author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Jamie FRANCISCO.
    No. 10-881.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Angelo J. Piazza, III, Marksville, LA, for Defendant/Appellant, Jamie Francisco.
    Charles A. Riddle, III, District Attorney, Twelfth Judicial District, Anthony F. Salario, Assistant District Attorney, Marksville, LA, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|,In this criminal case, Defendant, Jamie Francisco, appeals his second degree battery conviction and sentence, alleging insufficiency of the evidence and excessiveness of the sentence. For the following reasons, we affirm both Defendant’s conviction and his sentence.

FACTS AND PROCEDURAL HISTORY

On June 26, 2009, Defendant physically assaulted his girlfriend, Melissa Frugé (Melissa). As a result of the assault, Melissa was bruised about her body and suffered a broken rib. She was also rendered unconscious for a brief period of time.

On August II, 2009, Defendant was charged by bill of information with second degree battery, a violation of La.R.S. 14:34.1. Following a bench trial, Defendant was found guilty as charged on April 13, 2010, and was sentenced on April 27, 2010, to five years at hard labor with credit for time served. Defendant filed a pro se motion to reconsider sentence, which was denied without a hearing on May 18, 2010.

Defendant is now before this court on appeal, asserting that there was insufficient evidence to support his conviction and that his sentence is excessive. Defendant has also requested an error patent review of his case regarding any irregularities that represent a constitutional violation of his. rights to a fair trial and sentence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

INSUFFICIENCY OF THE EVIDENCE CLAIM

By this assignment of error, Defendant argues that the trial court committed | ^reversible error when it convicted him of second degree battery with insufficient evidence. Defendant also maintains that the trial court erred in denying his motion for a new trial and for reconsideration of his sentence.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. v. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

A “[bjattery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” La.R.S. 14:33. Second degree battery is defined in La.R.S. 14:34.1(A) as “a battery when the offender intentionally inflicts serious bodily injury[.j” Pursuant to La.R.S. 14:34.1(B), serious bodily injury “involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.” As noted by this court in State v. Robinson, 549 So.2d 1282, 1284-85 (La.App. 3 Cir.1989):

|sTo convict a person of second-degree battery, the State must prove the following elements beyond a reasonable doubt: (1) the intentional use of force or violence upon the person of another; (2) without the consent of the victim; and, (3) when the offender has specific intent to inflict serious bodily injury. State v. Fuller, 414 So.2d 306 (La.1982). Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). Moreover, specific intent is a state of mind which need not be proven as a fact, but may be inferred from the circumstances of the transaction and actions of the defendant. State v. Fuller, supra.

On appeal, Defendant contends that no reasonable trier of fact could conclude he is guilty of second degree battery beyond a reasonable doubt considering the “scant” evidence at trial. Defendant complains of the following “inconsistencies and acquittal evidence:”

1. Melissa’s abuse of the legal process against Defendant;
2. Melissa told Defendant of her whereabouts on the morning of the offense;
3. Melissa engaged in a love-hate relationship with Defendant; and,
4. Melissa’s delay in seeking treatment for her injuries until the next day.

Defendant concludes that Melissa was unreliable, untruthful, and manipulative. Additionally, Defendant maintains that letters from Melissa to Defendant during his incarceration clearly define her motive in fabricating the offense, i.e., if she could not have Defendant, then no one else could have him. Also, the testimony of Jessie Edwards demonstrates the level of her lies and deceit. Lastly, Defendant asserts that the emergency room doctor could not connect Melissa’s alleged injuries to the reported offense, and there was no evidence of unconsciousness.

At trial, Melissa testified that on June 26, 2009, she was walking to work and ^stopped at Mary Phillips’s house to get a cup of coffee. She was “somewhat” dating Defendant at the time, and, while she was at Mary’s house, he called her phone several times and sent numerous text messages. Melissa eventually answered her phone, thinking if she answered it, he would leave her alone. According to Melissa, Defendant told her that he had something for her. Melissa replied, “[T]he ass whipping you got for me I don’t want this morning.” She then hung up. Defendant continued to call, but Melissa would not answer the phone.

Soon thereafter, Defendant arrived at Mary’s house in his car. Melissa stated she did not have the slightest idea how Defendant knew where she was. Defendant kept blowing his horn and telling her to come see. Melissa refused to comply. According to Melissa, she already knew what Defendant had for her, “an ass whipping,” and she did not want it — she was tired of it. Defendant then jumped out of the car and told Melissa that if she would not come, he was going to come and get her. When she did not comply, Defendant approached the house where Melissa and Mary were sitting on the porch and told Melissa he wanted to talk to her. Melissa told him no because he was going to hit her, and she was trying to go to work.

Defendant then entered the porch and began beating Melissa on the side of her head and face. Next, Defendant caught her by the hair, dragged her off the chair, and slammed her into the door frame of the screen door, knocking her unconscious. Melissa testified that when she regained consciousness, she was on the ground by the steps, and Defendant was kicking and punching her. He kicked her in the behind, back, and side. Melissa assumed that Defendant put her in the car because, when she “woke up,” she was in the front seat of his car. She was not able to get out because Defendant had control of thé lock.

| BMelissa stated that once she was in the car, she kept quiet. There was no more violence while in the car. According to Melissa, they rode around for a couple of minutes, and then Defendant took her home and made her bathe and change clothes. He then took her to his house where he started “fussing” at her again about “this and that.” Melissa testified that she was scared and that she had sex with Defendant, although she did not want to. Defendant eventually dropped her off at home the next morning. Melissa then called her aunt, who came over and called the sheriffs department. Melissa’s aunt also took her to the doctor because her side was hurting, and she was having difficulty breathing.

Melissa identified photographs of her injuries. The photographs depicted bruising and swelling of the left side of her face in the cheek area and bruising on her left arm and leg. None of the photos depicted her trunk area, ribs, or stomach. Melissa admitted that the injuries to her face were hard to see in the photograph, but maintained that the swelling was visible “if you’d have seen it that day.” Melissa reported that the pain in her ribs continued for about a month.

On cross-examination, Melissa admitted that she had recanted her allegations regarding the offense. Melissa explained that she went to see Judge Bennett, told him that her allegations were not true, and asked him to drop the charges against Defendant. Melissa maintained, however, that Defendant forced her to tell the judge that the offense did not happen. Defendant threatened to beat and/or kill her if she did not recant her story. Melissa complied with Judge Bennett’s instructions to put her statement in writing and take it to the district attorney’s office.

Next, Melissa was questioned about threats she allegedly made to Defendant. Melissa denied ever threatening Defendant. In response to same, defense counsel | fiintroduced a three-page, handwritten letter from Melissa to Defendant and asked her to read it out loud. The letter was dated November 30, 2009, and was sent to the Avoyelles Parish Sheriffs Department where Defendant was incarcerated. Melissa indicated in her letter that Defendant had hurt her, but she was going to be all right. Melissa then wrote, “If I was dirty[,] I would sign them papers and testify against you, and guess what, your punk ass gonna get to get [sic] 10 to 15 [years].” Melissa also wrote:

so bye for now! And don’t drop the soap! B — ch Nigga! See you-n-da courtroom[.] Was blind but now I see[ — ]2 broke ribs[,] 1 broke fínger[,] 1 broke phone[,][and] a broke face[.] Pay back is a mutha [sic]! Thanks 4 making] me stronger and wiser[.]

Melissa was then asked a series of questions in an attempt to show she did not fear Defendant and/or continued to have a relationship with him after the offense. Melissa denied that she had been texting Defendant recently. She admitted, however, that she did send him a text message when she learned that his mother had died. Melissa maintained, however, that it was the only message she sent.

Melissa admitted to sending a text message on July 8, 2009, wherein she told Defendant that he had to choose between her and the other women with whom he had sexual relationships. She explained that the message was sent in response to Defendant’s constant calls and text messages wherein he told her he loved her and wanted to be with her.

Melissa was then questioned about a specific text sent on August 6, 2009, and was asked to read the text from Defendant’s phone. Melissa first acknowledged that the number from which the text message originated was her phone number. -/According to Melissa, the message, a chain letter from the internet, was sent to all of her contacts, and she had no recollection of intentionally sending it to Defendant. Melissa stated that she may have accidentally sent the text to Defendant.

Next, Melissa was questioned again about how Defendant knew she was at Mary’s house. Melissa replied that she did not know; she might have told Defendant that she was at Mary’s house, but she had no recollection. Melissa stated that she could not recall several incidents from that day. .

On re-direct examination, Melissa confirmed that after the offense, the text messages from Defendant were constant, even when he was in jail. All she wanted was for him to leave her alone. Melissa testified that Defendant beat her on two more occasions after the instant offense, on July 25, 2009, and on July 29, 2009, prior to the time she went to Judge Bennett’s office.

The State submitted into evidence a Petition for Protection from Abuse filed against Defendant by Melissa on July 23, 2009. In the protective order under “Past incidents,” which she read aloud at trial, Melissa described the instant offense as follows:

On June 26th[,] we had broken up for two weeks[.] [0]n my way walking to work, he kept calling my phone[;] I wouldn’t answer. He texted me 32 times telling me to answer the phone [and] that I have something for you, which was a beating. I stopped at a friend[’]s house to drink a cup of coffee, he found out where I was and came there bolstered [sic] his way into the house ...[.]
He bolstered [sic] his way into the house, picked me up, threw me at the wall, [and] knocked me out[.] [He then] picked me up, threw me outside on the ground, and began punching me, slapping me, kicking me[;] and he kicked me in my back right side and broke my ribs.

