author: GASKINS, J.

text:
    Betty Jean RUSSELL, Plaintiff-Appellee v. EYE ASSOCIATES OF NORTHEAST LOUISIANA and Hanover Insurance Company, Defendants-Appellants.
    No. 46,525-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Hayes, Harkey, Smith & Cascio, Monroe, LA, by Harry M. Moffett, IV, Laura S. Achord, for Defendants-Appellants Eye Associates of Northeast Louisiana and Hanover Insurance Co.
    Crawford & Ogg, Monroe, LA, by Brian E. Crawford, Ramsey L. Ogg, for Defendant-Appellee LAMMICO.
    G. Greg Green, for Plaintiff-Appellee.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   GASKINS, J.

|, The defendants, Eye Associates of Northeast Louisiana and Hanover Insurance Company, appeal a trial court ruling granting summary judgment in favor of the Louisiana Medical Mutual Insurance Company (“LAMMICO”), essentially finding that the plaintiffs claim was based in tort and not in medical malpractice. For the following reasons, we reverse the trial court judgment and remand for further proceedings.

FACTS

The plaintiff, Betty Jean Russell, went to Eye Associates of Northeast Louisiana (“Eye Associates”) on June 27, 2008, with complaints associated with diabetic retino-pathy. Ms. Russell, who was 78 years old, was taken to her appointment by her granddaughter, Ashley Nicole Dixon. Ms. Russell was able to get out of the car and into her wheelchair. Ms. Dixon wheeled the plaintiff into the office. When Ms. Russell was called to an examination room for her appointment, an employee of Eye Associates attempted to have her move from her wheelchair to another chair and then back into her wheelchair. After standing unsupported, Ms. Russell fell, suffering shoulder injuries and a fracture of her left distal femur.

Personnel at Eye Associates helped Ms. Russell up from the floor and placed her back in her wheelchair, but did not call for an ambulance. Ms. Russell was driven to the emergency room by Ms. Dixon. The comminuted fracture of the left distal femur was surgically repaired. Prior to the injury, Ms. Russell was able to walk some and used the wheelchair on occasion. Ms. Russell claimed that after her injury, she was no longer able to walk at all.

|2The plaintiff filed suit against Eye Associates and its general liability insurer, Hanover Insurance Company (“Hanover”). The plaintiff also filed a petition to form a medical review panel.

LAMMICO, the professional liability insurer for Eye Associates, filed a petition of intervention. Ms. Russell filed an answer, cross-claim, and third party demand against LAMMICO and Eye Associates, reurging her allegations from her original petition for damages and from the petition for formation of a medical review panel.

Hanover filed a motion for summary judgment arguing that it provided business property and business liability insurance to Eye Associates, but did not provide insurance for injuries arising out of the furnishing of professional services. Hanover contended that Ms. Russell was injured while employees of Eye Associates were rendering professional services.

LAMMICO filed its own motion for summary judgment, arguing that medical treatment was not being rendered to Ms. Russell at the time of her accident; therefore LAMMICO was not liable for coverage for the plaintiffs injuries. LAMMICO contended that Ms. Russell’s fall was not treatment-related and was not caused by a dereliction of professional skill.

A hearing was held on the motions for summary judgment. The trial court stated that the evidence did not establish that a health care provider was at fault or breached a standard of care causing the injury involved here. According to the trial court, it considered the factors outlined in Coleman v. Deno, 2001-1517 (La.1/25/02), 813 So.2d 303, and found that those Isfactors did not apply to this case. The trial court determined that this was not a medical malpractice case; therefore it granted summary judgment in favor of LAMMICO, dismissing the plaintiffs claims against the company. The ruling was certified as a final appealable judgment under La. C.C.P. art. 1915. The motion for summary judgment on behalf of Hanover was denied.

Hanover applied for supervisory review of the denial of its motion for summary judgment. On March 16, 2011, this court denied Hanover’s writ application on the showing made, stating that Hanover had an adequate remedy by appeal of the granting of the motion for summary judgment in favor of LAMMICO.

Hanover appealed the grant of summary judgment in favor of LAMMICO, arguing that the trial court erred in basing its insurance coverage decision on the Louisiana Medical Malpractice Act (“LMMA”), and the factors set forth in Coleman v. Deno, supra, instead of applying the policy language set forth in LAMMICO’s professional liability insurance policy.

Hanover also contends that the trial court erred in granting LAMMICO’s motion for summary judgment because the undisputed facts and evidence establish that the plaintiffs injuries occurred as a result of a “medical incident,” as defined by the LAMMICO policy, and therefore, LAMMICO was not entitled to judgment as a matter of law.

LEGAL PRINCIPLES

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed [4for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Amos v. Crouch, 46, 456 (La.App.2d Cir.6/29/11), 71 So.3d 1053. Appellate courts review summary judgments de novo, under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Jenkins v. Willis Knighton Medical Center, 43, 254 (La.App.2d Cir.6/4/08), 986 So.2d 247. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A fact is material if its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Amos v. Crouch, supra.

Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Jenkins v. Willis Knighton Medical Center, supra. The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that he has evidence which, if believed, could satisfy his evidentiary burden of proof at trial. If he has no such evidence, then there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Jenkins v. Willis Knighton Medical Center, supra.

The moving party bears the burden of proof. However, when he will not bear the burden of proof at trial on the matter before the court on | Bsummary judgment, the movant is not required to negate all essential elements of the adverse party’s claim; he need only point out an absence of factual support for one or more essential elements of the adverse party’s claim. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material faót and summary judgment is appropriate. La. C.C.P. art. 966(C)(2).

