text:
    Gerald WASHINGTON v. The SHAW GROUP, INC.
    No. 10-CA-568.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.

      John Fox & Associates, Robert W. Booksh, Jr., Randall C. Joy, Attorneys at Law, New Orleans, LA, for Plaintiff/Appel-lee.
    Rabalais, Unland & Lorio, John J. Raba-lais, Janice B. Unland, Heather W. Blackburn, Attorneys at Law, Covington, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

li>The Shaw Group, Inc. files this appeal from a workers’ compensation judgment in favor of employee, Gerald Washington. For the reasons which follow, we affirm the workers’ compensation court’s judgment.

STATEMENT OF THE CASE

On December 14, 2005, while working in the course and scope of his employment with The Shaw Group, Gerald Washington injured his neck and back when a pipe fell and hit his neck. Washington was treated in the emergency room at St. Elizabeth’s Hospital in Gonzales, LA for the injuries he sustained. At the time of the accident, the Shaw Group was insured by a policy of workers’ compensation insurance issued by Zurich Insurance Company (“Zurich”). F.A. Richard and Associates, (“FARA”), was Zurich’s workers’ compensation third party administrator. Indemnity benefits were paid beginning January 24, 2006 and medical benefits were paid for Washington.

|3On January 9, 2006, Washington sought treatment with his choice of physician, Dr. Jyoti Pham. Dr. Pham found Washington suffered from a cervical strain and low back pain as a result of the accident. A cervical MRI was performed and showed a cervical disc herniation. Washington continued to treat with Dr. Pham who prescribed pain medication and recommended epidural steroid injections. Washington took the pain medication but continuously refused the injections due to a fear of needles.

Based on the MRI findings, Dr. Pham referred Washington to Dr. Horace Mitchell, a neurosurgeon, for a neurological evaluation in March 2006. Washington was first examined by Dr. Mitchell, his choice of a neurosurgeon, on April 10, 2006. Dr. Mitchell ordered a cervical my-elogram and a CT scan. Dr. Mitchell recommended epidural steroid injections, or if preferred an anterior cervical discectomy with a fusion and BACK cage. On September 11, 2007, Dr. Mitchell recommended a repeat cervical MRI because it had been over a year since the first MRI and Washington’s symptoms were worse. Washington continued to treat with Dr. Mitchell, who continued to recommend surgery. Washington still refused the epidural steroid injections and indicated he would like to go straight to surgical intervention.

The Shaw Group, through FARA, requested a second medical opinion (“SMO”) for Washington from Dr. Anthony Ioppola. Dr. Ioppola reviewed Washington’s medical records and performed an examination. He issued a report June 17, 2006 recommending an EMG/nerve conduction test and conservative care. He concluded there was no indication for surgery or epidural steroid injections. Based on Dr. Ioppola’s findings, FARA denied Washington’s claim for surgery and epidural steroid injections recommended by Dr. Mitchell.

|4FARA then requested the appointment of an independent medical examiner (“IME”) in the field of neurosurgery and Dr. Carl Culicchia was appointed. He examined Washington on September 13, 2006. Dr. Culicchia issued a report that same day and stated that he had reviewed Washington’s medical records containing radiology reports from the cervical MRI and CT scan that were hard to read, a nerve conductivity velocity study, a lumbar MRI report, a letter from Dr. Ioppola, and progress notes from Dr. Mitchell. Dr. Cu-licchia concluded that, based on the available data, there was no neurological disease or injury and he would not offer surgery to Washington. Dr. Culicchia stated he would review the missing MRI studies and render further opinions.

On January 23, 2007, defendant’s counsel sent a written request to Dr. Culicchia asking that his IME report address whether he felt cervical surgery was reasonable and medically necessary as a result of the accident and whether Washington could return to work. Defense counsel also sent correspondence to FARA on March 29, 2007 indicating that Dr. Culicchia had not completed a supplemental report, even though he had been provided the MRI films. Defense counsel also sent correspondence to Washington’s counsel on April 13, 2007 attaching an addendum from Dr. Culicchia dated April 4, 2007. However, the letter advised that this report did not address the core issues, including whether Washington had reached maximum medical improvement, was able to work, or whether he needed surgery. Defense counsel agreed to obtain a supplemental report from Dr. Culicchia. On July 10, 2007, defense counsel sent correspondence to Washington’s attorney including Dr. Culicchia’s report dated May 30, 2007 and indicated that indemnity benefits would be discontinued. Dr. Culicchia’s final report, dated May 30, 2007, indicated that Washington had reached his maximum medical improvement and did not need further treatment or diagnostic studies and | she could return to work without restrictions. FARA discontinued indemnity benefits effective May 31, 2007.

Washington continued to treat with Dr. Pham and FARA continued to pay for medical benefits and medication. However, FARA continued to deny the epidural steroid injections and the surgery recommended by Dr. Pham and Dr. Mitchell. FARA also denied Dr. Pham’s request for a repeat cervical MRI.

On June 18, 2007, Washington filed a disputed claim for compensation asserting that his wage benefits had been terminated in June 2007. He sought payment of total temporary disability and/or supplemental earnings benefits and he sought authorization for a medication recommended by Dr. Pham and not authorized by FARA. Washington further alleged that he was entitled to penalties and attorney’s fees, with interest, because the Shaw Group failed to timely pay indemnity benefits at a proper rate, failed to authorize and pay medical expenses, and failed to timely provide medical records after a written request.

