text:
    STATE of Louisiana v. Shelvin SMITH.
    No. 2011-KK-0312.
    Supreme Court of Louisiana.
    Feb. 21, 2011.
   PER CURIAM.

11While the courts below properly noted that merely being a passenger in a vehicle does not itself provide probable cause to believe the passenger is involved in the driver’s suspected drug activities, the courts overlooked that police can — and did here — have additionally known information providing probable cause to arrest the passenger.

It is well established that the test for probable cause draws upon the totality of the circumstances. State v. Aites, 2010-0667 (La.5/28/10), 37 So.3d 993, 994. A review of the record here shows that the hand-to-hand transaction witnessed by police provided probable cause to believe that an unlawful drug transaction had occurred. Moreover, this transaction confirmed the officer’s suspicion that the vehicle was trolling for drug buyers in the hotel parking lots. The fact that the police had observed this transaction after the vehicle had slowly made its way through not one, but two, hotel parking lots known for drug trafficking supported the officer’s belief that Mr. Smith was involved in the drug dealing, instead of being merely a passenger along for the ride.

|aThe belief that Mr. Smith was involved was also supported by the fact that during the hand-to-hand transaction, the rear passenger passed what appeared to be currency into the front of the passenger compartment where Mr. Smith was seated. Even though the officer could not see whether the apparent currency was accepted by the driver, by Mr. Smith, or by both of them, does not detract from the other circumstances adding up to probable cause that Mr. Smith was involved in an illegal drug deal. See State v. Nine, 315 So.2d 667, 673 (La.1975) (even though officer could not see which occupant of house threw bags of marijuana onto ground, it was not unreasonable for officer to conclude from surrounding circumstances that all occupants of house engaged in possession of marijuana).

The rulings of the courts below, suppressing this evidence, are reversed and the defendant’s motion to suppress is denied. The matter is remanded to the district court for further proceedings.

WRIT GRANTED. STAY DENIED AS MOOT.

       Kimball, C.J. not participating in the decision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Anthony BOUDOIN.
    No. 2010-KK-2868.
    Supreme Court of Louisiana.
    March 4, 2011.
   PER CURIAM.

I,Granted. The ruling of the trial court which granted defendant’s motion to suppress is reversed and this case is remanded for further proceedings.

Although “citizen informant reports based on firsthand knowledge carry a high indicia of credibility,” State v. Brown, 09-2456, p. 7 (La.5/11/10), 35 So.3d 1069, 1073, the tip in the present case merely offered the citizen’s opinion that the three men the officers observed sitting in a park resembled men he had seen depicted in a Crime Stoppers bulletin. The tip did not purport to convey firsthand knowledge and thus did not alone provide reasonable suspicion for an investigatory stop.

However, “[i]n determining whether the police possessed the requisite ‘minimal level of objective justification’ for an investigatory stop based on reasonable suspicion of criminal activity ... reviewing courts ‘must look at the totality of the circumstances of each case,’ a process which ‘allows officers to draw fion their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.’ ” State v. Johnson, 01-2081, p. 2 (La.4/26/02), 815 So.2d 809, 811 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002))(internal quotation marks and citation omitted). The officers were on patrol in a high crime area noted for its drug activity and they first initiated a field interview with the three men “so at least we could say we are investigating [the tip].” The officers asked, not ordered, the men to approach their patrol unit. The men were compliant with the request and began approaching the officers under circumstances in which a reasonable person would not have concluded that some sort of official detention was imminent. State v. Tucker, 626 So.2d 707, 712 (La.1993)(an “imminent actual stop” occurs “when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.... ”).

The consensual nature of the encounter then changed as one of the men reached into his pocket and then refused at least two requests to show his hand as he approached the officers, precipitating an assertion of official authority when a police officer grabbed the individual by the wrist, put him up against the police cruiser, and frisked him. Given the initial citizen tip and the high-crime character of the area, the individual’s furtive gesture in going into his pants pocket and his resistance to removing it provided the police with the requisite minimal objective justification for seizing and detaining him.

As part of a reasonable pat-down frisk for officer safety, the plain feel of a soft packet in the individual’s pocket, “consistent with the packaging of ^marijuana,” gave rise to probable cause to arrest him. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). At that point, the officers made a reasonable decision to detain all three individuals and thereby take unquestioned command over a fluid and uncertain situation. Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 2407, 168 L.Ed.2d 132 (2007)(“[A] sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing .... ‘the risk of harm to both the police and [the persons they detain] is minimized if the officers' routinely exercise unquestioned command of the situation.’ ”)(quoting Michigan v. Summers, 452 U.S. 692, 702-703, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981)); State v. Porche, 06-0312, p. 5 (La.11/29/06), 943 So.2d 335, 338 (trial court erred in granting motion to suppress because it failed to accord due deference to the need of the police to “ ‘exercise unquestioned command of the situation’ while they determined the nature and scope of the criminal activity they had uneov-ered.”)(quoting Summers). Given the unresolved question of the tip involving homicide suspects, the officers’ use of handcuffs to detain the men as they questioned them briefly did not transform the stop into a de facto arrest. Cf. State v. Adams, 01-3231, pp. 4-5 (La.1/14/03), 836 So.2d 9, 12. Defendant’s subsequent admission after receiving his Miranda warnings that he had “a little weed” on him then gave the police probable cause to arrest him and to retrieve lawfully the marijuana from his pocket.


text:
    STATE of Louisiana v. Michael ANDERSON.
    No. 2011-KK-0189.
    Supreme Court of Louisiana.
    March 4, 2011.
   PER CURIAM.

|, Granted. With the present case still in its pre-trial stages, the Fourth Circuit erred in ordering an evidentiary hearing in the district court “on the limited issue of whether evidence that [the state’s witness] asked for money in exchange for her testimony is discoverable under Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ].” State v. Anderson, 10-1557, p. 2 (La.App. 4th Cir.1/13/11). A trial court must hold a contradictory hearing to resolve a dispute over the scope of pre-trial discovery unless “it appears on the face of the motion that, as a matter of law, the moving party is not entitled to the relief sought.” La.C.Cr.P. art. 729.1(A). Because Brady did not establish a general rule of criminal discovery, “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.” Kyles v. Whitley, 514 U.S. 419, 436-37, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995) (citation omitted). For constitutional purposes, it does not matter whether a defendant makes a specific request for favorable evidence, a general request, or no request at all. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). The present system “does not tax the prosecutor with error for any failure to disclose, absent a further showing of materiality,” Kyles, 514 U.S. at 439, 115 S.Ct. at 1568, and materiality requires a “showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id., 514 U.S. at 435, 115 S.Ct. at 1566 (footnote omitted). To the extent that “a showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more,” Kyles, 514 U.S. at 437, 115 S.Ct. at 1567, a prosecutor is accorded “a degree of discretion,” id., 514 U.S. at 437, 115 S.Ct. at 1567, in making the determination during the pretrial stages of a case, in which “the character of a piece of evidence as favorable will often turn on the context of the existing of potential evidentiary record.” Id., 514 U.S. at 439, 115 S.Ct. at 1568. Although “[t]he prudent prosecutor will resolve doubtful questions in favor of disclosure,” United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399-2400, 49 L.Ed.2d 342 (1976), in the present case, defendant has not shown that by failing to make disclosure, the prosecutor has “tackfed] too close to the wind,” Kyles, 514 U.S. at 439, 115 S.Ct. at 1568, and that a miscarriage of justice is bound to occur. Bagley, 473 U.S. at 675,105 S.Ct. at 3379-80 (“[The purpose of Brady ] is not to displace the adversary system as the primary means by which truth is uncovered but to ensure that a miscarriage of justice does not occur.”).

