author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Okyeame WOODARD, Appellant.
    No. 47,286-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 3, 2012.

      Louisiana Appellate Project by Carey J. Ellis, III, Okyeame Woodard, for Appellant.
    Charles Rex Scott, II, District Attorney, Dale G. Cox, Jr., Suzanne Morelock Owen, George Winston, III, Assistant District Attorneys, for Appellee.
    Before DREW, LOLLEY and SEXTON (Pro Tempore), JJ.
   DREW, J.

| j Okyeame Woodard was convicted of second degree murder at a jury trial. He was sentenced to serve life imprisonment at hard labor without benefits. His appeal is based solely on the issue of sufficiency. We affirm in all respects.

BRIEF FACTUAL SUMMARY

On October 17, 2006, Okyeame Woodard was kidnapped and tortured by Michael Winbush and another person. Woodard managed to escape. He refused help from the police, saying that he would take care of the situation. Only 10 days later, he killed Winbush, that homicide being the subject of this appeal.

The first victim of Woodard’s revenge was actually Marcus Alexander, a known drug user. On October 22, 2006, Alexander sought drugs at 4120 Lamar Street in Shreveport, the venue of Woodard’s drug-dealing business. Woodard accused Alexander of being acquaintances with one of his captors. Alexander denied the accusation and left. Two of Woodard’s associates, Edgar Winfield and Steven Miles, chased Alexander and shot at him, grazing his shoulder with one of the bullets.

Woodard’s next victim, Michael Win-bush, was not as fortunate. On October 27, 2006, 10 days after Woodard’s abduction and 5 days after the attack on Alexander, Winbush came to the crack house on Lamar Street to see Woodard. Instead of selling cocaine to Winbush, Woodard and others forced Winbush into an abandoned house next door. The men bound and beat Winbush. Hours later, they loaded Win-bush into the back of his pickup truck and hauled him to a wooded area on Meadow Lane. The men placed bWinbush, still bound and blindfolded, into the cab of the truck. They poured gasoline on him, then fired gunshots into the truck until it exploded into flames. Winbush died of the gunshot wounds, and his body was burned beyond recognition.

Woodard was tried on an amended indictment charging him with second degree murder. Before testimony commenced, the trial court ruled that the state’s other crimes evidence was admissible to show Woodard’s intent, motive and plan, and also to demonstrate identity and lack of mistake.

TESTIMONY

Lane Smith, a detective with the Shreveport Police Department, testified that:

• he investigated Woodard’s beating and kidnapping on October 17, 2006;

• at the hospital, he saw burns on Woodard’s face;

• Woodard told him that he had gone to a house to meet someone and was there beaten, bound with duct tape, and burned;

• his assailants wanted his house key so they could steal his drug money;

• Woodard said that “Bee-Bop” was one of his captors;

• he finally gave up the key, and thereafter $7,000.00 was taken from his house;

• Woodard told him that he did not want the police to get involved as he would take matters into his own hands;

• the detective went to Woodard’s house and saw no signs of forced entry; and

|a* since the victim would not cooperate, the investigation was suspended.

Yolanda Lewis Johnson, Woodard’s cousin, testified that:

• Woodard’s nickname is “Show Me” or “Show”;

• she cosigned a car loan so Woodard could purchase a Crown Victoria;

• Woodard painted the car blue on top and white on the bottom;

• she visited with Woodard after he had been kidnapped and beaten; and

• she denied previously telling the prosecutor that Woodard had told her that he was going to kill the people who kidnapped him.

Edgar Winfield testified that:

• he was involved in Winbush’s murder, but had pled guilty to aggravated battery in exchange for a 10-year sentence, predicated on his agreement to testify truthfully at Woodard’s trial;

• On October 22, the day of the Alexander shooting, he and his nephew, Steven Miles, were at the Lamar Street crack house;

• Woodard told them of his kidnapping, robbery, and beating by local men;

• while he and Miles were at the crack house, Marcus Alexander arrived;

• Woodard accused Alexander of associating with one of his kidnappers, an allegation that Alexander denied;

• Winfield and Miles followed Alexander, who was walking away;

• Winfield had a loaded 9mm handgun, given to him by Woodard;

• they shot at Alexander nine times, hitting him once in the right shoulder;

• he returned the handgun to Woodard later that same day;

• he identified photographs of Miles, Win-bush, a man named Joseph McKinney, and a photograph of Woodard’s vehicle;

14* McKinney often sought drugs at the crack house on Lamar Street; and

• he shot at Alexander because Alexander threatened him and Miles.

Marcus Alexander, a convicted felon, stated that:

• on October 22, 2006, he went to the crack house on Lamar Street;

• he noticed that Woodard’s face was swollen and burned;

• Woodard asked him if he knew a man nicknamed “Bee-Bop”;

• he denied knowing such a person;

• Winfield and Miles told Woodard of seeing him riding with “Bee-Bop”;

• Woodard told him there was “a war going on” and that he should leave;

• Alexander then left to walk home;

• Winfield and Miles followed him in a car, at which time Winfield began shooting at him, grazing his shoulder with one of the bullets;

• he identified photographs of Winfield, Miles, and Joseph McKinney, another drug user present at the crack house on October 22, 2006;

• there was a small abandoned house next to the crack house; and

• Woodard warned him that when he saw “Bee-Bop” he should inform him that “it was on, on sight” meaning that if Woodard saw him, he would be attacked.

Shreveport Police Department Corporal Rod Johnson testified that:

• he investigated Alexander’s shooting on October 22, 2006;

• Alexander told him a story similar to his trial testimony;

• after the interview, Alexander contacted him to identify the shooter and driver of the vehicle, as he had seen their photos in a local newspaper;

• Alexander told him that Woodard told Winfield and Miles to shoot him; and

I a* this information was passed along to Detective Andy Scoggins, of the Caddo Parish Sheriffs Office, because he was handling the homicide investigation.

Shreveport Police Department Officer David Bonias testified that on October 22, 2006, he took photographs of shell casings found at the scene.

Sgt. Danny Duddy, a crime scene investigator with the Shreveport Police Department, testified that he investigated the scene on the date of the shooting and later took spent cartridge cases from the scene to the Crime Lab.

Collette Fielder testified that:

• on the evening of October 27, 2006, she was traveling down Meadow Lane in Shreveport, with her nephew, daughter and husband;

• she noticed a vehicle parked on each side of the street in a dark area;

• as they drove past, six to 10 African American males ran to the vehicles; and

• when she drove past that area the next day, she saw a burned vehicle.

Rachel Fielder, Collette’s daughter, basically corroborated her mother’s testimony, although she remembered that one of the vehicles was a car, painted white and green.

Rachel believed there were four to five men standing by the vehicles, one of which she recalled being a truck.

Shreveport Police Department Sgt. Rita Caldwell testified that she was called to the scene of a vehicle fire on October 27, 2006, on Meadow Lane in Caddo Parish. She discovered a charred body in the passenger’s seat of a burned truck and called for officers to respond from the Caddo 16Parish Sheriffs Office because the scene was outside the jurisdiction of the Shreveport Police Department. She also identified a photograph of the scene of the burned truck.

Joseph Johnson of the Caddo Parish Coroner’s Office testified that:

• he responded to the scene on Meadow Lane on October 27, 2006, whereupon he saw and removed a male burned body from the truck;

• the man’s clothing had been burned off and he noticed ligatures around the victim’s right wrist and duct tape on his eye area;

• he observed trauma to the right back side of the man’s head and identified photographs of the victim; and

• the body was transported to Dr. Frank Peretti for an autopsy.

Detective Andy Scoggins of the Caddo Parish Sheriffs Office testified that:

• he was one of the lead investigators of Winbush’s murder;

• he eventually learned, by tracing the truck’s license plate to another individual, that Michael Winbush was the murder victim;

• as part of his investigation he interviewed Trina Jefferson, who told him that she was dating Edgar Winfield and that he had a friend named “Show”;

• she overheard a conversation between Winfield and “Show” about how they and others had kidnapped, tortured, and killed a man;

• McKinney and a woman named Paige Cranford later identified the individual known as “Show” to be Woodard;

• he received information from a concerned citizen regarding a vehicle at the murder scene that had a blue top and white underside;

• after learning that Woodard owned a car painted those colors, police waited outside the Lamar Street house and when Woodard arrived, the officers took him to the Caddo Parish Sheriffs Office for an interview;

• he also interviewed Joseph McKinney, who stated that he frequently went to Woodard’s house on Lamar Street to buy crack cocaine;

17* McKinney told him that on October 27, 2006, he saw two New Orleans men, one he knew as “Trigger” and the other as “Fat,” carrying a body from a small abandoned house next to 4120 Lamar Street to a small pickup truck;

• McKinney said Woodard offered to pay him to dispose of the body;

• McKinney agreed and drove the truck, while Woodard drove his Crown Victoria to a wooded, dark area on Meadow Lane;

• when McKinney arrived, “Trigger” and “Fat” exited Woodard’s car, placed the body in the cab of the truck, doused the truck with gasoline and began firing gunshots into the truck, which soon caught on fire;

• he obtained a search warrant and searched both houses;

• he found pieces of duct tape in an area between the two houses;

• he also found a folding chair with blood and masking tape attached;

• he found a bloody piece of paper and a bloody blanket;

• he found a roll of masking tape, a bloody album cover, and bloody clothing;

• he also identified a photograph of a tire mark, taken at the scene of the burning truck, which indicated that a vehicle left with a spinning tire;

• police also found a 9mm handgun near the burned truck;

• Bertha Macon told him that she had purchased the gun for Woodard;

• he arrested Woodard for aggravated kidnapping and first degree murder, along with Joseph McKinney, Edgar Winfield, and Steven Miles;

• Woodard did not actually own either of the houses on Lamar Street;

• although McKinney told police that five men were involved in Winbush’s murder, police had not located a fifth suspect; and

• his investigation revealed that Winbush had been bound with tape, beaten, and tortured, and that his body was carried to the bed of his | struck so that the murderers could dispose of the body, information which established the relevance of the items taken from the crack house.

