source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Alton Lane STROTHER.
    No. 2009-K-2357.
    Supreme Court of Louisiana.
    Oct. 22, 2010.

      James D. Caldwell, Attorney General, James C. Downs, District Attorney, Monique Yvette Metoyer, Asst. Dist. Atty., for Applicant.
    Michael Anderson Brewer, for Respondent.
   PER CURIAM.

liThe state charged defendant in a two-count bill of information with second degree cruelty to juveniles, in violation of La.R.S. 14:93.2.3, and with cruelty to juveniles, in violation of La.R.S. 14:93. After trial by jury, defendant was found guilty of attempted second degree cruelty to juveniles and guilty as charged of cruelty to juveniles. The trial court sentenced him to consecutive terms of 10 years imprisonment at hard labor. On appeal, the Third Circuit reversed defendant’s conviction for attempted second degree cruelty to juveniles on grounds that the state failed to present evidence sufficient to support that verdict or a verdict for any other possible lesser and included offense. State v. Strother, 09-0110 (La.App. 3rd Cir.10/7/09), 19 So.3d 598 (Amy, J., concurring in part and dissenting in part). As to that count, the court of appeal ordered defendant | ¡.acquitted. With regard to the second count, the Third Circuit panel affirmed defendant’s conviction for cruelty to juveniles. However, the Third Circuit panel vacated his sentence as excessive and remanded for resentencing. We granted the state’s application to review both aspects of the decision below and reverse for reasons that follow.

The evidence at trial established that on the afternoon of February 2, 2007, Effie LeBleu, a 26-year-old mother of several children, two of whom lived with her at home, appeared at the Cabrini Hospital in Glenmora, Louisiana, with her eight-month-old daughter. According to Vanessa Barnes, a registered nurse on duty in the emergency room that day, the baby was covered with bruises, in pain, and “just very unsettled, very distressed.” The child was so unsettled, and remained that way for “hours,” that Barnes was unable to lift or hold her in her arms. She just “kind of cradled her in a sheet and never actually grabbed her.” The baby was admitted, and on the following day, Dr. Amarjit Nijjar examined her in the hospital’s emergency room and determined that, in effect, she had been battered from head to toe. Dr. Nijjar testified that the baby “had multiple bruising on the face, on the head, on the right side of the face, on the left side of the jaw, back of the neck, both ears were all red and swollen up.” The baby’s upper lip was swollen and bruising extended from the right side of her body across her abdomen and over both buttocks and down both thighs to her calves. The bruises appeared of different ages. They were bilateral, and they were “all over,” an unmistakable sign, in the doctor’s opinion, of deliberate and systematic abuse. The doctor detected a hemato-ma under the muscle in the baby’s hip area and noticed that the child had difficulty moving her left arm, which also displayed significant bruising. An x-ray determined that the humerus bone of her left arm appeared | ^fractured at the elbow. The x-ray also revealed evidence of an older fracture at the same point. Dr. Nijjar testified that he became so upset by the appearance of the eight-month-old child that he had to step outside of the examination room to gather himself.

In the opinion of Dr. Mark Dodson, an orthopedic surgeon who also examined the baby on February 3, 2007, the x-ray of the child’s elbow revealed a relatively new fracture, which had probably occurred within the prior three days, and displayed signs of an older fracture in the same area occurring anywhere from two to four weeks before he examined the child. The orthopedist testified that the fractures, new and old, of the baby’s elbow would not have been caused by a toddler falling as she attempted to walk but by “a twisting injury or a fall from a height.”

The child’s mother testified at trial and described for jurors the events prompting the hospital visit on February 2, 2007. Effie LeBleu testified that at the time of the injury she was living in a trailer owned by defendant’s mother with defendant and two of her children. In the early morning hours of February 2, 2007, she awoke to the sound of her eight-month-old daughter crying. She testified that defendant would not let her out of bed because her children “were very, very spoiled to me, and he didn’t like the idea that my kids were spoiled.” Defendant got up instead and took the child into the laundry area to change her. Ms. LeBleu then heard a “boom boom” sound. When he returned with the child, defendant explained that the baby had “wiggled” away from him. At that time, she did not question the explanation because the child could not walk and often wiggled or squirmed when she moved. The baby stopped crying when defendant put the child down on the mattress but the child wiggled off her bedding after loosing her pacifier. Defendant responded by grabbing a belt. According to LeBleu, when she implored defendant not to hit her daughter, he replied, “I wasn’t going to, I was just thinking about it,” and he hit her instead on her hand underneath a blanket.

Later in the morning, at approximately 7:00 a.m., Ms. LeBleu woke up and noticed bruises on the baby’s leg. However, she did not notice any impairment of the child’s left arm. When asked why she did not immediately summon help for her baby, Ms. LeBleu explained that she did not have a phone, and defendant carefully monitored her telephone calls on his own phone. He otherwise kept her isolated from family and friends with the help of his own mother who lived nearby. Instead of reporting the problem immediately, Ms. LeBleu went shopping for diapers with defendant and her daughter, and after they returned home, defendant went fishing for the day. Ms. LeBleu seized on the opportunity to seek a neighbor’s help. Thereafter, she contacted the Glenmora Police, and they called Cabrini Hospital. Ms. LeBleu then brought her baby to the hospital that afternoon at approximately 2:00 p.m., and the child was admitted immediately.

Ms. LeBleu informed jurors that defendant had struck her daughter on the hand with a fly swatter when she cried, that he could not stand the baby crying, and that he would “whip” the child for crying. Defendant had also hit Ms. Lebleu with a belt in the past. She further acknowledged that she had given birth to six children beginning at age 15 and that she had lost them all in one fashion or another, in part because social services became involved in her life virtually at the outset of her child bearing years after she moved out of her parents home and became pregnant with her first child when she was 14 years old. Ms. LeBleu explained that her first child died of SIDS, although the death certificate listed the |scause as undetermined. She gave up her next two children to her sister to forestall social services from removing them from the family altogether. Her fourth child resided elsewhere in Louisiana with his father, and her fifth child, a son, and sixth, her daughter and victim in the present case, were removed from the trailer home she shared with defendant following the incident on February 2, 2007. The children were subsequently adopted. Ms. LeBleu testified that the children were removed from the home because she had failed to contact the authorities for several hours after noticing the bruises on her daughter’s legs, and she denied abusing either of them.

Jennifer Fields, an investigator for the Rapides Parish Office of Community Services, confirmed that the children had been removed from the home because of the delay by Effie LeBleu in reporting her daughter’s battered condition. Fields also stated that before the present case, “we had no validated cases of abuse or neglect on Ms. LeBleu.”

Defendant did not testify at trial but in a statement to the police following his arrest, he related that he had been living with Effie LeBleu and two of her children in the trailer for approximately six months. He had moved in three days after meeting Ms. LeBleu. Defendant told the police that when the baby began crying in the early morning hours of February 2, 2007, Ms. LeBleu would not wake up, and so he got up to change the child. He took her into a hallway which served as a laundry area and put her on the washing machine. After he changed her and began pulling up her pants, she “jumped” out of his hands and fell face first into the control panel of the dryer next to the washing machine. Defendant denied that the baby fell to the floor but told the police that he noticed bruises on her face after he brought her back from the laundry area and placed her on a Ifiinattress. In his opinion, Effie Le-Bleu had spoiled her children, and defendant acknowledged that he became the disciplinarian in the family for both the baby and her three-year-old brother and that he had once struck the baby with a fly swatter. Defendant further acknowledged that he had never seen Ms. LeBleu abuse the children, but he also stated that he did not spend that much time in the trailer.

Defendant also gave a statement to Ray Cooper, a child protection investigator for the Office of Community Services. According to Cooper, defendant informed him that when he awoke to the sound of the baby crying, and Ms. LeBleu would not wake up, he picked up the child despite a bad back which had placed him on disability, and, “as he’s going into the washroom he dropped her.” “That was his statement,” Cooper recalled, “the child jumped out of his hands.”

Defendant’s parents testified in his defense. Both Jimmy and Fay Strother saw defendant, Effie LeBleu, and the two children when they were buying diapers on the morning of February 2, 2007. Although defendant and Ms. LeBleu stated that the baby was bruised at that time, defendant’s parents denied seeing any bruises. Jimmy Strother further testified that Ms. LeBleu improperly pulled the baby out of her carriage by grasping only one arm, “and that wasn’t the proper way to do a child, a baby.” For her part, Fay Strother claimed that it was Effie LeBleu, not defendant, who used a belt and fly swatter on the baby. Mrs. Strother also testified that she saw Ms. LeBleu throw the baby on the couch, causing the child to fall off and hit her head on the floor, giving rise to knots on her forehead. Although Mrs. Strother testified that she never saw defendant hit the baby, when asked whether she would be shocked to hear that he hit the baby with a fly swatter, 17she stated, “not really.” She also admitted that she had seen defendant “pat” the baby on her bottom, but denied that he whipped the child.

