text:
    Kelly NASH v. AECOM TECHNOLOGY CORPORATION.
    No. 2007-990.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2008.
    Scott Webre, Lafayette, LA, for Plaintiff/Appellee, Kelly Nash.

      James J. Hautot, Judiee & Adley, Lafayette, LA, for Defendants-Appellants, Aecom Technology Corporation and Insurance Company of the State of Pennsylvania.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

Bln this workers’ compensation case, the employer, Aecom Technology Corporation, and its insurer, Insurance Company of the State of Pennsylvania, appeal the judgment of the Office of Workers’ Compensation finding they were arbitrary and capricious in failing to authorize a necessary surgical procedure and assessing penalties and attorney fees for that failure. For the following reasons, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

Claimant, Kelly Nash, fell at work on March 7, 2005. Mr. Nash promptly reported the accident to his supervisor and filled out an accident report that same day. He complained of pain in his lower left side hip and back to the degree he could barely walk within an hour of the accident. That same day, Mr. Nash sought treatment from the employer’s physician, Dr. Hanna Lubbos. He was assessed with “low back pain, secondary to fall.” A lumbar MRI was ordered which revealed “mild narrowing at L5-S1” and “severe findings ... on the Left at L2-3.” Dr. Lubbos referred Mr. Nash to a neurosurgeon.

Mr. Nash began treatment with neurosurgeon, Dr. Alan Appley, which did not provide much benefit. On February 20, 2006, a follow-up MRI, with and without axial loading, was performed. It revealed a herniated disc at L5-S1, for which Dr. Appley recommended microdiscectomy surgery. A recommendation and request for surgery was received by the insurer on June 9, 2006. A second opinion was obtained by the insurer’s choice of neurosurgeon, Dr. Ricardo Leoni. Dr. Leoni’s report, dated July 25, 2006, concluded Mr. Nash had “radicular pain that goes all the way down into the bottom of his foot and one would have to say that this is probably from L5JS1.21 think that he would probably do best with a microdiscectomy.”

On August 11, 2006, the insurer’s case manager, Debbie Kershaw, inquired to Dr. Leoni as to whether “the L5-S1 problem occurred after the MRI from 4/8/05.” On August 15, 2006, Dr. Leoni replied that the “L5-S1 disc bulge occurred after the 4-8-05 MRI scan.” Ms. Kershaw then asked Dr. Appley if he agreed with Dr. Leoni’s opinion that the disc bulge occurred after the MRI. Ms. Kershaw received a note from Dr. Appley on August 21, 2006, stating that he agreed with Dr. Leoni’s above conclusion. Ms. Kershaw then asked Dr. Appley if he believed the L5-S1 bulge was related to the work accident.

On December 7, 2006, Dr. Leoni stated in correspondence to Ms. Kershaw that “I don’t think I could make a case that [claimant’s] accident caused this herniated disc at L5-S1.” On March 16, 2007, Dr. Appley stated he believed the herniated disc was more likely than not caused by the work accident. He wrote:

The MRI of 4/8/05 is not normal at L5-Sl. There is diffuse bulging and a central HIZ (high intensity zone) consistent with an annular tear. This was, more likely than not, secondary to the 3/7/05 work injury.

Despite Dr. Appley’s conclusion, the insurer’s adjuster did not approve the recommended surgery, basing its decision on Dr. Leoni’s report.

Mr. Nash filed a claim with the Office of Worker’s Compensation alleging an “arbitrary and capricious denial of surgical treatment recommended by treating physician warranting penalties and attorney fees.” Mr. Nash has received regular indemnity benefits since the accident, thus, there are no issues relating to indemnity. The employer/insurer requested the appointment of an independent medical examiner (IME) to evaluate what the MRI of April 8, 2005 showed. The Workers’ Compensation Judge (WCJ) denied this request, finding, under La.R.S. 23:1123, an |aIME is inappropriate where the condition of the employee is not in question, but only the causation of the employee’s condition. The WCJ noted the dispute was not whether claimant had a herniated disc, but whether the herniated disc occurred because of the work accident.

Approximately one week before trial on the matter, the employer/insurer authorized the surgery. Thus, the only issue at trial was whether Defendants were unreasonable in withholding authorization for surgery pending an investigation as to whether the proposed surgery was related to the work accident.

After trial on the matter, the workers’ compensation judge (WCJ) found the employer/insurer utilized “a lot of speculation and conjecture” in the denial of the recommended medical care and thus, “unreasonably, arbitrarily and capriciously denied and delayed reasonable and necessary medical treatment recommended” by Dr. Appley. The trial court awarded a penalties of $2,000.00 and attorney fees in the amount of $3,500.00. The employer/insurer appealed. Mir. Nash answered the appeal seeking additional attorney fees for the work necessitated by the appeal.

ANALYSIS

This court in Noel v. Home Health 2000, Inc., 01-1543 (La.App. 3 Cir. 5/8/02), 816 So.2d 955, 956-57, set forth the applicable law governing the refusal to authorize recommended medical treatment:

The law governing the furnishing of medical care, and the consequences of the refusal to authorize such care, is found in Louisiana Revised Statutes 23:1203 and 23:1201. 23:1203(A) states in pertinent part:
In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, Rpublic, or private facilities as will provide the injured employee with such necessary services.
Louisiana Revised Statute 23:1201(E) provides that: “[mjedical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” Subsection (F) states that failure to comply with this section “shall result in the assessment of a penalty ... together with reasonable attorney fees for each disputed claim.”
The decision to impose penalties is a factual question, which will not be disturbed on appeal in the absence of manifest error. Spencer v. Gaylord Container Corp., 96-1230 (La.App. 1 Cir. 3/27/97), 693 So.2d 818. Louisiana courts have consistently held that failure to authorize a medical procedure for an employee eligible to receive workers’ compensation is deemed to be a failure to furnish compensation benefits, thereby triggering the penalty provisions of the Louisiana Workers’ Compensation Act. Gay v. Georgia Pacific Corp., 32,653 (La.App. 2 Cir. 12/22/99), 754 So.2d 1101. Penalties and attorney fees for failure to timely pay benefits will be assessed against an employer or insurer unless the claim is reasonably controverted or such nonpayment results from conditions over which the employer or insurer had no control. La.R.S. 23:1201; Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885. The supreme court in Brown went on to state that:
in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.
Brown, 721 So.2d at 890.
In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993); Mart v. Hill, 505 So.2d 1120 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be [¿manifestly erroneous or clearly wrong. Stobart, 617 So.2d 880. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

The WCJ specifically noted that appellants’ suggestions of sneezing, coughing and hunting activities as possible reasons for denial of the recommended surgery were pure speculation and conjecture. Further, the WCJ stated that appellants did not ask the appropriate question of Dr. Leoni nor Dr. Appley regarding whether or not the herniated disc at L5-S1 was causally related to the work accident. This was corroborated by the testimony of appellants’ adjuster on claimant’s file, Brian Lindsey, who testified as follows:

