author: WILLIAMS, J.

text:
    Laura O. BLOXHAM, Plaintiff-Appellant v. JEFFREY V. ANZALONE, D.D.S., L.L.C., Jeffrey V. Anzalone, D.D.S., Individually, and Lammico Insurance Agency, Inc., Defendant-Appellee.
    No. 48,690-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 19, 2014.

      G. Gregory Green, Michael J. Mestayer, Lafayette, Counsel for Appellant.
    Brian E. Crawford, Monroe, Counsel for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   WILLIAMS, J.

Lin this dental malpractice action, plaintiff, Gerald M. Bloxham, as substituted plaintiff for Laura 0. Bloxham (deceased), appeals the trial court’s judgment in favor of defendants, Jeffrey V. Anzalone, D.D.S., L.L.C., Jeffrey Anzalone, D.D.S., individually, and medical malpractice insurer, Louisiana Medical Mutual Insurance Company (“LAMMICO”). For the following reasons, we affirm.

FACTS

Mrs. Bloxham had an external dental implant placed by Dr. Eric Geist, a periodontist, in 1986. In 2005, she went to Dr. Geist complaining of episodes of soreness in her gums. Dr. Geist noted that Mrs. Bloxham had a “small area of inflammation with minimal drainage, ulcer like[.]” He irrigated the area, applied Negatan and instructed her to follow up with her family dentist, Dr. Robert Hufstutter.

Mrs. Bloxham continued to experience problems associated with inflammation as a result of food accumulating around the implant. Dr. Hufstutter referred her to defendant, Dr. Jeffrey Anzalone, with the following notation:

Jeff, Dr. Geist recently evaluated this old implant [and] deemed it stable [and] functional but she continues to have problems with the tissue around the left post[.] I’m hoping you can help recont-our this area.

On August 2, 2006, Dr. Anzalone evaluated Mrs. Bloxham and noted:

Patient was seen today for consultation concerning peri-implantitis. PA reveals bone loss# 22 implant with | ¡igingival irritation and 6mm probing depths. Recommended bone grafting and new reline. Pt to not wear denture for a minimum of 2 weeks. Risks and consents were discussed and accepted.

On August 4, 2006, Dr. Anzalone performed a debridement of the tissue around the implant. During the procedure, Dr. Anzalone made an incision and retracted the gum. According to Dr. Anzalone, once he retracted Mrs. Bloxham’s gum, he observed that the implant had become integrated into her jawbone and that she had incurred bone loss. Dr. Anzalone elected to insert a bone graft, during which he cut and extracted a portion of Mrs. Bloxham’s gum, exposed the jawbone and inserted bony material into the jawbone.

Mrs. Bloxham returned to Dr. Anzalone for her first post-operative visit on August 21, 2006. According to Dr. Anzalone’s records, she reported that she was experiencing “numbness from 3mm left of midline to mental foramen area.” She also reported that she was experiencing a “muscle twitch and some of the tingling has increased.” At the next visit, September 6, 2006, Mrs. Bloxham complained of “numbness and a burning sensation” in her lip and tongue. Dr. Anzalone ordered a Medrol dose pack and noted that he “reassured [Mrs. Blox-ham] that this was probably due to bruising and swelling around the nerve.” At subsequent visits, Mrs. Bloxham continued to complain of numbness and the burning sensation.

Thereafter, Dr. Anzalone conferred with Dr. Geist and Dr. Roger Meyer, a micro-neurosurgeon in Atlanta, Georgia, with regard to Mrs. Bloxham’s symptoms. He then referred Mrs. Bloxham to Dr. Vipul Shelat, a | Jocal neurologist, for evaluation.

Approximately twelve weeks after the procedure, Mrs. Bloxham returned to Dr. Geist. She informed him that she had been experiencing numbness and “burning pain” since the procedure performed by Dr. Anzalone. Dr. Geist examined her and noted that the old implant was still secure. Ultimately, he referred her to Dr. John Zuniga, an oral and maxillofacial surgeon, in Dallas, Texas.

Dr. Zuniga examined Mrs. Bloxham in December 2006, approximately four months after Dr. Anzalone performed the debridement and bone grafting procedure. Dr. Zuniga noted that Mrs. Bloxham was complaining of numbness in her lips and numbness/burning in her tongue since her procedure. Initially, he elected to treat her with “conservative management.” However, since Mrs. Bloxham was unable to tolerate many of the medications prescribed, Dr. Zuniga decided to perform surgery. During the operation, he noted that Mrs. Bloxham’s mental nerve was encased or compressed by the old implant. Dr. Zuniga’s procedure failed to relieve Mrs. Bloxham’s pain and numbness.

Thereafter, Mrs. Bloxham was examined by various specialists and underwent extensive treatment, including additional surgeries, in an effort to correct the problem. Finally, Mrs. Bloxham elected to have her mental nerve transected (severed) to relieve her pain; the procedure was performed by Dr. Ghali Ghali, an oral maxillo-facial surgeon, on January 22, 2010. As a result, she had permanent numbness in the affected area.

Subsequently, plaintiff filed a medical malpractice complaint against Dr. Anza-lone with the Patient’s Compensation Fund; a medical review panel |4was convened. The panel unanimously concluded, “The placement of the bone graft in the area, due to the type of implant present, falls outside the standard of care for this case.” However, with regard to the issue of causation, the panel stated:

This panel is unable to determine from the information it was provided whether the procedure Dr. Anzalone performed caused the damages described in plaintiffs complaint. Dr. Zuniga’s records indicate that the compression of the nerve was from the implant. This panel does not have sufficient information to determine whether the procedure performed by Dr. Anzalone caused or contributed to that compression.

On August 26, 2009, plaintiff filed a medical malpractice action against Dr. Anza-lone, individually, his limited liability dental practice and LAMMICO, alleging that the impingement of her mental nerve and her subsequent ongoing symptoms were caused by “improper surgical techniques, improper implantation of a graft in the vicinity of a nerve location, lack of appropriate sedative administration, incomplete or inaccurate assessment of the nerve locations, and/or such other deficiencies in the surgical procedure as discovery may disclose.” Additionally, plaintiff invoked the doctrine of res ipsa loquitur “to transfer the burden of proof to [defendant] to demonstrate that his medical procedure not only did not, but could not have, caused the numbness and burning complained of by [plaintiff].” Plaintiff sought general and special damages, including costs of the medical review panel proceedings.

Subsequently, on September 24, 2012, plaintiff filed a pleading entitled “Motions in Limine Concerning (1) Use of the Doctrine of Res Ipsa Loquitur, (2) Use of the Housley Presumption of Causation, (3) Exclusion of 15the Defense of Informed Consent, (4) Exclusion of the Defense of Comparative Fault, and (5) Exclusion of the Testimony of Kristi Soileau, D.D.S.[,] Concerning Causation.” The motions were referred to the merits of the trial.

At the conclusion of the bench trial, the court found in favor of. defendants. Although the court did not address the issue of whether Dr. Anzalone breached the standard of care, it concluded that plaintiff failed to carry her burden of proving the bone graft caused or contributed to her injury. The court did not expressly rule on plaintiffs motions to apply the doctrine of res ipsa loquitur and the Housley presumption.

Plaintiff appeals.

DISCUSSION

Plaintiff contends the trial court erred in finding that his wife failed to meet her burden of proving that the installation of the bone graft caused her persistent pain and numbness in her tongue, lower lip and gum. Plaintiff argues that Mrs. Bloxham’s symptoms did not begin until after the procedure and witnesses testified that the symptoms could have been caused by the procedure. Plaintiff also argues that even Dr. Anzalone admitted that a number of things could have caused Mrs. Bloxham’s problems, including the insertion of the bone graft, the injection, the debridement, the closure and/or the settlement of the implant.

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. LSA-R.S. 9:2794(A); Roberts v. Marx, 47,658 (La. App.2d Cir.1/16/13), 109 So.3d 462, writ denied, 2013-0649 (La.4/26/13), 112 So.3d 847.

The manifest error standard of review applies to our review of medical malpractice claims. Jackson v. Tulane Medical Center Hosp. and Clinic, 2005-1594 (La.10/17/06), 942 So.2d 509; Coody v. Barraza, 47,732 (La.App.2d Cir.3/6/13), 111 So.3d 485. A court of appeal may not set aside a trial court’s or jury’s finding of fact in the absence of manifest error or unless clearly wrong. Hays v. Christus Schumpert Northern Louisiana d/b/a Christus Schumpert Health Sys., 46,408 (La.App.2d Cir.9/21/11), 72 So.3d 955; Coody, supra. In order to reverse a fact finder’s determination, an appellate court must review the record in its entirety and conclude that a reasonable factual basis does not exist for the finding and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Benefield v. Sibley, 43,-317 (La.App.2d Cir.7/9/08), 988 So.2d 279, writs denied, 2008-2162, 2008-2210 (La.11/21/08), 996 So.2d 1107, 2008-2247 (La.11/21/08), 996 So.2d 1108; Coody, supra.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Hays, supra; Coody, supra. Where there are contradictory expert opinions, the appellate court is bound to give great deference to the conclusions of the trier of fact. Id.

