author: EZELL, Judge.

text:
    STATE of Louisiana v. Eric Joseph SMITH.
    No. KA 10-830.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 2011.

      James C. Downs, District Attorney-Ninth Judicial District Court, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    G. Paul Marx, Lafayette, LA, for Defen-danVAppellant, Eric Joseph Smith.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

hThe Defendant, Eric Joseph Smith, was charged in an indictment filed on April 23, 2009, with first degree murder, in violation of La.R.S. 14:30; attempted first degree murder, in violation of La.R.S. 14:30 and 14:27; and possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1. The Defendant entered a plea of not guilty on May 8, 2009.

Jury selection commenced on January 12, 2010, and the jury found the Defendant guilty as charged on January 15, 2010. The Defendant was sentenced on January 25, 2010, to serve life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence for first degree murder; to fifty years at hard labor, without benefit of probation, parole, or suspension of sentence for attempted first degree murder; and to fifteen years at hard labor, without benefit of probation, parole, or suspension of sentence for possession of a firearm by a convicted felon. The sentence for attempted first degree murder was ordered to run consecutively to the sentence for first degree murder, and the sentence for possession of a firearm was to run concurrently to the other two sentences.

A motion for new trial was filed on January 28, 2010, and denied on February 1, 2010. A motion for appeal was also filed on January 28, 2010, and was subsequently granted.

The Defendant now appeals and asserts three assignments of error. The Defendant contends the evidence presented is insufficient to prove beyond a reasonable doubt that he shot Kenderick Cyriak and his companion, the trial court erred in allowing shoe-print comparisons to be presented as scientific evidence in this case; and, the trial court erred when it allowed selective information on the phone records to be presented in the form of a chart or summary.

|2FACTS

The Defendant was convicted of shooting Kendrick Cyriak and shooting and killing Telisha Rainey.

ERROR PATENT

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

The trial court failed to impose a mandatory fine for the Defendant’s conviction of possession of a firearm by a convicted felon. In addition to imprisonment, La. R.S. 14:95.1 requires the imposition of a fine of not less than one thousand dollars nor more than five thousand dollars. The trial court’s failure to impose a mandatory fine renders the Defendant’s sentence illegally lenient. However, because the issue was not raised, this court will not address it.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Defendant contends the evidence presented is insufficient to prove beyond a reasonable doubt that he shot drug dealer Kenderick Cyriak and his companion the night that he bought crack cocaine from Cyriak. The Defendant contends the sole evidence submitted by the State was the statement of a witness who suffered brain damage and memory loss in the shooting and there was no corroborating evidence except that Cyriak merely recalled him because he had sold him drugs. Further, Cyriak suffered from a scrambled memory, and there was no physical evidence, motive, or other testimony connecting him to the shootings.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 807, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.

State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). “When the key issue is not whether a crime occurred, but rather, the identity of the perpetrator, the state is required to negate any reasonable probability of misidentification. State v. Hughes, 05-992 (La.11/29/06), 943 So.2d 1047.” State v. George, 09-143, p. 5 (La. App. 3 Cir. 10/7/09), 19 So.3d 614, 618.

Alex Granville was given immunity for his testimony. At the time of trial, he had pending drug charges. Additionally, he had prior convictions for simple robbery and drugs.

Granville testified that he was a drug addict and he went by the nicknames Saint, B.R., and Tank. He knew Kenderick Cyriak, whose nickname was Black. He also knew the Defendant, who was known as Jersey. Granville testified that the Defendant called him on December 26, 2008, asking for crack cocaine. Granville indicated he did not have any and told the Defendant he would call someone who could get it to him. Granville then called Cyriak, who agreed to sell drugs to the Defendant. Granville then gave the Defendant Cyriak’s cell phone number.

Granville testified that he received a phone call from the Defendant on December 26 at 12:49 a.m. He then received phone calls from the Defendant at 2:08, 2:12, 2:13, 2:14, and 2:23 a.m.

LKenderick Cyriak testified that he had previously been convicted of aggravated battery, criminal damage, and “CDS 2.” He admitted that he had been a drug dealer, and there were charges pending against him at the time of trial. Further, he had been granted immunity for his testimony.

Cyriak testified that he sold crack cocaine five to seven times a day. He had known Granville a month-and-a-half in December 2008, and sold drugs to him about twelve times during that period. On cross-examination, Cyriak indicated he had known Granville for three or four months.

Cyriak testified that he had known Teli-sha Rainey for approximately two to three months before her death. He was not romantically involved with her.

Cyriak testified that before noon on Christmas Day, he was home with his family. He went to the home of Rainey’s sister around noon. He and Rainey subsequently left and eventually went to the Red River Inn. Cyriak had a room there because he and his cousin had been living together and were on bad terms.

Cyriak testified that he and Rainey watched television for approximately an hour-and-a-half. Cyriak then took Rainey to see her family in Lafayette. The two eventually returned to Alexandria and went to Roy’s Barbeque Stand and hung out. While there, Granville called Cyriak and told Cyriak that he had a friend that needed fifty dollars worth of crack cocaine. Cyriak told Granville to give the friend his phone number.

The Defendant called Cyriak and said he needed fifty dollars worth of crack cocaine. Cyriak spoke to the Defendant two or three times. Cyriak then met the Defendant on Ninth Street. The Defendant entered the front seat of Cyriak’s car, and the transaction took place.

| sCyriak’s cell phone records indicated that he received calls from the Defendant at 2:28 and 2:37 a.m. on December 26. Cyriak then called the Defendant at 2:41 and 2:42 a.m. Cyriak agreed that he sold crack cocaine to the Defendant between 2:42 and 2:45 a.m.

The Defendant called Cyriak again at 3:39 a.m. Cyriak testified that during that call, the Defendant asked for another fifty dollars of crack cocaine, which Cyriak had. The Defendant called again at 3:51, 3:56, and 3:57 a.m.

Cyriak testified that Rainey went with him to conduct the second transaction, as she wanted to go back to Roy's afterwards. Cyriak met the Defendant on Ninth Street, and the Defendant got into the back seat behind Cyriak. Cyriak testified that there was no one else with the Defendant. The Defendant told Cyriak to drive and turn at the corner. Once around the corner, the Defendant told him to pull over, which Cyriak did. Cyriak testified that as soon as he handed the Defendant the drugs, it felt like someone punched him in the back of the neck. Cyriak then tried to put the car in drive and leave, but everything was spinning around him. At that time, Cyriak did not hear any gunshots or know he had been shot. Someone then said, “get your bitchy ass out of the car.” Cyriak was subsequently pulled out of the car and heard gunshots. Cyriak heard the tires of his car screech off, and he attempted to get up and walk. He then crawled to a house for help.

Cyriak had been shot three times. He never saw anyone approach the car. Further, he never saw Rainey get out of the car or be shot.

Cyriak agreed that the person who got into the backseat of his car was the same person that had previously gotten into the front seat of the car to buy drugs. Additionally, the voice he heard setting up the second transaction was the same voice he heard when setting up the first transaction. Cyriak identified the Defendant as the ^person who entered his car just before he was shot. He also identified the Defendant in a photographic lineup.

Cyriak testified that the first time he spoke to police, he did not tell the truth. At that time, he told police he was not a drug dealer. Cyriak testified that he told police on December 26 that Rainey was in the car with him. However, he apparently said Trisha Moses was with him. He further told police his car was black when it was charcoal gray. Ten to fourteen days after the incident, Cyriak gave a second statement to police in which he admitted he was a drug dealer.

Cyriak admitted that in his second statement to police, he said “they” were shooting and “they” were pulling him out of the car. He then testified that because he had ringing in his ear, he thought there was a second person. Additionally, he thought he heard two voices.

Cyriak testified that he experienced memory problems at times. He further testified, “I might remember and forget, but it’ll come back to me shortly.” He was asked if anything ever came back to him that was not correct, and he responded, “Sometimes.” He also admitted that his memories were “scrambled” sometimes. Cyriak was then questioned as follows:

Q. You kind of mistake things — have you ever had anything happen that you thought happened, but your memory told you differently?
A. No, sir.

Cyriak testified that he actually lost his memory for three to four months after he was shot. He then testified that he could trust his memory and agreed that what he was saying at trial was an absolute fact.

Cyriak testified that on December 26, 2008, his girlfriend was Cornetta Grimes. The room that was rented at the Red River Inn was in Grimes’ name. She was with him two days before he was shot. She then went to Oklahoma City.

|7Ashley Baggett was Cyriak’s ex-girlfriend, and the two broke up approximately a year before the incident. He had spoken to Baggett on December 26, while he was in his motel room. Baggett said she was a couple of rooms down from him and wanted to fight Rainey over him.

