author: WHIPPLE, J.

text:
    LOUISIANA ALL STAR BASEBALL CORPORATION & Richard Brown v. STATE of Louisiana through the DEPARTMENT OF REVENUE OFFICE OF CHARITABLE GAMING.
    No. 2011 CA 0408.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.

      G. Blane Clark, Jr., Kevin C. Curry, G. Trippe Hawthorne, Jennifer B. McLean, Baton Rouge, LA, for Plaintiffs/Appellants, LA All Star Baseball & Richard Brown.
    Michael L. Tyler, Karen L. Godwin, Baton Rouge, LA, for Defendant/Appellee, State of Louisiana Through the Department of Revenue Office of Charitable Gaming.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   WHIPPLE, J.

| yThis matter is before us on appeal by plaintiffs, Louisiana All Star Baseball Corporation and Richard Brown (collectively referred to as “LASB”), from a judgment of the district court affirming the decision of the administrative law judge in favor of defendant, the State of Louisiana through the Department of Revenue, Office of Charitable Gaming. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

LASB is a Louisiana nonprofit charitable organization registered as a 501(c)(3) corporation with the Internal Revenue Service. LASB’s stated mission is to enhance youth sports, particularly baseball, in the Baton Rouge community. LASB receives funding from the operation of charitable bingo games as a licensee under the Louisiana Charitable Raffles, Bingo and Keno Licensing Law, LSA-R.S. 4:701, et seq.

The Louisiana Legislature has recognized the state’s role and responsibilities in ensuring that the net proceeds from charitable games of chance conducted pursuant to Louisiana’s charitable gaming laws are contributed to bona fide charitable causes. LSA-R.S. 4:702(A). Further, pursuant to LSA-R.S. 4:702(B), “it shall be the policy of the State of Louisiana to decrease the potential for fraud in charitable games of chance and to increase compliance with the provisions of the Charitable Raffles, Bingo, and Keno Licensing Law and other applicable laws and regulations through monitoring and enforcement as well as public education and awareness of the purposes of these laws and regulations.” The Louisiana Department of Revenue, through its Office of Charitable Gaming, is charged with the regulatory authority and oversight of charitable gaming to ensure that the net proceeds of charitable games of chance are contributed to bona fide charitable causes. LSA-R.S. 4:702(A). The Office of Charitable Gaming is further charged with the duty to monitor licensees to ensure compliance with all ^provisions of law and regulations relative to charitable gaming through routine scheduled and unscheduled inspections and when warranted, investigations and audits. LSA-R.S. 4:705(6).

In accordance with this statutory authority, in 2007, an auditor with the Louisiana Department of Revenue, Office of Charitable Gaming (hereinafter referred to as the “OCG”) conducted a routine audit of LASB for the period of April 1, 2006, through March 31, 2007. As a result of the auditor’s findings, on November 19, 2007, the OCG issued a “Notice of Violation and Penalty Based on Audit Findings” to LASB, through its President, Richard Brown. The notice by the OCG set forth four specific audit findings in violation of the Louisiana Charitable Gaming Law by LASB, as follows: (1) inaccurate and incomplete session records; (2) practices by the licensee in violation of Treasury Regulation § 1.501(c)(3) in that the licensee’s net earnings in whole or in part were used to benefit private shareholders or individuals; (3) the receipt by the licensee’s members and/or members of their immediate family of either direct or indirect compensation and personal economic and financial benefit from the charitable gaining account in violation of LSA-R.S. 4:715(A)(2); and (4) the use by the licensee of net gaming proceeds in whole or in part for purposes other than educational, charitable, patriotic, religious or public-spirited purposes in violation of LSA-R.S. 4:735, LSA-R.S. 4:705(4) and (11), LAC 42:1.1783, and LAC 42:1.1787. Accordingly, the OCG imposed a fine of $100.00 for violations one and two and a fine of $500.00 for violations three and four. The OCG also attached a spreadsheet to the Notice of Violation, outlining therein the specific prohibited contributions discovered in the audit.

LASB challenged the Department’s findings and a hearing was held before an administrative law judge (ALJ) on January 25, 2010. Prior to the hearing, the parties entered into a stipulation that LASB would pay a $100.00 fine as to the |4first violation set forth in the notice and that the OCG had dismissed the second violation. Thus, the matter proceeded to trial on the third and fourth violations set forth in the notice. After the hearing and the submission of post-trial briefs, in a decision rendered on February 17, 2010, the All agreed with the OCG and concluded that as to violation item three, LASB violated the provisions of LSA-R.S. 4:715(A)(2)(a) and imposed the recommended civil fine of $500.00. The ALJ further concluded that as to violation item four, LASB violated the provisions of LSA-R.S. 4:735; thus, the ALJ likewise imposed the OCG’s proposed civil fine of $500.00.

In support of the ruling and the imposition of penalties, the All rendered the following findings of fact:

1
Pursuant to the Charitable Raffles, Bingo and Keno Licensing Law, LASB possesses a license to participate in Louisiana’s charitable gaming industry.
_k
OGC completed an audit of LASB, auditing the period of April 1, 2006 through March 31, 2007.
3
On November 19, 2007, OCG issued a Notice of Violation and Penalty Based on Audit Findings asserting four violations by LASB of the Louisiana Charitable Gaming Laws and Rules.
4
Of the four alleged violations the parties stipulated to payment of a $100.00 fine for the first alleged violation and the second alleged violation was dismissed prior to the hearing.
5
Persons designated as members or Member-in-Charge of LASB are authorized to hold, operate, or conduct the games of chance permitted under LASB’s lieense[.]
6
Richard Brown was the President, Treasurer, Director, and Member-in-Charge of LASB during the period of the audit and is the father of [B.B.] and [L.B.]
7
LASB paid sports training and lessons fees for [B.B.] and [L.B.] that relieved Mr. Richard Brown from having to use his personal income for payment of those fees.
8
One of the payments made by LASB was a “parental gift” of $380.00 to Catholic High School on behalf of [B.B.].
9
[B.C.] is the son of John and Susan Cryer and all three were members of LASB during the period of the audit.
10
[B.C.’s] summer sports training, fall semester expenses, food service costs, and spring semester expenses at the University of New Orleans were paid by LASB, that relieved John and Susan Cryer from having to use their personal income for payment of these expenses.
11
[C.E.] is the son of Randy Ernest. Randy Ernest was a member of LASB during the period of the audit.
12
[C.E.’s] college text books were paid for by LASB that relieved Mr. Randy Ernest from having to use his personal income for payment of these fees.
J¿3
Randy Ernest and his family’s travel expenses to Walt Disney World and stay at the Embassy Suites were paid by LASB.
14
[J.W., Jo.W., and Je.W.] are the minor children of Laurel Burroughs Wilson. Laurel Burroughs Wilson was a Member-in-Charge of LASB during the period of the audit.
15
LASB paid sports training and lessons fees for [J.W., Jo.W., and Je.W.] that relieved Laurel Burroughs Wilson from having to use her personal income for payment of these fees.
16
[K.W.] was a member of LASB during the period of the audit.
17
[K.W.’s] cheerleading expenses and physical rehabilitation expenses were paid by LASB that relieved her from having to use her personal income for payment of these fees.
18
[M.G.] and [T.G.] are the children of Tim Guidry. Tim Guidry was a member of LASB during the period of the audit.
19
LASB paid sports training and flight and hotel fees for [M.G.] and [T.G.] that relieved Mr. Tim Guidry from having to use his personal income for payment of these expenses.
20
Vicki Wall was the Vice-President, Director, and Member-in-Charge of LASB during the period of the audit.
21
LASB paid Vicki Wall for administrative, bookkeeping, and clerical work.
22
Lance Caraccioli was a member of LASB during the period of the audit.
23
Lance Caraccioli was paid by LASB to provide baseball coaching services.'
24
Joshua Wall was a member of LASB during the period of the audit.
1725
Joshua Wall was paid by LASB to provide baseball coaching services[.]

The ALJ also rendered “Conclusions of Law,” wherein the ALJ agreed with the OCG’s position that under the applicable statutory scheme, the first consideration, regardless of the ultimate use or purpose of the expenditure, is whether the payments at issue were made to a “bona fide charitable cause,” which the ALJ found did not occur herein.

By petition filed on March 17, 2010, the LASB sought judicial review of the All’s decision in the Nineteenth Judicial District Court. Following briefing and argument, on November 8, 2010, the district court rendered oral reasons affirming the All’s decision. A written judgment in conforming with the district court’s oral reasons was signed on November 19, 2010.

