author: GARRETT, J. •

text:
    STATE of Louisiana, Appellee v. Wanda Gail BROOME, Appellant.
    No. 49,004-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      John D. and Eric G. Johnson, LLC, By Eric G. Johnson, Minden, for Appellant.
    Charles Rex Scott, District Attorney, Karelia R. Stewart, Sarah S. Midboe, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and GARRETT, JJ.
   GARRETT, J. •

|TThe defendant, Wanda Gail Broome, was convicted of one count of possession of a Schedule III controlled dangerous substance (“CDS”), hydrocodone, and one count of distribution of a Schedule III CDS, hydrocodone. She was adjudicated a fourth felony offender and was given the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. The defendant appeals her convictions and her adjudication as a multiple offender. We affirm.

FACTS

The Shreveport Police Department received information that Broome was involved in drug activity. A female confidential informant (“Cl”) was secured who knew Broome personally. A Shreveport police task force, the Cl, and Deputy Jonathan Kennedy, who was an undercover officer from the Caddo Parish Sheriffs Office, embarked upon an investigation. Six hundred hydrocodone pills, also known as Lortab, were checked out of the Shreveport Police Department property room and given to Kennedy who, along with the Cl, sought to trade the hydrocodone pills to Broome in exchange for methamphetamine.

On May 31, 2011, Kennedy and the Cl went to Broome’s residence in Oil City, Louisiana. Kennedy claimed he observed Broome sell methamphetamine to a man named Dennis in her front yard. Then Kennedy sold Broome 15 hydrocodone tablets for $60. Broome gave six of the pills to Dennis and she kept the rest. A search warrant was obtained for Broome’s residence. An arrest team gained entry to the residence and Broome was arrested. However, the hydrocodone pills were not recovered.

12Broome was charged with one count of possession of hydrocodone, one count of distribution of methamphetamine, and one count of distribution of hydrocodone. On April 18, 2012, following a jury trial, the defendant was found guilty of one count of possession and one count of distribution of hydrocodone. She was acquitted on the charge of distribution of methamphetamine. A motion for new trial and a motion to modify and/or amend the sentence were denied by the trial court on April 23, 2012. On January 31, 2013, the defendant was given concurrent sentences of five years at hard labor on the possession con-vietion and 10 years at hard labor on the distribution conviction. She was also ordered to pay a fine of $5,000 on each charge plus court costs.

Broome was charged in an amended habitual offender bill of information with being a fourth felony offender based upon her conviction for distribution of hydroco-done. Broome filed a motion to quash the habitual offender bill of information, claiming that she was not properly informed of her rights when the predicate guilty pleas were entered. At the habitual offender hearing on May 1, 2013, the trial court denied the motion to quash. On May 9, 2013, Broome was adjudicated a fourth felony offender. Her prior sentence of 10 years for distribution was vacated and the mandatory sentence of life in prison without benefit of parole, probation, or suspension of sentence was imposed. Broome appealed.

SUFFICIENCY OF THE EVIDENCE

Broome argues that the evidence presented at trial was insufficient to convict her of one count of possession and one count of distribution of hydrocodone. Broome argues that the prosecution was required to prove that |sshe did, in fact, possess and distribute hydrocodone. According to Broome, because no hydroco-done pills were recovered from her residence, the prosecution failed to provide one scintilla of evidence that she possessed or distributed hydrocodone. Broome contends that all the prosecution proved was that one pill in the batch of 600 checked out of the police property room was identified as hydrocodone by a crime lab analyst based upon the markings on that pill. Broome argues there was no evidence that the sample pill identified at the crime lab was similar to the 15 pills which Kennedy claimed he sold to her, six of which she then distributed to another person. According to Broome, for the prosecution to have established its case at trial by proof beyond a reasonable doubt, it would have had to produce evidence that the sample pill was identical in chemical composition to the pills which Broome is alleged to have possessed and distributed. Broome maintains that the prosecution failed to show whether the sample pill was taken from the same bottle as the pills involved here, whether the 600 pills came from one prior case or multiple cases, whether the pills were all Schedule III hydrocodone as opposed to Schedule II hydrocodone where no other non-narcotic element is present, and whether the chemical composition of the pills was previously tested. These arguments are without merit.

Legal Principles

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

UThis standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Moore, 44,429 (La.App.2d Cir.8/26/09), 20 So.3d 1137, writ not cons., 2009-2166 (La.4/9/10), 31 So.3d 378; State v. Strother, 43,363 (La.App.2d Cir.8/20/08), 990 So.2d 130, writ denied, 2008-2289 (La.5/15/09), 8 So.3d 580. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442; State v. Moore, supra. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529; State v. Moore, supra.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Moore, supra. For a case resting essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v. Gipson, 45,121 (La.App.2d Cir.4/14/10), 34 So.3d 1090, writ denied, 2010-1019 (La.11/24/10), 50 So.3d 827.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of ^evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Moore, supra; State v. Barakat, 38,419 (La.App.2d Cir.6/23/04), 877 So.2d 223.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Moore, supra.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Moore, supra. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Moore, supra.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000); State v. Moore, supra.

