text:
    Lisa GREEN, Plaintiff-Appellee v. THOMPSON HOME HEALTH, Defendant-Appellant.
    No. 46,593-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.
    Rehearing Denied Oct. 27, 2011.

      Hudson, Potts, & Bernstein, Monroe, LA, by Brian P. Bowes, for Appellant.
    Fewell-Kitchens, by Richard L. Fewell, Jr., for Appellee.
    Before BROWN, CARAWAY, and LOLLEY, JJ.
   BROWN, Chief Judge.

| ,In this workers’ compensation case, defendant, Thompson Home Health, appeals from a judgment in favor of claimant, Lisa Green, ordering it to pay wage benefits and medical expenses, plus attorney fees and penalties. For the following reasons, that judgment is reversed.

Facts

On April 14, 2009, claimant, Lisa Green, was employed as a nurse liaison by defendant, Thompson Home Health, when she was involved in a motor vehicle accident arising out of and in the course of her employment. According to the accident report, the collision caused minor damage to the vehicles, claimant’s air bag did not deploy, and no injuries were reported at the scene. Subsequent to the accident, however, claimant visited her primary physician, Dr. Floyd Jones, complaining of pain in her right knee as a result of her knees striking the dashboard of her vehicle during the auto accident.

Claimant reported the auto accident to defendant the day it occurred and was out of work for approximately one week. Claimant continued to work until Dr. Jones took her off work on May 18, 2009. A short-term disability form was filled out by claimant, defendant, and Dr. Jones, that stated that the disability did not arise out of her employment, but rather an illness dating back to January 2007. Dr. Jones fully released claimant to return to work on August 12, 2009. Five days later, however, claimant’s employment came to an end.

Claimant filed a 1008 disputed claim for compensation with the Office of Workers’ Compensation on October 23, 2009, seeking temporary | «.total disability benefits, indemnity benefits, medical expenses, supplemental earnings benefits, attorney fees, and penalties. A trial on the merits was held on July 29, 2010. The deposition testimonies of Drs. Jones and Douglas Brown, claimant’s orthopedist, were submitted, as well as claimant’s medical records. Dr. Brown diagnosed claimant with right patella femoral post-traumatic chon-dromalacia (also referred to as patellofem-oral syndrome) and recommended that she undergo arthroscopy patella shaving with a lateral tendon release. The workers’ compensation judge (“WCJ”) found in favor of claimant and awarded her wage and medical benefits, penalties, and attorney fees, less monies received from the motor vehicle accident civil suit. From this judgment defendant has appealed.

Discussion

An employee is entitled to workers’ compensation benefits if she received personal injury by accident arising out of and in the course of her employment. La. R.S. 23:1031(A). The plaintiff must establish the occurrence of a work-related accident by a preponderance of the evidence. Thomason v. Wal-Mart Stores, Inc., 37,-520 (La.App.2d Cir.09/04/03), 852 So.2d 1283, writ denied, 03-2774 (La.12/19/03), 861 So.2d 573.

A preexisting medical condition will not bar an employee from recovery if the employee establishes that the work-related accident aggravated, accelerated or combined with the condition to cause the disability for which compensation is claimed. Peveto v. WHC Contractors, 93-1402 (La.01/14/94), 630 So.2d 689; Hatfield v. Amethyst Construction, Inc., 43,588 (La.App.2d Cir.12/03/08), 999 So.2d 133, writ denied, 08-2996 (La.02/13/09), 999 So.2d 1150. The preexisting condition is presumed to have been aggravated by the accident if the employee proves: (1) the disabling symptoms did not exist before the accident, (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the activation of the disabling condition. Peveto, supra.

If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the claimant fails to carry the burden of proof. Lowe v. Skyjacker Suspensions, 45,058 (La.App.2d Cir.03/03/10), 32 So.3d 340. The trier of fact’s determinations as to whether the worker’s testimony is credible and whether the worker discharged the burden of proof are factual determinations, not to be disturbed upon review unless clearly wrong. Id.; Daniel v. House of Raeford Farms of LA, 44,753 (La.App.2d Cir.09/23/09), 23 So.3d 374, writ denied, 09-2326 (La.01/08/10), 24 So.3d 871.

Our review of the medical records submitted shows that for more than two years prior to the accident claimant had been complaining of pain and swelling in her knees to multiple doctors. In fact, the day preceding the accident she visited Dr. Jones complaining about her right knee. Specifically, Dr. Jones’s handwritten notes state that the claimant’s “right knee collapses; fell 3 weeks ago; lower back pain radiates down right leg; |4pain posterior knee; fell/stumbled few times, fell down stairs at home.” During this visit Dr. Jones performed a number of tests on claimant’s right knee; his notes of that day include a finding of “right knee slight effusion,” assessing that she may have a “possible small meniscus tear” in her right knee and “patellofemoral syndrome,” and his “plan” was to “give chondromalacia patella [exercise] sheet” to claimant and schedule an MRI of her right knee.

Two days after the accident occurred, claimant again went to see Dr. Jones. She again complained of pain in her knees and stated that her knees hit the dashboard during an accident. Dr. Jones performed some more tests and noted his findings of eechymosis (bruise) and a possible cruciate ligament strain. Dr. Jones testified that the eechymosis would have had to have been smaller, 2-3 centimeters, since he generally measures and notes the larger ones. Again, Dr. Jones noted chondroma-lacia patella and told claimant to do the exercises from the exercise sheet he had given her a few days before.

On April 24, 2009, ten days after the accident, claimant went to Dr. Ralph Abraham “complaining of right knee pain with weakness — will fall at times — happens when [she] wears flat shoes.... ” Although Dr. Abraham did not testify at trial, nor was he deposed, the notes of this particular visit are very consequential. Ten days after her motor vehicle accident, claimant goes to a doctor complaining of pain in her right knee and references her multiple falls but makes no mention of an automobile accident or her knees putting a dashboard. On cross, claimant stated that she saw Dr. Abraham before she started seeing Dr. Jones in early 2007.

