author: AMY, Judge.

text:
    STATE of Louisiana v. J.F.
    No. 05-1410.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Charles A. Riddle, III, District Attorney, Marksville, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for De-fendani/Appellant, J.F.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   AMY, Judge.

|,The defendant was charged with three counts of aggravated rape in violation of La.R.S. 14:42. Following a bench trial, the defendant was found guilty as charged. The defendant filed a motion for new trial, which the trial court denied before imposing sentence. The defendant was sentenced to life imprisonment at hard labor on each count, to be served without benefit of parole, probation or suspension of sentence. The sentences were ordered to run concurrently. The defendant subsequently filed a motion for new trial based on newly discovered evidence. The trial' court denied this motion. The defendant now appeals, arguing that there is insufficient evidence to prove the crime of aggravated rape beyond a reasonable doubt. For the following reasons, we affirm and remand with instructions.

Factual and Procedural Background

The record indicates that O.F. was born on September 28, 1990 and is the son of F.B. and the defendant. When the couple divorced in 1998, O.F. went to live with his mother. The defendant shared joint custody of O.F. and had visitation every other weekend. The defendant testified that in April 2003, O.F. begged the defendant to “take him in,” which he did. He further testified that O.F. told him that his stepfather was physically abusing him and on one occasion, slapped him so hard that he wet his pants. The defendant immediately sought custody of O.F., and a hearing on the matter was held on May 30, 2003. The trial court granted joint custody to both parents with the defendant designated as the domiciliary parent.

| ¡.O.F. moved in with the defendant, his wife, C.F., and their three children. O.F. testified that they resided in a two bedroom house and that he occupied one room and the defendant and C.F. occupied the other. He further testified that during the last months of his stay at the defendant’s house, the defendant’s stepchild from a previous marriage came to live with them as well as C.F.’s oldest son. According to O.F., when he first moved in, “everything was all nice[.]” Nevertheless, he stated that the defendant and C.F argued frequently and that these arguments would sometimes turn violent. O.F. also alleged that the defendant sexually abused him on three different occasions.

O.F. described the first incident that happened in May 2004. O.F. testified that when the defendant and C.F. began to argue, he went into his bedroom and played video games. The defendant entered his bedroom and closed the door, although O.F. was unsure if it was locked. O.F. testified that the defendant asked him if he wanted to do something, to which O.F. replied: “Wbat?” According to O.F., the defendant grabbed hiña and threw him down on the bed. O.F. was lying on his stomach, and the defendant was on top of him. He remembered the defendant yelling and asking him “what yon gonna do now and stuff like that.” O.F. stated: “I thought I’d done something wrong because he [was] all fussing and hollering.” O.F. testified that the defendant pulled his shorts off and “stuck his private in [him,]” moving it back and forth. The defendant did not say anything. O.F. also testified that he knew that the defendant had ejaculated because he “felt something go inside of [him,]” and he saw some “white looking gunk” draining out of him and on his bed.

| aAccording to O.F., the defendant left the room without saying anything, locked the door, and “took a shower and went to bed like nothing had happened.” O.F. explained that he did not bleed that night, but he was hurting and that the next morning, his “butt was sore raw and [he] was bleeding real bad.” O.F. testified that he did not tell anyone about the incident because he did not know what happened and “every time [he] would try to say something[, the defendant] was like I got full custody of you[. Y]ou’re mine now.”

According to O.F, the second incident occurred in July 2004. The defendant and C.F. were arguing, and O.F. retreated to his bedroom. O.F. stated that the defendant walked into his room with a tube of what he described as “lube” or jelly in his pocket. Without saying anything, the defendant pulled the covers off of O.F., grabbed him by his neck, and “stuck his worm” in his “butt.” O.F. testified that the defendant ejaculated because he noticed that the “same white, dripping gunk was there[.]” He also testified that he was bleeding and was not allowed to go to the bathroom.

The third and final incident occurred around August 2004. The defendant and C.F. were arguing. According to O.F.’s testimony, he was in his bed going to sleep when the defendant walked in and closed the door. O.F. remembered that the defendant did not have any lube with him. He testified that the defendant grabbed him by his neck, and his face was down in the pillow. He heard the defendant’s jeans unzip, and the defendant stuck “it” inside of him. O.F. believed that the defendant was moving faster because “he was trying to hurry up and get out and go back and act like nothing was happening.” According to O.F., the defendant ejaculated because |4he saw the same substance that he had seen after the first two incidents. He testified that he bled from his butt.

On cross-examination, O.F. admitted that the defendant did not threaten him during any of these encounters. However, he explained that he felt threatened because of “the violence in the house,” the presence of a gun in the house, and because on “one occasion [C.F.] came at [the defendant] with a knife and [he] took her and swung her across the house.” O.F. also explained why he did not tell anyone about the incidents. According to O.F., the defendant made various threats to him the day after the incidents occurred. The defendant threatened to beat him, kill him and his mother, and kill his brothers if he told anyone. He also stated that the defendant would prevent him from telling of the sexual abuse by stating that “they won’t believe you. You live under my house, I have full custody and you wanted to live over here.” O.F. was also concerned about how his mother would handle his disclosure. He commented: “[I]t’s hard enough having to tell a complete stranger, someone that you just met much less telling someone you’ve known your whole life. I mean no parent should have to hear this.” He also stated that his mother has “a bad heart,” and he was worried about her health.

O.F. stated that his mother was- concerned about him because he was depressed, he would not talk to her, and his grades dropped. F.B. began taking O.F. to see Ms. Jane Hyde, a licensed clinical social worker, to help O.F. with his troubles. O.F. first met with Ms. Hyde on October 12, 2004. O.F. testified that some time after this visit, he began bleeding from his butt and that he and F.B. did not know why. Upon the advice of Ms. Hyde, F.B. brought O.F. to the doctor where he was examined by Ms. Clara Coutee, a nurse practitioner. According to the record, Ms. Coutee found that fiO.F.’s “rectum was dilated like that of a 70 [year] old person.” In her report, Ms. Coutee noted “under the rectal exam loose, dilated, anal sphincter, able to emit two fingers, large amount of hard stool in ampulum, or the base of the rectum, hemorrhoids[.]” Ms. Coutee referred O.F. to a pediatric gas-troenterologist for evaluation of rectal bleeding and a dialated rectal sphincter. Because Ms. Coutee opined that the rectal bleeding may have been caused by sexual abuse, she spoke with someone at the Office of Child Support about the matter. The district attorney’s office was also notified.

On October 29, 2004, O.F. was examined by Dr. Husam Sukerek, a pediatrician and pediatric gastroenterologist. Dr. Sukerek found that O.F. had normal anal tone and that a test for fecal occult blood (blood that cannot be seen by the naked eye) was negative. He also found minimal redness, which he explained is common in thirty percent of children. Dr. Sukerek diagnosed O.F. with incoprecis, which is the inability to control bowel movements. He admitted on cross examination that there is nothing in his findings that could dispute that O.F. was sexually abused. Dr. Suka-rek testified that because child abuse was a concern, he recommended evaluation by a child sexual abuse expert.

Ms. Julie Tandeski of the Children’s Advocacy Center interviewed O.F. on November 5, 2004. Ms. Tandeski videotaped her interview with O.F. in which he revealed that the defendant sexually abused him on various occasions. O.F. described the incidents to her. After reviewing the tape, detectives arrested the defendant for two counts of rape.

The Office of Child Support and the district attorney’s office referred O.F. to Dr. L.J. Mayeux, the coroner of Avoyelles Parish. On December 10, 2004, Dr. | fiMayeux interviewed and examined O.F. According to Dr. Mayeux, O.F. recounted three incidents of sexual abuse. Dr. May-eux’s examination of O.F. revealed a loose rectal sphincter for a child his age with very loose tone. He explained that a bowel movement cannot cause the sphincter to become loose and the rectal area heals after constipation and bowel movements. Dr. Mayeux stated that O.F.’s rectal bleeding is consistent with anal sexual intercourse. He found that O.F. also had redness and tenderness in the para rectal region. Dr. Mayeux testified that he could not say with any degree of medical certainty that the redness was related to the allegations of abuse that occurred approximately four to five months earlier. Nevertheless, based on the consistency between the physical findings and the reports that O.F. gave him, Dr. Mayeux concluded that O.F. was sexually abused by the defendant.