Q. Did you make any inquiry of any person specifically as to whether or not an MRI one month following an accident and injury can show, basically, normal findings only to develop later into a herniation, the herniation stemming from an injury occurring prior to the MRI? Do you have any appreciation for whether or not that’s possible?
A. It’s my understanding that that’s how it can occur, but we have to go with what the doctors are saying which is not what he said.
Q. But you didn’t ask that of Dr. App-ley in this letter, did you?
A. I asked if he thought it occurred after 04/08 of 05? That’s what I asked him.
Q. You asked if the L5, Si problem occurred after the MRI from 01/05, but you didn’t specifically address whether or not it could have been a latent injury stemming from the March 7, 2005 accident only to surface later or present itself later on the second MRI.
A. Well, we didn’t — we weren’t aware that that was what essentially was going on until we got the letter in March from Dr. Appley.

(Emphasis added.)

The WCJ also noted that the first MRI was not done with axial loading, whereas the | (¡second MRI was performed with axial loading. Mr. Lindsey explained that axial loading in an MRI means weight is applied to the back to compress the discs and that “something really small might not show up on a normal one.” Mr. Lindsey acknowledged that he became aware that only the second MRI was done with axial loading. Despite his awareness that the first MRI was substantially different in its ability to measure a problem than the second MRI, that detail was not discussed with Dr. Leoni at any time.

Mr. Lindsey’s testimony, as set forth below, clearly indicates a lack of urgency on appellants’ part to fully investigate Dr. Appley’s conclusions that the disc herniation was more likely than not caused by the work accident:

Q. So in March of '07 when you learned what was going on, that there were these high intensity zones on the original MRI, you then formed an opinion that the L5, SI problem did stem from the March 7, '05 accident, correct?
A. Well, I had formed the opinion that that was what Dr. Appley was saying. Like I said, I’m not — I mean, as we said earlier, I’m not a doctor or a neurosurgeon, so I kind of have to go with what they’re saying.
Q. Okay, and you had — and you had— since that time, had not formed — not been provided any information to develop an opinion that Dr. Appley was wrong?
A. No, I have not.
Q. And you did not contact Dr. Leoni subsequent to the March '07 report of Dr. Appley to check his opinion against Dr. Appley’s?
A. Well, we were going to ask for an IME with the State to come on in.
Q. I understand that, but that’s not my question. My question is, you never went back to Dr. Leoni to inquire whether or not what Dr. Appley said about these high intensity zones was correct, right?
A. No. At that point, we had his opinion three times. It didn’t seem |7that relevant.
Q. So the answer to my question is, “No,” you didn’t—
A. No, I did not.
Q. When was the first time you made an effort to go to back to Dr. Leoni and find out?
A. Early — in May 2nd, I believe, within a week or two of the trial where our IME was denied.
Q. Why didn’t you go to him immediately in March after receipt of Dr. App-ley’s report?
A. Well, we had already had his opinion three times that he disagreed with what Appley was saying, and so we felt that getting a third opinion was really the best way to go.
Q. You didn’t have an opinion from Dr. Leoni as to the high intensity zones referenced by Dr. Appley from the '05 MRI, right?
A. No.
Q. So that’s something new that could have been addressed with Dr. Leoni as soon as you got Dr. Appley’s report, right?
A. If he would have been available to comment, yes.
Q. Well, was he unavailable to comment?
A. As of May 2nd, he was, when we sent our response — our request for that exact information.
Q. Do you know whether he was available in the month of April?
A. No, I don’t.
Q. Do you know whether he was available in the end of March after receiving Dr. Appley’s report?
A. No, I don’t.

Taking the record as a whole, appellants’ refusal to authorize the recommendation for surgery by Dr. Appley was not reasonably controverted by competent medical |sevidence. The WCJ was not manifestly erroneous in its imposition of penalties and attorney fees.

We also note La.R.S. 23:1201(E) provides that “[m]edical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” (Emphasis added.) Violation of this section “shall result in the assessment of a penalty” as well as “reasonable attorney fees.” La. R.S. 23:1201(F). Although the WCJ did not base his decision on the failure to pay benefits within the sixty day period, we find appellants were in violation of this provision. The recommendation and request for surgery was received by the insurer on June 9, 2006. By the expiration of the sixty day period, August 8, 2006, appellants possessed the recommendation for surgery by Dr. Appley, the second opinion of its choice of physician, Dr. Leo-ni, agreeing with Dr. Appley’s recommendation for surgery, and the utilization review performed by Health Direct, Inc., acknowledging the surgery had been “recommended as medically necessary.” It was not until August 11, 2006, after the expiration of the sixty day period, when the insurer’s case manager, Debbie Ker-shaw, first approached Dr. Leoni and inquired as to whether “the L5-S1 problem occurred after the MRI from 4/8/05.” Appellants neither reasonably controverted the recommendation for surgery within sixty days, nor demonstrated its failure to do so was beyond its control. Thus, penalties and attorney fees are appropriate under R.S. 23:1201(F).

Claimant answered the appeal, and requests an additional award of attorney fees for work performed on this appeal. A workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal. Hickman v. Allstate Timber Co., 94-1275 (La.App. 3 Cir. 4/5/95), 653 So.2d 154, writ denied, 95-1133 (La.6/23/95), 656 So.2d 1017. Accordingly, we award an additional $2,000.00 in attorney fees for the successful handling of this appeal.

DECREE

For the above reasons, the judgment is amended to award an additional $2,000.00 in attorney fees for the appeal and is otherwise affirmed. Costs of this appeal are assessed to the appellants, Aecom Technology Corporation and Insurance Company of the State of Pennsylvania.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Calvin Joseph COLEMAN.
    No. 2007-794.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2008.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Calvin Joseph Coleman.
    Billy J. Harrington, Assistant District Attorney, Natchitoches, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

| ¡.STATEMENT OF THE CASE

Calvin Joseph Coleman was indicted for second degree murder, a violation of La. R.S. 14:30.1. Initially, he pled not guilty then changed his guilty plea to not guilty and not guilty by reason of insanity. A sanity commission was appointed. On November 11, 2003, because of conflicting psychiatric evaluations, Coleman was remanded for further evaluation at the Eastern Louisiana Mental Health System Forensic Division (Feliciana). On October 7, 2005, Defendant was found capable of assisting with his defense.

