author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Jermaine Peayre CARTER, Appellant.
    Nos. 46,710-KA, 46,711-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.
    Rehearing Denied Dec. 8, 2011.

      James E. Beal, Jonesboro, LA, for Appellant.
    Jermaine Peayre Carter, pro se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Edward C. Jacobs, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   WILLIAMS, J.

11 The defendant, Jermaine Peayre Carter, was charged by bill of information with distribution of a Schedule I controlled dangerous substance (“CDS”), i.e., marijuana, a violation of LSA-R.S. 40:966(A), and aggravated flight from an officer, a violation of LSA-R.S. 14:10s.!. Following a jury trial, he was found guilty of distribution of a Schedule I CDS and flight from an officer, a lesser included offense to the charge of aggravated flight from an officer. He was sentenced to serve 28 years at hard labor for the distribution of marijuana conviction and 6 months for the flight from an officer conviction. The sentences were ordered to be served consecutively. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

On February 5, 2009, Officer Gene Hil-len of the Benton Police Department conducted a traffic stop in Benton, Louisiana. The female driver appeared frightened when the officer observed traces of marijuana in her vehicle. To prevent being arrested, the woman informed the officer that she “could get dope from Shreveport.” Shortly thereafter, the Benton Police Department arranged a controlled drug buy, using the woman as a confidential informant. The drug transaction was scheduled to take place at a Dixie Mart convenience store in Benton.

Officer Hillen testified as follows: he accompanied the informant as she made a telephone call to an unknown individual; he listened as the ^informant arranged to purchase marijuana to be delivered to the north side of the Dixie Mart parking lot; after the conversation between the informant and the other party, Officer Hillen parked his police vehicle across the street from the store to await the completion of the drug buy; using binoculars, Officer Hillen observed a silver sports utility vehicle turn into the parking lot of the store; two individuals were in the vehicle; the defendant, Jermaine Peayre Carter, was later identified as the passenger of the vehicle; Quion Smith was identified as the driver; the informant approached the driver’s side of the vehicle, talked to Smith for several seconds and gave Smith money; Smith gave the informant “something” in return; the informant then executed a prearranged signal to indicate to the officer that she had purchased the drugs.

After the drug transaction was completed, the defendant exited the vehicle and entered the store. When the defendant left the store, Officer Hillen, who was dressed in tactical police clothing marked “POLICE,” approached the defendant, identified himself as “police” and instructed the defendant to “Stop, don’t move.” The defendant looked at the officer and then looked at the vehicle. The defendant then ran to the vehicle and jumped inside, as Officer Hillen continued to yell, “Stop.” By this time, the officer had his weapon drawn and pointed at the defendant. Smith drove away and a high-speed chase ensued. The vehicle traveled toward Bossier City at approximately 115 mph. Officer Hillen and other police officers pursued the vehicle in marked police cars with lights and sirens activated. At least 20 marked police vehicles were involved in the pursuit, all with ^activated lights and sirens.

Benton Police Chief Charles L. Pilkinton testified as follows: he participated “as a backup” in the controlled drug buy; he observed Officer Hillen attempt to stop the defendant; he also observed Officer Hillen draw his weapon. Chief Pilkinton was the lead marked police car in the pursuit. He observed as Smith pulled out of the parking lot in front of traffic and ran multiple red lights during the chase. He pursued the vehicle with his lights and sirens activated, driving approximately 111-128 mph. He observed the defendant throw a plastic-covered package out of the passenger window; the package hit the windshield of Chief Pilkinton’s police car and splattered, leaving a substance on the windshield; the remainder of the substance went “all over” the highway. The chase concluded when Smith turned on a dead-end street in Cad-do Parish. Smith exited the vehicle and fled on foot. The defendant was found sitting in the front passenger seat of the vehicle. The substance that was thrown out of the window was recovered and tested positive for marijuana.

The defendant was arrested and charged by bill of information with distribution of a Schedule I CDS (marijuana), in violation of LSA-R.S. 40:966(A), and aggravated flight from an officer, in violation of LSA-R.S. 14:108.1. The defendant waived his right to counsel. The trial court granted the defendant’s motion to represent himself, after warning him of the dangers of self-representation. Following a jury trial, the defendant was |4found guilty of distribution of a Schedule I CDS and flight from an officer. He was sentenced to serve 28 years at hard labor on the drug conviction and 6 months on the flight from an officer conviction, to be served consecutively. The defendant’s motions to reconsider sentence and “to correct and vacate an illegal sentence” were denied.

The defendant appeals.

DISCUSSION

The defendant contends the evidence was insufficient to support his conviction for flight from an officer. He argues that since the state stipulated that he was not the driver of the vehicle involved in the high speed chase, he should not have been convicted of that offense.

A claim regarding sufficiency of evidence is properly raised by a motion for post verdict judgment of acquittal. However, if the defendant fails to make such motion, the issue will be reviewed on appeal when raised by a formal assignment of error. LSA-C.Cr.P. art. 821 and art. 920; State v. Howard, 31,807 (La.App.2d Cir.8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190. In reviewing the sufficiency of the evidence to support a conviction, the reviewing court must determine whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes charged were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; 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.

The defendant was convicted of flight from an officer under LSA-R.S. 14:108.1. This statute provides, in pertinent part:

A. No driver of a motor vehicle ... shall intentionally refuse to bring a vehicle ... to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehiclef.]

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. LSA-R.S. 14:24. A principal is liable to the same extent as the person who directly commits the crime or may be convicted of a lower degree of the crime. State v. Youngblood, 45,576 (La.App.2d Cir.9/29/10), 48 So.3d 1122; State v. White, 42,725 (La.App.2d Cir.10/24/07), 968 So.2d 901. See also, State v. Wright, 2001-0322 (La.12/4/02), 834 So.2d 974, cert. denied, 540 U.S. 833, 124 S.Ct. 82, 157 L.Ed.2d 62 (2003).

In State v. Hines, 465 So.2d 958 (La. App. 2d Cir.), writ denied 467 So.2d 536 (La.1985), a Wildlife and Fisheries agent, along with two sheriffs’ deputies, attempted to make a safety check of a boat by pulling behind the boat and activating a blue signal light. The boat sped away at a high rate of speed. During the chase, the officers observed the defendant, who was a passenger in the boat, throw several garbage bags containing illegal game fish, from the boat. The defendant’s convictions included resisting an officer by flight. This Court affirmed the conviction, stating:

[The officers’] actions, coupled with defendant’s reaction to their presence, clearly establish defendant’s knowledge that the agent was pursuing him in his official capacity and intended to arrest him. In the instant case, [the officers] appropriately conveyed their intention to detain defendants by turning to pursue them in the clearly marked Wildlife and Fisheries boat with its blue light flashing. The fact that defendant’s flight did not begin until Officer Morris turned on his blue signal light, factually supports our conclusion that the defendant was aware that he was being pursued by a law enforcement official attempting to make an arrest or detention. Although the defendant was not the driver of the boat, his actions in attempting to dispose of evidence by throwing the bags of fish overboard, tends to show that the defendant was an active participant in the flight from the officers. Thus, his actions aided and abetted the driver in fleeing from the officers, making him a principal under the terms of La.R.S. 14:24.

Id. at 962 (internal citations omitted).

In the instant case, the state’s evidence shows that Officer Hillen conveyed his intention to detain the defendant by ordering the defendant to stop and pointing his weapon at the defendant. The defendant’s actions of looking from the officer to the vehicle shows that he was aware that the 17officer was attempting to detain him. The flight began when the defendant refused to surrender, jumped into the vehicle and fled the scene with his accomplice. The vehicle was pursued by approximately 20 marked police vehicles, all with lights and sirens activated. Although the defendant was not the driver of the vehicle, his actions — jumping into the vehicle and throwing the marijuana out of the window of the speeding vehicle — supports the jury’s conclusion that he was an active participant in fleeing from the officers. The defendant clearly aided and abetted Smith in their attempted escape, thereby making the defendant a principal to the crime. Consequently, we conclude that the state presented ample factual evidence to support any rational jury’s finding that the defendant knowingly participated in the commission of the crime of flight from an officer beyond a reasonable doubt. This assignment lacks merit.