Ms. Hyde, O.F.’s counselor, testified that O.F. reported the abuse to her on January 19, 2005, after eleven visits. According to Ms. Hyde, O.F. was only able to describe one incident to her.

On December 16, 2004, the defendant was indicted by a grand jury for three counts of aggravated rape. Following a bench trial, the trial court found him guilty as charged. The defendant’s motion for new trial was denied, and the trial court sentenced him to the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on each count. The sentences were ordered to run concurrently with each other. The defendant subsequently filed a motion for new trial based on newly discovered evidence, which was denied by the trial court. The defendant now appeals his conviction, arguing that the evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt.

17Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find three errors patent.

The trial court denied the defendant’s motion for new trial on the same day as sentencing. Louisiana Code of Criminal Procedure Article 873 requires a delay of at least twenty-four hours between the denial of a motion for new trial and sentencing. However, this error is harmless as the defendant received a mandatory life sentence. See State v. Porter, 99-1722 (La.App. 3 Cir. 5/3/00), 761 So.2d 115.

Further, the minutes of sentencing are in need of correction. The minutes state:

As required by Article 890.1 of the Code of Criminal Procedure and Article 894.1 D of Code of Criminal Procedure, the court designated that the crime involved was not a crime of violence or attempted crime of violence as defined or enumerated in [La.]R.S. 14:2[ (13).]

(All caps format and quotation marks omitted).

According to the transcript of sentencing, the trial court made no mention as to whether or not the crimes committed were crimes of violence. Thus, this case is remanded with instructions to the trial court to delete the portion of the minutes indicating that the trial court stated that the crime committed was not a crime of violence.

Finally, the minutes of the trial court’s verdict indicate that the trial court found the defendant guilty of the “above charge.” The minutes list the charge as “aggravated rape.” However, the defendant was charged with three counts of aggravated rape, and the transcript of the trial shows that the trial court found the defendant guilty of all three counts. Therefore, the minutes of the trial court’s verdict |sshall be amended to reflect that the trial court found the defendant guilty of three counts of aggravated rape.

Insufficient Evidence

The defendant contends that the evidence presented by the State was insufficient to find him guilty of aggravated rape beyond a reasonable doubt. Specifically, the defendant contends that the State failed to prove that O.F. was prevented from resisting the acts by threats of great and immediate bodily harm, accompanied by apparent power of execution. The defendant also questions O.F.’s credibility, arguing that there are “internal irreconcilable inconsistenc[i]es” in O.F.’s testimony regarding the number of rapes and the details of each incident.

Louisiana Revised Statutes 14:42 provides in pertinent part:

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

In State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902, this court stated:

With regard to sufficiency of the evidence, this court set forth as follows in State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).
In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. In order for this court to affirm a conviction, the record must reflect that the State has satisfied this burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

After a review of the record, we find that there is sufficient evidence to support the defendant’s conviction. O.F. testified that on three occasions, the defendant entered his room and closed the door. O.F. stated that the defendant may have locked the door as well. The defendant forced O.F. to engage in sexual acts by grabbing him by his neck and throwing him onto the bed. Although there may not have been any verbal threats while the incidents were occurring, O.F. testified that he felt threatened due to the violence in the home as well as the presence of a gun in the house. O.F. described occasions where the defendant became violent with him and C.F. It should be reiterated that the defendant would sexually abuse O.F. after engaging in an argument with C.F. Furthermore, the defendant made various threats against O.F., his mother, and his brothers if O.F. told anyone about the sexual abuse. The defendant would also remind O.F. that he had “full custody” of him.

Despite all of this, O.F. eventually revealed the sexual abuse to Ms. Tandeski of the Children’s Advocacy Center, Ms. Hyde, a clinical social worker, and to Dr. Mayeux, the coroner of Avoyelles Parish. As defense counsel has pointed out, there are inconsistencies in O.F.’s pre-trial statements and his testimony at trial. The trial hncourt noted these inconsistencies but still found O.F. to be a credible witness. In its reasons for judgment, the trial court stated:

Here are some findings that I will make preliminary to the ruling. First, it is without any doubt in my mind that [O.F.] was raped. There are physical findings, testified to by Dr. Mayeux and it’s[sic] certainly the rape was not ruled out by the doctor who testified from Many and he did confirm that some of what he saw could have come from that. [O.F.] was raped.... What it boils down to if we know, if I believe and I do and convinced beyond any reasonable doubt that [O.F.] was raped. What it gets down to is the credibility of [O.F.] to a large extent, as to whether or not his version of what happened and who raped him is correct. The defense has presented a very, very compelling argument and submitted some testimony in an attempt to show that [O.F.] is not credible.
Now I’m going to review some of the things that were testified to in this court. First of all[,] Dr. [L.J.] Mayeux who has a lot of experience in this field and forensics as a coroner, as a medical doctor[ made] an extensive interview of [O.F.], one of the longest ones he testified to that he has ever made in this professional career. His words exactly were that [O.F.’s] demeanor suggested credibility. Dr. Mayeux testified that [O.F.]’s delay in telling what happened to him was normal because of his fear of retribution and because of the same that it would bring to him for people to know what he was claiming had happened to him. Dr. Mayeux also testified that it was not unusual for [O.F.] or a child that had been abused such as [O.F.] to give different versions of the same event. Jane Hyde, a counselor was called by the defense and she had 22 counseling sessions with [O.F.]. She found [O.F.] to be very depressed. She also found him to be very credible. She found that [O.F.’s] reports and we must remember that [O.F]. did not report this allegation of rape to Ms. Hyde until after many sessions had already been had with Ms. Hyde. The majority of the sessions before that with Ms. Hyde were dealing with abuse in the home, violence and domestic violence in the home[, w]hich she testified to was very serious. Ms. Hyde testified that it was not [ab]normal for [O.F.] to wait on his disclosure. She found [O.F.] to be very credible. She said specifically, [O.F.] does not lie.
So what’s the next version to look at is the version he gave in court. In court [O.F.] presented himself in general as a credible and smart young man. He talked at length about the threats his daddy continuously made that I have full custody and when you read the transcript of the custody hearing ... and [see] how contentious this fight was, it’s not unusual to consider that [the defendant] would tell his son, I have full custody you’re mine[.] Also the timing of the events on the tape and the time of the events in the courtroom were very similar. Although not exact which if they would have been exact it would have been very strange. It was noted in court that the first person that he told I believe was Jane Hyde. And he told her of only one event. Then he told Dr. Mayeux more, then he told more on the advocacy center then Dr. Mayeux, I don’t know how it went. And then he told more in court.... Which goes back to what Dr. Mayeux and Jane Hyde have said, it’s not unusual to have some of that suppressed [for] it come[s] out later. Did th[e] defense show that some of [O.F.’s] testimony had very different versions in the events[?] Yes, [O.F.] did , give very different versions of some of the events that happened. It was not exactly the same in each event. What [O.F.] is consistent about is that he was raped. He was raped by his father. That was his consistent testimony on each of the three occasions. He described them in court, which was a hard thing for him to do, he described them on tape.
This court does find, considering that ... considering all of the review of [O.F.’s] testimony in court, [O.F.’s] taped statement, of [O.F.’s] versions given to all the doctors that [O.F.] presented himself as a very smart yet extremely troubled young man but [whose] testimony concerning this case is entirely credible and accepted by this court.

In State v. Schexnaider, 03-144, p. 9 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 457 (quoting State v. Williams, 00-981, p. 7 (La.App. 5 Cir. 4/11/01), 786 So.2d 805, 810, writ denied, 01-1377 (La.3/28/02), 812 So.2d 646), a panel of this court explained:

The testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Hotoph, 99-243 (La.App. 5th Cir.11/10/99), 750 So.2d 1036, 1045, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and 00-0150 (La.6/30/00), 765 So.2d 1066; State v. Hawkins, 99-217 (La.App. 5th Cir.7/2/99), 740 So.2d 768, 769; State v. Hubbard, 97-916 (La.App. 5th Cir.1/27/98), 708 So.2d 1099, 1104, writ denied, 98-0643 (La.8/28/98), 723 So.2d 415.
The credibility of a witness, including the victim, is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Id. “[T]he Jackson standard • does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the fact finder at trial.” State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293.

|12In the instant case, the State not only presented O.F.’s testimony, but it also presented medical evidence that supported O.F.’s testimony. In addition, Dr. Suker-ek, a defense witness, could not dispute that O.F. was sexually abused. When we examine the evidence in the light most favorable to the prosecution, we determine that a rational trier of fact could have found the defendant guilty of three counts of aggravated rape.

