author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Isaac A. ANSAH.
    No. 2013-KA-1236.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Kevin V. Boshea, Attorney At Law, Me-tairie, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

hThe defendant, Isaac Ansah, was convicted of possession of marijuana with the intent to distribute and sentenced to five years at hard labor. For the following reasons, we affirm Mr. Ansah’s conviction and sentence.

PROCEEDINGS BELOW

Mr. Ansah was charged by bill of information on December 9, 2009, with possession of marijuana with the intent to distribute, a violation of Louisiana Revised Statute 40:966. On December 14, 2009, Mr. Ansah pled not guilty to the charge and filed motions to suppress evidence and statements, which were denied. Following a bench trial on March 3, 2010, Mr. Ansah was found guilty as charged. He was sentenced to five years at hard labor with four years being suspended and two years active probation. This appeal follows.

FACTS

Officer Raymond Delvalle testified at trial that he was assigned to the Amtrak Police Department on October 10, 2009. His duties included screening passengers by checking identifications and boarding passes. On that day, he ^noticed Mr. Ansah, who appeared to be concerned by the officer’s presence, waiting to board a train. When Mr. Ansah handed his ticket to him, Officer Delvalle noticed that Mr. Ansah’s hands were shaking. Officer Del-valle testified that he noticed that the initials on the name tag on Mr. Ansah’s bag did not match the name on Mr. Ansah’s ticket. He asked Mr. Ansah to step out of the line and continued boarding other passengers. Once all of the passengers had boarded the train, Officer Delvalle asked Mr. Ansah whether he had any weapons or dangerous materials on him. Mr. Ansah responded that he did not. After asking for and receiving Mr. Ansah’s consent, Officer Delvalle searched the bag. Officer Delvalle discovered a brick-shaped object known to him to be a method used to traffic controlled dangerous substances. Officer Delvalle placed Mr. Ansah under arrest, advised him of his Miranda rights, and transported him to a secure office within the Amtrak station. Mr. Ansah told Officer Delvalle that he was not aware that the marijuana was in the bag and that the marijuana did not belong to him. A secondary search of the bag by border patrol agents revealed additional “bricks” of marijuana. According to Officer Del-valle, Mr. Ansah was carrying approximately seven pounds of marijuana. Officer Delvalle stated that throughout the entire questioning, Mr. Ansah continued to insist that the narcotics did not belong to him.

Officer Harry Stovall testified at trial that he was employed in the Narcotics Unit of the New Orleans Police Department on October 10, 2009. Although he did not participate in the questioning of Mr. Ansah, he was present in the office during Rthe questioning. He heard Mr. Ansah explain that he was carrying the marijuana for someone else. Officer Sto-vall did not recall Mr. Ansah saying that the narcotics did not belong to him.

Mr. Ansah testified that at the time of his arrest he was living in Arlington, Virginia. He testified that he was visiting his girlfriend and children in Houston, Texas, and had lost his airplane ticket. Needing a way to get back to Virginia, he purchased a train ticket that departed from Houston to Virginia, with a stop in New Orleans. Mr. Ansah said that on the morning of his arrest, he was dizzy from taking body building supplements, and he needed to eat. He purchased food from a Subway restaurant in the terminal and then stood in line to board the train. Mr. Ansah testified that, at the request of the officers, he open the bag and saw them remove a “brick” of marijuana. Mr. Ansah said that he was taken to another location, at which time more marijuana was found in the bag he was carrying. He testified that his girlfriend’s neighbor, whom he had been friends with for four years, asked him to return the bag containing the narcotics to the neighbor’s ex-girlfriend who also lived in Virginia.

On cross-examination, Mr. Ansah testified that he was not traveling with his own bag because he had clothes at his girlfriend’s home in Houston. He stated that he believed and trusted that the neighbor was sending clothes to his ex-girlfriend, and upon arrest, he offered to provide the officers with the name and address of the neighbor.

RERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENTS OF ERROR

Mr. Ansah asserts the following assignments of error: that the district court erred in denying his motion to suppress the evidence; that the district court erred in denying his motion to suppress his statements; and that the verdict is contrary to the law and evidence.

DISCUSSION

I. Sufficiency of Evidence

We first consider Mr. Ansah’s assertion that the verdict is contrary to the law and evidence. “When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.” State v. Hearold, 603 So.2d 731, 734 (La. 1992). In this assignment of error, Mr. Ansah asserts that there was no evidence at trial to establish that he had the intent to distribute the marijuana that was found in the bag he was carrying. Specifically, Mr. Ansah argues that the actual weight of the marijuana recovered was unknown, and the State did not offer any evidence that the actual weight of the marijuana at issue would be inconsistent with personal use. We disagree.

We review the sufficiency of the evidence under the Jackson v. Virginia standard “which dictates that to affirm a conviction ‘the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, |swas sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.’” State v. Vessel, 2012-1543, p. 2 (La.App. 4 Cir. 1/10/14), 131 So.3d 523, 525.

In support of his argument that the evidence was insufficient to support his conviction, Mr. Ansah relies on State v. House, 325 So.2d 222 (La.1975). In House, the Court set aside Mr. House’s conviction and sentence of possession of marijuana with the intent to distribute. Mr. House was found with one gram of marijuana consisting mainly of stems and seeds, one marijuana cigarette in his pocket, and twenty marijuana cigarettes in his boot.

The Court concluded that there are “two elements in the crime of possession of marijuana with the intent to distribute. Obviously, one element is possession and the other is the intent to distribute. One element of the crime cannot, without more, be said to supply ‘some evidence’ of the other required element of the offense.” Id. at 226. The Court cited certain factors that are relevant in determining whether the intent to distribute existed, including: “(1) that the defendant ever distributed or attempted to distribute any marijuana; (2) that the marijuana was in a form usually associated with marijuana possessed for distribution to others; (3) that the amount was such as to create a presumption of intent to distribute; (4) of expert or other testimony that such an amount as found on the defendant is inconsistent with personal use only; and (5) of any paraphernalia, such as baggies or scales, evidencing an intent to distribute.” Id. at 225.

|fiWhile Mr. Ansah is correct in relying on the five elements cited in State v. House, the issue must be viewed in the light most favorable to the prosecution. We find that a rational trier of fact could have concluded that Mr. Ansah possessed the marijuana with the intent to distribute. Intent to distribute may be established based solely on the amount found only when the quantity is so large that no other inference is possible. Hearold, 603 So.2d at 735-736. “This court has consistently held intent to distribute can be inferred from the amount of narcotics possessed ... It is well settled that the weight of the evidence is within the fact finder’s discretion.” State v. Ash, 97-2061 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, 668.

The evidence introduced at trial established that the marijuana was found in Mr. Ansah’s possession, that it was packaged in a way consistent with narcotics trafficking, and that the total weight was estimated to be approximately seven pounds. We find that the trial court’s determination that Mr. Ansah had the intent to distribute the marijuana was not unreasonable in view of this evidence.

II. Motions to Suppress the Evidence and the Statements

In this assignment of error, Mr. Ansah asserts that the trial court erred in denying his motions to suppress the evidence and the statements he made to officers. Mr. Ansah argues that his detention was illegal because Officer Delvalle had no reasonable suspicion or probable cause to stop him, and therefore, the evidence and statements were obtained illegally and should have been suppressed. We disagree.

|7A trial court’s ruling on a motion to suppress is reviewed under the abuse of discretion standard. State v. Wilson, 2012-0920, p. 5 (La.App. 4 Cir. 6/12/13), 119 So.3d 843, 847. The issue here is whether the interaction between Mr. Ansah and Officer Delvalle was an “investigatory stop.” The Supreme Court discussed interactions between police officers and citizens in Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991), stating:

Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free “to disregard the police and go about his business.” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968): “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”

It is well settled that the police do not need probable cause to arrest or reasonable suspicion for an investigatory stop every time they approach a citizen in a public place. State v. Britton, 1993-1990, p. 2 (La.1/27/94), 633 So.2d 1208, 1209 (citmg State v. Belton, 441 So.2d 1195 (La.1983); State v. Williams, 421 So.2d 874 (La.1982); State v. Neyrey, 383 So.2d 1222 (La.1980); State v. Shy, 373 So.2d 145 (La.1979)).

In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the defendant sought to suppress narcotics found in her bag by federal agents at an airport. The federal agents stopped Ms. Mendenhall because her Isbehavior fit that of a drug courier. After learning that she was traveling under an alias, Ms. Mendenhall was asked to accompany the agents to another area of the airport and later consented to the search of her bag, which revealed heroin. The Court concluded that Ms. Mendenhall had not been illegally seized, reasoning that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. In that case:

[t]he agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent’s identification and ticket. Such conduct without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official.

Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877.

More recently, in State v. Spells, 2010-1024 (La.App. 4 Cir. 1/19/11), 56 So.3d 1073, this court held that a similar interaction between police officers and Mr. Spells was not an investigatory stop. In Spells, the defendant was stopped by NOPD detectives who were checking passengers arriving at the Amtrak station in order to determine if they were in possession of illegal or dangerous substances. Officers noticed Mr. Spells halt his approach to the terminal and watch the search of another passenger. Mr. Spells appeared concerned by the officers’ presence. A detective identified himself to Mr. Spells and asked Mr. Spells for his | ¡¡identification and ticket stub. As he handed over the ticket, the officer noticed that Mr. Spells’ hand was shaking. The officer explained that they were conducting “voluntary, consensual” searches of passengers. Mr. Spells admitted that he was carrying a small amount of marijuana in his pocket. The officer retrieved the marijuana from Mr. Spells’ pocket, placed him under arrest, and Mirandized him. He was taken to an office in the terminal, where he admitted to having more marijuana in his bag. The trial court denied Mr. Spells’ motion to suppress the evidence. This court affirmed the trial court’s denial of the motion to suppress, finding that the initial interaction was not an investigatory stop.

The instant case is similar to Spells. The interaction between Officer Delvalle and Mr. Ansah was not an investigatory stop. Officer Delvalle’s job that day was to check tickets and identifications of passengers boarding the trains. When he noticed that Mr. Ansah appeared to be nervous and that the name on his bag was not the same as the name on his ticket, Officer Delvalle asked Mr. Ansah to step out of line. This was not a seizure of Mr. An-sah’s person. The officer then asked for Mr. Ansah’s consent to search his bag. Mr. Ansah consented. Once the “brick” of marijuana was discovered, Officer Delvalle had probable cause to arrest Mr. Ansah.

Because the detention and arrest of Mr. Ansah were not illegal, we find that the trial court did not err in denying Mr. Ansah’s motions to suppress the evidence and the statements.

^CONCLUSION

For the foregoing reasons, we affirm Mr. Ansah’s conviction and sentence.

AFFIRMED.

      . A field test conducted by Officer Delvalle confirmed that the substance inside the brick-shaped object was marijuana.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jody BUTLER.
    No. 2011-KA-0985.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 23, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, for Appellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| j Because this court initially reversed the defendant’s conviction, discussion pertaining to the trial court sentencing errors was pretermitted. State v. Butler, 11-0985 (La.App. 4 Cir. 10/3/12), 101 So.3d 121. Upon reversal and remand, we now consider (as instructed by the Louisiana Supreme Court) the errors in the defendant’s sentence. See State v. Butler, 12-2359 (La.5/17/13), 117 So.3d 87, cert denied, Butler v. Louisiana, — U.S. —, 134 S.Ct. 1879, 188 L.Ed.2d 918 (2014).

The defendant was charged by bill of information with two counts: (1) possession of marijuana, third offense; and (2) possession with intent to distribute cocaine. He was convicted of possession of marijuana, third offense and possession of cocaine and sentenced to a four-year term of imprisonment on each count. The State subsequently filed a multiple offender bill listing both convictions. At the multiple bill hearing, after hearing testimony and argument related to the multiple offender adjudication, the trial court found the defendant to be a fourth offender. There was then an off-the-record discussion. When the proceedings resumed on the record, the trial court stated that, because the defendant had two prior convictions for crimes of violence and had been convicted of the instant offenses of possession of marijuana, third offense, and possession of |Pcocaine, “which is a drug violation punishable by 10 years or more,” it was sentencing the defendant to life imprisonment, without the benefit of probation, parole, or suspension of sentence, having found him to be a fourth offender. The defense counsel objected to the court’s finding that the defendant was a fourth offender “as well as [to] the fact that the State is multiple billing him on both the marijuana third and the possession of cocaine, rather than just on one count.” The trial court replied that it was the court’s “understanding that the gentleman was being billed as to the possession of marijuana third offense only.” The assistant district attorney affirmed that the trial court was correct. In response to the defense counsel’s indication that she was under the impression the State was attempting to bill the defendant on both counts, the trial court summarized its finding as to the multiple offender adjudication:

He has been — he has been found guilty, as I said, of a fourth time felony offender based on the possession of marijuana third conviction, as well as the previous convictions that I have gone through more than two times, but I’ll say it again, the pursesnatching, [sic] the case 340-462, 381-032; the first out of Section “F”, the second one out of Section “C”, Case number 366-583 out of Section “F”. 366-583 is a simple robbery. 381-032 is forgery. 340-462 is pur-sesnatching [sic] and simple robbery.

From this exchange and the trial court’s summation, it appears that the State, after having filed the multiple bill listing both convictions, changed course to have the habitual offender adjudication apply only to the conviction for possession of marijuana, third offense, perhaps because a life sentence is mandatory under La.Rev.Stat. 15:529.1(A)(4)(b) for the marijuana offense, but not the cocaine offense.

|sThe record is problematic as to whether the habitual offender adjudication is to one or both convictions because, although the transcript indicates that only a single life sentence was imposed pursuant to La. Rev.Stat. 15:529.1, the trial court vacated both four-year sentences and the docket master does not reflect that the life sentence was as to the marijuana count only. Moreover, there is no minute entry or commitment form in the record reflecting the sentence imposed as to count one, the marijuana charge. Thus, to the extent that the trial court vacated both sentences and imposed only one sentence, it is clear error. In light of the statement by the prosecutor that the State was withdrawing the multiple bill as to the cocaine charge, it appears that the multiple offender adjudication pertains only to the marijuana conviction. Accordingly, this matter is remanded to the trial court with instructions to impose the original four-year sentence (vacated in error) on count two and prepare an appropriate minute entry reflecting the sentences imposed on both counts.

REMANDED.

      . La.Rev.Stat. 15:529.1(A)(4)(b) provides in pertinent part that if the fourth felony and two of the prior felonies are crimes of violence or a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any combination thereof, the person shall be imprisoned for life without the benefit of probation, parole, or suspension of sentence. Third offense marijuana possession is punishable by imprisonment, with or without hard labor, for up to twenty years, see La.Rev.Stat. 40:966(E)(3), and therefore falls within this provision. In contrast, simple possession of cocaine is only punishable for a maximum term of five years. La.Rev.Stat. 40:967(C)(2). Therefore, the sentencing range applicable to the defendant on the cocaine charge, as a fourth offender, would be twenty years to life. See La.Rev.Stat. 15:529.1(A)(4)(a).

      . Despite attempts to supplement the record, no minute entry of the multiple offender proceedings has been obtained.


author: HANS J. LILJEBERG, Judge.

text:
    Veronica CORMIER v. Jeffrey CUSHENBERRY and his Insurance Company, Gramercy Insurance Company.
    No. 14-CA-70.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2014.

      Fred R. Defrancesch, Tomy J. Acosta, Attorneys at Law, LaPlace, Louisiana, James A. Harry, Attorney at Law, Springfield, Louisiana, for plaintiff/appellant.
    Scott A. Cannon, Shannon M. Liver-more, Attorneys at Law, Slidell, Louisiana, for defendant/appellee.
    Panel composed of Judges STEPHEN J. WINDHORST, HANS J. LILJEBERG, and ELLEN SHIRER KOVACH, Pro Tempore.
   HANS J. LILJEBERG, Judge.

l2PIaintiff appeals the trial court’s judgment rendered after a bench trial, claiming that the awards for general and special damages are insufficient and should be increased. She also appeals the trial court’s judgment denying her Motion for Partial New Trial, in which she argued that the damage awards are too low. For the following reasons, we affirm both judgments of the trial court.

FACTS AND PROCEDURAL HISTORY

On October 22, 2011, plaintiff, Veronica Cormier, was involved in an automobile accident in a Wal-Mart parking lot (“the first accident”). After this accident, Ms. Cormier began treatment with a chiropractor, Dr. Robert Dale, for neck and back pain. On January 11, 2012, after leaving Dr. Dale’s office following a scheduled appointment, Ms. Cormier was involved in a second automobile accident (“the second accident”), which is the subject of the instant 1 sIitigation. According to Ms. Cormier, she was driving westbound in the left lane on U.S. Highway 61 (Airline Highway) approaching Ormond Boulevard in St. John the Baptist Parish. At this time, defendant, Jeffrey Cushenberry, exited a gas station and was entering the highway to proceed eastbound when he collided with the front of Ms. Cormier’s vehicle. Ms. Cormier contends that she suffered neck and back injuries, as well as other injuries, as a result of the second accident. After the second accident, Ms. Cormier continued her treatment with Dr. Dale from January 13, 2012, through January 23, 2013.

