author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Chonita BROWHOW, Appellant.
    No. 41,686-KA.
    Court of Appeal of Louisiana, Second Circuit.
    .Dec. 13, 2006.
    Rehearing Denied Jan. 18, 2007.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, Fred Royce McGaha, Rosalind D. Jones, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and SEXTON (Pro Tempore), JJ.
   DREW, J.

hChonita Browhow was convicted by a jury of one count of attempted cruelty to the infirmed and one count of simple battery. She was sentenced to five years’ imprisonment at hard labor on the conviction for attempted cruelty to the infirm and six months’ imprisonment on the conviction for simple battery. The court ordered the sentences to be served consecutively. The defendant appeals. We affirm.

FACTS

On May 1, 2002, the defendant, Chonita Browhow, was indicted on one count of cruelty to the infirm for the alleged mistreatment or neglect of Theda Norris and another count of cruelty to the infirm for her mistreatment or neglect of Frances Cole. Both victims were residents at The Arbor House and Terrace, an assisted living facility in West Monroe, Louisiana. Starting in 1998 and until her discharge on January 14, 2002, the defendant was a personal care attendant at the facility and, more specifically, in the Alzheimer’s unit of the facility. She worked four days on and three days off on the graveyard shift, which lasted from 11:00 p.m. until 7:00 a.m.

On or about December 24, 2001, Brow-how and two other personal care attendants (Stephanie Riggins and Oniece Williams) were trying to dress Frances Cole, who suffered from Alzheimer’s disease and was being uncooperative. In her attempts to resist, Cole struck the defendant. Williams and Riggins both testified that, in response, the defendant slapped Cole in the face. When Cole struck back, the defendant slapped her again. | ¡When Williams asked the defendant to stop slapping the patient, the defendant left the room.

A week later, on the night of either December 31, 2001, or January 1, 2002, Riggins again worked the graveyard shift with the defendant. According to Riggins, on this particular evening the defendant was caring for Theda Norris, an 81-year-old, non-ambulatory Alzheimer’s patient. When Riggins first observed the defendant that evening, she was preparing to give Norris a shower. Sometime later, she observed the defendant standing by the facility’s back door, which led to an open-air enclosure. Occupants of this enclosure were exposed to the elements but still securely within the facility. Riggins asked the defendant where Norris was and was told that she was outside. When Riggins asked why Norris was outside, the defendant responded that it was because she had been “acting a fool.” Riggins proceeded with her duties and about 15 minutes later observed the defendant bringing Norris back inside. Riggins testified that Norris was in a wheelchair with her head down and her arms crossed in front of her and was wearing only flannel pajamas. Riggins testified that it was very cold on that particular evening. While none of the witnesses unequivocally testified that Norris was unable to walk, Riggins and the facility’s administrator, Betty Grice, both testified that her condition would have prevented her from finding her way outside on her own or back inside on the evening in question.

Neil Shaw, a meteorologist, testified that the average ambient temperature between 10:00 p.m. on December 31, 2001, and 2:00 a.m. on |aJanuary 1, 2002, was 29 degrees Fahrenheit. During the same time frame on the night of January 1, 2002, and early morning of January 2, 2002, the average ambient temperature was 32 degrees Fahrenheit.

After a one-day trial in January 2006, the jury returned a responsive verdict of attempted cruelty to Norris and a responsive verdict of simple battery of Cole. The trial court then ordered the preparation of a pre-sentence investigation report, and the defendant’s sentencing was taken up on May 8, 2006.

At sentencing, the trial court noted that:

• it had reviewed the pre-sentence investigation report containing the defendant’s social, educational, work, family, and criminal histories;
• it also considered the guidelines set forth in La. C. Cr. P. art. 894.1;
• the only applicable mitigating factor set forth therein was the defendant’s lack of a prior criminal history;
• the defendant had two teenage sons residing with her at the time of sentencing;
• the defendant manifested deliberate cruelty to victims, whom the defendant knew to be particularly vulnerable due to their advanced age and infirmity;
• the defendant abused her position in that she violated the trust placed in her by the victims’ families who looked to the defendant to care for their loved ones;
• the defendant was afforded an opportunity to make a statement for the pre-sentence investigation report but declined to do so; and
• the defendant was also afforded an opportunity to address the court at the sentencing hearing, but declined to do so.

Finding that the defendant was in need of correctional treatment, and that a lesser sentence would deprecate the seriousness of the crime, the trial court sentenced the defendant to serve five years’ imprisonment at hard |4labor on the count of attempted cruelty to the infirm and six months’ imprisonment on the count of simple battery, with the sentences to be served consecutively. After the trial court rejected the defendant’s motion to reconsider the sentences, the defendant perfected this appeal, asserting two assignments of error.

Sufficiency of Evidence

The defendant argues that the evidence was insufficient to show that Theda Norris had experienced any pain or suffering as a result of being placed outside by the defendant. Without proof of any pain or suffering, the defendant contends that there is insufficient evidence to support the conviction for attempted cruelty to the infirm.

The state counters by pointing to the evidence of the ambient temperature of 29 degrees Fahrenheit on the evening that the defendant placed Norris outside in her wheelchair clothed only in her pajamas. It also contends that the testimony regarding Norris’ appearance when she was brought back inside with her head down and arms crossed supports the conclusion that the defendant had inflicted suffering.

La. R.S. 14:93.3(A) provided at the time of the crime:

Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, á disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility.

La. R.S. 14:27(A) provided at the time of the crime:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly | [¡toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

“Unjustifiable,” within the meaning of La R.S. 14:93.3, is a term of limitation intended to distinguish that pain and suffering which is an inevitable consequence of care and treatment from that which is not justified by medical needs. State v. Brenner, 486 So.2d 101 (La.1986).

A conviction of an attempted offense must rest upon sufficient proof that the offender actively desired to cause the proscribed criminal consequences to follow his act or failure to act and that the offender committed or omitted an act for the purpose and tending directly toward the accomplishing of his object. State v. Cheatham, 38,413 (La.App.2d Cir.6/23/04), 877 So.2d 164, writ denied, 2004-2224 (La.6/24/05), 904 So.2d 717. Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Knowles, 598 So.2d 430 (La.App. 2d Cir.1992). The determination of 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).

Our jurisprudence relative to review for sufficiency of the evidence is clear.

| fin this case, the direct evidence presented, viewed in the light most favorable to the state, proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that defendant attempted to violate La. R.S. 14:93.3(A). The evidence viewed under the aforementioned standard of review sufficiently proved the defendant intended to mistreat the victim, an aged person, by placing her outside in freezing temperatures, clothed in nothing more than pajamas, for a period of at least 15 minutes. It also is a reasonable inference that this conduct would have caused unjustifiable pain or suffering to the victim. However, whether or not such pain or suffering was actually proven is not relevant to whether the evidence supports a conviction for attempted cruelty to the infirm. The evidence need only be sufficient to prove that the defendant actively desired to cause the proscribed criminal consequences to follow her act or failure to act and that she committed or omitted an act for the purpose and tending directly toward the accomplishing of that object. The despicable actions of the defendant establish specific intent to mistreat the victim. Furthermore, it sufficiently establishes her intent to cause the proscribed pain or suffering to |7the victim, which pain or suffering would not have been an inevitable consequence of the victim’s care and treatment.