Accordingly, this assignment lacks merit.

DECREE

For the above reasons, we affirm the defendant’s conviction. The case is remanded, and the trial court is instructed to delete the portion of the minutes indicating that the trial court stated that the crime committed was not a crime of violence. Furthermore, the minutes of the trial court’s verdict shall be amended to reflect that the trial court found the defendant guilty of three counts of aggravated rape.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Pursuant to La.R.S. 46:1844, the initials of the parties involved have been used throughout.

      . According to the defendant’s testimony, after his divorce from F.B., he married T.G., whom he divorced after a short period of time.

      . It should be noted that on cross-examination, O.F. denied that the defendant yelled at or said anything to him.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Linda Snyder GERACE v. Randy Joseph GERACE.
    No. CA 05-1300.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.
    David L. Carriere, Attorney at Law, Opelousas, LA, for Defendant/Appellee Randy Joseph Gerace.
    Anne Elizabeth Watson, Attorney At Law, Opelousas, LA, Plaintiff/Appellant Linda Snyder Gerace.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

_]jThis appeal arises out of a custody dispute wherein the trial court ordered that a minor child, Hunter. Gerace, be allowed to spend more time with his father. Hunter expressed a desire to be with his father more and testified that he enjoys participating in several activities with his father. We affirm.

FACTS AND PROCEDURAL HISTORY

Randy Joseph Gerace and Linda Snyder Gerace were married on February 15,' 1986. Halie Alyce Gerace, Brooke Logan Gerace, and Hunter Joseph Gerace, ages 17⅜ 14, and 7 respectively, were born of the marriage. Linda Gerace filed for divorce on August 12, 2002. Subsequently, on September 26, 2002, the parties entered into a stipulated judgment providing for joint custody of the three children with Linda Gerace being the domiciliary parent. A judgment of divorce was entered on November 17, 2003.

Approximately one week later, Mr. Ge-race filed a motion to modify custody and child support seeking to be named domiciliary parent of the three children. The motion was not heard. Linda Gerace then sought, and was granted, a protective order against Mr. Gerace for a period of six months under the Protection from Family Violence Act. In May 2004, Mr. Gerace filed another motion to modify custody and child support seeking to be named domiciliary parent of the three children. In June 2004, the parties entered into a stipulated judgment in open court which did not address the support issue but preserved Ms. Gerace’s status as domiciliary parent and extended Mr. Gerace’s visitation privileges. The child support issue was resolved in November 2004, when Mr. Gerace was ordered to pay $900.00 per month until March 2005.

| yin November 2004, Mr. Gerace married Robbie Delatte Gerace. He then filed another motion to modify custody and child support seeking shared custody of Brooke and Hunter Gerace only. A hearing was held in May 2005 wherein the parties stipulated to shared custody of Brooke Gerace. The court then ruled that shared custody of Hunter Gerace was also appropriate.

Subsequently, in September 2005, Mr. Gerace filed another motion to modify custody and child support seeking to be named domiciliary parent of Brooke Ge-race. The parties signed a consent judgment naming Mr. Gerace domiciliary parent of Brooke Gerace and preserving Ms. Linda Gerace’s right to appeal the shared custody of Hunter Gerace. Ms. Linda Ge-race now appeals from the judgment granting shared custody of Hunter Gerace.

ASSIGNMENTS OF ERROR

1) The trial court committed legal error by finding that Randy Gerace met his burden of proving that there was a change in circumstances materially affecting the welfare of the child since the original decree and that the proposed modification was in the best interest of Hunter Gerace.
2) The trial court committed legal error in failing to apply the jurisprudential rule that a change from a stable environment should not be made absent a compelling reason.
3) The trial court committed manifest and legal error in changing the custody arrangement from joint custody to shared custody given Randy Gerace’s prior physical and mental abuse of Linda Gerace and the anger problems of Randy and his new wife.
4) The trial court erred in not granting Linda Gerace’s motion for psychological evaluations of the parties, the children and Robbie Gerace.

STANDARD OF REVIEW

A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’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.” Id. at 1112.

ASSIGNMENTS OF ERROR NOS. 1, 2, AND 3

We will first address Ms. Gerace’s contention that the alleged prior physical and mental abuse by Mr. Gerace and the anger issues with his new wife should bar the proposed custody arrangement. The abuse issue has previously been raised and denied below. Furthermore, the incident at issue arose when Mr. Gerace struck Ms. Linda Gerace one evening following a verbal confrontation occurring when Ms. Ge-race returned home drunk late one evening. Following that incident, Mr. Gerace agreed with the district attorney to attend six hours of anger management classes. Mr. Gerace fulfilled this obligation and the trial court deemed the matter resolved. We see no manifest error in this' determination.

Next we turn to appellant’s contention that Mr. Gerace failed to meet his burden of proof. The net effect of the judgment from which Ms. Linda Gerace now appeals is that Hunter now spends seven days out of fourteen with his father, as opposed to four out of fourteen. When parents are awarded joint custody of their children, this court has held that changes in the time spent with each parent need only be in the best interest of the children. White v. Fetzer, 97-1266 (La.App. 3 Cir. 3/6/98), 707 So.2d 1377, writ denied, 98-0931 (La.5/15/98), 719 So.2d 466. Accordingly, Ms. Linda Gerace’s argument that Mr. Gerace did not establish a |4material change in circumstances is misplaced. Furthermore, there is a statutory preference that parents with joint custody spend equal amounts of time with the children. La.R.S. 9:335. Given these considerations, we find that the trial court did not commit manifest error in increasing the amount of time Hunter Gerace spends with his father.

Hunter demonstrated a desire to spend more time with his father and stated that he often asks his mother to be allowed to visit Mr. Gerace. Hunter is now seven years old and very much enjoys hunting and riding horses and four-wheelers with his father. Simply put, Hunter is growing up and beginning to really enjoy the types of activities boys often engage in with their father. Accordingly, we find that it is in Hunter’s best interest to spend more time with his father as ordered by the trial court. These assignments lack merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment, appellant argues that the trial court erred in denying her motion for psychological evaluations of the parties, the children and Robbie Ge-race. The trial court observed all of the parties and listened to their testimony before concluding that there was no need to appoint a psychologist at this time. While there are certainly flaws among all of the parties in this matter, we see no manifest error in this determination. There are antagonistic accusations between those involved here, however, we see no evidence of record indicating the need for professional evaluations at this time. The trial court was well within its discretion in declining to order professional intervention. This assignment lacks merit.

| .CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against appellant.

AFFIRMED.

DECUIR, J., concurs in the result.

EZELL, J., concurs in the result.


author: EZELL, Judge.

text:
    Rose A. ROSE v. MAISON DEVILLE CARE CENTER.
    No. WCA 05-1307.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Brian Paul Bowes, Hudson, Potts & Bernstein, Monroe, LA, for Defendant/Appellant, Maison Deville Care Center.
    Bray Williams, Williams Family Law Firm, L.L.C, Natchitoches, LA, for Plaintiff/Appellee, Rose A. Rose.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

Bin this workers’ compensation matter, Maison Deville Care Center appeals the decision of the workers’ compensation judge awarding Rose A. Rose temporary total disability benefits (TTD), supplemental earnings benefits (SEB), and penalties and attorney fees for the failure to pay indemnity benefits and for the discontinuation of medical benefits. For the following reasons, we affirm the decision of the workers’ compensation judge.

