author: PICKETT, Judge.

text:
    STATE of Louisiana v. Robert Wayne AYMOND, Sr.
    No. 08-1292.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      James C. Downs, District Attorney-Ninth JDC, Willard Trichel Armitage Jr., Assistant District Attorney, Alexandria, LA, for Plaintiff-Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendants Appellant, Robert Wayne Aymond, Sr.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

FACTS

|,Around 8:00 p.m. on March 19, 2007, the victim, K.C., was sitting on a swing in Kees Park in Pineville, Louisiana, listening to music on her CD player. A white man on a bicycle, wearing a dark t-shirt, dark pants, and a baseball cap approached her, and they had a short conversation. K.C. told the man to leave her alone, and he left the area. The man returned, however, and grabbed K.C. by the arm. He said he had a gun and would shoot her if she tried to run or scream.

The man dragged K.C. to a wooded area at the back of the park and told her to remove her clothes. K.C. refused to completely disrobe, but unzipped and dropped her pants. At some point when they first arrived at the wooded area, the man forced K.C. to perform oral sex and ejaculated in her mouth. The man then attempted anal and vaginal sex with K.C. but was able to achieve only partial penetration. He removed his shirt and used it to wipe between her legs and shoved the shirt into K.C.’s vagina. Lastly, he shoved his fingers into her vagina. The man told K.C. to pull up her pants, and he led her through the wooded area. When he started to walk away, K.C. “took off the other direction” and ran to her nearby home.

K.C. testified she had seen this man before the night of the attack, possibly three times. He stopped her once and spoke to her briefly, and about a week later, he stopped her and her husband and spoke to them.

On the night of the attack, Officer Neal Edwards, a patrolman with the Pineville Police Department, saw a white man riding a bicycle on the sidewalk in ^Pineville around 8:10 p.m. The man was wearing a black shirt with gold lettering on it, black pants, a dark blue cap and black shoes. Officer Edwards verbally warned the man about a city ordinance against riding an unlit bicycle at night. At trial, Officer Edwards identified the defendant as the man he saw that night.

Between 7:45 p.m. and 8:15 p.m. on March 19, 2007, Trudy Nelson, a security guard at Louisiana College in Pineville was standing on the porch of the security office when she saw a white man walking his bicycle. The man was about six foot, five inches tall, of medium build, with facial hair stubble and a full head of hair. He was wearing a black t-shirt with a yellow design, black pants and dark tennis shoes, and he had an approximate twenty-six-inch bike with racing handlebars. After a short conversation with Nelson, the man headed north toward the Kees Park area.

Nelson carried a radio connected with the Pineville Police Department. When she heard a call about a man on a bicycle attacking a lady in Kees Park, she called the police and informed them about the man she had seen approximately an hour earlier.

KC.’s husband called the police and reported the rape when she got home. Officer Vincent Cyprian of the Pineville Police Department answered the call and questioned K.C. about the incident. K.C. was crying and seemed fearful and shaken. Officer Cyprian then went to Kees Park, but he did not cross the creek into the wooded area where K.C. said she had been raped.

Meanwhile, Detective Tamara Franklin of the Pineville Police Department took K.C. to the Rapides Regional Medical Center to have a sexual examination kit performed by Dr. Francis M. Brian, Jr., the Rapides Parish coroner. Dr. Brian’s examination of K.C. revealed a very large abrasion on her back, abrasions on her knees, what appeared to be a fingerprint on her neck, mud on her feet and organic | ^particulate matter resembling leafy material in the area of her buttocks between her legs. Dr. Brian found K.C. to have a flat affect, not unusual for a rape victim. His observations, the history related by K.C. and his examination were consistent with sexual assault. Although Dr. Brian found no evidence of vaginal or rectal tearing or trauma, and although the lack of tearing can be consistent with consensual sex, he did not consider the lack of tearing or trauma to be unusual in a rape case.

As part of the sexual examination kit, Dr. Brian took swabs of the mouth, vaginal and anal areas, as well as vaginal washings, to look for the presence of DNA other than that of K.C. Those swabs became part of the evidence sent to the North Louisiana Criminalistics Laboratory for DNA testing.

Kelly Raley, a forensic biologist with the laboratory, examined the swabs, washings, K.C.’s pants and the defendant’s jeans and t-shirts for DNA in hopes of comparing a known DNA sample with an unknown one. Her search, however, yielded no sperm or prostate specific antigen (PSA) on K.C.’s pants, the defendant’s clothing, the oral swab or vaginal washings. Although PSA was present on the rectal swab, there was no sperm or amplifiable DNA on it. PSA is a protein found in male seminal fluid, indicating seminal fluid may have been present.

Detective Beau Edmonds was part of the team who answered the call the night of the incident and investigated it. He met a team at the back end of the park, where they found a stereo headset on the creek bank. He returned to the site the next day with Detective Franklin and K.C. and found K.C.’s CD player, CD case and flip-flop shoes. K.C. testified she herself located the items.

Because K.C.’s description of her attacker’s clothing matched the clothing description shown on the field interview with the defendant completed by Officer |4NeaI Edwards the night before, Detective Franklin developed the defendant, Robert Wayne Aymond, Sr., as a suspect and requested a photo lineup from the Louisiana State Police. She gave the defendant’s name to the analyst on duty, who matched him with five others to create a photo lineup. The analyst used a picture of the defendant from the State Police database and emailed the photo lineup to Detective Franklin. She then printed the photographs, labeled each picture with a number, cut out each picture and placed them all in an envelope.

Detective Roy Fore met K.C. at her home, where Detectives Franklin and Ed-monds introduced him and left him alone with K.C. to present the lineup. Protocol called for this type of presentation by someone without knowledge of the case so that any type of coercion on Detective Fore’s part was not an issue. Indeed, Detective Fore did not know which photo portrayed the suspect. He opened the envelope, shuffled the six photos and presented them in random order, placing one on top of the other for K.C. to view.

As each photo was presented, K.C. shook her head until Detective Fore presented photo number six. K.C. gave no verbal indication when she saw that photo, but appeared to be upset and about to cry. Detective Fore presented the set of photos again and got the same reaction the second time K.C. saw photo number six. Although K.C. excluded the other five photos and did not exclude the photo of the defendant, K.C. never identified the man in the photo as her attacker. Her reaction to the photo indicated to Detective Fore the man could possibly be the suspect. When Detective Fore told Detectives Franklin and Edmonds of KC.’s reaction, they confirmed the man in photo number six was their suspect. At trial, Detective Fore identified the defendant as the man in photo number six.

|SK.C. testified she told Officer Cyprian she could identify her attacker if she saw him again. She said she never told the police she could not identify her attacker. She learned the defendant’s name when she read it in the newspaper. At one point, K.C. testified she positively identified the defendant the first time Detective Fore showed her the photos. She told Detective Fore the defendant was the man who raped her. At another time, she testified she told Detective Fore she was not certain, but one of the pictures looked like her attacker. However, when Detective Franklin showed her the defendant’s mug shot, she knew it was him. She then said that after Detective Fore left, Detectives Franklin and Edmonds told her the defendant had said enough for them to know he did it. K.C. testified Detective Franklin showed her the defendant’s mug shot, a different photo than she had seen in the lineup, and told K.C. the defendant had confessed. Someone else, whose identity K.C. did not recall, had also told her the picture she “had picked out of the lineup just happened to be the right guy.”

In contrast, Detective Franklin testified K.C. could never positively identified the defendant. Detective Franklin said she never showed K.C. a mug shot of the defendant, and she never told K.C. the defendant had confessed. K.C. testified that, if any police officers testified she had said she could not identify her attacker, they were untruthful.

Detective Franklin provided an affidavit and obtained a search warrant for the defendant’s home on March 22, 2007. The warrant sought property described as “Black T shirt with gold witting [sic], Black pair of blue jeans, dark Blue Baseball hat, Mountain bike, Epithelial Cells via Buccal Swab.”

IfiWhen Detective Franklin arrived at the defendant’s home to execute the search warrant, his mother showed her to the defendant’s bedroom. The defendant was found behind the bathroom door, with the bathroom light off. Detectives Franklin and Edmonds took the defendant into custody, placed him in handcuffs, advised him of his rights and transported him to the Pineville Police Department. Items seized as a result of the warrant were black jeans, black tennis shoes, two dark blue baseball caps, a black cap, a light blue cap, a black t-shirt with “G-Money” written on it and a black t-shirt with “I am what I am” written on it.

At the station, Detective Franklin read the defendant his rights and watched him sign an Advice of Rights form and a contact information form. The defendant did not ask for legal counsel until after he had signed the forms and Detective Franklin talked to him for approximately twenty minutes. The defendant was not handcuffed or restrained in any manner during the interview. When the defendant indicated he did not want to talk any longer and wanted a lawyer, the interview stopped. The defendant never appeared to be a slow learner to Detective Franklin, and he appeared to understand the constitutional rights that were reviewed with him. Again, twenty minutes elapsed between the time Detective Franklin explained the defendant’s right to counsel and the time the defendant requested a lawyer, indicating he had at least the level of understanding required to link his right to his request after that length of time.