On a motion for summary judgment, the district court cannot make credibility determinations or weigh conflicting evidence. In deciding a motion for summary judgment, the district court must assume that all affiants are credible. Nicholson v. Horseshoe Entertainment, 46,081 (La. App.2d Cir.3/2/11), 58 So.3d 565, writ denied, 2011-0679 (La.5/20/11), 63 So.3d 980.

A summary judgment may be rendered on the issue of insurance coverage alone although there is a genuine issue as to liability or the amount of damages. Beck v. Burgueno, 43,557 (La.App.2d Cir.9/17/08), 996 So.2d 404. When determining whether a policy affords coverage for an incident, the insured bears the burden of proving that the incident falls within the policy’s terms. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. An insurer seeking to avoid coverage through summary | (-judgment bears the burden of proving that some provision or exclusion applies to preclude coverage. Beck v. Burgueno, supra.

An insurance policy is a contract between the insured and the insurer and has the effect of law between the parties. Because an insurance policy is a contract, the rules established for the construction of written instruments apply to contracts of insurance. The parties’ intent, as reflected by the words of an insurance policy, determines the extent of coverage, and the intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the policy, unless the words have acquired a technical meaning. La. C.C. art. 2047; Washington v. McCauley, 45,916 (La.App.2d Cir.2/16/11), 62 So.3d 173, unit denied, 2011-0578 (La.4/29/11), 62 So.3d 115.

If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written and a reasonable intei’pretation consistent with the obvious meaning and intent of the policy must be given. Washington v. McCauley, supra. However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Elliott v. Continental Casualty Company, 2006-1505 (La.2/22/07), 949 So.2d 1247. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Washington v. McCauley, supra. The determination of whether a contract is clear or ambiguous is a question of law. Washington v. McCauley, supra.

|7The LMMA is found in La. R.S. 40:1299.41, et seq. A health care provider is defined in La. R.S. 40:1299.41(A)(10) as follows in pertinent part:

“Health care provider” means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician, ... registered or licensed practical nurse or certified nurse assistant, ... nurse practitioner, clinical nurse specialist, ... optometrist, ... or any professional corporation a health care provider is authorized to form under the provisions of Title 12 of the Louisiana Revised Statutes of 1950, or any partnership, limited liability partnership, limited liability company, management company, or corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.

Malpractice is defined in La. R.S. 40:1299.41(A)(1S) as follows:

“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

In Coleman v. Deno, supra, the Louisiana Supreme Court listed six facts to consider in determining whether certain conduct by a qualified healthcare provider constitutes malpractice as defined by the LMMA. Those factors are: (1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of |scare was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional.

DISCUSSION

Hanover argues that the trial court erred in evaluating the matter under the LMMA and the factors contained in Coleman v. Deno, supra, rather than looking to the language of the LAMMICO policy. Hanover also argues that the trial court erred in granting summary judgment in favor of LAMMICO because the undisputed facts and evidence established that the plaintiffs injuries occurred as a result of a “medical incident” as defined in the LAMMICO policy.

LAMMICO issued a professional liability policy to Eye Associates. The policy provides coverage for medical incidents arising out of professional services. A “medical incident” is defined as “a single act or omission or a series of related acts or omissions which result or is likely to result, in damages, arising out of the rendering, or failure to render, professional services to any one person by the insured, or by any person for whose acts or omissions the insured is legally responsible; a single act or omission or a series of related acts or omissions by the insured shall be considered one medical incident.” (Emphasis supplied in original.)

|9The term “professional services” is defined in the policy as “the furnishing of professional healthcare services including medical treatment, making [a] medical diagnosis, rendering medical opinions or medical advice ... performing management and administrative duties for an entity shown as an insured in this policy....” (Emphasis supplied in original.)

Ms. Russell gave a deposition which was included in Hanover’s motion for summary judgment. The plaintiff said that she went to Eye Associates for her appointment and was taken to an exam room. She claims that an Eye Associates employee, who was wearing scrubs, put her in one of their wheelchairs to do an eye examination. She said that a machine was used to examine her eyes. The Eye Associates employee then wanted her to look into another machine. This required Ms. Russell to get back into her wheelchair. While trying to move from the Eye Associates’ chair to her wheelchair, she fell.

Ms. Dixon, who drove her grandmother to the appointment, also gave a deposition in which she stated that Ms. Russell was called back to an exam room by a lady wearing scrubs. The lady asked Ms. Russell to move to an exam chair, which she did. According to Ms. Dixon, a machine in the room would not reach because Ms. Dixon was not able to sit up straight. The Eye Associates employee then asked Ms. Russell to move back to her wheelchair to continue the examination. Ms. Dixon said that in the course of this maneuver, Ms. Russell said she needed to stop, and then she fell.

The definition of malpractice in La. R.S. 40:1299.41(A)(10), includes unintentional torts by healthcare providers and their employees based on Imhealth care or professional services rendered. The LAMMI-CO policy provides professional liability coverage for incidents arising out of the rendering or failure to render professional services. Under the terms of the policy, professional services include treatment, diagnosis, rendering medical opinions or advice, or performing management or administrative duties for the insured.

