author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Jason C. VOLTOLINA.
    No. 10-KA-1090.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/App ellee.
    Lieu T. Vo Clark, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

^Defendant, Jason Voltolina, appeals from his convictions of possession with intent to distribute MDMA, possession of methamphetamine, and possession of cocaine. For the reasons that follow, we affirm his convictions and sentences.

On November 19, 2008, the Jefferson Parish District Attorney’s office charged defendant with one count of possession with intent to distribute MDMA in violation of La. R.S. 40:966(A), and one count each of possession of methamphetamine and possession of cocaine in violation of La. R.S. 40:967(C). Defendant initially pled not guilty. He subsequently filed a motion to suppress evidence, which was denied after a hearing. Defendant filed a writ application with this Court seeking review of that ruling, which was denied. State v. Voltolina, 09-633 (La.App. 5 Cir. 8/14/09) (unpublished writ disposition).

Thereafter, on January 22, 2010, defendant entered a guilty plea to all three charges under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and State v. Crosby, 338 So.2d 584 (La.1976). Pursuant to a plea agreement, the trial court sentenced defendant to five years at hard labor on each count and ordered the sentences run concurrently with each other. The trial court also ordered the possession with intent to distribute MDMA conviction be served without benefit of parole, probation or suspension of sentence.

Defendant filed this appeal urging as his sole assignment of error the trial court’s denial of his motion to suppress the evidence. He contends the detectives illegally entered his home without a search warrant and without exigent circumstances or probable cause to justify the warrant-less entry.

The sole witness to testify at the motion to suppress hearing was Detective William Roniger of the Jefferson Parish Sheriffs Office. He testified that he was advised by a confidential informant (Cl) that defendant was distributing narcotics from his residence at 3911 Delhi St. in Metairie. The Cl also advised defendant distributed narcotics at various nightclubs in Jefferson and Orleans Parish. The Cl further informed Detective Roniger that defendant was driven to these nightclubs by different people.

As a result of this information, Detective Roniger performed a name check on defendant and learned he had two outstanding attachments and warrants for his arrest. Thereafter, at approximately 8:00 p.m. on October 17, 2008, Detective Roni-ger set up surveillance at defendant’s residence. During the surveillance, Detective Roniger observed an individual arrive at the residence in a Nissan Titan, knock on the door, and enter the residence. At approximately 9:30 p.m., Detective Roni-ger saw defendant leave his residence with the individual in the Nissan truck.

Detective Roniger and his partner stopped the vehicle in the 3500 block of West Metairie Ave. and placed defendant under arrest for the outstanding attachments and warrants. After searching defendant’s person incidental to the |4arrest, Detective Roniger discovered four bags of compressed white powder that later field-tested positive for cocaine, a “large amount” of money, two cellular phones, and a house key around defendant’s neck.

Thereafter, Detective Roniger and two other officers brought defendant back to his Delhi St. residence. Detective Roniger entered the residence using defendant’s key, and explained he entered the apartment for the purpose of securing the residence and preventing the destruction of evidence. Defendant did not consent to a search of his residence. While Detective Roniger did not search the apartment, he located two firearms under a mattress, which had been described to him by the Cl. Detective Roniger explained that the apartment was very small, and he did not want defendant to be seated on top of weapons when he was brought into the residence while the search warrant was being prepared. Thereafter, defendant was brought into the apartment and a search warrant was obtained and executed. Among the items recovered were 112 dosage units of ecstasy or MDMA, a marijuana cigar, a small amount of methamphetamine, and a loaded gun.

In addition to Detective Roniger’s testimony, the State introduced a copy of the application for the search warrant into evidence. The affidavit in support of the application for the search warrant further indicated the Cl identified defendant as “Hollywood,” which Detective Roniger confirmed was defendant’s nickname, and stated that “Hollywood” was distributing large quantities of cocaine and marijuana. Detective Roniger also confirmed that defendant lived at the Delhi St. address. Detective Roniger obtained a photograph of defendant and showed it to the Cl, who identified the defendant as the person he knew as “Hollywood.” Detective Roni-ger’s criminal record check of defendant revealed two outstanding warrants and numerous arrests and/or convictions for various offenses, including possession |ñwith the intent to distribute a controlled dangerous substance. Additionally, in the affidavit, Detective Roniger stated that upon approaching the door to the apartment at 3911 Delhi St., he detected the distinct odor of burnt marijuana emanating from inside the residence at which time he used the key located around defendant’s neck to unlock the front door.

In denying the motion to suppress, the trial court noted there were no issues with either the initial stop and arrest, since there were attachments or warrants for defendant’s arrest, or the search incident to the lawful arrest. It further found the information provided by the Cl and corroborated by Detective Roniger was sufficient to provide the requisite probable cause for the search warrant.

This Court denied defendant’s pre-trial writ application after reviewing the transcript of the suppression hearing and the affidavit in support of the application for the search warrant. We specifically found there was substantial basis upon which to find probable cause existed for purposes of the search warrant. We noted the Cl’s information that “Hollywood” was distributing large quantities of cocaine and marijuana from his residence at 3911 Delhi St. was corroborated when Detective Roni-ger’s search revealed defendant’s nickname was “Hollywood,” his address was 3911 Delhi St., and he had a prior conviction for possession with intent to distribute a controlled dangerous substance. Additionally, we noted Detective Roniger’s surveillance further corroborated information from the Cl; namely, leaving his residence with an unknown driver. We concluded these facts, along with the fact Detective Roniger smelled burnt marijuana as he approached the front door of defendant’s residence, were sufficient to support a reasonable belief that defendant was distributing drugs from his home and that evidence of that offense or contraband might be found there. As such, we found the trial court | Rdid not abuse its discretion in denying the motion to suppress. State v. Jason Voltolina, supra.

The State urges this Court to apply the “law of the case” doctrine because this Court has already addressed the suppression issue and there are no new factual developments since defendant pled guilty and there was no trial. Application of the “law of the case” doctrine is discretionary and the denial of a supervisory writ application does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. State v. Lathers, 09-20 (La.App. 5 Cir. 5/26/09), 15 So.3d 1068, 1070-71, writ denied, 09-1341 (La.2/12/10), 27 So.3d 841. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Jacobs, 04-1219 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, 88, writ denied, 05-2072 (La.4/28/06), 927 So.2d 282, cert. denied, 549 U.S. 956, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006).

In the present case, defendant entered qualified guilty pleas so there is no trial record that provides further information relating to the issue of the motion to suppress. Defendant’s writ application contained a copy of the transcript of the motion to suppress hearing and a copy of the application/affidavit for the search warrant, and defendant fails to produce any new evidence on appeal to show that this Court’s prior disposition was patently erroneous. However, defendant advances an argument on appeal relating to the motion to suppress that was not raised in his writ application. Specifically, on appeal, defendant argues the warrantless entry into defendant’s residence before the search warrant was obtained was illegal and necessitated suppression of the evidence subsequently discovered. A review of the record shows that defendant made this argument |7before the trial court. Therefore, we will reconsider our prior ruling on the trial court’s denial of the motion to suppress.

When evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. La. C.Cr.P. art. 703(D); State v. Johnson, 08-265, p. 5 (La.App. 5 Cir. 8/19/08), 994 So.2d 595, 599. The trial court’s decision to deny a motion to suppress is afforded great discretion and will not be set aside absent an abuse of that discretion. State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, 122, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).

Defendant maintains there were no exigent circumstances when the police entered his apartment prior to obtaining the search warrant and, therefore, the evidence subsequently discovered should have been suppressed. The Louisiana Supreme Court has held that officers may temporarily secure a dwelling to protect themselves and to prevent the removal or destruction of evidence to preserve the status quo while obtaining a search warrant. State v. Flores, 10-960 (La.6/18/10), 37 So.3d 997, 998 (per curiam). In Flores, the supreme court found that even assuming police entry into the residence and initial security sweep of the premises occurred without exigent circumstances or consent, suppression of the evidence was not required because the police would have obtained a valid search warrant “[b]ecause nothing the officers observed on the premises after their initial entry affected the decision to obtain a warrant, and because the probable cause basis for the warrant application derived not from their observations on the scene but from wholly independent sources, i.e., from a confidential informant and defendant.” Id. Thus, the supreme court explained the police would have inevitably discovered the contraband in the residence by lawful means.

IsLikewise in the present case, nothing Detective Roniger observed during his protective sweep of defendant’s apartment affected his decision to obtain a search warrant. Detective Roniger based his probable cause affidavit for the search warrant on information provided by the Cl, his independent corroboration of the information, and the fact cocaine was found on defendant’s person upon his arrest immediately after leaving his residence. Detective Roniger did not include in his probable cause affidavit any reference to the two guns he found during the protective sweep of defendant’s residence. When asked why he did not include this information in his application for the search warrant, Detective Roniger stated that the guns he found while securing the residence had nothing to do with the probable cause for the search warrant. Based on the foregoing, we find the mere entry of the police into defendant’s residence without a search warrant did not require suppression of the evidence discovered during the subsequent execution of a search warrant.