Bertha Macon testified that:

• she knew Woodard as “Show Me” and identified him in open court;

• she had a sexual relationship with Woodard sometime in 2006;

• during that time, she owned a 9mm handgun, a .38 caliber handgun, and a .22 caliber handgun, all of which she kept in her closet for protection;

• on October 27, 2006, she returned home from her son’s football game and noticed a chair turned over on her back steps;

• she also noticed a towel that was not hers in the driveway;

• there were no other signs of forced entry;

• Woodard came over that night and asked her to report the theft of the 9mm handgun;

• she later looked for the handgun, and found it missing;

• she reported the gun stolen;

• she identified the same gun Detective Scoggins had found at the scene of the murder as her 9mm handgun;

• Woodard knew where she kept her guns; and

• when Woodard left her house on the evening of October 27, 2006, he was driving his blue and white Crown Victoria.

Shareva Allen, Macon’s daughter, corroborated her mother’s testimony and further noted that her family did not often have guests at their home.

Katherine Tew testified that she worked at Discount Jewelry and Loan and knew Bertha Macon, who had purchased a 9mm handgun from the pawn shop on December 12, 2005. Tew stated that the serial number on the | ¡,9mm handgun found at the murder scene matched that of the 9mm handgun purchased by Macon.

Clyde Davis testified that:

• he knew Woodard and had purchased drugs from him;

• on October 27, 2006, he was at the crack house on Lamar Street when Winbush drove up to the house in a small S-10 pickup truck;

• as soon as Winbush pulled up, a man told him that “Show Me” wanted him to stay there until he arrived at the house;

• he left the house before Woodard arrived;

• later that same day, Paige Cranford, a drug user and prostitute, came to his home and was very upset because there was a man at Woodard’s house who had been begging for his life, but had been shot; and

• he and a neighbor walked to the crack house where McKinney and a man nicknamed “Catfish” told them to leave, and they did.

Paige Cranford testified that:

• she had been convicted for several felonies;

• she knew Woodard because she had purchased crack cocaine from him;

• during 2006, she would sometimes sleep at the crack house;

• on October 27, 2006, she saw Winbush, also known to her as “Graveyard,” at the Palomar Motel on Greenwood Road;

• she rode with Winbush to the crack house on Lamar Street in his truck;

• they were planning to purchase crack cocaine from Woodard;

• upon arrival, Woodard was on the back porch with the “New Orleans boys”;

• Woodard cut some cocaine for her, which she smoked;

• she saw the “New Orleans boys” grab Winbush and point a gun at him;

| m* Winbush was ordered to the ground and began begging for his life;

• she asked Woodard what was going on, and he said he would let Winbush go after they scared him a little;

• the attackers pulled Winbush into the abandoned house next door;

• she stayed at the house about two hours and saw the “New Orleans boys” enter and leave the abandoned house with tape and rope;

• she never saw Winbush leave the abandoned house;

• she returned to the crack house later that day and noticed that Winbush’s truck had been moved from the front to the side of the house;

• she wanted more crack cocaine, but Woodard told her not to go to the back of the house because he said there was a snake back there;

• the “New Orleans boys” were wearing gloves;

• she identified a picture of Woodard’s blue and white Crown Victoria;

• she identified Steven Miles from State’s Exhibit No. 1 as one of the “New Orleans boys”;

• she could not identify Edgar Winfield as the other “New Orleans boy”; and

• she gave her first statement to police after being warned that she would be charged as an accessory to murder if she did not answer their questions.

Upon being recalled to the stand, Edgar Winfield testified that:

• he moved to Shreveport from New Orleans due to Hurricane Katrina;

• he often went to Woodard’s house to talk with him;

• in October 2006, Woodard told him that some men from the neighborhood had kidnapped, tortured, and robbed him;

• Winbush came to the Lamar Street house on October 27, 2006;

• McKinney told him that Woodard had left;

• Winbush told him to tell Woodard that he had been looking for him;

|n* Winbush said he would be waiting at a motel on Greenwood Road;

• Cranford, who had been inside the house, told McKinney that she would “handle it” and began walking toward Greenwood Road;

• about 15 minutes later, Winbush returned with Cranford in his truck;

• Woodard, Cranford, and Winbush walked to the back of the house;

• McKinney and another man, known as “Shorty,” exited the crack house to meet them and pulled out guns, ordering Win-bush to the ground;

• McKinney and “Shorty” then took Win-bush to the small abandoned house;

• Woodard and Cranford also went inside the house;

• he followed behind;

• McKinney accused Winbush of robbing Woodard, which Winbush denied;

• Winbush’s hands and feet had been tied and he was bleeding from his head, and his bleeding head was resting on a blanket;

• he did not see his nephew, Miles, in the abandoned house;

• Winbush was in the little house from about 11:00 a.m. until dusk;

• at some point he left, and never reentered the house;

• when he returned, he saw McKinney and “Shorty” carry Winbush to the truck;

• he drove with Woodard, Miles, and “Shorty” to a dark, isolated area;

• McKinney followed them in Winbush’s truck;

• McKinney and “Shorty” moved Winbush to the cab of his truck;

• Winbush was begging the men to let him go;

• instead, McKinney poured gasoline all over the inside of the truck;

• McKinney gave “Shorty” a glove;

“Shorty” began firing shots into the truck;

• on the sixth shot, the truck exploded in flames;

• McKinney threw the gun into the trees;

• the firearm used by “Shorty” and McKinney was a 9mm handgun, the same gun Winfield had used to shoot Alexander;

• the men returned to Lamar Street in Woodard’s car;

• he and Miles went home; and

• he had taken a plea agreement with the state, pleading to aggravated battery for a 10-year sentence, in lieu of facing prosecution for attempted second degree murder of Alexander and second degree murder of Winbush.

Steven Miles testified that:

• he often bought drugs from Woodard for resale;

• on October 27, 2006, he went with his uncle, Winfield, to Woodard’s house;

• Woodard, McKinney, and a man nicknamed “N.O.” were there;

• at some point, he was told that a man was tied up on the floor inside;

• he looked in and saw the bleeding Win-bush tied up on the floor;

• Woodard said that Winbush had stolen cocaine from him;

• Winbush eventually admitted to breaking into Woodard’s house;

• Woodard, McKinney, and “N.O.” were all in the small house with Winbush;

• Winbush was moved to the bed of his truck;

• the men covered Winbush with wood before driving off with him;

• he rode with Woodard, “N.O.,” and his uncle;

• they drove to a wooded area and stopped by the side of the road;

• he saw a van with a family in it passing them at one point;

]^« he substantially corroborated Win-field’s version of the facts;

• he identified the house where Winbush had been bound, as well as the masking tape, and the bloody blanket he saw on the floor of the house; and

• he was given a reduced sentence for his truthful testimony about the murder.

Sergeant Gary Baird, of the Caddo Parish Sheriffs Department, testified that he processed the S-10 pickup truck that Win-bush had been driving on the day of his murder, and found several cartridges in the cab of the truck.

Dr. Frank Peretti, a forensic pathologist, testified that:

• he performed Winbush’s autopsy on October 28, 2006;

• when he received the body, it was burned beyond recognition, identifiable only by dental records;

• Winbush was killed from multiple gunshot wounds, with one shot entering behind his left ear, causing his skull to invert into his brain;

• another bullet had passed through the victim’s heart and right lung;

• the body had no soot in the lungs from inhaling smoke, leading to the conclusion that he died of the gunshot wounds before he burned;

• he found signs that Winbush’s hands and feet had been bound and there were remnants of tape over his eyes; and

• he noticed an odor of gasoline on the body.

Joseph McKinney, also known as “Dean,” testified that he purchased drugs from Woodard on occasion. On October 27, 2006, he was at the crack house on Lamar Street when Winbush drove up in his pickup truck.

114Caddo Parish Sheriffs Department Corporal Rodney Spikes testified that he videotaped the search at 4120 Lamar Street and the search of the 4600 block of Meadow Lane. He recovered a 9mm handgun from the woods next to the road.

Corporal Charlotte Hammontree, of the Caddo Parish Sheriffs Department, testified that:

• she was the lead crime scene investigator in the Winbush murder;

• she diagramed the abandoned house at 4100 Lamar Street and identified several of the items seized from it;

• the truck was impounded;

• she identified a spent cartridge she found on the floorboard of the pickup;

• all of the spent cartridges were sent to the North Louisiana Crime Lab;

• she took the 9mm handgun to the Caddo Sheriffs evidence room;

• she recovered a gas can at the murder scene; and

• she took DNA samples of blood from the fender well of the burned truck and collected a bloody shirt from the abandoned house on Lamar Street.

Three employees of the North Louisiana Crime Lab were called:

• Randall Robillard, who was accepted as an expert in the identification of ignitable liquids, identified a vial he received from Corporal Hammontree and opined that the liquid in the vial was gasoline and admitted into evidence;

• Michelle Virana, accepted as an expert in DNA analysis, testified that the DNA contained in the blood sample taken from the truck and from the bloody shirt taken from Lamar Street was consistent with that of Winbush; and

• Richard Beighley, an expert in firearms identification, testified that he analyzed the weaponry and spent cartridges submitted by the Caddo Parish Sheriffs Office, and concluded that the six spent 9mm 1,,r,cartridges were fired from the 9mm handgun submitted to him for analysis. He concluded that two weapons were used at the crime scene, and that the two bullets which Dr. Peretti provided, and the .82 caliber spent cartridges he received from the Caddo Parish Sheriffs Office, were fired from the same gun.