The defendant also contends his right to a fair trial was violated by the trial court’s failure to issue a subpoena to the confidential informant involved in the drug transaction. He argues that he made repeated requests for the subpoena to be issued, but to no avail.

A review of the record shows that the defendant made four separate requests for a subpoena to be issued to the informant. In a request dated January 25, 2010, the defendant identified the person as “The Police SI Drug Deal Girl,” but provided no further identifying name or address for the person. On April 14, 2010, the defendant submitted a second subpoena request for “The Drug Buy Female who the Drugs where [sic] sold too [sic]!” In two other requests, July 14 and August 24, 2010, the defendant [ ¡^identified the informant as “The Drug Buy Female SI ‘Donna’ who the Drugs Where [sic] sold too [sic]!”

The defendant contends exceptional circumstances existed because the “identity and appearance of the undercover confidential informant were crucial to the defense of the case.” He argues that the informant could have corroborated Smith’s testimony that the defendant had no knowledge that a drug transaction was going to take place and did not participate in the transaction.

The record shows that the defendant did not file any pretrial motions to obtain the disclosure of the informant’s identity. Nevertheless, the trial court issued the subpoenas as requested by the defendant. Thus, the defendant’s argument that the trial court failed to issue the subpoenas is without merit, particularly in light of the fact that the defendant never requested disclosure of the confidential informant’s identity.

CONCLUSION

For the reasons set forth herein, we affirm the defendant’s convictions and sentences.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS and LOLLEY, JJ.

Rehearing denied.

      . The defendant was also charged with criminal damage to property valued at $500 or more, but less than $50,000. However, that charge was not presented at trial and is not at issue in this appeal.

      . Smith was apprehended shortly thereafter.

      . The trial court appointed an attorney to assist the defendant during pretrial motions and during the trial.

      . As stated above, prior to granting the defendant's request to represent himself, the trial court warned the defendant of the perils of self-representation and informed him that he would be required to follow the same standards as an attorney. The trial court also appointed an attorney to assist the defendant in filing pretrial motions and during the trial.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Harrison POUNCY, Jr., Appellant.
    No. 46,714-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.
    Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Charles Rex Scott, II, District Attorney, Aaron Crawford, Suzanne Owen, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

bDefendant, Harrison Pouncy, Jr., was convicted by a jury of driving while intoxicated (“DWI”), third offense, in violation of La. R.S. 14:98(D). He was subsequently sentenced to the maximum sentence of five years’ imprisonment at hard labor. La. R.S. 14:98(D)(1)(a). Defendant now appeals. For the reasons stated herein, the conviction and sentence of Defendant are affirmed.

FACTS

The evidence adduced at tidal showed that, on the night of March 20, 2010, two members of the Shreveport Police Department, Corporal Mike Jones and Officer John Lee, were working an accident on the northbound section of Interstate 49 in Shreveport, Louisiana, between the Hollywood Avenue and Kings Highway exits. For safety reasons and because of the presence of accident debris, officers had parked a patrol car in the outside lane of travel with the emergency lights activated to divert traffic into the center and inside lanes of travel. As they waited for a wrecker to come retrieve a vehicle disabled in the accident, a car driven by Defendant in the outside northbound lane and traveling at a high rate of speed came to a screeching halt behind the officer’s patrol unit. Defendant apparently failed to notice the parked patrol unit with its lights flashing.

After pulling the car over, the officers detected the smell of alcohol and asked Defendant to step out of the vehicle. After Defendant staggered out, one of the officers conducted several field sobriety tests. On the horizontal gaze nystagmus test, Defendant registered six points, which the officer testified was indicative of intoxication. Defendant also failed the Lone leg stand test, at one point falling against his car. After being placed into custody, Defendant was transported to the Shreveport Police Department. There he was processed by another officer who also testified that Defendant smelled of alcohol. In a recorded interview, the officer read Defendant his rights relating to the administration of a Breathalyzer test and the consequences of refusal. Defendant signed the form indicating that he understood those rights. Defendant stated that he felt coerced when the officer asked him to participate in a field sobriety test, which the officer interpreted as a refusal. Defendant then consented to take the Breathalyzer test, but would not (or was unable to) complete the test.

The evidence also showed that Defendant had previously been convicted of DWI, third offense, on two prior occasions:

1.) On October 12, 1998, in lower court docket number 190,660 on the docket of the First Judicial District Court, Parish of Caddo; and,

2.) On November 18, 2008, in lower court docket number 455,569 on the docket of the First Judicial District Court, Parish of Caddo.

Given the greater than 10-year period between the earlier of the two convictions (October 12, 1998) and the instant offense (March 20, 2010), the State also adduced evidence that Defendant had spent 13 months in jail as a result of his October 12, 1998 conviction and spent 17 months awaiting trial and 1-year serving probation on his November 18, 2008 conviction. This time was not included in the calculation of the 10-year period allowed between a pri- or conviction and the commission of the crime for which Defendant is being tried in order for the prior conviction to serve as a basis |sfor convicting Defendant of a multiple offense grade of the crime of DWI. La. R.S. 14:98(F)(2).

Based on this evidence, the jury found Defendant guilty as charged of third offense DWI. Defendant filed motions for post-verdict judgment of acquittal and new trial, both of which were denied prior to imposition of sentence. Defendant was sentenced on September 28, 2010, to five years at hard labor, with 45 days to be served without the benefit of probation, parole or suspension of sentence, plus a $2,000 fine and courts costs. The trial judge stated as reasons for the sentence Defendant’s five convictions for DWI. A subsequent motion to reconsider was denied. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The sentence of five years at hard labor imposed for Defendant’s conviction of driving while intoxicated third offense constitutes an excessive sentence in this particular proceeding.

Defendant argues that the trial judge erred in failing to consider such factors as Defendant’s common-law wife and five children, employment history or any other factors set forth in La. C. Cr. P. art. 894.1, other than Defendant’s criminal history. Furthermore, Defendant argues that, because Defendant’s conduct did not result in an accident or injury to anyone, a maximum sentence is constitutionally excessive.

The State points out that the trial judge indicated she had considered the factors enunciated in La. C. Cr. P. art. 894.1, which would have included Defendant’s familial and marital ties, which were testified to at trial. The State further asserts that the trial judge was within her discretion in placing Lgreat weight on Defendant’s criminal history. Moreover, in light of the danger posed by Defendant’s conduct in the present case, as well as the lack of appreciation for the seriousness of the conduct evident in Defendant’s lack of cooperation with law enforcement, the State submits that the sentence is not excessive. We agree.

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

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

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App.2d Cir.11/1/06), 942 So.2d 658, writ denied, 06-2768 (La.6/22/07), 959 So.2d 494, and writ denied, 06-2781 (La.6/22/07), 959 So.2d 494; State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541.

The charge of DWI third offense, at the time of Defendant’s arrest, carried a sentencing range of not less than one year, nor more than five | (¡years, with or without hard labor, 45 days of which are to be served without benefits, and a $2,000 fine. As previously stated, Defendant received the maximum sentence. Wfiiile the trial judge made only a general reference to the factors of La. C. Cr. P. art. 894.1, she indicated that she had considered the factors. In addition, while the existence of Defendant’s common-law wife and five children was elicited at trial and was thus known to the trial judge, Defendant presented no additional evidence at sentencing to indicate what hardship, if any, his imprisonment would inflict on them. The existence of a common-law wife and five children is largely unremarkable in the absence of evidence of their financial and/or emotional dependence on Defendant. Further, the record does not indicate whether any of the children are still minors. It is axiomatic that for mitigating factors to be considered, there must be evidence that they exist.