LASB then filed the instant appeal, essentially contending that: (1) the district court’s finding that members or members of their family received direct compensation from charitable gaming proceeds is not supported by the evidence; and (2) that the district court applied an incorrect standard of law when it imposed the requirement that an organization’s contribution of charitable gaming proceeds made to a member or members of their family must be based on a showing that the individual is indigent or in need.

DISCUSSION

The petition for judicial review or appeal from an administrative proceeding involving a charitable gaming licensee shall be filed in the district court of the parish of the domicile of the licensee and judicial review shall be conducted by trial de novo and conducted by summary procedure. LSA-R.S. 4:737. The Administrative Procedure Act specifies that judicial review shall be confined to the record, as developed in the administrative proceedings. LSA-R.S. 49:964(F). Thus, the district court may reverse or modify the agency | ^decision if substantial rights of the appellant are prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or an abuse of discretion; or (6) manifestly erroneous. LSA-R.S. 49:964(G); See Devillier v. State, Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Division of Charitable Gaming Control, Gaming Enforcement Section, 634 So.2d 884, 890 (La.App. 1st Cir.1993), writ denied, 635 So.2d 1101 (La.1994). The manifest error test is used in reviewing the facts as found by the administrative tribunal; the arbitrary and capricious test is used in reviewing the administrative tribunal’s conclusions and its exercise of discretion. Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1152, 1159 (La.1984). On legal issues, the reviewing court gives no special weight to the findings of the administrative tribunal, but conducts a de novo review of questions of law and renders judgment on the record. See State Through Louisiana Riverboat Gaming Commission v. Louisiana State Police Riverboat Gaming Enforcement Division, 95-2355 (La.App. 1st Cir.8/21/96), 694 So.2d 316, 319.

ASSIGNMENT OF ERROR NUMBER TWO

For ease of discussion, we first address LASB’s second assignment of error and contention that the district court applied an “incorrect standard of law,” “when it ruled that an organization’s contribution of charitable gaming proceeds made to a member or member of their family must be based on a showing that the individual is indigent or in need,” which precondition LASB argues, is not a requirement found in the applicable statutes. LASB further argues that while the ALJ found the contributions at issue were not for bona fide charitable causes ^pursuant to LSA-R.S. 4:702, the contributions were nonetheless made for educational uses as authorized by LSA-R.S. 4:707(0, and, accordingly, should have been upheld as proper.

As set forth above, the stated purpose of Louisiana’s Charitable Gaming Law is to ensure that the net proceeds of such games are contributed to bona fide charitable causes. LSA-R.S. 4:702(A). Moreover, the OCG has authority to license charitable organizations, such as LASB, to “participate in such games and ... conduct the games accordingly when the entire net proceeds of such games of chance are to be devoted to educational, charitable, patriotic, religious, or public spirited uses.” LSA-R.S. 4:707(C).

Herein, the ALJ made the specific finding that “[pjretermitting whether the payments were for an educational purpose, there was no evidence that any of the payments were made to bona fide charitable causes.” The ALJ agreed with the OCG’s position, as reflected in the testimony of Michael Legendre, the Director of the OCG, that in accordance with Louisiana Law, before any of the five permissible uses set forth in LSA-R.S. 4:707 are considered, the OCG’s first consideration is (and, in accordance with statute, must be) whether the payments are made to a bona fide charitable cause as required by LSA-R.S. 4:702. The OCG determined through the audit that the contributions at issue were made for the personal benefit of members and family members of members. Mr. Legendre further testified that the Notice was issued in accordance with the position of the OCG that “the organization’s purpose is to benefit communities and civic associations alike and not individuals of the organization.”

| inHeather Crotwell, the OCG auditor in this case, similarly testified that if a contribution is made to a member or for the direct benefit of a member or family member of a member, it is not a charitable donation and cannot be cloaked as “educational.” Ms. Crotwell stated that the purpose of charitable gaming is to allow charitable 501(C)(3) organizations to be able to make money to benefit their charity and to follow the mission as stated in their by-laws and articles of incorporation. Her audit revealed that the expenditures and contributions at issue were not charitable in nature in that individual LASB members and individual family members of LASB members reaped the benefits of the net gaming proceeds at the will of the organization with no showing of need or merit. She also stated that there was no evidence of any contributions to teams in the community.

After considering all of the testimony and evidence, the ALJ agreed with the OCG that such expenditures were required by law to be made to “bona fide charitable causes,” and concluded that there was no evidence that the so-called “educational” contributions were made to “bona fide charitable causes.” On review, the district court affirmed the ALJ’s factual findings and legal conclusions. In doing so, the district court reasoned that to accept LASB’s contention, ie., that as long as a contribution is for an “educational purpose,” it is permissible under the act, would completely ignore the declared purpose of the act as set forth in LSA-R.S. 4:702, which is that net proceeds of charitable gaming can only be contributed to a bona fide charitable cause. We agree.

The starting point for interpretation of any statute is the language of the statute itself. Raudo v. Anco Insulations, Inc., 2008-1163 (La.5/22/09), 16 So.3d 1065, 1075. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law is applied as written, and no further interpretation may be made in search of legislative intent. LSA-C.C. art. |1¶9. However, when the language of a law is susceptible to different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole. LSA-C.C. art. 10. The Louisiana Supreme Court, elaborating upon this principle, stated in Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (1962):

In construing a statute, the primary object is to ascertain and, if possible, give effect to the intention and purpose of the legislature as expressed in the statute. Since the meaning is to be determined from a general consideration of the act as a whole, all parts, provisions or sections must be read together; each must be considered with respect to, or in the light of, all the other provisions, and construed in harmony with the whole. The intent as deduced from the whole will prevail over that of a particular part considered separately. Meaning should be given, if possible, to each and every section, and the construction placed on one portion should not be such as to obliterate another; so, in determining the meaning of a word, phrase or clause, the entire statute is to be considered.

In sum, LSA-R.S. 4:707 must be read and construed with the entire statutory scheme of the charitable gaming laws as a whole, including the stated purpose therein. Considering that the purpose of the charitable gaming laws, as clearly declared in LSA-R.S. 4:702, is to ensure that the “net proceeds of charitable games of chance ... are contributed to bona fide charitable causes,” to the extent, if at all, that LSA-R.S. 4:707 and LSA-R.S. 4:702 conflict, as contended by LASB, we are required to give effect to the intention and purpose of the legislature as expressed in the statute. Thus, we find no error in the district court’s decision to affirm the All’s ruling, as there was no evidence presented to show that the contributions at issue were made in accordance with the threshold legal requirement that such payments be made to bona fide charitable causes.

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

| ^ASSIGNMENT OF ERROR NUMBER ONE

We also find no merit in LASB’s remaining assignment of error, i.e., that the district court’s finding that members or members of their family received direct compensation and personal economic financial benefit is not supported by the evidence.

The charitable gaming laws provide that members that hold, operate, or conduct any licensed game or games of chance shall receive “no commission, salary, compensation, reward, or recompense ... directly or indirectly.” LSA-R.S. 4:715(A)(2)(a). Rather, member payment for working games of chance “shall be no more than ten dollars per hour and in any event shall not exceed fifty dollars per session ... [and] shall be subject to the reporting provisions of R.S. 4:716.” LSA-R.S. 4:715(A)(2)(b). Violations of the provisions of the charitable gaming rules and regulations are punishable by civil penalty imposed by the CGO. LSA-R.S. 4:735(A).

As noted by the ALJ and the district court, the evidence and undisputed testimony establishes in detail the numerous instances, as discerned through the audit, in which LASB members and family members of LASB members who worked bingo games and provided other services for LASB received recompense in the form of sports training fees, lessons, equipment, uniforms, physical therapy |1sand rehab services, travel flight and hotel expenses, college tuition, food, and book expenses, coaching services, etc. Moreover, in one particular instance, a parental contribution was made by LASB on behalf of an LASB member and his wife, in the name of the member’s son, to their son’s high school.

LASB argues, however, that the payments at issue were “donations” and did not serve as compensation for working bingo games in violation of LSA-R.S. 4:715(A)(2)(a). In support, LASB notes that the OCG Auditor Crotwell testified that she did not render a specific audit finding tying the services rendered or the work for a specific service to a specific donation or contribution.