Prior to trial, the parties entered into stipulations. The parties agreed that based on the SMO report of Dr. Ioppola, the denial of the surgery for Washington was not arbitrary and capricious so no penalties were due for the failure to pay for such surgery. Further, the parties stipulated that Washington’s weekly compensation rate for the period of temporary total disability was $454.00. Trial was held June 12, 2009. On March 1, 2010, the workers’ compensation court issued an oral judgment and reasons for judgment which were dictated into the record. A written judgment was signed by the trial court that same day. The court found in favor of Washington and found that the repeat cervical MRI, cervical surgery and epidural steroid injections were reasonable and medically necessary and found Washington is entitled to have them performed. The court further found that Washington is entitled to receive temporary total disability benefits at the rate |r,of $454.00 per week beginning May 31, 2007 to the present and continuing until a change in circumstances. The court also found Washington is entitled to reimbursement of out-of-pocket medical expenses paid to CVS Pharmacy, all past medical expenses, and any other reasonable or medically necessary medical treatment related to his injury.

Additionally, the court found Washington is entitled to attorney’s fees and penalties for a variety of reasons. The court awarded penalties of $2,000.00 for defendant’s termination of temporary total disability benefits. Defendant is also ordered to pay penalties of $350.00 for the late payment of indemnity benefits from January 12, 2007 until January 18, 2007, penalties of $2,000.00 for the non-reimbursement of out-of-pocket pharmacy expenses to CVS, penalties of $1,000.00 for not approving the repeat cervical MRI, $750.00 in penalties for defendant’s failure to pay his mileage timely, and $8,000.00 in attorneys’ fees. Defendant filed a motion for new trial which was denied April 21, 2010.

Defendant filed this appeal asserting nine assignments of error. In the first three assignments of error, The Shaw Group asserts that the trial court erred in finding the cervical surgery, the repeat cervical MRI, and the epidural steroid injections are reasonable and medically necessary as a result of the accident. Next, The Shaw Group argues that the trial court erred in finding Washington is entitled to temporary total disability benefits beginning May 31, 2007 to present and continuing until there is a change in circumstances. The Shaw Group also argues the trial court erred in finding it is liable to reimburse Washington for out-of-pocket payments to CVS pharmacy on April 28, 2007. In assignments of error numbers six through nine, The Shaw Group argues Washington is not entitled to penalties and attorney’s fees for the termination of total temporary disability benefits, for failure to authorize the repeat cervical MRI, for failure to pay the outjof-pocket7 prescription costs to the pharmacy, is not entitled to attorney’s fees of $8,000.00.

For the reasons which follow, we affirm the workers’ compensation court’s judgment.

DISCUSSION

The determination of whether an employee is entitled to workers’ compensation benefits is based on the facts and circumstances of each case, taking into consideration that the laws governing workers’ compensation must be construed liberally in favor of the employee. Alfortish v. Roughneck Construction, LLC, 09-870 (La.App. 5 Cir. 5/11/10), 40 So.3d 1004. An appellate court cannot set aside the factual findings of the workers’ compensation judge unless those findings are clearly wrong, and the judge has committed manifest error. Id. Under the manifest error/clearly wrong standard, the appellate court may not merely decide if it would have found the facts of the case differently. Id. Rather, the appellate court must determine whether the trial court’s findings are reasonable, even if the appellate court feels that its own evaluation of the evidence is more reasonable. Id.

The Shaw Group first argues that the trial court incorrectly found that Dr. Culicchia did not have Dr. Pham’s records and reports when performing the independent medical examination. The trial court found that Dr. Culicchia had not reviewed Dr. Pham’s records and thus, his opinion was flawed. The trial court used this information to determine whether or not to grant penalties and attorney’s fees for defendant’s termination of temporary total disability payments, as well as their denial of the claims for a repeat MRI and surgery.

Dr. Culicchia did state in his initial report dated September 13, 2006, that he did not have the cervical MRI or lumbar MRI films to review, but he based his | ^conclusion on the available data and would review the missing MRI studies and render a further opinion. The attorneys for each party exchanged correspondence regarding providing Dr. Culicchia with the missing MRI films and obtaining a supplemental report.

We find the trial court correctly found that Dr. Culicchia did not have a complete record from Dr. Pham when he rendered an independent medical report and, thus his opinion was flawed. The trial court correctly concluded that his report was flawed when determining penalties and attorney’s fees for the defendant’s failure to pay medical and indemnity benefits. The appropriateness of the penalties and attorney’s fees assessed by the trial court is discussed below.

Cervical Surgery

Defendant also asserts on appeal that the workers’ compensation court erred in holding that the cervical surgery for Washington is reasonable and medically necessary as a result of the accident. Defendant argues the first cervical MRI, the cervical myelogram and CT scans showed surgery was not warranted. Further, defendant argues the objective findings on exam and medical testimony presented at trial show the surgery was not warranted. Defendant relies on Dr. Cu-licchia’s findings and opinion and disregards the opinions of the other treating physicians.

