author: MOORE, J.

text:
    Marion WILLIAMS, Plaintiff-Appellee v. RUBEN RESIDENTIAL PROPERTIES, LLC and The City of Shreveport, Defendants-Appellants.
    No. 46,040-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Davis Law Firm, LLC by S.P. Davis, Sr., for Appellants.
    Simmons, Morris & Carroll, LLC by B. Trey Morris, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

| ¿The City of Shreveport appeals a judgment of $338,581 arising from a trip and fall on a buckled city sidewalk. For the reasons expressed, we affirm.

Factual Background

Marion Williams was taking an exercise walk with her friend and coworker Tracy Terry on the morning of May 4, 2006. Although they had been walking together for months — the 50-year-old Ms. Williams proudly testified that she had lost 35 lbs. and was controlling her diabetes — they had never walked the sidewalk on the east side of Line Avenue just south of 73rd Street. Both acknowledged that many sidewalks in that neighborhood, the Cedar Grove area, were “messed up,” so they had to be careful.

As they were passing a rent house at 7313 Line Ave., with Ms. Williams slightly in front of Ms. Terry, somebody driving down Line Ave. honked a horn at them. Ms. Williams turned her head and waved; and then, noticing people sitting on the front porch of the house, she looked at them and waved. Before she could look straight ahead, she stumbled on a buckle in the concrete sidewalk, fell forward and landed on her hands, fracturing her right wrist.

Ms. Williams testified that she returned to the scene later that day and photographed the sidewalk. The pictures show a fairly pronounced buckle, apparently due to root growth, between two strain relief grooves, with additional cracking at the crest of the buckle and where the segment joins a driveway. Both Ms. Williams and Ms. Terry admitted there were no leaves, vegetation or other debris obstructing their view, and they maintained that they watched where they were going. They insisted, however, that the photos were taken from the front yard or from the street and accentuated the condition; from their position, looking straight ahead, the defect was not noticeable.

As a result of the fall, Ms. Williams sustained a comminuted fracture of her right wrist. Her orthopedic surgeon, Dr. Webb, performed an ORIF (open reduction, internal fixation) surgery, implanting a plate and six pins that will remain in her wrist permanently; he advised her to keep moving her fingers to|savoid stiffness. Six months later, she developed numbness in that hand, which Dr. Webb diagnosed as carpal tunnel syndrome and attributed to the fall. He performed a carpal tunnel release which he deemed a success, but she still complained of pain on the thumb-side of her wrist. Dr. Webb diagnosed this as arthritis, which he also attributed to the fall, stating that people with a broken joint have a much greater chance of developing arthritis. He added that this was likely to get worse over time.

Procedural History

Ms. Williams filed this suit against Ruben Residential Properties, owner of the rent house at 7313 Line Ave., and the City of Shreveport, which had garde of the sidewalk. Early in the proceedings, Ms. Williams dismissed Ruben, reserving her rights against the city.

The city filed a motion for summary judgment, urging it was required to provide a sidewalk that was reasonably safe, not in perfect condition; that the city had no actual or constructive notice of this sidewalk’s condition; and that the city was not liable for an open and obvious hazard which should have been observed by anyone in the exercise of reasonable care. In support, the city attached a portion of the deposition of its superintendent of Streets and Drainage, Ernie Negrete, who stated that the city does not perform routine inspections of all its streets and sidewalks, as that would be a prohibitive undertaking; instead, it relies on calls from citizens (normally 6,000 calls annually) and takes action from there. He examined the call records and could not find that anyone had ever reported this patch of sidewalk. He added that Line Ave. south of 70th Street is actually a state highway, so city workers would not have performed recent repairs to the street or been present to notice any problems in the sidewalk.

Ms. Williams filed a cross motion for partial summary judgment, urging that the sidewalk posed an unreasonable risk of harm of which the city did indeed have actual or constructive notice. In addition to her own affidavit and the photos, she attached Mr. Negrete’s complete deposition, in which he admitted that this buckle must have existed for some time. He also attached the deposition of Mr. Ruben, the property owner, who said that the |4crack had been there since the state repaired Line Ave. some 15 years earlier.

The district court denied the city’s motion for summary judgment but granted Ms. Williams’s, citing Mr. Ruben’s deposition to find that the crack had been present so long that constructive knowledge of the defect could be inferred. The court commented that the city could still prove comparative fault and “that she should have seen it.” The city appealed this ruling, but this court dismissed the appeal as arising from an uncertified partial final judgment, La. C.C.P. art. 1915 B.

The matter proceeded to trial in February 2010 before a different judge. The city argued in limine that the ruling on the motion for summary judgment was not law of the case, but the court resolutely refused to “undo” the other judge’s ruling. Ms. Williams testified as outlined above. She admitted that about two years before this accident, she slipped and fell at work at Home Depot, injured her hand and had an operation to release the resulting trigger finger; however, she maintained this had fully healed before she tripped on the sidewalk. She described her slow and difficult recovery, two surgeries, six weeks of physical therapy, medications that gave her nausea, and pain that even four years after the accident still ranges between a “3” on good days and a “7 or 8” on bad days. Although she still has her job at Home Depot, she mentioned various things she can no longer do at work, home and play.

Ms. Williams’s husband, Maurice, testified that he went to the scene later on the day of the accident, and when he walked the sidewalk he could not see the buckle until he was right in front of it. Ms. Terry corroborated the events of the accident, stressing that like Ms. Williams she could not see the bump in the sidewalk from her vantage point. Dr. Webb, the surgeon, described Ms. Williams’s two operations and each office visit, stating his view that her carpal tunnel syndrome and arthritis were caused by the accident. Finally, Ms. Williams introduced certified copies of her medical records and summaries of her medical expenses and wage loss.

|fiThe city called no witnesses, relying solely on cross-examination of Ms. Williams’s witnesses, and offered into evidence only copies of the photos taken by Ms. Williams shortly after the accident.

The court ruled from the bench that Ms. Williams was extremely credible and to be commended for working through pain; it awarded her lost wages of $7,400. It then found that she suffered mental anguish, adverse effects on her life, and pain and suffering that were likely to continue; citing Farmer v. Patrician SLP, LLC, 43,601 (La.App. 2 Cir. 10/1/08), 997 So.2d 578, writs denied, 2008-2606, -2613 (La.1/9/09), 998 So.2d 724, 725, it awarded general damages of $300,000. Finally, it accepted both women’s assertions that they simply could not see the defect in the sidewalk, noting that the side-view photos did not show what pedestrians would see; and because “it’s not a low-crime area,” Ms. Williams acted reasonably in turning back to look at the car that honked at her. The court therefore assessed no comparative fault. With medical expenses of $31,181.16, the court rendered judgment for the total of $338,581.16.

The city has appealed, raising three assignments of error.

Discussion: Open and Obvious Defect

By its first assignment of error, the city urges the court committed manifest error in failing to find that the defect in the sidewalk was open and obvious. The city cites Eisenhardt v. Snook, 2008-1287 (La.3/1/09), 8 So.3d 541: “[Defendants generally have no duty to protect against an open and obvious hazard. * * *A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner.” The city also quotes Ms. Williams’s and Ms. Terry’s admissions that there was nothing to obstruct their view of the sidewalk ahead of them. It submits that a more open and obvious condition would be hard to imagine, and suggests that if the photos are inadequate to depict the full measure of the defect, that is Ms. Williams’s fault, as she took them. The city also argues that even if the condition was not open and obvious | Benough to negate the city’s liability under Eisenhardt, then Ms. Williams should be assessed with comparative fault of 80%.

Ms. Williams responds that the city produced no evidence whatsoever that the sidewalk was open and obvious; instead of arguing that her photos are inadequate, the city could have taken its own photos. She also shows that three witnesses — herself, her husband and her walking partner — -all testified that they could not see the buckle from down the sidewalk, and the city offered no witness to contradict them. She concludes that the court’s finding of a hidden defect was not plainly wrong. As for comparative fault, she argues that it is not fault for a pedestrian to react to traffic conditions by looking away from the street momentarily, Murphy v. City of New Orleans, 2009-0567 (La.App. 4 Cir. 11/12/09), 25 So.3d 956, and no one is required to “constantly observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle.” Boddie v. State, 27,313 (La.App. 2 Cir. 9/27/95), 661 So.2d 617, and citations therein.