Prior to trial, Coleman filed a motion to suppress inculpatory statements made to officers after his arrest. Following a hearing, the trial court denied the motion. The jury found Coleman guilty of second degree murder. He was sentenced to life imprisonment, without benefit of parole. Coleman appeals, asserting the following assignments of error:

1. The trial court erred in admitting his statements into evidence because at the time Coleman was in a delusional state.
2. The evidence is insufficient to support a conviction for second degree murder.
3. The trial court erred in limiting the expert testimony of psychiatrist Dr. Paul Ware.

For the reasons assigned below, we affirm the conviction and sentence of Calvin J. Coleman.

LAW AND DISCUSSION

Sufficiency of the Evidence

Defendant argues the State failed to sustain its burden of proof beyond a reasonable doubt that Defendant had the requisite specific intent to kill the victim. Defendant also argues he sustained his burden of proof by a preponderance of the 1 ^evidence proving he was insane at the time of the shooting and did not know right from wrong. In State v. Leger, 00-920, pp. 1-2 (La.App. 3 Cir. 12/20/00), 775 So.2d 1169, 1170, writ denied, 01-240 (La.3/15/02), 811 So.2d 894, this court stated:

When the sufficiency of the evidence is raised on appeal, this court must decide 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In reviewing the evidence, this court must keep in mind that it is the fact finder’s role to weigh witness credibility, and we should not second-guess those credibility determinations beyond the sufficiency evaluations under the Jackson standard of review. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). However, “Due Process requires the reviewing court to determine ‘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.’ ” State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789).

Defendant was convicted of second degree murder, a violation of La.R.S. 14:30.1(A)(1), which provides that second degree murder is the killing of a human being “when the offender has a specific intent to kill or to inflict great bodily harm.” “Specific intent is defined as ‘that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.’ La.R.S. 14:10. Specific criminal intent may be inferred from the circumstances present in the case and the actions of Defendant.” State v. Reed, 00-1537, p. 7 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, 1266.

The following facts were established at trial. At approximately 11:00 a.m., Mark Hinton, an instructor at Louisiana Technical College, had just finished teaching a class when Coleman entered the classroom and began firing a gun at a student, Tyrone Sylvia. Hinton testified his back was toward the door when he heard the first shots fired. As he turned, he saw the victim fall to the floor. Hinton ran out of the classroom to the administrative office where he called the police. He testified at the |4time he did not recognize the shooter but later recognized Coleman as one of his former students.

Nancy Murry, an instructor at the college, testified at approximately 11:00 a.m., she saw a young man, later identified as Coleman, standing quietly outside of the classroom where the victim was shot. She did not recognize the man, but they greeted each other “cordially” and she thought nothing more about it. Also, Joshua Moak, a student at the college, saw Coleman standing outside the classroom when he was on his way to the cafeteria for an early lunch. He stated they nodded to each other.. Moak mentioned the classroom door had a rectangular window in the door, so the inside of the classroom could be seen. Kim Worsham, manager of the student bookstore, testified she saw Coleman a little after 11:00 a.m. standing outside the classroom. She recognized him as a former student of the school. She thought he might have been there to meet someone for lunch. She stated he seemed to have recognized her, but there was nothing that aroused her suspicion.

Ross Desadier, a sergeant with the Natchitoches City Police Department, testified he received a call about a shooting at the Louisiana Technical College. Upon arrival, he observed a man on the classroom floor. The victim was shot once in the forehead and twice in the back. There were a few casings and some bullets found on the floor by the body. The bullets were from a .380 caliber gun. Sergeant Desadier collected the bullets and casings and, accompanied the body to a funeral home.

Doryce Polk, an officer with the Natchi-toches Parish Sheriffs Office, testified she received a phone call from Coleman. She and two other officers went to the location from which Defendant had called. He met them as they drove up and, without resistance, they handcuffed him and put him into the police car. She stated she read him the Miranda rights. When she asked if he understood his rights, he | Knodded -his head affirmatively. She testified at one point he became agitated when his uncle walked behind the police unit with an officer and they began walking across the roadway toward a field. She stated Defendant said nothing to her.

Travis Trammel, a deputy with the Natchitoches Parish Sheriffs Office, testified when he arrived at the location in Clarence where the Defendant had surrendered, Defendant was sitting in back of the police unit. Deputy Trammel stated he entered the unit, Mirandized the Defendant, and asked him if he would talk to him. He testified Defendant said, “I just did what I had to do.” He said initially Defendant declined to talk to him, but then stated: “It was him or me.” The deputy asked where the gun was and Defendant responded he did not know. Upon further questioning, Defendant said he wanted to talk to a lawyer. Deputy Trammel then terminated the interview.

Deputy Trammel testified tracking dogs were later brought to the location, the dogs searched the field across the street, and located in a hole in the ground a chrome semi-automatic pistol wrapped in a towel. When asked how Defendant’s demeanor was, Deputy Trammel testified he seemed nervous and scared, as if something “traumatic” had happened in his life.

Jeff Franks, a detective with the Natchi-toches City Police Department, testified after the Defendant was brought into the police department, he attempted to interview him, but Defendant declined. Defendant signed a Miranda Rights form indicting he understood his rights and desired not to make a statement. Officer Franks testified after he had gone over Defendant’s rights with him, he went outside. Within a few minutes, Defendant was taken outside for a smoke. Officer Frank stated while standing outside, Defendant laughed, then said. “I just can’t believe I’m sitting here |filaughing after what I just did.” When asked how Defendant acted, Officer Frank said that he appeared calm and relaxed.

Julius Armstrong, a sergeant with the Natchitoches City Police Department, interviewed Defendant. Sergeant Armstrong testified at first Defendant did not want to talk and again signed a Miranda Warning form stating such, but within a short time the Defendant agreed to speak with him. Coleman stated he asked a friend to take him to town where he bought some items, including a bus ticket out of town. They talked about school and the friend asked about Mr. Hinton, who taught electronics at the Louisiana Technical College. They went to the library, then they went to the college because they wanted to speak with Mr. Hinton. Once they arrived at college, they learned Mr. Hinton had a class at the time, so they decided to leave. Coleman said he told his friend to wait for him in the car, he was going to go to the lavatory first. Defendant then went into the classroom and shot the victim. He stated he and the victim were having problems, that the victim had threatened him. Defendant indicated the problem was over two hundred dollars he owed the victim. He stated that he knew the victim had done time in prison, and he was afraid for his life.