Dr. Pham, Washington’s treating physician, found Washington suffered a cervical disc herniation that did not improve over time with pain medication, therefore, he recommended surgical intervention and referred Washington to Dr. Mitchell. Dr. Mitchell, Washington’s choice of neurosurgeon, concurred and recommended cervical surgery. As discussed above, Dr. Culicc-hia did not have a complete record to review when he determined surgery was not warranted. Washington treated conservatively with Dr. Pham and Dr. Mitchell from January | fl2006 with no successful resolution of his pain. Both Dr. Pham and Dr. Mitchell recommended cervical surgery for his injury.

For those reasons, we find the trial court was not manifestly erroneous in its determination that the cervical surgery was reasonable and medically necessary.

Repeat Cervical MRI

Defendant also argues the trial court erred in finding the repeat cervical MRI was reasonable and medically necessary as a result of the accident. Dr. Pham recommended the repeat cervical MRI because more than one year had passed since a cervical MRI had been performed and Washington’s symptoms were worse. Considering that Washington’s symptoms had not improved in over one year of conservative treatment and surgery was recommended, the MRI was necessary for an updated, thorough evaluation. Thus, we find the trial court was not manifestly erroneous in its determination that a repeat cervical MRI was reasonable and medically necessary.

Epidural Steroid Injections

Next, defendant contends the trial court erred in finding the epidural steroid injections were reasonable and medically necessary as a result of the accident. Dr. Pham began recommending epidural steroid injections in January 2006 to reduce Washington’s pain following the cervical MRI which showed a cervical disc herniation. Washington refused the epidural steroid injections at first due to a fear of needles. Dr. Pham continued to recommend the injections because Washington continued to complain of pain. Dr. Mitchell also recommended epidural steroid injections in May 2006 and August 2006.

Both treating physicians have continuously recommended the epidural steroid injections during their treatment of Washington. Therefore, we find the |intrial court was not manifestly erroneous in its determination that the epidural steroid injections are reasonable and medically necessary.

Temporary Total Disability Benefits

Defendant argues the trial court erred in holding Washington is entitled to temporary total disability benefits of $454.00 per week beginning May 31, 2007 to present, and continuing until a change in circumstances is presented to the court. Until Dr. Culicchia’s report was furnished to the defendants, Washington was receiving these benefits. Defendant based the termination of these benefits solely on the opinion of Dr. Culicchia, the independent medical examiner.

LSA-R.S. 23:1221 governs the payment of temporary total disability benefits and provides, in part:

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(1) Temporary total.
(c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
(d) An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.

|nIn order to receive TTD benefits, the claimant must prove by clear and convincing evidence that he is unable to engage in any employment. Id.; Sarrio v. Stalling Construction Co., 04-34 (La.App. 5 Cir. 5/26/04), 876 So.2d 157.

Both Dr. Pham and Dr. Mitchell, Washington’s treating physicians, have indicated Washington is unable to return to work due to his work related injury. Dr. Culicc-hia indicated in his supplemental report that Washington may return to work. However, as discussed above, the trial court correctly found Dr. Culicchia’s opinion was flawed. Thus, based on the reports and opinions of Washington’s treating physicians, we find he is unable to return to work and is, therefore, entitled to temporary total disability benefit payments from May 81, 2007, continuing until a change in circumstances.

Reimbursement of Out-Of-Pocket Prescription Expenses

Defendant also argues on appeal that the trial court erred in holding The Shaw Group liable for reimbursement of the out-of-pocket prescription expenses to Washington. Defendant argues FARA paid this claim directly to CVS. FARA did pay CVS for prescriptions over the course of treatment. However, Washington did pay out-of-pocket expenses for three prescriptions. We find Washington is entitled to reimbursement for those amounts he paid for the prescriptions related to the treatment of his work related injury. Therefore, the trial court was not manifestly erroneous in awarding Washington reimbursement for these out-of-pocket prescription expenses.

Penalties and Attorney’s Fees

Defendant contends the trial court erred in awarding penalties and attorney’s fees for its failure to pay for out-of-pocket prescription expenses, failure to approve and pay for a repeat cervical MRI, and for termination of temporary total disability benefits.

11gLSA-R.S. 23:1201 provides the following:

F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dol-
I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.
J. Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section, and an award of such single attorney fee shall be res judicata as to any and all conduct for which penalties may be imposed under this Section which precedes the date of the hearing.

The purpose of imposition of penalties and attorney’s fees is to discourage indifference and undesirable conduct by employers and insurers. Redler v. Giorlando’s Restaurant Corporation, 07-658 (La.App. 5 Cir. 2/6/08), 979 So.2d 512. Awards of penalties and attorney’s fees in worker’s compensation cases are essentially penal in nature. Id. The crucial inquiry in determining whether to impose penalties and attorney’s fees on an employer is whether the employer had an articulate and objective reason to deny benefits at the time it took action. Id. The determination of whether an employer or insurer should be cast with penalties and attorney’s fees in a workers’ compensation action is essentially a question of 11sfact subject to the manifest error or clearly wrong standard of review. Id. The fact that an employer is subjectively motivated to avoid paying compensation is not determinative. Id. Neither is the fact that an employer loses a disputed claim. Id. The crucial inquiry is whether the employer had an articulable and objective reason for denying or discontinuing benefits at the time it took that action. Id. Whether the employer’s act is arbitrary, capricious or without probable cause depends upon the facts existing and known to the employer at the time its decision as to benefits was made. Id.