The evidence was more than sufficient to sustain the conviction.

Excessive Sentence

The defendant argues that:

• the trial court erred in failing to properly consider the mitigating factors regarding her lack of a criminal history and the hardship her incarceration would have on her children;
• the sentences are disproportionate to the crime in light of sentences imposed for similar convictions in other Louisiana cases;
• the sentences are not tailored to address her specific crime; and
• the trial court erred in failing to give specific reasons for running the sentences consecutively as required by law.

The state argues that the sentences are not excessive because:

• the helpless nature of the defendant’s victims makes the conduct particularly despicable; and
• because the two convictions do not arise out of the same act or transaction or as part of a common scheme or plan, the trial court was well within its discretion in ordering the sentences to be served consecutively.

In December of 2001, La. R.S. 14:35 provided in pertinent part:

Whoever commits a simple battery shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

In January of 2002, La. R.S. 14:93.3(E) provided:

Whoever commits the crime of cruelty to the infirmed, disabled adults, or aged persons shall be fined not more than ten thousand dollars or imprisoned with or without hard labor for not more than ten years, or both.
La. R.S. 14:27 provided at that time:
|8P. Whoever attempts to commit any crime shall be punished as follows:
(3) In all other cases he 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. Our law on review for excessiveness of

sentence is clear.

Prior to imposing sentence, the trial court thoroughly reviewed the pre-sen-tence investigation (“PSI”) report. In doing so, the court noted that the defendant was a high school graduate with some years of college and that she had two teenage children who resided with her. The PSI report indicates that the children were 17 and 18 at the time the report was prepared. The trial court noted that the defendant had been afforded an opportunity to make a statement for the PSI report but declined to do so.

The court also stated the following conclusions:

• the victims were helpless elderly women who had been entrusted to the defendant’s care by their families;
| the defendant “cruelly abused and [betrayed] that trust;”
• maximum sentences are only appropriate for the most serious violations;
• the defendant was in need of correctional treatment best provided by incarceration;
• any lesser sentences than those actually imposed would deprecate the seriousness of the offenses;
• maximum sentences should be imposed on each offense (though we note that no fines were imposed on the defendant); and
• these two sentences should be served consecutively.

In light of the seriousness of these crimes, the harm done to the victims and the lack of remorse shown by defendant, the sentences are not disproportionate to the severity of the offenses nor do they shock the sense of justice.

When consecutive sentences are imposed, the court “shall state the factors considered and its reasons for the consecu-five terms.” State v. Green, 614 So.2d 758, 760 (La.App. 2d Cir.1993). However, as this court has noted previously, the jurisprudence has moved away from requiring remand under certain circumstances when the trial court has imposed consecutive sentences without specifically stating reasons for the consecutive sentences. See State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, State ex rel. Hampton v. State, 2004-0834 (La.3/11/05), 896 So.2d 57, State ex rel. Hargrove v. State, 2004-2380 (La.6/03/05), 903 So.2d 452. The failure to articulate specific reasons for imposing consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Hampton, supra.

[mWhere two offenses are separate and not viewed as a single course of conduct, it is within the discretion of the trial court to order that the terms of incarceration be served consecutively. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868. The trial court did not abuse its great discretion regarding the length and consecutive nature of the sentences imposed.

DECREE

The defendant’s convictions and sentences are AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, DREW and SEXTON, JJ.

Rehearing denied.

CARAWAY, J., would grant rehearing.

      . The statute, R.S. 14:93.3, designates the offense as “cruelty to the infirmed,” an obvious typographical error for "infirm.” See State v. Walker, 37,493 (La.App.2d Cir.8/20/03), 853 So.2d 746, fn. 1, writ recalled, 2003-2871 (La.7/2/04), 877 So.2d 99; Hal Odom Jr., “How Write You Are,” 12 The Bar Review 15 (October 2003).

      . 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. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 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. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.
      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. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

      . A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.
      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 and 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). 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 the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
      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. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Gregory JACOBS, Appellant.
    No. 41,663-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.
    Connie Hanes, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Dale Montgomery, John Michael Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, LOLLEY, and SEXTON (Pro Tempore), JJ.
   BROWN, Chief Judge.

hA jury found defendant, Gregory Jacobs, guilty as charged of forcible rape, a violation of La. R.S. 14:42.1. Defendant has appealed as excessive his 30-year hard labor sentence. Finding no error, we affirm.

Discussion

The evidence presented at trial showed that, on September 7, 2004, the 14-year-old victim was staying home from school because of illness while her mother went to work. The victim knew that her mother’s boyfriend, the defendant, Gregory Jacobs, would be coming to the apartment to pick up her little sister, a child he had fathered with the victim’s mother. The victim testified that when she woke up, defendant had already taken off her pajama bottoms and panties and was putting his penis inside her vagina. The victim stated that she told him to stop and tried to fight him, but he put his entire weight on her so that she could not move. The victim testified that defendant told her that if she would let him continue, he would put money under her pillow. The victim also stated that defendant threatened to kill her if she ever told anyone what he did, and that he would also kill whomever she told. The victim reported the rape to her aunt, who told her mother, and her mother called the police. The victim also testified that defendant had been sexually abusing her since she was nine or ten years old. The state presented forensic evidence showing that defendant’s DNA was found inside the victim’s panties. Defendant did not testify-

When, as in the instant case, a defendant’s motion for reconsideration urges simply that his sentence is excessive, he is relegated to a claim of | ^constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/03), 862 So.2d 1121; State v. Duncan, 30,453 (La.App.2d Cir.02/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.04/06/05), 899 So.2d 733; State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123. As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Brisco, 33,179 (La.App.2d Cir.04/05/00), 756 So.2d 644, writ denied, 00-1478 (La.05/25/01), 792 So.2d 749; State v. Grissom, 29,718 (La.App.2d Cir.08/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991).

In his motion to reconsider sentence, defendant argued that his sentence was constitutionally excessive. At sentencing, the trial court noted that the defendant was 34 years old at the time of the offense and the victim was 14 years old; defendant was single and the father of three children; and defendant had a job as a mechanic. The trial court also considered the facts contained within the PSI report; that the forcible rape statute requires a mandatory sentence; that defendant had an extensive criminal history for domestic violence; that the victim was especially vulnerable to defendant due to her youth; that defendant used his position or status to facilitate the offense; that there was no provocation or justification for his behavior; and that defendant’s conduct resulted from circumstances likely to occur again. 13The trial court found that defendant was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of his offense.

We note that the evidence presented warranted an aggravated rape charge which carried a mandatory life sentence without benefit of parole, probation, or suspension of sentence. On this record, defendant’s sentence is not excessive. While defendant was given a sentence in the upper range for this offense, the sentence is lawful and is neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice. There is no showing of an abuse of the trial court’s discretion in the instant case.

Therefore, defendant’s sentence is AFFIRMED.

