author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Bryant Lakeith BETHLEY.
    No. 12-844.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      Bradley R. Burget, District Attorney, Concordia Parish, Ann Sheridan Siddall, Assistant District Attorney, Concordia Parish, Vidalia, LA, for Plaintiff/Appellee, State of Louisiana.
    Beth Smith Fontenot, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Bryant Lakeith Bethley.
    Bryant Lakeith Bethley, Angola, LA, for Defendant/Appellant, Bryant Lakeith Bethley.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   THIBODEAUX, Chief Judge.

| jDefendant, Brian Lakeith Bethley, appeals his jury conviction for second degree murder on the basis of mistaken identity and evidentiary errors. We affirm.

I.

ISSUES

We must decide:

(1) whether the evidence presented at trial was sufficient to convict Defendant;
(2) whether the trial court committed reversible error by failing to hold a hearing outside the jury’s presence as to the voluntariness of an inculpa-tory statement Defendant made to police; and
(3) whether the trial court erred by trying Defendant and his co-defendant together.

II.

FACTS

On the night of April 3, 2010, officers responded to a shooting at 803 Alabama Street in Perriday, Louisiana. Reginald Green was parked in front of the residence with three passengers in his vehicle, Mye-cha Leonard, Kenneth Leonard, and Kevin Carter. A second vehicle in which Defendant was a passenger pulled up behind Green. Armed with an AR-15 rifle, Defendant got out, approached Green’s vehicle, and fired several shots into the vehicle. Green was killed, two passengers escaped unharmed, and one passenger was grazed by a bullet. Defendant returned to his vehicle and fled the scene. An eyewitness later identified Defendant as the shooter and he was charged with second degree murder for Green’s death. He was convicted and sentenced to life in prison. Defendant appeals his conviction.

_h.ni.

LAW AND DISCUSSION

Standard of Review

The standard of review for a sufficiency of the evidence claim is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); State v. Mussall, 523 So.2d 1305 (La.1988). An appellate court does not re-weigh the evidence or assess the credibility of witnesses. Mussall, 523 So.2d 1305. Determining the weight of the evidence is a question of fact, reserved for the fact-finder, and we will only infringe on that function to the extent necessary to meet the Jackson standard. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27.

Discussion

Insufficient Evidence

Defendant argues that he was mistakenly identified and, thus, the evidence was insufficient to convict him of second degree murder. He maintains that the only direct evidence that he was the shooter came from the testimony of Marti-ka Robinson. Defendant contends this is insufficient because it was dark at the crime scene, and no one corroborated her testimony. “When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime.” State v. Hearold, 603 So.2d 731, 734 (La.1992). To convict Defendant of second degree murder, the State had to show that he killed Green with the specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1. Defendant challenges only his identity as the perpetrator. The State, therefore, was “required to negate any reasonable ^probability of misidentification.” State v. George, 09-143, p. 5 (La.App. 3 Cir. 10/7/09), 19 So.3d 614, 618; State v. Hughes, 05-992 (La.11/29/06), 943 So.2d 1047. One witness’s positive identification “is sufficient to support a conviction.” Id.

Martika Robinson was the only eyewitness who identified Defendant as the shooter. At the time of the offense, Marti-ka was living at 803 Alabama Street. She was at home on the evening of the offense and saw Green with Myecha Leonard, Kenneth Leonard, and Kevin Carter, parked in a Chevy Blazer. Martika spoke to Kevin, who was seated behind Green, for several minutes before she headed back to the residence. As she walked away from Green’s vehicle, she saw Defendant in a light brown, two-door Buick with large rims. Defendant was a passenger, and Martika did not see the driver. Mar-tika testified that as Defendant exited the vehicle, he fired a gun into the Blazer, aiming at the passenger side of the car by the front window. Martika stated there was nothing blocking her view of the Blazer or Defendant as he exited his vehicle. After Defendant left the scene, Martika called 911 and reported that Green had been killed. Martika identified Defendant in open court. At trial, when asked if it was dark that night, Martika replied, “we had a little light.” She explained that the light was coming from “way across the street.” When asked if the pine trees made the yard dark, Martika stated, “not really.”

Martika’s testimony identifying Defendant as the shooter was buttressed by other evidence. Earlier on the day of the shooting, Defendant was involved in a dispute with Green over money Defendant allegedly stole from Green’s sister, Gene-sia. After the argument, and a short time before the shooting, Defendant called Genesia and asked about Green’s whereabouts, to which she did not respond.

Kenneth’s testimony similarly implicated Defendant. After Green parked on the night of the offense, Kenneth heard a gunshot and ducked down on the floor of the vehicle. More gunshots were fired from the passenger side of the vehicle. Kenneth was able to leave the car and crawl to the side of another vehicle parked in |4front of the residence. After firing shots into the car, Defendant came up behind Kenneth and tapped him on the back of the head with the barrel of the gun. Kenneth turned around and saw Defendant with the gun and thought Defendant was trying to kill him. Kenneth then saw Defendant leave without firing any more shots.

Additional facts during and after the offense were elucidated at trial which implicated Defendant’s involvement. For instance, the vehicle possibly involved in the offense belonged to Defendant’s cousin, Lamar Butler. Martika Robinson gave Chief Dennis Cowan a description of the suspect’s vehicle, which was typically driven by Lamar Butler and his family.

Other testimony indicated Defendant and/or his first cousin, Reginald Butler, purchased the murder weapon from a friend and that the weapon was disposed of after the offense. The murder weapon, an AR-15 rifle, was recovered from Black Bayou. Thirteen shell casings recovered from the crime scene matched the rifle recovered from the bayou. A search of the car Defendant typically drove uncovered a twenty count box of 223-caliber Remington bullets, the ammunition used in AR-15 rifles. Eleven more live rounds of the same bullets were recovered on the corner of Earl Davis and Doty Roads, near where Lamar’s vehicle was found.

During Chief Cowan’s interview with Defendant after he was arrested, Defendant asked him if Green was really dead. Chief Cowan confirmed that Green had died and in response, Defendant responded, “good, he deserved to die.”

This case involves a matter of credibility for the jury to decide. Under the jurisprudence, it is not this court’s role to second-guess the jury’s assessment. “Credibility assessments are within the province of the fact-finder, in this case the jury.” State v. Hypolite, 04-1658, p. 5 (La.App. 3 Cir. 6/1/05), 903 So.2d 1275, 1279, writ denied, 06-618 (La.9/22/06), 937 So.2d 381. A jury may “accept or reject, in whole or in part,” any witness’s testimony. Id. (citing State v. Silman, 95-154, p. 12 (La.11/27/95), 663 So.2d 27, 28). We will “overturn a jury’s credibility assessment |fionly when a witness’s own testimony demonstrates that the witness’s ability to perceive events was impaired in some way.” Hypolite, 903 So.2d at 1279.

The jury clearly believed Martika Robinson’s testimony that Defendant was the shooter, even though the offense occurred at night and in a poorly lit area. Although no other witnesses testified to actually seeing Defendant shoot Green, the State negated any reasonable probability of misidentifieation with the circumstantial evidence adduced at trial. The evidence indicated there was a dispute between Defendant and Green earlier on the day of the offense, Defendant participated in the purchase of the weapon used in the offense, and he was seen with the gun in his hand after the shooting. Additionally, the forensic evidence recovered from the crime scene, and from the car Defendant typically drove, was connected to the weapon found in the bayou. Accordingly, the jury’s credibility determination was not clearly contrary to the evidence.

Hearing Concerning Voluntariness of Defendant's Statement

Defendant argues that the trial court committed reversible error by failing to hold a hearing outside the jury’s presence as to the voluntariness of an inculpatory statement made by Defendant to police. Defendant contends that this led to the erroneous admission of an incriminating statement.

“Before an inculpatory statement can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.” State v. Thomason, 353 So.2d 235, 238 (La.1977); La.R.S. 15:451; La.Code Crim.P. art. 703(C). The State argues that Defendant’s statement was exculpatory, not inculpatory, because he stated he had not been in Ferriday, Louisiana at any time on the day of the shooting. The State asserts .that a hearing outside the presence of the jury was, therefore, not required. In support of its contention, the | ñState refers to this court’s decision in State v. Laws, 95-593 (La.App. 3 Cir. 12/6/95), 666 So.2d 1118, writ denied, 96-89 (La.9/13/96), 679 So.2d 102. In Laws, the defendant argued that that the trial court improperly allowed the State to introduce his statement without first conducting a hearing pursuant to La.R.S. 15:451 to determine if his statement was given freely and voluntarily. This court found no merit in the defendant’s argument and reasoned that the defendant’s statement was not a confession because “he neither admitted guilt nor admitted facts that showed the existence of criminal intent.” Id. at 1122-23.

