author: COOKS, Judge.

text:
    STATE of Louisiana v. Paul B. STEPHAN.
    No. 11-648.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Paul B. Stephan.
    Karen C. McLellan, Assistant District Attorney, John F. DeRosier, District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

^PROCEDURAL HISTORY

Paul Stephan (Defendant), was charged by bill of indictment with the offenses of attempted second degree murder, theft of a vehicle valued over $500.00, and second degree robbery. Defendant originally pled not guilty to the charges but later entered a guilty plea to the charge of second degree robbery as part of a plea bargain in which the State dismissed the charges of attempted second degree murder and theft. A presentence investigation was ordered by the court, and on November 10, 2010, the Defendant was sentenced to serve thirty years in the custody of the Louisiana Department of Corrections. Defendant appeals his conviction and alleges his sentence is excessive. Defendant did not file a motion for reconsideration of sentence in the trial court.

FACTS

The factual basis provided by the State at the guilty plea proceeding simply indicated that investigation by the Calcasieu Parish Sheriffs Office revealed Defendant committed a second degree robbery of Cesar Torres (Torres). No further particular facts were mentioned. Facts established during the sentencing phase of this case show that Torres had been a helpful friend to Defendant. Defendant invited Torres to his home in the guise of introducing him to some girls. Upon arriving at Defendant’s home, Torres knocked on the front door but no one answered. After Torres turned to walk away, Defendant shot him in the back of the head and took him inside his home. He told Torres that he had fallen and hit his head on a nail. Defendant laid Torres on the couch and left him there bleeding for approximately five hours without seeking medical assistance. Defendant took Torres’ coat which contained his credit cards and truck keys before calling an |2ambulance. After the ambulance took Torres to a hospital, Defendant took a nap, and then drove to •Texas in Torres’ vehicle and proceeded to use Torres’ credit cards. Defendant admits using Torres credit cards and taking his truck. The indictment also charged Defendant with taking cash from Torres but the cash which Torres had on him when he arrived at Defendant’s home was still on his person at the hospital.

In accordance with La. Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There are no errors patent.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in denying his motion to withdraw his guilty plea because the record does not demonstrate sufficient compliance with statutory and constitutional requirements. More specifically, Defendant contends his plea should be vacated because it was taken in the absence of advice as to the nature of the charges and his right to maintain his plea of not guilty.

Defendant claims his colloquy with the court does not establish that he fully understood the nature of the charge against him. He sets forth his argument as follows:
The colloquy between the court and Mr. Stephan in this case does not evidence a sufficient exchange to establish Mr. Stephan fully understood the nature of the charges against him and that the plea was freely and voluntarily entered. The record does not reflect Mr. Stephan was advised he had the right to maintain his plea of not guilty, as is required by Article 556.1.
The court read the plea form which included a statement that Paul Stephan understood the nature of the charge. But there was no explanation and appellant’s answers were simply, “yes, sir” or “no, sir” to the questions posed in the reading of the form. While the court went over the Boykin rights in this process, the elements of second degree robbery were not read, nor were the specifics of the indictment mentioned in the colloquy. The factual basis for the conviction of second degree robbery was conclusory as well.
|sThis deficiency is significant since the indictment charges the thing taken in the robbery was U.S. currency, and Mr. Stephan admitted only to using Torres’ truck and credit cards. A sealed bag of money was still in Torres’ possession when he was taken by ambulance to the hospital, thus, this currency clearly was not taken by Mr. Stephan. Also, Mr. Stephan denied shooting Torres. Thus, the explanation of the nature of the charge is essential since one element of second degree robbery is that the offender intentionally inflict serious bodily injury. LSA R.S. 14:64.4.

Defendant contends the record before this court shows he lacked awareness of the essential nature of the offense to which he was pleading, and for this reason, he argues, his plea cannot stand. He requests a remand to be given the option to proceed to trial or plead anew with full advice of his rights.

Second degree robbery is defined as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another when the offender intentionally inflicts serious bodily injury.” La.R.S. 14:64.4.

At the plea proceeding, the State indicated Defendant was charged with theft, second degree robbery, and attempted second degree murder. It further indicated that upon his guilty plea to second degree robbery, the State would move to nolle prosse the remaining two charges. Defendant acknowledged he had reviewed the plea form with his attorney. The judge read over the form with Defendant and instructed Defendant to stop him if he had any questions. In pertinent part, the written plea form stated, “I understand the nature of the charge and that this is a felony offense which could result in a penitentiary sentence....” The court read this statement to Defendant and advised him of the penalty range for the offense. Defendant indicated to the court he understood what he was being told. The court then reviewed the rights Defendant was waiving by pleading guilty, specifically, a right to a jury trial, the right to confront and cross-examine [ 4witnesses, the right to compulsory process, the privilege against self-incrimination, the right to counsel, and the right to appeal from a verdict of guilt. When asked by the court whether Defendant’s attorney had “gone over all of this,” Defendant answered in the affirmative. The court asked Defendant whether he had any questions concerning the form or his plea. He replied he did not. The factual basis provided by the State was, “the state would prove that on or about November 25, 2007, investigation by the Calcasieu Parish Sheriffs Office revealed the defendant did commit a second degree robbery of Cesar Torres.” Defendant acknowledged that this fact was correct.

Louisiana Code of Criminal Procedure Article 556.1 provides in pertinent part:

A. In a felony case, the court shall not accept a plea of guilty or nolo con-tendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
E. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.

In support of his position, Defendant cites State v. Ford, 06-1435 (La.App. 3 Cir. 4/4/07), 954 So.2d 876. In Ford, the defendant was originally charged with one count of vehicular homicide, one count of hit and run driving, and one count of | ^operating a vehicle while intoxicated. The latter two charges were dismissed by the state upon the defendant entering a plea of guilty to the offense of vehicular homicide. On appeal, the defendant claimed the trial court failed to inform him that causation was an element of vehicular homicide, and because of that failure, his motion to withdraw his guilty plea should have been granted by the trial court.

This court determined that the trial court’s failure to advise the defendant of causation, an essential element of the offense, was not harmless error :

The record of the plea proceedings establishes that the trial court informed the defendant that he was charged with vehicular homicide, but did not inform him of the nature of the charge by explaining its elements. Thus, the trial court failed to comply with its obligations pursuant to La.Code Crim.P. art. 556.1(A)(1). However, in State v. Longnon, 98-551, p. 7 (La.App. 3 Cir. 10/28/98), 720 So.2d 825, 829, writ denied, 98-2969 (La.3/19/99), 739 So.2d 781, this court concluded that because the requirement of La.Code Crim.P. art. 556.1(A)(1) “is a statutory requirement rather than a constitutional requirement (as is the requirement that the trial court inform the Defendant of the three Boykin rights)” it is subject to a harmless error analysis. See also State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163; State v. Morrison, 99-1342 (La.App. 3 Cir. 3/1/00), 758 So.2d 283; State v. Whiddon, 99-1 (La.App. 3 Cir. 6/2/99), 741 So.2d 797. In reviewing the record before us, we find that the trial court’s failure to comply with La.Code Crim.P. art. 556.1(A)(1) is not harmless error. The record contains nothing that would give notice to the defendant of the specific elements of the offense for which he was charged. In fact, the only other reference in the record to the nature of the offense is found in an inadequate factual basis presented by the state to the trial court during the plea proceedings. That factual basis presented is as follows:
The State would prove, on October 29th, 2004, [the defendant] was the operator of a motor vehicle in the approximate 200 block of 16th Street, in Lafayette. Also |fiin and around that area was a bicycle being operated by McDaniel Landry.
Mr. Ford collided with and struck the bicycle being maneuvered by Mr. McDaniel Landry. The impact caused Mr. Landry to travel across the top of the defendant — Mr. Ford’s vehicle. He landed face down in the roadway about 25 feet away.
Mr. Ford was — had been smoking marijuana and was smoking marijuana at the time of the crash. This, he admitted to Officer Chad Fontenot. Mr. Landry died as a result of the injuries that were suffered during the course of this accident.
No question that the accident was proximately caused by the operation of that motor vehicle while he was under the influence of marijuana.

