author: THIBODEAUX, Chief Judge. GREMILLION, Judge,

text:
    STATE of Louisiana v. Mary Henderson TRAHAN.
    No. 11-148.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 2011.

      Michael Harson, District Attorney — 15th Judicial District Court, Daniel M. Landry III, Assistant District Attorney — 15th Judicial District Court, Lafayette, LA, for Plaintiff/Appellee — State of Louisiana.
    John Clay Lejeune, Crowley, LA, for Defendant/Appellant — Mary Henderson Trahan.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

| defendant, Mary Henderson Trahan, was indicted for second degree murder, a violation of La.R.S. 14:30.1. A jury found her guilty as charged after a one-day trial. The trial court sentenced Defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence.

Defendant perfected a timely appeal and alleges several assignments of error including an allegation that the prosecution presented insufficient evidence of Defendant’s specific intent to kill the victim.

For the following reasons, we find that the evidence presented at trial was insufficient for a finding of specific intent to support a verdict of second degree murder. The evidence was also insufficient to convict Defendant of any of the lesser responsive verdicts of manslaughter or negligent homicide. We order the entry of an acquittal.

I.

ISSUES

We must decide whether:
(1) the evidence presented at trial was sufficient to show Defendant’s specific intent to kill the victim, a requirement for a conviction of second degree murder;
(2) if the evidence presented was insufficient to support a conviction of second degree murder, the evidence 1 ¡.supports a responsive verdict of a lesser included crime.

II.

FACTS AND PROCEDURAL HISTORY

On April 20, 2009, emergency center operators received a 911 call from a woman who identified herself as Mary Trahan. The caller cried for help and reported that her boyfriend had been shot. The State admitted the full recording of the call into evidence. In pertinent part, the call was as follows:

Operator: The person who shot him are they still there?
Caller: Yes, please. It’s me. Hurry, please.

Ross Sonnier, a patrol officer with Lafayette City Police Department, arrived first on the scene in response to the 911 call. When he arrived at 119½ Carlin Street in Lafayette, he encountered “Ms. Trahan, a female, waving her arms frantically outside of her house, saying her boyfriend’s shot at her house ... I asked her, where was her boyfriend, where was the gun? And she said both are still in the house.”

Officer Sonnier testified that he and three other officers entered the house and found the victim lying on the bathroom floor. He testified that they also located a gun on the bed in the bedroom. He testified that he arrived at the residence within three minutes from the time of the 911 call. He stated that he did not see any towels placed around the victim’s body or any evidence that aid had been administered to the victim. On cross-examination, however, Officer Sonnier admitted that he had no knowledge of whether anyone had attempted to render aid to the victim prior to his arrival at the scene.

Dwayne Angelle, a detective with the Lafayette' Parish Sheriffs Office, also responded to the 911 call. He stated that he found no forced entry into the house. IsDetective Angelle testified that he noticed half-cooked hamburgers in a frying pan in the kitchen, and a vehicle outside the house looked as if it were under repair. Detective Angelle further testified that he saw blood on the floor around the victim. The detective noted the stippling seen on the victim’s lower back and shoulder area. He explained that a “stippling pattern” referred to the burn marks made from gun powder that is ejected from a gun barrel when the powder contacts the skin. Detective Angelle described the gun located on the bed as a Ruger Security Six .857 Magnum.

The detective then examined the gun retrieved from Defendant’s house, and the State admitted the gun into evidence. Detective Angelle noted that the gun was in working order and that if the gun were cocked, it would not take much pressure on the trigger for it to discharge. He further indicated that a finger would have to be inside the trigger guard before the gun could be fired. He testified that he was unable to retrieve any fingerprints from the weapon.

Dr. Joel Carney testified that he worked for the Louisiana Forensic Center and contracted with the Lafayette Parish Coroner’s Office. He served as the deputy assistant coroner and performed the autopsy on the victim’s body. He described the gunshot wound as entering the victim’s right, lower back shoulder and exiting from the upper chest area. He stated the bullet passed through the lower right lung, through the heart, and through the upper left lung. He explained that the stippling pattern on the victim’s back indicated that the gun was fired at a distance ranging between a few inches up to four feet away from the victim. Dr. Carney also testified that the toxicology analysis showed that the victim had amphetamine, 14methamphetamine, and MDMA in his urine at the time of death. Dr. Carney was unable to state, however, how long before the victim’s death the drugs were ingested.

On cross-examination, Dr. Carney testified that he did not possess any knowledge as to what caused the gun to discharge or whether or not the shooting was accidental.

Finally, Dwayne Prejean, a lieutenant with the Lafayette City Police Department, testified as a blood spatter expert. He noted there was a bullet hole in the wall at approximately three feet, eleven inches high. In his opinion, from the blood spatter pattern, the victim was probably standing over the bathroom sink when he was shot.

On cross-examination, Lieutenant Preje-an admitted that he had no knowledge as to whether or not the gun accidentally discharged. He only knew that a bullet struck the victim.

Lieutenant Prejean’s testimony concluded the evidence offered by the State at trial. The defense rested its case without presenting evidence. After deliberation, the jury returned a verdict of guilty of the offense of second degree murder. From this verdict, Defendant appeals.

III.

LAW AND DISCUSSION

Sufficiency of the Evidence

Defendant contends the evidence was insufficient to support a verdict of guilty of second degree murder, and that accordingly, the verdict is contrary to the law and evidence.

| sWhen the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

Second degree murder is defined as “the killing of a human being; (1) When the offender has a specific intent to kill or to inflict great bodily harm[.]” La.R.S. 14:30.1. Defendant contends that her second degree murder conviction is not supported by the weight of the evidence and that, at best, she may be guilty of negligent homicide. Defendant argues that the record does not show that she possessed any specific intent to kill the victim.

“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). Specific criminal intent may be inferred from the circumstances present in the case and the actions of Defendant. State v. Carroll, 95-859 (La.App. 3 Cir. 1/31/96), 670 So.2d 286.

In this case, two circumstances exist from which the jury could have inferred specific intent: that the victim was shot at close range and that the victim and Defendant were involved in an altercation the day of the shooting. This court has stated that the act of aiming a firearm directly at a victim is indicative of intent to kill the victim. State v. Clark, 93-1470 (La.App. 3 Cir. 10/5/94), 643 So.2d 463, writ denied, 94-2715 (La.2/9/95), 649 So.2d 418. Moreover, specific intent may be inferred when a wound is inflicted at close range. State v. Bell, 471 So.2d 277 (La.App. 4 Cir.1985) (citations omitted).

1A shooting at close range, however, does not prove specific intent. This court articulated the following in State v. Reed, 00-1537, pp. 7-8 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, 1266, writ denied, 02-1313 (La.4/25/03), 842 So.2d 391:

[Although the jurisprudence supports the proposition that specific intent can be inferred from the fact that the victim was shot at close range, that jurisprudence relies on the support of other circumstances indicating specific intent. “The jury should not be permitted to believe that just because someone is killed, the law regards it as a reasonable inference that someone intended to harm him.” State v. Davis, 411 So.2d 2, 6 (La.1982).

Here, though the victim was shot at close range, the “other circumstances” needed to support a finding of specific intent are noticeably lacking. Indeed, no evidence indicates that Defendant possessed a motive for the shooting. Motive is not an essential element of murder, but “a lack of motive may properly be considered as a circumstance mitigating against specific intent.” State v. Mart, 352 So.2d 678, 681 (La.1977). The State attempted to show motive by repeatedly stating that Defendant and the victim argued the day of the shooting and that Defendant was mad at the victim. The prosecutor’s statements to the jury were merely words. Not one piece of evidence was introduced to prove an argument or that Defendant was angry at the victim.

The State presented no evidence to the jury that could have allowed them to find that Defendant exhibited the requisite specific intent to kill the victim. Though the State presented evidence showing that the victim was shot in the back at close range, it presented no evidence demonstrating that Defendant aimed the gun at [7the victim, how the gun discharged, or, as previously discussed, that any acrimony existed between Defendant and the victim. Thus, we can only conclude that the jury arrived at its verdict because of statements made by the prosecutor and defense counsel in their opening statements and in the prosecutor’s closing arguments.

The Louisiana Supreme Court has held that “much credit should be accorded to the good sense and fairmindedness of jurors who have seen the evidence and heard the argument, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence.” State v. Mitchell, 94-2078, p. 11 (La.5/21/96), 674 So.2d 250, 258, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996). The closing statement is restricted to “evidence admitted, to the lack of evidence, to conclusion of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” La.Code Crim.P. art. 774. See State v. Hall, 03-906 (La.App. 5 Cir. 5/26/04), 875 So.2d 996, writ denied, 04-1875 (La.12/10/04), 888 So.2d 834.