Given Defendant’s history of five convictions for DWI, the trial judge’s imposition of the maximum sentence within the narrow range of one to five years does not shock the sense of justice. Both Defendant’s criminal history and his conduct during the arrest for the present offense exhibit a clear lack of appreciation for the seriousness of his conduct. Furthermore, Defendant has taken no responsibility for his actions by showing remorse or acknowledging the imminent threat of injury which his conduct posed, opting, instead, to base his request for leniency on the fact, fortuitous as it is, that no one was in fact injured. As such, the five-year sentence for this repeat DWI offender is not grossly disproportionate to his crime, nor is it 17nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, supra; State v. Bonanno, supra.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Harrison Pouncy, Jr. are affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Billy Ray ANDERSON, Appellant.
    No. 46,724-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Ross Law Firm, Monroe, LA, by James E. Ross, Jr., for Appellant.
    William R. Coenen, District Attorney, Penny Douciere, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   GASKINS, J.

The defendant, Billy Ray Anderson, was originally charged with two counts of distribution of cocaine. Following a jury trial, he was convicted of one count of distribution of cocaine and one count of attempted distribution of cocaine. On the former conviction, he was sentenced to 25 years at hard labor, the first two years to be served without benefit of parole, probation or suspension of sentence. On the latter conviction, he was sentenced to 12 ½ years at hard labor, with the first year to be served without benefits. The trial court ordered that the sentences be served concurrently. The defendant appealed. We affirm the defendant’s convictions and sentences.

FACTS

In 2009, the West Carroll Parish Sheriffs Office (WCSO) launched an operation to make undercover narcotics arrests in the parish. Deputy Victor Smith was the chief narcotics officer for the WCSO; he and his supervisor, Chief Deputy Kenneth Green, were the main officers involved in the operation. According to Deputy Smith, since the dealers would not sell narcotics to someone with whom they were unfamiliar, the WCSO had to use confidential informants (CIs) who were known to the local drug dealers rather than deputies working undercover.

One such Cl was Kenneth Navarro. Although not a law enforcement officer, Navarro signed an agreement with the WCSO to cooperate with the agency and participate in anti-narcotics operations. He engaged in several of these operations with different sellers; however, the authorities would not arrest the seller immediately after the purchase because doing so would give [ ¡.away Navarro’s association with the police and other sellers would not deal with him.

Navarro bought cocaine from the defendant on two occasions in March 2009. The first sale by the defendant to Navarro occurred on March 24, 2009. Navarro first made contact with the defendant, then notified Deputy Smith. The deputy met Navarro at a secluded location and conducted a pat-down search of the Cl for narcotics. Deputy Smith gave Navarro $70 to buy cocaine; later Navarro would be paid $50 for his services. In addition, the deputy gave Navarro a small video camera concealed in a shirt to record the transaction.

Navarro drove to meet the defendant at a carwash in his girlfriend’s car. According to Navarro, the defendant came to the driver’s side window and handed him four white rocks. A man’s hand can be seen on the video handing Navarro four white rocks in exchange for the money, but the seller’s face cannot be seen. The two discussed the procedure for making future drug purchases and whether the seller knew Navarro’s family; the seller’s voice can be heard during the conversation. The seller told Navarro that if he didn’t see the burgundy truck, don’t stop, and then he told Navarro the location of his house; thereafter, Navarro left.

After the purchase, Navarro and Deputy Smith met. Navarro gave the four rocks to the deputy, who sealed them in an evidence bag.

laThe next day, Navarro contacted Deputy Smith again and said he had arranged to make another purchase of drugs from the defendant. Again, the two met at a secluded location where the deputy searched Navarro before giving him the video camera and $20 for drugs. On this date, unbeknownst to Deputy Smith, Navarro was accompanied by a woman he knew as Brandy.

Navarro drove to the defendant’s home. A man that Navarro did not know came up to the car, and the two discussed some engine work that was being done in the defendant’s yard. The man then asked what Navarro wanted, to which Navarro replied a “dove,” and “hard,” and then 20, meaning $20 of crack. The man left, and Navarro yelled out to someone that he would have helped them pull the engine from the vehicle if he had known they were doing that. According to Navarro, the defendant then approached the car. A man’s voice can be heard on the recording along with Navarro’s, saying something about “... right back.” Then, Navarro said, “I asked him if he wanted me to give it to you.”

According to Navarro, he gave the defendant $20; then the defendant went into his house for a while. There is a delay of many minutes on the recording of the incident, and then the camera turned off and back on again. Navarro said that the defendant returned with the crack, although no part of the transaction is recorded. However, when the camera came back on, Navarro handed something out through the passenger side window (which he later identified as spark plugs) and spoke with someone he called “the | ¿Godfather,” a name that Navarro said he called the defendant. Later, as he drove away, Navarro showed the camera a single white rock in his hand, and he said, “This is what he gave me.... it was the same person from ... yesterday.” Again, the seller’s face is never seen on the video recording.

When Navarro met with Deputy Smith, he gave the officer a single white rock appearing to be crack cocaine, which the deputy sealed in an evidence bag.

In neither instance did Deputy Smith observe all of Navarro’s movements or either of the transactions. All of the drug evidence that Navarro gave to the deputy was tested and determined to be cocaine.

The defendant was arrested in April 2010 and charged with two counts of distribution of cocaine. At trial, Navarro identified the defendant as the person who sold cocaine to him on both occasions. The jury convicted the defendant as charged on one count of distribution of cocaine and returned a responsive, lesser verdict of guilty of attempted distribution of cocaine on the second charge. The defendant’s motions for new trial and post verdict judgment of acquittal were denied.

The trial court imposed concurrent sentences of 25 years at hard labor, the first two years to be served without benefit of parole, probation or suspension of sentence, for the distribution conviction and 12 ½ years at hard labor, with the first year to be served without benefits, for the conviction of attempted distribution. The defendant’s oral motion to reconsider sentence was denied.

|fiThe defendant appealed, asserting five assignments of error. Among these assignments are claims of insufficient evidence and excessive sentences.

SUFFICIENCY OF EVIDENCE

The defendant challenges the sufficiency of the evidence supporting his convictions for distribution of cocaine and attempted distribution of cocaine.

Law

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied,, 2009-0310 (La.11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing sufficiency of |fievidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Holden, 45,038 (La.App.2d Cir.1/27/10), 30 So.3d 1053, writ denied, 2010-0491 (La.9/24/10), 45 So.3d 1072.

It is not the function of an appellate court to assess credibility or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; 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. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

To present sufficient evidence of distribution of a controlled dangerous substance (CDS), the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) |7guilty knowledge of the CDS at the time of the transfer; and (3) the exact identity of the CDS. State v. Ashley, 44,861 (La.App.2d Cir.10/28/09), 26 So.3d 193; State v. Winslow, 45,414 (La.App.2d Cir.12/15/10), 55 So.3d 910, writ denied, 2011-0192 (La.6/17/11), 63 So.3d 1033.

Discussion

The evidence presented to the jury was plainly sufficient to prove beyond a reasonable doubt the commission of the offenses of conviction; Navarro testified that he purchased cocaine on both occasions. The only question of substance is whether the jury was manifestly erroneous in crediting Navarro’s testimony that these sales occurred or that the defendant was the seller. The jury’s verdicts in this case rest very heavily on their decision to credit Navarro’s testimony that the defendant is the man whose face cannot be seen on any of the video recordings. Certainly there are many instances where Navarro’s testimony can be criticized; in particular, in the second video, he makes a remark about taking a pill.

