author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Lavern Lee HAMPTON aka Pee Wee, Appellant.
    No. 46,363-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.
    Rehearing Denied July 29, 2011.

      James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellant.
    Jerry L. Jones, District Attorney, Stephen Sylvester, Fred Royce McGaha, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and DREW, JJ.
   GASKINS, J.

_jjThe defendant, Lavern Lee Hampton, was convicted of second degree murder and sentenced to serve the mandatory sentence of life in prison without the benefit of parole, probation, or suspension of sentence. The defendant has appealed, arguing that the evidence is insufficient to support the conviction. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

The defendant had been in a relationship with Vonkeisha Drake for four years. He lived with Ms. Drake and her two children at the home of Ms. Drake’s cousin, Angela Chapman. Ms. Chapman and her three children also lived in the house. The relationship between the defendant and Ms. Drake deteriorated and the defendant was asked to move out.

On August 14, 2008, shortly after the breakup, the defendant went to Ms. Chapman’s house to talk to Ms. Drake. Otis King, a family friend of Ms. Chapman, was at the house along with Bruce Johnson. According to Ms. Chapman, the defendant came from behind the house and charged at Ms. Drake. Mr. King stepped in front of the defendant to protect Ms. Drake. The defendant swung at Mr. King.

Mr. King and the defendant got into a tussle. Mr. King was larger than the defendant and was able to subdue him. Mr. King held the defendant down until he begged to be released. Mr. King allowed the defendant to get up. As he was walking away, the defendant said to Mr. King, “I got you.”

|gAt some point that day after leaving Ms. Chapman’s house, the defendant passed by a residence where Joshua James and several other men were sitting outside. The men observed that the defendant had been in a fight. The defendant related the tale of his altercation with Mr. King. According to the defendant, the men offered to return to Ms. Chapman’s house with him. The defendant decided to return to the Chapman residence to settle the score with Mr. King. The defendant armed himself with a big stick or log and Mr. James accompanied him to the Chapman house where they waited for Mr. King.

Mr. King had driven Ms. Chapman, one of her children, and Ms. Drake to a convenience store. The group arrived at Ms. Chapman’s house late in the evening, between 9:00 and 11:00 p.m. Ms. Drake and the child headed into the house followed by Ms. Chapman and Mr. King. The defendant and Mr. James came from behind the house on opposite sides and grabbed Mr. King, preventing him from entering the house. The women ran inside. The defendant knocked on the window with the large stick and told Ms. Drake, “I’m going to get you next.”

The defendant hit Mr. King in the head several times with the stick, causing a large gash on the back of the victim’s head. Mr. James had a gun and hit Mr. King in the head with it several times. At some point, either the defendant or Mr. James had a knife and stabbed Mr. King multiple times. One wound punctured Mr. King’s heart and two other wounds entered his lung. The victim’s wallet was taken and the two left the scene. Mr. King [ sbled to death from his wounds. Police were' summoned and the defendant was identified as one of the perpetrators.

Detective Quinton Holmes of the Monroe Police Department called the defendant’s cell phone number around 3:00 or 4:00 a.m. the next morning, but did not get an answer. Detective Holmes called the number again around 6:15 a.m. and the defendant answered. The defendant said he knew that Detective Holmes was a cop and stated, “I didn’t kill anyone.” Detective Holmes asked if he could come and pick the defendant up to talk to him. The defendant stated he would meet Detective Holmes at a local restaurant, but did not appear.

Another member of the Monroe Police Department knew where the defendant lived and officers went to that area, which was consistent with a GPS location of the defendant’s cell phone supplied by the defendant’s cell phone provider. Officers saw the defendant, who began running through a yard and an alley. After a two-block foot pursuit, the defendant was apprehended. The defendant asked to get his cell phone which was in the house being charged. The police retrieved the cell phone.

The defendant was arrested and advised of his Miranda rights; he then gave a statement to the police. The defendant detailed his original fight with Mr. King and admitted going to Ms. Chapman’s house a second time with another man, whose name he did not know, in order to settle the score with Mr. King. The defendant stated that he hit Mr. King in the head twice with a large stick, but claimed that the other man fought with the victim and took his wallet. Various scratches and cuts were observed on the ^defendant’s hands and torso. He claimed that he received the injuries when he fought with Mr. King the first time. He later said he was injured when he was arrested by the police.

After his interview, the defendant was transported by Detective Holmes. Detective Holmes asked the defendant who aided him in committing this crime. The defendant stated that he could assist in locating the man who helped him attack Mr. King. The defendant directed Detective Holmes to a house which the detective knew was inhabited by people who would not be cooperative with law enforcement officials. After calling for assistance from other officers, the male residents were cleared out of the house and positioned where the defendant could see them from his seat in the police car. Among the individuals was Joshua James, whom the defendant identified as the person who participated in the beating and murder of Mr. King. A search of the house yielded the victim’s wallet. Three shirts were found in a trash can behind the house. In the backyard, police recovered another shirt and a bicycle. In a search of Mr. James incident to his arrest, police recovered several credit cards and other cards belonging to Mr. King. Mr. James eventually directed officers to where they could recover the handgun used to beat Mr. King.

