author: PETERS, J.

text:
    STATE of Louisiana v. R.B.

    No. 10-0726.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Michael Harson, District Attorney, Laurie A. Hulin, Assistant District Attorney, Fifteenth Judicial District, Abbeville, LA, for Appellee, State of Louisiana.
    Richard Allen Spears, Attorney at Law, New Iberia, LA, for Defendant/Appellant, R.B.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.

      . Pursuant to La.R.S. 46:1844(W), initials of the defendant, the minor victims, and the other witnesses will be used to protect the identity of the victims.

   PETERS, J.

| ,The State of Louisiana (state) charged the defendant, R.B., by grand jury indictment, with four counts of sexual battery, violations of La.R.S. 14:43.1; four counts of molestation of a juvenile, violations of La.R.S. 14:81.2; and four counts of indecent behavior with a juvenile, violations of La.R.S. 14:81. After a bench trial, the trial court acquitted the defendant of the four counts of indecent behavior with a juvenile but convicted him of the remaining eight counts. The trial court then sentenced the defendant to serve ten years at hard labor without the benefit of probation, parole, or suspension of sentence on each of the four counts of sexual battery (to be served concurrently), and thirty years at hard labor without the benefit of probation, parole, or suspension of sentence on each of the four counts of molestation of a juvenile (to be served concurrently with each other, but consecutive to the ten-year concurrent sentences imposed for the sexual battery convictions). The defendant has perfected this appeal, arguing in his single assignment of error that the evidence is insufficient to support the verdicts reached. For the following reasons, we affirm the convictions in all respects but remand the matter to the trial court with instructions to amend the court minutes so that the minutes correctly reflect the sentences imposed for the convictions of molestation of a juvenile.

APPLICABLE LAW

The offenses for which the defendant was convicted involve four minor children:.

(1) A.H., who was nine years old when trial commenced on November 3, 2009. She is the daughter of R.H., who was the defendant’s live-in girlfriend when the allegations first arose.

The remaining victims are the three children of T.L., who is R.H.’s sister:

12(2) B.G., a male child who was twelve years old when trial commenced on November 3, 2009;
(3) Br.G., a female child who was nine years old when trial commenced on November 3, 2009; and
(4) T.G., a male child who was eleven years old when trial commenced on November 3, 2009.

Louisiana Revised Statutes 14:43.1(A) defines sexual battery as follows:

Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

At the time of the offenses at issue, La. R.S. 14:81.2(A) defined molestation of a juvenile as follows:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

The record reflects that the defendant was born on July 29, 1957, and was fifty-two years old at the time of trial. Thus, the elements of proof involving the age differential between the defendant and his victims in both statutes are not at issue, |..¡Additionally, because of the respective ages of the children, consent is not an issue. La.R.S. 14:43.1(A).

With regard to the offenses of sexual battery, as the statute applies in this matter, the essential element at issue is whether the state established beyond a reasonable doubt that the defendant touched the anus or genitals of any of his victims with any instrumentality or any part of his body. Sexual battery may be committed even if the victim is clothed, with no “skin on skin contact,” because “clothing constitutes an instrumentality with which to touch the victim’s genitals.” State v. Bouton, 615 So.2d 23, 25-26 (La.App. 3 Cir.1993).

With regard to the molestation offenses, the elements at issue are (1) whether the defendant committed a lewd or lascivious act upon the person or in the presence of the victim — and if he did, (2) whether the act was committed with the intention of arousing or gratifying his sexual desires or those of his victim; and (3) whether the act was committed by the use of (a) force, violence, duress, menace, psychological intimidation, or threat of great bodily harm, or (b) influence by virtue of a position of control or supervision over the victim. See State v. Teague, 04-1132 (La.App. 3 Cir. 2/2/05), 893 So.2d 198.

The defendant’s only assignment of error addresses the sufficiency of the evidence used to convict him.

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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the fact-finding function of the jury only to the extent | ¿necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (some citations omitted).

DISCUSSION OF THE FACTUAL RECORD

The state’s first involvement with the defendant with reference to these charges occurred on April 30, 2007, when Sergeant James Gleason of the Vermilion Parish Sheriffs Department received a complaint from T.L. and her boyfriend, S.G., to the effect that the defendant was in possession of child pornography and that a juvenile was residing with him. During his investigation of this complaint, Sergeant Gleason came into possession of four computer diskettes containing “approximately 11 digital photographs of what appeared to be a prepubescent female[’s] genitals and buttocks.” A subsequent search of the defendant’s home uncovered another computer disk inside the defendant’s digital camera containing similar images.

At trial, B.G. testified that the incidents giving rise to the criminal charges occurred at his grandfather’s house where his aunt, R.H., and the defendant were living. According to B.G., while Br.G. was showing him, A.H., and T.G. some images on a camera, the defendant joined them and instructed them to undress. They did so, according to B.G., because the defendant threatened them. He stated that after they removed their clothes, they “had to play with each other.” B.G. explained that this meant playing with their “private parts,” which he described as the parts where one would “tee-tee or pee-pee” and his “butt.” B.G. testified that as he touched A.H.’s private parts, the defendant was taking pictures.

|fiB.G. testified that he did not see A.H. touch anyone, and observed that at all times the defendant remained clothed and did not touch anyone in his presence. He did testify, however, that Br.G. later told him that the defendant touched her in her private parts and that both Br.G. and A.H. later told him that they had been subject to similar activity from the defendant on more than one occasion. According to B.G., sometime after the incident he told his grandmother that he and the other children “got messed with.”

A.H. testified that the defendant touched her on her “bottom,” where she would “pee-pee from,” on three occasions, and that these incidents occurred at her grandfather’s house and in a building adjacent to the house. Furthermore, according to A.H., the defendant told her that he would “rape [her] mama” if she told anyone. With regard to the camera incident testified to by B.G., A.H. acknowledged that the defendant made the children take their clothes off and had them take pictures of themselves. However, she testified that none of the children touched each other. When asked if the defendant touched any of the children, she answered in the affirmative, but when asked where he touched the children, she testified that it was “in the den after we took our pictures of ourselves.”

At trial, F.S., the grandmother of T.L.’s children, testified that B.G., T.G., and Br.G. all told her of inappropriate behavior by the defendant. According to F.S., B.G. told her the defendant had molested him and that he had made him and T.G. “play with each other” while the defendant took pictures while they were naked. However, F.S. acknowledged that B.G. did not tell her the defendant touched either him or T.G. She also suggested that B.G. told her that the defendant had done the same thing to | fiBr.G. and their cousin, A.H. The reason B.G. had kept quiet, according to F.S., was that the defendant told B.G. he would kill B.G.’s mother if B.G. told anyone. According to F.S., Br.G. was the first to confide in her, followed by B.G. and T.G. However, when the grandmother made arrangements to have the children interviewed by the appropriate authorities, none of the children told the interviewer that anything inappropriate had been done to them or that they had been photographed or video recorded.

Shortly after Sergeant Gleason received the complaint from T.L. and S.G., B.G. was interviewed by a representative of a local shelter facility. Thereafter, he and T.G. were subjected to several “counseling” sessions with another employee of the facility to help the boys feel free to “open up” concerning what had happened to them. After they went through the initial interview and counseling, and almost three months after Sergeant Gleason received the initial complaint, the boys were interviewed by Nicolette Joseph, a forensic interviewer who testified at trial. These July 24, 2007 interviews were video recorded and both video recordings were introduced into evidence.

in his video recorded interview with Ms. Joseph, B.G. acknowledged that it was not the first time he had been at the shelter facility. According to B.G., he had been in the facility when he was eight years old because the defendant had “messed with him” at that time. According to B.G., he woke up on one occasion to find the defendant’s hand touching his private parts through his clothes. However, he only told his father and grandfather because Br.G. had told them that she was a victim of the defendant’s inappropriate actions as well.

|7B.G. stated in the interview that when he was nine years old, he saw the defendant touch Br.G. “down there” underneath her clothes. According to B.G., he was spying on Br.G. and the defendant through a crack in the door to the room they occupied at the time. He told Ms. Joseph that Br.G. told the defendant to stop, but that he could not see exactly what the defendant was doing at the time. On another occasion, when B.G. was eight years old and Br.G. was six, he claims to have seen the defendant taking pictures of Br.G. without her clothes. However, B.G. denied seeing the defendant take naked pictures of any of the other children and said that the defendant never made him touch anyone.

In his video recorded interview with Ms. Joseph, nine-year-old T.G. stated that, on one occasion while at his [T.G.’s] grandfather’s house, the defendant touched his “private” with his hand. However, T.G. stated that the touching occurred outside his clothes and not directly on the skin. He further stated that B.G. and Br.G. told him the defendant had touched them on their privates underneath their clothing, and that B.G. told him that the defendant had taken pictures of B.G. and Br.G. However, T.G.’s response to many of Ms. Joseph’s questions was simply “I don’t know.” T.G. did not testify at trial, and the only direct evidence from him is the interview with Ms. Joseph.