      . If the state had pursued the victim’s allegations of ongoing sexual abuse which began when she was nine or ten years old, then a capital verdict would have been a possibility.


text:
    STATE of Louisiana, Appellee v. James BOUDREAUX, Appellant.
    No. 41,660-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      C. Bryan Racer, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Cynthia P. Lavespere, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

|! Defendant, James Boudreaux, was charged by grand jury indictment with 14 counts of video voyeurism, violations of La. R.S. 14:283. Defendant pled guilty to all 14 counts in exchange for the state’s agreement not to charge him as a habitual offender. The trial court sentenced the then 42-year-old defendant to four years imprisonment at hard labor without benefit of probation, parole or suspension of sentence on each count and ordered the sentences to be served consecutively, for a total term of 56 years imprisonment at hard labor without benefit. Defendant has appealed his sentence as excessive. Finding that this 56-year sentence is constitutionally excessive, we vacate the sentence and remand the matter for resentencing.

Facts

During the early part of 2005, the 18-year-old victim lived with defendant, who was her stepfather, in his mobile home in West Monroe. She had lived with him and her mother since she was 11 years old and chose to live with him and his son after her mother and defendant separated in April of 2003. The victim had her own bedroom and bathroom in the trailer. Unbeknownst to the victim, defendant had installed a Radio Shack 2.4 Ghz wireless camera in the entertainment center in the teenager’s bedroom. Defendant connected the receiver for this camera to a video cassette recorder and for four months, he videotaped the victim, sometimes while she was dressing and undressing and at times while she was completely nude.

Un April 2005, the victim knocked on the door and entered defendant’s bedroom to give him some cigarettes she had picked up from the store for him. She saw her stepfather standing naked in front of his television. He hurriedly jumped under the covers of his bed and turned.off the tape he had been watching, but not before the victim saw her bedroom on the screen. Later, when defendant was not home, she found videotapes in defendant’s bedroom, the contents of which depicted her and several friends in various stages of undress. She then found the camera defendant had installed in her bedroom. The victim disconnected the video camera and confronted her stepfather. Defendant’s response was that it was his trailer, and he could film whatever he wanted.

After being kicked out by defendant several months later, the victim contacted the sheriffs office to get assistance in retrieving her personal items from the trailer. She told police about the video camera and tapes and a search warrant for defendant’s residence was obtained. During the search, defendant told an officer that the tapes and camera were locked in an outside storage building. Another search warrant for that building was obtained, and the tapes were recovered. A female deputy viewed the tapes, which depicted the victim with her breasts and/or pubic area exposed. Defendant was arrested on six counts of video voyeurism; however, a grand jury indicted defendant on 14 counts.

Defendant, who had a prior felony conviction for attempted possession of cocaine which occurred in 1992, pled guilty to all 14 counts without a sentencing agreement in exchange for the state’s promise not to | ¡¡charge him as a habitual offender. The court conducted a sentencing hearing in March 2006, at which time it considered a pre-sentence investigation report and the testimony of several witnesses.

Ouachita Parish Sheriffs Office Sergeant Tammy Philley testified that she viewed the tapes taken from defendant’s home and noted that there was a total of six different nude or partially nude young women shown on the tapes. Officer Phil-ley said that during the course of the investigation, they found no evidence that defendant had threatened bodily harm to any of the victims or had tried to influence or coerce the victims into not prosecuting the case.

The court also heard testimony from Susan Wilson, who identified herself as a past victim of video voyeurism. Defendant objected to the admission of Ms. Wilson’s testimony as an expert witness; this objection was overruled by the court after hearing Ms. Wilson’s description of her experience as a victim and an activist in having video voyeurism made a criminal offense in Louisiana. Ms. Wilson described the severe psychological damage video voyeurism had caused her and attributed a variety of debilitating psychological conditions to the offense.

On behalf of defendant, Bruce Shelton, a superintendent who had supervised defendant at one of his jobs, testified that he had known defendant for 15-20 years and that defendant had a good work ethic, was dependable and well-liked. Shelton knew that defendant had a criminal record but was unfamiliar with the details. Another supervisor with a | ¿different employer, Kenneth Harrell, described defendant as responsible, honest and hard-working.

Defendant’s nephew, Winfred Bou-dreaux, II, testified that he had known his uncle for 35 years and opined that his uncle was a good man who had always helped him when he needed assistance. Defendant’s brother, Michael Boudreaux, testified that he knew his brother well and described him as a “good-hearted guy.”

Defendant testified on his own behalf at the sentencing hearing. He stated that he initially bought the video camera to keep track of who was in and out of his house while he was working out of town, but the situation “got out of hand.” Defendant said that he was very sorry for what he had done, and attributed much of his conduct to a drug and alcohol problem. He testified that he was an alcoholic and was addicted to painkillers. His adult criminal record as reported in the PSI is as follows:

Urinating in Public 05-03-80
DWI, Second Offense 08-07-83
Introduction of Contraband (marijuana) into Correctional Facility 06-03-84:
Illegal Use of Weapons Simple Criminal Damage to Property 08-25-89
Simple Battery 12-19-89
Simple Battery Simple Criminal Damage to Property 12-22-90
,10-16-92 Attempted Possession of Cocaine
1-01-99 DWI, First Offense

Finally, the victim made a brief statement and filed a written statement into the record. She stated that the offense had a devastating effect upon her, particularly in that she thought of defendant as a father. The victim related that she was afraid to be undressed in her home or to go to school and that she felt as though she could not trust anyone.

The court noted that the videotapes made by defendant each contained many segments showing the victim undressed and that other tapes showed at least six other young females in various stages of undress. The court also gave lengthy and thorough consideration of the facts in light of the factors set forth in La. C. Cr. P. art. 894.1. In deciding to impose consecutive rather than concurrent sentences, the court observed:

Defendant was afforded considerable leniency'via no habitual offender [proceeding] being pursued and having only 14 counts charged. The evidence present and the strength of the case, the large and numerous counts of possible violations [sic]. Maximum sentences are appropriately imposed in cases involving the most serious violations of the described offenses for the worst offender.... Consecutive sentences may be imposed and may be justified when due to his or her past conduct or repeated offenses over an extended period of time and if the defendant poses an unusual risk of harm or safety to the public.

The court then noted that it found defendant’s expressions of remorse to lack credibility. The court sentenced defendant to four years at hard labor on each count and ordered the sentences to run consecutively. The court also ordered defendant to pay a $2,500 fine, in default of which he was to serve nine months in jail or perform 400 hours of community service | Rwhen released. Defendant filed a motion to reconsider sentence, which was denied. This appeal ensued.

Discussion

Excessive Sentence

Louisiana Revised Statute 14:283(A) provides, in part, that:

A. Video voyeurism is:
(1) The use of any camera, videotape, photo-optical, photoelectric, or any other image recording device for the purpose of observing, viewing, photographing, filming, or videotaping a person where that person has not consented to the observing, viewing, photographing, filming, or videotaping and it is for a lewd or lascivious purpose.
B....
(3) Whoever commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any vaginal or anal sexual intercourse, actual or simulated sexual intercourse, masturbation, any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva, or genitals shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than one year or more than five years, without benefit of parole, probation, or suspension of sentence.

