author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. James R. RADICAN, Sr., Appellant.
    No. 46,848-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Louisiana Appellate Project, by Douglas L. Harville, for Appellant.
    Jerry L. Jones, District Attorney, Charles L. Brumfield, Edward D. Young, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and MOORE, JJ.
   STEWART, J.

hA jury found the defendant, James R. Radican, Sr., guilty of molestation of a juvenile, in violation of La. R.S. 14:81.2. He was sentenced to serve 15 years’ imprisonment at hard labor, with credit for time served, and was ordered to register as a sex offender. The defendant now appeals. We affirm the defendant’s conviction and sentence.

FACTS

The defendant and Melanie Roberts were married in June 2001, and had one daughter, R.R., born on February 18, 2003. After they divorced in 2004, the defendant was granted supervised visitation with R.R., every other weekend, pursuant to a joint custody agreement. After approximately one year of the defendant exercising his visitation, Roberts discovered that the defendant had been molesting R.R.

The defendant was indicted for molestation of a juvenile on September 28, 2009, and arrested the next day.

The state filed a notice of intent to use evidence of other crimes on February 8, 2011. Specifically, the state sought to introduce evidence that the defendant was arrested on May 12, 2006, for molestation of a juvenile involving A.R., his stepdaughter, but that he pled guilty to unauthorized entry of an inhabited dwelling. On March 14, 2011, a jury was selected. On March 15, 2011, a Prieur hearing was held, prior to the commencement of the trial in this matter. At the Prieur hearing, A.R., whose date of birth is August 16, 1996, testified that she is the daughter of Melanie Roberts, and the defendant was her stepfather. She stated that on several occasions when |?she was approximately five years old, while her mother was at work, the defendant would take her into a room, pull her pants and panties down and touch her private parts. Although she could not recall how many times the defendant touched her inappropriately, she knew it was a lot. A.R. further testified that her half-sister, R.R., would cry and beg her to go with her to visit the defendant. A.R. stated that she accompanied her sister on two occasions, and both times the defendant would take R.R. to the bathroom in the back of the house, and they would not return for 30 minutes. A.R. stated that when R.R. came back from the bathroom, she looked “nervous” and “awkward.”

Melanie Roberts, who testified about how she learned from R.R. of the abuse, stated that one evening in 2006, she laid R.R. down on a towel to dress her after her bath, and R.R. was touching her vaginal area. When she told her to stop and asked her what she was doing, R.R. replied that “my daddy does it to me and he hurts my boo boo.”

Following arguments by counsel, the court ruled that the use of other crimes evidence would be admissible as it showed opportunity, intent, preparation or plan.

Trial began with the testimony of Dr. Neal Boris, an expert in child psychiatry. Dr. Boris testified that sexually abused children, specifically young children ages three years old through five years, generally act out sexual behavior vrith dolls. He further testified that sexually abused children display symptoms of post-traumatic stress disorder (PTSD). He stated that there has been no research or literature that indicates that | «¡watching other people involved in sexual encounters causes PTSD in young children.

Brenda Cameron, R.R.’s great-aunt, testified that she has brought R.R. to meet the defendant for his weekend visitation on at least two occasions when he was alone without any supervision by his mother or grandmother.

Alice Counts, R.R.’s maternal grandmother, testified that pursuant to a child custody agreement, the defendant was allowed supervised visitation with R.R. every other weekend from 6:00 p.m. on Friday to 6:00 p.m. on Sunday. Those visits were to be supervised either by his mother, Alice Stokes, or his grandmother, Ella Randolph. Counts testified that she and her husband would meet the defendant’s mother for the defendant’s visitation weekends. She further testified that they began to notice after a few visits that R.R. would scream and holler not to go, and when they picked her up, she would get in the car, not talk and just stare out the window. Once they were home, R.R. did not want them to take her clothes off or change her diaper, and she would be angry.

Counts testified that no one was allowed in the room when R.R. and A.R. were interviewed at the Gingerbread House. She further testified that she did not question or coach A.R. to help her remember. On cross-examination, she reiterated that she had no idea what A.R. stated in the interview at the Gingerbread House.

Melanie Roberts testified that prior to her marriage to the defendant, she had a daughter, A.R., from a previous relationship. She also has a |4younger daughter, K.R., with her current husband. Roberts and the defendant divorced in 2004, and at the time, they entered in a joint custody agreement. A condition of the defendant’s visitation with R.R. was that it had to be supervised either by his mother or grandmother.

Roberts testified that after about a year of R.R. visiting with her father, her behavior changed:

Almost every occasion, as soon as you put her in that car she would just scream and holler and kick. Well everybody played it off that she just didn’t want to be in her car-seat and that’s just not true. You could just tell that something was wrong. And then whenever you would get her back on Sunday or two weeks or however long she was there to stay, she would be just like blank. Just, you know, come here and let me hold you, or come get in my lap or whatever, and it was just be like [sic] she wasn’t even in there. So that kind of had me wondering why she was acting like that.

One evening in 2006, almost a year after the supervised visitation with the defendant began, Roberts had given R.R. a bath and laid her down on a towel to put on her pull-up and clothes, and she noticed R.R. began to “touch herself.” Roberts asked R.R., “What are you doing?,” and R.R. replied, “My daddy does it to me.” She then asked R.R. “What else does he do?” R.R. stated that “He hurts my boo boo,” which Roberts stated refers to her bottom-end. Roberts testified that R.R. told her that “Daddy put his finger in my cuckoo and he hurts my boo boo.” R.R. was only two years old at that time.

Roberts stated that R.R. had recently been hospitalized because she was caught trying to molest her younger sister, K.R. She testified that no one ever performed any sexual acts in front of R.R.

| ^Roberts also testified that she did not view or overhear the interviews of her children at the Gingerbread House. When questioned whether she had ever told her daughter, “I got your booty,” in any context, she could not recall ever saying such a phrase. On cross-examination, she testified that the supervised visitations were to take place in Morehouse Parish, at either the defendant’s mother’s house or grandmother’s house.

Roberts testified that R.R. has been diagnosed with bipolar disorder, post-traumatic stress disorder due to severe molestation, oppositional defiance disorder, attention deficit hyperactivity disorder and borderline schizophrenia. She stated that R.R. would throw tantrums when she was called by her given name, R.R., at school. She further stated that R.R. failed kindergarten because she was often home due to her constant tantrums.

A.R., R.R.’s half-sister, testified next. She testified in accordance with her prior testimony in the Primr hearing.

R.R., the victim, also testified. Prior to her being called, the trial court held a closed competency hearing to determine if she was able to testify due to her youthful age. Following some questioning by the trial judge, he ruled that she was competent to testify.

R.R. testified that one time when her mother took her out of the bathtub, she was “playing with herself,” and she told her mother that her daddy does that to her. She testified that the defendant is her father. Following R.R.’s testimony, the state rested its case.

Alice Stokes, the defendant’s mother, testified that her son did not own a vehicle. However, she stated that there may have been one occasion | fiwhen he borrowed his grandmother’s vehicle to pick up R.R. Stokes insisted that she met him at a gas station, and she then took R.R. with her. She testified that during the visitations she was always present, and when she worked nights, her son and R.R. would stay at her mother’s, Ella Randolph’s, house. She further testified that R.R. slept with her every time she visited, but she could not state whom she slept with when they (defendant and R.R.) stayed at Randolph’s house. She then testified that there was never any time that the defendant was alone with R.R. She did not recall A.R. ever visiting when R.R. visited. Lastly, she confirmed that her son was, at the time of trial, 34 years old.

The defendant testified on his own behalf. He testified that he had an alcohol abuse problem, and that he has three convictions for driving while intoxicated. He further testified that he was previously charged with molestation of a juvenile, but he only pled guilty to a lesser charge only because he thought it was in his best interest. He insisted that he was not guilty. The defendant confirmed that he was 34 years old. He testified that he did not know why A.R. testified that he touched her, nor did he know why R.R., at the age of two or three years old, told her mother that “my daddy does this to me” while inappropriately touching herself.

On March 17, 2011, the jury returned a guilty as charged verdict. The trial court ordered a presentence investigation report and scheduled sentencing. On May 12, 2011, prior to sentencing of the defendant, defense counsel filed a motion for new trial and a motion for judgment of acquittal 17notwithstanding the verdict. Both motions were denied, and the defendant waived the sentencing delays.

After reviewing the PSI, together with the factors set forth in La. C. Cr. P. art. 894.1, the trial court sentenced the defendant to 15 years’ imprisonment at hard labor, with credit for time served. He was also ordered to register as a sex offender. Defense counsel then made an oral motion to reconsider, which the trial court denied. He now appeals.

LAW AND DISCUSSION

In the defendant’s sole assignment of error, he argues that there is insufficient evidence proving that he was guilty of molestation of R.R.

Molestation of a juvenile is defined in La. R.S. 14:81.2(A) in pertinent part:

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

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); 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 18(La.App. 2 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. 2 Cir. 1/14/09), 1 So.3d 833.

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. 2 Cir. 2/25/09), 3 So.3d 685; State v. Hill, 42,025 (LaApp. 2 Cir. 5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The testimony of a sexual assault victim alone is sufficient to convict a defendant. 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. Chandler, 41,063 (La.App. 2 Cir. 9/8/06), 939 So.2d 574, writ denied, 2006-2554 (La.5/11/07), 955 So.2d 1277.

Based on the testimony presented, even in the absence of physical evidence, the state sufficiently proved that the defendant, being over the age of 17, committed lewd and lascivious acts upon R.R., a person under the age of 17, while she was under his control and supervision pursuant to La. R.S. 14:81.2.