Penalties for Failure To Pay Out-of-Pocket Prescription Expenses

Defendant argues the trial court erred in holding Washington is entitled to $2,000.00 in penalties for the failure to pay out-of-pocket prescription expenses. Defendant simply contends FARA paid the CVS charges in full. FARA did pay CVS for prescription charges, however, there were also prescription amounts paid out-of-pocket by Washington. On May 1, 2007, defense counsel sent correspondence to Washington’s counsel concerning these prescription expenses that had been submitted for payment on April 23, 2007. Additional information was requested, which was received from the pharmacy, but no payments were ever made by defendant to Washington.

Thus, we find the trial court was not manifestly erroneous in finding Washington was entitled to penalties of $2,000.00 for defendant’s failure to reimburse Washington for these out-of-pocket prescription expenses.

Penalties for Failure to Approve a Repeat Cervical MRI

Defendant argues the trial court erred in awarding $1,000.00 in penalties for failure to approve and pay for a repeat cervical MRI. As discussed above, both Dr. Pham and Dr. Mitchell recommended a repeat cervical MRI and surgery. Defendant’s only basis for denial of the repeat cervical MRI was Dr. Culicchia’s 114findings, which the trial court found to be flawed and we agree. The repeat cervical MRI is necessary to evaluate Washington’s current condition and we have determined it to be reasonable and medically necessary and defendant had no legitimate basis or reason for denial of this procedure. Therefore, we find the trial court was not manifestly erroneous in awarding penalties of $1,000.00 in penalties for defendant’s failure to approve and pay for a repeat cervical MRI.

Penalties for Termination of Total Temporary Disability Benefits

Attorney’s Fees

Defendant argues the trial court erred in holding that Washington is entitled to penalties and attorney’s fees of $2,000.00 for the termination of temporary total disability benefits. As discussed above, defendant terminated these benefits upon receipt of Dr. Culicchia’s supplemental report that indicated Washington was able to return to work. Defendant did not take into account the opinions of Washington’s treating physicians. Since we have agreed with the trial court that Dr. Culicc-hia’s report and opinion was flawed, we must also find that defendant’s reliance on his report for termination of benefits warrants penalties. Therefore, we find the trial court was not manifestly erroneous in awarding penalties of $2,000.00 for defendant’s termination of total temporary disability benefits.

Attorney’s Fees

Finally, defendants argue the trial court erred in awarding attorney’s fees of $8,000.00 to Washington for its termination of total temporary disability benefits, failure to approve the repeat cervical MRI, and failure to approve the epidural steroid injections.

In accordance with LSA-R.S. 23:1201, the trial court may award a reasonable attorney’s fee for the prosecution and collection of such claims. Dr. Pham originally recommended epidural steroid injections and surgery in March 1152006. Dr. Mitchell recommended surgery in May 2006. Both procedures were denied by defendant. This workers’ compensation litigation has been extensive and lengthy and warrants such an attorney’s fee award. Therefore, we find the trial court was not manifestly erroneous in its award of $8,000.00 for attorney’s fees to Washington.

In accordance with the above reasons, we affirm the workers’ compensation court’s judgment in this matter.

AFFIRMED.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Nathan PETTUS.
    No. 10-KA-215.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA for Plaintiff/App ellee.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, LA, for Defendant/Appellant.
    Panel composed of SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON, Judges.
   MARC E. JOHNSON, Judge.

| ^Defendant, Nathan Pettus, appeals the sufficiency of evidence and the granting of the State’s 404(B) Motion relating to his conviction for theft of goods valued over $300.00 but less than $500.00, in violation of LSA-R.S. 14:67.10, in the 24th Judicial District Court, Division “L”. This is a companion case to State v. Pettus, 10-777 (La.App. 5 Cir. 5/24/11); 68 So.3d 28. For the following reasons, we affirm the conviction.

STATEMENT OF THE CASE

On February 5, 2009, the Jefferson Parish District Attorney filed a bill of information charging Defendant with theft of goods valued at over $300.00, a violation of LSA-R.S. 14:67.10. He pleaded not guilty at the arraignment. On June 23, 2009, a trial in this matter was held. At the conclusion of the trial, Defendant was found guilty as charged by a jury. On August 17, 2009, Defendant filed a motion for new trial, which was denied by the trial court that same day. |sAfter Defendant waived delays, the trial court sentenced him to a term of imprisonment of two years at hard labor, with credit for time served.

On August 17, 2009, the State filed a habitual offender bill of information alleging Defendant to be a fourth felony offender. The trial court later found Defendant to be a fourth felony offender, vacated the sentence on the theft of goods charge, and re-sentenced Defendant to a term of imprisonment of life.

