author: WILLIAMS, J.

text:
    Troy L. SMITH and Mrs. Carla Smith, Plaintiff-Appellee v. Mark S. ESCALON, Ari Fleet LT and Discover Property and Casualty, Defendant-Appellant.
    No. 48,129-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Jason M. Nash, Brian D. Smith, Shreveport, LA, Matthew J. Ungarino, Metairie, LA, for Appellant.
    Douglas L. Stokes, Jr., Jonesboro, LA, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   WILLIAMS, J.

| defendants, Mark S. Escalón, ARI Fleet LT and Discover Property and Casualty, appeal the trial court’s award of damages to plaintiffs. For the following reasons, we affirm.

FACTS

On November 30, 2009, plaintiff, Troy Smith, was injured in an automobile accident in Jackson Parish, Louisiana. Plaintiff, who was driving a Chevrolet Corvette, was rear-ended by defendant, Mark Escal-ón, who was driving a Toyota pickup truck. The pickup truck was owned by Escalon’s employer, ARI Fleet LT.

Following the accident, Smith presented to the emergency room at Jackson Parish Hospital complaining of back pain related to the accident. The x-rays taken in the emergency room did not reveal any fractures; Smith received a prescription for pain medication and was released. Smith’s pain persisted for several months. Subsequently, Smith was seen by a nurse practitioner, who later referred him to Dr. James Hardy Gordon, an interventional pain specialist, at Louisiana Pain Care in Monroe. Plaintiff underwent physical therapy for several weeks. Although his pain persisted after he completed physical therapy, Smith declined further treatment.

On October 1, 2010, plaintiff and his wife, Carla Smith, filed this lawsuit, alleging that Smith sustained personal injuries as a result of the accident; Mrs. Smith alleged loss of consortium. Escalón, ARI Fleet LT and its insurer, Discover Property and Casualty, were named as defendants. Prior to the trial, the parties stipulated that Escalón was solely at fault in causing the accident.

|2The matter proceeded to trial on the sole issue of damages. Smith testified that the accident changed his life. He stated that he was no longer able to stand for long periods of time, work in his yard, maintain his vehicles or perform household chores. He also testified that he experienced pain for approximately six months after the accident, and he continued to experience pain at the time of trial, albeit to a lesser degree. Additionally, Smith testified that he preferred having his life the way it was prior to the accident, rather than receiving a monetary award.

Mrs. Smith testified that she and her husband had been married since 1982. She admitted that her husband had significant health-related issues prior to the accident. However, she stated that he was not experiencing any problems in the months leading up to the accident. Mrs. Smith stated that Mr. Smith continued to have pain for weeks after the accident and was having increasing difficulty doing things around the house. Mrs. Smith testified that prior to the accident, her husband did the majority of the yard work, but since the accident, he was no longer able to do so. Additionally, she stated that Mr. Smith was unable to perform many of the household chores as a result of the accident. Mrs. Smith further testified that her husband made an appointment with a local doctor, who referred him to Dr. Gordon in Monroe. She stated that Dr. Gordon prescribed pain medication, and her husband took the pills at first; however, after a while, he stopped taking them, electing to “deal with” the pain. On cross-examination, Mrs. Smith testified that the accident did not affect her marriage in any way. On recross-examination, she testified that she never stopped loving her husband [.¡because of the accident, and they never had any disagreements because of the accident.

Plaintiffs introduced into evidence the deposition testimony of Dr. Gordon, the pain specialist who treated Smith at Louisiana Pain Care. Dr. Gordon testified that he began treating Smith in March 2010. He also testified that Smith had a history of back pain, having undergone vertebro-plasty for compression fractures at T8 and T9. Dr. Gordon noted that Smith reported an initial gradual onset of back pain following the car accident; however, the pain had increased significantly. Smith also reported that he was unable to stand for long periods of time, and the pain could only be relieved by lying flat. According to Dr. Gordon, he ordered magnetic resonance imaging (“MRI”) of the “thoracic and lumbar spine to rule out any acute pathology.” He also wanted to “rule out any recurrence of vertebral compression fractures or any acute disc herniations [and/or] facet arthropathy[.]” Dr. Gordon testified that Smith returned for a followup visit on March 24, 2010. During that visit, Dr. Gordon noted that Smith’s pain continued. Dr. Gordon also noted that he discussed the MRI findings with Smith. According to Dr. Gordon, the MRI showed mild degenerative disc disease and some narrowing in the spinal column. Dr. Gordon testified that he did not know how long the discs had been degenerating or when the narrowing began; therefore, he could attribute neither condition to the automobile accident. The MRI also showed that Smith had a compression fracture, which Dr. Gordon opined had probably occurred more than six |4months prior to the date of the MRI. Nonetheless, Dr. Gordon stated, “In my opinion, I feel like he had obvious chronic changes that preceded the accident, but I do feel as though they were exacerbated to some point with the accident.” Dr. Gordon noted that Smith expressed that he did not want to have back surgery. Rather, Smith opted for conservative treatment; therefore, Dr. Gordon prescribed an anti-inflammatory medication, a muscle relaxant and physical therapy.

On cross-examination, Dr. Gordon testified that Smith did not present to him until approximately four months after the accident. He stated that, more than likely, had Smith sought treatment earlier, he would have obtained relief from his symptoms sooner. However, Dr. Gordon reiterated that it was more probable than not that the accident aggravated Smith’s preexisting back condition.

At the conclusion of the trial, the court awarded Smith $20,000 in general damages. The court also awarded special damages totaling $6,316.81 for medical bills and other out-of-pocket expenses, and litigation expenses in the amount of $694.25. Additionally, the court awarded Mrs. |sSmith $1,000 for loss of consortium.

Defendants appeal.

DISCUSSION

General Damages

Defendants contend the trial court erred in awarding plaintiff $20,000 in general damages. Defendants argue that plaintiff had a long history of back pain and other spinal issues related to his prior diagnosis of prostate cancer. Defendants also argue that plaintiff suffered only soft tissue injuries as a result of the accident and underwent only a few weeks of physical therapy; his symptoms had resolved within six months after the accident.

One injured through the fault of another is entitled to full indemnification for damages caused thereby. Wainwright v. Fontenot, 2000-0492 (La.10/17/00), 774 So.2d 70; Caskey v. Merrick Const. Co., Inc., 46,886 (La.App.2d Cir.3/14/12), 86 So.3d 186, writ denied, 2012-0847 (La.6/1/12), 90 So.3d 442. General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or | (¡physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Duncan v. Kansas City Southern Railway Co., 2000-0066 (La.10/30/00), 773 So.2d 670, cert. dism., 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001); Caskey, supra.

Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompany an injury. McGee v. A C & S, Inc., 2005-1036 (La.7/10/06), 933 So.2d 770; Caskey, supra. The elements of physical pain and suffering and associated mental anguish are conceptually related and, to a large extent, overlapping; therefore, they are difficult to precisely distinguish. Caskey, supra, citing Harris v. Delta Development Partnership, 2007-2418 (La.App. 1st Cir.8/21/08), 994 So.2d 69.

Also included in general damages can be an award for loss of enjoyment or quality of life. Miller v. Lammico, 2007-1352 (La.1/16/08), 973 So.2d 693; Caskey, supra. These damages refer to the detrimental alterations of a person’s ability to participate in the activities or pleasures of life that were formerly enjoyed. McGee, supra; Caskey, supra.

A defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Wainwright, supra; Caskey, supra. Although the victim’s damages may be greater because a prior condition was aggravated by the tort, the tortfeasor is, nevertheless, responsible for the consequences of his tort. Caskey, supra; Britt v. City of Shreveport, 45,513 (La.App.2d Cir.11/03/10), 55 So.3d 76. Nevertheless, before recovery can be granted for aggravation of a prejexisting7 condition, a causative link between the accident and the victim’s current status must also be established. Caskey, supra; Edwards v. LCR-M Corp., Inc., 41,125 (La.App.2d Cir.7/12/06), 936 So.2d 233.

The trial court has vast discretion in awarding general damages and its determination should rarely be disturbed. LSA-C.C. art. 2324.1; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993); Martin ex rel. Lee v. Walker, 47,483 (La.App.2d Cir.10/10/12), 107 So.3d 102. On appellate review, the initial inquiry is whether the trier of fact abused its vast discretion in assessing damages. If it is determined that the trial court abused its discretion, then the appellate court may review prior awards to determine the highest or lowest point which is reasonably with in the trial court’s discretion. Martin, supra; Moody v. AIG Ins. Companies, 43,946 (La.App.2d Cir.1/14/09), 999 So.2d 1207. The appellate court should increase or reduce an award only when the award is beyond that which a reasonable trier of fact could assess for the particular injury, to the particular plaintiff, under the particular circumstances of the case. Youn, supra; Moody, supra.

In the instant case, Smith admitted that he had a history of prostate cancer. He also admitted that he had previously experienced some back problems attributable to the cancer. However, he testified that he had not experienced any back pain in the six months leading up to the accident. Smith also testified that as a result of the accident, he was unable to stand for long periods of time; he was unable to do yard work; he was unable to perform household chores; and he was unable to perform routine | ^maintenance on his vehicles. He stated that the pain decreased over time and he regained his ability to do some tasks. However, at the time of the trial, more than two years after the accident, Smith stated he continued to experience pain “at times” and was still unable to work in his yard or stand for long periods of time.