The defendant was charged by grand jury indictment with second degree murder. He was tried by jury and convicted of the second degree murder of Mr. King. The defendant filed a motion for post verdict judgment of acquittal and alternatively, a motion for new trial, claiming that the evidence was insufficient to support his conviction. The motions were | ^denied by the trial court. The defendant was sentenced to serve the mandatory sentence of life in prison without benefit of parole, probation, or suspension of sentence. The defendant appealed.

SUFFICIENCY OF THE EVIDENCE

On appeal, the defendant contends that the evidence was not sufficient to support his conviction for the second degree murder of Mr. King. According to the defendant, the state’s case against him was based entirely upon circumstantial evidence. The defendant argues that the state failed to show that he was involved in the armed robbery of Mr. King and failed to prove that he had the specific intent to kill the victim or that he actively desired the victim’s death. The defendant asserts that the state failed to prove that he inflicted any of the multiple stab wounds that killed Mr. King. The defendant also claims that the state failed to prove that he was a principal to murder because it failed to show that he aided or abetted in the robbery or indirectly counseled or procured another to commit the crime. These arguments are without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Smith, 44,998 (La.App.pdfi Cir.3/31/10), 34 So.3d 386, writ denied, 2010-0980 (La.12/10/10), 51 So.3d 722. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Smith, supra. The appellate court does not assess the credibility of witnesses or reweigh evidence. 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. Smith, supra.

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 the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Smith, supra; State v. Dooley, 38,763 (La.App.2d Cir.9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30.

The offense of second degree murder is defined by La. R.S. 14:30.1 which provides in pertinent part:

|7A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily-harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery, first degree robbery, second degree robbery, simple robbery, ... even though he has no intent to kill or to inflict great bodily harm.

To support a conviction of second degree murder under La. R.S. 14:30.1(A)(1), the state must show that the defendant had specific intent to kill or inflict great bodily harm. See State v. Ruffins,. 32,870 (La.App.2d Cir.12/10/99), 748 So.2d 614. Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Smith, 41,048 (La.App.2d Cir.6/30/06), 935 So.2d 797. As a state of mind, specific intent need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. The determination of whether the requisite intent is present is a question for the trier of fact. State v. Ellis, 28,282 (La.App.2d Cir.6/26/96), 677 So.2d 617, writ denied, 1996-1991 (La.2/21/97), 688 So.2d 521.

The state is not required to show that the defendant’s conduct was the sole proximate cause of the victim’s death in order to satisfy the causation element of this offense. Sufficient proof is presented where it is shown that the defendant’s actions were a “contributing cause” or a “substantial factor” in the resulting death of the victim. State v. Stone, 33,383 (La.App.2d Cir.5/15/00), 758 So.2d 997, writ denied, 2000-2145 (La.6/1/01), 793 So.2d 181.

|8Under La. R.S. 14:30.1(A)(2), no intent to harm or kill is necessary to be a principal to second degree murder occurring during the course of a robbery. State v. Grant, 623 So.2d 204 (La.App.2d Cir.1993), writ denied, 629 So.2d 400 (La.1993); State v. Brown, 43,775 (La.App.2d Cir.12/3/08), 999 So.2d 179, writ denied, 2009-0047 (La.9/25/09), 18 So.3d 81.

Regarding the law of principals, La. R.S. 14:24 provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure'another to commit the crime, are principals.

Only those persons who knowingly participate in the planning or execution of a crime are principals. Mere presence at the scene is therefore not enough to “concern” an individual in the crime. Moreover, an individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Pierre, 631 So.2d 427 (La.1994). All persons concerned in the commission of an offense, either directly or indirectly, are principals in the crime and culpable according to the mental state they possess at the time of the offense. It is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention. State v. Anderson, 1997-1301 (La.2/6/98), 707 So.2d 1223.

| pDiscussion

Ms. Chapman testified at trial that her cousin, Ms. Drake, lived with her at her house, along with Ms. Drake’s boyfriend, the defendant. The women’s children also lived in the house. Ms. Chapman stated that she asked the defendant to move out of the house. Ms. Chapman testified that on August 14, 2008, the defendant came from behind the house and charged at Ms. Drake. Mr. King was present. He stepped in front of Ms. Drake and told the defendant, “You ain’t fixing to fight her while I’m around here at Angie’s house.” The defendant started swinging and Mr. King was able to get the defendant down on the ground. The defendant begged to be let up and Mr. King complied. As the defendant was leaving, he said to Mr. King, “I got you.”