The next issue is whether the search warrant was based on probable cause. A search warrant may be issued only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. State v. Lee, 976 So.2d at 122. The affidavit must contain, within its four corners, the facts establishing the existence of probable cause for issuing the warrant. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, 1028, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). Probable cause for the issuance of a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Lee, 976 So.2d at 122. The determination of probable cause does not rest on an officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. Id.

The task of the reviewing court is to insure that under the totality of the circumstances the magistrate had a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). If the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, the reviewing court should interpret the affidavit in a realistic and common sense fashion, being aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. State v. Green, 02-1022 (La.12/4/02), 831 So.2d 962, 969. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers. Id.

In the present case, the language of the affidavit informed the issuing magistrate that: (1) the affiant had been advised by a Cl that “Hollywood” was distributing large amounts of cocaine and marijuana from 3911 Delhi St.; (2) the affiant conducted a criminal history search of the nickname “Hollywood” and found defendant went by the nickname and resided at 3911 Delhi St.; (3) the affiant showed the Cl a photograph of defendant and the Cl identified him as the person he knew as “Hollywood;” (4) a criminal record check of defendant revealed two outstanding attachments and warrants as well as numerous arrests and/or convictions, including a conviction for possession with the intent to distribute a Schedule I controlled dangerous substance; (5) the Cl advised defendant is driven by different people to various nightclubs in Jefferson and Orleans Parish where he distributes illegal narcotics; (6) the affiant conducted surveillance of defendant’s residence during which time he saw an individual arrive at the residence in a ImNissan Titan and defendant leave with that same individual after locking the residence with a key around his neck; (7) the affiant stopped the truck and arrested defendant for his outstanding attachments and warrants; (8) a search incidental to arrest yielded four plastic bags containing white powder that field-tested for cocaine in defendant’s front pocket; and (9) the affiant detected burnt marijuana emanating from inside the residence upon returning to the apartment after arresting defendant.

Based on the totality of the circumstances and a common sense reading of the affidavit, we find the magistrate had a substantial basis for concluding probable cause existed for the issuance of the search warrant. Accordingly, we find the trial court properly denied the motion to suppress the evidence.

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990), and find no errors patent.

For the foregoing reasons, defendant’s convictions and sentences are affirmed.

AFFIRMED


source: Caselaw Access Project

license: Public Domain

text:
    REGEL L. BISSO, L.L.C. v. Andree STORTZ, Wife of/and Alvin Stortz.
    No. 11-CA-25.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Bonnie L. Zakotnik, Attorney at Law, New Orleans, LA, for PlaintiffiAppellant.
    Andree & Alvin Stortz, In Proper Person, Metairie, LA, Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12This appeal arises from the granting of an award of $11,212.00 plus legal fees and legal interest from a suit on an open account in favor of Appellant/Plaintiff, Regel L. Bisso, L.L.C. (hereinafter referred to as “Bisso, L.L.C.”) and against Appellees/De-fendants, Andree Stortz wife ofi'and Alvin Stortz (hereinafter referred to as “the Stortzes”), in proper persons, in the 24th Judicial District Court, Division “H”. For the following reasons, we affirm the ruling of the trial court.

In March 2007, the Stortzes contacted Bisso, L.L.C., a limited liability company in the business of law practice, and spoke with Regel L. Bisso (hereinafter referred to as “Mr. Bisso”) concerning representation in a dispute with Palm Harbor Homes in connection with a contract to construct a modular home on their property. Mr. Bis-so resolved that particular matter with correspondence on behalf of the Stortzes. Approximately one year later, the Stortzes contacted Mr. Bisso and requested that he represent them in an arbitration proceeding brought against them by Palm Harbor Homes. Mr. Bisso, through Bisso, L.L.C. represented the Stortzes in the arbitration proceeding.

|3At the conclusion of the arbitration proceeding, the Stortzes were awarded an amount of $49,876.50, which included an award of attorney’s fees of $11,212.00. Subsequent to the final decision of the arbitration proceeding, Bisso, L.L.C. sent demand letters to the Stortzes for the remaining amount of the attorney’s fees owed. After being unsuccessful in obtaining the amount demanded, Bisso, L.L.C. filed a suit on an open account claiming unpaid attorney’s fees against the Stortzes in the amount of $24,650.00.

After a trial on the merits, the trial court awarded Bisso, L.L.C. $11,212.00 in legal fees pertinent to the representation of the Stortzes in the arbitration proceeding. In addition, the trial court awarded Bisso, L.L.C. $1,500.00 as reasonable attorney’s fees for its representation in the suit on an open account pursuant to LSA-R.S. 9:2781. In its Reasons for Judgment, the trial court found that the evidence established that Bisso, L.L.C. had provided legal services to the Stortzes that needed to be compensated for work completed before and after the arbitration. Additionally, the trial court stated that it awarded Bisso, L.L.C. the same amount of attorney’s fees that the arbitrator awarded to the Stortzes in the arbitration settlement. The trial court later amended its judgment to award Bisso, L.L.C. the sum of $11,212.00 plus legal interest from the date of judicial demand until paid and all costs of the proceeding. The instant appeal followed.

On appeal, Bisso, L.L.C. raises three assignments of error that allege the trial court abused its discretion in awarding $11,212.00 for the main demand because that amount was only one-half of the requested amount and was the same amount the Arbitrator awarded in the arbitration settlement.

At the trial on the merits, Mr. Bisso testified that he and the Stortzes had entered into an oral contract for legal representation at the rate of $200.00 per hour, Land the Stortzes would be responsible for any costs incurred. Mr. Bisso also testified that he told the Stortzes that they would have to eventually pay him and offered payment plans after acknowledging that they were “strapped for cash.” However, Mr. Bisso attested he sent monthly billing statements to the Stortzes until the time he filed the suit on an open account, which he claimed the statements were completely ignored. In support of Mr. Bisso’s testimony, Bisso, L.L.C. submitted billing statements and demand letters as evidence that it had performed legal services for the Stortzes at an hourly rate of $200.00 per hour.

During the questioning of the Stortzes, Mrs. Stortz testified on behalf of the couple. Mrs. Stortz testified that they stated to Mr. Bisso from the onset that they could not afford an attorney and attorney’s fees. Mrs. Stortz contended that she did most of the “leg work” for Mr. Bisso on the case. Mrs. Stortz also testified they did not agree with the way the case was handled by Bisso, L.L.C., and Mr. Bisso incurred unnecessary fees when handling the case. Mrs. Stortz further stated they had only received one billing statement from Bisso, L.L.C. in the mail but later admitted that she did see all of the billing statements at a later point in time.

Rules of Professional Conduct, Art. 16, Rule 1.5(b) provides, “[t]he scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation ...”

LSA-C.C. art. 1846 provides that a contract not reduced to writing and the price or value is in excess of $500.00 must be “proved by at least one witness and other corroborating circumstances.” A plaintiff may offer his own testimony in support of his claim; however, the other circumstances which corroborate the claim must come from a source other than the plaintiff. Louisiana Weld & Press, L.L.C. v. Loupe Const., 09-720 (La.App. 5 Cir. 1/12/10); 31 So.3d 467, 472, citing John Cherbonnier Construction v. Big Easy Roofing, Inc., 05-803 (La.App. 5 Cir. 3/14/06); 926 So.2d 587, 589-590.

In the present case, all of the extrinsic evidence presented to establish the oral contract with the Stortzes for legal representation came from Mr. Bisso, a member of Bisso, L.L.C., through his testimony and the submission of billing statements and demand letters attested to by him. However, this evidence is insufficient to prove that Bisso, L.L.C. was owed $24,650.00 from the Stortzes pursuant an oral contract because no independent corroboration was presented on its behalf.

After considering the foregoing, we find Bisso, L.L.C. failed to prove the value of its oral contract with the Stortzes. Because Bisso, L.L.C. failed to prove the value of the oral contract, the assignments of error raised in its brief lack merit. Accordingly, we do not find the trial court abused its discretion in awarding $11,212.00 to Bisso, L.L.C. for the legal services provided in regards to the arbitration proceeding.

DECREE

Accordingly, the judgment of the trial court awarding attorney’s fees in the amount of $11,212.00 to Bisso, L.L.C. is affirmed. Bisso, L.L.C. is to bear the costs of this appeal.

AFFIRMED

      . Although Bisso, L.L.C. lists three separate assignments of error, the assignments were addressed in globo in the brief and will be addressed as such in this opinion


author: LOLLEY, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee v. Robert Thomas CARTER and Louisiana Farm Bureau Casualty Insurance Company, Defendants-Appellants.
    No. 46,608-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Seabaugh & Joffrion, by Alan T. Sea-baugh, Shreveport, LA, for Appellants.
    Kenneth W. Jones, Jr., Lafayette, LA, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”) and Robert Thomas Carter appeal the judgment of the Shreveport City Court, Parish of Caddo, State of Louisiana, in favor of State Farm Mutual Automobile Insurance Company (“State Farm”) finding Carter and Farm Bureau liable for the automobile accident at issue.

Facts

This case arises out of an automobile accident that took place around 4:30 p.m. on November 21, 2008, on West 70th Street in Shreveport, Louisiana. One vehicle involved in the accident was driven by Robert Carter and insured by Farm Bureau. The other vehicle involved was driven by Lionel Boyer and insured by State Farm. The two drivers involved in the accident tell conflicting versions of what occurred that day, each stating that the other was to blame.