In arguing that this matter did not meet the statutory or policy definitions of medical malpractice, LAMMICO went through a discussion of the factors set forth in Coleman v. Deno, supra, set forth above. In particular, LAMMICO contends that the pertinent act or omission did not involve the assessment of the patient’s condition. LAMMICO pointed to the deposition testimony of Ms. Dixon where she stated that her grandmother was transferring from one chair back to her wheelchair so that her eye exam could be conducted. LAMMICO contended that no doctor or health care provider was involved in the accident and no assessment of the plaintiffs condition had taken place. However, we note that Ms. Russell stated that the Eye Associates employee involved in this accident had already used one type of machine to examine her eyes and was attempting to position the plaintiff for the use of another machine in order to continue her eye examination. An examination of Ms. Russell’s eyes was necessary in order to assess and treat her condition.

This creates a genuine issue of material fact as to whether the accident constitutes a medical incident which occurred in connection with the rendering of professional services, satisfying the statutory definition ofjnmalpractice and meeting the terms of the LAMMICO policy for coverage. We also note that LAMMICO has failed to show that the employee involved in the accident was not a health care provider rendering professional services within the definition of the LMMA. This also is a disputed issue of fact. As pointed out at the hearing on the motion for summary judgment, the employee involved in this incident was only recently located. If the parties choose to obtain her statement, it would have bearing as to what her professional responsibilities were, whether the plaintiff was receiving professional services at the time of the accident, and whether this was a medical incident under the terms of the LAMMICO policy as well as under the LMMA. The trial court erred in granting summary judgment in favor of LAMMICO. That judgment is reversed and the matter is remanded to the trial court for further proceedings.

| ^CONCLUSION

For the reasons stated above, we reverse the trial court ruling granting summary judgment in favor of LAMMICO and remand the matter to the trial court for further proceedings. All costs in this court are assessed to LAMMICO.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

      . LAMMICO also argues that the jurisprudence supports its position that the insurance policy does not cover the plaintiff’s accident. According to LAMMICO, the case of Rachal v. Tenet Healthcare Systems, 2003-0630 (La. App.4th Cir. 11/12/03), 860 So.2d 1175, writ denied, 2004-0205 (La.3/26/04), 871 So.2d 350, supports its position. In Rachal, a patient fell in a hospital room after hospital staff failed to render assistance when requested. The plaintiff alleged that the sole and proximate cause of the fall was the slippery condition of the floor. The fourth circuit found that this matter did not fall under the LMMA, but was a general tort case.
      See and compare Meseke v. St. Francis Medical Center, 40, 317 (La.App.2d Cir. 10/26/05), 914 So.2d 136, in which a hospital patient fell while trying to go to the bathroom after repeated requests for assistance were unanswered by hospital staff. This court found that the claim was based in medical malpractice where the plaintiff alleged that the hospital failed to maintain proper safeguards to prevent the fall, neglected to notify the proper physicians after the fall, and failed to provide medical care consistent with appropriate standards. We distinguished the case from Rachal v. Tenet Healthcare Systems, supra, in which the plaintiff, who fell in a hospital room while attempting to walk to the bathroom, only complained that the floor was slippery.
      By contrast, other cases have found that the LMMA applied to such claims. The case most on point with the facts in the present matter is Harris v. Sternberg, 2001-1827, 2001-2170 (La.App.4th Cir.5/22/02), 819 So.2d 1134, writ denied, 2002-1617 (La.9/30/02), 825 So.2d 1198. In Harris, a patient being treated for morbid obesity fell while getting onto a special scale at the office of the doctor treating him for that condition. He was not being assisted by the doctor or the doctor’s employees at the time of the accident. The general liability insurer and the professional liability insurer each filed motions for summary judgment. The fourth circuit applied the factors enumerated in Coleman v. Deno, supra, and found that the incident complained of by the plaintiff was covered by the LMMA.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Justin Terrell ATKINS, Appellant.
    No. 46,613-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.
    Louisiana Appellate Project, by Carey J. Ellis, III, Justin Terrell Atkins, for Appellant.
    Jerry L. Jones, District Attorney, Robert Nicolas Anderson, John T. Pham, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW and MOORE, JJ.
   DREW, J.

_]_jJustin Terrell Atkins was unanimously convicted at jury trial of the crimes of armed robbery, La. R.S. 14:64 and aggravated battery, La. R.S. 14:34. Both crimes were part of the same event, but involved different victims. He was sentenced to 35 years at hard labor without benefits on the armed robbery, consecutive with the maximum 10 years at hard labor on the aggravated battery.

Atkins now appeals, urging insufficiency, a tainted lineup identification, and an excessive sentence. We affirm in all respects.

FACTS

On January 2, 2009, Robert Jones, Howard Bishop, and Tom Harris were drinking together at Jones’ modest residence on Jackson Street in Monroe. All three men lived in the neighborhood. Bishop and Jones had just returned to the residence after cashing Jones’ YA check. Atkins knew of the transaction.

Atkins kicked in the door, barged into the home, and demanded money from Jones, who refused. Atkins began beating Jones with the butt of a firearm. Harris intervened and was also struck with the firearm. Bishop witnessed all of this, even observing Atkins take the money from Jones’ pocket.

12Lurking at the door during the robbery was a man named Lawrence Horton, known in the neighborhood only as “O.” Horton had been living with Harris for a few months. That morning, however, Harris ordered him to leave. Harris had known Horton for about a year.

A few days after the robbery, Harris later found some correspondence at the residence which bore O’s real name: Lawrence Horton.

Eight days after the robbery, Horton sent word that he wanted to speak with the police. When Detective Jeffrey Dowdy questioned him, Horton admitted his part in the robbery. He blamed mainly Atkins for this crime.

After an arrest warrant was secured, Atkins was arrested.