While neither the prosecution nor the defense later presented evidence regarding the relationship between Defendant and the victim, in his opening statement, the prosecutor stated that the couple had a bad relationship, she was mad at him, “at some point later that afternoon, they weren’t getting along,” and that “there was some kind of disturbance going on between the two of them,” and therefore, she shot him in cold blood. Defense counsel then in his opening statement discussed the victim’s abusive behavior toward Defendant and how the shooting was accidental.

Again, none of this alleged acrimony between the couple was admitted into evidence in any form.

In his closing statement, the prosecutor admitted no evidence existed that the couple was “squabbling.” Although, the prosecutor continued, “she was mad at him.” Thus, the State reminded the jury of defense counsel’s contention that the couple was involved in an abusive relationship and were fighting on the day of the | ^shooting. In his closing argument, defense counsel made no mention of any trouble between the couple, only that the State presented no evidence proving specific intent to kill the victim or disproving that the shooting was accidental.

In State v. Frost, 97-1771, pp. 18-19 (La.12/1/98), 727 So.2d 417, 432-33, cert. denied, 528 U.S. 831, 120 S.Ct. 87, 145 L.Ed.2d 74, superceded by statute on other grounds, the supreme court stated:

This Court has recognized as a matter of well-settled law that the prosecutor has the right to “press upon the jury any view of the case arising out of the evidence — the Supreme Court is bound to credit jurors with common intelligence, conscientiousness, and sense of duty.” State v. Alexander, 215 La. 245, 40 So.2d 232, 234 (La.1949). Even when we have found the prosecutor to have exceeded the proper bounds of argument, this Court has often criticized the improper arguments without finding that they constituted reversible error. See, e.g. Byrne, supra; State v. Jarman, 445 So.2d 1184 (La.1984); State v. Messer, 408 So.2d 1354 (La.1982). The standard by which this Court determines whether improper closing argument constitutes reversible error is whether it is “firmly convinced that the jury was influenced by the remarks and that they contributed to the verdict.” State v. Sanders, 93-0001 p. 16-17 (La.11/30/94), 648 So.2d 1272, 1285-86, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996); [State v.] Byrne, 483 So.2d [564] at 572 [(La.1986)]; Messer, 408 So.2d at 1357.

The fact finder is given much discretion in determining credibility and evidence, and the reviewing court will only impinge on his discretion to the extent necessary to guarantee the fundamental protection of due process of law. State v. Mussall, 523 So.2d 1305 (La.1988). Because we find that the testimony of the four witnesses for the prosecution was clearly insufficient to establish specific intent, we are firmly convinced that the only explanation for the jury’s verdict of second degree murder was the information supplied to them in the opening and closing statements. Those statements are not subject to a sufficiency review under the Jackson standard because the statements do not constitute evidence. Thus, because the evidence in the |flrecord was insufficient to support a verdict of second degree murder, we find that reversal of the jury’s verdict is necessary to guarantee protection of due process to Defendant.

Consideration of Lesser

Included Offenses

Louisiana Code of Criminal Procedure Article 821(E) provides that if an appellate court finds the evidence, viewed in the light most favorable to the State, supports only a conviction of a lesser-included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser-included responsive offense. Manslaughter and negligent homicide are responsive verdicts to second degree murder. La. Code Crim.P. art. 814(A)(3). We discuss both lesser-included responsive offenses in turn.

(1) Manslaughter

“Manslaughter is a homicide that would be first or second degree murder, and thus requires the specific intent to kill, but for ‘sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.’ ” State v. Laird, 09-831, p. 11 (La.App. 3 Cir. 2/10/10), 30 So.3d 1167, 1174, writ denied, 10-1018 (La.11/24/10), 50 So.3d 826 (quoting La.R.S. 14:31).

We have already determined that the evidence did not support a finding that Defendant possessed specific intent to kill; thus, the requirements needed to support a verdict of manslaughter are not met.

(2) Negligent Homicide

Louisiana Revised Statutes 14:32(A)(1) provides that negligent homicide is: “The killing of a human being by criminal negligence.” “Criminal negligence 1 lftexists when, although neither specific nor general criminal intent is present, there is such a disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” La.R.S. 14:12. “To convict a person of negligent homicide, the State must prove beyond a reasonable doubt that the defendant was criminally negligent and that a killing resulted from this misconduct.” State v. Materre, 09-1666, p. 11 (La.App. 4 Cir. 12/8/10), 53 So.3d 615, 623 (citations omitted). The supreme court stated in State v. Desoto, 07-1804, pp. 8-9 (La.3/17/09), 6 So.3d 141, 147:

Jurisprudence shows that the common element in negligent homicide cases involving firearms is a finding that a defendant acted in an unreasonably dangerous or unsafe manner at the time of. the discharge of his weapon. Evidence of negligent homicide was found to be sufficient in State v. McFerson, 583 So.2d 516 (La.App. 3rd Cir.) writ denied, 588 So.2d 113 (La.1991), where it was determined that the defendant acted below the standard of care expected to be maintained by reasonably careful persons under similar circumstances when he brought a loaded gun into a bar, pulled the gun out of his pants pocket, and the gun discharged killing an innocent victim.
Similarly, in State v. Barberousse, 458 So.2d 569, (La.App. 3rd Cir.1984) aff'd, 480 So.2d 273 (La.1985), a defendant was found criminally negligent when he fatally shot his sister when he pulled out a loaded .38 caliber revolver, cocked it and pointed it at another person, supposedly to frighten that person. The gun discharged, with the bullet striking defendant’s sister in the chest and fatally wounding her. The courts have also found evidence sufficient in a case wherein the shooter was purportedly under duress when he fired his weapon. In State v. Parker, 431 So.2d 114 (La.App. 1st Cir.), writ denied, 435 So.2d 433 (La.1983), the defendant was found guilty of negligent homicide even though the evidence indicated that he may have been harassed and fearful at the time of the shooting. Evidence indicated that the defendant shot through his door without first determining who was outside and while knowing that other members of his residence were not in the home, but expected to return to the residence.

|nIn Desoto, the supreme court evaluated the case of a hunter who shot and killed his hunting partner, allegedly mistaking him for a deer. The court considered whether the defendant acted in an unreasonably dangerous or unsafe manner at the time of the discharge of his weapon. In reversing this court’s judgment of acquittal, the supreme court held that the state had proven its burden of showing that the defendant acted below the standard of care expected to be maintained by a reasonably careful man under like circumstances. Reviewing the evidence, the court noted that the jury that originally convicted the defendant made credibility determinations about the defendant after viewing his conflicting statements to authorities. Moreover, the court observed that the jury was also presented with other evidence, including photographs of the layout of the hunting grounds where the victim was killed as well as photographs depicting the scene as viewed from the position of the defendant and the victim. The jury also heard evidence that the defendant was familiar with the proper handling of guns. Specifically, the defendant possessed a current, valid hunting license and had completed training classes to obtain a Louisiana hunting license and safety certificate. It was uncontested that the defendant purposely pulled the trigger of a high powered hunting rifle, killing his friend. In light of all the evidence, the court found that “[tjhere is no escaping the fact that to pull the trigger of a high-powered hunting rifle, capable of accurately hitting a target a football field away, without being sure of his target, was reckless disregard for the safety of others and created an unreasonable risk of harm to others.” Desoto, 6 So.3d at 150.

The facts of Desoto are clearly distinguishable from the present case. Here, the State presented no evidence of how the shooting occurred, and its own witnesses could not rule out the possibility that the shooting was accidental. Moreover, no evidence was introduced as to the manner in which Defendant handled the .357 Magnum found at the scene or whether she had ever previously handled a 11ggun. Thus, unlike in Desoto, we find that the State did not meet its burden of proving that Defendant acted below the standard of care expected to be maintained by a reasonably careful person under like circumstances.

In Materre, the fourth circuit recently articulated the court’s role in reviewing cases where circumstantial evidence formed the basis for conviction. The court stated:

When circumstantial evidence forms the basis for the conviction, such evidence must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia, supra. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012.

Materre, 53 So.3d at 623.

The circumstantial evidence in this case included the 911 call where Defendant stated, ‘Yes, please. It’s me. Hurry, please” when asked by the dispatcher if the shooter was still at the scene. A Rug-er Security Six .357 Magnum was found at the scene, though the prosecution presented no evidence linking the gun to Defendant. The only evidence linking the gun to the crime was Detective Angelle’s response of ‘Yes, sir. It is.” when asked by the prosecutor if the Magnum was the gun involved in the shooting. Detective An-gelle testified that the gun was in working order and that if the gun were cocked, it would not take much pressure on the trigger for it to discharge.