On October 5, 2012, Ms. Cormier filed this lawsuit against Mr. Cushenberry and his insurer, Gramercy Insurance Company, seeking damages sustained as a result of the second accident. Subsequently, Citadel Insurance Company (“Citadel”) was substituted for Gramercy Insurance Company as the proper party defendant in this matter.

This case came for trial before the trial judge on July 23, 2013. At trial, Mr. Cushenberry was dismissed from the lawsuit because he was never served, and the trial proceeded against Citadel. Dr. Dale and Ms. Cormier testified at trial and several exhibits were admitted, including Ms. Cormier’s medical records from Dr. Dale’s office, records from Chabert Medical Center, the insurance policy, a damage estimate for Ms. Cormier’s vehicle in the amount of $947.83, excerpts from Ms. Cor-mier’s deposition, and photos of Ms. Cor-mier’s vehicle.

At trial, Dr. Dale was accepted as an expert in chiropractic medicine. He testified that he treated Ms. Cormier for neck and back pain after the first accident. Dr. Dale’s records show that Ms. Cormier was treated 27 times between the first and second accidents, which occurred less than three months apart. According to Dr. Dale’s records, Ms. Cormier was not treated for back pain during her last six visits before the second accident, so Dr. Dale believes that Ms. Cormier’s back |4pain had resolved before the second accident occurred. Dr. Dale testified that as a result of the second accident, he treated Ms. Cormier from January 13, 2012, through January 23, 2013, primarily for pain in the cervical and upper thoracic spinal areas.

On cross-examination, Dr. Dale admitted that when the second accident occurred, Ms. Cormier was still symptomatic from the first accident in the neck and shoulder areas. He also testified that even if the second accident had not occurred, he would have continued to treat Ms. Cormier for her symptoms from the first accident. He also stated that he recommended a cervical MRI in November of 2011 due to Ms. Cormier’s neck pain, but this MRI was never performed.

Veronica Cormier testified that the second accident occurred on January 11, 2012, after she left Dr. Dale’s office. She stated that the impact was “pretty hard” and that she primarily injured her neck in this accident. She testified that she treated with Dr. Dale after the first accident for neck, lower back, and shoulder pain, and her pain was getting better until the second accident occurred. Ms. Cormier testified that her neck pain after the second accident was a nine on a scale of one to ten. She also stated at trial that she still has neck pain every day at a level of eight out of ten, but she stopped treating with Dr. Dale one year after the second accident because she “can’t spend [her] whole life going to a chiropractor.”

On cross-examination, Ms. Cormier testified that Dr. Dale was still treating her for neck and back pain caused by-the first accident when the second accident occurred. She stated that just before the second accident, her pain decreased to a level of three out of ten, but her neck pain increased back to a level of nine out of ten after the second accident. Ms. Cormier went to Chabert Medical Center on March 1, 2012, for ear pain unrelated to either accident. On the history form she completed at this visit, she indicated that she had neck pain at a level of three out of ten, which is the same pain level she had before the second accident. At trial, Ms. Cormier testified that her neck pain has not gone below a level of eight out of ten since the second accident, but she indicated that it was at a level of three out | Bof ten on the Chabert form because she did not want to be sent to an orthopedic doctor. Ms. Cormier stated that she did not lie on the Chabert form; rather, she just decreased the amount of pain that she was having. Ms. Cormier also admitted that she decreased the number of visits to Dr. Dale’s office in the summer of 2012 to one time per month because she thought her pain was getting better, but her number of visits increased back to three times per week in September of 2012.

With regard to her back pain, Ms. Cor-mier testified that after the second accident, she only felt “a little twinge of pain.” She stated that her back pain had generally resolved before the second accident, and it came back after the second accident but it was not severe. Ms. Cormier admitted that she testified in her deposition that she had no back pain after the second accident.

At trial, plaintiffs counsel argued that all of Ms. Cormier’s treatment with Dr. Dale after the second accident, from January 13, 2012, through January 23, 2013, was necessitated by the second accident. Thus, she claimed that Citadel was liable for all of her medical expenses during this 12-month period, as well as general damages for her pain and suffering. The medical expenses incurred from the date of the second accident through January 23, 2013, total over $5,000.00.

In response, counsel for Citadel argued that at the time of the second accident, Ms. Cormier was still being treated by Dr. Dale for injuries sustained in the first accident. Counsel for Citadel argued that the second accident aggravated Ms. Cormier’s pre-existing injuries, but within two months of the second accident, her pain was back to the level it was before the second accident.

|frAt the conclusion of trial, the trial judge took the matter under advisement. Thereafter, on July 26, 2013, the trial judge rendered a judgment in favor of Ms. Cormier, awarding her medical expenses in the amount of $1,670.00 and general damages in the amount of $2,250.00. In her reasons for judgment, the trial judge noted that Ms. Cormier was still being treated for neck and back pain associated with the first accident when the second accident occurred. She further noted that Ms. Cormier rated her neck and back pain just after the first accident to be at a level of nine out of ten, but her neck pain decreased to three out of ten just before the second accident. Although Ms. Cormier testified at trial that her neck pain did not decrease below a level of eight out of ten after the second accident, the trial judge noted that Ms. Cormier rated her neck pain at a level of three out of ten less than two months after the second accident, which was the same pain level Ms. Cormier had assigned for her neck pain just before the second accident. Thus, the trial judge explained that the award of damages was limited to an aggravation of her prior injuries from the date of the second accident until March 2, 2012.

On August 5, 2013, Ms. Cormier filed a Motion for Partial New Trial, asserting that the awards of general and special damages were abusively low and contrary to the evidence presented at trial. The trial judge denied this motion on September 20, 2013. Ms. Cormier appeals the trial court’s judgments of July 26, 2013, and September 20, 2013.

LAW AND DISCUSSION

On appeal, Ms. Cormier sets forth the following five assignments of error:

1) The trial court erred by using non-medical testimony to disprove causation of damages;
2) The trial court erred by not applying a presumption that the second accident caused her injuries;
^3) The trial court erred by not accepting uncontroverted evidence as proof of the cause of plaintiffs injuries;
4) The trial court erred by accepting the medical records of Chabert Medical Center; and
5) The trial court erred in its damage award.

In her first and third assignments of error, Ms. Cormier asserts that the trial court erred in using non-medical testimony to disprove causation of damages and in not accepting uncontroverted medical evidence as proof of the cause of Ms. Cormier’s injuries. She contends that medical testimony is required to prove the causal relationship between tortious conduct and subsequent injuries, and that Dr. Dale’s testimony was the only medical testimony presented at trial. Thus, Ms. Cormier argues that Dr. Dale’s testimony that Ms. Cormier’s treatment from January 13, 2012, through January 23, 2013, was caused by the second accident is uncontro-verted and should have been accepted by the trial judge.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Hall v. Folger Coffee Co., 03-1734, p. 11 (La.4/14/04), 874 So.2d 90, 99. In order to reverse the factfinder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the trial court’s finding and that the finding is clearly wrong. Stobart v. State through Dept. of Transp. And Dev., 617 So.2d 880, 882 (La.1993). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.; Detraz v. Lee, 05-1263, p. 7 (La.1/17/07), 950 So.2d 557, 561.

Causation of injuries is a fact specific inquiry; great deference must be given to the trier of fact on the question of factual causation. Hill v. Abraham, 00-327 (La.App. 5 Cir. 9/26/00), 770 So.2d 824, 828. In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the accident and Rany alleged injuries. Merrells v. State Farm Mut. Auto. Ins. Co., 33,404, p. 4 (La.App. 2 Cir. 6/21/00), 764 So.2d 1182, 1185. The test for determining the causal relationship between an accident and a subsequent injury is whether plaintiff proved through medical or lay testimony that it is more probable than not that the subsequent injury was caused by the accident in question. Kliebert v. Breaud, 13-655, p. 8 (La.App. 5 Cir. 1/31/14), 134 So.3d 23, 28. Expert testimony is required when the conclusion regarding medical causation is one that is not within common knowledge. Id.; Cannet v. Franklynn Pest Control Co., Inc., 08-56, p. 10 (La.App. 5 Cir. 4/29/08), 985 So.2d 270, 276.

In a multiple accident situation, a tortfeasor is only liable for the direct and proximate results of his wrongful act, including aggravation of any pre-existing injuries. Tompkins v. Savoie, 08-808, p. 12 (La.App. 5 Cir. 3/24/09), 10 So.3d 294, 301. Although a tortfeasor takes his victim as he finds him, he cannot be liable for injuries not attributable to his wrongful act. Id. Uncontroverted evidence should be taken as true to establish a fact for which it is offered absent any circumstances in the record casting suspicion as to the reliability of this evidence. Boxie v. Smith-Ruffin, 07-264, p. 7 (La.App. 5 Cir. 2/6/08), 979 So.2d 539, 545.