Harris later obtained a photo of the robber, whom he identified as “J. Money.” Harris gave the photo to the detective, claiming that it depicted the person who beat him, and who had beaten and robbed Jones.

Atkins was convicted and sentenced as outlined above.

ISSUES

Sufficiency

Our law on appellate review for sufficiency of the evidence is well settled.

Though Bishop and Harris had been drinking at the time of the crime, they had no difficulty in identifying Atkins as the armed robber. Bishop immediately picked out Atkins in a lineup. Bishop and Harris pointed out the defendant at trial, in the presence of the jury. Positive identification by one witness is sufficient to support a conviction. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297.

14At the time of the robbery, the crimes of conviction bore the same elements as each still does today.

Harris and Bishop each identified Atkins as the man who beat them with the butt of a firearm, and who committed the robbery. In the early investigation, codefendant Horton had implicated Atkins and himself in this brutal crime. A rational jury had ample evidence by which to justify the verdicts of guilty.

Lineup

Atkins’s claim that he was misidentified is weakened by these facts:

• The robber made no attempt to hide his face;

• The robbery occurred midday;

• Harris and Bishop had ample opportunity to observe the intruders;

• Both Harris and Bishop already knew Atkins and his accomplice;

• Bishop observed the photo lineup a few days after the crime, fingering Atkins; and

• Both men identified Atkins in open court, in full view of the jury.

|sLess than two weeks after the armed robbery and aggravated battery, Harris found and provided Det. Dowdy with a photo of Atkins.

Less than two weeks after the crime, Bishop quickly picked Atkins out of a photo lineup, which is preserved in the record. We have reviewed it, and find no suggestiveness or impropriety in its makeup. On the contrary, it is close to an ideal lineup; all participants look remarkably similar.

Our law on appellate review of a motion to suppress an identification is well settled.

The lineup was fair and reasonable. The jury was able to assess the witnesses in their respective identifications of Atkins at trial. Perhaps most [ (¡importantly, Harris, Bishop, and Atkins all ran in the same neighborhood. They were already familiar with one another, even if only by nicknames.

This assignment of error is meritless.

Excessiveness

Our law on the appellate review of sentences for excessiveness is well settled.

These unprovoked and violent crimes are inexcusable. We find this slightly less than midrange sentence to be more than reasonable. The sentence certainly does not shock the conscience.

With several felony convictions, Atkins has never responded to supervision. He is becoming more violent, and he viciously preyed upon some neighborhood men.

We have reviewed the presentence investigation report and find nothing to indicate that more leniency is required here. The sentencing judge did a thorough job in explaining his reasons for this sentence. There is no error.

|7DECREE

The conviction and sentence are AFFIRMED.

      . Atkins was not billed under the sentencing enhancement statute, La. R.S. 14:64.3, which would have added five years to the minimum and maximum terms for the armed robbery conviction, raising his exposure for that offense to 15-104 years at hard labor, without benefits. He faced, and received, a maximum of 10 years at hard labor on the aggravated battery conviction, consecutive to the other prison sentence.

      . "O” had followed Jones and Bishop to the store late that same morning. There he had observed Jones cash his check at the “Cracker Barrel.’’

      . Horton had paid very little rent during the months he lived with Harris. The last straw was when Harris was informed that Horton had thrown a party at the home of Harris, while Harris was in Baton Rouge working. Harris ordered Horton out, and Horton left, a couple of hours before the robbery.

      . This was the nickname of the defendant, Justin Terrell Atkins.

      .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, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (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, 2008-0499 (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 fact finder. State v. Pigford, 2005-0477 (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, 2009-0310 (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, 2009-0725 (La. 12/11/09), 23 So.3d 913.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/6/09), 21 So.3d 299.
      Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36, 180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied.

      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.

      . Jones did not testify at trial, as he died less than a week after this traumatic event. Surprisingly, the autopsy indicated that his death was unrelated to the brutal beating he took.

      . La. R.S. 14:64. Armed robbery
      A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.
      La. R.S. 14:34. Aggravated battery
      Aggravated battery is a battery committed with a dangerous weapon. Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.

      . Sometimes we complicate cases unnecessarily. Not here. Consider this interesting and telling trial exchange between defense counsel and Mr. Harris, discussing the fact that some neighbors brought him a photo of Atkins about a week after the robbery:
      Q: "How did they know to give you a picture of Mr. Atkins?”
      A: "Because he the one hit me in the head.”

      . In seeking to suppress an identification, the defendant must prove the procedure used was suggestive and that the totality of the circumstances presented a substantial likelihood of misidentification. State v. Martin, 595 So.2d 592 (La.1992); State v. West, 561 So.2d 808 (La.App. 2d Cir.1990), writ denied, 566 So.2d 983 (La.1990). The U.S. Supreme Court has approved several factors for evaluating whether the reliability of an identification may outweigh the suggestiveness of the procedures employed. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La. 10/31/97), 703 So.2d 12. The factors are: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the victim’s prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation.
      A lineup is unduly suggestive if the procedure used focuses attention on the defendant. For example, distinguishing marks on the photos may single out the accused, or suggestiveness can arise if sufficient resemblance of physical characteristics and features does not reasonably test identification. State v. Tucker, 591 So.2d 1208 (La.App. 2d Cir.1991), writ denied, 594 So.2d 1317 (1992), citing State v. Robinson, 386 So.2d 1374 (La.1980).
      Photographs used in a lineup are suggestive if they display the defendant so singularly that the witness's attention is unduly focused on the defendant. State v. Smith, 430 So.2d 31 (La.1983); State v. Tucker, supra. It is not required that each person whose photograph is used in the lineup have the exact physical characteristics as the defendant. What is required is sufficient resemblance to reasonably test identification. State v. Smith, supra; State v. Davis, supra.