IsThe testimony of Mary Phillips, the only witness to the offense, was consistent with Melissa’s testimony and allegations. Mary testified that on June 26, 2009, she was sitting on her porch when she saw Melissa walking down the sidewalk. Mary stated that she had known Melissa for years. Melissa stopped to visit, and the two sat down on Mary’s porch and began talking. During their visit, Melissa received three or four phone calls from Defendant. Melissa kept telling Defendant to stop calling and that she did not want to talk to him. According to Mary, Defendant asked Melissa where she was, and she told him that she was at Mary’s house.

When Defendant arrived, he got out of his car, walked up to the porch, and told Melissa to come see. When Melissa refused, Defendant opened the screen door to the porch, walked over to where Melissa was sitting, and began beating her up while she was still sitting in the chair. He then snatched her up out of the chair and began dragging her from the porch. Melissa’s head slammed into the frame of the door, and she hit her head on a small step. Defendant then dragged her off the porch and started kicking her in the side. According to Mary, Melissa was unconscious for a few seconds, and he continued to kick her in the side and all over, telling her to “get up you b — ch.” When Melissa regained consciousness, she pleaded with Defendant not to kill her. Next, Defendant grabbed Melissa by the hair, dragged her to the car, and pushed her into the car. The Defendant then drove off with her.

Mary called the police, and, while the police were still there, Defendant had Melissa call her to instruct her not to press charges against him. Mary stated she was afraid to press charges against Defendant because she thought he would then hurt Melissa. Mary was worried about Melissa and did not see her again until a few weeks |flIater. Mary believed that the beating was bad enough that Melissa should have gone to the hospital that same day.

Defendant’s recollection of the events on June 26, 2009, differed significantly from the testimony of Melissa and Mary. Defendant testified that he contacted Melissa that day, and she told him she was at Mary’s house. When he pulled up, Melissa ran out of the house, “slipping and falling all over the place.” According to Defendant, Melissa was excited to see him. She then got in the car, and they took a ride. Next, they went to Defendant’s house and just relaxed. He denied having sexual intercourse with her that day.

When asked why Melissa would fabricate such a story, Defendant stated it was likely because she did not want to be with him or because someone else was involved. Defendant denied hitting and kicking Melissa that day. According to Defendant, Melissa started coming forward with charges after he broke up with her and began dating Jacqueline Batiste. Defendant maintained that Melissa threatened to have him thrown in jail. He stated she told him that if he would help her out with certain things, such as money or a ride to work, that she would drop the charges. Defendant maintained that Melissa’s allegations were lies and that he never asked her to lie to a judge or a district attorney and report that the offense never happened.

On cross-examination, Defendant testified that he had been dating his girlfriend, Jacqueline, for eight or nine years and that Melissa was just a friend. Defendant did not tell Jacqueline he was having sex with Melissa, because they were not married. Defendant continued to maintain that he never beat Melissa and that all of her allegations were fabricated. With regard to Melissa’s broken rib and bruises, | inDefendant contended that he never touched her and that she must have injured herself when she came down the stairs and fell.

According to Defendant, Melissa and Tangela Crockett, another woman who claimed she had been assaulted by Defendant, fabricated their stories because of a “triangle.” Defendant explained that he was first in a triangle with Tangela. When Tangela became unhappy with his way of living, i.e., working odd jobs with no steady employment, he found another lady, Melissa. In between the years, Defendant was “with” Jacqueline and was helping to raise her child. Defendant claimed that Tangela and Melissa did not like the fact that he was trying to be a family man and take care of his business.

Defendant added that Melissa and Tangela teamed up to help one another with their respective cases against him to convince the trial court that he committed the offenses. Defendant maintained that he was a victim of their conspiracy against him.

Next, Defendant’s first cousin, Jessie Andrews, testified on Defendant’s behalf. Jessie stated that he had known Melissa his entire life. He also asserted that he knew about her relationship with Defendant and that the relationship had been a good one.

With regard to the instant offense, Jessie testified that on July 30, 2009, the day after Defendant’s arrest, he accompanied Melissa to Judge Bennett’s office to drop the charges filed against Defendant arising out of the instant offense. Defendant was incarcerated at the time. According to Jessie, when Melissa spoke to Judge Bennett, she reported that she was just mad and angry at the time and that the offense did not happen. Afterwards, Jessie and Melissa went to the bank with Defendant’s mother, who withdrew $500 and gave it to Melissa to pay a bill.

InOn cross-examination, Jessie testified that if he could help it, he did not want to see Defendant go to jail. Jessie also stated that he was not at Mary’s house on June 26, 2009, the day of the offense, and thus, did not see what happened. Jessie maintained that the money given to Melissa by Defendant’s mother after Melissa recanted the allegations against Defendant was not a bribe to get Melissa to drop the charges. Jessie acknowledged that Defendant had been in trouble before, but denied knowledge of Defendant’s six arrests for beating up women. Jessie recalled that Defendant had gone to court regarding a girl’s allegations that he and his mother jumped on her. Jessie denied any knowledge of Defendant’s reputation for beating women and maintained that he never saw Defendant fight with a woman.

Jacqueline testified at trial that he was her high school sweetheart and her future fiancé. She had known Defendant for eight years and had been dating him off and on. Jacqueline stated that she did not know Melissa personally, but that she had seen Melissa in the car with Defendant. Melissa never attempted to contact Jacqueline but, instead, caused “confusion” with Defendant, which in turn affected Jacqueline. According to Jacqueline, she had been present when Melissa stalked Defendant and then called the police to report he was stalking her. Jacqueline denied having any personal knowledge of Defendant’s involvement with Melissa on June 26, 2009. Also, Jacqueline was not with Defendant on the night of June 26, 2009.

Caprice Dixon was called by Defendant as a character witness. Caprice testified that she knew Defendant. Her relationship to Defendant, however, was not established. Caprice indicated that she was not present at Maxy’s house when the offense occurred, and she had no knowledge of the incident. According to Capi'ice, Defendant did not hit women, and she never knew him to hit anyone. Although she |12had heard that Defendant was involved in ten different incidents of violence with two different women and had violated protective orders filed against him, Capi’ice maintained that Defendant did not have a reputation in the community as someone who beats women.

When asked if she had ever seen any violence between Defendant and Melissa, Caprice stated that they had a love-hate relationship. One minute, they were in love; the next minute, Melissa was pressing chai’ges against him. Caprice had never talked with Melissa about her relationship with Defendant. She was awai'e, howevei’, that Defendant had been arrested on multiple occasions based on Melissa’s allegations. Capi'ice never saw Defendant strike Melissa.

With regard to the injuries Melissa sustained as a result of the offense, Dr. Christopher Ritter, Melissa’s treating physician in the emergency room at Avoyelles Hospital, was called to testify. Dr. Ritter stated that he examined Melissa on June 27, 2009, at 11:00 a.m. During the exam, Melissa reported that she had been assaulted on June 25th and June 26th. She stated that she had been hit with a fist, kicked, pushed, thrown, and had lost consciousness when she was struck on June 26th. Based on her history and his examination, Dr. Ritter had no reason to doubt that Melissa lost consciousness during the assault. She suffered from pain in her neck, back, face, chest, and both hips.

Photographs taken of Melissa at the request of police were shown to Dr. Ritter at trial. Dr. Ritter found it difficult to make out the victim’s injuries in the photographs. The photographs depicted the victim’s arm, mid to lower back, leg, left cheek, and neck ai'ea, where bruising was noted. Dr. Ritter stated that the photo-glyphs wei’e consistent with Melissa’s his-toiy and his examination. X-rays of | isher chest revealed a fracture of the ninth rib, which was consistent with Melissa’s history. Dr. Ritter subsequently opined that Melissa’s injuries were caused by the physical assault she described.

On ci'oss-examination, Dr. Ritter testified that Melissa’s bruises did not look several days older than she reported. He explained that as bruises get older, they change colors, a process that is sometimes difficult to see in a dark-skinned individual. According to Dr. Ritter, it can be difficult to pinpoint the location of bnxises in dark-skinned individuals. In a photograph of Melissa shown to Dr. Ritter at trial, he did not see “greening” of the bruise associated with an aging bruise. As such, Dr. Ritter did not characterize the bruise as an “old” bruise. With respect to her photographs, Dr. Ritter did not find any facial lacerations or major contusions. He also testified that he did not find any tenderness in the area of her face. The bruising on Melissa’s ai'm was the size of a golf ball and was irregular in shape. When considering the photographs alone, Dr. Ritter stated that Melissa’s injuries did not look severe.

Based on Dr. Ritter’s experience, he did not find Melissa’s history of being beaten two days prior to presenting to the hospital unusual. In fact, Dr. Ritter stated that it was common. Dr. Ritter agreed that at the time she was seen, Melissa’s injuries were not emergent. Although he frequently finds evidence of discoloration from a punch or contusion, Dr. Ritter testified that such evidence is not always visible, particularly in dark-skinned individuals. Dr. Ritter stated that rib fractures are frequently seen without visible bruising in the area. Also, Dr. Ritter stated that pulmonary contusions are rarely seen with a rib fracture and that a pneumotho-rax is a rare complication of a rib fracture.

_J_i4Although Dr. Ritter concluded that Melissa’s injuries were not emergent, he felt it was appropriate for her to be seen in the emergency room with her history of trauma and complaint of pain in the area of her ribs. He added that it was important to rule out other more serious problems. Lastly, Dr. Ritter testified that a rib fracture is consistent with trauma in an otherwise young and healthy person. According to Dr. Ritter, a rib fracture does not result from a trivial event.