Sunshine Charrier testified that she was a patrol officer on December 26, 2008, but was no longer so employed. She responded to a call regarding a possible shooting and saw Cyriak sitting on a front porch. Charrier called for medical assistance. Cyriak said he thought he had been hit on the head, heard gunfire, and was then pushed out of the car. He was also concerned that the passenger was still inside the ear. Charrier testified that Cyriak was in pain and seemed a little confused.

Detective Kline Johnson went to the Red River Inn on December 26, 2008. Detective Johnson then went to Green Oak and Seventh Street, the area where Cyr-iak’s car was found. He took several photographs of the area, including one of a footprint leading away from the car.

Detective Johnson testified that on January 8, 2009, an arrest warrant was obtained for the Defendant and a search warrant issued for 730 Woodard Street. Detective Johnson assisted in the execution of the search warrant. Police found a bag of bullets and several loose bullets inside the home. At the time the Defendant was arrested, police took the pair of black New Balance 8025 tennis shoes he was wearing.

Detective Johnson testified that the footprint found by Cyriak’s car was consistent with the ridge detail and defects found on the Defendant’s left tennis shoe, and was of a similar size. Detective Johnson admitted that he did not perform any tests on the footprint and he did not know what type of shoe made the print. [8 However, he did examine the photograph he took of the footprint and the Defendant’s left tennis shoe. Detective Johnson did not know how many pairs of the New Balance 8025 tennis shoes were made. However, he was sure it was more than one pair. Sergeant William Bates agreed that the number of that tennis shoe made was unknown. He also agreed that the pattern on the shoe was similar to that found in the photograph. However, he could not say the Defendant’s shoe made the print.

Sergeant Bates was accepted as an expert in fingerprint identification and crime scene reconstruction. Sergeant Bates processed Cyriak’s car for fingerprints. He found seven identifiable fingerprints on the car. He lifted identifiable fingerprints from the driver’s side of the front windshield, the driver’s side door, the trunk, the inside glass of the passenger side, and the outside door of the passenger side. Sergeant Bates testified that the prints belonged to the Defendant. Sergeant Bates’s findings were confirmed by the North Louisiana Crime Lab. He had no idea when the fingerprints were left on the car.

Sergeant Bates charted phone calls that occurred between the Defendant, Cyriak, and Granville. He testified that the following calls occurred:

Parties Date Time Duration
-Defendant to Granville 12/26/08 12:49 a.m. 213 seconds
-Defendant to Granville 12/26/08 2:08 a.m. 124 seconds
-Defendant to Granville 12/26/08 2:12 a.m. 14 seconds
-Defendant to Granville 12/26/08 2:13 a.m. 62 seconds
-Defendant to Granville 12/26/08 2:14 a.m. 5 seconds
-Granville to Cyriak 12/26/08 2:18 a.m. 107 seconds
-Defendant to Granville 12/26/08 2:23 a.m. 246 seconds
-Defendant to Cyriak 12/26/08 2:28 a.m. 60 seconds
^Defendant to Cyriak 12/26/08 2:37 a.m. 35 seconds
Cyriak to Defendant 12/26/08 2:41 a.m. 26 seconds
-Defendant to Cyriak 12/26/08 2:42 a.m.
-Defendant to Cyriak 12/26/08 3:39 a.m. 102 seconds
-Defendant to Cyriak 12/26/08 3:51 a.m.
-Defendant to Cyriak 12/26/08 3:56 a.m.
-Defendant to Cyriak 12/26/08 3:57 a.m.
-911 call regarding shooting -911 call regarding Rainey 12/26/08 12/26/08 4:09 a.m. 5:00 a.m.
-Defendant to his mother 12/26/08 5:32 a.m.
-Defendant to his mother 12/26/08 5:46 a.m.

The Defendant’s mother called him back four times, with all calls between the two occurring in a little over an hour.

Corporal Mark Tigner spoke to Cyriak at the hospital the day he was shot. Cyr-iak was dizzy and complained that his head was hurting. Cyriak informed Corporal Tigner that he had given a ride to a man who had called him and was hit in the head. He further explained that after he was hit everything went dim, he was pushed out of his car, and his girlfriend, Trida Moses, was still inside the car.

Corporal Tigner put together a photographic lineup that was shown to Cyriak while he was in the hospital. The lineup included a photograph of the Defendant. Cyriak did not identify anyone in the lineup. After Cyriak was discharged from the hospital, he was shown a second photographic lineup, which contained a photograph of Granville. Cyriak did not identify anyone.

ImCorporal Tigner subsequently learned that Granville was in a work release program, which is how he came to know the Defendant. Further, Granville was a drug user and had made purchases from Cyriak. Granville informed police that the Defendant called him several times trying to find drugs. Police learned that Granville had eaten Christmas dinner at the Defendant’s residence. The next morning, the Defendant called Granville because he wanted to buy crack cocaine. Granville indicated that he did not have any but knew someone who did.

After speaking with Granville, Corporal Tigner confronted Cyriak. Cyriak was shown a photographic lineup containing the Defendant’s picture. He identified the Defendant as the person he met up with or sold drugs to. As a result, police obtained an arrest warrant for the Defendant.

Corporal Tigner testified that the Defendant had previously been convicted of simple robbery and false representation of cocaine.

Shontrice Jackson testified Defendant was the father of her child. Additionally, the two were living together in December 2008. She recalled the Defendant being at home that day. She went to bed between 5:00 and 6:00 p.m. However, she told police she went to bed at approximately 8:00 p.m. At 2:30 or 3:00 a.m., she woke up and realized the Defendant was not at home. Jackson did not go look for the Defendant at that time. Jackson testified that the Defendant was home when she woke up later that morning.

Police executed a search warrant at the residence and found a bag containing bullets. Jackson testified that the bullets had been in the house for a while. However, the .22 her father had previously given her was not in her house in December 2008, as she had returned it to him.

|nJackson reviewed the Defendant’s cell phone records. The records indicated the Defendant called her at 8:27, 8:31, 8:40, and 8:48 a.m. and 6:26 and 7:56 p.m. on December 25. Jackson called the Defendant at 4:15 a.m. on December 26.

Dr. Lawrence Drerup was accepted as an expert in neurosurgery. Dr. Drerup testified that Rainey was dead when emergency medical services arrived at the location where she was found. Rainey was brought to the hospital at 5:24 a.m. with a gunshot wound to the head. Dr. Drerup performed surgery on Rainey. However, he was unable to remove the bullet from Rainey’s brain. Rainey was pronounced dead on December 27, 2008, at 2:40 p.m.

Cyriak arrived at the hospital at 6:49 a.m. He had two gunshot wounds to the head and one to the neck. It was unlikely that Cyriak would have survived without surgical intervention. Dr. Drerup testified that the shot to the mastoid area probably dazed or knocked Cyriak out and would be consistent with Cyriak’s testimony that it felt like someone punched him. Dr. Drer-up further testified that Cyriak should have suffered confusion from any one of the gunshot wounds, which would have gotten better in one to three days. Dr. Drerup testified that Cyriak might not remember all the details of the incident, but any confusion about what he did two days before the injuries or two months after the injuries should not occur.

Dr. Collie Trant, an expert in forensic pathology, performed an autopsy on Rai-ney. Rainey suffered a single gunshot wound to the head. The bullet entered above the left ear. The manner of death was homicide.

Mike Stelly was accepted as an expert in firearms and fingerprint identification. Stelly was unable to determine if Cyriak and Rainey were shot with the same weapon. However, the bullets recovered from Cyriak and Rainey were .22 caliber. The recovered bullets and fragments all had a gold or brass colored wash on them. |12 Furthermore, seventeen of the nineteen .22 caliber bullets found at the Defendant’s residence had a gold wash.

In brief to this court, the Defendant notes that Cyriak had problems with his memory and did not see who shot him. However, he recalled the Defendant being the person in the backseat behind him before he was shot. The Defendant further notes that Cyriak said he heard two voices before he was pulled out of his car, but, at trial, claimed to have heard only one voice, which he identified as that of the Defendant.

The Defendant contends there is nothing to rule out the possibility that after the sale of drugs to him, he got out of Cyriak’s car, another customer approached the car, shot Cyriak, and drove off. The Defendant further contends that Cyriak’s physical injuries and the resulting mental confusion render his uncorroborated testimony insufficient as a matter of law.