Joseph McKinney testified that:

• on October 27, 2006, he was at Woodard’s house when Winbush arrived;

• “Fat” (Miles) and “Trigger” (Winfield) forced Winbush into the abandoned house;

• Woodard told him that Winbush had broken into his house;

• Winfield asked McKinney to drive Win-bush’s pickup truck;

• he agreed, in exchange for crack cocaine;

• Winfield and Miles put Winbush in the bed of the pickup truck;

• he followed Woodard’s car to a wooded area;

• he saw Winfield pour gasoline on Win-bush;

• he observed Miles fire shots at Winbush and saw the truck ignite in flames;

• the gas can came from the trunk of Woodard’s car;

• after the truck caught on fire, the men returned to 4120 Lamar Street;

• he had no independent recollection of the murder, and had to use the statement he made at his guilty plea hearing to refresh his recollection;

• he admitted to giving a prior statement to police wherein he told them that three people — Miles, Winfield, and Shorty— poured gasoline on Winbush; and

• he told police that Woodard was involved in Winbush’s murder because police had told him that Woodard had made a statement implicating him.

• Sammie Hall testified that:

• she is the mother of Woodard’s daughter;

l ir* she had a blue and white Crown Victoria in her name in 2006 and identified it as the car in the photograph taken by police;

• she drove the car to work every day;

• her work schedule was from 8:80 a.m. to 2:30 p.m.;

• at the time of Woodard’s arrest, he was living with her on Corbitt Street;

• her home was never burglarized;

• she and Woodard often shared use of the Crown Victoria;

• Woodard told her about his kidnapping and torture, as well as his escape from the man and woman who bound him and burned him with a curling iron;

• she knew that Woodard sold drugs;

• he had told her he was not involved in Winbush’s murder; and

• Woodard was not at home on the evening of October 27, 2006.

Okyeame Woodard, the defendant, testified that:

• his nickname is “Show Me” or “Show”;

• at the time of his arrest, he was living with Hall and their daughter at 2652 Corbitt Street and was employed by Mayflower Moving and Storage in Shreveport;

• he did not own the house at 4120 Lamar Street, and several different people sold drugs out of the house;

• he sold drugs there on the murder date, but only for about an hour;

• several people were at the house that morning, including the following: Joseph McKinney, James Minor, “Bee-Love,” “Mississippi,” and “Tee”;

• he saw Winbush that morning with Cranford;

• he had known Winbush his whole life; ■

• he also knew Winfield and Miles;

117* he did not beat, shoot, or burn Win-bush, and told no one to do so;

• he had been convicted of armed robbery on March 5, 1992, and of attempted possession of a firearm on October 10, 2000;

• when he was kidnapped, he was lured into a house by a man who had told him that he wanted to purchase drugs;

• the man pulled out a gun and bound Woodard with duct tape, and his captors took a hot knife and cut his face, stomach and chest;

• the two kidnappers wore ski masks;

• later, a woman and a man known as “Bee-Bop” arrived at the house;

• his abductors attempted to get from him a key to his Corbitt Street home, which he finally gave them;

• someone stole approximately $7,000.00 from his home on that day;

• he escaped while his captors were counting the money;

• they chased after him, shooting as he ran away;

• he never told police not to get involved, but they refused to help him because he was a drug dealer;

• he had no plans to seek revenge for his kidnapping and robbery;

• he knew Marcus Alexander, but never told anyone to shoot at him;

• after fighting with others at the Lamar Street house, Alexander left;

• he did not know that Winfield and Miles chased and shot Alexander;

• he sold the 9mm handgun to Winfield;

• Bertha Macon had sold the 9mm handgun to someone else, and that person had sold it to Woodard for drugs;

• he did not go to his regular job on October 27, 2006, because he planned on selling drugs that day;

• he saw Winbush that day and sold him drugs;

• McKinney pointed a gun at Winbush during the drug sale;

• when Winbush got on the ground, he (Woodard) left;

|i8* he returned after a phone call from Cranford, asking him if he could sell her some crack cocaine, and whether he had seen Winbush;

• he told her he had not seen Winbush, then sold her the cocaine;

• he never saw Winbush again;

• he shared with Hall the use of the white and blue Crown Victoria; and

• that car was in the Corbitt Street driveway on the date of the murder.

The jury unanimously convicted Woodard of second degree murder. He appeals solely on the sufficiency of the evidence.

DISCUSSION ON THE ISSUE OF SUFFICIENCY

Woodard contends that the evidence adduced at trial was insufficient to convict him of second degree murder. In support, he shows that the state used trial testimony from Edgar Winfield, Steven Miles, and Joseph McKinney to prove its case, and these witnesses were suspect because they obtained very favorable plea bargains for their testimony. Woodard also points out that Winfield, the person who shot Alexander, testified that he did so because he was “taking care of his own business.” Woodard also argues that none of the witnesses testified that he had instructed them to shoot Winbush.

The state argues that the evidence is sufficient to support Woodard’s conviction. Specifically, the state urges that Woodard was the only person who had a motive to kill Winbush because he was abducted, tortured, and robbed weeks earlier. Woodard directed Cranford to bring Win-bush back to the house on Lamar Street, Woodard provided the gun used to shoot both Alexander and Winbush, and Woodard led the group of men out to Meadow |19Lane where Winbush was murdered. The gasoline used to burn the truck and Winbush’s body came from Woodard’s car. Furthermore, Woodard was the drug dealer who provided narcotics to several of the participants in the murder, thus guaranteeing they would go along with his plan.

La. R.S. 14:30.1 provides, in relevant part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm[.]

La. R.S. 14:24 provides the definition of “principals”:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

Our jurisprudence on the culpability of principals is well settled.

Our law on appellate review of sufficiency claims is also well settled.

| gnViewed in a light most favorable to the prosecution, the evidence adduced at trial justifies the conviction. This was a revenge killing, occurring only 10 days after the defendant’s abduction. He told Shreveport Police Department Det. Smith that he would get his own justice, and he did, quite horrifically.

During the 10 days between the two crimes, Marcus Alexander was shot by Edgar Winfield, who testified that he used a 9mm handgun provided to him by Woodard. Woodard and Alexander both testified that prior to Alexander being shot, Woodard had accused him of being involved in his kidnapping. Alexander further testified that Woodard instructed him to tell one of his alleged captors, “Bee-Bop,” that when Woodard saw him, he would physically attack him.

Winfield testified that on October 27, 2006, Winbush went to 4120 Lamar Street looking for Woodard, but was told by Joseph McKinney that Woodard was not there. A few minutes later, Woodard returned and McKinney had a conversation with him. McKinney then spoke with Paige Cranford, who left the house and returned minutes later with Winbush. McKinney and “Shorty” pointed guns at Winbush and asked him why he had robbed Woodard. Winfield testified that Winbush was then taken to the abandoned house, where McKinney beat a confession out of Winbush concerning the previous crimes against Woodard.

| ⅞1'Winfield testified to the gruesome details that led to the death of Winbush that evening. Portions of Winfield’s story are corroborated by other witnesses:

• Paige Cranford and Steven Miles testified that Woodard said he planned to scare Winbush after taking him to the abandoned house;

• Miles and McKinney confirmed the abduction, shooting, and burning of Win-bush;

• Bertha Macon testified that Woodard stole her 9mm handgun, .38 caliber handgun, and .22 caliber handgun, and then told her to report the weapons missing, and she identified the 9mm murder weapon at trial; and

• Crime lab personnel established that the 9mm spent cartridges found at the murder scene were fired from Macon’s 9mm handgun.

The jury was justified in concluding that the defendant killed Winbush. The physical evidence supports this conclusion. This court does not reassess the credibility of the witnesses or reweigh the evidence. We affirm in all respects.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Prior to jury selection, the trial court denied Woodard's motion to exclude two photographs of the victim. The state agreed not to introduce three other photographs.

      . Rachel identified the vehicles from a photograph. The car was in fact painted two different colors, but the top was actually blue and the bottom was white.

      . "Trigger” was later identified as being Edgar Winfield, and "Fat” as Steven Miles.

      . Sgt. Baird and Corporal Hammontree found two 9mm spent cartridges and a cartridge from a .32 caliber handgun under the passenger seat of the truck, and another cartridge on the floorboard. In total, the officers found three spent .32 cartridges and five spent 9mm cartridges. All of these items were admitted into evidence.

      . This recovered bullet was admitted into evidence. It was the likely fatal wound.

      . ‘‘[UJnder Louisiana law, a person may be convicted of intentional murder even if he has not personally struck the fatal blows.” State v. Wright, 2001-0322 (La.12/4/02), 834 So.2d 974, cert. denied, 540 U.S. 833, 124 S.Ct. 82, 157 L.Ed.2d 62 (2003). A defendant, however, may be convicted as a principal only for those crimes for which he has the requisite mental state. Id. Only those persons who knowingly participate in the planning or execution of a crime may be said to be "concerned” in its commission, thus making them liable as principals. Id.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490.
      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. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.


source: Caselaw Access Project

license: Public Domain

text:
    Robert O’NEAL, Jr., Plaintiff-Appellee v. TOWN OF RAYVILLE, Defendant-Appellant.
    No. 47,371-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 3, 2012.

      Reiser Law Firm, P.L.C., Alexandria, LA, by Randall B. Reiser, D. Heath Tra-han, for Appellant.