During the interview, prior to the defendant’s request for counsel, the defendant first told Detective Franklin he had never seen K.C. before and he had never had any kind of contact with her. He said he had been at the home of a family member in Alexandria and he left that residence and rode his bicycle directly to his |7residence, with no stops. However, when Detective Franklin advised she knew of the field investigation by Officer Edwards, the defendant admitted he had been at Kees Park and he had seen K.C.

According to the defendant, K.C. approached him and said she would have sex with him for a cigarette. The defendant told Detective Franklin he refused KC.’s offer and went home. When asked about the whereabouts of his bicycle, the defendant said it had been stolen from his residence. He then asked for an attorney, and the interview ended.

During the interview, the defendant asked to use the restroom. He entered the restroom alone, shut the door and stayed for a long time. Detective Ed-monds knocked on the door and the defendant indicated he was not finished. When another officer reported hearing a noise in the bathroom, Detective Edmonds ran to the bathroom door, found it locked and ran outside. He found the defendant trying to push up the window, trying to get out. Detective Franklin also saw the defendant’s arm protruding halfway out of the window. The defendant had climbed into the bathtub below the window and was found in the bathtub when the bathroom door was opened. There was no evidence he had actually used the bathroom. The defendant was then released to the jailer.

The defendant was charged with aggravated rape and convicted at a bench trial of forcible rape, in violation of La.R.S. 14:42.1. He was sentenced to twenty years at hard labor, the first two years to be served without benefit of probation, parole or suspension of sentence, and given credit for time served. He now appeals his conviction and alleges two assignments of error.

ASSIGNMENTS OF ERROR

|al. The trial court erred in not ruling on the defendant’s motion to suppress the evidence.

2. The evidence was insufficient to support the conviction for forcible rape.

ERRORS PATENT

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

ASSIGNMENT OF ERROR

NUMBER ONE

The defendant alleges the trial court erred by failing to rule on his pre-trial motion to suppress evidence. On March 18, 2008, the defendant filed a “Motion to Suppress and In Limine” in open court which asked the trial court:

... to suppress statements of other crimes, and evidence by the defendant and witnesses for the following reasons to wit:
1.
That all statements made by [Defendant] to officers at the time of his arrest when he stated, “I want a lawyer.” (sic)
2.
That all statements made by Robert Smith (sic) which the State notified defense Counsel of in its 768 Notice at the end of the jury selection on yesterday.
3.
All statements by Pineville police in the video tape narrating the scene of the crime which the victim told police.

A second “Motion to Suppress and In Li-mine” filed in open court the same day asked the court:

... to suppress the introduction of any videotapes for the following reasons to wit:
1.
|flOn information and belief on the STATE will attempt to introduce copies of videotapes without any proof of authenticity or chain custody (sic).

Trial began the same day, March 18, 2008. At the beginning of the proceedings, the defendant’s counsel raised the motions. She argued that a videotape contained a narrative by Detective Franklin that was hearsay. After that short statement, she told the court she would “submit the motions based on what is written.” The state’s attorney advised the court he would probably not use the video, but if he did, he would turn down the audio so that the narrative would not be heard. Thus, any issue regarding the suppression of the videotape became moot at that point. The tape was not used at trial. The defendant’s counsel expressed no further objection.

The state’s attorney further advised the court that, with regard to the defendant’s efforts to suppress his statements, the state intended to introduce only statements made by the defendant prior to the time the defendant indicated he wanted an attorney. The court referred that issue “to the merits,” noting the state would have to provide the proper foundation for any such evidence to be admitted. The defendant’s counsel stated no objection.

In fact, an evidentiary hearing on a motion to suppress is mandatory only when it alleges facts that require the granting of relief. State v. Porter, 615 So.2d 1073 (La.App. 4 Cir.), writ denied, 616 So.2d 673 (La.1993). The defendant’s motions here allege no facts at all. Rather, they simply ask the trial court, without any memoranda or legal authority to support them, to suppress statements and video tapes.

|inEven though, according to Porter, a hearing of the motions was not mandatory, the trial court nevertheless addressed the substance of the motions without formally pronouncing whether the motions were granted or denied. Once the state’s attorney informed the court he would not seek to introduce the video tapes into evidence, or if he did, he would turn down the volume so that the objectionable material would not be audible, that issue required no further hearing. Further, when the trial judge informed the parties he would not allow other objectionable evidence into the record without the proper foundation, he removed the defendant’s issues regarding statements the defendant made prior to advising he wanted a lawyer, chain of custody and proof of authenticity. The state expressed no intention to use any other statements.

Importantly, the defendant failed to object when the trial judge announced how he would deal with the issues addressed in the motions. When the defendant’s counsel first raised the motions to suppress, she brought up only the issue of the video tapes. The state’s attorney, not the defendant, asked to address the issue of the statements. When the state’s attorney said he intended to use only statements made prior to the time the defendant said he wanted a lawyer, this exchange followed:

THE COURT:
Well, let’s just refer that to the merits. You would have to show that anyway. You’d have to provide a foundation at trial.
So you’re not going to use the videotape and you’ll provide a foundation for any statements made. And anything that was said was said prior to him saying, I want a lawyer, is what you said?
[STATE’S COUNSEL]
That’s right.
THE COURT:
InAll right. Well, it would be referred to the merits and I’ll pay attention to that then, Ms. Brown.
[DEFENDANT’S COUNSEL]
Okay....

The fifth circuit has held, under similar facts, that a defendant waives his right to a hearing of a motion to suppress when he proceeds to trial without raising any issues regarding the motion. State v. Washington, 98-69 (La.App. 5 Cir. 1/26/99), 727 So.2d 673. In Washington, the defendant accepted the state’s assertion that no motion to suppress was applicable, lodged no further objection and did not reurge any motion to suppress prior to trial. The fifth circuit held the defendant therefore waived his right to hearing of his motion to suppress.

The same thing happened here. The defendant raised the issue of the motions to suppress filed that day in open court, and the court indicated it would require the proper foundation for the statements that were the subject of the motions. The defendant expressed no objection to the court’s plan, and in fact responded with “okay.” Trial proceeded with no objection to the court’s handling of the motions and without any further motions being made. The defendant thus waived his right to argue this issue on appeal. Id.

The defendant’s brief mistakenly argues the motions were not decided prior to trial, but were erroneously deferred and then denied during the trial. In reality, the defendant erroneously confuses the motion to suppress made during trial with the two motions addressed at the beginning of trial. The first two motions were not revisited during trial. However, during the cross-examination of K.C., the defendant’s counsel questioned K.C. about the photo lineup and raised a new motion to 112suppress — apparently one related to a mug shot, not the video tapes and statements addressed in the original motions:

[THE WITNESS, K.C.]

A. I picked a picture out and I said, “I’m not for certain, but this looks like him.” Then when she showed me his mug shot—
Q. Who is she?
A. —in color—
Q. Who is she?
A. Detective Franklin.
Q. Okay. She showed you what— when now?
A. Oh, God.
MS. BROWN:
Motion to Suppress requested, Your
Honor.
THE COURT:
Motion to Suppress?
MS. BROWN:
Yes.
THE COURT:
All right.
MS. BROWN:
Go ahead.
THE COURT:
The Motion to Suppress is denied.
|,aMS. BROWN:
Okay.
THE COURT:
A Motion to Suppress is before trial—
THE WITNESS:
When she showed me—
THE COURT:
—not during the trial.

The defendant’s counsel then continued with her questioning of K.C. along the same lines, asking her about the defendant’s mug shot.

The defendant argues the trial court deferred the motions to suppress to the merits and then denied the same motions during the trial because they had to be made prior to trial. The above colloquy show the exchange actually concerned a new and different motion to suppress, apparently addressing KC.’s viewing of the defendant’s mug shot, although the material sought to be suppressed was never clearly identified.

A motion to suppress must be filed within fifteen days after arraignment unless the opportunity for such a filing did not exist, neither the defendant nor his counsel was aware of the existence of the evidence or the failure to timely file the motion was otherwise excusable. La.Code Crim.P. arts. 521, 703(C). The trial court has great discretion in ruling on a motion to suppress. State v. Williams, 95-1971 (La. App. 4 Cir. 11/16/95), 665 So.2d 112.

Here, the motion made during the defendant’s trial did not even clearly identify the evidence sought to be suppressed. The defendant’s counsel simply stated, “Motion to Suppress requested,” when K.C. mentioned a mug shot, and the trial judge I , Responded with a denial of the motion. No argument was made, no evidence was presented to show if or why the defendant or his counsel was previously unaware of the evidence, and no excuse was shown for the untimely motion. And, the mug shot was never offered as evidence. The trial judge properly denied the motion to suppress made during trial, as it was within his discretion to do.