In finding Defendant guilty as charged, the trial court provided the following reasons:

BY THE COURT:
Well[,] what is uncontradicted is [that] on June 26th, 2009[,] Melissa Frugé walked about two or three miles from her home on Mayeaux Road to the Spirit store in Marksville to pay a utility bill. Then[, she] was walking towards work down Martin Luther Kind [sic] Drive a few blocks away from the Spirit station. She say [sic] her friend[,] Mary Phillips!,] [was] on her front porch[ ] [and she] stopped to have a cup of coffee with ... [her] on her front porch. Uncontra-dicted at that point, no question that’s where she was, that’s where Ms. Phillips was[ — ]everything is rocking and rolling.
Ms. Frugé testifies that she had been receiving text messages and phone calls from Jamie Francisco!.] [S]he not only said it today in court, she said it the day she filed the charges, [and] she said it a month later when she filed for a protective order when talking about past incidents. Her story stayed the exact same all along about what happened. And we have the testimony of Mary Phillips. She don’t [sic] have a dog in this hunt. She was just there. She watched the event. She saw what happened!;] she testified as to what happened.
You know what was said about Ms. Phillips bad [sic] to inpuine [sic] her character. That she drinks, well nobody said she was drinking anything at 8:00 o’clock on that morning other than coffee. And she testified as to what she saw.
So what did happen? Well Jamie Francisco admits that Melissa Frugé hurt herself, got hurt, [and that] she was hurt that day. He didn’t take her to the doctor, they rode around all day[,] and they went to her house, his house, [and then] went to her house to get clothes so she would have for work the next day. [She] [d]ecided not to go to work that day. Didn’t ... going [sic] to go to his house that night[,] but he |1ssaid they didn’t have sex[.] [A]nd the next morning!,] although she has her clothes for work, instead of taking her to work or letting her walk two blocks from his house to where she works, he takes her three miles back home to Mayeaux Lane. You talk about not make any sense.
After I heard the testimony of Ms. Frugé, Ms. Phillips, and the doctor confirming that what he found on Ms. Frugé was consistent with what she described as a kind of beating she received, I expected Jamie Francisco’s defense to be she came at me, we fought, [and] I was defending myself. I mean I was waiting for it[;] I was waiting for it. Man[,] Judge, what happened was we got in an argument, she came [sic] me, I was defending myself[,] and she got hit. But did he say that? No. He said she was so excited to see me, they hadn’t been together for two weeks, they were broken up, but she was so excited to see him [that] she ran off the porch, ... fell down the steps[,] and hurt herself. And that’s what happened to her to break her ribs and cause these bruises. But he was not concerned enough to take her to the doctor.
I mean the defense that was put forth[ — ]I mean you talking about wild[ — ]this triangle that’s trying to get Jamie Francisco just didn’t prove out to be anything trying to get Jamie Francisco.
It’s undisputed that Melissa Frugé was beat [sic] up on June 26th, 2009, had fractured ribs, [and] lost consciousness that meets the definition of serious bodily injury in Revised Statute 14:34.1.
It is also elear[,] as the day is long[,] that force or violence was used against Melissa Frugé by Jamie Francisco on that date intentionally.
Mary Phillips witnessed it[.] [F]orget about what Melissa said[.] [F]orget about Melissa[.] Mary Phillips saw the whole thingf;] she was sitting right there. They called somebody in her house [sic] called the police. But what happened with Melissa[?] [W]hy did she go with him when he was pulling her hair and putting her in the car? Why did she stay with him that night? I’ve been waiting for somebody to say it all along[,] and Miché Moreau said it in her closing argument!.] [I]t’s the classic battered woman syndrome. Why is she still writing him a letter[?] [W]hy did she send him a text when Ms. Hazel died, saying she was sorry[?] I mean this lady loved this man, at one point. She loved him[,] and she wasn’t treated right[J and that love didn’t just go away. And this letter here, that letter’s nasty. And yeah[,] at that point, she’s ready for him to get what he deserves for what he did to her that day[,] and who knows, possibly some other days. But this is an overwhelming not even close case.
Whereas the State has totally proved beyond any reasonable doubt whatsoever that Jamie Francisco used for [sic] of [sic] violence upon |ir,Melissa Frugé on June 26th, 2009 without her consent, inflicting serious bodily injury!,] and accordingly, I find him guilty as charged.

Considering the testimony and evidence found in the record, we find that the trial court did not err in convicting Defendant of second degree battery. Defendant’s assertion that the evidence at trial was scant is not supported by the record. Melissa’s recollection of the offense at trial was corroborated by an eyewitness to the physical assault, both of which establish that Defendant intentionally used force and violence, without Melissa’s consent, with the specific intent to inflict serious bodily injury. Also, Dr. Ritter’s testimony, the medical records, and the photographs support Melissa’s allegations that she was beaten and kicked by Defendant. Lastly, the trial court found Defendant’s testimony was not credible, and it provided little to no support in refuting Melissa’s claim.

With regard to Melissa’s credibility, notwithstanding the evidence that she recanted her allegations of the offense before Judge Bennett prior to trial, the record is void of any evidence to support Defendant’s contention that she abused the legal process against him. As for the inconsistency in Melissa’s testimony regarding whether or not she told Defendant of her whereabouts on the morning of the offense, we find that this factual detail is minor and plays only a small part, if any, in challenging the credibility of her testimony or allegations.

Additionally, the testimony of defense witness, Caprice, indicating that Defendant and Melissa had a love-hate relationship, was only sketchy and lacked credibility. It played no part in challenging the credibility, reliability, and truthfulness of Melissa’s testimony. Defendant failed to establish the extent of his relationship with Caprice and how she had any knowledge of his relationship with Melissa.

|17Lastly, the letter from Melissa to Defendant while he was incarcerated does not support Defendant’s claim that she had a motive in fabricating the claim. Nowhere in the letter does Melissa state that if she could not have Defendant, then no one else could have him. Despite Defendant’s assertion, the testimony of Jessie, his cousin, does not show that Melissa was lying or was deceitful as claimed by Defendant. Not only did Jessie have a vested interest in protecting Defendant, his testimony was not credible, as noted by the trial court.

With regard to the evidence connecting Melissa’s injuries to the offense, Dr. Ritter clearly indicated that the physical exam, the x-ray revealing a rib fracture, and the photographs depicting bruises were consistent with the offense as reported by Melissa. Although there was no physical evidence to prove Melissa lost consciousness, the unrefuted testimony of both Melissa and Mary establishes that she lost consciousness for a brief time during the assault — a fact Dr. Ritter had no reason to doubt.

Also, Dr. Ritter did not indicate that there was no bruising in the area of Melissa’s rib fracture. As noted in the record, Dr. Ritter stated that a rib fracture was seen on the x-ray and that Melissa had tenderness in the area of the fracture. When shown a photograph purportedly of Melissa’s thorax, Dr. Ritter was unable to visualize any landmarks of the thorax to determine whether or not a contusion could be seen in the area of the fracture. Even if there was no bruise in the area of the rib fracture, according to Dr. Ritter, such an occurrence was not uncommon, especially in dark-skinned individuals.

For the reasons stated herein, we find that the evidence was sufficient to convict Defendant of second degree battery and that the trial court did not err in | ^denying his'motion for a new trial. Accordingly, Defendant’s conviction is affirmed.

EXCESSIVE SENTENCE CLAIM

In this assignment of error, Defendant argues that his sentence is excessive. In State v. Brandenburg, 06-1158, p. 28 (La.App. 3 Cir. 2/7/07), 949 So.2d 625, 644, writs denied, 07-538, 07-614 (La.10/26/07), 966 So.2d 571, 573, this court stated:

The trial court has wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed constitutionally excessive absent a manifest abuse of discretion. State v. Evans, 97-504 (La.App. 3 Cir. 10/29/97); 702 So.2d 1148, writ denied, 97-2979 (La.4/3/98); 717 So.2d 231. This court, in State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99); 755 So.2d 297, 311, noted:
The relevant question on review of a sentence is whether the trial court abused its broad sentencing discretion and not whether the sentence imposed may appear harsh or whether another sentence might be more appropriate. 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). To constitute an excessive sentence, this court must find the penalty imposed is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals; and, therefore, it is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96); 670 So.2d 713.
State v. Boudreaux, 00-1467, p. 12 (La.App. 3 Cir. 4/4/01), 782 So.2d 1194, 1201, writ denied, 01-1369 (La.3/28/02), 812 So.2d 645 (quoting State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99), 755 So.2d 297, 311). “As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of | ^offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169.

The penalty for second degree battery is not more than five years, with or without hard labor, or a fine of not more, than two thousand dollars, or both. La.R.S. 14:34.1(C). As such, Defendant’s five-year sentence was the maximum possible sentence he could have received. Defendant, however, was spared a fine.

At sentencing, Defendant asserted that his mother and father were deceased and urged the trial court to give him another chance. Defendant maintained that he would do “what’s right.” Defendant added that he had a lot of things he needed to take care of since his mother passed away.

After reviewing Defendant’s extensive criminal history, the trial court concluded that since 1998, he had been convicted of six felonies, including convictions for felony theft, illegal possession of stolen things, unauthorized use of an access card, and forgery. Also, he had been arrested numerous times on a variety of charges. Since the time he was charged for the instant offense, Defendant had three felony arrests for domestic abuse battery, two arrests for trespassing, one arrest for aggravated battery, two arrests for violation of protective orders, and one arrest for stalking. Accordingly, the trial court concluded that not only would a probated sentence be an illegal sentence, considering the guidelines set forth in La.Code Crim.P. art. 894.1, there was an undue risk that he would commit another crime during any period of a suspended sentence. Also, the trial court found that Defendant was in need of correctional treatment or a custodial environment and that any lesser sentence would deprecate the seriousness of his offense.

Next, the trial court stated it had considered the aggravating and mitigating factors set forth in La.Code Crim.P. art. 894.1 in sentencing Defendant. First, the trial 1 gncourt found aggravating that Defendant’s conduct during the commission of the offense manifested cruelty to the victim. He knew or should have known that the victim, a woman, was vulnerable or incapable of resistance and that bodily harm and violence were involved in the commission of the offense. Lastly, the trial court stated that it could not find any mitigating circumstances that applied to Defendant’s conduct in the offense.