The Fourth Circuit’s order is therefore vacated and this case is remanded to the trial court for further proceedings consistent with the views expressed herein.


text:
    In re Gerard A. BOS.
    No. 2011-B-0060.
    Supreme Court of Louisiana.
    March 4, 2011.
   PER CURIAM.

| ¡Pursuant to Supreme Court Rule XIX, § 21(A), the Office of Disciplinary Counsel (“ODC”) filed this reciprocal discipline proceeding against respondent, Gerard A. Bos, an attorney licensed to practice law in the States of Louisiana and North Carolina, based upon discipline imposed by the Superior Court of Wake County, North Carolina.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On December 6, 2010, the Superior Court of Wake County, North Carolina issued an order disbarring respondent from the practice of law. In its order, the court concluded that respondent misappropriated entrusted funds for his own personal benefit or for the benefit of a third party without authorization to do so from the beneficial owners of the funds. The North Carolina State Bar v. Gerard A. Bos, Number 10 CVS 004434 on the docket of the Wake County, North Carolina General Courts of Justice, Superior Court Division.

After receiving notice of the order of disbarment, the ODC filed a petition to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. |2A certified copy of the decision and order of the Superior Court of Wake County, North Carolina was attached to the motion. On January 11, 2011, this court rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent failed to file any response in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D), which provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.

| sIn determining the appropriate measure of reciprocal discipline, we are not required to impose the same sanction as that imposed by the state in which the misconduct occurred. Nevertheless, only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461.

Applying the factors set forth in Supreme Court Rule XIX, § 21(D), we see no reason to deviate from the sanction imposed by the Superior Court of Wake County, North Carolina. Considering that we share authority over respondent with North Carolina, we will defer to that state’s determination of discipline. See, e.g., In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”). Accordingly, we will impose reciprocal discipline of disbarment pursuant to Supreme Court Rule XIX, § 21.

DECREE

Considering the motion for reciprocal discipline filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Gerard A. Bos, Louisiana Bar Roll number 3217, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys, and his license to practice law in the State of Louisiana shall be revoked.

       Chief Justice Kimball not participating in the opinion.

      . Respondent has been ineligible to practice law in Louisiana since June 19, 2010 for failure to comply with the mandatory continuing legal education requirements. He is also ineligible for failing to pay his bar dues and the disciplinary assessment.

      . The court issued a consent order disbarring respondent based upon his "Affidavit of Surrender of Law License.”


text:
    In re Lori P. MOSER.
    No. 2011-B-0252.
    Supreme Court of Louisiana.
    March 4, 2011.
   PER CURIAM.

11This disciplinary matter arises from a petition to revoke probation filed jointly by the Office of Disciplinary Counsel (“ODC”) and respondent, Lori P. Moser, based upon respondent’s new violations of the Rules of Professional Conduct while on court-ordered probation imposed in In re: Moser, 10-1777 (La.9/24/10), 44 So.3d 270 (“Moser I”).

UNDERLYING FACTS AND PROCEDURAL HISTORY

The record in Moser I established that respondent falsely reported to her law firm that she attended a court hearing, and then submitted a report, billing records, and travel receipts to perpetuate the falsehood. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline, suggesting that respondent be suspended for one year and one day, fully deferred, subject to her successful completion of a two-year period of probation with conditions. We accepted the petition for consent discipline on September 24, 2010.

On January 26, 2011, the ODC received a letter from respondent self-reporting misconduct which occurred during her employment with a new law firm. Simultaneously, the ODC received a complaint against respondent from the firm. Both respondent and the firm reported that in her new position respondent “prejbilled”2 clients for work she had not yet completed, and that when confronted by her employer regarding her billing practices, respondent initially falsely denied that she had done anything wrong.

DISCUSSION

Respondent has acknowledged that she engaged in new misconduct during the period of her probation in Moser I. This misconduct, which is remarkably similar to the misconduct in the earlier case, involves “pre-billing” by respondent for work she had not yet completed (or, in some cases, had not yet even begun). Furthermore, when she was confronted by her employer regarding her billing practices, respondent initially lied and said she had done nothing wrong. These facts clearly support the revocation of respondent’s probation and imposition of the deferred one year and one day suspension.

Therefore, we will revoke respondent’s probation and make the previously deferred one year and one day suspension executory.

DECREE

For the reasons assigned, respondent’s probation is revoked and the previously deferred one year and one day suspension imposed in In re: Moser, 10-1777 (La.9/24/10), 44 So.Bd 270, is hereby made immediately executory. All costs and expenses in the matter are assessed against respondent, Lori P. Moser, Louisiana Bar Roll number 25463, in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    Daisy Lucero MARCILE, and Tracy Lucero, Individually and on Behalf of Her Minor Child, Triston Williber v. Neal DAUZAT and City of Marksville.
    No. 2011-CA-0099.
    Supreme Court of Louisiana.
    March 4, 2011.
   PER CURIAM.

| ,Neal Dauzat and the City of Marksville invoke the appellate jurisdiction of this court pursuant to La. Const, art. V, § 5(D), on the ground the district court declared La. R.S. 13:5105(D) to be unconstitutional.

Pretermitting the merits, we find the constitutionality of La. R.S. 13:5105(D) was not essential to the district court’s judgment. It is well settled that courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, resolution is essential to the decision of the case or controversy. Rogoz v. Tangipahoa Parish Council, 08-2789 at p. 5 (La.1/30/09), 21 So.3d 923, 925; Cat’s Meow v. City of New Orleans, 98-0601 at p. 16 (La.10/20/98), 720 So.2d 1186, 1199. Our jurisprudence explains that the practice of courts is “never to anticipate a question of constitutional law in advance of the necessity of deciding it.” Matherne v. Gray Ins. Co., 95-0975 at p. 3 (La.10/16/95), 661 So.2d 432, 434. Hence, courts should avoid constitutional rulings when the case can be disposed of on non-constitutional grounds. Blanchard v. State, 96-0053 (La.5/21/96), 673 So.2d 1000.

In the instant case, the district court granted plaintiffs’ motion to strike defendants’ request for jury trial. Although the district court’s judgment refers to the | constitutionality of La. R.S. 13:5107(D), our review indicates it was not essential for the district court to reach the issue of constitutionality. To the contrary, the district court’s judgment actually avoids the constitutional issue by implicitly holding it would be a violation of equal protection to interpret La. R.S. 13:5107(D) in such a way as to allow defendants to obtain a jury trial under these facts. By following what it believed to be the proper statutory interpretation of La. R.S. 13:5107(D), as set forth by this court in Beauclaire v. Greenhouse, 05-0765 (La.2/22/06), 922 So.2d 501, the district court concluded it was required to strike defendants’ jury trial request to prevent what it perceived as an equal protection violation. Because the district court granted the relief requested by plaintiffs through an interpretation of La. R.S. 13:5107(D), there was no need for the court to reach or pass on the statute’s constitutionality; thus, any reference to constitutionality in the court’s judgment is not essential to its holding.

Under these circumstances, we find the district court resolved this case on non-constitutional grounds. This court therefore lacks appellate jurisdiction over the judgment at issue. Review of this interlocutory judgment rests within the supervisory jurisdiction of the court of appeal pursuant to La. Const. Art. V, § 10(A). Accordingly, we transfer the ease to the court of appeal, which is instructed to treat defendants’ appeal as an application for supervisory writs, and to consider it on the merits.

       Chief Justice Kimball not participating in this opinion.

      . We express no opinion on the correctness of the district court’s judgment striking defendants' jury trial request. However, we note defendants assertion that under our decision in Beauclaire, their jury trial request may not violate equal protection, if the court finds plaintiffs also had an adequate opportunity to request a jury trial.


author: MOORE, J.

text:
    Michael WELCH, et al., Plaintiffs-Appellees v. WILLIS-KNIGHTON PIERREMONT, et al., Defendants-Appellants.
    No. 45,554-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 17, 2010.
    Rehearing Denied Dec. 9, 2010.

      Susan E. Hamm, for Plaintiffs.
    Watson, Blanche, Wilson & Posner by Peter T. Dazzio, Chris J. LeBlanc, Baton Rouge, LA, for Defendant-Appellant Willis-Knighton Pierremont.
    Walter F. Clawson, Shreveport, LA, for Defendant-Appellant La. Patient’s Compensation Fund & The La. Patient’s Compensation Fund Oversight Board.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   MOORE, J.