A landowner owes a duty to a plaintiff to discover any unreasonably dangerous condition, and either to correct the condition or warn of its existence. La. C.C. art. 2317; Eisenhardt v. Snook, supra; Socorro v. City of New Orleans, 579 So.2d 931 (La.1991). In the recent case of Eisenhardt, the court elaborated (with citations omitted):

Nonetheless, we have recognized that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner. It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case.

The appellate court may not set aside a district court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Id.; Stobart v. State, 617 So.2d 880 (La.1993). On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Eisenhardt v. Snook, supra, and citations therein.

We are aware that on a paved surface such as a sidewalk or a parking lot, the supreme court has held that a vertical height differential of 1/4 to 1/2 inch is not an unreasonable risk of harm. Boyle v. Board of Supervisors, 96-1158 (La.1/14/97), 685 So.2d 1080; Reed v. Wal-Mart Stores, 97-1174 (La.3/4/98), 708 So.2d 362. This court has also affirmed that a trip hazard of “less than two inches” in a sidewalk is not unreasonable. Graham v. City of Shreveport, 44,944 (La.App. 2 Cir. 1/27/10), 31 So.3d 526. The photos introduced in this case show a fairly prominent buckle and crack in one of the sidewalk panels, and no ruler or measuring tape was placed in the frame for reference. Thus we cannot discern exactly how high the crest of the buckle is; it may be greater than 1/2 inch. We note, however, that all the photos (except for one) are taken from a position in the street or in the front yard, and the side view tends to accentuate the crest. The one remaining photo was taken from the driveway at about a 30° angle to the sidewalk, and in this the crest is less apparent, resembling mostly cracks in the pavement. Three witnesses testified that from the vantage point straight down the sidewalk, the crest was simply not apparent. Notably, the city offered no evidence as to the height of the crest or whether it was obvious to a person using the sidewalk; apparently, the city simply fixed the buckle. From this evidence, the court was entitled to find that the condition was not open and obvious to a person walking straight down the sidewalk in the exercise of reasonable care.

A pedestrian has a duty to see what should be seen and is bound to observe whether the pathway is clear. Hutchinson v. Knights of Columbus, 2008-1583 (La.2/20/04), 866 So.2d 228; Moore v. Oak Meadows Apts., 43,620 (La.App. 2 Cir. 10/22/08), 997 So.2d 594. However, pedestrians are not required to scrutinize the pavement for irregularities. Boddie v. State, supra. Moreover, it is reasonable for a pedestrian to react to traffic conditions by looking at vehicles instead of at the pavement. Bessard v. State, 94-0589 (La.l 1/30/94), 645 So.2d 1134; Murphy v. City of New Orleans, supra. The record shows that Ms. Williams was momentarily distracted by a passing car that honked a horn. Noting that Cedar Grove is “not a low-crime area,” the district court found that Ms. Williams acted reasonably in looking for the car, waving at it, and then waving at people sitting on the nearby porch. We perceive no manifest error in the finding absolving her of comparative fault.

This assignment of error lacks merit.

Actual or Constructive Notice

By its second assignment of error, the city urges the court committed manifest error in finding that the city had actual or constructive notice of the condition, as required by La. R.S. 9:2800. The city shows that no witness established that any accident had ever occurred on that sidewalk, and Ms. Williams’s attorney stipulated that nobody had ever reported its condition. As for constructive notice, the city cites Mr. Negrete’s testimony that the city does not conduct regular inspections of all its streets, sidewalks and signs, as this would be too costly; instead, it relies on citizen reports. It distinguishes Hammons v. City of Tallulah, 30,091 (La.App. 2 Cir. 12/10/97), 705 So.2d 276, writs denied, 98-0407, -0440 (La.3/27/98), 716 So.2d 892, 894, as a case in which there was evidence that city employees had performed work near, and thus should have noticed, the protruding guy wire anchor that caused the plaintiff to trip. The city submits there was no such evidence in this case.

Ms. Williams responds that the finding of constructive notice was the “easiest determination of this whole case,” in that the city offered evidence to negate only actual notice. She cites Mr. Ruben’s testimony that the buckle had been present for at least 15 years, when the state repaired Line Ave.; criticizes the city for having no regular inspection procedure; and suggests that street crews, garbage collectors and water meter readers must have noticed this buckle over the years.

A public entity is responsible for damages caused by the condition of buildings within its care and custody. La. C.C. art. 2317; La. R.S. 9:2800 A. However, the plaintiff making such a claim must prove that the public entity had “actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a treasonable opportunity to remedy the defect and has failed to do so.” La. R.S. 9:2800 C. Constructive notice is defined by La. R.S. 9:2800 D as the existence of facts which imply actual knowledge. The public entity is not required to conduct regular inspections of its property, so the absence of an inspection procedure does not confer constructive knowledge of defects in its streets, signs and sidewalks. Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216; Murphy v. City of New Orleans, supra. Ordinarily, to prove constructive notice, plaintiffs must show that the defect causing the injury existed over a sufficient length of time to establish that reasonable diligence would have led to its discovery and repair. Smithwick v. City of Farmerville, 45,362 (La.App. 2 Cir. 6/23/10), 42 So.3d 1039, writ denied, 2010-2013 (La.11/12/10), 49 So.3d 888; Murphy v. City of New Orleans, supra. The district court’s findings under R.S. 9:2800 are subject to manifest error review. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566; Ricks v. City of Shreveport, 42,675 (La.App. 2 Cir. 10/24/97), 968 So.2d 863.

The city correctly shows that the absence of a plan to conduct regular inspections of its streets and sidewalks does not show or imply that any employee of the city knew or should have known of the of defects. Jones v. Hawkins, supra. Mr. Ruben testified that the state repaired Line Ave. some 15 years before this accident, but he did not say that city employees participated in the project or were near enough to notice the problem with this sidewalk; this distinguishes the case from Hammons v. City of Tallulah, supra. Moreover, the mere presence of roots under a sidewalk does not create a clear inference that the problem has existed for a long time. Graham v. City of Shreveport, supra.

The decisive evidence, however, was the elderly Mr. Ruben’s remark that he had “walked that street as a little boy and that hump was there”; he agreed that the “crack has probably been there for as long as we’ve known.” Also, the photos show significant wear or erosion at the crest of the buckle and the edge of the pavement. This is proof of a longstanding condition not present in Graham v. City of Shreveport, supra. Mr. Negrete confirmed that | inthe city had in fact done street work only three blocks north of this location on two prior occasions, and he personally recalled working on a tar spill, about 16 years earlier, on the same block as the accident occurred.

In light of the fact that this buckle had been there for many years, and that the city performed road work near it, the district court was not plainly wrong to find that city employees should have noticed the condition in the exercise of their normal functions. We cannot say the district court was manifestly erroneous. This assignment lacks merit.

General Damages

By its third assignment of error, the city urges the district court abused its discretion in awarding $338,581.16. Specifically, it contests the general damages of $300,000. It concedes the court’s vast discretion under La. C.C. art. 2324.1. Kaiser v. Hardin, 2006-2092 (La.4/11/07), 953 So.2d 802. However, it argues that Ms. Williams’s carpal tunnel syndrome and arthritis did not manifest themselves until many months after, and cannot be considered results of, the accident. It also argues that even for an injury with these complications, the award is way out of proportion to the norm for a broken wrist. It suggests that an award of $25,000 would be much more appropriate, as in the similar case of Wheelis v. CGU Ins., 35,230 (La.App. 2 Cir. 12/7/01), 803 So.2d 365. It prays for judgment reducing the general damages to that amount.

Ms. Williams responds that the city offered no expert testimony to dispute Dr. Webb’s finding of medical causation. She also cites a number of cases involving broken wrists (and other serious injuries) that resulted in general damages ranging from $150,000 to $400,000. She particularly argues that Farmer v. Patrician SLP, supra, resulted in general damages of $200,000 and supports the instant award. She urges complete affirmance.