      Even if suggestiveness is proven by the defendant, it is the likelihood of misidentification, and not the mere existence of suggestiveness, which violates due process. State v. Williams, 375 So.2d 364 (La.1979); State v. Davis, supra.

      . 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 factor 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. Nickles, 46,189 (La.App.2d Cir.4/13/11), 60 So.3d 728. 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 likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.
      Second, a sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeful and needless imposition of pain and suffering. State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1; State v. Nickles, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Nickles, supra.


text:
    STATE of Louisiana, Appellee v. Lawrence Ryan CHISOLM, Appellant.
    No. 46,640-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Margaret Smith Sollars, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Charles Jacobs, Charles A. Smith, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   GASKINS, J.

_JjThe defendant, Lawrence Ryan Chi-solm, was convicted of felony carnal knowledge of a juvenile and sentenced to seven years at hard labor, with credit for time served. The defendant now appeals. We affirm the defendant’s conviction and sentence.

FACTS

In June 2004, the defendant and his girlfriend, E.W.O., were living together in Bossier City, Louisiana, with their two very young children. E.W.O.’s 13-year-old sister, M.O., frequently babysat for the children. One night, E.W.O. woke up to discover the 23-year-old defendant was not in their bedroom. She found him in their children’s bedroom with M.O., who was wearing only a T-shirt, and no underwear. The defendant was wearing only boxer shorts and had an erection. After the defendant and E.W.O. began arguing, M.O. ran home. In compliance with M.O.’s request, E.W.O. did not tell anyone about this incident.

Several months later, M.O.’s mother, H.W.O., was cleaning M.O.’s bedroom and discovered a note written by M.O. After reading the note, H.W.O. became convinced that M.O. and the defendant had been involved sexually. Thereafter, the Bossier City Police Department was contacted and an investigation was initiated. During an interview with Detective Samuel Wyatt, M.O. admitted that she and the defendant had engaged in sexual intercourse on one occasion and that he had fondled her at other times. The record indicates that this one act of sexual intercourse occurred about one month before E.W.O. found them together, or in approximately May 2004.

lain November 2004, a warrant was issued and executed for the defendant’s arrest. After reading the defendant his Miranda rights, Detective Wyatt and the defendant discussed the allegations. During the conversation, the defendant admitted to Detective Wyatt that he had sex with M.O. on one occasion.

In January 2005, the defendant was charged by bill of information with felony carnal knowledge of a juvenile, in violation of La. R.S. 14:80(A)(1). Following a jury trial in February 2008, the defendant was convicted as charged.

In May 2008, the trial court denied the defendant’s motions for new trial and for post-verdict judgment of acquittal. The trial court then sentenced the defendant to imprisonment at hard labor for seven years with credit for time served. The defendant’s timely motion to reconsider sentence was denied.

In January 2011, the defendant was granted an out-of-time appeal. He now asserts three assignments of error before this court.

OTHER CRIMES EVIDENCE

The defendant argues that the trial court erred in denying his motion for a mistrial after the victim’s sister made two references during her testimony to other crimes evidence pertaining to the defendant.

During cross-examination of E.W.O., defense counsel asked her about her previous living arrangements with the defendant. E.W.O. stated the following:

A: Yes, I had had our first daughter ... [in April 2001]. [The defendant] was incarcerated at the time of my [sic] birth. And after | she was released from prison or the net recon brig he was in he was paroled out to his parents’ house and that’s when I moved to Georgia.

Defense counsel did not object to the answer, but continued questioning E.W.O. about her family life. The state, however, eventually objected to the relevance of defense counsel’s line of questioning, and a sidebar conference was held. At this point, defense counsel requested a mistrial based on E.W.O.’s testimony that the defendant had previously been incarcerated. The trial court denied the defense’s request since the other crimes evidence had been elicited by the defense.

Later, defense counsel asked E.W.O. about her criminal history:

Q: Okay, can you please share with the Court the nature of the offense?
A: It was December of 2001, me and Mr. Chisolm were both arrested for theft where I took the charge for both of us so he wouldn’t be in trouble because he was on parole at the time.

However, defense counsel did not make a contemporaneous objection to this response or request a mistrial or admonition. As a result, he did not preserve for appeal any complaints he might have had with this particular statement. La. C. Cr. P. art. 841.

Law

La. C. Cr. P. art. 770(2) provides for a mandatory mistrial when a remark, within the hearing of the jury, is made by the judge, the district attorney, or a court official, and such remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. However, remarks by witnesses fall under the discretionary mistrial provisions of La. C. Cr. P. art. 771. When a witness prefers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible, upon request of the defendant, the defendant’s remedy is a request for an admonition or a mistrial pursuant to La. C. Cr. P. art. 771. State v. McGee, 39,336 (La.App.2d Cir.3/4/05), 895 So.2d 780.

Unsolicited statements and spontaneous conduct of a witness are not usually grounds for a mistrial. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753. Mistrial under La. C. Cr. P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. Moreover, mistrial is a drastic remedy which is only authorized where substantial prejudice will otherwise result to the accused. State v. Gullette, supra.

The decision to grant or deny a mistrial for prejudicial conduct rests within the trial court’s discretion and will not be disturbed absent an abuse of discretion. State v. McGee, supra; State v. Wright, 40,945 (La.App.2d Cir.5/19/06), 931 So.2d 432, writ denied, 2006-1727 (La.3/16/07), 952 So.2d 694.