In the statement, Coleman advised Sergeant Armstrong several times that his friend who took him to the school had nothing to do with the shooting. He said his friend was totally unaware of what was happening and he was innocent of any wrongdoing. Defendant said the friend then dropped him off at the Armory, and he threw the gun away into a field. He then rode to Clarence, where he was later taken into custody. Sergeant Armstrong testified Defendant was “calm, collective[sic], appeared to know what he was doing.” The sergeant testified Defendant was not intimidated or threatened in any way. Nor were any promises made to get his confession.

|7Assistant Chief of the Natchitoches City Police Larry Vaughn testified the gun was found in the field across from where Defendant surrendered to the police, and it was the gun used to kill the victim. By Defendant’s own admission, he shot the victim. Furthermore, his intent to commit the crime was demonstrated by the fact he first purchased a ticket out of town, then stood waiting outside the classroom door, entered the classroom, and fired several shots directly at the victim. This court has held that the act of aiming a firearm directly at a person and pulling the trigger can inferentially support a jury’s finding that the Defendant had the requisite specific intent to kill. State v. Clark, 93-1470 (La.App. 3 Cir. 10/5/94), 643 So.2d 463, writ denied, 94-2715 (La.1/9/95), 649 So.2d 418.

We find the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Defendant had the specific intent to kill the victim. Defendant, however, argues the specific intent requirement necessary to prove second degree murder was negated by the fact that he was suffering from a mental illness at the time of the shooting and as a result of the illness was not able to appreciate the wrongness of The act. In support of this defense, Coleman submitted the testimony of his mother, Sandra Coleman, and several relatives. Ms. Coleman testified the Defendant was living with her at the time of the shooting. She stated approximately three or four months prior to the shooting, Defendant’s behavior changed radically. She stated there was never a problem with her son, no mental health issues, that he had always been a happy, stable person. However, he became so paranoid he would not allow her to go outside or answer the telephone. He stopped eating the food she cooked for him, often throwing the food out into the yard. Defendant admitted to her that something was wrong, but would do nothing about it. He paced and spit constantly and he told her “they gonna kill us all.”

IsGIadys Coleman, Defendant’s aunt, corroborated Sandra Coleman’s testimony, stating she would call because she was so worried about the situation, but no one would answer the phone, so, she would call a neighbor to go and check up on the family. She stated Defendant scared her to the point where she did not want to be around him anymore. Claudine Hill, Defendant’s first cousin, testified on a specific occasion, after being told about Defendant’s behavior, she went over to the house and found Sandra Coleman sitting terrified in a chair and Defendant pacing back and forth. When she asked him what was wrong, he told her “if they’ll do it to you, they’ll do it to me.” She stated he never told her who “they” were. Aretha McWrite, a long-time neighbor, testified Defendant had been a friend of her daughter and sometimes hung out at her house. She stated he was easygoing and always joking around, but in March 2005, about the time of the local football play-offs, she noticed that he had become increasingly nervous, to the point that when he visited he would lock the door behind him and peer anxiously out the windows. LaQuida Westin, the mother of Defendant’s son, testified that Defendant became very distant toward his son prior to the shooting. She stated that normally he had a very good relationship with the boy and would spend a lot of time with him. Truly Coleman, Defendant’s aunt, testified the Coleman family was a close-knit family and the Defendant had been a normal, happy person. A few weeks before the shooting, he told her he saw too much at school, and people were messing with people’s minds over the internet.

Dr. Paul Ware, Chairman of the Department of Psychiatry at Louisiana State University Health Science Center in Shreveport, testified as an expert witness in psychiatry and forensic psychiatry on Defendant’s behalf. Dr. Ware saw Defendant for the first time after he was released from Feliciana. He was ordered by the trial court to assess Defendant’s capability to assist in his defense and to determine ^whether Defendant was insane at the time of the shooting. Dr. Ware interviewed Defendant and his family and reviewed reports from the sanity commission and medical records from Feliciana. Particularly significant to him was the testimony he heard in court regarding Defendant’s fear of what was happening at school. Dr. Ware stated, following that testimony, he questioned Defendant about it. Dr. Ware testified that “he . said they were taking advantage of young girls and they were putting it on the internet and he truly did believe that without a doubt. He believed that and he felt like that he had to react to that and to do something to try to fix it.” Dr. Ware said that from the descriptions of the changes in Defendant’s behavior, he “was clearly suffering from a delusional disorder.” Dr. Ware concluded that Defendant’s disorder was based on false beliefs which, together with psychotic behavior, such as hearing voices, he could not resist. Dr. Ware opined that Defendant was “significantly impaired during that period of time.” When asked if Defendant could distinguish between right and wrong when he shot the victim, he stated Coleman was suffering from a delusional disorder and “was not aware of the wrongness of his behavior at the time.”

The State questioned Dr. Ware concerning the medical evaluation done on Defendant while he was at Feliciana. Dr. Ware admitted Feliciana had reported that Defendant “had little regard for others or opinions of society around him,” that his “desire to be in control may lead to explo-rative [sic] or manipulative behavior on his part,” and that “the probability of fainting [feigning] of the defendant is high, about 98%.” The State pointed out Dr. Wheat’s evaluation of Defendant indicated Defendant may have been malingering.

In State v. Silman, 95-154, p. 7 (La.11/27/95), 663 So.2d 27, 32, the Louisiana Supreme Court said:

|inIn reviewing a claim for insufficiency of evidence in an action where an affirmative defense of insanity is raised, this court, applying the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), must determine whether under the facts and circumstances of the ease, any rational fact finder, viewing the evidence most favorable to the prosecution, could conclude, beyond a reasonable doubt, that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. State v. Peters, 94-0283 (La.10/17/94); 643 So.2d 1222; State v. Nealy, 450 So.2d 634 (La.1984); State v. Price, 403 So.2d 660 (La.1981); State v. Claibon, [395 S.2d 770 (La.1981) ]; State v. Roy, 395 So.2d 664 (La.1981).

In Silman, the supreme court set forth the standard and burden of proof when a defendant claims insanity at the time of the offense, as follows:

In Louisiana, a legal presumption exists that a defendant is sane at the time of the offenses. La.R.S. 15:432. To rebut the presumption of sanity and avoid criminal responsibility, defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La.C.Cr.P. art. 652. Criminal responsibility is not negated by the mere existence of a mental disease or defect. To be exempted of criminal responsibility, defendant must show he suffered a mental disease or mental defect which prevented him from distinguishing between right and wrong with reference to the conduct in question. La.R.S. 14:14; State v. Williams, 346 So.2d 181 (La.1977). The determination of sanity is a factual matter. All the evidence, including expert and lay testimony, along with the defendant’s conduct and action, should be reserved for the fact finder to establish whether the defendant has proven by a preponderance of the evidence that he was insane at the time of the offense. State v. Bibb, 626 So.2d 913 (La.App. 5th Cir.1993), writ denied, 93-3127 (La.9/16/94); 642 So.2d 188; State v. Claibon, 395 So.2d 770 (La.1981). Lay testimony pertaining to defendant’s actions, both before and after the crime, may provide the fact finder with a rational basis for rejecting unanimous medical opinion that the defendant was legally insane at the time of the offense. State v. Peters, [94— 0283 (La.10/17/94), 643 So.2d 1222]; State v. Claibon, supra.