In support of his excessive sentence claim, Defendant refers to State v. Tisby, 33,591 (La.App. 2 Cir. 6/21/00), 764 So.2d 209, writ denied, 00-2236 (La.6/1/01), 793 So.2d 181, wherein the defendant was convicted of second degree battery and sentenced to two and one-half years at hard labor. The defendant and his girlfriend were guests at a barbeque when the defendant forcibly removed his girlfriend from the gathering and took her home. After-wards, the victim went to the defendant’s house to check on the defendant’s girlfriend. When the victim tried to enter the house, the defendant swung a sling blade at him, cutting him across the face. At sentencing, the trial court noted the defendant’s criminal history, which included a conviction for simple robbery, reduced by plea agreement from a first degree robbery charge, and convictions for driving while intoxicated. Also, the forty-year-old defendant was the father of three children and a high school graduate who had served three years in the military. The sentence was affirmed on appeal.

However, this court has affirmed the maximum five-year sentence for second degree battery in similar cases. Most recently, in State v. Thomas, 08-1280 (La. App. 3 Cir. 4/1/09), 7 So.3d 802, the defendant was involved in a physical altercation with ■ the victim and stabbed him in the neck and twice in the back with a knife. On appeal, the court found that the sentence was not excessive, considering the defendant’s |2] criminal history as a second felony offender. He also had four misdemeanor convictions and approximately twenty-eight separate encounters with law enforcement agencies, fifteen of which were classified as crimes against a person. The court also found that the evidence supported the greater charged offense of aggravated battery and that a subsequent jailhouse fight wherein the defendant beat the victim demonstrated a patent lack of remorse.

In State v. Hopkins, 96-1063 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, the defendant received the maximum sentence and was fined $2,000 after his conviction of second-degree battery. The defendant was involved in an argument with the victim and beat her on her bare buttocks with a thick branch, leaving a four-inch bruise. In affirming the sentence on appeal, this court found that the evidence supported the greater charged offense of aggravated battery. No other aggravating or mitigating factors were addressed on appeal.

Considering the brutal beating of the victim in the instant case and Defendant’s significant criminal history, we find that the trial court did not abuse its discretion when it imposed the maximum sentence. We likewise find that Defendant is clearly one of the worst offenders, for whom a maximum sentence is intended. Also, the sentence is commensurate with sentences affirmed by this court in comparable cases. Accordingly, Defendant’s sentence is affirmed.

DISPOSITION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The denial of Defendant’s motion to reconsider sentence is discussed in his excessive sentence claim.

      . The letter is filled with profane statements. Only the statements which might be construed as threats to Defendant are addressed herein.


source: Caselaw Access Project

license: Public Domain

text:
    Bronel HEBERT v. Quinten ADCOCK, Adi Thammavong, and City of New Iberia Through its Mayor, Ruth Fontenot.
    No. 10-887.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      See also, 2005 WL 6422409.

      Randall B. Keiser, D. Heath Trahan, Reiser Law Firm, P.L.C., Alexandria, Louisiana, for Defendants/Appellants, City of New Iberia, Quinten Adcock, and Scott Davis.
    April Petry Defelice, Law Office of April Petry Defelice, L.L.C., New Iberia, Louisiana, for Plaintiff/Appellee, Bronel Hebert.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| plaintiff, Bronel Hebert, filed suit for damages against Defendants, City of New Iberia, Quinten Adcock, and Scott Davis. Mr. Hebert alleges he sustained personal injury and property damage when New Iberia City Police Officers Adcock and Davis entered his home to execute a search warrant that he alleges was improvidently obtained. At trial, at the close of Mr. Hebert’s case, Defendants moved for an involuntary dismissal. The trial court took no action on the motion, and Defendants presented their evidence. At the close of trial, the trial court took the matter under advisement and later rendered a judgment denying Defendants’ motion for involuntary dismissal and awarding Mr. Hebert a lump sum of $40,000.00 in damages. Defendants have appealed. For the following reasons, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL HISTORY

On August 10, 2002, Officer Davis received information from a confidential informant (Cl) that an individual named Darrel had received a large amount of marijuana at a residence located at 113 Doris Street, New Iberia, Louisiana. The Cl told Officer Davis that Darrel declared to him that he planned to quickly move the marijuana from the residence to avoid detection. Officer Davis relayed this information to Officer Adcock. Officer Adcock prepared an affidavit for a search warrant, which was presented to and signed by Judge Keith Comeaux.

The search warrant was executed upon the residence located at 113 Doris Street, New Iberia, Louisiana. Mr. Hebert claims he was injured during the police officers’ entry into his residence. Mr. Hebert filed suit against the City of New Iberia, |2Officer Davis, and Officer Adcock for damages to his person and property. Defendants denied Mr. Hebert’s claims and asserted immunity pursuant to the provisions of La.R.S. 9:2798.1.

A bench trial was held on April 22, April 24, and May 8, 2009. The trial court issued written Reasons for Judgment on October 12, 2009, wherein it ruled, in pertinent part:

[Tjhis court grants the following relief:
A. Judgment overruling and/or denying Defendants’ motion for involuntary dismissal;
B. Judgment declaring a reasonably competent police officer, under similar circumstances, would not apply for a search warrant, based upon an affidavit containing misleading statements about the reliability of the confidential informant, the police officer knew were false or would have known were false, except for reckless disregard of the truth;
C. Judgment declaring Defendants, Adcock and Davis, violated the rights of Bronel Hebert against unreasonable searches, seizures, and/or invasions of privacy under federal[] and state constitutional law and statutory civil law principles of fault arising from a search of his residence on or about August 10, 2002;
D. Judgment in favor of Bronel Hebert against Adcock and Davis, in their official capacities as police officers employed by the City of New Iberia, Louisiana, in the full and true sum of FORTY THOUSAND AND NO/100 ($40,000.00) DOLLARS for general and special damages, together with judicial interest from date of judicial demand and all costs of these proeeed-ings[.]
ISSUES

The following issues are presented by Defendants for review:

(1)[wjhether [Mr. Hebert] introduced any evidence showing that Officer Davis’ security sweep was unreasonable;
|s(2) [wjhether [Mr. Hebert] proved that Officer Adcock engaged in any activity that renders him liable for the foot injury[;]
(3) [wjhether an officer has discretion in the manner in which he executes a security sweep while executing a search warranty]
(4) [wjhether [Mr. Hebert] introduced any evidence showing that either officer acted in bad faith[; and,]
(5) [wjhether the officers reasonably relied on the warrant.

ASSIGNMENTS OF ERROR

On appeal, Defendants raise the following assignments of error:

(1) Officer Davis Did Not Breach the Duty of Reasonableness, And Thus Cannot Be Held Liable. The Trial Court Erred In Rendering Judgment Against Him.
(2) Officer Adcock Cannot Be Held Liable Because the Warrant Issue Is Irrelevant, And Because the Warrant Was Nevertheless Supported by Probable Cause. The Trial Court Erred In Rendering Judgment Against Him.
(3) The Trial Court erred When It Denied the Officers’ Defense of Policy-making or Discretionary Act or Omission Immunity.
(4) The Trial Court erred When It Denied the Officers’ “Good Faith” Immunity.
(5) The Tidal Court erred When It Denied the Officers’ Defense of “Warrant Immunity.”
(6) The Award of Costs Must be Reversed if Liability is Reversed.

DISCUSSION

Standard of Review

It is well settled that a court of appeal will ordinarily not set aside a trial court’s finding of fact unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Indeed, the Louisiana Supreme Court has stated, “[a]n appellate court should not disturb a trial court’s factual findings when there is sufficient evidence in the record to provide a reasonable basis for those findings.” Goings v. State Through Dept. of Pub. Safety and Corrections, 94-1386, p. 6 (La.1/17/95); 648 So.2d 884, 887. Thus, the appellate court’s function is not to decide factual issues de novo, but to determine whether the fact finder’s | ¿conclusions were reasonable. Riley v. Winn-Dixie Louisiana, Inc., 489 So.2d 931 (La.App. 5 Cir.), writ denied, 494 So.2d 329 (La.1986); Arceneaux, 365 So.2d 1330. That is not to say that Louisiana appellate courts do not have jurisdiction to review factual findings de novo. Arceneaux, 365 So.2d 1330. Louisiana courts have jurisdiction over both law and facts. Riley, 489 So.2d 931. Where a record indicates conflicting testimony, a trial court’s reasonable evaluation of the witnesses’ credibility and reasonable inferences of facts, should not be disturbed. In re Dravo Basic Materials Co., Inc., 604 So.2d 630 (La.App. 1 Cir.1992); Nance v. Nance, 548 So.2d 87 (La.App. 5 Cir.1989). Saine v. City of Scott, 02-265, p. 2 (La. App. 3 Cir. 6/12/02), 819 So.2d 496, 498.

Search Warrant

Mr. Hebert argues that the search warrant was improvidently obtained. In brief, he alleges that Officers Davis and Adcock “recklessly disregarded the law by giving flawed information to a judge, intentionally mischaracterizing the reliability of an informant in order to obtain a warranty and using that faulty warrant to invade the property and privacy of an innocent citizen.” Mr. Hebert further asserts that “the primary issue at trial was whether the officers breached the duty to establish probable cause for a warrant and whether a reasonably competent police officer would have applied for a warrant given these circumstances.”

Defendants assert that there was probable cause for the warrant to be issued based on information from a Cl: (1) that he had accompanied an individual to 113 Doris Street, New Iberia, on the day of the incident at issue herein; (2) that the individual dropped off a large quantity of marijuana to Darrel at that residence; and, (3) that Darrel said that he planned to move the marijuana from the residence to avoid detection. Defendants contend that because they were acting upon a valid search warrant, they are insulated from liability by the immunity provided in |sLa.R.S. 9:2798.1. Defendants further argue that the trial court erred by failing to treat this matter as a simple negligence case with the primary issue at trial being whether the officers breached the duty of care owed by an officer executing a search warrant.