The Defendant contends there was no relationship between the bullets found at his residence and the projectiles recovered from the victims. He further contends that testimony regarding consistent shoe patterns did not include any suggestion that his shoes were uncommon or exclude the possibility that another person with that kind of shoes was the perpetrator.

The State asserts the evidence is sufficient to support the Defendant’s convictions, as Cyriak identified the Defendant as the only person in the back seat of his ear when he was shot three times in the back of the head. Further, the cell phone records of the Defendant, Cyriak, and Granville supported the contacts and time line established by Cyriak and Granville.

The State additionally asserts the Defendant was not at home during the time of the drug deals and the homicides. Further, Cyriak’s car was abandoned within 1 ^walking distance of the Defendant’s home, and the Defendant’s fingerprints were found on the car.

The State further asserts the shoes the Defendant wore during his arrest were similar to shoes which left impressions at the place Cyriak’s car was abandoned. Additionally, ammunition similar to that found at the Defendant’s residence was recovered from the victims.

It is clear that after hearing testimony regarding Cyriak’s injuries and his memory loss, the jury chose to believe Cyriak’s testimony that the Defendant was sitting in the backseat of his car behind him when he felt like he had been punched in the neck, and, that he was dragged from the car and the Defendant drove away with Rainey in the car. We note that Dr. Dru-rep testified that being shot in the back of the head either dazed or knocked Cyriak out and that testimony was consistent with Cyriak’s testimony that it felt like someone punched him. Further, the Defendant was not inside his residence at the time of the offenses, the Defendant spoke to Cyriak by phone just prior to the offenses, the Defendant’s fingerprints were found on the Defendant’s car, shoe prints similar to those worn by the Defendant when he was arrested were found near Cyriak’s car, and .22 bullets similar to those recovered from Cyriak and Rainey were found at the Defendant’s home.

We find that the jury made a credibility determination in this matter and that determination should not be second guessed by this court. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Defendant contends the trial court erred in allowing shoe print comparisons to be presented as scientific evidence because it failed to act as gatekeeper before deciding whether the witness had the foundation 114required for providing an opinion on the matter. The Defendant also contends that Detective Kline Johnson was not qualified as an expert in shoe print identification or any other field. Thus, the trial court erred in allowing his testimony regarding the similarities between the Defendant’s shoes and the print found near the Defendant’s car. The Defendant further contends the method used by Detective Johnson was unscientific, unreliable, subjective, and had no indicia of reliability as required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,125 L.Ed.2d 469 (1993).

At trial, Detective Johnson was questioned on direct examination about a comparison of a shoe print found by Cyriak’s car and the shoes the Defendant wore at the time of his arrest. Defense counsel objected to such testimony, asserting Detective Johnson had not been qualified as an expert.

In brief to this court, the Defendant asserts that Detective Johnson’s opinions and conclusions were reached by a comparison of the shoes with a photograph of the shoe print. He contends no scientific testing was done to determine if his shoes made the print. Further, Detective Johnson admitted he did not know if the Defendant’s shoe made the print, but led the jury to believe the shoe made the print, and he did not know the exact size of the shoe.

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” La.Code Evid. art. 702.

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

11sLa.Code Evid. art. 701.

In State v. McGuire, 560 So.2d 545 (La.App. 1 Cir.), unit denied, 565 So.2d 941 (La.1990), the defendant complained the trial court erred in allowing Sheriff Lar-penter to give opinion testimony that the shoe prints found near the burglarized home matched perfectly with the shoes the defendant was wearing at the scene of the crime. The defendant asserted that Sheriff Larpenter was not qualified as an expert and that his testimony should have been excluded.

Sheriff Larpenter testified that he observed two sets of footprints. One appeared to be from a tennis shoe and the other a tennis shoe with plastic cleats. When the State attempted to show Sheriff Larpenter the shoes, defense counsel objected, asserting the State was going to attempt to have Sheriff Larpenter make an identification or a link between a print found at the scene and the shoe. Defense counsel asserted the best evidence would have been a cast of the print and not Sheriff Larpenter’s testimony about what he saw. Additionally, Sheriff Larpenter could not be qualified in an area, such as an expert in forensics, that would allow him to testify that the print he saw matched the shoe positively. The trial court overruled the objection, finding it was common knowledge.

On appeal, the first circuit noted:

The general rule that a witness can testify only as to the facts within his knowledge and may not testify as to any impressions or opinions that he may have is set forth in La. R.S. 15:463.4 However, it has been determined that, where the subject of the testimony is such that any person of experience may make a natural inference from observed facts, a lay witness may testify as to such inference provided he also states the observed facts. State v. Moten, 510 So.2d 55 (La.App. 1st Cir.), unit denied, 514 So.2d 126 (La.1987).
4. La.R.S. 15:463 states:
Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.

La.R.S. 15:463 has also been repealed by Acts 1988, No. 515, § 8.

| mId. at 550-51.

The first circuit then held that Sheriff Larpenter’s observations provided an adequate factual basis for his inference that the defendant’s tennis shoe matched the shoe prints found near the burglarized home.

Based on the ruling in McGuire, we find Detective Kline need not be qualified as an expert to give testimony comparing the shoe print found by Cyriak’s vehicle to the Defendant’s shoes. Furthermore, Sergeant Bates testified regarding a comparison of the shoe print and the Defendant’s shoes and the Defendant did not object to that testimony.

In brief to this court, the Defendant also asserts the method used by Detective Kline was unscientific, unreliable, subjective, and had no indicia of reliability as required by Daubert, 509 U.S. 579, 113 S.Ct. 2786. Defense counsel did not object on this basis at trial and may not raise this issue for the first time on appeal. La. Code Crim.P. art. 841; State v. Vidrine, 08-1059, (La.App. 3 Cir. 4/29/09), 9 So.3d 1095, writ denied, 09-1179 (La.2/26/10), 28 So.3d 268.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the Defendant contends the trial court erred when it allowed selective information on the phone records presented in the form of a chart or summary. The Defendant contends the exhibit was misleading because it left out exculpatory evidence and the manner in which it was compiled sought to suggest that some evidence was more important than other evidence. Further, it did not assist the jury, confused the issues, and was unfairly prejudicial.

_JjjSergeant Bates and Detective Tigner compiled a summary of telephone calls between the Defendant, Granville, and Cyr-iak. The summary also included two 911 calls and several calls between the Defendant and his mother that occurred after the 911 calls were made.

Defense counsel objected to State’s exhibit seventy stating the following:

I’m going to object as to the foundation and that it is not actual evidence. It’s been — it’s part of the evidence that’s already in. The phone records are already in. This is just a part that’s been manipulated to ... show whatever it is he’s trying to show, and it should be used for illustrative purposes only. It should not be allowed into evidence, because as I know it, those records that were sent from the cell phone company never had any red, blue, yellow color-coding on it.

The trial court overruled the objection.

The Defendant asserts the phone records presented by the State were nothing more than e-mailed documents from the phone company with no authentication by the phone company of those business records.

The Defendant asserts the summary of phone calls, State’s exhibit seventy, was created by Sergeant Bates and Detective Tigner, but it was not a summary. The Defendant asserts it was their interpretation of a few phone calls believed to be important and pulled from many pages of phone records. The Defendant contends this approach was misleading to the jury and deprived it of its ability to require the State to meet its burden of proof. The Defendant further asserts the summary omitted the call from Ashley Baggett because her phone number was not on the records of Cyriak, Granville, and the Defendant.

The Defendant contends that while the summary may have been permissibly used as demonstrative evidence, it was improperly admitted as substantive evidence, as it misled the jury and its prejudicial effect far outweighed its probative value. The 11RPefendant further contends the trial court erred in denying his request for a jury instruction explaining that the summary was only an exhibit.

The Defendant asserts that La.Code Evid. art. 1006 specifically addresses the admissibility of summaries. Article 1006 states:

The contents of otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

The State asserts the summary was necessary to prevent confusion. It contends that defense counsel remarked there were too many records to keep straight and he was confused by the volume of records. Furthermore, the original records were admitted to support the summary.

The State further notes that the Defendant appears to complain that his phone records were not authenticated. However, the phone records of Cyriak and Granville were admitted without objection and contained the calls made to them by the Defendant.