Contrariwise, OCG counters that the audit review of LASB’s membership roster, bingo payroll, and other documentation for the audit period revealed that the members or family members of members who received these significant contributions performed work for LASB, but did not receive payment for their services rendered. Thus, although the OCG auditor testified that she did not render a specific finding tying the services rendered or the work for a specific service to a specific donation or contribution, the fact that LASB members worked and received no compensation or salary, but at the same time received significant contributions for themselves or their immediate family, evidenced a general intent to allow such contributions to indirectly compensate members for services rendered. Accordingly, OCG maintains the particular contributions at issue herein, made to members or family members of members that had worked for LASB, constituted payment in violation of LSA-R.S. 4:715(A)(2)(a).

In its oral reasons, the district court noted that “these payments were, in fact, compensation, reward, or recompense made in violation of [LSA-R.S. 4:]715(A)(2).” The district court further found:

| i4[T]he record clearly supports the finding of the administrative law judge that members of the organization and/or their immediate family members did receive a direct compensation and personal economic financial benefit from the charitable gaming account, that being proceeds, net proceeds, from the games of chance, in violation of R.S. 4:715(A)(2), and that All Star Baseball used net gaming proceeds in whole or in part for uses other than that allowed by 702(A) in violation of 735(9).

Considering the record and the applicable the law herein, we find no error in the judgment of the district court.

This assignment of error also lacks merit.

CONCLUSION

For the above and foregoing reasons, the November 19, 2010 judgment of the district court is affirmed. All costs of this appeal are assessed against the plaintiffs/appellants, Louisiana All Star Baseball Corporation and Richard Brown.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . Louisiana Revised Statute 4:715(A)(2)(a) provides that:
      No commission, salary, compensation, reward, or recompense, including but not limited to granting or use of bingo cards without charge or at a reduced charge, shall be paid or given directly or indirectly to any person holding, operating, or conducting any licensed game or games of chance.

      . Louisiana Revised Statute 4:735 provides, in pertinent part, as follows:
      A. Any person, association, or corporation which violates any provision of this Chapter including the specifically enumerated acts contained in Subsection B of this Section or any rule or regulation of the office shall be subject to a civil penalty imposed by the office as further provided in R.S. 4:721 and to suspension or revocation of its license as further provided in R.S. 4:705.

      .Considering the nature of these proceedings and the ALJ’s factual findings, we have used initials when referring to the minors identified in these matters.

      . in support of the contention that the district court applied the incorrect standard of law, LASB notes that in discussing whether the contributions made by LASB were made to bona fide charitable causes, the district court observed that none of the recipients of these contributions were "indigent or in need.” Considering the district court's reasons for judgment in their entirety, we find no merit to this claim, as the record shows that despite this casual observation by the district court in the course of its ruling, the court clearly applied the correct standard of review when determining the issues herein.

      . Louisiana Revised Statute 4:715(A)(2)(b) provides:
      Any person, association, or corporation licensed to hold, operate, or conduct any games of chance under any license issued pursuant to this Chapter may compensate, for services rendered, any fifteen employees, including a bingo caller, who assist in the holding, operating, or conducting of such games. The rate of compensation shall be no more than ten dollars per hour and in any event shall not exceed fifty dollars per session for any employee. Each employee or volunteer worker may also be provided meals and beverages to be eaten on the premises not to exceed a total value of fifteen dollars per person. Expenditures made under the provisions of this Subsection shall be subject to the reporting provisions of R.S. 4:716. Compensation provided for in this Paragraph shall not constitute a violation of the prohibition against the payment or giving of a commission, salary, compensation, reward, or recompense to any person holding, operating, or conducting any such game.

      . While we are sympathetic to LASB’s argument that prohibition of the type of contributions at issue herein may discourage parent members to serve as volunteers, we agree with the district court that “just because a person volunteers to help or becomes a member doesn’t automatically mean they're entitled to receive a portion of the net proceeds from charitable gaming without any further showing of compliance with both 702 and 707.” Moreover, we note that although LASB has not paid members for working bingo games and providing other services in the past, LASB parent members who volunteer to work at the charitable games of chance can take advantage of member payment through the procedures set forth in LSA-R.S. 4:715(2)(b) and while furthering LASB’s mission of encouraging members to be involved with their child.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Leon BROWN.
    No. 2011 KA 0363.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.

      Hillar C. Moore, III, Tracey Barbera, John Russell, Jaclyn C. Chapman, Baton Rouge, LA, for Appellee, State of Louisiana.
    Frederick Kroenke, Baton Rouge, LA, for Defendant/Appellant, Leon Brown.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   WHIPPLE, J.

| ¡.The defendant, Leon Brown, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. He entered a plea of not guilty. After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant’s motion for post verdict judgment of acquittal and motion for new trial. The defendant was sentenced to forty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. He now appeals, challenging the trial court’s special jury instruction on the elements of the offense and the sufficiency of the evidence. For the following reasons, we affirm the defendant’s conviction and sentence.

STATEMENT OF FACTS

On or about December 6, 2009, the defendant entered the Albertsons grocery store located on Government Street in Baton Rouge. He stood in line at the register in the customer service lobby and purchased a package of lunchmeat and a package of cheese. The defendant questioned the cashier, Lenazira Browden (the victim), regarding the cost of his purchase, and she began explaining the charges. The defendant leaned the upper portion of his body over the counter and forcefully grabbed approximately two hundred dollars in cash from the register, as the cashier struggled to gain control of the cash drawer. The defendant left the items on the customer service counter and fled.

Browden began screaming and notified management. Several store employees were alerted that the robbery had occurred and chased the defendant to the store exit and into the parking lot. The defendant brandished a switchblade knife and warned the employees to “get back,” stating that the money did not belong to them personally. As one of the employees, Patrick Miller, got close to the defendant, the defendant punctured his chest with the knife. Marlon Lavine, a store manager, grabbed the defendant when they approached a dead-end or alley. laThe defendant tried to escape, attempting to climb over a fence. Lavine grabbed the defendant’s legs to prevent his escape. The defendant held onto the gate with one arm, turned back, and swung the knife toward Lavine with his other arm, but failed to make contact. The defendant lost his grip, fell, and dropped the knife. La-vine grabbed the knife, passed it to another store employee, and forcefully led the defendant back toward the store. The employees then physically restrained the defendant until Officer Thomas Gehling of the Baton Rouge City Police Department arrived.

Officer Gehling took custody of the defendant, read his Miranda rights to him, and took possession of the knife. As a result of a search incident to the arrest, Officer Gehling recovered approximately two hundred dollars from the defendant’s front right pocket. Surveillance footage of record included the following: the defendant’s store entry, his customer service transaction, his confrontation with the victim and removal of the money from the cash register, his exit from the store, and the defendant being chased through the parking lot by store employees. The stabbing of Miller and restraint of the defendant were not captured by the surveillance cameras.

ASSIGNMENT OF ERROR

In the sole assignment of error, the defendant argues that the trial court erred in granting the State’s request for a special jury instruction providing, in part, that the jury need not find that the defendant was armed at all times during the robbery to find him guilty of armed robbery. The defendant further argues that the evidence was insufficient to prove all the elements of armed robbery beyond a reasonable doubt and that the trial court erred in denying the motion for post verdict judgment of acquittal. He argues that the evidence is clear that he did not use, or threaten to use force or intimidation while armed with a dangerous weapon, or lead the victim to believe that he was armed with a dangerous weapon. The ^defendant notes that the victim testified that there was no weapon exhibited to her during the robbery. He further notes that surveillance videos show that there was no use of a knife or threats during the commission of the robbery and that the witnesses first observed him with a knife when in the store’s parking lot.

While noting that the trial court granted the State’s request for a special jury instruction based on prior jurisprudence in this court, the defendant argues that the instant case is distinguishable because he did not use a weapon against the person who was robbed, nor did he arm himself inside the store or brandish the weapon within the store to facilitate his escape. The defendant contends that by the time he brandished the knife in the presence of Miller and Lavine, the victim was safely inside the store. He argues that the allowance of the requested jury instruction constitutes a dangerous expansion of the case law in that this case involves no connection between the weapon and the victim of the robbery.

The standard of review for sufficiency of the evidence to support a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Johnson, 461 So.2d 673, 674 (La. App. 1st Cir.1984). When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 2002-1492 (La.App. 1st Cir.2/14/03), 845 So.2d 416, 420. When a case involves circumstantial evidence and the trier of fact reasonably rejects a hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987).

|,,Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. LSA-R.S. 14:64 A. The testimony of the victim is sufficient to establish the elements of an offense. State v. Walder, 504 So.2d 991, 995 (La.App. 1st Cir.), writ denied, 506 So.2d 1223 (La.1987).