The defendant’s brief argues that a hearing of the motion to suppress “could have resolved factual issues involving critical violations of [the defendant’s constitutional rights.” The defendant complains of “the illegal search of his home, his illegal arrest, and his illegal interrogation” and the out-of-court “suggestive identification” of the defendant. The motions to suppress, however, never raised any issues involving the search, the arrest or KC.’s “suggestive identification” of the defendant. Suppression of evidence of the alleged illegal interrogation was addressed at the beginning of trial, without objection from the defendant.

A new basis for a motion to suppress cannot be raised for the first time on appeal. A defendant seeking review of a motion to suppress on appeal is limited to the grounds articulated at trial. State v. Johnson, 389 So.2d 372 (La.1980); State v. Bass, 595 So.2d 820 (La.App. 2 Cir.), writ denied, 598 So.2d 373 (La.1992). Here, the defendant’s brief argues issues concerning probable cause to issue the search warrant, reasonable cause for the arrest and the procedure for K.C.’s identification of the defendant. None of these issues were raised in the lower court. As such, they are improperly presented on appeal and cannot be considered. Id.

ASSIGNMENT OF ERROR NUMBER TWO

As his second assignment of error, the defendant argues the evidence at trial was insufficient to convict him of forcible rape. The defendant argues the only | ^evidence linking him to the rape was K.C.’s identification of him at the trial. This is an incorrect assessment of the evidence presented at trial.

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The essential elements of the crime of forcible rape under the facts here are anal, oral or vaginal sexual intercourse without the lawful consent of the victim, when the victim is prevented from resisting by force or threats of physical violence, and the victim reasonably believes resistance would not prevent the rape. La.R.S. 14:42.1(A)(1).

In this case, the trial judge evaluated the favorable evidence for both the state and the defendant when rendering his guilty verdict. Favorable to the state was the description of the rapist’s clothing as a dark shirt with gold writing that felt rubbery and dark pants. The search of the defendant’s home yielded clothing similar to what K.C. described. One of the items was a black t-shirt with thick writing that had a rubbery texture. K.C.’s description of her attacker, except for her description of his hair at the time of his arrest and at trial, matched the defendant. Photographs of K.C. showed scratches on her back and knees, along with a hand mark on her throat. She was crying and fearful when police arrived at her home. Dr. Brian found K.C. exhibited physical and emotional evidence of rape. Organic debris found on K.C.’s body corroborated her testimony.

11 (¡Items K.C. said she left in the area when she fled the scene were found where she said they would be. K.C. recognized her attacker because she had seen him three or four times prior to the night of the rape. The patrolman and a security guard saw the defendant in the area on a bicycle, in clothing that fit K.C.’s description of her attacker shortly before the rape occurred.

When the warrant was executed, police found the defendant hiding in the bathroom of his home. The defendant was untruthful about his actions on the night of the attack. He first said he had not stopped on his way home, then, when confronted with the fact an officer had talked to him that evening, admitted he had talked -with K.C. at the park. Further, the defendant attempted to flee while he was being questioned at the police station, and the trial judge considered that fact as evidence of guilt. See State v. Richards, 06-1553 (La.App. 3 Cir. 5/2/07), 956 So.2d 160, writ denied, 07-1129 (La.12/14/07), 970 So.2d 529 (“Evidence of flight, concealment, and attempt to avoid apprehension indicates consciousness of guilt.” Id. at 172).

Evidence considered favorable to the defendant included the fact that K.C. could not identify him by name. She could not identify him from the photo lineup, even though she said she had seen the defendant three or four times before that night. Although the defendant told K.C. he had a gun, K.C. never saw a weapon, and none was ever found. K.C. said she thought her attacker wore white shoes. The defendant was described as wearing black shoes on the night of the assault, and black shoes were seized from his home. K.C. saw no tattoos on her attacker. The defendant had very large tattoos on both forearms. K.C. said her attacker had curly, scraggly hair, while the photo used in the photo lineup showed the defendant had close-cropped [ 17hair. The trial judge, however, noted he never saw the defendant’s booking photo, taken at the time of his arrest, and he did not know the date the photo used in the lineup was taken. No footprints, fingerprints or DNA were recovered.

The trial judge first found the evidence established K.C. was raped. The physical evidence was consistent with rape and with K.C.’s testimony. Thus, the next question addressed was who committed the rape. The time periods were consistent regarding the defendant’s presence at the park. Indeed, the defendant himself admitted (after first denying he had stopped on his way home), that he was in the park and had talked to K.C. K.C.’s description of her attacker’s clothing matched the clothing found at the defendant’s home. The trial judge, because “[tjhere’s so much about the testimony that’s corroborated,” had no doubt the defendant committed the rape.

Discussing his decision to convict the defendant of forcible rape rather than aggravated rape, the trial judge found the element of oral, anal or vaginal intercourse was present. He then found K.C. was prevented from resisting the act by force or threats of physical violence and reasonably believed her resistance would not prevent the rape.

The trial judge defined “reasonable doubt” as “based on reason and common sense, and it is present when after you have carefully considered all the evidence ... you cannot say you’re firmly convinced of the charge.” We find the trial judge acted rationally in finding proof beyond a reasonable doubt of the essential elements of forcible rape. See Leger, 936 So.2d 108.

lisWhen reviewed in light of the Jaelcson standard, we find the totality of the evidence is sufficient to establish Defendant’s guilt beyond a reasonable doubt. We find the defendant’s second assignment of error has no merit.

CONCLUSION

The defendant’s conviction for forcible rape is affirmed.

AFFIRMED.

      . In accordance with La.R.S. 46:1844(W), initials have been used to protect the privacy of the victim.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Anthony A. TAPP.
    No. KA 08-1262.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Anthony A. Tapp.
    Earl B. Taylor, District Attorney, Opel-ousas, LA, for Plaintiff/Appellee, State of Louisiana.
    Jennifer Ardoin, Assistant District Attorney, Opelousas, LA, for Plaintiff/Appel-lee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hThe Defendant, Anthony A. Tapp, was charged by bill of information filed on August 10, 2006, as a principal to armed robbery, a violation of La.R.S. 14:64 and 14:24. He entered a not guilty plea on September 1, 2006.

Counsel for Defendant filed a number of motions, including a motion to suppress. In a joint stipulation, the parties acknowledged satisfaction of all motions, excluding the motion to suppress. The motion to suppress sought exclusion of any statements made by Defendant while in custody, and suppression of any evidence obtained via police lineup. The trial court denied the motion to suppress on September 28, 2006, stating: “Motion fails to allege facts as required by L. Cr. P. Art. 703(E)(l)for evidentiary hearing. (See State v. Washington, 727 So.2d 673).”

Trial commenced on January 9, 2008, with jury selection, but was continued on the merits until January 31, 2008. Defendant was found guilty of armed robbery by the jury on January 31, 2008. On July 3, 2008, the court sentenced Defendant to twenty years at hard labor, without the benefit of parole, probation, or suspension of sentence. An oral motion to appeal was granted.

Defendant filed a motion to reconsider sentence on July 14, 2008, which was denied on August 1, 2008. Defendant now assigns as error: (1) the trial court’s denial of the motion to suppress; and (2) alternatively, that counsel was ineffective in failing to allege necessary facts in support of the motion to suppress which would have required a hearing on the motion. We note that we have reviewed the record and find no errors patent. We move, then, to the assignments of error.

| ¡.MOTION TO SUPPRESS

Defendant argues that State v. Washington, 98-69 (La.App. 5 Cir. 1/26/99), 727 So.2d 673, does not support the trial court’s denial of an evidentiary hearing on the motion to suppress.

Louisiana Code of Criminal Procedure Article 703(E)(1) provides:

An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. The state may file an answer to the motion. The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant’s testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant’s testimony at the trial on the merits.

Defendant acknowledges application of this article and the requirement of allegations of fact in support thereof; however, he argues that the facts in Washington, were improperly applied by the trial court. His argument is that a motion to suppress was set for hearing in that case, and that the defense counsel waived the hearing after accepting the state’s argument that no motion to suppress was applicable. He urges that the court failed to give him an opportunity to waive the hearing.

In Washington, the court stated:

We believe that defendant waived his right to have the motion to suppress considered. First, defendant did not allege facts in his motion to suppress as required by La.C.Cr.P. art. 703 E. Second, defendant indicated at the hearing that he was satisfied with the state’s response to his motion to suppress. Finally, defendant proceeded to trial without raising any issue that he had an outstanding motion to suppress. State v. Williams, 97-1135 (La.App. 5 Cir. 5/27/98), 714 So.2d 258. Accordingly, we find no merit to defendant’s first assignment of error.

Washington, 727 So.2d at 676.