General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. Duncan v. Kansas City So. Ry. Co., 2000-0066 (La.10/30/00), 773 So.2d 670. In the assessment of damages for offenses, quasi offenses and quasi contracts, much discretion |nmust be left to the judge or jury. La. C.C. art. 2324.1. The standard of review for an award of general damages is abuse of discretion. Guillory v. Lee, 2009-0075 (La.6/26/09), 16 So.3d 1104, and citations therein. The trial court is afforded much discretion in fixing general damages because of its superior position to evaluate the witnesses’ credibility and see the evidence firsthand. Id. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award but to review the exercise of discretion of the trial court. Id. Only if a review of the facts reveals an abuse of discretion should the appellate court resort to a review of prior, similar awards. Id. When such a comparison is warranted, the appellate court may not enter what it deems to be the most appropriate award but may only adjust the award by raising it to the lowest or lowering it to the highest within the trial court’s discretion. Id.; Coco v. Winston Industries, 341 So.2d 332 (La.1977).

At the outset, we find no merit to the city’s claim that Ms. Williams failed to prove that her carpal tunnel syndrome and arthritis resulted from this accident. Admittedly, Dr. Webb testified that Ms. Williams did not report symptoms of carpal tunnel syndrome until over five months after the accident, and that contrary to earlier medical opinion, he now believes that this condition usually results not from repetitive stress but from a single traumatic event. However, he firmly testified that the fall on the sidewalk caused Ms. Williams’s carpal tunnel syndrome and arthritis, and the city offered no contrary evidence. On this record, we cannot say the district court was plainly wrong in accepting Dr. Webb’s opinion.

While the general damages are quite high, we are- unable to find an abuse of the court’s vast discretion. Admittedly, Ms. Williams missed only three weeks’ work and sustained relatively modest medical expenses of $31,181; Dr. Webb felt the carpal tunnel release was a success, ran no X-rays to confirm the arthritis, and assigned no disability rating. The city also shows that the plaintiff in Farmer v. Patrician SLP, supra, fell from a 15-foot balcony, breaking both arms and wrists, resulting in virtual helplessness and permanent pain, and that other reported cases involved hideous collisions, multiple injuries and high disability ratings.

[ ^Nonetheless, Dr. Webb described an especially complicated fracture of the distal radius and ulna, with multiple fragments along the articulating surface, a surgery to implant significant hardware, another surgery to repair the carpal tunnel, pain that she “can just live” with, and the prospect of future surgery to immobilize the wrist. Although she kept her job, Ms. Williams described having to tuck her hand in her apron to keep customers from bumping or brushing it; also, she had increased pain when moving appliances or using a box cutter. At home, she has trouble opening lids and uncapping pop bottles, and even though she wears a wrist brace, the pain and burning in her wrist often wake her at night. Because of a preexisting heart condition, she cannot use any pain medications other than Tylenol and Aspercreme. Her husband confirmed that the pain often brings her to tears, and because of her stiff, painful wrist, she can no longer enjoy fishing and squirrel hunting. The district court adequately articulated Ms. Williams’s condition to support the award, which presses the upper limit of the discretionary range. The city’s assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. Pursuant to La. R.S. 13:5112, the city is also to pay filing fees of $146.50 that were waived when it took this appeal.

AFFIRMED.

      . The photos are actually digitally dated "5 8 '06,” four days after the accident.

      . The jurisprudence frequently uses the French word garde to express the concept of "custody, with legal responsibility for it care of keeping” in cases of liability under La. C.C. arts. 2317 and 2317.1. Loescher v. Parr, 324 So.2d 441 (La. 1975), and citations therein.

      . Judge Fred C. Sexton, ad hoc, had ruled on the motions for summary judgment; Judge Roy L. Brun heard the trial on the merits.

      . In Farmer, the same district court judge had awarded general damages of $75,000 to a plaintiff who fell from a second-floor balcony, crushing both wrists and sustaining a host of other arm and back injuries. On appeal, this court found the award abusively low and raised it to $200,000.

      . The city actually raises the claim of comparative fault in its third assignment of error, which contests general damages, but the argument is more logically connected to the issue of liability.

      . Strictly speaking, the finding of constructive notice arose by the grant of Ms. Williams's motion for partial summary judgment, a ruling ordinarily subject to de novo review. Hogg v. Chevron USA, 2009-2632 (La.7/6/10), 45 So.3d 991. However, after a trial on the merits, the appellate court is required to review the entire record for manifest error, not just the limited summary judgment evidence. Hopkins v. American Cyanamid Co., 95-1088 (La. 1/16/96), 666 So.2d 615.

      . The city also argues that damages should be reduced for comparative fault, which it suggests was 80%. For the reasons already discussed, we find no manifest error in the court’s refusal to assess comparative fault.

      . See, e.g., Williams v. Exxon Corp., 541 So.2d 910 (La.App. 1 Cir.), writ denied, 542 So.2d 1379 (1989) ($604,000 in globo award); Simms v. Progressive Ins. Co., 38,804 (La.App. 2 Cir. 9/29/04), 883 So.2d 473, writ denied, 2004-2871 (La. 1/28/05), 893 So.2d 78 ($435,-000 award); Rivere v. Union Pacific R. Co., 93-1132 (La.App. 1 Cir. 10/7/94), 647 So.2d 1140, writ denied, 95-0292 (La.3/24/95), 651 So.2d 295 ($400,000 award); Stephens v. Town of Jonesboro, 25,715 (La.App. 2 Cir. 8/19/94), 642 So.2d 274, writ denied, 94-2351 (La. 11/29/94), 646 So.2d 400 ($300,000 award); Holloway v. Midland Risk Ins. Co., 36,262 (La.App. 2 Cir. 10/30/02), 832 So.2d 1004, writ denied, 2002-3247 (La.3/28/03), 840 So.2d 571 ($275,000 award).


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Respondent v. Sunil Abeku KUMAR, Applicant.
    No. 46,056-KW.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Frank V. Zacearía, Jr., Bossier City, for Applicant.
    Charles Rex Scott, District Attorney, Sarah Midboe, Assistant District Attorney, for Respondent.
    Before GASKINS, DREW and MOORE, JJ.
   GASKINS, J.

|gThe defendant, Sunil Abeku Kumar, filed an application for a supervisory writ of review following his misdemeanor conviction for violation of a protective order. He argued that the trial court erred in denying his motion to quash the charge against him and in finding him guilty of the charged offense. This court granted the writ application and placed the matter on the appellate docket for decision. For the following reasons, we affirm the trial court judgment denying the defendant’s motion to quash and we affirm the defendant’s conviction and sentence.

FACTS

The record shows that on July 19, 2009, the defendant was arrested and charged with the second degree battery of Rebecca Pender, a former girlfriend, after beating her, which resulted in serious bodily injury. On December 22, 2009, the defendant was released from jail on a bond of $75,184. The bond provided as follows:

The defendant/Principal SUNIL ABEKE KUMAR having been arrested for the crime set out below:
SECOND DEGREE BATTERY (14:34.1)
and admitted to bail in the sum shown below, and who together with
INTERNATIONAL FIDELITY INS CO
in order to obtain the Defendant’s condi- . tional release, both do hereby undertake that the above named Defendant will: Appear at all stages of the proceedings in the 1st Judicial District Court or any other court before which he may be prosecuted to answer this charge or any related charge; Will submit himself to the orders and process of the court; Will not leave the State of Louisiana without written permission of the court, and Will abide by the following conditions of the defendant’s release, if any, ordered by the court:
S/C: NO CONTACT WITH VICTIM

Ms. Pender got off work in the early morning hours of December 24, 2009, and went home to the apartment she shared with her five-year-old daughter and her mother. The defendant began telephoning Ms. Pender. She called the police. Thinking that she saw a police car in the parking lot, Ms. Pender stepped outside the apartment. What she actually saw was a taxi cab transporting the defendant. According to Ms. Pender, the defendant got out of the cab and started walking toward her. She hastily retreated into the apartment. She stated that the defendant beat on the door and tried to open it.