Id. at 32.

In State v. Appacrombie, 33,551 (La.App. 2 Cir. 9/12/00), 766 So.2d 771, writ denied, 00-2856 (La.10/5/01), 798 So.2d 961, the second circuit affirmed the jury’s verdict of guilty, despite abundant expert testimony of Appacrombie’s inability to distinguish right from wrong when she shot a teenage girl who she thought was bullying her daughter. Five doctors, including Dr. Ware, testified Appacrombie was lusuffering from a mental illness when she shot the victim. The doctors testified she was psychotic and delusional. Appa-crombie had problems with seizures and had a temporal lobectomy, which did not seem to stop the seizures. There was testimony she exhibited violent behavior prior to the lobectomy and there was testimony she exhibited violent and irrational behavior following the surgery. However, the second circuit found the jury could have inferred from her behavior that she was aware her conduct was wrong. She spoke rationally at the time of the shooting, she acted appropriately when she was apprehended, admitted what she had done, and cooperated with the police officers. She immediately called the police on her own accord.

Applying the law to the facts in the present case, we find the trier of fact could have found concluded Defendant failed to prove by a preponderance of the evidence that he was incapable of appreciating the wrongness of his act. Defendant planned his actions deliberately, purchased a bus ticket out of town, hid the weapon, called the police on his own volition, surrendered to the police calmly, and insisted that his friend who drove him to and from the school was innocent of any complicity with the shooting. While the testimony indicated Defendant may have been suffering from a mental illness, there was no evidence that he did not understand right from wrong when he killed the -victim.

Motion to Suppress

Defendant asserts the trial court erred when it denied his motion to suppress statements made to the police shortly after the shooting. The Defendant argued he had diminished mental capacity, and he suffered a mental illness at the time of the shooting; therefore, his statements admitting he shot the victim were not voluntary [ 1?,and not admissible at trial. In State v. Dugar, 93-718, p. 17 (La.App. 3 Cir. 10/5/94), 643 So.2d 870, 880, this court stated:

Before the state may introduce into evidence what purports to be a confession or statement of a defendant, it must first affirmatively show that it was freely and voluntarily given and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.Code Crim.P. art. 703(G); La.R.S. 15:451. In addition, if the statement was made during custodial interrogation, the state must prove that the accused was advised of his Miranda rights and intelligently and voluntarily waived those rights. La. Const. Art. I § 13 (1974); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Coleman, 395 So.2d 704 (La.1981).
To meet its burden the state may rely on the presumption of sanity provided in La.R.S. 15:432. Because of this presumption, the defendant has the burden of proving a mental defect which renders him unable to understand his rights and, therefore, incompetent to waive them. State v. Glover, 343 So.2d 118 (La.1977). The state is not required to negate a defendant’s mental abnormality, but it must prove beyond a reasonable doubt that the confession or statement a defendant gave was voluntary. The defendant must then prove the existence of a mental defect or disorder that prevented his confession or statement from being intelligently and voluntarily made. State v. Glover, supra. However, the law is clear that when the issue on appeal is whether an accused’s level of intellectual capacity precludes him from effectively understanding the essential nature of his right to remain silent, to have assistance of counsel, and of the consequences of his speech, much discretion is accorded to the trial court’s determination. State v. Lefevre, 419 So.2d 862 (La.1982); State v. Ashworth, 554 So.2d 271 (La.App. 3d Cir.1989), writ denied, 561 So.2d 113 (La.1990).

In State v. Verret, 06-1337, p. 11 (La.App. 1 Cir. 3/23/07), 960 So.2d 208, 216, the First Circuit stated:

The admissibility of a confession is, in the first instance a question for the trial court; its conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession are accorded great weight and will not be overturned unless they are not supported by the evidence. Whether or not a showing of voluntariness has been made is analyzed on a case-by-case basis with regard to the facts and circumstances of each case. The trial court must consider the totality of the circumstances in deciding whether or not a confession is admissible. [State v.] Plain, 99-1112 [ (La.App. 1 Cir. 2/18/00),] at p. 6, 752 So.2d [337] at 342.

|1SA hearing was held on the motion to suppress. Detective Jeff Franks with the Natchitoches City Police Department testified he interviewed Defendant at the police department shortly after Defendant was brought to the station. He stated he read Defendant his Miranda rights, following which Defendant indicated he did not want to speak. Detective Franks stated he read each of the five rights shown on the form to Defendant and asked specifically if he understood. Defendant indicated he understood and wrote “yes” on the form next to the question, “Do you understand each of these right I have explained to you?” and “no” next to the question, “Having these rights in mind, do you wish to talk to us now?” Defendant initialed each response and signed the form with witnesses. Moreover, Defendant wrote down his address and the date on the form. Detective Franks then testified he stepped outside for a cigarette. About thirty minutes later, Sergeant Armstrong brought Defendant outside for a cigarette. He asked Detective Franks to keep an eye on Defendant. The detective stated that while he was standing within five feet of him, Defendant laughed and then said, “I could not believe that I am able to laugh after what I did. But he deserved to die, though.” Detective Franks stated no one was speaking to Defendant. The detective said Defendant was just sitting there relaxed, “I mean it’s like he just got through taking a bath and was relaxing.”

Julius Armstrong, a sergeant with the Natchitoches City Police Department, testified he came into contact with Defendant at the police department shortly after Defendant declined to talk to Detective Franks. The sergeant stated that, using the Miranda rights form, he Mirandized Defendant. He specifically asked Defendant about his educational background. Defendant told him he had graduated from high school and attended two years of a vocational school, and had been in the military. Detective Armstrong stated Defendant did not appear to be on any drugs or alcohol. |14He informed the detective he did not want to speak without a lawyer. Again, Defendant signed a form indicating he understood his rights and did not want to speak at that time. Sergeant Armstrong testified at this point, he took Defendant outside for a cigarette.

When Defendant returned from smoking the cigarette, he started telling the sergeant about the shooting. Sergeant Armstrong stopped him and once again Miran-dized him and had him sign the form indicating he wished to talk about the incident. The sergeant stated Defendant appeared confident, calm, and coherent. He made eye contact. Moreover, Sergeant Armstrong testified there were no threats, intimidation, or any promises made to invoke the confession. Sergeant Armstrong testified there was nothing to indicate to him that Defendant suffered from a mental illness at the time he gave his statement.

Finally, Detective Travis Trammel testified he spoke with Defendant just after he was taken into custody in Clarence. He stated he had been informed Defendant had gone out into the field across the street, and he thought perhaps Defendant had tossed the gun into the field. He stated he got into the police car with Defendant and asked him where was the gun. He said he had been told Defendant had been Mirandized already, but he gave him another verbal warning of his rights and Defendant indicated he understood. He stated Defendant appeared nervous, stressed, sweaty, and said, “I just did what I had to do. It was either him or me.” The detective stated Defendant then declined to speak with him, at which time he terminated any conversation with Defendant.