The evidence suggested that the victim was shot at close range, and Lieutenant Dwayne Prejean, a blood spatter expert, opined that the victim was probably standing over the bathroom sink when he was shot. Dr. Carney testified that 113the bullet entered the victim’s right, lower back shoulder, exiting from the upper chest area.

During his cross-examination of two of the State’s witnesses, Dr. Carney and Lieutenant Prejean, defense counsel raised the reasonable hypothesis that Defendant accidentally shot the victim. The State introduced no evidence to rebut that hypothesis. Indeed, Dr. Carney testified that he had no knowledge of how the gun discharged or whether the shooting was accidental. It, therefore, could have been accidental. Similarly, Lieutenant Prejean testified that he had no knowledge of whether the gun accidentally discharged or not. Lieutenant Prejean testified that he only knew that the bullet struck the victim.

We find that, when evaluating the evidence in the light most favorable to the prosecution, the possibility that the shooting was accidental is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

Thus, the State did not meet its burden to convict Defendant of the offense of negligent homicide.

IV.

CONCLUSION

Accordingly, for the reasons stated above, Defendant’s conviction and sentence are vacated. The trial court shall order that an acquittal be entered.

REVERSED. ENTRY OF ACQUITTAL ORDERED.

GREMILLION, J., dissents and assigns written reasons.

GREMILLION, Judge,

dissents and assigns written reasons.

|, Louisiana Code of Criminal Procedure Article 821(E) provides that the appellate court can render a judgment of a lesser included responsive offense:

If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.
Pursuant to La.R.S. 14:12:
Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

The majority properly concludes that there is no evidence of motive or prior arguing (i.e. no evidence of specific intent) between Defendant and the victim. That precludes a verdict of second degree murder, but not one of negligent homicide. There was no dispute at trial that Defendant pulled the trigger. In fact, defense counsel in his opening statement described how Defendant came into possession of the gun and that it discharged while in her possession. In closing, defense counsel repeatedly referred to Defendant’s shooting the victim as an “accident.”

Although it is well-settled that opening statements and closing arguments are not evidence, the record shows that the only issue presented to the jury was whether Defendant intentionally or accidentally shot the victim. While this posture |2explains the State’s lackluster presentation of evidence, it does not excuse it. Nevertheless, considering the evidence that the State did put forth, it proved beyond a reasonable doubt that Defendant was guilty of negligent homicide.

Although not in dispute at the trial level, Defendant now argues that the State failed in identifying her as the person who shot the victim. Admittedly, the State did not put on much evidence of how the shooting occurred. However, Defendant indicated in the 911 call that “It’s me” in response to the 911 operator’s question of whether the shooter was still at the scene. In addition, the gun was found on the bed near where the victim lay dead, corroborating her admission that she was the shooter. Accordingly, there is no doubt that Defendant shot the victim.

The only remaining issue is whether the State proved that Defendant was criminally negligent. The police found the victim shot from behind at close range. Pointing a loaded gun at the victim — even if the gun was accidentally discharged — exhibits a gross deviation below the standard of care expected from a reasonably careful person. Accordingly, I would find that the evidence is sufficient to convict of her the responsive verdict of negligent homicide.

      . Defendant also presents the following assignments of error: (1) the trial court erred in allowing the prejudicial misstatement of the prosecutor during his opening statement and in failing to allow the jury to review the 911 tape during deliberations; (2) the trial court erred in allowing a slide photo of the words "Second Degree Murder” during the voir dire examination; (3) there was insufficient evidence presented to identify Defendant as the perpetrator; and, (4) there was insufficient evidence presented to establish that the .357 Magnum found on the scene belonged to the victim or caused the death of the victim. Because we find that there was insufficient evidence to convict Ms. Trahan of second degree murder or any of the lesser included offenses, her other assignments of error are rendered moot because our holding bars retrial on the same charge. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

      . The United States Food and Drug Administration defines the illicit street drug MDMA (4-methyl-2, dimethoxyamphetamine) as "a methamphetamine analogue, also known as ecstasy, XTC, and X.” See www.FDA.gov.

      . Compare with other cases where the State presented evidence showing that prior hostile circumstances between the defendant and the victim existed. See State v. Shannon, 531 So.2d 1113 (La.App. 4 Cir.1988) (a witness saw the defendant shoot the victim in the foot before he shot her in the back), State v. Noble, 425 So.2d 734 (La.1983) (witnesses testified as to the defendant's erratic behavior toward the victim prior to the shooting), and State v. Beck, 445 So.2d 470 (La.App. 2 Cir.), writ denied., 446 So.2d 315 (La.1984) (the defendant testified to her own anger as she slammed an aluminum framed window down on her baby's head).


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joseph HAYES.
    No. 2010-KA-1540.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 6, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

hOn September 23, 2009, the defendant, Joseph Hayes, was charged by bill of information with attempted second degree murder in violation of La. R.S. 14:(27)30.1. The defendant pled not guilty at his arraignment. On October 8, 2009, the defendant filed motions for discovery, for a preliminary hearing and to suppress evidence, identification and statement. A preliminary and suppression hearing was begun on March 19, 2010 and continued until April 19, 2010, at which time the trial court found probable cause and denied the motions to suppress. After a jury trial on June 21, 2010, the defendant was found guilty of aggravated battery. The trial court sentenced the defendant to serve ten years at hard labor with credit for time served. On the same date, the defendant filed motions for new trial and to reconsider sentence. The trial court denied both motions.

STATEMENT OF FACT

On August 15, 2009, New Orleans Police Officers Bret Mathes and Justin Ferris investigated an incident at the Easy Food Store at 8601 Hickory Street. When the officers arrived on the scene, they observed the store owner, Hamdi Zayed, lying on the floor of the store bleeding from the head, leg and arm. The store was in disarray, and there was blood all over the floor. The officers spoke |2with Zayed briefly, who was transported to University Hospital by emergency medical personnel. The officers also spoke with Zayed’s son, Omar, who was a witness to the incident. The officers later went to the hospital to interview Zayed. The officers found a right foot tennis shoe, a metal pipe and a gray colored tee shirt on the scene. These items were found immediately outside the store’s entrance. The officers were not able to locate or informed of any other witnesses.

New Orleans Police Officer Jacob Lundy testified that he arrested the defendant in the 8600 block of Hickory Street. He located the defendant based upon the perpetrator’s description and a call for service. When the officer located the defendant, the defendant had a minor laceration to the arm, which was red but not bleeding. The officer advised the defendant that he wanted to speak with him about an earlier crime. The defendant was initially cooperative. The officer advised the defendant of his Miranda rights. The defendant began making statements about the case. He stated that he was defending himself. According to the defendant, he was verbally accosted by the victim when the defendant entered the store. The victim allegedly cursed the defendant and told him to leave the store. Officer Lundy transported the defendant to the Second District Station. When they arrived at the station, the defendant became verbally aggressive and violent.

When Detective Randi Gant arrived at the scene of the crime, the victim had already been transported to the hospital. She observed blood and a sneaker on the scene, and she waited for the crime lab technicians to arrive. After she supervised the crime lab technicians, she relocated to the Second District, where she met with the defendant. Detective Gant presented the defendant with a rights of arrestee form and advised him of his rights. The defendant stated that he understood his |,frights and signed the form. He indicated that he was willing to give a statement but did not want to be recorded. The defendant told the officer that when he entered the store, the victim, for no reason, began yelling at him and using racial slurs. The victim told him to get out the store, picked up a pipe and began hitting him. The defendant stated that he then left the store. The defendant told the officer that he did not hit the victim and had no physical contact with the victim. Detective Gant testified that the defendant was calm at the beginning of the interview but subsequently became defensive. The defendant was then taken to Central Lockup by other police officers.

Detective Brian Baye testified that he conducted photographic lineup with Mr. Zayed while Zayed was in East Jefferson Hospital. The officer stated that Mr. Zayed identified the defendant in the photographic lineup.

Dr. William Johnson, Jr., a neurosurgeon, testified that he treated Mr. Zayed in the emergency room of East Jefferson Hospital on August 21, 2009. Dr. Johnson stated that Zayed was generally stable but had obvious signs of injury to his head. Zayed was paralyzed on the left side of his body. A catscan was performed and showed that Zayed had a depressed skull fracture which caused a hemorrhage condition, i.e. a bruise in the brain. Dr. Johnson stated that this was a significant injury which could have been fatal if it had caused bleeding or swelling in the brain. Mr. Zayed’s injuries were consistent with a blow to the head.