When instructing a jury, the trial court must charge the jury as to the law applicable to the case. LSA-C.Cr.P. art. 802(1). Any jury instruction that relieves the State of its Fourteenth Amendment burden of proving every element of a criminal offense beyond a reasonable doubt is unconstitutional. State v. Code, 627 So.2d 1373, 1384 (La.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994); State v. Smith, 05-951 (La.App. 5th Cir.6/28/06), 934 So.2d 269, 279, writ denied, 2006-2930. (La.9/28/07), 964 So.2d 357.

In this case, the victim was unaware of the fact that the defendant was armed with a knife. Lavine testified that the group of employees chased the defendant for approximately one-half mile past the store exit, noting that the store parking lot was fairly large. The defendant first brandished the knife at the beginning of the parking lot chase, as he told the group to let him go, “it’s not fall’s money, don’t worry about it.” As Miller passed Lavine during the chase, the defendant turned back and punctured his chest with the knife. Miller specifically testified that he was attacked in the middle of the parking lot and that he did not see the knife while the defendant was in the store. Officer Gehling was recalled as the sole defense witness.

At the State’s request, the instructions given to the jury included the following special jury instruction:

|fiYou need not find that the accused was armed at all times during the robbery to find him guilty of armed robbery. If the defendant armed himself to facilitate his completion of the robbery or to insure that he could get away without resistance from the victim, or that he became armed in the final step in a series of events to facilitate his escape or the completion of the crime, you may consider him armed for the purpose of this statute.

The State cited State v. Bridges, 444 So.2d 721 (La.App. 5th Cir.1984), in support of its request for the above instruction.

In Bridges, similar to the instant case, one of the perpetrators grabbed money from a cash drawer. While the subject was at the register, two other perpetrators disarmed the security guard. The three men, waving the stolen gun, then fled from the store. The court noted that the three men armed themselves not so much to take possession of the money, but to ensure that they could escape without resistance from the victims. The court found that the money was taken by virtue of physical force or intimidation and the final step in the series of events or res gestae was perfected by the use of the gun. The court noted that the security guard’s gun was not stolen to be pocketed by the defendants, but rather was implemented in the course of their crime. The court concluded that the elements of armed robbery were met in that case although a gun was not used for force or intimidation until after the money was in the possession of the perpetrators. Bridges, 444 So.2d at 726. The court relied in part on State v. Melton, 296 So.2d 280 (La.1974). The court noted that further analogy can be drawn from the aggravated burglary statute, LSA-R.S. 14:60, which provides that even if the offender arms himself with a dangerous weapon after entry, this would constitute an aggravated burglary. Bridges, 444 So.2d at 725-726. Moreover, as set forth in 77 C.J.S. Robbery § 37 (2011), “The use of a dangerous weapon at any point in the robbery will constitute armed robbery as long as it reasonably can be said to be 17part of a single occurrence or continuous transaction. It is not required that the robber be armed prior to the robbery, as long as the robber is armed during the robbery or in flight therefrom.” (Footnotes omitted).

Herein, the trial court used language from accepted jurisprudence to formulate the definition of armed robbery. The Louisiana Civil Law Treatise abundantly cites jurisprudence regarding the use of jurisprudential precepts as guidance in the formulation of jury instructions. Notably, Bridges is cited in the authors’ Comments on armed robbery. See Cheney C. Joseph and P. Raymond Lamonica, Criminal Jury Instructions, 17 Louisiana Civil Law Treatise § 10.64 at 363 (2003). We find that the trial court’s use of the challenged instruction, considered in the context of the jury charge as a whole, did not serve to relieve the State from proving any element of the crime.

Moreover, we find no significance in the distinctions cited by the defendant regarding whether the use of the weapon occurred in the store or in the parking lot. The employees began chasing the defendant before he exited the store and there was no point during the ensuing chase that would have allowed the defendant to suddenly gain possession of the knife. The uncontested evidence shows that the defendant, though armed at all times during the offense, used the weapon not to take possession of the money he took from the cash drawer, but in an attempt to facilitate an escape, the final step in the series of events. Viewing the evidence presented in this case in the light most favorable to the State, we are convinced that any rational trier of fact could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of armed robbery.

| ^Finding no merit to the assignment of error, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

GUIDRY, J., concurs.

      . Portions of the parking lot surveillance footage depict a distant view of the group of employees chasing the defendant. The view is not close enough to allow an observer to detect small objects or observe all actions.

      . We further note that our decision herein is consistent with this court's holding in its pri- or opinion of State v. White, 2009 KA 1766, pp. 2-3 (La.App. 1st Cir.2/12/10), 2010 WL 532333 (unpublished), writ denied, 2010-0582 (La.10/8/10), 46 So.3d 1263.


author: HUGHES J.

text:
    STATE of Louisiana v. Ian P. KNIGHT.
    No. 2011 KA 0366.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.
    Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn W. Landry, Special Appeals Counsel, Baton Rouge, LA, for Appellee State of Louisiana.
    Edward J. Castaing, Jr., New Orleans, LA, for Defendant/Appellant Ian J. Knight.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   HUGHES J.

|gDefendant, Ian Paul Knight, was charged by bill of information (number 483097) with one count of distribution of marijuana, a violation of LSA-R.S. 40:966 A(l), and one count of distribution of bu-prenorphine, a violation of LSA-R.S. 40:968 A(l). In a separate bill of information (number 483098), the defendant was also charged with one count of possession with intent to distribute marijuana, a violation of LSA-R.S. 40:966 A(l). He initially pled not guilty to all charges, but subsequently withdrew those pleas, and pled guilty as charged on all counts. The trial court sentenced the defendant on each conviction to ten years at hard labor, but suspended five years of each sentence and placed the defendant on probation for five years upon his release. Further, the trial court imposed a fine of $500.00 for each conviction. Both the terms of imprisonment and the fines were made concurrent. After sentencing, the defendant retained new counsel, who filed a motion to reconsider sentence. The motion was denied without a hearing. The defendant now appeals, designating four assignments of error challenging the sentences imposed. For the following reasons, we affirm the convictions and sentences.

ASSIGNMENTS OF ERROR

1.The trial court erred in imposing sentence without stating proper reasons or considering the guidelines of LSA-C.Cr.P. art. 894.1.

2. The trial court erred in imposing excessive and unconstitutional sentences that constitute cruel and unusual punishment.

3. The trial court erred in denying defendant’s motion to reconsider sentence.

4. The trial court erred in denying the defendant’s motion to reconsider the sentences without a hearing.

hFACTS

Since the defendant pled guilty following his attorney’s stipulation that a factual basis existed for the pleas, the facts surrounding the instant offenses were not fully developed. A review of the respective bills of information reveals that the offenses of distribution of marijuana and distribution of buprenorphine both occurred on November 5, 2009, while the offense of possession with intent to distribute marijuana occurred on November 14, 2009.

DISCUSSION

On appeal, the defendant contends that the sentences imposed were unconstitutionally excessive, particularly since the trial court failed to consider the mandatory sentencing guidelines of LSA-C.Cr.P. art. 894.1, failed to articulate a factual basis for the sentences, and failed to state considerations taken into account in imposing sentence. Under such circumstances, he argues that the trial court erred in denying his motion to reconsider sentence without a hearing.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. Even when a sentence is within statutory limits, it may be unconstitutionally excessive. See State v. Sepulvada, 367 So.2d 762, 767 (La.1979). A sentence is considered unconstitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a |4purposeless and needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir.5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Wilkinson, 99-0803 (La.App. 1st Cir.2/18/00), 754 So.2d 301, 303, writ denied, 2000-2336 (La.4/20/01), 790 So.2d 631.

Louisiana Code of Criminal Procedure article 894.1 sets forth items that should be considered by the trial court before imposing sentence. Although a trial court need not recite the entire checklist of Article 894.1, the record must reflect that it adequately considered the criteria. Wilkinson, 754 So.2d at 303. However, the goal of Article 894.1 is the articulation of the factual basis for a sentence, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475, 478 (La.1982). Therefore, even in the absence of adequate compliance with Article 894.1, it is not necessary to remand the matter for resentencing when the sentence imposed is not apparently severe in relation to the particular offender or the particular offense. Even when a trial court assigns no reasons, the sentence will be set aside on appeal and remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive. See LSA-C.Cr.P. art. 881.4 D; State v. Harris, 601 So.2d 775, 778-79 (La.App. 1st Cir.1992).