FACTS

Deputy Kevin Gorman of the Jefferson Parish Sheriffs Office testified that, on January 15, 2009, he had the occasion to come into contact with Defendant at the Dillard’s Department Store in the Lakeside Mall in Metairie, Louisiana, while working a security detail. Deputy Gorman stated his responsibilities included responding to theft and shoplifting complaints and apprehending shoplifters. He testified that he was in his police uniform that day. While patrolling the floor of the Dillard’s on January 15, 2009, Mr. Pedro Barrios, a full-time loss prevention officer at Dillard’s, indicated to Deputy Gorman via two-way radio that a male subject had picked up some belts, concealed the belts beneath his jacket, and was proceeding immediately to the store exit. At that point, Mr. Barrios did not identify the subject in question as Defendant. Deputy Gorman testified that he moved to stand between the store exit doors after receiving the notice from Mr. Barrios. Deputy Gorman indicated that, when the subject in question (later identified as Defendant) was exiting the store, the subject observed him and ran back into the store. At that point, Deputy Gorman assumed Defendant was going to run through the store to the next exit.

Accordingly, Deputy Gorman ran along the outside of the building thinking he would catch Defendant at the next exit. However, Mr. Barrios then alerted Detective Gorman that Defendant was actually running toward the interior of the |4mall. Detective Gorman entered the interior of the mall and located the defendant near the Cafe du Monde. As Deputy Gorman approached the defendant and put his hands on the defendant, the defendant pushed him and ran off towards the area known as “Center Court.” Deputy Gor-man gave chase and eventually tasered Defendant after he ignored repeated commands to stop running.

Deputy Gorman testified that the events which occurred in Dillard’s on January 15, 2009 were captured on camera, but there was no video footage of the events which occurred in the mall area after the defendant ran out of Dillard’s. Deputy Gorman indicated that, according to the police report made that day, the belts Defendant were observed concealing under his jacket were recovered, and that their combined value was $307. Deputy Gorman recalled that he checked the price tags of the belts to confirm the prices.

On cross-examination, Deputy Gorman indicated that on January 15, 2009, he did not know that Defendant was the person who concealed the belts in his jacket until he apprehended him. Deputy Gorman also admitted that he did not see a belt on Defendant’s person prior to tasering him. Deputy Gorman was not sure whether anybody other than he or Mr. Barrios had handled the belts in question.

In recalling a previous incident while working the security detail on October 28, 2008, Deputy Gorman testified that he had the occasion to arrest Defendant and Vanessa Tabora. Deputy Gorman indicated that he was wearing a police uniform while on the detail. Deputy Gorman explained that on that date, he was in the loss prevention office with Mr. Barrios. Deputy Gorman testified that he and Mr. Barrios were looking at store security monitors when they observed Ms. Tabora carrying some Ed Hardy and Affliction brand t-shirts she had taken from store shelves. Deputy Gorman observed Ms. Tabora meet with Defendant and give him the shirts. After looking over the shirts, Defendant grabbed Ms. Tabora’s purse, | fiopened it, and placed the shirts inside. At that point, Ms. Tabora walked toward an exit, where she was detained and held by the security office. Deputy Gorman and another mall security officer subsequently located Defendant in the men’s denim department of the same store and placed him under arrest. Defendant made no attempt to flee.

Deputy Gorman testified that after being arrested, Defendant was verbally and physically abusive towards him. Ms. Ta-bora was, however, cooperative with security personnel. According to the police report Detective Gorman created that day, the value of the three shirts misappropriated by Ms. Tabora was determined to be $232.00. Deputy Gorman indicated that the events of October 28, 2008 were captured by store surveillance cameras and transferred to a compact disc.

Mr. Barrios testified that he is a loss prevention officer at the Lakeside Mall Dillards. Mr. Barrios, additionally, testified that his duties as a loss prevention officer include monitoring surveillance cameras in Dillard’s for people stealing, people changing prices, employees coming in late, and certain other employee activities.

Mr. Barrios also testified that he participated in an investigation that led to the arrest of Defendant on January 15, 2009. On that date, Mr. Barrios was working in the loss prevention office. His attention was drawn to Defendant, because Defendant was wearing a jacket with only one arm in a sleeve. Mr. Barrios confirmed that he radioed Deputy Gorman and told him that he was watching a white male in Men’s Denim. Mr. Barrios then observed the defendant pick up several belts, conceal the belts in his jacket, and head for the store’s exit.

Mr. Barrios additionally confirmed through his testimony that he radioed Deputy Gorman and informed Deputy Gor-man that Defendant was heading toward an exit that was approximately five feet from the belt display rack. Mr. Barrios |fitestified that when Defendant reached the door, he observed Deputy Gorman next to the door, appeared to wave at the Deputy, ran back towards the store, and went out into the mall. Mr. Barrios testified that he did not confront Defendant initially, but after Deputy Gorman had ta-sered Defendant, Mr. Barrios was able to recover three Ed Hardy belts from where Defendant had run to exit the store. When questioned about the prices of the belts, Mr. Barrios testified that two of the belts were priced at $99.00; however, he stated three different prices for the third belt. Eventually, Mr. Barrios concluded that two of the Ed Hardy belts were priced at $99.00, and the third was priced at $109.00. On cross-examination, Mr. Barrios admitted that he did not create a report of this incident. He further admitted that on the surveillance tape, he could not see how many belts the defendant had taken.

In recalling the incident on October 28, 2008, Mr. Barrios testified that he participated in an investigation that led to the arrest of Defendant. The items being shoplifted on that date were Ed Hardy and Affliction brand shirts, and those items were displayed in the Men’s Denim section of Dillard’s located on the first floor.