Ms. Rose began working for the Maison Deville nursing home as a certified nursing assistant in October of 2002. Her job duties entailed the care of eight or more patients a day, including frequent lifting and turning of the patients. She was a full-time employee earning an average weekly wage of $244.00. In January of 2004, Ms. Rose began experiencing pain and numbness in her right hand and fingers. While she was able to work through the discomfort, she had difficulty sleeping due to the pain. On March 30, 2004, Ms. Rose attempted to roll a patient over when she experienced an immediate pain in her wrist that was greater than it had previously been. She did not return to work at Maison Deville after the incident.

Ms. Rose filed an accident report with Maison Deville and eventually saw Dr. John Sandifer, an orthopedic physician, who diagnosed her as having carpal tunnel syndrome (CTS) and possible tendinitis in her wrist. She was given anti-inflammatory medication and taken off work. Ms. Rose failed to progress and was given a cortisone injection in her wrist. She was never released to return to work at Maison Deville and was eventually fired because she had not been released to work.

On April 21, 2004, Risk Management Services, the third-party administrator for Maison Deville, denied compensability for the injury, deeming it to be unrelated to work. Medical benefits were terminated that day. Ms. Rose filed a disputed claim for compensation. The workers’ compensation judge awarded Ms. Rose wage 12indemnity and medical benefits as well as penalties and attorney fees for the arbitrary and capricious denial of indemnity benefits and for the discontinuation of medical benefits. From this decision, Mai-son Deville appeals. Ms. Rose answers the appeal, seeking additional penalties and attorney fees for failure to pay medical bills in full and seeking an increase in attorney fees for work done on appeal.

Maison Deville asserts three assignments of error on appeal. They claim that the workers’ compensation judge erred in: finding that Ms. Rose met her burden of proof, failing to consider alleged inconsistencies in the medical histories provided by Ms. Rose, and awarding Ms. Rose penalties and attorney fees. For the following reasons, we disagree.

In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (alteration in original), the supreme court set forth the standard of review for factual findings in workers’ compensation matters:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. 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 factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (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 at 882. 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 if 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).

Generally, an injured employee is entitled to receive benefits for an injury that arises out of, and in the course of, his employment. La.R.S.' 23:1031. Specifically, La. R.S. 23:1031.1 governs workers’ compensation claims for occupational disease. |s“An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” La. R.S. 23:1031.1(B). A claimant asserting an occupational disease must prove by a preponderance of evidence that there is a disability which is related to an employment-related disease, that the disease was contracted during the course of employment, and that the disease is a result of the work performed. Hymes v. Monroe Mack Sales, 28,768 (La.App. 2 Cir.10/30/96), 682 So.2d 871. The causal link between an employee’s occupational disease and work-related duties must be established by a reasonable probability. Id.

Maison Deville asserts as its first assignment of error that the workers’ compensation judge erred in finding that Ms. Rose suffered an occupational disease when her diagnosis was CTS and that the evidence failed to establish that the injury was linked to her employment at Maison Deville. However, Maison Deville submitted no competent evidence to contradict the testimony of Dr. Sandifer that, based on the history given to him by Ms. Rose and the exam he performed on her, the CTS was work related. Maison Deville claims that Dr. Sandifer was unaware of Ms. Rose’s duties as a CNA. However, his testimony indicates otherwise, as he testified that he had treated CNAs in the past, was aware of the repetitive motions their duties entailed, and that the repetitive motions performed by Ms. Rose as a CNA could lead to CTS. He stated that the accident of March 30, 2004, could have aggravated the condition. Ms. Rose’s regular treating physician, Dr. Archie Breaz-eale, further testified that, while he would defer to Dr. Sandifer as an orthopedist who deals more frequently with CTS cases, the duties of a CNA could cause CTS because they involve frequent flexion and extension of the wrists.

14Furthermore, Maison Deville’s own choice of physician, Dr. Gordon Mead, reported that Ms. Rose most likely had CTS and that it most likely started in 2004 at the time of her injury. While he does find a definitive cause of the disease, stating that the condition is “not necessarily related to” the trauma caused by the accident, he clearly does not contradict Dr. Sandifer’s determination that the CTS was, in fact, work related. Maison Deville did send Ms. Rose’s file to Dr. James Poche, an out-of-state physician for utilization review. While Dr. Poche noted that he did not feel Ms. Rose’s CTS constituted an occupational illness, there is no evidence of the qualifications of this doctor, what kind of medicine he practices, and most damningly, he never examined Ms. Rose. The workers’ compensation judge gave no weight to his determination, and we agree with that decision. The record clearly establishes a reasonable basis for the findings of the workers’ compensation judge that a causal link existed between Ms. Rose’s employment and CTS. Accordingly, that conclusion that was not manifestly erroneous.

Maison Deville next claims that the workers’ compensation judge erred in relying on Ms. Rose’s physicians’ opinions, as they allege she gave inconsistent medical histories. We find this assignment of error to be without merit. Maison Deville claims that Ms. Rose did not tell Dr. San-difer about the lifting incident, only pain and numbness while sleeping in giving her history to him. We find this argument to disingenuous at best, as Dr. Sandifer testified that Ms. Rose had indeed told him about the accident while in his office. Although the histories given to Dr. Sandifer and Dr. Mead could be deemed slightly inconsistent, it is not sufficient to conclude that the workers’ compensation judge was manifestly erroneous in finding |sa causal link between work and injury. “A worker is not required to relate her history to a doctor with mathematical precision and the imprecise histories given are insufficient to show manifest error when the overall ten- or of [plaintiffs] complaints of pain as portrayed in her medical records related the onset of symptoms to her work.” Johnson v. Johnson Controls, Inc., 38,495, p. 15 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 933.

Finally, Maison Deville claims that the trial court erred in awarding Ms. Rose penalties and attorney fees. The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the trial court’s finding must not be disturbed on appeal absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930 (La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La.10/13/00), 771 So.2d 650. “To avoid penalties and attorneys fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits.” George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209.

As indicated by their April 21 letter to Dr. Sandifer, Maison Deville relied on the opinion of Dr. Poche, the utilization review physician, to deny benefits in this case. As stated in Harrington v. Coastal Construction & Engineering, 96-681, p. 3 (La.App. 3 Cir. 12/11/96), 685 So.2d 457, 459, writ denied, 97-109 (La.3/7/97), 689 So.2d 1375, “the employer must rely on competent medical advice when the decision to deny the medical treatment is made.” The mere production of a different opinion of a doctor who never examined the claimant does not constitute competent medical advice sufficient to reasonably controvert the claim. Id. “While a utilization review process has its place in the workers’ compensation process, this court has consistently held that a long-distance diagnosis by a physician ad-visor is not an acceptable basis | fifor denial of treatment and benefits.” LeMelle v. Wal-Mart Stores, Inc., 04-527, p. 10 (La.App. 3 Cir. 9/29/04), 883 So.2d 526, 533. We can find no manifest error in the decision of the workers’ compensation judge to award penalties and attorney fees in this case.

Ms. Rose answers the appeal of Maison Deville, seeking penalties and attorney fees for the underpayment of some of Dr. Sandifer’s bills for treatment of her CTS and to seek additional attorney fees for work done on appeal. However, the workers’ compensation judge found the evidence put forth by Ms. Rose to be insufficient to establish an award of penalties and attorney fees. WTiile there is some evidence regarding this claim, we do not find the decision of the workers’ compensation judge to be manifestly erroneous. However, we award Ms. Rose an additional $2,500.00 in attorney fees for work done on this appeal.

For the above reason, the decision of the workers’ compensation judge is amended to increase the award of attorney fees by $2,500.00. In all other respects the decision is affirmed. Costs of this appeal are assessed against Maison Deville.

AFFIRMED AS AMENDED.

      . Dr. Mead staled in his report to Maison Deville that the pain most likely began in August of 2004, which is an obvious error. However, he discusses an alleged injury, which can only lead to the belief that he was referencing the March 30, 2004 accident.


author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Owen Hugh ROBERTSON, Appellant.
    No. 40,626-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Louisiana Appellate Project by Prentice L. White, New Orleans, Rickey Kenard Swift, for Appellant.
    Paul Joseph Carmouche, District Attorney, Catherine Marion Estopinal, Edward M. Brossette, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   DREW, J.

| t Owen Hugh Robertson was convicted at bench trial of the crime of manslaughter. He was adjudicated as a fourth felony habitual offender and sentenced to 40 years’ imprisonment at hard labor, without benefit of probation, parole or suspension of sentence. The defendant now appeals. We affirm.