At approximately 11:00 p.m., Ms. Chapman returned from a convenience store with Mr. King and Ms. Drake. Ms. Chapman testified that when the group tried to enter the house, some boys pulled Mr. King out of the house, preventing him from entering. She stated that there were three attackers, one of which was the defendant. Ms. Chapman said she saw a gun lying on an old refrigerator outside the house. A struggle ensued between the men and Mr. King. According to Ms. Chapman, the defendant was holding a log; he tapped on a window of the house and told Ms. Drake, “I’m going to get you next.” After the fighting stopped, Ms. Chapman looked out and saw that Mr. King was bleeding to death.

Ms. Drake testified that at the time of this incident, she was living with her cousin, Ms. Chapman. The defendant had been her boyfriend and |10had lived with her at the house, but he had been asked to leave. Mr. King was a friend of Ms. Chapman’s and was at the house when the defendant came by on the day of this incident. The defendant was wearing basketball shorts and no shirt. Ms. Chapman saw the defendant, and called out to Ms. Drake to watch out because the defendant was behind her. Ms. Drake stated that the defendant was coming toward her like he was going to jump on her. Mr. King told the defendant that none of that was going on at Angela’s house. The defendant struck Mr. King and the two wrestled in a ditch. Mr. King held the defendant down until eventually the defendant asked to be let go. When Mr. King released him, the defendant indicated that he was going to get Mr. King.

Later that night, Mr. King took Ms. Chapman and Ms. Drake to a store. When they returned to the house, Ms. Chapman pushed Ms. Drake into the house. Ms. Drake testified that she saw the defendant outside the window holding a log or tree branch that was 14 to 16 inches long and as thick as the defendant’s forearm. It took both hands for the defendant to hold it. When Ms. Drake asked the defendant what he was doing with the log, he told her to shut up and that she was next. Ms. Drake stated that she never saw the defendant with a gun or a knife.

Detective Holmes testified at trial and outlined the events leading up to the arrest of the defendant, which are set forth above. Detective Holmes stated that blood was found on the door frame of the house where the defendant’s cell phone was located. Detective Holmes also detailed the fact lnthat the defendant gave a statement and led investigators to arrest Mr. James.

Detective Mark Nappier of the Monroe Police Department was present when the defendant gave his statement. Detective Nappier stated the defendant identified Mr. James as the individual who helped him attack Mr. King. When Mr. James was arrested, he had in his possession the victim’s credit cards and other cards. Detective Nappier also identified pictures of the defendant’s injuries taken on the day he was arrested for this offense. Detective Nappier testified that he had 18 years’ experience as a police officer and that it was not uncommon for someone using a knife to sustain cuts. Among the defendant’s injuries photographed at his arrest were small cuts on his hands consistent with the use of a knife.

Following his arrest, the defendant gave a státement to police. He stated that he went to Ms. Chapman’s house to talk to his girlfriend, Ms. Drake. He claimed that Mr. King ran around a truck and rushed him and they had a fight. While Mr. King had the defendant on the ground, the defendant gave up. After leaving the Chapman residence, the defendant went to a house on Crescent Drive where he had left his bicycle. Several men were sitting outside and noticed that the defendant had been in a fight. They offered to go back to the Chapman house with the defendant. The defendant stated that he was wearing shorts and a black hat with the letter “L” on it. He was carrying his shirt in his hand. The defendant and one of the men went back to the Chapman residence. The defendant claimed that he did not know the man’s name. The man was later identified as Mr. |12James. The defendant stated that Mr. James had a gun and the defendant was carrying a large stick. The defendant said that he went back to the house to get revenge on Mr. King. He stated that they walked through an alley and came around on opposite sides of the house. The defendant admitted hitting Mr. King in the head twice with the stick before Mr. James jumped into the altercation. According to the defendant, Mr. James hit Mr. King with the gun and took Mr. King’s wallet.

Captain Richard B. Jones of the crime scene identification division of the Monroe Police Department testified regarding the collection of evidence. He made photographs at the Chapman residence where Mr. King was killed and collected fingerprints and blood from a car and a truck at the residence. He took swabs from a refrigerator and a fence post at the scene. DNA analysis showed that the blood came from Mr. King.

At the house where Mr. James was arrested, a trash can was searched and photographed which contained three shirts and the victim’s wallet. A black shirt was found by the porch. A bicycle was found behind a storage building and a shirt was on the ground next to the bicycle. A white T-shirt tested positive for blood, but no DNA could be extracted from it. A tank top found behind the storage shed at Mr. James’s house tested positive for blood. The DNA showed that the blood was consistent with the victim, Mr. King. The shirt also showed non-blood DNA from a major contributor who was determined to be Mr. James. DNA from another individual was also present, but could not be identified. A shirt found in the backyard of Mr. James’s residence contained blood which was shown to have come from the [ isvictim. The gun recovered from Mr. James, which was used in the beating of Mr. King, had blood on it. The DNA analysis showed that the blood belonged to Mr. King.