Nevertheless, the various difficulties with Navarro’s testimony are not the sort of internal contradiction or irreconcilable conflict with physical evidence that permit this court to intrude upon the province of the jury to accept his testimony as true. Nothing on the videotapes works to disprove the salient points in his testimony that he drove to two locations and purchased cocaine from the defendant at both of those places. The failure of the recording equipment to capture the seller’s face, while unfortunate, affects the weight that the fact finder might give Navarro’s testimony, but it does not in any way compel this court to reverse these verdicts that relied on Lthat testimony. The jury had the opportunity to hear Navarro testify live, and the defendant’s counsel conducted an effective and thorough cross-examination. Furthermore, additional support for Navarro’s testimony was found in his recorded conversations with the defendant wherein the defendant described where he lived and the vehicle he drove, as well as his work as an auto mechanic; all of these facts were independently verified through the testimony of a law enforcement officer who knew the defendant.

This assignment of error is without merit.

MISTRIAL

The defendant contends that the trial court erred in denying his request for a mistrial due to prejudicial remarks made by a police officer during his testimony.

During defense counsel’s cross-examination of Deputy Smith, he was asked what verification he had besides the information supplied by his CI. Deputy Smith answered: “The — through the investigation, it’s not just listening to the snitch. It’s— was known that Billy Ray Anderson was a drug dealer.” Defense counsel’s objection to this statement was sustained. During the ensuing bench conference outside the presence of the jury, defense counsel asked for a mistrial or an admonishment about the officer’s statement. The trial court refused to grant a mistrial but did admonish the jury to disregard the statement. On appeal, the defendant argues that the comment referring to other crimes evidence was so prejudicial that the trial court erred in not granting his motion for a mistrial.

| ^Law

The law in this area is well settled. This court summarized it in State v. Smith, 43,136 (La.App.2d Cir.4/23/08), 981 So.2d 200:

La. C.E. art. 404(B) provides that evidence of other crimes, acts or wrongs is generally not admissible. La. C. Cr. P. art. 770(2) provides that a mistrial shall be granted upon motion of the defendant when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. For purposes of article 770, a law enforcement officer is not considered a “court official,” and an unsolicited, unresponsive reference to other crimes evidence made by a law enforcement officer is not grounds for a mandatory mistrial under La. C. Cr. P. art. 770.
La. C. Cr. P. art. 771 sets forth permissive grounds for requesting an admonition or a mistrial when a prejudicial remark is made on grounds that do not require automatic mistrial under article 770. La. C. Cr. P. art. 775 also sets forth additional permissive grounds for mistrial. Under these articles, mistrial is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. Moreover, mistrial is a drastic remedy which is only authorized where substantial prejudice will otherwise result to the accused. A trial court’s ruling denying mistrial will not be disturbed absent an abuse of discretion.
Even if a mistrial was warranted under article 770, 771, or 775, the failure to grant a mistrial would not result in an automatic reversal of defendant’s conviction, but would be a trial error subject to the harmless error analysis on appeal. Trial error is harmless where the verdict rendered is “surely unattributable to the error.” (Internal citations omitted.)

Further, La. C. Cr. P. art. 771 provides that the court shall promptly admonish the jury to disregard a remark or comment, on motion of the defendant or the state.

| loDiscussion

Deputy Smith’s remark was not so prejudicial to the defendant that he could not thereafter obtain a fair trial. The remark was not deliberately elicited by the prosecutor; in fact, the witness made the comment during cross-examination by defense counsel. The witness was offering an explanation of the investigation of the defendant in the first instance and the presence or absence of other evidence to confirm Navarro’s testimony. The deputy’s statement was only a single incident of improper testimony, not part of a pattern designed to unfairly prejudice the defendant with inadmissible evidence, and after the admonition, the trial continued with the presentation of relevant admissible evidence. In light of the record as a whole, the trial court acted within its discretion to admonish the jury rather than grant a mistrial.

This assignment of error is without merit.

EXCESSIVE SENTENCES

The defendant argues that the trial court abused its discretion in sentencing him.

Law

According to La. R.S. 40:967, the sentencing exposure for distribution of cocaine is two to 30 years at hard labor, with the first two years being without benefit of parole, probation, or suspension of sentence. The court may also impose a fine of not more than $50,000. The penalty for conviction of attempted distribution of cocaine is imprisonment and a possible fine not to exceed one-half of the maximum punishment for 1 n distribution “in the same manner as for the offense planned or attempted.” La. R.S. 40:979.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Egan, 44,879 (La.App.2d Cir.12/9/09), 26 So.3d 938.

The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

112Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lathan, supra.

Discussion

The defendant argues that the trial court failed to give adequate consideration to the mitigating factors in the record, such as his steady employment history, and the possibility that the goals of rehabilitation and punishment could be best accomplished by less severe sentences.

Review of the record reveals that in imposing sentence, the trial court considered both mitigating and aggravating factors in great detail. On the one hand, the defendant was a 50-year-old married father with a good work history who had the support of his family and had been injured in a car accident. On the other hand, he had an extensive criminal history that included a 1980 simple burglary conviction and a 1991 conviction for felony possession of a firearm by a convicted felon. Among his various misdemeanor offenses were two 1995 charges for battery of a police officer. While he denied selling drugs, he admitted in the presentence investigation report that he was using them.

11sIn tailoring the sentences to this defendant, the trial court considered the seriousness of the present offenses and the likelihood that he would continue his criminal activities if given lesser sentences. Based upon the entirety of the record, we cannot say that the sentences imposed by the trial court shock our sense of justice. See and compare State v. Edwards, 45,314 (La.App.2d Cir.6/23/10), 42 So.3d 449, in which this court affirmed a 28-year sentence for distribution of cocaine for a similarly situated offender who was in worse health than the defendant in the instant case.

This assignment of error lacks merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

The defendant contends that the performance of his trial counsel was so deficient that it deprived him of his constitutional rights to counsel and to a fair and impartial trial.

Law

In alleging ineffective assistance of counsel, a defendant must satisfy a two-pronged test by showing, first, his attorney’s performance to be so deficient as to deny him the “counsel” guaranteed by the Sixth Amendment, and second, that those errors are so serious as to deprive the accused of a fair proceeding, i.e., one with a reliable result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Gipson, 28,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402. In order to prevail under the Strickland test, the defendant must demonstrate a reasonable probability that, but for Incounsel’s unprofessional errors, the result of the proceedings would have been different. State v. Gipson, supra.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (PCR) in the trial court rather than by appeal. This is because PCR creates the opportunity for a full ev-identiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.4/4/08), 978 So.2d 325.

However, when the record is sufficient, the court may consider the issue on direct appeal in the interest of judicial economy. State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007); State v. Robinson, 45,820 (La.App.2d Cir.1/26/11), 57 So.3d 1107. The appellate court does not sit to second-guess strategic and tactical choices made by trial counsel. State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Russell, 46,426 (La.App.2d Cir.8/17/11), 73 So.3d 991.

Discussion

The defendant argues that his trial counsel was deficient because he failed to object when the prosecutor characterized the defendant as a “drug dealer” during the state’s opening statement. He also complains that defense counsel failed to object to the testimony of Deputy Smith about the taped recordings of the transactions, which were very difficult to hear.

| T 5As to the prosecutor’s opening statement, we find that the defendant’s argument lacks merit. It would have been pointless for defense counsel to object to the prosecutor’s characterization of the defendant as a drug dealer when that is what the prosecutor argued that the evidence would show. The jury was properly instructed that argument is not evidence, and the defendant’s trial counsel did a commendable job of challenging the state’s case and the testimony of the CI.

As to defense counsel’s failure to object to Deputy Smith’s testimony about the recordings, we likewise find no merit. The recordings show what they show— which is not a great deal — and some of the audio is difficult to understand; however, nothing in Deputy Smith’s testimony supplied the jury with facts that they could not discern themselves when they considered the recordings. The record shows that the jury did have a full opportunity to view and hear the recordings of these transactions, and the defendant’s cross-examination of the witnesses about the recordings was not limited in any way.