After Defendant was arrested, he signed an advice of rights form, which was introduced into evidence at trial over Defendant’s objection. In his statement to police, Defendant claimed that he was in Clayton, Louisiana on the day of the offense and was not in Ferriday. Defendant also stated that it was good that Green was dead and that he deserved to die. Although Defendant did not admit to his guilt in his statement, the State argued and the trial court agreed that the statement showed Defendant’s intent to kill. As such, pursuant to Laws, Defendant’s statement is governed by the rules applicable to confessions. 666 So.2d 1118. Accordingly, the State had the burden of affirmatively showing that Defendant’s statement was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451.

The State showed, by the waiver of rights form Defendant signed and by testimonial evidence, Defendant’s statement was not made as a result of threats, force, violence, offers, promises, or inducements. Defendant did not suggest or offer any proof that his statement was not free and voluntary during the bench conferences at trial or on appeal. As such, the alleged error was harmless in light of the evidence presented at trial of Defendant’s guilt. State v. Tart, 93-772 (La.2/9/96), 672 So.2d 116, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996). Accordingly, this assignment of error is without merit.

| -Joint Trial

Defendant asserts that the trial court erred in allowing the State to try Defendant and co-defendant, Daniel Butler, together when they were charged by separate indictments. Louisiana Code of Criminal Procedure Article 706 governs consolidated trials and states that “[u]pon motion of a defendant ... the court may order two or more indictments consolidated for trial if the offenses and the defendants ... could have been joined in a single indictment.” Defendant also contends that to consolidate the cases for trial, the State should have charged both defendants in the same charging instrument, meeting the joinder requirements of La.Code Crim.P. art. 494, which states that “[t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Finally, Defendant maintains he was prejudiced by the consolidation when Daniel Butler pled guilty after the trial had begun.

The State asserts that it follows the same procedure of charging individual defendants on separate indictments in all cases, because the ease tracking software utilized by the Clerk of Court in the Seventh Judicial District Court does not recognize or permit multiple defendants appearing on the same indictment or permit the filing of multiple counts of different crimes. The software will permit and track multiple counts of the same crime on a single indictment but not multiple defendants. The State, therefore, was allowed to charge Defendants in separate indictments.

The State also contends that notice of consolidation was given to Defendant six months before trial began, during which time the Defendant should have filed a writ application seeking a reversal of the trial court’s ruling. Additionally, the State refers to State v. Crochet, 05-123 (La.6/28/06), 931 So.2d 1083, wherein the supreme court’s per curiam decision addressed whether prejudice resulted from the consolidation of cases. Factors to consider include “whether the Injury would be confused by the various charges; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile.” Id. at 1087 (citing State v. Washington, 386 So.2d 1368, 1371 (La.1980)).

When the State announced its intent to consolidate the cases of Defendant and Daniel Butler for trial, it maintained that a consolidated trial would be more efficient, and that there was no conflict because the defendants were not pointing the finger at each other and neither had given a statement. Additionally, the State asserted that the same facts and circumstances were involved in both cases. Over Defendant’s objection, the trial court ordered that Defendant and Daniel Butler’s cases be tried together.

After trial had commenced, Daniel Butler entered a plea of guilty to obstruction of justice in exchange for the dismissal of his other charges. The following day, Defendant’s counsel moved for a mistrial, citing prejudice to Defendant as a result of his co-defendant’s guilty plea. Defense counsel argued that the guilty plea, after testimony had been given in front of the jury, would force counsel to change his defense in the middle of trial, limiting his effectiveness. The State asserted that it was appropriate procedure to dismiss charges against a co-defendant up until the jury returns the verdict and that the co-defendant had the right to plead guilty at any time. The State further asserted that it had not yet presented its case against Butler and that Defendant would not be prejudiced or limited in his defense. The court denied Defendant’s motion for mistrial. The day after Butler pleaded guilty, the trial judge informed the jury that Butler and his attorney would no longer be present in the courtroom for reasons that the court could not divulge. The |ncourt instructed the jury not to draw any conclusions or inferences from Butler’s absence and to concern themselves only with Defendant’s guilt or innocence.

Although Defendant correctly asserts that neither defendant moved to have the cases consolidated as required, the cases still met the joinder requirements. La.Code Crim.P. art. 706; La.Code Crim.P. art. 494. Both defendants were alleged to have participated in the same act or series of acts constituting the offense; thus, they could have been properly charged in a single charging instrument.

Similarly, although the dismissal of co-defendant Daniel Butler after trial had commenced may have caused the jury some confusion, the trial court limited any prejudice to Defendant by instructing the jury not to draw any conclusions or inferences from the absence of the co-defendant. The trial court also stressed that the charges against Defendant were the only charges before the jury for its consideration. The remaining factors set forth in Washington are not relevant to the instant case. Under these circumstances, the consolidation of the cases does not appear to have unfairly prejudiced Defendant; thus, this assignment of error is without merit.

IV.

CONCLUSION

For the reasons stated above, Defendant’s conviction is affirmed.

AFFIRMED.

      . Defendant was also charged with three counts of attempted second degree murder arising out of the same incident. The subsequent convictions and sentences are presently before this court in docket number 12-853.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Bryant Lakeith BETHLEY.
    No. 12-853.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      Bradley R. Burget, District Attorney, Concordia Parish, Ann Sheridan Siddall, Assistant District Attorney, Concordia Parish, Vidalia, LA, for Plaintiff/Appellee, State of Louisiana.
    Beth Smith Fontenot, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Bryant Lakeith Bethley.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   THIBODEAUX, Chief Judge.

|,Defendant, Bryan Lakeith Bethley, appeals his conviction and sentences for three counts of attempted second degree murder. He was sentenced to twenty-five years at hard labor, without benefit of probation, parole, or suspension of sentence on counts one and three and to forty years at hard labor, without benefit of probation, parole, or suspension of sentence on count two. These sentences were consecutive to each other and consecutive to his mandatory life sentence for his conviction of second degree murder arising out of the same incident. We affirm.

I.

ISSUES

We must decide:

(1) whether the evidence presented at trial was sufficient to convict Defendant;
(2) whether the trial court committed reversible error by failing to hold a hearing outside the jury’s presence as to the voluntariness of an inculpa-tory statement Defendant made to police;
(3) whether the trial court erred by trying Defendant and his co-defendant together; and
(4) whether the trial court erred by ordering Defendant’s sentences to run consecutively.

II.

FACTS

On the night of April 3, 2010, officers responded to a shooting at 803 Alabama Street in Ferriday, Louisiana. Reginald Green was parked in front of the residence with three passengers in his vehicle, Mye-cha Leonard, Kenneth Leonard, and Kevin Carter. A second vehicle in which Defendant was a passenger pulled up |2behind Green. Armed with an AR-15 rifle, Defendant got out, approached Green’s vehicle, and fired several shots into the vehicle. Green was killed, two passengers escaped unharmed, and one passenger was grazed by a bullet. Before leaving the scene, the Defendant held a gun to Kenneth Leonard’s head but did not fire the weapon. He then returned to his vehicle and fled the scene. An eyewitness later identified Defendant as the shooter. Defendant was convicted on three counts of attempted second degree murder. He appeals his convictions and consecutive sentences.

III.

LAW AND DISCUSSION

Standard of Review

The standard of review for a sufficiency of the evidence claim is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); State v. Mussall, 523 So.2d 1305 (La.1988). An appellate court does not re-weigh the evidence or assess the credibility of witnesses. Mussall, 523 So.2d 1305. Determining the weight of the evidence is a question of fact, reserved for the fact-finder, and we will only infringe on that function to the extent necessary to meet the Jackson standard. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27.

Discussion

Insufficient Evidence

Defendant argues that he was mistakenly identified and the evidence was insufficient to convict him because the only direct evidence that he was the shooter came from the testimony of one eyewitness, Martika Robinson. Defendant contends this is insufficient because it was dark at the crime scene, and no one corroborated her |,.¡testimony. Defendant also maintains that the evidence was insufficient to prove that the shooter specifically intended to kill Myecha Leonard, Kenneth Leonard, and Kevin Carter.

Identity of the shooter

Defendant asserts first that the evidence was insufficient to prove that he was the shooter. “When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime.” State v. Hearold, 603 So.2d 731, 734 (La.1992). The elements of attempted second degree murder are “a specific intent to kill the victim and the commission of an overt act that tends toward the accomplishment of the victim’s death.” La. R.S. 14:30.1; La.R.S. 14:27; State v. George, 09-143, pp. 4-5 (La.App. 3 Cir. 10/7/09), 19 So.3d 614, 618. Since Defendant challenges his identity as the perpetrator, the State was “required to negate any reasonable probability of misidentiflcation.” George, 19 So.3d at 618; State v. Hughes, 05-992, p. 5 (La.11/29/06), 943 So.2d 1047, 1051. One witness’s positive identification “is sufficient to support a conviction.” Id.