19Melanie Roberts, the victim’s mother, testified that pursuant to a custody agreement, the defendant was allowed visitation with R.R. every other weekend, at which times she was under his control and supervision. After approximately a year of the ordered visitation schedule, Roberts testified that she noticed a change in R.R. More specifically, she no longer wanted to visit her father, and when she returned from the visit, she was withdrawn. Alice Counts’s testimony corroborated Roberts with respect to R.R.’s behavior.

Roberts further testified that R.R. was touching her private parts, and told her that “my daddy does it to me and he hurts my boo boo.” R.R. was only two years old when she told Roberts what her father was doing to her. R.R. testified that she made that statement to her mother, and confirmed that the defendant is her father.

A.R. testified that when she accompanied R.R. on her visits with the defendant, he would take R.R. in the bathroom in the back of the house for approximately 30 minutes, and when R.R. returned she looked nervous and awkward. A.R. testified that the defendant had previously touched her inappropriately on her private parts on numerous occasions.

Roberts and Counts testified that R.R. demonstrated inappropriate sexual behavior when playing with dolls and even with her younger sister. Dr. Boris confirmed that behavior such as that was indicative of a sexually abused child.

After carefully reviewing the record, we find that the state satisfied its burden of proof. The evidence when viewed under the Jackson standard was | insufficient for the jury to find the defendant guilty of molestation of a juvenile pursuant to La. R.S. 14:81.2. This assignment of error is therefore without merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . State v. Prieur, 277 So.2d 126 (1973).


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Gary L. SCOTT, Plaintiff-Appellee v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
    No. 46,652-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2011.

      McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, L.L.C., New Orleans, LA, by Lauren A. Welch, Hilliard F. Kelly, III, for Appellant.
    Law Offices of Street & Street, Monroe, LA, by Curtis Daniel Street, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   DREW, J.

|, Unum Life Insurance Company appeals a judgment ordering it to pay continued disability benefits, attorney fees, and a penalty to Gary Scott.

We amend the judgment to reduce the penalty and attorney fees awarded, and as amended, we affirm the judgment.

FACTS

Gary Scott, who was born in 1954, was employed as a master plumber and pipefit-ter at the University of Louisiana at Monroe (“ULM”), where he worked for 16 years. Scott began paying for disability insurance while working at ULM.

The disability insurance was originally offered through another insurer before Unum took over the program. The policy read:

“Disability” and “disabled” mean that because of injury or sickness:
1. the insured cannot perform each of the material duties of his regular occupation; and
2. after benefits have been paid for 24 months, the insured cannot perform each of the material duties of any gainful occupation for which he is rea- ' sonably fitted by training, education or experience.

The policy also stated that the benefit would be paid for the period of disability if the insured gave to Unum proof of continued disability and “regular attendance of a physician.” Proof of these facts must be given, at the policyholder’s expense, when Unum asked for it.

Scott recalled twice injuring his back at work. The first time occurred in 2000 when he picked up a concrete lid for a fountain. The second time occurred in 2004 when he picked up an ice machine. Dr. David Hebert began treating Scott in 2003 for severe lower back pain and other physical | ¡¡ailments. As early as December of 2004, Dr. Hebert suspected that Scott was clinically depressed.

Scott stopped working on September 1, 2006. After treating Scott on October 30, 2006, Dr. Hebert thought he was basically disabled, mostly because of his depression, although he also felt degenerative joint disease of the lumbar spine and chronic low back pain contributed to Scott’s inability to work his job at ULM.

Scott applied for disability benefits in early December of 2006. On December 18, 2006, Michael Marley, the Unum disability benefits specialist assigned to Scott’s claim, sent a claim initiation letter to Scott. Marley wrote that in order to determine if Scott met the policy definition of disability, Unum would need additional information about his restrictions and limitations and the requirements of his occupation.

Marley called Scott on December 26, 2006, to get additional information to evaluate his claim. Scott told Marley that he was not working because of back problems and depression, and that he was being treated by Dr. Hebert. Scott also discussed his medications. Marley said he went over the definition of disability with Scott at that time.

On January 5, 2007, Dr. Hebert completed an “Attending Physician’s Statement for Disability Benefits.” The diagnoses made by Dr. Hebert were degenerative joint disease of the lumbar spine and major depressive disorder without psychosis. Dr. Hebert gave September 2006 to February 2007 as the approximate duration of disability.

Is Amy Herrick, a clinical consultant for Unum, called Dr. Hebert on January 11, 2007. Dr. Hebert told Herrick that he felt duped by Scott because he thought that Scott would return to work; instead, Scott wanted to remain on disability indefinitely and had no intention of returning to work. Dr. Hebert also told Herrick that Scott needed to get an MRI and to see an orthopedic specialist and a psychologist, which Scott was refusing to do. Dr. Hebert added that he had thought Scott would need only one to two months of disability when he signed the disability papers for Scott. According to Dr. Hebert, Scott’s depression was a far greater issue than his back condition, and he felt that Scott needed to seek further treatment instead of just taking medications.

Dr. Peter Kouros, a medical consultant for Unum, reviewed Scott’s file and felt that additional information was needed to accurately assess any possible impairment. Dr. Kouros recommended a psychiatric independent medical examination (“IME”) and a functional capacity evaluation (“FCE”) to better delineate Scott’s present functional capacity.

On January 20, 2007, Scott received a letter from Marley stating that Unum had approved his request for benefits. The letter reproduced the policy’s definition of disability. Scott was told that in order to qualify for ongoing benefits, he must continue to meet the definition of disability, and that Unum would periodically request medical evidence and vocational information to support the continuation of benefits. Marley also wrote that because the extent of Scott’s disability was unclear, Unum wanted him to undergo a FCE and a psychiatric IME in order to fully evaluate his claim. pMarley added that because Scott had not sought treatment from an orthopedist or a psychiatrist as recommended by Dr. Hebert, his claim was being approved under a reservation of rights. Finally, Marley wrote that in order for Scott to be eligible for benefits beyond December 1, 2008, he needed to be disabled from any gainful occupation as a result of his physical condition.

Unum began paying benefits of $978.29 per month under the policy effective December 2, 2006. The first check covered the period of disability from December 2, 2006, through January 1, 2007.

Scott’s FCE was performed by Jay Manning on February 13, 2007. Manning concluded that Scott was able to work at the light physical demand level.

Dr. George Seiden performed the psychiatric IME of Scott on behalf of Unum. Dr. Seiden’s impression was that Scott had an adjustment disorder with depressed mood. Dr. Seiden believed that Scott was having a complicated grief reaction to his father’s death. Dr. Seiden felt that Scott’s depression was readily treatable and that he was never completely disabled by his depressive disorder. He did not think that Scott had received appropriate care for his psychiatric condition, although he recognized that treatment would be difficult because of Scott’s lack of motivation to improve.

| ¿On March 20, 2007, Dr. Kouros examined Scott’s medical records and concluded that Scott’s occupational demands were in excess of his reasonable functional capacity as demonstrated by the FCE. Dr. Kouros noted that Scott’s evaluation was limited because of Scott’s refusal to complete studies or referrals.

On October 23, 2007, Marley wrote to Scott that based upon the results of the FCE, Scott was disabled from his regular occupation as a plumber/pipefitter because of his back condition. Marley also wrote that the psychiatric IME did not support psychiatric impairment that prevented Scott from performing his occupation, and thus, it did not appear that he was disabled due to depression.

In March of 2008, Marley wrote to Scott to inform him that Unum was beginning to review his eligibility for benefits beyond the initial 24-month period. In November of 2008, Robin Giese performed a vocational assessment in which he identified security guard and gate guard as vocational options for Scott. Giese thought those positions were consistent with Scott’s prior work history, skills, education/training, demonstrated general educational development levels, and restrictions and limitations.

On November 19, 2008, Marley wrote to Scott to inform him that Unum was denying his request for benefits, and that benefits would not be paid past December 1, 2008. Marley noted that Giese had concluded that although Scott’s occupation of plumber/pipefitter required physical demands in excess of his reasonable restriction and limitations, he was able | fito work in alternate occupations, including security guard at $9.95 an hour and gate guard at $9.21 an hour. Therefore, he was not disabled from any gainful occupation due to his physical condition.

Marley informed Scott that he was required to submit any additional information in support of his request for benefits within 180 days, and that Unum would reconsider his claim. Scott was told that he could appeal this decision, and the review would take into account all new information even if it was not available at the initial determination. Scott was also told that he could bring an ERISA claim if he disagreed with the determination on appeal.

Scott appealed Unum’s decision in February of 2009. He argued to Unum that he should be continued on disability on the grounds that he continued to have lower back pain on a daily basis for which he received medical treatment, and because his overall mental health had declined as a result of his lower back pain. In support of his appeal, Scott submitted a December 10, 2008, office note from his treating physician, Dr. Ronald Hubbard.

Karen Connolly, the Unum appeals specialist assigned to Scott’s claim, realized after reviewing Scott’s file that she needed it reviewed by Unum’s medical department. Two physicians, Dr. Robert Hill and Dr. Jana Zimmerman, who were Unum medical consultants, then reviewed his file. Dr. Hill examined Scott’s records to determine if his back condition was disabling; Dr. Zimmerman was to determine if his depression was disabling.

|7On April 3, 2009, Connolly wrote to Scott that Unum had determined that the decision to close his claim was appropriate. Connolly made reference to the section of the policy on “regular attendance of a physician.” She noted that Scott did not pursue specialized treatment of his depressive condition despite referrals, and he did not heed Dr. Hebert’s recommendations of an MRI and evaluation by an orthopedic specialist. Connolly wrote that Scott’s records did not show impairment from a psychiatric condition necessitating restrictions or limitations. She also wrote that he had the physical capacity to perform the alternative occupations of security guard and gate guard, so he was no longer disabled as defined in the policy.