Citing Berlcovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the trial court found that Defendants were not immune from liability under La.R.S. 9:2798.1 because La.Code Crim.P. art. 162 specifically prescribed a course of action; thus, Defendants did not have an element of choice. The trial court found:

Because the police officer requesting the search warrant was mandated to follow the requirements set forth by article 162, this court determines that the officer acted at the operational level — a level to which immunity does not extend. Hence, the defendants may not escape liability for damages incurred by Mr. Hebert to his person and property.

The trial court concluded that Officers Davis and Adcock hastily procured the search | r,warrant; thus, “[t]he actions and omissions of Officers Davis and Adcock constitute reckless conduct.”

In this case, the evidence shows that Officer Davis obtained a tip from a Cl. Officer Adcock received this information from Officer Davis and prepared an affidavit in support of a warrant to search the residence at 113 Doris Street, New Iberia. The affidavit was presented to and signed by Judge Comeaux. The search warrant was executed; however, no drugs were found, nor was Darrel present at the residence that was the subject of the search. Instead, while the search was being conducted, the owner of the residence, Mr. Hebert, claims to have suffered emotional distress and injury to his toes when a police officer, presumably Officer Davis, either kicked or stepped on his foot. Though no drugs were found, Mr. Hebert testified at trial that an individual named Darrel had been at his home earlier that day. According to Mr. Hebert, Darrel occasionally mowed his lawn and had, on the morning of August 10, 2002, knocked on his door, asking for water and use of his telephone. Mr. Hebert initially refused Darrel’s requests, but ultimately relented and gave Darrel some water and allowed him to use his telephone. However, Mr. Hebert stated that Darrel had never lived at his residence and that he did not have any knowledge of Darrel allegedly receiving a delivery at his residence that day.

The trial court relied heavily on the facts and procedure used by the officers in the procurement of the warrant and found that there was no probable cause for the issuance of the warrant. However, the legal issue in this case is whether any defects in the search warrant, curable or otherwise, were the proximate cause of Mr. Hebert’s injuries. The appropriate question is not whether, in hindsight, the officers could have investigated more; rather, it is whether the issuance of the search warrant is what |7proximately caused injury to Mr. Hebert. We find that it was not. Though the issuance of the search warrant was a cause in fact of Mr. Hebert’s injury, the proximate cause of Mr. Hebert’s injury was the implementation of the search itself. Having so found, we reverse the trial court’s finding of fault against Officers Davis and Adcock only as it pertains to their procurement of the search warrant.

Entry of premises

To prevail on a negligence claim, Mr. Hebert must prove that Defendants owed a duty to him, that Defendants breached the duty, that the breach was the cause of his injuries, and that he sustained damages. See Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. A police officer owes a duty of reasonableness when executing a search warrant. See La.Code Crim.P. art. 164; Coutee v. Am. Druggist Ins. Co. of Cincinnati, 453 So.2d 314 (La.App. 3 Cir.), writ denied, 458 So.2d 477 (La.1984). Defendants assert that their entry into and search of Mr. Hebert’s home was reasonable; therefore, they are immune from liability pursuant to La.R.S. 9:2798.1. Contrarily, Mr. Hebert contends that the forced entry into his home was unreasonable, and thus, Defendants were negligent and thereby answerable in damages.

Mr. Hebert testified that he was taking a nap in his bedroom when Defendants barged into his home without giving him a chance to answer the door. According to Mr. Hebert, Defendants broke his door frame when they forced his door open and entered his home with their guns drawn. At some point during the fracas, Mr. Hebert’s foot was injured.

As held by this court in Sainé, 819 So.2d at 500:

“[Louisiana Revised Statutes] 9:2798.1 does not protect against legal fault or negligent conduct at the operational level, but only confers | Rimmunity for policy decisions; i.e. decisions based on social, economic, or political concerns.” Chaney v. Nat. R.R. Passenger Corp., 583 So.2d 926, 929 (La.App. 1 Cir. 1991) (emphasis added); Ducote [v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96),] 677 So.2d 1118. Thus, “[t]he exception protects the government from liability only at the policy making or ministerial level, not at the operational level.” Fowler v. Roberts, 556 So.2d 1, 15 (La.1989), on rehearing; see also Rick v. State, Dept. of Transp. and Dev., 93-1776, (La. 1/14/94); 630 So.2d 1271, rehearing denied, (holding that “[decisions at an operational level can be discretionary if based on policy! ]”)• Determining whether the Aowfer-exception applies requires a two-step inquiry.
First, a court must determine whether the action is a matter of choice. If no options are involved, the exception does not apply. If the option involves selection among alternatives, the court must determine whether the choice was policy based.
Rick, 630 So.2d at 1276.

At trial, there was conflicting testimony as to how the search warrant was executed. Officer Davis testified that he knocked, waited a few seconds, then kicked the door down when instructed, to do so by his supervisor, Major Claude Hills. According to Officer Davis, Major Hills was standing beside him. Major Hills testified and categorically denied giving Officer Davis the order to kick down the door. In fact, Major Hills stated that he witnessed the no-knock entry of Officer Davis from a vehicle because he had arrived at the scene just moments before. According to Major Hills, Officer Davis did not knock. Officer Adcock corroborated Officer Davis’ testimony that he did knock before kicking down the door soon thereafter.

Louisiana Code of Criminal Procedure Article 224 governs forcible entry when making an arrest. The requirement for knock-and-announce in Louisiana is enunciated as follows:

|nIn order to make an arrest, a peace officer, who has announced his authority and purpose, may break open an outer or inner door or window of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, where the person to be arrested is or is reasonably believed to be, if he is refused or otherwise obstructed from admittance. The peace officer need not announce his authority and purpose when to do so would imperil the arrest.

La.Code Crim.P. art. 224.

There was no evidence presented that Mr. Hebert refused admittance, nor was there any evidence that announcing the officer’s authority would imperil the search. It is clear that the trial court relied heavily on Major Hills’ testimony, and the court was well within its discretion to do so. See Goings v. State of La., Through Dep’t of Pub. Safety and Corrs., 94-1386 (La.1/17/95), 648 So.2d 884. The trial court also found that the decision, or choice, to gain entry into Mr. Hebert’s home by kicking down the door was made unilaterally by Officer Davis. We find no manifest error in the trial court’s conclusion that there was no justifiable basis for a no-knoek entry into Mr. Hebert’s home; therefore, the conduct of Officer Davis in entering Mr. Hebert’s home and his subsequent “protective sweep” of Mr. Hebert’s home is not immune from liability under La.R.S. 9:2798.1 because that statute does not protect against legal fault or negligent conduct at the operational level. Officer Davis’ failure to give Mr. Hebert sufficient time to answer the door constitutes negligence that caused Mr. Hebert’s injuries, thereby entitling him to damages for the destruction of his property and damages for his personal injury and mental distress. Accordingly, we affirm the trial court’s finding of negligence against Officer Davis as it pertains to his negligent entry into Mr. Hebert’s home. However, no evidence was presented establishing any negligence on the part of Officer Ad-cock relative to the entry and search of the premises; therefore, we find' Officer Ad-cock free from [infault and not legally responsible for the damages sustained by Mr. Hebert. The trial court’s judgment as to Officer Adcock, and Adcock alone, is reversed.

Damages

A careful review of appellants’ assignments of error and specification of issues reveals that they only seek a review of the trial court’s judgment relative to liability. Appellants do not seek a quantum of damage review. Consequently, the issue of damages, vel non, is not before this court and is, therefore, not considered.

DISPOSITION

For the reasons stated above, the trial court’s judgment is reversed only with respect to its finding of liability on the part of Quinten Adcock. In all other respects, the trial court’s judgment is affirmed. All costs of this proceeding are assessed against Defendants/Appellants, City of New Iberia and Scott Davis, in accordance with La.R.S. 13:5112, in the amount of $19,636.80.

AFFIRMED IN PART; REVERSED IN PART.

      . Though originally named as a defendant, Adi Thammavong was dismissed from this matter, and Scott Davis was named as a defendant in Plaintiff’s Second Supplemental and Amending Petition for Damages filed on October 21, 2008.

      . No federal claims were proven at trial, and this -reference was not included in the trial court's Judgment dated January 4, 2010.

      . Louisiana Revised Statutes 9:2798.1 provides, in pertinent part:

      B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
      C. The provisions of Subsection B of this Section are not applicable:
      (1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
      (2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

      . Louisiana Code of Criminal Procedure Article 162 provides:
      A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
      A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.

      . Louisiana Code of Criminal Procedure Article 164 provides “In order to execute a search warrant a peace officer may use such means and force as are authorized for arrest by Title V."

      . Uniform Rules — Courts of Appeal, Rule 2-12.4, requires that the appellant's brief state the alleged errors for review.


author: DECUIR, Judge.

text:
    Mason GODFREY v. Paul REGGIE, et al.
    No. 10-914.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.
    David Frank Dwight,. Attorney at Law, Lake Charles, LA, for Defendant/Appellee, Deputy Eugene Thibodeaux.
    Terry James Manuel, Assistant District Attorney, Lake Charles, LA, for Defendants/Appellees, Paul Reggie John DeRo-sier.
    Robert C. McCorquodale, In House Counsel, Calcasieu Parish Sheriffs Office, Lake Charles, LA, for Defendant/Appellee, Deputy Eugene Thibodeaux.