In the present case, while Dr. Dale’s was the only medical testimony presented, a review of Dr. Dale’s entire testimony reveals that he did not definitively state that all of Ms. Cormier’s injuries from the first accident had resolved prior to the second accident and that all of her treatment from January 13, 2012, through January 23, 2013 was solely caused by the second accident. To the contrary, Dr. Dale testified that Ms. Cormier was still symptomatic from the first accident in the neck and shoulder areas when the second accident occurred. He further admitted that Ms. Cormier would have continued her treatment even if the second accident had not occurred.

IflThe record shows that Dr. Dale treated Ms. Cormier 27 times between the first accident in October of 2011 and the second accident on January 11, 2012, including the morning before the second accident. Ms. Cormier reported that her pain was at a level of three out of ten just before the second accident, and she reported this same level of pain less than two months later at Chabert Medical Center, though she testified at trial that the information she provided to Chabert was inaccurate.

The trial judge was permitted to consider all of the evidence presented in order to determine the injuries, or the extent of aggravation of injuries, caused by the second accident. In her reasons for judgment, the trial judge found that the second accident aggravated Ms. Cormier’s prior injuries and that her damages should be limited to her treatment from the date of the second accident through March 2, 2012, when she reported that her pain was at the same level as it was just before the second accident. Based on the record before us, we find no manifest error in the trial judge’s finding. Accordingly, we find that Ms. Cormier’s first and third assignments of error are without merit.

In her second assignment of error, Ms. Cormier asserts that the trial court erred by not applying a presumption that the second accident caused her injuries. The Housley presumption, as set forth in Housley v. Cerise, 579 So.2d 973 (La.1991), is that a plaintiff’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided that the medical evidence shows there to be a reasonable possibility of a causal connection between the accident and the disabling condition. Ms. Cormier claims that the Housley presumption should be invoked because Dr. Dale testified that her back problems had resolved before the | Tnsecond accident, but he began treating her for back problems again after the second accident.

Our review of the record reveals that the Housley presumption does not apply in this case. Ms. Cormier testified that she was treated by Dr. Dale for back pain up until the time of the second accident, though it was getting better. Although Ms. Cormier testified at trial that her back pain was aggravated by the second accident, she admitted that when she was questioned about back pain during her deposition, she denied having back pain after the second accident. At trial, she testified that the aggravation of her back pain after the second accident was just “a little twinge of pain” and was not severe. Although Dr. Dale testified that Ms. Cormier’s back pain had resolved prior to the second accident, he admitted that he did not have a direct recollection of her complaints during that time and was relying on his records indicating that she did not have back treatment during the last six visits prior to the second accident.

We find no error in the trial court’s failure to apply the Housley presumption in this matter. Accordingly, this assignment of error is without merit.

In her fourth assignment of error, Ms. Cormier argues that the trial court erred by accepting the medical records of Cha-bert Medical Center, because these records are irrelevant since they pertain to treatment unrelated to the accident at issue. She also claims that these records are inadmissible hearsay.

At trial, Ms. Cormier objected to the admission of the Chabert Medical Center records on the ground of relevance. At no time did she object to these records on the ground of hearsay.

A party must make a timely objection to evidence which the party considers to be inadmissible and must state the ground for the objection. La. C.E. art. 103; La.C.C.P. art. 1635; Tartar v. Hymes, 94-758, p. 10 (La.App. 5 Cir. 5/30/95), 656 So.2d 756, 760, writ denied, 95-1640 (La.10/6/95), 661 So.2d 475. On appeal, a reviewing court will not consider a ground for objection different from the ground raised at trial. Id.; McCann v. McCann, 09-1341, p. 8 (La.App. 3 Cir. 3/10/10), 33 So.3d 389, 395.

Because Ms. Cormier did not object at trial to the admission of the Cha-bert records on the grounds of hearsay, we find that she is precluded from urging this argument on appeal.

With regard to Ms. Cormier’s objection to the Chabert records on the ground of relevance, we find no error in the trial court’s denial of her objection. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. C.E. art. 401. The records from Cha-bert Medical Center, in which Ms. Cormier indicated on March 1, 2012, that her neck pain was at a level of three out of ten, are relevant to a determination of the injuries caused by the second accident or the duration and severity of the aggravation of injuries caused by the second accident. This assignment of error is without merit.

Finally, in her fifth assignment of error, Ms. Cormier asserts that the trial court erred in its damage award and asks this Court to award medical expenses and general damages from the second accident through January 23, 2013. However, we have found that the trial court did not err in finding that Ms. Cormier should be awarded damages only from the date of the second accident through March 2, 2012, when she reported that her neck pain was at the same level as before the second accident. Accordingly, we find no error in the trial court’s award of medical expenses in the amount of $1,670.00, as the evidence reflects that this amount of medical expenses was incurred from January 13, 2012 through March 2, |122012. We further find no abuse of the trial court’s discretion in awarding general damages in the amount of $2,250.00.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment of July 26, 2013, awarding $3,920.00 in damages to Ms. Cor-mier, as well as its judgment of September 20, 2013, denying Ms. Cormier’s Motion for Partial New Trial.

AFFIRMED.


text:
    STATE of Louisiana v. Jamar J. STOCKMAN.
    No. 14-KA-149.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 2014.

      Joel T. Chaisson, II, District Attorney, Parish of St. Charles, Louis G. Authement, Assistant District Attorney, Hahnville, Louisiana, for The State of Louisiana.
    Sherry A. Watters, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges STEPHEN J. WINDHORST, HANS J. LILJEBERG, and ELLEN SHIRER KOVACH, Pro Tempore.
   HANS J. LILJEBERG, Judge.

| ^Defendant, Jamar J. Stockman, appeals his convictions and sentences for violations of La. R.S. 40:967(C). For the following reasons, we affirm.

Procedural History

On November 19, 2012, the St. Charles Parish District Attorney filed a bill of information charging defendant with one count of possession of hydrocodone and one count of possession of cocaine, violations of La. R.S. 40:967(C). Defendant pleaded not guilty at arraignment.

Prior to trial, defendant filed several pre-trial motions including a motion to quash and a motion to suppress statement and evidence which the trial court denied. Defendant additionally filed a motion in limine and supplemental motion in limine seeking to exclude reference to any alleged outstanding felony warrants |sfor his arrest, including the officers’ prior dealings with defendant. The trial court granted defendant’s motion thereby prohibiting the officers from explaining why they were looking for defendant other than to say that they had an arrest warrant for him.

Defendant proceeded to trial on September 10, 2013, before a six-person jury, who returned a verdict of guilty as charged as to both counts. On October 2, 2013, the trial court denied defendant’s motions for post-verdict judgment of acquittal and for new trial. On November 19, 2013, the trial court sentenced defendant to five years imprisonment with the Department of Corrections, on each count, to be served consecutively. On that same date, the State filed a multiple offender bill of information alleging defendant to be a fourth or subsequent felony offender. On December 2, 2013, defendant filed a motion for appeal, which the trial court granted on December 12, 2013. Defendant’s appeal follows.

Facts

On October 19, 2012, Deputy Robert Calabresi and Detective Michael Wright of the St. Charles Parish Sheriff’s Office drove to a residence located on Paul Fred-ericks Street in Luling, Louisiana, in an attempt to locate defendant pursuant to an active arrest warrant. As they approached the location, they observed defendant by the open driver’s side door of a white Cadillac that was backed into the driveway. The officers drove slightly past the driveway, at which time they observed defendant make a “throwing motion” towards the interior of the vehicle and attempt to “duck” behind the driver’s side door. According to Detective Wright, there was a female sitting in the driver’s side seat when they ^passed by; however, when defendant kneeled down by the door and made “throwing movements” inside the vehicle, she “looked like she wanted to get away from him,” so she quickly exited the vehicle, threw her hands up, and walked away.

The officers then exited their unmarked unit, approached defendant, identified themselves as police officers, and placed defendant in handcuffs. While handcuffing defendant and advising him that he was under arrest, defendant spontaneously stated “I don’t have any drugs.” Deputy Calabresi looked into the vehicle but did not see any obvious contraband in plain view. Additionally, Detective Wright testified that while handcuffing defendant, he glanced into the vehicle and saw a “crumpled up” cigarette pack on the driver’s side floorboard. The officers notified “case agent,” Detective Danny April of the St. Charles Parish Sheriffs Office, of the arrest and held defendant until his arrival.