Claimant visited Dr. Brown on January 18, 2010. Dr. Brown’s initial impression was that claimant had chondromalacia patella, so he ordered her to undergo a new MRI of her right knee. Similar to the MRI performed a few months prior, the results showed no meniscus tears or ligament strains, only a small joint effusion. Based upon this and the results from his exam, Dr. Brown concluded that claimant had chondromalacia patella. Dr. Brown testified that claimant’s chondromalacia patella was likely brought about by trauma to her knee, such as from hitting the dashboard during an automobile accident. When asked specifically by counsel for claimant if he was of the opinion that the accident caused or contributed to claimant’s chondromalacia, Dr. Brown stated that “[b]y what you’ve told me and what she told me and what I could gather from our examination, the answer would be yes.” On cross-examination, however, Dr. Brown and counsel for defendant had the following exchange:

Counsel: Okay. So she didn’t give you any history of having had any problems with her right knee or left knee?
Dr. Brown: No. Well, she did tell me she’d had this connective tissue disorder ... I don’t know if she had been having knee complaints ... a lot of patients with those conditions have multiple joint aching and swelling.
Counsel: Did she tell you that she was treated for her right knee on the day before the accident, April 13, when she fell down her stairs at her house?
Dr. Brown: No.
1 ñ(Dr. Brown now looking at Dr. Jones’s notes from April 13, 2009.)
Counsel: That’s all on the 13th.
Dr. Brown: So—
Counsel: If I tell you that he had—
Dr. Brown: “Patellofemoral syndrome.” So that would be the type of thing we’re talking about.
Counsel: Okay. If you were to assume that we took Dr. Jones’ deposition and he testified ... that his impression [on the 13th] was that she may have a small patellar tear and also may have some chondromalacia in the right knee ... would that make a difference on your impression as to whether or not you could relate your diagnosis of developed post traumatic chondroma-lacia related to the accident on 4-14?
Dr. Brown: Well, there may be a combination of causes.
Counsel: Okay. So it could be that she did have chondromalacia before the accident and bumped her knee on the dashboard and it aggravated it?
Dr. Brown: Yes.
Counsel: Is there any way to tell the degree of aggravation, given that medical history?
Dr. Brown: No.
Counsel: Is it possible that she could have just bruised her knee and had a knee strain and then the bruise went away, but she still had the chondroma-lacia which she had before?
Dr. Brown: Yes.

The WCJ stated in her oral reasons that her determination that there was an aggravation of a preexisting condition was based on claimant’s physicians’ findings and opinions, not on claimant’s “statements concerning 17the extent of her injuries during the motor vehicle accident.” The basis for not relying upon claimant’s statements was apparently due to questions regarding claimant’s credibility.

The weight afforded a treating physician’s testimony is largely dependent upon the facts upon which his opinion is based. Perow v. Lenzly, 30,833 (La.App.2d Cir.08/19/98), 716 So.2d 519. A claimant’s lack of credibility on factual issues can serve to diminish the veracity of her complaints to a physician. Bass v. Allstate Ins. Co., 32,652 (La.App.2d Cir.01/26/00), 750 So.2d 460; Perow, supra.

In presenting her history to Dr. Brown, claimant omitted relevant portions of her medical history, particularly her knee problems, her multiple falls, and Dr. Jones’s diagnosis of chondromalacia prior to her accident. Thus, the weight afforded to Dr. Brown’s opinion as to the causal connection between the accident and injury is greatly diminished. He found these facts out for the first time during cross-examination, and as a result he ultimately had to concede that it was possible that claimant’s chondromalacia was present before the accident and that the accident did not aggravate it, or if it did, to what degree it did so would be impossible to determine. Dr. Jones’s deposition and medical records also raise questions about when claimant’s right knee pain began and whether or not the accident aggravated it to any further degree.

The following facts are relevant: On April 3,' 2009, claimant requested additional Lortab, but because she was not due for more until April 18, 2009, Dr. Jones refused; claimant stated that she was using more |sdue to falling; claimant called in again on April 9, 2009, requesting Lortab again because she had pain and had been falling; Dr. Jones gave her enough to get her through until her appointment on April 13, 2009; lastly, claimant called into Dr. Jones’s office again on April 29, 2009, requesting Lortab again, this request was refused because claimant had taken 180 Lortabs since April 13, 2009. Dr. Jones further testified that his view that claimant’s chondromalacia was aggravated by the accident was based upon claimant’s increased complaints of pain. He did, however, admit that for him to reach that conclusion he had to rely on the claimant’s contention that the pain increased after the accident. Clearly, claimant was in pain prior to and after the accident.

In addition to claimant’s lack of credibility on factual issues and the omission of relevant medical history upon which Dr. Brown could rely, claimant undertook other actions which seriously call into question whether the disability she seeks compensation for now was caused or contributed to by the motor vehicle accident. On May 18, 2009, the day Dr. Jones took her off work, claimant sought short-term disability benefits. The documents submitted to Assurant Employee Benefits by Dr. Jones state that claimant’s symptoms first appeared in January 2007; that the subjective symptoms of her disability are pain in joints, goiter and mitral valve, and the objective symptoms are tricuspid and valve insufficiency, atrial flutter, and hypothyroidism. There is no mention of chondromalacia, and, under “Patient’s symptoms result from,” neither the employment nor auto accident boxes are checked. Next, on October 19, 2009, claimant filed a disability |flclaim with the Social Security Administration alleging disability “due to connective tissue parathyroid thyroid, heart disease and Lupus since 05/18/2009.” Claimant’s short-term disability claim was denied.

We find that there are too many inconsistencies and contradictions to reasonably conclude that claimant met her burden of proving that the motor vehicle accident of April 14, 2009, aggravated, accelerated or combined with her preexisting condition to cause the disability for which compensation is claimed. Claimant worked the month after the accident, then sought short-term disability benefits, permanent disability benefits, and, lastly, workers’ compensation benefits. Each time different ailments and/or injuries were listed as the basis for the benefits sought.

The WCJ also called claimant’s credibility into question. Claimant visited Dr. Jones the day prior to the accident complaining of knee problems and pain, and at that time he diagnosed her with chondro-malacia. To conclude that the minor accident the following day was such a precipitous event that claimant’s just diagnosed chondromalacia was aggravated to the extent that she could no longer work is highly speculative, especially when coupled with claimant’s evident credibility issues and subsequent actions-working the month after the accident and filling out disability benefit forms claiming other ailments as the basis therefor. Clearly the disabling symptoms did exist before the accident and the medical and circumstantial evidence does not reasonably indicate a possibility of a causal connection between the accident and the activation of the disabling condition.