Even when other crimes evidence is improperly admitted at trial, the erroneous admission is a trial error and is subject to harmless error analysis on appeal. Trial error is harmless where the verdict rendered is surely unattributable to the error. State v. McGee, supra; State v. Gullette, supra.

The Louisiana Supreme Court has consistently held that the state cannot be charged with testimony elicited by defense counsel implying that |5the defendant had previously committed other crimes and that the defendant cannot claim reversible error on the basis of that evidence which he elicited. State v. Tribbet, 415 So.2d 182 (La.1982); State v. Kimble, 375 So.2d 924 (La.1979). In State v. Jones, 588 So.2d 805 (La.App. 2d Cir.1991), this court rejected, in absence of any pattern of unresponsiveness or improper intent on the part of the witness, a defendant’s claim that he should have been granted a mistrial after his attorney asked a police officer an open-ended question and his response referred to the defendant’s commission of another crime. See also State v. Johnson, 2006-1235, pp. 8-10 (La.App.1st Cir.12/28/06), 951 So.2d 294, 300-301; State v. Chaisson, 2009-119, pp. 21-25 (La.App.3d Cir.10/7/09), 20 So.3d 1166, 1180-1182.

Discussion

The trial court did not abuse its discretion by denying the defendant’s request for a mistrial. The defendant elicited the complained of statement from the witness and therefore cannot claim reversible error on the basis of the evidence he elicited. State v. Tribbet, supra. Defense counsel questioned E.W.O. about where she lived at various times. E.W.O.’s answer in which she mentioned the defendant being incarcerated at the time of their daughter’s birth was given to explain her subsequent move to Georgia to be with him after he was released on parole. Her response appeared to merely relate her move to Georgia in connection to a memorable event, i.e., the defendant’s release to his parents’ home there.

| ^Furthermore, even if there was any error in the trial court’s ruling, it was undoubtedly harmless error. The evidence adduced at trial was clearly sufficient to support the jury’s finding of the defendant’s guilt.

This assignment of error is meritless.

INCULPATORY STATEMENT

The defendant contends that the trial court erred in allowing into evidence the defendant’s inculpatory statement to Detective Wyatt which was made while the detective was transporting him following his arrest.

Prior to Detective Wyatt’s trial testimony, a hearing was held outside the presence of the jury to determine if the incul-patory statement made by the defendant was free and voluntary. Detective Wyatt testified that after the defendant was arrested, he transported the defendant to the Bossier City Police Department in his police vehicle. After the defendant was placed in the car, the detective informed him of his rights under Miranda v. Ari zona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant then began discussing the case with Detective Wyatt. The defendant admitted that he had made a “stupid mistake” and had sexual intercourse with M.O. one time; however, he insisted that he had not forced the girl to have sex with him. When they arrived at their destination, Detective Wyatt read the defendant his Miranda rights again before attempting to take a recorded statement. This time, the defendant refused to talk and invoked his right to an attorney. All questioning ceased. Detective Wyatt testified that he did not use force, coercion or promises to induce the defendant to make the statement in the police vehicle. The trial court held that the statement was |7free and voluntary and allowed its admission. Specifically, the court noted that the defendant was read his Miranda rights before he made the statement to the detective.

Law

Before the state may introduce a confession into evidence, it must demonstrate that the statement was free and voluntary and not the product of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La. C. Cr. P. art. 703 D; State v. Ashley, 44,655 (La.App.2d Cir.9/23/09), 22 So.3d 1045, writ denied, 2009-2305 (La.4/23/10), 34 So.3d 271; State v. Freeman, 45,127 (La.App.2d Cir.4/14/10), 34 So.3d 541, writ denied, 2010-1043 (La.11/24/10), 50 So.3d 827. If a statement is the product of custodial interrogation, the state additionally must show that the person was advised before questioning of his rights under Miranda v. Arizona, supra. A trial court’s finding as to the free and voluntary nature of a statement carries great weight and will not be disturbed unless not supported by the evidence. State v. Freeman, supra. Testimony of the interviewing police officer alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Ashley, supra.

Spontaneous and voluntary statements made while the defendant is in custody and not given as a result of police interrogation or compelling influence are admissible as evidence even when made without the Miranda |swarning. State v. Caston, 40,054 (La.App.2d Cir.9/28/05), 912 So.2d 413. A trial court’s determination on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned unless clearly contrary to the evidence. State v. Caston, supra.

Discussion

The trial court did not err by allowing the defendant’s statement to Detective Wyatt into evidence. The trial court’s determination that the defendant’s statement was. not the result of fear, duress, intimidation, menaces, threats, inducements or promises was based on the testimony of Detective Wyatt, and the court’s conclusions on credibility and weight are entitled to great deference. Furthermore, Detective Wyatt testified that he read the defendant his Miranda rights prior to engaging with him in a conversation regarding the case. It was after the defendant was given his Miranda warnings that he made the inculpatory statement, admitting that he had sex with M.O. When the defendant arrived at the police station and invoked his right to an attorney, his request was scrupulously honored.

This assignment of error lacks merit.

SENTENCING DELAYS

The defendant contends that the trial court committed error patent when it failed to obtain an express waiver of the sentencing delays after it denied his post-trial motions and that his sentence must be vacated as a result.