Detective Sergeant David Ehrmann, assistant commander of the special investigations division of the St. Charles Parish Sheriffs Office, arrived next. Detective Ehrmann testified that upon his arrival, defendant was in custody. Detective Ehrmann advised defendant of his rights per Miranda. Defendant stated that he understood his rights and admitted that he was hiding from the police because he was scared, and further admitted to throwing a cigarette pack, which he stated contained “crack and pills,” inside the vehicle. Based on this information, the officers secured the vehicle and called for a canine unit. However, after conducting an “open-air sniff’ around the exterior of the vehicle, the canine made no odor response. Detective April then entered the vehicle and seized a green cigarette pack located on the driver’s side floorboard. Inside the cigarette pack were three off-white “rock-like objects” and prescription pills. Raven Barrois, Rforensic chemist for the Jefferson Parish Crime Laboratory, testified that he analyzed the evidence seized from the vehicle and that the substances tested positive for cocaine and hydrocodone.

Anders Brief

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel filed a brief asserting that she thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

| Jn State v. Jyles, supra at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, supra at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

Discussion

Counsel provides a detailed procedural summary and a factual basis of the case and requests that this Court review the record for errors patent. In her procedural summary, counsel notes that during jury selection there were no objections made by the defense and that the defense exercised five peremptory challenges. She further asserts that there were no objections to the trial court’s preliminary instructions, the State’s opening statement, the State’s closing argument, or to the jury instructions. Moreover, during trial, there was one objection made regarding the clarification of the court’s prior ruling on the motion \rjin limine. Counsel notes that during jury deliberation, the jury asked for clarification as to the time of defendant’s arrest and also requested to see the police report. Pursuant to this request, the trial judge instructed the jury that they were required to consider the evidence that was presented in court. Counsel then provides a procedural summary of the post-verdict proceedings, including sentencing.' Defendant’s appellate counsel concludes that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal.

Notably, appellate counsel does not provide a review of potential issues. She explains that a letter was sent to defendant “in confidence” as to specific potential issues that were considered and the reasons they were rejected. Counsel submits that it would be a violation of her ethical duty to reveal those to this Court. Counsel further maintains that providing this Court with information as to the issues counsel considered and the reasons counsel declined to assign them as appealable error would also require counsel to divulge them to the State. Thus, in the event defendant chooses to file a pro se brief based on any of those same issues, counsel submits that defendant would be disadvantaged from fair consideration of the issues by this Court.

Appellate counsel has also filed a motion to withdraw as attorney of record, which states after a conscientious and thorough examination and review of the entire appellate record, including the procedural history and facts, she found no non-frivolous issues to present on appeal and no ruling of the trial court which arguably supports an appeal. She further submits that she notified defendant that |sshe filed an Anders brief and that she also sent defendant a letter regarding specific issues that were considered and the reasons they were rejected by counsel as issues for appeal. She also states that defendant was informed that he may file a supplemental pro se brief in the appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief was filed and that he had until April 14, 2014, to file a pro se supplemental brief. Defendant failed to file a pro se brief.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information in this case properly charged defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crime charged. See generally La. C.Cr.P. arts. 464-66.

As reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him, including his arraignment, trial, verdict, and sentencing. As such, defendant’s presence does not appear to present any issue that would support an appeal. Further, it appears that the jury composition was proper and the jury’s verdict does not present any issue that would support an appeal.

Defendant filed several pre-trial motions, including a motion to suppress statement, which the trial court denied. At the motion to suppress hearing, Detective Ehrmann testified that after defendant was taken into custody on an outstanding arrest warrant and advised of his Miranda rights, he gave an admission that he discarded a cigarette pack containing “crack and pills” into the vehicle he was standing next to before he was apprehended. Detective Ehrmann further 19testified that defendant was not under duress at the time of his statement and that he provided the statement freely and voluntarily. Defendant then testified that he did not make any statements to the police. After listening to the conflicting testimony presented, the trial court denied defendant’s motion to suppress statement.

The trial court’s admissibility of a statement, and its conclusions on the credibility and weight of the testimony relating to the voluntariness of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. State v. Allen, 06-778 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 752, writ denied, 08-2432 (La.1/30/99), 999 So.2d 754. Here, the testimony adduced at the motion to suppress hearing established that defendant was orally advised of his Miranda rights and voluntarily spoke with Detective Ehrmann, who noted that defendant was not under duress and gave the statement freely and voluntarily. Additionally, the trial testimony established defendant understood his rights and voluntarily waived them pri- or to making the inculpatory statement. Accordingly, the trial court’s denial of defendant’s motion to suppress does not appear to present an issue for appellate review.

Also, defendant’s originally imposed sentences do not present issues for appeal. Defendant was sentenced on each count to five years imprisonment with the Department of Corrections. The five-year terms fall within the sentencing range prescribed by statute. See La. R.S. 40:967(C). Further, the trial court’s imposition of consecutive sentences presents no issue for appeal. “Although Louisiana law favors concurrent sentences for crimes committed as part of a single transaction, La.C.Cr.P. art. 883; State v. Underwood, 353 So.2d 1013, 1019 (LaJ1977),10 a trial judge retains discretion to impose consecutive penalties on the basis of other factors, including the offender’s past criminality, violence in the charged crimes, or the risk he or she poses to the general safety of the community.” State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49; State v. Williams, 445 So.2d 1171, 1182 (La.1984); State v. Jacobs, 371 So.2d 727, 732-33 (La.1979) (on reh’g). At sentencing, the trial judge, in imposing consecutive sentences, clearly stated that he took into account defendant’s past criminal history and his belief that defendant did not want to be rehabilitated. Additionally, although defendant objected to his sentence and filed a motion to reconsider sentence, he later withdrew the motion. Therefore, defendant is limited to raising only the constitutional excessiveness of his sentence on appeal. See State v. Pendleton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465. As such, defendant’s sentences do not present any issues for appeal.

Finally, it appears that the record does not include any pleadings or rulings that provide an arguable basis for appeal. Defendant’s post-trial motions do not appear to warrant relief. The State presented sufficient evidence that defendant possessed the cocaine and hydrocodone pills found in the vehicle. The officers testified that defendant admitted that he threw the cigarette pack containing the cocaine and hydrocodone pills into the vehicle.

Because appellant counsel’s brief adequately demonstrates that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we affirm defendant’s convictions and sentences and grant appellate counsel’s motion to withdraw as attorney of record.

| njiirrors Patent

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The review reveals no errors patent in this case.

Decree

Considering the foregoing, we affirm defendant’s convictions and sentences. Further, we grant appellate counsel’s motion to withdraw as counsel for defendant.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . In the same bill of information, defendant was also charged with aggravated flight from an officer in violation of La. R.S. 14:108.1 and obstruction of justice in violation of La. R.S. 14:130.1. The State dismissed both counts prior to trial.

      . "[W]hen the trial judge states that the sentence is to the Department of Corrections, the sentence is necessarily at hard labor.” State v. Clofer, 11-494 (La.App. 5 Cir. 11/29/11), 80 So.3d 639, 643.

      . Defendant’s multiple offender proceeding and re-sentencing are not before this Court on appeal.

      . Deputy Calabresi testified that upon their arrival, there were several people outside, some of whom were near the vehicle. However, defendant was the only person standing directly next to the driver’s side door.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      .The United States Supreme Court reiterated Anders, supra, in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Under Anders, supra, and Jyles, supra, appellate counsel must submit a "brief referring to anything in the record that might arguably support the appeal,” including a full discussion and analysis that appellate counsel "has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Here, appellate counsel does not identify the issues that were considered and the reasons they were rejected by counsel as issues for appeal, claiming, such information is "confidential” and may prejudice defendant should he choose to file a pro se brief. However, despite having failed to provide a detailed analysis of the "potential issues” she identified, counsel’s brief, which includes a detailed summary of the procedural history and facts of this case adequately demonstrates she has thoroughly reviewed the trial court record, supporting her conclusion that she cannot find any non-frivolous issues to raise on appeal.

      . In determining whether the trial court's ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the suppression hearing, but may also consider the evidence presented at trial. State v. Huntley, 08-125 (La.App. 5 Cir. 5/27/08), 986 So.2d 792, 796 (citing State v. Brumfield, 96-2667 (La.10/20/98), 737 So.2d 660, 683, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999)).


author: MOORE, J.

text:
    STATE of Louisiana, DOTD, Plaintiff-Appellant v. James BERRY, Defendant-Appellee.
    No. 49,186-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.
    Watson, McMillin & Harrison, LLP, Monroe, by W. Michael Street, for Appellant.
    C. Daniel Street, Monroe, for Appellee.

      Before WILLIAMS, DREW and MOORE, JJ.
   MOORE, J.