While Defendant did not present any witnesses at the hearing, he submitted to the trial court the psychological evaluations of Drs. Wheat and Bienvenue, and the report issued by Feliciana at the time of his commitment in May 2005. Defendant 11fiargued it had been determined he was not capable of assisting in his own defense and was committed to Feliciana; therefore, he was not capable of giving voluntary statements to the police. He argued the police should have known from the circumstances that he suffered from a mental defect because of the fact that he shot someone in broad daylight, in front of witnesses, went home, lied initially about where the gun was, and there was never a true motive established for the shooting. Accordingly, his confession was involuntary and not intelligently made.

In its ruling, the trial court noted that the initial evaluations of Defendant were indeterminate: one physician stated he was capable of proceeding, and the other physician stated he was not. The trial court found:

At any rate, this points out that this is not a clear, this is not a clear issue here. Even at that time and that is you know a number of years afterwards, well I’m sorry. Originally even a psychiatrist back in the fall of that year couldn’t make a determination that he was not able to. The evidence clearly shows from the evaluation of the officers of the individual that he was advised of his rights. It was a spontaneous statement made and the Court finds that it was a spontaneous. It was not coerced and it was not initiated because the officers asked a question. Uh, and I find that all of the, all of the uh, Miranda Rights were given at all of the appropriate times by all of the officers that were involved. They were evaluated by the officers and determined that he didn’t appear anything but normal to them so they took the statement. Now after the fact that some, that some facts did not uh, pan out to be true as argued by Mr. Guillet while that’s a very good argument, it, I don’t think pans out in all cases. Because when people give confessions they don’t always tell all of the truth when they do that. So I don’t think that’s a factor in determining whether or not it’s free and voluntary. So I find that the statement was free and voluntary and uh, can be admitted into evidence.

We agree with the trial court and find the State met its burden of proving Defendant’s confessions were voluntary and intelligently made and Defendant did not meet his burden of proving a mental defect rendering him incapable of understanding his rights and, therefore, incompetent to waive them. Defendant relies heavily on a deposition of Dr. Ware. In the deposition, Dr. Ware stated that the improper | ^questioning techniques used by the officers impacted Defendant’s statements and that most certainly “it would be very difficult if not impossible for someone suffering from a psychotic delusional disorder, which he was, to be able to testify as to what happened-be voluntary.” A reading of the interview conducted by Sergeant Armstrong indicates Defendant spoke freely and was not cut off or misdirected. In a narrative, Defendant described the morning with his friend leading up to the time where he stood outside of the classroom, awaiting an opportunity to enter and shoot the victim. Defendant had the presence of mind to insist that his friend, who drove him to school, was not involved in the crime. Moreover, two of the inculpatory comments he made were spontaneously made. The taped confession was made after he spontaneously began to confess, was stopped, and was reminded of his right to remain silent. We find no merit to this argument.

Testimony of Dr. Ware

Defendant argues he was deprived of the right to an effective defense when the trial court ruled Dr. Ware could not testify as to the improper interrogation technique employed by Sergeant Armstrong. The defense sought to admit the testimony of Dr. Ware to the effect that the defendant’s statement given to the police after the shooting could not be believed because of the method of questioning used by the police. The State objected. The trial court allowed Dr. Ware to testify as to whether the defendant knew right from wrong at the time of the offense and his state of mind both before and after the shooting. In addition, the Court allowed Dr. ■ Ware to generally testify about the effect particular police questioning might have on individuals with certain mental conditions. We find no merit to this argument.

| y,Excessiveness of Sentence

Defendant argues a sentence of life imprisonment is excessive considering that he “committed the offense under the influence of an abnormal mental state.” Louisiana Revised Statutes 14:30.1 provides for a sentence of life imprisonment without the benefit of parole. The trial court has no discretion to impose any other sentence after a conviction for second degree murder. The Defendant argues the circumstances presented in this case are unusual and a lesser sentence is warranted. While there is authority for the trial court to impose an alternative sentence, the burden of proof is on the Defendant to establish “because of unusual circumstance[s] ... [he is] a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstance of the case.” State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 531, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223. We find the Defendant failed to rebut the presumption that the sentence is constitutional by clear and convincing evidence. See Appacrombie, 766 So.2d 771. See also, State v. Pierre, 02-277 (La.App. 3 Cir. 6/11/03), 854 So.2d 945, writ denied, 03-2042 (La.1/16/04), 864 So.2d 626.

DECREE

Based on the foregoing review of the record, the conviction and sentence of Calvin Joseph Coleman is affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Demarcus Deandre JACKSON, Appellant.
    No. 42,960-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    Paul J. Carmouche, District Attorney, J. Dhu Thompson, Sarah S. Midboe, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   GASKINS, J.

h The defendant, Demarcus Deandre Jackson, was convicted of attempted manslaughter and illegal use of a weapon while committing a crime of violence. He was sentenced to 14 years at hard labor on the attempted manslaughter conviction and 14 years on the conviction for illegal use of a weapon while committing a crime of violence. The latter sentence was ordered to be served without the benefit of parole, probation or suspension of sentence. Both sentences are to run concurrently. The defendant appealed, claiming insufficiency of the evidence to convict him of illegal use of a weapon while committing a crime of violence. He also argues that his sentences are excessive. For the following reasons, the defendant’s convictions and sentences are affirmed.

FACTS

On the morning of March 29, 2006, the defendant and his girlfriend, Lajoy Livingston, had an altercation at her home. The night before, Lajoy ended her relationship with the defendant. On the morning of the offenses, the defendant showed up at Lajoy’s home where the two began to argue. The altercation continued as Lajoy left her home to catch the school bus. The argument ended when the defendant pulled a .40-caliber handgun and began shooting in Lajoy’s direction. Although Lajoy was able to make it into her home unharmed, one of the shots struck the back of a passing school bus and injured a child passenger.

The defendant left the scene, but was identified by the Livingstons as the shooter. He was arrested and charged with one count of attempted second degree murder, a violation of La. R.S. 14:30.1 and 14:27, and one |2count of illegal use of a weapon while committing a crime of violence, a violation of La. R.S. 14:94. The crime of violence was aggravated criminal damage to property. See La. R.S. 14:2(19) and La. R.S. 14:55.