Dr. Gordon was the only physician who testified at trial (via deposition). He unequivocally testified that the accident aggravated Smith’s prior back condition. He also stated that there was no indication that Smith was exaggerating his symptoms. Dr. Gordon further testified that Smith’s pain decreased with physical therapy; however, he was still experiencing pain. According to Dr. Gordon, he offered additional treatment, including pain medication and medial branch nerve blocks of the lumbar and thoracic spine. However, Smith declined further treatment, stating that he had gone through so much with the cancer treatment, he did not desire any additional medical intervention at that time. Dr. Gordon further testified that he would have continued to treat Smith for his back pain had Smith not elected to discontinue treatment.

Additionally, Mrs. Smith testified that her husband was not experiencing any health problems in the months leading up to the accident. However, the pain from the accident prevented him from doing many of the activities he had done prior to the accident.

After reviewing this record, we are unable to say the trial court abused its vast discretion in awarding plaintiff $20,000 in general damages. Smith, who was 79 years old at the time of the accident, decided that he had[9endured enough. The fact that Smith elected to just “deal with” his pain does not minimize the fact that he continued to suffer from back pain as a result of the automobile accident.

The trial in this matter took place more than two years after the accident. By that time, Smith’s pain had improved, but had not resolved. Because of the accident, his injury continued to preclude him from performing basic tasks such as prolonged standing and yard work. His injury also continued to limit his ability to perform household chores. We find that the award of damages was supported by the record. Special Damages

Defendants further contend the trial court abused its discretion in awarding special damages. They argue that plaintiff introduced into evidence medical bills from Jackson Parish Hospital ($1,022.20), Louisiana Pain Care ($962.65), The Green Clinic ($1,772) and Jackson Parish Therapy Center ($2,219); however, plaintiffs failed to prove that the bills reflected treatment provided to Smith as a result of the accident. According to defendants, the only medical treatment supported by the record was the treatment provided by Dr. Gordon. There is no basis in the record to support the awards for the bills from Jackson Parish Hospital, The Green Clinic or Jackson Parish Physical Therapy.

“Special damages” are those which must be specially pled or have a ready market value, that is, the amount of the damages supposedly can be determined with relative certainty. Dotie v. Safeway Ins. Co. of La., 46,840 (La.App.2d Cir.3/14/12), 87 So.3d 942; Neloms v. Empire Fire & Marine Ins. Co., 37,786 (La.App.2d Cir.10/16/03), 859 So.2d 225; Moody v. Blanchard Place Apartments, 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281, writ denied, 2001-2582 (La.12/14/01), 804 So.2d 647. Some special damages, such as medical and related expenses, cost to repair or replace damaged property, loss of wages, etc., are easily measured. Id. A plaintiff is required to prove special damages by a preponderance of the evidence, and the district court’s findings in this respect are subject to a manifest error standard of review. Dotie, supra; Montgomery v. Kedgy, 44,601 (La.App.2d Cir.8/26/09), 21 So.3d 980, writ denied, 2009-2110 (La.11/25/09), 22 So.3d 167.

Here, we find that the trial court’s special damages award, which included Smith’s medical bills, is supported by the evidence. Dr. Gordon testified that he treated Smith at Louisiana Pain Care for the injuries Smith sustained in the automobile accident. Dr. Gordon also testified that he ordered an MRI, which was done at The Green Clinic; the report from the MRI was introduced into evidence. Dr. Gordon further testified that the MRI was interpreted by Dr. Weeks, a radiologist at The Green Clinic. Additionally, Smith, Mrs. Smith and Dr. Gordon all testified that Smith underwent several weeks of physical therapy. Smith stated he opted to go to physical therapy in Jackson Parish because it was closer to his home than the centers in Ruston and Monroe. Further, Smith and Dr. Gordon testified that Smith was seen at the emergency room at Jackson Parish Hospital on the day of the accident. The medical bill and itemized patient account detail from Jackson Parish Hospital were introduced into evidence. Those | t , documents showed Smith was treated at the emergency room at Jackson Parish Hospital on November 30, 2009 (the date of the accident). Smith’s primary diagnosis was listed as “backache;” his secondary diagnosis was “traffic accfident].” The “account detail and charge summary” show that Smith was seen by an emergency room doctor, had various x-rays and was given three different medications on the day of the accident. Therefore, we find that the record supports the trial court’s conclusion that the medical bills introduced into evidence were for medical treatment rendered to Smith as a result of the automobile accident. Accordingly, the trial court was not manifestly erroneous in awarding special damages to plaintiff for all medical bills introduced into evidence.

Defendants also contend the trial court erred in awarding Smith $241 for reimbursement for the fees he incurred to rent a vehicle while his car was being repaired. Defendants do not specifically dispute the fact that Smith rented a vehicle while his car was being repaired. They argue that Smith did not introduce any bills or invoices into evidence to prove the amount he “actually paid” for the rental car.

Smith testified that because his car was damaged in the accident, he rented a vehicle for “three or four days” while his car was being repaired. With regard to the amount he paid for the rental, the colloquy was as follows:

Q: What did you pay to rent the vehicle?
A: I don’t remember the exact figure[;] it was over $200.00, about $241.00 rings a bell. I’m not just really sure[,] but I think that’s what it was.

|]2On cross-examination, Smith admitted that he did not have any receipts for his car rental expenses and that he was unable to recall the exact amount he paid. However, Smith reiterated that the amount was “somewhere around $241.00.” Thus, we find that the trial court’s award of $241 for rental car expenses is supported by the record, and, therefore, was not manifestly erroneous or clearly wrong. This assignment lacks merit.

Loss of Consortium

Defendants also contend the trial court erred in awarding damages to Mrs. Smith for loss of consortium. Defendants argue that plaintiffs did not introduce any evidence to prove that the accident affected them marriage or that they experienced a loss of love and affection.

LSA-C.C. art. 2315(B) authorizes the recovery of monetary damages for loss of consortium, service, and society by the spouse and children of an injured person. In general, a claim for loss of consortium has seven elements: (1) loss of love and affection, (2) loss of society and companionship, (3) impairment of sexual relations, (4) loss of performance of material services, (5) loss of financial support, (6) loss of aid and assistance, and (7) loss of fidelity. To be compensable, it is not necessary for a claim for loss of consortium to include damages from each type of loss. Caskey, supra; Britt, supra. Proof of any one of these elements is sufficient to support a damage award of loss of consortium. Caskey, supra; McNeill v. Landstar Ranger, Inc., 43,362 (La.App.2d Cir.6/11/08), 986 So.2d 905, writ denied, 2008-1558 (La.10/10/08), 993 So.2d 1287.

The record shows that, at the time of trial, Troy and Carla Smith had 113been married for over 30 years. Both testified Mr. Smith was quite active prior to the accident, and that since the incident, his activities became limited due to his pain. Although Mrs. Smith testified that she and her husband did not experience any loss of love and affection as a result of the accident, she clearly testified that the injuries her husband received in the accident had caused a significant change in their lifestyle. Specifically, she stated that since the accident, her husband is no longer able to maintain the yard; therefore, she has to do the majority of the yard work. She also testified that she had to do most of the household chores because Mr. Smith is not able to do very much due to his back pain. Therefore, we find that Mrs. Smith’s testimony was sufficient to show that she experienced the loss of society and companionship, performance of material services and aid and assistance as a result of this accident. Accordingly, we find that the trial court’s award of $1,000 is supported by the evidence of record and is not an abuse of discretion. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s damage awards in all aspects. Costs of the appeal are assessed to defendants, Mark S. Escalón, ARI Fleet LT and Discover Property and Casualty.

AFFIRMED.

      . Vertebroplasty is a spinal procedure in which bone cement is injected into a fractured vertebrae to relieve back pain caused by compression fractures.

      . The trial court itemized the special damages as follows:
      I. OUT OF POCKET EXPENSES:
      A. Rental of replacement vehicle while Plaintiffs' vehicle was being repaired at the expense of the Defendants $ 241.00
      B. Paid to obtain copies of medical records in order to prove treatment undergone at trial $ 24.00
      C. Due Dr. Gordon for Purposes for trial deposition $ 900.00
      D. Paid court reporter (Duke Copeland Reporters LLC) for trial deposition $ 245.25
      E. Court Costs advanced by Plaintiffs $ 425.00
      F. 4 Trips to Ruston to see Dr. Gordon (24.5x2x4x$0.51) $ 99.96
      II. MEDICAL EXPENSES
      A. Louisiana Pain Care Center $ 962.65
      B. Jackson Parish Hospital $1,022.20
      C. Jackson Parish Therapy Center $2,219.00

        D. Dr. Weeks $1,698.00
      E. Green Clinic $ 574.00


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Roderick CROSSLEY, Appellant.
    No. 48,149-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Peggy Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Devin T. Jones, John Gates Spires, Steven Sylvester, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and GARRETT, JJ.
   GARRETT, J.

| ¡The defendant, Roderick Crossley, was convicted as charged of two counts of second degree murder in violation of La. R.S. 14:30.1, following a two-and-one-half-week jury trial. The trial court sentenced him to serve concurrent terms of life imprisonment without benefit of parole, probation or suspension of sentence. We affirm the defendant’s convictions and sentences.