110Conclusion

Based upon the foregoing, the judgment of the WCJ is reversed. Judgment is rendered in favor of defendant, dismissing plaintiffs claims. Costs of this appeal are assessed to claimant, Lisa Green.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, PEATROSS and LOLLEY, JJ.

Rehearing denied.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Cordaryl SMITH, Plaintiff-Appellant v. CITY OF SHREVEPORT, Shreveport Police Department, Chief Mike Campbell, Officer J.M. White, Officer K.W. Duck and Other Unnamed Officers, Defendants-Appellees.
    No. 46,596-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Sheva M. Sims, Shreveport, LA, for Appellant.
    Barham, Warner, Stroud & McKay, L.L.C., Shreveport, LA, by A.M. Stroud, III, Jennifer P. McKay, for Appellees.
    Before GASKINS, DREW & MOORE, JJ.
   GASKINS, J.

|, Plaintiff, Cordaryl Smith, sued the City of Shreveport, Shreveport Police Department, Chief Mike Campbell, Officer J.M. White, Officer K.W. Duck, and other unnamed officers (collectively referred to herein as “the City”) for injuries he allegedly sustained during his apprehension and arrest by Officers White and Duck. Following a bench trial, the trial judge ruled in favor of Smith, awarded general damages in the amount of $10,000 and special damages in the amount of $400.93. The trial judge then apportioned fault, allocating 51 percent of the fault to the officers and 49 percent of the fault to Smith. After allocation, the award to Smith totaled $5,851.43, with judicial interest. Expert witness fees were assessed to the City and costs were split according to the allocation of fault. Smith appeals. For the reasons stated herein, we affirm.

FACTS

On June 25, 2005, at approximately 1:50 a.m., Officers White and Duck, who were patrolling the Allendale neighborhood in separate vehicles, observed Smith walking in the street in the 1800 block of Abbie Street. There are no sidewalks on the 1800 block of Abbie Street. Smith, who was 18 years old at the time of the incident, had walked his girlfriend a portion of the way home and was returning to his grandmother’s residence on Abbie Street. As Smith was approaching the intersection of Abbie and Norma Streets, he was confronted by Officers White and Duck. The officers testified that they stopped Smith because it was a “good stop for a Terry 12stop.” According to the officers, Smith was walking “unsteady on his feet” as if he may have been intoxicated, and he was not walking on the provided sidewalk. The record reflects that Smith stopped momentarily in front of the patrol car, but then fled. The officers chased Smith on foot. Smith ran across several yards and hid underneath the steps of his grandmother’s house at 1920 Abbie Street. As officers approached and ordered Smith out from under the steps, Smith ran again and attempted to jump over a cyclone fence. Either the fence collapsed or Smith became tangled in the fence; in any event, Smith fell and the officers apprehended him on the ground and were able to handcuff him. Smith testified that one officer held him down with his knee in his back and handcuffed him while the second officer beat him in the head with an object he could not identify. The officers both testified that reasonable force was used to make the arrest and denied that either of them hit Smith.

Apparently, Smith was bleeding from the cut over his eye and the officers called for medical assistance. The Shreveport Fire Department responded to the non-emergency call for treatment. The EMS report reflects that Smith “jumped over a fence and fell” sustaining a small laceration over his left eye, which the paramedics cleaned and bandaged.

Smith was transported to the city jail and charged with violating the municipal ordinance prohibiting pedestrians from walking in a street where a sidewalk is provided, as set forth in the City of Shreveport Municipal |sCode Sec. 90-462. He was also charged with resisting an officer in violation of La. R.S. 14:108. Both charges were later dismissed by the city prosecutor.

Smith’s grandmother posted bond and took him to the emergency room at Willis-Knighton Medical Center for medical treatment. The Willis-Knighton medical records reflect that Smith suffered a superficial 1/4-inch laceration to his upper left eyelid, superficial abrasions on his right wrist, hand and palm areas, injury to a finger and a contusion to his left shoulder. “Vague discomfort” of the shoulder was noted, with no swelling and full range of motion. No fractures or dislocations were seen. The records further reflect that Smith advised the treating physician at the emergency room that he was apprehended by police and hit in the head with an object. The nurses’ notes reveal that, when asked what the object was, Smith responded, “I don’t know,” at which time the “family member” with Smith stated that “it was a police stick.” Smith was treated and released with instructions to take Motrin for pain and to apply ice to the shoulder. Subsequently, on July 11, 2005, Smith was treated at Wee Care Pediatric and Kidmed Clinic for headaches, the injury to his finger and continued shoulder pain. The Wee Care record states that Smith “fell when jumped over fence [and] fell onto shoulder [and] hand during a police encounter.” Again, Motrin was prescribed for pain. Smith testified that the pain in his shoulder lasted approximately three months.

As previously stated, Smith filed suit against the City, alleging unlawful arrest, use of excessive and unnecessary force, malicious violation |4of and interference with Smith’s constitutional rights, infliction of injuries, intentional infliction of emotional distress, assault and battery, gross negligence, inhumane treatment, and cruel and unusual punishment. Some of the plaintiffs claims were based upon state law and others were based on federal law found in 42 U.S.C. §§ 1988 and 1988. Cross motions for summary judgment were filed by the parties resulting in dismissal of all federal and state claims except for the state claims of excessive force, assault and battery, wrongful arrest, and intentional infliction of emotional distress. Bench trial of the matter was held on July 22, 2010. As previously stated, judgment was rendered finding the officers at fault and awarding Smith damages in the amount of $10,400.93, subject to the apportionment of fault of 49 percent to Smith. Costs were allocated between the parties and expert witness fees were ordered to be paid by the City. This appeal by Smith ensued.

DISCUSSION

On appeal, Smith claims that the trial court committed manifest error in its allocation of fault to Smith when it is clear that the actions of Officer White and Officer Duck were the cause-in-fact of the incident, that the trial court erred in failing to determine the extent of the force used by the officers, and that the trial court erred in limiting its award of general and special damages to $10,400.93 for false arrest and battery. Smith also argues that the trial court erred in not awarding attorney fees for violation of his constitutional rights.