One of R.H.’s former boyfriends, W.M., testified that during the three years he resided with R.H., A.H. had made an allegation to R.H. that “one of the boys touched her.” Additionally, T.L. testified that both B.G. and T.G. had been molested in 2000 while in foster care.

|sIn finding the defendant guilty on the eight counts, the trial court noted that “the credibility, the believability of the reporting by the children” is the question “always in everyone’s mind” in cases of this nature. After making that statement, the trial court concluded that it believed the testimony of the children because the three who presented any evidence on the offenses gave reports that were “basically consistent, in general,” and that the inconsistency in the details lent credibility to their testimony because these inconsistencies indicated the testimony was not coached. In considering the statements of the children in the interviews with Ms. Joseph, the trial court noted that the interviews took place after the children reported incidents “in a comfortable setting, in a non-threatening setting, relat[ing] what occurred in their own words and without being [led].” The defendant disagrees with the trial court’s analysis and asserts in his sole assignment of error that the evidence does not sufficiently support the verdicts.

Sexual Battery Convictions

As previously stated, the essential element at issue with regard to the sexual battery convictions is whether the state established beyond a reasonable doubt that the defendant touched the anus or genitals of any of his victims with any instrumentality or any part of his body. Despite the conflicts in much of the evidence, A.H. did testify at trial that the defendant touched her on her “bottom” where she would “pee-pee from” on three occasions; B.G. stated in the interview with Ms. Joseph that the defendant “messed with him” by touching his genital area, but on top of his clothing; B.G. stated in the same interview that he saw the defendant touch Br.G.’s genitals underneath her clothing; and in the interview with Ms. Joseph, T.G. stated that the defendant touched his genitals once beneath his clothing. Thus, the |9state presented evidence which, if true, establishes the essential element in these charges.

The trial court accepted this evidence as proof beyond a reasonable doubt and,' when considered in light of our scope of review as set forth in State v. Macon, 957 So.2d 1280, we find no error in the trial court’s determination in this regard. Therefore, we find no merit in the defendant’s assignment of error as it relates to the defendant’s conviction on four counts of sexual battery.

Molestation of a Juvenile Convictions

As previously stated, with regard to the molestation convictions, the elements at issue are (1) whether the defendant committed a lewd or lascivious act upon the person or in the presence of the victim — and if he did, (2) whether the act was committed with the intention of arousing or gratifying his sexual desires or those of his victim; and (3) whether the act was committed by the use of (a) force, violence, duress, menace, psychological intimidation, or threat of great bodily harm, or (b) influence by virtue of a position of control or supervision over the victim.

B.G. testified at trial that the defendant instructed him and the other three children to undress and, while naked, to “play with each other” by touching each other’s “private parts.” He further testified that as he was touching A.H.’s private parts, the defendant was taking pictures. On the other hand, A.H. testified that the defendant made the children undress but denied touching anyone, or being touched by anyone, while undressed. While B.G. testified that the defendant took pictures of the naked children, A.H. testified that the defendant caused them to take pictures of themselves. Both agreed that the defendant remained clothed during the entire | lf)experience and never touched any of the naked children. They both also testified that the defendant threatened to harm them or their mother if they told anyone.

In State v. Prejean, 216 La. 1072, 45 So.2d 627, 629 (1950), the supreme court stated with regard to the definitions of “lewd” and “lascivious,” as it pertains to the offense of indecent behavior with a juvenile, that:

The word “lewd” means lustful, indecent, lascivious, and signifies that form of immorality which has relation to sexual impurity or incontinence carried on in a wanton manner. The word “lascivious” means tending to excite lust, lewd, indecent, obscene, relating to sexual impurity, tending to deprave the morals in respect to sexual relations. See Black’s Law Dictionary (DeLuxe Ed.).

Put another way, a lewd or lascivious act is “lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner”. Id. at 630. Thus, “a person knowingly engaged in any overt sexual activity performed in the physical proximity of a child enters a zone of danger in which he runs the risk that a trier of fact may later find that activity criminal in nature.” State v. Interiano, 03-1760, p. 8 (La.2/13/04), 868 So.2d 9, 15.

The trial court in the matter now before us concluded that the lewd and lascivious act contemplated by La.R.S. 14:81.2 was the defendant’s act of directing the children to disrobe and act out sexually his instructions while photographing the children’s actions. The trial court concluded “that it was his camera, over which he had control as well, and that that constitutes a lewd and lascivious act contemplated by the statute.” The trial court further concluded that despite the fact the pictures were taken without his physical participation in the children’s activities, they were taken “under his control, direction, and threats.”

I^The supreme court has stated in Interiano, 868 So.2d at 16, that “in the absence of a physical touching upon the person of the child, La.R.S. 14:81(A) requires the knowing commission of a sexual act such that the child sees or senses that a sexual act is taking place, even if the child is not able to articulate or even comprehend what the offender is doing, for a violation to occur.” See also State v. Lowe, 08-669 (La.App. 3 Cir. 12/10/08), 999 So.2d 194, writ denied, 09-54 (La.9/25/09), 18 So.3d 80. In this case, the evidence, if believed, establishes that the defendant instructed the children to take off their clothes and to “play with each other” by touching their “private parts.” We conclude that this is the knowing commission of an act which the children sensed as a sexual act despite their inability to articulate or comprehend the act itself. The trial court reached this factual conclusion and, applying the scope of review to which we are restricted, we find no error in this conclusion.

While there is no direct evidence that the defendant physically participated in the children’s efforts to “play with themselves” other than to photograph the activity, a reasonable trier of fact could easily conclude that everything he orchestrated with the children was for the purpose of arousing or gratifying his sexual desires. Finally, the testimony of the children fully establish the fact that the acts were committed by the use of threat of great bodily harm.

We find no merit in this assignment of error.

Error Patent Evaluation

In fulfilling our obligation under La.Code Crim.P. art. 920 to search the record for errors patent on the face of the appellate record, we find that the minutes of sentencing need correction.

112At the April 19, 2010 sentencing hearing, the trial court imposed sentences on the convictions for molestation of a juvenile to be served without the benefit of parole, probation, or suspension of sentence, pursuant to La.R.S. 14:81.2(E)(1). However, the minutes of the sentencing proceeding do not reflect that these sentences were imposed without the benefit of probation, parole, or suspension of sentence. We remand this matter to the trial court with instructions to amend the minutes of the April 19, 2010 sentencing proceeding to correctly reflect the sentences imposed. State v. Holloway, 10-74 (La.App. 8 Cir. 10/6/10), 47 So.3d 56.

DISPOSITION

We affirm the convictions in all respects. We remand the matter to the trial court with instructions to amend the minutes of the molestation of a juvenile sentencing proceeding to correctly reflect the sentences imposed.

CONVICTIONS AFFIRMED. REMANDED WITH INSTRUCTIONS.

      . None of the photographs seized in the investigation were photographs depicting the activities testified to by the child victims.

      . She testified that she did not know what "rape” meant, but that the term frightened her.

      . The video recordings of the initial Ínter-views were not introduced at trial.

      . Br.G. also did not testify.

      . W.M. construed the comment "one of the boys” to mean B.G. and/or T.G.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jerome Montrell THOMAS.
    No. 10-792.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      John Foster DeRosier, District Attorney — 14th Judicial District Court, Carla Sue Sigler, Assistant District Attorney— 14th Judicial District Court, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Jerome Montrell Thomas.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

| defendant, Jerome Montrell Thomas, was charged with attempted first degree murder, in violation of La.R.S. 14:27 and 14:30, and attempted armed robbery, in violation of La.R.S. 14:27 and 14:64. Defendant pled not guilty, but a jury found him guilty as charged. A bill of information charging Defendant as a habitual offender was filed. Defendant admitted the allegations in the bill of information and was subsequently sentenced to eighty years at hard labor on each count, to run concurrently.

Defendant asserts two assignments of error on appeal. He contends his conviction for attempted first degree murder is based on insufficient evidence because the witnesses could not reliably identify which of two defendants fired a shot at the victim. Additionally, the in-court identification of him for the first time at trial was unreliable because it was inconsistent with pre-trial testimony. For the foregoing reasons, we find that the evidence was sufficient to support Defendant’s conviction for attempted first degree murder. We also find that Defendant waived review of any issues regarding the in-court identification made.

I.

ISSUES

We must decide whether:

(1) The conviction in this case was based on insufficient evidence;
(2) The in-court identification of Defendant at trial was unreliable.

_b.IL

FACTS AND PROCEDURAL HISTORY

Nicholas Perioux was a manager at his father’s restaurant, Pat’s of Henderson. Perioux testified that D’Ryan Green was one of his best friends and attended a party at the restaurant on December 6, 2004. After the party, Green stayed to visit Perioux, who was closing the restaurant that night.

At approximately 11:00 p.m., Perioux placed Christmas gifts in his vehicle and returned to the restaurant. Perioux and Green then exited the restaurant together. While on the porch of the restaurant, two men appeared from behind the columns on the porch with guns pointed at Perioux and Green.

Perioux testified that one of the men was dressed in all black. The other man wore a white hat, and his clothes were lighter in color. When the men approached, Perioux told Green to run. Green hesitated, and the man in the white hat grabbed him in a headlock. Perioux testified that the man with the white hat had a gun in his other hand and was pointing it at him. The man in black also had a gun pointed at him.