LThe State of Louisiana, through the Department of Transportation & Development (“DOTD”), appeals a judgment assigning permanent total disability (“PTD”) to the claimant, James “Mike” Berry. We affirm.

Factual Background

Berry was employed as a laborer by DOTD. At the time of his injury in March 1986, his average weekly wage was $856.25, yielding a workers’ comp rate of $237.50 per week. On the day of the accident, he was working with a crew to clear brush and foliage from the side of La. Hwy. 17 in West Carroll Parish. While operating a chainsaw, he lost his footing on a steep ditch bank and fell, badly injuring his lower back.

DOTD acknowledged that the accident occurred and was work-related; it immediately placed him on temporary total disability (“TTD”), converting this in 1987 to supplemental earnings benefits (“SEB”), which it has continued to pay ever since. It has also paid for three major back surgeries and three other orthopedic surgeries that stemmed from the back injury, all performed by Dr. Doug Brown, an orthopedist in Monroe. Dr. Brown’s reports over the years usually stated that Berry was completely unable to work but encouraged him to try to be active. Berry has also sought pain management with Dr. Vincent Forte since 2000, undergone a 12series of epidurals, received heavy doses of opioid pain medicine, and reported bouts of depression.

Berry testified that in the late 1980s, DOTD’s adjuster, John Atkins, advised him to be active and “do something, volunteer,” so he went to the Oak Grove Volunteer Fire Department and, later, helped form the Forest Volunteer Fire Department, where he was a volunteer, intermittently, for over 20 years, until May 2011. He testified that he never actually went to a fire, but made phone calls and scheduled training sessions for the other volunteers. He insisted he was never paid for this work, but admitted that in 2008-2010 he claimed a $500 tax credit for his services as fire chief. He also testified that around 2005, he allowed his son, Zach, whose wife had just given birth to a severely disabled child, to use a shed on his (Berry’s) property for a woodworking business called MOZAC, to supplement Zaeh’s income. Berry testified that he may have cut a little wood for Zach, talked to customers and sold MOZAC’s chairs and swings, but maintained this was just to help out his son: he was never paid for it. He also admitted that on his 2005 tax return, he reported a $4,900 profit or loss from business, and on his 2006 return, $8,768, but testified this was actually MOZAC’s income, which he and his wife misreported to protect Zach from creditors.

Apparently owing to the tax credits and income reported on Berry’s returns, and his frequent comments to Dr. Brown about his volunteer work with the Forest Fire Dept., DOTD’s claims adjuster, FARA Insurance Services, began to investigate Berry’s status. FARA hired a private investigator, Alvin Ronquille, to conduct video surveillance on Berry in |sMarch and August 2010. Ronquille videoed Berry riding a tractor and plowing a garden at his home place on Hwy. 582 in Oak Grove, putting a large piece of glass in a pickup truck at the Forest Fire Dept., and dragging garbage cans out to the highway while riding a scooter. Ronquille also went to Berry’s property to buy a wooden chair; Berry had no chairs at the time, having just sold them all to local nursing homes, but said “he would make him one.” Ronquille came back sometime later and bought a chair for $125. Ronquille also videoed MOZAC’s street sign, which listed Berry’s home phone, and got one of its business cards, which listed Berry and his son as “operators.”

Procedural History

DOTD filed the instant Form 1008 in November 2010, demanding forfeiture of all benefits for fraud under La. R.S. 23:1208. Mediation was unsuccessful; in an August 2012 amended pretrial statement, DOTD alleged that in the alternative it was also contesting the “nature, extent and duration” of Berry’s disability.

At trial in May 2018, DOTD called Berry on cross-examination. He testified as outlined above, adding that Dr. Brown told him he had reached maximum medical improvement 20 years ago but had never released him to return to work. He admitted he could walk and do some paperwork, and wished he could work, but his back and legs were in constant pain, and the host of medications he was taking impaired his memory. He insisted he volunteered at the fire departments and helped his son’s woodworking ^business just to keep busy, and never made any income from these pursuits, although he did claim the statutory tax credit and some of his son’s income on some tax returns. He admitted doing the activities captured on the videos, but said that after he sits down for about 20 minutes his “legs just go ballistic.” On direct examination, he stated he had resigned from the Forest Fire Dept, in 1997 and again in 2010, but they kept calling him back; he finally retired in May 2011.

Berry’s wife, Patsy, corroborated most of his testimony, admitting that she had claimed Zach’s income on their tax returns.

Alvin Ronquille testified as to the surveillance he conducted; the DVDs were admitted into evidence and played for the court. He admitted that over three days of video surveillance, Berry was riding the tractor perhaps five or six minutes, and there was “lots of time” he was not doing anything.

Finally, FARA’s senior claims examiner, Daniel Mizell, described the long history of Berry’s claim. He referred to portions of Dr. Brown’s reports stating that Berry can work if he “can rest and control his activity” (April 1987), “can continue at same level of work” (1995), “can do sedentary work if he can move and change positions” (October 2001), and was “capable of some light duty work” (January 2012). In response to Mizell’s request, Dr. Brown had viewed the surveillance videos and handwritten, “Video says it all.” Mizell felt that Berry’s disability status was SEB.

|sAt the close of DOTD’s case, Berry moved for involuntary dismissal. The WCJ granted this as to the forfeiture claim under § 1208, and DOTD does not contest this ruling on appeal. However, the WCJ denied the motion as to classification of disability, and the trial proceeded.

Berry testified on direct examination, graphically describing the residual weakness going from his waistline down his right leg, the “pins and needles” in his leg, the “fire in his thigh,” and the fact that he cannot even lie on his back; his stunning weight gain, from 185 lbs. at the time of the injury to 355 lbs. today, owing to lack of physical activity and the cocktail of medications; that one of DOTD’s earlier adjusters, Atkins, originally suggested the volunteer work, and another one, Ms. Radial, authorized him to get the motorized scooter and to have a walk-in tub installed at his house. Berry also offered his expansive medical records, including those of Dr. Brown, dating back to 1986; Dr. Vincent Forte, at Louisiana Pain Care; Dr. Bernie McHugh, Ouachita Neurosurgery Center; and Dr. Jorge Martinez, a neurological surgeon retained by DOTD.

Action of the WCJ

The WCJ ruled that despite Berry’s history with the fire department and the images on the videos, the court “cannot rely simply on what appears to be the case.” The court found that Dr. Brown had been the treating physician “for a very extensive period,” giving great weight to his opinion, and two of his most recent reports (November 1, 2011, and June 15, 2012) both declared Berry unable to work; Dr. Martinez’s report, dated February 20, 2012, also found him unable to work. The court therefore found Berry | fiwas entitled to PTD benefits. DOTD has appealed.

The Parties’ Positions

By its sole assignment of error, DOTD urges the WCJ erred in granting PTD status to Berry. It concedes the manifest error rule as to factual findings and the vast discretion accorded to credibility calls, Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). However, it argues the claimant’s burden is clear and convincing evidence, La. R.S. 23:1221(2)(c), a standard intended to make awards of PTD “almost nonexistent,” H. Alston Johnson III, Workers’ Compensation Law & Practice (13 La. Civ. L. Treatise), § 275 (4 ed.2010). It contends that when the claimant admits at trial that he can perform light, sedentary work, he is not entitled to PTD, Daugherty v. Domino’s Pizza, 95-1394 (La.5/21/96), 674 So.2d 947; Keasley v. Transit Management of Southeast La., 2010-0786 (La.App. 4 Cir. 12/7/10), 52 So.3d 976. It also shows that in January 2012, after viewing the surveillance videos, Dr. Brown “was not as emphatic in declaring Berry capable of sedentary work” as in his June 2012 report, which allowed the possibility of sedentary work. It also shows that Dr. Forte wrote, “I agree that he could do sedentary work[.]” DOTD submits that when the treating physician finds that the claimant can work, however restricted, he is not entitled to PTD, Weller v. Brown, 97-2155 (La.App. 1 Cir. 11/6/98), 724 So.2d 230, writ denied, 99-2872 (La.12/10/99), 751 So.2d 856. DOTD concludes that with Berry’s own admissions at trial, and the treating physicians’ ambivalent reports, he did not meet the clear and convincing standard required by R.S. 23:1221(2)(c). It urges reversal.

|7Berry responds that the WCJ committed no abuse of discretion. He shows that for Ronquille’s three days of surveillance, he got exactly five minutes of Berry riding a tractor, a few minutes of putting glass in a truck and dragging garbage cans on a scooter, but no other activities. Berry also shows that six months after viewing the video, Dr. Brown reiterated his earlier opinion of total disability, and cites Dr. Martinez’s opinion, “I do not feel the patient will be a candidate for any gainful work type activities.” He submits that his showing of PTD was equivalent to that in Dennis v. Boh Bros. Const. Co., 39,548 (La.App. 2 Cir. 4/6/05), 899 So.2d 761, writ denied, 2005-1178 (La.11/28/05), 916 So.2d 145, which affirmed a finding of PTD despite an examining physician’s opinion that the claimant could lift 25 lbs. He urges this court to affirm.