FACTS

On the morning of January 14, 2002, Debra Fay (“Debbie”) Robertson left the trailer home she shared with her husband, defendant herein, and drove her children to catch their school bus. Her vehicle being inoperable, she was driving a borrowed truck belonging to her father-in-law, Jimmy Robertson, who lived next door. On the way to the bus stop, Debbie saw her husband’s truck parked at the home of a neighbor. Debbie suspected her husband of having an affair with this woman. After dropping off the kids, Debbie then drove back to confront her husband. Following an ugly scene, she left, being followed by the defendant.

At about 8:00 a.m. Jimmy heard his truck enter his property and then heard his son’s truck arrive shortly thereafter. At trial, Jimmy opined that Debbie had just enough time to walk from his residence back to hers when he heard a shot. At his son’s request, Jimmy dialed 911.

| ¡¡Cumulative testimony from investigating personnel from the Caddo Parish Sheriffs Office and from the coroner was as follows:

• Caddo deputies arrived within minutes of receiving the call and determined that Debbie had been shot and killed.
• While Corporal Ernest French handcuffed the defendant for officer safety, the defendant told him that Debbie “shot herself.”
• In his initial statement at the crime scene to Det. Stacy Cowgill, the defendant stated that Debbie was walking up the steps to the house when the gun fell out of her purse, struck the steps or a rock, went off and killed her.
• He was inside the house when he heard the gunshot and didn’t see what happened.
• The investigating officers found an apparently staged crime scene.
• The body was found lying inside the doorway on her back with her feet toward the stairway leading to the porch.
• The only blood found nearby was underneath Debbie’s body, which had one bullet wound.
• The bullet entered her right upper back just above the level of the top of the right armpit and upper arm, traveled through her body from right to left, slightly downward (by 2½ to 3 inches) and back to front, and exited behind her left armpit through the upper part of her left arm, penetrating both lungs and her aorta, causing her to bleed to death.
• The path of the bullet through her body made it physically impossible for her to have been shot by a gun which had fallen on the ground.
• The bullet path through her body was inconsistent with a self-inflicted gunshot, but was consistent with her having been shot by a taller person.
• The decedent was 5' 7" tall.
• The defendant is 6' 4" tall.
|3* The officers found a Ruger Super Blackhawk .44 magnum pistol under Debbie’s purse, on the right side of the base of the steps, resting barrel-up against a hardened bag of Sa-crete.
• The marks on the Sacrete and the gun were inconsistent with markings sustained from a simple short fall.
• In front of the house (about 19 feet away from the body) was a red bench where investigators discovered her glasses.
• There was blood spatter on the bench, on the ground and on several pairs of hunting boots located on the bench.
• A screen/storm door covered the ground where Debbie’s blood was discovered, but there was no blood on the door, appearing to investigators that the door had ■ been placed over the blood to hide it.
• On the ground behind the bench area was an EZ Mart Styrofoam coffee cup containing coffee.
• The investigators concluded that the defendant intentionally shot Debbie while she was near the bench.
• Neither the gun nor the coffee cup yielded any usable prints.

Police officers conducted three interviews with the defendant, the last two being recorded. In all three statements, the defendant indicated that the shooting was accidental.

The defendant’s first statement was taken at the crime scene by Det. Cowgill in the presence of Deputy Janet Sowell after the defendant was advised of and waived his Miranda rights. As related herein above, the defendant told Det. Cow-gill that Debbie was walking up the steps to the house when the gun fell out of her purse, struck the steps or a rock, went off and killed her.

On January 14, 2002, the defendant gave a second (and first recorded) statement to Deputy Kay Ward at the detectives’ office. Det. Jay pLong was also present. Prior to the statement, the defendant was advised of and waived his Miranda rights and signed a waiver of rights form. No threats, inducements or promises were made to obtain the statement, and the defendant was not under the influence of any fear, duress or intimidation. The defendant did not appear to be under the influence of any drugs or intoxicants and appeared to understand his rights and to have voluntarily waived those rights. Although the defendant said he had taken some methamphetamine or pills the night before the interview, he did not say anything about being on drugs during the interview.

The substance of this statement was very similar to what he told Det. Cowgill at the crime scene in the initial statement. He explained that he had seen the gun “laid (sic) in the purse” as Debbie walked to their residence over from his father’s house (referring to Jimmy Robertson). The defendant related that he had entered the kitchen of their home and as Debbie entered the house after him, the gun fell out of her purse, struck the ground and went off. The defendant said he heard the gunshot and ran outside. Debbie had apparently backed down the steps and he saw her collapse. He related that he ran over to pick her up. During the process of picking her up, the defendant fell over a bench. Then he carried her to the porch and tried to resuscitate her. The defendant stated that he ran over to his father’s house and told him to dial 911 because Debbie had been shot.

As this statement progressed and investigators asked the defendant how the door ended up on top of the blood near the bench (where Debbie was apparently shot), the defendant added that he tripped over the bench [ SAND the door, which was right beside the truck. He explained that the nails in the door got hung up on his coat “or something,” when he got up with her. The defendant further explained that the dog also got under his feet. He speculated that the dog tripped Debbie, causing her to fall backwards off the steps.

The defendant’s third (and second recorded) statement was taken by Det. Cowgill in the presence, of Deputy Sheila Hostniek at the Caddo Correctional Center on January 16, 2002. Before the statement was taken, the defendant was advised of and waived.his Miranda rights and signed a waiver of rights form. No threats, inducements or promises were made to obtain the statement, and-the defendant was not under the influence of any fear, duress or intimidation. The defendants did not appear to be under the influence of any drugs or intoxicants and appeared to understand his rights and to have voluntarily waived those rights.

In this statement, the defendant changed his story — he said that he thought (or presumed) that Debbie had thrown the gun at him “or something.” He related that he was walking into the kitchen when he heard the gun go off, and had -his back turned the whole time. When confronted with the facts that it was impossible for Debbie to have been shot by a falling gun because of. the safety device on the gun and because of the forensics regarding her wound, the defendant then asserted that Debbie had the gun in her hand and was threatening to shoot him. He further acknowledged:

• outweighing her by 100 pounds;
|f* that the two of them fell on the door even though investigators determined that the door was not damaged;
• that she was not on the steps, and was instead standing in .front of his truck when he heard the'gun hit the ground and go off;
• that minutes later Debbie was behind the truck when the gun went off;
• that he picked Debbie up and ran to his Dad’s house with her;
• that there was no struggle for the gun; and'
• that he did not shoot his wife.

Finally, when the defendant was apprehended in Woodville, Texas, after being released on bond, the defendant volunteered to Det. Cowgill that Debbie died-in a struggle over the gun. He related that Debbie had pulled the gun on him and the gun went off while he took the gun away from her.

The defendant was charged by bill of indictment with the second degree murder of his wife, a violation of La. R.S. 14:30.1. He filed a motion to suppress statements, which was denied by the trial court after a hearing. The defendant appeared in court with counsel, and waived his right to a jury trial.

During the defendant’s trial, the state presented evidence regarding the facts set forth hereinabove. Forensic evidence was also presented showing that the gun was equipped with a transfer bar designed to prevent accidental firing — that the gun would not fire unless the hammer was cocked manually and the trigger pulled to the rear. Evidence also showed that the shot was fired from a distance of over four feet.

One of Debbie’s children testified that the defendant had physically abused Debbie only two weeks prior to the shooting, and that the door was cleaning against a tree when she left for school on the morning of the shooting.

The defendant testified at trial that he shot Debbie after she pointed the gün at him with the hammer cocked. After threatening to kill him, she “started to kill herself’ by putting the gun to her chin, and he tried to talk her out of it. She sat down on the bench and put the gun down on the bench. The hammer of the gun was still cocked. The defendant related that he took the gun from Debbie and then walked to the steps and sat down. The defendant was talking to her, and she was “turned to him” at the time, but was not saying anything to him. He related that the gun accidentally discharged when he tried to lower the hammer to its resting position by pulling the trigger. The defendant said he did not even notice she was shot until he walked up to her and put his hand on her shoulder because she was not answering him. The defendant asserted that he was knowledgeable about guns and was careful about gun safety, though he denied knowing that the gun had a safety bar.