FACTS

Shortly after midnight on September 23, 2007, Tracy Edmonds and her boyfriend, Clinton Long, were shot in their home in Bastrop, Louisiana, by an intruder. Ms. Edmonds, who was in her bedroom, was shot two times and died immediately. Mr. Long was shot three times and died shortly thereafter at the hospital.

Three of Ms. Edmonds’ children — Con-travious (age 15), Roshonda (age 12), and a four-year-old son — were home at the time of the murders. The children, who shared a bedroom, were awakened by the gunshots. Mr. Long ran through the house, shouting that the man had a gun and to “get down.” The older boy grabbed his little brother, ran to the couch in the living room and lay on top of the child to protect him. Roshonda fled to the kitchen. The shooter bolted from the house after shooting Mr. Long. Contravious told his sister to lock the front door, which she did, and he went into their mother’s bedroom and called 911. After Contravious came out of the bedroom, he would not allow his younger siblings to go in to see their mother because he knew she was dead. Within minutes of the shootings, |2Roshonda told Contravious that she recognized the shooter as the defendant, their mother’s former boyfriend.

Roshonda told the police that the defendant was the shooter. The police showed her a driver’s license photo of the defendant to confirm that he was the same Roderick Crossley she named. Based upon Roshonda’s identification, the police began to search for the defendant. When they found him several hours later at the home of his girlfriend, Ellatrice Tyler, he was sitting on the commode and wearing boxer shorts. He was taken into custody and read his Miranda rights. He was allowed to wash his hands and get dressed before he was taken to the police station.

At the police station, the defendant was read his Miranda rights again and he signed a waiver form. When advised that there were witnesses to the murders, he responded, “Kids will lie.” However, none of the officers had mentioned that the witnesses were children. The defendant then asked if the police had a gun; notably, no reference had been made to the defendant by the officers about the manner in which the victims were killed. Because he had washed his hands earlier, the police did not attempt to test his hands for gunshot residue (“GSR”).

A search of Ms. Tyler’s house later in the day led to the recovery of a black trash bag containing clothes the defendant had worn the night of the murders. Testing determined that there was GSR on these clothes. Approximately one week after the killings, the murder weapon — which was wrapped in a pillowcase — was recovered at the home of one of Ms. Tyler’s relatives.

|3In October 2007, the defendant was indicted on two counts of first degree murder. The bill was later amended to charge two counts of second degree murder. The defendant initially pled not guilty and later changed his plea to not guilty and not guilty by reason of insanity.

In March 2008, the trial court appointed a sanity commission to assess the defendant’s mental condition pursuant to a motion filed by the defense questioning the defendant’s mental capacity. The defendant was evaluated by two psychiatrists, Dr. Richard Williams and Dr. Travis Phi-fer. Although Dr. Williams believed that the defendant was malingering and attempting to act in a “profoundly mentally retarded fashion,” he ultimately concluded that the defendant was unable to consult with his attorney. Dr. Phifer found that the defendant was mentally retarded and unable to assist his defense. Based upon these evaluations, the trial court found in June 2008 that the defendant was incompetent to stand trial and, following Dr. Williams’ recommendation, placed him under the care of the Eastern Louisiana Mental Health Systems, Forensic Division (“ELMHS”). Following treatment, the defendant was eventually determined to be able to assist in his defense and was released back to the Morehouse jail authorities in November 2009. At a hearing held on December 29, 2009, the defendant was found competent to stand trial. The defense did not object to this ruling and the case proceeded forward.

In March 2011, the trial court ordered an evaluation of whether the defendant was able to distinguish right from wrong at the time of the offenses. Drs. Williams and Phifer reevaluated the defendant and concluded 14that he knew right from wrong at the time of the murders. They also concluded he was competent to proceed.

Jury trial commenced in February 2012. The defense zealously argued to the jury that the man who killed Ms. Edmonds and Mr. Long was actually Jerome McHenry, an abusive former boyfriend of Ms. Ed-monds who resembled the defendant and was of the same short stature. However, the defendant was found guilty as charged on both counts of second degree murder. In August 2012, the defendant’s motions for new trial and post verdict judgment of acquittal were denied. The defendant was sentenced to two mandatory terms of life in prison without benefit of parole, probation or suspension of sentence. The trial court ordered that the sentences run concurrently.

This appeal followed. Defense counsel asserted five assignments of error. In a pro se brief, the defendant raised some of the same issues contained in his counsel’s brief and urged some additional issues.

SUFFICIENCY OF EVIDENCE

In his first assignment of error, the defendant argues that the evidence presented at trial was not sufficient to prove that he killed the victims.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable Ldoubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In cases where the defendant asserts that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentifieation in order to carry its burden of proof. State v. Johnson, 38,927 (La.App.2d Cir.11/23/04), 887 So.2d 751; State v. Jefferson, 47,009 (La.App.2d Cir.3/7/12), 91 So.3d 1007, writ denied, 2012-0751 (La.11/2/12), 99 So.3d 661. Credibility determinations are the province of the trier of fact. State v. Johnson, supra. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support the requisite factual conclusion. State v. Johnson, supra.

17Evidence

Roshonda Edmonds, Ms. Edmonds’ daughter, was 17 years old at the time of the trial. She was unwavering in her identification of the defendant as the man she saw shoot Mr. Long. She testified that the shooter was only five to six steps from her and that she observed him straight on, not in profile. Within moments of seeing the shooter, she told her older brother that it was the defendant. She repeated her identification to the police when she gave a statement to them shortly after the murders. When the police showed her a photo of the defendant, she affirmed that he was the man she saw. She also said that the defendant was wearing long pants at the time of the murder. At trial, she testified that she was familiar with the defendant because he had dated her mother. She testified that she also knew Mr. McHenry, who had dated her mother after the defendant did, and that he was not the man who shot Mr. Long.

Roshonda’s older brother, Contravious, testified that he thought that if the defendant was the shooter, he “would have known it.” He also believed that the shooter might have been wearing blue jeans. However, Contravious testified that after hearing the first shots and after Mr. Long shouted warnings, he grabbed his four-year-old brother, put the child on the sofa and lay on top of him to shield him from harm. Thus, his attention was concentrated on his little brother, not the shooter. Contravious testified that his sister fled to the kitchen and that the only lights on in the house were in the kitchen and his mother’s bedroom. He said that Roshonda told him that she recognized the shooter as the defendant within minutes of the incident, |sthat she never wavered in her identification, and that he did not think that she was lying.

Amberschelle Hampton, the defendant’s teenage daughter, testified that the defendant and his girlfriend, Ellatrice Tyler, picked her up in a black SUV at about 10:30 p.m. on the night of the murders. When they stopped at the home of a Crossley relative, her father told Ms. Tyler to give him a gun which was in the glove compartment. Ms. Tyler complied. The defendant, who was wearing jogging pants and a red shirt, then instructed them to come back and pick him up around midnight or 12:30. The women did as instructed, returning at about midnight. The defendant returned at 12:40, running and out of breath. He changed clothes, placing the clothes he had been wearing in a plastic trash bag. Amberschelle did not recall seeing the gun at this time. After they returned to Ms. Tyler’s house, the defendant told Amberschelle to “keep his name alive.” Thereafter, he was arrested for the Edmonds/Long murders. Ms. Tyler instructed the girl to tell the police that Ms. Tyler had been with her all day.

When shown a photo of the murder weapon, Amberschelle testified that it looked like the black gun her father had that night. She identified the pillowcase in which the gun was recovered as looking like one she had seen in the back of the SUV that night. She also identified the black trash bag and the clothes therein recovered by the police at Ms. Tyler’s house as the items she saw the night of the murders.

|9Police officers testified about the circumstances surrounding the defendant’s arrest. After Ms. Edmonds’ daughter identified the defendant as the shooter, they immediately began to search for him. The first time they went to Ms. Tyler’s house, they did not find him there. When they returned a few hours later at about 5:00 a.m., they searched the house with Ms. Tyler’s permission and discovered the defendant in the bathroom. Because he had been using the toilet, a detective allowed him to wash his hands. The defendant was transported to the police station where he signed a rights waiver form. While the officers told him why he was arrested and that they had witnesses against him, they did not tell him that the witnesses were children or that the victims were shot. Nonetheless, the defendant made incriminating statements that “kids will lie” and asked if they had a gun. When asked his whereabouts at the time of the murders, the defendant indicated that he had been “walking around.”

The police returned to Ms. Tyler’s house a third time at about 7:00 a.m. She again gave them permission to search the house. This time they retrieved a black trash bag containing the defendant’s clothes from the night before. Forensic examination of the clothes revealed GSR on a pair of black pants, a red shirt, and a white t-shirt; no GSR was found on a blue shirt and a pair of white socks found in the same bag. A week later, the police recovered the murder weapon. It was found in a pillowcase at the home of a relative of Ms. Tyler. This residence was located two to three miles from the crime scene. Forensic examination matched bullets recovered from Ms. Edmonds’ body and the shell casings found at the crime scene to the gun.

| )0The officers also testified that in the early hours of September 23, 2007, between 1:00 a.m. and 8:00 a.m., a call was received on the police station landline from a woman who identified herself as “Shani-sha Smith.” The call was placed from an untraceable, prepaid TracFone. The caller suggested that Jerome McHenry might be a suspect in the murders. At about 3:30 a.m., Mr. McHenry came to the police station of his own volition and told officers that he had heard what happened and that he might be a suspect in a murder case. Unaware that Mr. Long had been shot and killed, Mr. McHenry suggested that Mr. Long should be considered a suspect. According to the officers, Mr. McHenry was completely cooperative and was released. Although a swab was taken to test Mr. McHenry’s hands for GSR, the swab was misplaced by the police and never sent for testing.