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-|72574 (La.01/14/03), 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.01/15/02), 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.04/02/97), 691 So.2d 864.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single cause of conduct are not mandatory, and it is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App. 2d Cir.11/01/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App. 2d Cir.04/05/00), 756 So.2d 1218, writ denied, 00-1572 (La.03/23/01), 787 So.2d 1010; State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988).

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Mitchell, 37,916 (La. App.2d Cir.03/03/04), 869 So.2d 276, writ denied, 04-0797 (La.09/24/04), 882 So.2d 1168, cert. denied, 543 U.S. 1068, 125 S.Ct. 905, 160 L.Ed.2d 801 (2005); State v. Maxie, 30,877 (La.App.2d Cir.08/19/98), 719 So.2d 104.

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

The jurisprudence cited in State v. Hampton, 38,017 (La.App.2d Cir.01/28/04), 865 So.2d 284, writ denied, State ex rel. Hampton v. State, 04-0834 (La.03/11/05), 896 So.2d 57, writ denied, State ex rel. Hargrove v. State, 04-2380 (La.06/03/05), 903 So.2d 452, concludes that the failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences.

|9In attacking his consecutive hard labor sentences as excessive, defendant points out that La. R.S. 14:283, the video voyeurism statute, in paragraph B(4), recognizes that the worst offenders are those who commit the crime against children and because his victim was not a minor, he is not the worst type of offender. He claims that the offense of video voyeurism is not a rape or sexual assault and in many cases such severe sexual offenders (rapists and child molesters) receive substantially smaller sentences than the one imposed in his case.

Defendant was 42 years old at the time of sentencing. His criminal history consists primarily of drug and alcohol related offenses. In fact, his conviction in 1984 of bringing marijuana into a correctional facility occurred while he was serving time on the weekends for DWI. Defendant’s last violent offense was a conviction for simple battery in 1990, which arose out of an argument with his sister.

Any sentence for video voyeurism under La. R.S. 14:283 B(3) must be served without benefit of parole, probation, or suspension of sentence. As a practical matter, 14 four-year terms without benefit of parole to be served consecutively is a life sentence. Even as a second felony offender, defendant would have been subject to a fixed term.

Although defendant’s video voyeurism does not involve any physical contact or violence, it is nonetheless a reprehensible violation of a personal nature. At 18 years old, the victim may not legally have been a minor, but |inshe was a young and callow girl. Defendant perpetrated the crime against someone he had essentially raised as a daughter. According to the victim, her mother and defendant began dating when she was eight years old and married when she was eleven. After the parties separated in April of 2003, the victim lived with her mother for approximately four months then moved in with defendant. She lived with defendant and defendant’s son until June 2005 when defendant ordered her to leave.

The experience has had and undoubtedly will continue to have a significant effect on the victim. However, defendant’s activities all formed a part of a single scheme or plan, something that the trial court did not adequately address at sentencing. While it is within the trial court’s discretion to impose sentences consecutively in an appropriate “scheme or plan” case, in the instant matter, the imposition of a 56-year term without parole is out of proportion to the offense and appears to impose a purposeless and needless infliction of pain and suffering.

Louisiana Code of Criminal Procedure article 881.4(A) provides:

If the appellate court finds that a sentence must be set aside on any ground, the court shall remand for resentencing by the trial court. The appellate court may give direction to the trial court concerning the proper sentence to impose.

The trial court should reevaluate and address which of these counts represent a separate and distinct crime and impose consecutive and concurrent terms in a more appropriate fashion.

| nAdmissibility of Susan Wilson’s Testimony

Defendant’s last assignment of error is that the trial court should not have heard testimony from Susan Wilson, a victim of video voyeurism, under the auspices of receiving expert testimony.

This was a sentencing hearing, not a trial, and the court stated that it was not giving Ms. Wilson’s testimony any more weight than the testimony of any other witness. The court observed that Ms. Wilson’s testimony about the effect of video voyeurism upon her was cumulative of what the victim in the instant case reported as the effect that defendant’s video voyeurism had upon her. We agree. Ms. Wilson’s testimony simply supported the victim’s statement and was an expression of how she felt after experiencing a similar despicable intrusion on her privacy.

Conclusion

For the reasons set forth above, defendant’s sentence is vacated and the matter is remanded to the trial court for resen-tencing.

      . Other tapes allegedly showed some of the victim’s young female friends partially or completely naked and one tape purportedly depicted defendant masturbating while holding a pair of the victim’s underpants up to his face.

      . A sentence imposed for a violation of this offense, La. R.S. 14:402 (up to five years imprisonment), does not necessarily have to be served at hard labor, so it is classified as a "relative felony.” Defendant was sentenced to 90 days in the parish jail upon conviction. An offense's status as a relative felony does not prevent it from being considered as a prior felony for habitual offender purposes; however, the cleansing period for its use as a predicate offense in this case had elapsed. See State v. Burns, 29,632 (La.App.2d Cir.09/24/97), 699 So.2d 1179, reversed on PCR on other grounds and remanded for new trial, 35,267 (La.App.2d Cir.10/31/01), 800 So.2d 106.

      . The victim in this case was 18 years old; if she had been 16 years old, La. R.S. 14:283(B)(4) provides:
      (4) Whoever commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any child under the age of seventeen with the intention of arousing or gratifying the sexual desires of the offender shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years without benefit of parole, probation, or suspension of sentence.

      . We note that if this case had proceeded to trial a significant issue would have been how to distinguish the 14 separate counts. In this case, however, the 14 counts were agreed to by defendant when he pled guilty.

      . Louisiana Code of Evidence article 702 provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as a expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
      The standard for accepting expert testimony was set forth in State v. Foret, 628 So.2d 1116 (La.1993), wherein the Louisiana Supreme Court adopted the test set forth in Daubert v. Metrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).


text:
    ALGABAL, INC., Plaintiff-Appellee v. CENTRAL OIL AND SUPPLY CO., Defendant-Appellant.
    No. 41,656-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.
    Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P., by Wendy E.W. Giovin-go, Monroe, for Appellant.
    Mulhearn & Smith, by Leroy Smith, Jr., Tallulah, for Appellee.
    Before BROWN, LOLLEY, and SEXTON (Pro Tempore), JJ.
   BROWN, Chief Judge.

Un this breach of contract action, defendant, Central Oil & Supply Corporation, appeals from the trial court’s judgment awarding plaintiff, Algabal, Inc., damages and further denying defendant’s request for damages for lost gasoline sales and injury to the leased property. For the reasons set forth below, the judgment of the trial court is affirmed.

Facts

On May 1, 2002, plaintiff, Algabal, Inc., leased from defendant, Central Oil & Supply Corporation, two convenience store properties, one in Ruston, which is in Lincoln Parish, and the other in Richwood, which is in Ouachita Parish. The lease agreement provided that Algabal would purchase from Central Oil the inventories in the stores, and Central Oil would provide gasoline on consignment and collect the proceeds from the gasoline sales in lieu of rent. In 2004, Central Oil filed eviction proceedings on the Richwood property in Ouachita Parish. This action caused the parties to begin negotiations to settle their differences. The parties agreed to terminate both leases. Agreements were signed on June 28 and 29, 2004, at the law offices of Algabal’s attorney in Madison Parish. The agreements provided for Central Oh’s purchase of Algabal’s inventory located at each property “at retail prices minus twenty percent in accordance with standard industry practices.” At Al-gabal’s insistence, the agreements set specific dates for valuation of the inventories.