The state structured its case to account for the long-term abuse of the infant and for a specific instance involving the fracture of the child’s left arm. The second count of the bill of information thus charged defendant with cruelty to juveniles encompassing the period of time from July 8, 2006 to February 2, 2007. In pertinent part, the offense is defined as the “intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.” La.R.S. 14:93(A)(1). The first count of the bill of information charged defendant with the more serious offense of second degree cruelty to juveniles committed on or about February 2, 2007, the day that defendant was alone with the baby changing her diaper. The offense is defined as the “intentional or criminally negligent mistreatment or neglect by anyone over the age of seventeen to any child under the age of seventeen which causes serious bodily injury or neurological impairment to that child.” La.R.S. 14:93.2.3(A)(1). The term “serious bodily injury” is specifically defined as “bodily injury involving protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or substantial risk of death.” La.R.S. 14:93.2.3(A)(2).

There was no dispute at trial that the baby had generally experienced unjustifiable pain and suffering which accompanied the widespread bruising of her body and which was graphically displayed to the medical personnel who attended to her at the Cabrini Hospital, and that she had suffered serious bodily injury in the multiple fractures of her left arm at the elbow. The only contested issue at trial |sbecame which one of the two adults in the trailer committed the abuse. Defense counsel submitted as a reasonable hypothesis of innocence that Effie LeBleu, whom even the prosecutor conceded during closing argument “will never get mother of the year,” and not defendant, had caused the extensive bruising of her own child and the fracturing of her arm. Counsel suggested that much of the abuse had taken place in the few hours Effie LeBleu spent left alone with her children before taking her daughter to the hospital, after defendant left on his fishing trip, and after Fay and Jimmy Strother had seen all of them together shopping for diapers earlier that morning, when defendant’s father observed Ms. LeBleu lift the child out of her carriage by one arm, supplying the torque Dr. Nolan thought necessary and sufficient to fracture the baby’s elbow. The possibility that the abuse occurred during those hours was bolstered by Effie LeBleu’s testimony that her daughter stopped crying and went back to sleep after the diaper-changing incident in the early morning hours, yet appeared extremely unsettled and distressed when she arrived at the Cabrini Hospital shortly after 2:00 p.m. that afternoon.

On appeal, the Third Circuit panel concluded that the evidence presented at trial was sufficient to support the jury’s verdict of guilty as charged on count two of the bill of information charging the offense of cruelty to juveniles. It thereby found that jurors rationally rejected defendant’s hypothesis of innocence at trial that “the State failed to prove it was he who inflicted the injuries beyond a reasonable doubt,” and not Effie LeBleu. Strother, 09-0110 at 18, 19 So.3d at 609. The court of appeal acknowledged that the verdict rested on credibility determinations “within the sound discretion of the trier of fact and [would not] be | ndisturbed unless clearly contrary to the evidence.” Id., 09-0110 at 20, 19 So.3d at 610.

On the other hand, the court of appeal found that evidence did not support the jury’s verdict on count one, evidently a compromise made possible when defense counsel did not object to the trial court’s charge listing attempted second degree cruelty to a juvenile as a responsive verdict, because the evidence was not sufficient to support the charged offense, or, for that matter, the lesser included offense of cruelty to juveniles. Cf. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52 (La.1982) (“[A]t least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged.”). In this respect, the court of appeal agreed with the defense that the state did not prove beyond a reasonable doubt that he, as opposed to Effie LeBleu, had either intentionally or through criminal negligence, inflicted the trauma which fractured the child’s left arm at the elbow on or about February 2, 2007, although the injury could have occurred on that date within the time frame established by Dr. Nolan. The Third Circuit noted that “[tjhere was no testimony indicating that Defendant was alone with the baby when the injury to her arm occurred,” Strother, 09-0110 at 8, 19 So.3d at 608, and that “there was minimal testimony or other evidence given regarding acts committed intentionally or negligently by Defendant that would have resulted in the injury to the child’s arm.” Id., 09-0110 at 14, 19 So.3d at 607. The only evidence that defendant could have caused the injury to the baby came from the testimony of Ray Cooper with regard to the statement made by defendant that he had dropped the baby on the way to the | inlaundry area in the trailer. The Third Circuit dismissed that testimony as a “second-hand report.” Id., 09-0110 at 16, 19 So.3d at 608. While Effie LeBleu offered partial corroboration that some sort of event took place on the morning of February 2, 2007, because she had heard a “boom boom” occur while defendant was in the laundry area with her daughter, she testified only with regard to noticing bruises on her daughter later that morning and evidently did not notice any impairment of her daughter’s left arm. Finally, the court of appeal concluded that “[i]t cannot be said Defendant refused to seek medical attention for the child’s injured arm, thereby causing unjustifiable pain and suffering, since there was nothing which established that he was aware of the injury.” Id., 09-0110 at 15-16, 19 So.3d at 608.

However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. -, -, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, such as the present case in which there is no direct evidence that defendant performed any intentional act that caused serious bodily |1Tinjury to the child when her arm fractured at the elbow, this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

In the present case, and in a decision seemingly at odds with itself, the court of appeal found that jurors rationally and reasonably rejected defendant’s hypothesis of innocence, that Effie LeBleu inflicted numerous and varied injuries on her own daughter, as reflected by the extensive bruising all over her body, when it found him guilty on the count charging cruelty to juveniles, but acted irrationally when it rejected defendant’s same hypothesis of innocence offered on the count charging him with second degree cruelty to juveniles involving the specific trauma which fractured the child’s arm at the elbow. However, to reach that result with respect to the more serious charge of second degree cruelty to juveniles, the court of appeal had to reverse perspectives and view the evidence in a light most favorable not to the state, but to the defendant. Thus, its observation that “[wjhile the diaper-changing incident occurred within the time frame of when the doctors theorized the injury occurred, Defendant’s account of what happened did not indicate an injury to the baby’s arm occurred at that time,” Strother, 09-0110 at 7, 19 So.3d at 603, simply acknowledged that there was no direct evidence that he caused the injury at that time, just as there was virtually no direct evidence, apart from Effie Le-Bleu’s testimony, and defendant’s statement, about his use of a fly swatter on at least one occasion, that he had also caused the bilateral bruising of the child from head to toe over the extended period of time alleged in count two |12of the bill of information, although the jury held him fully accountable for that conduct in a verdict affirmed by the court of appeal.

However, viewing the evidence from the correct, pro-prosecution perspective, Judge Amy, dissenting, observed that “the jury could have found this [statement about the diaper change] inconsistent with the degree of bruising and injury, including a fractured arm, discovered at the hospital.” Strother, 09-0110 at 1-2, 19 So.3d at 614 (Amy, J., dissenting). In fact, defendant gave not one but two accounts of what happened, one to the police, and the other to Ray Cooper, the child protection investigator, and the statements conflicted. The statements purported to give alternative exculpatory accounts, that the child either squirmed away from defendant just after he had changed her on the washing machine and pitched face first into the back panel of the dryer, but did not fall to the floor, or that she had jumped out of his arms and fell to the floor as he carried her to the laundry area to change her. The court of appeal discounted as a “secondhand” report defendant’s statement to Ray Cooper, but under Louisiana law, the statement constituted non-hearsay evidence admissible for a fact finder to assess as substantive evidence in the context of the other evidence in the case. La.C.E. art. 801(D)(2)(a) (exempting from hearsay rule a statement offered against a party which is “[h]is own statement, in either his individual or a representative capacity.”). Any rational trier of fact would find the inconsistency in defendant’s statements highly significant because it provided an evidentiary basis for concluding that neither account of an inadvertent, accidental fall caused by the child’s squirming and wiggling was true, yet both statements acknowledged that some sort of incident had taken place in those early morning hours when defendant was alone with the baby, after which, hours later, the mother then appeared at the hospital emergency 11sroom alone with her badly battered child with a freshly broken arm while defendant went fishing. Defendant’s statement to the police further acknowledged that Effie LeBleu did not abuse the children and that he, not her, was the disciplinarian in the family because he shared her view that the children were “spoiled to her.” As judge Amy observed, given defendant’s admission that he disciplined, an eight-month-old baby, rational jurors could reasonably find “evidence of the defendant’s rage” in Effie LeBleu’s testimony that defendant grabbed a belt to strike the baby moments after she heard the thumping sound from the laundry area, because defendant generally could not tolerate the baby’s crying and could not rely on her to discipline her own children, and “concluded that the abuse was occurring at the time of the loud noise and while out of [her] sight.” Strother, 09-0110 at 1, 19 So.3d at 614 (Amy, J., concurring in part and dissenting in part).

Our independent review of the record shows that jurors had a full and fair opportunity to consider defendant’s hypothesis of innocence and weigh the inferences from testimony that the baby settled down after the diaper changing incident but was then unsettled and distraught hours later when she arrived at the hospital. Jurors clearly found the testimony of Effie LeBleu credible, whatever reservations they may have shared with the prosecutor about her capabilities as a mother. Viewing the evidence in a light most favorable to the state, and according due weight to the credibility determinations made by the jury, we conclude that the jury reasonably rejected defendant’s hypothesis of innocence and found that he had been abusing the child during the time they lived together with the mother in the trailer and then caused the fracture of her arm when he was alone with her in the early morning hours of February 2, 2007. No other alternative hypothesis is apparent from the record and the lesser verdict of attempted second degree cruelty |14to juveniles did not necessarily reflect doubts about the sufficiency of the state’s evidence to prove the charged offense because Louisiana’s system of responsive verdicts provides juries with the plenary power of nullification to return a lesser verdict even in the face of overwhelming evidence of guilt. See State v. Porter, 93-1106, p. 4 (La.7/5/94), 639 So.2d 1137, 1140 (“Treating the jury’s prerogative to return a responsive verdict similar to the jury’s power of nullification, this court has consistently held that the jury must be given the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged offense.”).