In addition to the defendant’s trial testimony, the defense presented other witnesses, including:

• Jack Gullette, a mechanic, who testified that he was an acquaintance of the defendant and Debbie. He talked with Debbie a week or two before her death and she said she “thought about killing herself and Owen, too.”
• Steven Thompson, who was a friend of the couple, related that he saw Debbie on the Thursday before her death. She was upset and told Thompson that she was mad at the defendant and if she caught him with “that bitch” she was going to kill him and kill herself.
• Neal Alfred, a friend and the boyfriend of the defendant’s sister, testified that he heard Debbie tell the defendant’s sister on the night pbefore she died that she was going to “kill your brother and kill myself’ in the morning.

After a bench trial, the trial court found the defendant guilty of the responsive and lesser-included crime of manslaughter. The trial court’s verdict was based on a finding that, under the totality of the evidence, the state proved the crime of manslaughter beyond a reasonable doubt. The trial court specifically found that the explanation that the shooting was accidental was not reasonable. The defendant was adjudicated a fourth felony habitual offender and sentenced to the minimum sentence of 40 years’ imprisonment at hard labor, without benefits of probation, parole or suspension of sentence.

DISCUSSION

Sufficiency of the Evidence

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).

The Jackson standard applies to cases involving both direct and circumstantial evidence. 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.

When circumstantial evidence forms the basis for the conviction, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. The court does not determine whether another possible hypothesis ^suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994); State v. Owens, supra.

The trial court found that the state had not proven the specific intent required to sustain a conviction of the charged offense of second degree murder.

The trial court concluded that the state did not have to eliminate the possibility that the shooting was accidental to find the defendant guilty of the lesser included offense of manslaughter.

The provisions regarding the crime of Manslaughter are set forth in La. R.S. 14:31:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Article 30 or 30.1.
B. Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. However, if the victim was killed as a result of receiving a battery and was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than ten years nor more than forty years.

Thus, there are four ways to prove manslaughter, only the first of which requires as an element the proof of specific intent to kill or inflict great bodily harm.

Circumstantial evidence forms the basis for the conviction in this case. Hence, the evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

Robertson admitted at trial to shooting the victim, but asserted that the shooting was accidental (during his attempt to disarm his suicidal wife, who promised to kill him in the past if she caught him cheating on her). He therefore argues that the state had the obligation to exclude the possibility of accident before the manslaughter charge could be properly considered by the trial court. He alleges that the state was unable to exclude the reasonable possibility that the victim’s death resulted from an accidental shooting, which should have resulted in an acquittal.

We disagree. The learned trial court found unreasonable any of the defendant’s many explanations as to the actual nature of the shooting. This finding is clearly supported by the defendant’s trial testimony wherein he admitted pulling the trigger on the gun while pointing it in his wife’s direction. The defendant’s position is also undercut by his crude attempt to stage the crime scene to look like an accident, as well as by his various inconsistent statements regarding how the shooting occurred. The evidence, hjviewed in the light most favorable to the prosecution, clearly supports a finding of an intentional homicide beyond a reasonable doubt.

Finally, we note that the evidence also supports a finding of two additional types of manslaughter:

• An unintentional killing directly caused by the defendant, during the course of the commission of a non-enumerated felony.
• An unintentional killing directly caused ■ by the defendant during the commission of an intentional misdemeanor directly affecting the person of the victim.

Motion to Suppress

The defendant sought to suppress statements made to law enforcement officers while in custody after his arrest, providing these reasons for the suppression:

• The statements were involuntary because of misrepresentations and misstatements to him by interrogating officers.
• He was under the influence of drugs when he made the statements and therefore was not mentally capable of waiving any rights.
• While being questioned, he asked for assistance of counsel, but his request was ignored and the questioning continued.
• His second statement was made after defense counsel was appointed to represent him, but the officers failed to consult with his defense counsel before questioning him.

Detective Stacy Cowgill of the Caddo Parish Sheriffs Office testified that:

• on January 14, 2002, he was called to investigate the shooting;
• he advised the defendant of his rights as per Miranda, which Robertson said he understood and which the defendant waived;
W he then took a brief statement (unrecorded ) from the defendant;
• the defendant did not appear to be under the influence of any alcohol, drugs or narcotics at the time, and appeared to understand Det. Cowgill’s questions;
• Deputy Janet Sowell was also present during this statement at the scene;
• a second statement was taken at the Sheriffs Office from the defendant later that day, as witnessed by Caddo Sheriffs Detective Kay Ward and Deputy Jay Long; and
• the defendant said that he understood and waived those rights, signing a waiver of rights form.

Detective Kay Ward stated that:

• the defendant did not appear to be under the influence of alcohol or drugs, as his speech was not slurred, his pupils were not dilated, and he was coherent and responsive;
• no promises, threats or inducements of any kind were made to obtain the statement;
• the defendant then gave a recorded statement, which was later transcribed;
• the defendant requested a lawyer at the “end portion” of the statement, at which time Deputy Long left the room, and whereupon Det. Ward asked the defendant if he said that he wanted a lawyer to talk to;
• the defendant “went on talking” and never “came back and said that he wanted a lawyer;” and
• the defendant was asked about fresh needle marks for recent drug use and he indicated that he had “done some meth” the evening before at his friend’s house in Texas, and had taken some Valium at about 2:00 a.m. the day before he was arrested.

The entirety of this second statement consisted of the defendant attempting to give reasons why his wife was shot without him being at fault. 11sThe third statement was taken by Det. Cowgill from the defendant on January 16, 2002, at the Caddo Correctional Center. Det. Cowgill testified that:

• he and Deputy Hostnick met with the defendant as requested by him;
• prior to taking the statement, he adr vised the defendant of his Miranda rights and the defendant signed the waiver of rights card;
• Robertson did not appear to be under the influence of alcohol, narcotics or drugs, and his speech wasn’t slurred;
• no promises, threats or inducements of any kind were made to obtain the statement;
• at the end of this statement, the defendant once requested an attorney;
• the statement was immediately terminated; and
• at the time of this statement, the officer was not aware that the defendant had made a court appearance and had defense counsel appointed.

After hearing the state’s evidence and arguments from the state and defense, the trial court denied the motion to suppress as to all three statements, finding them freely and voluntarily given, and not made under any type of influence or duress.

The defendant presented no evidence at the motion to suppress. Consequently, there was no showing whatsoever that the effects of the drugs taken by the defendant on the night before the shooting had any intoxicating effect at the time of any of his exculpatory statements, the last of which was given two days after the shooting. Testimony further indicated that, after the defendant requested an attorney, he initiated further conversation both with Det. Ward, and two days later, with Det. Cow-gill.

|uIn determining whether a ruling on a motion to suppress is correct, an appellate court is not limited to evidence adduced at the hearing on the motion but also may consider pertinent evidence given at trial. State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.1993), writ denied, 619 So.2d 573 (La.1993).

At a suppression hearing, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,-112 (La.App. 2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288.

Before a confession can be introduced into evidence, the state must affirmatively prove that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703(D); State v. Bowers, 39,970 (La.App. 2d Cir.8/19/05), 909 So.2d 1038; State v. Roddy, supra. The state must also establish that an accused who makes a statement during custodial interrogation was first advised of his Miranda rights. State v. Bowers, supra; State v. Roddy, supra.

In State v. Jackson, 381 So.2d 485 (La.1980), and State v. Morvant, 384 So.2d 765 (La.1980), the supreme court stated the principles under which the admissibility of a confession must be judged. As a matter of federal constitutional law, any confession obtained by any direct or implied promises, however slight, or by the exertion of any improper influence, must be considered involuntary and inadmissible. State v. Roddy, supra.

h./The admissibility of a confession is a question for the trial court. When determining admissibility, the trial court’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession will not be overturned on appeal unless not supported by the evidence. State v. Bowers, supra. We place great weight upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Crews, 28,153 (La.App. 2d Cir.5/8/96), 674 So.2d 1082. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Bowers, supra; State v. Henderson, 31,986 (La.App. 2d Cir.8/18/99), 740 So.2d 240.