[¡¡Officers Steve Masson and Donald Henry of the Shreveport Police Department responded to the call. They contacted Ms. Pender, who was upset. They spotted the taxi cab driving through the parking lot and flagged it down. The defendant was asked to step out of the cab. The officers stated that the defendant was intoxicated and he was told not to return to the apartment complex.

Ms. Pender later contacted the District Attorney’s office regarding the incident and, on the basis of the special condition of bail that the defendant have no contact with the victim, a warrant was issued for the defendant’s arrest for violation of a protective order. The defendant was charged by bill of information with one count of violation of a protective order in contravention of La. R.S. 14:79. The bill of information alleges that the defendant “willfully disobeyed an order issued by a state, federal, parish, city, or magistrate judge, commissioner, or justice of the peace that he stay away from a specific person, to wit: Rebecca P[e]nder, as a condition of his release on bond.”

The defendant filed a motion to quash, arguing that there was no protective order in place as required by La. C. Cr. P. art. 827.1 and La. R.S. 46:2136.2. On August 6, 2010, the defendant appeared before the trial court for argument on the motion to quash and for trial of the misdemeanor charge of violation of a protective order. The trial court denied the motion to quash and, after the presentation of the evidence against the defendant, found him guilty as charged. The defendant was sentenced to serve six months in the parish jail with credit for time served and was ordered to pay a fine of $500 and court costs or to serve 60 days in jail. The 60 days were ordered to be served concurrently with the six months in the parish jail.

The defendant filed an application for a supervisory writ of review -with this court, arguing that the trial court erred in denying his motion to quash and erred in finding him guilty of violation of a protective order under La. R.S. 14:79. On October 8, 2010, we granted the writ application, ordered the trial court to forward the record to this court and directed the [¿parties to file briefs; the matter was submitted for decision on the appellate docket of this court.

VIOLATION OF PROTECTIVE ORDER

The defendant contends that there was no valid protective order against him as required by La. C. Cr. P. art. 327.1 and La. R.S. 46:2136.2. Therefore, he argues that the trial court erred in denying his motion to quash and in finding him guilty of violation of a protective order under La. R.S. 14:79. These arguments are without merit.

Legal Principles

The motion to quash is essentially a mechanism by which to raise pretrial pleas of defense, i.e., matters which do not go to the merits of the charge. La. C. Cr. P. art. 531-534; State v. Armstard, 43,333 (La.App.2d Cir.8/13/08), 991 So.2d 116, writ denied, 2008-2440 (La.1/16/09), 998 So.2d 89, cert. denied, — U.S.-, 129 S.Ct. 2799, 174 L.Ed.2d 292 (2009). In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. State v. Armstard, supra.

There is an exception to the general rule that a motion to quash is essentially a mechanism by which to raise pretrial pleas of defense, i.e., those matters which do not go to the merits of the charge. In cases in which the state cannot establish an essential element of the offense under any set of facts conceivably provable at trial, the motion to quash is the proper procedural vehicle. State v. Armstard, supra.

An appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion. State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198; State v. Armstard, supra.

According to the rules of statutory construction of criminal statutes in this state, the starting point in the interpretation of any statute is the language of the statute itself. The articles of the criminal code cannot be extended by 1 .^analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. La. R.S. 14:3; State v. Shaw, 2006-2467 (La.11/27/07), 969 So.2d 1233; State v. Armstard, supra. Further, although criminal statutes are subject to strict construction under the rule of lenity, the rule is not to be applied with such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which purpose is to ascertain and enforce the true meaning and intent of the statute. State v. Shaw, supra; State v. Armstard, supra. Consequently, a criminal statute, like all other statutes, should be interpreted so as to be in harmony with and to preserve and effectuate the manifest intent of the legislature; an interpretation should be avoided which would operate to defeat the object and purpose of the statute. What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. Therefore, where the words of a statute are clear and free from ambiguity, they are not to be ignored under the pretext of pursuing their spirit. State v. Armstard, supra, and cases cited therein.

The defendant was charged with violation of La. R.S. 14:79, which provides in pertinent part:

A. (l)(a) Violation of protective orders is the willful disobedience of a preliminary or permanent injunction or protective order issued pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et seq., R.S. 46:2151, Children’s Code Article 1564 et seq., Code of Civil Procedure Articles 3604 and 3607.1, or Code of Criminal Procedure Articles, 327.1, 335.1 and 871.1 after a contradictory court hearing, or the willful disobedience of a temporary restraining order or any ex parte protective order issued pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et seq., R.S. 46:2151, criminal stay-away orders as provided for in Code of Criminal Procedure Articles 327.1, and 335.1 Children’s Code Article 1564 et seq., or Code of Civil Procedure Articles 3604 and 3607.1, if the defendant has been given notice of the temporary restraining order or ex parte protective order by service of process as required by law.
(3) Violation of protective orders shall also include the willful disobedience of the following:
\fa) An order issued by any state, federal, parish, city, or municipal court judge, magistrate judge, commissioner or justice of the peace that a criminal defendant stay away from a specific person or persons as a condition of that defendant’s release on bond.
B. (1) On a first conviction for violation of protective orders which does not involve a battery to the person protected by the protective order, the offender shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both. [Emphasis supplied.]

La. C. Cr. P. art. 335.1 provides in pertinent part:

A. (1) In determining conditions of release of a defendant who is alleged to have committed an offense against the defendant’s family or household member, as defined in R.S. 46:2132(4), or against the defendant’s dating partner, as defined in R.S. 46:2151, or who is alleged to have committed the offense of domestic abuse battery under the provisions of R.S. 14:35.3, or who is alleged to have committed the offense of stalking under the provisions of R.S. 14:40.2, the court shall consider whether the defendant poses a threat or danger to the victim. If the court determines that the defendant poses such a threat or danger, it shall require as a condition of bail that the defendant refrain from going to the residence or household of the victim, the victim’s school, and the victim’s place of employment or otherwise contacting the victim in any manner whatsoever, and shall refrain from having any further contact with the victim.

La. C. Cr. P. art. 327.1 states:

If, as part of a bail restriction, an order is issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person for the purpose of preventing domestic abuse or dating violence, the judge shall cause to have prepared a Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2(0, shall sign such order, and shall forward it to the clerk of court for filing, all without delay. The clerk of the issuing court shall transmit the Uniform Abuse Prevention Order to the Louisiana Protective Order Registry, R.S. 46:2136.2(A), by facsimile transmission, mail, or direct electronic input, where available, as expeditiously as possible, but no later than the end of the next business day after the order is filed with the clerk of court.

La. R.S. 46:2136.2 provides in pertinent part:

[yA. In order to provide a statewide registry for abuse prevention orders to prevent domestic and dating violence and to aid law enforcement, prosecutors and the courts in handling such matters, there shall be created a Louisiana Protective Order Registry administered by the Judicial Administrator’s Office, Louisiana Supreme Court. The Judicial Administrator’s Office shall collect the data transmitted to it from the courts of the state and enter it into the Louisiana Protective Order Registry.
B. The Louisiana Protective Order Registry encompasses temporary restraining orders, protective orders, preliminary injunctions, permanent injunctions, and court-approved consent agreements resulting from actions brought pursuant to R.S. 46:2131 et seq., R.S. 46:2151, R.S. 9:361 et seq., R.S. 9:372, Children’s Code Article 1564 et seq., Code of Civil Procedure Article 3607.1, or peace bonds pursuant to Code of Criminal Procedure Article 30(B), or as part of the disposition, sentence, or bail condition of a criminal matter pursuant to Code of Criminal Procedure Article 327.1 or Article 871.1 as long as such order is issued for the purpose of preventing violent or threatening acts or harassment against, contact or communication with, or physical proximity to, another person to prevent domestic abuse or dating violence.
D. The clerk of the issuing court shall send a copy of the order or any modification thereof to the Louisiana Protective Order Registry as expeditiously as possible but no later than by the end of the next business day after the order is filed with the clerk of court. Transmittal of the Uniform Abuse Prevention Order may be made by facsimile transmission, mail, or direct electronic input, where available, as expeditiously as possible, but no later than the end of the next business day after the order is filed with the clerk of court.