Defendant’s cell phone records were admitted without objection. The Defendant objected to the introduction of Granville’s cell phone records for lack of a proper foundation, stating that Granville identified some of the calls that he may or may not have made. The Defendant objected to the introduction of Cyriak’s cell phone records for lack of foundation, as they had never been identified as an official print by someone from Virgin Mobile. That objection was sustained. The Defendant subsequently renewed his objection, which was overruled. The Defendant indicated the introduction of a supplemental response to a subpoena for the Defendant’s cell phone records was repetitive. However, he did not object to its admission.

|19We note the Defendant did not object to the admission of his cell phone records or those of Granville on the basis that they were not authenticated. He did object to Cyriak’s cell phone records on that basis. However, the calls from Cyriak to the Defendant and Granville could be found on the phone records of the Defendant and Granville.

In United States v. Petty, 132 F.3d 373 (7 Cir.1997), the prosecution offered charts into evidence under Fed.R.Evid. 1006 as summary evidence. The district court declined to allow the evidence. However, it did allow the witness to testify about the charts and to use them as demonstrative aids. On appeal, the defendant argued that the witness’s testimony was improper because she merely vouched for the government’s case, usurping the role of the fact finder. The Seventh Circuit discussed the issue as follows:

Although the district court did not admit Rachow’s charts into evidence, under Rule 1006 it was within the district court’s discretion to do so. Rule 1006 provides that, “[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.” Fed.R.Evid. 1006. The charts fit squarely within the Rule. See United States v. Conley, 826 F.2d 551, 559-60 (7th Cir.1987) (Court below properly admitted summaries showing defendant’s tax liability.); Bentley, 825 F.2d at 1108 (Court below properly admitted charts summarizing defendant’s net position in silver and copper futures.). They summarized telephone records already in evidence-records which were quite unwieldy and more complex than a consumer’s monthly telephone statement. The district court noted that the charts accurately represented materials already in evidence, but for reasons unapparent to us the district court declined to accept the summaries into evidence.
The court’s decision does not trouble us, however. The court exercised its discretion under Rule 611(a) to control the “mode and order” of presenting evidence, here requiring the Government to present its evidence orally rather than in written form. The practical effect of the court’s decision is that no papers followed the jury into their deliberations. Arguably this is helpful to a defendant. Sending the Government’s paper evidence into the jury room can reinforce its harmful effect on the defendant’s case, while admitting only testimony forces the jury to recall the evidence on its own.

[ 2()Id. at 379.

In United States v. Dorta, 788 F.2d 1179 (4th Cir.1986), cert. denied, Drum v. United States, 477 U.S. 905, 106 S.Ct. 3274, 91 L.Ed.2d 564 (1986), the defendants were convicted of numerous drug-related offenses. On appeal, the defendants asserted the trial court erred in allowing two government charts into evidence that they alleged inaccurately and unfairly summarized telephone toll records. The Fourth Circuit noted the lengthy telephone records had already been introduced into evidence, and the charts summarized the calls that were relevant to the government’s case. The court, citing Fed.R.Evid. 1006, found that because the charts were accurate summarizations of evidence already before the jury, there was no error in the district court’s exercise of discretion in admitting the charts into evidence.

The summary at issue in the case at bar listed those calls relevant to the State’s case. That information could be found in phone records admitted into evidence at trial. Based on the cases cited herein, we find that State’s exhibit seventy was properly admitted at trial.

Defense counsel requested that the trial court instruct the jury that State’s exhibit seventy was merely an exhibit. Defense counsel then stated the following: “And I understand that it’s evidence because you let it in as evidence, but it’s for exhibition purposes only, because it is not exactly the same as the original cell phone records. In fact some of the wording is different from the original cell phone records.” The trial court denied the request and informed defense counsel that he could address the issue in his closing argument. Defense counsel stated he understood. The trial court then stated: “Your objection is noted for the record.”

Under La.Code Crim. Proc. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. The special charge need not be given if it is adequately covered by the 12i general charge or in another special charge to be given. State v. Segers, 355 So.2d 238, 244 (La.1978), rehearing granted on other grounds, 357 So.2d 1 (La.1978). Failure to give a requested jury instruction constitutes 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. Marse, 365 So.2d 1319, 1323 (La.1978); see also La.Code Crim. Proc. art. 921. As we noted above, the “great caution” language is necessary only when the State’s case rests on accomplice testimony alone. When the accomplice testimony is corroborated by other evidence, such language is not required. State v. Washington, 407 So.2d 1138, 1147 (La.1981); State v. Murray, 375 So.2d 80, 88 (La.1979).

State v. Tate, 01-1658, pp. 20-21 (La.5/20/03), 851 So.2d 921, 937, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004).

The Defendant has not argued that his rights were substantially violated by the omission of the proposed jury instruction or that he was prejudiced by the trial court’s failure to give the requested instruction. Thus, the Defendant’s argument that the trial court erred in omitting the proposed jury instruction is without merit. See State v. Spears, 39,302, (La.App. 2 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).

For the reasons asserted herein, this assignment of error lacks merit.

CONCLUSION

The Defendant’s convictions for first degree murder and attempted first degree murder are affirmed.

AFFIRMED.

      . Corporal Mark Tigner investigated Baggett’s call to Cyriak.

      . Telisha Rainey was actually in the car with Cyriak.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Kristin DAVIS, Plaintiff-Appellee v. FOREMOST DAIRIES, Dean Foods, and Johnny R. Richardson III, Defendants-Appellants.
    No. 45,835-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 2011.

      Thompson, Gibbons & Westholz, L.L.C., New Orleans, by Al M. Thompson, Jr., David C.L. Gibbons, Jr., for Appellants.
    Pascal F. Calogero, Jr., Hennen & Hen-nen, LLP, Monroe, by Dennis Hennen, Laura Hennen, Creed & Creed, Monroe, by Christian Creed, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   CARAWAY, J.

|,After a bench trial, the plaintiff was awarded $2,654,249.99 in this personal injury action for damages for a whiplash-like injury she sustained to her cervical spine when a dairy truck struck the front passenger side of her vehicle. The dairy appeals urging that plaintiff did not relate the cause of her condition to the motor vehicle accident, prove that she was disabled, or show the necessity for certain future medical procedures which accounted for the largest amount of the damage award. For the following reasons, we affirm, amend and reverse in part the judgment of the trial court.

Facts

On the morning of April 11, 2005, the 24-year-old plaintiff, Kristin Davis, was traveling to an elementary school for her first day of professional block student teaching. Davis’s car was struck by a Foremost Dairy truck which ran a stop sign and struck the front passenger side of her Dodge Stratus. Davis’s vehicle sustained damage to the right front window, right mirror and two front tires. Some time after the impact, Da-vis realized that she “was having a headache” and “pain in [her] neck and shoulders.” After she went home to get cleaned up, Davis’s parents took her to the emergency room at Glen-wood Regional Medical Center in West Monroe, where she reported a headache and pain in her upper back and between her shoulder blades. At the time, Davis was diagnosed with neck strain by Dr. Edward Calvert and given a work excuse through April 18, 2005. She was prescribed pain medication.

Lin the four years between the accident and the time of trial in May of 2009, Davis sought the medical advice of numerous physicians and other medical personnel and made a large number of emergency room visits for complaints of pain. A detailed, chronological synopsis of her medical history is contained in the unpublished addendum to this opinion.

In 2005, she saw chiropractor Greg Mayfield and family physicians Drs. David Hebert, Doyle Hamilton and Warren Daniel, for pain in her upper and lower back and headaches. Both Drs. Hebert and Hamilton expressed concern over Davis’s prescription drug use. Davis also returned to the Glenwood emergency room two weeks after the accident with complaints of head and neck pain and made two visits to the St. Francis Medical Center emergency room in November and December of 2005, after falling down eight stairs and a fainting episode. In 2006, Davis reported to the St. Francis Medical Center emergency room eight times with complaints of neck and back pain.

Davis began seeing Dr. Doug Brown, an orthopedist, in January of 2006. Dr. Brown diagnosed Davis with a bulging disc at C6-7 after an MRI in January of 2006 and a myelogram and CT scan in June of 2006 which revealed the condition. During 2006, Davis also consistently saw Dr. Doyle Hamilton seeking pain medication for neck and back pain. Dr. Hamilton ultimately discontinued Davis as a patient in October of 2006 due to his concerns over her prescription drug use. Davis began physical therapy in February of 2006 but stopped by May of 2006.

Rln January of 2007, Davis reported to Dr. Brown that a school child had grabbed her by the neck, causing the onset of pain in the left arm and fingers. A second MRI was performed in January of 2007 and showed a progression of the degenera-five disc disease. Davis also continually saw Dr. Warren Daniel during 2007, and reported to the St. Francis emergency room two times with complaints of neck, arm and back pain. In March of 2007, she also saw neurosurgeon, Dr. Bernie McHugh, who referred her to pain specialist Dr. Vincent Forte. Davis began seeing Dr. Forte in April of 2007.