The court of appeal therefore erred in reversing defendant’s conviction and sentence on the count charging second degree cruelty to juveniles. Further, the majority on the panel also erred by vacating defendant’s sentence on his conviction, which it affirmed, for cruelty to juveniles. In that respect, because it had reversed defendant’s conviction for attempted second degree cruelty to juveniles and vacated sentence on that count, the court of appeal had no need to address defendant’s argument, advanced in his motion to reconsider sentence filed in the district court, that, at the least, his sentences should run concurrently and not consecutively. The Third Circuit panel focused instead on the question of whether the maximum sentence of 10 years imprisonment at hard labor on defendant’s conviction for cruelty to juveniles was itself excessive in light of the general rule that maximum sentences are generally reserved for the most serious offenses and the worst offenders. See, e.g., State v. Telsee, 425 So.2d 1251, 1253 (La.1983) (“The goal of the legislative scheme embodied in [the sentencing guidelines of La. C.Cr.P. art. 894.1] is to tailor the individual sentence imposed on the particular defendant to the particular circumstances of the case. The result |1fiwhich obtains is that the maximum sentences are to be reserved for the most egregious and blameworthy of offenders within a class”).

In making the assessment, the court had a relatively sparse record for review. The trial court had conducted a brief hearing at which defendant’s parents and defendant testified. Fay and Jimmy Strother informed the court of the extent to which they depended on their son to help them with a number of physical complaints brought on by advancing age. Defendant simply asked the court for mercy so he could take care of his infirm mother, but did not acknowledge any moral culpability for his crimes. The state did not call any witnesses, but the prosecutor informed the court that the victim’s arm remained bowed as a result of the fractures at the elbow, and that she might need surgery to correct the defect. In that regard, her adoptive parents had been taking her to Children’s Hospital in New Orleans for treatment. The adoptive parents had noted that the child, who was two years old by the time of sentencing, showed some signs of continuing psychological difficulties, particularly in relating to men, and displayed somewhat diminished motor skills.

In imposing sentence, the trial court emphasized the need to deter the public generally from committing similar crimes and to deter defendant specifically from similar conduct in the future in light of the court’s opinion that defendant did not think he had done anything wrong, yet “terrorized” Effie LeBleu’s daughter and used her as “a punching bag” for the six months she was around him. Thus, taking into account those factors that the court always' considers in sentencing, i e., rehabilitation, general deterrence, the wishes of the victim, and specific deterrence, the trial judge imposed consecutive terms of imprisonment of 10 years at hard labor. In response to the state’s request, the trial court complied with La.C.Cr.P. |lfiart. 890.1 by stating on the record that both offenses were crimes of violence as enumerated in, or generally defined by, La.R.S. 14:2(B).

On that record, the Third Circuit found that defendant’s maximum sentence appeared excessive “when compared to similarly situated offenders and the nature of the offense.” Strother, 09-0110 at 20, 19 So.3d at 610, The court of appeal thus looked to other cases involving extremely young children who had been abused in a variety of ways, including bruising and fractured bones, or other instances of serious bodily harm, in which the defendants received maximum or near-maximum sentences upheld on appeal. See, e.g., State v. Freeman, 409 So.2d 581 (La.1982) (defendants abused their 17-month-old child in a variety of ways by leaving bruises, lacerations, lesions consistent with human bites, and cigarette burns, and by fracturing one forearm); State v. Hollins, 43,168 (La.App. 2nd Cir.4/30/08), 981 So.2d 819 (defendant left bite marks on both arms of a three-month-old victim, fractured his upper and lower left leg, upper right arm, and left collarbone, fractured his ribs bilaterally, and bruised the infant’s brain); State v. Taylor, 31,860 (La.App. 2nd Cir.2/24/99), 733 So.2d 72 (defendant shook a two-month-old child violently, resulting in partial permanent paralysis, permanent impairment of vision, and neurological damage). Compared to those cases, defendant did not appear to the majority as among “the most blameworthy offenders,” and he was otherwise a first felony offender. Strother, 09-0110 at 24-25, 19 So.3d at 613. The majority on the panel thus concluded that the maximum sentence imposed on defendant “amounts to a needless and purposeless imposition of pain and suffering,” even conceding “a prior injury to the victim’s arm and that the victim was undoubtedly battered.” Id., 09-0110 at 24, 19 So.3d at 613.

117However, Judge Amy, who would have affirmed defendant’s conviction and sentence for second degree cruelty to juveniles, dissented on this point as well in light of “the child’s age as well as the serious and repetitive nature of the abuse.” Strother, 09-0110 at 2, 19 So.3d at 614 (Amy, J., concurring in part and dissenting in part). We agree with Judge Amy because the goal of sentence review is not to fine tune the sentence imposed according to what an appellate court may conclude is the more appropriate punishment for the offense and for the particular offender, but to identify those sentences which fail to serve any of the recognized penological goals of sentencing and thus result in the needless infliction of pain and suffering. See Ewing v. California, 538 U.S. 11, 25, 123 S.Ct. 1179, 1187, 155 L.Ed.2d 108 (2003) (“A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation.”) (citations omitted); cf. Graham v. Florida, 560 U.S. -, -, 130 S.Ct. 2011, 2028, 176 L.Ed.2d 825 (2009) (“A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.”) What comparative proportionality review conducted by the court of appeal in the present case reveals is that, notwithstanding the conclusion that the majority on the panel drew from it, the trial court did not arbitrarily misuse its broad sentencing discretion by determining that defendant’s deliberate, repetitive, and physically abusive conduct, resulting in the unjustifiable pain and suffering of an extremely young child, and, ultimately in serious bodily harm to the infant in the multiple fractures of her arm, placed him among the most blameworthy of offenders in Louisiana charged with the intentionally cruel mistreatment of children under the age of 17 years.

We therefore find no abuse of the trial court’s discretion in imposing maximum terms of imprisonment at hard labor on either of defendant’s | ^convictions, even considering the greatly reduced possibility for early release on parole because of the court’s designation of the offenses as crimes of violence. See La.R.S. 15:574.4(B); R.S. 15:571.3(B)(2)(a). Nor for the same reasons do we find a clear abuse of discretion by the trial court in specifying that the sentences will run consecutively as opposed to concurrently, thereby exacting cumulative punishment to the fullest extent authorized by the legislature, as contemplated by the state when it structured the prosecution in two counts accounting for the long-term and acute abuse of the victim, although defendant’s crimes formed part of the same continuing course of conduct. Cf. State v. Williams, 445 So.2d 1171, 1182 (La.1984)(‘While it is true that as a general rule sentences served for crimes arising out of a single course of conduct are served concurrently instead of consecutively, this court has never held that consecutive sentences are necessarily excessive. Other factors must be considered.”)(footnote omitted).

Accordingly, defendant’s conviction and sentence for attempted cruelty to juveniles are reinstated, as is defendant’s sentence on his conviction for cruelty to juveniles as affirmed by the court of appeal. This case is remanded to the district court for purposes of execution of sentence.

COURT OF APPEAL DECISION REVERSED IN PART, AFFIRMED IN PART; CONVICTION AND SENTENCE FOR ATTEMPTED SECOND DEGREE CRUELTY TO JUVENILES REINSTATED; CONVICTION FOR CRUELTY TO JUVENILES AFFIRMED AND SENTENCE REINSTATED; CASE REMANDED.

      . Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . The offense of second degree cruelty to juveniles is a specifically enumerated crime of violence. La.R.S. 14:2(B)(38). In addition, defendant makes no argument here that the trial court erred when it also denominated the offense of cruelty to juveniles as a crime of violence, although it is not specifically enumerated, because, apart from the multiple fractures of the infant's arm at the elbow, the present case revealed other instances of intentional mistreatment "that, by its very nature, involve[d] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” La.R.S. 14:2(B).


text:
    STATE of Louisiana v. Lloyd BARNES.
    No. 2010-KK-2537.
    Supreme Court of Louisiana.
    Nov. 17, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 494-350; to the Court of Appeal, Fourth Circuit, No. 2010-K-1226.

Denied.


text:
    STATE of Louisiana v. Bobby D. HIGGINBOTHAM.
    No. 2010-KK-2499.
    Supreme Court of Louisiana.
    Nov. 17, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tensas, 6th Judicial District Court Div. A, No. 79,152; to the Court of Appeal, Second Circuit, No. 46,-101-KW..

Denied.


text:
    STATE of Louisiana v. Bobby D. HIGGINBOTHAM.
    No. 2010-KK-2487.
    Supreme Court of Louisiana.
    Nov. 17, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tensas, 6th Judicial District Court Div. A, No. 79,152; to the Court of Appeal, Second Circuit, No. 46,-101-KW.

Denied.


text:
    STATE of Louisiana v. Robert SMITH.
    No. 2010-KK-2474.
    Supreme Court of Louisiana.
    Nov. 17, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. 4, No. M517-390; to the Court of Appeal, Fourth Circuit, No. 10-K-1463.

Denied.


text:
    In re Appeal of Decision of the DISCIPLINARY BOARD NO. 2010-ADMIN-33.
    No. 2010-OB-2161.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Lott-Johnson, Bishop Frank E.; —Plaintiff; Applying For Appeal of Decision of the Disciplinary Board Office of the Attorney Disciplinary Board, No. 2010-ADMIN-33.