Omar Zayed, the victim’s teenage son, was in the store when the incident occurred. He identified the defendant as the person who struck his father. Omar testified that after the defendant entered the store, the defendant and his father had an argument, and the defendant struck his father with a metal pipe. Omar stated that the defendant had the pipe in his hand when he came into the store. The | ¿defendant cursed at the victim, hitting him in the head and arms. Omar tried to help his father, but the defendant pushed him off. Omar stated that he tried to hit the defendant with a night stick. The defendant took the stick away and hit him with it. The defendant then pushed Omar’s father to the ground and continued to hit him. At this point, Omar’s father was on the floor, holding onto one of the defendant’s legs. The defendant dragged Omar’s father outside the store and fled. Omar stated that a woman, who was standing outside on her porch, saw part of the incident and called the police. She then came and helped Omar carry his father into the store. The police subsequently arrived, and his father was taken to the hospital. The defendant left behind a blue sneaker, which Omar identified at trial. Omar testified that his father never struck the defendant. Omar also stated that there was no one else in the store at the time of the incident.

Hamdi Zayed testified that he was working in his store, Easy Food Store, on August 15, 2009, when the defendant entered the store. Zayed asked the defendant to leave. Zayed stated that he had previously told the defendant and his brother that they were not allowed in the store. The defendant walked out of the store and returned with a metal pipe. The defendant hit him with the pipe numerous times, and he fell to the ground. Omar, his son, tried to help him, but the defendant pushed his son away and continued striking him with the pipe. The defendant dragged him out of the store and continued to hit him. A woman came out of her house and yelled at the defendant. The defendant then ran off. At one point, the defendant told Zayed, “I am going to kill you.” The police subsequently arrived, and Zayed was taken to the hospital. Zayed recalled Detective Baye coming to the hospital and presenting him with a photographic lineup. Zayed identified the defendant in the photographic lineup. Zayed stated that at no time did he attempt |5to hit the defendant. Zayed also testified that Curtis Mathews was not in the store at the time of the incident. Mathews is another customer who was no longer allowed in the store because Zayed caught him stealing several times.

Curtis Mathews testified on behalf of the defendant. He stated that he was in the store at the time of incident. Matthews testified that he had been hired by Zayed to load ice into the icemaker. He first saw the defendant standing outside the front door of the store. The victim was cursing at the defendant. At some point the victim got a pipe and started hitting the defendant. The defendant put his hand up to protect himself. During the struggle, the defendant got the pipe and hit the victim once or twice. The victim then fell. The defendant backed off. At that point, Mathews left the store. The last thing he observed was the victim holding defendant’s leg as the defendant walked out the store. Mathews admitted that he had been asked to leave the store on prior occasions because of a prior incident.

ERRORS PATENT AND ASSIGNMENT OF ERROR NUMBER 3

A review of the record for errors patent reveals only one. The trial court sentenced the defendant prior to ruling on the motion for new trial filed the morning of the sentencing hearing. On July 27, 2010, the trial court sentenced the defendant to serve ten years at hard labor with credit for time served. On the same date, the defendant filed motions for new trial and to reconsider sentence. The trial court denied both motions after sentencing the defendant.

La.C.Cr.P. article 873 states that if a motion for new trial or motion in arrest of judgment is filed, sentence shall not be imposed until at least twenty-four hours after the motion is denied, unless the defendant expressly waives the delay or pleads guilty. The defendant herein did not waive the delay. Failure of the trial court to observe the mandatory twenty-four hour delay after denial of a motion for [(¡new trial, where such delay is not waived, requires the sentence to be vacated and the case remanded for resentencing. State v. Augustine, 555 So.2d 1331, 1333 (La.1990), superseded, in part, by statute as stated in State v. Martin, 93-1915, pp. 2-3 (La.App. 4 Cir. 9/29/94), 643 So.2d 830, 832; State v. Melancon, 2001-1656, p. 3 (La.App. 4 Cir. 8/21/02), 826 So.2d 633, 636; State v. Powell, 2000-0484, p. 3 (La.App. 4 Cir. 1/24/01), 779 So.2d 67, 70. Because the defendant did not waive his right to the delay, the defendant’s sentence must be vacated and the matter remanded for resentencing.

DISCUSSION

ASSIGNMENTS OF ERROR NUMBER 1AND2

In these assignments of error, the defendant contends that the trial court erred in allowing Dr. William Johnson to testify concerning his treatment of Mr. Zayed when no reference to the treatment had been included in the discovery responses provided to the defense, denying Mr. Hayes his right to effective cross examination. The defendant also argues that the prosecution failed to comply with the defense request for discovery and misled Mr. Hayes with regard to the strength of the state’s case to his detriment.

La.C.Cr.P. article 718 provides:
Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within, the possession, custody, or control of the state, and which:
(1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
(2) are intended for use by the state as evidence at the trial, or
(3) were obtained from or belong to the defendant.
The court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in camera inspection.
|7La.C.Cr.P. article 719 states that:
A. Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of a physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. Exculpatory evidence shall be produced under this Article even though it is not intended for use at trial.
B. In addition, upon motion of the defendant, whenever the court orders the defendant to provide urine, blood, saliva, or hair samples or samples of other bodily substances for deoxyribonu-cleic acid testing in a criminal case, the defendant shall be authorized to acquire one-half of the deoxyribonucleic acid sample to be tested separately by the defendant at his expense.

The State has a continuing duty to disclose under La.C.Cr.P. article 729.3, which states:

If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

However, the State has no duty to produce records that are not in its possession or control. State v. Brown, 620 So.2d 508 (La.App. 4 Cir.1993); State v. Simmons, 03-20 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249.

In the case at bar, the State did not have possession or control over the victim’s medical records from East Jefferson Hospital. The plaintiff initially received treatment from' University Hospital and went to East Jefferson’s emergency room two days later. The record indicates that the State filed a subpoena duces tecum to obtain the victim’s medical records from University Hospital. There is nothing in the record to indicate that the State obtained the |svictim’s medical records from East Jefferson Hospital. Thus, the trial court did not err in concluding that the State did not violate its duties under the discovery articles and permitting Dr. Johnson to testify.

ASSIGNMENT OF ERROR NUMBER 4

In this assignment, the defendant suggests that the sentence imposed was excessive and inadequately reasoned. Because the defendant’s sentence must be vacated due to the failure of the trial court to rule on the motion for new trial prior to sentencing, this Court will defer any review of excessive sentencing until a valid sentence has been rendered by the trial court. CONCLUSION

For the reasons discussed, the defendant’s conviction is affirmed. However,' the defendant’s sentence is vacated and the matter is remanded for resentencing.

AFFIRMED AND REMANDED


author: JAMES F. McKAY III, Judge.

text:
    The ESTATE OF A.E. PITTMAN and Gloria B. Pittman, Succession Representative v. Sandra J. PITTMAN.
    No. 2010-CA-1761.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 6, 2011.

      Michael R.C. Riess, Christy R. Berger-on, Kingsmill Riess, L.L.C., New Orleans, Louisiana, for Plaintiffs/Appellees.
    Zara Zeringue, Magee & Associates, Attorneys, Covington, Louisiana, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

Lin this action on a promissory note, the defendant, Sandra J. Pittman, appeals the trial court’s granting of summary judgment in favor of the plaintiffs, the estate of A.E. Pittman and Gloria B. Pittman, succession representative. We affirm.

FACTS AND PROCEDURAL HISTORY

During his lifetime, A.E. Pittman made two loans to his daughter, Sandra Pittman. These loans totaled $193,160.23. Sometime after making the loans to his daughter, Mr. Pittman died.

On April 30, 2003, Sandra Pittman executed a promissory note in the amount of $193,160.23, with interest at the rate of five percent (5%) per annum, payable on demand to the estate of A.E. Pittman and Gloria Pittman (the estate). This promissory note provided for an award of attorney’s fees in the amount of ten percent (10%) of the principal amount of the promissory note.

The estate made demand for payment on the promissory note on April 28, 2008. Sandra Pittman refused to pay the amount owed under the promissory note. The estate then filed a petition on promissory note in Civil District Court on |2August 28, 2008. Said petition was supplemented and amended on October 30, 2008.

On December 9, 2008, Sandra Pittman filed a dilatory exception of lack of procedural capacity and peremptory exceptions of no right of action and no cause of action. On January 9, 2009, the trial court sustained the exception of lack of procedural capacity but overruled the exceptions of no right of action and no cause of action. Thereafter, the estate again supplemented and amended its petition, this time, to clarify Gloria Pittman’s status as plaintiff in the litigation as “Gloria B. Pittman, individually and as Trustee of the Albert E. Pittman Trust.”