After undergoing various procedures, Dr. Forte ultimately diagnosed Davis with C6-7 nerve impingement and facet joint problems. The facet joints are joints located in the posterior part of the neck that frequently cause pain. According to the physicians, it was literally through the process of elimination, by diagnostic procedures, that both of these diagnoses were made.

Accordingly, during 2007, Davis received three steroid injections at C6-7, underwent a medial nerve block of the facet joint nerves, a discogram and a rhizotomy involving five facet joint nerves (C3,4,5,6 and 7). In 2008, Davis underwent two more rhizotomy procedures. In 2009, Dr. Forte administered a trigger point injection upon Davis and performed a fourth rhizotomy in May.

|4The diagnosis of Davis’s condition, which she asserted at trial, is described in the opinions of Dr. Doug Brown, an orthopedic surgeon, and Dr. Vincent Forte, the pain management specialist. As noted above, Dr. Brown diagnosed the disc bulge at C6-7 and Dr. Forte diagnosed Davis with C6-7 nerve impingement and facet joint pain.

Davis’s work history after the accident was equally eventful. Davis was able to complete her college education and student teaching in November of 2005 and graduated in December of 2005. Davis took a permanent job with the Ouachita Parish School Board on January 5, 2006. By February 15, 2006, work records document that Davis applied for sick days through March 17, 2006, due to cervical pain. Although Davis requested unspecified sick leave on two days in October and November of 2006, she worked full-time through December of 2006. A 2006 federal tax return shows that Davis reported $24,586 in income for 2006.

After the child incident in January of 2007, Davis was granted extended leave from work from January 27 through May 24, 2007, the end of the school year. Davis did not return to teaching in the fall semester of 2007 or the spring semester of 2008. Her 2007 tax records show an income of $7,926. By the summer of 2008 after moving to Lafayette, Louisiana, Davis obtained a part-time job as a swim instructor at a rehabilitation center. In October of 2008, Davis secured a part-time administrative position at a private school in Lafayette where she continued to work through 2009. Documentation showed that Davis performed both administrative work at $12.50/hour and substitute teacher work at $45/day. A check stub dated IfiOctober 15-30, 2008, shows that Davis worked 56 hours at a rate of $12.50/hr. The 2008 tax records show that Davis earned $2,994 at the school and $1,060 at the rehabilitation clinic. Documentation showed that with a full-time administrative position at the private school, Davis would make approximately $25,000 a year.

On April 10, 2006, Davis filed suit against the truck driver, Johnny Richardson, Dean Foods, Foremost Dairies and Southern Foods Group, L.P., seeking damages for injuries she allegedly sustained in the accident. Defendants admitted liability and the case proceeded to a bench trial on the issue of causation and damages. The defense raised the issue of whether Davis exaggerated her symptoms due to a prescription drug addiction. Additionally, the defense claimed that intervening and/or superseding events caused Davis’s long-term injuries.

A two-day trial occurred in May of 2009. Live testimony included that of Kristin, her mother, a friend and an emergency room physician. Otherwise, the plaintiff submitted the deposition testimony of eight physicians, one addictionologist, a physical therapist and an economist as well as Davis’s medical and work records. The defendants presented no evidence, but relied on the cross-examination of plaintiffs witnesses. After the submission of several post-trial briefs to the court, judgment was rendered in favor of Davis awarding $300,000 general damages and $100,00 loss of enjoyment of life. The court also awarded Davis special damages as follows:

Past Medical Damage.$ 120,337.88
Car Rental.$ 676.11
Past Lost Wages.$ 157,370.00
Future Lost Wages.$ 734,795.00
Past Household Services_$ 9,984.00
Future Household Services .. $ 84,766.00
Future Medical Expenses ... $1,146,321.00

| ^Defendants appeal the $2,654,249.99 judgment raising arguments regarding causation of Davis’s injuries, the award of past and future lost wages, past and future household services and future medical expenses.

Discussion

I.

Causation

The defendants’ first assignment of error concerns the issue of causation. Specifically, they assert that the motor vehicle accident did not cause the bulging disc and facet injuries and any contrary conclusion is contradicted by the opinions of the treating physicians and the documentary evidence. Defendants point to Davis’s use of the narcotic pain medicine, Lortab, obtained simultaneously from two doctors before the accident for a questionable knee injury. For the seven months following the accident, defendants summarized the evidence as follows:

By the late fall 2005, plaintiff displayed no objective symptom of injury, had perfectly normal diagnostic tests, had been dismissed by one physician for “doctor shopping,” had admitted to two health care providers (Mayfield and the physical therapist) that she was pain-free and healed, and had consumed thousands of prescription pain pills from multiple doctors and pharmacies.

Defendants then point to Davis’s fall down the stairs in November of 2005 as the trauma which resulted in a significant change in her symptoms.

|7In a personal injury action, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident at issue. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615 (La.2/20/95), 650 So.2d 757; Montgomery v. Kedgy, 44,601 (La.App.2d Cir.8/26/09), 21 So.3d 980, unit denied, 09-2110 (La.11/25/09), 22 So.3d 167. The plaintiff must prove causation by a preponderance of the evidence. Id. The test for proving the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the injuries were caused by the accident. Maranto, supra. A plaintiff is aided in proving causation by the presumption that an injury resulted from an accident if before the accident the injured person was in good health, but commencing with the accident the disabling symptoms appear and continuously manifest themselves afterward, provided that the medical evidence demonstrates a reasonable possibility of causal connection between the accident and the injury. Housley v. Cerise, 579 So.2d 973 (La.1991); Montgomery, supra; Saunders v. ANPAC Louisiana Ins. Co., 43,405 (La.App.2d Cir.8/13/08), 988 So.2d 896.

It is well-settled law that factual determinations are subject to review for manifest error. Howard v. Union Carbide Corp. 09-2750 (La.10/19/10), 2010 WL 4074952; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742. In such a review, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Howard, supra; | s Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse, even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Id. Where there are two permissible views of the evidence, the factfin-der’s choice between them cannot be manifestly erroneous. Id. Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989). Indeed, where the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Id.

At trial, Davis testified that she consistently had pain in her cervical spine and shoulder blades since the April 2005 accident. Regarding her medical history, Davis reported that she had knee surgery in 1997 and was involved in another car accident in 2002 in which she hurt her neck. She had no residual problems from either incident. Concerning her present condition, although she experienced periods of less pain, Davis testified that between the time of the accident and the trial, “it always went back to the same old thing.”

Davis reported that at the time of her fall during Thanksgiving break in 2005, her shoulder blades and neck had been hurting for two days, and she had not left the house due to the pain. She also had a migraine Rheadache. She went down the stairs at some point, lost her footing on the steps and hit her head. Her parents took her to the emergency room where she saw Dr. Crook. She was able to go back to work the following Monday. Davis testified that the source of her problems was not the fall down the stairs but the car wreck because her symptoms were the same before and after the fall.

When Davis began her permanent teaching job in Ouachita Parish in January of 2006, she also began seeing Dr. Doug Brown and underwent an MRI and myelo-gram during the year. She then went to physical therapy at Wied Physical Therapy. Physical therapy temporarily alleviated her pain, but gave her no permanent relief. She was unable to bend over or get on the floor with her first graders. She began teaching first grade at Calhoun Elementary in the fall semester of 2006. She said she performed her duties while hurting. The pain was the same.

Davis testified that she saw Dr. Brown a few days after an 8-year-old child grabbed her around the neck. While the incident aggravated things, she did not have any new symptoms. She claimed that in January of 2007, she was having difficulty working. She saw Dr. Warren Daniel in February of 2007, and he recommended that she be off of work for the rest of the school year. Davis obtained a leave of absence from work without pay from March 6, 2007, until the end of the school year. In late March of 2007, Davis saw neurosurgeon, Dr. Bernie McHugh, who referred her to pain | ^management specialist Dr. Vincent Forte. Dr. Forte gave her cortisone injections in her neck which gave her some relief. He performed a medial branch block which also provided temporary relief. Ultimately, Dr. Forte performed the rhizotomy procedures on her facet joints. She had her last nerve burn on May 5, 2009, two weeks prior to trial. Dr. Forte also performed a disco-gram.

The depositions of chiropractor Greg Mayfield, Drs. David Hebert, Warren Daniel and Bernie McHugh were submitted into evidence and presented facts consistent with those set forth in the medical synopsis appended to this opinion.