This factual basis established only that an accident involving the defendant and the victim occurred on October 29, 2004, and that the victim died as a result of the injuries he sustained therein. It is silent as to the particulars of the accident and does not impart knowledge of the elements of the offense to the defendant. That is to say, the record contains nothing to suggest who caused the accident. As pointed out by the defendant on appeal, this factual basis coupled with the trial court’s failure to inquire into his understanding of the nature of the charge would lead the defendant to conclude that he was guilty of vehicular homicide by having been involved in an accident which resulted in a fatality after having smoked marijuana sometime in the immediate past. Such an understanding does not address who caused the accident as is a required element of La.R.S. 14:32.1.

We find merit in this assignment of error. The noncompliance with La. Code Crim.P. art. 556.1(A)(1) requires that we vacate the defendant’s conviction and sentence and remand this matter to the trial court for further proceedings.

Id. at 879-80.

In Defendant’s brief, although he denies he took currency from the victim, Defendant notes he admitted to using the victim’s truck and credit cards. Second degree robbery requires the taking of “something of value belonging to another.” [7Thus, Defendant’s acknowledgement that he took the victim’s truck and credit cards refutes his allegation that he was unaware of this particular element of the offense.

This case is distinguishable from Ford. Although the trial court did not specifically inform the Defendant of the nature of the charge in this case, it did inquire as to whether he understood the nature of the charge:

THE COURT:

“I understand the nature of the charge and that it is a felony offense which could result in a penitentiary sentence if I am guilty thereof. I am also aware of the minimum and maximum sentences provided therefor by law.”

There is a minimum sentence of two years Department of Corrections, not more than forty years.

Do you understand that?

MR. STEPHAN:

Yes, sir.

Further, Defendant in the present case was originally charged with attempted second degree murder of the victim, a charge dismissed in conjunction with his plea of guilty. The presence of the charge of attempted murder of the victim demonstrates an awareness by Defendant that the State alleged he inflicted serious bodily injury on his victim. This, combined with Defendant’s representation to the court that he understood the nature of the charge, distinguishes this case from Ford.

^HARMLESS ERROR

In State v. Gross, 99-3534 (La.6/23/00), 768 So.2d 592, 592-93, the supreme court issued the following ruling regarding a similar violation of La.Code Crim.P. art. 556.1:

Writ granted. The judgment of the court of appeal vacating defendant’s guilty plea is reversed, defendant’s conviction and sentence are reinstated. The defendant made the critical decision not to risk the self-defense scenario outlined in his confession in the context of a capital murder trial at which he could receive the death penalty, and to accept a life sentence running concurrently with another life sentence imposed in Arkansas for an unrelated murder. Given that choice, the trial court’s failure to advise the defendant, as part of the plea colloquy required by La.Code Crim. Proc. art. 556.1, that a charge of first degree felony murder under La. Rev. Stat. 14:30 A(l) requires the state to prove specific intent to kill or to inflict great bodily harm, as opposed to second degree felony murder, another life offense, which does not have a specific intent component, La.Rev.Stat. 14:30.1 A(2)(a), cannot “ ‘reasonably be viewed as having a material factor affecting the [defendant’s] decision to plead guilty.[’][”] State v. Guzman, 99-1528, p. 11 (La.5/16/00), 769 So.2d 1158, 1165 (quoting United States v. Johnson, 1 F.3d 296, 301-02 (5th Cir.1993)).

In a number of cases, this court has found noncompliance with La.Code Crim.P. art. 556.1, but has found such error harmless. For example, in State v. Morrison, 99-1342 (La.App. 3 Cir. 3/1/00), 758 So.2d 283, the defendant complained on appeal that the trial court failed to comply with art. 556.1 because it failed to inform him of the elements of the charge. The guilty plea form signed by the defendant indicated he was informed of the nature of the charge, but the guilty plea colloquy did not indicate that he was informed by either his attorney or the trial judge of the elements of the charge. This court held:

Prior to the enactment of Article 556.1, this court chose not to vacate guilty pleas based on the trial court’s failure to advise the defendant of the nature and penalties of his crime. Since the enactment of Article 556.1, however, such an advice is mandatory. Thus far, this court has found that when noncompliance with Article 556.1 involves a statutory requirement rather than a constitutional requirement (i.e., advising of the three Boykin rights) the |flnoncompliance is harmless if the defendant does not “allege any misunderstanding as to the nature of the charges to which he pled.” See State v. Whiddon, 741 So.2d at 800. In the instant case, the Defendant specifically alleges that the trial court did not satisfy the requirements of Article 556.1 by failing to advise him of the elements of the charge against him. However, the Defendant does not allege that he did not understand the nature of the charges to which he pled. The record clearly reflects that the Defendant was properly Boykinized, informed of the charge and sentencing exposure, and of the factual basis for the charge. Under the circumstances, we find the trial court’s failure to delineate the specific elements of the charge to be harmless error.

Id. at 284-85.

In State v. Whiddon, 99-1 (La.App. 3 Cir. 6/2/99), 741 So.2d 797, this court, on error patent review, found that the trial court did not personally inform the defendant of the nature of the charge to which he pled guilty. At the Boykin proceeding, the prosecutor stated the defendant was charged with driving while intoxicated, third offense, and the judge later stated he was charged with DWI, third offense. This court found the advice sufficient since DWI is a fairly straightforward crime. However, this court pointed out that the trial court did not read the elements of the offense and did not explain the prior offense element. Accordingly, this court found a violation of art. 556.1 had occurred, but it held:

Nevertheless, “since this requirement is a statutory requirement, rather than a constitutional requirement ... and the Defendant does not allege any misunderstanding as to the nature of the charges to which he pled,” nor is there any indication from the Boykin analysis, which follows, that his plea was involuntary. Accordingly, we find the error harmless.

Id. at 800.