On March 2, 2009, Sandra Pittman filed an exception of prescription, which the trial court denied on July 2, 2009. The estate filed a motion for summary judgment on September 15, 2009. The motion was heard on June 25, 2010, at which time the trial court rendered judgment in open court and granted the motion. The judgment was signed on July 16, 2010. It is from this judgment that Sandra Pittman now appeals.

DISCUSSION

On appeal, the defendant raises the following assignments of error: 1) rendering summary judgment when there is substantial, contradictory testimony and evidence on issues of fact material to the cause of action which preclude summary judgment under La. C.C.P. art. 966; 2) by accepting parole evidence offered by plaintiffs to prove consideration on promissory note, but holding that parole evidence is inadmissible to prove affirmative defenses on action for ^promissory note, including want of consideration, fraud, mistake and error where such evidence is admissible as a matter of law. La. C.C. 1848; and 8) by summarily dismissing defendant’s affirmative defenses where defendant offered evidence sufficient to show that she can carry her burden of proof at trial on the merits. La. R.S. 10:3-305.

Appellate courts review summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/2000), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to 1 ¿establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art 967. See also Longo v. Bell South Telecommunications, Inc., 2003-1887, pp. 4-5 (La.App. 4 Cir. 10/7/04), 885 So.2d 1270, 1273-74.

In the instant case, in its reasons for judgment, the trial court states that it granted summary judgment for the following reasons. The defendant admitted that she executed the note. The note is a demand note and it complies with all of the prerequisites of La. R.S. 10:3-104, i.e., it was signed by the maker; it contained a promise to pay a certain sum; it was payable on demand; and it was payable to order or to bearer. The defendant also acknowledged the debt on at least two occasions. She was co-executrix of her father’s estate and when she approved the sworn detailed descriptive list she acknowledged the indebtedness. She also acknowledged the indebtedness in an act of sale.

Once the maker of a promissory note admits signing the note and the note is produced, the holder of the note is entitled to recover in the absence of any further evidence. See American Bank v. Saxena, 553 So.2d 836, 842 (La.1989). Despite her contention to the contrary, Sandra Pittman has not brought forth any evidence to defeat summary judgment.

|sThe defendant’s second assignment of error, that the trial court accepted parole evidence from the plaintiffs but refused to accept parole evidence from the defendant, is without merit. The trial court did not accept parole evidence from the plaintiffs. Louisiana Civil Code Article 1848 does not allow testimonial or other evidence not admitted to disprove a writing. That article states:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

La. C.C. 1848.

Based on the facts of this case, it cannot be found that any of the exceptions listed in Article 1848 apply. There was no vice of consent, a simulation, or a subsequent valid oral modification of the agreement.

While the defendant has pleaded numerous affirmative defenses, the facts of this case indicate that they are either invalid or inapplicable. Accordingly, we find no error in the trial court’s dismissing them.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s granting of summary judgment in favor of the plaintiffs.

AFFIRMED


author: KEATY, Judge.

text:
    Golden BROUSSARD v. OAK TRACE APARTMENTS, et al.
    No. 11-125.
    Court of Appeal of Louisiana, Third Circuit.
    July 13, 2011.

      J. Brent Barry, Edward J. Milligan, Jr., Attorneys at Law, Lafayette, LA, for Defendants/Appellants, Keo Hadsdy, Lee Gautreaux, Ko Ounsamone, Oak Trace Apartments.
    Aaron J. Allen, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Golden Broussard.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

_JjThis litigation arises out of an incident in which plaintiff tripped and fell on a stairwell in her apartment complex, breaking her ankle in two places. Plaintiff sued for damages, naming the apartment complex, the two property owners, and the maintenance manager as joint defendants. The trial court, sitting without a jury, found in favor of plaintiff. This is an appeal by the defendants from the judgment against them. We are called upon to determine whether the trial court committed manifest error in finding that there was a causal relationship between the condition of the stairway and plaintiffs injury and whether the trial court was manifestly erroneous in awarding damages absent a factual basis in the record.

FACTS

Plaintiff, Golden Broussard (Broussard), tripped and fell on a staircase in Oak Trace Apartment Complex at approximately 5:30 a.m. on March 22, 2008, as she was leaving her home to go to work. Brous-sard recalled that her ankle hurt badly immediately after falling. At work, she called a relative to take her to the E.R., where it was determined that she had broken her ankle in two places. She was on crutches, missed work, and ultimately had to have surgery on her ankle a week later. Broussard was unable to work for approximately two and a half months.

When she returned home from the hospital on March 22, she called Lee Gau-treaux, property manager for the apartment complex, and told him about her injury, stating that she wanted to file a claim with their insurance. Subsequently, she wrote a description of the accident for Gautreaux.

In July 2008, Broussard was in a car accident that aggravated her ankle injury and caused her to experience new pain for about two months. She went to the doctor and also missed work as a result of that accident.

1 gBecause of the March 22 accident and subsequent surgery, Broussard was no longer able to perform her job duties as supervisor of housekeeping and had to take a desk job as a night auditor instead. She can no longer walk on the treadmill three times a week, she experiences chronic pain, and she is scared, on a daily basis, of falling again.

PROCEDURAL HISTORY

Broussard filed suit against five defendants: Oak Trace Apartments; the owners of the building she lived in, Keo J. Hadsdy and Ko Ounsamone; and the property manager and his wife, Lee and Lisa Gau-treaux. Broussard sought damages as a result of her March 22 accident and subsequent surgery.

A bench trial was held on September 27 and 28, 2010. At the close of the trial, the trial court took the matter under advisement, pending post-trial briefs by counsel. On December 6, 2010, the trial court issued a judgment finding in favor of plaintiff and against defendants, in solido, in the amount of $77,109.51, representing $18,774.35 in medical expenses, $8,335.16 in lost wages, and $50,000.00 in general damages.

In its reasons for ruling, the trial court found that Broussard was credible. It further found that she was a tenant of Oak Trace Apartments, that more probably than not, the landing and lack of lighting in the area were the cause of the accident, and that these conditions existed for a significant period of time before the accident. The trial court found that the condition of the landing and the lack of lighting were unreasonably dangerous, that defendants knew or should have known of the Ldangerous conditions, and that defendants were liable to Broussard for her injuries sustained as a result of the March 22 accident.

Defendants appeal, asserting two assignments of error: that the trial court was manifestly erroneous in finding a causal relationship between the stairway and the plaintiffs injury, as the record lacks any reasonable factual basis to support that finding, and that the trial court was manifestly erroneous in awarding damages for which there is no factual basis in the record.

DISCUSSION

Causation

Defendants assert that the trial court was manifestly erroneous in finding that the stairway and lack of lighting more probably than not caused plaintiff to trip, fall, and injure herself. They assert that there is no reasonable factual basis to support the trial court’s finding in the record. A “question of cause-in-fact involves a factual determination.” Todd v. State through Dep’t of Soc. Servs., Office of Cmty. Servs., 96-3090, p. 6 (La.9/9/97), 699 So.2d 35, 39. We will not reverse a trial court’s finding of fact absent a clear showing of manifest error. See Rosell v. ESCO, 549 So.2d 840 (La.1989).

The trial court found Broussard to be credible. Additionally, the trial court found “that, more probable than not, the condition of the landing and the lack of lighting in the area were the cause of the accident, and these conditions existed for a significant period of time prior to the accident.”

At trial, Broussard testified that the lights in her building had never worked and that they were not working on the day of the accident. She further testified that it was dark outside that morning and that, although she could see a little, a brick wall at thejjbase of the stairway made it harder to see in that location. Broussard stated that although she did not notice or look for any defect in the property before or immediately after she fell, she did notice two pieces of concrete at the bottom of the step when she returned home from the hospital later that day and thought that those must have been what she tripped on. She testified that this stairway was the only way to get to or from her apartment.

Lee Gautreaux testified that he had done work on Broussard’s staircase in February of 2008. Although he opined that the staircase had no defect at the time Broussard fell, the trial court chose to believe Broussard over Gautreaux. Gau-treaux further testified that he had replaced light bulbs in the buildings before but that he seldom went to the buildings at night, so generally he would only know that a light was out if a resident complained.

After carefully reviewing the record, we find that the trial court did not commit manifest error in finding that the condition of the stairway and the lack of lighting caused Broussard to trip, fall, and break her ankle.