Denied.


text:
    STATE ex rel. Gary Wayne WOODS v. STATE of Louisiana.
    No. 2010-KH-2407.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Woods, Gary Wayne; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 300,156; to the Court of Appeal, Third Circuit, No. KH 10-01100.

Denied.


text:
    STATE ex rel. Paul C. JONES v. STATE of Louisiana.
    No. 2010-KH-2406.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Jones, Paul C; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, Nos. 06-10-0444, 08-10-0790; to the Court of Appeal, First Circuit, No. 2010 KW 1215.

Denied.


text:
    Terri DAVIS, et al. v. AMERICAN HOME PRODUCTS CORPORATION.
    No. 2010-CC-2379.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Wyeth LLC; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, Nos. 94-11684, 94-12699, 95-3139; to the Court of Appeal, Fourth Circuit, No. 2010-C-1404.

Denied.

VICTORY, J., would grant.


text:
    Elaine C. WAGUESPACK v. George K. WAGUESPACK.
    No. 2010-C-2250.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Waguespaek, Elaine C; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 75139; to the Court of Appeal, First Circuit, No. 2009 CA 1478.

Denied.


text:
    Edward MONTGOMERY v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 2010-CC-2241.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Lafayette Parish School Board; — Defendant; Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation Dist. # 4, No. 09-03319; to the Court of Appeal, Third Circuit, No. WCW 10-00896.

Denied.


text:
    Leetta ALLEN-HAYNES and Gladys Allen, et al. v. ANIOMA HOME HEALTH CARE, INC. and Darrick M. Franklin.
    No. 2010-CC-2228.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Anioma Home Health Care, Inc.; Franklin, Darrick M.; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2000-5258; to the Court of Appeal, Fourth Circuit, No. 2010-C-0863.

Denied.


text:
    ALL CRANE RENTAL OF GEORGIA, INC. v. Ricky VINCENT d/b/a Tree Surgery by Ricky Vincent.
    No. 2010-C-2227.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Vincent d/b/a, Ricky; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of East Feliciana, 20th Judicial District Court Div. B, No. 88,089; to the Court of Appeal, First Circuit, No. 2010 CA 0116.

Denied.


text:
    STATE of Louisiana v. Jorge A. RIVERA.
    No. 2010-KK-2219.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Rivera, Jorge A.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 421197; to the Court of Appeal, First Circuit, No. 2010 KW 1045.

Denied.


text:
    Chris POCHE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 2010-CC-2217.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re State Farm Mutual Automobile Ins. Co.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 585,544; to the Court of Appeal, First Circuit, No. 2010 CW 1251.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & Development v. Willis Aldon EVERETT, et ux.
    No. 2010-C-2216.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Everett, et ux., Willis Aldon; Everett, Helen Eloyce Horton; —Defendants); Applying For Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. C, No. 48,292; to the Court of Appeal, Second Circuit, No. 45,337-CA.

Denied.

KNOLL, J., would grant.


text:
    Beverly Ann CASH v. MOREHOUSE PARISH OFFICE OF FAMILY SUPPORT.
    No. 2010-CC-2214.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Cash, Beverly Ann; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. H, No. 2002-10.

Denied.


text:
    Allen WALKER, et al v. SUPER 8 MOTELS, INC.
    No. 2010-CC-2184.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Walker, Allen et al.; Walker, Roxanne; —Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 04-8545; to the Court of Appeal, Fourth Circuit, No. 2010-C-0593.

Denied.


text:
    Christy STRICKLAND, et al. v. COMMUNITY HEALTH SYSTEMS, INC., et al.
    No. 2010-CC-2183.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Byrd Regional Hospital; Community Health Systems Inc. et al. Community Health Systems Prof. Services Corp.; National Health Care of Leesville Inc. d/b/ a; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. A, No. 75,186; to the Court of Appeal, Third Circuit, No. CW 10-00755.

Denied.

CLARK, J., would grant.


text:
    Jerry H. ABRAHAM and James E. House, II v. James M. ROONEY, Arshed P. Malik, Tod C. Engelhardt and Louisiana Medical Mutual Insurance Company.
    No. 2010-CC-2182.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Abraham, Jerry H. et al.; House II, James E.; —Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 657-588; to the Court of Appeal, Fifth Circuit, No. 10-C-652.

Denied.


text:
    James A. ERNY v. LOUISIANA STATE EMPLOYEE RETIREMENT SYSTEM and Terrebonne Levee and Conservation District.
    No. 2010-CC-2174.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Erny, James A.; —Plaintiff;' Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. C580865; to the Court of Appeal, First Circuit, No. 2010 CW 0831.

Denied.


text:
    Elaine C. WAGUESPACK v. George K. WAGUESPACK.
    No. 2010-C-2166.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Waguespaek, George K.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 75139; to the Court of Appeal, First Circuit, No. 2009 CA 1478.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    GENERAL LONGSHORE WORKERS, INC. and Edward Comeaux, Jr. v. ILA LOCAL 3000 and James Campbell, Ila President.
    No. 2010-C-2137.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re General Longshore Workers Inc. et al.; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 2008-12651; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0264.

Denied.


text:
    Douglas SCHYSM v. Joseph and Kim BOYD, Penny Towne, and Louisiana Department of Transportation and Development, Office of Highways.
    No. 2010-C-2113.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re: Schysm, Douglas; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Madison, 6th Judicial District Court Div. A, No. 04-42; to the Court of Appeal, Second Circuit, No. 45,-336-CA.

Denied.


text:
    The TRAILER OUTLET, INC., Esther Layerle, and Robert R. Layerle v. William J. DUTEL and Dutel & Tranchina, LLC.
    No. 2010-C-2081.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re: Dutel & Tranchina, LLC; Dutel, William J. et al.; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 2006-11350; to the Court of Appeal, First Circuit, No. 2009 CA 2139.

Denied.

KNOLL, J., would grant the writ.


text:
    In re Appeal of Decision of the DISCIPLINARY BOARD NO. 2010-ADMIN-737.
    No. 2010-OB-2163.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Boyd Jr., Louis W.;, — Plaintiff; Applying For Appeal of Decision of the Disciplinary Board Office of the Attorney Disciplinary Board, No. 2010-ADMIN-737.

Denied.


text:
    Peterson M. YOKUM, et al. v. NICHOLAS S. KARNO II, INC., et al.
    No. 2010-CC-2160.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re James River Insurance Company; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 09-6340; to the Court of Appeal, Fourth Circuit, No. 2010-C-0272.

Denied.


text:
    STATE of Louisiana v. Allen SNYDER.
    No. 2010-KK-2129.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Snyder, Allen; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 95-5114; to the Court of Appeal, Fifth Circuit, No. 10-K-628.

Denied.


text:
    STATE of Louisiana v. David Christopher STAPA.
    No. 2010-KK-2126.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Stapa, David Christopher; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. D, Nos. 175,-617, 175,618; to the Court of Appeal, Second Circuit, Nos. 45773-KW, 45774-KW.

Denied.


text:
    STATE of Louisiana v. Richard ARGEYO.
    No. 2010-KK-2108.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re State of Louisiana; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 494-557; to the Court of Appeal, Fourth Circuit, No. 2010-K-0898.

Denied.


text:
    Christopher S. PUCKETT v. Emily Coleman PUCKETT.
    No. 2010-CC-2107.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Puckett, Emily Coleman; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, Nos. 06-14298, 07-1175; to the Court of Appeal, Fourth Circuit, No. 2010-C-0670.

Writ denied.


text:
    David B. MARCEL, Todd J. Marcel, Henry John Marcel, Kent Marcel, Mark H. Marcel, Susan M. Riedlinger, Individually and as Proper Parties-In-Interest for Henry Joseph Marcel v. DELTA SHIPBULIDING COMPANY, The Executive Officers of Delta Shipbuilding Company, The Fidelity and Casualty Company of New York n/k/a Continental Insurance Company, as Insurer of Delta Shipbuilding Company and its Executive Officers, Viacom, Inc., Garlock, Inc., et al.
    No. 2010-C-1997.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Continental Insurance Company; Fidelity and Casualty Company of New York n/k/a; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 2008-11954; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0168.

Denied.

VICTORY, J., would grant.


text:
    Charles CUTLER v. Beth McGEE, et al.
    No. 2010-C-1879.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Board of Probation & Parole; Louisiana State of; McGee, Beth et al.; Public Safety and Corrections, Department of; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 2008-3397; to the Court of Appeal, Third Circuit, No. 09-1290.

Denied.


text:
    WEST CAMERON PORT, HARBOR AND TERMINAL DISTRICT v. LAKE CHARLES HARBOR & TERMINAL DIST., et al.
    No. 2010-C-1800.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re West Cameron Port, Harbor and Terminal District; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Cameron, 38th Judicial District Court Div: 0, No. 10-17271; to the Court of Appeal, Third Circuit, No. 09-509.

Denied.

KNOLL, J., would grant.


text:
    Audrey THOMPSON, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 2010-C-1374.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Harp, Chad; State Farm Mutual Automobile Ins. Co. et al.; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Rapides, Alexandria City Court, No. 110,030; to the Court of Appeal, Third Circuit, No. 09-1369.