Defendant does not argue that the facts alleged in the motion to suppress were sufficient to mandate a hearing pursuant to La.Code Crim.P. art. 703(E)(1), although he asserts that such facts existed. The motion only asserted:

|sl- Defendant is charged with the offense of Armed Robbery[;]
2. The Defendant further alleges that he anticipates that any statements he has made while in Police custody will be offered as evidence against him at any trial[;]
3. Defendant further alleges that he anticipates that any evidence as a result of a Police Lineup will be offered as evidence against him at any trial.

Louisiana Code of Criminal Procedure Article 703 provides that a party may move for suppression of evidence on the ground that it was unconstitutionally obtained, and may move to suppress any statement made by him on any constitutional ground. The motion to suppress did not allege any constitutional issues, and a hearing was, therefore, not required. This assignment of error is without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant next asserts ineffective assistance of counsel due to counsel’s failure to urge sufficient facts in the motion to suppress to require a hearing. In State v. Smith, 07-468, pp. 8-9 (La.App. 3 Cir. 10/31/07), 969 So.2d 694, 700, writ denied, 07-2484 (La.5/16/08), 980 So.2d 707, this court stated:

This court considered a similar issue in State v. Prudhomme, 02-511, p. 16 (La. App. 3 Cir. 10/30/02), 829 So.2d 1166, 1177, writ denied, 02-3230 (La.10/10/03), 855 So.2d 324, stating:

Failure to file a motion to reconsider the sentence does not necessarily constitute ineffective assistance of counsel. State v. Texada, 98-1647 (La.App. 3 Cir. 5/5/99); 734 So.2d 854. Nevertheless, the defendant may have a basis to claim ineffective assistance of counsel when he can show a reasonable probability, but for defense counsel’s error, his sentence would have been different. Id. Furthermore, in State v. Francis, 99-208 (La.App. 3 Cir. 10/6/99); 748 So.2d 484, writ denied, 00-0544 (La.11/13/00); 773 So.2d 156, this court stated:
A claim of ineffective assistance of counsel is properly raised in an application for post conviction relief. This allows the trial judge an opportunity to order a full |4evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains evidence sufficient to decide the issue and the issue is raised by an assignment of error on appeal, it may be considered. State v. James, 95-962 (La.App. 3 Cir. 2/14/96); 670 So.2d 461.

The court in Smith, 969 So.2d at 703, favorably cited State v. Smith, 06-820 (La. App. 1 Cir. 12/28/06), 952 So.2d 1, writ denied, 07-211 (La.9/28/07), 964 So.2d 352. In that case, the court stated:

But the particular allegations of ineffective assistance of counsel alleged by the defendant herein cannot be sufficiently investigated from the inspection of the record alone. Each of these allegations (failure to object to the jury’s review of written evidence during deliberations, failure to present evidence of the effects of alcohol or evidence of impairment, and the failure to object to jury instructions) may involve matters of trial preparation or strategy. It is well settled that decisions relating to investigation, preparation, and strategy require an evidentiary hearing and cannot possibly be reviewed on appeal. See State v. Martin, 607 So.2d 775, 788 (La.App. 1st Cir.1992). Only in an evidentiary hearing in the district court, where the defendant could present evidence beyond that contained in the instant record, could these allegations be sufficiently investigated. Accordingly, these allegations are not subject to appellate review. See State v. Albert, 96-1991, p. 11 (La. App. 1st Cir.6/20/97), 697 So.2d 1355, 1364.

Id. at 12 (footnote omitted).

We find that this assignment of error cannot be addressed on appeal and should be resolved in post-conviction proceedings. The only facts contained in the record, applicable to this issue, are that counsel did not allege sufficient facts to be entitled to a hearing, nor did she amend her motion to meet the statutory requirements.

The facts before us do not allow for a determination as to why counsel acted in this manner. It is possible that she felt that there were no facts which would support constitutional allegations which required a hearing, or was concerned that damaging facts might become known to the prosecution if the hearing took place. Of | .^course, proper proceedings could also demonstrate that counsel had no good reason for her omission. We simply cannot know based on the record before us.

INSTRUCTIONS FOR THE TRIAL COURT

At the sentencing hearing, the trial court stated, in pertinent part: “This is a crime of violence; however, his sentence has not been enhanced. He may be entitled to diminution of sentence under the provisions of 15, Section 571.3.... ” However, the minutes of sentencing reflect, in pertinent part: “The sentence was not enhanced. The defendant was allowed diminution of sentence.” Thus, we order the trial court to amend the minutes of sentencing to accurately reflect the sentencing transcript.

CONCLUSION

The first assignment of error is without merit. The second assignment of error cannot be resolved on the record before the court and should be addressed in post-conviction proceedings.

AFFIRMED IN PART AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.


author: SAUNDERS, Judge.

text:
    Triventies JOHNSON, et al. v. STATE FARM INS., et al.
    No. CA 08-1250.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Ronald E. Corkern, Jr., Corkern & Crews, Natchitoches, LA, for Defendants/ Appellees, State Farm Mutual Auto Ins. Co. Bobby Reliford.
    D. Scott Kendrick, Attorney at Law, Natchitoches, LA, for Plaintiffs/Appellants, Twenties Johnson Roy Farley, Jr.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

| íThis case involves a single-car accident with the two guest passengers suing the driver of the vehicle and the vehicle’s insurer. The two plaintiffs riding in the vehicle testified that, as the vehicle was in a curve in the roadway, a motorcycle appeared in their lane of travel causing the driver to swerve and leave the roadway, where the vehicle struck trees. Further, the two plaintiffs testified that the driver of the vehicle was acting in a prudent manner at all times.

The vehicle’s insurer and its driver filed a motion for summary judgment based on the sudden emergency doctrine. The trial court granted its motion, dismissed the plaintiffs’ case with prejudice, and assessed the costs of the proceeding to the plaintiffs. The plaintiffs appealed. We affirm.

FACTS AND PROCEDURAL HISTORY:

Triventies Johnson (Johnson) and Roy Farley, Jr. (Farley) filed a petition for damages against State Farm Insurance Company (State Farm) and Bobby Reli-ford (Reliford), alleging injuries sustained as a result of a motor vehicle accident. Johnson and Farley (the plaintiffs) were guest passengers in a 2001 Ford F150 pickup truck driven by Reliford.

The single-car accident occurred on Highway 480 near Campti, Louisiana, at approximately 12:45 A.M. on March 12, 2006. As the pickup truck entered a curve to the left, Reliford was confronted with a motorcycle traveling in his lane of travel at a high rate of speed. Reliford responded by leaving the roadway in order to avoid the motorcycle and, thereafter, struck trees on the side of the roadway.

State Farm and Reliford filed a motion for summary judgment on the ground that, under the Louisiana jurisprudentially-rec-ognized doctrine of sudden emergency, Re-liford could not be found guilty of negligence based on the allegation that he failed lato adopt what the plaintiffs, upon reflection, considered to be a better method to avoid the collision. The trial court granted the motion and dismissed the plaintiffs’ claims with prejudice. The plaintiffs have filed this appeal, alleging one assignment of error.

DISCUSSION OF THE MERITS:

The plaintiffs claim that the trial court erred when it granted the defendants’ motion for summary judgment, dismissed their demands with prejudice, and cast them with costs of the proceeding. The plaintiffs’ claim has no merit.

Appellate courts review summary judgments de novo, applying the same criteria that govern a trial court’s determination of a motion for summary judgment. Louisiana’s Code of Civil Procedure [Article 966(B) ] states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” We are required to construe factual inferences that are reasonably drawn from the evidence presented in favor of the party opposing the motion; all doubt is to be resolved in the non-moving party’s favor.

We also are to remain cognizant of the mover’s and non-mover’s burdens of proof. Although the burden of proof on a motion for summary judgment remains with the moving party, the mover’s burden changes depending upon whether he or she will bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment:

[I]f he or she will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

MaClaff, Inc. v. Arch Ins. Co., 07-1182, pp. 7-8 (La.App. 3 Cir. 02/27/08), 978 So.2d 482, 487-88 (citations omitted).

|-jin the case before us, State Farm and Reliford filed the motion for summary judgment, but the plaintiffs have the burden to prove that Reliford was negligent in the operation of the motor vehicle that he was driving when he swerved off the roadway, crashed, and caused injuries to his guest passengers. Thus, in order to prevail on its motion for summary judgment, State Farm and Reliford merely have to show “an absence of factual support for one or more elements essential to [the plaintiffs’] claim.” La.Code Civ.P. art. 966(C)(2).

We find that State Farm and Reliford have done so via pointing out the applicability of the sudden emergency doctrine to this case. Our Louisiana Supreme Court, in Hickman v. Southern Pacific Transport Co., 262 La. 102, 112-13, 262 So.2d 385, 389 (1972), stated the following:

One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

The evidence in this case is overwhelming that the sudden emergency doctrine is applicable to insulate Reliford from liability. At the accident scene, Reliford told the investigating officer that he was traveling westbound on Louisiana Highway 480 when he came around a curve, and there was a motorcycle in his lane of travel causing him to swerve to avoid hitting the motorcycle. Both of the plaintiffs were treated the same day of the accident at Natchitoches Regional Medical Center for soft tissue injuries. The medical records indicate a history was taken from Johnson during which he stated that he had been involved in a motor vehicle accident in which the vehicle he was in “ran off road trying to avoid oncoming motorcycle, striking trees.”