15As an initial matter, we note that the trial judge heard the testimony of all witnesses and reviewed the medical and documentary evidence, after which he provided exhaustively thorough and well-reasoned written reasons for judgment and supplemental reasons for judgment. Enumerated factual and legal conclusions were provided supporting the trial judge’s proper finding that the officers were at fault in this case and that finding is not before us on appeal. Rather, Smith challenges the trial judge’s allocation to him of 49 percent of the fault, the judge’s failure to specify the extent of the force used by the officers, and amount of general damages awarded.

Louisiana courts of appeal apply the manifest error standard of review in civil cases. Detraz v. Lee, 2005-1268 (La.1/17/07), 950 So.2d 557; Hall v. Folger Coffee Company, 2003-1734 (La.4/14/4), 874 So.2d 90. The trial court’s findings of fact may not be set aside on appeal unless clearly wrong or manifestly erroneous. Rabalais v. Nash, 2006-0999 (La.3/9/07), 952 So.2d 653; Rosell v. ESCO, 549 So.2d 840 (La.1989). This is so even where the court of appeal is convinced that it would have weighed the evidence differently and reached a different result. Rabalais v. Nash, supra; Blair v. Tynes, 621 So.2d 591 (La.1993). The issue to be resolved is not whether the trier of fact was right or wrong, but whether its factual conclusions were reasonable. Rabalais v. Nash, supra. Where there are two permissible views of the evidence, the fact finder’s choice cannot be manifestly erroneous or clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993).

| ^Allocation of Fault

Both the existence of negligence and the allocation of fault are factual determinations subject to the trial court’s great discretion. Easter v. Direct Insurance Company, 42,178 (La.App.2d Cir.5/9/07), 957 So.2d 323. As to the allocation of fault, the trier of fact is bound to consider the nature of each party’s wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed. Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967 (La.1985); Fontenot v. Patterson Insurance, 2009-0669 (La.10/20/09), 23 So.3d 259. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought. Watson v. State Farm Fire and Casualty Insurance Co., supra.

An appellate court must give great deference to the allocation of fault as determined by the trier of fact. The alio-cation of fault is not an exact science or the search for one precise ratio, but, rather, an acceptable range; and any allocation by the fact finder within that range cannot be clearly wrong. Fontenot v. Patterson Insurance, supra. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award. Fontenot v. Patterson Insurance, supra; Schysm v. Boyd, 45,886 (La.App.2d Cir.8/16/10), 47 So.3d 977, writ denied, 2010-2113 (La.11/19/10), 49 So.3d 390.

After reviewing the testimony and the written reasons for judgment, we conclude that the findings of fault against the officers and Smith were not clearly wrong. As correctly noted in the trial judge’s supplemental written reasons for judgment, there is no right to resist an unlawful stop- and-frisk. See State v. Sims, 2002-2208 (La.6/27/03), 851 So.2d 1039. While we recognize Smith’s stated reason for fleeing, that he was scared and “knows what polices do,” he was not justified in running from the officers. Smith actually ran twice, when first confronted and when ordered out from under the steps. In fact, Smith might have successfully eluded the officers had he not fallen over the cyclone fence. Smith must have known that fleeing from the officers would result in a chase and potentially injurious apprehension. Smith’s actions cannot be condoned and were a significant contributing factor to his injuries.

In addition, the trial judge carefully articulated his basis for making credibility determinations regarding both the officers’ testimony and Smith’s purported version of events. For example, in his testimony, Smith emphatically denied the confrontation with the fence as a possible cause of his injuries. As previously stated, he testified that one officer jumped on his back and held him down, wrenching his arms back to handcuff him while the second officer hit him in the face/head with an unknown object. The EMS report states, however, that Smith was trying to jump a fence and fell on his shoulder and cut his eye. Likewise, the Wee Care medical chart |8reflects that the history provided by Smith was that he fell over a fence and landed on his shoulder during a police encounter. In addition, Smith was not truthful in his reporting of employment for purposes of determining his pauper status. On the other hand, portions of the officers’ testimony were inconsistent including testimony that Smith was unsteady and staggering and testimony that he was standing upright and straight. Further, the officers’ stated purpose for stopping Smith was his failure to walk on the provided sidewalk, except that there was no sidewalk on that portion of the street. Finally, we note that the trial judge did take notice of the fact that one of the officers was much larger than Smith and that both officers were physically involved in subduing Smith once he was lying face down on the ground.

In summary, we believe that the trial judge carefully considered the unique and somewhat troubling circumstances of this encounter and made appropriate and reasonable factual findings and credibility calls. In consideration of the deference owed the trier of fact in its allocation of fault, we do not find that the trial judge’s apportionment of fault, 51 percent to the officers and 49 percent to Smith, was manifestly erroneous. This finding is reasonably supported by the record.

Extent of Force and Damages

Smith argues that the trial judge erred by not specifically determining the extent of the force used by the officers against Smith. Smith further argues that the post-allocation of fault award of $5,351.43, together with his share of the costs, is abusively low. We disagree.

| ^General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. Duncan v. Kansas City Southern Railway Co., 2000-0066 (La.10/30/00), 773 So.2d 670. In the assessment of damages for offenses, quasi offenses and quasi contracts, much discretion must be left to the judge or jury. La. C.C. art. 2324.1. The standard of review for an award of general damages is abuse of discretion. The trial court is afforded much discretion in fixing general damages because of its superior position to evaluate the witnesses’ credibility and see the evidence firsthand. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award but to review the exercise of discretion of the trial court. Only if a review of the facts reveals an abuse of discretion should the appellate court resort to a review of prior, similar awards. When such a comparison is warranted, the appellate court may not enter what it deems to be the most appropriate award but may only adjust the award by raising it to the lowest or lowering it to the highest within the trial court’s discretion. Williams v. Ruben Residential Properties, LLC, 46,040 (La.App.2d Cir.3/2/11), 58 So.3d 534, and cases cited therein.

In the case sub judice, the trial judge examined the EMS report, the immediate treatment required for Smith’s injuries, the emergency room records of Willis-Knighton and the report from the subsequent physician visit to Wee Care. The laceration to Smith’s upper eyelid was 1/4 inch and superficial, requiring antibiotic ointment and a bandage. His shoulder was bruised and sore, with no swelling and full range of motion. Smith testified | inthat his discomfort lasted approximately three months. There was no evidence presented of lost wages, loss of enjoyment of life, impairment of Smith’s daily activities or any stress/mental injuries whatsoever. Indeed there was only one follow-up visit to a physician and Motrin was ordered until the pain resolved. We find no abuse of discretion in the trial judge’s award of $10,000 in general damages.