ASSIGNMENTS OF ERROR

On appeal, Defendant alleges the trial court erred in granting the State’s 404(B) Motion, and the State failed to present sufficient evidence to uphold the conviction of theft of goods valued over $300.00 but less than $500.00.

LAW AND ANALYSIS

When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, a reviewing court must first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). Accordingly, this Court will discuss Defendant’s second assignment of error first.

| t Assignment of Error # 2

In his second assignment of error, Defendant contends that the State did not produce sufficient evidence to support his conviction for theft of goods. Defendant makes two separate arguments in support of his contention that the evidence used to convict him was insufficient: (1) that he did not exit the store with the merchandise, and thus was at most only guilty of an attempted theft of goods, and (2) that the loss prevention officer who retrieved the merchandise inside the store testified to three different amounts as to the aggregate value of the belts.

The constitutional standard for testing the sufficiency of evidence requires that the evidence, direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, be sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt, in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Under LSA-R.S. 15:438, “[t]he rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This requirement does not establish a standard separate from the Jackson standard, but provides a helpful methodology for determining the existence of reasonable doubt. State v. Arceneaux, 05-338, p. 6 (La.App. 5 Cir. 12/27/05); 930 So.2d 44, 48. In assessing other possible hypotheses in circumstantial evidence cases, the appellate court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Id., citing State v. Davis, 92-1623 (La.5/23/94); 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994). Instead, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the |8possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under the Jackson standard. Id. at p. 7, 930 So.2d 44.

Abandonment of the Items

Defendant contends that while he did initially, partially conceal the belts under his jacket, he did not attempt to take them with him when he exited into the mall, and instead, left them in Dillard’s. Defendant further contends the most he was guilty of was an attempted theft of goods because the State failed to prove the required element that he took something from the store.

The State avers there is no merit to Defendant’s claim that he was not guilty of theft because he abandoned the merchandise in Dillard’s as he fled into the mall after his theft was detected. The State contends that the theft was completed when Defendant took the belts and concealed them under his jacket, which established his misappropriation of the items and intent to deprive the merchant of them permanently. We agree with the State’s position.

LSA-R.S. 14:67.10 provides, in pertinent part, that

A. Theft of goods is the misappropriation or taking of anything of value which is held for sale by a merchant, either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representation. An intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking is essential and may be inferred when a person:
(1) Intentionally conceals, on his person or otherwise, goods held for sale.

Specific criminal intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent is a state of mind, and as such, need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. State v. Davenport, 08-463, p. 7 (La.App. 5 Cir. 11/25/08); 2 So.3d 445, 449; State v. Green, 02-883, p. 5 (La.App. 5 Cir. 1/28/03); 839 So.2d 286, 287. The question of whether the requisite intent is present in a criminal case is one for the trier of fact, and a review of the correctness of that determination is guided by the Jackson standard. State v. Tran, 97-640, p. 11 (La.App. 5 Cir. 3/11/98); 709 So.2d 311, 317.

In this matter, the jury convicted Defendant of theft of goods over $300.00 but less than $500.00. In the jury instructions given to the members of the jury, they were instructed that Defendant was presumed to be innocent until each element of the crime necessary to constitute his guilt was proven beyond a reasonable doubt. As the triers of fact, the jury concluded Defendant was guilty and convicted him of the crime charged. The conviction infers the jury found Defendant did have the specific intent to permanently deprive Dillard’s of its belts, despite the fact that he abandoned them in the store.

From the surveillance video and the testimony presented, it was confirmed that Defendant took the belts, concealed the belts under his jacket, and proceeded immediately toward the store’s exit. After Defendant observed Deputy Gorman move to stand between the exit doors, Deputy Gorman noticed Defendant run back into the store. Although Defendant ultimately discarded the belts before he exited the store, it was not necessary that he physically possessed the goods he stole on his person at the time of arrest. From the circumstances and Defendant’s actions, it could be inferred that he intended to permanently deprive Dillard’s of its merchandise before he realized that he had been detected by Deputy Gorman.

After reviewing the totality of the evidence, both direct and circumstantial, we conclude the evidence was sufficient for the jury to find Defendant had the intent to permanently deprive Dillard’s of its merchandise.

| wValue of Goods

Defendant argues there is a question as to when the price tags were put on the belts, before or after the incident, and that creates reasonable doubt as to the value element of LSA-R.S. 14:67.10 being met. Defendant avers Mr. Barrios testified to three different combined amounts of the belts as the State prodded him to ensure the aggregate value met the $300.00 felony threshold. Defendant further avers Mr. Barrios, the individual who retrieved the belts, should have been able to give the correct prices the first time, without changing his testimony twice to give the desired answer of the State.

The State contends there is absolutely no basis in the record for suggesting that the tags on the belts were retroactively altered in any respect to increase the value of the merchandise taken. The State further contends that while Mr. Barrios had trouble recalling the exact price of the third belt until he reviewed a photograph of all of the belts and the price tags, at no time did he testify that the total value of the belts was less than $300.00. We again agree with the State’s position.