The history taken from Farley on the day of the accident simply makes preference to a single-car accident. However, Farley returned to the emergency room two days later, and the history obtained from him indicates that he was involved in a motor vehicle accident two days before in which the vehicle he was in “ran off road avoiding motorcycle striking trees”

In Johnson’s deposition, the following exchanges took place:

Q The — Bobby, as I understand it, was swerving to avoid a motorcycle?
A Yes, sir.
Q And this accident happened in a curve?
A Yes, sir.
Q And when you first saw the motorcycle, where was it in relation to the roadway?
A It was like towards — more towards our side, you know, coming around the curve. He had like laid over. They used to race out there, so, he was coming pretty fast.
Q And did it appear to you as though Bobby was faced with an emergency situation at that time?
A Yes, sir.
Q If he had continued straight and stayed in his lane of travel, what would have happened?
A He would have ran over the guy.
Q So, he only had — his choice was to run over the motorcycle or take to the ditch on the right; is that correct?
A Yes, sir.
Q Did Bobby appear to be driving his vehicle at a reasonable rate of speed under the circumstances?
A Yes, sir.
|fiQ He didn’t appear to be going fast to you — too fast for the circumstances or conditions?
A No, sir.

The following exchanges took place during Farley’s deposition:

Q And did I understand you to say that as Mr. Reliford entered the curve he suddenly saw a motorcycle coming towards him in his lane of travel?
A Yes, sir.
Q And if he hadn’t taken evasive action, he would have hit the motorcycle?
A Yes, sir.
Q Do you know of anything Mr. Reli-ford could have done to avoid the accident?
A No, sir.
Q Was Mr. Reliford driving at a reasonable rate of speed as far as you could tell?
A Yes, sir.
Q Did he appear to be driving recklessly?
A No, sir.
Q It appears, though, he was faced with an emergency situation when he saw that motorcycle?
A Yes, sir.
Q And his choice was to either run over the motorcycle or drive off the road?
A Yes, sir.

Given the evidence cited above, it is clear that Reliford faced a sudden emer-geney when he rounded the curve to find a motorcycle in his lane of travel. However, this court, in McCann v. State Farm Mutual Automobile Insurance Co., 483 So.2d 205, 211 (La.App. 3 Cir.), writ denied, 486 So.2d 734 (La.1986), stated the 1 ^following:

Plaintiffs can still defeat defendants’ use of the [sudden emergency] doctrine by showing that the defendant created the emergency through his own negligence, or that once confronted with the emergency he did not react as a reasonably prudent person would react. The plaintiffs in this case, not the defendants, bear these burdens of proof.

There is no evidence in the record that Reliford caused the emergency he faced. In fact, given the testimony of the plaintiffs, it is apparent that Reliford did not do anything to create the emergency. The plaintiffs attempt to defeat the defendants’ motion by pointing out that Reliford may have some comparative negligence in causing the accident. The plaintiffs claim that the following statement from the investigating officer’s report: “I was unable to locate any evidence on the roadway which indicated any evasive actions,” coupled with their deposition testimony that Reliford swerved to miss the motorcycle, creates an issue of fact. While it may be true that an issue of fact exists as to whether Reliford swerved to miss the motorcycle, or simply drove straight off the roadway, the plaintiffs must show that this issue of fact is material.

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[F]acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits.

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751 (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), units denied, 596 So.2d 211 (La.1992) (citations omitted).

We find it immaterial whether Reliford swerved or drove straight off the roadway to avoid the collision with the motorcycle, as either reaction is reasonably prudent. This court cannot fathom how swerving off the roadway to miss the |7motorcycle or driving straight off the roadway to miss the motorcycle would have changed the result of the incident. As such, a determination of this fact will not change the result of the plaintiffs’ claim. Thus, we find this factual issue raised by the plaintiffs is not material.

Accordingly, we find that the sudden emergency doctrine applies to the case before us. Further, we find that the plaintiffs failed to raise any material facts regarding whether Reliford either created the emergency or acted imprudently once he was faced with the emergency. As a result, Reliford cannot be deemed negligent.

CONCLUSION:

The plaintiffs raised one assignment of error claiming that the trial court erred when it granted the defendants’ motion for summary judgment, dismissed their demands with prejudice, and assessed them with costs of the proceeding. We found that the sudden emergency doctrine served to insulate Reliford, and, thus, State Farm, from any finding of negligence. As such, we affirm the trial court’s judgment. Costs of this proceeding are assessed to the plaintiffs.

AFFIRMED.


author: EZELL, Judge.

text:
    Gregory SCOTT v. CITY OF PINEVILLE.
    No. WCA 08-1410.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Joseph Yuri, Beck Hunter & Morton, Alexandria, LA, for Plaintiff/Appellee: Gregory Scott.
    D. Heath Trahan, Reiser Law Firm, Alexandria, LA, for Defendant/Appellant: City of Pineville.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| ,The City of Pineville appeals the decision of the workers’ compensation judge finding that Gregory Scott sustained a work-related accident causing injury. The workers’ compensation judge awarded Mr. Scott payment of past and future medical treatment, without the benefit or discount of the workers’ compensation fee schedule, temporary total disability benefits (TTDs) from the date of his accident, $2,000 in penalties for the non-payment of medical benefits, $2,000 for the non-payment of TTDs, and $4,500 in attorney fees. For the following reasons, we affirm the decision of the workers’ compensation judge.

On January 3, 2007, while in the course and scope of his employment for Pineville, Mr. Scott slipped while climbing the steps to a dump truck. He had been holding onto a hand rail when his foot slipped. He immediately felt a pull and pain in his side and back. No one saw Mr. Scott fall. Thinking it to be a minor injury, he finished his shift after briefly mentioning it to his co-worker, Quinten Clayton. Mr. Scott did not tell his supervisor or anyone else working for Pineville about the accident, other than Mr. Clayton.

Mr. Scott awoke the next morning to worsened pain and numbness in his right leg. He called his supervisor to tell him he could not work that day due to the injury. Despite self treatment, the pain did not subside and Mr. Scott sought medical treatment from Dr. Stephen Downs on January 9, 2007. He initially tried to use his own insurance, but when he gave a medical history describing a work-related accident, Dr. Downs’ office told him that approval would be needed from his employer. When Dr. Downs’ office called Pineville for the alleged work-related injury, it was the first the City had heard of the accident.

12Pineville’s human resources coordinator, Diane Ray, denied pre-approval for treatment, as nothing was known concerning any accident, and ordered an investigation into the incident. Statements were taken from both of Mr. Scott’s supervisors, as well as Mr. Clayton and Timmy Clinton, another co-worker riding with Mr. Scott part of the day the accident occurred. The statements were all one sentence long and, including Mr. Clayton’s, all said essentially the same thing, that the signee had no knowledge of any accident concerning Mr. Scott. Mr. Scott was never contacted by Pineville nor its workers’ compensation insurer, and his claim was denied based on the statements alone. Furthermore, either incidentally or coincidentally, because he was absent without calling in the following three work days after the January 4, Mr. Scott was terminated under Pineville’s no-show policy the same day that the City learned of the accident and medical claim from Dr. Downs’ office.

Dr. Downs treated Mr. Scott conservatively for the pain with medication and physical therapy until his insurance declared the matter a workers’ compensation issue and stopped paying. At that time, Mr. Scott was forced into the charity hospital system, where he had an MRI performed that showed a bulging disc at his L5-S1 vertebrae.

Mr. Scott filed the present claim when Pineville denied his demand for workers’ compensation benefits. Again, the claim was denied by Pineville based on the employees’ statements noted above, without any attempt to contact Mr. Scott or any of his physicians. After taking the testimony of Mr. Scott, his wife and co-workers, and examining the medical records in this case, the workers’ compensation judge found that Mr. Scott had proved a work-related accident and resultant disability. The workers’ compensation judge awarded Mr. Scott past and future 13medical treatment, TTDs from the date of his accident, $2,000 in penalties for the non-payment of medical benefits, $2,000 for the non-payment of TTDs, and $4,500 in attorney fees. From this decision, Pineville appeals.

Pineville asserts six assignments of error on appeal. It claims that the workers’ compensation judge erred in finding that Mr. Scott proved an accident; that Mr. Scott proved an injury; that any injury proved was disabling; that any disability was caused by the accident; that the workers’ compensation judge erred in awarding penalties; and that the workers’ compensation judge erred in ordering it to pay all prior medical expenses without the benefit of the workers’ compensation fee schedule. Because the first four assignments of error are so closely related and fall under the same standard of review, we shall address them together.