In the instant case, with regard to the issue of whether there was a causal connection between the breach (the placement of the bone graft) and the resulting injury (Mrs. Bloxham’s complaints of numbness, burning 17sensation and pain) the trial and deposition testimony was as follows:

Mrs. Bloxham testified that she was not experiencing any numbness or burning in her jaw, chin or gums prior to the surgery. However, the symptoms began shortly after the surgery. This testimony was bolstered by Mr. Bloxham’s testimony regarding the progression of his wife’s dental symptoms.

Dr. Zuniga, who performed Mrs. Blox-ham’s first “corrective” surgery on August 31, 2007, testified that during his procedure, he noticed that the mental nerve was “encased or compressed by the implant.” He also stated that he believed the impingement occurred over a period of time because either the implant migrated or Mrs. Bloxham’s jawbone atrophied. Dr. Zuniga stated, “At the time of the procedures, my understanding of her history and based on my clinical and surgical evaluation, I felt there was no relationship between the periodontist’s procedure and the compression neuropathy.” When questioned, he stated that it was possible that the procedure performed by Dr. An-zalone contributed to Mrs. Bloxham’s symptoms. However, he testified that the “possibility” did not change his surgical findings that the implant caused the nerve impingement. Thereafter, Dr. Zuniga characterized any conclusion that Dr. An-zalone’s procedure caused Mrs. Bloxham’s symptoms as mere “speculation because of the timing of thé onset of the symptoms.” He testified that he did not find any evidence that the bone graft caused Mrs. Bloxham’s symptoms.

Dr. Eric Geist also provided deposition testimony. He testified that the implant he inserted in 1986 had an average life expectancy of 12 years. He testified that Mrs. Bloxham “more than likely” had nerve compression 1 ¡¡from the implant, stating, “[I]t’s almost certain that a periosteal staying in that long, you would have some compression of the nerve from that, from that implant.” Thereafter, Dr. Geist testified that one could possibly assume that the procedure performed by Dr. Anzalone caused Mrs. Bloxham’s symptoms “given the time frame.” However, he further stated:

[J]ust based on the timing, I mean, you would have to extrapolate that it probably had something to do with the procedure. It could have been anything though, it doesn’t have to be compression, I mean, it could have been, you know, retraction. I seriously doubt he would literally cut the nerve, but you know, I don’t know, I mean, it’s speculation.

Ultimately, Dr. Geist testified that he did not know if Mrs. Bloxham’s symptoms were caused by the implant itself or by the procedure performed by Dr. Anzalone.

Dr. Thomas McNeely, a periodontist, also served as a member of the medical review panel in this case. He testified that he had no. opinion on the issue of causation. He stated that the. symptoms Mrs. Bloxham experienced can be related to “some type of nerve trauma or injury.” He explained that the nerve “could have been traumatized” either by the implant pressing on it or by “inflamm,ation in the surgery area prior to and postoperativ.ely.” Dr. McNeely further stated:

I’m going to speculate by saying with the inflammatory process that was going on that yielded the pain that she presented with to Dr. Anzalone, removing that inflammatory tissue, debriding it, creating a healthier healing environment, there’s going to be constriction of the soft tissues.
If what Dr. Zuniga described in his records [occurred], that there was a compression of the nerve when he evaluated it, it’s my speculation that just the healing process from debriding it and cleaning the wound out [ 9could have triggered the irreversible paresthesia, but this is certainly my guess.

Dr. David Kim, an oral and maxillofacial surgeon, also 'testified via deposition. He stated that he was a member of the medical review panel that reviewed this matter. Dr. Kim testified that there was no evidence that Mrs. Bloxham’s nerve was compressed prior- to the procedure performed by Dr. Anzalone; however, after the procedure, she began showing signs of nerve impingement. He stated that it was an “incredible coincidence that her symptoms started two weeks after [the] surgery for no reason whatsoever.” Despite the panel’s opinion to the contrary, Dr. Kim stated, “Based on my review of the medical record, the most likely cause of Ms. Blox-ham’s nerve injury was the surgery performed by Dr. Anzalone.” He stated that the “temporal relationship” of the symptoms to the surgery and the proximity of the nerve impingement and the surgery site suggest a causal relationship between the two events. He further explained:

[T]he location of the surgery would be perfectly reasonable to surmise that the possible injury to the nerve may have occurred from that procedure. If the surgery [was] done in a completely other part of her mouth, I could possibly understand there being no relation to that surgery and her resulting symptoms[.] [B]ut the location of the surgery that was performed[,] I feel[,] makes it a very likely candidate for the cause.

Dr. Kim admitted that he did not know if the nerve impingement was caused by the insertion of the bone graft itself or from the placement of a surgical instrument during the procedure.

Dr. Ghali Ghali, an oral maxillofacial surgeon, testified that he began treating Mrs. Bloxham in September 2009. He stated that her symptoms were “temporally related to when she had the procedure done by [Dr. | inAnzalone].”

After reviewing the testimony, the trial court found in favor of Dr. Anzalone. The court concluded that it was not convinced the bone graft in question caused or contributed to Mrs. Bloxham’s injury.

We have examined this record in its entirety. Although Dr. Kim opined that the procedure performed by Dr. An-zalone caused Mrs. Bloxham’s nerve impingement, the other experts, Drs. Zuniga, Geist and McNeely, attributed the nerve impingement to the old dental implant. We are bound to give great deference to the evidence of record and the trier of fact’s decision to credit the expert testimony of Drs. Geist, Zuniga and McNeely over the contradictory testimony of the other expert witness. Therefore, based upon this record, we cannot conclude that the trial court was clearly wrong in finding that plaintiff failed to meet her burden of proving, by a preponderance of the evidence, that the placement of the bone graft caused her injury.

This argument lacks merit.

Additionally, plaintiff contends the trial court erred in failing to apply the doctrine of res ipsa loquitur and the presumption of causation set forth in Housley v. Cerise, 579 So.2d 973 (La.1991). Plaintiff argues that Mrs. Bloxham was not experiencing numbness, pain or a burning sensation pri- or to her procedure; all of the symptoms began after Dr. Anzalone performed the bone graft.

Res ipsa loquitur is a rule of circumstantial evidence that applies when the facts suggest that the negligence of the defendant is the most plausible explanation for the injury. Harper v. Advantage Gaming Co., 38,837 (La.App.2d Cir.8/18/04), 880 So.2d 948; Martinez v. Schumpert Medical Center, 27,000 (La.App.2d Cir.5/10/95), 655 So.2d 649. This evidentiary doctrine is applicable when three requirements are met: 1) the circumstances of the accident are so unusual that, in the absence of other evidence, there is an inference of negligence by the defendant; 2) defendant had exclusive control over the thing causing injury; and 3) the only reasonable conclusion is that defendant’s breach of duty caused the accident. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992); Harper, supra. The doctrine allows an inference of negligence to arise from the common experience of the factfinder that such accidents normally do not occur in the absence of negligence. Additionally, the doctrine does not dispense with the rule that negligence must be proved. It simply gives the plaintiff the right to add to the case, “along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence” sufficient to shift the burden of proof. Montgomery v. Opelousas Gen. Hosp., 540 So.2d 312 (La.1989).

In Housley, supra, the Louisiana Supreme Court held that a claimant’s disability is presumed to have resulted from an accident if the injured person was in good health before the accident, the symptoms of the injury appeared and continually manifested themselves afterwards, and the medical evidence supported a reasonable possibility of a causal connection between the accident and the disabling condition.

In the present case, the trial court was presented with the testimony of multiple expert witnesses. The testimony showed various possible explanations for Mrs. Bloxham’s nerve impingement and subsequent 112symptoms. Consequently, the trial court could have concluded that the nerve impingement was caused by the procedure performed by Dr. Anzalone. On the other hand, the court could have concluded that the nerve impingement was caused by the old dental implant, negating any presumption of causation from Dr. Anzalone’s procedure. As stated above, we cannot say that the trial court’s conclusion, that plaintiff failed to meet the burden of proving that Dr. Anzalone’s procedure did cause Mrs. Bloxham’s problems, was clearly wrong. Likewise, in light of the expert testimony regarding other possible causes of Mrs. Bloxham’s symptoms, we cannot say that because Mrs. Bloxham began experiencing her symptoms after her procedure, plaintiff is automatically entitled to a presumption that her symptoms were caused by a breach in the standard of care by Dr. Anzalone and that her injuries would not have otherwise occurred.

This assignment lacks merit.

CONCLUSION

For the reasons set forth herein, the trial court’s judgment is hereby affirmed. Costs of this appeal are assessed to plaintiff, Gerald M. Bloxham.