In the instant case, for the defendant’s convictions for distribution of marijuana and possession of marijuana with intent to distribute, he was exposed to a term of imprisonment at hard labor of not less than five nor more than thirty years and a fine of not more than $50,000.00. See LSA-R.S. 40:966 B(3). For his conviction of distribution of buprenorphine, the defendant was exposed to a term |sof imprisonment at hard labor of not more than ten years and a fíne of not more than $15,000.00. See LSA-R.S. 40:968 B. The trial court sentenced the defendant on each of these convictions to ten years at hard labor, but suspended five years of each sentence and placed the defendant on probation for five years upon his release. Additionally, the trial court imposed a fine of $500.00 for each conviction. Both the terms of imprisonment and the fines were made concurrent with each other.

The defendant argues that the trial court erred in failing to consider the factors delineated in Article 894.1, which would have revealed numerous factors mitigating in favor of an entirely probated sentence, a sentence of home incarceration or, at the least, a term of imprisonment of less than five years. In support of this contention, the defendant reviews each of the factors listed in Article 894.1 and its purported application to this ease. Among the numerous mitigating factors he alleges are his youth, the non-violent nature of the offenses, his remorsefulness, and his minor prior criminal history. The defendant further argues that lesser sentences would not depreciate the seriousness of his offenses in view of the small amount of marijuana involved, which resulted in a drug sale of only $200.00.

Further, the defendant maintains that incarceration will create an excessive hardship upon him because he is the sole proprietor of his own business and also assists in the care of his disabled mother. As further mitigation, he notes that his father passed away when he was a toddler and that he was diagnosed with Attention Deficit and Hyperactivity Disorder when he was two years old, leading to years of struggle. In view of these circumstances, as well as additional mitigating factors he cites in brief, the defendant contends that the sentences imposed were unconstitutionally excessive.

| BIn imposing sentence upon the defendant and his co-defendant, Douglas, the trial court acknowledged their youthful ages of 22 and 28, respectively, and remarked that they had “started out on the wrong path,” and were “way too young to have been involved in the type of activities that [they] have been involved in.” The trial court further indicated that it considered the sentences very lenient and was giving the defendant and Douglas “the benefit of trying to turn around and do something for [themselves] ...” in view of their youthful ages. No further sentencing reasons were given.

As noted by the defendant, the trial court failed to state that it had considered the sentencing guidelines of Article 894.1. Nevertheless, despite the trial court’s failure to more fully articulate the factual basis for defendant’s sentences, our review indicates that the sentences are not apparently severe in relation to the particular offender or the particular offenses. For his conviction of distribution of buprenor-phine, he was sentenced to ten years imprisonment at hard labor, which was the maximum term of imprisonment allowed. As a general rule, maximum sentences are reserved for the worst offenders and the worst offenses. See State v. James, 2002-2079 (La.App. 1st Cir.5/9/03), 849 So.2d 574, 586. However, while the maximum term of imprisonment was imposed, the trial court suspended one-half of the sentence. Moreover, although the trial court could have imposed a fine of up to $15,000.00, it only imposed a nominal fine of $500.00. See LSA-R.S. 40:968 B.

As to the ten-year terms of imprisonment imposed for the defendant’s convictions for distribution of marijuana and possession of marijuana with intent to distribute, these sentences fall well within the lower range of possible sentences. Moreover, the trial court suspended one-half of each of these sentences. The trial court also imposed only a minimal fine of $500.00 on each conviction, although a fíne of up to $50,000.00 could have been imposed on each conviction. 17Additionally, rather than making these sentences consecutive to the defendant’s sentence for distribution of buprenorphine, the trial court instead ordered that all the sentences be served concurrently. See LSA-C.Cr.P. art. 888.

The record reflects that the trial court considered defendant’s youth in imposing what the court considered to be very lenient sentences. The defendant also alleges that his minor criminal history is a mitigating factor not properly considered by the trial court. In his brief, he alleges that his only prior criminal history, other than a possible misdemeanor offense of trespassing on a beach, were charges of simple burglary, possession of burglary tools, and possession of marijuana, but that these charges were dismissed after he successfully completed a pretrial diversion program. However, even if the defendant’s criminal history was as alleged, this fact does not advance his cause. In our view, the defendant committing the instant drug-related crimes after being given the benefit of participating in a pretrial diversion program, as he alleges he did, would demonstrate a troubling propensity for criminality. As such, it would largely refute his assertion that the entirety of his sentences should have been probated because he would likely respond well to probation and there is no undue risk that he would commit another crime. We further note that, despite the defendant’s claim of remorsefulness, no indication of such was expressed by the defendant either at the sentencing hearing or elsewhere in the record.

On appellate review of a sentence, the relevant question for the reviewing court is whether the trial court abused its broad sentencing discretion, and not whether other sentences might have been more appropriate. State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608 (per cu-riam). Based upon our review, we find that, although the trial court articulated only minimal sentencing reasons, the sentences are not apparently severe and are supported by the record. Accordingly, a remand for full compliance with article 894.1 is not necessary. | ¡¡Defendant engaged in a course of criminal conduct that resulted in the commission of three offenses within a period of less than two weeks. Further, the trial court suspended all but five years on each term of imprisonment. Five years is the statutory minimum for two of the defendant’s sentences and at the mid-point of possible sentences for the remaining sentence. Moreover, the trial court made the sentences concurrent, and imposed only minimal fines. Under the circumstances, the defendant’s sentences were neither disproportionate to the seriousness of the offenses nor shocking to our sense of justice. Even in light of the mitigating factors urged by the defendant, we cannot find that the trial court abused its wide discretion in imposing sentence or in denying the defendant’s motion to reconsider sentence. The sentences imposed were not unconstitutionally excessive.

We also find no merit in the defendant’s argument that the trial court erred in failing to order a presentence investigation report (PSI). After the defendant entered his guilty pleas in this case, his counsel waived the statutory sentencing delay. In waiving this delay, it was implicit that no PSI would be ordered since the defendant was to be sentenced immediately. We further note that the defendant does not contend that he requested the preparation of a PSI, as he could have done. In any event, the ordering of a PSI lies within the discretion of the trial court. LSA-C.Cr.P. art. 875 A(1); State v. Johnson, 604 So.2d 685, 698 (La.App. 1st Cir. 1992), writ denied, 610 So.2d 795 (La.1993).

Finally, the defendant’s contention that the trial court erred in denying his motion to reconsider sentences without a hearing also lacks merit. Pursuant to LSA-C.Cr.P. art. 881.1 D, a trial court may deny a motion to reconsider a sentence without a contradictory hearing. Accordingly, the defendant was not entitled to a hearing. See State v. Pursell, 2004-1775 (La.App. 1st Cir.5/6/05), 915 So.2d 871, 873. For the above reasons, defendant’s assignments of error lack merit.

CONVICTIONS AND SENTENCES AFFIRMED.

      . Brandon L. Douglas was charged in the same bill of information with the same offenses, and pled guilty to those offenses at the same time that the defendant entered his guilty pleas.

      . Timothy E. Alford and Monique C. Meilleur were charged in the same bill of information with the same offense. However, the bill was later amended to reduce the charge against Meilleur to possession of marijuana. The record does not indicate the disposition of the charges against Alford and Meilleur.

      . While we question the procedure of establishing a factual basis for a plea by stipulation, the defendant has not assigned as error that his plea was not knowing or voluntary.

      . Since all of the defendant's assignments of error are closely related, they will be considered collectively.

      . The state asserts in brief that the defendant is prohibited from challenging his sentences on appeal because the sentences were imposed as a result of a plea agreement. This assertion is not supported by the record. Louisiana Code of Criminal Procedure article 881.2 A(2) prohibits a defendant from appealing a sentence imposed pursuant to a plea agreement if that agreement is “set forth in the record at the time of the plea.” Prior to accepting the defendant's guilty pleas in the instant case, the trial court indicated to all three men pleading guilty at that time that it understood their pleas were the result of discussions between the prosecutor, their attorneys and the court. The court further stated that, "The substance of that plea agreement will be disclosed when I impose your sentence ...” Thereafter, no further mention was made of any plea agreement. Therefore, since no plea agreement was set forth in the record at the time the defendant entered his guilty pleas, LSA-C.Cr.P. art. 881.2 A(2) does not prohibit the defendant from now appealing the sentences imposed.


author: McCLENDON, J.

text:
    Harry A. MARROY, individually and as administrator of the Estate of the minor Collin Andrew Marroy, and Angele D. Marroy v. Peter H. HERTZAK, M.D.
    No. 2011 CA 0403.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2011.