Scott sued Unum on April 29, 2009. He contended that the termination of benefits and refusal to resume payment was arbitrary, capricious, and without probable cause and entitled him to a penalty and attorney fees in addition to the benefits due.

Following a trial on the merits, the court ruled in favor of Scott. The court found that the language in the policy was more narrowly defined and restrictive than allowed by Louisiana law, namely La. R.S. 22:990(C). The court noted that while Unum believed that Scott could perform the material duties of gate guard and security guard, once the court compared Scott’s base monthly pay rate with the monthly pay rates for a security guard and a gate guard, it was clear that the termination of benefits violated La. R.S. |S22:990(C) because those occupations did not provide Scott with substantially the same earning capacity as required by law. In addition, the court concluded that even if those positions provided substantially the same earning capacity, there was no evidence that Scott was qualified for those positions by reason of education, training, or experience.

The court noted that Marley, who had a Juris Doctor degree from the University of Maine, was under a duty to familiarize himself with Louisiana law. The court concluded that Marley should have known that the salary information provided by Giese did not equate to substantially the same earning capacity required under Louisiana law in order to terminate benefits. The court ruled that Unum violated La. R.S. 22:1821 by discontinuing benefits without just and reasonable grounds.

Unum was ordered to reinstate benefits retroactive to December 1, 2008, and to continue to pay $978.29 per month in accordance with the law and its policy provisions. Accrued benefits at the time of judgment were $23,478.96. Unum was assessed a penalty of $46,957.92 and attorney fees of $23,455.00 for violating La. R.S. 22:1821. The attorney fees were based on a one-third contingency fee of the $70,436.88 judgment.

DISCUSSION

Unum contends on appeal that: (1) the trial court failed to address the threshold requirement that Scott did not receive regular care for his alleged disability; (2) the trial court admitted irrelevant evidence; (3) the trial court erred in ruling that the policy’s definition of disability was more restrictive than allowed in Louisiana; (4) the trial court was clearly wrong in finding |9that a penalty and attorney fees were warranted; and (5) the trial court erred in its calculation of the penalty and attorney fees.

Regular attendance of a physician

Unum contends that the trial court failed to address the threshold requirement of whether Scott was receiving regular care for his alleged disability. Unum argues that the failure to follow Dr. Hebert’s recommendations to see an orthopedist and behavioral therapist was a violation of the “regular attendance of a physician” provision of the policy.

Dr. David Hebert, an internal medicine physician, first treated Scott for complaints of lower back pain in October of 2003. He prescribed narcotic analgesics and muscle relaxers to help Scott’s lower back symptoms. Toward the end of 2004, Dr. Hebert thought that Scott was depressed and had probable degenerative disc disease of the lumbar spine. Dr. Hebert noted in his records on November 16, 2006, that he felt strongly that Scott should see an orthopedic doctor for an evaluation of his lower back pain. He made this recommendation many times to Scott to no avail.

Although Dr. Hebert thought that Scott was truly disabled in January of 2007, he did not think that Scott was going to be disabled for the remainder of his life. Dr. Hebert explained that when he spoke with Amy Herrick, he was frustrated that Scott was not seeing an orthopedist or psychiatrist, and had not gotten an MRI of his back.

Dr. Hebert terminated Scott as a patient in May of 2007 because he felt that he was not helping Scott by continuing with the same treatment. |inDr. Hebert thought that his evaluation of Scott’s back was limited because Scott would not undergo additional testing. Even Dr. Hebert’s diagnosis of degenerative disc disease was a guess, but he thought it was the most likely lower back condition that was causing symptoms. Dr. Hebert added that it is difficult to be a doctor when a patient refuses tests and treatments. He also thought that Scott was not motivated to return to work.

On May 2, 2007, Scott began seeing an orthopedist, Dr. Douglas Brown, albeit for a foot injury. When Dr. Brown saw Scott again for his foot later that month, Dr. Brown noted that Dr. Hebert was treating Scott with chronic pain medication for his back problems. Brown would go on to suggest surgery for Scott’s foot, but Scott was not interested in having surgery.

When Dr. Brown treated Scott for his foot on June 4, 2007, he noted that Scott’s back condition had been under treatment by Dr. Hebert for several years. He added that all medications regarding his back must come from Dr. Hebert. Dr. Hebert explained that Dr. Brown took this step to prevent Scott from getting twice the pain medications that he needed. Dr. Hebert also explained that this note meant that Dr. Brown was not addressing the back problem. Later that summer, Dr. Brown referred Scott to pain management and a psychological evaluation, neither of which he pursued.

Dr. Ronald Hubbard, an internal medicine physician, began treating Scott for his foot injury on July 9, 2007. Scott gave a history of back pain Into Dr. Hubbard. Beginning in February of 2008 and going through May of 2010, Dr. Hubbard regularly treated Scott for his back pain.

Dr. Brown examined Scott on October 11, 2010, at the request of Scott’s attorney. Scott complained of worsening of his longstanding back problems. Dr. Brown’s impression was L4-5, L5-S1 disc disease with SI neuropathy. Dr. Brown wanted Scott to see Dr. Hubbard for any pain medicine, and he thought an MRI of Scott’s lumbar spine was needed before he could ascertain Scott’s true disability.

Dr. Brown treated Scott again on October 28, 2010. He noted that Scott’s medications were controlled by Dr. Hubbard. He also noted that an MRI of the lumbar spine taken eight days earlier showed degenerative bulging discs at L4-5, L5-S1. Dr. Brown’s impression was that Scott had symptomatic lumbar degenerative disc disease at L4-5, L5-S1. Dr. Brown wrote that Scott was to see Dr. Hubbard and apply for social security. Dr. Brown did not think that any further orthopedic treatment was necessary.

Dr. Hebert testified that an orthopedist would not be limited to treating Scott’s pain with narcotics and muscle relaxers, but would also utilize injections, pain management, and physical therapy. Dr. Hebert thought that Scott was fearful that an orthopedist would want to do surgery. Scott also declined to see a pain management doctor.

When asked about Dr. Brown’s statement in October of 2010 that no further orthopedic treatment was necessary, Dr. Hebert said that he agreed |12that the treatment Scott was receiving was the treatment that he should have been receiving all along. Dr. Hebert also agreed that Dr. Brown sent Scott back to Dr. Hubbard to continue that regimen. However, Dr. Hebert explained that what he meant by having Scott see an orthopedist was not to have the orthopedist send Scott back to his treating physician, but that he was thinking more along the lines of the orthopedist evaluating Scott’s back, ordering an MRI, and then providing a treatment like steroid injections. Dr. Hebert had hoped that Scott would receive orthopedic treatment that would restore his ability to work as a plumber. Nevertheless, Dr. Hebert acknowledged that Dr. Brown did not recommend steroid injections, physical therapy or other orthopedic treatment.

The disability policy does not define what is meant by “regular attendance of a physician.” Unum points us to a meaning given by a federal district court judge in an unpublished opinion in Lefebvre v. Ivex Packaging Corp., 1998 WL 325258 (N.D.Ill.1998):

This court agrees that the “regular attendance of a physician” requirement does not mandate that plaintiff must visit his physician on a monthly basis. Instead, when defined according to its plain, ordinary and popular meaning, the term “attend” means “to take care or charge of’ or “to serve as doctor to during an illness.” The term “regular” means “usual or customary.” Thus, the regular attendance requirement means that the insured must be under the customary care of his doctor.

(Citations omitted.)

At the time that benefits were terminated, Scott was under the regular attendance of a physician, Dr. Hubbard. Although not every visit was about his back, Dr. Hubbard saw Scott at least once a month between December 3, 2007, and the date of termination. Prescriptions for his pain medications |13and muscle relaxers were refilled during these visits. While Scott was not being treated by an orthopedist as Dr. Hebert would have liked, this treatment by Dr. Hubbard was nonetheless the regular attendance of a physician as required by the policy.

The asserted failure to be under the regular attendance of a physician was not mentioned in the letter from Marley informing Scott that his benefits had been terminated. Moreover, Scott was never told by anyone from Unum that he needed to undergo an orthopedic examination in order to continue receiving benefits. Unum had the right to ask Scott to submit to an orthopedic exam, but it never did. Connolly explained that Unum did not compel Scott to undergo an orthopedic examination because it already had the results from the FCE.

Unum argues that Scott failed to fulfill his duty to mitigate damages when he delayed seeking an evaluation by an orthopedist as recommended by Dr. Hebert. However, this evaluation would have been of minimal value in the treatment of Scott for his disabling back condition. Dr. Brown left the medication treatment of Scott’s back condition up to his internal medicine doctors, and after Dr. Brown examined the results of the MRI, he decided that no further orthopedic treatment was necessary.

Since Scott was under the regular attendance of a physician, there was no error in the trial court not directly addressing whether Scott met this policy requirement.

114Pr. Hebert testified that Scott’s depression was just as much a reason as the back pain for why he said Scott was disabled as of September 2006. Dr. Seiden later concluded that Scott’s depression was not disabling.