Perioux, who was carrying a Glock .40 firearm for protection, retrieved his gun and shot at the man in black. Perioux testified that as soon as he shot the first round, shots were fired at him. Not long into the confrontation, the man dressed in black slipped, fell, and ran away. When the man in black was fleeing, Green got away from the man in the white hat. Per-ioux then started shooting at the man in the white hat, and that man shot back at him, hitting him. The man in the white hat fell backwards, then got up and ran. Per-ioux testified that he knew the man who was holding Green was wearing a white hat.

D’Ryan Green described the two men as African-American and taller than him. One of the men grabbed Green around the neck and put a gun to his head. |sGreen testified that he saw the man’s face and he was black. Green made an in-court identification of Defendant as the man who grabbed him. Green testified that he made the positive identification based on seeing the man from “here to here.”

Green testified that the man in the white hat put the gun to his head and cocked the hammer. Green further testified that he fell. As Green was falling, he felt a discharged bullet go by his head. Green then testified as follows: “I’m seeing bullets fly. I’m seeing the guy shoot again. I’m seeing Nick pull the gun out and start shooting. Hear him screaming; he fell; he got hit, and he continues to shoot.”

Officer Lisa Leleaux was dispatched to the restaurant on the date of the offense. She observed a 9mm on the steps in front of the restaurant. Officer Leleaux also found a revolver on the ground by the steps on the north side of the restaurant and a white cap just at or below the steps. Officer Leleaux testified that the cap had a hole in it. After the cap was collected, Officer Leleaux noticed a small amount of blood and what appeared to be a part of a scalp inside the cap.

Officer Bob Fry testified about the guns found at the scene. He testified that the .857 magnum revolver contained cartridge casings when he received it and the gun functioned properly. The 9mm contained eight live rounds and functioned properly. Further, the Glock, which belonged to Per-ioux, functioned properly and did not contain any cartridges.

Dr. Thomas Reinecke, an emergency room physician, was qualified as an expert in emergency medicine. On December 6, 2004, Dr. Reinecke was practicing at Our Lady of the Lake Hospital in Baton Rouge. At approximately 2:00 a.m. on December 7, 2004, Dr. Reinecke treated a man named Jerome Thomas who said he was the victim of an assault. Thomas complained that he had been hit in the head with an unknown object while gunshots were being fired. Thomas suffered 14either a blunt injury or a grazing gunshot wound five centimeters long. Thomas gave his date of birth as November 18, 1975.

Detective Gregory Single testified that he was contacted by the North Louisiana Crime Lab and informed there had been an initial hit in response to DNA evidence recovered at the scene. The crime lab informed Detective Single that the DNA matched that of Jerome Thomas. Defendant was apprehended in Baton Rouge.

Defendant’s date of birth was listed on the Miranda rights form as November 18, 1975. Detective Single questioned Defendant about a scar on his head. Defendant stated he received the scar in December 2003, as he was pistol-whipped during an altercation in Baton Rouge. Detective Single then received consent to obtain Defendant’s medical records. Our Lady of the Lake Hospital had no record of Defendant being treated in December 2003. He was treated in December 2004, however. A DNA sample was subsequently taken from Defendant, and the DNA results confirmed Defendant’s presence at the scene of the crime. Nevertheless, Defendant denied any involvement in the offenses.

Mary Dukes, a forensic DNA analyst and Quality Manager at the North Louisiana Crime Lab, was qualified as an expert in forensic DNA testing. Dukes testified that Defendant’s DNA matched that found on the white hat. Dukes further testified that the chances of obtaining the same match were 1 in 21.2 quadrillion.

III.

ERROR PATENT

One error patent exists concerning the habitual offender proceeding, but the error lacks reversible merit because Defendant received a fundamentally fair hearing.

|sThe trial court erred in failing to advise Defendant of his right to remain silent. At the sentencing hearing, the State announced it was filing a habitual offender bill seeking to enhance the sentences on both of Defendant’s September 8, 2009, convictions, as a third offender. The trial court then asked Defendant whether he wanted to admit or deny the allegations of the bill. Defendant stated “I admit.” Defense counsel then told the court that he had explained to Defendant the nature of the habitual offender procedure. Defense counsel stated that he told Defendant “[the State had] to prove that it was a conviction, and it was a conviction, and it was Mr. Thomas who was, in fact, the person convicted and that the conviction ha[d] taken place within ten years from the date the prosecution or the sentence ends.”

Defense counsel further stated that Defendant admitted that he was the perpetrator in both prior offenses and stipulated to the same. The court then questioned Defendant directly, and he confirmed his counsel’s testimony.

In State v. Fletcher, 00-968, pp. 3-4 (La.App. 3 Cir. 12/6/00), 776 So.2d 1240, 1243, writ denied, 01-342 (La.12/14/01), 803 So.2d 986, this court discussed the pertinent case law on this issue:

While La.R.S. 15:529.1 does not specifically address the issue of a defendant’s right to remain silent, in State v. Johnson, 432 So.2d 815 (La.1983), writ granted on other grounds, 438 So.2d 1113 (La.1983), appeal after remand, 457 So.2d 1251 (La.App. 1 Cir.1984), appeal after remand, 471 So.2d 1041 (La.App. 1 Cir.1985), the supreme court concluded that the statute clearly recognizes that a defendant has the right to remain silent and thus implicitly provides that a defendant should be advised by the trial court of this right before he acknowledges or confesses his status as an habitual offender. Thus, the trial court erred in failing to advise the defendant of this right before accepting his admission that he was the person who was convicted of the predicate offenses. The question is whether or not this is harmless error.

| nWe concluded that it was.

We find Defendant in this case, like the defendant in Fletcher, received a fundamentally fair hearing. Defendant was represented by capable counsel who explained the habitual offender procedure to him, and Defendant admitted his prior offenses in the presence of his attorney after being informed that the State would have to prove his prior convictions and identify him as a habitual offender. Consequently, this error patent is harmless.

IV.

LAW AND DISCUSSION

Sufficiency of the Evidence and In-Court Identification

Defendant contends the conviction in this case is based on insufficient evidence, as the witnesses could not reliably identify which of two defendants fired a shot at the victim, and on improper in-court identification. Therefore, he argues that his conviction for attempted first degree murder should be vacated and set aside.

Defendant asserts the critical question is whether the State had enough information to establish that he fired the gunshot that hit Perioux. He contends that because of the confusion and rapid sequence of events, there is insufficient evidence to convict him of attempted first degree murder.

Defendant argues the two weapons found at the scene were never tied to a specific person, and the 9mm had not been fired. Defendant additionally asserts it is unclear which of the men wore the white hat. Furthermore, Perioux apparently told police the men were all in black, but denied that at trial. Defendant avers that Perioux admitted he had been told about the white hat being found and DNA tying it to Defendant. Thus, Perioux’s in-court identification of Defendant as the person who fired the shots was highly doubtful. Defendant further contends that by the time 17of trial, Perioux was able to “specifically identify the kind of gun being held by the only person arrested, through DNA, the white hat.” Defendant asserts that this evidence is highly questionable, and his conviction for attempted first degree murder should be reversed.

In State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La.11/22/06), 942 So.2d 553, the defendant asserted his convictions were based on insufficient evidence, particularly the witness’ identification of him as the person who committed the robberies. He questioned the witness’ identification because she allegedly told her son that the police identified the robber. The defendant asserted that this court had to determine whether there was a suggestive identification and if it presented a substantial likelihood of misidentification.

This court held:

“A defendant who does not file a motion to suppress an identification, and who fails to contemporaneously object to the admission of the identification testimony at trial, fails to preserve the issue of its admissibility as an error on appeal.” State v. Johnson, 95-711, pp. 3-4 (La.App. 3 Cir. 12/6/95), 664 So.2d 766, 769, writ denied, 96-0082 (La.3/29/96), 670 So.2d 1236. See also La.Code Crim.P. arts. 703(F) and 841(A). The record reveals that the defendant did not file a pre-trial motion to suppress the witnesses’ identifications or object to its admissibility at trial. Consequently, as the defendant failed to preserve this issue, we do not review it on appeal.

Id. at 440.

The State relies on Boyance and further contends that while a motion to suppress would not have been possible because of the in-court identification, Defendant did not contemporaneously object to it at trial. Thus, the error was not preserved for review.

lain State v. Brumfield, 96-2667 (La.10/20/98), 737 So.2d 660, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999), the defendant contended that the court should not have admitted the testimony of the store manager who survived a shooting because her recollection of the crime and her identification of one of the assailants occurred only after she had been hypnotized by the police. At trial, there was no objection to the testimony or the identification. The supreme court found the defendant waived any claim based on the erroneous admission of this evidence.

Here, we find that Defendant waived review of the issue of improper in-court identification because he failed to contemporaneously object at trial. Further, even if Defendant had not waived his objection, the evidence in the record was sufficient to support the finding that he was the man who shot Perioux.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984).

State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

When the key issue is not whether a crime occurred, but rather, the identity of the perpetrator, the state is required to negate any reasonable probability of misidentification. State v. Hughes, 05-992 (La.11/29/06), 943 So.2d 1047. One witness’s positive identification is sufficient to support a conviction. Id.