La. R.S. 40:968 provides in pertinent part:

IfiA. Manufacture; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule III[.]
C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule III unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, or as provided in R.S. 40:978 or R.S. 40:1239, while acting in the course of his professional practice or except as otherwise authorized by this Part[.]

To support a conviction for possession of a CDS, the prosecution must prove that the defendant knowingly possessed an illegal drug. State v. Murphy, 09-432 (La.App.5th Cir.11/24/09), 28 So.3d 496, writ denied, 2010-0016 (La.6/25/10), 38 So.3d 334. The identity of the drug is an essential element of the charged offense. State in Int. of J.W., 597 So.2d 1056 (La.App. 2d Cir.1992); State v. Murphy, supra; State v. Miller, 587 So.2d 125 (La.App. 2d Cir.1991). Possession of a CDS may be established by showing that the defendant exercised either actual or constructive possession of the substance. “Actual possession” means having an object in one’s possession or on one’s person in such a way as to have direct physical contact with and control of the object. State v. Keys, 29,369 (La.App.2d Cir.5/7/97), 694 So.2d 1107, writs denied, 1997-1387, 1997-1497 (La.10/31/97), 703 So.2d 21.

To present sufficient evidence of distribution of a CDS, the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) guilty knowledge of the CDS at the time of the 17transfer; and (3) the exact identity of the CDS. State v. Ashley, 44,861 (La.App.2d Cir.10/28/09), 26 So.3d 193; State v. Moore, supra.

In State v. Smith, 2012-2358 (La.12/10/13), 130 So.3d 874, the supreme court stated:

Substantial jurisprudence exists, in fact, for the proposition that a contraband drug may be identified by circumstantial evidence as well as direct testimony with respect to scientific tests conducted on the substance. See, e.g., United States v. Eakes, 783 F.2d 499, 505 (5th Cir. 1986) (Such circumstantial proof may include ‘““evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.” ’ ”) (quoting United States v. Scott, 725 F.2d 43, 45-46 (4th Cir.1984) (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.976))); State v. Harris, 02-1589, p. 6 (La.5/20/03), 846 So.2d 709, 713-14 (“The federal courts subscribe generally to the view that the ‘government need not introduce scientific evidence to prove the identity of a substance ... as long as there is sufficient lay testimony or circumstantial evidence from which a jury could find that a substance was identified beyond a reasonable doubt, the lack of scientific evidence does not warrant reversal.’ Identification of a controlled substance does not require direct evidence if available circumstantial evidence established its identity beyond a reasonable doubt.... Identification based upon familiarity through law enforcement coupled with present observation of the substance at hand will suffice to establish the illicit nature of a suspected substance.”) (quoting United States v. Harrell, 737 F.2d 971, 978 (11th Cir.1984) (other citations omitted)); State v. Chatman, 599 So.2d 335, 347 (La.App. 1 Cir.1992) (“As long as there is sufficient lay testimony or circumstantial evidence from which a jury could find beyond a reasonable doubt that a substance was identified beyond a reasonable doubt, the lack of scientific evidence does not warrant reversal.”) (citing United States v. Sanchez DeFun dora, 893 F.2d 1173, 1175 (10th Cir.1990)).

|sSee also State v. Harris, supra; State v. Murphy, supra. Identification of pills by a forensic chemist through visual inspection has been held to be sufficient. See State v. Murphy, supra; State v. Carter, 2007-1237 (La.App.3d Cir.4/9/08), 981 So.2d 734, writ denied, 2008-1083 (La.1/9/09), 998 So.2d 712.

Discussion

In examining the sufficiency of the evidence in this matter, a thorough review of the facts is necessary. Agent Keith Knox of the Shreveport Police Department Narcotics Unit testified that he had information that Broome was involved in drug activity. He was the case agent for the operation conducted on May 31, 2011, in which Kennedy and a Cl would give Broome hydrocodone in exchange for methamphetamine.

A cover team, which also served as the arrest team, was staged at an area out of sight, but close to Broome’s home. Agent Knox stayed behind with a judge to secure a search warrant. He was in contact with the arrest team and secured the warrant as soon as probable cause was established. He then traveled to Broome’s residence, which took 50 minutes. When he arrived, he observed that several people on the scene were handcuffed, including Broome.