      Breithaupt, Dunn, DuBos, Shafto & Wolleson, LLC, Monroe, LA, by Michael L. DuBos, K Lamar Walters, for Appellee.
    Before CARAWAY, DREW and HARRISON (Pro Tempore), JJ.
   DREW, J.

_jjln this workers’ compensation proceeding, the Town of Rayville (“Rayville”) appeals a judgment ordering it to pay for an anterior cervical discectomy and fusion (“ACDF”) procedure for Robert O’Neal, who was injured in an work-related automobile accident while employed as a mechanic by Rayville.

We affirm.

FACTS

O’Neal had an extensive medical history involving his lower back. He began treating with Dr. John Ledbetter, a pain management doctor, in 2004. Dr. Ledbetter administered epidural steroid injections and nerve root block injections to O’Neal’s lower back.

Dr. Ledbetter referred O’Neal to Dr. Bernie McHugh, a neurosurgeon, in 2005. Dr. McHugh performed lumbar decom-pressions and laminectomies to alleviate O’Neal’s lower back symptoms. In 2007, Dr. McHugh performed a lumbar inter-body fusion on O’Neal.

O’Neal was involved in a non-work-related automobile accident (“first accident”) on April 23, 2009, when his vehicle was rear-ended. He went to the Emergency Room at St. Francis Medical Center for treatment. O’Neal complained of severe bilateral neck pain, pain radiating into his left shoulder and down his left arm, and numbness in his left index and middle fingers. The diagnosis was cervical strain. An X-ray of the cervical spine showed straightening of the normal cervical spine curvature, and degenerative disc disease at the C5-6 and C6-7 levels. There was no evidence of fracture or subluxation seen on the X-ray.

| ^Medical treatment following first accident

O’Neal was treated by his family doctor, Ralph Abraham, on May 5, 2009. He reported having been involved in the accident. O’Neal told Dr. Abraham that he was experiencing pain in his neck, left shoulder, upper left side, back and right hip. Dr. Abraham ordered X-rays of the cervical spine and left shoulder. The cervical spine X-ray showed moderate degenerative disc space narrowing and osteo-phyte formation at C5-6 and C6-7.

O’Neal called Dr. McHugh’s office on May 5 to report the accident and that he had gone to the Emergency Room with complaints of left shoulder pain and right leg pain. He reported that he continued to have left shoulder pain and increased pain in the right leg. Dr. McHugh ordered a lumbar spine MRI, which was done early the next month.

Dr. Douglas Brown, an orthopedic surgeon, examined O’Neal on May 15, 2009. O’Neal said that he had aching, burning, and stabbing sensations in the left side of his neck, shoulder and arm down to the base of his index finger. O’Neal rated his pain as 10 out of 10. Dr. Brown’s impressions included preexisting degenerative disc disease at C4, C5, and C6; acute cervical strain with possible disc protrusion in view of the radicular pain; and left shoulder sprain with possible rotator cuff tear.

Dr. Brown ordered an MRI of the cervical spine, which was done on June 3, 2009. It showed degenerative disc and some arthritic changes in the mid and lower cervical spine. It also showed abnormalities at the C3-4, |3C5-6, and C6-7 levels representing disc herniation, worse on the left side, touching the nerve root and causing acquired spinal stenosis and probably accounting for some of O’Neal’s symptoms.

Dr. McHugh examined O’Neal’s lumbar spine on June 4, 2009. O’Neal did not mention neck or left arm complaints during that visit. Dr. McHugh recommended an evaluation by Dr. Ledbetter for possible injections.

Electro diagnostic testing ordered by Dr. Brown was performed on June 9, 2009. EMG analysis of the left upper extremity was normal, and there was no evidence of left cervical radiculopathy. A nerve conduction study of the left upper extremity was normal except for a delay in the median motor nerve consistent with median neuropathy or carpal tunnel syndrome.

Dr. Brown next examined O’Neal on June 10, 2009, at which time he complained of numbness and tingling in his left arm and right leg, which he thought were related to the first accident. Dr. Brown interpreted the June 3 MRI as showing left disc herniation at C3^4, C5-6, and C6-7, and preexisting arthritis at C5-6 and C6-7. His diagnosis was probable acute disc herniation at C3-4, and chronic disc herniation at C5-6 and C6-7, possibly aggravated by the accident. Dr. Brown also diagnosed a partial rotator cuff tear. Dr. Brown wanted a cervical myelogram and a CT scan performed in order to determine which disc levels were most involved and then to proceed with either treatment or a surgical recommendation.

l/The cervical myelogram and the CT scan were done on June 18. The myelo-gram showed a degenerative cervical spine at the predominantly C3-4 and C5-6 levels. The CT scan showed a degenerative cervical spine that was most severe at the C5 to C7 levels with possible cord compression on the left side. Additional multilevel central spinal canal stenosis and neural foramina narrowing were also shown.

Dr. Ledbetter treated O’Neal for the first time since 2006 on July 7, 2009. The chief complaints related by O’Neal were low back and right leg pain. O’Neal told Dr. Ledbetter about the automobile accident, and that he had left shoulder pain as well as an exacerbation of back and right leg pain. Dr. Ledbetter noted that Dr. Brown was treating the left shoulder. Dr. Ledbetter’s diagnosis was low back pain with right leg radiculopathy and pain exacerbation following the first accident. Dr. Ledbetter wanted to schedule transforami-nal epidural steroid injections of the lumbar spine. There was no mention of the neck during this visit.

Medical treatment after second accident

On September 9, 2009, O’Neal was involved in an automobile accident (“second accident”) while driving to work. O’Neal’s work truck struck another vehicle while traveling at a speed of approximately 50 mph when the other vehicle ran a red light and crossed into its path. An airbag deployed during the collision and struck the side of O’Neal’s face.

O’Neal was transported by ambulance to the Emergency Room at Richardson Medical- Center. O’Neal complained to the EMT about back Rpain. The Emergency Room report showed that O’Neal’s chief complaints concerned his lower back and left side. O’Neal described lower back pain that was moderate. An X-ray of the lumbar spine was taken.

Dr. Ledbetter treated O’Neal on September 17, 2009. O’Neal mentioned the second accident to him. It was noted that O’Neal had neck pain following the first accident, but it had not radiated into his arms. O’Neal reported that since the second accident, he had a lot of neck pain that was radiating into the left greater than the right arm. O’Neal rated his pain as 75 out of 100, and he said he was taking Lorcet more often. On examination, cervical range of motion was limited with rotation to the left. Rotation and tilt to the left produced sharp, shooting pains into the left arm. One of Dr. Ledbetter’s impressions was cerviealgia (generalized neck pain) with left upper extremity radicular complaints following the second accident. Dr. Ledbetter wanted an MRI of the cervical spine.

Dr. Brown examined O’Neal on September 28, 2009. Regarding his cervical spine, O’Neal reported having stabbing, pins and needles, and burning sensations in his neck and both arms. He rated his pain as 10 out of 10. Dr. Brown recommended a lumbar MRI, which was done at the end of September. On October 7, 2009, Dr. Brown wrote to O’Neal’s attorney that he was returning O’Neal to Dr. McHugh for consideration of a posterior spinal fusion with decompression for the lower back. He was deferring all treatment to Dr. McHugh and discharging O’Neal from his care.

| c.O’Neal was treated by Dr. Ledbetter on October 15, 2009. O’Neal complained of cervical pain and left upper extremity pain. He said Lorcet was not effectively controlling his pain because his pain was more intense. He rated his pain as 7 out of 10. On examination, there was limitation in range of motion of the cervical spine. Rotation and tilt to the left produced sharp, shooting pain into the left upper extremity. Dr. Ledbetter’s impression continued to be cerviealgia with left upper extremity radiculopathy following the second accident.

Dr. Ledbetter ordered a cervical spine MRI, which was done on October 15. The MRI showed mild canal stenosis at C4-5 and moderate canal stenosis with mild anterior cord flattening at C3-4; moderate to high grade canal stenosis with moderate cord flattening at C5-6; high grade canal stenosis with prominent cord flattening at C6-7, greater on the left; and bilateral foraminal stenosis at C3-4, C4-5, C5-6, and, greater on the left, at C6-7.

Dr. McHugh examined O’Neal on October 20, 2009. O’Neal complained about having severe cervical pain, muscle spasm, and right lower extremity symptoms since the second accident. Dr. McHugh examined the MRI from five days earlier and noted high grade stenosis at C5-6 and C6-7. He also noted disc herniation at both levels, left greater than right, which correlated with O’Neal’s symptoms. Dr. McHugh wanted to schedule an ACDF at C5-6 and C6-7. O’Neal returned to Dr. McHugh’s office nine days later, when he again reported feeling severe cervical pain since the second accident.

|7Q’Neal was treated by Dr. Abraham on December 11, 2009, for worsening lower back pain that radiated down into his legs.

O’Neal was seen at Dr. Ledbetter’s office on December 17, 2009. He rated his pain as 100 out of 100. Dr. Ledbetter’s impressions included cerviealgia with left upper extremity radiculopathy following the second accident, as well as MRI evidence of cervical intervertebral disc disease and high-grade stenosis at multiple levels with cord flattening at C6-7, greater on the left. A Duragesic pain patch was added to O’Neal’s medications.

Dr. Ledbetter examined O’Neal on December 31, 2009. O’Neal reported some relief from the patch, but he continued to have constant pain in the cervical region with left, greater than right, radiculopathy. He added that the pain in his upper extremities was so severe that the numb and tingling sensation was constantly radiating down into the ring and pinky fingers of both hands. On examination, flexion and extension exacerbated his cervical pain. Dr. Ledbetter recommended that cervical surgery be done as soon as possible because the pain was so intense. Dr. Led-better’s impressions included cervicalgia with bilateral upper extremity radiculopa-thy since the second accident. O’Neal reported that he had had no cervical problems prior to the second accident.