State v. George, 09-143, p. 5 (La.App. 3 Cir. 10/7/09), 19 So.3d 614, 618.

Perioux testified that the man in the white hat grabbed Green. Additionally, although Perioux testified on cross-examination that at the time of the events he did not know who shot him, he testified on direct examination that the man in the white hat fired at him, hitting him. Green identified Defendant as the man who ¡¡¡grabbed him. Further, as he was falling from the grasp of the man who grabbed him, he felt a discharged bullet go by his head and saw the man fire the gun again. DNA evidence indicated Defendant wore the white hat.

Although Perioux’s testimony may be inconsistent, his testimony that Defendant shot him or shot at him was supported by Green’s testimony. The jury made credibility determinations and found the witnesses’ testimony to be credible despite any inconsistencies therein. It is not this court’s function to reweigh the evidence or assess credibility. State v. James, 99-1858 (La.App. 3 Cir. 5/3/00), 761 So.2d 125, writ denied, 00-1595 (La.3/23/01), 787 So.2d 1010. Accordingly, this assignment of error lacks merit.

V.

CONCLUSION

For the reasons explained above, we affirm Defendant’s conviction and sentence.

AFFIRMED.

      . Though the writer dissented in Fletcher, the facts in this case are so apparently distinguishable that they do not require any explanatory analysis.


author: AMY, Judge.

text:
    Wade BROUSSARD v. LOUISIANA RADIO COMMUNICATIONS.
    No. 10-840.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Michael B. Miller, Crowley, LA, for PIaintifi/Appellant, Wade Broussard.
    Jeffrey J. Warrens, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellant, Louisiana Radio Communications.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

_jjThe employer provided wage benefits for a period of time after the claimant sustained an injury, but ceased compensation due to its contention that it offered an adequate, modified position. Although the employer later provided indemnity benefits after the claimant required surgery, the claimant asserted that indemnity benefits were due prior to surgery. The workers’ compensation judge denied benefits during that period, finding that the employer offered an adequate position, but confirmed the claimant’s entitlement to benefits after surgery and to medical treatment. The employer and its insurer were also cast with penalties and attorney fees. The parties appeal. For the following reasons, we affirm the judgment as amended and award additional attorney fees for work performed on appeal. We deny the defendants’ motion to supplement exhibits.

Factual and Procedural Background

Wade Broussard, the claimant, fractured his left thumb while working for Louisiana Radio Communications, Inc. (LRC) on October 27, 2007. Mr. Broussard was able to work, in a modified position, until his condition worsened. During a November 12, 2007 visit with his orthopedic surgeon, Dr. Matthew Williams, surgery was recommended due to an angulation of the thumb which was observed. Dr. Williams subsequently indicated that the claimant was unable to work in light of the need for surgery.

Beginning November 12, 2007, LRC continued to pay the claimant wages. However, LRC’s comptroller, Phyllis Cole, testified that she communicated with Dr. Williams on November 24, 2007, that LRC could offer light duty work. The claimant did not return to work and, due to its contention that it had suitable work available to the claimant, LRC terminated wages at that time. LRC asserted that it would have |2been able to accommodate restrictions placed on the claimant’s work per a November 27, 2007 letter from Dr. Williams to Larry Whaley, the claimant’s supervisor. According to LRC, Dr. Williams never explained that the claimant was further disabled.

In December 2007, the claimant instituted this matter against LRC and its insurer, Louisiana Workers’ Compensation Corporation (LWCC), seeking indemnity benefits, penalties and attorney fees. Subsequently, in October 2008, Dr. Williams performed a fusion on the claimant’s thumb. Thereafter, the employer, through LWCC, began payment of temporary total disability (TTD) benefits. It continued to do so at the time of the underlying hearing.

At the resolution of the hearing, the workers’ compensation judge found the claimant entitled to temporai'y disability benefits, but only commencing October 22, 2008, the day after the fusion surgery. It ordered that the employer receive credit for those benefits paid and further concluded that the claimant was entitled to “all reasonable and necessary medical treatment.” The workers’ compensation judge assessed $6,000.00 in penalties, an attorney fee in the amount of $19,575.00, and | ¡.costs in the amount of $626.70.

From that ruling, the claimant appeals and asserts that:

1. The worker’s compensation judge erred in failing to include in the judgment that Wade Broussard was entitled to $522.00 per week in weekly compensation benefits.
2. It was error for the worker’s compensation judge to fail to award weekly compensation benefits for the period of October 28, 2007 until October 21, 2008.
3.It was error for the worker’s compensation judge to fail to award penalties and attorney fees due to defendants’ failure to pay weekly compensation benefits.

LRC and LWCC (the defendants) also appeal, asserting that:

1. The Workers’ Compensation Judge committed legal error in awarding future medical expenses.
2. The Workers’ Compensation Judge committed legal error and was manifestly erroneous in finding that LWCC reduced and underpaid medical mileage submitted by Broussard on August 15, 2008.
3. The Workers’ Compensation Judge committed legal error in awarding excessive attorney fees.

The defendants also filed a motion to supplement exhibits with original documents.

Discussion

Compensation Amount

In his first assignment of error, the claimant seeks amendment of the workers’ compensation judge’s ruling to commemorate the claimant’s disability rate of $522.00 per week. The claimant correctly points out that the parties stipulated to this figure at the hearing. As the request is without objection from the defendants in their brief |4to this court, we amend the judgment to reflect the weekly compensation rate of $522.00.

Indemnity Benefits — October 28, 2007 through October 21, 2008

The workers’ compensation judge found Mr. Broussard temporarily totally disabled, but only beginning October 22, 2008, the time period of Mr. Broussard’s second thumb surgery, a fusion. The workers’ compensation judge explained that: “Prior to this date, [the claimant] was physically limited in his physical condition not temporarily totally disabled.” The claimant objects to the determination and asserts in his brief that “[t]here is substantial medical evidence that Mr. Broussard was taken completely out of work during the period of time between October, 2007 and October, 2008.”

The claimant points to November 2007 work status reports from Dr. Williams and, particularly, to a November 27, 2007 work status report which bears an inscription of: “No work pending treatmentf.]” Further, the claimant contends that other references from Dr. Williams in mid-to-late 2008 also indicate a lack of clearance to return to duty. Although the defendants contend that modified job positions were offered to the claimant, the claimant argues that no modified position could have been offered until June 2008, when a modified job assessment was prepared.

|fiThe claimant sought TTD benefits for this initial period and, at least arguably, supplemental earnings benefits (SEBs) in the alternative. Louisiana Revised Statutes 23:1221(1) provides that a claimant seeking TTD benefits must prove “by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment[.]”

Further, a claimant’s pursuit of SEBs is guided by La.R.S. 23:1221(3), which establishes that a claimant must first prove, by a preponderance of the evidence, that he or she is unable to earn ninety percent of his or her pre-injury wage due to a work-related injury. Thereafter, an employer seeking to defeat that claim or establish the claimant’s earning capacity, must prove, by a preponderance of the evidence, that the claimant is physically able to perform a certain job and that this job was offered to the claimant or was available to him or her in the community or region. See La.R.S. 23:1221(3)(c)(i). See also Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161.

In finding indemnity benefits appropriate beginning October 22, 2008, the workers’ compensation judge explained as follows in reasons for ruling:

Let me first address the question of when Mr. Broussard is entitled to be considered totally temporarily disabled. This is best done by walking through the chronology of events as they developed after the October 27, 2007 [accident]. After his treatment in the emergency room, Mr. Broussard continued his employment in a modified capacity until his physician, Dr. Williams, put him on a no-work status as of November 12, 2007, pending treatment. Testimony was at that point, the employer informed Dr. Williams that there were, in fact, jobs in the company that required the use of only one hand; and Mr. Broussard was still needed as an employee. Dr. Williams responded to the employer and outlined in detail the restrictions that would apply to his patient in any job including primarily the use of his left hand.
| fiThe problem here is that on November 27, 2007, the same day, the adjuster testified that she had in her hands two pieces of paper from Dr. Williams both with the same date. One returned Mr. Broussard to work with restrictions, and the other took him off work. Claimant’s counsel argued that since these two documents were obviously in conflict the insurer should have conducted an investigation to determine which was correct. The situation of having these two apparently conflicting documents is not quite as bizarre as counsel makes it sound.
The evidence suggests that the following is probably an accurate chronology of events that led to the seemingly contradictory orders from the treating physician, Dr. Williams. It appears that Dr. Williams did, in fact, sign a no-work slip dated November 27, 2007. Also on November 27th, the same day, the doctor forwarded a letter to the employer stating that it was prepared to offer Mr. Broussard one of several positions which would require the use of only one hand, thus complying with the restrictions which the doctor had outlined. At this point, the company apparently assumed that Mr. Broussard was not being prevented from doing any type of work at all, but rather was being restricted in the type of work because of his less-than-functional left hand which had been injured. The company’s thinking seems to have been a reasonable assumption at the time; and as it turns out, a correct one considering that at his later deposition, Dr. Williams indicated clearly that at the time he meant to restrict not prohibit Mr. Broussard’s work activities. If Dr. Williams meant to totally disable this man, why on earth was he so explicit in describing these restrictions he was placing on him?
I am aware that in Harrington v. Coastal [Construction & Engineering, 96-681(La.App. 3 Cir. 12/11/96), 685 So.2d 457], the Third Circuit requires that in deciding whether an employer was arbitrary and capricious in denying treatment, the Court must focus on what the employer knew at the precise time of denial. The evidence indicates the letter from Dr. Williams could mean nothing more than that Mr. Broussard was to be disabled from a certain job, not disabled from all meaningful gainful employment.
Now, it’s difficult to see how the claimant can support his contention that he was at no-work status when his physician’s letter indicated that his work was to be limited, not totally prohibited. All the correspondence I read from Dr. Williams indicated he was very specific as to what his patient could not do. This is different from saying he was totally disabled. It also appears that these restriction in the November 24th letter were not revoked, at least, until October 22, 2008 when the insurer initiated temporary total disability benefits.
An important question here is: Did the employer offer a position in line with the restrictions imposed by the physician, and did the |7claimant refuse to accept this position? Claimant’s counsel is of the opinion, firm opinion, that in order for an employer to claim that he has offered a specific job which meets the restrictions required by the treating physician, then the employer must present the injured worker with a specific position. It is not sufficient, according to counsel, to offer to put the employee to work in any of a number of jobs any of which may respect the physician’s restrictions.
The credible evidence here is that the controller of the company told Mr. Broussard and Dr. Williams that a job was readily available. The description of the job offered during testimony seem[s] to be very plausible and functional for Mr. Broussard. One of them included being what was called a “spotter” who essentially just watches that the cable’s [sic] being stretched. Testimony does not shed much light [on] why Mr. Brous-sard did not take the modified position which he was assured would require absolutely no use of his left hand. Counsel insists that no real specific job was ever offered to his client, but the evidence taken as a whole showed that he decidedly was.
“Controversies around the specific job” being offered usually revolve around employers who offer sham jobs that really don’t exist except for the sole nefarious purpose of providing a defense against an SEB allegation brought by a worker. That doesn’t seem to be the case here. The evidence is convincing that the company was sincere when its management made the representation that it would have hired Mr. Broussard and taken care to respect the requirements of his physician, however, Mr. Broussard declined. It is really the function of the Court, not the worker to be the arbiter of whether a created or modified job falls within the restrictions of the treating physician.

On appeal, the factual findings of a workers’ compensation judge are reviewed pursuant to the manifest error or clearly wrong standard of review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551.

We find no manifest error in the determination that disability benefits were appropriate commencing October 22, 2008. First, the claimant either worked in a modified position and/or was paid wages for the time period immediately after the accident. Further, the defendants offered evidence permitting the workers’ compensation judge to determine that the employer demonstrated a willingness to create a job for the claimant, specifically addressing the limitations, whatever those [smay have been. Although the claimant could obviously not return to his former position, Dr. Williams anticipated that certain restricted duty would be appropriate. Both Dr. Williams’ letter of November 27th and his deposition support the defendants’ assertion that some type of work was appropriate. The workers’ compensation judge could have further determined that the “no work” status certifications relied upon by the claimant related to Dr. Williams’ contention that the claimant could not return to his previous position, but that the work restrictions did not include the type of clerical or observational work approved by Dr. Williams in his deposition and in the November 27th letter.

Further, Mr. Whaley and Ms. Cole testified to their willingness to accommodate the restrictions with “ground work” and possible errand running. Ms. Cole noted that they would have “made the job for him specifically.” They also explained that the claimant was unresponsive to their attempts to have him return to work in this capacity. This evidence permitted the workers’ compensation judge to determine that indemnity benefits were inappropriate during this time period. In light of this finding, the claimant’s contention that penalties and attorney fees were due for the failure to provide benefits for this time period is rendered moot.

These assignments lack merit.

Future Medical Expenses

The workers’ compensation judge’s ruling included an order for “all reasonable and necessary medical treatment.” On appeal, the defendants contest the inclusion for fear that they could be found to violate this order assuming a dispute over future | ¡¡medical care arises. Therefore, they ask that this portion of the judgment be vacated.

Certainly, La.R.S. 23:1203(A) provides that, “[i]n every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment. ...” Thus, as an operation of law, an injured employed entitled to compensation benefits is entitled to all reasonably and necessary medical treatment. However, at the instant proceeding, and other than a penalties issue that stemmed from failure to pay for physical therapy, the compensa-bility of certain medical expenses was not at issue. Thus, the ruling under review could not be construed to relate to any medical expenses that were found compen-sable. Other “reasonable and necessary medical treatment” has not yet been addressed and is inappropriate for inclusion in the judgment. See Austin v. Howard Discount Stores, Inc., 569 So.2d 659 (La.App. 2 Cir.1990). Accordingly, we amend the judgment to remove the clause “as well as all reasonable and necessary medical treatment.”

Claimant’s Exhibit 10

The claimant sought and, as will be discussed below, was awarded penalties for mileage reimbursed to the claimant for a visit with Dr. Williams. By Claimant’s Exhibit 10, the claimant attempted to demonstrate that the mileage form submitted reported a forty-three mile trip. Yet, the claimant was only reimbursed for a forty-mile trip. In support of their position that the claimant was correctly reimbursed for a forty-mile trip, the defendants submitted Defendants’ Exhibit 7, which included a mileage form for a forty-mile trip. Neither party, at the hearing, was able to produce the original mileage submission document. Thus, the parties submitted copies. However, as stated in the defendants’ brief, Defendants’ Exhibit 7, “appears to | vindicate that the zero is written over Whiteout.” Claimant’s Exhibit 10, which reports a forty-three mile trip, “does not appear to contain Whiteout.”

On appeal, the defendants contend that the workers’ compensation judge erred in allowing Claimant’s Exhibit 10 into evidence in light of La.Code Evid. art. 1003, which provides that:

A duplicate is admissible to the same extent as an original unless:
(1) A genuine question is raised as to the authenticity of the original;
(2) In the circumstances it would be unfair to admit the duplicate in lieu of the original; or
(3) The original is a testament offered for probate, a contract on which the claim or defense is based, or is otherwise closely related to a controlling issue.

As, the defendants contend, a “genuine question existed as to the authenticity of the third page of Claimant’s Exhibit 10 in relation to the content of the document at the time that it was forwarded to LWCC[,]” the copy should have been excluded.

We conclude that, in this instance, the workers’ compensation judge’s acceptance of the exhibit was not an abuse of discretion. Several factors support this result. First, workers’ compensation proceedings are often conducted with more relaxed rules of evidence and procedure. Taylor v. Tommie’s Gaming, 04-2254 (La.5/24/05), 902 So.2d 380. Further, both parties presented copies of the documents and the issue of whether “40” was written over an altered form was fully explored at the hearing. The admission of the copies under these circumstances was not an abuse of discretion.

This assignment lacks merit.

| ^Penalty

The defendants’ next assignment also relates to the parties’ mileage dispute insofar as they contest the award of a $2,000.00 penalty for the reimbursement of forty miles of travel rather than forty-three miles of travel. They contend that the claimant simply failed to meet his burden of proving that “LWCC received a document which reported 43 as opposed to 40 miles[.]” They note that the claimant failed to produce a witness who was able to “establish that a mileage form containing the higher number was in fact mailed to LWCC” and that he produced no evidence indicating that LWCC altered the form.

In awarding penalties on this point, the workers’ compensation judge determined that:

The mileage issue is perplexing. Mr. Broussard’s attorney alleges his client, on August 24, 2008, submitted a request that LWCC pay mileage at the rate of Forty-Three Cents ($.43) a mile. Someone at the insurance office, counsel alleges, put white-out on the Forty-Three number and instead inserted Forty, and that was the rate that was paid. Defense counsel is correct, of course, when he says that Mr. Broussard cannot actually prove the insurer made the changes. On the other hand, somebody made the change, that’s clear. I’m at a loss as to why Mr. Broussard would have done so. Other than the post office, who could have made the change except the insurer? Mr. Broussard was underpaid, and he should not have been.

On review, we consider the decision to impose penalties and attorney fees subject to the manifest error or clearly wrong standard as it is essentially a factual issue subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181. In this situation, we find no manifest error in the determination to assess a penalty for the mileage | ^reimbursement. The reasons for ruling indicate that the workers’ compensation judge considered the evidentiary concerns again raised by the defendants on appeal. As we find no manifest error in these determinations, we do not disturb this penalty award on appeal.

This assignment lacks merit.

Attorney Fee

The defendants also contest the imposition of a $19,575.00 attorney fee in favor of the claimant. They contend the central issue in this case involved the claimant’s entitlement to indemnity benefits for the time period before October 21, 2008. Absent this claim, the defendants contend, the claimant’s attorney’s work on appeal did not necessitate the eighty-seven hours of work evidenced by the attorney’s affidavit in support of the attorney fee claim. They further argue that the claimant’s counsel’s hourly rate of $225.00 is “above the norm in workers’ compensation matters.” Thus, they suggest that the figure awarded is unreasonable and should be reduced.