The defendant has shown neither serious error nor prejudice because of his attorney’s conduct. According, we find that this assignment of error is without merit.

CUMULATIVE ERROR

In his final assignment of error, the defendant contends that the cumulative errors in this case denied him his right to a fair trial. However, we have carefully reviewed each of the defendant’s assignments of error and have determined that none constitute reversible error. The cumulative effect Lfiof assignments of error that themselves are without merit does not warrant reversal of a conviction. State v. Strickland, 94-0025 (La.11/1/96), 683 So.2d 218, 239; State v. Crandell, 43,262 (La.App.2d Cir.6/18/08), 987 So.2d 375, writs denied, 2008-1582 (La.3/27/09), 5 So.3d 139 and 2008-1659 (La.3/27/09), 5 So.3d 140, cert. denied, — U.S.-, 130 S.Ct. 183, 175 L.Ed.2d 115 (2009).

This assignment of error has no merit.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . Information presented at trial established that the defendant drove a burgundy truck and that he lived at the mentioned location. Additionally, a law enforcement officer who had known the defendant for at least 16 years testified that he was familiar with the defendant’s voice and identified the voice on the recordings as the defendant’s.

      . Navarro was later paid $60 for his services.


text:
    STATE of Louisiana, Appellee v. Shelvin GARNER, Appellant.
    No. 46,723-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Marcus Patillo, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   GASKINS, J.

hThe defendant, Shelvin Garner, pled guilty to one count of distribution of a Schedule II controlled dangerous substance, cocaine, a violation of La. R.S. 40:967(A). He was sentenced to 20 years at hard labor. We affirm the defendant’s conviction and sentence.

FACTS

On December 28, 2009, the defendant sold three rocks of crack cocaine for $50.00 to a confidential informant working with the Minden Police Department. The sale took place in the defendant’s 1994 Chevrolet Suburban off Fincher Road in Minden. The defendant also sold more cocaine to a confidential informant the next day.

The defendant was charged by bill of information with two counts of violating La. R.S. 40:967(A), distribution of a Schedule II controlled dangerous substance. The defendant originally pled not guilty. However, on December 10, 2010, in exchange for a plea agreement in which the state agreed to dismiss the second charge and to refrain from multi-billing him, the defendant pled guilty to one count of distribution. He also agreed to forfeit his Suburban and the cash seized at the time of his arrest. No agreement was made with regard to the defendant’s sentence and the trial judge ordered a presentence investigation (PSI) report.

On February 14, 2011, after reviewing the PSI report, the trial court noted that the 38-year-old defendant had a criminal history and that he was a third-felony offender. The court also observed that the defendant had been on parole and probation previously; he had “numerous” revocations. The court considered that the defendant’s recent social history was not |2provided in the PSI report because the defendant had been incarcerated in another jurisdiction due to jail overcrowding at the time the report was written; therefore, he was unavailable for a history to be taken by the probation officer who compiled the report. However, the trial court had the benefit of information gleaned from an earlier PSI report which showed, among other things, that the defendant was born in Bossier Parish and had lived in Webster Parish his whole life. The court sentenced the defendant to 20 years at hard labor, with the sentence to be served concurrently with any other sentence he was currently serving.

The defendant filed a motion to reconsider sentence and argued that while the sentence was within the range provided by the statute, a lesser sentence of 10 years could achieve the goals of punishment and rehabilitation. The trial court denied the motion for reconsideration.

The defendant has filed this appeal seeking review of the sentence, which he complains is constitutionally excessive.

LAW

According to La. R.S. 40:967, the sentencing exposure for distribution of cocaine is two to 30 years at hard labor, with the first two years being without benefit of parole, probation, or suspension of sentence. The court may also impose a fine of not more than $50,000.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or |smitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Egan, 44,879 (La.App.2d Cir.12/9/09), 26 So.3d 938.

The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is | considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lathan, supra.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267, writ denied, 2007-1394 (La.4/4/08), 978 So.2d 321. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La. App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

DISCUSSION

In this case, the trial court sentenced the defendant to 20 years at hard labor out of a possible 30 years to which it could have sentenced him for one count of distribution of cocaine. In imposing the 20-year sentence, the trial court considered the information contained in the PSI report, including the defendant’s prior criminal history and the fact that he had been unsuccessful on probation and parole in the past. The trial court also noted Uthat the defendant was a third-felony offender and that he pled guilty pursuant a plea agreement by which another charge was dismissed.

The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of La. C. Cr. P. art. 894.1. The record here reflects that the judge reviewed and articulated the reasons for his decision and tailored the sentence to this defendant. The sentence imposed is in the mid-range of that which could have been imposed. When the crime and punishment are viewed in light of the harm done to society, 20 years in prison is not grossly disproportionate to the crime committed, and the sentence does not shock the sense of justice.

The trial judge did not abuse his discretion in imposing this sentence. Therefore, this assignment is without merit.

ERROR PATENT

Our error patent review discloses that the trial court failed to order that the first two years of this sentence be served without the benefit of probation, parole, or suspension of sentence, as required by La. R.S. 40:967(B)(4)(b). When a district court fails to order service of sentence without benefits in a case in which a determinate time period to be served is mandated by the statute of conviction, the sentence automatically will be served without benefits for the required time period. La. R.S. 15:301.1(A); State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, 799; State v. Cooks, 36,613 (La.App.2d Cir.12/4/02), 833 So.2d 1034, 1047.

^CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Our review of the PSI report indicates that the defendant was, in fact, a fourth-felony offender.


author: PETERS, J.

text:
    Everette DAVIS, Jr., et ux. v. STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 11-0625.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Jack F. Owens, Jr., Attorney at Law, Harrisonburg, LA, for Plaintiffs/Appellees, Everette Davis, Jr., Sheila Creel Davis.
    James D. “Buddy” Caldwell, Attorney General, J. Albert Ellis, Assistant Attorney General, Louisiana Department of Justice, Litigation Division-Monroe, Monroe, LA, for Defendant/Appellant, State of Louisiana, through the Department of Transportation and Development.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

1 t This litigation arises from a September 1, 1995 single-vehicle automobile accident wherein the plaintiff, Everette Davis, Jr., sustained severe personal injuries. After a jury rejected Mr. Davis’ claims against the defendant, the State of Louisiana, through the Department of Transportation and Development (hereinafter referred to as DOTD), the trial court granted a judgment notwithstanding the verdict (JNOV) finding that Mr. Davis and DOTD were equally at fault in causing the accident and Mr. Davis’ resulting injuries. The trial court made the conditional ruling that it would grant a new trial in the event that its JNOV were reversed. DOTD has appealed that trial court judgment, asserting seven assignments of error. For the following reasons, we reverse the trial court’s grant of the JNOV, reverse the conditional grant of a new trial, and reinstate the jury verdict.

DISCUSSION OF THE RECORD

This litigation arises out of a single-vehicle accident that occurred at approximately 7:55 p.m. on September 1, 1995, on Louisiana Highway 3101 in Catahoula Parish. Mr. Davis was traveling west along Louisiana Highway 3101 when he lost control of his vehicle while traversing a slight curve to the left in the highway. When Mr. Davis initially entered the curve, his light wheels left the roadway and he traveled down the shoulder of the road in that position for approximately 251 feet. He then attempted to return the right wheels to the highway pavement. When he attempted this maneuver, the vehicle rotated a quarter of a turn and skidded west down the highway another eighty-eight feet. The vehicle then exited the roadway on the left side of the road and travelled 203 feet through the adjacent field before it flipped upside down and skidded an additional twenty-eight feet in that position. The vehicle then flipped again, [2Ianding right side up. At some point as the vehicle was flipping over, Mr. Davis was ejected from the vehicle and landed approximately thirty feet from where the vehicle came to rest. Mr. Davis suffered severe injuries in this accident and is now a paraplegic.