Martika Robinson was the only eyewitness who identified Defendant as the shooter. At the time of the offense, Marti-ka was living at 803 Alabama Street. She was at home on the evening of the offense and saw Green with Myecha Leonard, Kenneth Leonard, and Kevin Carter, parked outside in a Chevy Blazer. Marti-ka spoke to Kevin, who was seated behind Green, for several minutes before she headed back to the residence. As she walked away from Green’s vehicle, she saw Defendant in a light brown, two-door Buick with large rims. Defendant was a passenger, and Martika did not see the driver. Martika testified that as Defendant exited the vehicle, he fired a gun into the Blazer, aiming at the passenger side of the car by the front window. Martika stated there was nothing blocking her view of the Blazer or |4Pefendant as he exited his vehicle. After Defendant left the scene, Martika called 911 and reported that Green had been killed. Martika identified Defendant in open court. At trial, when asked if it was dark that night, Mar-tika replied, “we had a little light.” She explained that the light was coming from “way across the street.” When asked if the pine trees made the yard dark, Marti-ka stated, “not really.”

Martika’s testimony identifying Defendant as the shooter was buttressed by other evidence. Earlier on the day of the shooting, Defendant was involved in a dispute with Green over money Defendant allegedly stole from Green’s sister, Gene-sia. After the argument, and a short time before the shooting, Defendant called Genesia and asked about Green’s whereabouts, to which she did not respond.

Kenneth’s testimony similarly implicated Defendant. After Green parked on the night of the offense, Kenneth heard a gunshot and ducked down on the floor of the vehicle. More gunshots were fired from the passenger side of the vehicle. Kenneth was able to leave the car and crawl to the side of another vehicle parked in front of the residence. After firing shots into the car, Defendant came up behind Kenneth and tapped him on the back of the head with the barrel of the gun. Kenneth turned around and saw Defendant with the gun and thought Defendant was trying to kill him. Kenneth then saw Defendant leave without firing any more shots.

Additional facts during and after the offense were elucidated at trial which implicated Defendant’s involvement. For instance, the vehicle possibly involved in the offense belonged to Defendant’s cousin, Lamar Butler. Martika Robinson gave Chief Dennis Cowan a description of the suspect’s vehicle, which was typically driven by Lamar Butler and his family.

Other testimony indicated Defendant and/or his first cousin, Reginald Butler, purchased the murder weapon from a friend and that the weapon was disposed of after the offense. The murder weapon, an AR-15 rifle, was recovered from Black Bayou. Thirteen shell casings recovered from the crime scene matched the rifle | ¡¡recovered from the bayou. A search of the car Defendant typically drove uncovered a twenty count box of 223-caliber Remington bullets, the ammunition used in AR-15 rifles. Eleven more live rounds of the same bullets were recovered on the corner of Earl Davis and Doty Roads, near where Lamar’s vehicle was found.

During Chief Cowan’s interview with Defendant after he was arrested, Defendant asked him if Green was really dead. Chief Cowan confirmed that Green had died and in response, Defendant responded, “good, he deserved to die.”

This case involves a matter of credibility for the jury to decide. Under the jurisprudence, it is not this court’s role to second-guess the jury’s assessment. “Credibility assessments are within the province of the fact-finder, in this case the jury.” State v. Hypolite, 04-1658, p. 5 (La.App. 3 Cir. 6/1/05), 903 So.2d 1275, 1279, writ denied, 06-618 (La.9/22/06), 937 So.2d 381. A jury may “accept or reject, in whole or in part,” any witness’s testimony. Id. (citing State v. Silman, 95-154, p. 12 (La.11/27/95), 663 So.2d 27, 28). We will “overturn a jury’s credibility assessment only when a witness’s own testimony demonstrates that the witness’s ability to perceive events was impaired in some way.” Hypolite, 903 So.2d at 1279.

The jury clearly believed Martika Robinson’s testimony that Defendant was the shooter, even though the offense occurred at night and in a poorly lit area. Although no other witnesses testified to actually seeing Defendant shoot Green, the State negated any reasonable probability of misidentification with the circumstantial evidence adduced at trial. The evidence indicated there was a dispute between Defendant and Green earlier on the day of the offense, Defendant participated in the purchase of the weapon used in the offense, and he was seen with the gun in his hand after the shooting. Additionally, the forensic evidence recovered from the crime scene, and from the car Defendant typically drove, was connected to the weapon found in the bayou. Accordingly, the jury’s credibility determination was not clearly contrary to the evidence.

^Specific Intent

To prove attempted murder, the State had to show proof of the “specific intent to kill the victim and the commission of an overt act that tends toward the accomplishment of the victim’s death.” George, 19 So.3d at 618; La.R.S. 14:27. Specific intent “is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act.” La.R.S. 14:10(1); State v. Daniels, 236 La. 998, 109 So.2d 896, 899 (1959). Further, “[bjecause specific intent is a state of mind, it need not be proven as a fact, but may be inferred from the circumstances and actions of the accused.” State v. Alsay, 11-562, p. 8 (La.App. 5 Cir. 12/13/11), 81 So.3d 145, 149, writ denied, 12-1041 (La.9/21/12), 98 So.3d 335; see also State v. Tyler, 11-1256 (La.App. 3 Cir. 5/2/12), 93 So.3d 670.

Viewing the evidence in the light most favorable to the prosecution, the State adequately proved that Defendant possessed the specific intent to kill. Although the initial conflict arose between Defendant and Green, specific intent to kill may be inferred from Defendant’s actions prior to, during, and after the shooting. Following the dispute with Green, Defendant purchased an AR-15 and waited down the street a short distance away from the scene for Green to arrive. Similarly, Kenneth testified that he saw Defendant with a gun when Defendant approached him and tapped his head with the barrel of the gun. Kenneth feared for his life. The fact that Myecha, Kenneth, and Kevin were not seriously injured does not negate specific intent to kill. Defendant showed no regard for the victims as he riddled Green’s vehicle with bullets, mortally wounding Green and grazing Kevin.

In State v. Thomas, 10-269, p. 7 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210, 1215, writ denied, 10-2527 (La.4/1/11), 60 So.3d 1248, cert. denied, - U.S. -, 132 S.Ct. 196, 181 L.Ed.2d 102 (2011), this court held that evidence showing that a defendant fired a gun at someone multiple times is sufficient to support a conviction for attempted 17second degree murder. We noted that “[i]t is well-settled that the act of pointing a gun at a person and firing the gun is an indication of the intent to kill that person.” Id.

Likewise, in this case, the simple act of pointing a gun at Green’s vehicle and firing numerous shots at the occupants in the vehicle shows specific intent to kill. A rational trier of fact could, therefore, conclude that Defendant had specific intent to kill Myecha Leonard, Kevin Carter, and Kenneth Leonard. Accordingly, this assignment of error is without merit.

Hearing Concerning Voluntariness of Defendant’s Statement

Defendant argues that the trial court committed reversible error by failing to hold a hearing outside the jury’s presence as to the voluntariness of an inculpatory statement made by Defendant to police. Defendant contends that this led to the erroneous admission of an incriminating statement.

“Before an inculpatory statement can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.” State v. Thomason, 353 So.2d 235, 238 (La.1977); La.R.S. 15:451; La.Code Crim.P. art. 703(C). The State argues that Defendant’s statement was exculpatory, not inculpatory, because he stated he had not been in Ferriday, Louisiana at any time on the day of the shooting. The State asserts that a hearing outside the presence of the jury was, therefore, not required. In support of its contention, the State refers to this court’s decision in State v. Laws, 95-593 (La.App. 3 Cir. 12/6/95), 666 So.2d 1118, writ denied, 96-89 (La.9/13/96), 679 So.2d 102. In Laws, the defendant argued that that the trial court improperly allowed the State to introduce his statement without first conducting a hearing pursuant to La.R.S. 15:451 to determine if his statement was given freely and voluntarily. This court found no merit in the defendant’s argument and reasoned that the defendant’s statement was not a |sconfession because “he neither admitted guilt nor admitted facts that showed the existence of criminal intent.” Id. at 1122.