Denied.


text:
    STATE of Louisiana v. Leroy BREAUX.
    No. 2010-K-1022.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re L.B.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 8751-07; to the Court of Appeal, Third Circuit, No. KA 09-1136.

Denied.


text:
    Colleen Comer MARCHAND, et al. v. ASBESTOS DEFENDANTS, et al.
    No. 2010-CC-1942.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Continental Insurance Company f/k/a; Fidelity Continental Insurance Co.; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 09-8475; to the Court of Appeal, Fourth Circuit, No. 2010-C-0650.

Denied.

VICTORY, J., would grant.


text:
    Colleen Comer MARCHAND, et al. v. ASBESTOS DEFENDANTS, et al.
    No. 2010-CC-1938.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Bizette, Charmaine Marchand et al.; Kennedy, Rebecca Marchand; Mar-chand III, Dudley L.; Marchand, Bonnie A.; Marchand, Brett L.; Marchand, Colleen Comer et al.; Marchand, Wayne M.; Picou, Patricia Marchand; —Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 09-8475; to the Court of Appeal, Fourth Circuit, No. 2010-C-0650.

Denied.

VICTORY and KNOLL, JJ., would grant.


text:
    STATE ex rel. John BALLAY v. STATE of Louisiana.
    No. 2010-KP-1394.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re: Ballay, John; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 97-5533; to the Court of Appeal, Fifth Circuit, Nos. 08-WR-1197, 08-KM-738, 08-KM-739, 08-KM-788, 09-KH-3.

Denied.


text:
    STATE of Louisiana v. Jon BALLAY.
    No. 2010-OK-1149.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Ballay, Jon; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 97-5533; to the Court of Appeal, Fifth Circuit, Nos. 08-WR-1197, 09-KH-3.

Denied.


text:
    STATE ex rel. Billy Ray ROBINSON v. STATE of Louisiana.
    No. 2010-KH-0979.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re: Robinson, Billy Ray; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lasalle, 28th Judicial District Court Div. 0, No. 72,511; to the Court of Appeal, Third Circuit, No. KH 09-01155.

Denied.


text:
    STATE of Louisiana v. Jason P. PORCHE.
    No. 2010-K-0942.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re: Porche, Jason P.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 470-848; to the Court of Appeal, Fourth Circuit, No. 2009-KA-1418.

Denied.


text:
    STATE of Louisiana v. Troy BARBOUR.
    No. 2010-K-0934.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Barbour, Troy; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 465-662; to the Court of Appeal, Fourth Circuit, No. 2009-KA-1258.

Denied.


text:
    STATE of Louisiana v. James ROCHE.
    No. 2010-K-0930.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Roche, James; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 07-6392; to the Court of Appeal, Fifth Circuit, No. 09-KA-684.

Denied.


text:
    STATE of Louisiana v. Todd Vincent EDWARDS.
    No. 2010-KK-0849.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Edwards, Todd Vincent; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. H, No. 04-1111; to the Court of Appeal, Third Circuit, No. 09-799.

Denied.


text:
    STATE of Louisiana v. Patrick Dewayne DYAS.
    No. 2010-K-0759.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Dyas, Patrick Dewayne; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. H, No. 264,318; to the Court of Appeal, Second Circuit, No. 45,065-KA.

Denied.


text:
    STATE of Louisiana v. Egerald EVERY.
    No. 2010-KO-0929.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Every, Egerald; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 477-091; to the Court of Appeal, Fourth Circuit, No. 2009-KA-0721.

Denied.


text:
    STATE of Louisiana v. Pierre WEATHERSPOON.
    No. 2010-KP-0549.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Weatherspoon, Pierre; —Defendant; Applying For Supervisory, and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 02-4897; to the Court of Appeal, Fifth Circuit, No. 09-KH-1010.

Denied.


text:
    STATE of Louisiana v. Gwana GREEN.
    No. 2010-KP-0513.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Green, Gwana; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 424-990; to the Court of Appeal, Fourth Circuit, No. 2010-K-0043.

Denied.


text:
    STATE of Louisiana v. Berry CHANDLER.
    No. 2010-KP-0455.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. B, Nos. 04-M3027, 01-F0230, 04-M3029, 04-M3028; to the Court of Appeal, Second Circuit, Nos. 45341-KW, 45342-KW, 45343-KW, 45344-KW.

Denied.

CLARK, J., recused.


text:
    STATE of Louisiana v. John K. ROACH, Jr.
    No. 2010-KP-0451.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Roach Jr., John K.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 04-3-88; to the Court of Appeal, First Circuit, No. 2009 KW 2159.

Denied.


text:
    STATE of Louisiana v. Leonard JOHNSON.
    No. 2010-KK-0398.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Johnson, Leonard; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 253-115; to the Court of Appeal, Fourth Circuit, No. 2009-K-1689.

Denied.


text:
    STATE of Louisiana v. Velbert REED.
    No. 2010-KP-0345.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Reed, Velbert M.; —Defendant; Applying For Supervisory and/or Remedíal Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 92-F1156; to the Court of Appeal, Second Circuit, No. 45,248-KW.

Denied.


text:
    STATE of Louisiana v. Michael WALDEN.
    No. 2010-KP-0301.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div, F, No. 06F0415; to the Court of Appeal, Second Circuit, No. 45,-272-KH.

Denied.


text:
    STATE ex rel. Bacardney Wayne GEORGE v. STATE of Louisiana.
    No. 2009-KH-2761.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re George, Bacardney Wayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. F, No. 07-1162; to the Court of Appeal, Third Circuit, No. 09-143.

Denied.


text:
    STATE ex rel. Marshall WHITLEY v. STATE of Louisiana.
    No. 2009-KH-2760.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Whitley, Marshall; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, Nos. 313-400, 312-936; to the Court of Appeal, Fourth Circuit, No. 2009-K-1454.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Bernard GRIFFIN v. STATE of Louisiana.
    No. 2009-KH-2739.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re: Griffin, Bernard; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberville, No.; 18th Judicial District Court Div. C, No. 367-07; to the Court of Appeal, First Circuit, No. 2009 KA 0773.

Denied.


text:
    STATE ex rel. Wadelen SUMLIN v. STATE of Louisiana.
    No. 2009-KH-2738.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Sumlin, Wadelen; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 258,360; to the Court of Appeal, Second Circuit, Nos. 44.805-KA, 44,806-KA.

Denied.


text:
    STATE ex rel. Foster SHIVERS v. STATE of Louisiana.
    No. 2009-KH-2737.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Shivers, Foster; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 111,797; to the Court of Appeal, Second Circuit, No. 45,-175-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Johnathan MYERS v. STATE of Louisiana.
    No. 2009-KH-2731.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Myers, Johnathan; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 06-4969; to the Court of Appeal, Fifth Circuit, No 09-KH-868.

Denied.


text:
    STATE ex rel. Fred Christopher BEVERLY v. STATE of Louisiana.
    No. 2009-KH-2729.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Beverly, Fred Christopher; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th .Judicial District Court Div. B, No. 266815; to the Court of Appeal, Third Circuit, No. KH 09-00675.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Kevin Ray VOLGAMORE v. STATE of Louisiana.
    No. 2009-KH-2728.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Volgamore, Kevin Ray; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 223.776; to the Court of Appeal, Second Circuit, No. 45,-161-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Rickell JOHNSON v. STATE of Louisiana.
    No. 2009-KH-2719.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Johnson, Rickell; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 00-5498; to the Court of Appeal, Fifth Circuit, No 09-KH-777.

Denied.


text:
    STATE ex rel. Michael Anthony ELLIS, Jr. v. STATE of Louisiana.
    No. 2009-KH-2698.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Ellis Jr., Michael Anthony; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. E, No. 240,464; to the Court of Appeal, Second Circuit, No. 45,152-KH.

Denied.


text:
    STATE ex rel. Stanley LINDSEY v. STATE of Louisiana.
    No. 2009-KH-2691.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Lindsey, Stanley; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 03-05-0854; to the Court of Appeal, First Circuit, No. 2009 KW 1424.

Denied.


text:
    STATE ex rel. Gary J. NORRIS v. STATE of Louisiana.
    No. 2009-KH-2681.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Norris, Gary J.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 255,976-001; to the Court of Appeal, Third Circuit, No. KH 09-01000.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Marlon ALEXANDER v. STATE of Louisiana.
    No. 2009-KH-2672.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Alexander, Marlon; —Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, Nos. 18128-01, 13144-01; to the Court of Appeal, Third Circuit, No. KH-09-00163.

Denied.


text:
    STATE ex rel. Larry R. PRICE v. STATE of Louisiana.
    No. 2009-KH-2670.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Price, Larry R.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 398-639; to the Court of Appeal, Fourth Circuit, No. 2009-K-1442.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Emmitt JONES v. STATE of Louisiana.
    No. 2009-KH-2669.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Jones, Eramitt; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 09-WFLN-260; to the Court of Appeal, First Circuit, No. 2009 CW 1811.

Denied.


text:
    STATE ex rel. Brian K. MOSBY v. STATE of Louisiana.
    No. 2009-KH-2600.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Mosby, Brian K; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. D, No. 3169-99; to the Court of Appeal, First Circuit, No. 2009 KW 0766.