Carter maintains that, prior to the accident, he exited a Valero gas station on West 70th Street in an effort to proceed east. As was necessary, Carter intended to pull across two westbound lanes and the center turning lane before heading east. When he exited the gas station, he claims he saw no traffic in the westbound lanes, so he crossed the lanes and pulled into the center turning lane; there, he waited for a break in the eastbound traffic. While he waited there for several seconds, a car operated by Steven Dennis approached behind him, heading westbound. Dennis stopped behind Carter’s vehicle, waiting for him to turn. Meanwhile, Boyer was traveling in the westbound lane behind Dennis. Instead of stopping like Dennis did, Boyer crossed over into the eastbound lanes, going against the flow of |2traffic, in an effort to get around Carter. Simultaneously, Carter saw a break in traffic in the eastbound lanes and pulled forward. As he did so, the front of Boyer’s vehicle struck the passenger side of Carter’s vehicle.

Boyer tells a different tale. He claims that as he proceeded down the turning lane, Carter left the Valero gas station, crossed the westbound lanes, and entered the turning lane where Boyer was driving. Boyer noticed Carter’s vehicle only moments before the passenger side of his vehicle was struck at a 90-degree angle by the front of Carter’s vehicle. At no time, Boyer states, did he travel in the wrong direction or cross the center line. He claims he remained in the turning lane and had the right of way.

At trial, both parties stipulated to all other issues, leaving only the issue of liability for the trial court to decide. Ultimately, the trial court ruled in favor of Boyer and State Farm, finding Carter fully liable for the accident and, thus, ordering him to pay $6,015.78 with interest. This appeal ensued.

Law and Discussion

As their sole assignment of error, Farm Bureau and Carter claim the trial court erred in allowing the transcript of a recorded phone interview to be read into the record for impeachment purposes, because the proper impeachment procedure was not followed. They claim the trial court based its assessment of liability on the fact that Carter was found to lack credibility because of that impeachment.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the factfinder’s choice between |sthem cannot be manifestly erroneous or clearly wrong. Cole v. State Department of Public Safety and Corrections, 2001-2123 (La.09/04/02), 825 So.2d 1134; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). To reverse a factfinder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact-finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). However, if a court finds that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits. LeBlanc v. Stevenson, 2000-0157 (La.10/17/00), 770 So.2d 766.

In reaching an ultimate decision on an alleged procedural error, the court must consider not only whether the particular ruling constituted error, but also whether the error caused harm or prejudice to the parties. Hesser v. Richardson, 579 So.2d 1136 (La.App. 2d Cir.1991). Unless prejudice resulted, reversal is not warranted. Id. The party alleging error has the burden of showing that the error was prejudicial to his case. In other words, the determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case. Id.

|4At trial in the case sub judice, only Carter and Boyer testified. Dennis, the only nonparty witness, did not appear at trial despite having been subpoenaed. Therefore, the trial court was called to assess the credibility of the parties to decide the case. Carter testified as to his version of the accident, stating that the accident was caused when Boyer entered the eastbound lane heading west in an effort to get around Carter’s vehicle. During cross-examination, counsel for State Farm asked Carter about the events that occurred surrounding the accident. At one point during the cross examination, Carter stated:

The westbound traffic stopped and I started to ease across one, two and three and lane four and I was in four [the turning lane]. Okay. The westbound traffic that was coming off 3132 loop that one vehicle stopped for me ‘cause I was sitting right there into lane number four, [emphasis added]

Carter’s statement, that one vehicle had stopped for him, was contrary to a recorded statement that he had made to Farm Bureau in which he had stated that two vehicles had stopped for him that day. Counsel for State Farm continued (with some punctuation added):

Question: Excuse me. The statement taken by Farm Bureau. Have you looked at a copy of that?
Answer: Yes sir.
Question: Okay. Then you looked at page two I’m sure where you are discussing the accident and you were saying the accident happened I was easing out of the gas station, traffic was not coming up westbound. Traffic was coming eastbound. Maybe one or two cars. I pulled out of the station to let a pickup truck come off of 8132 headed westbound eastbound and another vehicle coming up eastbound and this gentleman — I don’t know his name — I don’t have the police report but he came from behind those two vehicles that were stopped.
| r,Counsel for Farm Bureau: Your Hon- or I am going to object. This is improper impeachment. I don’t know what he’s trying to do with this statement. He has not testified anything differently than was indicated in the statement.
Counsel for State Farm: He actually did[.] [H]e said that there was one vehicle.
⅜ ⅜ ⅝ ⅜ ⅜ ⅜
Counsel for Farm Bureau: And he has not[ — lit is improper impeachment[.] [H]e is[ — ]he is trying to[,] I thinkf,] establish a difference in testimony between his testimony here today and the statement but that question that he just read and the statement was not asked of him here today so it is improper impeachment. It is improper use of a recorded statement.
Court: Okay. I’m going to give him a chance to respond. Yes.
Counsel for State Farm: Thank you Your Honor. Well this gentleman testified that there was only one vehicle that stopped for him and this statement that he gave said two vehicles were stopped and I want to find out which one is accurate and what he was referring to.
Court: Alright.
Counsel for Farm Bureau: To use a statement in impeachment he has got to ask him the same question and get a different answer. The statement! — ]the question that he asked you today is different from the question that asked him on the statement that the way he is trying to use it is improper.
Court: Alright. Overruled.

However, this was not the sole inconsistency in Carter’s testimony before the trial court. Additionally, there was an instance when Carter | ^testified that he had been wearing eyeglasses at the time of the accident, but in his recorded statement to Farm Bureau he had said he was not wearing eyeglasses at the time.

The trial court apparently made note of these inconsistencies in Carter’s testimony, as evidenced in its ruling when it stated:

Based on the aforementioned, the court is compelled to resolve the issue of fault based on a credibility determination of the witnesses’ testimony. At trial, Mr. Carter’s testimony was inconsistent with prior statements he made under oath concerning the accident, and the Court finds it compromised his credibility. Accordingly, the Court accepts the testimony of Mr. Boyer as to the cause of the accident.

Notably, the trial court stated Carter was inconsistent in making “prior statements.” This references more than one statement it found Carter made inconsistently. Other statements besides the statements surrounding the impeachment at issue, including Carter’s discrepancy regarding the wearing of his glasses, also played a part in the trial court’s credibility call. Therefore, whether the single impeachment at issue was handled properly or improperly according to impeachment procedures is irrelevant as it was not the sole factor in the trial court’s credibility determination; it is obvious that the trial court’s credibility call was made based on Carter’s overall testimony and not on the one particular statement at issue. This determination will not be disturbed on appeal as we find the trial court made no manifest error. We find Boyer and State Farm did not bear their burden of showing that if the impeachment was found to have been conducted improperly, this error was prejudicial to their case. After a thorough examination of the record, we find the trial court was reasonable in finding |7Carter lacked credibility and thereby assessing him full liability for the accident.

Conclusion

For the foregoing reasons, the judgment in favor of State Farm Mutual Automobile Insurance Company is affirmed. All costs of this appeal are to be assessed to Louisiana Farm Bureau Casualty Insurance Company and Robert Thomas Carter.

AFFIRMED.


author: STEWART, J.

text:
    Kenneth D. MALONE, Plaintiff-Appellant v. James G. MALONE, Jr., Individually and in his Capacity as Alleged Director and/or Officer of Winnsboro Equipment, Inc., Phyllis Malone, Individually and as Alleged Officer of Winnsboro Equipment, Inc. and Winnsboro Equipment, Inc., Defendants-Appellees. Kenneth D. Malone, Plaintiff-Appellant v. James G. Malone, Jr., et al., Defendants-Appellees. Kenneth D. Malone, Plaintiff-Appellant v. James G. Malone, Jr., et al., Defendants-Appellees.
    Nos. 46,615-CA, 46,616-CA, 46,617-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Crawford & Ogg by Ramsey L. Ogg, Brian E. Crawford, Monroe, LA, for Appellant Kenneth D. Malone.
    Pearson Law Firm by W. Brent Pearson, Alexandria, LA, for Appellees, James G. Malone, Jr. and Phyllis Malone.
    Watson, McMillin & Harrison, Monroe, LA, by W. Brooks Watson, The Faircloth Law Group by Jimmy R. Faircloth, Jr., Leah M. Penny, for Appellee Winnsboro Equipment, Inc.
    Doris E. Malone, In Proper Person.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   STEWART, J.

|TAt issue in this appeal by the plaintiff, Kenneth D. Malone (“Ken”), is the validity of a donation of one share of stock in Winnsboro Equipment, Inc. (“WEI”), a closely held, family-owned corporation that operates as a John Deere franchise dealership. Upon finding the purported donation by Doris Malone to her two sons, Ken and James G. Malone, Jr. (“Greg”), to be invalid, the trial court dissolved a temporary restraining order against WEI and dismissed Ken’s petitions for injunctive relief, writ of quo warranto, and writ of mandamus with prejudice. Ken now appeals. Finding no error in the trial court’s judgment, we affirm.