T.H. Jones valued the inventory at the Richwood store on June 29, 2004, and after some negotiations, Central Oil paid Alga-bal, and the parties agreed, via a “Hold Harmless and Management Agreement,” that AANH, |2Inc., would be allowed to manage the Richwood store under Alga-bal’s operating permits until AANH, Inc., could obtain its own permits.

The Ruston termination agreement contained language not found in the Richwood termination agreement. In particular, this language stated that:

Inventory shall be taken on the 6th day of July, 2004, at'_a.m. and paid for immediately thereafter. Gasoline shall be paid out of escrowed monies prior to disbursement. (Emphasis added).

The Ruston agreement also provided that:

This agreement shall be effective the date AANH, Inc. receives its permits from Alcohol and Beverage Control and obtains all other necessary permits as may be required. (The Effective Date).

We note, however, that AANH, Inc., backed out of its agreement to take over the Ruston store.

On July 6, 2004, at Algabal’s direction, an inventory of the Ruston premises was conducted by T.H. Jones. The value placed on the inventory by Mr. Jones was $101,803.59.- Alleging that Central Oh breached the terms of the contract by not appearing for the inventory and immediately paying thereafter, Algabal, the next day, July 7, 2004, instituted the instant action in Madison Parish against Central Oil, seeking the amount as appraised by T.H. Jones for the inventory in the Ruston convenience store. At this time, Algabal closed and abandoned the store. Testimony, however, indicated that Algabal continued to pay the utility bill for two or three months thereafter.

| ^Central Oil apparently did nothing until September 2, 2004. At that time, Central Oil had Barbara Whittington conduct a second inventory. Ms. Whittington valued the inventory at $66,101.34. Ms. Whitting-ton testified that the store was overstocked and took into account that items were overpriced. She testified that typically a store of this size would maintain an inventory of $45,000 to $50,000.

In its answer and reeonventional demand filed on September 10, 2004, Central Oil sought damages arising out of Alga-bal’s abandonment of the Ruston property, including but not limited to lost profits from gasoline sales and expenses necessary for maintenance and repair of the premises. Five days later, Central Oil filed an action in Lincoln Parish seeking to evict Algabal from the Ruston property. A judgment of eviction was rendered on October 21, 2004, and a writ of sequestration was issued and executed by the Lincoln Parish Sheriffs Office. Central Oil was deemed the keeper of the sequestered property; all inventory which was not spoiled remained under sequestration. At this time Central Oil finally took possession of the property.

A bench trial was held on September 29, 2005, and on January 20, 2006, the trial court rendered judgment in favor of Alga-bal and against Central Oil ordering defendant to pay to Algabal $38,881.07, together with legal interest thereon from date of judicial demand. This represents Barbara Whittington’s valuation, $66,101.34, less 20 percent or $13,220.27, which is $52,881.07, less a credit of $14,000 owed Central Oil for gasoline sales. Thus, the judgment against Central Oil was for $38,881.07. Judgment in |4favor of Central Oil was rendered maintaining its writ of sequestration on the movable property in the Ru-ston convenience store and recognizing its lessor’s privilege thereon. Nothing was mentioned in the trial court’s opinion or judgment concerning Central Oil’s claim for lost income or maintenance and repair expenses. We note that in its reconven-tional demand Central Oil only prayed for a recognition of its writ of sequestration and its privilege.

It is from this judgment that Central Oil has appealed.

Discussion

The Value of the Inventory

A district court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Under the manifest error standard, the criterion is whether the trial court’s findings are reasonable; even if the appellate court feels its own evaluation of the evidence is more reasonable, the trial court’s findings cannot be reversed if they are, in fact, reasonable. Lewis v. State through Department of Transportation and Development, 94-2370 (La.04/21/95), 654 So.2d 311. In other words, the appellate court may not reverse simply because it is convinced that had it been sitting as a trier of fact it would have ruled differently. Orea v. Scallan, 32,622 (La.App.2d Cir.01/26/00), 750 So.2d 483. A finding of fact by a trial court should be upheld unless it is Rclearly wrong. Madison v. Thurman, 32,401 (La.App.2d Cir.10/27/99), 743 So.2d 857.

That Central Oil was contractually bound to purchase the inventory in the Ruston Store is not disputed.

What is controverted by Central Oil is the appropriate value of the merchandise in the Ruston store. The trial court considered three possible values for the inventory: the July 6, 2004, appraisal by T.H. Jones in the amount of $101,803.59; the September 2, 2004, appraisal by Barbara Whittington in the amount of $66,101.34; and Ms. Whitting-ton’s testimony that the typical value of an inventory for a store the size of the Ruston store was between $45,000 and $50,000. Central Oil argues that because plaintiff “stuffed” the store, that is, that the inventory tripled in one month between June and July 2004, and inflated the prices of merchandise, the court should have used the typical inventory for a store of that size. According to defendant, the “usual” inventory was what was contemplated in the phrase “standard industry practices” found in the parties’ agreement.

The trial court, however, found that Barbara Whittington’s estimate most accurately reflected the inventory value that Central Oil owed to Algabal. The trial court based this conclusion in part on consideration of T.H. Jones’ testimony that the store was “loaded,” the photos that showed merchandise stacked high in the windows and in the aisles, and the testimony of Ms. Whittington that the marked prices of many of the items were inflated. Further, the court noted that when Algabal first entered into the Ruston lease, it paid Central Oil approximately $60,000 for the | (¡inventory. If $60,000 was a reasonable price for stocking a store in 2002, then $66,101.34 would not be an unreasonable price for a stocked store in 2004. The trial court’s judgment was certainly reasonable and based on evidence, and therefore will not be disturbed by this court. In fact, the trial court rejected Algabal’s appraiser’s valuation and accepted the estimate of Central Oil’s appraiser.

Damages for Loss of Gasoline Sales and Property Damages

Central Oil argues that the trial court erred in not awarding damages for lost gasoline sales and spoiled food after Alga-bal ceased to operate the Ruston store. Central Oil does not, however, dispute the trial court’s ruling that the lease termination agreement went into effect on July 6, 2004.

The lease termination agreement’s purpose was to free Algabal of the duty to operate the store, and to allow Central Oil total access to the premises without interference from its previous lessee, Algabal. Plaintiff had no duty to continue operations after the termination agreement until Central Oil got around to operating the store. We note that Algabal continued to pay the electric bill for a couple of months after ceasing operations of the Ruston store. The trial court found that any damages Central Oil suffered by loss of sales, food spoiling, or neglect of the property after July 6, 2004, were due to Central Oil’s failure to fulfill its obligations pursuant to the termination agreement, and the fact that neither party took reasonable actions to mitigate damages caused by the resulting standoff. The record certainly supports this conclusion, and we will not secondguess the trial court on this issue.