In State v. Roberts, 08-1026 (La.App. 3 Cir. 3/4/09), 4 So.3d 1011, this court faced a similar issue:

1 ^Defendant contends that the trial court failed to ascertain his ability to make a knowing and intelligent decision to enter a plea of guilty.
A valid guilty plea must be a free and voluntary choice by the defendant. A guilty plea will not be considered free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Kennedy, 42,850 (La.App.2d Cir.1/9/08), 974 So.2d 203. An express and knowing waiver of those rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed.
State v. Minniefield, 43,300, p. 3 (La.App. 2 Cir. 6/4/08), 986 So.2d 227, 230.
Defendant asserts that despite his claim of self-defense, the trial court failed to determine whether he understood his right to continue his plea of not guilty and prove’that he acted in self-defense. The trial court informed Defendant that he had the right to plead not guilty. Defendant does not allege that he did not understand that he had the right to persist in his plea of not guilty. Self-defense was not asserted by Defendant or defense counsel at the time Defendant entered his plea of guilty, and Defendant never filed a motion to withdraw his guilty plea on these grounds.
Defendant asserts that although the trial court discussed each Boykin right and read the statute for aggravated second degree battery, including the penalty range, it did not assure itself that he understood what was being said. Defendant has not alleged that he did not understand the information explained to him by the trial court or that he did not intend to enter a plea of guilty. Defendant was represented by counsel. The transcript indicates that the trial court fully explained Defendant’s Boykin rights to him and that he indicated that he understood each of those rights. We conclude that the inquiry made by the trial court at Defendant’s guilty plea hearing satisfied the requirements of Boykin and La.Code.Crim.P. art. 556.1.
Defendant complains that the trial court did not define battery when giving the definition of aggravated second degree battery, and thus, he was not properly and fully informed of the nature of the charge against him. In support of his argument, Defendant cites State v. Ford, 06-1435 (La.App. 3 Cir. 4/4/07), 954 So.2d 876....
In State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163, the defendant challenged the sufficiency of the trial court’s description of the nature of the offense of aggravated second degree battery. In rejecting Roe’s argument, we noted:
[O]ur review indicates that the record supports the defendant’s assertion that the trial court did not list the elements of the offense at the sentencing hearing. However, as in [State v.] Morrison [, 99-1342 (La.App. 3 Cir. 3/1/00), 758 So.2d 283], our review indicates that the defendant was properly Boyldnized, informed of the factual basis for the charge and informed of the possible sentencing exposure. Furthermore, the defendant does not allege on appeal that he did not understand the nature of the charge against him, merely that the district court did not ascertain that he understood. Based on these circumstances, we find the trial court’s failure to list the specific elements of the defendant’s charge to be harmless error.
Id. at 1269. See also State v. Matthew, 07-1326 (La.App. 3 Cir. 5/28/08), 983 So.2d 994.
The definition of battery is fairly straightforward. Defendant admitted that he hit the victim and cut him with a box cutter. Moreover, he failed to allege he did not understand the nature of the charge against him. We conclude that the trial court’s failure to inform Defendant of the definition of battery was harmless error.
Defendant complains that the trial court did not inform him of the intent necessary to commit the offense of aggravated second degree battery. He contends that the facts which he recited when he entered his plea of guilty do not indicate he had the specific intent to commit battery but instead show that he was defending himself. Nevertheless, neither Defendant nor defense counsel claimed self-defense at the guilty plea. Furthermore, Defendant does not allege that he did not understand the intent necessary to commit the offense or the nature of the offense.
Defendant argues that the trial court failed to inform him of the additional penalty required by La.Code Crim.P. art. 883.2. This assertion is correct; however, nothing in La.Code Crim.P. art. 556.1 requires the trial court to inform a defendant about the mandates of La.Code Crim.P. art. 883.2. Additionally, Defendant does not assert he was unaware of the provisions of that article or that he would not have pled guilty had he known he could be ordered to pay restitution. Further, it appears Defendant was aware restitution was an issue as his attorney mentioned it immediately after the plea.
Defendant next asserts that the trial court failed to inform him of the injuries suffered by the victim. Louisiana Code of Criminal Procedure Article 556.1 does not require the trial court to inform a defendant of the injuries suffered by a victim. Additionally, Defendant does not allege that he was unaware of the injuries suffered by the victim.
Defendant’s guilty plea was knowingly and intelligently made. We find the case at bar distinguishable from Ford in that Defendant informed the trial court that he fought with the victim and admitted to cutting the victim with a box cutter. Thus, causation was clearly established. For the reasons outlined above, Defendant’s second assignment of error lacks merit.

Id. at 1016-19.

Next, in State v. Sullivan, 02-360 (La.App. 3 Cir. 10/2/02), 827 So.2d 1260, writ denied, 02-2931 (La.4/21/03), 841 So.2d 790, and writ denied, 02-2965 (La.9/5/03), 852 So.2d 1024, the defendant argued that the trial court failed to advise him of the minimum and maximum sentences for his offense, information that is required to be given in accordance with La.Code Crim.P. art. 556.1. This court granted no relief, stating:

We do not conclude that knowledge of the minimum and maximum penalties for first degree robbery would have affected the defendant’s decision to plead to second degree robbery. He has an extensive criminal history, agreed to an open-plea, and was well aware that he could have been charged as an habitual offender. In fact, at the August 7, 1997 hearing, the trial court specifically called to the defendant’s attention the life-imprisonment provisions of La.R.S. 15:529.1 for multiple offenders. We find it unlikely that knowing the minimum and maximum penalties would have affected the defendant’s decision to plead guilty.

Id. at 1265.

In the present case, Defendant alleges his colloquy with the court does not show a sufficient exchange to establish that he fully understood the nature of the charges, and that the plea was voluntarily entered. He claims the record shows he lacked awareness of the nature of the offense. There is nothing in the guilty plea transcript suggesting Defendant was unaware of the nature of the charge nor | isanything indicating the plea was involuntary. Defendant was apprised of, indicated he understood, and waived his right to a trial by jury, his right to confront his accusers, and his privilege against self-incrimination. As in Gross, given the fact that Defendant was originally facing charges of attempted second degree murder and theft (dismissed in conjunction with Defendant’s guilty plea), the trial court’s failure to advise Defendant that a charge of second degree robbery required the State to prove that he intentionally inflicted serious bodily injury on the victim cannot “reasonably be viewed as having [been] a material factor affecting the [defendant’s] decision to plead guilty.” Gross, 768 So.2d at 593. Accordingly, we find that although an art. 556.1 violation occurred, it is harmless error.

Defendant, in a single sentence, also asserts that “[t]he record does not reflect Mr. Stephan was advised he had the right to maintain his plea of not guilty, as is required by Article 556.1.” While Defendant points out the trial court’s noncompliance with art. 556.1 on this basis, he does not allege on appeal that he did not understand that he could maintain his plea of not guilty. He simply alleges he was not specifically advised that he could do so. Thus, for the reasons stated above, this error is harmless as well.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends the trial judge, who did not preside over the taking of the guilty plea, failed to sufficiently articulate the factors considered for sentencing as required by La.Code Crim.P. art. 894.1 and that he received an excessive sentence. He claims the excessiveness of his sentence cannot be fully explored without sufficient articulation for the reasons for sentencing.

Defendant did not file a motion to reconsider sentence, thus, Defendant’s claims are barred by La.Code Crim.P. art. 881.1. See State v. Baylor, 08-141 |14(La.App. 3 Cir. 11/26/08), 998 So.2d 800, writ denied, 09-275 (La.11/20/09), 25 So.3d 795. Accordingly, Defendant’s claim concerning the trial court’s noncompliance with La.Code Crim.P. art. 894.1 cannot be considered. Our review of Defendant’s sentence is limited to a bare claim of ex-cessiveness. See State v. Boyer, 10-693 (La.App. 3 Cir. 2/2/11), 56 So.3d 1119.