At the house where the defendant was arrested, two streaks of blood were found on the front door, at hand height. DNA analysis showed that the blood belonged to the defendant. The defendant’s cell phone was found in the house. In the alley behind the house, police retrieved a black cap with the letter “L” on it. A pair of underwear taken from the defendant when he was arrested tested positive for the defendant’s blood.

Dr. Frank Peretti testified as an expert in forensic pathology. He performed the autopsy on Mr. King and stated that the victim had multiple stab and cutting wounds and multiple blunt force head injuries. Dr. Peretti described one blunt force injury to the head which was likely caused by something like a two-by-four or a baseball bat. The wound would have caused profuse bleeding. Other injuries were consistent with pistol whipping.

Among the abrasions and bruises on the body, Dr. Peretti noted superficial cuts on the victim’s arms classified as defense wounds inflicted by a knife. The victim had numerous stab wounds to his torso that did not penetrate deeply. Two stab wounds on the right side of the chest penetrated into the chest cavity. One wound entered the upper lobe of the right lung and the other wound entered the lower lobe. A stab wound on the left chest went into the pericardial sac and terminated in the right ventricle of the heart. Another stab wound entered the abdomen, but did not strike any |umajor organs. According to Dr. Peretti, the stab wounds to the lung and heart were the cause of Mr. King’s death. However, his other wounds, including the head wound, caused loss of blood which also contributed to the victim’s death.

The grand jury indictment against the defendant simply charges him with second degree murder, a violation of La. R.S. 14:30.1. It does not specify whether he violated La. R.S. 14:30.1(A)(1) or La. R.S. 14:30.1(A)(2). The evidence in this case clearly establishes all the elements of either charge beyond a reasonable doubt.

Under La. R.S. 14:30.1(A)(1), the state was required to show that the defendant had the specific intent to kill or inflict great bodily harm. The defendant erroneously argues that the state had to prove specific intent to kill. In this case, the defendant admitted arming himself with a log or large tree branch, enlisting the aid of Mr. James, going to the Chapman residence, lying in wait for Mr. King, and ambushing him. The defendant also admitted striking the victim in the head with the log or branch at least twice. The victim sustained a large gash on his head which bled profusely and contributed to his death. These facts show that the defendant participated in a brutal attack upon Mr. King and the defendant had, at the very least, the requisite specific intent to inflict great bodily harm. This is sufficient evidence upon which to base the defendant’s conviction for second degree murder.

Further, although it is unclear whether the defendant or Mr. James wielded the knife which inflicted the fatal wounds upon Mr. King, the |1fidefendant was at least a principal to second degree murder by virtue of the fact that he returned to the Chapman residence with Mr. James in order to attack Mr. King. If Mr. James inflicted the stab wounds, by enlisting and accepting the aid of Mr. James in ambushing Mr. King, the defendant directly or indirectly counseled or procured Mr. James to commit the crime. This is sufficient evidence upon which to base the defendant’s conviction for the offense charged.

Finally, the defendant and Mr. James acted together in ambushing and attacking Mr. King. During the course of the fatal attack, the victim’s wallet was stolen. This constitutes sufficient evidence for the trier of fact to conclude that the defendant was at least a principal to felony murder under La. R.S. 14:30.1(A)(2), which does not require the finding of specific intent to harm or kill.

Based upon this record, the evidence was ample to find that the defendant committed the essential elements of second degree murder beyond a reasonable doubt. The defendant’s arguments to the contrary are baseless.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Lavern Lee Hampton, for second degree murder.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, PEATROSS and DREW, JJ.

Rehearing denied.


source: Caselaw Access Project

author: WHIPPLE, J. McCLENDON, J.,

license: Public Domain

text:
    David DAWSON v. TERREBONNE GENERAL MEDICAL CENTER.
    No. 2010 CA 2130.
    Court of Appeal of Louisiana, First Circuit.
    May 19, 2011.

      Michael S. Zerlin, Thibodaux, LA, for Plaintiff/Appellee, David Dawson.
    David Shea, Houma, LA, for Defendant/Appellant, Terrebonne General Medical Center.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   WHIPPLE, J.

| ¡¡This matter is before us on appeal by an employer, Terrebonne General Medical Center (“TGMC”), from a judgment of the Office of Workers’ Compensation (“OWC”) in favor of the claimant, David Dawson. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 22, 2007, claimant, who was employed by TGMC as a “multi mechanic III” in the maintenance department, was cutting a large tree stump on TGMC property with a chain saw. The height of the stump was approximately six feet. After Dawson cut the stump from its base, Dawson pushed it off of the base so that the stump was lying on its side. As Dawson started cutting horizontally, the stump began to roll towards him. In an attempt to stop the stump from rolling over him, Dawson caught the stump by placing his right hand on the top of the stump and his left hand on the bottom of it. As the stump continued to roll toward him, Dawson felt his entire left arm “pop” under the weight of the stump.