Discussion

As illustrated by the statutory scheme outlined above, the legislature has taken extensive measures to provide a framework for protecting victims of domestic abuse and dating violence. As a condition of bail, the trial court may require a defendant to stay away from the victim. The legislature has instituted procedures for the issuance of Abuse Prevention Orders and for the central registry of such orders to aid law enforcement, prosecutors, and courts in enforcing such orders and preventing further abuse.

| sThe defendant was convicted of violating La. R.S. 14:79. The statute was originally enacted in 1983 and the crime was defined as the willful disobedience of a preliminary or permanent injunction or protective order issued pursuant to La. R.S. 9:306 or La. 46:2131 et seq. after a contradictory court hearing. See Acts 1983, No. 497, § 1. The definition of the offense was amended in 1987 and again in 1994. See Acts 1987, No. 268, § 1 and Acts 1994, 3rd Ex.Sess. No. 7, § 1. Also in 1994, the legislature added La. C. Cr. P. art. 335.1 which allowed the imposition of a stay-away order as a condition of bail in certain circumstances.

In 1999, the legislature amended La. R.S. 14:79 to include among the definitions of a violation of the offense criminal stay-away orders provided for in La. C. Cr. P. art. 327.1, set forth above, which addresses bail restrictions and their transmission to the Louisiana Protective Order Registry. See Acts 1999, No. 1200, § 1. Interestingly, also in 1999, the legislature added La. R.S. 14:79(A)(3), which provides that violation of protective orders shall additionally include the willful disobedience of an order issued by any state, federal, parish, city, or municipal court judge, magistrate judge, commissioner, or justice of the peace that a criminal defendant stay away from a specific person or persons as a condition of that defendant’s release on bond. See Acts 1999, No. 659, § 1. This is the section of La. R.S. 14:79 that the defendant was charged with violating in the bill of information.

This action by the legislature, in amending and expanding the definition of conduct prohibited by La. R.S. 14:79(A)(l)(a), shows that when a stay-away order is made a condition of bail in cases of domestic abuse or dating violence, the trial court is to enter an Abuse Prevention Order and to transmit it to the Louisiana Protective Order Registry. However, the legislature also provided that the willful disobedience of a condition of bail that the defendant stay away from a person or persons will also result in a violation of La. R.S. 14:79(A)(3)(a) without the entry of an |sAbuse Prevention Order and without reference to domestic abuse or dating violence. The statutory scheme shows that the legislature, through the fair import of the words of the statute, intended to give broad protection to all victims of violence. The words of the statute are clear and free from ambiguity and we will apply them as written.

At the trial of this matter, the state showed that the defendant was ordered to stay away from Ms. Pender as a condition of his release on bail for the charge of second degree battery. The testimony of Ms. Pender and Shreveport Police Officers Steve Masson and Donald Henry clearly established that, after his release on bond for the second degree battery of Ms. Pender, the defendant called the victim, went to her apartment, beat on her door, and tried to enter the dwelling. The law enforcement officers who responded to Ms. Pender’s 911 call found the defendant in a taxi cab on the parking lot of the apartment complex and ordered him to leave and not return.

In addition, in connection with the motion to quash which was considered immediately prior to the trial of this matter, the state presented the testimony of Vickie Johnson, a deputy with the Caddo Parish Sheriffs Office, working in the fines and bonds division. Deputy Johnson testified that special conditions are placed on the bond documents and the defendant is made aware of the conditions before he signs the bond. The state introduced into evidence a copy of the defendant’s bond showing the special condition that he stay away from the victim. The document is signed by the defendant. The parties stipulated that, at the trial on the merits, Deputy Johnson’s testimony would have been the same as that presented at the motion to quash.

The stay-away order instituted as a condition of bail was sufficient to constitute a protective order under La. R.S. 14:79(A)(S). Under this portion of La. R.S. 14:79, there were no requirements for the entry or registry of an Abuse Prevention Order. The evidence shows that the defendant had notice that he was under a court order to stay away from the victim as a condition of his release on bond and that he violated that order. Based upon this record, the state established all the elements necessary to convict the defendant of violation of a protective order under La. R.S. 14:79(A)(3). The |intrial court did not err in denying the defendant’s motion to quash or in finding the defendant guilty of the charged offense. The defendant’s conviction and sentence are affirmed.

CONCLUSION

For the reasons stated above, we affirm the trial court judgment denying the defendant’s motion to quash. We also affirm the defendant’s conviction and sentence for violation of a protective order.

AFFIRMED.

      . At some points in the record, the victim’s last name is spelled "Pinder.” In the trial transcript, her name is spelled "Pender.” That is the spelling used in this opinion.

      . La. R.S. 9:306, relating to injunctions against spousal abuse, was repealed by Acts 1990, No. 1009, § 9, effective January 1, 1991. For the subject matter of prior R.S. 9:306, see now La. R.S. 9:372. The current version of La. R.S. 9:306 allows the court to order divorcing parties to attend a court-approved seminar designed to educate and inform them of the needs of their children. La. 46:2131 et seq. is part of the Protection from Family Violence Act.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Derunn HENDERSON, Appellant.
    No. 46,057-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2011.

      Williams & Williams, Shreveport, by Sandra M. Williams, David Scott Williams, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, PEATROSS & MOORE, JJ.
   PEATROSS, J.

12Pefendant, Derunn Henderson, a/k/a “Rundown,” was charged with and subsequently convicted of two counts of distribution of cocaine. On each count, the trial judge sentenced Defendant to serve 15 years at hard labor with the first two years to be served without the benefit of probation, parole or suspension of sentence. The trial judge imposed the sentences consecutively. Defendant now appeals. For the reasons stated herein, Defendant’s convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

On April 27 & 28, 2009, Defendant provided powder cocaine to an informant by the name of Jason Edwards, a/k/a Jason Israel (hereinafter referred to as Edwards). The two transactions took place at Defendant’s residence in Sibley, Louisiana, and were recorded by a police surveillance team. Defendant admits that he twice distributed cocaine to the confidential informant; but, he contends that he was entrapped into doing so, thereby committing a crime which he was not otherwise predisposed to commit.

Trial of the matter began on March 9, 2010, and the State called as its first witness, Officer Shawn Baker of the Webster Parish Sheriffs Office. At the time of trial, Officer Baker was working in the Criminal Investigation Division (CID) Narcotics unit for approximately 9 1/2 years and was the lead agent on Defendant’s case. Officer Baker testified that Edwards was a confidential informant (Cl) who had worked with the Sheriffs Office for 1½ years, during which time he had helped build 65 cases for the Sheriffs Office. Officer Baker spoke with Edwards on April 27, 2009, and asked Edwards if he knew Defendant. Edwards confirmed that he was very familiar with Defendant. Officer Baker made this initial inquiry with Edwards because several citizens in Sibley had called in to the Sheriffs Office voicing concerns over a high volume of traffic in the area near Defendant’s home late at night.

Officer Baker asked Edwards if he was capable of buying illegal substances from Defendant and Edwards replied that he would be able to do so. On April 27, 2009, Edwards was wired with audio and video surveillance and supplied with $100 of task force “buy money.” Officer Baker and Officers Marvin Garrett and Dan Weaver followed Edwards to ^Defendant’s residence in Sibley. Edwards was in Defendant’s residence for 10 to 12 minutes. Officer Baker then met Edwards in a prearranged location to collect the evidence from Edwards. Once the evidence was collected, a field test kit was used to test the substance, which tested positive as cocaine.

Officer Baker then explained that similar events took place the next day on April 28, 2009. Officer Baker telephoned Edwards to confirm that he was available to go make a buy, they met at a prearranged location outside of Minden and Edwards was wired with audio and video surveillance and supplied with $100. Officer Baker followed Edwards to Defendant’s residence; Edwards made the buy, left Defendant’s residence and then met Officer Baker at another predetermined location to give him the evidence.