Dr. Doyle Hamilton testified in his deposition that he began seeing Davis in 2003 for weight loss issues. Davis had undergone knee surgery in 1999. He testified that on August 11, 2004, Davis for the first time requested narcotic pain medication for knee pain. Through 2005, Davis received both cough and pain medication from Dr. Hamilton for her chronic cough and knee pain. Regarding Davis’s visits to his office after the accident, beginning on May 26, 2005, Dr. Hamilton testified consistently with the information set forth in the medical synopsis. Additionally, Dr. Hamilton testified to his concern over Davis’s drug use at this time and beginning in August of 2004 because he knew that she was moving her prescriptions and seeing another physician who was prescribing pain medication to Davis. During July of 2005, Davis continued to take and request Ultram for unspecified pain.

|uIn his deposition, Dr. Hamilton testified to his belief that Davis was “doctor shopping” in order to get prescription pain medication. Nevertheless, he agreed with the opinion of Dr. Brown that the accident caused her back and neck problems. Dr. Hamilton also testified that it was “likely” that a bulging disc and back pain would show up nine months after the motor vehicle accident.

Orthopedic surgeon Dr. Doug Brown’s deposition was introduced into evidence. In it, Dr. Brown reviewed Davis’s medical records as set forth in the medical synopsis. Dr. Brown testified that in his opinion, Davis’s main injury was “damage to this disc” which “I truly believe it was in the accident just by the history and the way it looked.” Specifically, Dr. Brown stated that the April 14, 2005 accident “caused the C6-7 disc to bulge and be symptomatic for some period of time, and then later her neck was injured with — I think this child grabbing her neck and flexing it really made her more symptomatic at that time because she’d almost got completely well before then.” Dr. Brown also testified that the fall down the stairs could have aggravated what was already going on because the degenerative disc changes with the disc bulging that he saw on the MRI in January of 2006 take a minimum of 3 to 6 months to show. Dr. Brown stated that in his opinion, Davis’s problems were due to the disc bulge with nerve impingement (which responded to the epidural injections) and a cervical facet joint dysfunction (which responded to the nerve burn).

Dr. Vincent Forte first diagnosed Davis with left disc bulge, generalized neck pain, muscle soreness and headaches based upon the | ^history given to him by Davis. Dr. Forte concurred in the conclusion that the myelogram showed evidence of C6-7 bulge. Ultimately, Dr. Forte concluded that Davis had nerve impingement and muscle soreness due to cervical facet joint problems, because Davis responded to treatment of both areas. He likened the cervical facet joint problems to whiplash which could be seen two years after an accident and could produce constant, even debilitating pain. Dr. Forte related these problems to the April 2005 accident although he knew of no other incidents. He could not say what caused the disc bulge, the accident or the November 2005 fall. He could not say, with a reasonable degree of medical certainty, when the disc bulge occurred.

Dr. Forte explained the numerous procedures that had been done on Davis. Davis first underwent three cervical epidural steroid injections. Dr. Forte testified that during the cervical epidural steroid injections the patient is sedated. While the patient is under the x-ray machine, the doctor counts the disc spaces and injects steroids into epidural space hoping to reduce pain symptoms by reducing inflammation of the nerves.

When the steroid injections provided little relief, Dr. Forte explained that Davis next received a cervical medial branch nerve block. He testified that the theory behind this procedure is that the nerves which innervate the facet joints may be causing pain. Thus, Dr. Forte injected local anesthetic at the point where the nerve passes near the posterior bone and blocks the nerve or the pain generators going into the joint with the hope of locating the pain source.

11sDr. Forte explained that the nerve cauterization or rhizotomy procedure involved the use of a heated needle to stimulate and burn or cauterize the nerve for 90 seconds. Davis experienced notable pain relief after the rhizotomy. Dr. Forte explained that a rhizotomy may have to be repeated because

you can very well get good stimulation with just having two or three millimeters contacting the nerve, but you may not get a very long burn of that nerve, so subsequently the nerve does regenerate, and so as this nerve regenerates, the pain symptomatologies m[a]y return, so quite often what we see is that some patients may get three months or six months or even up to two years of benefit after a rhizotomy, but we may often have to repeat it....

After Davis’s first rhizotomy, Dr. Forte recommended a discogram to locate the source of any residual pain. Dr. Forte explained that the discogram is a procedure where a needle is placed in the disc space in order to inject the disc with a contrast agent and then ask the patient if the injection replicates pain. Davis also received trigger point injections which involves the injection of local anesthetic and steroids into muscle to reduce spasms.

Dr. Forte also stated that Davis did not exhibit drug-seeking behavior during his treatment of her. His prognosis for Davis was that she would require the rhizotomy procedure at least every two years with trigger point injections in between. He testified that the facet joint problems could last more than two years after the accident. It was not uncommon for Davis’s symptoms to exhibit themselves at a later time or for the symptoms to get better, worse or be constant. Dr. Forte testified that Davis’s symptoms were consistent with her history of being injured in the automobile accident.

114With the wide-ranging medical care that Davis sought in the four-year period following the accident, along with the varying diagnoses she received, the defendants’ arguments have support by one view of the evidence. That view shows that some of her doctors considered her to possibly be addicted to prescription drugs and doctor shopping to support the addiction. That view would focus further on Davis’s condition as reported to the medical providers in the seven months following the accident which indicated her recovery and her ability to adequately function and obtain her college degree. Thus, the defendants’ argument is that the only reasonable conclusion from the evidence is that Davis’s fall in November 2005 is the cause of her present condition. Moreover, from the defense perspective this same evidence must destroy Davis’s credibility.

The trial court’s determination of causation relating Davis’s condition to the April of 2005 accident may rest, nevertheless, on the opinions of Drs. Brown and Forte. There was no MRI taken between the April accident and Davis’s fall down the stairs in November of 2005. The first MRI was in January of 2006, and Dr. Brown related the bulging disc shown by that test to an event earlier than the November 2005 stair incident. Davis reported to the trial court a consistency in the pain before and after her November fall even though the fall in Dr. Brown’s opinion may have aggravated her symptoms. The trial court’s measure of Davis’s credibility could concern its belief in the description of her continuing pain before and after the 11sNovember fall regardless of whether Davis may have abused pain medication for that pain.

The manifest error standard does not turn on whether the defendants have presented one reasonable view of the evidence, but whether the trier-of-fact properly determined its judgment on another reasonable view, weighing differently the facts as a whole and making credibility determinations. We find that any issue of causation of Davis’s condition and pain was addressed in the opinions of Drs. Brown and Forte, and the trial court’s determination that the April of 2005 accident was the cause of Davis’s damages is not clearly wrong.

II.

Past Special Damages Lost Wages and Household Services

Defendants assign as error the trial court’s award for lost wages and lost household services occurring before trial. They assert that Davis presented no medical testimony that she was disabled from any occupation or from performing household duties. They cite Davis’s work history and claim that her non-teaching position in school administration at the time of trial was of her own choosing.

To recover for actual wage loss, a plaintiff must prove that she would have been earning wages but for the accident in question. Boyette v. United Services Auto. Ass’n, 00-1918 (La.4/3/01), 783 So.2d 1276; Hunt v. Board of Sup’rs of Louisiana State Univ. and Agric. and Mechanical College, 522 So.2d 1144, 1152 (La.App. 2d Cir.1988). In other words, it is the plaintiffs burden to prove past lost earnings and the length of time missed from work due to the accident. Boyette, supra.

Awards for past lost wages are not susceptible to the great discretion given the factfinder, because lost income is subject to mathematical calculation. Bassett v. Toys “R” Us Delaware, Inc., 36,434 (La.App.2d Cir.12/30/02), 836 So.2d 465, writ denied, 03-0560 (La.4/25/03), 842 So.2d 408; Worsham v. Hetrick, 34,206 (La.App.2d Cir.2/7/01), 777 So.2d 1280; Robbins v. State Dept. of Labor, 31,590 (La.App.2d Cir.2/24/99), 728 So.2d 991. Past lost income can be computed on an amount the plaintiff would in all probability have been earning at the time of trial and damages for loss of past income are not necessarily limited to a multiplier of the amount earned at the time of injury. Bassett, supra; Robbins, supra.