Dr. Hebert did not feel comfortable in treating a patient with chronic depression, so he recommended that Scott see a psychiatrist. However, because it would have taken several weeks for Scott to see a psychiatrist if he had even agreed to see one, Dr. Hebert began treating Scott for his depression. Dr. Hebert believed that because of his treatment for several months, Scott’s depression had improved by the time that Dr. Seiden examined him. Dr. Hebert disagreed with Dr. Seiden’s position that Scott was never completely disabled because of his depression.

In any event, it is unnecessary for this court to dwell on Scott’s failure to seek treatment by a psychiatrist as the trial court found that Scott was entitled to continued benefits on the basis of his disabling back condition.

Evidentiary ruling

Unum also complains that the trial court allowed into evidence, over Unum’s objections, Scott’s records for medical treatment after the termination of benefits. Unum complains that these records were irrelevant to the 2008 termination of benefits. Unum also complains that among these records was an office note from Dr. Brown that it received four days before trial. The note was created by Dr. Brown less than two weeks before trial.

A trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Hays v. Christus Schumpert Northern Louisiana, 46,-408 (La.App.2d Cir.9/21/11), 72 So.3d 955; Graves v. Riverwood Intern. Corp., 41,810 (La.App.2d Cir.1/31/07), 949 So.2d 576, writ denied, 07-0630 (La.5/4/07), 956 So.2d 621.

These records documented Scott’s continued regular attendance with Dr. Hubbard. In addition, the 2010 medical records from Dr. Brown showed that for all of Dr. Hebert’s protests that Scott needed to be treated by an orthopedist, Dr. Brown concluded that Scott had degenerative disc disease and referred Scott back to Dr. Hubbard because no further orthopedic treatment was necessary. We find no abuse of discretion by the trial court in allowing these records to be admitted into evidence.

Conñict between state law and the policy provisions

Unum argues that the trial court erred in ruling that the definition of disability found in the policy was more restrictive than allowed by La. R.S. 22:990, which provides, with our emphasis added:

A. An individual or group disability loss of income policy to provide loss of income protection against total disability may be issued in this state consistent with the definitions and provisions of this Section.
B. Total disability may be defined in relation to the inability of the person to perform duties but shall not be based solely upon an individual’s inability to either:
(1) Perform “any occupation whatsoever”, “any occupational duty”, or “any and every duty of his occupation”.
(2) Engage in any training or rehabilitation program.
C. A general definition of total disability in such a policy shall not be more restrictive than one requiring the individual to be totally disabled from engaging in any employment or occupation for which he is, or becomes, qualified by reason of education, training, or experience and |, ¿which provides him with substantially the same earning capacity as his former earning capacity prior to the start of the disability.
D. An insurer may specify the requirement of the complete inability of the individual to perform all of the substantial and material duties of his regular occupation or words of similar import.
E. An insurer may require care by a physician other than the insured or a member of the insured’s family.

Once disability benefits were paid for 24 months, the Unum policy defined “disability” and “disabled” as meaning that because of injury or sickness, Scott could not perform each of the material duties of any gainful occupation for which he was reasonably fitted by training, education or experience.

This provision does not speak of any earning capacity requirements for the gainful occupation. In doing so, it increases the number of potential occupations available to the insured, making the designation of disability more difficult to attain under the policy. Therefore, the policy presents a definition of disability that is more restrictive than permitted under La. R.S. 22:990(C). The trial court did not err in finding that the policy was more restrictive than allowed by law.

Jerry Manning, who testified on behalf of Unum as an expert physical therapist, administered Scott’s FCE. Manning thought Scott could work at a light-work level for an eight-hour day. Scott would have to change between sitting and standing positions as needed for pain. Scott would be unable to tolerate functional positions such as prolonged squatting, kneeling, or bending positions needed for plumbing work. Manning’s conclusion was |17that Scott could not return to his plumbing job but that he could perform light duties within his restrictions.

There is no dispute that the work restrictions placed upon Scott are reasonable and preclude him from working in his former position. Dr. Hebert thought the restrictions were permanent and that Scott would have to be retrained for another line of work. Two occupations, security guard and gate guard, were identified by Giese as alternative occupations for Scott.

At the time he stopped working, Scott earned $14.40 per hour or $2,445.73 per month. A security guard position would pay $9.95 per hour or $1,724.67 monthly. A gate guard position would pay $9.21 per hour or $1,596.46 monthly. It is evident that neither position provides substantially the same earning capacity as Scott’s prior position as a plumber/pipefitter at the University. Therefore, Scott remains disabled and entitled to disability benefits.

Penalty and attorney fees

Unum argues that the trial court was clearly wrong in finding that La. R.S. 22:1821 was violated and that a penalty and attorney fees were warranted.

Disability insurance is classified as health and accident insurance. La. R.S. 22:47(2)(a). La. R.S. 22:1821(A) provides:

All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard, exist. The insurer shall make payment at least every thirty days to the assured during | isthat part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court.

This statute, formerly numbered La. R.S. 22:657, was discussed at length by the Third Circuit in Stewart v. Calcasieu Parish School Bd., 2005-1339, pp. 4-5 (La.App. 3d Cir.5/3/06), 933 So.2d 797, 801, writ denied, 2006-1910 (La.11/3/06), 940 So.2d 666:

An award of penalties and attorney fees under this statute serves as a punishment, and therefore must be applied with great care. “This section is penal in nature and is strictly construed. The burden is on the claimant to prove arbitrariness and capriciousness or lack of probable cause.”
The determination as to whether an insurer acted arbitrarily or capriciously is a fact-based analysis, and therefore cannot be overturned by an appellate court absent a finding of manifest error, or that the trial court was clearly wrong.
The party claiming entitlement to penalties and attorney fees bears the burden of proving that the insurer had sufficient proof that payment on a claim was due as a basis for establishing that the insurer was arbitrary and capricious in denying the claim.
The determination of whether the insurer acted arbitrarily or capriciously must be based, at least in part, on the information known to the insurer at the time the claim was made. If the insurer has a good faith, reasonable explanation for its failure to timely pay on a claim, then the penalty provisions should not apply. Also, when a reasonable disagreement exists between an insurer and an insured, it is not arbitrary and capricious or without probable cause on the part of the insurer to deny payment on the claim that is in dispute. “Whether there are such just and reasonable grounds is a question of fact. The trial court’s findings of fact may not be disturbed on appeal absent manifest error.”

(Citations omitted.)

|19In the context of penalties and attorney fees in workers’ compensation proceedings, arbitrary and capricious behavior has been defined as willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. See Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885.

Michael Marley was the disability benefits specialist assigned to Scott’s claim. His job at Unum was to investigate and review disability claims. Marley consulted with registered nurse Amy Herrick regarding Scott’s claim.

Marley stated that even though Dr. Kouros felt in early 2007 that Unum needed additional information to fully evaluate Scott’s claim, Unum began paying benefits to Scott because Marley thought it was the right thing to do. The decision to pay benefits received medical support in March of 2007 after Dr. Kouros examined Scott’s medical records and found that Scott’s occupational demands were in excess of his reasonable functional capacity. This showed that Scott could not perform his regular occupation, so Marley recommended that the reservation of rights be removed.

Marley, Giese, an Unum clinical consultant, and an Unum quality compliance consultant met to discuss Scott’s claim as the initial benefits period of 24 months neared its end. They agreed that the restrictions and limitations in the FCE appeared reasonable and that Dr. Hubbard should be contacted to get his opinion about the FCE. Marley wrote to Hubbard in late October of 2008 asking that he help Unum evaluate Scott’s eligibility |gnfor continued benefits. Dr. Hubbard replied that he agreed that the restrictions and limitations outlined in the FCE were still valid for Scott.

Marley felt comfortable terminating benefits without having Scott evaluated by an orthopedist. Marley stated that Unum probably refrained from having Scott examined by an orthopedist because the doctors did not disagree about his physical condition. Unum was more concerned about his functionality, which is why the FCE was done.

When Scott was informed by Marley that his benefits would stop after 24 months because his physical condition did not disable him from any gainful occupation, he was told that although he could not work in his former occupation at ULM, the alternate occupations of security guard and gate guard had been identified.

Giese looked for occupations in the geographical area that paid about $8.47 per hour when he performed the occupational analysis. Giese did not do a labor market survey to determine if the security guard and gate guard positions were available. Giese never interviewed Scott, but he explained that this would have been necessary only if the question was whether Scott could work as a security guard. In this instance, Giese looked at the question as being whether there were other occupations that Scott could perform.

In Unum’s appeal process, no deference is given to the original decision. Karen Connolly was the Unum appeals specialist assigned to Scott’s claim. She conferred with Drs. Hill and Zimmerman, medical consultants for Unum in its internal appeals procedure.

|2iPr. Hill was a general practitioner with a focus on sports medicine. He concluded that the restrictions and limitations assigned to Scott were reasonable and supported and should be considered permanent.

Dr. Zimmerman, a psychologist and neu-ropsychologist, concluded that Scott’s medical records did not support impairment from a behavioral standpoint. Moreover, she did not find sufficient reason to disagree with Dr. Seiden’s opinion. She did not think that Scott was ever disabled by his mental condition.

Connolly stated that the grounds for finding that Scott was not disabled were the two alternative occupations identified by Giese. The alternative occupations were also mentioned in Marley’s termination letter to Scott.

Marley handled the matter as if it were controlled by federal law, at least insofar as he mentioned ERISA in the denial letter. He stated that he was never asked to reevaluate the claim under Louisiana law, and doing so would not have made a difference since he evaluated it based on the policy language. Connolly stated that she checked her manual to see if there were any applicable Louisiana regulations.