Dawson immediately reported the accident to co-workers in the TGMC power plant and was told to report the accident to the dispatch office in the hospital. When Dawson arrived at the dispatch office to report the accident, the office was closed for the day. The next morning, March 23, 2007, Dawson reported the accident to the dispatch office, and was immediately sent to the TGMC emergency room. After examination and x-rays were taken in the emergency room, he was referred directly to Dr. Lawrence Haydel, an orthopedist. Dawson saw Dr. Haydel after leaving the emergency room that day. After Dr. Haydel examined Dawson and reviewed the x-rays, he advised Dawson that he had torn his bicep tendon from the back of his elbow. Thus, surgery was necessary to retrieve the tendon that had retracted to his shoulder and reattach it |sfrom where it had torn. On March 28, 2077, Dr. Haydel performed surgery to repair the left distal bicep tendon, after which Dr. Haydel referred Dawson to physical therapy. After receiving physical therapy, Dr. Haydel released Dawson to return to work in July of 2007.

After Dawson returned to work, he began experiencing problems with his left shoulder that became progressively worse. As he became increasingly concerned, Dawson called Dr. Haydel’s office to report these problems. Dawson testified that he was told by the nurse that Dr. Haydel had advised that “it was nothing” and that he should not be concerned about it. His shoulder condition continued to worsen, and on October 29, 2008, Dawson went to see a general physician, Dr. Bruce Guidry. Based on Dawson’s complaints, Dr. Guidry ordered an x-ray, cat scan, and MRI of his left shoulder and neck. Dr. Guidry referred Dawson to Dr. Haydel to read the MRI results. On February 3, 2009, Dawson returned to Dr. Haydel, and after reading the MRI, Dr. Haydel advised Dawson that he had a couple of tears in his shoulder, but that they were due to his age. Dawson testified that Dr. Haydel advised him that he could just “live with it” and that his complaints were “nothing to worry about.”

Dissatisfied with Dr. Haydel’s assessment, in March of 2009, Dawson went to see another orthopedist, Dr. Jason A. Higgins. Dawson related the same complaints concerning the use of his left arm, and Dr. Higgins ordered another MRI. On review of the MRI, Dr. Higgins found a “tear involving the superior aspect of the labrum with extension anteriorly and posteriorly ... and evidence of an anterior labral liga-mentous periosteal sleeve avulsion.” In accordance with these findings, Dr. Higgins opined that Dawson had suffered significant injury to |4his left shoulder as a result of a traumatic event. Dr. Higgins recommended that Dawson undergo ortho-scopic surgery to repair the damage to his shoulder.

Dawson subsequently brought all of the records from his treatment with Drs. Gui-dry and Higgins to his employer, TGMC. However, Gulf South Risk Services, TGMC’s third-party claims adjuster for workers’ compensation claims, denied Dawson authorization for the surgery.

As a result, Dawson filed a Disputed Claim for Compensation on June 29, 2009, seeking authorization for the shoulder scope, as recommended by Dr. Higgins, and attorneys fees and penalties for the employer’s unreasonable handling of his claim. TGMC filed an answer to Dawson’s claim, basically denying that Dawson had suffered a work-related injury.

The matter proceeded to trial and was heard before the OWC on July 12, 2010. At the conclusion of the trial, the-. OWC rendered oral reasons for judgment. A written judgment in conformity therewith was signed by the OWC on July 28, 2010, setting forth the following rulings of the OWC:

(1) That claimant, David Dawson, met his burden of proof by a preponderance of the evidence that the causal connection lies between the [work-related] accident of March 22, 2007, and the current [upper-extremity] problems;
(2) That claimant is entitled to medical treatment for the above stated [upper-extremity] conditions, with the exception of the initial office visit with Dr. Higgins, said cost of the initial visit to be borne by claimant;
(3) That claimant is entitled to other out-of-pocket and unpaid medical bills so related;
(4) That claimant’s original choice of orthopedic specialist was Dr. H. Lawrence Haydel;
ls(5) That the change to Dr. Higgins as claimant’s treating, physical/orthopedic medicine specialist of David Dawson is allowed;
(6) That the lien and medical claim for payment for any related medical treatment paid by Aetna Insurance must be asserted by Aetna Insurance against the employer, Terre-bonne General Medical Center, and not the Claimant, David Dawson;
(7) That penalties and attorney’s fees requested by claimant are denied, as defendant was not arbitrary and capricious/unreasonable in the adjusting of the claim;
(8) That claimant is awarded all allowable costs of these proceedings.