The defense called Mr. McHenry as a witness. He testified that he dated Ms. Edmonds two or three years before her death. He admitted having a criminal history which included a 2010 conviction for attempted aggravated battery. He also admitted his involvement in two violent incidents involving Ms. Edmonds — in June 2006, he threw a brick through a window at her house, and in July 2006, she was injured when she tried to break up a fight between him and another man. He conceded that she obtained a restraining order against him. However, he said he had moved on from the relationship and had a baby with someone else prior to Ms. Ed-monds’ murder. He disavowed being the father of any of Ms. Edmonds’ children.

_LQMr. McHenry denied involvement in the shooting deaths of Ms. Edmonds and Mr. Long. He testified that he was at a relative’s house for a party from 11:00 a.m. on September 22 until well into the night. When he heard what happened to Ms. Edmonds, he left the party and went to the police station because he was told the police might be looking for him. Although defense counsel attempted to show through Mr. McHenry’s time card that he had actually been at work that day, confusion as to the interpretation of the time card precluded a definitive resolution of the issue. Mr. McHenry maintained that he did not work that day.

The defense also called as witnesses members of the Bastrop Police Department who were involved in the 2006 incidents involving Ms. Edmonds and Mr. McHenry. Photographs of the injuries received by Ms. Edmonds in one of those incidents were misplaced or lost when the city of Bastrop changed its digital media storage system. The defense presented the testimony of the communications officer who took the 911 call from Ms. Ed-monds’ son reporting the shootings and the subsequent call suggesting Mr. McHenry as a suspect.

Eric Avery, who lived in the neighborhood where the murders were committed, testified that he saw both the defendant and Mr. McHenry on the night of the murders. He said he was on his porch smoking and drinking cognac at 10:30 p.m. when the defendant walked up and spoke with him. According to Mr. Avery, he and the defendant are friends, and they saw each other almost daily. The two men spoke for about 20 minutes after which the defendant walked away in the direction of Dotson Park, which 112was in the opposite direction of Ms. Edmonds’ house. Mr. Avery testified that about 15 to 20 minutes later, he observed Mr. McHenry park a Lincoln automobile and begin walking “up the street” toward a trail that led to Ms. Edmonds’ house. However, he lost sight of Mr. McHenry and was unable to say whether Mr. McHenry actually turned onto the trail. Finally, Mr. Avery testified that he went inside to go to bed at around 1:00 a.m. and he did not see either man again that night.

Also testifying for the defense was the former owner of the murder weapon, who stated that it was stolen from his car sometime before the murders and that it was still missing at the time of the murders. Mary McHenry, who was married to Mr. McHenry’s cousin, testified that her son was a suspect in the 2006 theft of the gun, that he supposedly gave it to a friend named Jeremy, and that she unsuccessfully tried to help the police recover the gun.

The state presented evidence pertaining to the defendant’s mental condition through the testimony of the members of the sanity commission, Dr. Williams and Dr. Phifer. Dr. Phifer testified that his initial evaluation of the defendant in 2008 — which resulted in his conclusion that the defendant was incompetent to proceed to stand trial and assist his defense counsel — was hindered by a lack of information. On the other hand, Dr. Williams, who had significantly more information about the defendant’s medical history than Dr. Phifer, believed that the defendant was malingering when he saw him in 2008. (According to medical records reviewed by the doctors, the mental health professionals who treated the defendant at the 11gstate mental hospital apparently concurred in Dr. Williams’ assessment.) Dr. Williams and Dr. Phifer agreed that the defendant presented wholly differently to them in 2011 when they were asked to reevaluate him. Dr. Williams testified that the defendant was not malingering at this time. Based upon their 2011 evaluations, both doctors opined that the defendant knew the difference between right and wrong at the time of the murders.

Discussion

The defendant’s counsel zealously argues that there is more than a slight probability of misidentification in this case. In support, the defendant focuses on Roshonda’s age of 12 years old at the time of the murders and contends that, in light of the striking resemblance of the two men, she could have easily mistaken Mr. McHenry for the defendant. The defendant points out all of the evidence that would support a motive and opportunity for Mr. McHenry and attempts to create doubt by emphasizing that Amberschelle was not close with her father, the defendant, and also suggesting that the defendant may have been framed.

Contrary to the defendant’s assertions, the state presented ample evidence that the defendant was the shooter. This evidence included an eyewitness identification by Roshonda; Amberschelle’s testimony that the defendant asked Ms. Tyler for a gun and her identification of the gun that 114was later found concealed at the home of Ms. Tyler’s relative; the defendant’s unaccounted whereabouts during the shootings; his return and change of clothes, as observed by his daughter; the GSR found on the clothes he had been wearing; the pillowcase that had been in the SUV and in which the gun was concealed; his comment that “kids will lie”; and his knowledge that the deaths were by gunshot before the officers made him aware of the same. In addition, Amberschelle’s testimony that the defendant told her to “keep his name alive” before the police arrived is indicative and probative of his guilt.

The totality of the evidence dictates a finding that the state carried its burden of negating any reasonable probability of misidentification. This assignment of error is without merit.

MOTION TO SUPPRESS

The defendant argues that the trial court erred in denying his motion to suppress the identification that Roshonda Ed-monds made of him based upon a single photograph.

Legal Principles

Motions to suppress evidence are governed by La. C. Cr. P. art. 708 which provides in pertinent part:

A. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion....

| ,-The courts of this state have held that a defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misiden-tifieation as a result of the identification procedure. An identification procedure is unduly suggestive if, during the procedure, the witness’s attention is unduly focused on the defendant. For this reason, identifications arising from single-photograph displays may be viewed in general with suspicion. State v. Sparks, 1988-0017 (La.5/11/11), 68 So.3d 435, cert. denied, — U.S. -, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012). However, their suggestive nature will not per se preclude admissibility unless found to be untrustworthy under the total circumstances. See State v. Goldston, 35,271 (La.App.2d Cir.12/5/01), 804 So.2d 141; State v. Anderson, 30,306 (La.App.2d Cir.1/21/98), 706 So.2d 598; State v. Harris, 28,517 (La.App.2d Cir.8/21/96), 679 So.2d 549, writ denied, 96-2954 (La.9/26/97), 701 So.2d 975.

The central question is whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive. Thus, despite the existence of a suggestive pretrial identification, an in-court identification is permissible if, under all the circumstances, there does not exist a very substantial likelihood of irreparable mis-identification. State v. Sparks, supra.

In evaluating whether a suggestive identification presents a substantial likelihood of misidentification, our courts utilize the factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Those factors include the opportunity of the witness to view the | lncriminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the time of the confrontation, and the length of time between the crime and the confrontation. See State v. Harper, 93-2682 (La.11/30/94), 646 So.2d 338. See also Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Discussion

On September 20, 2011, a hearing was held on the defendant’s motion to suppress the identification of him made by Roshonda Edmonds, which he claims was based upon viewing a single photograph and therefore “highly suggestive” and “illegal.” Ronald Lara, who had been a police detective for the City of Bastrop at the time of the offenses, testified regarding the investigation in this matter. He stated that he questioned Roshonda. She identified the assailant as the defendant by name. She was familiar with the defendant because he had dated her mother about two years before this incident and Roshonda had gone to the store with the defendant on several occasions. According to Detective Lara, Roshonda said that the defendant, Roderick Crossley, did this and she was 100 percent sure. Roshonda was not shown any photographs prior to her statement positively identifying the defendant as the assailant. After she said that Roderick Crossley had committed the murders, she was shown a driver’s license photograph of the defendant. Detective Lara said he showed the |17picture to Ro-shonda, not to identify the defendant, but to confirm that this was the person she was calling Roderick Crossley.

Jerome McHenry was also a suspect. Mr. McHenry was slightly taller than the defendant. According to Detective Lara, someone calling herself Shanisha Smith contacted police and stated that she saw Mr. McHenry get out of a car with a gun and go to the victim’s house on the night of the offenses. Police were never able to locate anyone named Shanisha Smith. Detective Lara stated that he was not sure that such a person exists.

The trial court denied the motion to suppress, reasoning that the motion questioned whether there was a substantial likelihood of misidentification in this case. The trial court found that Roshonda was familiar with both the defendant and Mr. McHenry. She supplied the defendant’s name as the assailant and it was not given to her or suggested to her. The trial court found there was no taint or undue suggestiveness. However, the trial court stated that it would allow the defense to reurge the motion to suppress at a later date.