AFFIRMED.

      . Mrs. Bloxham died of unrelated causes shortly after the trial on the merits.

      . The implant was not inserted into the jawbone; it was positioned on top of the jawbone.

      .Dr. Anzalone saw Mrs. Bloxham on September 21, October 5 and October 24, 2006.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Michael BARBER, Plaintiff-Appellant v. Taneca Michele GREEN, Defendant-Appellee.
    No. 49,049-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 19, 2014.

      Wiener, Weiss & Madison by Frank H. Spruiell, Jr., Derriel Carlton McCorvey, Lafayette, for Appellant.
    Anthony Hollis, Shreveport, for Appel-lee.
    Before CARAWAY, DREW and LOLLEY, JJ.
   DREW, J.

11 This is an appeal of a trial court judgment which reduced the physical custody enjoyed by a father with his three children. We reverse and render.

FACTS

Michael Barber and Taneca Green became romantically involved in 2005 and from this relationship three children were born: twins born in the spring of 2007, and another child born in the fall of 2008. The relationship between Barber and Green eroded drastically in late 2010 and in 2011 and, without question, completely ended not later than early 2012, at which time Green and her children moved out of Barber’s home.

During the spring of 2012, the parties agreed to an alternating “week on/week off’ physical custody arrangement, pending the conclusion of this domestic litigation. A two-day custody trial was held in July of 2013, with testimony from 15 witnesses, some of whom testified that the shared interim custody order had worked well. Each parent testified, notably, that the other was a good parent.

Leigh Ann O’Brien, the court-appointed licensed certified social worker (“LCSW”), reported that the weekly arrangement was “working well for the minor children.” The LCSW further recommended that the father be named domiciliary custodian.

Nonetheless, the trial court granted joint custody, named the mother as domiciliary parent, and reduced Barber’s visitation rights to these:

(1) every other weekend from Thursday afternoon to Monday morning, with the children to be returned to their mother during Barber’s [ ^working hours;

(2) Wednesday or Thursday visitation during the father’s off week;

(3) alternating major holidays; and

(4) week on/week off during summer vacation, with the children returned to the mother when the father worked 24-hour shifts during that visitation.

We agree with Barber that the trial court, on these unique facts, abused its great discretion by:

• not awarding physical custody on a rotating weekly basis;

• limiting the father’s periods of visitation, a ruling not in the best interest of the children; and

• incorrectly interpreting one of our previous cases.

As we find the judgment insupportable on this record, we amend and render, effectively returning to the previous weekly rotation.

ORAL REASONS FOR JUDGMENT

Three weeks after trial, the trial court reviewed in open court the factors listed in La. C.C. art. 134, finding most to be a wash between these |svery qualified parents, with three exceptions:

• The mother enrolled the daughter in an educational daycare program, but the father did not take the child to the daycare when he had her with him. The trial court found that this factor favored the mother.

• The trial court leaned “a little toward” the mother in the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the children and the other party.

• As to the responsibility for the care and rearing of the children by each party, the trial court favored the mother.

After this recitation, the trial court said the 12 factors were “almost pretty much equal in weighing,” but weighed in favor of the mother.

Accordingly, the trial court announced these rulings in open court:

(1) that Barber and Green share joint custody of the three children;
(2) that Green be named the domiciliary parent; and
(3) that a revised visitation/physical custody plan be established.

Barber requests relief from only the third holding of the trial court, in that he feels unduly penalized solely because of his shift work as a fireman.

Indeed, the trial court stated the problem he had with the father was his work schedule, noting with disapproval that when Barber worked during his periods of physical custody, his mother kept the children. The trial court stated that this was time that the children should be spending with their own mother, not a third party. The trial court also disapproved of all the | ¿“shifting” with the stipulated pretrial physical custody schedule.

ISSUES PRESENTED BY BARBER

(1) Did the trial court err in failing to award shared physical custody of the children on a week on/week off basis?

(2) Was the physical custody and visitation schedule granted the father contrary to the best interest of the children?

(3) Did the trial court incorrectly apply Skipper v. Skipper, 46,935 (La.App.2d Cir.2/1/12), 86 So.3d 707, to deny a shared custody judgment because the father works shifts as a firefighter?

We find that each question must be answered in the affirmative.

FATHER’S ARGUMENTS

Barbers argues on appeal that:

• as a firefighter, he works eight to 10 separate 24-hour shifts per month, giving him 20 to 23 days a month to devote to his children;

• the week on/week off interim custody arrangement worked well;

• the weekly rotation was approved by the mental health professional;

• he is being penalized because of his shift work as a public safety employee;

• the trial court misapplied our holding in Skipper, supra;

|s* the fact that a parent works a rotating shift schedule should not be an absolute bar against an equal shared custody arrangement;

• the instant visitation schedule does not meet the “substantial time” mandate of the Louisiana Legislature;

• the trial court’s ruling is clearly wrong; and

• the children’s best interest is better served by reverting to the week on/week off schedule which everyone agreed was working well.

MOTHER’S ARGUMENTS

Green asks us to affirm the trial court, in that the ruling is not manifestly wrong or a clear abuse of discretion. She feels that the judgment gives substantial time to Barber while minimizing the shifting of the children between their parents. Green further notes that:

• Barber himself testified at trial that it caused problems for the children to have to pack up and move week to week;

• when Barber worked his 24-hour shifts, the children stayed with his brother and their 80-year-old mother;

• the factors in La. C.C. art. 134 are not exclusive and the weight given to each is within the discretion of the trial court;

• the trial court’s judgment should not be disturbed absent an abuse of discretion; and

• continuity and stability of environment are important factors, and the Rtrial court assured this with its judgment.

REASONING

The trial court’s visitation schedule is not justified by this record and is not in the best interest of the children. We reverse and reestablish the weekly rotation in existence before the trial was held.

We recognize that shared custody does not require strict adherence to an inflexible 50-50 calculation of the number of minutes each parent enjoys with the children. We know that this is the rare case allowing for weekly rotation. Geography, schooling, education, culture, extended family, and parenting skills are not a problem here. Both parents love these children and are loved by these children. Each parent is gainfully employed.

In no way should this opinion be considered as requiring the necessity of precisely equal time, particularly in cases where one parent does shift work — far from it. Unlike the majority of cases, a weekly rotation, under these unique facts, is clearly in the best interest of these children, for the following four reasons:

(1) The trial court misapprehended our ruling in Skipper, supra, both factually and legally. The instant situation is radically different from the facts in Skipper, and our court never held that a parent’s work schedule could not be a factor in the calculus in the unscientific task of establishing physical custody scenarios that best serve interests of the involved children. We said in Skipper that a parent’s work schedule could not be the sole factor in the establishment of a physical custody / visitation plan.

(2) The trial court refused to follow the LCSWs recommendation for |7shared custody strictly because of Barber’s shift work as a fireman. The LCSW, in her report to the court, did more than merely give her approval to the weekly rotation that was in place. She also recommended that the father be the domiciliary parent. Solely because of Barber’s work schedule as a public servant, the trial court ignored the considered recommendation of the LCSW. It is insupportable that this public servant be punished because of his profession and the hours attendant upon his efforts to protect and serve.

(3) The visitation plan adopted by the trial court is actually more complicated, with much more “shifting” than the simple weekly rotation plan in place before the trial. The previous plan worked fine. There will be far less confusion with alternating weekly periods of physical custody.

(4) We cannot agree with the trial court’s unimpressed and discounted viewpoint as to the value of the grandchildren spending time with a grandmother. As a firefighter, the father works eight to ten 24-hour shifts each month, requiring him to rely on his willing family. The trial court noted that it was not ideal for the children to be cared for by “a third party” instead of a parent. We acknowledge that parents should be the guiding influences in the lives of young children, but a grandparent is far more dear than merely a “third party.” It is a blessing that extended family members, on both sides, are available for |8these grandchildren, to help them cope with the complications attendant to the unraveled and unraveling domestic situation between their parents.

For all of the above reasons, we must reverse the trial court’s judgment relative to physical custody of these children.

DECREE

The judgment awarding joint custody and naming the mother as domiciliary parent is AFFIRMED.

The visitation plan established by the trial court is REVERSED.

We hereby REESTABLISH a plan of shared physical custody on a weekly basis for each parent, with alternating major holidays.

All costs of court, trial and appellate, are to be split evenly between the parties.

      . Barber testified that Green left the home in August of 2010. Green testified that she left Barber's home briefly in August of 2010, but only finally left the domicile in February of 2012. The trial court credited Green’s testimony on this issue.

      .Art. 134. Factors in determining child’s best interest
      The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.

      . When the children were hospitalized, Green stayed overnight; Barber did not.