      Mason Godfrey, In Proper Person, Louisiana State Penitentiary, Angola, LA.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

|, Mason Godfrey filed a civil suit against three defendants, Deputy Eugene Thibo-deaux of the Calcasieu Parish Sheriffs Office, Calcasieu Parish District Attorney John DeRosier, and Assistant District Attorney Paul Reggie, alleging false imprisonment, malicious prosecution, and intentional infliction of emotional distress. Pursuant to exceptions of no cause of action, insufficiency of service of process, and prescription, Godfrey’s suit was dismissed. Godfrey now appeals, and for the following reasons, we reverse and remand.

Mason Godfrey is a pro se litigant who was incarcerated at the time he filed the present case. The facts alleged in his petition indicate that he was a defendant in a Calcasieu Parish criminal prosecution at the time of the events leading up to his lawsuit. He appeared in court for a hearing and entered into a private conversation with Paul Reggie, the assistant district attorney prosecuting the charges against him. The conversation ended in a disagreement between Godfrey, Reggie, and Deputy Thibodeaux who had intervened in the discussion. As a result of this discussion, Godfrey was arrested and charged with the offense of intimidation of a public official. At a subsequent jury trial, God-frey was convicted as charged, but this court reversed and entered judgment on the lesser included offense of threatening a public official. State v. Godfrey, 08-828 (La.App. 3 Cir. 2/18/09), 4 So.3d 265. On appeal, the supreme court reversed and reinstated Godfrey’s conviction and sentence. State v. Godfrey, 09-630 (La.12/1/09), 25 So.3d 756. On remand of Godfrey’s adjudication as an habitual offender, this court vacated the adjudication and remanded to the trial court for resen-tencing. State v. Godfrey, 08-828, 08-1231 (La.App. 3 Cir. 3/3/10), 32 So.3d 1020, writ denied, 10-758 (La.10/29/10), 48 So.3d 1097.

12Puring the course of the criminal prosecution, Godfrey filed, in forma pauperis, the present civil suit as a pro se litigant. Without the assistance of counsel, Godfrey filed inappropriate documentation in support of his pauper status and did not request service of process on the defendants. The suit remained dormant for eighteen months, when Godfrey finally sent service instructions to the court. Once service was effected, the defendants filed exceptions which were set for hearing promptly. On its own motion, the trial court ordered that Godfrey be transported from the prison facility where he was incarcerated to the court for the hearing on the defendants’ exceptions.

The record before us shows that the warden of the prison where Godfrey was incarcerated was served with an order to transport Godfrey to the Calcasieu Correctional Center and then to the Calcasieu Judicial Center for the October 7, 2009 hearing on the defendants’ exceptions. Godfrey asserts that he was indeed brought to the correctional center but was then never taken to the courtroom for the hearing. As a prisoner, he was unable to freely walk to the courtroom on his own. Both the court minutes and the transcript of the hearing show that Godfrey was not present for the hearing. In fact, at the hearing, the trial court questioned the defendants’ attorneys by asking, “You believe that we can proceed without his presence here?” Counsel for DeRosier and Reggie answered simply, ‘Tes, sir, Your Honor.”

The hearing proceeded and exceptions of insufficiency of service of process and prescription were maintained in favor of Deputy Thibodeaux pursuant to La.Code Civ.P. art. 1672 and La.R.S. 13:5107. An exception of no cause of action was maintained in favor of DeRosier and Reggie, based on their allegation of absolute immunity from suits which arise from acts or omissions committed in their official Isprosecutorial capacity. In response to Godfrey’s appeal, only Thibodeaux filed a brief. DeRosier has not filed a brief and Paul Reggie is now deceased.

Godfrey, a pro se incarcerated civil litigant, was entitled to a contradictory hearing on the exceptions filed by the defendants. Both La.R.S. 13:5107, which pertains to service of citation and process in suits against an employee of a state agency, and La.Code Civ.P. art. 1672, which allows for the involuntary dismissal of a defendant for whom service has not been timely requested, require a contradictory hearing before dismissal may be granted. Langlois v. E. Baton Rouge Parish Sch. Bd., 99-2007 (La.5/16/00), 761 So.2d 504. The peremptory exception of no cause of action, which cannot be supported or controverted with evidence, is nevertheless generally decided after a hearing where the plaintiff is given the opportunity to argue in support of his case, and, if his petition “fails to make the basic allegations that are required to maintain a claim, the court should sustain the objection and provide the plaintiff an opportunity to amend the petition.” Goulas v. Denbury Mgmt., Inc., 00-935 (La.App. 3 Cir. 12/6/00), 774 So.2d 346. In fact, specifically with regard to the absolute immunity defense, courts are sometimes faced with a very close issue that deserves meticulous consideration:

We agree that a functional analysis of the role a prosecutor is fulfilling when the alleged misconduct occurs is the touchstone to determining the type of immunity available. We are persuaded that granting absolute immunity to prosecutors from malicious prosecution suits is appropriate when the activities complained of fall within the scope of the prosecutor’s role as an advocate for the state and are intimately associated with the conduct of the judicial phase of the criminal process. In certain cases, determining whether the conduct complained of falls within the ambit of absolute immunity protection may not be an easy task.

Knapper v. Connick, 96-0434, p. 10 (La.10/15/96), 681 So.2d 944, 950. (Emphasis added.)

14Given the myriad of allegations contained in Godfrey’s petition, and given the circumstances of Godfrey being a pro se incarcerated litigant, we find the trial court erred in conducting a hearing on the exceptions without giving Godfrey the opportunity to be heard. His absence at the hearing, with no representation or opportunity to be heard, constituted a denial of due process in violation of the state and federal constitutions.

For the above and foregoing reasons, the judgments of the trial court are reversed. This case is remanded for further proceedings not inconsistent with this opinion. Costs of the appeal are assessed equally between the District Attorney’s Office and the Sheriffs Office.

REVERSED AND REMANDED.


author: PETERS, J.

text:
    PLASTIC SURGERY ASSOCIATES v. The NACHER CORPORATION.
    No. 10-0930.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.
    Lawrence N. Curtis, Lawrence N. Curtis, Ltd., Lafayette, LA, for Plaintiff/Appellant, Plastic Surgery Associates.
    Mark L. Clark, Matthew L. Stedman, Brown Sims, P.C., New Orleans, LA, for Defendant/Appellee, The Nacher Corporation.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PETERS, J.

hThe plaintiff, Plastic Surgery Associates (PSA), appeals from an judgment issued by the workers’ compensation judge (WCJ), sustaining an exception of no subject matter jurisdiction filed by the defendants: The Nacher Corporation (Nacher) and its insurer, Ace American Insurance Company (Ace American). For the following reasons, we vacate the WCJ’s judgment and remand the matter for further proceedings.

DISCUSSION OF THE RECORD

This matter arises from a work-related injury suffered by a Nacher employee, Johnathan Goodie. As a part of the employee’s medical care, Nacher authorized treatment by Dr. Russell C. Romero, a PSA associate. In all, the treatment rendered to Mr. Goodie by Dr. Romero, as authorized by Nacher and as calculated under the workers’ compensation schedule [ La.R.S. 23:1034.2 and La.Admin.Code tit. 40, part I, § 2507], totaled $11,750.17. The payment to PSA for this treatment is the issue in this litigation.

On March 2, 2005, Mr. Goodie entered into a settlement agreement with Nacher and Ace American, not under the Louisiana Workers’ Compensation Act, but pursuant to Section 8(i) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. The settlement, which meticulously details Mr. Goodie’s medical care and purports to satisfy all of his claims for compensation and medical treatment, provides a total settlement amount of $20,356.98 paid directly to Mr. Goodie. In breaking down the categories of the settlement, the settlement agreement stated that $5,354.76 of the total amount was for outstanding medical bills, $4,307.67 was for future medical treatment, and $4,300.22 was for legal representation. The parties to the settlement agreement submitted it to the District Director of the Seventh | ¡^Compensation District, U.S. Department of Labor, Office of Workers’ Compensation Programs, Long-shore and Harbor Workers’ Compensation Act, who approved it.

Slightly over one year and one month later, on April 13, 2006, PSA filed a disputed claim for compensation against Nacher and its workers’ compensation administrator, ESIS Insurance Company (ESIS), seeking payment of the $11,750.17 owed for Mr. Goodie’s medical treatment. It later amended its claim to add Ace American as a party defendant. Among the numerous filings by Nacher and Ace American in opposition to PSA’s claim is the exception of no subject matter jurisdiction which is the subject of this appeal.

Nacher and Ace American filed their exception of no subject matter jurisdiction and attached a copy of the previously-approved Section 8(i) settlement agreement between Mr. Goodie, Nacher, and Ace American. Before PSA filed any response to the exception, the WCJ issued a judgment granting the exception and dismissing PSA’s claim. PSA has appealed this judgment.

OPINION

We find that the judgment of the WCJ should be vacated and the matter remanded to the Office of Workers’ Compensation for further proceedings.

Louisiana Code of Civil Procedure Article 929 provides that declinatory exceptions, “when pleaded before or in the answer shall be tried and decided in advance of the trial of the case.” La.Code Civ.P. art. 929(A) (emphasis added). In the matter before us, the WCJ decided the issue without holding a hearing and giving PSA an opportunity to be heard. Thus, the WCJ’s dismissal of PSA’s claim is an improper ex parte order. Because Article 929 requires a hearing to determine the |smerits of a declinatory exception prior to a trial on the merits of the matter, we find that the WCJ improperly granted judgment in this matter. Accordingly, we vacate the WCJ’s judgment and remand the matter so that a hearing may be held to decide the merits of the declinatory exception of no subject matter jurisdiction.

DISPOSITION

For the foregoing reasons, we vacate the judgment of the workers’ compensation judge and remand the matter for further proceedings. We assess all costs of this appeal to The Nacher Corporation and Ace American Insurance Company.

JUDGMENT VACATED AND REMANDED.