      Stevan C. Dittman, Todd J. Bialous, New Orleans, LA, for Plaintiffs/Appellants Angele Marroy, Individually and as Administrator of the Estate of the Minor, Collin Andrew Marroy.
    Pamela L. Hershey, James R. Strain, Jr., Slidell, LA, for Defendant/Appellee Dr. Peter Hertzak.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

Un this medical malpractice case, the plaintiff, Angele D. Marroy, individually and as the administrator of the estate of her minor child, Collin Andrew Marroy, appeals from the judgments of the trial court following a jury verdict that rejected her claim against the defendant, Peter H. Hertzak, M.D., and denied her motion for judgment notwithstanding the verdict (JNOV) or alternatively for a new trial. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from the obstetric care provided by Dr. Hertzak to Ms. Marroy during her pregnancy, which resulted in the birth of her second child, Collin Andrew Marroy, at Northshore Regional Medical Center in Slidell. Ms. Marroy asserts that Dr. Hertzak negligently induced delivery of her premature baby on the evening of June 25, 2000, resulting in respiratory and other complications, requiring Collin’s hospitalization for several weeks in the pediatric intensive care unit. She further contends that Collin continued to require care and treatment thereafter.

Ms. Marroy became a patient of Dr. Hertzak in 1993. In 1995, he delivered a full-term healthy baby girl to Ms. Marroy. On November 22, 1999, Ms. Marroy, again pregnant, presented to Dr. Hertzak and reported her last menstrual period to be on October 15, 1999. Based on this information, an estimated due date of July 23, 2000, was calculated. At an office visit on March 20, 2000, Dr. Hertzak performed a routine ultrasound. The ultrasound established an estimated due date of July 21, 2000.

Ms. Marroy’s pregnancy progressed without any problems until May 18, 2000, when Ms. Marroy reported decreased fetal activity to Dr. Hertzak. Dr. Hertzak ordered an ultrasound and biophysical profile, which were performed at the hospital. The ultrasound indicated no fetal distress at the time it was taken, and based on the ultrasound, the radiologist estimated a due date of June 27, |s2000. At an office visit on June 6, 2000, Ms. Marroy again reported decreased fetal activity. Dr. Hertzak ordered another ultrasound, which was again taken at the hospital and reported as normal, with an estimated due date of June 26, 2000. Dr. Hertzak also placed an order for June 9, 2000, for non-stress testing to monitor the fetus’s heart tones. On that date, the nurse reported two incidences of variable decelerations. On June 18, 2000, Ms. Marroy reported another episode of decreased fetal movement, and that evening, Dr. Hertzak decided to try to induce labor. That induction was unsuccessful and was ultimately terminated. He scheduled another induction for the evening of June 25, 2000, which resulted in Collin’s birth on June 26, 2000. Collin developed severe respiratory distress and was taken to the neonatal unit, where he remained for a month.

Ms. Marroy’s claims were presented to a medical review panel. On June 19, 2003, the panel rendered a unanimous adverse opinion finding that Dr. Hertzak failed to comply with the applicable standard of care as charged in the complaint. Specifically, the panel concluded that it was a deviation from the standard of care to change a fairly well established due date based on a third trimester ultrasound, and that the baby suffered significant damage due to its premature delivery. Thereafter, on August 7, 2003, this lawsuit was filed.

The trial of this matter began on February 22, 2010, and, at the conclusion of a four-day trial, the jury returned a verdict on February 26, 2010, finding that Ms. Marroy had not “established by a preponderance of the evidence the standard of care ordinarily practiced by physicians with the medical specialty of obstetrics and gynecology that pertains to the conduct of the defendant Peter Hertzak, M.D.” The jury additionally found that it was not proven “by a preponderance of the evidence that defendant Peter Hertzak, M.D. breached or violated the applicable standard of care concerning the treatment of Angele Marroy and Cohn Marroy.” In response to the jury verdict, Ms. Marroy filed Plaintiffs Motion for A Judgment Notwithstanding the Verdict, or, in the Alternative, for a New Trial. The trial court denied the motions for JNOV and |4new trial, and Ms. Marroy filed this appeal. In her appeal, she makes the following assignment of errors:

1) The trial court erred in having the jury determine the existence of a legal duty or a medical standard of care.
2) The jury’s verdict that plaintiff had not proven the existence of an applicable standard of care by a preponderance of the evidence was manifestly erroneous.
3) The trial court erred in not granting Plaintiffs Motion for a Judgment Notwithstanding the Verdict, or, in the Alternative, for a new Trial, inasmuch as the jury’s verdict was manifestly erroneous given the evidence introduced at trial.

STANDARD OF REVIEW

An appellate court may not set aside a jury’s finding of fact absent manifest error or unless it is clearly wrong. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding; and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La.1993).

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the factfin-der’s choice | r,between them cannot be manifestly erroneous or clearly wrong. Id. Further, when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Id.

Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits. Id., 549 So.2d at 844 n. 2.

DISCUSSION.

In a medical malpractice action, LSA-R.S. 9:2794 A provides that the plaintiff shall have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Thus, according to LSA-R.S. 9:2794 A, any medical malpractice claimant must establish, by a preponderance of the evidence: (1) the defendant’s standard of care; (2) the defendant’s breach of that standard of care; and (3) a causal connection between the breach and the claimant’s injuries. Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228, 1233.

| Jn her first assignment of error, Ms. Marroy argues that in the first interrogatory the jury was improperly asked to determine the existence of a legal duty, which resulted in legal error that interdicted the factfinding process requiring a de novo review of the record. She also asserts that because the jury found that a standard of care was not proven, but then determined that the standard of care was not breached by Dr. Hertzak in the second interrogatory, the jury’s findings were logically inconsistent.

In this matter, the relevant part of the jury verdict form provided as follows:

1. Do you find that plaintiffs Angele Marroy and Colin Marroy established by a preponderance of the evidence that standard of care ordinarily practiced by physicians with the medical specialty of obstetrics and gynecology that pertains to the conduct of the defendant Peter Hertzak, M.D.?
Yes
/ No
2. Do you find by a preponderance of the evidence that defendant Peter Hertzak, M.D. breached or violated the applicable standard of care concerning his treatment of Angele Marroy and Colin Marroy?
Yes
/ No
If your answer to this question is “No,” then sign and date this form and return it to the bailiff. If your answer to this question is “Yes,” then proceed to question No. 3.

The jury answered both interrogatories in the negative.

Initially, we find that Ms. Marroy cannot be heard on correctness of the jury interrogatories, because she did not object at any time at the trial court level so as to preserve her right to appeal. No objection was made during the court’s jury charge conference or thereafter. Objections were made to several of the jury instructions, but there is nothing in the record to indicate that any objection was made to the jury interrogatories prior to this appeal. As a result, the trial court never had an opportunity to take remedial action while the jury was present or otherwise rule on the question, as provided by LSA-C.C.P. arts. 1812 and 1813. See Johnson v. Terrebonne Parish Sheriffs Office, 95-1180 (La.App. 1 Cir. 2/23/96), 669 So.2d 577, 583, writ denied, 96-0727 (La.4/26/96), 672 So.2d 907. See also Metz v. Howard, 93-726 (La.App. 5 Cir. 1/25/94), 631 So.2d 1248, 1250-51; Bourque v. Gulf Marine Transportation, Inc., 480 So.2d 337, 340 (La.App. 3 Cir.1985).

However, even were we to address this issue, we cannot say that the jury verdict form constituted reversible error. A verdict form may not be set aside unless the form is so inadequate that the jury is precluded from reaching a verdict based on correct law and facts. Ford v. Beam Radiator, Inc., 96-2787 (La.App. 1 Cir. 2/20/98), 708 So.2d 1158, 1160. Jury interrogatories must fairly and reasonably point out the issues to guide the jury in reaching an appropriate verdict. If the verdict form does not adequately set forth the issues to be decided by the jury (i.e., omits an applicable essential legal principle or is misleading and confusing), such interrogatories may constitute reversible error. Abney v. Smith, 09-0794 (La.App. 1 Cir. 2/8/10), 35 So.3d 279, 283, writ denied, 10-0547 (La.5/7/10), 34 So.3d 864.

There is nothing in the first two jury interrogatories that misstates or misapplies the law. In the case of a particular medical specialty, the medical malpractice act requires that the plaintiff shall have the burden of proving “[t]he degree of care ordinarily practiced by physicians ... within the involved medical specialty.” LSA-R.S. 9:2794 A(l). The first jury interrogatory asked whether Ms. Marroy established by a preponderance of the evidence the applicable standard of care. It did not require the jury to determine the existence of a legal duty as suggested by Ms. Marroy.