The defendant was tried by a jury. At trial, Janice Livingston, Lajoy’s mother, testified that the defendant arrived at her home on the morning of March 29, 2006, to walk her daughter to the bus stop. Shortly after the defendant and Lajoy left for the bus stop, they returned with Lajoy complaining that the defendant had taken her cell phone. Ms. Livingston told the defendant to return the cell phone, which he did. As the defendant and the victim walked back toward the bus stop, Ms. Livingston saw the defendant yank Lajoy’s hair piece off her head. Ms. Livingston told the defendant to “leave that girl alone,” and then went back inside her house. Shortly thereafter, she heard a gunshot and ran outside to see what was happening. She saw Lajoy heading back toward the house and the defendant firing a handgun in Lajoy’s direction. At the state’s request, Ms. Livingston stepped down from the witness stand and demonstrated the manner in which the defendant was aiming the gun at Lajoy. She also testified that she felt one of the bullets pass by her abdominal area, causing her to take cover by falling to the ground.

At the same time as the events described by Ms. Livingston, Joanne McMillan, a Caddo Parish school bus driver, was turning off Baxter Street onto Bellar Street. The children on her bus advised her that a child was running to catch the bus. Ms. McMillan stopped the bus in the approximate vicinity of Ms. Livingston’s home to wait for the child. Ms. McMillan | .^testified that she saw Lajoy and the defendant coming out of the house and saw Lajoy throw a DVD or VCR player on the ground, pick it up and throw it down again. She also saw the defendant take an object out of his pocket. She then heard two shots, the second of which hit the bus. She asked the children if they had thrown something and the children responded that the noise was the defendant firing a gun. Ms. McMillan looked in her side view mirror and saw the defendant holding a gun and pointing it in the same direction in which her bus was headed. The children in the bus were screaming and yelling that one of the students sitting in the back of the bus, Joshua Pickett, had been shot. She told the children to get down and she drove the bus out of the area while she bent over the steering wheel. Ms. McMillan made a left turn onto Cleveland Street and stopped the bus. She went to the back of the bus and found Joshua crying and bleeding from behind his ear. She picked him up, took him to the front of the bus, and held him in her lap. She briefly exited the bus to flag down help and then returned to wait for law enforcement and an ambulance to arrive. On cross-examination, Ms. McMillan testified that the defendant was “real close” to the bus when the shots were fired.

Corporal Amy Muller of the Shreveport Police Department testified that she was called to the scene. A member of the crime scene investigation unit, she documented the damage sustained by the school bus and looked for evidence of gunfire. She took several photographs of the bus which were introduced into evidence. The photographs depict interior and exterior views of a hole in the driver’s side rear window of the bus which is Dsurrounded by radial and concentric fractures extending to the outermost edges where the window is set into the bus’s frame. The photographs also show a dent on the inside wall of the bus just above the driver’s side of the front windshield which Corporal Muller believed to be damage caused by a projectile. Two of the pictures exhibit a console just to the left of and slightly behind the driver’s seat. Just below the console, sitting on a pile of papers, is a projectile. In addition to the projectile recovered on the bus, Officer Brad Sotak of the Shreveport Police Department testified that he recovered three shell casings in the area of the intersection between Baxter and Bellar.

Joshua Pickett, who was nine years old at trial, testified that on the day in question he was sitting on the last seat of the bus, just in front of the window which was struck by the bullet. Prior to boarding the bus on Baxter Street, he said he witnessed a boy and a girl arguing and he saw the boy pulling the girl’s hair. Once on the bus, he saw a figure behind the bus when the gunshots started. Joshua testified that one of the bullets hit the window behind him, sending glass into the back of his neck and causing him to bleed. He remembered being taken to the hospital by ambulance where he was diagnosed with superficial abrasions along the neck, near major arteries. The wounds were treated with antiseptic and dressed. Joshua was released from the hospital.

The lead investigator in the case, Detective Jeff Brown, testified that pursuant to his interviews of Janice and Lajoy Livingston, a photo line-up, including a picture of the defendant, was conducted. Janice and Lajoy | ^Livingston identified the defendant as the perpetrator. Detective Brown obtained an arrest warrant for the defendant and disseminated the information to officers working patrol and to the media.

The defendant turned himself in around 6:30 p.m. that evening and was placed under arrest. After being advised of his rights under Miranda, the defendant gave a tape-recorded statement which was played for the jury. In it, the defendant admitted to an altercation earlier that morning with Lajoy. The altercation ended when he fired a .40-caliber handgun three times; at least the last shot was fired “toward they [sic] way and it hit the bus.” When asked why he shot at Lajoy, he stated that he was “crazy about” her and “guessed” he was trying to scare her. After initially stating that he had fired in Lajoy’s direction, he stated that he was not aiming at Lajoy, but at a gate next door to Lajoy’s home or at the yard. He stated that after firing the last shot, he ran away and stored the gun in an abandoned house. He claimed the gun was not there when he returned to retrieve it.

At trial, the defendant testified on his own behalf. He stated that when he started shooting, he was “full of rage” and did not intend to shoot anybody. He testified that the bus was “all the way past their house like about to turn on Cleveland.” He said that he was aiming his gun in the air as he fired all three shots. On cross-examination he admitted that it was impossible for him to have struck the bus if he was aiming upward on all three shots as he indicated in court. Despite admitting that he was the only person shooting a gun in the immediate vicinity that morning, he had no explanation for how the bus got shot. He retracted the portions of his taped ^statement where he asserted that he aimed at the gate and at Lajoy’s yard, claiming that his comments were the product of the pressure put on him by the interrogating officer.

Rather than convicting the defendant of attempted second degree murder, the jury returned a responsive verdict of guilty of attempted manslaughter. The trial court sentenced him to serve 14 years at hard labor for this offense. The defendant was also found guilty as charged of illegal use of a weapon while committing a crime of violence. The trial court sentenced the defendant to 14 years’ imprisonment at hard labor without benefit of probation, parole, or suspension of sentence for this offense and ordered that both sentences to be served concurrently. The defendant’s post-trial motions in arrest of judgment and for reconsideration of sentence were denied.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence was insufficient to support convictions for both attempted manslaughter and illegal use of a weapon while committing a crime of violence. The defendant claims that the attempted manslaughter conviction required a finding that the defendant had the specific intent to kill Lajoy Livingston when he fired the handgun. That finding, the defendant argues, precludes a determination by the jury that the defendant had the general intent to damage the bus, a necessary element to convict the defendant of illegal use of a weapon while committing aggravated criminal damage to property. This argument is without merit.

17Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,188 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. When there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of 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 ]8566, 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).

The 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. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

To support a conviction for attempted manslaughter, the state must prove the defendant specifically intended to kill the victim and committed an overt act in furtherance of that goal. State v. Mitchell, 39,305 (La.App. 2d Cir.2/17/05), 894 So.2d 1240, writ denied, 2005-0741 (La.6/3/05), 903 So.2d 457. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Martin, 39,846 (La.App. 2d Cir.8/17/05), 913 So.2d 863, writ denied, 2006-0110 (La.6/14/06), 929 So.2d 1267. The determination [ aof whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982).