Conclusion

For the reasons set forth above, the judgment of the trial court ordering Central Oil to pay Algabal $38,881.07 for the cost of the inventory and denying Central Oil’s request for damages, is affirmed. Costs of appeal are to be borne by appellant, Central Oil.

AFFIRMED.


author: LOLLEY, J.

text:
    Jimmy Lee PIERCE, Plaintiff-Appellee, v. Fern Ellen Ainsworth PIERCE, Defendant-Appellant.
    No. 41,718-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      William Alan Pesnell, for Appellant.
    John Rettiger Herzog, Shreveport, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| defendant, Fern Ellen Ainsworth Pierce, appeals a judgment from the First Judicial District Court, Parish of Caddo, State of Louisiana, which after a bench trial determined interim and permanent spousal support. For the following reasons, we affirm.

FACTS

Fern and Jimmy Pierce separated after 44 years of marriage. Fern and Jimmy were 65 years old when the divorce was granted, both free of fault, on March 23, 2005. Beginning in 1975, Jimmy, a master plumber, and Fern earned their living from their business, Jimmy L. Pierce Plumbing and Heating Co., Inc., until it ceased to be a formally working corporation in 2001. In 2002, Fern and Jimmy started working for D & J Pierce, Inc., a company which was incorporated by their son and had received assets from the former Jimmy L. Pierce Plumbing and Heating Co., Inc. Due to financial hardship, the son was unable to pay any salary to his parents after March 31, 2005. Although Jimmy retired, he continued to work for his son unpaid and was provided with a truck, gasoline, and a cell phone.

At the time of the trial for spousal support, Jimmy was drawing $1,275.00 per month and Fern was drawing $774.00 per month both from Social Security benefits. The trial court noted that a partition of the couple’s assets had not yet occurred. In awarding retroactive interim spousal support the trial court took into consideration Jimmy’s earning capacity and awarded Fern the sum of $962.96. However, based on only the current income from Social Security the trial court awarded Fern $425.001 ¡>per month in permanent periodic spousal support. Fern now appeals the permanent periodic spousal support award.

LAW AND DISCUSSION

Fern contends that the trial court erred in failing to consider Jimmie’s earning capacity and therefore awarded an inadequate sum for permanent periodic spousal support.

Once freedom of fault is established, the basic tests for the amount of spousal support are the needs of that spouse and the ability of the other spouse to pay. La. C.C. arts. 111, 112; Roan v. Roan, 38,383 (La.App.2d Cir.04/14/04), 870 So.2d 626. The award for final periodic spousal support is governed by La. C.C. art. 112, which states in pertinent part:

B. The court shah consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.

The eight specific factors listed in La. C.C. art. 112 are not exclusive. The relative financial positions of the parties and the standard of living | ¡¡during the marriage are not listed in La. C.C. art. 112 but can be relevant factors. Article 112 also limits the amount to not exceed one-third of the obligor’s net income. The trial court is vested with great discretion in making post-divorce alimony determinations, and its judgment will not be disturbed absent.a manifest abuse of discretion. Roan, supra.

Fern argues that the trial court should have considered Jimmy’s earning capacity, as it did for interim spousal support, resulting in an increased sum of permanent spousal support. Fern contends that since Jimmy is in good health and continues to work and perform physical labor associated with the work he was doing as a plumber, earning capacity should have been considered.

The trial court questioned Jimmy’s ability to maintain an earning capacity given his age, high blood pressure, and retirement status. Since there was no proof of other income, the trial court determined the amount of $425.00 per month based only on his Social Security benefits.

Our review of the record, as noted by the trial court, reveals that Jimmy and Fern Pierce fell onto some hard times due to bad investments while doing business as Jimmy L. Pierce, Plumbing and Heating Co., Inc. resulting in much of their assets being encumbered by a sizable judgment. Furthermore, while the son has been operating the business, other issues arose and he was unable to pay his parents a salary due to the poor financial state of the business. Because a partition of the community assets has not yet occurred, we cannot look to the potential earnings from the various pension and retirement funds alluded to by Jimmy.

Lit is clear that Fern is in financial need and unable to work in light of her poor health. However, it is also apparent that while Jimmy can work, he is able to do limited physical labor and helps his son oftentimes in a supervisory capacity. The trial court explained that there is no way to determine how long Jimmy could work and did not think it appropriate to impute a salary for the purposes of permanent periodic spousal support. The trial court thoroughly reviewed all factors involved and relevant case law, in addition to extensive factual findings at the conclusion of the hearing. Although we recognize Fern’s necessitous circumstances, we do not find that the trial court was manifestly erroneous in awarding $425.00 for permanent periodic spousal support.

CONCLUSION

For the foregoing reasons, we affirm the amount for permanent periodic spousal support set forth by the trial court. Costs of this appeal shall be split equally among the parties.

AFFIRMED.


author:
SEXTON, J.
      DREW, J.,

text:
    David HAYES and Tammy Hayes, Plaintiffs-Appellants v. GALLAGHER BASSETT SERVICES, INC. and Columbus Insurance Company, Defendants-Appellees.
    No. 41,579-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Dollar Laird, L.L.P., by Johnny E. Dollar, Monroe, for Appellants.
    Kennon, Odom & Dardenne, by John David Ziober, Baton Rouge, for Appellees.
    Before STEWART, DREW & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

| jThis appeal presents the recurrent question of whether an employee has his exclusive remedy in workers’ compensation for an employer’s alleged arbitrary refusal to pay for medical treatment recommended by the employee’s physician. For the reasons stated herein, we conclude that the trial court correctly granted an exception of no cause of action in favor of the employer. The judgment of the trial court is, therefore, affirmed.

FACTS

Plaintiff, David Hayes, was involved in an automobile accident in September 2003 while in the course and scope of his employment for Community Coffee Co., Inc. Mr. Hayes alleged that the accident caused injuries to his thoracic spine and that, despite the recommendation of his treating physician for a kyphoplasty procedure, Defendants (Community’s insurer and a third-party administrator for Community’s workers’ compensation coverage) refused to approve the procedure. Mr. Hayes asserted that this refusal was arbitrary and capricious and reduced his chance of recovery significantly, if not completely. He further alleged that, as a result of the employer’s failure to approve the procedure, he faced more serious surgical intervention as a method of treatment and that his disability was likely permanent.

Defendants filed a peremptory exception of no cause of action asserting that Mr. Hayes’ exclusive remedy was to seek workers’ compensation benefits and, in the event of arbitrary refusal to pay the benefits or medical treatment expenses, to demand penalties and attorney 12fees as provided in workers’ compensation law. The trial court granted the peremptory exception and this appeal followed.

DISCUSSION

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Hodges v. Bossier Medical Center Healthcare Foundation, 33-472 (La.App.2d Cir.6/21/00), 764 So.2d 245, citing Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885. The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to the plaintiff if those facts are proved at trial. Hodges, supra, citing Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La.1993). In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. Hodges, supra.