Denied.


text:
    STATE ex rel. Chuck JARRELL v. STATE of Louisiana.
    No. 2009-KH-2511.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Jarrell, Chuck; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. A, No. 02-CR2-83980; to the Court of Appeal, First Circuit, No. 2009 KW 1427.

Denied.


text:
    In re Glenda M. AUGUST.
    No. 2010-B-1546.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re August, Glenda M.; —Plaintiff; Applying for Rehearing of this Court’s action dated October 15, 2010; to the Office of Disciplinary Board No. 09-DB-019.

Rehearing denied.


text:
    STATE of Louisiana v. Marvin D. ERVIN.
    No. 2009-K-0958.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Ervin, Marvin D.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 462-277; to the Court of Appeal, Fourth Circuit, No. 2008-KA-1078.

Denied.


text:
    STATE ex rel. Billy ROBINSON v. STATE of Louisiana.
    No. 2009-KH-2500.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Robinson, Billy; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lasalle.

Denied.


text:
    STATE of Louisiana v. Rodney BRUMFIELD.
    No. 2010-KK-2393.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Brumfield, Rodney; —Defendant; Applying For Supervisory and/or Remedial Writs, Palish of Orleans, Criminal District Court Div. E, No. 497-334; to the Court of Appeal, Fourth Circuit, No. 2010-K-1318.

Writ denied. Stay denied.


text:
    Melvin BATISTE, Gina Batiste, Kyroneka Batiste, Keir Batiste, Shondrika Clayton and Shondria Lovette v. BAYOU STEEL CORPORATION, Graftech International, Inc., Ideal Electrodes, Dameli Corporation, Jerry Pitts, Timothy Postlewaite, Bryan Englade, Scott Gregory and Elton Davis.
    No. 2010-CC-1561.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Melvin Batiste, et al.; —Plaintiffs; Applying for Rehearing of this Courts action dated October 1, 2010; Parish of St. John, 40th Judicial District Court, Div. A, No. 51067; to the Court of Appeal, Fifth Circuit, No. 10-C-365.

Rehearing denied.

JOHNSON and KNOLL, JJ„ would grant.


text:
    STATE ex rel. Freddie BURRELL v. STATE of Louisiana.
    No. 2009-KH-2294.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Burrell, Freddie; —Plaintiff; Applying for Reconsideration of this Court’s Action dated October 1, 2010; Parish of Orleans, Criminal District Court Div. B, No. 269-172.

Denied.


text:
    Shirley FRUGHT v. LAFAYETTE INSURANCE COMPANY.
    No. 2010-CC-2220.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   In re Lafayette Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 107-245; to the Court of Appeal, Fourth Circuit, No. 2010-C-1035.

Not considered; not timely filed. See State v. Crandell, 05-1060 (La.3/10/06), 924 So.2d 122; Morris v. Stueben, 01-0137 (La.1/26/01), 781 So.2d 1220.


author: WELCH, J.

text:
    Eric J. ELLIOTT v. Carrie Barber ELLIOTT.
    No. 2010 CU 0755.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.
    Writ Denied Oct. 27, 2010.

      C. Jerome D’Aquila, New Roads, LA, for Plaintiff-Appellee, Eric J. Elliott.
    M. Therese Nagem, Kathryn Flynn Sim-ino, Baton Rouge, LA, for Defendant-Appellant, Carrie Barber Elliott.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   WELCH, J.

12Carrie Barber Elliott appeals a judgment modifying the joint custody implementation plan previously agreed to between her and Eric J. Elliott. For reasons that follow, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

The factual and procedural history of this case is more fully set forth in this court’s earlier opinion, Elliott v. Elliott, 2005-0181 (La.App. 1st Cir.5/11/05), 916 So.2d 221, writ denied, 2005-1547 (La.7/12/05), 905 So.2d 293. In sum, following the trial court’s denial of Carrie Elliott’s request to relocate the children’s residence to Natchitoches, Louisiana, the trial court modified the parties’ stipulated custodial arrangement by designating Eric Elliott as the children’s domiciliary parent and decreasing Carrie Elliott’s allocation of physical custody with the children. Carrie Elliott appealed the modification of the physical custody allocation, but did not challenge the ruling denying her request to relocate the children’s residence. On appeal, this court held, among other things, that Carrie Elliott’s notice to Eric Elliott of her proposed relocation with the children to Natchitoches was not a change in circumstances materially affecting the welfare of the children that would allow the court to revisit custody and re-measure the best interest of the child. Additionally, this court held that there was insufficient evidence in the record establishing that it was in the best interest of the children to alter the physical custodial arrangement so as to reduce the amount of time the children spent with their mother. Accordingly, this court reversed the judgment of the trial court insofar as it modified custody and vacated the joint custody implementation plan rendered in furtherance of that judgment.

Following this court’s decision, Carrie Elliott moved to Natchitoches without the children. On June 8, 2006, the parties stipulated to a modification of their joint custody implementation plan. The stipulated June 8, 2006 joint custody | ¡¡implementation plan provided that the parties would share joint legal custody of the minor children, that Eric Elliott would be designated as the domiciliary parent of the children, and that Carrie Elliott would have specific custodial periods. Essentially, Carrie Elliott’s regular custodial periods consisted of two consecutive weekends, which was followed by Eric Elliott having custody of the children for one weekend, and then the cycle would repeat. On the consecutive weekends, Carrie Elliott’s custodial periods would begin when school was dismissed on the day school adjourned for the weekend until Sunday (or until the day prior to school resuming). Carrie Elliott was responsible for picking the children up from school and returning the children for exchange at the Livonia Police Station. Carrie Elliott was also entitled to visit with the children in Pointe Coupee Parish one afternoon each week from 3:00 p.m. until 8:00 p.m. depending on their school schedule. Additionally, Carrie Elliott was awarded specific custodial periods during the Thanksgiving holidays, the Christmas holidays, Spring Break, Easter Weekend, Mother’s Day Weekend, the Mardi Gras holidays, the children’s birthdays and the summer.

With regard to the exchange of the minor children, the joint custody implementation plan provided that except when Carrie Elliott picked up the children from school, on all holidays, summertime, and the first of Carrie Elliott’s consecutive weekends, she would exchange the children with Eric Elliott at the Texaco station/convenience store on Louisiana Highway 71 in Le-Compte, Louisiana, and on the second of her consecutive weekends, any mid-week visitations, and any occasional early pick up of the children to begin holiday visitation, she would exchange the children with Eric Elliott at the Livonia Police Station in Livonia, Louisiana.

After this plan was put into effect, Carrie Elliott, who had remarried, moved to Lindale, Texas due to her husband’s employment. In response to Carrie Elliott’s |4move to Texas, on June 13, 2008, Eric Elliott filed a rule to modify custody plan, asserting that there was a sufficient change in circumstances warranting a modification of the custody plan because of Carrie Elliott’s change in domicile and that the present plan was not in the best interest of the children, considering the distance between the domiciles of the parties. Eric Elliott further asserted that it was in the best interest of the children that he be granted sole custody, that the custody plan be modified, and that Carrie Elliott’s visitation schedule be adjusted. In response, Carrie Elliott filed a peremptory exception raising the objection of no cause of action with respect to Eric Elliott’s request and a motion for a custody evaluation.

A contradictory hearing was held on March 17, 2009. At the beginning of the hearing and after argument of counsel, the trial court denied Carrie Elliott’s motion for a custody evaluation and sustained her peremptory exception raising the objection of no cause of action as to Eric Elliott’s request for sole custody. After evidence was introduced and the matter submitted, the trial court modified the parties existing joint custody implementation plan to provide Carrie Elliott “visitation” with the children every other weekend, with one weekend visitation per month being allowed to take place in Lindale, Texas, and on the alternate weekend, Carrie Elliott’s visitation was to take place in Maringouin, Louisiana (or its surrounding area) or in Natchitoches (or its surrounding area). The trial court denied Carrie Elliott’s request for makeup days for the time she lost with her children due to the modification and ordered that the transportation exchange point would remain the same as set forth in the August 16, 2004 custody plan, and that for weekend visitation, Eric Elliott would meet Carrie Elliott at the exchange point every other time that Carrie Elliott had weekend visitation. A judgment in accordance with the trial court’s ruling was signed on December 1, 2009, and it is from this judgment that Carrie Elliott has appealed.

I,.ASSIGNMENTS OF ERROR

On appeal, Carrie Elliott asserts that the trial court erred in: (1) denying her motion for a custody evaluation; (2) failing to determine whether a change in circumstances materially affecting the welfare of the children had taken place; (3) finding that the modification of the parties joint custody implementation plan was in the best interest of the children; (4) ordering that Carrie Elliott have visitation with the children every other weekend, with only one of two weekends in the rotation being allowed to take place in Lindale, Texas; (5) denying Carrie Elliott any additional visitation days to makeup for the visitation lost due to the modification of her weekend visitation; and (6) determining that the extended weekend time should be considered a weekend visitation and not a holiday visitation for the purposes of transportation exchange points.

CUSTODY EVALUATION

In Carrie Elliott’s first assignment of error, she contends that the trial court erred in denying her motion for a custody evaluation by a mental health professional. Her motion requested the evaluation on the basis that it was necessary to help determine if the children were affected by her move to Texas and what was in the best interest of the children.