On August 23, 1996, Mr. Davis and his wife, Sheila Creel Davis, brought suit against DOTD, asserting that DOTD failed to inspect and maintain the highway such that it contained “unprecedented pot holes and dips, and unsafe shoulders;” that DOTD failed to properly post speed, curve, or other warning signs; and that DOTD failed to establish a restricted speed zone because of the highway’s substandard condition. The matter finally went to trial some thirteen years later, beginning August 10, 2009.

At trial, Mr. Davis described the vehicle he was driving at the time of the accident as a 1975 Dodge camper van with the camper portion having been removed by the previous owner. It had two tires on the front, but dual tires on the rear. Mr. Davis had intended to convert the van into a flatbed truck, but had not done so before the accident. According to Mr. Davis, the vehicle would not accelerate past fifty to fifty-five miles per hour without “sputtering and spitting.” Additionally, he suggested that when driven, the vehicle “kinda shimmied on the front end.”

According to Mr. Davis, the accident happened as he was returning from his mother-in-law’s home. He described the mechanics of the accident in the following manner:

As far as I can remember I run[sic] off the right hand side of the road and just went down the road for a ways. Because it was a bad | ¡¡drop off. I drove down the road on the right, you know, on the curved side for a while because I thought I could get back on the road, I reckon. So I went a ways trying to get back up on it. Eased back up on the road and that was when it started flipping. I don’t remember nothing after that.

Mr. Davis testified that he did not observe any traffic control signs as he approached the curve, and that he did not remember seeing any centerline on the highway. He described the ride along the road as “like riding a roller coaster” because of the patchwork and potholes on the highway. With regard to why he left the highway surface initially, he suggested that he did so to avoid a pothole. However, with regard to the size of the pothole, he could not remember. Additionally, he testified that he did not realize he was in a curve because he was “kind of disoriented.” He described the surrounding conditions as “dusk” but could not remember if he had his lights on. When asked his speed at the time he left the road, he stated that he had “no idea” as to his speed, but knew he was not speeding because of the truck’s defects. When questioned further concerning his speed, he stated that it would be impossible to ascertain because he was not even certain if the speedometer worked.

Mr. Davis had paid $300.00 for his truck while living in Texas, and it was not in the best of shape. Additionally, although the first time he negotiated this particular curve with the 1975 Dodge was the evening of the accident, he was very familiar with the highway itself and he had traversed this curve in at least twelve other vehicles “over the years” before the accident. When questioned about his sobriety at the time of the accident, Mr. Davis acknowledged that his truck may have contained half-empty beer bottles, but when asked if he had consumed a beer before the accident, he stated that “I don’t think I did.” He suggested that if the |4odor of beer were at the accident scene, it was present because “any roughneck’s vehicle, after you turn it, after you flip it a few times, it’s going to smell like a beer.” However, when questioned concerning his prior deposition testimony, Mr. Davis acknowledged that he had previously testified he had consumed “a few beers when [he] was swimming” that day. When pressed in the deposition, he stated that he had consumed three or four cans of beer.

Former Louisiana State Trooper and accident reconstruction expert, John Bluns-chi of Ferriday, Louisiana, testified on behalf of the plaintiffs and concluded that the absence of warning signs and a double yellow center line caused Mr. Davis’ accident. He based this conclusion on his review of deposition testimony, Trooper Franklin’s accident report, and pictures taken at the scene some twenty-one days after the accident. Mr. Blunschi also visited the accident scene, but did so on June 3, 2009, or almost fourteen years after the accident. According to Mr. Blunschi, the substandard nature of Louisiana Highway 3101 coupled with the sharp nature of the curve justified a reduced speed limit sign approaching the curve from the west, and possibly even double yellow lines to signal that the curve was a no passing zone.

In response to the testimony concerning how the accident happened, DOTD offered the testimony of Louisiana State Trooper Sammy Glen Franklin, the officer who investigated the accident, and Kelly Seal Adamson, a College Station, Texas accident reconstruction expert and professional engineer licensed in Texas, Louisiana, and Mississippi.

Trooper Franklin arrived at the accident scene approximately twenty-five minutes after it occurred and while Mr. Davis was still on the scene. He proceeded | Bto walk the path of the accident, making measurements and observations necessary to complete his accident report. At trial, Trooper Franklin’s July 30, 2009 deposition was read to the jury. Trooper Franklin said he had little independent recollection of the accident investigation given the time that had passed, and based much of his testimony on the findings recorded on the accident report. In reviewing his accident report, Trooper Franklin testified that he estimated Mr. Davis’ speed to be in excess of seventy-five miles per hour when his right wheels left the paved surface of the highway. This speed, according to Trooper Franklin, was over twenty miles per hour above the fifty-five mile per hour speed limit on Louisiana Highway 3101. Additionally, Trooper Franklin found no defects in the highway that would have caused the accident. After completing his investigation, he issued two citations to Mr. Davis: one for careless operation of the vehicle, a violation of La.R.S. 32:58; and one for failure to wear a seatbelt, a violation of La.R.S. 32:295.1. When asked why he issued these citations, he stated the following:

Basically because Mr. Davis, I believe ... entered a curve too fast and was unable to maintain control or negotiate the curve, and he ran off the road to the right, and over-corrected, and crossed back over the road, at which time, his vehicle to rotate[sic] and went into the cotton field. And I believe it flipped onto its top, and then came to rest upright on its tires.

Trooper Franklin had also marked on the accident report that Mr. Davis had been drinking and was impaired when operating the vehicle. Although he had no independent knowledge of why he made that notation, he acknowledged that it could well have been recorded because of the smell of alcohol or the presence of empty beer cans that appeared to have been recently consumed at the scene. Trooper Franklin also recalled the presence of a dashed yellow line dividing the lanes of travel.

|fiMr. Adamson also reviewed the deposition testimony taken in this case, reviewed the accident report, and visited the scene. Combining the results of his survey with the measurements provided by Trooper Franklin, Mr. Adamson concluded that the curve radius would accommodate a speed of fifty to fifty-five miles per hour while a vehicle was traversing it. He also concluded, based on his review of the pictures taken shortly after the accident, that the drop-off between the highway surface and shoulder was two inches or less. According to Mr. Adamson, it is only when the drop-offs exceed three inches that they become a problem, and even then drop-offs of less than five inches are subject to scheduled maintenance instead of requiring immediate attention.

Mr. Adamson agreed with Trooper Franklin that Mr. Davis’ right tires left the paved surface at a speed in excess of seventy miles per hour. He reached this conclusion based on his analysis of the directions and distances traveled during the accident. According to Mr. Adamson, the curve’s critical speed was in excess of one hundred miles per hour. However, he found the appropriate design speed for this curve to be fifty to fifty-five miles per hour.

Although Mr. Adamson was of the opinion that the curve should have signs establishing a fifty mile per hour speed limit for a motorist approaching from either direction, he testified that such signs were not required given the design and size of the curve, and that the absence of signs played no part in causing the September 1, 1995 accident. Additionally, even assuming no yellow lines were present on the 17highway on September 1, 1995, that fact would have played no part in the accident. According to Mr. Adamson, double yellow lines warn a motorist of the presence of a no passing zone, and dashed yellow lines simply divide the lanes of travel.

Mr. Adamson also was of the opinion that the alterations to Mr. Davis’ Dodge van contributed to his inability to maintain control while traversing the curve. According to Mr. Adamson, the alterations changed the vehicle’s center of gravity and made it more susceptible to rolling over.

According to Mr. Adamson, the accident was caused by a number of factors, but that none were the fault of DOTD. The principal causes of the accident, according to Mr. Adamson, were Mr. Davis’ excess speed and his inattentiveness.