FACTS

This matter stems from a dispute between brothers Ken and Greg, who are the majority shareholders in WEI. When their father, James G. Malone, Sr., died in 2007, Ken and Greg each owned 849 shares WEI, and their father owned two shares. In accordance with a judgment of possession rendered in Mr. Malone’s succession proceedings on April 13, 2009, Doris Malone, the surviving spouse, was recognized as owner of one share as part of her one-half interest in the community property, and Ken and Greg each received one-half of the other share as legatees. Thereafter, Greg and Ken each owned 849.50 shares, and Doris owned one share.

Sometime in the latter half of 2009, just prior to undergoing surgery, Doris executed a document purporting to donate her one share to Ken and Greg with each receiving a one-half share and each then owning 850 shares. The act of donation, which is not dated, was signed by Doris, Ken, Greg, and two witnesses. It was drawn up in the form of a notarial act but was not [¡.notarized. Though the act of donation states that Doris, contemporaneously with signing the document, delivered the property to Greg and Ken and that they accepted the donation and received the property, there is no evidence that a stock certificate was in fact transferred between them by endorsement and delivery.

Greg, who managed WEI, and Ken, who worked in sales, had different ideas about what to do with the business. Ken wanted to sell. Greg did not. In April 2010, around the time he ceased working at WEI, Ken requested some documents from WEI’s attorney, Gene Cicardo. On April 29, 2010, Cicardo sent a fax to Ken which included the act of donation. Cicar-do wrote on the cover sheet of the fax that the documents needed to be redone because they had not been notarized. Ken did not act on this information.

It appears from the record that Greg already knew that there was a problem affecting the validity of the act of donation. He testified that when he sent the original documents to Cicardo, he found out they were not good. Greg testified that he told Cicardo to wait on doing anything more because Doris came out of surgery okay and because of “the way that things were coming down around the John Deere store.” Greg did not share with Ken his knowledge about the problem with the act of donation.

On November 18, 2010, Ken filed a shareholder derivative action against Greg. Around this same time, Ken received a notice from Greg of an annual shareholders meeting to be held on December 14, 2010. Prior to 13the shareholders meeting, Greg obtained from Doris her “Irrevocable Proxy” allowing him to vote any share held by her.

On December 14, 2010, Greg, acting as secretary-treasurer of WEI, certified the stock register. The register listed outstanding shares from 1987 through April 13, 2009, the date of the judgment of possession when Doris received one share and the other was divided between Greg and Ken. A document from WEI’s books shows that the certificates representing the shares transferred by the judgment of possession were not issued until November 12, 2010; however, the certificates were apparently backdated to April 13, 2009. Greg also prepared a certified list of shareholders documenting he and Ken each owned 849.5 shares and Doris owned one.

The result of the December 14, 2010, shareholders meeting was that Greg was elected president of WEI and his wife, Phyllis, was elected secretary-treasurer. Ken, whom the record indicates may have been vice-president, lost his position as an officer though he remains a member of the board. Thereafter, Ken filed three actions on December 22, 2010.

First, Ken filed a petition for a temporary restraining order and injunctive relief against Greg, Phyllis, and WEI to enjoin them from making executive decisions pertaining to WEI, particularly regarding the alienation or encumbrance of any property. He also sought a judgment declaring himself and Greg owners of 50% of WEI each and declaring the actions taken at the shareholders meeting to be null and void. The trial court granted a temporary restraining order as prayed for in the petition.

|4Second, Ken filed a petition for a writ of quo warranto against Greg, Phyllis, and Doris demanding that they show by what authority they claim to be directors or officers of WEI. Third, Ken filed a petition for a writ of mandamus against Greg and Phyllis seeking to have them recognize the donation by Doris of her share of stock, to have the transfer recorded on the books of WEI and reflected on the certified list of shareholders, and to have new certificates issued.

These three actions were consolidated by agreement of the parties at the start of the hearing on January 6, 2011. The threshold question before the trial court was whether the donation by Doris of her one share of WEI stock to Ken and Greg had been properly confected. The trial court heard testimony regarding this issue and then took the matter under advisement before issuing written reasons for judgment on January 18, 2011. In short, the trial court found that the act of donation was not in the form of an authentic act as required for a donation inter vivos under La. C.C. art. 1541, that it was not in a form provided for donations of certain incorporeal movables under La. C.C. art. 1550, and that it was not in compliance with certain requirements of WEI’s articles of incorporation. The trial court also determined that the “irrevocable proxy” obtained by Greg from Doris could be revoked. In accordance with its written reasons, the trial court rendered a judgment on January 31, 2011, dissolving the temporary restraining order, dismissing with prejudice the three consolidated petitions, and holding the proxy to be revocable. Costs were assessed equally between Ken and Greg. 1 ¡¡The trial court noted in its reasons for judgment that neither brother has “clean hands” in this dispute.

Ken now appeals. He assigns as error the trial court’s findings that the donation was invalid, that the donation had not been completed and accepted because there was no endorsement and delivery of the stock certificate, and that Louisiana’s stock transfer laws apply under the second paragraph of La. C.C. art. 1550. He also assigns as error the trial court’s failure to find that the proxy had no effect and the denial of the claims for injunctive relief and writs of mandamus and quo warranto. Whether the donation was valid as to form is the core issue in these assignments of error.

DISCUSSION

A donation inter vivos is a contract by which the donor divests himself, at present and irrevocably, of a thing in favor of the donee, who accepts it. La. C.C. art. 1468; Thomson v. Thomson, 34,353 (La.App.2d Cir.1/24/01), 778 So.2d 736. As provided by La. C.C. art. 1541, a donation inter vivos shall be made by authentic act. The act of donation at issue was not notarized and is not in the form of an authentic act. Thus, it is not a valid donation under La. C.C. art. 1541.

A share of stock in a corporation is an incorporeal movable. La. C.C. art. 473. Donations of certain incorporeal movables may be made in a form provided by La. C.C. art. 1550, which states:

The donation or the acceptance of a donation of an incorporeal movable of the kind that is evidenced by a certificate, document, instrument, or other writing, and that is transferable by endorsement or delivery, may be made by authentic act or by compliance with the requirements | (¡otherwise applicable to the transfer of that particular kind of incorporeal movable.
In addition, an incorporeal movable that is investment property, as that term is defined in Chapter 9 of the Louisiana Commercial Laws, may also be donated by a writing signed by the donor that evidences donative intent and directs the transfer of the property to the donee or his account or for his benefit. Completion of the transfer to the donee or his account or for his benefit shall constitute acceptance of the donation.

This article is new and was added by Acts, No. 204, § 1, effective January 1, 2009, as part of the revision of the law on donations. Because the act of donation was signed sometime in the latter half of 2009, La. C.C. art. 1550 was in effect and is applicable to determine whether the donation was done in a proper form.

Statutory interpretation is subject to a de novo review on appeal. Harrah’s Bossier City Inv. Co., LLC v. Bridges, 2009-1916 (La.5/11/10), 41 So.3d 438. Discernment of the legislative intent is the goal of statutory interpretation. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294; Solow v. Heard McElroy & Vestal, L.L.P., 44,042 (La.App.2d Cir.4/8/09), 7 So.3d 1269, writ denied, 2009-1035 (La.9/4/09), 17 So.3d 961. When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written with no further interpretation made in search of the legislative intent. La. C.C. art. 9. If the language is susceptible of different meanings, it must be interpreted to have the meaning that best conforms to the purpose of the law. La. C.C. art. 10. Moreover, laws on the same subject matter must be interpreted in reference to each other. La. C.C. art. 13.

_JjThe legislative history of La. C.C. art. 1550 indicates that it was not intended to change the prior law (former C.C. article 1536), which required a notarial act for donations of incorporeal movables such as rents, credits, rights, or actions. Rather, article 1550 was drafted to further provide that donations of incorporeal movables evidenced by a certificate, document, instrument or other writing could be donated by authentic act or as provided in special rules applicable to the particular type of movable. See Louisiana Bill Digest, 2008 Reg. Sess. H.B. 527. Prior to the enactment of La. C.C. art. 1550, jurisprudence held that a donation of shares of stock may be made without the formalities of an authentic act so long as the shares of stock are transferred pursuant to Louisiana’s stock transfer laws. Primeaux v. Libersat, 322 So.2d 147 (La.1975); Champagne v. Champagne, 2007-1078 (La.App.1st Cir.6/27/08), 992 So.2d 1072; Moncrief v. Succession of Armstrong, 2005-1584 (La. App.3d Cir.9/27/06), 939 So.2d 714; Succession of Payne v. Pigott, 459 So.2d 1231 (La.App. 1st Cir.1984); Succession of Hall, 198 So.2d 511 (La.App. 2d Cir.1967), app. denied, 250 La. 974, 200 So.2d 664 (La.1967). We find that La. C.C. art. 1550 codifies this jurisprudential holding.

Ken does not argue that the donation was made in a form approved under the first paragraph of La. C.C. art. 1550. It is clear that it was neither in the form of an authentic act nor in compliance with the requirements applicable to the transfer of shares of stock, La. R.S. 10:8-101 et seq., of the Louisiana Commercial Laws. There was no delivery or indorsement as required under La. R.S. 10:8-301 or 10:8-304 for the transfer of securities. |RAs such, the donation was not completed in a form authorized under the first paragraph of La. C.C. art. 1550.