Louisiana Revised Statutes 9:331 provides:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

Based on the use of the term “may” in this statute, it is clear that evaluations | fiOf parties or children by a mental health professional in a custody proceeding are permissive — not mandatory. See Silbernagel v. Silbernagel, 2006-0879, p. 11 (La.App. 5th Cir.4/11/07), 958 So.2d 13, 20. As such, the decision of whether an evaluation should be ordered lies within the trial court’s discretion. Scott v. Scott, 95-0816, p. 11 (La.App. 1st Cir 12/15/95), 665 So.2d 760, 767, writ denied, 96-0181 (La.2/2/96), 666 So.2d 1106. The trial court’s ruling in this regard will not be disturbed on appeal absent an abuse of that discretion. See Silbernagel, 2006-0879, p. 11-12, 958 So.2d at 20.

In this case, the trial court determined that an evaluation was not necessary because the only issue for it to determine was “whether or not it [was] ... in the best interest of the children, that they should be placed on the road under the present implementation [plan] for five hours, plus, each time they travel to visit with the [m]other ...” The court noted that because it was not concerned with any modification of the designation of the domiciliary parent, but rather, whether Carrie Elliott’s physical custodial periods should be modified because she moved further away, it was not “a situation [where the] [c]ourt could not make a decision.” Thus, the trial court apparently concluded that good cause to order the evaluation was not shown because it could render a decision on the particular issue before it without input from a mental health professional. Based on the record before us, we cannot say that the trial court abused its discretion in declining to order an evaluation of the parties and children.

MODIFICATION OF CARRIE ELLIOTT’S PHYSICAL CUSTODIAL PERIODS

General Legal Precepts

Every child custody case must be viewed in light of its own particular set of facts and circumstances. Elliott, 2005-0181 at p. 7, 916 So.2d at 226. The paramount consideration in any determination of child custody is the best interest 17of the child. Evans v. Lungrin, 97-0541, 97-0577, p. 12 (La.2/6/98), 708 So.2d 731, 738; La. C.C. art. 131. Thus, the trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court’s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Elliott, 2005-0181 at p. 7, 916 So.2d at 226.

Change in Custody

Carrie Elliott’s main contention on appeal is that the trial court erred in its modification of the allocation of physical custody of the children. Specifically, in her second and third assignments of error, she contends that the trial court legally erred in determining whether a change in circumstances materially affecting the welfare of the children had taken place since the June 8, 2006 stipulated joint custody implementation plan and in finding that the modification of the parties’ joint custody implementation plan was in the best interest of the children.

Eric Elliott’s motion to modify custody was based solely on Carrie Elliott’s move to Lindale, Texas. In his motion, he requested that that the appropriate modifications be made to Carrie Elliott’s visitation or physical custodial schedule in light of her move. Since the parties share joint custody of the children and because Eric Elliott sought a modification of the allocation of physical custody, this case must be considered a modification of custody. See Cedotal v. Cedotal, 2005-1524, p. 5 (La.App. 1st Cir.11/4/05), 927 So.2d 433, 436.

|sThere is a distinction between the burden of proof needed to change a custody plan ordered pursuant to a considered decree and that needed to change a custody plan ordered pursuant to a non-considered decree (or stipulated judgment). See Evans, 97-0541 at pp. 12-13, 708 So.2d at 738. A “considered decree” is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Id.; Elliott, 2005-0181 at p. 8, 916 So.2d at 227. By contrast, a non-considered decree is one in which no evidence is presented as to the fitness of the parents, such as one that is entered by default, by stipulation or consent of the parties, or is otherwise not contested. Id.

Once a considered decree of permanent custody has been rendered by a court, the proponent of the change bears the heavy burden of proving that a change in circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986). However, in cases where the underlying custody decree is a stipulated judgment, and the parties have consented to a custodial arrangement with no evidence as to parental fitness, the heavy burden of proof rule enunciated in Berger-on is inapplicable. Evans, 97-0541 at p. 13, 708 So.2d at 738; Elliott, 2005-0181 at pp. 8-9, 916 So.2d at 227. Rather, a party seeking a modification of a consent decree must prove that there has been a change in circumstances materially affecting the welfare of the child since the original (or previous) custody decree was entered and that the proposed modification is in the best interest of the child. Richard v. Richard, 2009-0299, p. 7 (La.App. 1st Cir.6/12/09), 20 So.3d 1061, 1066; Evans, 97-0541 at p. 13, 708 So.2d at 738; Elliott, 2005-0181 at p. 9, 916 So.2d at 227.

In this case, the underlying custody decree is the June 8, 2006 stipulated | ¡joint custody implementation plan. In order to modify that custody plan or decree, as requested by Eric Elliott, he had to prove, and the trial court had to find, that: (1) a change in circumstances materially affecting the welfare of the children had occurred since the rendition of the June 8, 2006 joint custody implementation plan and (2) the modification proposed by Eric Elliott — i.e., that appropriate modifications be made to Carrie Elliott’s physical custodial schedule in light of her move — was in the best interest of the children.

At trial, Eric Elliott testified that his primary concern with regard to the current joint custody implementation plan was the distance that the children were required to travel when their mother had physical custody of them. Specifically, on a physical custodial weekend with Carrie Elliott, the children spend approximately eleven and a half to twelve hours traveling during a forty-eight hour weekend. He acknowledged that while both children enjoy seeing their mother, the length of the drive to Lindale, Texas is long.

Carrie Elliott testified that she moved to Texas because of her husband’s job, which enabled her to stay at home. She stated that she did not expect anything to change with regard to her physical custody of the children, and she knew that the driving would be her responsibility. With regard to her weekend time, she testified her intent was to take the children to Texas at times and stay in the Maringouin or Baton Rouge area at other times. She stated that although she knew'the drive was long for the girls, they did not mind the drive because they were used to traveling and they were spending time with her.

In oral reasons for judgment, the trial court stated:

The Court finds, by a preponderance of the evidence, that the increased distance to Lindale from Natchitoches, which is approximately ... twice the distance of where now [Carrie Elliott] lived before, is a reason to modify the joint custody implementation plan.... [T]hat’s the only thing I find that convinces this court that I need to make a modification.

| mCarrie Elliott contends that the trial court erred in modifying the physical custodial allocation because the trial court failed to determine whether a change in circumstances materially affecting the welfare of the children had occurred, and further, that her move to Lindale, Texas was not a change in circumstances materially affecting the welfare of the children, citing in support Bonnecarrere v. Bonnecarrere, 2009-1647, p. 7 (La.App. 1st Cir.4/14/10), 37 So.3d 1038, 1044, writ denied, 2009-1639 (La.8/11/2010), 42 So.3d 381, wherein another panel of this court held that “[a]n interstate move by a non-domiciliary parent does not per se establish such a change.”

In Bonnecarrere, 2009-1647 at pp. 7-8, 37 So.3d at 1044-1045, the parties shared joint custody of the parties’ two children, with the mother designated as the domiciliary parent, subject to specific custodial periods (every other weekend, holiday time, and extended time during the summer) to be exercised by the father. Thereafter, the father moved to Minnesota and sought to have his visitation or physical custodial schedule modified to ensure that he had frequent and continuing contact with his children. In requesting the modification of the physical custodial schedule, the father asserted that his move to Minnesota constituted a change in circumstances because the distance made the prior arrangement (wherein he enjoyed custody of the children every other weekend) “unworkable.” This court, noting that the father was not only required to show a change in circumstances, but also that the material change in circumstances affected the welfare of the children, concluded, in a plurality decision, that an interstate move by a non-domiciliary parent did not per se establish such a change. This court reasoned that although the father moved to Minnesota, the children were remaining in their home in Louisiana with their mother and maternal grandparents, and were close to them paternal grandparents. Further, this court noted that although the children would have less contact with their father, absent some evidence in the record that the [T1 children’s welfare was affected by the father’s move to Minnesota, the evidence was insufficient to meet the father’s burden in seeking a modification of the custody judgment Bon-necarrere, 2009-1647 at pp. 8-9, 37 So.3d at 1045.

Although Bonnecarrere is similar to the case before us — in that the non-domiciliary parent has moved out of state — we find it distinguishable. Bearing in mind that the focus must always be on the effect the change in circumstances has on the children, in Bonnecarrere, it was the non-domiciliary parent (the father) who sought the modification of custody based on his own move out-of-state because the plan in place became unworkable for him because of the distance that he moved. Due to the distance that either the father or the children (or both) would necessarily have to travel as a result of the move in order for the father to exercise physical custody, the father was unable to exercise his regular alternating weekend visitation. Although the father’s move resulted in a decrease in the time that the children would be in the physical custody of their father, this court found that such evidence did not demonstrate that the father’s move had an effect on the welfare of the children. And thus, the father’s interstate move was not — in and of itself — a change in circumstances materially affecting the welfare of the children.

However, in this case, it is the domiciliary parent who is seeking the modification of custody. The basis for the request for a modification was not based on the plan becoming unworkable due to the move or the distance itself that Carrie Elliott moved, but rather, that despite the distance that she moved, Carrie Elliott expected the physical custodial schedule to remain the same. Unlike the non-domiciliary parent in Bonnecarrere, Carrie Elliott still intended to and did exercise her regular physical custodial periods. In exercising her regular physical custodial weekends, the children were being subjected to significant travel time — approximately one-quarter of the weekend — several weekends per month. This significant travel time has an effect on the welfare of the children, and therefore, [ ]2we find that that Carrie Elliott’s move to Lindale, Texas was a change in circumstances materially affecting the welfare of the children.