      . We disagree with the trial court's finding equally in favor of both parties relative to La. C.C. art. 134(4). The children had been in the father’s home almost exclusively in the three years prior to the alternating weekly arrangement was entered. In the year and a half prior to trial, the father shared almost equal time with the children. This factor should have militated in favor of Barber.

      . The paternal grandmother of the children.

      . The visitation schedule imposed by the trial court notably has more imbedded "shifting” than did the previous weekly rotation.

      . The father quoted this statement from the trial court: "I think you are a good father, but your work schedule will just not allow a shared custody situation. The Second Circuit Court of Appeals will not allow me to arrange visitation around your schedule.”

      . Skipper, supra, presented substantially different facts. That child had very serious health and disability issues resulting from a genetic disorder, and suffered increasingly severe hearing and vision loss along with impaired mobility. Three years after the initial custody agreement, the father sought to modify custody and increase his visitation.
      Factors established at trial were the child was in the third grade and under the care of seven specialists in different states along with speech, occupational, and hearing therapists plus an itinerant hearing teacher and teachers for hearing impaired, orientation, mobility, and inclusion. The mother in Skipper, supra, was an occupational therapist who was trained for these situations. Her work hours permitted her to be with her child during summer and holiday breaks and her flexible work hours enabled her to easily confer with the child’s teachers and therapists.
      That father was a pharmacist whose job required work during evenings, weekends, and holidays. The father was not involved with the child’s schooling, and he had never met with teachers or therapists.
      After the trial court crafted a visitation plan based upon the father's work schedule, this court found the visitation schedule was not in the child’s best interest, since it was tailored solely to the father’s work and did not consider the minor’s needs and activities. The Skipper court did not hold that a parent's rotating work schedule could never be considered in fashioning a custody arrangement in a child's best interests.

        .See La. R.S. 9:335(A)(2)(b).

      . Green stresses that Barber's brother had health issues and had no drivers license.

      . Remarkably, this record implies just the opposite: stability and continuity considerations here clearly favor the father.

      . We are aware that our task is to review the judgment itself, not the reasons for the judgment. Nonetheless, reasons for judgment can help explain a trial court’s rulings. See Woo-ley v. Lucksinger, 2009-0571 (La.4/1/11), 61 So.3d 507.

      .The transcript reveals these two startling statements made by the trial court to Barber, at the time of the ruling in open court:
      • "Although Mrs. O’Brien indicates that a shared custody situation would work well, I have to disagree with her only because of your work schedule." (Our emphasis.)

        • "And as I indicated, but for your work schedule this would be a perfect case for shared custody.” (Our emphasis.)

      .Leigh Ann O’Brien, LCSW, issued a thorough and impressive report about this family, ending with this paragraph of summation:
      In regards to my final recommendations, I found that the shared custody arrangement in which the parties alternate week on/off is working well for the minor children. I found that Michael Barber and Taneca Green could individually provide a stable and secure home environment for the children. I found that each parent is vital to the emotional well being of the minor children. I would recommend that Michael Barber be designated domiciliary parent. I found that he would continue to make appropriate decisions for the best interest of the children. I would recommend the shared custody arrangement would remain in place through the summer months.

      . We recognize that Barber testified in opposition to the weekly rotation.

      . Barber’s works a five-day shift with one 24-hour day on and the next 24-hour period off. This situation will require some flexibility and cooperation in enhancing the physical custody of both parents with these children. It must be noted that shift work can actually offer some advantages in nurturing a close, meaningful, and quality relationship between children and a parent in Barber's situation. Barber has 20 days off per month, which should enhance the blossoming of his relationship with these children.

      . Even though we find an abuse of the trial court’s discretion, it does not diminish our appreciation for the kind, thorough, and attentive manner in which the trial was handled.


author: PITMAN, J.

text:
    James GIBSON, Plaintiff-Appellee v. Daphne BARMORE & Safeway Insurance Company, Defendants-Appellants.
    No. 48,870-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Tracy L. Oakley, Ruston, for Appellants. Robinson & Williams, L.L.C., By Kyle M. Robinson, Bossier City, Craig L. Williams, New Orleans, for Appellee.
    Before BROWN, LOLLEY & PITMAN, JJ.
   PITMAN, J.

1 Appellants, Daphne Barmore and Safeway Insurance Company, appeal the trial court’s ruling that Ms. Barmore was 75 percent at fault and Appellee James Gibson was 25 percent at fault for an automobile accident. Mr. Gibson also appeals the trial court’s assignment of comparative fault and the award of general damages. For the following reasons, we affirm.

FACTS

On the morning of February 8, 2012, Mr. Gibson was driving his Toyota Camry north on Kingston Road in Shreveport. At the same time, Ms. Barmore was backing her Pontiac Grand Prix out of her driveway onto Kingston Road, and the automobiles collided.

On March 5, 2012, Mr. Gibson filed a petition for damages, claiming that Ms. Barmore was at fault for the accident because she “failed to maintain proper lookout and violently collided” with his vehicle. Mr. Gibson alleged that he sustained injuries as a result of the collision and claimed damages of extreme physical pain and suffering, mental anguish and anxiety, loss of enjoyment of life, emotional distress, medical expenses, lost wages, interest and costs.

On April 10, 2012, Ms. Barmore and her insurer, Safeway, filed an answer, recon-ventional demand and third party demand. They argued that Ms. Barmore was not negligent and not at fault for the collision. In the alternative, Ms. Barmore argued that Mr. Gibson was guilty of comparative negligence.

| ¾A bench trial was held on March 26, 2013.

Mr. Gibson testified that, on February 8, 2012, he left his house at approximately 7:25 a.m. to drive to work. He stated that the weather was clear and the sun was up. He explained that he came to a stop at the corner of Williamson Way and Kingston Road and then turned left onto Kingston Road. He testified that, while he was driving north on Kingston Road, Ms. Bar-more’s car “basically started coming out of her driveway and was still in reverse and I had to basically just kind of lockup my brakes to stop the car and kind of veer off the road to miss her and hit the right rear part of her car.” Mr. Gibson explained that the front left side of his car collided with the right rear side of Ms. Barmore’s car. Mr. Gibson stated that the rear windshield of Ms. Barmore’s car was not defrosted when she backed out of her driveway. He further testified that Ms. Barmore’s car was “probably 95%” in the northbound lane of Kingston Road at the time of the collision and that she drove approximately 15 feet forward after the collision. He explained that the area of Kingston Road where the accident occurred is a flat road with no hills or curves and that the distance from the intersection of Williamson Way and Kingston Road to the location of the accident is approximately 75 yards.

Mr. Gibson stated that he was driving approximately 25 miles per hour when the accident occurred.

| ¡¡Mr. Gibson testified that Officer Rodney Medlin of the Shreveport Police Department came to the scene and wrote a police report, which Mr. Gibson reviewed. He explained that Officer Medlin’s report stated that Ms. Barmore’s vehicle was in drive when the collision occurred, but Mr. Gibson recalled that her vehicle was still in reverse when the collision occurred. Mr. Gibson testified that Officer Medlin’s testimony that Mr. Gibson was looking down or at his cell phone prior to the accident was not correct.

Mr. Gibson testified that he suffered injuries as a result of the accident, including pain in his right shoulder. He first went to Velocity Care and then to his family doctor at Willis-Knighton. Mr. Gibson stated that X-rays were taken of his shoulder and that he was prescribed pain medication. Mr. Gibson testified that the pain lasted several months and that his exercise routine was limited because of the pain. On cross-examination, he stated that, in April 2012, he competed in a Tough Mudder competition, which is a 12-mile obstacle course.

Ms. Barmore testified that, on the morning of February 8, 2012, she turned on her car to warm it up and defrost the windows while waiting for her children’s school bus to arrive. She stated that, after her children got on the school bus, she began to back out of the driveway to drive to work. She explained that she always parks her car on the far left of her driveway and that the driveway is two car-lengths long. She further testified that she stopped halfway down the driveway to look both ways and that she saw Mr. Gibson approaching the stop sign at the intersection of Williamson Way and Kingston Road. She explained that she continued to back onto Kingston |4Road into the northbound lane; and, as soon as she put her car in drive, the collision occurred. She said that she drove her car a few feet forward and then stopped and got out of the car to speak to Mr. Gibson. She testified that Mr. Gibson told her, “I was on my phone on a conference call and I looked up and there you were.”

On rebuttal, Mr. Gibson testified that Ms. Barmore’s statement that he said he had been on a conference call at the time of the accident is not accurate and that he did not say that to Ms. Barmore.