The jurisprudence has allowed as an element of damages, reasonable housekeeping expenses necessitated by the incapacity of an injured person. Odom v. Claiborne Elec. Co-op., Inc., 623 So.2d 217 (La.App. 2d Cir.1993), writ denied, 629 So.2d 1171 (La.1993); Mims v. Reliance Ins. Co., 535 So.2d 1085 (La.App. 2d Cir.1988); Cushman v. Fireman’s Fund Ins. Co., 401 So.2d 477 (La.App. 2d Cir.1981). These awards have been rejected in cases where the plaintiff employed a housekeeper prior to the accident or injury, and the evidence failed to show that plaintiff would be | unable to perform substantially all of the usual household duties. Levy v. Bayou Indus. Maintenance Services, Inc., 03-0037 (La. App 1st Cir. 9/26/03), 855 So.2d 968, writs denied, 03-3161 (La.2/6/04), 865 So.2d 724, 03-3200 (La.2/6/04), 865 So.2d 727.

Proof of lost wages included the testimony of Davis who asserted that she could not return to teaching first grade because of its physical demands and her pain. She also discussed her inability to perform high intensity cardio or lifting, although she is able to walk. Davis submitted her employment records from the Ouachita Parish School board which documented the time she was off of work. The sole expert testimony regarding the issue of Davis’s ability to work was that of Dr. Brown. He explained that the 10% impairment of the body rating he gave Davis in May of 2006 was an anatomic impairment, not a functional impairment. At the time of the rating, he stated there was nothing that would have prevented Davis from teaching. Additionally, the evidence regarding Davis’s lost earnings included the expert report and testimony of economist Dr. Melvin Harju, the documentation supporting his conclusions and Davis’s tax returns.

We find that this evidence is sufficient proof of Davis’s entitlement to past lost wages. As discussed above, Davis’s testimony proved that she consistently experienced pain after the April 2005 accident which caused her to miss work and ultimately accept an administrative position. The documentation of her work history corroborates this testimony. Thus, Davis established that she would have been earning the lost wages but for the accident in question. As noted above, Dr. Harju obtained his salary figures l1Rfrom documentation provided by the Ouachita Parish School Board including salary and supplemental check information. His total past earnings calculation from January 31, 2006 until May 20, 2009, was $131,093. Because these calculations were provided by Davis’s employer, they are sufficient proof of salary information. However, for the years 2006-2007, Dr. Harju failed to deduct certain income earned by Davis as shown on her tax returns for those years as he erroneously concluded that Davis stopped working completely on January 31, 2006. The evidence, including Davis’s tax returns and W-2s, shows that she in fact earned more income than Dr. Harju documented in both 2006 and 2007. Thus, Dr. Harju’s calculations for 2006 and 2007 are in error. Accordingly, Davis’s lost earnings calculation from the date of the accident until trial will be reduced by the sum of $17,858 ($9,932 in 2006 and $7,926 in 2007).

The documentation supporting Dr. Harju’s fringe benefit calculations, moreover, was unsupported by any testimony of officials from the Ouachita Parish School Board. Additionally, there are clear inaccuracies in the data, e.g., the inclusion of social security benefits for the state employee. Without proof from the subject school board regarding any actual fringe benefits paid by the board to its employees, the evidence is insufficient to establish Davis’s entitlement to these additional sums. On this basis we exclude any fringe benefit calculation.

After deducting these sums from the lost earnings calculation, the past lost earnings award is adjusted to the sum of $113,235.

119Regarding past household services, the only evidence presented by the plaintiff included Davis’s testimony and Dr. Harju’s report. Davis testified that she had great difficulty with housework because it aggravates her neck. She estimated that after the accident, she would spend 6-7 hours per week longer on housework than before. Nevertheless, she testified that since she has received the rhizotomy procedures with Dr. Forte, she has been able to “resume normal activities.” Further in a verified economic loss, household services statement submitted to her economist on May 22, 2008, and admitted into evidence, Davis made the following statement:

All of my home care tasks such as cleaning, laundry, and cooking were done by my family as I was unable to complete simple household chores. Since having the procedures, I am currently able to complete these duties.

Dr. Harju calculated the replacement cost per hour for a maid or housekeeping services in Monroe at $6.68 per hour. He concluded that the replacement cost of one hour of work per week from April 11, 2005 until May 20, 2009, would be $1,586, and the trial court award of $9,984 represents 6.5 hours per week. Nevertheless, the above-referenced verified document submitted to Dr. Harju, Davis indicated that by May 22, 2008, she was able to complete these household tasks without any indicated restriction. Thus, Davis’s need for these household services was only supported by the evidence prior to May of 2008, and we reduce the past household services award to $7,548.

Jam.

Future Medical Expenses

In this assignment of error, defendants argue that the trial court erred in awarding future medical expenses of $1,146,321. This represents the cost of office visits, trigger point injections, rhizo-tomy treatment, and medication for the remainder of Davis’s life (54.1 year life expectancy), with the rhizotomy procedures, in particular, being administered twice each year. Defendants argue the lack of proof of causation and the lack of medical opinion that “such lifetime treatment would be either effective or necessary.”

The cost of future medical treatment and expenses cannot be precisely measured; however, the plaintiff must still establish future medical expenses with some degree of certainty through medical testimony that such expenses are indicated and their probable cost. Locke v. Young, 42,703 (La.App.2d Cir.12/12/07), 973 So.2d 831; Sepulvado v. Turner, 37,912 (La.App.2d Cir. 12/10/03), 862 So.2d 457, writ denied, 04-0089 (La.3/19/04), 869 So.2d 855; Lewis v. State Farm Ins. Co., 41,527 (La.App.2d Cir.12/27/06), 946 So.2d 708.

A fact-finder may accept or reject the opinion expressed by an expert, in whole or in part. Green v. K-Mart Corp., 03-2495 (La.5/25/04), 874 So.2d 838. The trier of fact may substitute common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. Id.

Evidence relating to the rhizotomy procedure’s effectiveness and cost included Dr. Forte’s testimony and the cost estimate and projected economic 1measure of Dr. Melvin Harju. The rhizotomy procedure alone costs $10,000. Dr. Harju’s calculation was based on the cost of two rhizotomies per year and the additional procedures for a total of $25,409.12 per year for the rest of Davis’s life. Nevertheless, because Dr. Harju based his calculations upon the documentation provided to him by Dr. Forte, it is the physician’s testimony which is crucial to the determination of the issue at hand.

In this case, the evidence shows that Davis had undergone four rhizotomy procedures as of the time of trial and had received relief from that series of treatments. Dr. Forte testified that it was not uncommon for the patient to require more than one rhizotomy procedure and that in his opinion Davis would require the rhizo-tomy procedure “at least every two years with trigger point injections in between.” Dr. Forte related the need for repeated procedures to the failure to burn the nerve completely. Yet, he never testified that a complete nerve burn was not possible. Most significantly, he never explained whether the procedure could be repeated on the same nerves for Davis’s lifetime without alteration or harm to nerves which would terminate the availability or effectiveness of the treatment. With Davis’s life expectancy of 54 years, the largest portion of the $1,146,321 award for future medicals assumes that Davis will undergo 108 rhizotomy procedures through age 81. We find this projection of future medical expenses not supported by medical testimony. That testimony does not establish with a sufficient degree of certainty the probability for the expenses for 54 years.

122Pue to this lack of proof to indicate the expected duration of the procedures, the future medical damage award must be amended. Based upon the evidence before us, we conclude that a 30-year duration, reflecting the remainder of Davis’s expected work life, with procedures performed every other year (15 procedures), would be an appropriate frequency and term for Davis’s future treatment. We amend the judgment to reduce Davis’s future medical expense award to $229,505.

IV.

Future Wages and Household Services

The defendants next argue that the trial court erred in awarding lost future wages and household services due to the complete lack of expert evidence that Davis was disabled from any occupation or from performing household duties. Defendants further contend that Davis’s occupational decisions were “based upon choice, not disability.”

A plaintiff bears the burden of proving his claim for lost earnings. For purposes of determining this type of damages, the amount of lost earnings need not be proved with mathematical certainty, but by such proof as reasonably establishes the claim. Locke, supra. Since awards for future lost income are inherently speculative and intrinsically insusceptible of being calculated with mathematical certainty, the courts must exercise sound judicial discretion to determine these awards. Id. The awards should be consistent with the record and not work a hardship upon either party. Locke, supra; Robbins, supra. Purely conjectural or uncertain future lost earnings lawill not be allowed. Doss v. Second Chance Body Armor, Inc., 34,788 (La.App.2d Cir.8/22/01), 794 So.2d 97.