Next, we find no merit in Smith’s assertion that the trial judge erred by failing to specifically determine the extent of force used by the officers. The reasons for judgment indicate that the trial judge undertook a studied evaluation of this case, including the physical actions of the officers against Smith and the parties’ respective credibility issues surrounding the testimony of how the encounter happened and the roles of the parties involved. The damage award adequately reflects the finding of the trial judge that excessive force was used against Smith and the lack of any further particularization in this regard is not reversible error.

Attorney Fees

In his final assignment of error, Smith asserts that the trial judge erred in refusing to award attorney fees due to the alleged constitutional violations and his claims under 42 U.S.C. §§ 1983 and 1988. However, all federal claims in this case were dismissed on summary judgment on March 5, 2009. That ruling was not appealed. Smith’s claim for attorney fees has no merit and is, therefore, denied.

| n CONCLUSION

For the foregoing reasons, the judgment of the trial court awarding damages in the amount of $10,400.93, subject to the apportionment of fault of 51 percent to Officers K.W. Duck and J.M. White and 49 percent to Cordaryl Smith, and allocating the costs in the same proportions, is affirmed. Costs of appeal are assessed to Cordaryl Smith.

AFFIRMED.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which held that an officer may stop a person with less than probable cause for arrest if he has specific and articula-ble facts to suspect criminal activity and may frisk the person if he reasonably believes the person is armed and dangerous.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Henry MOTON, Appellant.
    No. 46,607-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Lea R. Hall, Jr., Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

11 Henry Moton was convicted of illegal use of weapons during a crime of violence, in violation of La. R.S. 14:94(F), and of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. After Moton admitted that he was a second felony habitual offender as to the illegal use of weapons charge, the court imposed consecutive sentences of 40 years’ hard labor without benefits for the illegal use of a weapon conviction and 10 years’ hard labor without benefits for the firearm charge. Moton appeals, urging four assignments of error. We affirm.

Facts

Sometime in the summer of 2008, Jeremy Rainey borrowed a .40 caliber handgun from an acquaintance he knew only as Marcus. Subsequently, Rainey’s grandmother’s car was broken into by a man who Rainey’s brother identified as Marcus. When Rainey learned of that incident, he refused to return the gun to Marcus.

On July 20, 2008, Rainey and two of his friends were at the home of Rainey’s girlfriend, Jessica Chambers, on Clover Street in Shreveport when Marcus and Moton went to that house looking for Rainey. They were driving a white Mazda. Rainey told Chambers to tell the men he was not there. She did so, but Moton told her “if he didn’t get the gun, he was going to shoot the house up or something like that.” When Moton left, Rainey and his friends snuck out of the house.

As Rainey walked and turned onto Dow-dell Street, he was cut off by a white car. Testimony indicated that Marcus was driving, and Moton was |2in the passenger seat. Rainey saw one of the doors open on the white car. Fearing trouble, Rainey pulled his .40 caliber handgun and fired it once and then turned and ran away. As he ran, Rainey heard multiple gunshots coming from the direction of the car, but he did not see if both men were shooting at him. Rainey escaped from the scene and was uninjured.

Police responded to the scene and discovered that a young man who was just a bystander to the shooting had been struck and wounded by one of the rounds. The 16-year-old was later treated at the hospital and released.

A search of the area revealed numerous groupings of spent shell casings on the ground. One group of approximately 13 spent .380 caliber shell casings was found near the corner of Clover and Dowdell. Police also found numerous .40 caliber shell casings. About one block to the north of the intersection near Summer Street, police recovered one spent 12-gauge shotgun shell.

Police located a witness to the shooting, James Dennis, who lived on Summer Street. The witness saw a white car he described as a Toyota stopped in the street, and saw two men with guns firing south on Dowdell. One of the fired rounds put a hole in Dennis’ pickup truck and another hit his house. Dennis saw the driver firing a handgun and the passenger was firing a shotgun. After the shooting, Dennis heard one of the shooters say, “get the shells, the shotgun shells,” and then Dennis saw the driver stop and pick up various cartridge cases. Dennis could not identify either of the men he saw doing the shooting.

Is A few days after the initial shooting, Rainey was walking down Clover Street near his girlfriend’s house when his girlfriend told him that “they [were] all down there on the corner of the street.” Rainey did not see Moton at that time, but when he went into his girlfriend’s yard and looked down the street, Rainey saw “Mo-ton creeping with the gun, walking out the yard.” Rainey described Moton’s gun only as a “big gun.”

Rainey ran out of the yard and down Clover Street, and his pursuers began shooting at him. On this day, Rainey was sure that Moton was one of the men shooting at him and Chambers was also sure that Moton was among the group of assailants.

Another witness, Aquila Robinson, testified that she was present at the second shooting. She overheard one of the assailants identify Rainey, and then she saw Moton cross the street with a gun going toward Rainey. Robinson then heard gunshots, but did not know who shot at whom.

At trial in 2010, Robinson initially testified that she did not see the first shooting. However, in a recorded statement made to police shortly after the second shooting, she reported that she did see the first shooting, and that she saw Marcus and Moton firing down the street. Robinson did not know who shot first. She described Moton’s gun in the second shooting as a big gun “like a chopper” but recalled that he had a handgun in the first shooting. After the prosecutor played the recording of that interview to the jury, Robinson agreed that the recording had refreshed her memory of the events which had occurred two years before trial.

14When Chambers and Robinson identified Moton in a photo lineup prepared by police, Moton was arrested in August 2008. While Moton was in jail, his phone calls were recorded. A disc containing these phone calls was introduced into evidence, and the jury overheard portions of some of the several conversations on the disc. The record shows that the jury heard Moton explaining his situation to a woman. During this conversation, the woman asked him “where that gun at, though,” at which point Moton reminds her that he is in jail. In a conversation with his brother about the witnesses to the event and why they were getting involved, Moton says, “It ain’t nothing for me to get on that phone and call homey and (unintelligible) and have a n* * * *a’s ass f* * * * * over.”