After Defendant was arrested, he signed an advice of rights form, which was introduced into evidence at trial over his objection. In his statement to police, Defendant stated that he was in Clayton, Louisiana on the day of the offense and was not in Ferriday. Defendant also stated that it was good that Green was dead and that he deserved to die. Although Defendant did not admit to his guilt in his statement, the State argued and the trial court agreed that the statement showed Defendant’s intent to kill. As such, pursuant to Laws, Defendant’s statement is governed by the rules applicable to confessions. 666 So.2d 1118. Accordingly, the State had the burden of affirmatively showing that Defendant’s statement was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451.

The State showed, by the waiver of rights form Defendant signed and by testimonial evidence, Defendant’s statement was not made as a result of threats, force, violence, offers, promises, or inducements. Defendant did not suggest or offer any proof that his statement was not free and voluntary during the bench conferences at trial or on appeal. As such, the alleged error was harmless in light of the evidence presented at trial of Defendant’s guilt. State v. Tart, 93-772 (La.2/9/96), 672 So.2d 116, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996). Accordingly, this assignment of error is without merit.

Joint Trial

Defendant asserts that the trial court erred in allowing the State to try Defendant and co-defendant, Daniel Butler, together when they were charged by separate indictments. Louisiana Code of Criminal Procedure Article 706 governs consolidated trials and states that “[u]pon motion of a defendant ... the court may ]j>order two or more indictments consolidated for trial if the offenses and the defendants ... could have been joined in a single indictment.” Defendant also contends that to consolidate the cases for trial, the State should have charged both defendants in the same charging instrument, meeting the joinder requirements of La.Code Crim.P. art. 494, which states that “[t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Finally, Defendant maintains he was prejudiced by the consolidation when Daniel Butler pled guilty after the trial had begun.

The State asserts that it follows the same procedure of charging individual defendants on separate indictments in all cases, because the case tracking software utilized by the Clerk of Court in the Seventh Judicial District Court does not recognize or permit multiple defendants appearing on the same indictment or permit the filing of multiple counts of different crimes. The software will permit and track multiple counts of the same crime on a single indictment but not multiple defendants. The State, therefore, was allowed to charge the defendants in separate indictments.

The State also contends that notice was given to Defendant six months before trial began, during which time the Defendant should have filed a writ application seeking a reversal of the trial court’s ruling. Additionally, the State refers to State v. Crochet, 05-123 (La.6/23/06), 931 So.2d 1083, wherein the supreme court’s per curiam decision addressed whether prejudice resulted from the consolidation of cases. Factors to consider include “whether the jury would be confused by the various charges; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature |inof the charges, the charging of several crimes would make the jury hostile.” Id. at 1087 (citing State v. Washington, 386 So.2d 1368, 1371 (La.1980)).

When the State announced its intent to consolidate the cases of Defendant and Daniel Butler for trial, it maintained that a consolidated trial would be more efficient, and that there was no conflict because the defendants were not pointing the finger at each other and neither had given a statement. Additionally, the State asserted that the same facts and circumstances were involved in both cases. Over Defendant’s objection, the trial court ordered that Defendant and Daniel Butler’s cases be tried together.

After trial had commenced, Daniel Butler entered a plea of guilty to obstruction of justice in exchange for the dismissal of his other charges. The following day, Defendant’s counsel moved for a mistrial, citing prejudice to Defendant as a result of his co-defendant’s guilty plea. Defense counsel argued that the guilty plea, after testimony had been given in front of the jury, would force counsel to change his defense in the middle of trial, limiting his effectiveness. The State asserted that it was appropriate procedure to dismiss charges against a co-defendant up until the jury returns the verdict and that the co-defendant had the right to plead guilty at any time. The State further asserted that it had not yet presented its case against Butler and that Defendant would not be prejudiced or limited in his defense. The court denied Defendant’s motion for mistrial. The day after Butler pleaded guilty, the trial judge informed the jury that Butler and his attorney would no longer be present in the courtroom for reasons that the court could not divulge. The court instructed the jury not to draw any conclusions or inferences from Butler’s absence and to concern themselves only with Defendant’s guilt or innocence.

Although Defendant correctly asserts that neither defendant moved to have the cases consolidated as required, the cases still met the joinder requirements. La.Code Crim.P. art. 706; La.Code Crim.P. art. 494. Both defendants were alleged to |1Thave participated in the same act or series of acts constituting the offense; thus, they could have been properly charged in a single charging instrument.

Similarly, although the dismissal of co-defendant Daniel Butler after trial had commenced may have caused the jury some confusion, the trial court limited any prejudice to Defendant by instructing the jury not to draw any conclusions or inferences from the absence of the co-defendant. The trial court also stressed that the charges against Defendant were the only charges before the jury for its consideration. The remaining factors set forth in Washington are not relevant to the instant case. Under these circumstances, the consolidation of the cases does not appear to have unfairly prejudiced Defendant; thus, this assignment of error is without merit.

Consecutive Sentences

Defendant argues that the trial court erred in ordering consecutive sentences, instead of concurrent ones, when the offenses arose from the same act or transaction. Defendant asserts also that the trial court erroneously failed to articulate any reasons for imposing consecutive sentences.

Concurrent sentences are preferred when offenses arise out of a common scheme or plan. A trial court is given the discretion, however, to impose consecutive sentences in such cases. Louisiana Code of Criminal Procedure Article 883 states that “[i]f the defendant is convicted of two or more offenses ... constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.” The imposition of consecutive sentences, however, requires particular justification beyond the standard sentencing guidelines, justification which must be articulated by the trial court at sentencing. State v. Compton, 11-68 (La.App. 3 Cir. 6/1/11), 66 So.3d 619, writ denied, 11-1362 (La.12/2/11), 76 So.3d 1177. “The factors to consider when imposing consecutive sentences include defendant’s criminal record, the severity or |12violent nature of the offenses, or the danger the defendant poses to the public.” State v. Wallace, 11-1258, p. 14 (La.App. 3 Cir. 5/30/12), 92 So.3d 592, 602.

After imposing the mandatory life sentence for Defendant’s second degree murder conviction, the trial court noted Defendant’s prior criminal history and other aggravating factors and concluded that Defendant was a violent individual. The court also found that there is an undue risk that Defendant would commit another crime if given a suspended sentence or probation, and that he is in need of correctional treatment best achieved by commitment to an institution. Similarly, the court found that a lesser sentence would deprecate the seriousness of the crime. The court noted Defendant’s lack of remorse as another reason for consecutive sentences.

Consequently, the trial court articulated particular justification beyond the standard sentencing guidelines when it imposed consecutive sentences. Considering the circumstances surrounding the offenses, the violent nature of the offenses, and Defendant’s lack of remorse, the trial court’s imposition of consecutive sentences is supported by the record. Accordingly, this assignment of error is without merit.

IV.

CONCLUSION

For the reasons above, we affirm Defendant’s convictions and sentences.

AFFIRMED.

      . Docket number 12-844, which is also before this court.


author: CONERY, Judge.

text:
    Martha Diana ROUGEOU v. ST. FRANCIS CABRINI HOSPITAL.
    No. WCA 12-854.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      Daniel Elmo Broussard, Jr., Broussard, Bolton, Halcomb, Alexandria, LA, for Plaintiff Appellee, Martha Diana Rougeou.
    John Chris Turnage, Mayer, Smith & Roberts, Shreveport, LA, for Defendant Appellant, St. Francis Cabrini Hospital.
    Court composed of JOHN D. SAUNDERS, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   CONERY, Judge.

Ifln this workers’ compensation case, Defendant, St. Francis Cabrini Hospital, (Cabrini) appeals a judgment of the workers’ compensation judge (WCJ) in favor of its employee, Martha Diana Rougeou (Rougeou). For the following reasons, we affirm and award Rougeou additional attorney fees.

FACTS AND PROCEDURAL HISTORY

Rougeou filed a LDOL-WC-1008 Disputed Claim for Compensation Form (1008) against Cabrini on August 8, 2011, seeking to receive the cost of a surgical procedure recommended by her neurosurgeon, Dr. Aril Nanda. Rougeou claimed the need for surgery resulted from an incident which occurred on February 8, 2011, while she was in the course and scope of her employment as a Registered Nurse with Cabrini at Central Louisiana Imaging Center. Rougeou was assisting Dr. William Long with a medical procedure on a patient who was undergoing a wrist arthrogram. The procedure required the patient to sit on a low stool with her wrist extended over the x-ray table. Dr. Long began to insert a needle into the patient’s arm in order to inject dye required for an MRI when the patient fainted and began falling from the stool. Rougeou and Dr. Long caught the patient and prevented her from hitting the floor and sustaining injury. At the time of the incident, Rougeou was wearing a twelve-pound lead-lined apron extending from her shoulders to her knees. Rougeou began to experience symptoms of pain in her neck and shoulders beginning that evening and becoming worse the next day.