Defendant points out for' this court’s consideration that he is sixty years old and has COPD, making a thirty year sentence essentially a life sentence for him. He notes that despite his illness he has held a full-time job and has served in the military.

In State v. Guilbeau, 11-99, p. 8-9 (La.App. 3 Cir. 6/22/11), 71 So.3d 1020, this court discussed the basis for reviewing a bare claim of excessiveness. We stated therein:

The analysis for an excessive sentence claim is well-established:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331 (alteration in original).
11fiIn State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-0433 (La.6/25/99), 745 So.2d 1183, our colleagues on the Fifth Circuit Court of Appeal noted three factors the appellate court should consider in reviewing a judge’s sentencing discretion. They are:
1. the nature of the crime,
2. the nature and background of the offender, and
3. the sentence imposed for similar crimes by the same court and other courts.
State v. Telsee, 425 So.2d 1251 (La.1983); State v. Richmond, 97-1225 (La.App. 5 Cir. 3/25/98), 708 So.2d 1272.
Id. at 58.
State v. Baker, 06-1218, pp. 7-8 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, 89, wnts denied, 07-320 (La.11/9/07), 967 So.2d 496 and 07-1116 (La.12/7/07), 969 So.2d 626.

The penalty range for second degree robbery is not less than three nor more than forty years at hard labor. La.R.S. 14:64.4.

We first note that at sentencing, the victim was not available, but the judge stated he had read the statement prepared by the victim explaining the grief Defendant caused him. The State explained to the court that the victim was a jockey at Delta Downs who made a significant amount of money before this incident. He thought he was Defendant’s friend and did everything he could to help him. Nevertheless, Defendant robbed him, took his vehicle to Texas, and used his credit cards having no remorse for Torres who sustained serious injuries to his brain as a result of his offense. According to the prosecutor, the victim was sent to the hospital in Orange, Texas and was then transferred to Beaumont. Due to his injuries, at the time of sentencing, he was no longer gainfully employed in the capacity that he was before the offense.

| ^Defense counsel noted for the court that Defendant pled to second degree robbery and that “sometimes, there are reasons where the district attorney’s office may not push an attempted second-degree murder, because sometimes it’s not such.” Defense counsel requested a sentence of three years.

The prosecutor objected, noting that Defendant’s lack of remorse spoke volumes about his character. He further pointed out to the court, “He [the victim] also has — I think — I don’t want to misstate it, but he does have a severe mental defect as a result of that bullet in his head.... ” The following colloquy then took place between the court and Defendant: (emphasis added)

THE COURT:
Looks like he wasn’t particularly cooperative or truthful, I should say, initially. Obviously, there were problems with proof on the other charges. And I do note that Mr. Stephan has a very impressive history of criminal behavior consistent through his life. He’s a seventh felony offender.
THE DEFENDANT:
May I say something, Your Honor?
THE DEFENDANT:
Them felonies, four of them was [sic] committed at one time, and three was [sic] committed at another [sic] on the same day.
THE COURT:
Okay. Given the extreme circumstances of the event and the — and the record of the defendant, and the effect on the victim, I’m going to sentence Mr. Stephan to 30 years DOC, credit for time served.

In State v. Guillory, 10-1175 (La.App. 3 Cir. 4/6/11), 61 So.3d 801, the defendant contended on appeal that his fifty-year sentence for attempted second |17degree murder and his forty-year sentence for second degree robbery were excessive. This court, finding no merit to the defendant’s claim, stated:

The trial court’s reasons for the sentences, although quite brief, fully support them. After punching her several times, Defendant choked the supine victim. To save herself, she simulated death. As the trial judge’s brief remarks at sentencing indicated, it is likely that the victim preserved her own life by pretending to die. The act of choking another person has been repeatedly recognized as indicative of a specific intent to kill. See, e.g., State v. Young, 00-1437 (La.11/28/01), 800 So.2d 847; State v. Ware, 07-968 (La.App. 3 Cir. 3/5/08), 980 So.2d 730, writ denied, 08-847 (La.10/31/08), 994 So.2d 534; State v. Durand, 07-4 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, writ denied, 07-1545 (La.1/25/08), 973 So.2d 753; State v. Bernard, 39,579 (La.App. 2 Cir. 4/6/05), 899 So.2d 818.
Thus, in the course of the second degree robbery, Defendant inflicted a brutal beating on the victim. Her left eye swelled shut, and she suffered a broken ankle bone. Defendant ended the incident by trying to kill the victim. The victim’s quick thinking prevented the incident from becoming a completed murder. For these reasons, we find that the sentences are not excessive.

Id. at 809.

Additionally, in State v. Allen, 05-1622 (La.App. 1 Cir. 3/29/06), 934 So.2d 146, the first circuit concluded that a twenty-five year sentence for second degree robbery was not unconstitutionally excessive:

At sentencing, the court noted the defendant’s criminal history indicated he had three prior felony convictions, specifically, convictions for simple burglary, and two convictions for possession of cocaine. As a result of those convictions, the defendant had been incarcerated on two occasions and his parole had been revoked on one occasion.
In regard to the evidence introduced at trial, the court found the evidence proved beyond a reasonable doubt that the defendant’s conduct during the commission of the offense manifested deliberate cruelty to the victim. The court also noted the instant offense was a crime of violence, and the defendant had committed the crime to obtain a controlled dangerous substance. The court rejected the alleged mitigating circumstance that the defendant was “only considered a principal” to the offense, noting that being a principal to an offense was not a mitigating circumstance, especially when the defendant had physically held the victim while the defendant’s accomplices kicked the victim. The court also rejected the alleged 11Rmitigating circumstance that Curóle had received “only” an eight-year sentence, noting Curóle had availed himself of a plea agreement and it had not been necessary for a trial to be undertaken to prove his guilt.
The court also rejected the alleged mitigating circumstances that the defendant was mentally challenged, a high-school drop out, addicted to cocaine, and homeless. The court noted it did not consider any of the aforesaid conditions to be mitigating factors, and moreover, no evidence had been presented that the defendant suffered from mental illness or had an IQ of 70 or less. The court stated it had considered the defendant’s age of twenty-eight years in determining an appropriate sentence. The court also stated it had considered the fact that the defendant had no other convictions for crimes of violence.
The court conceded the defendant’s prior criminal history included many misdemeanors, but noted it also included three felony convictions, two terms of incarceration, and a revocation of parole. The court rejected the defendant’s claim that he had shown remorse for the victim, noting the only time the defendant showed remorse was after he was being investigated as one of the parties who committed the robbery.
The court did not dispute that the victim did not lose any bodily organs or limbs as a result of the offense, but noted the evidence proved beyond a reasonable doubt that he suffered a fracture of the orbit of his eye during the offense and had to take narcotic pain medication over ten hours after being attacked. The court noted it had taken into consideration the fact that there was no proof of permanent impairment of the victim’s eye.
Additionally, the court determined there was an undue risk that during the period of a suspended sentence, the defendant would commit another crime; that the defendant was in need of correctional treatment; and that a lesser sentence would minimize the seriousness of the defendant’s offense.

Id. at 156-57.