We recognize under Bonnecarrere that although an interstate move by a non-domiciliary parent may not per se establish a change in circumstances materially affecting the welfare of the child, when, as in this case, the trial court finds that the non-domiciliary parent has moved a significant distance, still intends to exercise physical custodial time, and subjects the children to extensive travel time, such a move can establish a change in circumstances materially affecting the welfare of the children.

Having concluded that Eric Elliott met the first prong of his burden of proof in his request to modify custody, we must next consider whether the proposed modification was in the best interest of the children. In determining the best interest of the child, La. C.C. art. 134 enumerates twelve non-exclusive factors to be considered by the trial court, which include:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems |isthe child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The list of factors set forth in this article is non-exclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court. La. C.C. art. 134, comment (b).

As previously noted, the evidence at trial focused on the distance between Eric Elliott’s residence in Maringouin and Carrie Elliott’s new residence in Lindale, Texas and the length of time — five to five and a half hours — that it took to travel that distance. Carrie Elliott testified that they did not travel to Lindale, Texas every weekend, but on occasion would travel to her parent’s home in Hemphill, Texas (near Natchitoches, Louisiana area) or to her grandparent’s home in Gulfport, Mississippi. Additionally, Eric Elliott, during his testimony, expressed his concern that Carrie Elliott did not compromise with him on issues regarding the children’s extracurricular activities and he testified to a few specific examples where she refused to compromise. However, he also acknowledged that there were other occasions where she had accommodated the children’s extracurricular activities, as he requested.

After reviewing the evidence and testimony from the hearing, the only relevant factors discussed were factors (8), (10), and (11). The children have become involved in various extracurricular activities, such as dancing and volleyball, which have regularly scheduled events and games on weekends. According to the June 8, 2006 joint custody implementation plan, Carrie Elliott had physical custody of the children three (and sometimes four) weekends per [ 14month, and the children’s ability to participate in extracurricular activities has been affected by the physical custodial allocation, particularly given the distance between the residences of the parties. Although the childi'en’s relationship with Carrie Elliott is of utmost importance, the physical custody allocation should also consider the children’s daily activities. Therefore, when considering these factors and the testimony at trial, we find that Eric Elliott sufficiently established that the children’s best interest was served by a modification of the parties’ joint custody implementation plan.

Because we have concluded that Eric Elliott satisfied his burden of proving both a change in circumstances materially affecting the welfare of the children and that it was in the children’s best interest to modify the joint custody implementation plan, we cannot say that the trial court abused its discretion in its ultimate determination that a modification of Carrie Elliott’s allocation of physical custody was warranted.

Came Elliott’s Physical Custodial Periods

In Carrie Elliott’s remaining assignments of error, she complains about the specific provisions made by the trial court in its modification of the joint custody implementation plan.

In assignment of error number four, Carrie Elliott contends that the trial | lacourt erred in ordering that only one of her two alternating weekends of physical custodial periods could take place in hún-dale, Texas and that the other weekend custodial period had to take place in the area of Maringouin or in the area of Natchitoches. Carrie Elliott argues that the reason her weekend physical custodial periods were modified from consecutive weekends to every other weekend was .to eliminate the children being on the road for approximately eleven hours on consecutive weekends. Therefore, once the consecutive weekend physical custodial periods were eliminated, there was no reason for the trial court to order that only one of her alternating weekends could be spent in Lindale, Texas. In assignment of error number five, Carrie Elliott also contends that the trial court erred in failing to award her additional days during the year (i.e., during holidays and the summer) in order to makeup for the periods of physical custody that she lost as a result of the trial court’s decision to modify her weekend custodial periods.

When parents share joint custody of children, La. R.S. 9:335 requires an implementation order to be rendered (except for good cause shown), which allocates each party’s physical custodial time periods, as well as the legal authority and responsibility of the parents. Louisiana Revised Statutes 9:335(A)(2)(a) and (b) requires frequent and continuing contact with both parents, and to the extent that it is feasible and in the best interest of the children, that physical custody of the children be shared equally. The trial court is imbued with much discretion in the determination of what constitutes feasible, reasonable time periods of physical custody of the children. Caro v. Caro, 95-0173, p. 4 (La.App. 1st Cir.10/6/95), 671 So.2d 516, 519.

After reviewing the allocation of physical custody made by the trial court | 1fiand the geographical restriction imposed by the trial court with regard to Carrie Elliott’s alternating weekend custodial periods, we cannot say that the trial court abused its discretion. This geographical restriction on the alternating weekend ensures that the children have regular and frequent contact with then’ mother, but that they only travel the long distance approximately once a month. It also takes into consideration the extracurricular activities that the children may have on the weekends in the area of their domiciliary home.

With regard to Carrie Elliott’s request for additional days during the holidays and summer to makeup for the days of physical custody she lost on the weekends, we note that the trial court’s modification of the allocation of physical custody was limited to the regular weekend custodial periods and not the holiday and summer physical custody allocations. Thus, the trial court apparently concluded it. was not in the children’s best interest to modify those custodial times. While it is unfortunate that the distance Carrie Elliott moved has resulted in a decrease in the amount of time that the children will be in her physical custody, the trial court apparently determined that an award of extra days during the holidays or summer was not feasible to correct that loss and would result in a loss of most (if not all) of Eric Elliott’s already limited time during the holidays and the summer. Accordingly, we do not find that the trial court abused its discretion in failing to award Carrie Elliott additional makeup days.

In Carrie Elliott’s last assignment of error, she contends that the trial court erred with regard -to setting the transportation/exchange point for the children, specifically during extended weekend custodial periods. She contends that the transportation/exchange point should have remained the same as provided for in the June 8, 2006 joint custody implementation plan. The judgment reflects that the trial court changed the transportation/exchange point to the provisions set forth in the August 16, 2004 joint custody implementation plan, and that for weekend 117visitation, Eric Elliott was to meet Carrie Elliott at the exchange point every other time that Carrie Elliott had weekend visitation. Again we note that the trial court is vested with much discretion when determining what is reasonable in the allocation of physical custody and in the allocation of the legal authority and responsibility of the parents, which would include issues such as transportation and exchanges points to facilitate each party’s custodial time. At the hearing in this matter, Carrie Elliott testified that when she moved, she knew the extra driving was going to be her responsibility, and the extra driving did not bother her because she was accustomed to it. However, Eric Elliott testified that the current transportation/exchange point provisions were a hardship on him due to changes in his work schedule, which occurred after the parties entered into the June 8, 2006 stipulated joint custody implementation plan. Given this evidence, we cannot say that the trial court abused its' discretion in modifying the transportation and exchange point provisions.

CONCLUSION

For all of the above and foregoing reasons, the December 1, 2009 judgment of the trial court is hereby affirmed. All costs of these proceedings are assessed to the defendant/appellant, Carrie Barber Elliott.

AFFIRMED.

      . Eric Elliott and Carrie Elliott share joint custody of their children. However, we note that both Eric Elliott and the trial court used the term "visitation.” "Visitation” as provided for in La. C.C. art. 136, applies only when a parent does not have custody or joint custody. The time that parents with joint legal custody share with their children is more properly described as physical custody allocation of a joint custody plan, rather than as visitation. La. R.S. 9:335; Cedotal v. Cedotal, 2005-1524, p. 5 (La.App. 1st Cir. 11/4/05), 927 So.2d 433, 436; see Evans v. Lungrin, 97-0541, pp. 10-11 (La.2/6/98), 708 So.2d 731, 737.

      . Eric Elliott also requested that he be awarded sole custody of the minor children. However, as previously noted, the trial court dismissed this request pursuant to a peremptory exception raising the objection of no cause of action filed by Carrie Elliott. No issues have been raised on appeal with regard to this ruling by the trial court.

      . As pointed out by Carrie Elliott in her brief to this court, the trial court’s oral reasons for judgment did not specifically articulate a factual finding that a change in circumstances materially affecting the welfare of the children had occurred or whether the proposed modification was in the best interest of the children. Instead, the trial court merely stated the increased distance warranted a modification of the joint custody implementation plan. Carrie Elliott contends that the trial court’s failure in this regard was legal error, warranting a de novo review of this matter. We disagree. Although from its reasons for judgment, we cannot determine what legal standard the trial court applied in this matter, it is well settled that appeals are taken from the judgment of the trial court, not its written reasons for judgment, and if the trial court reached the proper result, the judgment should be affirmed. See Schulingkamp v. Ochsner Clinic, 99-558, p. 8 (La.App. 5th Cir. 1/25/00), 752 So.2d 275, 279, writ denied, 2000-0618 (La.4/20/00), 760 So.2d 348. Accordingly, because the trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown and because we find, based on the record, that Eric Elliott met his burden of proof, we conclude that the trial court did not abuse its discretion in its determination that a modification of the physical custodial allocation was warranted.

      . Given the distance between the residences of the parties, there is no dispute that equal sharing is not feasible in this case.

      . We note that in Elliott, 2005-0181 at p. 15, 916 So.2d at 231, the August 16, 2004 joint custody implementation plan was vacated by this court. Additionally, the specific transportation/exchange point provisions of the August 16, 2004 judgment are not set forth in the record before us. However, it appears that both parties are aware of the specific details of those provisions.