In his deposition, Officer Medlin testified that he was the investigating officer on the scene of the accident. He explained that the sun was up and the weather was clear. He noted that the distance from the stop sign on the corner of Williamson Way and Kingston Road to the location of the accident is approximately 75 yards and that the road is straight and flat with no obscurements. He stated that, when he arrived at the scene, both cars were in the northbound lane and Ms. Barmore’s car was north of her driveway. He recounted both parties’ statements about what happened. He explained that Ms. Barmore said she “backed out of her driveway, looked both ways to make sure it was clear. She ... had just started traveling northbound” when the accident occurred. He stated that Mr. Gibson said “he turned off of Williamson Way and was traveling northbound, looked up and Ms. Barmore was in front of him. He tried to dodge it and didn’t have time to.” He stated that neither party reported injuries. In his police report, Officer Medlin wrote that Mr. Gibson was following too closely and was inattentive. Officer Medlin also testified that he overheard Mr. Gibson mention to his mother, who arrived at the scene of the accident, that he had |Bbeen “messing with his cell phone and something about his breakfast.... And he said he looked up, and Ms. Barmore was out in front of him. He tried to swerve over and struck her on the rear passenger’s side.”

On March 27, 2013, the trial court filed written reasons for judgment, noting that it had read the deposition of Officer Med-lin and also had gone to the location of the accident. The trial court found that Mr. Gibson “carried his burden of proof as to the fault and thus liability of Daphne Bar-more, however, with a comparative fault assignment to James Gibson of 25%.” The trial court determined that the medical care of Mr. Gibson was “warranted and reasonable” and granted medical special damages as prayed for by Mr. Gibson. Considering the months of shoulder and back pain endured by Mr. Gibson, the trial court set general damages in the amount of $5,500, with all damages subject to the apportionment of fault. Court costs were assessed to Ms. Barmore and Safeway. The trial court filed its judgment on April 23, 2013.

On May 16, 2013, Ms. Barmore and Safeway Insurance Company filed a petition and order for suspensive appeal.

DISCUSSION

Assignment of Fault

In their first assignment of error, Appellants argue that the trial court erred in assigning any fault to Ms. Barmore. In their second assignment of error, Appellants argue that the trial court erred in not assigning 100 percent |Rfault to Mr. Gibson for the accident or, in the alternative, 75 percent fault as the following motorist.

Appellants contend that the trial court erroneously rejected the consistent testimony of Ms. Barmore and of Officer Medlin and accepted the inconsistent and contradictory testimony of Mr. Gibson. Appellants emphasize inconsistencies between Mr. Gibson’s trial testimony and Officer Medlin’s deposition testimony regarding Mr. Gibson’s cell phone use at the time of the accident. Appellants contend that, if Mr. Gibson’s trial testimony is correct, he should never have been involved in the accident because he testified that he was traveling at 25 miles per hour and immediately applied his brakes when he observed Ms. Barmore backing out of the driveway onto the road on which he was driving. Appellants reason that Mr. Gibson’s testimony was so “dubious” that the trial court was manifestly erroneous in accepting his testimony and assessing fault. Appellants further argue that there is a presumption of fault against the driver of a vehicle that rear-ends another vehicle.

Mr. Gibson argues that the trial court erred in assessing him with 25 percent comparative fault because the evidence at trial revealed that the negligence of Ms. Barmore was the sole cause-in-fact of the accident. He contends that Ms. Barmore violated her duty as a backing motorist with a frosted rear window. Mr. Gibson also contends that he was proceeding lawfully on the street and was not required to look out or search in anticipation of careless drivers who might enter his right-of-way. He argues that Ms. Barmore failed to safely back her car from her driveway to the street and, therefore, violated traffic laws and should be found 100 percent at fault |7because her actions were the sole cause-in-fact of the accident.

A court of appeal may not set aside a trial court’s finding of fact “in the absence of ‘manifest error’ or unless it is ‘clearly wrong’ ” or “has no reasonable factual basis.” Rosell v. ESCO, 549 So.2d 840 (La.1989); Pemiciaro v. Brinch, 384 So.2d 392 (La.1980). To reverse the trial court’s finding of fact, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and must determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993), citing Mart v. Hill, 505 So.2d 1120 (La.1987). Furthermore, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, supra, citing Canter v. Koehring Co., 283 So.2d 716 (La.1973). Additionally, “[w]hen findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings.” Rosell, supra.

There is a presumption in read-end collisions that the following driver breached the standard of care and is presumed negligent. King v. State Farm Ins. Co., 47,368 (La.App.2d Cir.8/8/12), 104 So.3d 33. La. R.S. 32:81(A) states that “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of |sthe highway.” The following motorist can rebut this presumption and avoid liability by proving that he had his vehicle under control, that he closely observed the lead vehicle and that he followed it at a safe distance under the circumstances. King, supra. The following motorist may also avoid liability by proving that the lead motorist negligently created a hazard that the following motorist could not reasonably avoid. Id., citing Holland v. State Farm Mut. Auto. Ins. Co., 42,753 (La.App.2d Cir.12/5/07), 973 So.2d 134.

A motorist about to enter a highway from a driveway shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard. La. R.S. 32:124. This court in Davis v. Galilee Baptist Church, 486 So.2d 1021 (La.App. 2d Cir.1986), explained:

Unusual, extreme, and high care toward favored traffic is required of such a motorist under the case law. See Travelers Insurance Company v. Harris, 294 So.2d 588 (La.App. 4th Cir.1974); Holland v. United States Fidelity & Guaranty Co., 131 So.2d 574 (La.App. 2d Cir.1961); Garcia v. Anchor Casualty Company, 148 So.2d 371 (La.App. 1st Cir.1962). Conversely, the duty of the driver on the favored street toward the intruding motorist is the much lesser ordinary care and that driver generally may rely on the assumption or presumption that those vehicles entering the roadway from less favored positions such as a private drive will not drive into the path of favored traffic. The motorist who is otherwise proceeding lawfully on the favored street is not required to look out for or search in anticipation of careless drivers who might enter his right of way from a private driveway in violation of the statute. Gutierrez v. Columbia Casualty Co., 100 So.2d 537 (Orl.App.1958); Vidrine v. Simoneaux, 145 So.2d 400 (La.App. 3d Cir.1962).

Furthermore, “[a] high degree of care is generally imposed upon backing motorists to ensure that the maneuver can be safely accomplished.” Taylor v. Chism, 27,186 (La.App.2d Cir.8/23/95), 660 So.2d 145, citing Francis |flu Commercial Union Ins. Co., 594 So.2d 1025 (La.App. 3d Cir.1992); Rodrigue v. Firestone Tire & Rubber Co., 540 So.2d 477 (La.App. 1st Cir.1989), writ denied, 546 So.2d 179 (La.1989), writs denied, 546 So.2d 179,180 (La.1989).

In the case sub judice, the trial court noted that the key testimony was that of Ms. Barmore when she admitted that, while at the end of her driveway, she did not look onto Kingston Road to make sure it was clear prior to backing onto Kingston Road. The trial court noted that frost on the rear window of Ms. Barmore’s vehicle compromised her visibility. The trial court stated “that there was a level of distraction by James Gibson which contributed to the accident.”

This court does not find that the trial court was manifestly erroneous in finding Ms. Barmore to be 75 percent at fault and Mr. Gibson 25 percent at fault for the accident. The trial testimony suggests that both parties were negligent and contributed to the accident. Ms. Barmore was negligent because she did not properly stop and look for oncoming motorists before she backed onto Kingston Road. See La. R.S. 32:124. Mr. Gibson was negligent because he was not paying attention to the road and was too distracted to view Ms. Barmore’s vehicle backing onto the road. The trial court’s finding of fact that both drivers contributed to the accident is not manifestly erroneous or clearly wrong and is supported by the record. Therefore, these assignments of error lack merit.

General Damages

Mr. Gibson argues that the trial court erred in failing to award the appropriate amount of general damages and avers that he should have been | inawarded at least $16,000 in general damages for his injuries. He also argues that he suffered from shoulder pain for three to four months and from lower back pain for two months. He contends that the $5,500 award of general damages was unreasonably low.

A court of appeal cannot disturb a trial court’s award of damages unless the record “clearly reveal[s] that the trier of fact abused his discretion in making his award.” Pemiciaro v. Brinch, supra. The Louisiana Supreme Court in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), explained:

[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.

In the case sub judice, the trial court awarded Mr. Gibson both medical special damages and general damages. In its written reasons for judgment, the trial court noted:

Considering the several month duration of what was primarily moderate right shoulder pain which followed a relatively brief period of low back pain, all as testified to by Mr. Gibson and corroborated by the medical records, the Court sets general damages in the amount of $5,500.00. Of course, all damages are subject to the apportionment of fault.

Considering the facts of this case, we find that the trial court did not abuse its discretion in awarding Mr. Gibson $5,500 in general damages for the pain in his shoulder and back. The trial court noted that Mr. Gibson’s pain was “moderate” and “brief.” Mr. Gibson has not demonstrated that the award of $5,500 in general damages is unreasonably low or that he is entitled to an award of at least $16,000. Therefore, we find that this |1¶ assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court finding Appellant Daphne Barmore to be 75 percent at fault and Appellee James Gibson to be 25 percent at fault for the subject automobile accident. We also affirm the trial court’s award of $5,500 in general damages to Mr. Gibson, subject to the apportionment of fault. Costs of this appeal are assessed at 50 percent to Daphne Barmore and Safeway Insurance Company and 50 percent to James Gibson.