As to the second paragraph of La. C.C. art. 1550, the legislative history reveals that its purpose was to provide for donations of “investment property” by a document directing the transfer of such property in favor of the donee or for his benefit. See Louisiana Bill Digest, 2008 Reg. Sess. H.B. 527. La. C.C. art. 1550 refers us to the definition of “investment property” in Chapter 9 of the Louisiana Commercial Laws on secured transactions, which states that it is “a security, whether certificated or uncertificated, security entitlement, securities account, commodity contract, or commodity account.” La. R.S. 10:9-102(a)(40). Each of these terms is defined in the Commercial Laws. Based on its review of the definition of “security” set forth at La. R.S. 10:8-102(15), the trial court found the share at issue to be investment property. This finding is not challenged on appeal. Moreover, whether the share at issue is a security, and thereby considered “investment property,” is answered by La. R.S. 10:8-103(a), which states, “A share or similar equity interest issued by a corporation, business trust, joint stock company, or similar entity is a security.” Uniform Commercial Code Comment No. 2 to this provision clarifies that ordinary corporate stock, including shares of closely held corporations, are securities.

Ken argues that the form of the donation satisfied the requirements of the second paragraph of La. C.C. art. 1550 and that the trial court erred | ain finding otherwise. He asserts that the trial court ignored the words “for his benefit” and the fact that the second paragraph provides a form of donation that is “in addition” to that provided in the first paragraph of the article. He also asserts that the proper analysis under the second paragraph is not whether a stock certificate was indorsed or delivered but whether it was transferred for the donee’s benefit. He quotes language from the act of donation stating that Doris does “irrevocably give, grant, alienate, confirm, and donate” her one share of stock to her sons and that she “contemporaneously with the signing” of the act “delivered said property” to them. He also refers to that part of the act which states that he and Greg “do hereby acknowledge to have received from donor the property” and declare their acceptance. Ken argues that this language shows there was completion of the transfer to him for his benefit.

We are not persuaded by Ken’s arguments. In general, any donation can be said to be for the benefit of the donee. However, the words “for his benefit” have a specific meaning under La. C.C. art. 1550. As explained in Comment (b) of the 2008 Revision Comments of article 1550, the words “for his benefit” are intended “to cover situations when the transfer may not be directly to the donee’s account, but would be used to pay something for his benefit, as for example, if the transfer is made to a bank to pay off a child’s debt.” The record does not show that the purported donation was made for Ken’s benefit as intended by La. C.C. art. 1550. Considering the definition of investment property, we find that the second paragraph of article 1550 was intended to facilitate the gratuitous transfer of such | inproperty, which would generally be held in bank or brokerage accounts, by the donor directing in writing that the property be transferred to “the donee or his account or for his benefit” and then by the completion of the transfer.

Even if, as found by the trial court, the writing signed by Doris directed the transfer of the share to Ken and Greg, the transfer was not completed as required by La. C.C. art. 1550. We agree with the trial court that completion of the donation (or transfer) of the WEI share would require compliance with the stock transfer law. Regardless of the language used in the writing signed by the parties, the record shows there was no delivery or in-dorsement as required by La. R.S. 10:8-301 or R.S. 10:8-804 for transfer of the one share.

Under Ken’s interpretation, any signed writing that expresses donative intent and states there has been delivery and acceptance would suffice to constitute a donation of a security or other investment property even though such an act would lack the indicia of reliability provided by either an authentic act or by compliance with requirements for completing transfers of the specific investment properties. Nothing in the legislative history or the article indicates that it was intended to allow a writing that is not in the form of an authentic act to effect a transfer of “investment property” without fulfillment of the specific requirements to complete the transfer of such property.

From our review of the record we find no error of law in the trial court’s interpretation of La. C.C. art. 1550 and no manifest error in its factual findings regarding the invalidity of the donation. The record shows |nthat both Ken and Greg knew there were questions as to whether the donation had been properly done. However, both acted for months as though the donation was proper. Neither took action to investigate the validity of the donation or to complete the transfer of the share. Also, Doris testified that in October 2010 she signed a copy of the donation that was marked “void” after learning there had been a problem with the donation. She did not seek to complete the donation or to properly confect a new act of donation. As of the time of trial she still owned the one share of WEI.

We agree with the trial court’s finding that the donation was invalid. It was not in the form of an authentic act or in compliance with La. C.C. art. 1550. Because the donation was invalid as to form, we need not address the alleged lack of compliance with WEI’s articles of incorporation as they pertain to the transfer of shares. The petitions for injunctive relief, writ of mandamus, and writ of quo warran-to were also properly denied. These claims were based upon the assertions that the donation was valid, that the proxy given by Doris to Greg and the actions taken on December 14, 2010, were invalid, and that Ken owned fifty percent of the shares in WEI. In the absence of a valid donation, Greg properly obtained Doris’s proxy and had the majority shares at the December 14, 2010, shareholder’s meeting. Because the donation was determined to be invalid, the trial court correctly dissolved the temporary restraining order and denied the request for injunctive relief and the petitions for writ of mandamus and quo warranto. These claims are not supported by the evidence in the record.

| ^CONCLUSION

For the reasons explained, we affirm the judgment of the trial court. Costs of this appeal are assessed against the appellant, Kenneth D. Malone.

AFFIRMED.

      . See La. R.S. 10:8-102(15) for security, R.S. 10:8-102(4) and (18) for certificated security and uncertificated security; R.S. 10:8-102(17) for security entitlement, R.S. 10:8-501 for securities account, and R.S. 10:9-102(14) and (15) for commodity account and commodity contract.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Richard Stephenson FATHEREE, II, Appellant.
    No. 46,686-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      J. Spencer Hays, Bossier City, LA, for Appellant.

      J. Schuyler Marvin, District Attorney, John M. Lawrence, R. Lane Pittard, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   CARAWAY, J.

| Richard Stephenson Fatheree, II, pled guilty to an amended charge of indecent behavior with a juvenile and was sentenced to seven years at hard labor, four years suspended, and five years’ supervised probation upon his release. Fatheree appeals raising three sentencing complaints. We affirm.

Facts

On October 27, 2009, the state filed a bill of information charging Fatheree with one count of molestation of a juvenile and one count of carnal knowledge of a juvenile for conduct occurring between May 1, 2009 and July 29, 2009, between Fatheree and T.Z., a fifteen-year-old minor (date of birth November 30, 1993). Fatheree initially entered not guilty pleas to both counts.

On September 27, 2010, Fatheree withdrew his not guilty plea and entered a plea of guilty to the amended charge of indecent behavior with a juvenile, a violation of La. R.S. 14:81. In exchange, the state agreed to nolle prosequi the carnal knowledge charge. The state supplied the following factual basis for the plea:

Mr. Fatheree’s date of birth is September 16, 1968. And during a period of time between February of 2009 and July of 2009 he began a relationship that— with an underage female whose date of birth is November 3 of 1993. And this relationship included — began with text-ing and communication and — and ended with inappropriate touching, including specifically he had placed his hand on her body and on her legs, kissed her using his tongue as part of that, and that these events occurred within the confines of Bossier Parish, Louisiana. The intent in this was to arouse or gratify the sexual desires of either the defendant or the minor, T.Z., in this matter.

LThe court accepted Fatheree’s plea and ordered a presentence investigation report (PSI). According to the PSI, on July 29, 2009, T.Z.’s parents contacted the Bossier Parish Sheriffs Office and reported that their 15-year-old daughter had been the victim of inappropriate conduct, including kissing, by her martial arts instructor, Fatheree. T.Z. told deputies that the defendant had given her jewelry and professed his love for and desire to marry her. On one occasion, T.Z. met Fatheree at a shopping mall under the auspices that her class was going to a movie. When T.Z.’s father dropped her off, the defendant told him that no other students had been able to come. Another student spotted Father-ee and T.Z. kissing while they sat in defendant’s vehicle parked in the mall garage. T.Z. claimed she was afraid to say anything earlier out of concern that it might affect her standing in Fatheree’s class. When questioned, defendant admitted kissing the victim and texting her inappropriately. Fatheree was initially arrested on the charge of molestation of a juvenile.

Several months later, however, T.Z., her mother, and Suzanne Craig, a mental health counselor, contacted the detectives and informed them that Fatheree had sex with T.Z. on the night they were spotted in the mall garage. On the basis of this information, the defendant was also charged with carnal knowledge of a juvenile.

At sentencing, the trial judge reviewed the various mitigating and aggravating factors he considered before sentencing Fath-eree. As mitigating factors, the court noted that Fatheree was 42 years old and a true first-time felony offender. The court considered that Fatheree had a small | schild and elderly parents for whom his incarceration would cause a hardship. The court also indicated that it had received several letters on Fatheree’s behalf.