The nature of the offense in this case is serious and the victim is suffering long-term effects from the injury inflicted upon him by the Defendant, a gunshot wound to the head with a bullet still lodged in the victim’s brain. As the trial court noted information contained in the Presen-tence Investigation Report (PSI) revealed Defendant is a seventh felony offender. Although the trial court stated there may have been proof problems with the companion charge of attempted second degree |1flmurder, these problems are not stated in the record. We note that dismissal of the two felonies of attempted second degree murder and theft in conjunction with the Defendant’s guilty plea benefitted him significantly. Viewing Defendant’s thirty-year sentence in light of Barling, Baker, and Lisotta, we find it is not unconstitutionally excessive.

ASSIGNMENT OF ERROR NO. 3:

In this assignment of error, Defendant contends he sufficiently objected to his sentence to allow this court to conduct an excessive sentence review. Alternatively, if the objection is found to be inadequate to preserve an excessive sentence claim, Defendant argues counsel was ineffective in failing to file a motion to reconsider sentence or object to the sentence. In State v. Doucet, 09-1065, pp. 7-9 (La.App. 3 Cir. 5/5/10), 36 So.3d 1105, 1110-12, writ denied, 10-1195 (La.12/17/10), 51 So.3d 19, we reviewed the law on this subject and stated: (emphasis added)

When the defense counsel fails to file a motion to reconsider sentence, Defendant may have a claim of ineffective assistance of counsel when Defendant “can show a reasonable probability, but for defense counsel’s error, his sentence tvould have been different. Prudhomme, 829 So.2d at 1177 (citing State v. Texada, 98-1647 (La.App. 3 Cir. 5/5/99), 734 So.2d 854). Moreover,
[a] claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief. This allows the trial judge an opportunity to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains evidence sufficient to decide the issue and the issue is raised by an assignment of error on appeal, it may be considered. State v. James, 95-962 (La.App. 3 Cir. 2/14/96); 670 So.2d 461.
To prove an allegation of ineffectiveness, Defendant must specifically show prejudice. Blake, 872 So.2d 602 (citing State v. Reed, 00-1537 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, writ denied, 02-1313 (La.4/25/03), 842 So.2d 391). “Whether or not a defendant received ineffective assistance of counsel is a two-part inquiry. First, |anwe must determine whether the trial court would have reduced the Defendant’s sentences upon the filing of a ‘Motion to Reconsider Sentence.’ Second, we must determine whether the sentences were excessive.” Id. at 609.
(1) Would the Trial Court Have Reduced the Defendant’s Sentence
Doucet did not file a motion to reconsider sentence and did not object to the sentence at the time it was imposed. In brief to this court, Doucet asserts the trial court did not inquire into his family or work history. He maintains the record does not indicate a lengthy criminal record and none of his prior offenses are in the same “crime family” as vehicular homicide. He further asserts that he had no prior convictions for driving while intoxicated.
Doucet contends he assisted police in locating the vehicle after the accident and accepted responsibility for his actions by pleading guilty. He avers the trial court failed to give consideration to these mitigating factors. Further, the trial court failed to consider his need for substance abuse rehabilitation.
Doucet also argues that the victim’s death and his use of drugs are elements of the offense and should not be considered as aggravating factors. Further, the record does not support the trial court’s conclusion that the events were likely to re-occur. Doucet asserts that considering the factors listed by the trial court at sentencing, it failed to give sufficient weight to La.Code Crim.P. art. 894.1 in arriving at the sentence. Dou-cet then contends his sentence is excessive.
At sentencing, the trial court noted Doucet’s extensive criminal record, which began at a very early age. The trial court commented that it reviewed the PSI and that it has carefully considered the provisions of La.Code Crim.P. art. 894. The trial court distinguished factual circumstances of this case from the one where two people have been drinking together and then decided to get into a car together and one of the persons gets killed in an accident. The trial court reasoned that unlike Doucet’s victim, the victim who gets into the car and gets killed assumed a certain amount of risk. Thus, the trial court concluded that a lesser sentence than what it was going to impose would deprecate the seriousness of Doucet’s of-fence, especially in light of Doucet’s criminal record that pointed to probable recidivism.
We find that the trial court considered the circumstances of this case and Dou-cet’s circumstances before imposing the sentence. Thus, we conclude that the trial court was unlikely to have reduced Doucet’s sentence had a motion to reconsider sentence been filed.

121 The Doucet court went on to determine that the defendant’s sentence was not excessive. It concluded that even if defense counsel had filed a motion to reconsider sentence, the sentence would have been deemed appropriate. Accordingly, prejudice was not shown.

In the present case, the sentencing judge reviewed the victim’s statement and the PSI. He noted Defendant’s extensive criminal history and felt that the extreme circumstances of the incident, Defendant’s record, and the effect on the victim warranted a thirty-year sentence. Under these circumstances, we find it is unlikely the trial court would have reduced Defendant’s sentence had defense counsel filed a motion to reconsider sentence. Additionally, as discussed above, Defendant’s sentence is not excessive. Accordingly, Defendant has not established a claim of ineffective assistance of counsel.

For the reasons as stated, Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . In the present case, the State was not required to provide a factual basis because the Defendant entered a plea of guilty rather than one pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). See State v. Tauzin, 98-46 (La.App. 3 Cir. 10/7/98), 720 So.2d 98.
      In Ford, the defendant entered a plea of guilty. Hence, the state was not required to provide a factual basis, although this was not mentioned in the opinion. However, the factual basis that was provided was considered in this court’s analysis of whether the defendant was made aware of the elements of the crime.

       The last comment of the state concerning causation is nothing more than an unsubstantiated conclusion if based on the factual basis presented.

      . Whiddon was decided before the supreme court's ruling in Guzman, 769 So.2d 1158, which held that examination of a guilty plea transcript for compliance with La.Code Crim.P. art. 556.1 is beyond the scope of an error patent review.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Steven P. GUILLORY, et ux. v. Christopher P. SAUCIER, et al.
    No. 11-745.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Mark A. Delphin, Delphin Law Offices, Lake Charles, LA, for Plaintiffs/Appellants, Steven P. Guillory, Holiday Guillory.
    Todd M. Ammons, Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP, Lake Charles, LA, for Defendant/Appellant, Christopher P. Saucier.
    Matthew J. Garver, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, Cov-ington, LA, for Defendant/Appellant, Republic Underwriters Insurance Company.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   AMY, Judge.

_JjThe plaintiffs allege injury from an automobile accident involving a defendant driver, who was intoxicated at the time. Although the jury awarded certain damages, it denied damages for loss of earning capacity, disability, and loss of consortium. The jury also denied exemplary damages, finding the defendant driver was not wanton or reckless in his conduct. The trial court later granted a motion for JNOV with regard to exemplary damages and awarded $100,000 in this regard. The plaintiffs, the defendant driver, and the defendant insurer appeal. For the following reasons, we affirm.

Factual and Procedural Background

This case involves injuries sustained by Steven P. Guillory in the early morning hours of July 16, 2006, when his vehicle struck the work truck being driven by Christopher Saucier. At the time of the accident, Mr. Saucier was attempting to turn into the northbound lane of Louisiana Highway 108 from an intersecting road.

The Louisiana State Trooper responding to the scene administered a field sobriety test to Mr. Saucier due to signs of intoxication. The trooper explained that he arrested Mr. Saucier for operating a vehicle while intoxicated due to his poor performance on the test and also arrested him for failure to yield while turning left. An Intoxilyzer test subsequently performed at the police station revealed a .171 blood alcohol content.