Damages

The trial court awarded a total of $77,109.51 in damages, representing $18,774.35 in medical expenses and $8,335.16 in lost wages, both special damages, and $50,000.00 in general damages. Defendants assert that the damage awards are not supported by the record, making them unreasonable and erroneous. “ ‘Special damages are damages which can be established with reasonable mathematical certainty.’ ” Jimmerson v. Rearden, 98-1120, p. 3 (La.App. 3 Cir. 3/3/99), 736 So.2d 916, 919 (quoting Myers v. Broussard, 96-1634 (La.App. 3 Cir. 5/21/97), 696 So.2d 88). Alternatively, “[gjeneral damages are those that may not be fixed with pecuniary | ^exactitude. Such damages involve mental or physical pain or suffering, inconvenience, the loss of physical enjoyment, or other losses of life or lifestyle that cannot be definitively measured in monetary terms.” Wright v. Wal-Mart Stores, Inc., 31-764, p. 4 (La.App. 2 Cir. 5/5/99), 737 So.2d 153, 156.

“Before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award.” Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081, 1092 (La.1983). “On the other hand, in a suit for damages, it is the plaintiffs burden to prove the damage he suffered as a result of defendant’s fault, and to support an award there must be evidence in the record.” Id.

A. Medical Expenses

Defendants appeal the award of medical expenses granted by the trial court, because “the amount awarded for the medical expenses is unsupported, since the plaintiff failed to prove that the injury was related to any defect on the stairwell at Oak Trace.”

We previously noted that we find no manifest error in the trial court’s finding that the condition of the stairwell caused Broussard to fall on the stairs and injure her ankle. Having found in favor of plaintiff concerning causation, we need not further address the issue of medical expenses, as the defendants’ argument against the grant of medical expenses centered on the supposed lack of causation. In finding that the trial court did not err in finding a causal link between the condition of the stairwell and Broussard’s subsequent fall and injury, we find defendants’ argument without merit.

|fiB. Lost Wages

Under Louisiana jurisprudence, damages for lost wages may be established by any proof which reasonably establishes the claim, including the plaintiffs own reasonable testimony. While claims for past lost wages must be established with some degree of certainty, they need not be proven with mathematical certainty, but only by such proof as reasonably establishes the plaintiffs claim. This award may be supported by the plaintiffs detailed and uncorroborated testimony.

Smith v. Ebey, 04-889, pp. 6-7 (La.App. 3 Cir. 12/29/04), 896 So.2d 143, 148.

In the instant case, plaintiff testified that she earned about $500.00, including overtime, each week before the March 22 accident. She testified that she was out of work until June or July 2008, and the record contains a medical release from her doctor allowing her to return to work on June 9, 2008. Thus, plaintiff was out of work approximately twelve weeks due to the March 22 accident. She also testified that she had to cash in on her vacation and sick leave. Plaintiff further testified that she was out of work for a while after the July 2008 car accident. Her tax returns indicate that she earned about $6,600.00 less in 2008 than she earned in 2007.

Although plaintiff testified that she believed her lost wages were between eight and nine thousand dollars for the March 22 accident, the record does not support that conclusion. Even if the trial court failed to take into consideration her testimony that she missed work for the July 2008 accident, Broussard’s tax returns show a loss of wages for 2008 totaling only $6,600.00. Her self-serving testimony that she earned $500.00 per week, coupled with the medical release slip from her doctor, would support an award of no more than $6,000.00. Nevertheless, the trial court awarded Broussard $8,335.16 in lost wages. We find that this award is not supported by the record and, therefore, was an abuse of its discretion. We reduce this award to |7$6,600.00, representing the highest award that could possibly be supported by the record.

C. General Damages

The trial court awarded Brous-sard $50,000.00 in general damages. Vast discretion is given to the trial court in fixing general damage awards. Dufrene v. Gautreau Family, LLC, 07-467 (La.App. 5 Cir. 2/22/08), 980 So.2d 68, writs denied, 08-629 (La.5/9/08), 980 So.2d 694, and 08-628 (La.5/9/08), 980 So.2d 698. In reviewing the award, appellate courts need to look at the facts and circumstances of the individual case, taking into consideration the particular effects of particular injuries on particular plaintiffs. Sagona v. Harris, 97-129 (La.App. 4 Cir. 6/18/97), 696 So.2d 595, writ denied, 97-1902 (La.10/31/97), 703 So.2d 28.

In the instant case, Broussard tripped and fell, breaking her ankle in two places. She testified that it hurt when she fell and that it still hurt on the day of trial. She testified that she had to have surgery on her ankle, despite not wanting to have surgery; that she had to take prescription pain medicine despite her aversion to taking anything stronger than Tylenol or Advil; that she had to walk on crutches and wear a boot; and that she is no longer able to do things she used to do, such as housekeeper duties or walking on a treadmill. She testified that she is afraid of falling down the stairs again and that she has a scar on her ankle that embarrasses her. Her doctor stated in his deposition that she will likely develop arthritis in the future.

Taking into consideration all of the foregoing, we find that the trial court did not abuse its discretion in awarding Broussard $50,000.00 in general damages, given the necessity of a surgery she did not want to have, evidence of her chronic pain, daily fear of falling, inability to do things she could do before the accident, and the |sstatement by her doctor that she will probably develop arthritis in the future because of the accident.

DECREE

For the foregoing reasons, we affirm the trial court’s finding that a causal link existed between the condition of the staircase and lack of adequate lighting and Brous-sard’s accident, and we affirm it’s award of general damages in the amount of $50,000.00. Because the amount was not supported by the record, we reduce the award for lost wages to $6,600.00. Costs of this appeal are taxed to defendants.

AFFIRMED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.

      . At trial, Lisa Gautreaux was dismissed from the instant suit. The judgment subsequently rendered was against Lee Gautreaux, Keo J. Hadsdy, and Ko Ounsamone only.

      . A review of the evidence submitted shows that this value was $209.60.


author: DREW, J.

text:
    Robert DAVENPORT, Plaintiff-Appellee v. FOSTER FARMS, L.L.C., and Ohio Casualty Insurance Company, Defendant-Appellant.
    No. 46,430-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    July 13, 2011.

      Mayer, Smith & Roberts, L.L.P., Shreveport, LA, by Kim Loraine Purdy-Thomas, J. Kris Jackson, Patrick F. Cole, for Appellant.
    Watson, McMillin & Harrison, LLP, Monroe, LA, by William Michael Street, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   DREW, J.

hln this workers’ compensation proceeding, Foster Farms and Ohio Casualty Insurance Company appeal a judgment ordering them to pay supplemental earnings benefits, medical expenses, a penalty, and attorney fees.

We affirm.

FACTS

Robert Davenport was employed as a floor man at a Pilgrim’s Pride poultry processing plant in Union Parish. Davenport lost his job on May 6, 2009, when the Pilgrim’s Pride plant closed. Shortly thereafter, Foster Farms began operating the plant, and on July 16, 2009, Davenport resumed his employment there as a floor man. His job duties as a floor man included placing ice in tubs that were being filled with chicken parts, stacking the tubs, and moving the tubs onto a pallet in a chiller room.

Davenport contended that shortly after his shift began on the evening of August 5, 2009, he injured his back while lifting heavy, wet pallets. There were no witnesses to the incident.

Davenport stopped his supervisor, Bradley Issac, who was walking through the chiller room, and told him that he felt a sharp pain in his back and needed to go to a doctor. Davenport stated that Issac told him to take some Tylenol and wait for the nurse, who was to arrive at the plant in 30 minutes. Under company policy, any employee injured at work must immediately report it to his supervisor and then to the nurse. Davenport [2also stated that Issac told him that he would be fired if he clocked out without first seeing the nurse.

Davenport and Issac met in the plant office, where Issac again attempted to convince Davenport to wait for the nurse. Davenport left the plant and went to the Emergency Room at E.A. Conway Hospital (“Conway”) in Monroe.

Davenport returned to work the following day with a doctor’s report. Issac instructed Davenport to keep the report, asked for his badge, and told him that he was suspended pending an investigation. Foster Farms ultimately fired Davenport.

On September 1, 2009, Davenport filed a disputed claim for compensation in which he alleged that he felt a sharp pain in his back while moving pallets at work on August 5, 2009. Following a trial on the merits, the WCJ rendered judgment in favor of Davenport, finding that he was entitled to supplemental earnings benefits from May 10, 2010, which was the week following termination of his unemployment benefits; to payment of medical expenses reasonably related to his injury; and reimbursement of all out-of-pocket expenses reasonably related to his injury. Foster Farms and Ohio Casualty were assessed with a penalty of $2,000 for failing to pay benefits or reasonably controvert the claim for compensation, and were ordered to pay $7,500 in attorney fees. Foster Farms and Ohio Casualty appeal.

^DISCUSSION

Accident

Foster Farms and Ohio Casualty contend the WCJ erroneously found that Davenport suffered an accident in the course of work on August 5, 2009.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Dean v. Southmark Constr. Co., 2003-1051 (La.7/6/04), 879 So.2d 112; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993). Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. When there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Winford v. Conerly Corp., 2004-1278 (La.3/11/05), 897 So.2d 560.