If Unum had examined its policy definition of disability in light of La. R.S. 22:990(C), it would have realized that its policy definition was illegally restrictive in that it did not take into account that the two identified alternative occupations would not provide Scott with substantially the same earning capacity as he had when he worked as a plumber and pipefitter. These two alternative occupations were the basis for terminating Scott’s 122benefits after the period of 24 months. . A simple resort to the statute would have made Unum aware that it needed to seek alternative occupations that offered Scott substantially the same earning capacity. Because it failed to do this, Unum acted arbitrarily and capriciously in terminating benefits. The trial court was not clearly wrong in ordering the payment of a penalty and attorney fees.

Unum next argues that the trial court erred in its calculation of the penalty and attorney fees. The penalty provision in La. R.S. 22:1821(A) states, “Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due[.]” Unum contends that this provision means that the total sum that can be awarded to Scott is the amount of the benefits due, plus a like amount as a penalty.

In support of its argument, Unum cites Crawford v. Blue Cross Blue Shield of Louisiana, 1999-2503 (La.App. 1st Cir.11/3/00), 770 So.2d 507, writ denied, 2000-3267 (La.2/16/01), 786 So.2d 98. The Crawford court concluded that under La. R.S. 22:657(A), before it was renumbered as La. R.S. 22:1821(A), the insured was entitled to a penalty award of 100% of the claim. In Nickels v. Guarantee Trust Life Ins. Co., 563 So.2d 924 (La.App. 1st Cir.1990), the First Circuit ruled that the “double the amount” provision did not mean double the amount of benefits as a penalty in addition to the amount of benefits; rather, it meant recovery of a total of twice the amount of benefits due, or 100% of the benefits due as a penalty. See Fulton v. Blue Cross of Louisiana, 563 So.2d 492 (La.App. 4th Cir.1990), writ denied, 567 So.2d 1129 (La.1990); Bowers v. Sun Life Assur. Co. of Canada, 99-215 (La.App. 3d Cir.6/30/99), 768 So.2d 37, writ denied, 2000-1978 (La.10/6/00), 771 So.2d 82.

The argument that an insurer liable for penalties under La. R.S. 22:657 should be assessed with twice the amount of benefits due as a penalty in addition to the payment of the benefits was rejected by the Third Circuit in Bischoff v. Old Southern Life Insurance Company, 502 So.2d 181 (La.App. 3rd Cir.1987). Interestingly, an unrelated insurance statute, La. R.S. 22:1220 (now renumbered La. R.S. 22:1973), provides for a penalty “in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.” (Our emphasis.) The Louisiana Supreme Court has calculated penalties under this statute by doubling the amount of damages attributable to the insurer’s breach of duties under La. R.S. 22:1220. See Durio v. Horace Mann Ins. Co., 2011-0084 (La.10/25/11), 74 So.3d 1159, where the plaintiff was awarded damages of $167,333 and penalties of $334,666.

La. R.S. 22:1973 and La. R.S. 22:1821 are readily distinguished. The former provides in subsection (C), “In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties!)]” The latter does not contain the “in addition to” language.

12,|We agree with the other circuits that have calculated penalties under La. R.S. 22:1821 and its predecessor, La. R.S. 22:657. A penalty of double the amount of the benefits due means a penalty equal to 100% of the benefits due. Had the legislature intended the penalty to be 200% of the benefits due, it would have utilized language similar to that found in La. R.S. 22:1220 (now La. R.S. 22:1973). Accordingly, the trial court erred in calculating damages and attorney fees.

The penalty assessed against Unum is reduced to $23,478.96, or 100% of the benefits due. The attorney fees, which were based on a one-third contingency fee, are reduced to $15,652.64.

DECREE

We amend the judgment to reduce the penalty assessed and the attorney fees awarded. As amended, the judgment is affirmed, at Unum’s costs.

      . Unum’s personnel decided by March of 2007 that removal of reservation of rights was warranted.

      . Although the disability period had commenced in September, benefits were not payable during an elimination period running from September 3 through December 1, 2006.

      . Unum filed a notice of removal to federal district court in June of 2009. The case was remanded by the federal magistrate to state court in October of 2009. In January of 2010, the federal district court denied Unum’s appeal of the magistrate's removal decision.

      . Scott testified that when he told Dr. Brown about his back in 2007, Dr. Brown asked him who his doctor was and then told him to return to Dr. Hebert.

      . Dr. Hebert related that the MRI showed that Scott did not have a herniated disc, which Dr. Hebert never thought that Scott had. According to Dr. Hebert, a severely herniated disc would have made Scott a candidate for surgery.

      . Dr. Hubbard also recommended that Scott see a psychiatrist.

      . La. R.S. 22:1892 (formerly La. R.S. 22:658) contains similar language in subsection (B)(1): "a penalty, in addition to the amount of the loss[.]”

      . Act 310 of 1910 was the precursor to La. R.S. 22:1821 and La. R.S. 22:657. It read, in pertinent part:
      That the insurance company guilty of such delay in payment, unless upon just and reasonable grounds, shall pay to the assured, as a penalty, double the amount due under the terms of the policy or contract, during the period of delay, with attorney’s fees to be determined by the tribunal before whom suit is instituted.
      Act 310 of 1910 was examined by the supreme court in Frey v. Manhattan Life Ins. Co. of New York, 182 La. 821, 162 So. 633, 637-8 (La.1935). After the insurer refused to pay disability benefits to Frey, Frey sued, and the trial court awarded benefits, but not penalties or attorney fees. The supreme court amended the judgment to award penalties and attorney fees. Regarding the measure of penalties, the court stated:
      Counsel for plaintiff argue that the penalty alone for delay in making payments is double the amount due, or $20 per month for each $1,000 of insurance in addition to the amount stipulated in the policy. In other words, if plaintiff is entitled to the penalties, he should receive $30 per month or three times the amount stipulated in the policies. We do not so construe the statute. As a penalty for delay the insurer must pay, not the amount called for by the policies, but twice that amount, or $20 per month for each month during the delay, instead of $ 10 per month for each $1,000 of insurance.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Jerome BRYANT, Jr., Appellant.
    Nos. 46,744-KA, 46,745-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 21, 2011.

      Douglas L. Harville, for Appellant.
    Charles R. Scott, II, District Attorney, Suzanne Morelock Owen, Jacob P. Brous-sard, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

| iThis criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Jerome Bryant, Jr., was found guilty, following a bench trial, of simple burglary of an inhabited dwelling (a violation of La. R.S. 14:62.2) and aggravated burglary (a violation of La. R.S. 14:60). Bryant was subsequently adjudicated a second-felony offender and sentenced to serve 25 years at hard labor, without the benefit of parole, probation or suspension of sentence for the aggravated burglary conviction, and 12 years at hard labor for the simple burglary of an inhabited dwelling conviction, the first year of which to be served without benefit of parole, probation, or suspension of sentence. The trial court ordered the sentences to run concurrently to one another. Additionally, the defendant was ordered to pay court costs, or in lieu of such payment, to serve an additional 30 days in the parish jail. Bryant appeals his convictions and sentences.

Facts

On March 11, 2009, by three separate bills of information, Bryant was charged with two counts of simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2, and one count of attempted second degree murder, which was later amended to aggravated burglary, in violation of La. R.S. 14:60.

In November 2010, Bryant’s bench trial commenced. The state called Corporal Diane Coleman of the Shreveport Police Department as its first witness. Corporal Coleman testified that she received a call on February 5, 2009, regarding shots fired at a home on Pennsylvania Avenue in | j>Shreveport. When she arrived at the house, Jason Goetz, the homeowner, told her that he had been at home with his young daughter and heard a noise at the back door. When he went to investigate, a black male was standing in the doorway and shot at him.

Corporal Coleman testified that in the course of her investigation, she interviewed Sarah Knots, a witness who told Cpl. Coleman that on her way home from school she had seen a white Crown Victoria with dark tinted windows driving very slowly down Pennsylvania Avenue. Some time after seeing the vehicle, Knots heard two gun shots.

The state called Sarah Knots as its next witness. Knots corroborated Cpl. Coleman’s testimony by verifying that she had seen the white Crown Victoria on February 5, 2009, on Pennsylvania Avenue. The windows on the vehicle were tinted and the front license plate was a blue Ford license plate. The car stayed stopped at a stop sign for several seconds to let Knots pass. A little while later, Knots heard two gunshots. During the investigation, when Knots was later shown the vehicle, she positively identified the Crown Victoria as the car she saw.

Officer Joseph Anthony Dews, a supervisor for the Shreveport Police Department, was then called to testify. Officer Dews stated that he responded to a burglary complaint on East Washington Street in Shreveport in February 2009. The homeowner, Carolyn Jones, told Officer Dews that when she returned home that morning, her front door was unlocked and her house had been burglarized. The back door had been kicked open. Officer Dews photographed a shoe print on the outside of the back door, and ^another officer obtained a full hand print from inside the house. Several guns, a laptop and an iPod were taken from the home. ■

The state called Deandrae Jackson, Bryant’s codefendant, as its next witness. Jackson had previously pled guilty to illegal possession of stolen things for his part in the burglaries and was sentenced to serve 10 years at hard labor, suspended, with four years of probation.