TGMC now appeals, assigning the following as error:

1. The [OWC] erred in failing to give more weight to the opinion of David Dawson’s treating physician, Dr. Lawrence Haydel, over the opinion of Dr. Jason Higgins.
2. The [OWC] erred in determining that David Dawson was allowed to change physicians from Dr. Lawrence Haydel to Dr. Jason Higgins.
3. The [OWC] erred in determining that the present problems with David Dawson’s shoulder were related to a work accident at TGMC.
4. The [OWC] erred in determining that the Employer was required to pay for the care and treatment that David Dawson received from Dr. Jason Higgins.
5. The [OWC] erred in determining that any Second Medical Opinion would be limited.

Dawson filed an answer to TGMC’s appeal seeking additional attorney’s fees for work incurred in having to defend this appeal.

DISCUSSION

Standard of Review

The jurisprudence clearly establishes that in workers’ compensation cases, the appropriate standard of review to be applied by appellate courts is the | ¿‘manifest error-clearly wrong” standard. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556; Smith v. J.E. Merit Constructors. Inc., 2001-2824 (La.App. 1st Cir.11/8/02), 835 So.2d 749, 753. For an appellate court to reverse a workers’ compensation judge’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the workers’ compensation judge and that the record establishes that the finding is clearly wrong. See Stobart v. State, through Depariment of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the workers’ compensation judge’s finding. Smith v. J.E. Merit Constructors, Inc., 835 So.2d at 753. The reviewing court must review the record in its entirety to determine whether the workers’ compensation judge’s finding was clearly wrong or manifestly erroneous. See Stobart v. State, through Depariment of Transportation and Development, 617 So.2d at 882.

The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, through Depart- merit of Transportation and Development, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. 7State, through Department of Transportation and Development, 617 So.2d at 883.

Assignment of Error Number One

TGMC first contends that the OWC erred in failing to give more weight to the opinion of Dawson’s treating physician, Dr. Haydel, over the opinion of Dr. Higgins. When faced with the question of whether to accept the opinion of a non-treating physician specialist over the opinion of a treating physician specialist, this circuit has previously held that the trial court ultimately retains the discretion to weigh and consider such competing testimony, despite any applicable presumptions. As set forth by this court in Ponthier v. Vulcan Foundry, Inc., 95-1343 (La.App. 1st Cir.2/23/96), 668 So.2d 1315:

Experts’ testimony may be given different weights depending on their qualifications and the facts upon which their opinions are based. For example, the general jurisprudential rules are that a treating physician’s opinion is given more weight than a non-treating physician, and the testimony of a specialist is entitled to greater weight than a general practitioner. The trial court, however, is not bound to accept the testimony of an expert whose testimony is presumptively given more weight if he finds the opinion is less credible than that of other experts. As the supreme court explained in Middle Tennessee Council v. Ford, 274 So.2d 173, 177 (La.1973):
The weight to be given to the testimony of experts is largely dependent upon their qualifications and the facts upon which their opinions are based. However, the sincerity and honesty of the opinions expressed are matters which the trial judge is in a particularly advantageous position to determine. It is, in effect, in part, a question of credibility, and when the experts are widely disparate in their conclusions, the rule has special relevance.

Ponthier v. Vulcan Foundry, Inc., 668 So.2d at 1317. (Footnotes omitted.) (Emphasis added.)

On review of the record herein, we note that while neither Dr. Haydel nor Dr. Higgins testified at the trial, their respective medical records pertaining to Dawson were introduced. While Dr. Haydel was of the opinion that the tears |sshown on Dawson’s MRI and his shoulder complaints were due to his age, Dr. Higgins opined that the injury to Dawson’s shoulder was caused by trauma. The only shoulder trauma recounted by Dawson to Dr. Higgins and in his trial testimony was the trauma that he sustained in the work-related accident at TGMC in March of 2007. Although both physicians were qualified to give an opinion as to the nature and treatment of Dawson’s shoulder injury and to opine as to whether his condition was related to the March 2007 work accident at TGMC, the OWC had the discretion to evaluate all of the testimony and to determine which expert’s opinion was most credible. This determination cannot be disturbed unless found to be manifestly erroneous. On the record before us, after careful review of the medical records and testimony offered herein, we find the OWC’s conclusions are amply supported. Thus, we are unable to find manifest error in the OWC’s determination.

Thus, we find no merit to this assignment of error.

Assignment of Error Numbers Two and Four

In these assignments of error, TGMC contends that the OWC erred in determining that Dawson was entitled and allowed to change physicians from Dr. Haydel to Dr. Higgins and further erred in determining that the employer was required to pay for the care and treatment that Dawson received from Dr. Higgins.