Discussion

The award of PTD is governed by La. R.S. 23:1221(2), which provides in pertinent part:

(2) Permanent total
(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, [66%%] of wages during the period of such disability.
(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for permanent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.
ls(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

In short, a claimant seeking PTD benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. Morgan v. Glazers Wholesale Drug Co., 46,692 (La.App. 2 Cir. 11/2/11), 79 So.3d 417; Conerly v. Triad Nitrogen, 2012-2032 (La.App. 1 Cir. 8/14/13), 123 So.3d 273, writs denied, 2013-2441, 2013-2515 (La.1/10/14), 130 So.3d 329, 330. Since the 1983 amendments to R.S. 23:1221(2), evidence that a claimant could not return to any gainful employment without suffering substantial pain is no longer sufficient to support an award of PTD. Comeaux v. City of Crowley, 2001-0032 (La.7/3/01), 793 So.2d 1215; Morgan v. Glazers Wholesale Drug Co., supra.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Morgan v. Glazers Wholesale Drug Co., supra, and citations therein. The factual findings of the WCJ are subject to manifest error review. Dean v. Southmark Const. Co., 2003-1051 (La.7/6/04), 879 So.2d 112. The appellate court does not determine whether the WCJ’s factual findings and credibility calls are right or wrong, but only whether they are reasonable. | JBuxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275. The manifest error standard applies even when the WCJ’s decision is based on written reports, records or depositions. Bruno v. Harbert Int’l Inc., supra; Morgan v. Glazers Wholesale Drug Co., supra.

As a general rule, the testimony of a treating physician is accorded greater weight than that of one who examines a patient only once or twice. Morgan v. Glazers Wholesale Drug Co., supra, and citations therein. The treating physician’s opinion, however, is not irrebuttable, and the WCJ is required to weigh the testimony of all medical witnesses. Id.; see also Miller v. Clout, 2003-0091 (La.10/21/08), fn. 3, 857 So.2d 458.

Berry testified that he had not worked since his final retirement from the Forest Fire Dept, in May 2011; thus, his burden of proof was that stated in R.S. 28:1221(2)(c), clear and convincing evidence that he is unable to engage in any type of employment, with no presumption of disability and no regard for whether such work would be in pain. Even the impassive record shows that Berry’s current condition transcends “working in pain” and reaches a level at which any employment or self-employment is simply not physically possible. He admitted that he could sit for a short while, but the pain radiating down his right leg and in the soles of his feet was a torment and a distraction to concentration or sustained work effort. He also testified that the host of pain and other prescribed medications impaired his memory. These are clear and convincing facts from which the WCJ could reasonably find that Berry cannot engage in any employment or self-employment, because of his physical limitations and not merely because such | memployment would require him to work in pain.

Berry’s medical records provide some evidence that at times some doctors felt he could do limited, sedentary work: Dr. Brown’s response to FARA’s inquiry of January 12, 2012, had in his handwriting “sedentary” and “video says it all,” and Dr. Forte’s response of January 21, 2011, stated, “I agree that he could do sedentary work.” However, the overwhelming thrust of the record is that he is totally disabled, starting with the fact that he reached maximum medical improvement in 1987 and underwent numerous major surgeries, including five within 10 years of trial. After his somewhat ambiguous report of January 2012, Dr. Brown wrote in June 2012, “This patient * * * is unfit for work unless he could work from bed on his side doing something in the extremely sedentary position which is unlikely. * * * His condition is permanent and, in fact, progressive^]” Even Dr. Forte’s response of January 2011 is hedged: “I also agree that it is unlikely that he will be able to perform sustainable work.” The examining neurologist, Dr. Martinez, stated in. February 2012, “I feel the patient is not able to perform any gainful work type activities. * * * I do not feel the patient will be a candidate for any gainful work type activities.” The statute does not require unanimity of medical opinion, only clear and convincing evidence, and this medical record supports the WCJ’s findings.

Finally, we have closely examined the record for evidence that Berry was in fact working. He and his wife explained that the income reported in 2005 and 2006 was actually his son’s income; the WCJ commented that this was a perhaps dishonest scheme to help their son but not proof that Berry factually earned anything those years. Berry also testified that he helped his son’s woodworking business by allowing him to use his workshop and home phone, talking to customers and occasionally cutting a little wood. Finally, Berry testified that the modest tax credit he claimed in 2008-2010 was a statutory benefit for volunteer firefighters and did not reflect any actual income. DOTD presented no evidence to contradict these explanations or to overturn the WCJ’s finding that Berry did not earn income in those years.

The video surveillance presents a somewhat closer question, and probably justified DOTD in questioning Berry’s disability status. For three days of surveillance, however, Ronquille captured perhaps six minutes of Berry performing physical activity, part of which was only riding a scooter to pull garbage cans to the highway. Berry candidly admitted that he could sit on a tractor for 20 minutes, but had trouble getting on and off, could not change implements on it, and could not do this “for money.” These activities are consistent with Dr. Brown’s longstanding advice to “do something” to ease his pain and improve his mental outlook; occasional spurts of activity do not defeat a valid PTD claim. Comeaux v. City of Crowley, supra; Conerly v. Triad Nitrogen, supra; Dennis v. Boh Bros. Const. Co., supra. This evidence does not undermine the WCJ’s finding that Berry cannot engage in any employment or self-employment. The assigned error does not warrant reversal.

11⅞Conclusion

For the reasons expressed, the judgment is affirmed. Costs are not assessed. La. R.S. 13:4521.

AFFIRMED.

      . The June 1986 surgery, at St. Francis, was a right L4-5 laminectomy, left L4-5 facetec-tomy and foraminotomy, noted as "not herniated disc”; the July 2004 surgery was a de-compressive laminectomy at L3-4-5 with Gill decompression, transverse process fusion and bone graft; the June 2008 surgery, at P & S Surgical Hospital, was a stable pedicle screw construct and right lumbosacral nonunion fusion.

      . The January 2003 surgery, at Glenwood, was to debride a shoulder injury from a fall that occurred when Berry suddenly lost strength in his legs; the July 2006 surgery, at St. Francis, was to excise a sinus tract from a toe on his right foot, resulting from chronic loss of sensation to the foot; the November 2007 surgery, at Ouachita Community Hospital, was for CMC fusion of his left thumb.

      . He mentioned Celebrex (an NSAID), Nucyn-ta (a narcotic pain reliever), Elavil (an antidepressant) and Neurontin (a seizure preventive).

      . The volunteer firefighter deduction created, by La. R.S. 47:293(7)(a) and (7)(b), presupposes no actual income from such service and required 24 continuing education hours annually.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Eric SCOGGINS, Appellant.
    No. 49,194-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Louisiana Appellate Project By: Peggy J. Sullivan, Monroe, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus R. Patillo, Darius Q. Henderson, Assistant District Attorneys, for Appellee.
    Before DREW, PITMAN & GARRETT, JJ.
   PITMAN, J.

| defendant, Eric Craig Scoggins, appeals as excessive his sentences for aggravated flight from an officer, resisting an officer and speeding, and the imposition of those sentences consecutively. For the following reasons, we affirm.

FACTS

On June 16, 2012, Defendant was riding his motorcycle in Webster Parish at 66 m.p.h. in a 45-m.p.h. speed zone. Officer Williams of the Springhill Police Department observed Defendant exceeding the speed limit and attempted to stop him by-pursuing him with sirens and flashing lights, but Defendant increased his speed to 90 m.p.h. in the 45-m.p.h. zone and refused to stop. Defendant weaved in and out of traffic while the officer pursued and attempted to stop him.

Ofc. Williams was finally able to get in front of Defendant’s motorcycle and force him to the side of the road, at which time Defendant dismounted the motorcycle and attempted to run away. Ofc. Williams chased, caught and arrested him.

Defendant was charged with aggravated flight from' an officer, a violation of La. R.S. 14:108.1; resisting arrest, a violation of La. R.S. 14:108; and reckless operation of a vehicle, i.e. speeding, a violation of La. R.S. 14:99. He was also charged with other crimes which were eventually nolle prosequied.

Defendant pled guilty to the three crimes, and the state agreed not to file a multi-bill against him. In addition, the state agreed to nolle prosequi the remaining charges. No agreement was made with regard to the ^sentences to be imposed. A presentencing investigation report was ordered, which revealed that Defendant had an extensive juvenile criminal history and had been convicted of simple burglary, as well as other crimes, as an adult. The PSI also indicated that Defendant had been placed on supervised probation for the burglary offense and that his probation had been revoked.