In awarding attorney fees, the workers’ compensation judge explained:

The defense urges that any attorney’s fees it is required to pay should be reasonable and further argues [] that the plaintiffs demand is anything but that. There are several factors which the Court considers in assessing the amount of attorney’s fees, and we all know what they are. This was an extraordinarily complex case with a unique set, probably singularly so, [of] circumstances; and no one present today believes that this particular case of litigation is in any fashion completed now.
Plaintiff counsel presented the Court with an affidavit explaining hour by hour precisely the amount of time he spent on the, matter which he calculates to be eighty-seven hours. His hourly charge for cases he takes on [a] contingency basis is Two Hundred and Twenty-Five Dollars | iS($225.00) which is well within the norm for matters that got to trial in this area. It is certainly well within the norm for an attorney with more than twenty-nine years of trial experience including at the appellate level. His fee request is reasonable, not modest, but reasonable.
... Attorney’s fees are set at Nineteen Thousand Five Hundred and Seventy-Five Dollars ($19,575.00), along with cost in the amount of Six Hundred Twenty-Nine Dollars and Seventy-Nine Cents ($629.79).

In fixing an amount of attorney fees in a workers’ compensation case, the workers’ compensation judge may consider factors such as the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered by the claimant, and the amount of time the attorney dedicated to the case. Langley v. Petro Star Corp. of La., 01-0198 (La.6/29/01), 792 So.2d 721. The amount of the attorney fee is subject to the discretion of the workers’ compensation judge, provided the record supports the amount awarded. Jackson v. Christus Health Cent. La., 05-0983 (La.App. 3 Cir. 2/1/06), 922 So.2d 748.

Our review indicates that the amount awarded to the claimant’s counsel is supported by the record in light of the reasons for ruling. The workers’ compensation judge recognized that this case was a complex one, with issues surrounding the evolving nature of the claimant’s disability and an unclear situation regarding the claimant’s capacity to return to work. Additionally, the claimant prevailed in three separate penalty awards. Further, in accepting counsel’s hourly rate, the workers’ compensation judge noted the attorney’s experience in the workers’ compensation field. While the defendants assert that this hourly rate exceeds that typical in the field, no evidence exists in this regard. Accordingly, we find no abuse of discretion in the attorney fee award.

This assignment lacks merit.

| Attorney Fee on Appeal

In his final assignment, the claimant seeks an additional attorney fee for work performed on appeal. As the claimant was successful in his defense of this matter, we award an additional $2,000.00 for work performed on appeal.

Motion to Supplement Exhibits

The defendants have also filed a Motion to Supplement Exhibits with Original Documents, which relates to the mileage reimbursement form at issue in Claimant’s Exhibit 10 and Defendant’s Exhibit 7. As discussed above, both parties filed copies of the original documents submitted. In their motion, the defendants contend that: “While preparing the appellate brief in this matter, undersigned counsel located the original documents which comprise Claimant’s Exhibit 10 and Defendant’s Exhibit 7.” Therefore, the defendants seek to supplement the appellate record with the original documents. This court referred the motion to the merits of this opinion.

Although the claimant has filed no opposition to the motion, we deny the claimant’s motion. Chiefly, we note that appellate courts are prohibited from receiving new evidence. B.W.S., Jr. v. Livingston Parish Sch. Bd., 06-1981 (La.8/16/06), 936 So.2d 181. Instead, an appellate court limits its review to the record developed in the trial court. La.Code Civ. P. art. 2164. While the probative nature of the original documents may arguably be negligible in light of the copies previously introduced, we note that much conflict existed below with regard to the two exhibits at issue. Accordingly, we find it appropriate to deny the motion.

DECREE

For the foregoing reasons, the Motion to Supplement Exhibits With Original Document is denied. The Office of Workers’ Compensation judgment is amended to | ^indicate that the claimant’s indemnity compensation rate is $522.00 per week. The judgment is vacated insofar as it ordered the defendants to pay for all reasonable and necessary medical treatment. Accordingly, the judgment, insofar as it relates to workers’ compensation indemnity benefits, is recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that WADE BROUS-SARD was injured in the course and scope of his employment with LOUISIANA RADIO COMMUNICATIONS, INC., on October 27, 2007, and is entitled to temporary total disability benefits in the amount of $522.00 per week beginning October 22, 2008, subject to a credit for any earnings or weekly compensation benefits paid.

The claimant is awarded an additional $2,000.00 for work performed on appeal. Costs of this proceeding are assessed one-half to the claimant-appellant, Wade Broussard, and one-half to the defendants-appellants, Louisiana Radio Communications, Inc. and Louisiana Workers’ Compensation Corporation.

MOTION DENIED. AFFIRMED AS AMENDED. ADDITIONAL ATTORNEY FEES AWARDED.

      . In the November 27th letter, Dr. Williams set forth the claimant’s treatment plan following surgery, and that:
      Fracture healing requires approximately 10-12 weeks. During this time he will be in a splint, which will allow motion of the thumb, however he will be limited in his activities.
      Mr. Broussard has been instructed not to participate in any activities that require any heavy lifting, pushing or pulling, climbing ladders, or other activity which could require use of the left hand in a manner resulting in a displacement of his fracture before it is healed, which could require repeat surgical intervention. Activities indoors such as clerical work would be appropriate. Outdoor work, which requires no lifting or activities as described above of the left hand including simple observation and note taking are appropriate as they could require only one hand.

      . The workers' compensation judge awarded a $2,000.00 penalty for failure to provide physical therapy, and two, $2,000.00 penalties for two instances of inaccurate mileage reimbursement.

      . The transcript provides:
      MR. MILLER [Counsel for the claimant]:
      Yeah. Judge, there may be some other benefits other than that, but we can stipulate that his comp rate is Five Twenty-Two.
      Can we do that?
      MR. WARRENS [Counsel for the defendants]:
      Yeah, that's fine.
      JUDGE LOWERY:
      That stipulation would mean that that’s the base rate?
      MR. MILLER:
      That’s the maximum, Judge.

      . The defendants contend that the issue of supplemental earnings benefits was not raised in the proceedings below as the claimant always contended that he was totally disabled. Alternatively, the defendants contend that the issue of SEBs is res judicata. However, review of the record indicates that the workers’ compensation judge’s ruling is supported by the evidence under either standard.

      . We note that the trial court misspoke on the number in controversy. The rate of reimbursement was not at issue. Rather, it was the number of miles submitted for reimbursement which was contested.

        . The attorney fee is comprised of a $3,173.83 award to claimant’s previous counsel, an in-tervener, and $16,401.17 to claimant’s trial counsel.


author: DECUIR, Judge.

text:
    Mickey COLLINS v. UNIVERSAL CASUALTY COMPANY, et al.
    No. 10-844.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Matthew J. Hill, Jr., Attorney at Law, Lafayette, LA, for Defendants/Appellees, State Farm Mutual Automobile Insurance Company Nathan Heath.
    Leon Joseph Minvielle, III, Theodore M. “Trey” Haik, III, Erie T. Haik Haik, Minv-ielle & Grubbs, New Iberia, LA, for Defendant/Appellee, Our Lady of Lourdes Regional Medical Center, Inc.
    R. Todd Musgrave, Amanda H. Aucoin, Musgrave, McLachlan & Penn, L.L.C., New Orleans, LA, for Defendants/Appel-lees, Universal Casualty Company Shen-telle Lewis.
    Rebecca Coman Scopp, Morris Bart, L.L.C., New Orleans, LA, for Plaintiff/Appellant, Mickey Collins.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

| Rickey Collins filed suit against Shen-telle Lewis, Universal Casualty Company (UCC), and others for damages sustained in an automobile accident. Immediately after filing an answer, UCC filed a petition for concursus. Pursuant to the order attached to the concursus petition, both Lewis and UCC were dismissed from suit. Collins appealed their dismissal, and, for the following reasons, we reverse and remand.

On February 24, 2009, Collins was a guest passenger in a vehicle driven by Lewis. They were involved in an accident with Nathan Heath, and Collins filed suit against both drivers on February 19, 2010. Collins alleged in his petition that Lewis was insured by UCC. After requesting an extension of time in which to answer, UCC filed an answer on April 26, 2010 wherein it admitted only to having “issued a policy of insurance” and denied all other allegations of the petition. UCC did not name its insured, did not purport to answer for its insured, did not admit to any coverage on behalf of its insured, and did not attach a copy of its policy.

Immediately thereafter, on May 3, 2010, UCC filed its petition for concursus, naming as defendants Collins and certain health care providers. The petition prayed for the following:

1. Leave of court to file the concursus petition;
2. An order permitting the plaintiffs in concursus to deposit its policy limits of $10,000.00, with interest in the amount of $61.64 into the registry of the court;
3. An order that defendants in concur-sus shall not be awarded or permitted any further interest on the monies deposited by UCC;
4. An order that costs in these proceedings incurred subsequent to UCC’s deposit into the registry of the court will be deducted from the monies placed into the court’s registry by UCC;
|25. An order relieving and discharging UCC and Shentelle Lewis from any further liability to defendants in concursus or any other party whatsoever;
6. An order dismissing UCC and Shen-telle Lewis with prejudice from the above captioned cause of action;
7. An order requiring that all of the above named parties having claims to the funds deposited by UCC assert their respective claims contradictorily against all other parties to these proceedings; and
8. The issuance of service and citation according to law upon all defendants in concursus.