Jackson testified that he was with Bryant on February 5, 2009, and that they were driving Jackson’s stepfather’s car, a white Crown Victoria with tinted windows. Jackson admitted that items found in the vehicle — a flat screen television, video games, a mink coat, a printer, a digital camera, an iPod, a Nintendo Wii, and some guns — had been stolen from various homes; however, he claimed he could not remember the exact addresses of the homes. Jackson also testified he drove the Crown Victoria while Bryant entered the homes and brought the valuables out to the vehicle. Jackson testified that when Bryant returned from the house on Pennsylvania Avenue, Bryant told Jackson to “go, go, go.” Jackson refused to admit that he told police that Bryant told him that he shot at someone, despite the fact he had previously testified to such at his guilty plea hearing.

The state then played the recorded video testimony of Jason Goetz, the homeowner at 433 Pennsylvania Avenue, who was serving in Afghanistan at the time of the trial. Goetz testified that he was home with his two-year-old daughter when he heard a noise at the back door. He went to the back door, which was actually a set of French doors. Because the blinds were halfway down on the doors, he could see the pants of the person |4standing at the door. Suddenly, the doors were kicked in and a young blackman was standing with a gun in his hand. The young man raised the gun, holding it sideways, and fired off two shots aimed at Goetz, that missed. According to Goetz, he and the shooter met eye-to-eye. Goetz testified that after the shooter fired the shots, he fled, and Goetz ran to check on his daughter. Peeking out of the blinds in her room, he saw the shooter run to a light-colored vehicle to flee. Goetz testified that the shooter never entered the house, but shot from a step outside, which was lower than the house. Detectives later found the bullets on Goetz’s floor, about eight or ten feet from where Goetz had been standing. Goetz identified Bryant as the shooter.

After watching the shooter drive away, Goetz called police and gave a statement. Goetz was later taken by police to a location where some suspects had been apprehended. Goetz immediately identified Bryant as the shooter. During his testimony, he reiterated his confidence that Bryant was the shooter, because he looked him in the eyes at the time.

The state called Damon Jordan, the homeowner of a house at 146 Patton Avenue, in Shreveport, Louisiana, to testify. Jordan explained that on February 5, 2009, his home was burglarized some time after 8:00 a.m., after he and his wife had left for work. Some time later that afternoon, when his son returned home from high school, he discovered that several items were missing from the home. Jordan recalled specifically that games for a Wii console, a camcorder, a printer, a digital camera, a mink coat, a | r,pellet gun and two iPods had been stolen. Jordan opined that the burglars had entered through the back door, which was unlocked.

The state called Detective Rachel Alkire, with the Shreveport Police Department, to testify next. Detective Alkire stated that on February 5, 2009, she received a call regarding a burglary on Pennsylvania Avenue. Shortly thereafter, Det. Alkire and her partner noticed a vehicle matching the description of the one involved in the burglary traveling west on 85th Street in Shreveport. The detectives followed the Crown Victoria until it stopped at a residence on David Street. Detective Alkire then saw two black males in dark clothing standing at the rear of the vehicle looking into the trunk. The detectives drove around the block and when they returned they noticed that the front license plate matched the one described by witness Sarah Knots. Detective Alkire and her partner immediately called for backup and waited down the street. When additional officers arrived, they returned to the house and saw two black males standing outside. One of them, later identified as Bryant, took off running, but was apprehended hiding in a doghouse down the street. Police also arrested Deandrae Jackson and interviewed Bryant’s younger brother, Ka-tryle Bryant. Police later determined that Katryle was not involved with the burglaries.

According to Det. Alkire, Jackson’s mother’s boyfriend, the owner of the Crown Victoria, gave police consent to search the vehicle. Inside, police found a pellet gun, a .38 caliber revolver, a fur coat, various remote controls for televisions and a Wii console, a printer, a camcorder, a Wii console, two laptops, some Wii games, televisions, a DVD player, four | r,iPods, a cell phone, a digital camera, a GPS charger, a herringbone necklace, a Nintendo game, a suitcase and several DVDs. A majority of the items came from the house at 146 Patton Avenue. There were also items that had been taken from a house at 1123 East Washington Street, in Shreveport. It was later discovered that the .38-caliber revolver came from a home at 3312 Gorton Street. Detective Alkire.testified that the burglaries at East Washington Street and Patton Avenue both occurred on the same day as the burglary at Pennsylvania Avenue.

Detective Alkire explained that following his arrest, Jackson gave a statement to police. He first told police that he met Bryant at a vacant house in Mooretown-, where Bryant loaded several of the stolen items into the car. He stated that after the two left Mooretown, he dropped Bryant off at the home on Pennsylvania Avenue. A short time later, Bryant returned to the car and told Jackson to drive because he had shot at someone. Police searched Jackson and found two pieces of a Wii console in his pockets; he admitted they came from the Wii console that Bryant had stolen. Police concluded that Jackson’s story was unbelievable because it provided inadequate time to commit the burglary on Pennsylvania Avenue.

Detective Alkire testified that the keys to the Crown Victoria were found in the pathway Bryant used to escape police. Bryant could not explain why the keys were found there. Police also discovered that Bryant was wearing a watch that had been stolen in an earlier unrelated burglary, and that he had Jackson’s cell phone. Bryant denied to the police involvement in any of the burglaries.

|vAt the conclusion of Det. Alkire’s testimony, the state rested, and Bryant requested a directed verdict. He argued that the state failed to prove that he actually entered the home on Pennsylvania Avenue. The state countered that Bryant had entered the home when his foot kicked the door open, or that his hand had entered when he pointed the gun inside the house, - or that he fired - á gun and the projectile entered the home. The trial court denied the request for a directed verdict, and the defense rested.

The trial court found Bryant guilty of both aggravated burglary and simple burglary of an inhabited dwelling. Subsequently, the state filed a habitual offender bill of information charging Bryant as a second-felony offender in regard to his conviction for aggravated burglary. Specifically, the habitual offender bill alleged that Bryant pled guilty to simple burglary on October 25, 2007.

In January 2011, Bryant appeared and pled guilty to being a second-felony offender. After Bryant waived sentencing delays, the trial court sentenced him to serve 25 years at hard labor without the benefit of probation or suspension of sentence for the aggravated burglary conviction. For his simple burglary of an inhabited dwelling conviction, Bryant was sentenced to serve 12 years at hard labor, with the first year being served without the benefit of parole, probation or suspension of sentence. The sentences were ordered to run concurrently to one another. The trial court also specified that if Bryant failed to pay court costs for either conviction, he would be subject to a 30-day parish jail sentence.

IsBryant filed a motion to reconsider sentence, alleging that the imposed sentences were excessive, which motion was denied. He also filed a motion for appeal, which was granted the same day, and this appeal ensued.

DISCUSSION

Sufficiency of the Evidence

Bryant was convicted of two different crimes, and he argues that the evidence adduced at trial was insufficient on each to convict him. Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of 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. State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such eases 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. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.09/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.02/05/99), 737 So.2d 747. When a conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v. Baker, 46,089 (La.App.2d Cir.03/02/11), 58 So.3d 571.

The trier of fact is charged to make a credibility evaluation 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. Sosa, 2005-0213 (La.01/19/06), 921 So.2d 94. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.04/01/05), 898 So.2d 1219, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

Simple Burglary of an Inhabited Dwelling

Bryant contends that the state failed to prove that he committed simple burglary of an inhabited dwelling of the home at 146 Patton Avenue. In support of his claim, Bryant cites the trial testimony of Dean-drae Jackson, his partner in crime, who denied seeing Bryant at the Patton Avenue address. Bryant concedes that Jackson testified to remembering Bryant taking property from a home, but notes that Jackson could not remember the address. Further, Jackson earlier told police that Bryant loaded the stolen property from a vacant house in Mooretown. Bryant notes | mthat the homeowners of the Patton Street address did not identify him and that no fingerprints were taken from the home.

Simple burglary of an inhabited dwelling is the unauthorized entry of any inhabited dwelling, used as a home, with the intent to commit a felony or any theft therein. La. R.S. 14:62.2.

Here, the evidence adduced at trial was sufficient to prove that Byrant committed simple burglary of the inhabited dwelling located on Patton Avenue. Jackson told police that Bryant had been riding with him in the white Crown Victoria on February 5, 2009. He also testified at trial that Bryant had gone to some unspecified homes, entered the homes, and taken various items from the homes. Bryant put those items in the Crown Victoria.

Jordon, the homeowner of 146 Patton Avenue, testified that someone came in through the back door of his home and stole a television, mink coat, digital camera, camcorder, a Wii console and games, a pellet gun, a laptop computer and some iPods. Some of the items taken from Jordan’s home were later discovered in the Crown Victoria vehicle in which Bryant had ridden with Jackson. The Crown Victoria vehicle was linked to Bryant by the testimony of Knots, who saw the white Crown Victoria on Pennsylvania Avenue before she heard shots, and Goetz, who saw Bryant jump into a light-colored vehicle parked outside his residence on Pennsylvania Avenue after the shooting. Detective Alkire and her partner discovered a white Crown Victoria matching the description by Knots and saw two young black men looking in the trunk. When officers arrived, one of the men, later | , identified as Bryant, immediately took off running and hid in a neighbor’s doghouse. While tracking Biyant’s path, police found the keys to the Crown Victoria; Bryant could not explain why the keys were there. When police obtained consent to search the Crown Victoria, they discovered several of the items taken from the house at 146 Patton Avenue.

The trial court heard the witness testimony, and it acted within its reasonable discretion in accepting that testimony. The foregoing facts, when viewed in a light most favorable to the prosecution, are sufficient for a rational finder of fact to conclude that Bryant committed simple burglary of the inhabited dwelling on Patton Avenue and exclude every reasonable hypothesis of innocence. Therefore, this assignment has no merit.