At sentencing, the trial court considered the information contained in the PSI, including Defendant’s social, educational and family history, as well as other factors set forth in La. C. Cr. P. art. 894.1. The trial court considered a letter written by Defendant’s sister, who claimed that Defendant had mental health issues, but refused to take his medication. Defendant was sentenced to the statutory maximum sentence, two years, for aggravated flight from an officer, the maximum of six months for resisting an officer, and to 30 days for speeding, with the sentences to run consecutively.

Defendant filed a motion to reconsider sentence, asking only that the sentences be reviewed and that they be ordered to be served concurrently. The motion to reconsider sentence was denied. Defendant appealed.

DISCUSSION

Defendant argues that the maximum sentence of two years at hard labor and the consecutive nature of the sentences for resisting arrest and speeding are unconstitutionally harsh and excessive. He states that he took responsibility for his actions when he pled guilty and explained he believed he was needed to take care of his grandmother. He also argues that if his lasister’s statements that he has mental health issues are to be believed, he should be receiving help rather than jail time.

The state argues that the sentences are not unconstitutionally excessive, are within the statutory guidelines and are appropriate for the crimes committed by Defendant.

La. R.S.14:108.1, which concerns flight from an officer and aggravated flight from an officer, states in pertinent part as follows:

A. No driver of a motor vehicle or operator of a watercraft shall intentionally refuse to bring a vehicle or watercraft to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
B. Whoever commits the crime of flight from an officer shall be fined not less than one hundred fifty dollars, nor more than five hundred dollars, or imprisoned for not more than six months, or both.
C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop ..., under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
E. Whoever commits aggravated flight from an officer shall be imprisoned at hard labor for not more than two years and may be fined not more than two thousand dollars.

La. R.S.14:99 concerns reckless operation of a vehicle and states that whoever commits the crime shall be fined not more than $200, or imprisoned for not more than 90 days, or both.

14A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,-633 (La.App.2d Cir.11/3/10), 55 So.3d 56, writ denied, 10-2853 (La.11/18/11), 75 So.3d 454. The important elements that should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), pri- or criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

Second, a sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has broad discretion in sentencing offenders.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Dubose, 48,501 (La.App.2d Cir.11/20/13), 128 So.3d 613; State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90.

| sWhen a defendant is convicted of two or more offenses based on the same act or transaction, or 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. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single cause of conduct are not mandatory, and it is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. A judgment directing that sentences arising-from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Banks, 48,868 (La.App.2d Cir.2/26/14), 134 So.3d 1235.

Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the potential for defendant’s rehabilitation and whether defendant has received a benefit from a plea bargain. State v. Banks, supra.

At the sentencing hearing, the trial court considered the PSI, which included the fact that Defendant reached speeds of 110 m.p.h. on his motorcycle during the police chase. The trial court also noted that Defendant passed vehicles in no passing zones and ran red lights to avoid the officers chasing him. Thus, the trial court found that Defendant had | ¿¡placed the public and the arresting officer in harm’s way during his attempted escape from the police.

The trial court also reviewed Defendant’s criminal history, as well as his social, family and educational histories. It considered the guidelines provided in La. C. Cr. P. art. 894.1 and adequately articulated its reasons for the consecutive imposition of the maximum sentences.

Considering the foregoing, we find no abuse of discretion in the sentences imposed by the trial court. The reasons for imposition of the consecutive sentences were clearly articulated and the sentences are within the statutory guidelines. The sentences are neither grossly disproportionate to the severity of the crimes Defendant committed, nor do they shock the sense of justice or serve no purpose other than to inflict pain and suffering. In conclusion, the sentences and the consecutive nature of the sentences are not unconstitutionally harsh or excessive. Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Eric Craig Scoggins are affirmed.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Clyde GIBSON, Appellant.
    No. 49,195-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 2014.

      Douglas L. Harville, for Appellant.
    J. Schuyler Marvin, District Attorney, John W. Montgomery, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and DREW, JJ.
   BROWN, Chief Judge.

11 Pursuant to an agreement, defendant, Clyde Gibson, pled guilty to one count of forgery. He was subsequently sentenced to eight years at hard labor. Defendant has appealed, urging that his sentence is excessive. We affirm.

Facts

On February 28, 2013, defendant was charged by bill of information with three counts of forgery, in violation of La. R.S. 14:72. On June 10, 2013, pursuant to an agreement, defendant pled guilty to one count of forgery. As part of the plea agreement, the state agreed to dismiss the remaining two counts of forgery and agreed not to file a habitual offender bill of information. The trial court informed defendant of his constitutional rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and defendant stated that he understood and wished to waive his rights. The prosecutor recited the following factual basis in support of Gibson’s guilty plea:

[0]n or about the 21st day of June of [2012] [defendant] committed the crime of forgery by forging with intent to defraud a signature on any part of writing purporting to have legal efficacy, contrary to La. R.S. 14:72, if we were to [go to] trial evidence would be presented to a jury that would show that the law enforcement authorities received a complaint from an individual and that she had suspected that this person had taken some of her checks from her house and had cashed them. Upon being apprehended the law enforcement people advised him of his rights and confronted him with the charges that had been made against him and that the — he admitted and advised that it was wrong for him to have done what he did but he did it because he was on drugs. And the thing that he is referring to that it was wrong for him to do and that he did because he was on drugs was to negotiate checks on this individual where he forged her name to the checks in order to get cash. Do we have a restitution amount involved? We do have. I have now found Umy file and the total amount of the checks that we have was $1,114.04.

Defendant admitted that these facts were correct and the trial court accepted his plea and ordered a pre-sentence investigation report.

The sentencing hearing was conducted on August 16, 2013. The trial court stated that it had reviewed the facts of this case and the pre-sentence investigation report, including defendant’s criminal, personal and social history. The court noted that defendant has not performed well in prior instances with probation or parole and therefore would not be a good candidate for supervision. Also, the court stated that this offense was committed upon an elderly citizen and it felt that a lesser sentence would deprecate the seriousness of this crime. Considering the above, the trial court sentenced defendant to eight years at hard labor. The court further recommended defendant for substance abuse treatment and ordered him to pay restitution to the victim in the amount of $1,114.04.

On August 30, 2013, the defense filed a motion to reconsider sentence, arguing that defendant’s sentence was excessive, punitive, and will not achieve any goals of rehabilitation. The trial court denied the motion on September 6, 2013, without a hearing. This appeal followed.

Discussion

Defendant contends that his sentence of eight years at hard labor for this non-violent offense is excessive and serves no purpose other than needless imposition of pain and suffering. Defense counsel notes that defendant was 37 years old at the time of sentencing, he is married and has two children, and he has admitted that he has a problem with | smethamphetamine, which allegedly caused him to commit the instant offense. According to defense counsel, defendant’s sentence fails to provide him with the opportunity to be rehabilitated and re-enter society as a productive member, while being punished in a reasonable manner for his non-violent crime.

In response, the state contends that defendant’s sentence is not excessive considering his history of criminal activity and the facts of this case. The state asserts that defendant received a considerable benefit from the plea agreement and reduced sentence exposure, as he was originally charged with two additional counts of forgery and the state agreed not to enhance his sentence with a habitual offender bill.

La. R.S. 14:72(D) provides that a person convicted of forgery shall be fined not more than $5,000, or imprisoned, with or without hard labor, for not more than ten years, or both.

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

A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,-239 (La.App.2d Cir.04/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430.

The trial court did not abuse its discretion by sentencing defendant to eight years at hard labor. Prior to sentencing defendant, the trial court adequately considered the facts of this case, the information in the PSI report, and the factors set forth in La. C. Cr. P. art. 894.1. Defendant took advantage of this elderly victim by stealing checks totaling over $1,000 from her purse, which he then forged in order to get cash. The court considered defendant’s history of substance abuse, which he claims caused him to commit this crime. Further, the court reviewed defendant’s criminal history, which includes convictions for attempted simple burglary, DWI, and attempted aggravated escape, as well as an arrest for domestic battery. The court noted that defendant is a third-felony offender and has responded poorly to probation in the past. Moreover, defendant substantially benefitted from the plea agreement and reduced sentence exposure as he | ¡¡was initially charged with two additional counts of forgery and the state agreed not to charge him as a third-felony habitual offender.

Considering defendant’s criminal history and the benefit he received from the plea agreement, we find that the sentence imposed by the trial court does not shock the sense of justice, nor is it disproportionate to the severity of the offense. Accordingly, this assignment of error is without merit.

Conclusion

Defendant’s conviction and sentence are affirmed.