As aggravating factors, the court noted the vast difference between the defendant’s and the victim’s ages and considered that Fatheree’s use of his position as the victim’s martial arts instructor rendered his conduct more akin to molestation of a juvenile which is punishable by not less than five nor more than 25 years’ imprisonment at hard labor. While the court recognized that there remained a dispute as to whether the defendant actually engaged in sexual intercourse with the victim, the court considered that Craig, a mental health expert, was of the opinion that sexual intercourse had occurred. The court also considered Craig’s mental health evaluation which was submitted to the court by letter and attached to the PSI. From the information provided by Craig, the court identified some of the problems that had been experienced by the victim, including anxiety, conduct problems, depression, poor concentration, agitation, irritability, panic attacks, fears, sexual dysfunction, sleep disturbance and nightmares, flashbacks, sexuality confusion, lack of trust, shame and fear. Without expressing an opinion as to whether intercourse had occurred, the trial court concluded that at a minimum Fatheree had downplayed his conduct as a one-time mistake. In light of all these factors, the court sentenced the defendant to seven years’ imprisonment at hard labor, four years suspended, and five years’ supervised probation upon his release. Father-ee objected to the sentence on the grounds that he was being punished for a crime, carnal | ¿knowledge of a juvenile, for which he had not been convicted. The court declined to modify the sentence.

On February 15, 2011, Fatheree filed a motion to reconsider arguing constitutional excessiveness in light of his work and family history and lack of prior criminal conduct. The motion was denied without a hearing on February 16, 2011. The instant appeal followed.

Discussion

On appeal, Fatheree argues that in light of his lack of a criminal history, the imposition of a maximum sentence is excessive and that the trial court should not have considered the report by the mental health expert which was used to bolster the victim’s uncorroborated allegation that the defendant had sex with her.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La. App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his | r,discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La. App.2d Cir.1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792, State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 04-0597 (La.9/24/04), 882 So.2d 1165.

Likewise, a substantial advantage obtained by means of a plea bargain, such as a reduction of the charge where the evidence shows the offender is guilty of the most serious offense originally charged, is a Illegitimate consideration in sentencing. State v. Burgess, 42,310 (La. App.2d Cir.9/12/07), 965 So.2d 621; State v. Ross, 35,552 (La.App.2d Cir.2/27/02), 811 So.2d 176.

The sources of information upon which a trial court may rely at sentencing are varied and may include evidence usually excluded from the courtroom at trial, including hearsay and arrest and conviction records. State v. Cozzetto, 07-2031 (La.2/15/08),- 974 So.2d 665. Because the scope of information available to the sentencing court is so broad, a defendant has the due process right to rebut prejudi-cially false or misleading information that could adversely affect his sentence. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218; State v. Monk, 42,067 (La.App.2d Cir.5/2/07), 956 So.2d 185.

At the time the offense was committed, the statute defining indecent behavior with a juvenile provided for a term of incarceration of no more than seven years at hard labor or a fine of not more than $5,000, or both. La. R.S. 14:81(H)(1). Although Fatheree was exposed to the maximum period of incarceration by the court’s imposition of a seven-year sentence, all but three years of the jail time was suspended. Nor did the court impose the maximum $5,000 fine permitted by the statute. Thus, Fatheree’s argument that he received the maximum possible sentence is in error.

Considering the circumstances surrounding the conviction, we fail to find the sentence to be facially excessive. Even without consideration of whether the facts supported the crime of carnal knowledge, they are nonetheless adequate to support a molestation of a juvenile conviction by | ssomeone in a position of control or supervision over the juvenile under La. R.S. 14:81.2, punishable by no less than five nor more than 20 years imprisonment and a fine of not more than $10,000. Accordingly, given the substantial benefit that Fath-eree gained as a result of his plea agreement through reduction of his sentencing exposure, the sentence imposed is neither grossly out of proportion to the seriousness of the offense nor a purposeless and needless infliction of pain and suffering.

Additionally, the trial court did not err in considering the report of the victim’s mental health counselor in sentencing Fatheree. As noted above, the sources of information from which a sentencing court may draw are extensive and are not limited by the traditional rules of evidence. The impact of the defendant’s conduct on the victim is a relevant factor in sentencing as is the possibility that his crime against her was more serious than suggested by the crime of conviction. Moreover, Fatheree had ample opportunity to rebut the information presented to the court. For the foregoing reasons, this assignment is without merit.

CONVICTION AND SENTENCE AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Jeremy K. GARDNER, Appellant.
    No. 46,688-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Johnny R. Boothe, District Attorney, Penny W. Douciere, John McIntosh Lancaster, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and PEATROSS, JJ.
   STEWART, J.

11 After being indicted for aggravated rape, the defendant, Jeremy K. Gardner, accepted a plea agreement and pled guilty to the crime of aggravated incest. The trial court imposed a sentence of 12 years at hard labor, with credit for time served. The defendant now asserts that his sentence is excessive. Finding no abuse of discretion by the trial court, we affirm.

FACTS

On August 30, 2010, the defendant pled guilty pursuant to a plea agreement reducing a charge of aggravated rape to that of aggravated incest, a violation of La. R.S. 14:78.1. The factual basis for the defendant’s guilty plea was that on July 5, 2009, the 20-year-old defendant had sexual intercourse with his 12-year-old half-sister. Even though the victim was under the age of 13, the plea agreement provided that the sentence would be imposed in accordance with La. R.S. 14:78.1(D)(1).

The defendant appeared for sentencing on October 5, 2010. The trial judge noted that he had reviewed the presentence investigation report, which included both positive and negative information, and letters submitted on the defendant’s behalf. The trial judge recognized that the defendant received two benefits by virtue of the plea agreement. First, he was spared the possibility of the mandatory life sentence for aggravated rape. Second, he did not face the harsher sentence provided by La. R.S. 14:78.1(D)(2), which applies where the victim is under the age of 13 and the offender is age 17 or older.

|2The trial judge also recognized that this was the defendant’s first offense. However, the trial judge noted a prior arrest on November 26, 2008, for contributing to the delinquency of a minor, when a deputy came upon the defendant with two girls, ages 10 and 12, with him in his car at 1:15 a.m., without their parents’ approval.

In reviewing the defendant’s social history, the trial judge noted that he was a father of two young boys and recognized the hardship that would result to these children from the defendant’s imprisonment. The defendant’s young age, the lack of any indication of drug or alcohol abuse, the fact that he admitted his involvement in the offense, and the letters submitted on his behalf were considered as additional mitigating factors. Aggravating factors noted by the trial judge included the substantial benefit received from the plea agreement, the vulnerability of the victim who was only 12 years of age, the fact that the defendant used his position as her older brother to commit the offense, and the prior incident involving two young girls.

After considering all of the above, the trial judge sentenced the defendant to 12 years at hard labor with credit for time served. Believing that the defendant would likely commit another crime involving young girls, the trial judge found him to be in need of correctional treatment in a custodial environment and found that a lesser sentence would deprecate the seriousness of the crime.

On October 27, 2010, the defendant filed a motion to reconsider the sentence, which he alleged to be excessive. He asserted that the trial judge [3did not give adequate weight to the hardship on his family, his young age, the lack of any prior felony conviction, and his social and work history. He also claimed the trial judge did not tailor the sentence to fit the crime. The trial judge denied the motion on March 20, 2011. This appeal followed.

DISCUSSION

In this appeal, the defendant reiterates that his sentence is harsh under the circumstances presented. He points to his lack of a criminal record or history of drug and alcohol abuse, his young age, his two small children who will no longer have his help, and the letters seeking leniency on his behalf as factors supporting a lesser sentence. He also notes that the victim’s mother had reported to the court her belief that a 10-year sentence would be fair. The defendant complains that the trial court placed too much emphasis on the arrest for contributing to the delinquency of a minor for which no charge was pursued.

In determining whether a sentence is excessive, the reviewing court uses a two-prong process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating and mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56. Important elements which should be considered include the defendant’s personal history (age, family ties, marital status, health, employment record), his criminal history, the 14seriousness of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence will not be set aside as excessive. Id., citing State v. Square, 433 So.2d 104 (La.1983). Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion to impose even the maximum sentence. Id.; State v. Boswell, 46,181 (La. App.2d Cir.4/13/11), 62 So.3d 874.

As provided by the plea agreement, the trial court sentenced the defendant under La. R.S. 14:78.1(D)(1), which states:

A person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both.

|fiThe trial judge imposed a midrange sentence of 12 years under this provision. In doing so, the trial judge took into account all those factors pointed out by the defendant in his brief and gave adequate consideration to the sentencing guidelines provided in La. C. Cr. P. art. 894.1. Specifically, the trial judge noted the defendant’s young age, the fact that this was his first offense, and the potential hardship on the defendant’s children and their mother due to his imprisonment. However, the trial judge recognized that the defendant had exhibited inappropriate behavior with young girls other than in this instance and found it likely that he would commit another offense involving a young girl if not incarcerated. We find it appropriate for the trial court to have taken into account the prior arrest for contributing to the delinquency of a juvenile as that incident also involved two young girls, and we do not find that the trial judge gave the arrest undue consideration at sentencing.