      . The WCJ subsequently dismissed ESIS as a party defendant, leaving only Nacher and Ace American as defendants,


text:
    Norma Jean HARDY and Jonathan David Hardy v. Gene M. AUGUSTINE, et al.
    No. 10-946.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Elizabeth Sheridan Hardy, Thomas & Hardy, Lake Charles, LA, for Plaintiffs/Appellees, Norma Jean Hardy Jonathan David Hardy.
    Frank M. Walker, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Defendant/Appellant, State Farm Mutual Automobile Insurance Company in its Capacity as UM Carrier.
    Michael H. Schwartzberg, Vamvoras & Schwartzberg, James A. Blanco, Mitchell & Blanco, LLC, Lake Charles, LA, for Defendant/Appellant, Gene M. Augustine.
    Russell J. States, Jr., P. Jody Lavergne, States & Lavergne, LLC, Lake Charles, LA, for Plaintiffs/Appellees, Norma Jean Hardy Jonathan David Hardy.
    David Laine Morgan, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendant/Appellant, State Farm Mutual Auto Insurance Company.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

hThe defendant, Gene Augustine, appeals the trial court’s determination that past and future loss of love, affection and companionship and past and future grief and anguish are recoverable as separate elements of general damages that may be included as separate items on a jury verdict form.

FACTS

On July 12, 2008, Gene Augustine swerved his pickup truck into an oncoming lane of traffic. He collided with a motorcycle operated by seventeen-year-old Elliot Hardy. Elliot was killed instantly. Elliot’s parents, David and Norma Jean Hardy, brought separate claims for damages suffered as a result of the wrongful death of Elliot against Augustine and his liability insurer, State Farm Mutual Automobile Insurance Company (State Farm).

Prior to trial, Augustine objected to the jury verdict sheet which treated (1) loss of love, affection, and companionship, and (2) grief and anguish as separate elements of damages for each parent. Ultimately, the jury awarded each parent $200,000.00 for “loss of love, affection, and companionship” and $100,000.00 for “grief and anguish” in addition to $12,630.04 for funeral expenses, $9,316.48 for past medical care, and $8,000.00 for future medical care. Augustine lodged this appeal. State Farm lodged a separate appeal which was consolidated with the present appeal for argument. Hardy v. Augustine, 10-384 (La.App. 3 Cir. 2/2/11), 54 So.3d 1246, 2011 WL 309184.

DISCUSSION

Augustine alleges that the jury made duplicative awards because the trial court erred in allowing the jury verdict sheet to contain separate lines for “loss of love, affection, and companionship” and “grief and anguish.”

|2The first issue we must resolve is whether “loss of love, affection, and companionship” and “grief and anguish” are recoverable as separate elements of general damages that may be included as separate items on a jury verdict form. In McGee v. A C and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770, the supreme court addressed the same question with regard to “enjoyment of life.” We find the following portion of that opinion helpful for our purposes:

As established above, loss of enjoyment of life is a component of general damages and therefore loss of enjoyment of life is not separate and distinct from general damages. Nevertheless, general damages in Louisiana are routinely dissected. Courts commonly list different elements of general damages, including mental anguish and physical pain and suffering, both past and future, separately. In addition, general damages for permanent scarring and/or disfigurement are often listed separately. Thus, allowing a separate award for loss of enjoyment of life would not offend the existing concept of general damages and would reflect the accepted method of listing elements of general damages separately.
Moreover, loss of enjoyment of life is conceptually distinct from other components of general damages, including pain and suffering. Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. Loss of enjoyment of life, in comparison, refers to detrimental alterations of the person’s life or lifestyle or the person’s inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury. In contrast to pain and suffering, whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury.

The First Circuit Court of Appeal, in Matos v. Clarendon Nat’l Ins. Co., 00-2814, p. 9 (La. App. 1 Cir. 2/15/02), 808 So.2d 841, 848, described the difference between pain and suffering and loss of enjoyment of life as follows:

The same injuries may affect people differently. A quiet, reclusive person with a desk job may have pain and suffering from losing a leg. He would have a permanent disability but he would be able to continue work. He may have some loss of enjoyment of life but not to the extent that person who liked to hike, hunt or play tennis would. A person with a bad back and grown children, who does Rnot do heavy lifting, may not lose as much enjoyment of life as someone with young children who cannot play “horse” or enjoy the squeals of a young child being tossed into the air. Life is much more than simple toil and sometimes the greatest pleasures come from the simplest things.
Consider, for example, two boys, one athletic and the other artistic, who are both involved in an accident and suffer similar injuries. Presumably, each boy should be awarded a similar quantum of damages for pain and suffering. However, the same injury may affect the boys very differently. The artist’s lifestyle was not drastically altered by the accident, as he was able to resume his artistic activities after the accident, whereas the athlete’s lifestyle is altered significantly, as he has to resign from his team and can no longer participate in athletics. Arguably, the athlete may be entitled to a greater pain and suffering award if he can demonstrate his mental anguish occasioned by the accident and its consequences. The athlete is damaged, however, well beyond his mental anguish over not being able to participate in athletics because now the athlete is forced to drastically alter his lifestyle as a result of his accident. The athlete is no longer able to participate in athletics, in competition or at practice, and has to find another avocation to fill his leisure time. Moreover, he no longer spends a significant amount of time with his teammates and is forced to seek out new friends. These detrimental changes in lifestyle go uncompensated in an award for pain and suffering. Under these circumstances, the drastic lifestyle change required of the athlete, as compared with the artist, warrants an additional award for the athlete’s loss of enjoyment of life. To ignore the athlete’s change in lifestyle and to award each boy roughly the same quantum of damages because each experienced similar pain and suffering would fail to compensate the athlete for all of his damage.
Given the conceptual difference between pain and suffering and loss of enjoyment of life, a separate award for loss of enjoyment of life is warranted and is not duplicative of the award for pain and suffering, if the damages resulting from loss of enjoyment of life are sufficiently proven. When given the proper jury instructions, jurors can comprehend the difference between the pain and suffering of being in a hospital, undergoing treatment, etc. and the loss of enjoyment of life that occurs because the injured party can no longer participate in a vocation or avocation that the party enjoys.

Id. at 774-76. (Citations omitted.)

As we read McGee, it is not necessarily error to separate elements of general damages on jury forms. However, for such separation to be appropriate, there must |4be a conceptual difference between the elements being separated. In this case, Augustine does not seriously dispute that loss of love, affection, mental pain, suffering and distress can be listed as a separate line on a jury verdict form. Instead, Augustine argues that this element should not be broken down further to separate out “grief and anguish.” We agree.

Applying the analysis expressed in McGee, we fail to see how “grief and anguish” are conceptually different than “loss of love, affection, and companionship.” “Grief and anguish” are the expression of the “loss of love, affection, and companionship” not distinct elements of damage. There is no comparable differentiation between damages suffered by one person over another as in McGee. The injury is the same, though how an individual responds may be different in each case and may result in different awards depending on the evidence presented. Accordingly, we find the trial court erred in allowing a jury verdict sheet with separate lines for “loss of love, affection, and companionship” and “grief and anguish.”

The question now is how to address the jury’s verdict. Augustine suggests that the award is duplicative and that we should amend the judgment to remove the awards of $100,000.00 to each parent for “grief and anguish.” We are not persuaded by this suggestion. We have not held that “grief and anguish” should not be considered as components of general damages. To the contrary, we have simply held that they should not be listed separately on a jury verdict form. Accordingly, the remaining question for this court is whether the jury’s award of $300,000.00 in general damages to each parent for the wrongful death of Elliot Hardy is excessive.

| sThe Supreme Court has defined the role of the appellate court when faced with a challenge to a general damage award on appeal:

[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact.... Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993) (citations omitted), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). In determining whether an abuse of discretion has been shown, the relevant evidence must be viewed in the light which offers the most support to the trial court’s judgment. Id.

Applying these standards, we must consider whether the jury’s award of $300,000.00 for general damages to each parent constitutes an abuse of discretion. After careful review of the record, we find no abuse of discretion in the jury’s award.

DECREE

For the foregoing reasons, the judgment of the trial court is amended to combine the awards of $200,000.00 in “past and future loss of love, affection, and companionship” and $100,000.00 in “past and future grief and anguish” for each parent into an award of $800,000.00 in general damages for David Hardy and an award of $800,000.00 in general damages for Norma Jean Hardy. All costs of these proceedings are taxed to appellant, Gene Augustine..

AFFIRMED AS AMENDED.


author: KEATY, Judge.

text:
    Janice Losey JOHNSON v. LOUISIANA FARM BUREAU CASUALTY INSURANCE CO.
    No. 10-979.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Joseph Payne Williams, Sr., Williams Family Law Firm, LLC, Natchitoches, Louisiana, for Defendant/Appellant, Louisiana Farm Bureau Casualty Insurance Co.
    Keenan K. Kelly, Kelly & Townsend, Natchitoches, Louisiana, for Plaintiff/Ap-pellee, Janice Losey Johnson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|,Defendant, Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau), appeals a judgment granting Plaintiff, Janice Losey Johnson (Johnson), full policy limits under a homeowner’s insurance policy that was effectively still valid at the time Johnson’s house burned down in November 2007. The jury found that although Farm Bureau mailed a notice of intent not to renew Johnson’s homeowner’s insurance, the notice was not delivered. For the following reasons, we affirm.

Facts and Procedural History

Janice and Robert Losey purchased from Farm Bureau, in 2001, insurance policy number H0358756 to cover their home located at 2571 Highway 71 North, Camp-ti, Louisiana, 71411. The policy limit was $297,000 with a $500 deductible. After Robert Losey’s death in 2005, Johnson set up automatic debit with City Bank to pay her recurring monthly bills, including the Farm Bureau premiums.