On May 13, 2008, immediately after denying the defendant’s motions for new trial and post-verdict judgment of acquittal, the trial court inquired |9of defense counsel, “Okay. Ready for sentencing?” Defense counsel replied, ‘Yes, sir, Your Honor.” The trial court then imposed sentence upon the defendant.

La. C. Cr. P. art. 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Absent a showing that a defendant was prejudiced by the failure to observe the waiver set forth in La. C. Cr. P. art. 873, an appellate court is not required to remand for resentencing. State v. Drane, 36,230 (La.App.2d Cir.9/18/02), 828 So.2d 107, writ denied, 2002-2619 (La.3/28/03), 840 So.2d 566; State v. Russell, 42,479, p. 22 (La.App.2d Cir.9/26/07), 966 So.2d 154, 169, unit denied, 2007-2069 (La.3/7/08), 977 So.2d 897; State v. Mosley, 43,669 (La.App.2d Cir.10/22/08), 996 So.2d 1138. This is especially true when a substantial amount of time has passed between the defendant’s trial and sentencing. State v. White, 404 So.2d 1202 (La.1981); State v. Keleman, 444 So.2d 1328 (La.App.2d Cir.1984), unit denied, 447 So.2d 1069 (La.1984).

The defendant neither raises any objection regarding the sentence imposed nor cites any prejudice resulting from the trial court’s failure to delay sentencing. Also, we have not found any indication that he was |inactually prejudiced by the alleged error, especially considering that three months passed between the defendant’s trial and his sentencing hearing. Therefore, we find that any error to observe the sentencing delay was harmless. State v. Drane, supra.

This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . In accordance with La. R.S. 46:1844(W), the victim is referenced only by her initials. To further protect her privacy, her sister and mother are also referenced by initials.

      . At the hearing, Detective Wyatt also testified that after his interview with M.O., but before the defendant's arrest, he called the defendant’s cell phone. He informed the defendant that he was conducting an investigation and asked him to come to the police department to talk. The defendant said that he knew that the investigation was about him having sex with M.O.; he then refused to come in. The trial court found this statement was admissible as an excited utterance and allowed Detective Wyatt to testify about it. On appeal, the defendant does not complain of this ruling.

      . Because the defendant failed to allege prejudice, we — like the court in State v. Russell, supra — find it unnecessary to even consider whether defense counsel’s statement constituted an implied waiver under State v. Clark, 35,272 (La.App.2d Cir. 12/5/01), 803 So.2d 280.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Gregory Glenn CALDWELL, Appellant.
    No. 46,645-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Charles Rex Scott, District Attorney, Kodie Smith, Brian H. Barber, Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

11 After a jury trial, Defendant, Gregory Glenn Caldwell, was convicted of theft of goods with a value of $500 or more, in violation of La. R.S. 14:67.10. He was subsequently adjudicated a fourth-felony offender and sentenced to 30 years’ imprisonment at hard labor without the benefit of probation or suspension of sentence. Defendant now appeals, arguing that his sentence is unconstitutionally excessive. For the reasons stated herein, we affirm.

FACTS

On May 13, 2010, the State filed a bill of information charging Defendant with one count of theft of goods valued at $820. See La. R.S. 14:67.10. Defendant was tried before a jury on September 13, 2010.

The State’s sole witness was Ruby Cooper, an employee of Dillard’s Department Store in Mall St. Vincent in Shreveport, Louisiana. Ms. Cooper testified that, on March 6, 2010, she was conducting store surveillance, which was recorded on DVD. Ms. Cooper testified with regard to the events taking place on the DVD as it was played for the court.

Ms. Cooper testified that she saw Defendant enter the Dillard’s store via the east entrance where the men’s department is located. Defendant began browsing around in the area of the store where the Polo merchandise was located and appeared at times to be talking to someone on his cell phone. Ms. Cooper then saw Defendant remove a Dillard’s shopping bag from his pocket and place merchandise from one of the display tables inside the bag. Defendant did not take the bag to any registers to pay for the items and proceeded to walk out of the store.

|2Ms. Cooper then advised Dillard’s manager Matthew Sitter via radio communication that Defendant was exiting the store with stolen merchandise. Mr. Sitter approached Defendant outside the store and recovered the bag of stolen items from Defendant. In the bag recovered from Defendant, Ms. Cooper counted ten shirts with a total value of $820.

After presenting the testimony of Ms. Cooper, the State rested its case. Defendant chose not to testify and did not call any witnesses. When the trial ended, the jury deliberated and returned a verdict of guilty as charged.

On September 15, 2010, the State filed a habitual offender bill of information alleging Defendant to be a fourth-felony offender. Prior to the adjudication hearing, Defendant filed a Dorthey motion seeking a downward deviation from the statutory sentencing provisions of the habitual offender statute. State v. Dorthey, 623 So.2d 1276 (La.1993). The adjudication hearing was held on October 27, 2010, during which the State presented evidence of Defendant’s three prior felony convictions:

1) On March 9, 1998, in the First Judicial District Court under lower court docket number 188,453, Defendant pled guilty to middle grade felony theft;
2) On April 6, 2000, in the First Judicial District Court under lower court docket number 207,142, Defendant pled guilty to theft of goods;
3) On September 9, 2003, in the First Judicial District Court under lower court docket number 224,349, Defendant pled guilty to one count of carjacking and one count of aggravated flight from an officer.

Din light of his most recent felony theft offense and his three prior felony convictions, the trial judge adjudicated Defendant a fourth-felony offender. The trial judge also denied Defendant’s Dorthey motion on the grounds that his case did not present any unusual or rare circumstances under which such deviations are warranted. State v. Dorthey, supra. To the contrary, the trial judge pointed out that Defendant’s criminal history was so extensive that he was the opposite of the type of defendant for whom such deviations were to be considered.