Without objection by the defense, Ro-shonda testified at trial and identified Mr. Crossley as the individual who committed these offenses. On the night her mother and Mr. Long were killed, Roshonda was awakened by gunshots. She saw Mr. Crossley come out of her mother’s room. Roshonda said she was in the kitchen and Mr. Long was in the living room. She saw Mr. Crossley shoot Mr. Long. Roshonda said that Mr. Crossley was five or six steps from her and she saw his whole face straight on.

11gRoshonda stated that she knew Mr. McHenry and that he and the defendant were about the same size. She testified that Mr. McHenry was not the person who shot Mr. Long. Roshonda stated that on the night she was questioned about the offenses, she was shown one picture. On cross-examination, defense counsel showed her a picture which she correctly identified as Mr. McHenry. On redirect, she was shown a picture which she correctly identified as Mr. Crossley.

After the trial, the defendant attempted to reurge his motion to suppress Roshon-da’s identification of him. On August 3, 2012, the defendant filed a motion for new trial and a motion for post verdict judgment of acquittal, raising several issues, including the argument that identity was very important in this case and that the suggestive identification by Roshonda could have and likely did result in a mis-identification. According to the defense, the evidence which came out at trial regarding the similarity in appearance between Mr. Crossley and Mr. McHenry showed that the trial court should have suppressed the identification of the defendant.

At the hearing on the motion, the trial court acknowledged that at the hearing on the motion to suppress, it stated that the motion could be reurged at a later date if, as the trial went along, there was additional information regarding the identification procedure or a likelihood of misidentification. However, the trial court did not intend that the motion to suppress would be reurged following the trial.

|13The trial court found that there were no indicia of unreliability in the identification, no substantial likelihood of misidenti-fication, and nothing in the course of the trial to cause the court to reverse or change the ruling previously entered. The court found that the identification was proper and was properly admitted.

This matter differs from the usual identification process in which a witness sees a stranger commit an offense and is then asked to identify the perpetrator. Here, Roshonda knew the defendant and stated that she was 100 percent sure that the defendant was the individual she saw shoot Mr. Long in the living room of her home. Only after her statement to police that Mr. Long was shot by Mr. Crossley was she shown the picture of the defendant to ensure that the defendant was actually the person she identified as the assailant. She correctly identified Mr. Crossley in the photograph.

The evidence shows that Roshonda had ample opportunity to view Mr. Crossley at the time of the crime. She testified that she was standing in the kitchen, there was a light on and she could see Mr. Crossley and Mr. Long in the living room when Mr. Crossley shot Mr. Long. She stated that Mr. Crossley was only a few steps away from her and she saw his face straight on.

Roshonda’s degree of attention at the time she saw Mr. Crossley was high. She was awakened by gunshots, ran from her bedroom to the kitchen, and observed Mr. Crossley come out of her mother’s room. She saw Mr. Long in the living room and heard him say, “run, he got a gun,” and then he said, “please help.” She saw Mr. Crossley shoot Mr. Long. Roshonda 12ndescribed her relationship and familiarity with Mr. Crossley, establishing how she knew him and was able to recognize him. Roshonda stated that she was 100 percent sure Mr. Crossley had committed the crimes. Right after the shootings, Ro-shonda told her brother that Mr. Crossley was the shooter. Roshonda then gave her statement to police and observed the picture of Mr. Crossley on the night the offenses were committed. From the night of the offenses through her testimony at trial, Roshonda was entirely consistent in stating that Mr. Crossley shot Mr. Long. Also, Roshonda demonstrated on several occasions that she could clearly distinguish between Mr. Crossley and Mr. McHenry.

The evidence in this case establishes that the identification procedure was not suggestive and there was no likelihood of misidentification. We find no error in the trial court ruling denying the motion to suppress, the motion for new trial, or the motion for post verdict judgment of acquittal which purported to reurge the issues raised in the motion to suppress. The trial court correctly found that the identification was reliable and was admissible.

This assignment of error lacks merit.

SPOLIATION OF EVIDENCE

The defendant argues that the trial court erred in failing to find that there was spoliation of evidence, because the Bastrop Police Department failed to preserve GSR evidence taken from Mr. McHenry’s hands and the photographs taken of Ms. Ed-monds after Mr. McHenry attacked her in 2006. These arguments were never raised pretrial or during the trial and the trial court was not asked to deal with this issue until after the trial was over.

12i Discussion

At trial, it was shown that Mr. McHenry appeared at the police station after the shootings and police swabbed his hands for GSR. However, the swabs were not submitted for testing and were lost. There was also discussion at trial of photographs of Ms. Edmonds taken in 2006, after an altercation with Mr. McHenry. The officer was questioned about the photographs and stated that the pictures got lost or were not downloaded. However, photocopies of the pictures were available at trial and the officer was questioned extensively about Ms. Edmonds’ injuries.

Where issues of spoliation of evidence are raised, the defense often invokes the presumption found in La. R.S. 15:432 and requests a jury instruction to that effect. In this case, the defendant did not request any special jury instructions or otherwise object at trial regarding the issue of spoliation of evidence.

Here, the jury was clearly instructed to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence. Further, defense counsel argued extensively about the GSR and even brought it to the attention of the jury in the opening statement.

La. C. Cr. P. art. 841 provides in pertinent part:

A. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient |22that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.

The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem and prevent the defendant from gambling on a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. State v. Ballay, 99-906 (La.App. 5th Cir.2/29/00), 757 So.2d 115, writ denied, 2000-0908 (La.4/20/01), 790 So.2d 13.

Because the defendant failed to raise the issue of spoliation of evidence in the trial court, it is not properly before this court on appeal. However, we find that no trial court error occurred in this matter. The theory of spoliation of the evidence refers to an intentional destruction of evidence for the purpose of depriving the opposing parties of its use. Spoliation creates a presumption that the evidence was destroyed because it would have been detrimental to one’s case. However, the presumption of spoliation is not applicable when failure to produce the evidence is adequately explained. State v. Bobo, 46,225 (La.App.2d Cir.6/8/11), 77 So.3d 1, writ denied, 2011-1524 (La.12/16/11), 76 So.3d 1202.

The theory of spoliation of the evidence is generally utilized in civil litigation. In criminal cases, an appellant is not deprived of his due process rights based upon the state’s failure to preserve potentially exculpatory evidentiary material unless bad faith is demonstrated. To receive the adverse inference, two conditions are required, destruction of evidence and 1 gjbad faith. State v. Goosby, 47,772 (La. App.2d Cir.3/6/13), 111 So.3d 494. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); State v. Harris, 2001-2730 (La.1/19/05), 892 So.2d 1238, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005); State v. Seals, 09-1089 (La.App. 5th Cir.12/29/11), 83 So.3d 285, writ denied, 2012-0293 (La.10/26/12), 99 So.3d 53, cert. denied, — U.S. -, 133 S.Ct. 2796, — L.Ed.2d - (2013), 2013 WL 373571.

In this case, as noted above, there was no objection at trial to any issue regarding the loss of evidence. Further, there is no showing in the record that the loss of the GSR swab or the photos of Ms. Edmonds after her altercation with Mr. McHenry in 2006, were attributable to any bad faith on the part of the prosecution or law enforcement officials. The defendant’s claim on this issue is without merit.

COMPETENCY TO STAND TRIAL

The defendant argues that the trial court erred in finding him competent to stand trial or tacitly finding him able to tell right from wrong at the time of the offenses.

Legal Principies

A criminal defendant has a constitutional right not to be tried while legally incompetent. A state must observe procedures adequate to protect a defendant’s right not to be tried while incompetent, and its failure to do so deprives the defendant of his due process rights to a fair trial. State v. Carmouche, 2001-0405 (La.5/14/02), 872 So.2d 1020; State v. Edwards, 44,552 (La.App.2d Cir.8/19/09), 17 So.3d 1037.

[^Louisiana’s statutory scheme for detecting mental incapacity jealously guards a defendant’s right to a fair trial. State v. Carmouche, supra.

La. C. Cr. P. art. 641 sets forth:

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.

La. C. Cr. P. art. 643 provides that a court shall order a mental examination of a defendant and accordingly appoint a sanity commission when it has reasonable ground to doubt the defendant’s mental capacity to proceed. Reasonable ground in this context refers to information which, objectively considered, should reasonably raise a doubt about the defendant’s competency and alert the court to the possibility that the defendant can neither understand the proceedings, appreciate them significance, nor rationally aid his attorney in his defense. In the exercise of its discretion, the court may consider both lay and expert testimony before deciding whether reasonable grounds exist for doubting the defendant’s capacity to proceed and ruling on the defendant’s motion to appoint a sanity commission. State v. Carmouche, supra.

The defense carries the burden of proving by a clear preponderance of the evidence that, as a result of a mental disease or defect, he lacks the capacity to understand the proceedings against him or to assist in his defense. The judge’s determination of a defendant’s present mental capacity is entitled to great weight and his ruling will be reversed only if it is clearly erroneous. State v. Bennett, 345 So.2d 1129 (La.1977).

12óThe decision as to a defendant’s competency to stand trial should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case and the gravity of the decisions with which he is faced. State v. Bennett, supra. In State v. Bennett, supra, the supreme court stated that the appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include:

whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction.

The supreme court in State v. Bennett, supra, also stated that the facts to consider in determining an accused’s ability to assist in his defense include:

whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.