The incident was reported and an initial report was made of the incident. Three days later, on February 11, 2011, Rougeou was referred by the Cabrini health nurse to her employer’s doctor, Dr. Gordon Webb at Louisiana Occupational Health Services. Dr. Webb diagnosed Rougeou with neck and shoulder strain. He prescribed Ibuprofen and Valium, restricted her from wearing |2the lead apron and transferring patients at work, and referred her to physical therapy three times a week.

Rougeou’s symptoms persisted, and, after a month of conservative treatment, Dr. Webb ordered an MRI of the cervical spine. Rougeou had previously undergone an MRI in 2007 (2007 MRI) in connection with an anterior cervical discectomy at C5-6. Upon review of the 2011 MRI, Dr. Webb observed that the 2011 MRI was significantly worse than the 2007 MRI at C6-7, and referred Rougeou to Dr. M. Lawrence Drerup, a neurosurgeon. Roug-eou, however, preferred to return to Dr. Nanda, the neurosurgeon who treated her in 2007.

On May 24, 2011, Dr. Nanda advised Rougeou to continue her physical therapy and also to undergo a series of epidural steroid injections (ESIs). He told Roug-eou that if her symptoms did not abate, he would recommend a surgical intervention. Dr. Nanda’s recommended conservative treatment of physical therapy and ESI injections provided only temporary relief. Rougeou sought the recommended surgery by Dr. Nanda, but the request for surgery was denied by Cabrini’s third-party administrator, FARA.

In her 1008, Rougeou sought penalties and attorney fees in addition to the recommended surgical procedure by Dr. Nanda. Rougeou, however, had not missed any work due to the February 8, 2011 incident, and thus did not seek past indemnity benefits from Cabrini.

Cabrini answered and asserted the defense of fraud, pursuant to La.R.S. 23:1208. Cabrini claimed that Rougeou committed fraud during an April 1, 2011 telephone interview conducted by Joanne Cannatella of FARA on behalf of Cabrini. Specifically, Cabrini claimed Rougeou was not truthful in her responses to questions relating to Rougeou’s history of her cervical spine problems and her previous cervical discectomy at C5-6 some twelve to thirteen years earlier. It [ ^should be noted that the telephone interview, on April 1, 2011, came well after Dr. Webb’s treatment, which began on February 11, 2011 and continued for a month thereafter.

In connection with the line of questioning involving Rougeou’s cervical spine, Cannatella asked Rougeou whether she had “any other problems” with her neck “since that time.” Rougeou replied, “No, not really.” This appears to be the sole basis of the so-called “fraud” alleged by Cabrini. In its Answer, Cabrini further claimed the need for the recommended surgery by Dr. Nanda was not causally related to the February 8, 2011 incident, but was a pre-existing condition, which was not aggravated by the on-the-job incident.

The matter was tried on February 29, 2012, and the parties were given an opportunity to file post-trial briefs with citations to the pages in the record supporting their positions. Additionally, counsel submitted Joint Exhibit 1 consisting of a timeline of Rougeou’s medical history dating back to 1997.

On April 30, 2012, the WCJ issued oral reasons for judgment. Counsel for Roug-eou was requested to prepare a written judgment in accordance with the ruling of the WCJ in favor of Rougeou. The Judgment was signed on May 9, 2012, and ordered: 1) Cabrini to authorize the medical treatment recommended by Dr. Nanda and to pay all past accident-related medical expenses that are outstanding and unpaid at this time; 2) Cabrini to pay indemnity benefits for any period of time Rougeou is required to miss her employment if, and when, surgery should take place; 3) Costs in the total amount of $2,232.00 for deposition fees and medical records; 4) $4,000.00 in penalties for Cabrini’s arbitrary and capricious failure to authorize the medical treatment of Roug-eou as recommended by her treating neurosurgeon, Dr. Nanda; and 5) $7,500.00 in attorney fees for prosecution of her claim, together with judicial interest on all amounts from date of judgment until paid.

UCabrini now appeals, asserting the WCJ committed manifest error in: 1) denying Cabrini’s defense of fraud pursuant to La.R.S. 23:1208; or 2), in the alternative, finding Rougeou was entitled to medical benefits and/or treatment with Dr. Nanda by meeting her burden of proof that she was injured or aggravated a previous medical condition in the on-the-job accident; and 3) finding that Cabrini was arbitrary and capricious in its denial of the recommended surgery, in awarding penalties and attorney fees, and in determining the amount of penalties and attorney fees.

DISCUSSION

“Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one.” Foster v. Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citation omitted).

In Green v. National Oilwell Varco, 10-1041, pp. 3-4 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 358, we explained:

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

Louisiana Revised Statutes 12:1208-Fraud

“The determination by a WCJ as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact, and is, therefore subject to the manifest error standard of review.” Jim Walter Homes, Inc. v. Guilbeau, 05-1478, p. 5 (La.App. 3 Cir. 6/21/06), 934 So.2d 239, 243.

Louisiana Revised Statutes 23:1208 provides, in pertinent part:

(A) It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
(E) Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

In order for there to be a forfeiture of workers’ compensation benefits under La.R.S. 23:1208, the employer must prove (1) the claimant made a false statement or representation, (2) that the statement was willfully made, and (3) the statement was made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7; Babineaux v. Moss Motors, 06-749 (La.App. 3 Cir. 12/6/06), 944 So.2d 882. However, the mere making of inadvertent or inconsequential false statements will not result in forfeiture. KLLM, Inc. v. Reed, 00-295 (La.App. 3 Cir. 10/11/00), 771 So.2d 728.

False Statement or Representation

The basis of Cabrini’s claim that Roug-eou committed fraud pursuant to La.R.S. 23:1208 is the April 1, 2011 recorded statement taken by Joanne Cannatella, the insurance adjuster for FARA, Cabrini’s third-party administrator. The claim of fraud primarily focuses on the statements made by Rougeou in connection with her previous back problems, more specifically her cervical spine.

The WCJ thoroughly reviewed the transcript of the April 1, 2011 recorded statement of Rougeou and found as follows in his oral reasons:

|fiA review of that statement indicates that the adjuster, at the time she took the statement, was well aware that Ms. Rougeou had had the cervical surgery some 12 or 13 years ago and also was aware that she had had the lumbar disc surgery in the past. It was discussed with the injured worker, as well as with the insurance adjuster, and we got to a point in the recorded statement when the adjuster asked, “Okay. Wait. Let me stay with the neck. Were you able to go back — were you able to go back to work; go full duty?” Rougeou’s response was, “Yes,” but this next question was, “okay. Have you had any other problems with your neck since that time?” Rougeou’s response was, “No. Not really,” and from that, the affiliates contend that Ms. Rougeou has violated Revised Statute 23:1208.

The WCJ also reviewed Joint Exhibit 1, prepared by Rougeou’s counsel and submitted as Joint Exhibit 1, at the close of trial. The document contained a medical synopsis of all of Rougeou’s medical care dating from August 18, 1997 to May 24, 2011 — the date of her first appointment with Dr. Nanda. In his review of Joint Exhibit 1 and the reports of her treating physicians, the WCJ focused on the claim by the employer Cabrini that Rougeou “had misrepresented her past medical care ... by saying, ‘No. Not really.’ to problems with regard to her neck.”

The WCJ subsequently determined that each of the misrepresentations Cabrini claimed were made to the insurance adjuster by Rougeou had previously been disclosed and noted in the records of Dr. Webb, the employer’s physician, and, thus, were available to the insurance adjuster prior to the April 1, 2011 interview. Certainly it would have been possible for the adjuster to have specifically questioned Rougeou with respect to her prescriptions and the use of the medication Flexeril, as well as her previous pre-incident MRIs and her ESIs.

The record is clear that, in her appointment with Dr. Webb on February 11, 2011, Rougeou disclosed that she was taking Flexeril prior to her accident. In Dr. Webb’s report of March 14, 2011, he notes Rougeou reported she had undergone pre-incident MRIs, the most important of which was the 2007 MRI. In fact, a comparison of the 2007 MRI with the 2011 study resulted in Dr. Webb’s referral of Rougeou to a neurosurgeon, ultimately Dr. Nanda.

17Further Dr. Webb’s report of March 14, 2011 contains a discussion of cervical injections (ESIs) performed by Dr. Stephen Rice. In his deposition, Dr. Rice could not recall giving Rougeou any cervical injections in the interim and medical records reflect the last cervical injection given by Dr. Rice to Rougeou was in 2003.