AFFIRMED.

      . Ms. Barmore requested that Mr. Gibson and his insurance company, USAA Casualty Insurance Company, be made defendants in recon-vention and alleged that they are liable for the $1,215.56 in damages her vehicle sustained in the collision. In a supplemental and amending reconventional demand, Ms. Barmore stated that her vehicle sustained $1,517.46 in damages.
      On June 19, 2012, Mr. Gibson filed an answer to original petition for damages, re-conventional demand and third party demand. He argued that "the accident and damages complained of were caused solely and proximately by the provocations, fault and/or negligence” of Ms. Barmore. Mr. Gibson requested that Ms. Barmore’s claim be dismissed with prejudice and, in the alternative, requested that the amount of any award to Ms. Barmore should be reduced in accordance with the principles of comparative fault.
      On March 13, 2013, all parties filed a joint motion to dismiss the suit of Ms. Barmore against Mr. Gibson and USAA. The parties stated that a complete compromise was made and requested that the suit be dismissed with prejudice. On March 18, 2013, the trial court signed an order dismissing the demands of Ms. Barmore and Safeway against Mr. Gibson and USAA.


text:
    STATE of Louisiana, Appellee v. Joey BANKS, Appellant.
    No. 48,868-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.

      Teresa Culpepper Carroll, Jonesboro, for Appellant.
    John M. Lancaster, District Attorney, Douglas Wheeler, Penny Douciere, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PITMAN & GARRETT, JJ.
   PITMAN, J.

[)A jury convicted Defendant Joey Banks as charged of second degree kidnapping, first degree robbery and aggravated second degree battery. The trial court sentenced Defendant to 30 years at hard labor without the benefit of probation, parole or suspension of sentence for Count One, to 30 years at hard labor without the benefit of probation, parole or suspension of sentence for Count Two and to 10 years at hard labor for Count Three. The trial court ordered these sentences to run consecutively. Defendant now appeals his convictions and sentences. For the following reasons, we affirm.

FACTS

On April 25, 2012, the state charged Defendant and his co-defendants, Leonard Banks, William Johnson, Robert Banks, Otis Banks and Anthony Johnson, with aggravated kidnapping, conspiracy to commit aggravated kidnapping, aggravated second degree battery and conspiracy to commit second degree battery. On September 18, 2012, the state amended the charges against Defendant to add first degree robbery and conspiracy to commit first degree robbery. On September 28, 2012, Defendant pled not guilty to the charges.

On May 3, 2013, the state amended the bill of information to charge Defendant and his brother, Leonard Banks, with second degree kidnapping, first degree robbery and aggravated second degree battery.

Trial began on May 6, 2013. During voir dire, Leonard Banks pled [ ¡«guilty. The trial court instructed the potential jurors not to infer anything from Leonard Banks’s absence. Once the jurors were impaneled, the defense moved to quash the venire, arguing that it was tainted by the absence of Leonard Banks. The state opposed the motion to quash, and the trial court denied the motion.

Shedrick Dorsey testified that, on the evening of February 26, 2012, at approximately 11:00 p.m., he was spending time with Latrail Seals, Kavin Talley and Darren Kennedy at the home of Seals (105 Madeline Street) in Rayville. He stated that they heard a noise outside the house, and he, Talley and Seals went outside into the front yard and heard tires pop. Dorsey explained that they walked to the back of the house and saw a group of six or seven men walking toward them. Dorsey stated that this group included Defendant, Leonard Banks, Otis Banks, William Johnson, Robert Banks and Anthony Johnson. Dorsey testified that he thought there was going to be a fight and that Talley yelled, “Don’t go up there, Latrail, Duke [Defendant] got a gun!” Dorsey stated that they heard two gunshots and started running. Dorsey further testified that he ran until he reached a fence and, when he tried to jump over the fence, someone grabbed his shirt and started punching him in the face until he was bleeding. He stated that two people then dragged him into a burgundy Expedition and that he was afraid they were going to kill him. Dorsey explained that Defendant was in the driver’s seat, and William Johnson was in the passenger seat. He stated that, while he was in the car, something was placed over his head so that he could not see. | ¡.Dorsey testified that Defendant then drove the Expedition to a house (408 Oak Street) that Dorsey did not recognize. He explained that they then brought him inside the house and pulled something off his head so that he could see who all was there. Dorsey stated that he saw Defendant, Robert Banks, Leonard Banks, Anthony Johnson, William Johnson and Otis Banks. He testified that they put him on the floor and put dog food in front of him, and Otis Banks told him to eat the dog food. Dorsey testified that Otis Banks (whose house had been burned earlier in the evening) then asked him, “Who burned down the house?” and Dorsey answered that he did not know. Dorsey said that Otis Banks then burned him with an iron and asked again, “Who burned down the house?” Dorsey explained that, when he again said that he did not know, Otis Banks continued to burn him with an iron and also slapped him. Dorsey testified that Otis Banks burned him at least seven times, during which Defendant was in the room, but did nothing to stop Otis Banks. He explained that Otis Banks then stopped burning him and said that they were going to spare him and let him go. Dorsey testified that they took his money (approximately $100), his shoes and his phone. He stated that he never got back his money or shoes, but did get back his cell phone. Dorsey testified that they then put sheets over his head, took him from the house, put him in a car and dropped him off on the side of the road at approximately 1:00 a.m. on February 27, 2012.

Dorsey testified that he walked back to 105 Madeline Street and met up with Talley, Seals and Kennedy. He explained that, because of the burns, his arms, back and buttocks were hurting, but he did not go to the emergency |4room until the next day. Dorsey testified that he told Rayville police officers about the incident and took them to the house where he was burned and showed them the iron that was used. He stated that the police officers then took him back to the hospital, where photos of his injuries were taken. Dorsey identified photographs of the burns on his right arm, left arm and buttocks. He testified that his skin turned pink and that some of his skin came off because of the burns. Dorsey showed his arms to the jury, pointing out the burn marks that were not there before Otis Banks burned him.

Jerry Davis of the Rayville Police Department testified that, on the night of February 26, 2012, the police department received phone calls about several disturbances and fights taking place in Rayville and that he responded to those locations. He stated that these altercations occurred at Branch Crossing, the Richland Apartments and South Circle Drive and involved the Bankses fighting a group that included Kavin Talley. He further stated that, when he arrived at each location, the Bankses were no longer there. Officer Davis testified that he then received a call to go to Madeline Street because shots had been fired. He explained that, when he arrived, he met with Kavin Talley and was informed that the Bankses had been there, but had left.

Officer Davis also testified that, on February 28, 2012, Dorsey came to the Ray-ville Police Department with his mother to give a statement. He explained that, on March 1, 2012, he and another officer took Dorsey on a | .¡drive as part of the investigation; and, while in the car, Dorsey noticed blankets on the side of the road and identified them as the blankets that had been placed over his head. He testified that they then went to 408 Oak Street, and Dorsey recognized it as the location where he was taken and showed the officers where his body was positioned during the burning, where the dog food was and where his blood was. Officer Davis stated that they found an iron, and Dorsey confirmed that it was the iron used to burn him. Officer Davis further stated that he observed Dorsey’s wounds, noting that “it was some type of ooze coming through the bandages,” so they then took Dorsey to the emergency room. He described the wounds as “his skin is completely off.... they’re open wounds.”

William Johnson, Robert Banks and Anthony Johnson all gave very similar testimony. William Johnson and Robert Banks explained that they went to Madeline Street for retaliation because someone had burned Otis Banks’s home that evening. All three testified that Defendant, Leonard Banks and William Johnson were in an Expedition, and Robert Banks and Anthony Johnson were in a Jeep. They testified that, when they got out of their vehicles, they came upon Dorsey, Seals and Talley, and both groups were ready to fight. Robert Banks and Anthony Johnson testified that Robert Banks had a gun, but that he put his gun back in the car. Both testified that Defendant then retrieved the gun and began shooting. All three testified that they then went back to the cars and waited for Defendant and Leonard Banks to return. They testified that Defendant and Leonard Banks returned with Dorsey. William Johnson explained that Defendant | fiand Leonard Banks were walking on either side of Dorsey, each had him by an arm and Leonard Banks put Dorsey in the Expedition. He described Dorsey as “busted up around his face, bleeding” and “scared.” Robert Banks testified that Defendant was carrying a gun. William Johnson explained that Defendant drove the Expedition, that he (William Johnson) was in the passenger seat and Leonard Banks sat in the middle row with Dorsey. He stated that they then drove to 408 Oak Street and that Robert Banks and Anthony Johnson followed in the Jeep. William Johnson, Robert Banks and Anthony Johnson testified that, once they arrived at 408 Oak Street, Leonard Banks pulled Dorsey from the Expedition and began beating him. William Johnson testified that Leonard Banks made Dorsey eat dog food. All three testified that Otis Banks burned Dorsey with an iron. William Johnson and Robert Banks explained that Otis Banks began asking Dorsey if he knew who burned his house, Dorsey said he did not know what he was talking about and did not know who burned the house and Otis Banks then burned Dorsey on the arm with an iron. Robert Banks explained that Otis Banks kept asking Dorsey who burned his house down, and each time Dorsey answered that he did not know, Otis Banks would burn him on the arms or buttocks. All three testified that Defendant was present when Otis Banks burned Dorsey. William Johnson testified that he and Anthony Johnson then left because “it was crazy” in the house, and Anthony Johnson was scared. Robert Banks testified that he and Anthony Johnson dropped 17Porsey off and gave him his phone back.