The same day, Mr. Guillory reported to the emergency room in light of increasing low back pain. As the pain persisted, Mr. Guillory ultimately came under the care of an orthopedic surgeon who found him to have multi-level disc herniation and facet joint involvement producing Mr. Guillory’s symptoms. Thereafter, Mr. Guillory underwent a number of lumbar epidural steroid injections Land, later, facet injections in order to reduce his symptoms. He also underwent radio frequency ablation of the involved nerves which alleviated much of his pain. However, Mr. Guillory explained at trial that, although better, his pain persists, particularly with aggravation.

Mr. Guillory and his wife, Holiday Guil-lory, filed this suit, seeking damages associated with his injuries and requesting exemplary damages in light of Mr. Saucier’s intoxication. Mr. and Mrs. Guillory named Mr. Saucier and Mr. Saucier’s employer’s insurer, Republic Underwriters Insurance Company, as defendants (hereinafter referred to collectively as “the defendant”).

After a multi-day trial, a jury concluded that the defendant was liable for Mr. Guil-lory’s injuries. It awarded damages for pain and suffering ($20,000.00), past medical expenses ($68,141.25), loss of enjoyment of life ($10,000.00), and loss of past wages ($10,000.00). However, it denied an award of damages for future medical bills, loss of future wages and/or earning capacity, and physical disability. The jury also denied Mrs. Guillory’s claim for loss of consortium due to its determination that she did not sustain damages as a result of Mr. Saucier’s negligence.

With regard to Mr. Guillory’s exemplary damages claim, the jury determined that Mr. Saucier’s intoxication was a cause in fact of Mr. Guillory’s injuries. However, it determined that the injuries were not caused by his “wanton and reckless disregard for the rights and safety of others.” Accordingly, it denied exemplary damages.

Subsequently, the tidal court granted the plaintiffs’ motion for a judgment notwithstanding the verdict and for a new trial, in part, awarding exemplary damages in the amount of $100,000.00. It denied the motion in other respects.

_JjAll parties appeal. The defendant asserts that the trial court erred in: 1) conducting a de novo review in considering the JNOV rather than determining whether a reasonable person could have concluded as the jury did; 2) awarding exemplary damages without consideration of whether the award would deter future conduct or punish the defendant; 3) awarding exemplary damages to further compensate the plaintiff; 4) considering matters beyond those submitted to the jury; and in 5) not awarding the lowest reasonable award possible.

Mr. and Mrs. Guillory also appeal, asserting that: 1) the jury erred in finding that Mr. Saucier did not act in a wanton and reckless manner; 2) the jury erred in failing to assess damages for disability and loss of earnings; 3) Mr. Saucier’s prior DWI conviction should have been admitted; 4) the trial court erred in admitting evidence of Mr. Guillory’s prior back injury and a prior lawsuit; and that 5) the jury erred in failing to award damages for loss of consortium. The plaintiffs also seek an increase in the amount of exemplary damages awarded.

Discussion

Evidentiary Rulings

1993 Conviction

We first address the plaintiffs’ contention that the trial court erred in granting the defendant’s motion in limine, excluding mention of Mr. Saucier’s 1993 DWI charge and conviction. The plaintiffs contend that this evidence was probative of whether Mr. Saucier’s actions were wanton or reckless, a question that the jury answered in the negative. The plaintiffs point to Angeron v. Martin, 93-2381 (La.App. 1 Cir. 12/22/94), 649 So.2d 40 (wherein the first circuit concluded that testimony regarding a defendant’s prior involvement in a drunken driving accident was permissibly admitted insofar as it was introduced to prove that the ^defendant’s actions were in wanton or reckless disregard to the rights and safety of others).

While the plaintiffs contend that the prejudice they suffered by the exclusion of the evidence is obvious from the jury’s verdict, we conclude that this argument has been rendered moot by the trial court’s entry of a JNOV on the question of whether the defendant’s conduct was wanton or reckless, a decision we affirm herein. Accordingly, we do not further discuss this assignment.

Prior Accidents

The plaintiffs also question the trial court’s denial of their motion in limine seeking to exclude reference to Mr. Guillo-ry’s prior back injuries and to a previously filed lawsuit in which he sought a variety of damages also pursued in this matter. The plaintiffs further contest the introduction of allegedly misdated medical records. The evidence associated with these occurrences, the plaintiffs suggest, was prejudicial insofar as it unfairly allowed the jury to attribute complaints of lower back pain to an occurrence other than the subject accident.

Without question, the complained of evidence was relevant to causation, an element of the plaintiffs’ case. Relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La.Code Evid. art. 403. However, the record contains no indication that this evidence was unfairly prejudicial or misleading. For example, the jury determined the causation factor in favor of Mr. Guillory, awarding all of his past medical bills. Accordingly, we find no merit in this assignment.

Jury Award

The plaintiffs additionally question numerous aspects of the jury’s award of damages. We discuss the jury’s denial of exemplary damages in the context of the Is JNOV, below. Here, we review the plaintiffs’ contention that the jury erred in refusing to award damages for loss of earning capacity, disability, and loss of consortium. The plaintiffs also question the quantum awarded for pain and suffering and loss of enjoyment of life.

Loss of Earning Capacity

Dr. Allen Johnston, Mr. Guillory’s treating orthopedic surgeon, opined that the accident caused Mr. Guillory’s preexisting lumbar disc herniation and changes in the facet joints to become asymptomatic, producing lower back pain. Following a two-month period in which he was unable to work due to his accident-related pain, Mr. Guillory returned to work, and continued to work at the time of trial, as a plant protection lieutenant at Firestone Polymers.

Mr. Guillory acknowledges that he has maintained his employment but contends that he is fearful that he will not be able to do so in the future. In particular, he points to Dr. Johnston’s testimony indicating that a lifting restriction of 20-30 pounds and a return to only sedentary or light work duties would be appropriate. Dr. Johnston further responded that he would “absolutely not” recommend that Mr. Guillory perform as a fireman, a component of his job duties. While he has performed at his job, despite this limitation, Mr. Guillory contends that he is fearful he will be terminated or that he will not be able to perform his job adequately. Mr. Guillory’s expert in the field of vocational rehabilitation, Lewis Lipinski, also testified regarding Mr. Guillory’s alleged loss of functional ability. He explained that, if Mr. Guillory follows Dr. Johnston’s advice, his remaining transferrable skills would result in a significant income loss.

The supreme court has remarked that actual loss is not necessarily a requirement for an award of loss of earning capacity. Ryan v. Zurich American Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214. It further explained that:

|nWhat plaintiff earned before and after the injury does not constitute the measure. Even if he had been unemployed at the time of the injury he is entitled to an award for impairment or diminution of earning power. And while his earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Damages should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury.
Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.

Id. at 219 (quoting Folse v. Fakouri, 371 So.2d 1120 (La.1979)). On appeal, the court applies the manifest error standard of review to determine whether the jury was clearly wrong in awarding no damages for loss of future earning capacity. Id.

The record reveals no manifest error in the jury’s determination that the plaintiffs failed to prove a loss of earning capacity. Undoubtedly, the plaintiffs presented adequate evidence and expert testimony that would have permitted the jury to find in favor of Mr. Guillory on this point. However, the jury rejected that evidence in favor of that indicating that Mr. Guillory had sustained no such loss.