In its answers to the first interrogatory propounded to it, the jury unanimously found that Louisiana Highway 8101 did not have a defect that created an unreasonable risk of harm on September 1, 1995. With that answer, the jury rejected the plaintiffs’ claims against DOTD. After the trial court reduced the jury’s verdict to writing on August 20, 2009, the plaintiffs timely filed a motion for new trial and, in the alternative, a JNOV. The trial court heard argument on the motion on December 14, 2009, and took the issue under advisement. On November 5, 2010, the trial court issued written reasons for judgment setting aside the jury verdict. In summarizing its findings that the plaintiffs had established an unreasonably dangerous condition in Louisiana Highway 3101, the trial court stated:

Had the “curve” sign and speed sign been posted, as testified to by Johnny Blunschi, the plaintiff may have averted this accident and the presence of the signs would have put him on notice to reduce his speed. The purpose of posting such signs is to notify all motorists of the presence of a dangerous condition such as a curve of the type where plaintiffs accident occurred.

ls(Emphasis added.)

Based on this conclusion, the trial court set aside the jury verdict and entered judgment which, among other things, granted the JNOV to the extent that it found Mr. Davis and DOTD to be equally at fault in causing the accident. The trial court reduced its ruling to judgment on November 12, 2010, and this appeal followed.

In its appeal, DOTD raises seven assignments of error:

1. Trial court erred in granting JNOV on the issue of DOTD’s liability and in granting a new trial in the alternative.
2. Trial court erred in evaluating the credibility of the witnesses.
3. Trial court erred in awarding plaintiff damages, general and special, a re-versionary future medical expenses trust, [sic]
4. Trial court erred in allocating 50% fault to DOTD.
5. Trial court erred in taxing court costs, including expert witness fees[,] to DOTD.
6. Trial court erred in substituting its judgment for that of the jury.
7. Trial court erred as a matter of law in finding the ends of justice mandated granting a JNOV and new trial.

OPINION

We need only consider DOTD’s first assignment of error to dispose of this appeal. The supreme court set out the criteria for the reviewing court’s evaluation of the trial court’s grant or rejection of a JNOV in Joseph v. Broussard Rice Mill, Inc., 00-628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99:

LA.CODE CIV. PROC. art. 1811 controls the use of JNOV. Although the article does not specify the grounds on which a trial judge may grant a JNOV, in Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270 (La.1986), we set forth the criteria used in determining when a JNOV is proper. As enunciated in Scott, a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be 19granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable persons in the exercise of impartial judgment might reach different conclusions. Scott, 496 So.2d at 274. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of fact.” Scott, 496 So.2d at 273; Jinks v. Wright, 520 So.2d 792, 794 (La.App. 3 Cir.1987).

In reviewing a trial court’s decision on whether or not to grant a JNOV, the appellate court must determine if the trial court erred in granting or denying the JNOV “by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict?” Id. at 99. If the answer to that question is in the affirmative, then the motion should have been granted. If not, it should be rejected. Id.

Regardless of whether a plaintiff seeks damages from DOTD under a strict liability claim pursuant to La.Civ.Code art. 2317 and La.R.S. 9:2800 or under a negligence claim pursuant to La.Civ.Code art. 2315, the legal analysis is the same, with the plaintiff bearing the burden of establishing that: (1) DOTD had custody of the thing that caused the plaintiffs injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiffs injuries. Henderson v. Nissan Motor Corp. USA, | in03-606 (La.2/6/04), 869 So.2d 62; Netecke v. State through DOTD, 98-1182, 98-1197 (La.10/19/99), 747 So.2d 489.

The custody element is not in dispute, and the jury disposed of the entire claim by concluding that the plaintiffs had not established that there existed a defect in Louisiana Highway 3101 that created an unreasonable risk of harm to Mr. Davis. We also conclude that the facts and infer-enees in this matter do not point so strongly and overwhelmingly in favor of Mr. Davis that reasonable persons could not have reached a conclusion that Mr. Davis failed in his burden of proof.

In reaching its conclusion that the JNOV should be granted, the trial court relied exclusively on Mr. Blunschi’s testimony. We find this to be error on the part of the trial court.

Mr. Blunschi testified that although he has often been certified as an accident reconstruction expert, he had no specific training in road design, construction, or maintenance; and that any knowledge he might have concerning signage requirements would come from referencing the appropriate manuals, including specifically the ASHTO Manual. In evaluating the specifics of the September 1, 1995 accident, he acknowledged that he was somewhat handicapped because of the overlay and improvements to the road that had been accomplished since 1995. He did not testify that warning signs did not exist in 1995. Instead, he testified that he saw no evidence of signs when he visited the scene in 2009. Although he did not dispute Trooper Franklin’s assertion that the speed limit was fifty-five miles per hour on September 1, 1995, he suggested that the substandard nature of the highway warranted a forty-five miles per hour speed limit.

With regard to the nature of the curve itself, Mr. Blunschi asserted that the curve was sharp enough to require a reduced speed limit and a double yellow line. However, he based this on his experience in driving the curve in 2009 and nothing Inmore. Additionally, he suggested that because of the crops along the highway, and because there was no tree line or fence row between the crop and the highway, a motorist might not realize that he was approaching the curve.

Mr. Blunschi also acknowledged that he did not know the speed at which Mr. Davis’ right wheels left the paved surface, nor did he attempt to factor in the appropriate reaction time in determining the cause of the accident. He seemed to suggest that Mr. Davis had regained control of his vehicle before he attempted to turn his right wheels back onto the highway and that he may have accelerated as he attempted this maneuver. He had no opinion concerning whether the modifications to the vehicle played any part in the accident. When asked whether the accident could have occurred if Mr. Davis’ vehicle would not go over fifty to fifty-five miles per hour, he could only respond: “I think so.” Finally, he also acknowledged that one of the causes of the accident was Mr. Davis’ inattention.

We do not have to determine whether, standing alone, Mr. Blunschi’s testimony would have been sufficient to carry Mr. Davis’ burden of proof on this element of the analysis. The jury also heard the testimony of Trooper Franklin who placed Mr. Davis’ exit speed at over seventy-five miles per hour, who inspected the entire scene and found no defect in the highway that would have contributed to the accident, and who determined that the highway was marked by a yellow dashed center line. While also noting the presence of alcohol and concluding that Mr. Davis was an impaired driver at the time of the accident, Trooper Franklin determined that the accident was caused by Mr. Davis’ failure to maintain control of his vehicle, and he issued two citations on this basis.

|12Finally, Mr. Adamson performed the same basic analysis as Mr. Blunschi, but expounded on that analysis by using his engineering abilities to calculate the various physical aspects of the curve. In performing this analysis, Mr. Adamson concluded that the curve radius allowed for a design speed of fifty to fifty-five miles per hour, that the drop off from the pavement to the shoulder was insignificant, and that Mr. Davis’ exit speed was in excess of seventy-five miles per hour. While he suggested that warning signs might have been helpful, Mr. Adamson was of the opinion that design specifications did not require them and that, in any event, the lack of signs played no part in the accident causation. Also, while concluding that the photographs taken soon after the accident established the presence of a visible center line, he was of the opinion that the presence or absence of a center line played no part in the accident causation.

Given our analysis of the record, we find merit in DOTD’s first assignment of error and reverse the trial court’s grant of the JNOV. That reversal renders moot DOTD’s next three assignments of error.

We also find merit in DOTD’s fifth assignment of error and reverse the trial court’s judgment taxing costs against DOTD. While La.Code Civ.P. art. 1920 gives the trial court discretion in awarding costs, the party cast in judgment is usually the party taxed with costs. Ark-La-Miss Timber Co., Inc. v. Wilkins, 36,485 (La.App. 2 Cir. 12/11/02), 833 So.2d 1154. In this case, the basis of the trial court’s taxing costs of court to DOTD was the grant of the JNOV finding DOTD fifty percent at fault in causing the accident sued upon. Were that judgment to stand, the trial court’s assessment of all costs against DOTD might not be an abuse of discretion. See Gauthier v. Wilson, 04-2527, 04-2528, 04-2529, 04-2530, 04-2531, 04-2532, 04-2533, 04-2534 (La.App. 1 Cir. 11/4/05), 927 So.2d 383, writ denied, 05-2402 (La.3/31/06), 925 So.2d 1258. However, we find no authority for | isthe assessment of all costs against a party which successfully defended the action filed against it. Thus, we reverse the trial court and assess all costs of the trial proceedings to Everette Davis, Jr. and Sheila Creel Davis.