The trial court summarily granted UCC’s petition. The court signed the proposed order attached to the petition which contained the entirety of UCC’s prayer for relief. Both Lewis and UCC were dismissed. The order was signed on May 4, 2010, the day after the petition was filed.

More than a month after the order dismissing Lewis and UCC, UCC sought to supplement the concursus petition by adding additional defendants. The supplemental petition was allowed. Subsequently, Collins and two defendants answered the petition. In the meantime, UCC deposited $10,061.64 into the registry of the court, an amount UCC asserted was its policy limit plus interest from the date of judicial demand. On June 18, 2010, the trial court granted Collins’ petition for de-volutive appeal.

Louisiana Code of Civil Procedure Article 4651 defines a concursus proceeding as “one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding.” A concursus proceeding, in most cases, is subject to the rules applicable to an ordinary proceeding. La.Code Civ.P. art. 4662. Likewise, the procedure Isgoverning service of citation and the delays for answering are the same as in an ordinary proceeding. La.Code Civ.P. art. 4655. A concursus proceeding is simply a vehicle whereby one who admits owing money to others may deposit that money into the registry of the court, thereby relieving himself of the liability for the money so deposited. La.Code Civ.P. art. 4658.

As these statutes make clear, a concursus proceeding is neither a summary proceeding nor a substitute for trial on the merits. It cannot be used for the adjudication of claims raised in the main demand. Hollywood Casino Shreveport v. Shreveport Paddlewheels, LLC., 02-2134 (La.App. 4 Cir. 7/23/03), 853 So.2d 660, writ denied, 04-0098 (La.3/19/04), 869 So.2d 857. It cannot be used to implead the claimant in a personal injury suit, such as Collins, the plaintiff in the instant case, “except by a casualty insurer which admits liability for the full amount of the insurance eoverage[.]” La.Code Civ.P. art. 4652. In other words, as pertains to the instant case, a concursus proceeding cannot be used to determine Shentelle Lewis’s exposure to an excess judgment, as the tortfeasor is not a proper plaintiff in con-cursus.

A concursus proceeding does not serve to relieve the plaintiff in concursus of all further liability, but rather, it can relieve that party of liability only for the funds deposited. Clements v. Folse, 01-1970 (La.App. 1 Cir. 8/14/02), 830 So.2d 307, unit denied, 02-2328 (La.11/15/02), 829 So.2d 437. Also, an insurer who invokes a concursus may later be held to defend its insured. Bowen v. Smith, 03-0432 (La.App. 4 Cir. 9/8/04), 885 So.2d 1. In this case, UCC invoked the concursus without evidence of its coverage limits, duty to defend, or any other liabilities. Lewis joined as a plaintiff in concursus without proof that she will not be subject to an excess 14judgment or other damages. We find the trial court’s judgment in favor of UCC and Lewis to be clearly wrong.

The trial court erred in dismissing UCC and Shentelle Lewis from the personal injury suit asserted by Mickey Collins. The order signed by the trial court is reversed in its entirety, and this case is remanded for further proceedings. Costs of this appeal are assessed against UCC.

REVERSED AND REMANDED.


text:
    Sherwood RANSOM v. Barry Sherwood RANSOM.
    No. 10-846.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Jack Derrick Miller, Crowley, LA, for Defendant/Appellee, Barry Sherwood Ransom.
    Warren D. Rush, Rush, Rush & Caloge-ro, Lafayette, LA, for PlaintiffAppellant, Sherwood Ransom.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

I,The plaintiff brought suit alleging that the defendant personally used funds which were to be used to start a new business. The trial court found in favor of the defendant. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Sherwood Ransom, brought suit against the defendant, his son, Barry Ransom, alleging that the defendant misappropriated certain business funds for personal expenses. Prior to the current dispute, the defendant worked for the plaintiff at Lafayette Well Testing, a business that the plaintiff owned. In 2004, the plaintiff sold Lafayette Well Testing to Cetco Services with a two-year non-competition agreement.

The plaintiff alleges that sometime after the sale of Lafayette Well Testing, he and the defendant entered into a verbal agreement to start a new oil testing business. In November of 2005, the plaintiff took out a $200,000.00 loan from the bank which was deposited into an account in the name of S & L Farm, L.L.C., another business the plaintiff owned. S & L Farm, as an agent for the plaintiff, transferred $150,000.00 to the defendant’s personal checking account. The plaintiff asserts that he and the defendant agreed that the $150,000.00 was to be used to buy oilfield equipment and the remaining money would be used for operational expenses.

Daniel Lyons, the owner and president of Lion’s Oilfield Equipment Service Incorporated, testified that he was contacted by a friend, Steve Kent, who informed him he was going to be sending his partner to the store to order certain testing equipment. In December of 2005, the defendant went to Mr. Lyons’s store and ordered two oil well separators. The equipment delivery ticket entered into evidence 1 -¿provided that the equipment was invoiced to Point Cou-pee Energy at the plaintiffs personal address. Mr. Lyons testified that when the equipment was ready, he attempted to contact the defendant for payment, but it was to no avail. He related that he then contacted Mr. Kent about the equipment which subsequently resulted in a meeting with the plaintiff. Mr. Lyons explained that in February of 2006, the plaintiff came to his store and gave him a check for $122,620.96 for one of the separators in addition to a $6,008.20 check for interest due on the late payment of the separators. Mr. Lyons testified that Mr. Kent paid for the other ordered separator.

On April 5, 2006, the plaintiff filed suit against the defendant. In that petition, the plaintiff stated that the “cause of action was based on misappropriation by Defendant of $150,000.00 cash delivered by Petitioner to Defendant for the purpose of depositing the funds into the bank account of Ransom Well Testing’s [sic] to then in turn be paid to Daniel Lions [sic] for well testing equipment.” The defendant answered, admitting that the plaintiff had transferred the $150,000.00 to his account. However, he asserted that the money was a gift from his father. Further, the defendant contended that he ordered the equipment from Mr. Lyons on behalf of his father because his father was prohibited from competing against Cetco pursuant to the terms of sale between the two. The defendant denied ever having any agreement to go into business with the plaintiff, Steve Kent, or the both of them.

|sAfter a bench trial, the trial court found in favor of the defendant, finding that the plaintiff failed to prove the defendant misappropriated or illegally converted the $150,000.00.

The plaintiff appeals, asserting:

1. The trial court erred in not finding that Barry misappropriated $150,000.00 to his personal use by breaching a verbal agreement with Sherwood to utilize the $150,000.00 transferred to him for a well testing business.
2. The trial court erred in not restoring Sherwood funds in the amount of $150,000.00 because said monies were not owed for any obligation, as a gift or bonus to Barry.
3. The trial court erred in not finding that Barry breached his obligation to Sherwood by not purchasing equipment to begin a business and therefore Sherwood is entitled to recover damages from Barry’s failure to perform.
4.The trial court erred in failing to find that there was sufficient evidence and corroborating circumstances to prove that Sherwood and Barry had a verbal agreement to start their new well testing business.

Discussion

The plaintiff argues that the trial court erred in finding that there was insufficient evidence to prove that the parties had a verbal agreement concerning the use of the $150,000.00.

“A party who demands performance of an obligation must prove the existence of the obligation.” La.Civ.Code art. 1831. If the value of an oral contract is in excess of $500.00, as it is here, the contract must be proved by at least one witness and other corroborating circumstances. La. Civ.Code art. 1846. General corroborating circumstances must be shown; independent proof of every detail is not needed. Ashy v. Trotter, 04-612 (La.App. 3 Cir. 11/10/04), 888 So.2d 344. The determination of |4whether there is sufficient corroborating circumstances to establish an oral contract is a question of fact subject to the manifest error standard of review. Id.

In its oral reasons for judgment, the trial court stated, in pertinent part:

I’ve got the plaintiff, Mr. Sherwood Ransom, saying conclusively: This was not a gift. This was a business deal. It wasn’t [the defendant’s] money to use, and he used it. I’ve got Mr. Barry Ransom saying it was not a business deal. There never was a business deal. There never was another company. I was never involved in anything. This was purely a gift. I didn’t — I wasn’t at the bank. I didn’t have anything to do with it. He promised me this, and that’s the way it was.
I don’t doubt that there was some discussions at some point maybe between him and some of his buddies, like Mr. Kent, and perhaps even Mr. Ransom. I’m sure there were many conversations that took place that people don’t recall exactly where there may have been some discussion of some day getting back into it [the oilfield testing business] and having them involved, but it never really came to pass.
I think that maybe, when Mr. Ransom went to the bank that day, he was thinking about this $150,000 just like he’s thought of all of the bonuses and advantages that he’s given to his son over the years, that he was going to be the money man and that eventually his son would have to earn whatever it was he was getting; but I don’t think his son or anyone else was made aware of that. I don’t think anybody else knew what might have been going on in Mr. Ransom’s mind at that point.
All of the indications to me are that, whatever happened, the evidence here today does not prove to me by a preponderance, more probably than not, that somehow or other $150,000 got put into Mr. Barry’s account and that he spent it knowing full well it wasn’t his to spend. It may not have been, but the proof of that is not here, and that’s what we’re about here in the courtroom.
So I don’t find that there’s been sufficient proof to tip the scales in favor of the plaintiff that any money was misappropriated or converted illegally. I’m going to stay away from even saying what it was, whether it was a gift or whatever else it might have been.