Officer Baker testified that officers always search the Cl and his vehicle thoroughly to make sure he has no other money, drugs or drug paraphernalia on his person or in his car. Officer Baker testified that Edwards was usually compensated at a rate of $300 an hour and had never come back unsuccessful after being sent out to make a buy. Officer Baker identified Defendant in open court and confirmed that the he was the same man that Officer Baker had seen on the April 28, 2009 videotape.

The State’s next witness was Officer Garrett, who works for the narcotics task forces of the Minden Police Department and the Webster Parish Sheriffs Department. Officer Garrett testified that he knew of anonymous reports called in to law enforcement claiming that Defendant had been selling cocaine. He further confirmed that they had two videotapes of Defendant selling cocaine on April 27 & 28, 2009.

The State’s next witness was Randall Robillard, an employee of the North Louisiana Crime Lab where he is the forensic chemistry supervisor. Robillard was tendered and accepted as an expert in the field of substance analysis with regard to the testing of controlled dangerous substances and he confirmed that the substances collected from Edwards were cocaine.

The State’s next witness was Edwards, the Cl. Edwards confirmed that he had known Defendant for about a year and a half prior to the purchases of cocaine that took place on April 27 & 28, 2009. Edwards confirmed that he often did work for detectives, including Officer Baker, |4for which he was paid substantial sums of money and that, oftentimes, he would be otherwise unemployed. Edwards verified that he and his vehicle were searched before he bought cocaine from Defendant and that he was given “buy money” to purchase the narcotics from Defendant. Edwards then confirmed Officer Baker’s testimony with regard to the undercover transactions he conducted with Defendant on April 27 & 28, 2009.

Edwards further testified that he did not try to talk Defendant into selling cocaine to him and that he had never used cocaine with Defendant. Edwards testified that he knew he would be able to buy cocaine from Defendant. When asked how he knew this, Edwards explained: “I’m saying the reason I bought the coke from him is because he the one that came to me. I seen him selling it at a party, you know.” Edwards testified that he did not tell Defendant that he was working with the police.

Edwards then confirmed that, in addition to the times that he had purchased cocaine from Defendant on April 27 & 28, 2009, he had seen Defendant sell cocaine to other people on other occasions. The following colloquy on cross-examination took place:

Q: But you don’t know of any other occasions?
A: Yeah, I know of occasion at a party that I threw.
Q: And did you see him do that?
A: Yes.
Q: And who did he do it to?
A: It was a lot of different guys, you know. It was just like a big—
Q: Name — name one of them.
A: Nah. No, I’m not going to do that.

After Edwards refused to answer the question, the trial judge stopped the cross-examination and a bench conference took place. The jury was taken out of the courtroom and the court heard arguments by counsel on the questioning of the witness regarding to whom he had seen Defendant sell cocaine.

1 ¡jAfter reconvening, the judge explained, “[I]n order to show entrapment, entrapment is when it appears that an officer or someone acting for an officer instigated the defendant to commit an offense which the defendant otherwise would not have committed and had no intention of committing. It is not entrapment, however, if the defendant already had the requisite criminal intent and the officer or someone working for the officer merely furnished the defendant with the opportunity to commit the offense.”

The State then objected to the relevancy of defense counsel’s question asking Edwards to give the identities of the people to whom he had seen Defendant selling cocaine at the party. In response, defense counsel countered that he was trying to show that Defendant had no predisposition to commit the crime of distribution of cocaine because the only two times he ever distributed cocaine were to Edwards on April 27 & 28, 2009. The trial judge sustained the State’s objection and reminded defendant counsel that it was his burden to prove entrapment.

Defendant’s first witness was Ebony Hill who testified that she knows Defendant, is distantly related to the Cl, Edwards, and used to live in the Sibley Apartment Complex in close proximity to Edwards. Hill testified that Edwards did not have a reputation for being truthful. Hill further testified that Defendant was a “good law abiding citizen.”

Defendant’s next witness was his brother-in-law, Starwasky Hampton, who was also an old schoolmate of Edwards. Hampton testified that Edwards did not have a reputation in the community for being a truthful person, but that Defendant did have a reputation in the community for being a truthful person and for being a law-abiding citizen. Hampton testified that he personally had never used cocaine, but acknowledged that he was aware that Defendant had two convictions for possession of cocaine, stating, “[Y]es, he used to use it.”

Defendant then testified on his own behalf, maintaining his innocence with regard to the charges against him. He testified that he is a painter for Clement Industries where he has to participate in periodic and random drug screens and that he lives at his home with his wife and three children. He acknowledged that he had a problem with cocaine in the past, that he was addicted to cocaine in the past, that he had used cocaine as recently as [ ^approximately one year prior to trial and that he had been previously convicted of possession of cocaine in 2000 and 2003.

Defendant testified that he had known Edwards for a long time, had considered him a friend and had done cocaine with him in the past. Defendant acknowledged that he was the one on the videotape delivering cocaine to Edwards, but that he was not a dealer of cocaine and that no one had ever gone to his house to buy cocaine other than Edwards.

Defendant testified that the only time he had ever delivered cocaine to anyone was on April 27 & 28, 2009, when he sold it to Edwards. Defendant confirmed that, after some discussion with Edwards, he went with him to James Birden’s apartment in the Sibley Apartment Complex and purchased cocaine from Birden. Defendant then testified that he took the cocaine back to his house and later went to Edwards’ apartment. Defendant stated that he did not want to do the drug at that time because his wife was around and he wanted to be discreet so she would not know he was getting involved with the drug again. Defendant acknowledged that he had agreed to enter into a business venture with Edwards to make money selling cocaine, but that it had been Edwards’ idea to do so.

On cross-examination, Defendant was questioned about the plan that he and Edwards had for buying cocaine. Defendant confirmed that he and Edwards went in together to buy cocaine and that they each owned the cocaine. When questioned about entering into the business venture with Edwards, the following colloquy took place:

Q: But you were ready to do it weren’t you?
A: No. It wasn’t that I was ready to do it.
Q: You weren’t? You were using cocaine then weren’t you?
A: No, no. It wasn’t that I was ready to do it.
Q: Well wait you already said it was a business venture?
A: Yeah.
Q: So you were ready for some business right?
17A: I trusted him. I trusted him. Bottom line.

Defendant’s final witness was his wife, Tamaika Henderson. Ms. Henderson testified that she and Defendant had been married for seven years at the time of trial. She acknowledged that she was aware of her husband’s problem with cocaine and testified that he stopped using cocaine after his arrest several years earlier. She also testified that she would have known if Defendant had continued to use cocaine after that time and that there were no occasions where people she did not know came over to the house late at night. Ms. Henderson further acknowledged that she was aware that Defendant got rein-volved with cocaine with Edwards. She explained that she overheard Edwards ask Defendant to “go in with him” and that Edwards told Defendant that he knew how to really make some money, explaining that he knew a guy that went by the name of “Bird.”

On cross-examination, Ms. Henderson first acknowledged that she was aware that Defendant was exchanging drugs for money in their house, but then later changed her mind. The following line of questioning then took place:

Q: You were aware of that?
A: Yes.
Q: Okay. So you knew he was dealing drugs then?
A: No.
Q: Okay. That wasn’t dealing drugs?
A: No, because he wasn’t — it wasn’t his stuff. That was Jason’s stuff.
Q: I guess — so you’re telling me that your husband was just keeping Jason’s stuff, right?
A: Basically.
Q: And just charged Jason $100 every time as a storage fee?
A: I don’t recall Jason giving him no $100.

|sThe State then showed Ms. Henderson portions of the videotape showing Defendant giving Edwards cocaine in exchange for $100. After Ms. Henderson viewed the two videos, she continued to maintain that Defendant was not selling cocaine for money out of their house.

As previously stated, on July 80, 2009, a bill of information was filed charging Defendant with two counts of distribution of cocaine, a Schedule II CDS. On August 31, 2009, Defendant entered a plea of not guilty. A jury trial commenced on March 9, 2010, and concluded on March 10, 2010. The jury returned a verdict finding Defendant guilty as charged on both counts. The trial judge imposed two 15-year sentences at hard labor, to be served consecutively, with the first two years of each sentence to be served without the benefit of parole, probation or suspension of sentence. Defendant did not file a motion to reconsider sentence. Defendant now appeals.