O’Neal continued to complain of neck and bilateral arm pain to Dr. Ledbetter on January 28, 2010. O’Neal rated his pain as 100 out of 100. Dr. Ledbetter’s impressions included cervicalgia with bilateral upper extremity radiculopathy since the second accident with no reported cervical problems prior to the accident.

IsDr. Ledbetter again examined O’Neal on February 26, 2010. The chief complaint was neck pain with pain radiating into both arms, sometimes more pronounced on the left than the right. O’Neal said the pain was a little worse on the right that day, with intermittent numbness in the last three fingers of the right hand. He rated his pain as 10 out of 10. Among Dr. Ledbetter’s impressions that day was cervicalgia with bilateral upper extremity radiculopathy following the second accident, with inception of current pain after the second accident.

Dr. Ledbetter treated O’Neal on March 26, 2010, for continued neck pain that radiated down into his arms. He noted that O’Neal had known cervical spinal stenosis but was asymptomatic prior to the second accident. Rotation of his head to the right elicited dysesthetic right arm pain. Dr. Ledbetter thought the ACDF should be done immediately.

O’Neal complained of neck pain with pain radiating into both arms when treated at Dr. Ledbetter’s office on April 27, 2010. Dr. Ledbetter continued to recommend an ACDF to address the ongoing neck and upper extremity radiculopathy; he noted that the pain came from the second accident. O’Neal rated his pain as 8 to 9 out of 10. Dr. Ledbetter’s impressions included cervicalgia with cervical intervertebral disc disease and upper extremity radiculo-pathy.

O’Neal called Dr. Ledbetter’s office on May 6, 2010, to complain about the pain in his neck and right arm. He said he could not stand the pain much longer and that his pain medications were not helping.

IsA cervical spine X-ray ordered by Dr. Abraham was taken on May 10, 2010. The X-ray showed cervical spondylosis with degenerative disc space narrowing and anterior and posterior osteophytes, most pronounced at C3-4, C5-6, and C6-7. Dr. Abraham treated O’Neal on May 14 for lower back pain.

Dr. McHugh examined O’Neal on June 1, 2010; O’Neal reported having continued severe pain in his cervical spine and bilateral upper extremities. Dr. McHugh noted that O’Neal began reporting severe cervical pain after the second accident. Dr. McHugh also continued to follow his lumbar spine.

O’Neal still had neck and right arm pain when Dr. Ledbetter examined him on June 25, 2010. He rated his pain as 10 out of 10. Dr. Ledbetter thought O’Neal would benefit from a spinal cord stimulator to treat his lumbosacral radiculopathy, but he believed the cervical problem was more urgent. Dr. Ledbetter’s impression was cervical disc disease with right cervical radiculitis. Dr. Ledbetter increased his OxyContin dosage.

When Dr. Ledbetter examined O’Neal on July 22, 2010, O’Neal complained of ongoing sharp aching pain in the neck that radiated down into the left shoulder and right arm into the hand. He told Dr. Ledbetter that-he experienced minimal improvement from the increased OxyContin, and he registered his pain as being 10 out of 10. Dr. Ledbetter’s impression was cervical spinal stenosis with cervical radi-culopathy.

O’Neal related that he continued to have quite a bit of neck pain with radiation into the arms, particularly the right forearm, when Dr. Ledbetter |10treated him on August 19, 2010. O’Neal said he had throbbing pain in that forearm at night, and he had a lot of axial neck and shoulder pain during the day. He rated his pain as 10 out of 10. His OxyContin dosage was increased to allow him to continue working. Dr. Ledbetter’s impressions included severe cervical disc disease with high-grade stenosis at two levels, and cervical radiculitis.

On September 21, 2010, O’Neal was treated at Dr. Ledbetter’s office. His chief complaint continued to be neck pain and pain radiating toward both arms, more significant on the right. Dr. Ledbetter’s impressions included severe cervical inter-vertebral disc disease with high-grade stenosis at two levels, and upper extremity radiculopathy.

Dr. Abraham treated O’Neal on October 11, 2010. O’Neal complained of pain all over, and that his arms were swollen.

O’Neal returned to Dr. Ledbetter’s office on October 19, 2010, with complaints of ongoing sharp, aching neck pain that radiated into both shoulders and upper arms. He rated his pain as 10 out of 10.

O’Neal was next examined at Dr. Led-better’s office on November 19, 2010, when his chief complaints were neck and bilateral arm pain. He said his pain was 9 out of 10. O’Neal’s chief complains were again neck pain and bilateral arm pain when Dr. Ledbetter treated him on December 17, 2010. His pain was considered significant, and he rated it as 9 out of 10. Dr. Ledbet-ter’s impressions included cervical radiculi-tis, cervical spondylosis without myelopa-thy, and cervical intervertebral disc with myelopathy.

|nOn January 14, 2011, Dr. Ledbetter’s office treated O’Neal for his ongoing neck pain. Dr. Ledbetter next examined O’Neal on February 11, 2011. O’Neal’s chief complaint was neck pain with pain radiating toward both shoulders and down into the right arm and hand. He said his pain was 8 out of 10, but was reduced by his medications. Dr. Ledbetter’s impressions included cervical radiculitis, and cervical spondylosis without myelopathy. O’Neal rated his pain as 10 out of 10 when he was seen at Dr. Ledbetter’s office on March 8, 2011.

O’Neal continued to report severe cervical pain as well as numbness and tingling in his right hand when Dr. McHugh examined him on April 14, 2011.

Procedural history

O’Neal filed his disputed claim for compensation on May 3, 2010. He sought an ACDF at C5-6 and C6-7 as recommended by Dr. McHugh. A trial was held on the issue of whether the second accident made the ACDF medically necessary. The WCJ heard testimony from O’Neal, who was fired by Rayville in May of 2010 and was working as a mechanic at a tire store at the time of trial. Depositions from Drs. Ledbetter, Brown, McHugh, and Donald Smith, a second medical opinion physician, were filed into evidence along with O’Neal’s medical records.

The WCJ ordered Rayville to pay for the ACDF. Rayville appealed, arguing that the ACDF was necessary prior to the second accident.

| ^DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Dombrowski v. Patterson-UTI Drilling Co., 46,249 (La.App.2d Cir.4/13/11), 63 So.3d 308. To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine that the record establishes that the finding is clearly wrong. Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993); Dombrowski v. Patterson-UTI Drilling Co., supra.

Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State through Dept. of Transp. & Dev., supra; Dombrowski v. Patterson-UTI Drilling Co., supra.

Under La. R.S. 23:1203, medical payments are separate and distinct from compensation indemnity benefits. An employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state 113as legal. La. R.S. 23:1203(A). A workers’ compensation claimant must prove that the medical expenses are reasonably necessary for the treatment of a medical condition caused by a work-related injury. Pardee v. Forest Haven Nursing Home, 42, 321 (La.App.2d Cir.6/20/07) 960 So.2d 1216. The claimant must prove the necessity of the treatment and the causal connection between the treatment and the employment-related accident by a preponderance of the evidence. Read v. Pel-State Oil Co., 44,218 (La.App.2d Cir.5/20/09), 13 So.3d 1191; Whatley v. Nabors Drilling USA, LP, 44,720 (La.App.2d Cir.11/12/09), 26 So.3d 253.

A WCJ’s determination with regard to medical necessity is entitled to great weight and will not be disturbed on appeal in the absence of manifest error or unless clearly wrong. Whatley v. Nabors Drilling USA, LP, supra.

A preexisting medical condition will not bar an employee from recovery if the employee establishes that the work-related accident aggravated, accelerated or combined with the condition to cause the disability for which compensation is claimed. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689; Hatfield v. Amethyst Const., Inc., 43,588 (La.App.2d Cir.12/3/08), 999 So.2d 133, writ denied, 2008-2996 (La.2/13/09), 999 So.2d 1150. The preexisting condition is presumed to have been aggravated by the accident if the employee proves: (1) the disabling symptoms did not exist before the accident, (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of a causal connection between the accident and the 114activation of the disabling condition. Peveto, supra; Green v. Thompson Home Health, 46,593 (La.App.2d Cir.9/21/11), 73 So.3d 490, writ denied, 2011-2460 (La.1/20/12), 78 So.3d 143.

Dr. Donald Smith

Dr. Smith, who specialized in neurosurgery and did mostly spinal surgeries, gave a second medical opinion.

He evaluated O’Neal on October 25, 2012. Dr. Smith was provided with the film of the MRI from October of 2009 to review. In his report, he noted that O’Neal’s chief complaint was sharp needle pain on both sides of his neck that radiated down to his arm causing numbness in his fingers. Dr. Smith’s impression was degenerative cervical disc disease at multiple levels with significant defects at C5-6 and C6-7, and with encroachment on the spinal canal and significant cord compression at C6-7. Dr. Smith believed the cervical spine showed degenerative changes at multiple levels with characteristics suggesting chronic longstanding degenerative disease. He wrote in his report that he could not state with certainty whether the disease process was aggravated by the second accident.

Dr. Smith explained that what he meant by significant defects at C5-6 and C6-7 was he thought there were osteophytes that were significantly constricting the spinal canal and compressing the spinal cord. He believed that the degenerative disease and spondylosis was a long-term, chronic, gradual process instead of being produced by the second accident. He thought the degenerative disease had been longstanding when he looked at the October 2009 MRI, which was performed a month after the accident. J^The osteophytes could not have developed in a month, as osteophytes of that nature take many months and probably years to develop.

