his brief, and the matters to which Ayres' testimony pertains were proffered and have not been considered in this appeal.


author: BROWN, C.J.

text:
    IRRIGATION MART, INC., Plaintiff-Appellee v. Michael GRAY d/b/a Plantasia f/k/a Clearwater Irrigation, Defendant-Appellant.
    No. 42,442-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Fewell-Kitchens, by Richard L. Fewell, Jr., for Appellant.
    Storms & Buerger, by Tyler G. Storms, Eric K. Buerger, Ruston, for Appellee.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, C.J.

| iThis action to collect on an open account was filed by Irrigation Mart, Inc., against defendant, Michael Gray d/b/a Plantasia f/k/a Clearwater Irrigation. Between March 2004 and February 2005, Plantasia purchased on account drainage materials from plaintiff. Following Plan-tasia’s failure to pay on the account, plaintiff sued Gray for the principal sum, judicial interest from date of demand, and attorney fees. The trial court found that Gray did not disclose his agency capacity to Irrigation Mart and was thus liable for the $16,741.82 due on the open account, plus judicial interest from the date of demand, all costs, and attorney fees. Gray now appeals. For the reasons contained herein, we affirm.

Facts

Michael Gray was a landscaper. Gray filed articles of organization for MDG Enterprises, LLC, d/b/a Clearwater Irrigation, with the Louisiana Secretary of State on June 21, 2000. Gray, operating as Clearwater Irrigation, opened an account with Irrigation Mart, Inc., for the purchase of landscaping supplies in 2001. Later, Gray filed articles of organization for Ar-borscapes, LLC, d/b/a Plantasia, and changed the name on his account with Irrigation Mart from Clearwater Irrigation to Plantasia. Gray never disclosed the existence or identities of the two LLCs, MDG Enterprises or Arborscapes.

On August 12, 2005, plaintiff filed a petition seeking to collect the amount due on the open account, which included Planta-sia’s purchase of drainage materials between March 25, 2004, and February 10, 2005.

^Plaintiff obtained a default judgment on February 22, 2006. Gray filed a motion for new trial. Irrigation Mart agreed to a new trial in exchange for Gray’s agreement to pay attorney fees of $1,000 incurred in connection with the default judgment.

The matter was tried on September 11, 2006. The trial court rendered judgment on October 2, 2006, ruling in favor of Irrigation Mart and against Gray for the amount on the open account of $16,741.82, plus judicial interest from the date of demand, all costs, and attorney fees as the parties stipulated at 15%.

Discussion

The trial court’s written opinion states:

The issue before the court is whether the defendant should bear personal liability for the debts he incurred on behalf of several businesses he operated using trade names for two undisclosed limited liability companies.
The court finds the following facts as proven by a preponderance of the evidence. The defendant took no affirmative steps at the beginning or during the course of the business relationship to disclose to the plaintiff the legal nature of his businesses or his relationship with them. There was insufficient evidence to indicate that the plaintiff should have known that the defendant was operating his businesses other than as a sole proprietorship using various trade names. The very existence of the defendant’s two limited liability companies as well as their names was first learned by plaintiff at the trial. The business documents used by the defendant during this period did not indicate a limited liability status of any kind. The business card of the defendant introduced into evidence named the defendant simply as owner for the named businesses (Clearwater and Plantasia) with no indication of a limited liability status. Similarly, the business checks used by the defendant for payment on account gave no indication of a limited liability status. Finally, the defendant testified that he at no time communicated formally or informally to the plaintiff the true nature of his legal relationship with his businesses. In the court’s opinion, these actions served to foster ■ the plaintiffs reasonable belief that the defendant was conducting his businesses as a sole proprietor using different trade names.
|sThe defense places much emphasis on the testimony of a former salesman of the plaintiff, Mr. Mobley. During the cross-examination of Mr. Mobley, it became apparent to the court, that Mr. Mobley knew only that the defendant operated as a business. He was unfamiliar with the legalities of defendant’s businesses or the defendant’s legal relationship with them. The defense also strongly urges the court to consider the fact that the plaintiff sought a continuing guaranty from the defendant and that this therefore imputes knowledge of defendant’s adverse legal status to the plaintiff. Considering the testimony of the parties, the time frame and unresponsiveness of defendant toward plaintiffs attempts at collection, the court views the actions of plaintiff as an attempt in their mind to improve their position by having the defendant “sign something else” acknowledging the debt, and as nothing more.

Gray argues that he acted in an agency capacity when contracting with plaintiff. Further, Gray contends that Irrigation Mart received sufficient constructive knowledge of this agency relationship to the extent that he, Gray, never became personally liable for any debts incurred.

A mandatary who contracts in the name of the principal within the limits of his authority does not bind himself personally for the performance of the contract. La. C.C. art. 3016. On the other hand, a mandatary who contracts in his own name without disclosing his status as a mandatary does bind himself personally for the performance of the contract. La. C.C. art. 3017. Generally, an agent will be held to have bound himself personally when he enters into an agreement without disclosing the identity of his principal. American Bank and Trust Co. of Coushatta v. Boggs and Thompson, 36,157 (La.App.2d Cir.06/12/02), 821 So.2d 585. The agent has the burden of proving that he disclosed his agency status and the identity of his principal if he wishes to avoid personal liability. Id. However, express notice of the agent’s status and the principal’s identity is |4not required to escape personal liability if the agent proves that sufficient evidence of the agency relationship was known by the third party so as to put him on notice of the principal-agent relationship. Id.

Both plaintiff and defendant have framed the issue, as did the trial court, as a factual question. Both sides have strongly supported their positions with recitation of testimony and documentary evidence. A reviewing court may not set aside a district court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. Hanks v. Entergy Corp., 06-477 (La.12/18/06), 944 So.2d 564. In order to reverse a district court’s determination of a fact, a reviewing court must review the record in its entirety and conclude that reasonable factual basis does not exist for the finding, and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Bonin v. Ferrellgas, Inc., 03-3024 (La.07/02/04), 877 So.2d 89. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

The trial court found, the record supports, and, indeed, it is not contested that plaintiff was not aware of the existence of Gray’s two limited liability companies, MDG Enterprises, LLC, and Arborscapes, LLC, until trial. Further, the business documents, business cards, and checks used by Gray during his dealings with Irrigation Mart did not indicate a limited pliability status. Gray even testified that he at no time communicated formally or informally to the plaintiff that he operated a LLC. Plaintiffs knowledge of the trade names Clearwater Irrigation and Plantasia cannot equate to disclosure of MDG Enterprises, LLC, or Arborscapes, LLC. Generally, an agent will be held to have bound himself personally when he enters into an agreement without disclosing the identity of his principal. Gray had the burden of proving that he disclosed his agency status to plaintiff and the identity of his principal (MDG Enterprises, LLC, and later Arbor-scapes, LLC) if he wished to avoid personal liability, and, given the facts listed above, the trial court did not commit manifest error in holding that he failed to so do. See American Bank and Trust Co. of Coushatta, supra.

Conclusion

For the reasons set forth above, the judgment of the trial court ordering Michael Gray to pay Irrigation Mart, Inc., $16,741.82 on Gray’s open account, with judicial interest from the date of judicial demand until paid, together with all costs of this suit, and attorney fees as stipulated by the parties, is affirmed. Costs of this appeal are to be borne by appellant, Michael Gray.

AFFIRMED.

      . The charges for the materials were $13,694.42 plus finance charges as of the time the suit was filed in the amount of $2,223.48.