_JjThe defendants appeal a jury verdict and award in favor of the plaintiffs in this medical malpractice action. One plaintiff appeals her dismissal from the suit for failure to personally attend the trial. After review, we affirm the jury verdict and award, reverse the plaintiffs dismissal, and render judgment and award damages in her favor.

Facts

Linda Welch died on September 4, 1999, ten days after undergoing hip surgery at Willis-Knighton Pierremont Health Center on August 25, 1999. Two days following a successful hip replacement, Mrs. Welch contracted a respiratory infection after aspirating (breathing food or vomit into the lungs) the contents of a PEG tube feeding while she was in the ICU. The central issue at trial was whether the staff at Willis-Knighton breached the standard of care by failing to take appropriate measures to prevent the aspiration, namely, by elevating the head of her bed at least 30 degrees during and one hour after feeding.

The plaintiffs contend that Mrs. Welch was laid down flat at some point after her PEG tube feeding at 6:00 p.m. on August 27, 1999 which caused her to aspirate the contents of her stomach. The standard of care calls for the patient’s head to be elevated at least 30 degrees during feeding and to remain elevated for one hour after feeding. In this instance, the purpose of head elevation is to prevent the dietary formula from traveling from the stomach up the esophagus to the patient’s throat where it may enter the wind-pipe and patient’s lungs. Aspirated food and caustic stomach acids will |2seriously damage the lungs and lead to infection.

Mrs. Welch had a history of aspirating prior to entering the hospital due to abnormalities in her throat and esophagus, and she suffered from chronic lung disease due to chronic aspirations. The throat abnormalities were the result of radiation therapy some years earlier to combat throat cancer. Specifically, Mrs. Welch now lacked the natural reflexive ability to block food and secretions from entering her wind-pipe. For this reason, the PEG tube was inserted directly into her stomach more than a year prior to this incident to lower the risk and severity of aspiration events, as well as to give Mrs. Welch nourishment. According to trial testimony, Mrs. Welch had not had any significant aspiration events after insertion of the PEG tube.

Following her hip surgery on August 25, 1999, Mrs. Welch was recovering well in the ICU and scheduled to be moved to the floor on August 28, 1999. The nurses’ notes show that on the evening of August 27, 1999, Mrs. Welch received a PEG tube feeding at 6:00 p.m. and tolerated the feeding well. At or near 7:00 p.m., Nurse Olivia McMorris removed Davol drain tubes from the surgery wound. At approximately 7:10 p.m., the nurses’ note entry reports that Mrs. Welch had shortness of breath and told the nurse that she could not breathe. Dr. James Smith, Mrs. Welch’s pulmonologist, was immediately contacted.

Mrs. Welch’s respiratory condition continued to worsen. When Dr. Smith arrived around 10:30 p.m., Mrs. Welch was in acute respiratory distress. With great difficulty due to her throat abnormalities, Dr. Smith performed a bronchoseopic intubation in order to insert the endotrachial line into her airways. The endotrachial line is commonly called a ventilator. Dr. |3Smith stated that he observed with the broncho-scope tremendous amounts of the liquid food in Mrs. Welch’s throat and lungs, and both bronchial trees were filled. He stated that the earlier PEG tube feeding must have come up from the stomach by regurgitation or reflux. Mrs. Welch was at greater risk because of her esophageal problems that limited her ability to contract and protect her airway; namely, the gastroesophageal sphincter which automatically protects the airway in an ordinary persons’s throat was inoperative for Mrs. Welch due to the prior radiation treatments, which, in effect, left her airway wide open when she swallowed.

Mrs. Welch remained on the ventilator for five more days when, on September 2, 1999, she pulled the endotracheal tubes partially out, taking herself off the ventilator. This extubation, according to Dr. Smith, sealed her fate, since re-intubation was not possible. Mrs. Welch ultimately “coded,” and Dr. Smith performed a tra-cheostomy on September 3, 1999, but Mrs. Welch suffered brain damage and continued to decline. She died on September 4, 1999.

When Mrs. Welch aspirated on August 27, 1999, an issue arose almost immediately between the Welch family and the hospital staff over whether the aspiration resulted from Mrs. Welch being laid down. This dispute was to become the central issue at trial. As a result, prior to trial, the defense filed a motion in limine to bar testimony from decedent’s husband, Michael Welch, and the decedent’s sister, Judy Tedesco, regarding statements they allege Mrs. Welch made to them the night she was intubated. The substance of these hearsay statements was that Mrs. Welch |4told them that she had been laid down. The plaintiffs sought to offer the statements into evidence to show that the nurses breached the standard of care and this breach caused Mrs. Welch to aspirate, causing serious injury and ultimately leading to her death.

On the day of trial, the trial court granted the defendant’s motion excluding the hearsay testimony. The plaintiffs sought an emergency supervisory writ from this court seeking review of the ruling. By a 3-2 majority, a five-judge panel from this court granted the writ application and held that the hearsay testimony by Judy Tedes-co was admissible under the hearsay exception for dying declarations. La. C.E. art. 804(B)(2).

At trial, Judy Tedesco testified that she spoke with her sister shortly after she had been intubated. She stated that Mrs. Welch, although intubated, asked her what happened, and when Ms. Tedesco told her she had aspirated, Mrs. Welch mouthed the words, “Damn. I told them not to lay me down.”

Mr. Welch testified that Dr. Smith told him that his wife had been laid flat. He also testified that his wife wrote him many notes before she died, among them a note stating that she had been laid down, but he had discarded the note along with many other notes she had written him.

Dr. Smith neither confirmed nor denied that he told the family or Mr. Welch that the nurses had “laid Mrs. Welch flat.” Specifically, Dr. Smith said he had no recollection of what he said to the family.

|fiThe accusation that Mrs. Welch had been laid down was raised very early on, however. The evening following the aspiration incident, Nurse McMorris, recorded a “late entry” in the nurses’ notes stating:

It was brought to my attention that spouse c/o pt being laid flat during feeding or during removal of Davol drains. Pt was fed c [with] HOB † 40°. There were 3 nurses in the room when drains were pulled. Jeff Car, Susan Smith & Debra Liegey all witness that pt’s HOB was elevated 30°. I was pt’s primary nurse on 8/27/99 from 7A to 7pm. I do not know of any other nurse entering the room & laying pt. flat.

O. McMorris, RN

The jury returned a verdict finding that the hospital breached the standard of care and awarded damages totaling $478,000. The court denied the defendants’ motions for JNOV and New Trial. The defendants filed this appeal.

Also, during trial, on motion of the defendants, the court dismissed the petition of Carrie Lynn Welch for failure to appear at trial. Ms. Welch appeals this ruling.

Discussion

The defendants’ first three assignments of error concern the hearsay testimony from Michael Welch and Judy Tedesco regarding oral and written statements allegedly made by the decedent after she aspirated that she was “laid down.” The plaintiffs contended that this was a breach of the standard of care that caused Mrs. Welch to aspirate the tube feeding contents in her stomach. The statements are clearly hearsay, being statements made by someone other than the declarant while testifying at trial offered into evidence to prove the truth of the matter asserted. La. C.E. art. 801(C).

^Accordingly, prior to trial, the defendants filed a motion in limine to bar this hearsay testimony. As stated above, the trial court granted the motion, but the plaintiffs applied to this court for a supervisory writ of review. A 3-2 majority of a five-judge panel held that the statement of the decedent to her sister constituted a statement of impending death or dying declaration, and it was therefore admissible under this narrow exception to the hearsay rule. La. C.E. art. 804(B)(2). The defendants now raise the issue again on appeal, contending that the record and trial testimony show that the statements were inadmissible hearsay because they did not meet the criteria to constitute dying declarations.

Because a writ panel from this court previously ruled on the admissibility of the hearsay testimony at issue, we ordered the parties to submit briefs on the question of whether the “law of the case” doctrine applies when an issue decided in a case in a supervisory writ decision is raised again on appeal. The parties timely submitted their briefs on the issue.