14A claimant in a workers’ compensation action must establish “personal inju-

ry by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). An accident is “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). An employee may prove by his or her testimony alone that an unwitnessed accident occurred arising out of and in the course of employment if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged accident. Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992).

Davenport at first testified that he never told Issac that his pain was caused by an accident at work because he had not been involved in an accident. He told Issac only that his back had started hurting and he needed to see a doctor. However, when later asked if it was during his first conversation with Issac that he reported that he had hurt his back while lifting pallets, Davenport replied, “Exactly, that’s correct.”

Issac testified that Davenport said only that his back was hurting, but never said how he had hurt it. However, Issac never asked Davenport why his back was hurting. Chris Jernigan, a live receiving supervisor at the plant, was in the office and overheard part of the conversation between Davenport and Issac. He heard Davenport say that his back was hurting and Rhe was going home. Jernigan recalled that Davenport never indicated that he hurt his back while doing his job at Foster Farms.

Foster Farms and Ohio Casualty argue that additional evidence discredited Davenport’s version of what caused his back pain, and that his testimony was not corroborated by the circumstances following the alleged accident. In particular, they point out that Davenport failed to report his injury as work-related, he had preexisting lower back pain and denied having been treated for lumbago, he failed to disclose his back condition on a Foster Farms health questionnaire, and he attempted to receive unemployment compensation benefits through fraud.

When Davenport was treated at Conway on the night of the accident, he described the pain as sharp and constant, and that it worsened when lifting. The emergency room report shows that he reported back and shoulder pain that began a year earlier. Davenport denied telling the doctors this pain had lasted one year; rather, he said he told the doctors only that he had had back and shoulder pain before. He also asserted that a physician at the hospital completed the report. Davenport also testified that he told the doctors at Conway that he sustained a work injury, but they did not write it down in the report.

Davenport was treated the next day by Dr. Khaled Shafiei, an internal medicine physician in Monroe. He complained of lower back pain, but the report from that visit does not reflect that his pain was caused by a work accident. Davenport testified that he told Dr. Shafiei on that visit what had | (¡happened to his back at work, but the doctor forgot to write this down. Dr. Shafiei restricted Davenport from heavy lifting.

Davenport returned to Conway for treatment on August 11, 2009. It was noted that Davenport described his back pain as aches that were constant and began a year earlier. Davenport testified that this notation was wrong. An MRI of Davenport’s lumbar spine performed on that date showed mild straightening of the normal curvature possibly secondary to muscle spasm. The MRI also showed that degenerative disc and arthritic changes were present to a moderate degree, especially in the upper lumbar spine.

Davenport was again treated at Conway on September 16, 2009. He reported low back pain with an onset date of August 5, 2009. He described his pain as coming and going, and that it felt like a screwdriver was going in his back.

Davenport returned to Conway for a followup visit on November 25, 2009, when it was recorded that he reported hurting his back while lifting at work on August 5, 2009. Davenport testified that like the other medical reports, he did not fill out the November 25 report. An MRI of the lumbar spine taken later that November showed mild degenerative disc and joint disease mainly at L3-4 and L5-S1.

Davenport was again treated for back pain at Conway on February 17, 2010. An MRI of his lumbar spine taken five days later showed degenerative disc changes at the Ll-2 level and at the L4-5 and L5-S1 levels with slight posterior disc bulging.

17Athough there was no mention of an accident at work in the earlier medical reports, Davenport explained that this information was omitted by the doctors who wrote the reports. It was on September 16 that the onset date of August 5 was first recorded in a medical report, and it was on November 25 that it was first recorded in a medical report that Davenport had been injured at work. However, we note the when Davenport filed his disputed claim for compensation on September 1, he alleged that he felt a sharp pain in his back while moving pallets at work on August 5.

Davenport clearly had a history of lower back pain. Medical billing records from 2003 show a diagnosis of lumbago. In January and September of 2008, and in June of 2009, he was treated by Dr. Shafiei for lower back pain. Dr. Shafiei recommended in June of 2009 that Davenport have a lumbar spine X-ray for the diagnosis of lower back pain. Davenport denied receiving medical treatment for lumbago in 2003, and he denied ever having lower back pain prior to the accident.

Davenport admitted having back pain prior to the accident at work, but he said it was “not that much” and the pain that he experienced on August 5 was different and something that he had not felt before. Davenport stated that when he was treated by his doctor prior to August 5, it was for back pain that was very light. Davenport described the pain on August 5 as feeling like something was being screwed into his back.

Davenport stated that his prior back pain had not prevented him from fulfilling his job responsibilities, he was not taking medication for it, and he had not injured his back on the job before. Jernigan recalled that Davenport 18always wore a back brace in the several years that he worked with him. However, Jernigan had never heard him previously complain of back pain.

Issac had been Davenport’s supervisor when the plant was operated by Pilgrim’s Pride. Issac testified that when Davenport had complained about his back hurting in the past, he had always sent Davenport to see the plant nurse. Issac did not know when these instances took place, and he could not recall Davenport ever previously complaining about pain to the extent that he had to leave work. Issac also could not recall if Davenport had ever had any other injuries at work.

When Davenport completed a medical history form for Foster Farms in July of 2009, he wrote “no” when asked if he had ever had problems with his back or neck. Davenport explained that at the time he had not had any serious problems with his back or neck. He also wrote “no” on the form when asked if he had any chronic back problems or back surgery.

Finally, Davenport was informed in July of 2010 by the Louisiana Workforce Commission that he had received over $11,000 in unemployment benefits to which he was not entitled. He had been disqualified from unemployment benefits effective August 5, 2009. The overpayments were from August 8, 2009, through May 1, 2010.

Davenport’s explanation for what happened regarding the unemployment benefits is unclear. He testified that he applied for unemployment benefits after being laid off by Pilgrim’s Pride, and the Workforce Commission disqualified him from benefits because it believed he walked off the job at Pilgrim’s Pride and had not been laid off. We note [3that the notices from the Workforce Commission state he was disqualified effective the date of the accident. We also note that the notices from the Workforce Commission are titled, with our emphasis added, “Determination of Overpayment (Non-Fraud).” The WCJ gave proper weight to the receipt of unemployment benefits, as Davenport was awarded supplemental earnings benefit beginning after the overpayments ceased.

In Ardoin v. Firestone Polymers, L.L.C., 2010-0245 (La.1/19/11), 56 So.3d 215, the supreme court concluded the WCJ erred in finding Ardoin had injured his knee in an unwitnessed accident. Ardoin failed to report the accident to his employer for 18 months. Ardoin denied any falls or injuries when examined by his family physician the same month as his alleged accident. Nine months after the alleged accident, Ardoin did not indicate on Firestone’s Accident & Sickness program form that he had been in a work-related accident. It was more than a year after his alleged accident that Ardoin first indicated on the program form that he was unsure if his injury was work-related. When a Firestone occupational health nurse inquired about what he had meant, Ardoin explained that he was not sure what was going on with his knees. Of particular note is that when Ardoin was specifically asked within days or weeks of the alleged accident by Firestone’s safety manager whether he had suffered an accident at work, Ardoin denied injuring himself and only said that his knees were hurting.

Davenport never denied any falls or injuries to Dr. Shafiei or when treated at Conway. He reported to his supervisor that his back was hurting immediately after he injured it, but unlike the Firestone safety manager, 1 inIssac never asked Davenport if he had injured his back doing something related to his job.

The WCJ obviously believed Davenport’s assertion that he injured his back while lifting the pallets in an unwitnessed accident. The WCJ found that the medical evidence, and the testimony of Issac and Jernigan, corroborated Davenport’s version of the accident. The WCJ also found there was no evidence to cast serious doubt upon Davenport’s version of the accident.

Based upon our review of this record, we conclude that the WCJ’s findings were reasonable. The WCJ was not manifestly erroneous in ruling that Davenport had injured his back in an accident at work on August 5, 2009, and was entitled to workers’ compensation benefits.

Penalty and Attorney Fees

La. R.S. 23:1201(F) provides for the assessment of penalties and attorney fees based on an employer’s failure to provide payment of benefits unless the claim is reasonably controverted or the failure to pay results from conditions over which the employer had no control.

In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Koenig v. Christus Schumpert Health System, 44,244 (La. App.2d Cir.5/13/09), 12 So.3d 1037; Howard v. Holyfield Construction, Inc., 38,728 (La.App.2d Cir.7/14/04), 878 So.2d 875, writ denied, 2004-2303 (La.1/7/05), 891 So.2d 684.