There is no evidence or testimony of price tag tampering in the record. As to the value of the items, Mr. Barrios’ somewhat confused testimony does not create reasonable doubt that the value of the belts combined was less than $800.00. The picture taken that day clearly indicates that the sale price of two of the belts was $99.00 each, and that the sale price of the third belt was $109.00, which equals at total of $307.00. Even if Mr. Barrios was correct in his original assertion that the value of the third belt was $103.00, the combined value of the belts would have been $301.00. The evidence submitted by the State was sufficient to prove an element of the offense charged, namely, that the value of the three belts was between $300.00 and $500.00. Ultimately, we conclude the evidence was Insufficient to prove the aggregate total of the belts taken by Defendant amounted over $300.00.

Given the foregoing reasons, this assignment of error has no merit.

Assignment of Error # 1

In his first assignment of error, Defendant argues the trial court erred in allowing the State to present evidence that the same two officers arrested him two months prior to this incident for being a principal to shoplifting in the same store and department. Defendant states the State argued that the prior theft was relevant to show his motive or intent to steal merchandise from the Men’s Denim department at Dillard’s. However, Defendant argues the State failed to adequately prove his intent to steal in the first incident, and the trial court failed to weigh the probative value of the admission of the alleged prior crime against its prejudicial effect.

The State contends Defendant’s intent to permanently deprive Dillard’s of the belts was at issue and could be inferred by his intentional concealment on his person of goods held for sale. The State avers the prior incident involving the concealment of the shirts inside of Vanessa Tabo-ra’s purse is relevant to his intentional concealment of the belts, his intent to permanently deprive the department store of the merchandise, and the lack of mistake or accident. In the alternative, the State argues that if this Court finds error in admitting the evidence, such error would be harmless in light of the overwhelming evidence of Defendant’s guilt.

LSA-C.E. art. 404(B) provides the basic rule regarding the use of evidence of “other crimes, wrongs or acts” at trial. LSA-C.E. art. 404(B) states, in pertinent part,

|12(1) Except as provided in Article 412 [regarding a victim’s past sexual behavior in sexual assault cases], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.

In State v. Code, 627 So.2d 1373, 1381 (La.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490, rehearing denied, 512 U.S. 1248, 114 S.Ct. 2775, 129 L.Ed.2d 887 (1994), the Louisiana Supreme Court set forth the following factors which must be met for other crimes evidence to be admissible under the system or modus operandi exception:

(1) there must be clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith; (2) the modus operandi employed by the defendant in both the charged and the uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person; (3) the other crimes evidence must be substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is man of criminal character; (4) the other crimes evidence must tend to prove a material fact genuinely at issue; and (5) the probative value of the extraneous crimes evidence must outweigh its prejudicial effect.

The State is required to prove that defendant committed the other crimes by a preponderance of the evidence. State v. Guidroz, 98-377, pp. 11-12 (La.App. 5 Cir. 10/14/98); 721 So.2d 480, 486, writ denied, 98-2874 (La.2/26/99); 738 So.2d 1061.

In the instant matter, Defendant attempted to steal from the same Dillard’s store on both October 28, 2008 and January 15, 2009. He entered the same store and department on those dates empty handed and attempted to conceal Ed Hardy brand merchandise on his person or in Vanessa Tabora’s purse. We find that the State proved by a preponderance of the evidence that Defendant committed a theft on October 28, 2008, and the probative value of the testimony regarding the October 28, 2008 incident outweighs any prejudicial effect to Defendant because | 13of the similarities between the crimes. Accordingly, we find that this assignment of error has no merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). The review reveals no errors patent in this case.

DECREE

Based upon the foregoing reasons, Defendant’s conviction is affirmed.

AFFIRMED


text:
    STATE of Louisiana v. Nathan PETTUS.
    No. 10-KA-777.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.
    See also, 68 So.3d 21.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, LA, for Defendant/Appellant.
    Panel composed of SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON, Judges.
   MARC E. JOHNSON, Judge.

| ^Defendant, Nathan Pettus, appeals his life imprisonment sentence without the benefit of probation or suspension of sentence imposed as his habitual offender sentence from the 24th Judicial District Court, Division “L”. For the following reasons, we affirm the habitual offender adjudication and remand the matter to the trial court for clarification of the sentence.

The facts of this case are more fully set forth in this Court’s opinion in the companion case, also rendered on this date, State v. Pettus, 10-215 (La.App. 5 Cir. 5/24/11); 68 So.3d 21, where Defendant challenged the validity of his conviction.

In his sole assignment of error, Defendant alleges the trial court erred in imposing an excessive life sentence. Defendant contends that a life sentence is completely disproportionate for a theft conviction for items with a combined total of $807.00, even for a fourth felony offender, and should shock anyone’s sense of justice. While Defendant admits he has a prior criminal history, he further |scontends that a life sentence makes no measurable contribution to acceptable goals of punishment.