Otis Banks testified that, on February 26, 2012, he, Defendant, Robert Banks, William Johnson and others were involved in fights at Branch Crossing and South Circle Drive. He stated that they next went to Anthony Johnson’s mother’s house; and, while there, Angie Littleton picked up Defendant. He stated that he was not sure what time Defendant left, but that it was nighttime and it was before the altercation at 105 Madeline Street and before Dorsey was kidnapped and burned. Otis Banks admitted that he burned Dorsey on his arms and buttocks with an iron and that Leonard Banks, Robert Banks, Anthony Johnson and William Johnson were all present at 408 Oak Street, but Defendant was not there.

Angela Littleton testified that, on February 26, 2012, she received a call from Defendant at 10:00 or 10:15 p.m. asking her to come pick him up. She stated that she drove from Monroe to Rayville and picked up Defendant at the Johnson home between 10:80 and 10:45 p.m. She said she then took Defendant back to her home in Monroe.

Kewanna Lavall testified that she rode with Angela Littleton from Monroe to Rayville to pick up Defendant. She stated that this occurred after 10 p.m., but she was not sure exactly what day it was. She explained that after they picked up Defendant, they drove him back to Monroe.

Fannie Williams testified that, on February 26, 2012, she was dating both Defendant and Dorsey and, at the time of trial, was dating Dorsey. She stated that she was on the phone with Defendant “around the same time this was supposed to be happening and Joey couldn’t possibly be in two places at Rone time.” She explained that she talked to Defendant on Angela Littleton’s phone as they were driving to Monroe. She also testified that she and Dorsey had talked about what happened on February 26, 2012, but that Dorsey never “implicated” Defendant.

Defendant testified that, in the days leading up to the events of February 26, 2012, he and Kavin Talley had been “getting into it” with “just words.” He explained that there was a big fight at Branch Crossing and then Talley and Dorsey ambushed Defendant’s group in the projects at the Richland Apartments and busted all the tires on the Expedition. He further explained that they then went to Jackie Johnson’s house and Angela Little-ton picked him up from there, but he was not sure what time she picked him up, maybe 10 p.m. He testified that he was not involved in the kidnapping or in the events at 408 Oak Street.

On May 9, 2013, the jury found Defendant guilty as charged as to all three counts. The trial court ordered a presen-tence investigation report.

On June 12, 2018, the trial court sentenced Defendant to 30 years at hard labor without the benefit of probation, parole or suspension of sentence for the second degree kidnapping charge, to 30 years at hard labor without the benefit of probation, parole or suspension of sentence for the first degree robbery charge and 10 years at hard labor for the aggravated second degree battery charge, with all three sentences to run consecutively to each other. The trial court also noted that Defendant received credit for time served. Defendant’s attorney objected to the sentences as excessive.

Defendant appeals his convictions and sentences.

DISCUSSION

1 flSufficiency of the Evidence

In his first assignment of error, Defendant argues that the evidence presented at trial was insufficient to support any of the convictions. Defendant contends that the state’s case consisted of self-serving testimony of persons charged with the same crimes as Defendant and that the testimonies differ as to the facts. Defendant argues that the state did not meet its burden of proof, particularly as to the charge of first degree robbery. He contends that only Dorsey and Robert Banks testified about a robbery and that there is no evidence that he led Dorsey to believe he was armed with a dangerous weapon.

The state argues that it established all of the essential elements of second degree kidnapping, first degree robbery and aggravated second degree battery.

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 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hearold, 603 So.2d 731 (La.1992); State v. Smith, 47,983 (La.App.2d Cir.5/15/13), 116 So.3d 884. See also La. C. Cr. P. art. 821. This standard does not provide an appellate court with a vehicle for substituting its appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

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

The trier of fact makes credibility determinations and may accept or reject the testimony of any- witness. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). A reviewing court may not impinge on the fact finder’s discretion unless it is necessary to guarantee the fundamental due process of law. Id. The appellate court does not assess credibility or reweigh the 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. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Thus, in order for Defendant’s convictions to be upheld, the record must establish that the state proved beyond a reasonable doubt all of the essential elements of second degree kidnapping, first degree robbery and aggravated second degree battery.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, |naid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24.

Although Defendant argues that the witnesses provided conflicting testimony, She-drick Dorsey, Robert Banks, William Johnson and Anthony Johnson gave very similar testimony concerning the essential facts of this case. Each detailed Defendant’s presence and involvement during the kidnapping, robbery and battery and demonstrated that Defendant was a principal to these crimes.

La. R.S. 14:44.1 defines second degree kidnapping as follows:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.

B. For purposes of this Section, kidnapping is:

(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

La. R.S. 14:2(A)(3) defines a dangerous weapon as “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” The state relied on three definitions of second degree kidnapping found in La. R.S. 14:44.1(A)(3) and (A)(5), i.e., that Dorsey was forcibly seized and carried from one place to another when (1) he was physically injured, (2) he reasonably believed that the offender was armed with a dangerous weapon and/or (3) the | ^offender was armed with a dangerous weapon.

The facts presented at trial demonstrate that Defendant was a principal in the commission of second degree kidnapping. Defendant fired a gun, i.e., a dangerous weapon, and then chased Dorsey while still armed. Defendant and Leonard Banks battered Dorsey in the face until he was bleeding and then took him by each arm and forced him into their vehicle and took him to 408 Oak Street. Defendant forcibly seized and carried Dorsey from 105 Madeline Street to 408 Oak Street while Dorsey was physically injured and Defendant was armed with a dangerous weapon, i.e., a gun, or led Dorsey to reasonably believe he was armed with a dangerous weapon. Therefore, the state established that Defendant committed the crime of second degree kidnapping three different ways. Viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found that the state presented sufficient evidence at trial to establish the essential elements of second degree kidnapping beyond a reasonable doubt.

La. R.S. 14:64.1 defines first degree robbery as follows:

First degree robbery is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.

The facts presented at trial establish that Defendant was a principal in the commission of first degree robbery. At trial, the state presented evidence that things of value, i.e., shoes, money (approximately $100) and a phone, were taken from Dorsey by force or intimidation, i.e., Dorsey had been | ^kidnapped and was being beaten and burned, while the offender led Dorsey to reasonably believe he was armed with a dangerous weapon. There are two dangerous weapons in this case, the gun fired and carried by Defendant and the iron wielded by Otis Banks. Viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found that the state presented sufficient evidence at trial to establish the essential elements of first degree robbery beyond a reasonable doubt.

La. R.S. 14:34.7 defines the elements of aggravated second degree battery and states, in pertinent part, that:

A. Aggravated second degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury.
B. For purposes of this Section, the following words shall have the following meanings:
(3) “Serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

The facts presented at trial demonstrate that Defendant was a principal in the commission of aggravated second degree battery. Defendant drove Dorsey to the location of the battery at 408 Oak Street. Dorsey, Robert Banks, William Johnson and Anthony Johnson all testified that Defendant was present at 408 Oak Street while Dorsey was punched, kicked and burned multiple times with an iron, i.e., a dangerous weapon. Dorsey suffered serious bodily injury to his arms and buttocks in that his skin turned pink, peeled off and oozed as a result of the burning. These injuries caused extreme physical pain and protracted and obvious disfigurement. 114Photographs taken of Dorsey’s injuries several days after the burning were shown to the jury, and Dorsey also showed the jury the scars that remained on his arms. Viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found that the state presented sufficient evidence at trial to establish the essential elements of aggravated second degree battery beyond a reasonable doubt.

The evidence presented at trial was clearly sufficient to sustain all three convictions of Defendant. Therefore, we find that this assignment of error lacks merit.

Motion to Quash and Motion for Mistrial

In his second assignment of error, Defendant argues that the trial court erred in denying his motion to quash the jury venire or, alternatively, in failing to grant a mistrial when his codefendant pled guilty on the third day of voir dire. Defendant contends that the trial court only gave the jury venire one instruction concerning the absence of the codefendant and did not give an additional instruction or reminder in the final jury instructions. He argues that this conduct was prejudicial to him and made it impossible for him to receive a fair trial.