Discussion

We find no error in the trial court’s determination that the defendant was competent to stand trial. In March 2008, the defense filed a motion to appoint a sanity commission to examine the defendant as to his present ^mental condition and his mental condition at the time of the offense. The defense argued that there was good reason to believe that the defendant did not have the mental capacity to understand the proceedings against him or to assist in his defense. The defense cited two previous mental examinations of the defendant in support of its argument. These evaluations appear to have been conducted in conjunction with the defendant’s application for Social Security Disability benefits. The trial court granted the application and appointed Dr. Phifer and Dr. Williams to the sanity commission.

On May 13, 2008, Dr. Phifer sent a letter to the trial court outlining his examination and evaluation of the defendant. He said that the defendant was aware of his incarceration, but was unable to convey the reason for it. He did not understand the function of the judge or the court and had no understanding of the legal process. According to Dr. Phifer, the defendant did not know that he had a defense attorney appointed to represent him.

Dr. Phifer had access to the 1997 evaluations of the defendant for Social Security by Dr. Mitchell Stephens, a psychiatrist, and Dr. Ross Reiser, a psychologist. Dr. Stephens found that the defendant had a psychotic disorder, based on complaints of auditory hallucinations, poverty of content of speech, guardedness and suspiciousness. The results of Dr. Reiser’s psychological testing showed the defendant to have a full scale IQ of 45 and raised questions as to whether the defendant was profoundly retarded or profoundly psychotic. Dr. Phifer stated that when he examined the defendant, he did not appear to be confabulating, or withholding information or in any other way attempting to deceive Dr. Phifer.

127Pr. Phifer found that the defendant was not competent to proceed to trial at that time. According to Dr. Phifer, the defendant did not understand the charges against him, or the potential consequences of being convicted of these crimes. He did not understand the legal process or the function of a court, had a very limited vocabulary with limited intellect and would not be able to assist an attorney in preparing his defense or to listen to testimony and counter any distortions or misstatements. Dr. Phifer stated that the defendant suffered from mild mental retardation which is a static condition and not expected to resolve with treatment.

On May 7, 2008, Dr. Williams sent a letter to the trial court detailing his evaluation of the defendant. The defendant told Dr. Williams that he attended school through the seventh grade, had never had a job, had never been married, and had no children. The defendant knew that he was charged with murder, but denied knowing who was killed.

Dr. Williams stated that the defendant laughed inappropriately at times, not of a psychotic nature, but of a malingering fashion. Dr. Williams saw no evidence of auditory or visual hallucinations, delusions, association defects, referential thinking, or flight of ideas. Dr. Williams’ diagnostic impression was that the defendant was malingering and had mild mental retardation.

Dr. Williams found that, at that time, the defendant did not have the ability to consult with his attorney with a reasonable degree of rational ^understanding. Dr. Williams had access to both evaluations of the defendant made to obtain Social Security Disability benefits. In his first evaluation in approximately 1991, the defendant’s IQ was 69. Several years later in approximately 1997, when reapplying for Social Security Disability benefits, his IQ score was 45. Dr. Williams stated that it was clear from the defendant’s behavior in the present examination, such as hiding clothing in a black bag under his bed, denying his daughter, his previous testimony before the Social Security Administration, and having an IQ in the range of 70, that he was malingering and in fact was attempting to act in a profoundly mentally retarded fashion. Dr. Williams stated, “No one who is that level of retarded would be able to malinger as he.” Dr. Williams added that, as a result of the defendant’s failure to cooperate, he was unable to determine the defendant’s knowledge of right from wrong with reference to the conduct in question at the time of the alleged offense. Dr. Williams stated that, if the court determined that the defendant was not competent to proceed, he should be transferred to ELMHS, where he would be incarcerated, medicated if needed, observed over a period of time, and reinstated to a state of competency where he could proceed to trial.

On June 26, 2008, the trial court entered a judgment finding that, after a hearing and review of the sanity commission reports, the defendant lacked the mental capacity to proceed because he had a mental disease or defect which rendered him incapable of understanding the proceedings against him and assisting in his defense. The proceedings were suspended and the defendant was committed to ELMHS.

129The defendant was eventually admitted to ELMHS. On November 9, 2009, the hospital made a forensic competency evaluation and report which noted that upon admission, he did not present with any overt signs of psychosis that would warrant treatment with psychotropic medications. Part of the defendant’s evaluation included a malingering assessment. A psychological consultation report in November 2009 showed that his IQ could not be obtained through testing because his scores fell in the range of those classified as malingering. This indicated that the defendant made an insufficient effort to do well, at best, and made a deliberate attempt to feign memory and intellectual impairment, at worst. It was noted that prior testing showed that the defendant had an IQ in the range of 70 in 1991, in conjunction with an application for Social Security Disability benefits, and an IQ of 45 in approximately 1996, also in conjunction with an application for Social Security Disability benefits. According to the psychological consultation report, there was no data available to explain a discrepancy to this degree.

The diagnostic impression of the defendant stated that malingering would be a plausible explanation for his presentation of symptoms of psychosis and severe cognitive problems. Mental retardation was ruled out and the level of intelligence demonstrated by the defendant suggested that he should not have significant problems learning new information needed to be determined competent to proceed to trial.

The defendant was enrolled in a competency restoration program. As the weeks progressed, he demonstrated a good knowledge of the courtroom | ^proceedings against him. According to the hospital, approximately six weeks after his admission, the defendant was able to answer all of the questions related to the criteria in State v. Bennett, supra, set forth above. Following a formal assessment by those treating the defendant, the general consensus was that he was making a conscious effort to embellish and exaggerate his symptoms.

On November 20, 2009, the hospital sent a letter to the trial court reporting that, after comprehensive evaluation and treatment, the defendant had the mental capacity to proceed because he now understood the proceedings against him and could assist his attorney in his defense. According to the hospital evaluation, the defendant was taking only an antidepressant medication on admission. The hospital found that the defendant had a depressive disorder, was malingering psychosis, had cognitive deficits, and was dependent on alcohol and hallucinogens, which was in remission iin a controlled environment. At a hearing on December 29, 2009, the trial court found that the defendant was competent to Iproceed to trial. The defense did not ob-Iject to this ruling.

I Pursuant to instructions by the trial court, on January 11, 2011, the state filed a Inotion for the appointment of another sanity commission to determine whether the llefendant knew right from wrong at the lime of the offense. Dr. Williams reexam-lied the defendant and sent a letter to the ■ial court on May 12, 2011. Dr. Williams ■included that the defendant was compe-■nt to stand trial and, at the time of the Jleged offenses, he was not |31 suffering from any mental disease or defect that rendered him incapable of distinguishing right from wrong with reference to the conduct in question.

Dr. Williams testified at trial that the defendant was malingering when he was examined in 2008. In 2011, the defendant was more forthcoming in his information and answered questions more thoroughly.

Dr. Phifer was also appointed to the second sanity commission and testified at trial. He stated that in 2008, the defendant appeared to be psychotic, but in 2011, he was a completely different man. Dr. Phifer testified that in 2008, Dr. Williams evaluated the defendant one week prior to Dr. Phifer’s evaluation. According to Dr. Phifer, if he had read the report by Dr. Williams in 2008, he would also have considered malingering as a strong part of his opinion. In 2011, Dr. Phifer found that the defendant had the capacity to stand trial. Dr. Phifer also stated that, based on the 2011 evaluation, it is likely that the defendant would have been able to tell the difference between right and wrong at the time of the offenses.

The record shows that in 2008, the defendant was found not competent to stand trial. After the defendant was admitted to ELMHS, it was established that he was malingering. The defendant was educated regarding the judicial process and it was established that he was competent to stand trial. There is no showing that the trial court erred in finding that the defendant was competent to stand trial based upon this extensive medical evidence. Further, the defense lodged no objections to the trial court’s rulings on this issue.

|32The defendant argues that the trial court erred in tacitly finding that he was able to tell right from wrong at the time of the offenses. A determination of sanity at the time of the commission of the offense is a factual matter and it to be made by the finder of fact. See State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27. A defendant’s knowledge of the difference between right and wrong is relevant in determining his criminal liability, but is totally ii-relevant to the issue of his competency to stand trial. See State v. Bennett, supra. The trial court ruled only on the defendant’s competency to stand trial. It did not make any findings, tacitly or otherwise, regarding his sanity at the time of the commission of the offenses. It would have been up to the jury, as the trier of fact, to make a determination as to the defendant’s sanity when the offenses were committed. However, in this case, although the defendant entered the dual plea of not guilty and not guilty by reason of insanity, defense counsel, with the express consent of the defendant, did not contend that the defendant should be excused from criminal liability in this matter because he was insane at the time the offenses were committed. Rather, defense counsel consistently argued that the defendant did not commit the offenses. Defense counsel explained that the plea of not guilty by reason of insanity was made only in order to present evidence regarding the defendant’s mental condition in order to explain actions and statements made after or during the course of the investigation. The trier of fact, which in this case was the jury, was not called upon to and did not make a finding as to whether the defendant was insane at the time of the commission of the offenses. Although both Dr. lasWilliams and Dr. Phifer concluded that the defendant understood right from wrong at the time of the commission of the offenses, this was not an issue at the trial.

This assignment of error is without merit.