This court, in Monceaux v. R & R Construction, Inc., 05-533 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, writs denied, 06-585 (La.5/5/06), 927 So.2d 325, 06-636 (La.5/5/06), 927 So.2d 317, addressed both the standard of review and a claimant’s burden of proof in workers’ compensation cases involving unwitnessed accidents. In that case, we said:

In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court discussed the standard of review in workers’ compensation cases:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its |4own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

Recently, this court addressed a claimant’s burden in proving the he/she suffered a work-related accident:

In order to recover workers’ compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered a “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A). An “accident” is defined as an “unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West, supra.

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged

his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

Id. at 798-800 (alteration in original).

In this case, Mr. Scott’s account of the accident and its results are uncontra-dicted. The fact that he told Mr. Clayton his back was hurt bolsters his claim and was supported by Mr. Clayton’s direct testimony. Furthermore, Timmy Clinton testified that Mr. Clayton relayed to him the day following the accident that Mr. Scott was absent because he hurt his back. Mr. Scott’s medical records show that he was consistent in not only claiming that the accident was work-related, but in how the accident occurred. Pineville presented no evidence to counteract this other than one-sentence statements from three men who were not with Mr. Scott at the time of the accident and that of Mr. Clayton, who explained that he felt the statement that he gave was factually accurate when given only because he did not see the accident occur. There is simply no evidence that discredits Mr. Scott’s version of the incident, and his testimony is clearly corroborated by the circumstances following the alleged incident.

Likewise, the record is clear that Mr. Scott sustained a bulged disc in his L5-S1 vertebral region. The record shows that Mr. Scott had never had back pain before the accident. And through the testimonies of Mr. Scott and his wife, as well as the affidavit of his treating physician, the record is clear that Mr. Scott has suffered a disability as a result of the injury. Dr. Downs states that Mr. Scott is totally disabled and that the disability is a result of his “work related injury.” All of the factual evidence concerning the accident, injury, causation, and disability are all undisputed | (¡by Pineville. It placed none of its own medical evidence whatsoever in the record to dispute the injury or disability and, again, offered simply the four statements which it somehow believed disproved the accident and negated the mounds of evidence against them. It is clear from the record before us that the workers’ compensation judge has not committed manifest error in finding that Mr. Scott proved the accident, injury, causation, and disability. These assignments of error are devoid of merit.

Pineville next claims that the workers’ compensation judge erred in awarding penalties against the City. The purpose of imposition of penalties and attorney’s fees is to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41. This court, in Johnson v. Transamerica Waste Co., 99-190, pp. 9-10 (La.App. 3 Cir. 6/2/99), 741 So.2d 764, 770, stated the following:

In order to avoid the imposition of penalties, an employer must reasonably controvert the workers’ compensation claimant’s right to benefits. La.R.S. 23:1201(F). The test to determine if the employer has fulfilled its duty is whether the employer or his insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. Brown v. Texas-La. Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885; Thibodeaux v. L.S. Womack, Inc., 94-1375 (La.App. 3 Cir. 4/5/95), 653 So.2d 123.

The determination of whether an employer or insurer should be cast with penalties and attorney’s fees in a workers’ compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181.

In this case, it is clear that Pine-ville did not have sufficient factual or medical information to deny Mr. Scott’s claims. In fact, there was no information whatsoever to counter the evidence offered by Mr. Scott. The adjuster for Pineville’s workers’ compensation insurance carrier testified that the claim was denied solely on the four vacuous statements mentioned above, which simply stated that no one had any 17knowledge of the accident. No statement ever gave any indication that the accident did not, in fact, occur. No one from Pineville or its insurer ever tried to contact Mr. Scott or any of his physicians, nor did it ever attempt to have any of its own doctors examine him. Simply put, Pineville executed a woefully inadequate investigation of Mr. Scott’s claimed accident, then simply washed its hands of him. There is no error in the workers’ compensation judge’s award of penalties in this case.

Pineville finally claims that the workers’ compensation judge erred in requiring it to pay Mr. Scott’s past medical expenses at the rate at which they were charged, without the benefit of the workers’ compensation fee schedule. Louisiana Revised Statutes 23:1205(0(2) requires a responsible worker’s compensation payor to reimburse any health insurer “one hundred percent of the benefits it paid” in connection with a workers’ compensation claim. Mr. Scott testified that he chose Dr. Downs because he took the Blue Cross insurance that he had and that he continued treating with him until the time that Blue Cross stopped paying for his treatment. Yet again, this evidence is uncontradicted by Pineville. Accordingly, Blue Cross would be entitled to reimbursement for any amounts paid for Mr. Scott’s treatment without reference to the workers’ compensation fee schedule. There is no merit in this assignment of error.

Finally, counsel for Mr. Scott seeks additional attorney fees for work done on this appeal. However, because he did not answer Pineville’s appeal, he cannot receive additional attorney fees.

For the above reasons, the decision of the workers’ compensation judge is hereby affirmed. Costs of this appeal are assessed against the City of Pineville, in the amount of $ 1,575.

AFFIRMED.


author: MOORE, J. BROWN,

text:
    STATE of Louisiana, Appellee v. Carl TOMLINSON, Jr., Appellant.
    No. 44,078-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Louisiana Appellate Project, by James E. Beal, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, John W. Montgomery, Sherburne Sentell, III, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, MOORE, JJ.
   MOORE, J.

| iThe defendant was charged by bill of information with two counts of simple burglary. In exchange for pleading guilty as charged, the state agreed that the court would order a presentence investigation report before sentencing and that any sentences imposed by the court for the offenses would be run concurrently with each other. The state also agreed to dismiss a pending criminal damage to property charge and not to institute prosecution against the defendant for a theft associated with the instant offenses. After entering the guilty plea, the defendant was sentenced to four years of imprisonment at hard labor for each count. The sentences were to be served concurrently with credit for any time served in custody prior to the imposition of sentence. The defendant filed the instant appeal alleging that his sentence is excessive. We affirm.

Facts

The record shows that on December 10, 2007, the defendant committed simple burglary of a Cato store (count one) and a Game Stop electronics store (count two), both in Webster Parish. The defendant was questioned, informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and confessed in a videotape to committing the burglaries. The defendant admitted that he had cut off the electricity to the buildings of both businesses in order to disable their alarms before forcibly entering the buildings. There were also items recovered in Bossier City that linked the defendant to the instant burglaries.

|2Discussion

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La. App. 2 Cir. 1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App. 2 Cir. 4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. 1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

Prior to imposing the sentences in this case, the court discussed several factors that were listed in the presentence investigation report. The court stated that the defendant was a multiple-felony offender who had been previously convicted in the State of Oregon for felony drug and burglary charges. The court recognized that the defendant was on parole from the State of Oregon when he committed the instant offenses and that he had an active arrest warrant from Oregon. The court also considered the defendant’s age, education, and employment history.

With respect to the sentencing factors of La. C. Cr. P. art. 894.1, the trial court reviewed the defendant’s criminal history and determined, as aggravating factors, that the imposition of a lesser sentence would deprecate |4the seriousness of the instant crimes, that there was no excuse or justification for the defendant’s criminal conduct, that the defendant was likely to commit criminal conduct in the future, and that the defendant would not respond affirmatively to probationary treatment. In mitigation, the court considered the fact that the defendant came forward and admitted his involvement in the crimes.

The court subsequently imposed hard labor sentences of four years for count one and count two, and ordered that the sentences be served concurrently. The court advised the defendant that he had thirty days to appeal the sentences and two years from the date the convictions and sentences become final to apply for post-conviction relief.

The crime of simple burglary, a violation of La. R.S. 14:62, carries the penalty of a fine of not more than $2,000, imprisonment, with or without hard labor, for a period of not more than 12 years, dr both a fine and imprisonment. Based on the record, we find no constitutional error with the court’s sentence of 4 years at hard labor for each count of simple burglary. The defendant is a multiple-felony offender, who has been convicted of felony drug and burglary charges in the State of Oregon, and he was on parole when he committed the instant offenses. This less-than-mid-range sentence is neither grossly disproportionate to the severity of the offenses nor shocking to our sense of justice.

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

AFFIRMED.

BROWN, Chief Judge, concurs with written reasons.

BROWN,

Chief Judge, concurring.

| defendant agreed to plead guilty to two counts of simple burglary with concurrent sentences. Thus, his sentencing exposure was reduced by one half or “capped” at 12 years.

La. C. Cr. P. art. 881.2(A)(2) provides that a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. This provision applies both to agreed upon sentences and agreed upon “ceilings,” “ranges,” or “caps.” State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Burford, 39,801 (La.App. 2d 06/29/05), 907 So.2d 873; State v. Rice, 26,478 (La. App. 2d Cir.12/07/94), 648 So.2d 426, unit denied, 95-0431 (La.06/16/95), 655 So.2d 340.


author: GASKINS, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Ahmad McQUARTERS, Appellant.
    No. 44,074-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Mary Constance Hanes, Louisiana Appellate Project, New Orleans, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Sherburne Sentell, III, John W. Montgomery, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   GASKINS, J.