Finally, we must address DOTD’s final assignment of error, wherein it complains that the trial court erred in awarding a new trial as conditional relief to Mr. Davis in the event this court reversed its grant of the JNOV. Louisiana Code of Civil Procedure Article 1972(1) provides that a new trial shall be granted “[w]hen the verdict or judgment appears clearly contrary to the law and the evidence.” We review the decision to grant or reject a motion for new trial on an abuse of discretion standard. Martin v. Heritage Manor S., 00-1023 (La.4/3/01), 784 So.2d 627. In Martin, the supreme court explained the review requirements applicable to this court:

Although the granting of a new trial is mandatory if the trial court finds that the verdict is contrary to the law and evidence under La. C.C.P. art. 1972, the jurisprudence interpreting the provision recognizes the trial judge’s discretion in determining whether the evidence is contrary to the law and evidence. As this Court has stated, the decision of “[wjhether to grant a new trial requires a discretionary balancing of many factors.” Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84 (citing Gibson v. Bossier City General Hospital, 594 So.2d 1332 (La.App. 2 Cir. 1991)). In Davis, we explained:
[although the granting or denying of a motion for new trial rests within the wide discretion of the trial court, the discretion of the court is limited:
The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily |14usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed, squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Gibson v. Bossier City General Hospital, et al., supra. See also Engolia v. Allain, 625 So.2d 723 (La.App. 1 Cir.1993). (Emphasis added.)
Davis, supra, op. at p. 10, 774 So.2d at 93. In considering a motion for new trial under La. C.C.P. art. 1972, “the trial court may evaluate the evidence without favoring either party; it may draw its own inferences and conclusions; and evaluate witness credibility to determine whether the jury had erred in giving too much credence to an unreliable witness.” Joseph v. Broussard Rice Mill, Inc., 00-0628 (La.10/30/00), 772 So.2d 94 (citing Smith v. American Indem. Ins. Co., 598 So.2d 486 (La.App. 2 Cir.), writ denied, 600 So.2d 685 (La.1992)). However, this does not mean that the trial judge can usurp the jury’s fact-finding role.
A motion for a new trial requires a less stringent test than for a JNOV as such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. Id. “Although the language is similar between the standards for a JNOV and new trial, there is a real difference between a finding that no evidence existed for a rational jury to reach a particular result and a finding that a jury could not have reached its conclusion on any fair interpretation of the evidence.” Gibson, supra at 1336. Notably, in considering whether the verdict was supported by any “fair interpretation of the evidence” on a motion for new trial, the trial judge is free to weigh the evidence and make credibility determinations, and is not required to view the evidence in the light most favorable to the non-movant as on a JNOV motion.
In addition, as opposed to the granting of a motion for new trial on the grounds that the verdict is contrary to the evidence, which is directed squarely at the accuracy of the jury’s factual determinations, noted federal procedural law commentators have stated that “whether the evidence presented at trial is sufficient to create an issue of fact for the jury or will permit the court to enter a judgment as a matter of law is solely a question of law.” Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure, Vol. 9A, § 2524, p. 249 (West 1995). These commentators have further explained the differences between motions for a judgment as a matter of law and a new trial in that, while the trial judge has great discretion to determine whether the verdict is contrary to the law or the evidence on a motion | lsfor new trial, “[o]n a judgment as a matter of law, [the trial judge] has no discretion whatsoever and considers only the question of law whether there is sufficient evidence to raise a jury issue.” Id., § 2581, p. 302. These same differences exist between a motion for a JNOV and a new trial under Louisiana law.
Having reviewed the standard for granting or denying a motion for new trial, and considering the differences between that standard and the standard for granting a JNOV, we now turn to the standard of review. The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Joseph, supra at p. 15, 772 So.2d at 104-05 (citing Anthony v. Davis Lumber, 629 So.2d 329 (La.1993)); Davis, supra at p. 10, 774 So.2d at 93 (citing Wyatt v. Red Stick Services, Inc., 97-1345 (La.App. 3 Cir. 4/1/98), 711 So.2d 745); see also La. C.C.P. art. 1971, Official Revision Comment (d) (“Although the trial court has much discretion regarding applications for new trial, in a case of manifest abuse the appellate court will not hesitate to set the trial court’s ruling aside, or grant a new trial when timely applied for”).
Although the standard of review is clear, the application of that standard is not so easy. See Davis, supra (Concurring Opinion of Justice Lemmon). In Davis, we noted that in reviewing a ruling on a motion for new trial, “we are faced with the balancing of two very important concepts: the great deference given to the jury in its fact finding role and the great discretion given to the trial court in deciding whether to grant a new trial.” Davis, supra at 11, 774 So.2d at 93-94. “The scales are clearly tilted in favor of the survival of the jury’s verdict, but the trial court is left with a breadth of discretion which varies with the facts and events of each case.” Id.

Id. at 630-32 (footnotes omitted).

Based on our earlier review of the evidence, we find that the jury’s decision that Louisiana Highway 3101 was not defective was not clearly contrai’y to the law and evidence. Accordingly, the trial court abused its discretion in conditionally granting a motion for a new trial. We reverse the trial court’s grant of a conditional new trial and reinstate the jury verdict dismissing Mr. Davis’ claims against DOTD.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s grant of a judgment notwithstanding the verdict; reverse the trial court’s assessment of trial costs to the 11fiState of Louisiana, through the Department of Transportation and Development and assess those costs to Everette Davis, Jr. and Sheila Creel Davis; reverse the trial court’s conditional grant of a new trial; and render judgment reinstating the jury verdict in favor of the State of Louisiana, through the Department of Transportation and Development. We assess all costs of this appeal to Everette Davis, Jr.

REVERSED AND RENDERED.

      . Both the jury and the trial court rejected Mrs. Davis' claim for damages and that issue is not before us in this appeal.

      . He later admitted in his testimony that the truck might reach speeds of up to seventy-five miles per hour "going downhill.”

      . Mr. Davis acknowledged on cross-examination that the tires were not in the best of shape when he bought the vehicle and he had not changed them since acquiring ownership.

      . Mr. Blunschi acknowledged that his visit to the scene was not helpful because the highway had changed significantly since the time of the accident. However, because he was not retained until three months before the August 2009 trial, he did not have the opportunity to view the scene before that time.

      .As part of his activity in visiting the scene, Mr. Adamson conducted a physical survey of the curve which he stated was necessary to determine the radius of the curve. According to Mr. Adamson, he could then use the radius of the curve to calculate whether a vehicle could traverse the curve at a given velocity. However, just as was the case with Mr. Bluns-chi, Mr. Adamson did not examine the accident scene until shortly before the trial.

      . Mr. Adamson described the critical speed as the speed "a vehicle could potentially go through this curve without losing control.”

      . Mr. Adamson described the design speed as the speed that creates a "critical comfort level” for the person traversing the curve.

      . In fact, Mr. Adamson testified that yellow lines were present on the day of the accident as they are visible on the pictures taken shortly after the accident.

      . The other provisions of the trial court’s judgment need not be addressed by this court because we find that the trial court erred in granting the JNOV.

      . Mr. Blunschi identified the crop growing on the day of his visit as corn. However, it is not disputed that the crop on September 1, 1995 was cotton.

      . Mr. Blunschi testified that it would not have been unusual for Mr. Davis to accelerate as he attempted to reenter the highway.