Law of the Case

The law of the case principle is a discretionary guide which relates to (a) the binding force of a trial judge’s ruling during the later stages of trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. Northeast Realty v. Jackson, 36,276 (La.App. 2 Cir. 8/14/02), 824 So.2d 1264. The majority of cases support the general rule that when an appellate court considers arguments |7made in supervisory writ applications or responses to such applications, the court’s disposition on the issue considered becomes the “law of the case,” foreclosing relitigation of that issue either in the trial court on remand or in the appellate court on a later appeal. Reed v. St. Charles General Hosp., 2008-0430 (La.App. 4 Cir. 5/6/09), 11 So.3d 1138, writ denied, 2009-1252 (La.9/18/09), 17 So.3d 979. “The doctrine also applies to previous decisions on writ applications as well as full appellate proceedings.” Roccaforte v. Nintendo of America, Inc., 05-239, p. 8 at fn.4 (La.App. 5 Cir.11/29/05), 917 So.2d 1143, 1148; see also Andry v. Murphy Oil, U.S.A., Inc., 05-0126, p. 18 (La.App. 4 Cir.6/14/06), 935 So.2d 239, 251. The reasons for the law of the case doctrine are to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Louisiana Land and Exploration Co. v. Verdin, 95-2579 (La.App. 1 Cir.9/27/96), 681 So.2d 63, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, Verdin v. Louisiana Land and Exploration Co., 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (U.S.5/12/97).

On the other hand, the law of the case doctrine is not an inflexible doctrine. Appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. It should not be applied where it would accomplish an obvious injustice or where the former appellate decision is manifestly erroneous. Dodson v. Community Blood Center of Louisiana, Inc., 633 So.2d 252, 255 (La. App. 1 Cir.1993), units denied, 93-3158, 93-3174 (La.3/18/94); 634 So.2d 850, 851. Generally, reargument |sin the same case of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. Glenwood Hospital, Inc. v. Louisiana Hospital Service, Inc., 419 So.2d 1269, 1271 (La. App. 1 Cir.1982). Thus, while the law of the case doctrine is triggered upon a panel’s disposition of an issue on writ application, mechanical application of the doctrine in such cases so as to preclude any reconsideration is not appropriate.

In Turner v. Pelican, 94-1926 (La.App. 4 Cir. 9/15/95), 661 So.2d 1065, unit denied, 95-2513 (La.12/15/95), 664 So.2d 441, (J. Plotkin concurring), the concurring opinion explained the discretionary nature of the law of the case doctrine in circumstances such as the instant case:

“Law of the case” doctrine

[A] regular appeal panel has the authority, and indeed the duty, to review, overrule, modify, and/or amend a writ panel’s decision on an issue'when the appeal panel finds that the writ panel’s decision was in error. That of course requires that the regular panel reconsider the issue at least to the extent necessary to determine whether the writ panel’s decision was correct.
There are practical reasons for this modification of the “law of the case” rule. When an issue which was previously decided on writs is raised by the parties a second time as part of the appeals process, the level of scrutiny which can be afforded is more extensive than that typically afforded by a writ panel. A regular appeal panel’s review of an issue is generally much less hurried, often because it is subject to fewer immediate time constraints. Moreover, a regular appeal panel has the resources to study the issue much more fully. Often, when an issue is raised on an application for supervisory writs, the panel is required to decide the issue purely on the basis of memorandums. If a record is produced, it typically is incomplete; many times, no response is filed. All of these factors make regular appeal panel reconsideration of an issue decided by a writ panel desirable. Thus, the “law of the case” doctrine should not be automatically invoked to prevent [ ^reconsideration of an issue on appeal.

We agree with these guidelines for discretionary application of the “law of the case” rule. A regular appellate panel should reconsider the issue at least to the extent necessary to determine whether the writ panel’s decision was correct, especially where, as in this case, the emergency writ application is made during an ongoing trial and required expedited consideration. As previously stated, however, mere doubt as to the correctness of the prior ruling is not enough to change the prior ruling; only where the prior appellate ruling is manifestly erroneous or application of the law of the case rule would result in an obvious injustice should the “law of the case” rule not bar reconsideration of the matter.

The issue before this court, then, is whether the writ panel’s prior ruling was manifestly erroneous or resulted in an obvious injustice. As previously noted, the panel ruled only on the hearsay testimony of Judy Tedesco, but did not rule on whether Michael Welch could testify regarding the written note he claims Mrs. Welch wrote him but he later destroyed. The record shows that the trial court and the parties received the ruling from this court while Michael Welch was testifying at trial. The trial court summoned the attorneys to the bench and reported the ruling to them. Perhaps because the court and the parties had very little time to carefully review the panel decision, however, they assumed the writ panel ruling finding that Mrs. Welch’s statement to Judy Tedesco constituted a dying declaration also extended to the hearsay testimony of Michael Welch regarding the contents of a note Mrs. Welch allegedly wrote to him. For the |inmoment, we pretermit this issue while first considering the correctness of the writ panel ruling.

Under Garza v. Delta Tau Delta Fraternity National, 2005-1508 (La.7/10/06), 948 So.2d 84, a person seeking to have declarant’s statement introduced into evidence under the “dying declaration” exception to hearsay rule must satisfy the court that (1) the declarant believed his death was imminent/impending, and (2) the declarant’s statement concerned the cause or circumstances of the impending death; a declaration, whether oral or written, that fails to meet either the timing or the content requirement of a dying declaration is inadmissible. LSA-C.E. art. 804(B). These elements constitute the foundation for allowing the hearsay testimony. A court’s decision regarding whether the declarant believed his death was imminent or impending rests on an evaluation of the declarant’s subjective experience, i.e., what the declarant believed and not necessarily what others knew about his medical condition. LSA-C.E. art. 804(B). The actual physical condition of the declarant at the time the statement was made is material and relevant insofar as it casts light on the state of mind of the declarant as to whether he believed his death was imminent or impending. The wider the disparity between the declarant’s apparent belief of his approaching doom and his actual physical condition, the less probable it is that he actually believed the end was near. Garza, supra; LSA-C.E. art. 804(B).

The first question then is whether the evidence shows that Mrs. Welch believed she was dying at the time she made the statement to Judy Tedesco that she had been laid down. Although little effort was made at [ntrial to pinpoint exactly what time Ms. Tedesco met with Mrs. Welch and made the statement at issue, the record is clear that the statement was made within a fairly short time after Dr. Smith intubated Mrs. Welch. The nurses’ notes entry that the intubation had been accomplished were recorded at 11:14 p.m. on the night of the 27th.

Ms. Tedesco testified that she arrived at the hospital around 7:30 or 8:00 p.m., on the evening Ms. Welch aspirated, which was Friday, August 27,1999. She testified that she was not allowed to see Mrs. Welch, and a nurse told her the Mrs. Welch had aspirated. Ms. Tedesco waited in the lobby until the staff told her she could visit her:

They finally came and got me and said okay you can come see your sister. When I went in there she was awake. She was intubated and she had her tube feedings going and she looked at me and she said what happened. And I said you aspirated and she said to me, [“]damn, I told them not to lay me down.[”]

Ms. Tedesco elaborated as to why Mrs. Welch’s used the word “damn.”

She was angry. She was angry. She never — she was like my mother. She never ever said cuss words unless she was very angry.

Ms. Tedesco further testified that her sister could only mouth the words to her due to the ventilator tubes, but she was positive regarding what her sister told her.

Dr. Smith testified that he arrived at the hospital at approximately 10:35 p.m. Referring to his progress notes that appear to have been made contemporaneously, he stated that Mrs. Welch was in marked respiratory distress with agonal shallow respirations. Dr. Smith explained that the term |12“agonal” basically characterizes a patient’s breathing as a “last gasp” effort. “She’s labored and has very little time left when you get to that point,” he said. “She’s not going to be able to survive with that kind of respiratory effort” because the shallow respirations are not deep enough to support or move her air adequately to ventilate her. The result of this acute respiratory failure, said Dr. Smith, is respiratory acidosis or C02 narcosis, which was happening to Mrs. Welch at that time. In other words, he said, “She’s dying.”