After reviewing the testimony and evidence presented at trial, we find no manifest error in the WCJ’s determination that no false statement or representation was willfully made by Rougeou in an attempt to obtain workers’ compensation benefits for the surgery recommended by her treating physician, Dr. Nanda, as that determination necessarily required the WCJ to assess the credibility of the witness. We conclude that, when viewed in its entirety, the evidence supports Rougeou’s explanation of her “No. Not Really.” response to the questions concerning her cervical spine and pre-incident medical condition in the April 1, 2011 interview. Rougeou’s responses were accepted as credible by the WCJ, and, thus, Cabrini’s first assignment of error lacks merit.

Causal Connection

“To establish that a claimant is entitled to workers’ compensation benefits, claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability.” Censar v. Crispy Cajun Rest., 94-30, p. 3 (La.App. 3 Cir. 10/5/94), 643 So.2d 471, 473, writ denied, 94-2736 (La.1/6/95), 648 So.2d 931 (citing Kennedy v. Sec. Indus. Ins. Co., 623 So.2d 174 (La.App. 1 Cir.), writ denied, 629 So.2d 389 (La.1993)).

Louisiana Revised Statutes 23:1021(1) defines an “accident,” for workers’ compensation purposes, as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, |sand directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

A “workers’ compensation judge’s determinations on whether the employee’s testimony was credible and on whether the employee met his burden of proof are factual findings not to be disturbed on appeal absent manifest error.” Jack v. Prairie Cajun Seafood Wholesale, 07-102, pp. 4-5 (La.App. 3 Cir. 10/3/07), 967 So.2d 552, 555-56, writ denied, 07-2388 (La.2/15/08), 976 So.2d 178 (citations omitted). In Corbello v. Coastal Chem. Co., Inc., 02-1241, p. 3 (La.App. 3 Cir. 3/5/03), 839 So.2d 1152, 1154, writ denied, 03-994 (La.5/30/03), 845 So.2d 1051 (quoting Mitchell v. Brown Builders, Inc., 35,022, p. 8 (La.App. 2 Cir. 8/22/01), 793 So.2d 508, 515, writ denied, 01-2649 (La.12/14/01), 804 So.2d 636), this court stated:

It is a well-settled legal principle that the factual findings in workers’ compensation cases are entitled to great weight. Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. The trier of fact’s factual determinations shall not be disturbed in the absence of a showing of manifest error. When the trier of fact’s findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence.

It is undisputed that the accident which occurred on February 8, 2011 was in the course and scope of Rougeou’s employment with Cabrini and was witnessed by Dr. Long. Rougeou was injured while wearing a twelve-pound lead-lined apron extending from around her neck to her knees, while attempting to assist Dr. Long in preventing a patient from falling to the floor during a medical procedure. It is also undisputed that, even with her restrictions, Rougeou has not missed work as a result of the incident and is therefore not claiming past indemnity benefits.

Cabrini urges that the WCJ committed manifest error in finding that the February 8, 2011 incident was causally related to Rougeou’s need for surgery on C6-7, which Cabrini argues was instead the result of a pre-existing condition, | ^degenerative in nature, and, thus, not related to the incident by either cause or exacerbation of her previous medical condition.

It is undisputed in this case that the 2007 MRI and the 2011 MRI, requested by Dr. Webb, the employer’s doctor, showed significant changes. A proper referral was made to a neurosurgeon, and Rougeou properly elected to be treated by her former treating physician, Dr. Nanda. As stated by the WCJ in his ruling, Dr. Nan-da’s reports indicate his review of the 2011 MRI, compared with the 2007 MRI, revealed “multilevel disease, worse at C5-6, C6-7. C5-6 is where she had the previous surgery, and to a lesser degree at C4-5. C6-7 is the worst; with predominate disc osteophyte complex and right-level recess stenosis.”

The WCJ noted the following: Rougeou underwent an MRI in 2007 and had a suggestion of surgery from Dr. Nanda. Rougeou was, however, reluctant to undergo another surgical procedure, having undergone an anterior cervical discectomy at C5-6 in 1997 performed by Dr. Russ Greer. Dr. Nanda suggested, “Why don’t you try some physical therapy and other low-conservative modality before we jump off into surgery.” The discussion of surgery for C6-7 between Rougeou and Dr. Nanda occurred in 2007 or 2008. The record reflects that Rougeou had no other neck or back-related medical care, except a prescription for Flexeril. There is no evidence in the record of any physical therapy or injections until after the work-related incident of February 8, 2011.

In the case of Rivers v. Bo Ezernack Hauling Contractor, Inc., 09-991 (La.App. 3 Cir. 3/10/10), 32 So.3d 1091, writ denied, 10-807 (La.6/4/10), 38 So.3d 309, cited by the WCJ in his opinion, the claimant had significant pre-existing back problems and a pre-existing surgery before suffering an on-the-job incident when a log truck rolled over. The employer claimed that Rivers did not sustain any additional injury in the rollover accident, refused to pay for the recommended surgery, and terminated Rivers’ compensation benefits. This court 1 inaffirmed the WCJ’s ruling in favor of Rivers requiring the employer to pay for the recommended surgery and pay all compensation benefits owed, along with penalties and attorney’s fees. Id.

Here, the WCJ compared the similarities and differences between Rivers and Rougeou in his ruling. Both Rivers and Rougeou had not had any previous problems since their prior surgeries, just intermittent pain. He further noted that Rivers’ past medical history reflected many more follow-up appointments since his previous surgery, including in the last nine months just before the subject accident, a much shorter time than any pre-accident treatment received by Rougeou.

The WCJ found that the deposition of Dr. Nanda supported Rougeou’s position that the incident on February 8, 2011, was causally connected to the occurrence of Rougeou’s complaints and need for surgery. The WCJ also relied on the results of the previous 2007 MRI and the new 2011 MRI, which showed significant changes especially at C6-7. Thus the WCJ correctly determined that Rougeou’s ongoing problems were causally related to the work-related incident of February 8, 2011.

Aggravation of Pre-Existing Condition

In Abshire v. Dravo, 896 So.2d 521, 524-25 (La.App. 3 Cir.1981), this court found in favor of the claimant, Abshire, after he suffered aggravation of a pre-existing injury and stated as follows:

Plaintiff also was suffering a tolerable degree of pain until he was struck by the falling piece of salt and that pain then increased to an intolerable level. The proper standard for determining whether an accident is the legal cause of the disability is simply whether the accident changed the plaintiffs condition so as to render him disabled and unfit for his former employment. Allen v. Milk Haulers, Inc., 278 So.2d 871 (La.App. 1st Cir.1973). Plaintiff has met this standard.

Cabrini argues the testimony of Dr. Nanda, i.e., that a “possible” connection existed, does not support the preponderance of the evidence standard required for Rougeou to connect the incident of February 8, 2011, to her ongoing problems. |nThe WCJ found the testimony of Roug-eou was credible. Her testimony reflects she suffered the same neck problems before the February 8, 2011 incident. However, the “intensity” of her pain after the incident was “much worse” than before the February 8, 2011 incident.

The WCJ’s determination that Rougeou was credible, coupled with Dr. Nanda’s deposition testimony, meets the required preponderance of the evidence standard. Causation is not necessarily a medical conclusion, and the ultimate determination as to whether a plaintiff has proved the causation of his/her disability is made by the courts and not by medical experts. Bush v. Avoyelles Progress Action Comm., 07-685 (La.App 3 Cir. 10/31/07), 970 So.2d 63; Martin v. H.B. Zachry Co., 424 So.2d 1002 (La.1982). Rougeou’s claim for the recommended surgery should have been granted by Cabrini.

Under Louisiana law, the employer takes the employee as he finds him, and it is well-settled that the aggravation of a pre-existing condition is fully compen-sable. Abshire, 396 So.2d 521. After reviewing the testimony and evidence presented at trial, we find no manifest error in the WCJ’s determination that the incident of February 8, 2011, constitutes an aggravation of Rougeou’s pre-existing condition, based on her credible testimony that the “intensity” of her pain had increased and grown “much worse,” thus necessitating the recommended surgery. Cabrini’s second assignment of error also lacks merit.

Penalties and Attorney Fees

Louisiana Revised Statutes 23:1201(F) provides that a claimant is entitled to an award of penalties and attorney fees for her employer’s failure to pay compensation or medical benefits unless the WCJ finds that the employer reasonably controverted the claim or that nonpayment was the result of conditions not under control of the employer.

11⅞“Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.” Williams v. Rush Masonr'y, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46 (citation omitted). An appellate court reviews the WCJ’s decision to award penalties and attorney fees using the manifest error/clearly wrong standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

In this case, the WCJ assessed Cabrini with a $4,000.00 penalty for Cabrini’s termination of Rougeou’s medical care and the denial of the recommended surgery by Dr. Nanda. Cabrini was also assessed with $7,500.00 in attorney fees.