EXCESSIVE SENTENCES

The defendant argues that, due to the “paucity of evidence” against him and his limited mental capacity, the mandatory life sentences imposed upon him are constitutionally excessive.

Legal Principles

Where, as here, no motion to reconsider sentence was filed, the defendant is relegated to a claim of constitutional excessiveness. State v. Guess, 47,370 (La.App.2d Cir.8/8/12), 104 So.3d 41, unit denied, 2012-1987 (La.3/8/13), 109 So.3d 357.

The test for constitutional ex-cessiveness is whether the sentence 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. Guess, supra, citing State v. Smith, 2001-2574 (La. 1/14/03), 839 So.2d 1, and State v. Dorthey, 623 So.2d 1276 (La.1993). 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. Guess, supra; State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

The assertion that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment under |34La. Const, art. 1, § 20 has been repeatedly rejected. State v. Guess, supra; State v. Parker, 416 So.2d 545 (La.1982); State v. Brooks, 350 So.2d 1174 (La.1977); State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556.

Discussion

Even though the legislature has provided a mandatory life sentence without benefits for the crime of second degree murder, the trial court ordered a presen-tence investigation. Before imposing sen-1 fence, the trial court thoroughly consid-| ered the factors of La. C. Cr. P. art. 894.1 and painstakingly articulated the basis for the sentences imposed. The trial court specifically noted the seriousness of the offenses and the horrible loss suffered by the families of the two murder victims.

The circumstances of these murders were particularly harrowing. Ms. Ed-monds was shot in her bedroom while her three children slept in the next room. Mr. Long was shot multiple times as he attempted to escape from the defendant and to warn the children to flee. In the ensuing chaos, the children scattered. As Ms. Edmonds’ older son heroically shielded his little brother with his own body in one room, her 12-year-old daughter ran to the kitchen. From this vantage point, the frightened girl helplessly watched as the defendant shot Mr. Long. The defendant was aware that the children lived in the house as evidenced by his comment that “kids will lie” when the police advised him that there were witnesses to the shootings. Furthermore, the fact that the defendant is a slow learner or has a low IQ does not insulate |3F,him from punishment for these terrible crimes. The mandatory life sentences imposed in this case do not shock the sense of justice.

This assignment of error is without merit.

PRO SE ASSIGNMENTS OF ERROR

The defendant filed a pro se brief which appears to assert two arguments — “witness error” and “error of judge and courts.” He makes numerous factual assertions which are not supported by the evidence presented at trial. Essentially, he alleges a conspiracy orchestrated by the police to frame him for the murders and involving the complicity of the main witnesses at trial, including his own daughter. Most of his complaints, such as sufficiency of evidence and spoliation of evidence, have already been addressed in the assignments of error asserted on appeal by defense counsel. We will now attempt to address the additional issues raised by the defendant.

Photo Confusion

The defendant contends that in his rebuttal argument, the prosecutor misrepresented to the jury that defense counsel had held up a photo of the defendant during his closing argument when he meant to show a photo of Mr. McHenry.

Review of the record indicates that during the defense’s closing argument, while arguing that the defendant and Mr. McHenry resembled each other, defense counsel held up a photo supposedly of Mr. McHenry and said, “It’s hard to tell the difference even with — As a matter of fact, I would have thought that this was Roderick.” At the beginning of his prebuttal argument, the prosecutor asserted that the photo held up by defense counsel was actually a photo of the defendant, not Mr. McHenry. Defense counsel objected, asserting that the statement misrepresented what he did. The trial court overruled the objection on the basis that the jury could decide what was argued or not argued. Between the conclusion of closing arguments and the trial court’s reading of the jury instructions, defense counsel moved for a mistrial. The motion was denied; the trial court found no grounds for mandatory mistrial under La. C. Cr. P. art. 770. The trial court also declined to give an admonition to the jury under La. C. Cr. P. art. 771, as that would constitute the court making a comment upon the evidence, which is prohibited under La. C. Cr. P. art. 772. The trial court concluded that the jury was “perfectly capable of sorting out” whether the prosecutor was incorrect in saying that defense counsel showed them the wrong photo.

We agree with the trial court’s analysis of this issue. The members of the jury observed the photo utilized during closing arguments. They were in a position to determine for themselves what in fact occurred and it was within their province to accept or reject the arguments made by the lawyers on this matter. Further, the jury instructions clearly provided that statements and arguments made by the attorneys are not evidence.

We find no merit to these pro se assignments of error.

| ^Ineffective Assistance of Counsel

The defendant also alleges ineffective assistance of counsel in failing to interview witnesses. Specifically, he contends that his trial counsel did not interview the “lone eyewitness to Defendant’s killings prior to Defendants [sic] murder trial to ensure that he would corroborate Defense theory” and that trial counsel interviewed the “primary mental health expert only days before trial.” He also seems to claim that his trial counsel should have retained a mental health expert in “reasonable time in advance of trial.”

In assessing a claim of ineffective assistance of counsel, a two-pronged test is employed. The defendant must show that: (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (PCR) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Payne, 47,481 (La.App.2d Cir. 12/12/12), 108 So.3d 174. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Payne, supra.

While the record generally reveals the presentation of a spirited and impassioned defense by the defendant’s trial attorneys, it is insufficient for this court to review the specific issues of ineffective assistance alleged by the defendant. We do note that the record indicates that defense counsel did |3Sattempt to interview at least one of the state’s witnesses, Amberschelle Hampton, who exercised her right not to talk to defense counsel. Further, the defense in this case was mistaken identity and not insanity. Consequently, there does not appear to be a reason to hire a mental health expert to testify at trial. However, the defendant’s remedy is PCR wherein the quality of the attorney’s performance can be fully developed and explored in an evidentiary hearing. Thus, this issue is not properly before this court and we will defer the claim of ineffective assistance of counsel to PCR. State v. Kinsey, 42,935 (La.App.2d Cir.2/13/08), 976 So.2d 315.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The sanity commissions will be discussed in greater detail infra under the appropriate assignment of error.

      . Ms. Tyler was charged as an accessory after the fact to two counts of second degree murder. She invoked her Fifth Amendment rights and refused to testify at the defendant's trial.

      . In his pro se brief, the defendant similarly attacks his convictions and the testimony of the witnesses against him.

      . In support of his theory, the defendant cast aspersions on the paternity of two of the main witnesses against him — Roshonda and Am-berschelle — insinuating that the former was Mr. McHenry’s child and that the latter was not the defendant’s daughter. He also alleged that Mr. McHenry had a relationship with the Bastrop Police Department as an informant and that the police were consequently motivated not to pursue him as a suspect in the Edmonds/Long murders.

      . La. R.S. 15:432 provides in pertinent part: A legal presumption relieves him in whose favor it exists from the necessity of any proof; ... such is the presumption ... that evidence under the control of a party and not produced by him was not produced because it would not have aided him....

      . Odier information regarding the defendant, some of which was available to Dr. Williams, showed that the defendant attended school beyond the seventh grade, that he had been married, that he had some work history, and that he had at least one child.

      . A witness is free to choose whether he or she speaks with opposing counsel and that determination shall be made by the witness alone, as long as the state does not deny the defense access to the witness. State v. Casey, 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).


author: STEWART, J.

text:
    FOSTER CONSTRUCTION, INC., Plaintiff-Appellant v. TOWN OF RICHWOOD, Defendant-Appellee.
    No. 48,171-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.
    Rehearing Denied Aug. 1, 2013.
    Thomas O. Wells, Alexandria, LA, for |ppellant.
    Jay Nolen, Monroe, LA, for Appellee.
    Before STEWART, CARAWAY and PITMAN, JJ.
   STEWART, J.

_JjAt issue is whether the plaintiff, Foster Construction, Inc. (“Foster”), is entitled to a writ of mandamus as authorized by La. R.S. 38:2191(D) to compel the Town of Richwood (“Richwood”) to pay the final balance due on a contract for the construction of a multipurpose building. Because the record does not show any appropriation by Richwood for the award or execution of the contract, we affirm the trial court’s judgment denying Foster’s rule for mandamus relief.

FACTS

On August 4, 2011, Foster sued Rich-wood to obtain payment of $49,174.28, the balance due, referred to as the retainage, under a contract for the construction of a multipurpose building. The petition alleged that Richwood refused to pay because it did not have sufficient funds. The contract, which was introduced into evidence, stated that the cost of the construction project was $495,751.

On January 3, 2012, Foster filed a supplemental and amending petition requesting issuance of a mandamus order under La. R.S. 38:2191(D) to compel Richwood to pay the amount due. The petition also named additional defendants against whom alternative relief was sought in the event the request for mandamus would be denied. The additional defendants included three aldermen who, according to the petition, voted to accept Foster’s bid after it had been disclosed during a special meeting on July 20, 2010, that Richwood did not have sufficient funds to pay the bid.

A hearing on Foster’s request for mandamus relief was held on April 17, 2012. Steven B. Hunter, the mayor of Richwood, testified that he signed |2the construction contract on behalf of Richwood and that he believed at the time of contracting, and based on information from the town clerk, that Richwood had money to fund the construction. However, he testified that the town did not now have the funds to pay the balance due.