Intoxication may render a confession involuntary if it negates a defendant’s comprehension and renders him unconscious of the consequences of what he is saying; whether intoxication exists and to a degree sufficient to vitiate voluntariness are questions of fact. State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); State v. Bowers, supra. However, the mere fact of drug or alcohol intoxication is insufficient standing alone to render a confession involuntary. See State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994), where the confession was voluntary although defendant had smoked three or four cocaine rocks the night before his 11:00 p.m. statement, as well as consumed several beers the day he confessed. State v. Bowers, supra.

J^Regarding requests for counsel, the supreme court stated in State v. Hobley, 98-2460, p. 29 (La.12/15/99), 752 So.2d 771, 788, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000):

[O]nce a suspect in custody expresses a desire, at any stage in the process, to deal with the police only through counsel, all questioning must cease, and the accused may not be subject to further interrogation until counsel has been made available to him, unless he initiates further communication, exchanges or conversation with the police and validly waives his earlier request for counsel. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981); Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612. Miranda and Edwards are prophylactic rules designed to protect an accused against the inherently compelling pressures of custodial interrogation, whether by police badgering, overreaching or subtle but repeated efforts to wear down an accused’s resistance and make him change his mind. Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983). Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), reaffirmed Edwards, stating that “when counsel is requested, interrogation must cease; and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.” Id. at 153, 111 S.Ct. at 491.
Louisiana adheres to these same principles. When an accused invokes his right to counsel, the admissibility of a subsequent confession or incriminating statement is determined by a two-step inquiry: 1) did the accused initiate further conversation or communication; and 2) was the purported waiver of counsel knowing and intelligent under the totality of the circumstances. State v. Abadie, 612 So.2d 1, 5 (La.1993).

A ■ careful review of the record supports the trial court’s denial of the defendant’s motion to suppress his statements. The state met its burden of proving that the statements were freely and voluntarily given by the evidence it presented, which included testimony given by the interviewing officers and the introduction of tape-recorded statements and the signed Miranda waiver of rights forms. It is clear that the defendant was advised [17of his Miranda rights and waived those rights before giving the statements, and that the statements were not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Likewise, the record supports the trial court’s apparent determination that the ‘defendant was not intoxicated when he gave any of his statements. Finally, the record supports the trial court’s apparent conclusion that, after the defendant invoked his right to counsel during the two recorded statements, either the interview was terminated or the defendant initiated further conversation or communication. The record shows that the waiver of counsel was knowing and intelligent under the totality of the circumstances. We decline to overturn the trial court’s conclusions on the credibility and weight of testimony relating to the voluntary nature of the confessions. We place great weight upon the trial court’s factual determinations in deference to its opportunity to observe witnesses and assess credibility. In sum, we find no abuse of discretion by the trial court in its denial of the motion to suppress.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Technically, La. R.S. 14:31 and La. R.S. 15:529.l(A)(l)(b)(I) and G do not provide for a prohibition against parole. We are aware that a trial court apparently lacks authority to prohibit parole eligibility pursuant to that statute. See State v. Larrivere, 98-1399 (La.App. 3d Cir.5/5/99), 733 So.2d 703. We merely note this glitch because, as a fourth felony offender, the defendant is not eligible for parole on that basis, as per La. R.S. 15:574.4(A)(1), making this a distinction without a discernable difference. Compare State v. Sweat, 40,625 (La.App. 2d Cir.4/12/06), 926 So.2d 779.

      . Brand name for a concrete mix.

      . At the time of the shooting, defendant was a felon in possession of a firearm. He also committed the felony offense of illegal use of a weapon.

      . Aggravated Assault or Simple Battery or Simple Assault are possibilities.

      . The transcript of the statement was introduced into evidence at the hearing on the Motion to Suppress.


author: STEWART, J.

text:
    Melissa Jo KNOWLTON, Plaintiff-Appellant v. John Warren KNOWLTON, Defendant-Appellee.
    No. 40,931-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.
    Anita D. McKeithen, Shreveport, for Appellant.
    Cook, Yancey, King & Galloway, by Curtis R. Shelton, Shreveport, for Appellee.
    Before BROWN, STEWART and MOORE, JJ.
   STEWART, J.

1 Appellant, Melissa Jo Pruitt (formerly Knowlton), appeals the trial court’s judgment denying her requests to modify custody and to terminate child support. She seeks to be designated the domiciliary parent of the two minor children from her former marriage to appellee, John Warren Knowlton. Finding no error in the trial court’s judgment, we affirm.

FACTS

Ms. Pruitt and Sgt. Knowlton are the parents of two minor daughters, Michelle and Katie Knowlton. After separating in early 1998, the parties obtained a judgment on rule dated June 29, 1998, awarding them joint custody of the girls and designating Ms. Pruitt as domiciliary parent in accordance with their agreement and stipulations before the court.

Four months later, Ms. Pruitt filed a motion seeking court approval to relocate the girls to Bentonville, Arkansas. Sgt. Knowlton filed an objection to the request and a petition for divorce. Trial began on December 10, 1998, and continued on February 10, 1999. After brief testimony on the second day of trial, the parties reached a stipulation providing that the girls would remain in Bossier City, that Sgt. Knowlton would be the domiciliary parent, and that Ms. Pruitt would pay child support in the amount of $200 per month. A judgment to this effect was signed on April 7, 1999, and a judgment granting the divorce was signed May 25, 1999. Since the change in custody, the girls have lived with their father in Bossier City with frequent visits to their mother in Arkansas. Both parents remarried, and their mother had another child.

|2On January 31, 2005, Ms. Pruitt filed a motion to modify custody and to terminate her child support obligation. She sought to be named the domiciliary parent and to have the girls move to Arkansas. She alleged as changes in circumstances warranting the modification: (1) the children’s ages, (2) the turbulent relationship between Sgt. Knowlton and his new wife, (3) the turbulent relationship between the minor children and their stepmother, and (4) Sgt. Knowlton’s discipline of the children.

Trial was held on September 2, 2005. The daughters, Michelle and Katie, testified as to their circumstances, custodial preference, and observations regarding the incidents described in their mother’s rule. Their stepmother, Diane, lives in the Knowlton household along with Laura, Diane’s grown daughter, and Laura’s baby. According to testimony, both Michelle and Katie have a difficult relationship with Diane, who has sought help for emotional problems in dealing with the mixed family arrangement. Testimony also established that their father is a strict disciplinarian and that Katie has had ongoing behavioral problems.

Michelle, who was 16 at the time of trial, is a junior at Airliné High School with better than average grades and is working toward a TOPS scholarship from the State of Louisiana. Her father, who described her as “awesome,” generally disciplines her by taking away her car or cell phone. Michelle has a job and friends in Bossier City and would prefer to remain there. However, she testified that she was willing to move to Arkansas if that would allow her younger sister Katie to live with their mother. | .¡Michelle testified as to her belief that Katie has a hard time in the Knowlton household. She described a more contentious relationship between her father and Katie involving yelling and his occasional use of inappropriate insults and threats of putting her in a youth shelter. Michelle testified that the police had been to their home on three or four occasions, usually due to arguments involving Diane and Laura. Michelle also testified that Diane once threw a phone at her, but neither party elicited any context for the incident.

Kathleen “Katie” Knowlton, who was one month away from turning 14 at the time of trial, testified that she and hex-stepmother “get along pretty good but we have fights a lot.” However, her testimony did not reveal any noteworthy conflicts. She testified that her father called her names and repeatedly threatened to have her arrested or placed in a youth shelter. She also testified that he once reached back during an ai’gument in a car to choke her after she told him he was not a good father. Michelle denied that their father had ever been physically abusive to either daughter. Katie’s testimony, as well as Michelle’s, also established that Katie presents a very different behavioral picture than Michelle. Katie was placed in Families in Need of Services (“FINS”) and private counseling after she was caught riding in a car with an 18-year-old boy whose identity she would not reveal. She was then caught shoplifting at Barksdale Air Force Base, and she has had numerous disciplinary problems in school. Katie expressed the unequivocal px-eference to live with her mother in Arkansas. She explained that her mother listens to her and that she has a closer relationship with her ^stepfather than with her stepmother; however, there was no specific evidence in the record regarding either girl having a close i-elationship with Mr. Pruitt. Katie believed she would not have behavioral problems in Arkansas, because she would “have a better life up there” and “get along better.”