The jury convicted Moton on both charges. They voted unanimously on the possession of a firearm by a convicted felon charge and 10-2 on the illegal use of a weapon charge.

After a subsequent adjudication as a second felony offender, Moton was sentenced. At the sentencing hearing, the court recited the sentence ranges for Mo-ton’s crimes and then, relying on the previously considered factors, imposed consecutive sentences of 40 years at hard labor, for illegal use of a weapon (the maximum sentence for a second-felony habitual offender), and 10 years at hard labor (the minimum sentence, without the required minimum fine) for possession of a firearm by a convicted felon. Moton filed a motion to reconsider the sentences, urging that the court should not have considered the evidence of Moton’s arrest for murder in the 1 ¿sentencing decision and should have imposed the sentences concurrently. When the district court denied that motion, Moton appealed.

Discussion

I.

Moton argues that the state presented insufficient evidence to prove that he violated La. R.S. 14:94(F), illegal use of weapons while committing a crime of violence. He claims the state presented no evidence to prove that he had a gun during the encounter with Rainey on July 20, 2008.

In 2008, La. R.S. 14:94(A) and (F) read as follows:

A. Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
⅝ * * ⅜ ⅜ ⅜
F. Whoever commits the crime of illegal use of weapons or dangerous instru-mentalities by discharging a firearm while committing, attempting to commit, conspiring to commit, or soliciting, coercing, or intimidating another person to commit a crime of violence or violation of the Uniform Controlled Dangerous Substances Law, shall be imprisoned at hard labor for not less then ten years nor more than twenty years, without benefit of parole, probation, or suspension of sentence. If the firearm used in violation of this Subsection is a machine gun or is equipped with a firearm silencer or muffler, as defined by R.S. 40:1751 and R.S. 40:1781, respectively, the offender shall be sentenced to imprisonment for not less than twenty years nor more than thirty years, without benefit of parole, probation, or suspension of sentence. Upon a second or subsequent conviction, under this Subsection, such offender shall be sentenced to imprisonment for not less than twenty years. If the violation of this Subsection, upon second or subsequent conviction, involves the use of a machine gun or a firearm equipped with a firearm silencer or muffler, such offender shall be sentenced to imprisonment for life without benefit of parole, probation, or suspension of sentence.

Aggravated assault, aggravated battery and attempted second degree murder are listed as crimes of violence under La. R.S. 14:2.

(¡When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim 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, supra, 443 U.S. at 319, 99 S.Ct. 2781; State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35.

In this case, we find the evidence sufficient to satisfy the elements of illegal use of weapons while committing a crime of violence. On the morning of the shooting, Moton searched for Rainey and threatened to shoot Chambers’ house where Rainey was located. According to several witnesses, including Rainey, Moton was the person who was a passenger of the white car in the moments before the shooting. James Dennis saw the shooting from inside his nearby house and witnessed both men in the car firing guns down the street. He identified the passenger as a person who was firing a shotgun. One spent shotgun shell was found to the north of the shooting scene, and Dennis overheard the passenger tell the driver to stop so |sthe shells could be removed from the scene. Additionally, Robinson’s report to the police revealed that she had personally seen Moton firing a weapon on July 20, 2008, the day of the first shooting.

The testimony of the various witnesses identifying Moton as the passenger in the white car driven by “Marcus,” the eyewitness account of Dennis who saw the passenger firing a shotgun and Robinson’s eyewitness account of Moton firing a weapon is sufficient evidence to prove beyond a reasonable doubt that Moton was not only armed, but also actually fired a weapon at another person, an aggravated assault. The shooting of the firearm, while circumstantially shown to have been intended as an assault or to harm Rainey, did in fact cause bodily injury to an innocent bystander. This assignment of error is without merit.

II.

In his second assignment of error, Mo-ton argues that evidence was improperly admitted under La. C.E. art. 404(B). Mo-ton argues that because the bill of information charged him with only one count each of illegal use of a firearm and felon in possession of a firearm for an incident “on or about July 20, 2008,” the court improperly admitted, without a Prieur hearing, evidence of a second shooting or “other crimes” by Moton. The date of the second shooting was not clearly established at trial. Moton argues that this lack of notice of the state’s intended use of other crimes evidence entitles him to a new trial.

Specifically, the bill of information in this case charged that “on or about July 20, 2008,” Moton “committed the offense of Illegal Use of a 19Weapon, While Committing a Crime of Violence, as set forth in R.S. 14:94(F)” and “the offense of Possession of a Firearm by a Convicted Felon as set forth in La. R.S. 14:95.1.” During police interviews of witnesses, some of them mentioned a second undated shooting incident that occurred between Moton and Rainey. Descriptions of the second shooting incident were contained in the documentation of police interviews with witnesses and provided to the defense in discovery. It is not apparent that police were dispatched to the second event. Nor did the state charge Moton with any offenses arising out of a second shooting. The cover page of the state’s response, filed in December 2008, stated in part that:

The state intends to introduce at trial all items of evidence which are referred to in the attached reports.

The state does not dispute that a traditional Prieur hearing was never held to determine the admissibility of this evidence pri- or to trial. Yet, defense counsel conceded at a pretrial hearing, that she knew about the event through discovery.

Immediately prior to trial, the trial court conducted the defendant’s motion in li-mine to address Moton’s argument that the testimony of the witnesses should be limited to the events of July 20. The state argued that the dispute between Moton and Rainey was ongoing. The court accepted this explanation and allowed admission of the evidence.

In State v. Rose, 06-0402 (La.2/22/07), 949 So.2d 1236, 1243, the supreme court explained:

It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. La. C.E. art. 404(B)(1); State v. Williams, 96-1023, p. 30 (La.1/21/98), 708 So.2d 703, 725; State v. Prieur, 277 So.2d 126, 128 (La.1973). Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the “substantial risk of grave prejudice to the defendant.” Prieur, 277 So.2d at 128. However, the State may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. art. 404(B)(1). The State must provide the defendant -with notice and a hearing before trial if it intends to offer such evidence. Prieur, 277 So.2d at 130. Even when the other crimes evidence is offered for a purpose allowed under art. 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant’s defense. State v. Martin, 377 So.2d 259, 268 (La.1979); Prieur, 277 So.2d at 130. The State also bears the burden of proving that defendant committed the other crimes, wrongs or acts. State v. Galliano, 2002-2849, p. 2, (La.1/10/03), 839 So.2d 932, 933 (per curiam).