Instead, and considering the jury’s determination, we are mindful that Mr. Guil-lory not only returned to work but was cleared to do so through fit-for-work testing required by his employer and that he repeatedly passed an annual functional capacity evaluation, also required by the employer. Further, the jury was made aware that Dr. Johnston initially approved Mr. Guillory to return to full duties. Only later did he expressly determine that Mr. Guillory had restrictions.

Finally, the defendant presented Jeffrey Peterson as its expert in vocational rehabilitation. Mr. Peterson testified that, upon evaluation of Mr. Guillory’s job 17functions and, even considering the limitations ultimately recommended by Dr. Johnston, Mr. Guillory had not sustained a loss of earning capacity. Mr. Peterson explained that, instead, supervisory employment existed that would cater to those aspects of Mr. Guillory’s job functions that were impinged upon by the restrictions. Employment in those areas would result in the same type of wage earning capacity Mr. Guillory had at the time of the accident. This evidence supports the jury’s determination that the plaintiffs failed to prove a loss of earning capacity insofar as we do not evaluate the credibility of the parties’ witnesses, re-assess the weight of the evidence presented by them, or substitute our own factual findings for those of the jury. See Ryan, 988 So.2d 214.

We find no merit in this assignment.

Disability

Similarly, we do not disturb the jury’s determination that the plaintiffs failed to prove entitlement to damages for physical disability. The plaintiffs here observe that Dr. Johnston has placed physical restrictions on Mr. Guillory so as to not aggravate his condition. Namely, Dr. Johnston restricted Mr. Guillory’s capacity to lift, climb, push, and pull.

Although a panel of this circuit has recognized that disability is awardable as general damages, we conclude that the jury was not manifestly erroneous in denying that award under the evidence presented here. See Wood v. American Nat. Property & Cas. Ins. Co., 07-1589 (La.App. 3 Cir. 12/23/08), 1 So.3d 764. Instead, the jury was made aware that Mr. Guillory had been able to return to work which, at times, demanded physical activity and that he has passed work-related evaluations in that context. Also, the jury was informed of Mr. Guillory’s repeated vacation travels in the years following the accident. The jury acted within its role as factfinder in evaluating the weight to be placed on the testimony of both ^plaintiffs’ testimony regarding limitations on Mr. Guillory’s physical participation on those vacation trips and in his daily life. Accordingly, we conclude that the record supports the jury’s determination.

Loss of Consortium

The plaintiffs also argue that the jury erred in its rejection of damages for Mrs. Guillory’s loss of consortium, suggesting that their uncontradicted testimony indicated that their relationship suffered as a result of the accident. Louisiana Civil Code Article 2315(B) provides that a cause of action for damages includes one for “loss of consortium, service, and society[.]” See also Ferrell v. Fireman’s Fund Ins. Co., 96-3028 (La.7/1/97), 696 So.2d 569.

As above, we conclude that the plaintiffs presented ample evidence that would have supported some award under this element of Article 2315 damages. Mrs. Guillory testified that Mr. Guillory’s pain had caused him to be angry at times and that their relationship had been difficult as a result. Mr. Guillory, too, testified that his attitude at home had caused a strain on his family life. However, the jury’s evaluation of this testimony was in the nature of a pure credibility determination. This court will not substitute its own judgment for that of the factfinder. Menard v. Lafayette Ins. Co., 09-1869 (La.3/16/10), 31 So.3d 996 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). Furthermore, the jury was aware that Mrs. Guillory was not without financial assistance from her husband in light of his continued employment and, furthermore, evidence indicated that, since the accident, the family had continued to take family vacations.

In light of the above, we find no manifest error in the jury’s determination that the plaintiffs failed to prove that Mrs. Guillory suffered a loss of consortium.

This assignment lacks merit.

19Pain and Suffering/Loss of Enjoyment of Life—Quantum

The jury awarded $20,000.00 for mental and physical pain and suffering and $10,000.00 for loss of enjoyment of life. The plaintiffs combine their argument on these separate elements of general damages, briefly arguing that the awards are insufficient in the presence of the chronic pain experienced by Mr. Guillory. They suggest that jurisprudence involving other plaintiffs suffering from chronic pain requires an upward adjustment in the awards.

With regard to an assessment of damages, La.Civ.Code art. 2324.1 provides that “much discretion must be left to the judge or jury.” In Guillory v. Lee, 09-0075 (La.6/26/09), 16 So.3d 1104, the supreme court described this discretion as “vast.” Only after a determination that the trier of fact has abused this vast discretion does an appellate court disturb a trier of fact’s determination and reference prior awards. Howard v. Union Carbide Corp., 09-2750 (La.10/19/10), 50 So.3d 1251 (citing Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976)). Such reference is then only for the purpose of determining the highest or lowest point which is reasonably within the trier of fact’s discretion. Id.

The plaintiffs characterize Mr. Guillory’s pain as chronic. Indeed, Mr. Guillory testified that pain is a persistent problem and something that he has had to live with. However, the medical records, Dr. Johnston’s testimony, and Mr. Guillory’s own testimony reflect that Mr. Guillory’s pain has consistently improved over the years due in part, it appears, to the ablation procedures performed by Dr. Johnston. Dr. Johnston’s medical records reflect that, by January and February 2009, Mr. Guillory indicated that his symptoms had much improved and that he was experiencing only occasional discomfort which was nothing like before. Mr. Guillory acknowledged at trial, that his pain level was better, as long as he did not aggravate his condition. Also, the defendants repeatedly elicited 110testimony referencing Mr. Guil-lory’s limited and sporadic use of the pain medication prescribed for him. Finally, the jury was aware that, other than an initial two month period, Mr. Guillory’s pain level neither prevented him from working nor from traveling with his family on vacations.

In light of these circumstances, we find no abuse of the jury’s vast discretion in its assessment of damages for pain and suffering or in its separate award of damages for loss of enjoyment of life.

This assignment lacks merit.

Judgment Notwithstanding the Verdict

Although the plaintiffs filed a broad-based motion for JNOV and new trial, the trial court granted that motion on only the issue of exemplary damages, entering judgment in favor of the plaintiffs. It awarded $100,000.00 in that regard and denied the plaintiffs’ requests as to the other damage awards, or lack thereof. Both parties appeal the trial court’s determinations.

Wanton Or Reckless Disregard

With regard to the plaintiffs’ claim for exemplary damages, Louisiana Civil Code Article 2315.4 provides that:

In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

The verdict sheet indicates that the jury responded “yes” to the question of whether it found that “Christopher Saucier’s intoxication was a cause in fact of the injuries sustained by Steven Guillo-ry.” However it responded “no” to the question of whether “Steven Guillory’s injuries, if any, were caused by Christopher Saucier’s wanton or reckless disregard for the rights and safety of others.” The trial court granted the motion for JNOV on this point, which the defendant now contests.

| nThe mechanism of the JNOV is provided for by La. Code Civ.P. art. 1811. In evaluating the motion, the trial court considers whether the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable persons could not arrive at a contrary verdict. Joseph v. Broussard Rice Mill, Inc., 00-0628 (La.10/30/00), 772 So.2d 94 (citing Scott v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 (La.1986)). The trial court must deny the motion if evidence opposing the motion “is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.” Id. at 99. In its consideration, the trial court is not to evaluate the credibility of the witnesses and it must resolve all reasonable inferences or factual questions in favor of the non-moving party. Id. On appeal, the reviewing court first considers whether the trial court erred in granting the motion for JNOV. Id. It does so by using the same criteria as the trial court. Id. In other words, the appellate court considers whether “the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict[.]” Id.