Dr. Smith testified that after he intubat-ed Mrs. Welch, her partial pressure oxygen level in her arteries (denoted by “P02 ”) increased from 49 to 108, which, while low considering she was breathing 100% oxygen, was enough to sustain her. However, she still was having respiratory acidosis, which reflected the inability to blow off C02 gas. This causes the blood gas PH to plummet. His notes reflect that prior to placing her on the ventilator, Mrs. Welch’s blood gas PH was 7.07. After being put on the ventilator, her PH rose to 7.12. Normal is 7.4 according to Dr. Smith, and anything less than 7.25 is considered very severe acidosis. The notes also reflect that Mrs. Welch’s blood pressure .was very low, and she was given massive doses of pressors.

Dr. Smith stated in his progress notes on 8/28/99 that between 3:50 a.m. and 4:40 a.m. he discussed the case at length with the family, and he had little else to offer the patient therapeutically. Finally, he wrote in his 113notes during this period that Mrs. Welch’s prognosis was “very grim at present.” At trial, he explained that “the odds were that evening probably 50/50 that she would survive that evening.”

Finally, the nurses’ notes state that at 1800 hours (6:00 p.m.) Mrs. Welch received 240 cc of Ensure plus, tolerated it well, was resting quietly at this time, and there were no signs of distress. The drains were pulled at 1900 hours (7:00 p.m.) and pressure dressings applied. At 1910 hours (7:10 p.m.), obviously after Mrs. Welch aspirated, the notes state that Mrs. Welch stated: “I can’t breathe.” They further state that she was “suctioning her mouth with a yaunker.” The notes state that Mrs. Welch was “alert and anxious,” but she followed commands.

At 1930 hours, after Mrs. Welch’s blood oxygen pressure levels had dropped considerably, the nurses’ notes state that the patient was “very anxious” and stated: “I am having a hard time breathing.”

The objective evidence clearly indicates that Mrs. Welch was in grave danger of dying after she aspirated, and the record further shows that subjectively, she feared her death was imminent. The nurses’ notes indicated she was “very anxious” and she stated “I can’t breathe.” Dr. Smith testified that she was laboring to breathe with “last gasp” effort, and | ucould not last long in those circumstances. He testified that at that point, “she’s dying.” Few things can convey the fear of imminent death more than a feeling of suffocation.

Nevertheless, the statement allegedly made to Ms. Tedesco occurred after Mrs. Welch had been intubated and was placed on the ventilator. The evidence of her subjective belief that death was impending at this stage is less apparent from the record. However, it is clear that Mrs. Welch was still in grave danger of dying. Dr. Smith testified that she still had C02 acidosis, very low blood pressure for which she was given massive amounts of “pres-sors,” and her chances of survival were 50/50. As previously stated, the actual physical condition of the declarant at the time the statement was made is material and relevant insofar as it casts light on the state of mind of the declarant as to whether she believed her death was imminent or impending. Clearly Mrs. Welch knew she was still in grave danger since she was placed on a ventilator, which is a life support system. The only evidence of Mrs. Welch’s state of mind is the impression Mrs. Tedesco had when Mrs. Welch made the statement to her. She testified based on her knowledge of her sister that Mrs. Welch’s use of the word “damn” indicated that she was angry. We have no reason to believe that feelings of anger are inconsistent with a person’s belief that he or she is about die.

Based on this record and evidence, we conclude that the writ panel was correct in its conclusion that the statement Mrs. Welch made to Judy Tedesco met the timing and content requirement of the statute so as to constitute a dying declaration within the meaning of La. C.E. 804(B)(2). 11BMrs. Welch believed her death was imminent and the statement concerned what she believed was the cause.

By contrast, we conclude that the trial court erred in allowing the hearsay testimony of Michael Welch regarding the alleged written note from Mrs. Welch. As noted above, the opinion and ruling by the writ panel did not mention the note and the hearsay testimony of Mr. Welch. The general rule regarding trial court judgments is that when a judgment is silent with respect to a party’s claim, it is presumed that the trial court denied the relief sought. TSC, Inc. v. Bossier Parish Police Jury, 38,717 (La.App. 2 Cir. 7/14/04), 878 So.2d 880. We are unaware of any such rule regarding appellate panel judgments, but we conclude in this case that it is not necessary to extend that general rule to the writ panel decision.

The testimony regarding the timing and circumstances in which Mrs. Welch allegedly wrote the note to Mr. Welch is nebulous at best. Mr. Welch was vague regarding when the note was allegedly written, simply stating that she wrote him a lot of notes. Nor is it certain when Mr. Welch actually arrived at the hospital and met with his wife after the intubation. Dr. Smith recorded in his progress record for the time period between 3:50 a.m. and 4:40 a.m. on 8/28/99:

Family present & have discussed case @ length. Unfortunately, little else to offer patient therapeutically that may be of any assistance. Will pursue PA catheter if family will consent (husband en route), (emphasis supplied).

It appears then that Mr. Welch did not see Mrs. Welch until several hours after the intubation. Although Mrs. Welch was still in grave danger at this time, we believe that her residual fear of impending death that probably | ^reached its peak during the evening of the aspiration and the difficult intubation, and for a short period thereafter, would have begun to subside. Finally, we note that Mr. Welch testified that he destroyed the notes his wife wrote him, even though it is apparent from the record that he had already accused the staff of laying Mrs. Welch flat and even though he kept notes he allegedly wrote contemporaneously regarding her care. Under these circumstances, we conclude that his testimony regarding the alleged notes should not have been permitted. Accordingly, it was error for the court to allow the hearsay testimony of Mr. Welch. Whether this error requires reversal will be discussed below.

Turning now to the remaining assignments of error, the defendants allege in their fourth and fifth assignments of error that the jury was clearly wrong in finding a breach in the standard of medical care by the Willis-Knighton nurses either during and after the PEG tube feeding or when the Davol drains were pulled. More specifically, the defendants complain that the entries in the medical record that were corroborated by the testimony of the nurses in the room at these times preclude a finding by the jury that the standard of care was breached, and that there was no admissible evidence that Mrs. Welch’s head was elevated less than 30 degrees at the time of her PEG tube feeding and for one hour thereafter.

In a medical malpractice action against a hospital, the plaintiff must prove, as in any negligence action, that the defendant owed the plaintiff a duty to protect against the risk involved, that the defendant breached that duty, that the plaintiff suffered an injury, and that the defendant’s actions 117were a substantial cause-in-fact of the injury. Gordon v. Willis Knighton Medical Center, 27,044 (La.App. 2 Cir. 6/21/95), 661 So.2d 991, writ denied, 95-2776 (La.1/26/96), 666 So.2d 679, and writ denied, 95-2783 (La.1/26/96), 666 So.2d 679. A hospital is bound to exercise the degree of care toward a patient that his or her condition requires, which must be determined under the particular facts and circumstances. Id.] Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986).

A determination of whether a hospital has breached those duties depends upon the facts and circumstances of each particular case. Id.; Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974). A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). Thus, to reverse a trial court, the appellate court must find from the record that a reasonable factual basis does not exist for the finding, and further that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra at 844. However, where documents or objective evidence so contradict the witness’s testimony, or the testimony is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the testimony, the court of appeal may find manifest error even where the finding is purportedly based on a credibility determination. Id. at 844-45. But where this situation does not exist, and a factfinder’s determination is based on its decision to credit the testimony of 118one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. at 845.

The gist of the defendants’ argument is that there is no reasonable factual basis in the evidentiary record for the jury to conclude that the nursing staff breached the standard of care by failing to ensure that Mrs. Welch’s head was elevated at least 30 degrees. Pitting the written medical record against the alleged hearsay testimony of Judy Tedesco and Michael Welch, they argue that the latter was not only inadmissible but also implausible. The defendants conclude that a rational jury could not find the hospital liable.