Dr. Smith added that the fact that he could not state with certainty whether the accident produced an aggravation meant that some additional aggravation may have occurred, but he felt very sure that the basic pathology was present long before the accident. The October MRI could only tell him the spondylosis and osteophytes developed over a long time. It could not tell him whether O’Neal had symptoms before the accident, or if the symptoms were all produced after the accident.

Dr. Smith stated that if the entire process was due to a long-term development and no new structural injury occurred to the neck at the time of the second accident, then he would expect for the MRIs six months to a year later to be almost unchanged from the October 2009 one he reviewed.

An addendum report was issued by Dr. Smith after he was provided with the MRI and cervical myelogram from June of 2009. He concluded that there was no significant difference between the two MRIs. The myelogram confirmed the presence of degenerative changes at multiple levels in the cervical spine. Osteophytes were particularly prominent at the C5-6 and C6-7 levels, with a large osteophyte on the left at the C6-7 level.

Dr. Smith was asked by the risk manager for Rayville if O’Neal needed the same cervical surgery prior to the second accident. His written response in December of 2010 was:

[ O’Neal] has chronic degenerative cervical disc disease, and spondylosis with significant defects, especially at C6-C7. Certainly, this disease process often does progress to the point of requiring surgical treatment with or without any maj or [1fiinter current episodes of injury. Whether or not the patient needs surgery at any particular time is related to the level of symptomatology, and physical findings. [O’Neal] does not have any objective evidence of cervical myelopa-thy nor other changes that would lead me to state that surgical treatment even at the present time is mandatory. The indications for surgery, if such is required, would be to level the patient’s pain, and symptoms. Again, the indications for such intervention would depend more on these symptoms rather than merely the appearance of the radio-graphic studies.

Dr. Smith explained in his deposition that when he referred to symptoms in that response, he was not referring to pain or discomfort, but instead symptoms related to the functional aspects of the spinal cord. He added that pain is rarely directly associated with the functional components, and that myelopathy is sometimes painless.

There was no clinical finding of spinal cord dysfunction or myelopathy when he evaluated O’Neal, so Dr. Smith did not think that surgery was emergency or mandatory, but he still felt that surgical intervention would probably be required at some point. Although there was significant narrowing of the spinal canal, he did not see any physical findings on exam that would tell him that O’Neal’s spinal cord was beginning to lose function.

Dr. Smith’s opinion was that the MRIs showed enough impingement or narrowing of the spinal cord to require surgery eventually, and that was present on the MRI done before the second accident. Dr. Smith believed the ACDF would be an acceptable form of surgery for O’Neal, although there were other methods of decompressing and getting rid of the osteo-phytes. Dr. Smith did not feel that any cervical surgery was required at the time he evaluated O’Neal.

117Pr. Smith believed that he would have recommended cervical intervention at the time he examined O’Neal if he had been his treating neurosurgeon. He would have suggested that the surgery take place within a few months because there was some risk to the spinal cord because of the degree of compression.

Dr. Smith said that O’Neal would probably start developing some spinal cord loss if he never had the surgery. However, O’Neal may have started to develop spinal cord loss even without the September accident, as the disease can produce myelopathy even without trauma. O’Neal’s cervical spondylosis itself would require surgery soon with or without an accident.

Dr. Smith’s opinion was that the need for cervical surgery would have been the same even without the September 2009 accident. The pain and risks to the spinal cord are basically related to the spondylo-sis and narrowing that developed from the process, not from the accident. The September accident did not appear to worsen his condition.

Some of the crucial physical findings would have been there when Dr. Smith examined him if they had already developed, and they would not have waxed and waned with the level of pain symptoms. The decision about the timing of surgery hinged more on the spinal cord function than on pain complaints, although Dr. Smith acknowledged that numbness and tingling down the arms could be a sign of myelopathy.

Dr. Smith was asked about O’Neal’s complaints on September 2S, 2009. He said that the symptoms of bilateral pain in the arms could have|18been an early symptom of myelopathy, but the symptoms were also suggestive of nerve root involvement.

Dr. Smith testified that most of the time spondylosis develops on both sides of the spinal canal, so degenerative changes tend to be more symmetrical, but that is not always the case and they can sometimes be more severe on one side and then progress to the other side. If the left side pain became left side and right side pain immediately after the September accident, he would presume that there may have been some aggravation.

In conclusion, Dr. Smith agreed that O’Neal is going to need surgery. His cervical condition of worsening pain and symptoms could have occurred from a natural progression of the degenerative disease without the intervening accident. However, O’Neal was at an increased risk of aggravation from an accident because of his condition when compared to someone with a normal spinal canal.

Dr. Doug Brown

Dr. Brown, an orthopedic surgeon, wanted to treat O’Neal with physical therapy and conservative treatment in June 2009, and thought he should leave it up to Dr. McHugh to prescribe any ongoing treatment. O’Neal was eager to get something more done, which to Dr. Brown indicated that he wanted surgery. Dr. Brown wanted to see a cervical CT scan and myelo-gram before he would discuss treatment of the cervical spine, including a possible surgical solution to O’Neal’s pain. The mye-logram showed actual pressure on the spinal cord itself at C5-6 and |19C6-7, which placed him at risk of spinal cord injury with almost any twisting, jerking, or extension of his neck.

When he examined O’Neal on September 28, 2009, Dr. Brown was primarily concerned with his lumbar spine, which was why he ordered a lumbar MRI and not a cervical one. He prescribed a mild Tylenol medicine with a muscle relaxant mixed with it.

Dr. Brown did not see any real changes, either in the reports or in the actual films, between the June 3, 2009, and October 15, 2009, MRIs. It did not appear to Dr. Brown that the cervical spine as shown on the MRIs was worse following the second accident. He believed that the conditions that Dr. McHugh was going to repair were present in June of 2009. When he compared the June and October 2009 cervical MRI films and the myelogram, he believed that there was no worsening of O’Neal’s condition following the second accident.

Dr. Brown never recommended cervical surgery to O’Neal. He explained that the ACDF opens the neural foramina to straighten the spine, remove bone spurs and ruptured discs at specific levels, and fuse or stiffen the spine. It is done to correct neural foramina narrowing and any impingement or compression based upon disc material.

He agreed with Dr. McHugh’s recommendation for the ACDF at C5-6 and C6-7, but he felt that the conditions requiring the surgery existed before the second accident. Those conditions were the stenosis and the foraminal narrowing; the osteo-phytes also played a role. Dr. Brown explained that osteophytes take a minimum of six months to develop, and more likely 180years. He also explained that degenerative disc disease takes years to develop.

Dr. Brown agreed that O’Neal’s symptoms were more varied after the second accident, but he disagreed that they were more severe as O’Neal had rated his pain as 10 out of 10 during the May 2009 examination.

When Dr. Brown was asked if the second accident caused aggravation of his cervical degenerative condition that resulted in the additional symptoms, he replied that it certainly caused him additional symptoms. He added that the second accident may have tipped O’Neal over the edge.

Dr. Brown agreed that the mere fact that the objective findings remained unchanged did not mean that his symptoms could not have been aggravated by the second accident.

Dr. Brown testified that there was no way to tell whether additional symptoms were caused by the second accident or by a progression of his cervical spine condition. He also thought it was more probable than not that O’Neal would have required the surgery even if the new symptoms had never materialized. Dr. Brown thought cervical treatment was necessary in June of 2009, which was why he sought the CT scan and my-elogram. He would have recommended the ACDF in June of 2009 based upon the myelogram.

Dr. Brown agreed that the necessity for a surgery is based upon objective findings, condition of the spine, and symptomatolo-gy. He also |¾1 acknowledged that he had not decided on cervical surgery at the time O’Neal left his care.

Dr. Brown agreed that it was more probable than not that the second accident aggravated his preexisting condition. Nevertheless, the left-side symptoms that O’Neal complained about in May and June 2009 alone would have been enough to warrant cervical surgery.

Dr. Curtis Partington

Dr. Partington examined the June and October 2009 cervical MRIs and the June 2009 myelogram. He found that there had been no significant change in the appearance of the cervical spine between the three exams. O’Neal had -severe cervical spondylosis with disc bulging and osteo-phytes compressing his nerve roots and his spinal cord at multiple levels. Dr. Part-ington concluded that there was no change in the appearance of the exams to suggest that this accident further injured O’Neal’s cervical spine.

Dr. John Ledbetter

Dr. Ledbetter was engaged in the practice of pain management. He was focused on treating O’Neal’s lower back in July of 2009. He would have noted it if O’Neal had been complaining of arm or neck pain at that time. Dr. Brown was treating the left shoulder at the time.

Based upon the increase in symptoms, Dr. Ledbetter thought it was more probable than not that the second accident exacerbated O’Neal’s preexisting cervical condition and caused bilateral arm pain and more neck pain.

laaDr. Ledbetter agreed that symptoma-tology, along with the MRI findings, was a factor in determining whether surgery was necessary. Dr. Ledbetter did not recommend cervical spine surgery on September 17, 2009, because he did not know how bad O’Neal’s cervical spine condition was at the time. He suspected there was a significant issue, which was why he ordered the cervical MRI.

Dr. Ledbetter stated that someone with significant cervical spinal stenosis would be predisposed to having symptoms exacerbated in an accident during which the airbag hits him in the face. Dr. Ledbetter explained that the fact that the arm pain became bilateral and more severe after the accident indicated that there was probably an aggravation of his preexisting condition. Dr. Ledbetter noted that O’Neal had hardly talked about his low back since the September 2009 accident, despite it being the focus of his care prior to that accident.