In upholding Dawson’s decision to seek a second opinion from Dr. Higgins, the OWC relied on LSA-R.S. 23:1121(D), noting that pursuant to LSA-{R.S.9 23:1121(D) “[a]fter all examinations have been conducted, but prior to any order directing the injured employee to return to work, the employee shall be permitted at his own expense to consult with and be examined by a physician of his own choosing.” The OWC further ordered that Dawson would be responsible for payment of the initial visit with Dr. Higgins, but that his employer was required to pay for subsequent treatment from Dr. Higgins, noting that “since this was [Dawson’s] second opinion, the initial visit and ... evaluation has to go on him. But, any subsequent ones, because I am allowing him to switch the change of physician because he felt that Dr. Haydel was no longer working in his best interest and he actually went to someone else, I will allow the change of physician.” On review, we find no error in the OWC so ruling.

Dawson testified that although he had returned to work as a result of financial necessity, he continued to have problems with his shoulder and that these problems became progressively worse. Dawson explained that his condition got to the point where he had to use his right arm to move his left hand out from his pocket because he could not move his shoulder at all. Dawson voiced these complaints to Dr. Guidry, who ordered an x-ray, cat scan, and MRI and sent Dawson back to Dr. Haydel to obtain the results of his reading of the MRI. Dawson testified that Dr. Haydel told him that he had a “couple of tears” in his shoulder, but felt that they were “due to age ... [that] people just live with it ... [and] it’s nothing to worry about.” Dawson testified that he did not like what Dr. Haydel had to say and that he felt that Dr. Haydel just “passed it off.” Dawson testified that he did not feel like he was old enough to be falling apart and that he knew there was a real problem when he had to use one arm to pull the other from his pocket. The OWC specifically found that Dawson was “credible” and that she “believed him.”

| inAccordingly, we reject TGMC’s argument that LSA-R.S. 23:1121(B) prohibited Dawson’s change of orthopedists. The OWC specifically found that Dawson’s change of physician, or second opinion by Dr. Higgins, was permitted under LSA-R.S. 2S:1121(D). On review, we find no error in this determination.

Moreover, we note that although Dawson returned to work because he could not afford to be “out of work,” the record shows that he clearly questioned his fitness to return given his ongoing problems with his shoulder, which progressively worsened. Thus, we are unable to find the OWC erred in concluding that Dr. Haydel basically refused to treat him further and effectively “passed it off.” As the OWC noted, Dawson felt that Dr. Haydel was not working in his best interest. In similar circumstances, the decision to allow a claimant to change specialists has been affirmed by other courts. See Morgan v. New Orleans Cold Storage, 603 So.2d 190 (La.App. 4th Cir.1992). On review of the evidence of the record herein, we are unable to find error in the OWC’s decision to allow Dawson to change orthopedic specialists.

Accordingly, given the OWC’s approval of Dawson’s actions in seeking a new physician to address continuing problems arising from his work-related injury, we find no error in the OWC’s ruling that Dawson is responsible for the initial visit and evaluation, and the employer is responsible for any subsequent treatment recommended by the second opinion physician in accordance with luLSA-R.S. 23:1121(D). Luper v. Wal-Mart Stores, 2002-0806 (La.App. 1st Cir.3/28/03), 844 So.2d 329, 336-337.

Thus, we likewise find no merit to these assignments of error.

Assignment of Error Number Three

In its third assignment of error, TGMC contends that the OWC erred in determining that Dawson’s shoulder injuries were related to a work accident at TGMC.

The claimant in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992). Notably, a worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt on the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Hayes v. Louisiana State Penitentiary, 2006-0553 (La.App. 1st Cir.8/15/07), 970 So.2d 547, 555, writ denied, 2007-2258 (La.1/25/08), 973 So.2d 758. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Corroboration may also be provided by medical evidence. Hayes v. Louisiana State Penitentiary, 970 So.2d at 555.

In determining whether the worker has discharged his burden of proof, the trier of fact should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” Bruno v. Har-bert International Inc., 593 So.2d at 361. The OWC’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations, which are not to be disturbed on review unless clearly 112wrong or manifestly erroneous. Bruno v. Harbert International Inc., 593 So.2d at 361.

As noted above, in rendering its findings, the OWC specifically found that Dawson’s testimony was “credible” and that she “believed him.” In determining that Dawson’s shoulder injury was related to the accident in March of 2007 at TGMC, the OWC noted that Dawson’s testimony was corroborated by Dr. Higgin’s report of April 16, 2009, where he noted, “At this point, I certainly feel that there was trauma that caused this injury to his shoulder with the nature of his injury and feel that therapy will not help him and I recommend surgery.”

On review, we find that Dawson met his burden of proving a work-related accident by a preponderance of the evidence. Absent any contradictory evidence in the record by TGMC to cast suspicion on Dawson’s testimony, which was corroborated by Dr. Higgins’s medical findings, we cannot say the decision of the OWC is manifestly erroneous.

Accordingly, this assignment of error also lacks merit.

Assignment of Error Number Five

In its final assignment of error, TGMC contends that the OWC erred in ruling that TGMC was entitled to a second medical opinion, but that any second medical opinion would be limited to the issue of the necessity and type of surgery, as the OWC has determined that Dawson’s injury is related to his work accident in March 2007.