Additionally, the trial court in ruling on the motion for a JNOV or new trial, determined that this case was similar to the third circuit case of Ardoin v. McKay, 06-0171 (La.App. 3 Cir. 9/27/06), 939 So.2d 698, writ denied, 06-2606 (La.1/8/07), 948 So.2d 126. We agree. The trial court recognized that in Ardoin the jury interrogatories were similar to those in this matter. Also, like this instant case, the jury answered both interrogatories in the negative. Further, as in the Ardoin case, the jury in this matter, in responding to the interrogatories, could have stopped after answering the first interrogatory in the |Rnegative. A negative answer to the first interrogatory essentially terminated the litigation and eliminated the need to answer the second interrogatory. Also, as in Ardoin, there was no instruction after the first interrogatory to sign and date the form and return it to the bailiff if the answer to the question was “No,” but to proceed if the answer was “Yes.” See Ardoin, 939 So.2d at 702. Nonetheless, by also answering the second interrogatory in the negative, the jury was very clear as to what it believed was established by the evidence. In its ruling, the third circuit stated:

In any event, whatever the jury’s confusion may have been as to the first interrogatory, there can be no doubt it understood the second. This interrogatory asked for the jury’s verdict on the heart of the case-whether Dr. McKay breached the standard of care applicable to his treatment of Mr. Ardoin. The jury’s answer to that question and its compliance with the parenthetical instruction following that interrogatory leave no doubt concerning the jury’s belief on this issue.

Ardoin, 939 So.2d at 703. Likewise, in this matter, despite any confusion as to the first interrogatory, there is no doubt that the jury understood the second jury interrogatory and responded accordingly. This assignment of error is without merit.

However, Ms. Marroy next argues that if the first jury interrogatory was proper, then the jury verdict regarding the interrogatories was manifestly erroneous. Ms. Marroy asserts that the evidence clearly established the applicable standard of care, as well as a breach of that standard. In support of her position, she presented the testimony of several expert witnesses.

Dr. Martha J. Brewer, an expert in the field of obstetrics and gynecology, testified by video deposition, taken on February 8, 2010, on behalf of Ms. Marroy. Dr. Brewer, who was a member of the medical review panel, testified that there is an accepted national standard of care. She testified that in the |npractice of obstetrics, one of the most important things to be done in terms of prenatal care is to establish an accurate gestational age. She stated that as a general rule, the earlier the ultrasound is taken the better it is to determine an accurate age. Dr. Brewer testified that it looked like Dr. Hertzak changed the due date after the later ultrasounds were taken. Dr. Brewer further stated that there is a “pretty clear-cut” standard of care about establishing a gestational age and not getting away from it without a really good reason. Furthermore, in her opinion, there was no medical justification for either of Ms. Marroy’s inductions. She did not agree with the decision to induce labor based on a history of two episodes of decreased fetal movement that were not current. Dr. Brewer testified that it was not clear to her that it was established that the baby had cord compression. Additionally, she stated that it was common for mothers to complain about little or no fetal movement. In conclusion, Dr. Brewer testified that the medical review panel was of the opinion that this situation looked like one where there was an elective induction without an established maternal or fetal indication and that the baby got sick as a premature infant can, and one was the proximate cause of the other. She further testified that it was the medical review panel’s opinion that Dr. Hertzak breached the applicable standard of care.

On cross examination, Dr. Brewer acknowledged that she did not believe that there is an absolute guideline on this particular issue. There are guidelines for practice, but they are not absolute standards, because there can be exceptions. She stated that it is an accepted standard that a doctor does not perform inductions of labor on infants less than term unless there is an established medical indication. Dr. Brewer admitted that there are instances where the neonatal environment is healthier for the infant than the in útero environment, but she did not believe that this was one of them. She also testified that the risk of respiratory distress in a child in this situation was only about five percent.

|10Dr. Sheryl Rowland, accepted at trial as an expert in the field of pediatrics, was Collin’s treating pediatrician after his birth. She testified that she first saw Collin on June 27, 2000, having been called in because he was having difficulty breathing. Dr. Rowland testified that she agreed with the 35-week gestational age assessment given to Collin after his birth by the nurse in the delivery room. She stated that a term baby is 37 to 38 weeks. She testified that Collin was dusky at delivery, indicating respiratory distress, which can be an indication of prematurity. Dr. Rowland’s admitting diagnosis was of a 35-week preterm baby with respiratory distress.

Dr. Judy Zatarain, accepted as an expert in the field of neonatology and pediatrics, testified at trial that she was one of two neonatologists at the hospital when Collin was in the neonatal intensive care unit. Dr. Zatarain first saw Collin about 24 to 36 hours after his birth, and he was critically ill. He was in respiratory distress, which developed into pulmonary hypertension. Given Ms. Marroy’s history and the ultrasounds, it was Dr. Zatarain’s opinion that the 35-week gestational age assessment was accurate. She also stated that anything less than 37 weeks is premature. Dr. Zatarain testified that she later found out that the hospital’s nurse practitioner assessed the baby at 37 weeks, in contrast to the 35-week gestational age given by the delivery room nurse. If she had known of the discrepancy, Dr. Zata-rain would have asked for a reassessment. Dr. Zatarain admitted to discrepancies in the charting of Collin’s medical records. However, in her opinion, it was more likely than not that the medical issues suffered by Collin were because of prematurity.

The defense also presented expert testimony. Dr. Victor Lunyong, an expert in the field of neonatology, reviewed the medical records in this matter. He testified that it was his opinion that the gestational age at birth was at least 37 to 38 weeks, and not 35 to 36 weeks, calling that a “physical impossibility.” He believed that the health care providers in this matter ignored the baby’s ^overall weight, head circumference, and length. It was his opinion that they did not pay attention to all the details. Dr. Lunyong stated that the baby’s head circumference was above the 97th percentile for a 35-week old gestational age baby and that was not possible unless something else was wrong, which was not the case here.

Dr. Jason Collins, an expert in the field of obstetrics and gynecology, also testified in this matter for Dr. Hertzak. Dr. Collins testified that his review of the records showed two documented episodes of decreased fetal movement and another possible undocumented episode. In his opinion, the baby was signaling that something was bothering him, and these complaints had to be taken seriously. Dr. Collins further testified that there are many different styles of practice from institution to institution and that there are different schools of thought as to how to evaluate a fetus with such symptoms. He stated that there is not one national standard of care regarding these issues and probably not one standard of care for the New Orleans area.

When discussing variable decelerations, Dr. Collins testified that most physicians use three decelerations in a row as an indicator of when to intervene. Dr. Collins testified that in Collin’s case, cord compression was consistent with what he found in the medical records. He saw clear cord compression patterns on the fetal heart rate during the second induction. It was Dr. Collins’s opinion that if the baby had not been delivered when it was, he would have been a lot sicker a week or two later. Cord compression, over time, could have caused more lung damage or even death. He believed that Dr. Hertzak was prudent in delivering on June 26, 2000, and that it would have been imprudent not to deliver at that time. When Dr. Collins was corrected that the delivery was vaginal and not by caesarian section, he stated that the correction did not change his opinion.

The last medical expert to testify was the defendant Dr. Hertzak. Initially called on cross-examination by Ms. Mar-roy, Dr. Hertzak testified that he calculated Ms. Marroy’s due date using her last menstrual period of October 15, 11g1999, and the obstetrical calendar to arrive at the date of July 23, 2000. He testified that 40 weeks is the distinction between a term pregnancy and post-term pregnancy. Dr. Hertzak testified that term is anywhere from 37 to 40 weeks, and Collin’s delivery was three days short of 37 weeks. Dr. Hertzak testified that he did not change any due dates, but had established a window for delivery based on the date of Ms. Marroy’s last menstrual period as well as her ultrasounds. Dr. Hertzak stated that the window was between June 26, 2000, and July 23, 2000. He testified that he did not induce a premature child.