After Dr. Ledbetter treated O’Neal on December 17, 2009, he called Dr. McHugh’s office because Dr. Ledbetter was concerned about the severity of the stenosis after seeing the MRI and he felt O’Neal was beyond his help.

Dr. Ledbetter believed that cervical surgery became medically necessary after the second accident because of the increased symptoms. He never considered it prior to the second accident, but he acknowledged not seeing a cervical MRI taken before the second accident. He also did not know that Dr. Brown had ordered a cervical MRI in May of 2009. His |Msurgery recommendation was based upon how O’Neal’s symptoms had progressed.

Dr. Ledbetter acknowledged that Dr. Brown probably would have recommended surgery before the second accident based on the MRI and left arm pain. He would defer to Dr. Brown since he was the one who saw him at the time.

Dr. Ledbetter felt there was no need to order a cervical MRI prior to the second accident because O’Neal had not been complaining about his neck. Dr. Ledbet-ter would not operate on someone who is not even reporting a level of pain that merited an MRI. O’Neal complained of enough pain after the second accident to warrant the surgery. In Dr. Ledbetter’s opinion, based upon the clinical presentation that was markedly different, O’Neal went from a “maybe, maybe not” before the second accident, to a “let’s do it tomorrow” following it.

O’Neal never mentioned having cervical pain during the visit in July of 2009. O’Neal told him in December of 2009 that he had had no cervical problems prior to the car accident; he said the same thing on January 28, 2010. It was a little odd to Dr. Ledbetter that O’Neal never mentioned previously having cervical pain at those times. He also thought it was a little odd that O’Neal did not mention getting a cervical MRI in June of 2009 when he saw O’Neal on October 15, 2009.

Based upon O’Neal’s symptoms prior to the second accident, and the MRI, CT scan, and myelogram results, Dr. Ledbet-ter thought O’Neal was | ^potentially a candidate for cervical epidural steroid injections and not necessarily surgery before the second accident.

O’Neal may have needed surgery prior to the second accident, but his pain then may have been relieved by more conservative measures. While surgery before the second accident may have been appropriate, so was more conservative treatment like an epidural steroid injection. In Dr. Ledbetter’s opinion, the myelogram/CT scan reports suggested there may have been room for more conservative treatment based on clinical presentation. After the second accident, an epidural steroid injection was no longer appropriate.

Dr. Ledbetter felt that O’Neal clearly became a surgical candidate when he began exhibiting severe neuropathic shooting, burning pain down both arms, and when they had the results of the October 2009 MRI of the cervical spine. While there was still room for conservative treatment prior to the second accident, there was not room after the second accident if O’Neal’s reporting of the severity of his pain was believed.

Dr. Ledbetter thought it was significant that O’Neal was not complaining about his neck when he saw him in July of 2009. He agreed that O’Neal probably did not mention neck pain to him on that date because it was not really hurting him at the time.

Dr. Ledbetter agreed that there is a difference between an opinion on the necessity of surgery from him and an opinion from a neurosurgeon. He would defer to Drs. Brown and McHugh on the severity of the stenosis and the surgical problem.

|gfiDr. Bernie McHugh

Dr. McHugh was a neurosurgeon who originally treated O’Neal’s lower back beginning in 2005. He began recommending the ACDF in October of 2009 because O’Neal was symptomatic clinically, and because the severity of his stenosis caused spinal cord compression and placed him at increased risk of additional spinal cord issues. The stenosis was being caused by a combination of degenerative disc disease, spondylosis, and bone spurs. Dr. McHugh looked at the film of the October 2009 MRI before making the ACDF recommendation.

Dr. McHugh was questioned about Dr. Brown’s position that he thought a cervical ACDF would have been necessary even before the second accident in light of the test results and the problems that O’Neal was experiencing. He responded that sometimes the studies are not as significant if the person is not symptomatic. O’Neal probably had the preexisting condition, but was asymptomatic, and surgeons do not necessarily operate on people who are asymptomatic. He would rather treat them conservatively. Dr. McHugh added that it was not an easy question to answer.

Dr. McHugh would have recommended an ACDF after the first accident if he thought the symptoms warranted it. O’Neal never complained to Dr. McHugh about severe cervical pain prior to the second accident. In contrast, the symptoms that manifested themselves after the second accident were serious enough to warrant surgery.

RfiO’Neal complained of aching, burning, and stabbing sensations in the left side of his neck, shoulder and arm down to the base of his index finger when he saw Dr. Brown on May 15, 2009. Based on that report, Dr. McHugh agreed that O’Neal was symptomatic in the cervical spine before the second accident. When Dr. McHugh was then asked if he had an opinion as to whether or not the ACDF was needed prior to the second accident, he said he could not render an opinion on that question because he did not know if O’Neal had been treated conservatively at the time for his symptoms.

Dr. McHugh was asked if O’Neal was no longer complaining of such severe pain to Dr. Brown on June 10, 2009, did that dictate against surgery at that time. He responded that a doctor wants to be as conservative as possible, and he did not know what conservative treatment O’Neal was getting from his other doctors for any neck and left arm symptoms.

According to Dr. McHugh, O’Neal had some shoulder complaints before the second accident, but it was after the second accident that he became more focused and clinically symptomatic regarding his neck and arm.

The radiographic findings coupled with the symptoms reported after the second accident warranted the ACDF and made it medically necessary. Dr. McHugh did not determine that surgery was medically necessary before the second accident because O’Neal’s earlier symptoms were not as severe as they were after the September accident. If O’Neal had earlier exhibited 127the symptoms that he had after the second accident, then Dr. McHugh would have recommended an ACDF earlier.

The symptoms that O’Neal reported to Dr. Ledbetter and Dr. Brown following the second accident indicated there was some aggravation of a preexisting cervical degenerative condition. It was not unusual, based on the dynamics of the second accident, for someone with O’Neal’s preexisting cervical condition to sustain an aggravation of that condition. It was more probable than not that the second accident caused an aggravation of his preexisting condition:

Dr. McHugh thought it was more probable than not that the ACDF did not become medically necessary until O’Neal’s cervical pain became severe and bilateral in nature. He exhausts all conservative treatments before recommending surgery.

Aggravation of the preexisting degenerative condition

The medical records showed that O’Neal’s cervical symptoms mostly resolved following the first accident before they became considerably varied and worsened following the second accident.

O’Neal complained of bilateral neck pain and pain radiating into his left arm immediately following the first accident. O’Neal reported aching, burning, and stabbing sensations in the left side of his neck, shoulder, and down his left arm when examined by Dr. Brown on May 15, 2009.

O’Neal had no neck or arm complaints when Dr. McHugh treated him on June 4, 2009. Dr. McHugh was treating his lumbar spine at the time.

UsO’Neal complained of numbness and tingling in his left arm when Dr. Brown treated him on June 10, 2009. That is a stark difference from the pain he reported a month earlier. Dr. Brown had an inkling that surgery was possibly needed at the time, but other treatment was then still a possibility.

There was no mention of any neck pain when Dr. Ledbetter treated O’Neal on July 7, 2009. The focus was on the lower back during that visit. O’Neal had appointments scheduled with Dr. Brown on August 19 and 26, 2009, but he missed one and rescheduled the other because he felt his pain was no longer as severe and his symptoms were going away.

Things changed quickly following the second accident. The symptoms became different and more severe. O’Neal began reporting pain radiating into both arms instead of just one arm, and he rated his pain as being high more than a year after the second accident. O’Neal testified that his neck hurts all the time, and he experiences stabbing, burning pain that shoots all the way down to his fingers. He is in pain every day and the pain in his right arm is constant while he is awake. His left arm hurts at times, but it is mostly his neck and right arm that bother him. Dr. Ledbetter has adjusted his medications to account for the pain. One thing that is telling is that following the second accident, focus has shifted away from the lumbar spine and to the cervical spine.

The ACDF surgery became medically necessary following the second accident which caused an aggravation of O’Neal’s preexisting degenerative condition in his cervical spine. Based upon our review of the record, we | ^conclude that the WCJ was not clearly wrong in ordering Rayville to pay for the surgery.

DECREE

The judgment is AFFIRMED.

      . Dr. Brown had treated one of O'Neal's knees many years earlier.

      . An MRI of the left shoulder ordered by Dr. Brown was also done on that date.

      . These injections were done by Dr. Ledbetter in July and August of 2009.

      . He also complained of pain in his lower back and right leg.

      . O’Neal said he was doing light-duty work at the tire store.

      . O’Neal explained that the reason the Emergency Room report after the second accident did not mention complaints of neck pain was because he was hurting all over.


author: GENOVESE, Judge.

text:
    Darnell and Michelle CARTER, Individually and as Natural Parents of Kyris Carter (Deceased) v. STEAK HOUSE STEAKS, INC., James Nations, Jr., and XYZ Insurance Company.
    No. 12-394.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2012.
    Rehearing Denied Nov. 28, 2012.
    Pius A. Obioha, Alistair A. Adkinson, Michal J. Harris, Law Offices of Pius A. Obioha & Associates, LLC, New Orleans, LA, for Plaintiffs/Appellants, Darnell and Michelle Carter.
    Richard E. King, Jennifer L. Simmons, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendants/Appellees, James Nations, Jr. and Steak House Steaks, Inc.
    Matthew J. Ungarino, Ungarino & Ec-kert L.L.C., Metairie, LA, J. Michael Nash, Ungarino & Eckert L.L.C., Shreveport, LA, for Defendant/Appellee, Steak House Steaks, Inc.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| plaintiffs, Darnell and Michelle Carter, individually and as natural parents of Kyr-is Carter (deceased), appeal the judgment of the trial court sustaining an exception of no right of action in favor of Defendants, James Nations, Jr. and Steak House Steaks, Inc. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This matter is before the court on an exception of no right of action. On April 25, 2011, Darnell and Michelle Carter (Plaintiffs) filed a petition for wrongful death and survival action damages against James Nations, Jr., Steak House Steaks, Inc., and XYZ Insurance Company (Defendants). Plaintiffs’ petition alleged damages in connection with the drowning of their son, Kyris Carter, on October 3, 2010.