The trial judge explained that he took the victim’s mother’s recommendation for a 10-year sentence into consideration and imposed a shorter sentence than he first intended. Moreover, the plea agreement gave the defendant a significant reduction in potential exposure to confinement. He avoided the possibility of a mandatory life sentence if convicted of aggravated rape. Even though the victim was under the age of 13 when the offense occurred and the sentencing provisions of La. R.S. 14:78.1(D)(2) were applicable, the plea agreement allowed the defendant to avoid possible imprisonment at hard labor of not less than 25 years nor more than 99 years, IfiPlus electronic monitoring upon his release for the rest of his natural life as provided by La. R.S. 14:78.1(D)(3).

The defendant’s 12-year hard labor sentence under the facts of this case is neither grossly disproportionate to the severity of the offense nor shocking to the sense of justice. We find no abuse of discretion by the trial court in imposing this sentence that falls within the statutory limits.

CONCLUSION

For the reasons stated, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Rondricus SMITH, Appellant.
    No. 46,671-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.
    Louisiana Appellate Project, Monroe, LA, by Peggy J. Sullivan, for Appellant.

      J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus Patillo, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS & MOORE, JJ.
   PEATROSS, J.

|, Defendant, Rondricus Smith, pled guilty to possession of a Schedule II CDS, cocaine, with the intent to distribute, in violation of La. R.S. 40:967. Pursuant to a plea agreement, he was sentenced to serve five years’ imprisonment at hard labor, three years suspended, with five years’ active supervised probation upon release. Defendant appeals, arguing that his sentence did not comply with the sentencing portion of the plea agreement. For the reasons stated herein, Defendant’s sentence is vacated and the matter is remanded to the trial court for resentencing in accordance with the terms of the plea agreement.

FACTS

On June 24, 2010, Defendant attempted to sell crack cocaine to an undercover agent. The agent notified an officer who was patrolling the area, but Defendant fled when he noticed the patrol unit. The officers pursued Defendant on foot; and, during the pursuit, they observed Defendant drop a medicine bottle on the ground. The officers found three plastic baggies of rock cocaine inside the medicine bottle. On July 21, 2010, Defendant was charged by bill of information with possession of Schedule II, CDS, namely, cocaine, with the intent to distribute in violation of La. R.S. 40:967(A)(1).

On November 15, 2010, Defendant pled guilty to the charge. In exchange for his guilty plea, the State recommended to the trial judge that there be an eight-year sentencing cap and that any sentence the judge would impose for this conviction would run concurrent with any other sentence he would receive under another docket number, specifically docket 12number 77,507. Defense counsel explained the plea agreement to the trial court prior to the taking of the plea:

Defense counsel: Your Honor, Ben Cor-mier on behalf of Mr. Smith in both matters. Your Honor, we do have a resolution reached in this matter. It’s my understanding as to the new matter that my client would be allowed to plead guilty with the sentence to be determined by the court with an eight year cap that would run concurrent with the five years he’s backing up, whatever the court would sentence him in that matter.
The Court: All right. So Mr. Smith, if you will raise your right hand please.

After Defendant was properly Boykin-ized and pled guilty to the charge of possession with intent to distribute cocaine, defense counsel reiterated that the agreement was conditioned on Defendant’s sentence on the current charge (docket number 82,186) being ordered to run concurrent with whatever sentence the court would impose under docket number 77,507:

Defense counsel: And your Honor, I’d just like the record to reflect that 82,186, whatever sentence the court does impose would run concurrent with 77,507.
The Court: I understand that was part of the plea agreement.

The trial judge then ordered a presentence investigation (“PSI”) report.

At sentencing, the judge reviewed the PSI report, which indicated that, despite Defendant’s youthful age, he was a second-felony offender with a previous conviction for possession of cocaine in May 2008. The judge further noted that Defendant was arrested for the instant crime while | she was still on probation for the 2008 conviction. Considering that factor along with the other guidelines outlined in La. C. Cr. P. art. 894.1, the judge found that any lesser sentence than five years at hard labor, with three years suspended, and active supervised probation for five years upon release, would deprecate the seriousness of the offense. The judge did not, however, specify whether Defendant’s sentence would run consecutive or concurrent to his sentence imposed under docket number 77,507. This appeal by Defendant ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred in failing to comply with the plea agreement entered at the time of Mr. Smith’s plea.

The defense argues that the trial judge failed to adhere to the terms of the plea agreement. Specifically, the trial court failed to designate that Defendant’s sentence is to run concurrent with any other sentence he would receive as a result of his probation being revoked in docket number 77,507. Defense further acknowledges that, while a sentence imposed in accordance with a plea agreement is not subject to review on appeal, the sentence the trial judge imposed did not fully comport with the terms of the plea agreement.

The State concedes that the intended plea agreement was to result in concurrent sentences for Defendant.

La. C. Cr. P. art. 883, concurrent and consecutive sentences, provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all |4be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

In the case sub judice, because Defendant’s conviction in 2008 and the instant conviction in 2010 were not part of the same transaction, occurrence or parts of a common scheme, the statute mandates that, unless noted by the judge, the sentences are to be served consecutive to one another. La. C. Cr. P. art. 883. Thus, without the judge specifically ordering the sentences to run concurrent to one another, the sentences would run consecutively and the conditions of the plea agreement would not be fulfilled. The sentence must, therefore, be vacated and the matter remanded to the trial court for resentencing in accordance with the terms of the plea agreement.

ERROR PATENT

Defendant pled guilty to possession of a Schedule II, CDS, cocaine, with the intent to distribute. This crime is punishable by a term of imprisonment for not less than two years nor more than 30 years, with the first two years without the benefit of parole, probation or suspension of sentence. La. R.S. 40:967(B)(4)(b). The trial judge failed to designate Defendant’s first two years of his sentence to be served without the benefit of parole, probation or suspension of sentence. When a district court fails to order service of sentence without benefits in a case in which a determinate time period to be so served is mandated by the statute of conviction, the sentence automatically will be served without benefits for the required time |fiperiod. La. R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790.

DECREE

For the foregoing reasons, the sentence of Defendant, Rondricus Smith, is vacated and the matter remanded for resentencing in accordance with the terms of the plea agreement.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . On November 15, 2010, Defendant was present in court on two matters, docket number 77,507 for a probation revocation hearing, and docket number 82,186, the current charge.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: SAUNDERS, Judge.

text:
    Nancy ROBINSON v. CALCASIEU PARISH SCHOOL BOARD.
    No. 11-615.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Christopher M. Trahan, Raggio, Cappel, etc., Lake Charles, LA, for Defendant/Appellant, Calcasieu Parish School Board.
    Marcus Miller Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Ap-pellee, Nancy Robinson.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

I,This is a workers’ compensation case wherein the claimant contended that the employer’s termination of her workers’ compensation benefits was unwarranted. Claimant, in the course and scope of her work, was attacked by a student, who struck her in the head with a roasting pan. As a result of the attack, claimant contends that she suffered both physical and mental injuries.

After receiving benefits for a period of time, based on medical evidence from two physicians that claimant could return to work without restrictions, the employer terminated workers’ compensation benefits. Claimant was also treated by various other physicians who opined that she could return, but with restrictions. Claimant was never offered a job by the employer that adhered to those restrictions.

The workers’ compensation judge (WCJ) found that claimant had a preexisting condition due to her being subjected to domestic abuse some years prior and that the incident with the student had exacerbated that condition. It awarded claimant workers’ compensation benefits, but did not award her penalties and attorney’s fees.

Both the employer and claimant assign errors. As an ancillary matter, claimant requests attorney’s fees for work done on this appeal. We affirm the WCJ’s judgment in its entirety and deny claimant attorney’s fees for work done on appeal.

FACTS AND PROCEDURAL HISTORY:

Claimant, Nancy Robinson (Ms. Robinson), is a tenured teacher who was employed by the Calcasieu Parish School Board (CPSB) since 1977. On December 1, 2008, Ms. Robinson was an acting principal at Pearl Watson Elementary School in Lake Charles. She was injured on that date when struck on | ?the forehead with a pot wielded by an emotionally disturbed student. Both Ms. Robinson and the CPSB stipulated to the work accident.

Ms. Robinson received emergency room care on the date of the injury. Thereafter, she was treated by Dr. Carolyn Hutchinson, a family practitioner, for her physical and mental injuries. After treating Ms. Robinson, Dr. Hutchinson recommended that she be evaluated by Dr. Reynard Odenheimer, a neurologist. Dr. Oden-heimer suggested that Ms. Robinson undergo several tests and opined that she should not return to work until those tests were performed. Dr. Hutchinson disagreed with Dr. Odenheimer regarding the necessity of the tests and opined that Ms. Robinson could return to work, ideally at a new location with limited student contact.

Ms. Robinson was also treated by Lloyd Kelley, a social worker, for her mental injuries. Mr. Kelley opined that Ms. Robinson could return to work in an administrative position with limited disciplinary function. Ms. Robinson was also evaluated, at the CPSB’s request, by Dr. Leonard Hershkowitz, a neurologist, and Dr. Robert Davis, a neuropsychologist. Both Drs. opined that Ms. Robinson could return to work. Dr. Davis also noted clears signs of symptom magnification or exaggeration. Finally, Ms. Robinson was treated by Dr. Joseph Sesta, a neuropsychologist of her choice. Dr. Sesta opined that Ms. Robinson could return to work given that the work had limited contact with students.