Aggravated Burglary

As to Bryant’s conviction for the aggravated burglary on Pennsylvania Avenue, Bryant alleges that the evidence adduced at trial was insufficient to prove that he committed the crime. In support, Bryant argues that he never actually entered the residence, but stood outside. He points to the testimony of Jason Goetz, who stated that .Bryant never entered his home, but fired shots from outside.

Aggravated burglary is the unauthorized entering of any inhabited dwelling with the intent to commit a felony or any theft therein, if the offender is armed with a dangerous weapon. La. R.S. 14:60.

For purposes of showing “unauthorized entry,” the prosecution need only prove that any portion of the defendant’s body passed the line of the door’s threshold. State v. Hogan, 33,077 (La.App.2d Cir.03/01/00), 753 So.2d 965, citing State v. Abrams, 527 So.2d 1057 (La.App. 1st Cir.1988), writ denied, 625 So.2d 164 (La.1993).

The prosecution asked Goetz specifically: “Did Mr. Bryant actually get to enter your house?” To which, Goetz replied, “No, sir.” Goetz also described that Bryant was “outside” the house when he shot. As described by Goetz, there was a step into his house from the driveway, and Bryant was standing lower than the house when he shot at Goetz. On cross-examination, Goetz reiterated that Bryant never entered his home. Although Goetz described that he witnessed Bryant kick the door, he did not state he saw any part of Bryant’s body cross the plane into his dwelling. Nor did the state present any evidence that in order to kick in Goetz’s door, Bryant’s foot or leg would have necessarily entered into the house. The prosecution simply failed to present any evidence that any portion of Bryant’s body crossed the plane into Goetz’s dwelling.

Whereas the state argues that an entry occurred because Bryant’s foot necessarily would have crossed the plane into Goetz’s home when the door was kicked in, this is merely speculative. There was no evidence what amount of force was necessary for Bryant to have kicked in the door, let alone evidence of whether his foot would have crossed the plane to satisfy the entry requirement for burglary. Goetz testified that Bryant never entered the house and that Bryant stood outside when he shot at Goetz. Had the prosecution simply inquired whether Bryant’s foot had crossed the threshold when the door was kicked open (and assuming the answer would have been “yes”), the state would have met its burden of proving that an unauthorized 1 gentry had occurred. Without any evidence of an entry, an essential element of any burglary charge, there can be no conviction of aggravated burglary. Accordingly, Bryant’s conviction for aggravated burglary was in error, and it is set aside.

Moreover, Bryant’s conviction for aggravated burglary was used as the second offense in his second felony habitual offender charge, to which he pled guilty. As a result of reversing the aggravated burglary conviction, there is no basis for the habitual offender charge, and that conviction must necessarily also be set aside.

When a conviction is reversed for insufficiency of the evidence, an appeal court has the authority to review the record and enter a conviction for a lesser-included offense when such conviction is supported by the record. State v. Byrd, 385 So.2d 248 (La.1980); State ex rel. D.J., 2008-345 (La.App. 3d Cir.08/28/08), 995 So.2d 1. Louisiana C.Cr.P. art. 814(A)(42) enumerates the responsive verdicts to aggravated burglary, listing “guilty of attempted aggravated burglary” as a responsive verdict to aggravated burglary. Here, our review of the record shows that the evidence at trial was sufficient to convict Bryant of the lesser and included offense of attempted aggravated burglary.

Pursuant to La. R.S. 14:27, an “attempt” is defined in pertinent part as follows:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

l14In order to be found guilty of attempted simple burglary, Bryant must have had specific intent to enter the house without authorization, with specific intent to commit a felony or any theft inside, while armed with a dangerous weapon. A conviction of the underlying felony is not required. State v. Guidry, 1994-596 (La.App.3d Cir.11/02/94), 649 So.2d 486, writ denied, 1994-2953 (La.03/17/95), 651 So.2d 267, citing State v. Mills, 505 So.2d 933 (La.App. 2d Cir.1987), writ denied, 508 So.2d 65 (La.1987). Here, considering the evidence of record, it is apparent Bryant had the intent to enter Goetz’s house— Goetz witnessed him forcibly break the door in, even though the evidence did not show he actually entered the house. See State v. Holmes, 2006-2988 (La.12/02/08), 5 So.3d 42, 65. Additionally, it is also apparent that Bryant had the intent to commit a felony inside the house, while armed with a dangerous weapon. When viewing the evidence presented at trial in the light most favorable to the prosecution, it is difficult to imagine any hypothesis that does not include the specific intent to commit a felony or theft therein. Moreover, after firing at Goetz, Bryant fled the scene, which supports an inference of Bryant’s guilty conscience. See State ex rel. B.A.A., 44,494 (La.App.2d Cir.05/20/09), 13 So.3d 1183. Finally, it is undisputed that Bryant was armed with a dangerous weapon — Goetz testified to this fact and bullets were retrieved from Goetz’s house. There was no evidence presented to contradict this. So considering, the record in this case supports a conviction for the lesser-included offense of attempted aggravated burglary.

Sentencing

| ifiBryant contends that his sentences are excessive. He argues that the trial court failed to explain its reasons for imposing the sentences, and that he received the maximum allowable for his simple burglary of an inhabited dwelling conviction. Because his convictions for aggravated burglary and second felony habitual offender have been set aside, Bryant’s sentence flowing from those convictions is vacated. Thus, we will only consider his sentence for his conviction of simple burglary of an inhabited dwelling.

There is a two-part inquiry for appellate review of sentences for exces-siveness when there is a substantive motion for reconsideration. First, the record must show that the sentencing court complied with La.C.Cr.P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Marshall, 1994-0461 (La.09/05/95), 660 So.2d 819; State v. Cass, 46,228 (La.App.2d Cir.04/13/11), 61 So.3d 840. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lobato, 603 So.2d 739 (La.1992); State v. Cass, supra. The second prong is the constitutional excessiveness standard. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, supra.

Simple burglary of an inhabited dwelling carries a sentence of imprisonment at hard labor for not less than one year, without the benefit of parole, probation or suspension of sentence, nor more than 12 years. La. R.S. 14:62.2.

|1fiThe sentence imposed in the instant matter is not excessive when considering all of the circumstances involved. Although the trial court did not articulate its reasons for imposing the sentence, the record provides an adequate factual basis for the imposed sentence. Specifically, Bryant had a criminal history which included a felony conviction for simple burglary on October 25, 2007. Additionally, evidence adduced at trial tended to show that Bryant had committed other burglaries, including one at East Washington Street — also on February 5, 2009. Furthermore, Bryant created a risk of death or great bodily injury to Goetz and his small child when he fired shots into Goetz’s home on Pennsylvania Avenue. No mitigating circumstances were provided to the trial court, and Bryant fails to allege any in his appellate brief.

Neither is the sentence imposed constitutionally excessive. Although Bryant received the maximum sentence (12 years) for his simple burglary of an inhabited dwelling conviction, considering his propensity to commit such burglaries, the sentence is not excessive. This assignment of error is without merit.

Error Patent

An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Kerrigan, 27,846 (La.App.2d Cir.04/03/96), 671 So.2d 1242. A defendant’s claim of indigence in such a 117situation may be discerned from the record. State v. Williams, 484 So.2d 662 (La.1986); State v. Kerrigan, supra. This Court has considered it error for a trial court to impose jail time for failure to pay court costs. See Kerrigan, 671 So.2d at 1247. The trial court ordered Bryant to serve a 30-day parish jail sentence upon default of his payment of court costs for both convictions. The record indicates that Bryant is indigent; therefore, that portion of his sentence is vacated.

Conclusion

For the foregoing reasons, the conviction and sentence of Jerome Bryant, Jr. for simple burglary of an inhabited dwelling are affirmed. His convictions for aggravated burglary and second felony habitual offender are set aside, and the matter is remanded to the trial court with instructions to enter a judgment of guilty of attempted aggravated burglary and to sentence him accordingly.

CONVICTION AND SENTENCE FOR SIMPLE BURGLARY OF INHABITED DWELLING AFFIRMED; CONVICTIONS AND SENTENCE FOR AGGRAVATED BURGLARY AND SECOND FELONY HABITUAL OFFENDER SET ASIDE AND REMANDED FOR ENTRY OF JUDGMENT OF GUILTY OF ATTEMPTED AGGRAVATED BURGLARY AND FOR SENTENCING.


author: McClendon, j.

text:
    Renee Claire Hasha PENNINGTON v. Christopher PENNINGTON.
    No. 2011 CA 1022.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.
    Michael S. Walsh, Baton Rouge, LA, for Plaintiff/Appellant Renee Claire Hasha Pennington.

      Laurie N. Marien, Baton Rouge, LA, for Defendant/Appellee Christopher Pennington.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McClendon, j.

|2In this appeal, the mother of two minor children challenges a trial court judgment that did not include the father’s income from a second job in child support calculations. Following a review of the record, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

The parties in this matter, Renee Claire Hasha Pennington and Christopher Pennington, were married on December 22, 2001, and established their matrimonial domicile in East Baton Rouge Parish. Two children were born of the marriage. The parties separated on February 14, 2008, and on March 5, 2008, Ms. Pennington filed a petition for divorce pursuant to LSA-C.C. art. 102. On May 13, 2008, Ms. Pennington filed an amending and supplemental petition, asserting inter alia that she was in necessitous circumstances and requesting child support from Mr. Pennington. Thereafter, the parties entered into stipulations that were placed on the record on June 17, 2008. On July 15, 2008, the trial court signed a stipulated judgment in accordance with said stipulations. In the stipulated judgment, the parties agreed to joint shared custody of the minor children, with neither party being designated as domiciliary parent. Further, beginning on July 1, 2008, Mr. Pennington was ordered to pay to Ms. Pennington $650 per month in child support, and he was to be responsible for all of the children’s daycare and summer care expenses. The parties also agreed that in lieu of spousal support, Mr. Pennington was to continue to pay the minimum monthly community credit card payments, in an amount set at $580 per month, through the date of divorce.