Farm Bureau, in late 2006, conducted a routine five-year inspection of Johnson’s property and decided not to renew her policy upon its expiration in July of 2007 because the house had become an unacceptable risk. On May 2, 2007, Farm Bureau mailed a written notice of nonrenewal properly addressed to Johnson at the mailing address on her policy, Post Office Box 366, Campti, Louisiana, 71411. It deducted the final premium from her account on May 14, 2007, and on July 10, 2007, her policy expired.

On November 7, 2007, Johnson’s house burned down. This lawsuit arose after Farm Bureau rejected Johnson’s claim for total loss caused by the fire on the grounds that Johnson did not have a current homeowner’s insurance policy with them.

|2Johnson filed a petition for relief in the 10th Judicial District Court, Natchitoches Parish, Louisiana on July 24, 2008, seeking monetary relief for the losses she sustained. In her petition, Johnson alleged that she was covered by the policy, that she was not notified that the policy had expired until after the fire, and that her losses totaled approximately $300,000.

Farm Bureau filed a general denial, asserting that Johnson was provided with written notice of nonrenewal more than thirty days prior to the termination of her policy, the policy was not in effect at the time of the fire, and, therefore, Farm Bureau was not responsible for Johnson’s losses.

A jury trial took place on January 26, 2010, on Johnson’s petition for relief. At the conclusion of the trial, the jury was asked to answer two questions: first, did Farm Bureau properly mail a notice of its intent not to renew Johnson’s policy on May 2, 2007, and, second, could they “find by a preponderance of the evidence that Louisiana Farm Bureau Mutual Insurance Company’s notice of intent not to renew Janice Losey’s homeowners insurance policy dated May 2, 2007, was delivered by the United States Post Office to Janice Lo-sey’s Post Office Box?” After deliberation, the jury found Farm Bureau had properly mailed the notice on May 2, 2007 and that the notice had not been delivered to Johnson.

On February 9, 2010, having found that the jury verdict was properly voted upon and the law and evidence were in favor thereof, the trial court awarded Johnson full benefits under the policy: $297,000 less a $500 deductible, plus judicial interest. Accordingly, judgment was signed in favor of Johnson and against Farm Bureau.

Farm Bureau is now before this court on appeal asserting the following three assignments of error:

|sl. That the jury committed manifest error and was clearly wrong when it found that Johnson did not receive the notice of nonrenewal;
2. That the trial court committed error as a matter of law in awarding judgment to Johnson; and
3. That the trial court committed error as a matter of law when it signed the judgment in favor of Johnson.

DISCUSSION

Manifest Error by Jury

We must decide whether the jury was manifestly erroneous when it found that the notice of nonrenewal that Farm Bureau mailed to Johnson on May 2, 2007, was not delivered.

Pertinent Law

In order to understand the importance of the jury interrogatories at issue herein, it is imperative to review the law governing nonrenewal of insurance policies at the time of the fire found in La.R.S. 22:636.6. This statute requires that an insurance company mail written notice of its intent to not renew an existing policy to the insured at the address listed on their policy at least thirty days prior to the policy expiration. La.R.S. 22:636.6. The purpose of the notice is to provide the insured with ample time to obtain insurance with another company before their existing policy expires. Broadway v. All-Star Ins. Corp., 285 So.2d 536 (La.1973).

| .¡Proof of mailing said notice creates a prima facie rebuttable presumption that the notice was delivered to the insured. Funk v. La. Underwriters Ins. Co., 613 So.2d 1018 (La.App. 3 Cir.), writ denied, 616 So.2d 705 (La.1993). The burden then shifts to the insured to prove “by affirmative evidence, nondelivery.” Id. at 1021-22. The presumption of delivery is overcome when the insured provides affirmative proof that the notice was not delivered. Collins v. State Farm Ins. Co., 08-790 (La.App. 4 Cir. 10/14/08), 997 So.2d 51, writ denied, 08-3012 (La.2/20/09), 1 So.3d 499.

The jury in this case was tasked with answering two interrogatories. The first was whether Farm Bureau mailed the notice of nonrenewal to Johnson at the address listed on her policy and at least thirty days before said policy expired as required by La.R.S. 22:636.6. Having found that Farm Bureau mailed the notice, the jury then had to decide if Johnson was able to prove by a preponderance of the evidence that although the notice had been mailed, it had not been delivered to her. The jury found that Johnson met her burden. Farm Bureau contends that the jury committed manifest error and was clearly wrong in answering interrogatory number two.

Standard of Review

When reviewing a trial court’s finding of fact, we use the manifest error/clearly wrong standard of review set forth by our supreme court in Rosell v. ESCO, 549 So.2d 840 (La.1989). A court of appeal, after reviewing the record in its entirety, cannot overturn a reasonable finding of fact even if there is some conflicting testimony or it would have chosen differently between two permissible views of the evidence. Rosell, 549 So.2d 840. Further, the supreme court made it clear that when “a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly |-wrong.” Id. at 845. Indeed, Rosell prohibits a court of appeal from overturning a finding of fact based on credibility determinations except “[wjhere documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story” in which case the court of appeal may determine that the fact finder was manifestly erroneous. Rosell, 549 So.2d at 844-45.

The reason for this stringent standard of review is because an appellate court’s “initial review function is not to decide factual issues de novo ” and “only the factfinder can be aware of variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell, 549 So.2d at 844.

At trial, the jury necessarily made a finding of fact based on a credibility determination when it concluded that the notice of nonrenewal was not delivered to Johnson’s post office box. In order to find that the jury was manifestly erroneous in reaching that conclusion, we must find that either documents and objective evidence so contradict the testimony presented so as to render it absurd or the testimony presented was so implausible on its face that a reasonable fact finder would not credit it.

Review of Record

At trial, Johnson testified that she did not receive the notice of nonrenewal mailed to her in May 2007. Her testimony was corroborated by family friend, Jackie Manausa, who picked up her mail for her several times a week. Johnson further testified that she opened every piece of mail sent to her except for her bank statements, and, not only did she not receive the notice, but she had no knowledge of [ ,;the notice of nonrenewal. She testified that in 2006, a Farm Bureau representative discussed problematic trees on her property with her, and she immediately had them removed. When the fire occurred on November 7, 2007, she believed she was still covered by the Farm Bureau policy, and she testified that if she had known that she was no longer covered, she would have obtained insurance through another provider.

Johnson also testified that her mail had not been delivered to her several times before. Although typically the mix up was with her sister, allowing Johnson to recover the misplaced mail easily, there was no testimony at trial to support a conclusion that the notice of nonrenewal was delivered to her sister and returned to Johnson.

Farm Bureau argues that Johnson should have known that her policy was expired because they stopped withdrawing payments in May 2007. It relies on testimony by Johnson wherein she admitted that she did not open mail from her bank, including bank statements and that she did not reconcile her checking account. Testimony about her banking practices was presented at trial, and the jury was able to take that testimony into consideration during its deliberations.

Application of Standard of Review to Instant Case

In deciding whether the notice of nonrenewal was delivered to Johnson, the jury had to make a determination of the credibility of the witnesses. Although some of the testimony presented is questionable, we cannot find manifest error in the jury’s credibility determination nor in their determination that the notice of non-renewal was not delivered to Johnson unless the testimony is so absurd that a reasonable person |7would not credit it. See Rosell, 549 So.2d 840. Twelve people heard all of the testimony presented at trial and unanimously decided that the notice of nonrenewal had not been delivered to Johnson. After carefully reviewing the entire record, we find that the jury was not manifestly erroneous in their finding of fact. As previously stated, our job is not to review cases de novo, and we must afford great deference to the fact finders’ determinations as the jury had the opportunity to see facial expressions or hear the tones of voices of the witnesses. Because it was able to take all of the nuances of the testimony into consideration, and because its finding of fact was based on a credibility determination, we find that the jury’s answer to interrogatory number two was based on all of the evidence and testimony and was correct.

Error by Trial Court

Farm Bureau also asserts that the trial court was wrong when it awarded judgment in favor of plaintiff and signed the judgment. It is well settled that after trial by jury, a trial court must prepare and sign a judgment in accordance with the verdict of the jury. La.Code Civ.P. art. 1916.

During the trial proceedings, neither party objected to the jury instructions or jury inteiTOgatories, nor did they file a motion for judgment notwithstanding the verdict. The trial court did not err in signing a judgment that granted Johnson full policy limits less the deductible after the jury found that she rebutted the presumption of delivery of the notice of nonre-newal, effectively making the policy valid at the time of the fire.

IsDECREE

For the foregoing reasons, we affirm the jury’s finding of fact and the judgment in favor of plaintiff/appellee, Janice Losey Johnson. All costs of this appeal are assessed to the defendant/appellant, Louisiana Farm Bureau Casualty Insurance Company.

AFFIRMED.

      . Title 22 of the Revised Statutes was renumbered pursuant to Acts 2008, No. 415, § 1 of the Louisiana legislature, effective January 1, 2009. The current number of the pertinent statute governing nonrenewal of insurance policies is now 22:1335. The renumbering did not change the substance of the provisions.

      . Broadway was decided under the "cancellation” statute, La.R.S. 22:636. In Collins v. State Farm Insurance Co., 08-790 (La.App. 4 Cir. 10/14/08), 997 So.2d 51, writ denied, 08-3012 (La.2/20/09), 1 So.3d 499, the court noted that although Broadway was decided under the "cancellation” statute, there was no reason in the legislative history of the statutes or by application of logical principles not to apply the same purpose to the "non-renewal” statutes found in La.R.S. 22:636.1.

      . Farm Bureau makes much about Johnson’s banking practices, particularly her testimony that she never opened nor reconciled her bank statements. Although this practice may be irresponsible, we note that even if Johnson had noticed that Farm Bureau was no longer withdrawing premiums from her account, compliance with the statute might still be lacking if she could prove that the written notice of May 2, 2007 was not delivered to her post office box.