The CPSB paid Ms. Robinson weekly workers’ compensation benefits until August 18, 2009. On that date, the CPSB ceased her wage benefits, but continued to pay her medical expenses.

Ms. Robinson filed a disputed claim for compensation on September 8, 2009. The CPSB answered on September 14, 2009.

Is A trial was held on October 20, 2010. After taking the matter under advisement, on March 10, 2011, the WCJ ruled that the CPSB improperly terminated payment of weekly benefits because the medical evidence was such that Ms. Robinson could return to work with restrictions but that the CPSB failed to offer her a job fitting those restrictions. The WCJ also denied penalties and attorney’s fees holding that the CPSB’s decision was based on medical evidence. The CPSB appealed, alleging two assignments of error. Ms. Robinson responded, alleged an assignment of error, and asked for attorney’s fees for work done on appeal.

ASSIGNMENTS OF ERROR CPSB:

1. The WCJ failed to apply the heightened burden of proof required by La.R.S. 23:1021(8)(c) for a claimed mental illness caused by physical injury-
2. The WCJ committed manifest error in apparently concluding that Ms. Robinson proved she was suffering from a “disability” so as to be entitled to weekly workers’ compensation benefits.

ASSIGNMENT OF ERROR ROBINSON:

1. The WCJ erred in failing to award Robinson penalties and attorney’s fees given the arbitrary and capricious termination of indemnity benefits on August 18, 2009, and the employer’s unreasonable denial of the request for the cervical MRI.

ASSIGNMENT OF ERROR CPSB NUMBER ONE:

The CPSB, in its first assignment of error, alleges that the WCJ failed to apply the heightened burden of proof required by La.R.S. 23:1021(8)(c) for a claimed mental illness caused by physical injury. We do not agree.

This assignment of error alleges that the WCJ committed an erroneous application of the law, i.e. an error of law, which is subject to a de novo review. Miller v. Blacktype Farms, 06-1202 (La.App. 3 Cir. 3/7/07), 952 So.2d 867.

|4The CPSB does not argue that the WCJ used the incorrect burden of proof. Rather, its sole argument is that the WCJ, in her reasons for ruling, did not “ever address the issue of whether Ms. Robinson had proven her case by ‘clear and convincing evidence.’ ”

The signed judgment in the case before us simply states, “the employer improperly terminated Nancy Robinson’s worker’s [sic] compensation indemnity benefits.” There is no evidence in this judgment or anywhere in the record that the WCJ used the incorrect burden of proof.

Moreover, this court is not aware of, nor has the CPSB directed our attention towards, any requirement that a lower court specifically reference what burden of proof it required in order to reach its determination. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR CPSB NUMBER TWO:

In its final assignment of error the CPSB asserts that the WCJ committed manifest error in concluding that Ms. Robinson proved she was suffering from a disability so as to be entitled to weekly workers’ compensation benefits. This assertion is without credence.

Whether an employee is totally and permanently disabled is a question of fact subject to the manifest error, clearly wrong standard of review. Landry v. City of Scott, 10-47 (La.App. 3 Cir. 6/2/10), 40 So.3d 428.

After a thorough review of the record, we find ample evidence to support the WCJ’s conclusion that Ms. Robinson is entitled to workers’ compensation benefits. The WCJ found that Ms. Robinson was able to return to work with restrictions and that she was not offered any employment in a capacity that met those restrictions. Dr. Hutchinson initially treated Ms. Robinson. Dr. Hutchinson, felt that Ms. |fiRobinson could return to work, “at another location, ideally with limited student contract.”

Thereafter, upon referral by Dr. Hutchinson, Ms. Robinson was seen by Dr. Odenheimer. He recommended that Ms. Robinson undergo several tests and that she should not return to work absent the performance of those tests. Many of those tests where not approved by the CPSB based on the recommendation of Dr. Hutchinson. Thus, Dr. Odenheimer has not released Ms. Robinson to return to work to date.

Thereafter, Dr. Sesta became Ms. Robinson’s treating physician and opined that the stipulated to work-related accident exacerbated Ms. Robinson’s preexisting condition. Dr. Sesta stated that Ms. Robinson could return to work with the caveat that her contact with students be restricted.

Finally, Mr. Kelley saw Ms. Robinson. He recommended that she return to work with limited contact with students, preferably in an administrative position with no disciplinary role.

The CPSB did not offer Ms. Robinson any position that took these recommendations into consideration. Rather, it simply told Ms. Robinson to apply for teaching positions.

Given this evidence in the record, we find the WCJ’s determination that Ms. Robinson is entitled to workers’ compensation benefits is reasonable. Accordingly, we affirm the WCJ’s judgment.

We note that the assignment of error questions Ms. Robinson’s entitlement to weekly workers’ compensation benefits and does not address which type of workers’ compensation benefits, i.e. supplemental earnings benefits versus other types of benefits, to which Ms. Robinson is entitled. As such, the opinion is silent on this matter.

| ASSIGNMENT OF ERROR MS. ROBINSON NUMBER ONE:

Ms. Robinson contends that the WCJ erred in failing to award her penalties and attorney’s fees given the arbitrary and capricious termination of indemnity benefits on August 18, 2009, and the employer’s unreasonable denial of the request for the cervical MRI. We find no merit to this contention.

A WCJ’s has great discretion in choosing whether to award penalties and attorney’s fees. Gradney v. Louisiana Commercial Laundry, 09-1465 (La.App. 8 Cir. 5/12/10), 38 So.3d 1115. This determination is not to be disturbed absent manifest error. Id.

Here, the WCJ chose not to award Ms. Robinson penalties or attorney’s fees. It denied them because the CPSB terminated Ms. Robinson’s benefits based upon medical evidence from Dr. Davis, who opined that Ms. Robinson could return to work with no restrictions. Dr. Davis found no evidence of a severe, disabling depressive or anxiety disorder and also noted clear signs of symptom magnification or exaggeration. Given the great discretion given to the WCJ and the solid basis for its determination, we find no error by the WCJ in denying penalties and attorney’s fees.

ANCILLARY MATTER:

Ms. Robinson asked this court for attorney’s fees for work done on this appeal. We deny this request.

As a general rule, attorney fees are not allowed in Louisiana unless they are authorized by statute or provided for by contract. Sharbono v. Steve Lang & Son Loggers, 97-0110, p. 7 (La.7/1/97), 696 So.2d 1382, 1386. An award of attorney fees is a type of penalty imposed not to make the injured party whole, but rather to discourage a particular activity on the part of the opposing party. Id. Awards of attorney fees in workers’ compensation cases are essentially penal in nature, and are intended to deter indifference and undesirable conduct by employers and insurers toward injured employees. J.E. Merit Constructors, Inc. v. Hickman, 00-0943, p. 5 (La.1/17/01), 776 So.2d 435, 438; Williams v. Rush Masonry, Inc., 98-2271, p. 8-9 (La.6/29/99), 737 So.2d 41, 46; Sharbono at p. 7, 696 So.2d at 1386. Although the benefits in the Workers’ Compensation Act are to be liberally construed, penal statutes are to be strictly construed. Williams at p. 9, 737 So.2d at 46.

Langley v. Petro Star Corp. of La., 01-198, pp. 3-4 (La.6/29/01), 792 So.2d 721, 723.

“When an award for - attorney’s fees is granted at a lower court level, the recipient of those fees is entitled to additional fees for work done on appeal. This keeps the appellate judgment consistent with the underlying judgment.” McFadden v. Import One, Inc., 10-952, p. 16 (La.App. 3 Cir. 2/9/11), 56 So.3d 1212, 1223 (citing Wilczewski v. Brookshire Grocery Store, 08-718, p. 18 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied, 09-456 (La.4/13/09), 5 So.3d 170.)

Here, the WCJ found that the CPSB reasonably controverted Ms. Robinson’s disputed claim for workers’ compensation under La.R.S. 23:1201(F)(2). We upheld this discretionary finding in Assignment of Error Robinson Number One above. Thus, while Ms. Robinson’s attorney has performed additional work on appeal, we are not authorized by any applicable statute or contract to award attorney’s fees, nor are attorney’s fees necessary in order to be consistent with the judgment below. Accordingly, we deny Ms. Robinson’s request for attorney’s fees for work done on appeal.

CONCLUSION:

The Calcasieu Parish School Board raises two assignments of error. It contends that the WCJ failed to apply the heightened burden of proof required by La.R.S. 23:1021(8)(c), for a claimed mental illness caused by physical injury and that the WCJ committed manifest error in apparently concluding that Nancy ^Robinson proved she was suffering from a “disability” so as to be entitled to weekly workers’ compensation benefits. We found no merit to these assignments.

Further, Nancy Robinson raises one assignment of error and one ancillary matter! She contends that the WCJ erred in failing to award her penalties and attorney’s fees given the arbitrary and capricious termination of indemnity benefits on August 18, 2009, and the Calcasieu Parish School Board’s unreasonable denial of the request for the cervical MRI and that she is also entitled to attorney’s fees for work done on appeal. Again, we found no credence to these arguments.

Accordingly, we affirm the WCJ’s judgment in its entirety. Each party is to pay its own costs for these proceedings.

AFFIRMED.