Defendants filed an exception of no right of action, asserting that Darnell and Michelle Carter have no right under the law to bring this suit. Following a hearing on August 11, 2011, the trial court sustained Defendants’ exception of no right of action. The trial court signed a judgment on September 8, 2011, dismissing Plaintiffs’ claims against Defendants without prejudice. Plaintiffs have appealed.

ASSIGNMENTS OF ERROR

On appeal, Plaintiffs complain that the trial court erred: (1) in sustaining Defendants’ exception of no right of action because they “are the proper parties to bring the claims that were asserted in this lawsuit[,]” and, (2) in dismissing Defendants from this suit.

DISCUSSION

Plaintiffs’ petition asserted that when Kyris drowned while attending a party, he was not married and had no children. Therefore, as Kyris’ parents, Plaintiffs | ¡.asserted that they are the proper parties to bring wrongful death and survival actions pursuant to La.Civ.Code arts. 2315.1 and 2315.2.

Defendants, however, asserted that they neither hosted the ill-fated party nor owned the property where said party was held. Therefore, Defendants argued through their filing of a peremptory exception of no right of action that they are not the proper parties to be named as Defendants in these actions.

Louisiana Code of Civil Procedure Article 681 provides that “an action can be brought only by a person having a real or actual interest which he asserts.” Pursuant to La.Code Civ.P. art. 927(A)(6), a defendant may challenge whether a plaintiff has such a real or actual interest in an action.

The classes of beneficiaries for wrongful death and survival actions are granted by special statute to' specified survivors in order of exclusionary preference. Louisiana Civil Code Articles 2315.1 and 2315.2 state that, along with certain other relatives, the parents of a person who is unmarried and childless, and whose death was caused by the fault, offense, or quasi-offense of another, may bring wrongful death and survival actions within one year of the decedent’s death. Specifically, La. Civ.Code art. 2315.1 provides:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

Further, La.Civ.Code art. 2315.2 provides:

A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
Jl.--
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

Our supreme court explained the peremptory exception of no right of action in Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267,10-2272, 10-2275, 10-2279, 10-2289, pp. 6-7 (La.10/25/11), 79 So.3d 246, 255-56, as follows:

“The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Hood v. Cotter, 2008-0215, p. 17 (La.12/2/08), 5 So.3d 819, 829. An appellate court reviewing a lower court’s ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Id.; Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, p. 6-7 (La.3/17/06), 929 So.2d 1211, 1217; Turner v. Busby, 2003-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415-416; Reese v. State, Dept. of Public Safety and Corrections, 2003-1615, p. 3 (La.2/20/04), 866 So.2d 244, 246.
The determination whether a plaintiff has a right to bring an action raises a question of law. A question of law requires de novo review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582, p. 9 (La.11/29/06), 943 So.2d 1037, 1045.

The peremptory exception of no right of action is a procedural device to challenge whether a plaintiff is the proper party to file an action, not whether a defendant is the property party against whom an action can be filed. Plaintiffs clearly have a right of action pursuant to La.Civ.Code arts. 2315.1(A)(2) and 2315.2(A)(2). Plaintiffs are the proper parties to bring these wrongful death and survival actions. We find that the trial court legally erred in sustaining Defendants’ peremptory exception of no right of action.

RDECREE

For the foregoing reasons, the judgment of the trial court is reversed. The case is remanded to the trial court for further proceedings. Costs are assessed to Defendants/Appellees, James Nations, Jr. and Steak House Steaks, Inc.

REVERSED AND REMANDED.


text:
    Monica SHIRLEY, Nee Dusenbery, Plaintiff-Appellee v. John Campbell SHIRLEY, Defendant-Appellant.
    Nos. 47,442-CA, 47,443-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 10, 2012.

      Donald K. Kneipp, Monroe, LA, for Appellant.
    Law Offices of Chris L. Bowman by Chris Lane Bowman, Jonesboro, LA, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   DREW, J.

|, John Shirley appeals the trial court’s concurrence in and approval of a hearing officer’s issuance of a temporary restraining order (“TRO”) against him for the protection of his ex-wife, Monica Shirley.

Both parties appealed to the trial court, which heard the case de novo and approved the actions of the hearing officer in all respects. After examining these consolidated records, and even though we recognize the potential mootness of our ruling, we nonetheless affirm the actions of the trial court.

PROCEDURAL HISTORY

On August 4, 2011, Monica filed a petition for protection from abuse, claiming that John threatened telephonically to “burn down the house with her and their children in it before he would give her a dollar of his money.” She also claims that John threatened in the same conversation to “have a crack whore kill her and no one would miss her.”

A TRO was issued against John, with various extensions, expiring either:

• on September 19, 2011, as set by the terms of the trial court judgment; or

• on October 31, 2011, as set by the trial court at the conclusion of the de novo hearing.

At any rate, the judgment memorializing the court’s ruling was not signed until November 29, 2011, at which point the TRO had already expired.

John filed an opposition to the petition for protection from abuse while concurrently filing a motion to dissolve the petition and rescind the 12order, because of the numerous alleged inaccuracies in Monica’s application. Monica complained that the duration of the restraining order was too brief.

At the hearing before the district court on September 19, 2011, Monica recounted the two threats and also produced Leslie Toops, who heard the phone conversation over speakerphone. Toops corroborated Monica’s story.

During this same hearing, Monica asserted that John had a drinking problem and had physically abused her in the past. John denied this, but also added that even if some of Monica’s claims were true, they did not meet the threshold for issuance of a protective order.

The trial court reviewed the testimony in great detail, and ruled that John’s actions amounted to an assault and justified issuance of the order. The trial court affirmed the actions of the hearing officer in all respects.

It is not necessary for this court to decide whether or not a criminal conviction for an assault could have been sustained under these facts. We find that the trial court’s protective order was justified because of John’s apparent violations of La. R.S. 14:40.3, Cyberstalking, and La. R.S. 14:285, Telephone Harassment.

TESTIMONY

John Shirley testified that:

• Monica called him on July 26, 2011, to discuss financial issues, asking for funds so that she and their children could extend their Florida vacation;

• During the phone call, she was in Destín, Florida; he was in West Monroe, Louisiana;

la* he made neither threat;

• several text messages that occurred after the phone call reflect that Monica was not in fear of him;

• he never abused his wife and never threatened to do so;

• in particular, he never beat her and never put out a cigar on her back;

• the scar claimed by Monica was caused by skin cancer removal; and

• Leslie Toops is Monica’s friend and untruthfully confirmed Monica’s story.

Monica Shirley testified that:

• John had a drinking problem and at times drank up to a case of beer a day, resulting in several abusive episodes;

• he once dragged her by her hair and struck her head with a cookie sheet;

• she was afraid for her and her children after the threats by telephone;

• these threats, coupled with the past abuse, made her very fearful of John; and

• the scar on her back was indeed from a cigar burn by John.

Leslie Toops testified that she heard the threats over a speaker phone.

For his horrendous behavior, John was not charged with committing a crime, though it appears from this record that probable cause certainly existed that he violated subsections (1) and (5) of La. R.S. 14:285.

Additionally, probable cause was probably shown that John violated subsections (1), (2), and (4) of the cyberstalking statute, contrary to La. R.S. 14:40.3.

Domestic abuse, under La. R.S. 46:2131, et seq., applies to physical or sexual abuse against the person; it does not apply to negligent injury and defamation; it includes acts by one family member or household member | ^committed against another family member or household member.

La. R.S. 46:2136 has protective order provisions, but these protections may be inapplicable to phone calls that are merely harassing. See Coy v. Coy, 46,655 (La.App.2d Cir.7/13/11), 69 So.3d 1270.

Family arguments that do not rise to the threshold of physical or sexual abuse of violations of the criminal code are not in the ambit of the Domestic Abuse Assistance Law. See Culp v. Culp, 42,239 (La.App.2d Cir.6/20/07), 960 So.2d 1279. Also see, Rouyea v. Rouyea, 2000-2613 (La.App.1st Cir.3/28/01), 808 So.2d 558.

Nonetheless, John’s two telephonic threats were far more than mere harassment. His words were undoubtedly terrifying. Worse, the threats involved what he proposed to do to Monica and to their children. Under these facts, we cannot imagine a hearing officer not issuing the order.

John’s sworn testimony that he did not recall admitting in a deposition that he ever made these threats rings hollow. This testimony is patently absurd. No human could forget having made or having not made or having admitted making those coarse, vicious, and alarming threats concerning his wife and children.

The appellate courts do not make credibility determinations. That is the function of the trial court.

In this proceeding, the trial court had the opportunity to hear testimony and to evaluate the credibility of each witness. The trial court apparently believed Monica and Ms. Toops. The court apparently discounted John’s murky and slippery version of the facts. We discern no | r,abuse of discretion in the trial court’s factual findings or in its legal ruling that affirmed the actions of the hearing officer.

We affirm the trial court in its finding that the hearing officer’s actions were justified. We find that the rulings below were made in full accord with the spirit and the letter of our laws designed to protect the victims of domestic violence.

We assess all court costs against John Shirley.

DECREE

At the sole cost of John Shirley, the judgment is AFFIRMED.