The narrow issue in this case, as succinctly stated by the trial judge in his oral ruling, is whether an injured employee has a tort cause of action against his employer for refusing to authorize necessary medical treatment when the refusal causes harm not considered to be fatal and/or life-threatening to the employee or whether the employee is restricted solely to the remedies available under the Louisiana Workers’ Compensation law. This issue harkens back to the supreme court’s decision in Weber v. State, 93-0062 (La.4/11/94) 635 So.2d 188, and its progeny. In Weber, the supreme court carved out a narrow exception to the general rule that the injured employee’s only recourse against the employer lies in workers’ compensation. The Weber court held that the workers’ compensation act’s exclusive remedy of penalties and attorney fees for an employer’s intentional and arbitrary refusal to provide medical treatment to a compensation victim does not encompass the situation where the employer knew to a substantial certainty that the refusal would cause death.

Weber was examined and applied by the supreme court in Kelly v. CNA Ins. Co., 98-0454 (La.3/12/99), 729 So.2d 1033, where an exception of no cause of action was held proper in an employee’s tort action against his employer asserting that the employer’s abrupt and arbitrary termination of the employee’s workers’ compensation benefits resulted in the employee’s severe depression, a nonlife-threatening condition.

In the case sub judice, Mr. Hayes argues that Kelly left open the question of whether or not a severe worsening of a condition that is nonfatal and/or nonlife-threatening can satisfy the Weber requirements to provide the employee a remedy outside of workers’ compensation. Weber and Kelly have spawned numerous cases addressing this issue in the various appellate courts of the state, with arguments identical to Mr. Hayes’ being advanced. This court has consistently held that there is no cause of action in tort for an injured employee against the employer where the alleged arbitrary and capricious refusal to approve and pay for medical treatment resulted in |4something much less than a fatal and/or life-threatening condition. Specifically, in Dupree v. Dixie Carbonic, Inc., 35,968 (La.App.2d Cir.5/10/02), 817 So.2d 484, writ denied, 02-1642 (La.11/15/02) 829 So.2d 425, this court followed Kelly, supra, and held that an employee’s exclusive remedy was in workers’ compensation for his claim that the employer and its insurer had arbitrarily refused to pay for a recommended surgical procedure for a back injury; the plaintiff had alleged that the delay in surgery lessened his chances for a successful result and forced him to endure excruciating pain. See also Hodges, supra, and Chase v. Louisiana Riverboat Gaming Partnership, 31,610 (La.App.2d Cir.9/22/99), 747 So.2d 115.

After a de novo review of the peremptory exception of no cause of action in this case, accepting the facts pled in the petition as true, we conclude that the trial court correctly granted the exception of no cause of action. Mr. Hayes’ condition, while serious and painful, is not life-threatening. We find, as we did in Chase, Hodges, and Dupree, that the facts of this case are more in line with Kelly rather than Weber; and, therefore, we further find that Mr. Hayes’ exclusive remedy is in workers’ compensation.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at Appellants’ costs.

AFFIRMED.

DREW, J., dissents with written reasons.

DREW, J.,

dissenting.

hMr. Hayes is facing a lifetime of pain, with little or no hope of recovery from his injuries. The arbitrary lack of treatment materially worsened his condition. With respect, I dissent, finding:

1. That the unusual facts of this case merit a reasonable extension of the Kelly rationale, thereby allowing the plaintiff his day in court; and

2. The plaintiffs evidence should be tested by a motion for summary judgment, rather than an exception of no cause of action. See Chief Judge Brown’s dissent in Dupree, supra.

      . For a very thorough review of Weber, Kelly and their treatment by the various circuits, see this court’s discussion in Hodges, supra.


author: THIBODEAUX, Chief Judge.

text:
    Joseph and Beverly BUTCHER v. KEITH HEBERT CARPENTRY/VINYL SIDING, INC.
    No. 06-672.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 2006.
    James Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, for Plaintiffs/Respondents, Joseph Butcher and Beverly Butcher.
    Charles R. Sonnier, Abbeville, LA, for Defendant/Applicant, Keith Hebert.
    Gregory Paul Touchet, Lafayette, LA, for Defendant/Respondent, Chad Lang-ham.
    Cole J. Griffin, Sonnier Law Firm, Ab-beville, LA, for Defendant/Applicant, Keith Hebert.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION. Judges.
   THIBODEAUX, Chief Judge.

hThe defendant-applicant, Keith Hebert (Hebert), filed a motion in the trial court to have his corporation, Keith Hebert Carpentry/Vinyl Siding, Inc. (the Corporation), reinstated to active status for the purpose of resolving ongoing litigation. The Corporation had been dissolved by Hebert, in accordance with the affidavit procedure set forth in La.R.S. 12:142.1, while a lawsuit against the Corporation and the Corporation’s compulsory, recon-ventional demand were pending in the trial court. The trial court denied the motion and Hebert now seeks supervisory review of the trial court’s ruling. We find that the reinstatement of the Corporation for the purpose of maintaining its pending litigation, which was instituted prior to the Corporation’s voluntary dissolution, is a sufficient justification for reinstatement. Therefore, we reverse and direct the trial court to issue an order directing the Secretary of State to reinstate the Corporation.

I.

ISSUE

Did the trial court err in denying Hebert’s request to reinstate his corporation for the sole purpose of prosecuting the corporation’s unresolved claims that were instituted prior to the corporation’s voluntary dissolution?

II.

FACTUAL BACKGROUND

On February 25, 2000, Joseph and Beverly Butcher sued the Corporation for damages arising out of the construction of their home. The Corporation responded by fifing a reconventional demand against the Butchers, alleging breach of contract. Although the litigation had not yet been resolved, on March 13, 2001, | .¡Hebert dissolved the Corporation by affidavit, pursuant to the summary procedure permitted by La.R.S. 12:142.1.

On December 13, 2005, four years after the dissolution, the Butchers amended their suit and added Hebert, individually, as a defendant in the pending litigation. Shortly thereafter, on January 2, 2006, the Corporation, and later, Hebert, filed a motion to have the Corporation reinstated. He claimed that the reinstatement was needed so that the Corporation could maintain its pending lawsuit in its name. He further explained that the act of voluntarily dissolving the Corporation prior to resolution of the litigation was an “inadvertent” act carried out due to “the ill advice of the Corporation’s CPA.” After a contradictory hearing on the motion, the trial court denied the motion, finding that Hebert was impermissibly seeking the reinstatement of the Corporation to avoid the potential for personal liability in the pending action.

We consider this application for supervisory review to address the issue of whether the trial court erred in failing to recognize that the Corporation’s desire to maintain its litigation, that was filed before the dissolution occurred, is a lawful and valid business purpose that warrants the reinstatement of the Corporation to active status.

III.