The documentary or “objective” evidence regarding whether the head of Mrs. Welch’s bed was elevated during and after the 6:00 p.m. PEG feeding and removal of the Davol drains consists of entries in the nurses’ notes. There are only two entries in the nurses’ notes that refer to the head-of-bed elevation that were actually recorded on August 27, 1999. The first entry, at 0715 hours (7:15 a.m.) was made by Nurse McMorris, wherein she writes: “Rec’d c[with] HOB † 20,” indicating the head of bed was elevated 20 degrees. Nurse McMorris’s note entry written at 1800 hours when she fed Mrs. Welch via the PEG tube and at 1900 hours stating she had removed the drains and applied pressure dressings say nothing more about the head of bed being elevated greater than 20 degrees, nor do any of her other note entries that day state that she lowered the head of the bed. The very next entry, written at 1910 hours by a nurse of the next shift, apparently D. Adkins, R.N., read:

| ^Pt. HOB t, c/o SOB and states “I can’t breath[,”] drainage noted @ stoma site light brown in color....

which translated means, “Patient head of bed elevated, complains of shortness of breath and states “I can’t breathe....” Assuming that this entry reports merely what Nurse Adkins observed, and not that she herself elevated the head of the bed, the entry does not indicate that the elevation of the head of the bed is more or less than the 20 degrees of the 0715 entry.

During the night or early morning hours following the aspiration, Michael Welch accused the nurses of laying Mrs. Welch flat and thereby caused her to aspirate. Mr. Welch testified at trial that it was Dr. Smith who told him that the nurses had laid Mrs. Welch flat and caused her to aspirate, although Dr. Smith testified that he had no recollection of what was said in his conversation with the family that evening. However, as a result of these accusations, Nurse McMorris wrote the following “late entry” into the nurses’ notes the next evening at 1115 hours on 8/28/99.

It was brought to my attention that spouse c/o pt being laid flat during feeding or during removal of Davol drains. Pt was fed c [with] HOB f 40°. There were 3 nurses in the room when drains were pulled. Jeff Car, Susan Smith & Debra Liegey all witness that pt’s HOB was elevated 30°. I was pt’s primary nurse on 8/27/99 from 7A to 7pm. I do not know of any other nurse entering the room & laying pt. flat.
O. McMorris, RN

The story told in this late entry was only partially corroborated at trial. Deborah Liegey testified that she assisted Nurse McMorris roll Mrs. Welch over and tip her hip so that her drains could be pulled. She recalled that she left the room before Nurse McMorris changed the dressings. She stated that the bed was semi-reclined up about one foot, which she estimated 12pwas 30 degrees or more. Jeff Carr testified that he stuck his head head in the door of the room when he was leaving his shift a few minutes after 7:00 p.m. He said Nurse McMorris was in the room alone on the left side of Mrs. Welch. He asked Nurse McMorris if she needed any help and she declined. He said he observed the already-pulled drains on the bed and Mrs. Welch was looking to her left either watching television or speaking with Nurse McMorris. He testified that the head of the bed was elevated at least 30 degrees. He said that Deborah Liegey was with him and Susan Smith was a few steps behind them.

Although Dr. Smith ultimately testified that he did not believe that the nurses breached the standard of medical care at any time in their care of Mrs. Welch, his testimony could have been seen as somewhat equivocal by the jury. For example, Dr. Smith did not testify that he did not tell Michael Welch that the nurses had laid Mrs. Welch flat. He simply said he did not recall what he might have said during the conversation. The jury could have interpreted his testimony as an attempt to shield the hospital or the nurses.

Additionally, two of the plaintiffs experts, Dr. Myron Jacobs and Joanne Gon-gora, R.N. expressed their opinion that Mrs. Welch had been laid flat. Dr. Jacobs opined that the medical events in the record indicated that Mrs. Welch had been laid flat during or too soon after the 6:00 p.m. PEG tube feeding. He testified that this caused Mrs. Welch to aspirate, and this aspiration and the complications that arose therefrom caused Mrs. Welch’s death. Nurse Gongora testified as to the meaning of the entries in the nurses’ notes, anesthesia record, progress notes, etc. Importantly, Nurse |2iGongora explains that the time entries in the notes do not generally reflect exactly when an action is taken, but are usually entered afterwards. Based on these entries, she opined that Mrs. Welch had been laid flat when the drains were pulled recorded in the 7:00 p.m. entry by Nurse McMorris, and this caused Mrs. Welch to aspirate, evidenced by the 7:10 p.m. entry.

Finally, there is the testimony of Judy Tedesco, who stated that she was allowed to see Mrs. Welch after she was intubated, and Mrs. Welch told her that she had been laid flat. The defendants attack this testimony not only on grounds that it is hearsay, but that it is not credible under the circumstances. First, they argue that a person intubated is physically unable to speak, and second, the plaintiffs are motivated by their financial interest in the outcome of the case. Be that as it may, it is the province of the jury to determine the credibility of a witness and to decide what weight to give testimony.

Accordingly, after review, we conclude that the objective medical record is not so conclusively contradictory to the jury verdict as the defendants argue. At best, the contemporaneously made nurse note entries show that the head of the bed was not raised or lowered from the initial 20 degree elevation some 11 hours earlier, which is still 10 degrees lower than the 30 degrees called for by the standard of care. Next, the “late entry” is internally inconsistent, stating on the one hand that the head of the bed was elevated 40 degrees when Mrs. Welch received the 1800 feeding and at the 1900 dressing change, but then records that there were three nurses in the room when the drains were pulled and all witnessed that the bed was ^elevated 30 degrees. The testimony of these witnesses indicates that they were not actually in the room when the drains were pulled. Deborah Liegy said she was only present to help turn Mrs. Welch on her side, and Jeff Carr testified that he only stuck his head in the room and observed the already-removed drains on the bed when he asked Nurse McMorris if she needed assistance. Although both of these nurses testified that the head of the bed was elevated, the jury could have concluded that they were trying to protect their coworker.

For these reasons, we cannot say that the jury was clearly wrong in finding that Willis-Knighton or the nurses breached the standard of care by failing to elevate the head of Mrs. Welch’s bed 30 degrees during and after the tube feeding or removal of the Davol lines. These assignments are without merit.

For the same reasons, we conclude that the defendants’ final assignment of error is without merit. By this assignment, the defendants contend that the trial court erred in denying Willis-Knightoris motion for JNOV or, alternatively, a New Trial, because a reasonable jury could not have concluded based on the corroborated evidence and testimony that the hospital breached the standard of care.

A JNOV is warranted only when the facts and inferences, viewed in the light most favorable to the party opposing the motion, is so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict; the motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable | ^men could not reach a different conclusion, not merely when there is a preponderance of the evidence for the mover. Peterson v. Gibraltar Savings and Loan, 1998-1601 (La.5/18/99), 733 So.2d 1198.

In denying the defendants’ motions for JNOV and New Trial, the trial court stated that it believed that a jury untrained in the law and the Code of Evidence would have great difficulty giving the statement of Judy Tedesco the appropriate weight and consideration. The trial court went on to say that if the hearsay statement had been excluded he might have come to a different conclusion on the motions. The trial court conceded, however, that if the evidence of the dying declaration testimony is valid, “I have to conclude that the jury verdict is correct.”

We have previously ruled that the statement to which Judy Tedesco testified constituted a valid dying declaration; however, we also ruled above that the hearsay testimony of Michael Welch was not admissible as a dying declaration.

The effect of an erroneous evi-dentiary ruling is that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected.” La. C.E. art. 103. The admission of hearsay testimony is subject to the harmless error analysis. Finch v. ATC/Vancom Management Services Ltd. Partnership, 09-483 (La.App. 5 Cir. 1/26/10), 33 So.3d 215; Brooks v. Southern University and Agricultural and Mechanical College, 2003-0231, p. 11 (La.App. 4 Cir. 7/14/04), 877 So.2d 1194, 1203, writ denied, 2004-2246 (La.11/19/04), 888 So.2d 208. Moreover, where evidence is admitted that is merely | ^cumulative of other evidence in the record, any error in its admission is harmless. See, e.g., Everhardt v. Louisiana Dept. of Transp. and Development, 2007-0981 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1048.

In this instance, the testimony of Mr. Welch regarding the note she allegedly wrote him concerning her being laid down was cumulative. We conclude, therefore, that the erroneous admission of Mr. Welch’s testimony was harmless error.

Accordingly, this assignment is without merit.