Following our review under the above criteria, we conclude that the trial court correctly granted the motion for JNOV. The jury determined that Mr. Saucier’s intoxication was a cause in fact of Mr. Guillory’s injuries. However, it further found that these injuries were not caused by the wanton or reckless disregard for the rights and safety of others. Under the facts and circumstances presented, reasonable persons could not arrive at both conclusions. Assuming the causation of intoxication as found by the jury, all remaining factual inferences point so strongly and overwhelmingly in favor of a finding that Mr. Saucier acted with wanton or reckless disregard for the safety of others that the jury’s verdict could not stand. Instead, the evidence demonstrated that Mr. Saucier had engaged in a long evening of drinking before he began the short drive that ended in this [12accident. His condition at the scene not only resulted in his arrest, but the subsequent testing by Intoxilizer revealed a 0.171 blood alcohol content. Considering this level of intoxication, we find no merit in the defendant’s assertion that a reasonable factfinder could have determined that Mr. Saucier was not wanton or reckless in his behavior. The defendant points to Mr. Saucier’s ability to perform certain aspects of the field sobriety test administered at the scene as somehow indicative that the accident was caused by negligence stemming from either sight obstruction or a left-turning maneuver. However, this argument ignores the jury’s underlying determination that the intoxication did, in fact, cause Mr. Guil-lory’s injuries. Given this finding of causation, the established level of intoxication supports the trial court’s granting of the motion for JNOV on the issue of wanton or reckless disregard.

This assignment lacks merit.

Quantum

All parties contest the trial court’s subsequent award of $100,000.00 for exemplary damages. The defendant questions the manner in which the trial court determined that the award was appropriate, asserting that it conducted a de novo review and considered evidence beyond that available to the jury, such as the availability of an insurance policy. The defendant also contends that the trial court “automatically” issued the award rather than considering whether it would serve a punitive function. The defendant also argues that, instead, the trial court made the award as additional compensation to the plaintiffs. Finally, the defendant questions the quantum awarded, suggesting that the trial court should have limited its award to the lowest reasonable amount. The defendant asserts that comparison to jurisprudence indicates that a lower figure would have been the lowest | ^reasonable figure permissible. The plaintiffs too appeal this aspect of the trial court’s award and seek an increase in the figure awarded.

We first address the defendant’s various contentions regarding the trial court’s underlying considerations in granting the motion for JNOV and awarding exemplary damages. First, there is no indication that the trial court used an improper standard in review of the motion. Additionally, the trial court obviously had access to evidence and information beyond that available to the jury. However, there is no indication that the trial court considered any such evidence in its review of the motion for JNOV. To state otherwise is mere conjecture and speculation. Likewise, the defendant’s assertion that the award was made without consideration of whether it would serve a punitive purpose is again conjecture. |14Recall too, that an appellate review of a disposition on a motion for JNOV is not deferential. It is, instead, a review for error. Joseph, 772 So.2d 94.

Considering the pure quantum question raised by the parties in their respective arguments, we note that these arguments erroneously rely on awards approved in other cases. The supreme court explained in Mosing v. Domas, 02-0012 (La.10/15/02), 830 So.2d 967, a case also arising under La. Civ. Code art. 2315.4, that three guideposts are appropriate in considering whether exemplary damages are appropriate under Louisiana law. These factors, identified by the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), “include: (1) the degree of reprehensibility of the defendant’s conduct; (2) the disparity between the harm and/or potential harm suffered by the plaintiff and the exemplary damages award; and (3) the difference between the exemplary damages awarded by the jury and the civil or criminal penalties authorized or imposed in comparable cases.” Mosing, 830 So.2d at 978. Further, the supreme court recognized that, traditionally, Louisiana courts have considered the defendant’s assets and income in consideration of whether an exemplary award is excessive. Id. The supreme court remarked that, in evaluating the award under these factors, the appellate court affords much discretion to the fact-finder’s determination. Id.

After review of these factors, we leave the trial court’s award of $100,000.00 undisturbed. The figure arrived at by the trial court appears to be a reasonably balanced calculation of both the degree of reprehensibility of Mr. Saucier’s conduct, as revealed in the evidence presented to the jury, and the damages suffered by the plaintiffs. The figure awarded is further reasonably calculated [ ^toward a punitive goal insofar as it obviously exceeded the criminal monetary penalty available for conviction of operating a vehicle while intoxicated. See La.R.S. 14:98. Finally, and insofar as the plaintiffs argue that the figure is abusively low, the award is seemingly reflective of the defendant’s financial circumstances. Mr. Saucier testified that he had ultimately lost his employment as a commercial air conditioner technician and that he was on the verge of losing his home.

Based on the above considerations, we neither raise nor lower the exemplary damages awarded by the trial court.

Other Damages

Finally, the plaintiffs contend that the trial court should have further granted the motion for JNOV in order to award damages for disability, loss of earning capacity, and loss of consortium and to increase the damages for pain and suffering and loss of enjoyment of life. As we concluded above, however, the jury’s determination as to each of these awards, or lack thereof, was reasonable under the evidence presented and within the permissive bounds of the jury’s role as factfinder. Accordingly, we find no error in the trial court’s determination to deny these aspects of the motion for JNOV.

These assignments lack merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed fifty percent to the plaintiffs, Steven P. and Holiday Guil-lory, and fifty percent to the defendants, Republic Underwriters Insurance Company and Christopher Saucier.

AFFIRMED.

      . The responding officer testified that this level was "about twice the legal limit.”

      . In ruling on this aspect of the motion, the trial court stated:
      Where this Court has a consummate disagreement and finds that the jury was virtually wrong is when it comes to the issue of the wanton and reckless disregard to the rights and safety of others.
      I recognize that it's very plausible that a sober person or someone not as intoxicated could have well caused the same accident which occurred. But I believe that the issue of wanton and reckless disregard for the rights and safety of others goes beyond just the issue of the accident.
      What was wanton and reckless by Mr. Saucier was the issue of the commencement of the drinking earlier that day, the continuation, the long length of drinking, embarking in his vehicle, going to yet another spot to consume alcohol, and then attempting to proceed home.
      I don’t believe that Mr. Saucier wanted to hurt anybody, but again, that's not the standard. I believe the jury was consummately wrong in that respect and should have found that this situation where Mr. Saucier's actions over the evening were wanton and reckless and with disregard to the rights and safety of others.
      In that respect I feel that the jury was, in fact, wrong. I’m undoing that one and changing that response to the verdict to yes. To the extent the trial court recognized that
      the jury's general damages awards were lower than what it felt it would have awarded, these comments were made in recognition that, although low, the general damages awarded were within the range permitted by the juiy's discretion. The trial court denied that aspect of the plaintiffs' motion. It is only argument to conclude that this recognition influenced the shaping of the exemplary damage award.

      . The figure is generally commensurate with the compensatory damages awarded by the juiy, $110,051.25.