Although a defendant’s prior bad acts may be relevant and otherwise admissible under La. C.E. art. 404(B), the court must still balance the probative value of the evidence against its prejudicial effects before the evidence can be admitted. La. C.E. art. 403. Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La.1983). As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id.; see also, Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”) (Footnote omitted).

InArticle 404(B) specifically provides that “the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial,” which reflects the Prieur ruling. However, not every violation of pretrial procedures, including Prieur violations, requires reversal of a conviction. Before a defendant can complain of such a violation, he must show prejudice. Prieur speaks of the “substantial risk of grave prejudice” to a defendant arising out of inadmissible or surprise admission of other crimes evidence, but does not presume that prejudice. State v. Blank, 04-0204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007); State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996); State v. Burns, 45,539 (La.App.2d Cir.9/22/10), 48 So.3d 344, writ denied, 10-2449 (La.3/4/11), 58 So.3d 473.

The erroneous admission of other crimes evidence due to the state’s failure to give the defense proper notice, or for any other reason, is subject to the harmless error rule because the erroneous introduction of other crimes evidence is a trial error, i.e., an error which occurs during the case’s presentation to the trier of fact, which may be quantitatively assessed in the context of the other evidence. State v. Johnson, 94-1379, (La.11/27/95), 664 So.2d 94, 102. An error is harmless if it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was surely unattributable to that error. State v. Robertson, 06-1537 (La.1/16/08), 988 So.2d 166, 172.

| ipThe issue of Moton’s identity as the shooter and, indeed, his possession and use of a gun at the first incident were contested by him at trial. Thus, under La. C.E. art. 404(B), evidence of the second incident had independent relevance to the July 20, 2008 event to prove Moton’s identity, use of a firearm and intent to shoot the victim.

Moreover, it is undisputed that Mo-ton was made well aware long before trial that the state was in possession of this evidence against him and, as a part of the general statement in the discovery response, intended to use this and other evidence insofar as it was admissible. Thus, although no formal Prieur hearing occurred, the record reflects that the court actually did hear and consider Moton’s argument — via the motion in limine — on this point prior to the commencement of trial. Such pretrial notice by the state and the defendant’s awareness of the prior conduct has been held to be sufficient particular notice of the admission of other crimes evidence to allow for adequate preparation of a defense. State v. Sanders, supra. Thus, Moton was not prejudiced by the technical notice violation. Additionally, we find that the probative value of the evidence outweighed any danger of unfair prejudice. Thus, we conclude that this assignment of error is without merit.

III.

In his third assignment of error, Moton argues that because he did not affirmatively plead self-defense, the trial court erred in assenting to the prosecutor’s request to include a jury charge explaining the so-called “aggressor doctrine,” La. R.S. 14:21. He argues that the charge was not | [3pertinent to the evidence and that it served only to mislead and confuse the jury. La. C. Cr. P. art. 807.

At the conclusion of the evidence and after both sides rested, the defendant objected to the inclusion of the aggressor doctrine in the jury charge, urging that there had been no testimony about self-defense. The state argued that because Rainey had admitted that he shot first at the defendant, and that “people’s notions of self defense are so ingrained,” the aggressor doctrine instruction was warranted. The court agreed with the state, finding that this could be an issue and that the instruction was proper. The jury instruction on this point consisted solely of the reading of La. R.S. 14:21 as follows:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows of or should know that he desires to withdraw and discontinue the conflict.

The facts in this case demonstrate the need for an instruction to the jury on the aggressor doctrine because one of the principal witnesses and Moton’s intended victim admitted that he drew his own handgun and fired it without seeing Moton in possession of a firearm. Thus, the jury understood that the victim shot first on July 20, 2008. Not only did the instruction help explain to the jury this important facet of the law, but it benefitted Moton because it allowed for the jury to consider whether Moton’s actions were justified. Thus, Moton can complain of no prejudice by the inclusion of the charge to the jury.

_h_4lV.

In his final assignment of error, Moton argues that the combined 50-year sentence is too harsh, that the sentences should not have been imposed consecutively, and that the trial court should not have based his sentence in part upon a prior homicide charge against defendant which was dismissed.

For the illegal use of a weapon during a crime of violence conviction, Moton faced a possible 20-year maximum sentence without benefit of parole, probation or suspension of sentence. La. R.S. 14:94(F). Because, however, he was adjudicated a second felony habitual offender under La. R.S. 15:529.1, Moton faced maximum sentencing exposure of 40 years. Thus, for the offense of illegal use of a weapon during a crime of violence, Moton received the maximum sentence. For the possession of a firearm by a convicted felon conviction, Moton faced a sentence of not less than 10 nor more than 20 years, without benefit of parole, probation or suspension of sentence. For that conviction, Mo-ton received the minimum sentence.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or 1^mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Rob inson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988). It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Johnson, 42,323 (La.App.2d Cir.8/15/07), 962 So.2d 1126.

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson, supra; State v. Boudreaux, 41,660 (La.App.2d Cir.12/13/06), 945 So.2d 898, writ denied, 07-0058 (La.11/2/07), 966 So.2d 591; State v. Mitchell, 37,916 (La.App.2d Cir.3/3/04), 869 So.2d 276, writ denied, 04-0797 (La.9/24/04), 882 So.2d 1168, cert. denied, 543 U.S. 1068, 125 S.Ct. 905, 160 L.Ed.2d 801 (2005).

Among the factors to be considered are the defendant’s criminal history, State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); the potential for defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983); State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987); and whether defendant has received a benefit from a plea bargain, State v. Jett, supra; State v. Adams, supra.

The failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. See State v. Boudreaux, supra.

In the absence of allegations of mistake or falsehood, evidence of uncharged offenses is admissible and is a valid factor for consideration in sentencing. State v. Emerson, 31,408 (La.App.2d Cir.12/9/98), 722 So.2d 373, writ denied, 99-1518 (La.10/15/99), 748 So.2d 470; State v. Armstrong, 557 So.2d 1160 (La.App. 2d Cir.1990), writ denied, 564 So.2d 320 (La.1990); State v. Smith, 431 So.2d 838 (La.App. 2d Cir.1983), writ denied, 435 So.2d 463 (La.1983). The sources of information upon which a trial court may rely at sentencing are varied and may include evidence usually excluded from the courtroom at trial, including hearsay and arrest and conviction records. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665. Because the scope of information available to the | issentencing court is so broad, a defendant has the due process right to rebut prejudi-cially false or misleading information that could adversely affect his sentence. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218; State v. Monk, 42,067 (La.App.2d Cir.5/2/07), 956 So.2d 185.