To ascertain whether a personal injury plaintiff should recover for lost earning capacity, the trial court should consider whether and how much the plaintiffs current condition disadvantages her in the work force. Among the factors to be considered are her physical condition before and after her injury, her age and life expectancy, work life expectancy, discount and inflation rates and past work record. Doss, supra. Lost income awards are speculative and cannot be calculated with absolute certainty. Therefore, the trial court is given broad discretion in setting an award for lost earning capacity. However, there must be a factual basis in the record. Gorton v. Ouachita Parish Police Jury, 35,432 (La.App.2d Cir.4/3/02), 814 So.2d 95, writs denied, 02-1273 (La.8/30/02), 823 So.2d 950, 02-1261 (La.8/30/02), 823 So.2d 952.

The testimony of an economist is entitled to great weight, but since it is necessarily based on uncertain future events, it is not conclusive. Doss, supra; Cutchall v. Great American Pump Co., 460 So.2d 1106 (La.App. 2d Cir.1984).

In computing loss of future income, it is first necessary to determine whether and for how long a plaintiffs disability will prevent her from engaging in work of the same or similar kind that she was doing at the time of his injury; it is necessary to ascertain whether she has been disabled from work for which she is fitted by training and experience. Hunt, supra; Morgan v. Willis-Knighton Medical Center, 456 So.2d 650 (La.App. 2d Cir.1984).

L S4In order to obtain an award for impaired earning capacity or future loss of wages, a plaintiff must present medical evidence which indicates with reasonable certainty that there exists a residual disability causally related to the accident. Bize v. Boyer, 408 So.2d 1309 (La.1982); Aisole v. Dean, 574 So.2d 1248 (La.1991); Thompson v. Coates, 29,333 (La.App.2d Cir.5/7/97), 694 So.2d 599, writs denied, 97-1442 (La.9/26/97), 701 So.2d 985, 97-1521 (La.9/26/97), 701 So.2d 987. Lay testimony simply serves to complement and corroborate the medical evidence. Bize, supra.

For Davis’s future lost wages, the trial court awarded her the sum of $734,795, which according to Dr. Harju’s calculations represented the amount of projected future income lost by Davis as a teacher in her expected worklife of 30.8 years with offset earnings of $25,000 per year. Defendants urge error in this award based upon the “complete absence in the record of any expert testimony that plaintiff was disabled from any occupation.” We agree with defendants.

The sole evidence relating to Davis’s inability to continue teaching first grade was that of Davis. In sum, Davis testified that while she can perform administrative duties in the school where she works, teaching in the future was “far too much that I can foresee right now to undertake.” She explained that given the opportunity to substitute teach, “it’s been so physically demanding just for the one day that it’s hard to imagine a whole year of bending and pulling and doing all those things.” Unfortunately, however, Davis presented no medical testimony establishing that she is disabled as the result of her injuries. As noted above, Dr. Brown gave her no functional | ^impairment and concluded in May of 2006 that there was nothing that would have prevented Davis from teaching. This was before the time that Davis began receiving the rhizotomy and other procedures which significantly improved her condition. No physician offered any further testimony on the issue. Thus, with no medical evidence establishing her disability with reasonable certainty, Davis cannot recover future lost wages. We amend the judgment to delete the future lost wage award.

As discussed above, the jurisprudence has allowed as an element of damages, reasonable housekeeping expenses necessitated by the incapacity of an injured person. Odom, supra; Mims, supra; Cushman, supra. These awards have been rejected in cases where the plaintiff employed a housekeeper prior to the accident or injury, and the evidence failed to show that plaintiff would be unable to perform substantially all of the usual household duties. Levy, supra.

The judgment in this case awarded Davis $84,766 in future household services for the remainder of Davis’s life based upon Dr. Harju’s calculations and Davis’s testimony that it took her an extra 6.5 hours per week to complete her household chores. Davis did not testify that she was unable to do any housework. In fact, as discussed above, Davis admitted her ability to complete these chores after the rhizoto-my procedures, although at a slower pace.

A review of the jurisprudence from 1962, first discussing the award of reasonable and necessary expenditures for past and future household services, 12(jShows that these awards have historically been limited to repayment for domestic help which was secured to perform domestic chores because of total incapacity of the injured party. Davis v. Powell, 141 So.2d 679 (La.App. 1st Cir.1962); Hickman v. Bawcom, 149 So.2d 178 (La.App. 3d Cir.1963); Vonderbruegge v. Bethea, 250 So.2d 407 (La.App. 1st Cir.1971); Edwards v. Lewis Grocery Co., 391 So.2d 13 (La.App. 2d Cir.1980); Cushman v. Fireman’s Fund Ins. Co., supra; Prevost v. Cowan, 431 So.2d 1063 (La.App. 1st Cir.1983); Deville v. K-Mart Corp., 498 So.2d 1122 (La.App. 3d Cir.1986); Mims, supra; Odom, supra. Only in one case did the court award future damages for maid services even though the family did not hire a maid when the plaintiff was unable to perform any household chores. Varnell v. Louisiana Tech Univ., 30,260 (La.App.2d Cir.2/25/98), 709 So.2d 890, writ granted, 98-0785 (La.6/5/98), 720 So.2d 1203, writ denied, 98-0776 (La.6/5/98), 720 So.2d 680. Thus, the cases awarding past and future lost household services limited recovery to situations where substitute housekeepers were actually utilized or would be necessary because of the plaintiffs total incapacity to perform housekeeping services.

In addition to the lack of legal authority for such an award, no medical testimony established that Davis was physically incapable of performing such duties. In fact, there is no evidence on the record that Drs. Brown and Forte assigned any permanent disability to Davis. As discussed above, Davis conceded that she was able to complete her housework. The record also lacks Reproof that Davis utilized maid services or that the services were or would be necessary for the remainder of her life. Thus, Davis did not prove the need for the services or the extent and duration they would be required. Mims, supra. On these grounds, we reverse the award of future lost household services. Ultimately, Davis’s receipt of $100,000 in general damages for loss of enjoyment of life serves to compensate her for any alterations to her lifestyle and activities which can be attributed to her neck injuries.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed as to the causation determination, amended to reduce the past lost wage award from $157,370 to $113,235, past household services from $9,984 to $7,548, and the future medical awards from $1,146,321 to $229,515 and reversed as to the award of future lost wages and future household services for a total judgment of $871,301.99. Costs of appeal are assessed equally to the parties.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND AMENDED IN PART.

      . In fact, Dr. Hebert discontinued Davis as a patient by October of 2005.

      . A rhizotomy is the cauterization of the nerves near the facet joints. The physician places a needle near the nerve which is stimulated with an electrical current. The physician then "bums” the nerve. Records from Dr. Forte's office indicated the cost of one rhizotomy procedure in June of 2008 was $10,400.

      .A trigger point injection is the injection of anesthesia directly into the muscle; the cost of a yearly trigger point injection in June of 2008 was $350.

      . Davis was seen by her primary care physician, Dr. David Hebert, who diagnosed her with mild whiplash which resolved itself.

      . Records from the Ouachita Parish School Board show that at the recommendation of Drs. Hamilton and Brown, Davis took extend- . ed sick leave from February 15-March 17, 2006, for cervical disc problems.

      . In reasons for judgment, the trial court determined that the "defendants unsuccessfully attempted to paint a picture of a doctor shopping pain pill addict” because "these assertions” are “unsupported by the evidence presented at trial.”

      . Notably, defendants have presented no assignment of error or argument regarding the excessiveness of the general damage award or the award for loss of enjoyment of life in the event of an affirmance of the causation determination. Thus, this portion of the judgment is not before us on appeal.

      . For 2006, Dr. Harju credited Davis with income of $14,654 when her tax return showed that she earned $24,586.

      . Dr. Harju's report labeled his alternative calculations as "Alternating” and "Each and Every Year,” when in fact the numbers reflect annual and semi-annual procedures.

      . Included in this amount are four yearly office visits for 30 years, trigger point injections in alternating years, the rhizotomy procedure in alternating years and yearly prescription drugs.

      . The cases are cited in chronological order for purposes of this discussion.

      . We acknowledge that a divided panel of this court participated in the final rendition of Maranto v. Goodyear Tire & Rubber Co., 25,114 (La.App.2d Cir.5/10/95), 661 So.2d 503, which awarded $25,000 in past and future loss of household services for a plaintiff who could perform some household duties. In support of the award, however, Maranto relied on the above-cited jurisprudence which, as noted, provides no authority for future household services.

      . Loss of enjoyment of life, sometimes known as hedonic damages, refers to the detrimental alternations of a person’s life or lifestyle or a person's inability to participate in the activities or pleasures of life that were formerly enjoyed. McGee v. A C and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770.