Cabrini contends that because it reasonably controverted Rougeou’s claim, this court should reverse the WCJ’s imposition of penalties and attorney fees. It submits that an employee should not be entitled to an award of penalties and attorney fees simply because she prevails on the underlying issue of compensability.

Cabrini further contends the April 1, 2011 recorded statement coupled with Rougeou’s previous medical condition, which included a recommendation in 2007 for the same surgery sought by Rougeou in this case, supported its claim of fraud. Therefore, Cabrini argues, it was not arbitrary and capricious in terminating Roug-eou’s medical benefits and denial of the recommended surgery. Cabrini further urges, notwithstanding the fraud claim, this case presented a close factual question based on causation, and an award of penalties and attorney fees is not warranted under the circumstances.

Rougeou counters that penalties and attorney fees were properly awarded because Cabrini’s denial of her claim was unreasonable. Rougeou contends she |, one ver had any pre-incident neck problems from 2007 to 2011 substantial enough to require her to miss work or seek surgical intervention prior to the February 8, 2011 incident. Thus, the need for the required surgery after the failure of conservative treatment was proven. Cabrini’s denial of the recommended surgery based on the alleged misrepresentations in the April 1, 2011 recorded statement was without merit, and the record supports the WCJ’s imposition of penalties and attorney fees.

Despite Rougeou’s past medical history, the changes between the 2007 MRI and the 2011 MRI clearly showed her cervical spine was much worse after the accident. The record reflects that Cabrini focused on and expected to prevail on the claim of fraud and misrepresentation by Rougeou based on her April 1, 2011 recorded statement. However, the WCJ found Rougeou to be credible and was impressed with her work ethic, her willingness to pursue conservative treatment pri- or to seeking surgery, and her attempt to continue to work despite the discomfort. We are convinced that the WCJ did not manifestly err in finding that Cabrini failed to reasonably controvert Rougeou’s claim for the recommended surgery and other medical benefits. Further, Cabrini offered no independent medical expert. Cabrini’s third assignment of error also lacks merit.

Answer to Appeal

In her answer to appeal, Rougeou requests additional attorney fees for having to answer and defend this appeal. In Nash v. Aecom Technical Corp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a] workers compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal.” We award Rougeou additional attorney fees in the amount of $5, 000.00 for the work done on appeal.

| UDECREE

For the forgoing reasons, we affirm. We further award Martha Diana Rougeou additional attorney fees of $5,000.00 for having to answer and defend this appeal. St. Francis Cabrini Hospital is cast with all costs of this appeal.

AFFIRMED. ADDITIONAL ATTORNEY FEES AWARDED TO APPEL-LEE.

      . On September 19, 2011, the WCJ granted a joint motion to dismiss FARA, Cabrini's third-party administrator, without prejudice.


author: AMY, Judge.

text:
    STATE of Louisiana v. Wayne Kevin JONES. State of Louisiana v. Wayne K. Jones, Jr.
    Nos. 12-864, 12-863.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Wayne K. Jones, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

_[jA jury convicted the defendant of attempted second degree murder and aggravated assault with a firearm. A panel of this court affirmed the defendant’s conviction for attempted second degree murder. However, the matter was remanded for re-sentencing on the defendant’s ultimate status as an habitual offender given a finding that the original sentence was indeterminate. On remand, the trial court adjudicated the defendant a third felony offender on both the attempted second degree murder conviction and the aggravated assault with a firearm conviction. The trial court imposed concurrent life sentences for each adjudication. The defendant appeals the sentences as excessive. For the following reasons, we affirm.

Factual and Procedural Background

The State provided evidence indicating that an altercation involving the defendant, Wayne Jones, and his former girlfriend arose over possession of a dog the defendant claimed was his property. The State asserted that the defendant blocked the vehicle of his former girlfriend with that of his own and, after exiting his own vehicle with a gun, fired numerous shots into her vehicle. The victim was shot multiple times, including one shot which lodged in her chest.

In January 2010, a jury convicted the defendant of one count of attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1, and one count of aggravated assault with a firearm, a violation of La.R.S. 14:37.4, in relation to these events. Thereafter, and acting upon the State’s habitual offender bill, the trial court found the defendant to be a third felony offender. It ordered the defendant to serve life imprisonment without benefit of probation, parole, or suspension of sentence.

The defendant filed separate appeals from the convictions and from the habitual offender proceedings. The matters were consolidated on appeal for briefing purposes. _[gln the original appeal, a panel of this court found no merit in the defendant’s sole assignment of error regarding the sufficiency of the evidence offered in support of the attempted second degree murder conviction. See State v. Jones, 11-399 (La.App. 3 Cir. 11/2/11), 76 So.3d 1274. However, on error patent review, the court determined that the trial court imposed an indeterminate sentence on the habitual offender proceedings. Id. It noted that the State charged the defendant as a habitual offender and sought to enhance both convictions, but that the language employed by the trial court in doing so lacked indication that the defendant was sentenced on both counts. Id. Accordingly, the court vacated the habitual offender sentence originally imposed and remanded the matter to the trial court for resentencing. Id. It instructed the trial court to clarify which count or counts it was enhancing and to impose separate sentences for each. Id.

Pursuant to the appellate order, the trial court resentenced the defendant in May 2012. The transcript of the hearing indicates that the trial court found the defendant to be a third habitual offender on each underlying charge and sentenced him to life imprisonment on each. The trial court ordered that the sentences are to run concurrently.

The defendant appeals and, in his sole assignment of error, the defendant asserts that: “The sentences of life in prison on each count, even though ordered to be served concurrently, are excessive under the facts and circumstances of this case.”

^Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. The record contains no such errors.

Excessiveness of the Sentences

In a single assignment of error, the defendant asserts that the two concurrent life sentences imposed are excessive. As noted by the State, the defendant in this case only lodged an objection to the sentence insofar as, after sentencing, defense counsel stated: “Your Honor, we object to the Court’s ruling.” The defendant did not file or otherwise make a motion to reconsider his sentences as required by La.Code Crim.P. art. 881.1. See State v. Barling, 00-1241 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035 (wherein a panel of this court concluded that the failure to file a written motion to reconsider sentence or to orally urge a specific ground for reconsideration at sentencing precludes the defendant from objecting to the sentence imposed pursuant to La.Code Crim.P. art. 881.1), writ denied, 01-838 (La.2/1/02), 808 So.2d 331. In a case such as the present one, where a defendant’s verbal objection did not set forth specific grounds to support the claim of excessive sentence, the court is relegated to a bare claim of exces-siveness on review. Id. See also State v. A.B.M., 10-648 (La.App. 3 Cir. 12/8/10), 52 So.3d 1021.

On remand, the trial court imposed consecutive life sentences after it adjudged the defendant a third habitual offender on two counts. This sentence is within the |4permissible sentencing guidelines of La. R.S. 15:529.1(A), which provides, in pertinent part:

(3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; or
(b) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

As can be seen by reference to La.R.S. 15:529.1(A)(S)(b), the defendant’s life sentences are, in fact, mandatory.

In State v. Lindsey, 99-3302, pp. 4-5 (La.10/17/00), 770 So.2d 339, 342-43, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001), the supreme court explained as follows with regard to the mandatory nature of the habitual offender law:

The Legislature enacted the Habitual Offender Law pursuant to its sole authority under Article 3, § I of the Louisiana Constitution to define conduct as criminal and to provide penalties for such conduct. State v. Johnson, [97-1906 (La.3/4/98), 709 So.2d 672], 675; State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Taylor, 479 So.2d 339, 341 (La.1985). This Court has repeatedly held that the statute is constitutional and therefore, the minimum sentences the statute imposes upon multiple offenders are presumed to be constitutional, and should be accorded great deference by the judiciary. State v. Johnson, supra; State v. Dorthey, supra. However, courts have the power to declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution even though it falls within the statutory limits provided by the Legislature. State v. Johnson, supra at 676; State v. Sepulvado, 367 So.2d 762, 767 (La.1979).
In State v. Dorthey, we held that this power extends to the minimum sentences mandated by the Habitual Offender Law and that the trial court must reduce a defendant’s sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the Habitual Offender Law “makes no measurable, contribution to acceptable goals of punishment” or is nothing more than “the purposeful imposition of pain and suffering” and “is grossly out of proportion to the severity of the crime.” State v. Dorthey, supra at 1280-1281.
Thereafter, in a series of writ grants, we acted to curtail the district court’s use of Dorthey in cases in which it appeared that the courts were simply substituting their judgment of what constituted an appropriate penalty for that of the Legislature. See, e.g., State v. Handy, 96-2505 (La.1/5/97), 686 So.2d 36; State v. Bastian, 96-2453 (La.12/13/96), 683 So.2d 1220; State v. Randleston, 96-1646 (La.10/4/96), 681 So.2d 936; State v. Wilson, 96-1600 (La.10/4/96), 680 So.2d 1169; State v. Johnson, 96-1263 (La.6/28/96), 676 So.2d 552; State v. Gordon, 96-0427 (La.5/10/96), 672 So.2d 669; State v. Kelly, 95-2335 (La.2/2/96), 666 So.2d 1082; State v. Lombard, 95-2107 (La.11/27/95), 662 So.2d 1039.
This effort culminated in Johnson, where we set out guidelines for when and under what circumstances courts should exercise their discretion under Dorthey to declare excessive a minimum sentence mandated by the Habitual Offender Law. We held that “[a] court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut [the] presumption of constitutionality” and emphasized that “departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” State v. Johnson, supra at 676, 677. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.
Id. (Citing State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 529 (Plotkin, J., concurring)).
In addition, we held that the trial judge must keep in mind the goals of the statute, which are to deter and punish recidivism, and, we [(-Instructed that the sentencing court’s role is not to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders, but rather to determine whether the particular defendant before it has proven that the minimum sentence is so excessive in his case that it violates Louisiana’s constitution. Id. at 677.
Finally, we held that if a trial judge finds clear and convincing evidence which justifies a downward departure, he is not free to sentence the defendant to whatever sentence he feels is appropriate under the circumstances, but must instead sentence the defendant to the longest sentence which is not constitutionally excessive. Id.

At the May 2012 hearing, the trial court adopted its reasoning from the original sentencing, wherein it set forth the defendant’s extensive criminal history, stating:

I made note of the criminal history of Mr. Jones starting in 1995, and by the way Mr. Jones is 32 years old, born January 4,1978.
On March 16, 1995, possession of CDS — he was arrested. I mean he’s got such a long history of arrests. Possession of CDS Schedule II with intent to distribute. A month later possession of marijuana, distribution of drug paraphernalia. A couple weeks later he was arrested for possession CDS II with intent to distribute.
In 1996 unauthorized use of a motor vehicle, simple criminal damage to property, resisting an officer, flight from an officer, no driver’s license.
In 1995 distribution of cocaine in a drug-free zone. By the way I’ll say from April 29, 1995, possession of CDS II with intent to distribute. He received five years. That’s one of the bases for the habitual offender bill, five years D.O.C., suspended. He was put on five years probation and his probation was revoked subsequently.
The distribution of cocaine in a drug-free zone from 1998. It says that on March the 20th of the year 2000 he received 12 years in the Department of Corrections. That’s not even a part of this habitual offender bill, or is it? Yeah, maybe it is. Yeah, it is, it is. I’m sorry. Twelve years Department of Corrections.
Again in 1998 some other drug charges he was arrested for. Again in '98 an arrest for drug charges and again in '98 flight from an officer and some other matters. Again in 1998 distribution of cocaine, four counts, and he got 12 years on that and it was run concurrently with the other charges he was arrested for 1998.
In 1999 aggravated kidnapping, possession of a firearm by a convicted felon, and stalking. Three days later, March 24, 1999, aggravated burglary, attempted aggravated kidnapping, resisting an officer, possession of a firearm by a convicted felon. He pled guilty to |7the aggravated burglary, received eight years in the Department of Corrections and he pled to possession of a firearm by a convicted felon, I guess both counts of that, and he got ten years D.O.C. The other charges were dismissed.
Again in 1999 he had a simple escape, simple criminal damage, unauthorized entry of an inhabited dwelling.
Then in 2008 he was arrested for the charges that he was convicted on back in January, which is attempted second degree murder, aggravated assault with a firearm, possession of a weapon by convicted felon, and the possession of a weapon by a convicted felon was taken up or referred to federal court, or it was referred to federal court by the State.
And as I was looking at some of these factual scenarios that were in the pre-sentence report with regard to the other crimes of violence it’s just a disturbing pattern. Mr. Jones, I don’t know where his anger and his jealousy and his violent nature comes from, but it’s very fortunate at this time that Mr. Jones hasn’t killed anybody and if Mr. Jones didn’t go to prison or if he ever gets out of prison the likelihood that he’s going to kill somebody given his history of drug abuse, drug dealing, I mean he’s a drug dealer based on his convictions and his crimes of violence involving his jealousy when it comes to other — his ex-girlfriends, which is what happened back in 1999 involving a gun and then involving this case where he actually shot. He’s lucky he didn’t kill his girlfriend and/or her sister. He shot his ex-girlfriend twice over a dog, or actually as we found out later it wasn’t over a dog, it was because he saw her with somebody else, and his own brother testified that he went home to get his gun and he was going to come back and try to kill his ex-girlfriend and the new boyfriend or the new guy she was with, but the police were there when they got there so they didn’t stop.
Mr. Jones is somebody unfortunately or fortunately, you know, that the habitual offender law was tailor-made for, somebody that’s too violent and too dangerous to live in our society among, you know, law-abiding citizens and he’s never learned how to obey the law. He’s had guns when he wasn’t supposed to, he’s had drugs and sold drugs without any concern for anybody but himself. Everything he’s been arrested for here is evidence that he has no concern for anybody but Wayne Jones and he even says in here, his sister came in to testify, she had cancer if you recall that, and I think she was getting treatment for it and she came in and testified and he’s saying that she’s making that up. She tried to save him from himself, Mr. Ca-sanave, and he wouldn’t listen. She pleaded with him to put the gun down and he wouldn’t listen and she came in here and told the truth, and then the other people, all the witnesses who know him well told what happened and he continues to lie about it and say it wasn’t me, I wasn’t involved with that.
So there’s no other choice in this case, even if life wasn’t the only option that I had as far as the law is concerned, even if I thought justice | ^necessitated it then maybe I would consider deviating downward, but I think justice actually requires this sentence and if life was not an option then I would have to based it [sic] on Mr. Jones’ history. Just to protect society from him I’d have to give him whatever the maximum would be under the law and so having said that to the extent its necessary with this sentence that I have to I would say that I have considered the aggravating and mitigating factors as set forth in Article 894.1 of the Code of Criminal Procedure and I find that there is nothing to mitigate in favor of Mr. Jones whatsoever and the maximum sentence is what’s required, which in this case there is no minimum or maximum, it’s life in prison and so I do find based on all the evidence presented in the testimony that Mr. Jones is a third felony offender for purposes of the habitual offender law and I will sentence him as I said to serve the remainder of his natural life in prison.

In his brief to this court, the defendant does not demonstrate in what way the trial court was required to find that a downward departure of the mandatory life sentences was warranted in light of Lindsey, 770 So.2d 339 and the underlying supreme court jurisprudence. Although he asserts that he was relatively youthful at the time of the shooting and that the incidents arose from romantic difficulties and from the potential loss of possession of a pet, we conclude that these suggested factors fall far short of the standard discussed in Lindsey. Accordingly, we find no abuse of the trial court’s discretion in imposing the mandatory life sentences required by the sentencing dictates of La. R.S. 15:529.1(A)(3)(b).

This assignment lacks merit.

DECREE

For the foregoing reasons, the defendant’s sentences are affirmed.

AFFIRMED.

      . The defendant’s proceeding involves two appellate records lodged with this court. The appeal in docket number 12-864 involves the habitual offender adjudication, whereas the companion case, State of Louisiana v. Wayne K. Jones, Jr., 12-863 (La.App. 3 Cir. 2/6/13), 107 So.3d 861, involves the appeal from the defendant’s convictions. Upon the defendant’s motion, the matters were consolidated for briefing purposes. As reflected above by the defendant’s sole assignment of error, the defendant does not challenge his underlying convictions which were previously affirmed by a panel of this court. See State v. Jones, 76 So.3d 1274. Thus, the defendant’s appeal in docket number 12-863 is rendered moot.

      . Article 881.1(E) provides that:
      Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

      . The State described the underlying felonies as follows:
      We had a third offender bill, the predicate offenses being possession of cocaine with intent to distribute in 1995 in the 14th Judicial District Court, and aggravated burglary, two counts of possession of a firearm by a convicted felon, distribution of CDS Schedule II, and that's in a drug-free zone, distribution of CDS Schedule II without that enhancement, and simple escape. That finding was found on March of 2000.
      And so those are the predicate felonies that we have for our habitual offender bill in these proceedings.