The state argues that the trial court followed the appropriate procedures to safeguard Defendant’s due process rights and properly denied Defendant’s motion for mistrial. The state explains that the trial court instructed the jury not to consider the absence of Leonard Banks, and Defendant did not object to the wording of the admonition and, in fact, agreed that it was appropriate. The state also explains that defense counsel made an oral motion to quash the jury venire, but that the trial court Incorrectly treated this motion as a request for mistrial and denied the motion because there was no proof of prejudice of Defendant.

A motion to quash may be based on the ground that the jury venire was improperly drawn, selected or constituted. La. C. Cr. P. art. 532(9). A motion to quash shall be in writing and specify distinctly the grounds on which it is based. La. C. Cr. P. art. 536.

La. C. Cr. P. art. 775 states that a mistrial may be ordered, and in a jury case the jury dismissed, when:

(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

La. C. Cr. P. art. 770 sets forth the grounds for declaring a mistrial when a prejudicial remark or comment was made within the hearing of the jury during the trial or in argument. La. C. Cr. P. art. 771 sets forth the grounds for admonishing the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury.

|1(iIn the case sub judice, as noted, code-fendant Leonard Banks pled guilty outside the presence of the jury venire. When the jury venire returned to the courtroom, the trial court instructed the jury venire as follows:

All right. Let me — let the record reflect the defendant Joey Banks is present in Court with his attorney. Let me say to the members here and the members out there, you’ll notice there’s one defendant not here or the attorney. You are to make no inference or assumption as to why the codefendant is no longer present in this proceeding, you’re to only focus on the charges against this defendant, and the absence of the co-defendant is not to be considered by you in any manner in this proceeding.

Once the jurors were impaneled, defense counsel made an oral motion to quash the venire, which the trial court denied.

Defense counsel did not file a written motion to quash as required by La. C. Cr. P. arts. 532 and 536. Therefore, the trial court did not err in denying the motion to quash or in denying a mistrial. Defendant did not demonstrate that he was entitled to a mistrial pursuant to La. C. Cr. P. arts. 770 or 775. Defendant has not established that he was prejudiced by the codefen-dant’s absence or the trial court’s admonition to the jury. The trial court properly instructed the jury not to make any inferences or assumptions with regard to the absence of the codefendant. Therefore, this assignment of error lacks merit.

Excessive Sentence

In his third assignment of error, Defendant argues that his sentences are unconstitutionally excessive. Defendant contends that, because of the consecutive nature of the sentences, as a 26-year-old, he faces a minimum of 59.5 years in prison before release for his 70-year cumulative sentence. Defendant argues that the sentences are excessive under the facts of the case | )7because he did not hit Dorsey, did not put him in the vehicle, did not take any belongings from him, did not drop him off after the incident, did not burn him and did not make him eat dog food.

The state argues that the facts of this case and Defendant’s extensive criminal background justify the sentences imposed.

When reviewing an excessive sentence claim, the appellate court uses a two-prong test. First, the trial record must demonstrate that the trial court complied with La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating and mitigating circumstance, but the record must reflect that the trial court adequately considered the guidelines of La. C. Cr. P. art. 894.1. State v. Smith, 433 So.2d 688 (La.1983). The trial court should consider the defendant’s personal history and prior criminal record, the seriousness of the offense, the likelihood that the defendant will commit another crime and the defendant’s potential for rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981). The trial court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, 36,587 (La.App.2d Cir.12/11/02), 833 So.2d 1103, writ denied, 03-0477 (La.5/16/03), 843 So.2d 1130. When the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982).

The trial court adequately complied with La. C. Cr. P. art 894.1. During the sentencing hearing, the trial court noted that it had reviewed the presen-tence investigation report and discussed facts from the trial. The trial court stated the possible sentences for each charge, noting that the victim’s [ ^mother and aunt both submitted letters describing the effects of the kidnapping, robbery and battery on Shedriek Dorsey. The trial court discussed Defendant’s “significant” and “horrible” criminal record, including three prior felonies — unauthorized use of a movable, possession of cocaine with intent to distribute and attempted possession of cocaine with intent to distribute — and numerous misdemeanors. The trial court further noted that, each time Defendant was placed on probation or parole, it has been revoked. The trial court also detailed Defendant’s social history, including that Defendant was 26 years old, dropped out of school in the tenth grade and may have mental health problems.

The trial court stated that it has considered all aggravating and mitigating circumstances and the La. C. Cr. P. art. 894.1 factors. The trial court found the only mitigating factors to be that Defendant has a one-year-old child, that he has a form of disability and, although Defendant was not the one who tortured Shedrick Dorsey, he played a “huge major part in that incident.” As aggravating factors, the trial court listed an “unbelievable” criminal record and the facts of the crime, which included deliberate cruelty, a dangerous weapon and significant permanent damage to the victim. The trial court also noted that it believes Defendant committed perjury and that neither it nor the jury believed a word of Defendant’s testimony. The trial court further noted that Defendant is someone “that needs to be incarcerated for a very long time.”

As to the first prong of the excessive-sentence test, this court finds that the trial court adequately complied with La. C. Cr. P. art. 894.1 when ] 19sentencing Defendant. At the sentencing hearing, the trial court noted in detail the aggravating and mitigating circumstances it considered when deciding Defendant’s sentence.

Second, the appellate court must determine if the sentence is constitutionally excessive. A sentence is excessive and violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id. A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Square, 433 So.2d 104 (La.1983); State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

A person convicted of second degree kidnapping shall be imprisoned at hard labor for not less than 5 nor more than 40 years with at least 2 years of the sentence imposed without benefit of parole, probation or suspension of sentence. La. R.S. 14:44.1(C). A person convicted of first degree robbery shall be imprisoned at hard labor for not less than 3 nor more than 40 years, without benefit of parole, probation or suspension of imposition or execution of sentence. La. R.S. 14:64.1(B). A person convicted of aggravated second degree battery shall be fined not more than $10,000 or imprisoned, with or without hard labor, for not more than 15 years, or both. La. R.S. 14:34.7(C). The trial court sentenced Defendant to 30 years at hard labor |2nwithout the benefit of probation, parole or suspension of sentence for the second degree kidnapping conviction, to 30 years at hard labor without the benefit of probation, parole or suspension of sentence for the first degree robbery conviction and to 10 years at hard labor for the aggravated second degree battery conviction. All of the sentences imposed are within statutory bounds and none are the statutory maximum. Based on the law and the facts of the case, the sentences are not out of proportion to the severity of these crimes and do not shock the sense of justice. Therefore, we conclude that the trial court did not abuse its wide discretion in sentencing Defendant.

When a defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. This court, in State v. Boudreaux, 41,660 (La.App.2d Cir.12/13/06), 945 So.2d 898, writ denied, 07-0058 (La.11/2/07), 966 So.2d 591, set forth the law as to consecutive and concurrent sentences, stating:

Concurrent sentences arising out of a single cause of conduct are not mandatory, and it is within a trial court’s discretion to order sentences to run consecutively rather than concurrently.
A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms.
Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the potential for defendant’s rehabilitation, and whether defendant has received a benefit from a plea bargain.
... [T]he failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences.

121 (Internal citations omitted.)

Although the trial court did not articulate specific reasons for consecutive sentences, its detailed reasons for sentencing and the record itself provide an adequate factual basis to support consecutive sentences. The trial court noted Defendant’s “terrible” criminal history and that he is a third felony offender. The trial court stated that Defendant is someone “that needs to be incarcerated for a very long time.” The trial court also detailed the facts of this case and emphasized Defendant’s “participation in this horrible crime.” We find, therefore, that the trial court did not err in ordering consecutive sentences.

As to the second prong of the excessive-sentence test, this court finds that the sentence is not constitutionally excessive. Therefore, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, JOEY BANKS, are affirmed.

AFFIRMED.

      . On April 15, 2013, the state filed another amended bill of information to charge Defendant and Leonard Banks with aggravated kidnapping, conspiracy to commit aggravated kidnapping, first degree robbery, conspiracy to commit first degree robbery, aggravated second degree battery and conspiracy to commit second degree battery.

      . Throughout the trial, the witnesses often referred to these men by their nicknames. Defendant is "Duke,” Leonard Banks is “Bunkie,” William Johnson is "Chuckie,” Robert Banks is "Peanut” and Anthony Johnson is "Chub.”

      . At the time of trial, Jerry Davis was no longer employed by the Rayville Police Department.

      . William Johnson testified that shots were fired but did not state who fired the gun.

      . Robert Banks testified that he was not sure if Leonard Banks or Otis Banks made Dorsey eat dog food.

      . Robert Banks testified that he did not know any money was taken from Dorsey.