LAW AND ARGUMENT

The Louisiana Business Corporation Law (LBCL) provides for the voluntary or involuntary dissolution of corporations. La.R.S. 12:141. This case involves the voluntary dissolution of a corporation. There are two procedures | ¡¡available for the voluntary dissolution of a corporation. La. R.S. 12:142; La.R.S. 12:142.1. Section 142(A) authorizes the commencement of voluntary dissolution of a corporation by authorization of the majority of the shareholders or, if there are no shareholders, by all of the incorporators. Section 142.1 allows for dissolution by affidavit. This is the simplest dissolution procedure, requiring only an attestation in the form of an affidavit by the shareholders or incorpo-rator, stating that the corporation is no longer doing business and owes no debts, and requesting that the corporation be dissolved. The statute specifically states:

§ 142.1. Dissolution by affidavit
A. In addition to all other methods of dissolution, if the corporation is not doing business and owes no debts, it may be dissolved by filing an affidavit with the secretary of state executed by the shareholders, or by the incorporator if no shares have been issued, attesting to such facts and requesting that the corporation be dissolved. Thereafter, the shareholders, or the incorporator if no shares have been issued, shall be personally hable for any debts or claims, if any, against the corporation in proportion to their ownership in the shares of the corporation.
B. The secretary of state shall reinstate a corporation which has been dissolved pursuant to this Section only upon receipt of a court order directing him to so reinstate the corporation.

La.R.S. 12:142.1.

The statute clearly imposes personal liability on a shareholder or incorporator for the pending claims of corporation once dissolution by affidavit has occurred. Id; see also, In re Reinstatement of North La. Well Serv. Co., Inc., 597 So.2d 160 (La.App. 2 Cir.1992). The statute also clearly states that the court may order reinstatement of a corporation after dissolution. Id. However, the legislature has failed to offer any guidance to the courts as to what evidence is necessary or sufficient for a court to order the reinstatement, and has not provided any language 14addressing the subsequent effects, if any, of corporate reinstatement on La.R.S. 12:142.1(A)’s automatic imposition of personal liability.

In this case, Hebert contends that the facts urged in support of the reinstatement of his Corporation’s status are the same as those that were accepted as a valid basis for reinstatement by the first circuit in In re Reinstatement of Venture Associates, Inc. of La., 04-439 (La.App. 1 Cir. 2/11/05), 906 So.2d 498. In Venture, the first circuit affirmed the trial court’s decision to order reinstatement of a corporation that had been voluntarily dissolved by affidavit by its shareholders. Id. The court found that the shareholders’ subsequent desire to maintain a lawsuit that had been filed by the corporation prior to the dissolution was a valid and lawful purpose for ordering reinstatement. Id. The Venture court reasoned that because La.R.S. 12:148(C) states that actions by or against dissolved corporations do not abate even though the corporate existence ceases as of the effective date of the dissolution, Venture’s pending lawsuit did not end when it was dissolved; therefore, “a practical and lawful purpose” for reinstating its corporate status existed — the maintenance of the pending cause of action. Id.

The Butchers, on the other hand, opposed the reinstatement at trial, arguing that Hebert’s sole purpose for seeking the reinstatement — to complete the pending litigation — was an insufficient basis for the corporation’s reinstatement because it would allow him to avoid personal liability for the Corporation’s debts that 15attached to him when the Corporation was dissolved, as is mandated by La.R.S. 12:142.1(A). On appeal, they now concede that reinstatement of the corporate status of the business, for the purpose of completing the pending litigation, may be lawful under the circumstances. However, relying on La.R.S. 12:142.1(A), the Butchers contend that even if the Corporation’s status is reinstated for that purpose, this court should recognize that the reinstatement will not absolve Hebert, the shareholder, of his personal liability for corporate debts, which, by law, he assumed when he voluntarily dissolved the corporation.

We find the comments of the court in Venture, 906 So.2d 498, on the effects of corporate dissolution insightful. Therein, the court recognized that the legislature, pursuant to La.R.S. 12:148(C), provided for the maintenance of corporate existence solely for the purpose of completing litigation instituted before dissolution. Id. We also note, as was recognized by the second circuit, that this provision is designed to protect creditors: “Section 142.1 is not superseded by, but rather supplements, § 148C, by giving corporate creditors ‘extra protection ... to deter abuse’ of the expedited process for dissolution by affidavit.” North La. Well Serv., 597 So.2d at 161; see also, Brunson Bonding & Ins. Agency, Inc. v. ELM, Inc., 540 So.2d 530 (La.App. 1 Cir.), writ denied, 541 So.2d 902 (La.1989). Consequently, pending actions do not abate upon dissolution, and two options are available for maintaining such lawsuits after dissolution has occurred: either the proper party must be substituted in the case, pursuant to La.Code Civ.P. arts. 692 and 700, or the | (¡corporate status of the dissolved entity, must be retroactively reinstated so that it can complete the litigation in its name. Venture, 906 So.2d 498.

Here, we find that because the request for reinstatement was for the purpose of resolving pending litigation instituted before dissolution, the purpose for seeking reinstatement was valid, and the trial court erred in denying the reinstatement of corporate status in this case. However, we also find that the Louisiana Business Corporation Law (LB CL) does not absolve a shareholder or incorporator, who has voluntarily dissolved a corporation by affidavit, of the personal liability for subsequent debts arising out of those claims brought against the entity, or which could have been brought against it, prior to its dissolution. See Brunson, 540 So.2d 530. Therefore, although we find that Hebert’s request for reinstatement of the corporate status should have been granted, we do not find that the reinstatement will absolve him of any personal liability that may ultimately be imposed on the Corporation. See La.R.S. 12:142.1(B).

rv.

CONCLUSION

For the foregoing reasons, this writ is granted and the ruling of the trial court is reversed. The trial court is ordered to grant the motion to reinstate the corporate status of Keith Hebert Carpentry/Vinyl Siding, Inc., and to issue an order to the Louisiana Secretary of State directing him to reinstate the corporation to active 17status, pursuant to La.R.S. 12:142.1(B). Costs of this writ application are assessed to plaintiffs-respondents, Joseph and Beverly Butcher.

WRIT GRANTED AND MADE PEREMPTORY.

      . The Motion to Reinstate the Identity of the Corporation was filed on January 2, 2006, by the Corporation, but was amended on March 23, 2006, to reflect Hebert as the moving party.

        . § 148. Certificate of dissolution; assets omitted from liquidation; post-dissolution proceedings
      C. Upon issuance of the certificate of dissolution, the corporate existence shall cease as of the effective date stated in the certificate, except for the sole purpose of any action or suit commenced thereto by, or commenced timely against, the corporation.

      . Louisiana Code of Civil Procedure Article 692 states, in part:
      Art. 692. Corporation, limited liability company, or partnership in receivership or liquidation
      A. Except as otherwise provided by law, the receiver or liquidator appointed for a domestic or foreign corporation ... by a court of this state is the proper plaintiff to sue to enforce a right of the corporation.... These rules apply whether, under the law of its domicile, the existence of the corporation ... continues or is terminated.
      B. The receiver or liquidator may institute and prosecute any action without special authorization from the court which appointed him.
      Louisiana Code of Civil Procedure Article 700 states:
      Art. 700. Authority or qualification of plaintiff suing in representative capacity
      When a plaintiff sues as an agent to enforce a right of his principal, or as a legal representative, his authority or qualification is presumed, unless challenged by the defendant by the timely filing of a dilatory exception. When so challenged, the plaintiff shall prove his authority or qualification on the trial of the exception.