DISCUSSION

Assignment of Error Number One (verbatim): The evidence is insufficient to prove that appellant was predisposed to distribute cocaine prior to being approached by the State agent, and thus, insufficient to prove beyond a reasonable doubt that appellant was not entrapped.

Defendant argues that he met his burden of proof by a preponderance of the evidence that he was entrapped by an agent working for the State. In support of this argument, Defendant asserts that Edwards, who was working as a Cl for officers at the time, not only induced Defendant to commit the offense, but took Defendant to an individual’s apartment to buy the cocaine and provided Defendant with the money to purchase it.

Further, Defendant contends that the State did not meet its burden of proving beyond a reasonable doubt that he was predisposed to sell cocaine, prior to being approached by Edwards. Defendant asserts that the evidence shows that he had overcome his addiction to cocaine and did not start using it again until induced by Edwards. In support of the contention, Defendant avers that he stopped using the drug after his last conviction for possession of cocaine and that he has passed the periodic drug tests administered by his employer since then. Additionally, Defendant argues that Edwards’ testimony wherein he claims that Defendant had sold cocaine at a party is not credible because Edwards could not name one person that Defendant had | ^allegedly sold the cocaine to and it would not make sense for Defendant to sell cocaine at a party where his wife was present and many people would have witnessed the act. Finally, Defendant alleges that Edwards’ reason for inducing him to distribute cocaine at the time was because Edwards was unemployed, other than working undercover with the police.

The State contends that, considering the testimony presented at trial, the evidence was sufficient for a rational jury to reject Defendant’s entrapment defense and to find that the State carried its burden of proof beyond a reasonable doubt that Defendant was not induced by the Cl to commit the offense of distribution of cocaine, an offense he was not otherwise predisposed to commit.

Entrapment occurs when a state agent, to obtain evidence of the commission of an offense, solicits, encourages or otherwise induces another person to engage in conduct constituting the offense when that person is not otherwise predisposed to commit such an offense. State v. Brand, 520 So.2d 114 (La.1988); State v. Presson, 39,688 (La.App.2d Cir.4/6/05), 900 So.2d 240. The entrapment defense comprises two elements: (1) an inducement by a state agent to commit an offense, and (2) lack of predisposition to commit the offense on the part of the defendant. State v. Brand, supra; State v. Presson, supra. Entrapment is an affirmative defense which must be raised by the defendant and supported by a preponderance of the evidence. Id.

Once the defendant meets this burden, the state has the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to government involvement. Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992); State v. Brand, supra. Whether a government agent induced an otherwise innocent person into committing a crime is a question to be resolved by the trier of fact. State v. Brand, supra. On appeal, claims of entrapment are reviewed under the Jackson standard. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

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 |10elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 01-1658 (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. Carter, 42,894 (La. App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. 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, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43, 819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913, cert. denied, — U.S. -, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, unit denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La. App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writ denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Officer Baker began investigating Defendant when he received anonymous phone calls from concerned citizens in the Sibley area that there was a high volume of traffic around Defendant’s residence at night. Based on this information, Officer Baker asked the Cl, Edwards, if he was capable of making a buy from Defendant and Edwards responded that he could probably do so, based on his previous observations of Defendant selling cocaine to others at a party. Defendant testified that he did not distribute cocaine at any time other than to the Cl on April 27 & 28, 2009; however, | nboth of Defendant’s prior convictions in 2000 and 2003 were for possession of cocaine, and, additionally, Defendant admitted that he had been addicted to the drug in the past. Defendant’s history of convictions for possession of cocaine and admitted use of the drug strongly indicate that he was predisposed to commit the offense of distribution of cocaine.

The jury heard testimony from Edwards that he saw Defendant distribute cocaine on occasions prior to the transactions which took place on April 27 & 28, 2009. The jurors also heard Defendant’s testimony that he did not distribute cocaine at any time other than the two days in April when he distributed cocaine to Edwards. The jury made a credibility determination and believed the testimony of the witnesses for the State and chose not to believe the testimony of Defendant. Credibility determinations at trial go to the weight of the evidence, not the sufficiency of the evidence, and great deference is given to a jury’s decision to accept or reject the testimony of a witness. State v. Eason, supra; State v. Speed. We see no manifest error in the jury’s decision to reject Defendant’s entrapment defense and find that the State carried its burden of proof beyond a reasonable doubt that Defendant was not induced by the Cl to commit the offense of distribution of cocaine, an offense he was not otherwise predisposed to commit.

This assignment of error is without merit.

Assignment of Error Number Two (verbatim): The Trial Court erred in sustaining the objection of irrelevance during the cross examination of informant Jason Edwards.

Defendant argues that the trial judge erred in sustaining the State’s objection to the relevancy of the names of the people to whom Edwards had witnessed Defendant selling cocaine at the party. Defendant asserts that the trial judge’s decision to sustain this objection prevented Defendant from being able to elicit testimony to show Edwards’ lack of credibility or to prove whether or not Defendant was predisposed to distribute drugs prior to being approached by Edwards. Defendant further contends that the evidence was relevant and no evidentiary exception was presented to support the State’s objection. Additionally, Defendant contends that the trial judge’s | ^refusal to allow him to fully cross-examine Edwards on this issue constitutes reversible error pursuant to La. C. Cr.P. art. 102(A).

The State argues that the names of the persons that Edwards observed purchasing cocaine from Defendant on prior occasions are not relevant to the issue of whether or not Defendant was predisposed to selling cocaine on April 27 & 28, 2009. The State submits that the trial court’s ruling sustaining its objection was not an abuse of discretion and did not affect the substantial rights of Defendant.

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, the Code of Evidence or other legislation. Evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury or by considerations of undue delay or waste of time. La. C.E. art. 403. A trial judge’s determination of the relevancy of testimony is afforded great weight and will not be disturbed absent an abuse of discretion. State v. Wiley, 614 So.2d 862 (La.App. 2d Cir.1993).

Confrontation rights claims are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Robinson, 01-0273 (La.5/17/02), 817 So.2d 1131. Harmless error analysis begins with the premise that the evidence is otherwise sufficient to sustain the conviction if viewed from the perspective of a rational fact finder. State v. Haddad, 99-1272 (La.2/29/00), 767 So.2d 682, cert. denied, 531 U.S. 1070, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). The inquiry is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

Defendant did not dispute that he distributed cocaine to Edwards on April 27 & 28, 2009; rather, he asserted that he was induced to commit the crime of distribution of cocaine, a crime that he was not otherwise predisposed to commit. Edwards’ testimony concerning whether or not he saw Defendant distribute cocaine on previous occasions was an integral part 11sof the inquiry into whether or not Defendant was predisposed to commit the offense. The trial judge’s ruling sustaining the State’s objection to Defendant’s questioning, however, did not deprive Defendant of his ability to question Edwards as to whether or not he had previously seen Defendant distribute cocaine. It only limited the scope of Defendant’s inquiry from extracting the specific names of the people to whom Edwards had seen Defendant selling cocaine. Accordingly, we see no error in the trial judge’s ruling sustaining the State’s objection as to relevancy.

This assignment of error is without merit.

Assignment of Error Number Three (verbatim): The Trial Court erred in faffing to give the specific jury instruction requested by appellant regarding entrapment.

During trial, defense counsel verbally requested that, in addition to the language already contained in the jury instructions provided by the trial court, the following language concerning entrapment be included in the court’s charge to the jury:

The burden of proof is on the defendant to raise the defense of entrapment and produce a preponderance of evidence that a state agent induced him to commit the crime. Once a defendant meets this burden, the state has the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to government involvement. State v. Kerrigan, 27,846 (La.App.2d Cir.4/3/96), 671 So.2d 1242, citing State v. Hardy, 98-25 (La.App. 5th Cir.5/13/98), 715 So.2d 466.

Defendant further requested the following language:

Where the government has induced an individual to break the law and the defense is entrapment, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the act prior to first being approached by the government agents. Jacobson v. United States, supra.