Dismissal of Carrie Lynne Welch

At the conclusion of the plaintiffs’ case, the defense moved to dismiss the plaintiff Carrie Lynne Welch pursuant to La. C.C.P. art. 1672(A) because Carrie Lynne did not personally appear at trial. This dismissal is clearly an error of law.

La. C.C.P. art. 1672(A)(1) states:

A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.

In this case, although Carrie Lynne Welch did not personally appear at trial, her attorney was present and tried the case. It is well-settled that an appearance by a party for trial may be either personal or through his counsel of record. Jackson v. City of Westlake, 2003-782 (La.App. 3 Cir.2/10/03), 861 So.2d 771; Berger v. Johnson, 141 So.2d 164 (La.App. 4 Cir.1962). Accordingly, the trial court erred as a matter of law by dismissing Carrie Lynne Welch.

1 iaThe record also shows that the jury attempted to award Carrie Lynne Welch damages but were prohibited by the trial court due to the dismissal. At trial Stephanie Welch and Mr. Welch testified that Carrie and her mother had a special relationship that arose out of Mrs. Welch being advised to abort Carrie during Mrs. Welch’s pregnancy. Mrs. Welch was undergoing treatment for lymphoma and doctors were fearful that the baby would not be normal due to the medical treatment Mrs. Welch was undergoing. Nevertheless, Mrs. Welch refused to abort the child and thereafter she was always very protective of Carrie. Mr. Welch testified that Carrie could not come to the trial because she was still emotionally distraught over her mother’s death.

We therefore render judgment in favor of Carrie Lynne Welch and award her damages in the amount of $100,000 for the wrongful death of Linda Welch.

Conclusion

For the reasons stated above, we affirm the judgment of the trial court in the plaintiffs’ favor and against Willis-Knigh-ton Medical Center and the Patients Compensation Fund. We reverse the judgment of the trial cpurt dismissing the plaintiff Carrie Lynne Welch, and we award damages in the amount of $100,000 in her favor.

AFFIRMED IN PART; REVERSED IN PART; JUDGMENT RENDERED.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.

      . PEG is the acronym for a percutaneous endoscopic gastrostomy tube inserted by a surgical incision into the stomach, so that liquid feeding can be accomplished for nourishment.

      . We note that the panel did not rule regarding the hearsay testimony of Mr. Welch.

      . Pressor drugs are used to treat hypotension resulting from cardiogenic shock, circulatory shock (including septic), hemorrhagic shock, and hypotension that sometimes occurs during surgical anesthesia.

      . Over the next five days, Mrs. Welch’s condition remained very serious. She continued to suffer from acute respiratory distress, low blood pressure, septic shock. Her daily prognosis (predicted outcome) only improved from "grim” to "poor” to "guarded.” In other words, Mrs. Welch remained in grave danger of dying.

      .A Yankauer suction device. Developed circa 1907 by Dr. Charles Yankauer, the Yan-kauer Suction Instrument has become the most common suction instrument in the world. It’s primary use is to aspirate fluid and debris from either a surgical site or body orifice (e.g. airway).


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Steven L. ENTERKIN, Appellant.
    No. 45,655-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 17, 2010.

      Louisiana Appellate Project by Peggy J. Sullivan, for Appellant.
    William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Penny W. Douci-ere, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, STEWART and LOLLEY, JJ.
   STEWART, J.

11 On March 12, 2009, the defendant, Steven L. Enterkin, was charged by bill of information with one count of aggravated rape, a violation of La. R.S. 14:42. On January 21, 2010, the jury found Enterkin guilty of the responsive verdict of molestation of a juvenile. On February 19, 2010, Enterkin filed a motion for judgment of acquittal, or in the alternative, a motion for a new trial, or further in the alternative, a motion for modification of the verdict. Enterkin’s motion was taken up by the trial court on February 23, 2010. The trial court granted Enterkin’s motion in part by amending the jury verdict from molestation of a juvenile to that of sexual battery. The trial court subsequently sentenced Enterkin to serve 30 years at hard labor, with the first 25 years to be served without the benefit of parole, probation or suspension of sentence. Enterkin now appeals, urging three assignments of error. For the following reasons, we reverse the ruling of the trial court, reinstate the jury’s responsive verdict of guilty of molestation of a juvenile, and remand the matter to the trial court for resentencing in accordance therewith.

| .FACTS

On August 19, 2006, K.M., who was 11 years old at the time, was living with her mother, her older sister, and her younger brother, in a trailer home in Wisner, Louisiana. That evening, K.M.’s sister had her boyfriend spend the night. 21-year-old Steven Enterkin, a friend of KM.’s sister’s boyfriend, also stayed the night in the trailer as a guest of K.M.’s mother. Enterkin and KM.’s mother spent the evening drinking and having sex in her bedroom. At some point in the night, En-terkin left K.M.’s mother’s bedroom and went into the living room where K.M. was sleeping on the couch. After lying down on the couch next to K.M., Enterkin asked K.M. if she wanted to “do anything.” Despite her telling him no, Enterkin performed oral sex on the child and then had anal sexual intercourse with her.

During the trial, KM.’s grandmother testified that on August 19, 2006, K.M., her sister, and her brother were living with them mother in Wisner, Louisiana. After the grandmother learned that KM.’s mother threatened to kill her son while disciplining him, the children moved in with her in 2007. The grandmother also explained that K.M.’s mother had remarried a man who she believed was involved with drugs. After the children moved in with her, the grandmother began noticing that K.M.?s brother was exhibiting some problems at school. She contacted school officials and enrolled him in a counseling program.

| »After approximately 14 months of counseling, K.M.’s brother’s counselor informed KM.’s grandmother that he was not improving and would be released. She was told by the treating psychiatrist that his case was going to be turned over to the state, as it had become apparent that he had suffered some type of abuse, likely sexual in nature. The grandmother then went home and sat the children down to talk to them about the situation. She told them that they needed to tell her if anything had happened to them because they might be placed in foster care. K.M. then confided to her grandmother that Enterkin had sex with her. When her grandfather asked if she was afraid at the time that she would get pregnant, she responded that she was not afraid because Enterkin had anal sex with her.

The grandmother related K.M.’s story to Child Protective Services when they visited her home the next evenings The grandmother testified that she had no grudge against Enterkin or other reason to falsely report the abuse. She further testified that she cooperated with Child Protective Services in hopes of having the children reunited with their mother.

After K.M. told her grandmother about the sexual abuse, she was taken to Dr. Mead O’Boyle for a medical examination. She also gave a statement to law enforcement authorities. After an investigation was completed, Enterkin was arrested for aggravated rape.

K.M. testified that on July 14, 2006, her father died. She stated that during that July and August she was living with her mother, sister and brother in a trailer in Wisner, Louisiana. K.M. testified that she knew the Ldefendant, Enterkin, through her sister’s husband. She then identified Enterkin in open court. She testified that Enterkin would come to the trailer every so often and that she thought of him as a brother. She stated that the sexual encounter occurred on August 19, 2006. K.M. did not see Enterkin until a week later. She was in the trailer doing her homework. Enterkin began talking to K.M. and asked her if she would give him a kiss. She told him no, that she was busy doing her homework. He then got angry and left.

K.M. explained that she did not tell her mother or sister about the encounter because she was afraid. The first person she reported the incident to was her grandmother. K.M. then spoke with Lisa Roberts and provided her with all the details of that night. K.M. testified that she was telling the truth and that she had no ill will towards Enterkin that would cause her to make up the story.

Lisa Roberts, a child protection investigator with the Department of Social Services, testified that she received a report on September 18, 2008, concerning K.M. and her brother. Initially, she was informed that KM.’s brother had suffered some abuse. While conducting an investigation regarding her brother, Roberts was told by K.M. about the sexual abuse she suffered by Enterkin.

After talking to K.M., Roberts reported the incident to law enforcement, specifically talking to Mike Gilmore of the Winns-boro Police Department. K.M. agreed to talk to law enforcement and was interviewed on September 24, 2008.

| SK.M. and her brother both received medical examinations to check for signs of sexual abuse. K.M. was also referred to a counseling center that specializes in sexual abuse.

Roberts testified that it was not unusual for a victim, such as K.M., to wait years until reporting sexual abuse. She explained that many children never report such abuse.