Defendant did not file a motion to reconsider sentence, nor did he state specific grounds upon which the motion would have been based. He is, therefore, limited to a bare review of the sentence for constitutional excessiveness. State v. Hills, 03-716, p. 12 (La.App. 5 Cir. 12/9/03); 866 So.2d 278, 286, writ denied, 04-1322 (La.4/22/05); 899 So.2d 569; State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02); 822 So.2d 812, 814.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Crawford, 05-494, p. 6 (La.App. 5 Cir. 1/31/06); 922 So.2d 666, 669. A sentence that is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering is unconstitutionally excessive, even if it is within the statutory limits. State v. Riche, 608 So.2d 639, 640 (La.App. 5th Cir.1992), writ denied, 613 So.2d 972 (La.1993). Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. State v. Woods, 09-399, p. 26 (La.App. 5 Cir. 3/9/10); 38 So.3d 391, 411, writ denied, 10-0784 (La.10/29/10); 48 So.3d 1096.

A trial court should consider the defendant’s personal history such as age, family ties, marital status, health, employment record, as well as his prior criminal record, seriousness of offense and the likelihood of rehabilitation in determining an appropriate sentence. Crawford, 922 So.2d at 669. A trial court is afforded great discretion in determining sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. Riche, 608 So.2d at 640.

|4In reviewing a sentence for ex-cessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. Crawford, 922 So.2d at 669. The three factors that are considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts. Id. at 8; 922 So.2d at 670. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id. at 8; 922 So.2d at 670-71. An “appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.” LSA-C.Cr.P. art. 881.4(D).

In the instant matter, Defendant was adjudicated a fourth felony offender. As a fourth felony offender, Defendant faced the following penalty as provided by LSA-R.S. 15:529.1(A)(4):

(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life. (Emphasis added).

Defendant was originally convicted of theft of goods over $800.00 but less than $500.00, which, at the time of conviction and sentencing, was punishable by a maximum of two years imprisonment. LSA-R.S. 14:67.10(B)(2). However, based on the sentencing provisions in LSA-R.S. 15:529.1(A)(4), Defendant faced an enhanced sentencing exposure of 20 years imprisonment to life imprisonment.

| ¡¿Defendant was adjudicated a fourth felony offender based upon three prior convictions: (1) possession of cocaine in 24th Judicial District Court case number 98-9036; (2) obstruction of justice in 24th Judicial District Court case number 99-678; and (3) a conviction for bank robbery out of the United States District Court for the Southern District of Mississippi. In addition, Defendant pleaded guilty to possession of cocaine in St. Bernard Parish in 2000 and currently has pending charges in St. Tammany Parish and in the state of Georgia for bank robbery. Further, with respect to the obstruction of justice conviction, Defendant testified during the habitual offender hearing that the conviction stemmed from his arrest on a second degree murder charge.

In imposing the life imprisonment at hard labor sentence, the trial court considered the facts of the instant offense and Defendant’s lengthy criminal record. The trial court noted that Defendant told the victim, “Don’t make me get violent,” and that Defendant grabbed the victim and threw her to the ground. The trial court concluded that Defendant would continue to commit crimes during any period of not being incarcerated. The trial court further noted that Defendant had committed violent crimes in the past and indicated his opinion that any lesser sentence would deprecate the seriousness of the offense. Based on the record, and considering the facts of the instant offense combined with the defendant’s criminal history, we find that the sentence is not shocking or grossly disproportionate to Defendant’s behavior and is not constitutionally excessive.

Accordingly, we do not find the trial court abused its discretion in sentencing Defendant to life imprisonment at hard as the habitual offender sentence.

| c,ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990).

There is an inconsistency between the transcript and the commitment. Although the commitment indicates Defendant was sentenced to life imprisonment at hard labor, in the transcript, the trial judge failed to state that the sentence was to be served at “hard labor.” If a discrepancy exists between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). LSA-C.Cr.P. art. 879 requires a court to impose a determinate sentence. If there were some discretion allowed by the applicable sentencing statute, the failure to indicate whether the sentence was to be served at “hard labor” would be an impermissible indeterminate sentence.

Previously, there was no explicit requirement that offenders sentenced under the provisions of the Habitual Offender Law be necessarily sentenced to a term of imprisonment at hard labor, even as a fourth felony offender. That is no longer the case; Acts 2010, No. 69, § 1 made the following change to LSA-R.S. 15:529.1(G):

Any sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence. (Emphasis added).

The change became effective June 10, 2010, which was months after the defendant was adjudicated and sentenced as a fourth felony offender.

In State v. Magee, 05-171 (La-App. 5 Cir. 10/6/05); 916 So.2d 1178, writs denied, 06-0461 (La.9/22/06); 937 So.2d 377, 06-0464 (La.9/22/06); 937 So.2d 377, the defendant was found to be a fourth felony offender. After vacating the defendant’s originally imposed sentence, the trial court re-sentenced the defendant to imprisonment for life without benefit of probation, parole or suspension of [ 7sentence. Id. at 1181. However, the trial court failed to indicate that the sentence was to be served at hard labor. Id. at 1186. We noted that the sentence was indeterminate and remanded the matter for the trial judge to clarify the sentence on resentencing.

Accordingly, we remand this matter to allow the trial court to clarify Defendant’s habitual offender sentence.

DECREE

For the foregoing reasons, the habitual offender adjudication is affirmed, and the matter is remanded to the trial court for a clarification of the sentence.

ADJUDICATION AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS

      . LSA-R.S. 14:67.10(B)(2) was amended by La. Acts 585 § 1. The change became effective in June of 2010, after Defendant’s conviction and sentence.