LThe defendant, ■ Ahmad MeQuarters, pled guilty to distribution of cocaine pursuant to a plea agreement that included a sentencing cap of 15 years. He was sentenced to five years at hard labor, two years of which are without benefit of parole, probation or suspension of sentence. This appeal followed. Seeking to withdraw, the defendant’s appellate counsel filed an Anders brief in this court, which alleged that she could find no nonfrivolous issues to raise on appeal. We grant the motion to withdraw and affirm the defendant’s conviction and sentence.

FACTS

The defendant was charged by bill of information with one count of distribution of cocaine pursuant to La. R.S. 40:967(A). The defendant pled guilty in exchange for the following: (1) the state’s agreement not to file a habitual offender bill of information; (2) a sentence cap of 15 years; and (3) the trial court’s determination of sentence after reviewing a presentence investigation report. The terms of the plea bargain agreement were made part of the record, and the defendant expressly agreed to them. The trial court sentenced the defendant to five years at hard labor, without benefit of parole, probation or suspension of sentence for the first two years, as required by the statute of conviction. The court also ordered that the sentence be consecutive to any other sentence and gave the defendant credit for time served.

The defendant filed a timely motion to reconsider sentence, which was denied.

1 ¡ANDERS BRIEF

The defendant appealed. However, the defendant’s appellate counsel filed a motion to withdraw, together with an Anders brief, which alleges that she could find no nonfrivolous issues to raise on appeal. See Anders v. California, supra; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlined the procedural history of the case and the recitation of facts presented during the guilty plea hearing. The brief also contained “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. Defense counsel further verified that she mailed copies of the motion to withdraw and her brief to the defendant, in accordance with the Anders, Jyles, Mouton and Benjamin cases.

The state filed a letter concurring that there are no nonfrivolous issues to raise on appeal. On November 24, 2008, this court rescinded the previously fixed pro se briefing deadline and notified the defendant that he could file a brief in this appeal within 30 days of its order and request to view the appellate record within 10 days of the date of this order. However, the defendant has not requested the record or filed any brief.

This court has conducted an error patent review of the appellate record and no errors patent were found. The bill of information and arraignment were correctly done. There were no errors patent found in the guilty plea or sentencing proceedings. The defendant’s sentence of five | -¡years of imprisonment at hard labor, which is 10 years below the sentencing cap, is not excessive considering the defendant’s criminal history; it includes a conviction for attempted distribution of cocaine, for which he was on parole at the time of the instant offense. Even so, where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, such as in the case sub judice, a sentence imposed within the agreed range cannot be appealed as excessive. State v. Smith, 39,719 (La.App. 2d Cir.5/11/05), 903 So.2d 598. See also La. C. Cr. P. art. 881.2; and State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Foster, 42,212 (La.App. 2d Cir.8/15/07), 962 So.2d 1214; State v. Burford, 39,801 (La.App. 2d Cir.6/29/05), 907 So.2d 873.

CONCLUSION

Based on the above, we find that there are no nonfrivolous issues to raise on appeal; we also find no errors patent. Consequently, the motion to withdraw filed by the defendant’s appellate counsel is granted, and the defendant’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

BROWN, Chief Judge, concurs with written reasons.

BROWN, Chief Judge,

concurring.

hit appears to be incongruous to state that one cannot appeal as excessive an agreed to sentence or sentencing cap, and then state that considering defendant’s criminal history, the sentence imposed is not excessive.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: MOORE, J.

text:
    Marcella REED, Plaintiff-Appellee v. ST. FRANCIS MEDICAL CENTER, Defendant-Appellant.
    No. 44,211-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Hayes, Harkey, Smith & Cascio, LLP by John B. Saye, Monroe, for Appellant.
    Law Offices Of Street & Street, by C. Daniel Street, Monroe, for Appellee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   MOORE, J.

j,St. Francis Medical Center appeals a judgment finding that it failed to reasonably controvert its employee Marcella Reed’s request to change her treating orthopedic surgeon, and imposing a penalty of $2,000 and attorney fee of $5,000. The Workers’ Compensation Judge (“WCJ”) focused solely on the disparate accounts of Ms. Reed’s office visit of April 10, 2007, to Dr. Brian Bulloch, her chosen orthopedic surgeon, and accepted Ms. Reed’s recollection of the incident. In spite of the WCJ’s credibility call, we find no proof of medical necessity to obtain a change of physician in the chosen specialty under La. R.S. 23:1121 B. We therefore reverse.

Factual Background

The parties stipulated that Ms. Reed was employed by St. Francis as a housekeeper at an average weekly wage of $343.53, that she injured her back lifting a large bucket of water at work in July 2005, and that St. Francis paid her weekly indemnity benefits of $229.03. Ms. Reed executed a choice of physician form naming Dr. Bulloch as her treating orthopedic surgeon; St. Francis paid for this treatment.

In March 2007, St. Francis learned that Ms. Reed had not seen Dr. Bulloch in over a year, since late August 2005, and retained a nurse case manager, Jennifer McClain, to expedite her rehabilitation. Ms. Reed returned to Dr. Bulloch on March 20, 2007; he ordered an MRI and his office scheduled a return appointment for April 10 to review the results. Ms. McClain scheduled a rehabilitation conference with Dr. Bulloch to follow immediately afterward, at 11:15 am on April 10. Ms. McClain notified Ms. Reed’s counsel of this as required by R.S. 23:1127 C.

|gMs. Reed and Ms. McClain gave differing accounts of what happened on April 10. Ms. Reed testified that she expected Ms. McClain to talk to Dr. Bulloch after the examination, but instead Ms. McClain came right into the examining room during it. Ms. Reed asked her to leave, but she stayed, monopolizing the discussion with the doctor; Dr. Bulloch never once spoke to Ms. Reed. Then, after Ms. Reed left, Ms. McClain stayed in the room talking to him. Feeling that Dr. Bulloch no longer had her best interest at heart, Ms. Reed decided to request a new orthopedic surgeon. Ms. Reed also testified that Dr. Bulloch “will not treat” her.

Ms. McClain testified that she sat with Ms. Reed in the waiting room before her appointment. When the nurse called Ms. Reed, Ms. McClain escorted her to the examining room and then waited outside in the hall; however, Dr. Bulloch’s nurse promptly advised her there would be no examination, only a review of MRI results, and Ms. Reed told her (Ms. McClain) through the open door to come in. She did, and Ms. Reed never told her to leave. In the room, Ms. Reed mostly told Dr. Bulloch about a cyst on her back. Dr. Bulloch advised them that Ms. Reed would benefit from physical therapy and then an FCE, and gave her a prescription for the therapy. After this, both women left the examining room and Ms. McClain had no further conversation with the doctor.

The other person involved, Dr. Bulloch, testified by deposition that he had no specific recollection of the event. He stated, based on his office notes, that there was no physical examination that day, only a conference to review the MRI and assess Ms. Reed’s treatment options, and that both MsJjReed and Ms. McClain were present. He could not recall if Ms. Reed asked Ms. McClain to leave the room, but patients normally did not object to having case managers present; also, he did not dictate into his notes that Ms. Reed asked her to leave. In addition, he could not recall any occasion when a case manager refused to leave when asked. He testified that based on the MRI, Ms. Reed would not benefit from surgery, but should try some physical therapy, followed by an FCE and impairment rating. His progress note stated, “I believe that she is at maximum medical improvement or will be so after the therapy program is completed.” He denied that Ms. McClain influenced his diagnosis in any way, and did not recall talking to her after the patient left.

On April 12, the therapy center notified Ms. McClain that Ms. Reed had not yet begun her therapy; Ms. McClain asked again on April 17, and found that she still had not shown up. The next day, Ms. McClain faxed a letter to Dr. Bulloch, stating that Ms. Reed had not yet begun therapy, and asking if any other treatment options were available. She later learned that Ms. Reed actually attended her first therapy session on April 18.

Ms. Reed’s attorney faxed a letter to Dr. Bulloch, directing him to “disregard Jennifer McClain’s erroneous and probably intentionally misleading fax to you.” He then faxed a letter to St. Francis’s counsel, requesting a change of orthopedic surgeon from Dr. Bulloch to Dr. John Ferrell “due to interference from St. Francis’s nurse case manager, Jennifer McClain.” The letter specified that Ms. McClain intruded on Ms. Reed’s physical exam “in clear violation of my client’s rights,” for which he was Rfiling a civil suit. The letter also asserted that Ms. McClain sent the doctor an “erroneous and apparently false fax” in an effort to interject herself into the medical treatment. As a result, “my client has no confidence in Dr. Bulloch and I believe she is entitled to change doctors.”

Trial Evidence

On May 3, Ms. Reed filed the instant disputed claim, seeking consent to change her orthopedic surgeon, plus penalties and attorney fees.