At trial, the plaintiff testified that he and the defendant agreed, with Mr. Kent, to start a new business. He related that he and the defendant went to the bank | ^together to get the loan which they agreed would be used to purchase equipment and fund other operational expenses. He stated that Mr. Lyons contacted him asking him for payment on the equipment. The plaintiff testified that he tried to contact the defendant, but the defendant did not return his calls. He related that he had had no contact with the defendant since the meeting at the bank.

The plaintiff also offered the testimony of Ronald Arceneaux, a relationship manager for the plaintiffs bank. Mr. Arcen-eaux testified that the plaintiff obtained the $200,000.00 loan secured by a collateral mortgage, that the loan check was made payable the plaintiff, and it was deposited in an account named S & L Farm, L.L.C., a business owned by the plaintiff. Mr. Arceneaux further testified that on November 28, 2005, the plaintiff transferred $150,000.00 to an account in the name of the defendant. Mr. Arceneaux testified that he had never met the defendant and that the defendant was not present with the plaintiff when he obtained the loan.

Mr. Lyons also testified for the plaintiff. At trial, he related that he was first contacted by Mr. Kent and was told that Mr. Kent and the defendant were going into business together. He stated that he was later told by the plaintiff that Mr. Kent, the plaintiff, and the defendant were all going into business together. Counsel for the defendant confronted Mr. Lyons at trial with his deposition testimony wherein he stated that he believed Mr. Kent and the plaintiff were going into business together.

The defendant testified that throughout the years of working for the plaintiff, the plaintiff gave him several bonuses which he considered as gifts. He testified that the $150,000.00 was transferred to him per the plaintiff’s promise that he would give |fithe defendant some money from the proceeds of his sale of Lafayette Well Testing. He testified that the plaintiff “told me that I could buy me a pickup and pay off some bills” with the $150,000.00. The defendant confirmed that he ordered the equipment from Mr. Lyons, however, he denied that he made any agreement to start a business with the plaintiff or Mr. Kent. He related that he purchased the equipment because his father was prohibited from doing so under the non-compete agreement. The defendant testified that the relationship with his father soured in February of 2006 because he “was working for Cetco, and I got a non-compete clause, and he got mad because I wouldn’t quit [Cetco] and come work for him.”

Here, the plaintiff points to certain evidence he asserts proves that he and the defendant had an agreement as to the $150,000.00. First, he contends that -Mr. Lyons’s testimony corroborates his testimony that he and the defendant agreed to begin a new business venture. Further, he asserts that the facts show that he provided the funds to the defendant approximately three weeks prior to the defendant ordering the equipment. He contends that the amount transferred was “obviously determined by [the plaintiff] to be sufficient to purchase the first set of equipment which cost $122,620.96 and he estimated a truck at that time would cost around $25,000.00 and for other operational expenses.”

After review of the record, we find no manifest error in the trial court’s determination that the plaintiff failed to carry his burden of proof. As explained above, “[a] party who demands performance of an obligation must prove the existence of the obligation.” La.Civ.Code art. 1831. If the value of an oral contract is in excess of $500.00, as it is here, the contract must be proved by at least one witness and other corroborating circumstances. La.Civ.Code art. 1846. The corroborating 17circumstances must come from a source other than the plaintiff. Suire v. Lafayette City-Parish Consol. Government, 04-1459 (La.4/12/05), 907 So.2d 37.

In regard to Mr. Lyons’s testimony, the trial court stated:

Mr. Lyons testified that he sold the equipment to Pointe Coupee Energy, that it was ordered by Barry Ransom, and it was paid by check from Mr.— from the plaintiff, Mr. Sherwood Ransom. And he said he believed that the plaintiff, the defendant, and Steve Kent were going into business together. I don’t think he was too sure about that. But where is Steve Kent?
I imagine he concluded that [that the plaintiff, defendant and Mr. Kent were involved in some kind of business deal] from the fact that Mr. Barry Ransom ordered the equipment and Pointe Cou-pee was billed for it. I guess he put two and two together, but I never heard him say anything about — I never heard anybody say anything about what was the $150,000 for.

A review of the record reveals no corroborating evidence as the agreement between the plaintiff and the defendant as to the $150,000.00. Mr. Lyons testified as to whether he believed the plaintiff, the defendant, and Mr. Kent were going to begin a new business. However, he offered no testimony indicating he had any knowledge of the $200,000.00 loan or the $150,000.00 transfer. The bank employee testified as to knowledge of the $200,000.00 loan, but did not relate that he had any knowledge as to what the loan was to be used for or as to the plaintiffs intent in transferring the money to the defendant.

The plaintiff contends that the amount transferred was “obviously determined by [the plaintiff] to be sufficient to purchase the first set of equipment which cost $122,620.96 and he estimated a truck at that time would cost around $25,000.00 and for other operational expenses.” However, as noted in the trial court’s reasons for | judgment, there was no evidence that the plaintiffs “obvious determination” as to the purpose and amount of the loan was communicated or agreed upon by the defendant.

The only evidence submitted as to the agreement between the plaintiff and the defendant in regard to the $150,000.00 is the plaintiffs uncorroborated testimony. As such, we find no manifest error in the trial court’s judgment dismissing the plaintiffs claims.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment in favor of the defendant. All costs associated with the proceeding are assessed against the plaintiff-appellant, Sherwood Ransom.

AFFIRMED.

      . The plaintiff testified that Point Coupee Energy was a company owned by Steve Kent. When confronted with the invoice, the defendant stated that he had "never seen this invoice. I just ordered the equipment.” The defendant denied knowing anything about Point Coupee Energy.

      . In a pretrial memorandum, the plaintiff admitted that he was mistaken in a deposition when he testified that a new limited liability corporation, Ransom Well Testing, LLC, was formed for the purposes of starting a new business. The record reveals that the defendant formed a company named Ransom Well Testing, LLC, in Texas in 1998, however, the defendant testified that the company never operated.

      . The defendant testified that the plaintiff had given him a Harley Davidson motorcycle valued at $18,000.00, $20,000.00 for the down payment on a house, $30,000.00 for a down payment on a second house, in addition to a pickup truck, shotguns, rifles and a deer lease.


author: Before PEATROSS, MOORE and LOLLEY, JJ.

text:
    STATE of Louisiana, Appellee v. Arthur Ray ROBINSON, Appellant.
    No. 46,330-KH.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 18, 2011.

      Arthur Ray Robinson, Pro Se.
    Charles Rex Scott, II, District Attorney, for Appellee.
   Before PEATROSS, MOORE and LOLLEY, JJ.

| Applicant Arthur Ray Robinson seeks supervisory review of the denial of his motion to correct an illegal sentence. His motion was based on his allegation that the habitual offender law did not permit him to be imprisoned “at hard labor.” Because the hard labor component of his sentence is not illegal, his application for review is denied.

Robinson was convicted of two counts of second degree kidnapping. On the first count, the court sentenced Robinson to serve 15 years’ imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On the second count, Robinson was sentenced as a fourth-felony habitual offender to serve life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. On appeal, this court reversed Robinson’s conviction and sentence on Count One but affirmed his conviction and life sentence on Count Two. State v. Robinson, 34,383 (La.App. 2 Cir. 2/28/01) 780 So.2d 1213, writ denied, 2001-1313 (La.3/28/02), 812 So.2d 642.

| .¿On August 31, 2010, Robinson filed in the district court a motion to correct an illegal sentence. See La. C. Cr. P. art. 882. Robinson argued that the “at hard labor” condition of his life sentence under the habitual offender statute rendered his sentence illegal. In support of this argument, Robinson asserted that the provision which allows a sentence to be imposed at hard labor under the habitual offender statute was not enacted until 2010 by Act No. 69. He further argued that at the time he was sentenced, there was no such provision for a hard labor sentence. The district court denied Robinson’s motion, and he now seeks review of that ruling.

Although the “at hard labor” language was added to La. R.S. 15:529.1(G) by Act 69 of 2010, the addition of that condition to the habitual offender law did not modify the sentencing provisions of any underlying felony offense. A sentence enhanced under the habitual offender statute is computed by referring to the underlying offense. State v. Richard, 550 So.2d 300 (La.App. 2 Cir.1989). As this Court observed in Richard, the sentence conditions required by La. R.S. 15:529.1(G) are additions to, rather than replacements of, those conditions required by the sentencing provision for the underlying offense.

Robinson’s underlying felony conviction was for second degree kidnapping, a violation of La. R.S. 14:44.1. The sentence provision of that statute specifies:

C. Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.
(Emphasis added.)

Because the crime for which the applicant was convicted required that his sentence be imposed at hard labor, that condition was a legal component of the applicant’s sentence as an habitual offender. State v. Richard, supra. Accordingly, we find no error in the trial court’s ruling denying the motion to correct an illegal sentence, and this writ hereby denied.