The State argued that Defendant’s request for the above-mentioned language to be included in the jury charge should have been in writing. The State further argued that the trial court’s charge to the jury already contained language that the burden is at all times on the State to prove guilt beyond a reasonable doubt, that the court included the defense of entrapment with the Injury charge and that it would not be proper to insert the language requested by the defense.

After considering the arguments of the State and Defendant, the trial judge ruled that he would not insert the language into the jury charge as requested by Defendant. The trial judge explained:

But I will follow the form that has been laid before us by the entrapment language that has been accepted by the Louisiana Courts and I will follow that form. You will have that right to argue that during your closing and I will give you that right to do so, but I will not include that language.

Defense counsel made a contemporaneous objection to the trial judge’s refusal to include the requested language. The trial judge ultimately gave the following instruction to the jury:

A defendant who is instigated or induced by a law enforcement officer or someone acting for him into the commission of a crime which he otherwise had no intention of committing is not guilty because he was entrapped.
Entrapment is shown when it appears that an officer or someone acting for an officer instigated the defendant to commit an offense which the defendant otherwise would not have committed and had no intention of committing.
It is not entrapment, however, if the defendant already had the requisite criminal intent and the officer or someone acting for him merely furnished the defendant with the opportunity to commit the offense.
The fact that an opportunity is furnished or that the defendant is aided in the commission of a crime which originated in his own mind is no defense. There’s clear distinction between inducing a person to commit a crime and setting a trap to catch a person in carrying out criminal designs of his own conception. The primary emphasis is on whether or not the defendant had a pre-disposition to commit the crime.
The reason for this defense is simple: officers of the law may not incite crime, merely to punish the criminal.
Thus if you find:
(1) That the defendant did not have an intent to commit the offense charged before being instigated to commit it; and
11B(2) That the defendant was instigated to commit the offense charged by a law enforcement officer or one acting as an officer’s agent; then you must find the defendant not guilty.

During closing argument, Defense counsel made the following statements to the jury:

The defense of entrapment has been raised in both counts of the charges filed against the defendant. A defendant who is instigated or induced by a law enforcement officer or someone acting for a law enforcement officer, Jason Israel, into committing the crime which he otherwise had no intention of committing is not guilty because he was entrapped. Entrapment is shown when it appears that an officer or someone acting for an officer, Jason Israel, instigated the defendant to commit an offense which the defendant otherwise would not have committed and had no intention of committing.
Two things must be shown. Number one, that the defendant was tricked, duped, lured. Well that’s not enough. Mr. Israel has got a camera on him. He purports to be a friend of Mr. Henderson. It’s clear that he is duping and tricking him into selling cocaine. But that’s what you have to do with drug dealers. What’s not clear is that this defendant right here had a prior disposition to commit the crime.

Defendant argues that the special jury charge he requested should have been included by the trial judge because it did not require qualification, limitation or explanation. Defendant further asserts that the trial judge’s failure to include the requested language in the jury charge resulted in the jury not having complete instructions with regard to the State’s burden of proving predisposition beyond a reasonable doubt. Defendant argues that this failure violated his constitutional right to require the State to prove each element of the offenses charged beyond a reasonable doubt. According to Defendant, this constitutes reversible error because it prejudices substantial rights of the accused.

The court is required to include the law applicable to the case in its charge to the jury. La. C. Cr. P. art. 802. The state and the defendant have the opportunity before argument to submit to the court any requests for 11fispecial written charges for the jury. La. C. Cr. P. art. 807. Article 807 further provides:

A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

Failure to give a requested jury instruction is reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused or a substantial violation of a constitutional or statutory right. State v. Tate, supra; State v. Spears, 39,302 (La.App.2d Cir.9/27/06), 940 So.2d 135, writ denied, 06-2704 (La.8/31/07), 962 So.2d 424, cert. denied, 552 U.S. 1312, 128 S.Ct. 1888, 170 L.Ed.2d 747 (2008).

We do not find the trial judge’s decision not to include the language requested by Defendant to be prejudicial to the substantial or constitutional rights of Defendant or to constitute a miscarriage of justice. Edwards testified for the State and verified that he had seen Defendant distribute cocaine prior to the distributions on April 27 & 28, 2009. Defendant called several witnesses who testified to the contrary, stating that he was not known as a drug dealer or known to distribute cocaine. The State and Defendant both had opportunities to elicit testimony concerning Defendant’s predisposition to distribute cocaine or lack thereof. Furthermore, Defendant was given an opportunity during closing argument to further explain to the jury the burdens of proof on the issue of entrapment.

This assignment of error is without merit.

Assignment of Error Number Four (verbatim): The Trial Court erred in imposing an excessive sentence.

La. R.S. 40:967(B)(4)(b) pertains to penalties for distribution of a Schedule II CDS and provides:

Distribution, dispensing, or possession with intent to produce, manufacture, distribute, or dispense cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964 or oxycodone as provided in Schedule II(A)(l)(o) of R.S. 40:964 or methadone as provided in Schedule II(B)(11) of R.S. 40:964 shall be 117sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars. (Emphasis added.)

In accordance with the sentencing guidelines set forth above, the trial judge sentenced Defendant to serve two separate terms of 15 years at hard labor, one for each count, with the first two years of each sentence to be served without the benefit of probation, parole or suspension of sentence, with the sentences to run consecutively. Defendant acknowledges that the sentences imposed by the trial judge are within the guidelines of the statute, but argues that they are excessive nonetheless. Defendant further argues that there is no particular justification in the record for the imposition of consecutive sentences and that the sentences are grossly disproportionate to the crimes committed.

The State argues that the circumstances of this case in conjunction with Defendant’s criminal history support the sentence imposed by the court. The State points to the fact that the trial judge gave reasons for the sentence, noting that Defendant was a third-felony offender and that he took cognizance of the statutory criteria set forth in La. C. Cr. P. art. 894.1.

The State also contends that the consecutive sentences are justified given the fact that Defendant received midrange hard labor sentences of 15 years on each count with the maximum sentence for each count being 30 years. The State further submits that the sentences imposed do not shock the conscience considering the harm done to society by Defendant.

The record reveals that Defendant did not file a motion to reconsider sentence. When a defendant fails to timely file a motion to reconsider sentence under La. C. Cr. P. art. 881.1, the appellate court’s review is limited to the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jones, 41,449 (La.App.2d Cir.9/20/06), 940 So.2d 61; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a 11spurposeless and needless imposition of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158. The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Hardy, 39,233 (La. App.2d Cir.1/26/05), 892 So.2d 710.

Defendant was found guilty on two counts of distribution of cocaine, a Schedule II, CDS. Each count carries a sentencing range of 2 to 30 years. La. R.S. 40:967. At sentencing, the trial judge fully considered the contents of Defendant’s presentence investigation (PSI) report. The PSI report indicated that Defendant’s criminal record included a conviction for possession of a controlled substance in 2000 and two convictions of possession of Schedule II CDS, cocaine and methamphetamine, in 2003. The PSI also revealed that Defendant pled guilty to a charge of aggravated battery in August 1993. The trial judge then reviewed Defendant’s social history as contained in the PSI with regard to his family background, his level of education and his current family situation with his wife and children.

The trial judge then noted that Defendant was a third-felony offender and that the PSI report contained a recommendation that the sentences for each count run consecutively. The trial judge then sentenced Defendant to two 15-year terms at hard labor, to be served consecutively, with the first two years of each term to be served without the benefit of parole, probation or suspension of sentence.

Defendant was sentenced to a total of 30 years’ imprisonment which is within the sentencing range for one charge of the offense of distribution of a Schedule II CDS under La. R.S. 40:967. Since Defendant was found guilty of two separate counts, he faced a maximum sentence of up to 60 119years. Accordingly, we do not find the trial judge’s imposition of two 15-year consecutive sentences, an aggregate sentence of 30 years, to be constitutionally excessive for this third-felony offender.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, Derunn Henderson, are affirmed.

AFFIRMED.

      . Defendant did not have a trial in either of those cases and accepted probation for both charges after pleading guilty.

      . The record reflects that the State intended to file a multiple offender bill, but neither a copy of any multiple offender bill nor a transcript from any multiple offender hearing is included in the record.