On direct examination, Dr. Hertzak also testified that when Ms. Marroy reported her last menstrual period of October 15, 1999, he used that as “the starting point.” He testified that during her regular visit in July 1999, Ms. Marroy was given a new prescription for birth control pills. Dr. Hertzak stated that going on and off birth control pills can cause “havoc hormonally” and dysfunctional bleeding. Dr. Hertzak further stated that Ms. Marroy called him on the evening of May 18, 2000, reporting decreased fetal movement, and an ultrasound was performed. There was another complaint on June 6, 2000. Dr. Hertzak testified that a second episode is significant. He stated that the mother was healthy, so he believed that something was going on with the baby, particularly when the baby was previously kicking and active and then one day that activity suddenly decreases. Dr. Hertzak testified that such a decrease could be indicative of cord compression. The fetal monitor strip from the non-stress test on June 9, 2000, showed two variable decelerations, which told him that the umbilical cord was compressed on two occasions during the test. With another episode on June 18, 2000, Dr. Hert-zak testified that he opted for the first induction. He testified that by the date of Ms. Marroy’s last period, the baby had a gestational age of 35 weeks. At that age, survivability was more than ninety percent, and the chance for severe respiratory distress was down to ten to fifteen percent. Dr. Hertzak testified that he did not think they should take any more risks. If the lungs were premature, he stated, the nursery could treat that, but could not treat a dead baby. Dr. Hertzak testified that the previous induction was stopped for several | ^reasons. After approximately eleven hours, Ms. Marroy was not dilated, and there were no signs of acute fetal distress.

Dr. Hertzak planned for another induction on June 25, 2000. He stated that by the date of Ms. Marroy’s last period, she was 36 weeks and four days and that he began to breathe easier as the baby was on the threshold of term. Dr. Hertzak testified.that he based his decision on everything available to him. Some of the measurements were well into term, and the average of all of them indicated 37 weeks. Because there was clear evidence of intermittent and repetitive cord compression, he had no doubt about inducing at that time. According to Dr. Hertzak, the ultrasound indicated that the baby’s weight was seven pounds and seven ounces, so there was only a five percent chance of moderate to severe respiratory distress. He testified that he weighed this information against the odds of a possible stillbirth. Dr. Hertzak testified that he would not have done anything differently.

Considering the evidence presented at trial, Ms. Marroy argues that she clearly established the applicable standard of care. Therefore, according to Ms. Marroy, the jury’s answer to the first interrogatory was manifestly erroneous, and because the jury was clearly wrong as to this interrogatory, we should ignore the jury’s response to the second interrogatory and throw out the entire verdict. Upon our review of the record, we find that there was substantial evidence presented at trial regarding the applicable standard of care, and the jury’s finding in this regard was manifestly erroneous. However, we also find that the record contains sufficient evidence for the jury to conclude that Dr. Hertzak did not breach the standard of care required of him.

Dr. Brewer testified in accordance with the medical review panel opinion. Dr. Za-tarain and Dr. Rowland were of the opinion that Collin was delivered prematurely. However, Dr. Hertzak testified that he never changed Collin’s due date and that he did not deliver a premature baby. Dr. Lunyong and Dr. Collins testified that they did not believe that Collin was premature. The jury could have reasonably believed the testimony of Dr. Hertzak and his witnesses over the h ¿testimony of the witnesses presented by Ms. Marroy. Thus, the jury was faced with two different, but permissible views of the evidence, and its choice between them cannot be clearly wrong. See Rosell, 549 So.2d at 844. Therefore, upon a thorough review of the record, we can find no manifest error in the jury’s determination that Dr. Hert-zak did not breach the applicable standard of care.

Lastly, Ms. Marroy assigns as error the trial court’s failure to grant her motion for JNOV or, alternatively, for a new trial. Ms. Marroy contends that the jury verdict was clearly wrong considering the evidence presented at trial.

A JNOV is a procedural device authorized by LSA-C.C.P. art. 1811 where the trial judge may correct a legally erroneous jury verdict by modifying the jury’s finding of fault or damages, or both. Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84, 89. A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion that is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Id.

The rigorous standard of a JNOV is based upon the principle that when there is a jury, the jury is the trier of fact. Trunk v. Medical Center of Louisiana at New Orleans, 04-0181 (La.10/19/04), 885 So.2d 534, 537. Simply stated, if reasonable persons could have arrived at the same verdict given the evidence presented to the jury, then a JNOV is improper. Cavalier v. State, ex rel. Dept. of Transp. and Development, 08-0561 (La.App. 1 Cir. 9/12/08), 994 So.2d 635, 644.

11fiThe standard to be applied by the appellate courts in reviewing the grant or denial of a JNOV is whether the trial court’s findings were manifestly erroneous. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, 92-1545 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 492, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094.

Considering all of the evidence and the reasonable inferences to be made therefrom in favor of Dr. Hertzak, we cannot say that the trial court was manifestly erroneous in refusing to grant Ms. Mar-roy’s motion for JNOV. The evidence did not point so strongly in favor of Ms. Mar-roy that reasonable persons could not reach a different conclusion. As such, the trial court did not err in denying the JNOV.

Alternatively, Ms. Marroy moved for a new trial. The motion for a new trial requires a less stringent test than a motion for a JNOV in that such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. Broussard v. Stack, 95-2508 (La.App. 1 Cir. 9/27/96), 680 So.2d 771, 781. A new trial shall be granted if the jury verdict appears to be clearly contrary to the law and the evidence. LSA-C.C.P. art. 1972(1). Also, a trial court may grant a new trial if there is some good ground therefor. LSA-C.C.P. art. 1973. When considering a motion for a new trial, the trial court has wide discretion. LSA-C.C.P. art. 1971.

In considering a motion for a new trial, the trial court is free to evaluate the evidence without favoring either party, drawing its own conclusions and inferences and evaluating the credibility of the witnesses to determine if the jury has erred in giving too much credence to an unreliable witness. Hunter v. State ex rel. LSU Medical School, 05-0311 (La.App. 1 Cir. 3/29/06), 934 So.2d 760, 764, writ denied, 06-0937 (La.11/3/06), 940 So.2d 653. The trial court’s discretion in ruling on a motion for new trial is great, and its decision will not be disturbed on appeal absent an abuse of that discretion. - However, the fact that a determination on a motion for new trial involves judicial discretion does not imply that the trial court can freely interfere with any verdict with which 1 lfiit disagrees. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Hunter, 934 So.2d at 764-65.

In this matter, although the trial court stated that it would have decided the case differently, it acknowledged in its oral reasons that reasonable minds could have reached the jury’s conclusion. The trial court therefore denied the motion. We are constrained to agree. The jury’s findings were largely based on credibility determinations and weighing of conflicting evidence. Although the evidence was conflicting, two permissible views of the evidence existed, and the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. See Rosell, 549 So.2d at 844. The jury’s verdict was clearly supported by a fair interpretation of the evidence, and there was ample evidence heard by the jury that could have led it to conclude that Dr. Hertzak did not breach the applicable standard of care. Accordingly, we can find no abuse of the trial court’s discretion in its judgment denying Ms. Marroy’s motion for new trial.

CONCLUSION

For the reasons stated herein, we affirm the judgments of the trial court dismissing Ms. Marroy’s petition and denying her motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Costs of this appeal are assessed to the plaintiff, Angele D. Marroy, individually and as the administrator of the estate of her minor child, Collin Andrew Marroy.

AFFIRMED.

      . The child’s father, Harry A. Marroy, was originally named as a petitioner in this matter, but he and plaintiff later divorced. Thereafter, plaintiff was appointed curator and tutrix of the minor child, and Mr. Marroy was dismissed from this action on February 22, 2010.

      . Although the judgment denying the motions for JNOV and new trial was signed on April 27, 2010, and plaintiff filed her motion for appeal on May 26, 2010, a judgment rendered in accordance with the jury verdict was not signed until February 14, 2011.

        .Ardoin is more like the instant case than that of Newsom v. Lake Charles Memorial Hosp., 06-1468 (La.App. 3 Cir. 4/4/07), 954 So.2d 380, writ denied, 07-0903 (La.6/15/07), 958 So.2d 1198, cited by Ms. Marroy. In Newsom, although the jury also answered in the negative a similar interrogatory regarding the standard of care, the jury stopped there and did not address the remaining issues. Accordingly, we find Newsom distinguishable.

      . We note that the jury in this matter asked for clarification regarding the first interrogatory.

      . Collin's pediatrician also testified at trial, as did Ms. Marroy.

      . On cross examination, Dr. Zatarain testified that the nurse practitioner has more training than regular nurses, and she is the one who trains the delivery room nurses on how to do the assessment exam after birth.

      . Although the trial court questioned the credibility of Dr. Collins, it recognized that based on the totality of the evidence presented to it, the jury believed that Dr. Hertzak did not breach the standard of care required of him with regard to Ms. Marroy and Collin. The court stated, "Whether the court agrees or disagrees with it is [of] no moment. Reasonable minds could have come to that conclusion.”