When asked about how the construction contract was funded, Mayor Hunter explained to the trial court that Richwood’s prior administration had borrowed money to pay off the town’s substantial debts. The money remaining was used to fund the construction of the multipurpose building. Disbursements during construction were handled by a trustee with the Bank of New York, which is presumably where the funds used for the construction project were held. When the funds held by the Bank of New York ran out, Richwood made two payments to Foster from its general fund. Richwood paid $20,203.53 on January 14, 2011, and an additional $1,257 on March 17, 2011. The mayor testified that there was no additional unallocated money in the general fund to pay the remaining contract balance.

The owner of Foster, Michael D. Foster (“Mr. Foster”), testified that he demanded payment of the retainage after getting the certificate of substantial completion and a lien-free certificate. Instead of payment, he received a letter from Mayor Hunter dated June 24, 2011, informing him that Richwood could not pay the balance due. Mayor Hunter’s letter attributed Rich-wood’s inability to pay to delays in opening a new bingo hall. The letter requested more time to submit the payment. Mr. Foster |3testified that he had not been told that the town was running out of money and that he would have stopped construction if he had been told the facts.

The record shows that the certificate of substantial completion was recorded on February 25, 2011, and that the lien-free certificate was filed on April 15, 2011.

At the close of the hearing, the trial court took the matter under advisement and ordered the parties to submit memo-randa. While the matter was under advisement, Richwood filed an exception of no right of action. It asserted that La. R.S. 38:2191 did not provide a right to seek a writ of mandamus at the time the contract was confected and that the amendment to provide for such relief did not become effective until August 15, 2011, after the contracted project was completed. It further asserted that the amendment was substantive in nature and not subject to retroactive application.

The trial court entered a written ruling on August 9, 2012, denying Foster mandamus relief. The trial court agreed with Richwood’s argument that the amendment to La. R.S. 38:2191, adding the right to seek mandamus relief, was a substantive change in the law and could not be applied retroactively to this case. Additionally, the trial court determined that, even if applied retroactively, Foster would not be entitled to relief because no funds had been appropriated by Richwood for payment of the balance owed. Judgment denying Foster’s request for mandamus relief was signed on October 5, 2012. The judgment was designated a final judgment for purposes of an immediate appeal.

|4On appeal, Foster asserts that the trial court erred in determining the amendment of La. R.S. 38:2191 to be substantive, rather than procedural and applicable to this matter. Foster also asserts error in the trial court’s finding that Richwood had not appropriated funds to pay the contract.

DISCUSSION

Public entities who enter public contracts are required to promptly pay obli-| gations, including progressive stage payments and final payments, when they become due and payable under such contracts. La. R.S. 38:2191(A). A public entity that fails to make a final payment after formal final acceptance and within 45 days following receipt of a clear lien certificate shall be liable for reasonable attorney fees. La. R.S. 38:2191(B). These statutory provisions shall not be waived by contract. La. R.S. 38:2191(0).

By Acts 2011, No. 184, § 1, subsection (D) was added to provide for mandamus relief. La. R.S. 38:2191(D) states:

D. Any public entity failing to make any progressive stage payments arbitrarily or without reasonable cause, or any final payment when due as provided in this Section, shall be subject to mandamus to compel the payment of the sums due under the contract up to the amount of the appropriation made for the award and execution of the contract.

This provision became effective on August 15, 2011, which was after Foster completed the work under the contract and after it filed this suit for payment of the balance due.

Ordinarily, we would endeavor to determine whether the new law is procedural or interpretive such that it may be applied retroactively to the cause of action, or whether it is substantive and subject to prospective | ¿application only. La. C.C. art. 6; Burks v. Christus Health Monroe, 39,540 (La.App.2d Cir.4/6/05), 899 So.2d 775, writ denied, 2005-1184 (La.11/28/05), 916 So.2d 146. However, we pretermit this determination in this instance because, even if subsection (D) may be applied to the cause of action before us, mandamus relief is still not available to Foster on this record.

Under La. R.S. 38:2191(D), mandamus relief is available to compel payment “up to the amount of the appropriation made for the award and execution of the contract.” This provision presupposes that the public entity made an appropriation for the contract when awarded. Thus, we must determine whether the record shows that the town appropriated funds for the award and execution of the contract.

The Town of Richwood is a municipality governed by a mayor and aldermen form of government. Therefore, it is subject to the provisions of La. R.S. 33:321 et seg., pertaining to local governments. Regarding appropriations, La. R.S. 33:406(A)(3) provides that any act of the board of aider-men “which would provide for the appropriation of funds, the incurrence of debt, or the issuance of bonds or other evidences of indebtedness shall be by ordinance.” Additionally, La. R.S. 33:462, which addresses expenditures made pursuant to appropriations, provides as follows:

All expenditures of money for any purpose whatever shall be in pursuance of a specific appropriation made by order and in no other manner and shall be made in accordance with the provisions of R.S. 38:2211 et seq. Every warrant drawn on the treasury shall express on its face to whom issued and for what purpose allowed; and the ordinance authorizing its issue shall be cited by minute book and page, in or upon it.

| nThese two provisions make clear that an ordinance is required to appropriate funds for the public entity’s expenditures. Foster does not directly address whether Richwood appropriated funds for the contract. It merely asserts that Richwood did not provide sufficient evidence to show there was no appropriation of funding for the contract. The trial court found that there was no appropriation, and the record supports this factual determination. Moreover, the burden was on Foster to prove its entitlement to mandamus relief. Foster did not prove that Richwood made any appropriation to fund the contract. There is no merit to Foster’s suggestion that accepting the bid and signing the contract equates to an appropriation of funding. The statutes cited above require an appropriation of funds to be made by an ordinance. There is no evidence in this record of any ordinance concerning the appropriation of funds for the contract.

As stated, the record supports the trial court’s finding that there was no appropriation. According to Foster’s supplemental and amending petition, which was entered into evidence in conjunction with the entire record, it was disclosed at a special meeting on July 20, 2010, to consider Foster’s bid that Richwood did not have sufficient funds to pay the amount of the bid. Foster sued three aldermen individually because they voted to accept its bid despite the town’s lack of sufficient funds to pay the contract amount.

Mayor Hunter’s testimony suggests that the contract amount was paid out of funds held by the Bank of New York and remaining from money borrowed by the pri- or administration to pay some of the town’s debts. 17When those funds ran out, Richwood had no money to pay the final balance or retainage owed to Foster. The two additional payments to Foster came from Richwood’s general fund, not from funds appropriated for the contract.

Citing Lambert v. LaBruyere, 154 So.2d 466 (LaApp. 4th Cir.1963), Foster asserts that mandamus is warranted because payment of the undisputed balance due is a ministerial act that may be compelled by a mandamus order. The facts of the case distinguish it from this matter.

In Lambert, supra, the parish council passed a resolution authorizing the finance director to pay the contract price upon completion, but the finance director issued a check for a lesser amount. Because the parish council had approved and accepted the work and authorized payment, the court determined that the issuance of mandamus was warranted. The amount due was not in dispute and the mandamus would compel what was a ministerial act by the finance director, who had no authority to determine whether the contract had been executed fully and satisfactorily or pay a lesser amount than authorized by the parish council for the contract price.

Here, though Richwood does not dispute the amount due and though a certificate of substantial completion had been issued, there was no authorization by ordinance for payment of the balance. As previously stated, the record does not show that Rich-wood made any appropriation for the award and execution of the contract. Under the facts of this case, payment of the balance due is not merely a ministerial act and cannot be compelled by mandamus. Nor can this court compel Richwood to appropriate funds to pay the balance. Our law clearly provides that the act | sof appropriating funds is discretionary and that a writ of mandamus may not issue to compel this discretionary legislative action. Newman Marchive Partnership, Inc. v. City of Shreveport, 2007-1890 (La.4/8/08), 979 So.2d 1262; Hoag v. State, 2004-0857 (La.12/1/04), 889 So.2d 1019; Heath v. City of Alexandria, 2010-280 (La.App. 3d Cir.10/6/10), 52 So.Bd 86, writ denied, 2010-2493 (La.1/7/11), 52 So.3d 886.

Notably, La. R.S. 38:2191(D) allows for mandamus where there has been an appropriation for the award and execution of the contract. It does not authorize mandamus to compel an appropriation for payment of sums due under a contract. Such authorization would be contrary to La. Const, art. 12, § 10(C), which prohibits the seizure of public property or public funds.

Under La. R.S. 38:2191(A), public entities are required to pay obligations under public contracts when they become due. The allowance of mandamus relief where the public entity has appropriated funds for the award and execution of a contract suggests that payment of the balance due pursuant to an appropriation is a ministerial duty, rather than a discretionary act. Mandamus may be ordered to compel a public officer to perform a ministerial duty required by law. La. C.C.P. art. 3863.

However, the record in this matter does not establish that funds were appropriated for the award and execution of the contract between Richwood and Foster. Though this court does not condone Richwood’s conduct in this matter, we are constrained to find that mandamus relief is not available under La. R.S. 38:2191(D).

^CONCLUSION

For the reasons expressed, we affirm the trial court’s judgment denying the plaintiff mandamus relief. Appeal costs are assessed to the plaintiff, Foster Construction, Inc.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, DREW and PITMAN, JJ.

Rehearing denied.