A violation of La. R.S. 14:94(F) occurs when the defendant intentionally, or through criminal negligence, discharges a firearm, when it is foreseeable that it may result in death or great bodily harm to a human being, and the defendant did so while committing, attempting to commit, conspiring to commit or otherwise trying to get someone else to commit a crime of violence. The crime of violence in the instant case is aggravated criminal damage to property, which is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion. La. R.S. 14:55. The crime of aggravated criminal damage to property requires proof of general criminal intent. State v. Brumfield, 329 So.2d 181 (La.1976). General criminal intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10. Aggravated criminal damage to property is committed upon proof that the accused voluntarily did the act. Brum-field, supra.

Discussion

The defendant argues that his two convictions are mutually inconsistent because he could not simultaneously have had the requisite specific intent to kill Lajoy Livingston and the requisite general intent to commit aggravated criminal damage to property. The intent requirements 1 j nregarding the two separate convictions, as well as the defendant’s actions on the morning in question, do not support this argument.

The evidence in this case shows that on the morning of March 29, 2006, the defendant and victim were walking on Bellar Street while engaged in an argument. The defendant became enraged and pulled a .40-caliber handgun and began shooting. At least one witness, the victim’s mother, saw the defendant pointing the gun at the victim and firing. The defendant, by his own admission, fired at least three times. Contemporaneous to these events, a school bus loaded with children passed the defendant and victim as it traveled down Bellar Street in the same direction in which the defendant was firing. One of the bullets from the defendant’s gun entered the rear window of the bus, traveled the length of the bus and struck the interior wall of the bus just above the driver’s seat. A child sitting on the rear seat of the bus was hit by flying glass when a window was shattered by the bullet. Because of the bleeding, he was taken by ambulance to the hospital where it was determined that he had suffered superficial abrasions to the neck.

Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Robinson, 2002-1869 (La.4/14/04), 874 So.2d 66, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004). The only evidence contradicting the allegation that the defendant aimed his gun at Lajoy and fired repeatedly was the defendant’s own trial testimony that he was aiming upward while firing his gun. That testimony was contradicted by the defendant’s taped statement to law enforcement and was inconsistent with the apparent trajectory of the Inbullet which struck the school bus. The evidence supports a finding that defendant specifically intended to kill Lajoy beyond a reasonable doubt.

After the jury found that he had specific intent to kill Lajoy Livingston, the defendant argues that the jury could not have found the requisite general intent to convict him of illegal use of a weapon while committing aggravated criminal damage to property. To find the defendant guilty on this count, the jury was required to find that the defendant intentionally discharged his firearm under circumstances indicating that he, in the ordinary course of human experience, must have known that it was reasonably certain that one of the bullets would strike the bus, and that it was foreseeable that his action would endanger the lives of the children aboard. Because the crime of aggravated criminal damage to property is a general intent crime, the jury was not required to find that the defendant actively desired to hit the bus, only that hitting the bus was a reasonably certain outcome of his intentional discharge of the handgun.

Evidence was adduced at trial that, at the time of the shooting, the school bus was stopped in the middle of Bellar Street, just past Janice and Lajoy Livingston’s house. The defendant was facing in that direction when he fired his handgun. The pictures of the school bus indicate that its color was the customary conspicuous yellow usually associated with school buses and it was clearly visible to the defendant who was standing less than a block away when he fired his handgun in that direction. The evidence supports a finding that the defendant discharged a firearm in such a manner 11gthat was reasonably certain to cause damage to the school bus and to endanger human life.

The jury’s findings of guilt on these two offenses are not mutually inconsistent. Despite the assertions of the defendant, his actions in engaging in a course of conduct with specific intent (actively desiring a certain outcome) do not absolve him from other consequences which, in the ordinary course of human experience, he should have known were reasonably certain to result from his conduct. As such, viewing the evidence in the light most favorable to the state, a reasonable juror could have concluded beyond a reasonable doubt that the defendant had both the specific intent required to support the attempted manslaughter conviction and the general intent required to support the conviction of illegal use of a weapon while committing a crime of violence.

EXCESSIVE SENTENCE

The defendant argues that the sentences imposed by the trial court are excessive considering the defendant’s age and lack of a criminal record. This argument is without merit.

Legal Principles

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or | ismitigating 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 important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. 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. There is no requirement that specific matters be given any particular weight at sentencing. 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, 2004-0834 (La.3/11/05), 896 So.2d 57, 2004-2380 (La.6/3/05), 903 So.2d 452.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be 114set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App. 2d Cir.1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Discussion

The defendant argues that the mitigating factors regarding his youth and lack of criminal history render the sentences imposed excessive. In imposing sentence, the trial court noted both of the mitigating factors relied on by the defendant. The trial court also noted several aggravating factors including that the defendant used a dangerous weapon in committing the offense, that he endangered human life in doing so, and that he injured an innocent bystander. After weighing these factors, the trial court concluded that any lesser sentences than the ones imposed would deprecate the seriousness of the offenses.

Despite the mitigating factors present in this case, the record supports the trial court’s conclusion that lesser sentences would deprecate the seriousness of the crimes committed by the defendant. The defendant’s disregard for his intended victim, as well as innocent bystanders, evidences |1Bthat he is a serious threat to public safety. While the defendant’s age and lack of criminality weigh in his favor, it is difficult to disagree with the trial court that the seriousness of the crime he committed outweighs the mitigating factors. As discussed earlier, the trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines and there is no requirement that specific matters be given any particular weight. Both sentences were well below the statutory máximums allowed by law and were imposed concurrently. Thus, under the instant circumstances, the trial court did not abuse its discretion in sentencing the defendant.

This assignment is therefore without merit.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences be affirmed.

AFFIRMED.

      . Although the offenses in this case arise from a single course of conduct, the defendant committed two separate, distinct crimes. See and compare State v. Allen, 2001-2494 (La.6/21/02), 824 So.2d 344, and State v. Buttner, 489 So.2d 970 (La.App. 4th Cir.1986), writ denied, 493 So.2d 641 (La.1986).

      . La. R.S. 14:31(B) provides in pertinent part:
      Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.
      La. R.S. 14:27(D) provides that a person convicted of attempting to commit an offense (other than theft or receiving stolen goods, or offenses punishable by death or life imprisonment) shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both. Therefore, a person convicted of attempted manslaughter shall be imprisoned at hard labor for not more than 20 years.
      A conviction for illegal use of a weapon while committing a crime of violence under La. R.S. 14:94(F), without enhanced circumstances, provides a sentencing range of 10 to 20 years, without benefit of probation, parole, or suspension of sentence.