Prior to sentencing, the state filed a sentencing recommendation with the court. That document recited the facts of this offense and included other peripheral information not presented to the jury. According to the memo, Moton had told the police that he had learned to collect his fired cartridge cases from the crime scene from a fellow gang member when Moton was in the Crip Street gang “during another of his shootouts at the Peach Street Apartments in 1995.”

Further, Motoris criminal history was reported as follows:

• October 1997 — Illegal Carrying of Weapons;
• October 1997 — Resisting an Officer;
• October 1997 — Simple criminal damage to property;
• December 1997 — Simple battery, dismissed per La. C. Cr. P. art. 894;
• March 1998 — Possession of Schedule I narcotics;
• March 1998 — Possession of Schedule I narcotics, coupled with an arrest for simple robbery and illegal carrying of weapons;
• Undated — Simple Battery;
• September 1999 — Distribution of Schedule II Narcotics; Motoris only felony conviction;
• May 2002 — arrested for First Degree Murder; charge later dismissed;
• January 2006 — Flight from an Officer;
• January 2006 — Criminal Mischief;
• September 2006 — Simple Battery;
• July 2007 — Simple Battery;
• November 2007 — Resisting an Officer; Interference with an Officer.

119The state reminded the court that Mo-ton, while in jail, had “motivated his brother to coerce witnesses regarding his criminal case,” a reference to the evidence of his jailhouse telephone threats introduced at trial. Also, according to the memo, Moton apparently told police that “his highly successful and prolific drug business was a major factor in his involvement in this offense.”

Included in this lengthy discussion by the state was a recitation of the facts surrounding Motoris arrest for first degree murder in 2002, related to a shocking offense involving the kidnaping, robbery, torture and murder of a military service member. According to the state:

Moton was identified in separate interviews by co-defendants as a principal to the whole crime and specifically as the one who fatally shot [the victim]. Moton escaped justice because witnesses to the crime were not willing to come forward against him for fear of retribution.

A co-defendant was allowed to plead guilty to manslaughter. State v. Jones, 43,115 (La.App.2d Cir.3/19/08), 978 So.2d 1236.

In addition, the state filed an habitual offender bill of information which alleged that Moton was a second felony habitual offender for enhancement of the sentence for his conviction for illegal use of a weapon. The bill relied on Moton’s 1999 drug conviction and the resulting five-year hard labor sentence. According to the minutes, Moton admitted his status as a second felony offender at a hearing on August 18, 2010.

Moton appeared for sentencing on September 2, 2010. No presentence investigation was offered. Motoris counsel made a long detailed argument in favor of leniency for Moton and in opposition to thej^memo filed by the state. Counsel argued that at least some of Motoris criminal history as recited by the state amounted to only arrests, not convictions. Further, counsel argued that the trial court should impose the sentences concurrently, not consecutively, because both of Moton’s instant convictions arose from a single incident.

The trial judge then explained to the defendant the factors under La. C. Cr. P. art. 894.1 which it considered important in imposing sentence. First among these factors was the aggravating factor that the defendant had at least 16 prior arrests, many of which were for serious offenses. Further, the court detailed the remainder of and found applicable nearly all of the other aggravating factors in La. C. Cr. P. art. 894.1.

The evidence adduced at trial proved that Moton was a singularly dangerous individual who was extraordinarily likely to commit further crimes if more lenient sentences were imposed. He first threatened the use of firearms at Chambers’ residence. Moton then armed himself with a shotgun and, along with another man armed with a firearm, went “hunting” for Rainey, whom the defendant believed had wronged his friend. Moton and his accomplice drove repeatedly around the neighborhood looking for Rainey.

Next, Moton and his accomplice ambushed Rainey on the street and unleashed a barrage of gunfire that perforated various houses and cars in the neighborhood and struck an innocent child, seriously wounding him. Only by happenstance and poor marksmanship was further injury to others avoided. While Moton and his companion were trying to hit Rainey with 121 their shots, the shots were fired without regard to the other inhabitants of the neighborhood.

The quantity of gunfire, the wholly illegal motive, the employment of an accomplice who also participated in the gunfire, and the serious injury actually inflicted by the volume of gunfire to an innocent bystander make this the worst of violations for the two crimes in question. Hence, well-above average sentences were justified even prior to reference to the other factors in La. C. Cr. P. art. 894.1.

When those factors are considered, the maximum sentence for illegal use of weapons was justified. Moton was familiar with the criminal justice system; he had over a dozen prior arrests, many of which involved the use of force or violence upon others. Moton admitted to police that he was a drug dealer. The record reveals essentially no mitigating factors. Finally, the record includes a phone call from Moton to his brother where the men were discussing the witnesses to the crime and Moton chillingly made threatening comments suggesting that witnesses be harmed to prevent them from testifying.

The defendant’s behavior and criminal history demonstrate that he is exceptionally likely to commit other crimes if more lenient sentences were imposed. Evidence of his arrest and involvement in the shocking kidnaping/torture/murder supports the consecutive sentences imposed, and the trial court was entitled to rely in part upon that evidence as a justification for the sentence. State v. Cozzetto, supra. There was no allegation that the information was materially false, and the state points out 122that the failure of the prosecution in that case was attributable to the defendant’s intimidation of witnesses, which propensity has been proven by incontrovertible evidence in this case. All of this evidence served as ample justification for the consecutive imposition of the defendant’s sentences. The assignment of error is without merit.

Decree

For the foregoing reasons, we affirm Moton’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

      . At the beginning of each call, an automated system notified the parties that the calls are subject to monitoring and recording.

      . We note one error patent on the face of the record. The trial court imposed no fine although La. R.S. 14:95.1(B) requires the imposition of at least a $1,000 fine upon conviction. However, because Moton is apparently indigent, this Court does not correct this error under such circumstances. See State v. Culp, 44,270 (La.App.2d Cir.7/15/09), 17 So.3d 429.