Dr. Mead O’Boyle, an expert in child sexual abuse, testified that she examined K.M. on October 15, 2008. In her report, Dr. O’Boyle had written that K.M. told her the incident happened in October 2006. Dr. O’Boyle stated that they tried to figure out the date, and that it was probably earlier in the year than October. In all other respects, the story K.M. told Dr. O’Boyle was substantially similar to the one she told Roberts and related in her trial testimony.

The State rested following Dr. O’Boyle’s testimony. The defense then rested its case. The jury was excused and the trial court asked both counsel for the state and the defendant whether they had read over the jury instructions, and if they had any changes they would like to make. Neither requested any changes. After closing arguments, the trial court read the jury charges, including the agreed-to responsive verdicts. The jury was then excused to deliberate, and the trial court asked both counsel for the state and counsel for Enterkin if they had any corrections to the jury instructions, and both stated that they did not.

On January 21, 2010, the jury found Enterkin guilty of molestation of a juvenile. On February 23, 2010, the trial court heard Enterkin’s “Motion Rfor Judgment of Acquittal, or in the alternative, a Motion for New Trial, or further in the alternative, a Motion for Modification of the Verdict.” The trial court noted that the jury had found Enterkin guilty of a responsive verdict of molestation of a juvenile, defined in La. R.S. 14:81.2 as “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 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.” The defense argued that no rational trier of fact could have found that Enterkin used force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or influence by virtue of a position of control or supervision. The trial court agreed. The trial judge expressed his opinion that Enterkin should have been found guilty of aggravated rape.

The trial court then indicated that it would amend the verdict to find Enterkin guilty of indecent behavior with a juvenile. The state suggested to the trial court that it amend the verdict to sexual battery. Finding the definition of that crime consistent with the elements proven at trial, the trial court amended Enterkin’s verdict to sexual battery.

After Enterkin waived sentencing delays, the trial court began the sentencing phase. The trial court, consulting the pre-sentence report, went through the relevant factors for sentencing. Enterkin was sentenced to 3017years at hard labor, with the first 25 years to be served without the benefit of parole, probation or suspension of sentence. Additionally, Enterkin was informed that he must register as a sex offender. Enterkin now appeals.

DISCUSSION

Sufficiency of the Evidence

Enterkin argues that the evidence adduced at trial was insufficient to support a conviction of sexual battery, molestation of a juvenile or indecent behavior with a juvenile.

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

The Jackson standard, now legislatively embodied in La.C.Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000); State v. Givens, 45,246 (La.App. 2 Cir. 4/09/10), 41 So.3d 589. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Black, supra; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Eason, supra; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490.

IflAn appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607.

The defendant was charged with aggravated rape, which is defined in La. R.S. 14:42, in pertinent part, as:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

K.M.’s uncontradicted testimony of the events that occurred on August 19, 2006, which included testimony concerning anal intercourse, is sufficient, in and of itself, to prove that Enterkin committed aggravated rape. Her testimony was corroborated by several witnesses, including KM.’s sister, who testified that when she came out to the living room sometime in the night she saw Enterkin lying next to K.M. with his arm draped over her. K.M. was markedly consistent in her story as relayed to her grandmother, Lisa Roberts and Dr. O’Boyle. Furthermore, Dr. O’Boyle Imtestified that it was not unusual for a child to wait a long period of time, months or years, to report sexual abuse. While Dr. O’Boyle did not find any physical evidence of trauma to KM.’s anus, she testified that she did not expect to find any because of the length of time between her examination and the rape.

There was also sufficient evidence to prove the date of the offense. KM.’s uncontradicted testimony was that Enter-kin raped her on August 19, 2006. She testified that she remembered the date because it was the weekend before school started. K.M.’s mother and sister both corroborated K.M.’s testimony, stating that the rape occurred sometime after KM.’s father died on July 14, 2006, and sometime before September 2006. K.M.’s uncontradicted testimony is sufficient to prove the date of the offense.

The record also reveals sufficient evidence to convict Enterkin of molestation of a juvenile. Molestation of a juvenile is defined in La. R.S. 14:81.2, in pertinent part, as:

A. 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.

K.M. testified that she was awakened by Enterkin in the middle of the night. She told him that she did not want to do anything with him. Thereafter, he continued to touch her legs and repeatedly asked her if she wanted to do something with him. She testified that she finally consented because she |nwas afraid of what would happen to her. After he was finished, he warned her not to tell anyone about what he had done. The foregoing facts demonstrate that Enterkin used psychological intimidation to commit sexual acts upon K.M.

There was sufficient evidence to prove that the defendant committed sexual battery as well. Sexual battery is defined in La. R.S. 14:43.1, in relevant part, as:

A. 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 ...

K.M.’s uncontradicted testimony demonstrates that she was under the age of 15, was at least three years younger than Enterkin, and that there was a touching of the anus or genitals of the victim, K.M., using an instrumentality or part of the body of the offender, Enterkin.

From the totality of the evidence presented to it, the jury could have reasonably concluded beyond a reasonable doubt that defendant was guilty of aggravated rape, as well as both of the possible responsive verdicts. The jury’s choice to return the responsive verdict of molestation of a juvenile is fully supported by the evidence. Therefore, this assignment is without merit.

11⅞Modification of the Verdict

In the third assignment of error, the defendant asserts that the trial court erred in modifying the jury’s verdict from molestation of a juvenile to sexual battery, because sexual battery is not a lesser included offense of molestation of a juvenile.

A jury has the prerogative to compromise and render a lesser responsive verdict whenever it could have convicted as charged. State v. Bryant, 33,078 (La.App. 2 Cir. 3/1/00), 754 So.2d 387. A defendant will not be entitled to review of a responsive verdict, even where insufficient evidence exists to support the responsive verdict, if he does not contemporaneously object to its inclusion. Id.; State v. Schrader, 518 So.2d 1024 (La.1988), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221 (1990).

A post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. La. C. Cr. P. art. 821(B).

In this case, the trial court erred in amending the jury’s verdict of molestation of a juvenile. The jury chose, as was its prerogative, to render a responsive verdict of guilty of molestation of a juvenile despite having sufficient evidence to convict the defendant of aggravated rape. As discussed in the first assignment, sufficient evidence existed to convict Enterkin of aggravated rape and the jury chose to compromise and impose a responsive verdict of molestation of a juvenile.

11RWe find that the trial court erroneously changed the verdict from molestation of a juvenile to sexual battery. The jury imposed a responsive verdict of molestation of a juvenile, and as determined above, sufficient evidence existed to convict Enterkin of the crime charged. Therefore, we reinstate the jury’s responsive verdict of guilty of molestation of a juvenile.

Sentencing

The defendant argues in his second assignment of error that his sentence is excessive. Due to the reversal of the trial court’s verdict, the sentence imposed is likewise vacated. The matter will be remanded for resentencing for the offense of molestation of a juvenile.

CONCLUSION

For the foregoing reasons, the ruling of the trial court is reversed, the jury’s responsive verdict of guilty of molestation of a juvenile reinstated, and the matter remanded to' the trial court for resentencing in accordance therewith.

REVERSED AND REMANDED FOR SENTENCING.

      . The bill of information charged that the defendant violated "14:42 Aggravated Rape by committing rape upon K.M., on or about August 19, 2006 ...” The bill did not set forth the age of K.M., or the fact that the defendant was being charged with aggravated rape of a child under the age of 13. After conducting a thorough review of the statutory and jurisprudential law, it does not appear that the state was required to set forth such facts. La. C. Cr. P. art. 465 lists specific indictment forms for the charging of certain offenses. The form for aggravated rape which may be utilized under the statute provides: 39. Aggravated Rape-A.B. committed aggravated rape upon C.D. In the instant case, the trial court explicitly stated in its charges to the jury that "[t]he defendant has been charged with committing the aggravated rape of [K.M.][s¿c ] on or about August 19, 2006, when she was under the age of thirteen years old.” The defendant has not alleged that he was unaware of the charges against him.

      . Pursuant to La. R.S. 46:1844(W), the victim is referenced herein only by her initials.