At a hearing in July 2007, Ms. Reed testified as outlined above. She was obviously confused and befuddled. She would not confirm that she read Ms. McClain’s letter, as she did not bring her glasses to the hearing. At one point, she denied making each of the allegations in her disputed claim, or even that they were true. However, she ultimately stated that Ms. McClain had intruded on her medical exam and talked to the doctor out of her presence, and this diminished her trust in Dr. Bulloch. She also felt that Dr. Bulloch would no longer treat her since she filed the civil suit against St. Francis. At the close of the hearing, the WCJ found that Ms. McClain interfered with Ms. Reed’s medical treatment, in effect depriving her of treatment from her chosen physician, so Ms. Reed was entitled to a new orthopedic surgeon.

At a second hearing in August 2008, Ms. McClain testified as outlined above. She stressed that Ms. Reed never asked her to leave the examining room, and that when they both left, Ms. Reed seemed perfectly content with her medical care. She maintained that only after faxing Dr. Bulloch on April 18 did she learn that Ms. Reed attended her first therapy |ssession that very day, and she had no intention of misleading the doctor. She admitted that she could have written Ms. Reed’s lawyer before faxing the doctor, but she simply did not.

The WCJ stated the case was a credibility issue: Ms. Reed and Ms. McClain gave divergent accounts of the April 10 conference, and Dr. Bulloch’s deposition was unhelpful in resolving the conflict. The WCJ accepted the claimant’s version, noting “no other reasonable explanation for Ms. Reed’s sudden displeasure with Dr. Bul-loch’s treatment” except for those she alleged; Ms. Reed was not ingenious enough to fabricate reasons to change her doctor; Ms. McClain was determined to eliminate medical services for Ms. Reed; and Ms. McClain advised the doctor of her failure to attend therapy before making any attempt to facilitate the services. Further, St. Francis should have been aware of Ms. Reed’s reasons for wanting to change her doctor. The WCJ imposed a penalty of $2,000 and attorney fee of $5,000.

St. Francis has appealed, raising two assignments of error.

Discussion

By its first assignment of error, St. Francis urges the WCJ erred in failing to find that it reasonably controverted Ms. Reed’s request for a change of physician. First it contests the WCJ’s finding that it prevented Ms. Reed from obtaining medical treatment from Dr. Bulloch, chiefly because Dr. Bulloch expressly denied this. Second, it argues that the right to a treating physician under R.S. 23:1221 B(l) is not a right to have multiple treating physicians. Thompson v. The Animal Hospital, 39,154 (La.App. 2 Cir. 12/15/04), 889 So.2d 1193. Citing Dr. Bulloch’s report that she had reached maximum medical improvement, St. Francis argues that the claimant is not entitled to get a new doctor just because the original doctor released her to return to work. Wiley v. Kenneth Parker Logging, 97-1247 (La.App. 3 Cir. 3/6/98), 711 So.2d 297. St. Francis suggests that Ms. Reed’s sudden dissatisfaction with Dr. Bulloch arose not from any conduct on Ms. McClain’s part, but on the doctor’s decision to declare her at maximum medical improvement and order only therapy. It concludes that the evidence is insufficient to support Ms. Reed’s request for a change of physician in the specialty of orthopedic surgery.

Ms. Reed responds that the WCJ’s findings are subject to manifest error review. She rejects Ms. McClain’s claim to be a patient advocate as “a cruel joke and mockery of the workers’ compensation system.” Going outside the record, Ms. Reed argues that case managers’ only purpose is to curtail medical treatment as soon as possible; hence, it was immaterial whether Ms. McClain actually influenced Dr. Bul-loch’s care, but only that she undermined Ms. Reed’s confidence in him. She concludes that the WCJ’s decision is fully supported by the record.

Medical examination of an injured employee is regulated by La. R.S. 23:1121. The provision pertinent to this case states:

B. (1) The employee shall have the right to select one treating physician in any field or specialty. * * * After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for a change to a treating physician in another field or specialty.

| /This statute gives an injured employee an absolute right to select one physician in any field without the approval of the employer. Smith v. Southern Holding Inc., 2002-1071 (La.1/28/03), 839 So.2d 5. However, the statute does not invest the claimant with the right to multiple treating physicians. Cheatham v. Luberski Inc., 43,603 (La.App. 2 Cir. 9/17/08), 996 So.2d 373; Thompson v. The Animal Hospital, supra; Jasper v. Memorial Medical Center, 2003-0489 (La.App. 4 Cir. 6/11/03), 853 So.2d 21. The claimant is not entitled to treatment by a new choice of orthopedic surgeon simply because the original one released her to return to work. Cheatham v. Luberski, supra; Wiley v. Kenneth Parker Logging, supra. As with a claim for medical expenses under La. R.S. 23:1203, the claimant must show that a choice of a new treating physician is medically necessary. Cheatham v. Luberski supra; Thompson v. The Animal Hospital, supra; Captain v. Citgo Petr. Corp., 2006-481 (La. App. 3 Cir. 9/27/06), 940 So.2d 731; Scott v. Piccadilly Cafeteria, 1997-1584 (La. App. 3 Cir. 4/1/98), 708 So.2d 1296.

On close examination, we find the record does not support a finding that a change of orthopedic surgeon is medically necessary. There is no medical evidence to contradict Dr. Bulloch’s assessment that Ms. Reed is at or near maximum medical improvement, or to undermine his prescription of physical therapy. Aside from Ms. Reed’s own testimony, there is no evidence that anything done by St. Francis or Ms. McClain altered Dr. Bulloch’s delivery of medical care; to the contrary, the doctor firmly stated that Ms. McClain’s involvement did nothing to affect his professional | ¿judgment. Given the lack of evidence of medical necessity, the judgment must be reversed.

We are, of course, sensitive to the fact-finding discretion of the WCJ; the appellate court is bound to accept her resolution of disputed facts even if, sitting as a trier of fact, it might have reached a different conclusion. Dean v. Southmark Construction, 2003-1051 (La.7/6/04), 879 So.2d 112. We also acknowledge some of the policy considerations raised in Ms. Reed’s brief, notably that case managers work for the compensation carrier and thus are motivated to reduce medical expenses. However, we do not accept the WCJ’s solution of resolving a credibility dispute in favor of the claimant’s “displeasure” with her chosen physician, thus entitling her to select a new one. This would circumvent the requirement of medical necessity, negate Section 1121’s “one treating physician” rule, and authorize doctor shopping. In short, the WCJ’s labored analysis of the witnesses’ credibility will not overcome the lack of evidence of medical necessity for the requested change. The first assignment of error has merit.

By its second assignment of error, St. Francis urges the WCJ erred in awarding a penalty and attorney fee. St. Francis contends that it reasonably relied on the independent records of Dr. Bulloch, negating any liability for the penalty and attorney fee under La. R.S. 23:1201 F(2).

Ms. Reed responds that the record fully supports the assessment of a penalty and attorney fee, and that the amount awarded is reasonable under the usual criteria. Harvey v.B E & K Const., 33,475 (La.App. 2 Cir. 8/23/00), 770 So.2d 819.

| ¡^Failure to consent to the employee’s “request to select a treating physician or change physicians when such consent is required by R.S. 23:1121” shall result in the assessment of a penalty. La. R.S. 23:1201 F. However, the penalty is not imposed “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” R.S. 23:1201 F(2). To “reasonably controvert” a claim means the employer or insurer had “some valid reason or evidence upon which to base [the] denial of benefits.” Brown v. Texas-LA Cartage Inc., 98-1063 (La.12/1/98), 721 So.2d 885; Lemons v. Georgia-Pacific Corp., 42,950 (La.App. 2 Cir. 2/13/08), 976 So.2d 307, writs denied, 2008-0587, -0590 (La.5/2/08), 979 So.2d 1288, 1289. If the employer or insurer’s conduct arises from a nonfrivolous legal dispute or from factual or medical evidence that reasonably counters the claimant’s showing, the penalty and attorney fee are not imposed. Brown v. Texas-LA Cartage, supra; Lemons v. Georgia-Pacific Corp., supra. The penal provisions of the workers’ compensation statute are strictly construed. Williams v. Rush Masonry, 98-2271 (La.6/29/99), 737 So.2d 41; Freeman v. Triad Builders, 39-657 (La.App. 2 Cir. 5/11/05), 902 So.2d 1220, writ denied, 2005-1562 (La.12/16/05), 917 So.2d 1118.

St. Francis relied on Dr. Bulloch’s progress note that Ms. Reed was at or near maximum medical improvement; despite her contretemps -with Ms. McClain, Ms. Reed has not shown that the doctor’s medical opinion was faulty or unreliable. In the absence of evidence that the requested change of orthopedic surgeon was medically necessary, St. Francis’s conduct cannot |1flbe deemed frivolous or lacking in factual basis. On this showing, the WCJ was plainly wrong to assess a penalty and attorney fee. The judgment will be reversed.

Conclusion

For the reasons expressed, the judgment is reversed. All costs are to be paid by the appellee, Marcella Reed.

REVERSED.