In We review the award of attorney fees and penalties under the manifest error standard. Morris v. Rent-A-Center, Inc., 43,191 (La.App.2d Cir.4/30/08), 981 So.2d 257.

Issac testified that a representative from Human Resources talked to him the day after the accident and did a full report of the alleged injury. However, Issac could not recall if anyone from Human Resources ever asked him how Davenport had injured his back. A representative from Human Resources never asked Issac if Davenport went to see a doctor about his back. Issac did not know if Human Resources ever contacted Davenport to get his story about what had happened. Issac was also unsure how Human Resources conducted its investigation. His only involvement in any investigation by Human Resources was providing information about Davenport leaving work.

Issac told Davenport when he returned to work the following day that someone from Human Resources would contact him if they needed to see his medical report. According to Davenport, Foster Farms never contacted him to investigate the accident or to inquire about any medical treatment that he may have received.

The evidence shows that the imposition of a penalty and award of attorney fees was justified in this case as Foster Farms failed to reasonably controvert Davenport’s claim. Therefore, the WCJ was not manifestly erroneous in assessing a penalty of $2,000 against Foster Farms and Ohio Casualty, and awarding attorney fees of $7,500 to Davenport.

| ^CONCLUSION

At appellants’ costs, the judgment is AFFIRMED.

      . He began working for Pilgrim’s Pride in 1999.

      . Issac was also Davenport’s supervisor when he worked for Pilgrim’s Pride.


author: BROWN, Chief Judge.

text:
    Chasity F. COY, Plaintiff-Appellee v. Ryan M. COY, Defendant-Appellant.
    No. 46,655-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 13, 2011.
    Mills, Turansky & Griffith, Shreveport, LA, by Richard E. Griffith, for Appellant.

      Chasity F. Coy, In Proper Person.
    Before BROWN, GASKINS, and LOLLEY, JJ.
   BROWN, Chief Judge.

1T Defendant, Ryan M. Coy, has appealed from a judgment granting a protective order under the provisions of La. R.S. 46:2131, et seq. For the following reasons we reverse.

Facts and Procedural Background

Plaintiff, Chasity Coy, and defendant, Ryan Coy, were married on February 1, 2010. A child, (“M.C.”), was born on June 15, 2010. M.C. was born prematurely and has a respiratory condition due to her premature birth. The parties separated, and Ryan filed for divorce on February 14, 2011; their divorce action is pending.

On November 15, 2010, Chasity filed a petition for a protective order against Ryan. In the petition, Chasity alleged that Ryan’s threats to take “the only working vehicle in the household” constituted abuse because it was needed to take M.C. to her doctor appointments. The trial court denied the petition because the allegations did not meet the requirements for the issuance of a protective order under La. R.S. 46:2131, et seq.

Chasity filed another petition for a protective order on December 21, 2010; this time, she alleged that the abuse was telephone harassment by Ryan, who had made repeated phone calls and sent text messages to her. Once again, the petition contained no allegations of physical abuse and no threats against her or the child. The trial court again denied the requested relief, noting that the petition failed to contain allegations that would justify a protective order.

On January 4, 2011, Chasity filed a third petition seeking a protective order. She reasserted the allegations of harassing phone calls and text 12messages in addition to including details of a more recent phone call. Regarding the most recent telephone call, the police arrested Ryan, apparently for a violation of La. R.S. 14:285, which provides in part that it is illegal to make repeated telephone communications in a manner reasonably expected to annoy, abuse, torment, harass, embarrass, or offend another. The record does not show that he was ever convicted.

The trial court held a hearing concerning this third petition for a protective order. Both parties participated in this hearing without attorneys. Chasity made an oral statement concerning the allegations in her petition, and Ryan questioned three witnesses including his mother, a former roommate, and a friend; Chasity also asked questions of these witnesses. Ryan then made a statement concerning the allegations made by Chasity.

At the hearing, Chasity stated that Ryan had repeatedly text-messaged her, called her, and left several “harassing voice mails.” Chasity showed the trial court the text messages, and the judge stated that they appeared to only be communications concerning the whereabouts and well-being of the parties’ daughter. Chasity also showed the trial judge documentation as to the number of phone calls that Ryan had made. When the judge asked for records of the voicemails allegedly left by Ryan, Chasity could not produce them, and the judge told her that he could not consider them in making his ruling. Neither in her petition nor at the hearing did Chasity ever make a single allegation of physical abuse.

Each of Ryan’s witnesses testified that he has no violent history and is not an abusive person. No one testified about any alleged abusive acts |3from which Chasity was seeking protection. During his statement, Ryan was asked by the trial judge about the phone calls and text messages. Ryan testified that he was only trying to find out about his daughter, but admitted that the number of calls he made may have been excessive. The trial judge noted that the “hurdle” had been cleared by the excessiveness of the phone calls. At that time, the trial judge issued his ruling granting Chasity’s request for a protective order. No evidence of physical abuse was ever produced. No written reasons were provided by the judge. The ruling was apparently based on the excessive amounts of phone calls made by Ryan Coy. It is from this judgment that Ryan has appealed.

Discussion

The purpose of the Domestic Abuse Assistance Statutes, La. R.S. 46:2131, et seq., is to provide relief to victims of domestic violence by establishing a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection. Domestic Abuse includes, but is not limited to physical or sexual abuse, and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another. La. R.S. 46:2132(3). La. R.S. 46:2136 provides for the entry of a protective order in cases of domestic abuse. Protective orders are reviewed for abuse of discretion. Clayton v. Abbitt, 44,427 (La.App.2d Cir.07/01/09), 16 So.3d 512.

This court has addressed the issue of whether nonphysical, domestic abuse is covered by La. R.S. 46:2131, et seq. In Culp v. Culp, 42,239 (La.App.2d4 Cir.06/20/07), 960 So.2d 1279, we held that the definition of domestic abuse under La. R.S. 46:2132 does not include general harassment. In Culp, 960 So.2d at 1282-3, this court stated:

La. R.S. 46:2131, et seq., provides protection in the form of TROs and protective orders for persons subject to domestic abuse. Domestic abuse is further defined by La. R.S. 46:2132(3), in pertinent part as:
includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another.
Family arguments that do not rise to the threshold of physical or sexual abuse of violations of the criminal code are not in the ambit of the Domestic Abuse Assistance Law. Rouyea, supra [808 So.2d 558 (La.App. 1 Cir.2001) ]; Harper v. Harper, 537 So.2d 282 (La.App. 4th Cir.1988).
Plaintiff emphasizes that the definition uses the phrase “includes, but is not limited to” and argues that this language expands the scope of domestic abuse to include general harassment. We disagree. We are mindful that the courts could quickly be overwhelmed if every unpleasant child custody exchange or contentious relationship between former spouses warranted a TRO or protective order. The kind of parent bickering and child manipulation that the record reflects occurring between the parents in the case sub judice is simply beyond the scope of this statute. La. R.S. 46:2131 emphasizes that the purpose of the statute is to equalize the treatment of crimes between family members and those between strangers. It further emphasizes the need to protect victims from violent behavior. Those purposes reflect that the D.A.A. has limited reach. We cannot agree, therefore, that the statute embodies Plaintiffs claims of general harassment by Defendant, nor do the Defendant’s actions as contained in the record constitute an offense against the person as defined by the Criminal Code.

In Fontenot v. Newcomer, 10-1530 (La.App. 3d Cir.05/04/11), 63 So.3d 1149, the Third Circuit held that “domestic abuse” justifying a protective order under La. R.S. 46:2131 is not satisfied by Lgeneral harassment not constituting an offense against the person as defined by the Criminal Code. In Fontenot, the evidence showed that the defendants followed the plaintiff and her children around town, attended the children’s basketball games, and drove by the children’s school. They occasionally parked behind the plaintiff in parking lots, blocking her from leaving. The record contained no evidence of physical abuse. The Third Circuit agreed with this Court’s decision in Culp, supra, and held that the lower court abused its discretion in issuing a protective order.

At the hearing in the case sub judice, no evidence of physical domestic abuse was presented. In fact, there were no allegations of physical abuse made. At the hearing, the lower court acknowledged that Ryan was only attempting to find out about his child’s health, whereabouts, etc. Nowhere in the record does the trial court make a finding that any domestic abuse occurred. The lower court only found that Ryan made an excessive amount of telephone calls to Chasity concerning their child.

We find that the types of phone calls and text messages that Ryan Coy was making and sending are only general harassment, and thus do not constitute not domestic abuse as defined by La. R.S. 46:2132(3). Therefore, the trial court abused its discretion when it granted the protective order.

Conclusion

For the reasons set forth above, the judgment issuing the protective order against Ryan M. Coy is reversed. REVERSED.