Defendant was sentenced the following day on October 28, 2010. At the sentencing hearing, Defendant testified and expressed his remorse as well as his belief that his addiction to drugs was largely responsible for his extensive criminal history. The trial judge again reviewed Defendant’s criminal history noting that, since August 5, 1979, he had been arrested a total of 52 times, often on multiple charges. Of all his arrests, Defendant had been convicted of 12 felonies and 89 misdemeanors. The trial judge also observed that Defendant had been released on parole at least five times during his criminal career only to have his parole revoked for new criminal conduct. In mitigation, the trial judge considered Defendant’s age and his participation in various prison programs for which he had received certificates of completion.

As previously stated, the trial judge ordered Defendant to serve 30 years’ imprisonment at hard labor without the benefit of probation or suspension of sentence. This appeal ensued.

| «DISCUSSION

Assignment of Error Number One (verbatim,): The Court erred by imposing the sentence of thirty years at hard labor without benefits upon Gregory Glenn Caldwell.

Defendant argues that his 30-year hard labor sentence was excessive because he is not “the worst of offenders,” he is not violent, he has shown remorse and, because he is 51 years old, a 30-year sentence essentially equates to a life sentence. Defendant contends that the trial judge did not give these mitigating factors sufficient weight during sentencing.

The State argues that, in light of Defendant’s extensive criminal history, a 30-year sentence for a fourth-felony habitual offender is not excessive.

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 judge 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 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 L(La.l982); 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, the 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, supra; 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. Robinson, 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.

In State v. Dorthey, supra, the Louisiana Supreme Court held that, in habitual offender cases, the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts | fithe presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender and the circumstances of the case.

Later, in State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the supreme court specified that “[a] court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut [the] presumption of constitutionality.” The supreme court further emphasized that “departures downward from the minimum sentence under the habitual offender law should occur only in rare situations.” Id.

At the time of Defendant’s offense, La. R.S. 14:67.10(B)(1) provided that a person who commits the crime of theft of goods with a value of $500 or more shall be imprisoned, with or without hard labor, for not more than ten years or fined not more than $3,000 or both.

At the time of Defendant’s offense, the Habitual Offender Law, La. R.S. 15:529.1, provided in part as follows:

(A)(1) Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the |7fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life[-]

Having been adjudicated as a fourth-felony offender based on his most recent conviction for theft of goods with a value in excess of $500, the sentencing range applicable to Defendant was imprisonment, with or without hard labor, for not less than 20 years nor more than his natural life.

Defendant’s argument that he is not “the worst of offenders” is of no consequence to the issue presented by this appeal because Defendant did not receive a maximum or near-maximum sentence. Additionally, while Defendant argues that he is “not violent,” two of his prior felony convictions proven during his habitual offender hearing were carjacking and aggravated flight from an officer, both of which are listed as crimes of violence under La. R.S. 14:2(B).

The record shows that the trial judge adequately considered the factors listed in La. C. Cr. P. art. 894.1 prior to imposing Defendant’s sentence. As noted by the trial judge, Defendant has an extensive criminal history, having been arrested 52 times since 1979, resulting in 12 felony convictions and 39 misdemeanor convictions. Giving weight to the mitigating factors, however, the trial judge found that a low to mid-range sentence was appropriate.

The 80-year sentence imposed for Defendant, whose extensive criminal history far exceeds that for which the legislature has provided in the habitual offender law, does not shock the sense of justice, is not grossly out of proportion to the seriousness of the offense and does not needlessly Isinflict pain and suffering. Defendant has previously received leniency in his prior offenses only to continue to commit crimes while on parole. There is no clear and convincing evidence which would rebut the presumption of constitutionality of the statutory minimum sentence justifying a downward departure under Dorthey, supra. The sentence in this matter is tailored to both Defendant and his offense.

Accordingly, we find this assignment of error to be without merit.

CONCLUSION

For the foregoing reasons, the sentence of Defendant, Gregory Glenn Caldwell, is affirmed.

AFFIRMED.

      . Ms. Cooper arrived at the value of $820 by adding up the ticketed retail price of the ten items in the bag.


author: PER CURIAM.

text:
    STATE of Louisiana, Appellee v. William David BURTON, Appellant.
    No. 46,552-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.
    James E. Beal, Jonesboro, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Dale G. Cox, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   PER CURIAM.

| defendant William Burton was charged with armed robbery and aggravated burglary subsequent to a Caddo Parish home invasion committed on March 19, 1979. The case was tried before a jury in February 1980, but the defendant fled during the course of the trial. The jury convicted Burton of both offenses in absentia.

Burton was a fugitive for 30 years; the next entry in the appellate record is in 2010. In December 2010, the trial court sentenced Burton to serve maximum consecutive sentences, and Burton appealed his convictions and sentences to this Court.

During the pendency of this appeal, Burton died. His counsel filed a motion to vacate his convictions, and this Court directed the prosecutor to respond to that motion. In its response, the prosecutor agreed that Burton’s convictions should be vacated.

Therefore, in accordance with State v. Harvey, 94-0343 (La.10/20/94), 644 So.2d 371, State v. Thom, 438 So.2d 208 (La. 1983), and State v. Morris, 328 So.2d 65, 67 (La.1976), the judgment of conviction is vacated and all proceedings in this prosecution are abated from their inception.

JUDGMENT OF CONVICTION VACATED.