The parties were divorced on July 8, 2009. On October 16, 2009, Mr. Pennington filed a rule to reduce child support, asserting a material change of circumstances. Specifically, Mr. Pennington alleged that Ms. Pennington graduated from law school in May 2009, that she was working only part time, and that she was underemployed and should be imputed a full time salary. The parties worked out an agreement regarding this rule, and the court date was |3continued and not rescheduled. A second rule to reduce child support was filed on October 28, 2010. Similar to the first rule, Mr. Pennington alleged that in addition to Ms. Pennington’s increase in earning potential, he no longer wished to maintain a second job in addition to his current full-time employment at Louisiana State University. Mr. Pennington asserted that he was working a second job in order to service the extensive debt of the parties and pay his child support as ordered.

At the hearing on January 4, 2011, the parties initially placed stipulations on the record that, 1) there was a change in circumstances warranting a reduction in child support, 2) Mr. Pennington’s full-time income from his employment at LSU was $3,958 per month and Ms. Pennington’s current income was $2,500 per month, and 3) Mr. Pennington was going to place the minor children on his health insurance. The only remaining issue before the court was whether Mr. Pennington’s previous part-time job at Ruth’s Chris Steakhouse should be included in the child support calculation. Following a hearing, wherein testimony was taken and evidence admitted, the trial court ruled that Mr. Pennington’s extra income from Ruth’s Chris Steakhouse would not be included in the child support calculation.

A judgment was signed on January 25, 2011, setting forth the stipulations of the parties and ordering that Mr. Pennington’s previous part-time income would not be included in the child support calculation. Additionally, the judgment reduced the child support amount due and owing by Mr. Pennington to $232.51 per month retroactive to October 28, 2010, and determined that Mr. Pennington would be responsible for 61.3% and Ms. Pennington responsible for 38.7% of all daycare, summer care, health insurance, and uncovered medical costs incurred on behalf of the minor children.

|4Ms. Pennington appealed, asserting that the trial court erred in not utilizing Mr. Pennington’s part-time income from a second job in the child support calculation and in classifying this income as “extraordinary overtime.”

DISCUSSION

The Louisiana child support guidelines set forth the method for implementation of the parental obligation to pay child support. See LSA-R.S. 9:315.1 A. To apply the guidelines, the court must initially determine the gross income of the parties. See LSA-R.S. 9:315.2 A. Income means the actual gross income of a party, if the party is employed to full capacity. LSA-R.S. 9:315 C(5)(a). Gross income, defined in LSA-R.S. 9:315 C(3), includes income from any source, but does not include:

Extraordinary overtime including but not limited to income attributed to seasonal work regardless of its percentage of gross income when, in the court’s discretion, the inclusion thereof would be inequitable to a party.

LSA-R.S. 9:315 C(3)(d)(iii).

Generally, an award of child support is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Lambert v. Lambert, 06-2399, p. 4 (La.App. 1 Cir. 3/23/07), 960 So.2d 921, 924. Furthermore, a trial court’s conclusions of fact regarding financial matters underlying an award of child support will not be disturbed in the absence of manifest error. Romanowski v. Romanowski, 03-0124, p. 8 (La.App. 1 Cir. 2/23/04), 873 So.2d 656, 662.

On appeal, Ms. Pennington contends that Mr. Pennington’s part-time employment was not “overtime” or “extraordinary overtime” and therefore should have been included in determining Mr. Pennington’s gross income. Ms. Pennington further contends that because Mr. Pennington had consistently and steadily worked at Ruth’s Chris Steakhouse for six years prior to the date he quit, he is voluntarily underemployed. Particularly, Ms. Pennington argues that Mr. Pennington was unhappy about continuing to shoulder 100% of the community | ¿debt, although it had been three years since she graduated from law school. Therefore, according to Ms. Pennington, Mr. Pennington was not in good faith.

Mr. Pennington testified that he is currently a full-time employee at LSU, working forty hours a week. He also stated that during their marriage, while Ms. Pennington was in law school, she was not working, and he worked forty hours a week at the Louisiana Department of Natural Resources, plus four nights a week at Ruth’s Chris Steakhouse. Mr. Pennington testified that he had anticipated ceasing employment at Ruth’s Chris Steakhouse after Ms. Pennington graduated from law school. He stated that Ms. Pennington graduated in May 2009, and after she began working at an attorney’s office, he filed the first rule to reduce child support. According to Mr. Pennington, Ms. Pennington called him and requested that he not pursue the rule while she was studying for the bar exam, and they arrived at an agreement whereby Ms. Pennington agreed to assume 33% of the community debt until she took the bar exam, and Mr. Pennington would not pursue the child support reduction until after that time. Mr. Pennington stated that Ms. Pennington took the bar exam in the spring of 2010, but did not pass, and filed for bankruptcy thereafter. He testified that because Ms. Pennington made no attempt to be responsible for their community debt, he filed for bankruptcy as well. Mr. Pennington testified that he quit his job at Ruth’s Chris Steakhouse on December 31, 2010, because he was tired.

On cross-examination, Mr. Pennington testified that his income at Ruth’s Chris Steakhouse was about $22,000 per year, or $1,833 per month, and that he began working there in February 2005. Mr. Pennington again stated that while he was married, he had always planned to quit his part-time job after Ms. Pennington finished law school. Ms. Pennington did not testify.

The trial court determined that Mr. Pennington’s part-time employment was analogous to “extraordinary overtime” as found in LSA-R.S. 9:315 C(3)(d)(iii) and cited the first circuit ease of Walden v. Walden, 00-2911 (La.App. 1 Cir. 8/14/02), 835 So.2d 513. In Walden, Mr. Walden worked a significant number [ fiof overtime hours per week for “long-term, but limited family goals: to purchase a new home and cars for the family.” This court stated:

At the time of trial, Mr. Walden was gainfully employed and made a decent living working 40-44 hours a week, with the possibility of occasional overtime. That is the basis that should be used for calculation of child support. In this particular case, despite any inconsistencies in testimony, the overtime was voluntarily undertaken for a limited goal, and outside of the ordinary full-time job requirements and income. Thus, it was “extraordinary” income. To find otherwise under the particular facts here would require all parents who worked overtime for a limited goal, to continue to work the highest level of overtime achieved or be classified as underemployed.
Under the positive law specifically applicable, “extraordinary” overtime should not be included if the inclusion would be “inequitable.” La. R.S. 9:315(C)(4)(d)(iii). It is the duty of parents to support their children. La. C.C. art. 227. However, the courts must be balanced in their enforcement of this duty and not impose extraordinary requirements on parents. The concern of the law and society, and therefore the courts, should be with true unemployment or underemployment of both parents of school-aged children, not one parent’s decision to discontinue extraordinary pursuits or sacrifices after the family has broken up. We find that the imposition of judicially mandated long-term overtime in this particular case would be inequitable.

Walden, 00-2911 at p. 6, 835 So.2d at 518-19.

Initially, we recognize that the trial court never categorized Mr. Pennington’s part-time job as either “overtime” or “extraordinary overtime,” but noted that it was similar in principal. As such, the trial court did not include the part-time income in the child support calculation. Perhaps the better analysis, given that Mr. Pennington was no longer employed at Ruth’s Chris Steakhouse at the time of the hearing, is to determine whether he was voluntarily underemployed. Under the facts of this case, we find that he was not and further agree with the trial court that, even were we to analyze the second job in the context of “overtime,” based on Walden, Mr. Pennington’s second job should not be considered in the calculation of child support. Mr. Pennington’s part-time employment began during the marriage and was for a limited purpose: |7to help financially support the family while Ms. Pennington finished law school. This part-time job was in addition to Mr. Pennington’s full-time employment at LSU. Thus, any argument regarding a lack of good faith or underemployment must fail. Clearly, under the facts of this case, to require Mr. Pennington to engage in long-term additional employment would be inequitable.

We find no error in the trial court’s decision not to include the income from Mr. Pennington’s former part-time employment in the child support calculation. Accordingly, we can find no abuse of discretion in the award of child support by the trial court herein.

CONCLUSION

For the above and foregoing reasons, we affirm the January 25, 2011 judgment of the trial court. All costs of this appeal are assessed to Renee Claire Hasha Pennington.

AFFIRMED.

      . At the time the rule was filed, Mr. Pennington was still working at his second job, but had ceased said employment prior to the hearing on the rule.

      . Ms. Pennington also asserts that the Walden decision is at odds with the rest of the circuits and should not be followed. However, we find the cases cited by Ms. Pennington factually distinguishable. See Douthit v. Douthit, 31,713 (La.App. 2 Cir. 3/31/99), 732 So.2d 616; Montou v. Montou, 96-1463 (La.App. 3 Cir. 4/2/97), 692 So.2d 705; Ezernack v. Ezernack, 04-1584 (La.App. 3 Cir. 4/6/05), 899 So.2d 198; State Through Dept. of Social Services v. Toledano, 97-1424 (La.App. 4 Cir. 5/13/98), 713 So.2d 679.