In its oral reasons, the OWC ruled that TGMC would be allowed to seek a second medical opinion “to determine: Is surgery necessary or not or what type of surgery, that can be determined.” Given the OWC’s finding that the injury was work-related, it noted, “if your doctor says, ‘This isn’t related,’ that’s off the table.” However, any finding or ruling on this issue is not mentioned or contained in the July 28, 2011 judgment of the OWC before us.

13Appeals are taken from the judgment, not the reasons for judgment. See LSA-C.C.P. arts. 1917, 1918, 2082 and 2083; Greater New Orleans Expressway Commission v. Olivier, 2002-2795 (La.11/18/03), 860 So.2d 22, 24. Courts of appeal are constrained to review judgments on appeal. Huang v. Louisiana State Board of Trustees for State Colleges and Universities, 99-2805 (La.App. 1st Cir.12/22/00), 781 So.2d 1, 6.

Accordingly, this assignment of error is pretermitted.

Answer to Appeal

Dawson filed an answer to the instant appeal seeking attorney’s fees incurred for work performed in defending this appeal. After having reviewed this matter, we do not find that the award of attorney’s fees is warranted under the circumstances. Accordingly, Dawson’s request in the answer to appeal is denied.

CONCLUSION

Based on the above and foregoing reasons, the July 28, 2010 judgment of the OWC is affirmed. Dawson’s answer to appeal is denied. Costs of this appeal are assessed against the defendant/appellant, Terrebonne General Medical Center.

AFFIRMED.

McCLENDON, J., dissents and assigns reasons.

McCLENDON, J.,

dissents and assigns reasons.

| T Both the workers’ compensation judge (“WCJ”) and the majority rely on LSA-R.S. 23:1121(D) in finding that Mr. Dawson was entitled to seek treatment with a second orthopaedist. However, I do not believe that provision is applicable to the facts of this case. Specifically, LSA-R.S. 23:1121(D) provides, in pertinent part:

After all examinations have been conducted but prior to any order directing the injured employee to return to work, the employee shall be permitted, at his own expense, to consult with and be examined by a physician of his own choosing. (Emphasis added.)

It is undisputed that Mr. Dawson had returned to work before seeking treatment from a second orthopaedist. Louisiana Revised Statutes 23:1121 gives an injured employee an absolute right to select one physician in any field without the approval of the employer, but it does not invest the claimant with the right to multiple treating physicians. Reed v. St. Francis Medical Center, 44,211, p. 7 (La.App. 2 Cir. 4/8/09), 8 So.3d 824, 828-29. As with a claim for medical expenses under LSA-R.S. 23:1203, the claimant, in the absence of approval by the employer or insurer in accordance with LSA-R.S. 23:1121, must show that a choice of a new treating physician is medically necessary. See Reed, 44,211 at p. 7, 8 So.3d at 829 and Stelly v. United Parcel Service, 600 So.2d 156, 159-60 (LaApp. 3 Cir.1992). Thus, the proper inquiry is whether claimant’s |2treatment by the second orthopaedist is medically necessary. LSA-R.S. 23:1203 and Reed, 44,211 at p. 7, 8 So.3d at 829.

In this regard, the WCJ made no finding as to medical necessity. Nor do I find that Mr. Dawson’s testimony that he did not like what his first orthopaedist told him and he felt that said orthopaedist had just “passed it off’ sufficient to establish medical necessity. Cf Stelly, 600 So.2d at 159, where technology had improved since claimant’s accident and greater clarity of detail was available through the MRI that had not been available at the time of treatment with his prior orthopaedist and Rushing v. Winn-Dixie Louisiana, Inc., 06-2016, pp. 5-6 (La.App. 1 Cir. 8/1/07), 965 So.2d 462, 465, where claimant was entitled to change physicians when his first physician’s medical privileges were revoked and his second treating physician had retired. Therefore, I must respectfully dissent.

      . Although Dawson initially returned to his employment at the maintenance department at TGMC, he subsequently left that employment and, at the time of trial, he was employed in the maintenance department at Fletcher Technical Community College.

      . Dawson was 44 years old at the time of this appointment.

      . In particular, LSA-R.S. 23:1121(D) provides, as follows:
      After all examinations have been conducted but prior to any order directing the injured employee to return to work, the employee shall be permitted, at his own expense, to consult with and be examined by a physician of his own choosing. Such report shall be considered in addition to all other medical reports in determining the injured employee's fitness to return to work. Should disagreement exist, after such consultation and examination, as to the fitness of the employee to return to work, the provisions of R.S. 23:1123 shall be followed.

      . Pursuant to LSA-R.S. 23:1121(B):
      (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

      . Given that the factual finding of the WCJ was interdicted by legal error and based on the specific facts of this case, a remand to determine medical necessity may be appropriate.