Sheri Miller, a former neighbor of the Knowltons’, testified about arguments she witnessed between the girls and their stepmother. However, the incidents she observed occurred a year or more prior to trial. She recounted being asked by Sgt. Knowlton on several occasions to take the girls from the home dui-ing arguments involving Diane, Laura, and Sgt. Knowlton. She also testified that she witnessed Sgt. Knowlton call the girls names, but she believed he intended it to be in jest even though he may have hurt their feelings.

Sgt. Knowlton admitted that he is a strict disciplinai'ian and expressed the belief that his daughters were looking for a “bigger better deal” in Arkansas where they would get things on their terms. He admitted that he called the police when he found that Katie had been riding in a car with an 18-year-old boy, whose name she refused to reveal. Sgt. Knowlton requested that she be issued a ticket for being ungovernable. The incident resulted in Katie being placed in FINS with both his and Ms. Pruitt’s agreement. He testified that Katie was caught shoplifting at Barks-dale and detained without his knowledge. He did not have her arrested. Though the charges were dropped, he agreed with her detention and believed that she should have been prosecuted so that she would have learned that restitution |Bis owed when you commit a crime. He denied ever being verbally or physically abusive to either of his daughters, but he did admit to telling Katie that she did dumb or stupid things. He agreed that Katie may be acting out for attention, but he was adamant that she gets love and affection from all of her family, including her mother. He testified that Katie presents a unique discipline problem and that Ms. Pruitt has even had to call him to ask for advice on how to control her. He also testified that he would have concerns about the girls moving to Arkansas due to Mi-. Pruitt’s consumption of alcohol and past citations for driving while intoxicated. Lastly, Sgt. Knowlton testified that Diane had twice admitted herself into a psychiatric facility as a result of her difficulty in dealing with the family dynamics.

Ms. Pruitt testified that she lives in Bentonville, Arkansas with her new husband, Don Pruitt, their 5-year-old child, and Mr. Pruitt’s 21-year-old son from a previous relationship. She stated that she moved to Arkansas for employment opportunities; however, her testimony indicated a spotty history of employment since the move. Ms. Pruitt denied that her husband is an alcoholic, but she admitted that he drinks between a six pack and twelve pack of beer two to three nights a week and that he had gotten two prior citations for driving while intoxicated. Ms. Pruitt admitted that the police had also been called to her house in response to an altercation between her husband and one of his children. Michelle, who was present, called her father because she perceived that Mr. Pruitt was beating his daughter. Ms. Pruitt indicated that Katie has also presented a discipline | (¡challenge for her and admitted to calling Sgt. Knowlton for advice on how to control her. However, Ms. Pruitt disagreed with Sgt. Knowlton’s position that Katie should have had legal consequences from the shoplifting incident. She would prefer to handle Katie’s discipline at home by monitoring her behavior and taking away privileges. She also admitted that she had been on medication for depression.

In an oral ruling, the trial judge denied Ms. Pruitt’s request for change of custody. The trial judge noted that the prior judgment had been a considered decree and concluded there was no showing that it would be detrimental for the children to remain with their father. He noted that Michelle, the older child, expressed the preference to remain-in Bossier City and observed that Katie wanted to live with their mother. However, he did not believe a thirteen or fourteen year old should dictate where she lives. He also noted the serious problems which Katie seems to have and the need for Sgt. Knowlton to exhibit more sensitivity when dealing with his teenage daughters. Accordingly, he ordered Sgt. Knowlton to attend some parenting classes and sensitivity training. He also ordered both parties to attend a “Children in the Middle” program. A written judgment was signed on September 14, 2005, and this appeal by Ms. Pruitt followed.

DISCUSSION

The best interest of the child is the primary consideration in any child custody determination. La. C.C. art. 131; Adams v. Adams, 39,424 (La.App.2d Cir.4/6/05), 899 So.2d 726. The trial court is in the best position to ascertain the best interests of the children given each unique set of 17circumstances. Accordingly, a trial court’s determination in the establishment or modification of custody is entitled to great weight and will not be reversed on appeal unless an abuse of. discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101 (La.1988); Walker v. Walker, 38,982 (La.App.2d Cir.8/18/04), 880 So.2d 956.

Whether the initial custody decree was a stipulated judgment or a considered decree determines the burden of proof applicable when modification is sought. Adams, supra. When the parties stipulated to the initial custodial arrangement and .no evidence of parental fitness was taken, the party seeking modification must show a material change in circumstances since the initial decree and prove that the proposed modification is in the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731. A considered decree of custody is one made after the trial court receives evidence of parental fitness. The party seeking modification of a considered decree has the heavy burden imposed by Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), of proving either that the continuation of the custodial arrangement is so deleterious to the child as to justify modification, or the harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Adams, supra.

The trial court determined that the Ber-geron burden of proof applied. The initial custody decree of April 7, 1999, states that it was made upon “the court having heard the agreement and stipulations of the parties, evidence adduced and for reasons this day orally assigned.” According to |sthe minutes, trial began on December 10,1998, and was continued on February 2, 1999, when an agreement was reached after brief testimony. However, nothing in the record indicates whether the testimony pertained to parental fitness. The parties already had joint custody as per the June 29, 1998 judgment rendered in accordance in with their agreement, and the trial pertained to both the custodial dispute involving Ms. Pruitt’s request to relocate and the divorce. Although the record does not clearly indicate that Bergeron was the correct standard to apply, neither party objected. Moreover, our review of this matter convinces us that application of the lesser burden of proof applicable to stipulated judgments would not mandate a different result.

Upon our thorough review of this record, we find no manifest error in the trial court’s ■ruling. It appears clear that both Sgt. Knowlton’s and Ms. Pruitt’s homes and new marriages present less than ideal circumstances. While it is arguable from the record that going to live with their mother might be better for the girls, it is not self-evident that such an arrangement would be in their best interests. Nor is it clear that the girls’ present circumstances are so deleterious that a change of custody is required or that advantages of modification outweigh any harm likely to be caused by the change.

The record establishes that some problems exist in the Knowlton home, especially as relates to Diane’s interaction with the girls. However, much of the turmoil can just as easily be linked to the behavior of the youngest child. There is nothing in the record that would lead us to 19conclude that the same or similar problems would not present themselves if the girls moved to Arkansas to be with their mother.

The trial court recognized the problems in the Knowlton home and the difficulties of raising teenagers, particularly those whose behavior presents unique challenges. In doing so, the trial court ordered the parties to attend a class and specifically ordered Sgt. Knowlton to attend parenting and sensitivity classes to fine-tune his skills in dealing with the girls. The testimony established the complications caused by the introduction of stepparents and step-families in both households. However, the record does not establish how the complications would be alleviated by a move to Arkansas where Ms. Pruitt has also had difficulty dealing with Katie’s behavior and where a less than ideal situation also exists.

The witnesses’ testimony is subject to many interpretations regarding the motives and desires of both the children and their parents. In this regard, the impressions drawn by the trial judge from his assessment of the body language, mannerisms, and demeanor of the witnesses is very important. Though Michelle was willing to move to Arkansas on her sister’s behalf, her own preference and other testimony clearly show that her best interest is served by remaining in Louisiana. Katie clearly has difficulties that her parents must address. Much of the case was about the parties’ dispute over how to do so. The trial court had the unenviable task of weighing the disciplinary methods used by Sgt. Knowlton and those preferred by Ms. Pruitt. While the parties clearly differ in their approaches, the evidence did not establish that Katie’s best interest would be served by alinchange in custody. The record shows that Katie has frequent contact with her mother, and nothing suggests that her parents are unable to work together to provide her with consistent love, attention, and discipline to address her needs. Thus, we find no error in the trial court’s decision to preserve the status quo with regard to custody.

CONCLUSION

For the reasons stated, the judgment is affirmed. Costs of this appeal are to be paid by the appellant.

AFFIRMED.