Corporal Steve McKenna of the Shreveport Police Department checked 600 hy-drocodone pills out of the Shreveport Police Department property room and gave them to Kennedy. Kennedy accompanied a Cl who knew Broome to a meeting at Broome’s house in order to exchange hy-drocodone for methamphetamine. The residence was a single-wide trailer set off the road. A white male and a black male exited the residence. The Cl | ¡¿dentified the white male as Broome’s son, Michael. Michael asked the Cl if Broome knew they were coming to the residence. The Cl said they were expected. Michael called Broome on a cell phone. The Cl spoke with Broome, who said she was at a ball game in Vivian, but would be returning to the residence. After the phone call was concluded, the Cl entered Broome’s residence and Kennedy followed. The Cl introduced Kennedy to Jeffrey Lunsford, who was smoking marijuana in one of the bedrooms. Kennedy suggested to the Cl that they await Broome’s return outside. They exited the trailer and waited in the yard. Michael returned and soon Jeffrey, another of Broome’s sons, arrived. Jeffrey got out of his car and handed the Cl his cell phone and said, “It’s momma.” The Cl claimed that Broome told her she was on her way to the residence and would pick up some methamphetamine on the way. Kennedy said they had waited about 45 minutes when a man named Dennis drove up in a white pickup truck. Dennis gave the Cl his cell phone and told her, “It’s Wanda.” The Cl said Broome told her she was about five minutes away.

Broome arrived in a blue pickup truck with a male passenger. According to Kennedy, Dennis had some money rolled up and approached Broome, who handed him a plastic bag containing translucent glass shards which appeared to be crystal methamphetamine in exchange for the money.

Broome said they should all go inside “to take care of the other business.” Kennedy got the hydrocodone pills from the Cl’s car and entered the trailer with the group. Kennedy was the last person in and Jeffrey locked the door behind him. Broome had everyone come to her bedroom. She told Kennedy she was not comfortable with him because they had never met. linKennedy lifted his shirt to demonstrate he was not wearing an audio recording device. Broome asked Kennedy if he had the Lortab. She counted out $60, laid it on the bed, and asked for 15 of the pills. Kennedy counted out the hydrocodone tablets and handed them to the Cl, who passed them to Broome. Broome gave six of the pills to Dennis and said she was keeping the rest as a surcharge. According to Kennedy, Broome put her nine hy-drocodone pills on her night stand.

Broome said she was ready to move to “the next thing.” She then told Kennedy to get out of the house. Kennedy left the trailer and concluded that he would not have the opportunity to buy any methamphetamine. He signaled the arrest team to move in. Dennis left in his truck before the arrest team arrived.

McKenna, who was in charge of the arrest team, took over and Kennedy left the scene. According to McKenna, the arrest team was informed that Knox had secured a search warrant and they began attempting to enter the trailer at 9:50 p.m. They used a battering ram on the door, which was not entirely effective because the door opened out and not in. One member of the arrest team failed to bring the “go bar” used for opening this type of door. According to McKenna, entry is usually gained in two or three seconds. It took 15-20 seconds to enter Broome’s residence. Such a delay caused a loss of speed, shock and surprise. The officers battered a hole in the center of the door and then reached in and unlocked it.

According to McKenna, when the arrest team entered the trailer, Broome was at the entrance to the hallway. Some marijuana was found in one of the rooms of the trailer, but the hydrocodone pills were never | ^recovered. McKenna testified that there are several ways to destroy drug evidence including flushing, hiding, or ingesting it. Materials used to package drugs, along with digital scales and a police scanner, were recovered from the trailer. Broome was arrested. McKenna took the remaining 585 hydrocodone pills back to the Shreveport Police Department property room and checked them in. One of the pills was sent to the crime lab for identification.

At trial, a certified report from the North Louisiana Criminalistics Laboratory was introduced into evidence without objection. According to the report, one blue caplet marked “WATSON 540” was “determined to contain a visually characterized pharmaceutical preparation containing hydrocodone in combination with a nonnarcotic ingredient, Schedule III.”

Broome testified at trial. She stated that she had known the.Cl since the girl was a baby. Broome claimed that the Cl began calling her at work and she did not recognize the name on the messages and she did not return the calls. Three days before this incident, Broome claimed that the Cl came to her house and told her that she had cancer. According to Broome, the Cl claimed her pain medication made her sick and she asked Broome if she knew anyone who might get rid of it. Broome claimed she told the Cl, “I do not mess around like that no more.” Several nights later, Broome was at a t-ball game in which one of her grandchildren was a participant. One of Broome’s children called and told her that the Cl was at her house. Broome said she picked up a man who was going to work on her truck and 90 minutes later she arrived at her house. The Cl and a man were standing in the yard. Broome said they all went into her bedroom and the man with the |12CI sold “Lortabs” to “this other guy that was there.” Broome claimed at that point she asked the Cl to leave. The Cl and the man with her left. The task force arrived and rammed the door to the residence. When they got inside, Broome was arrested. Broome claimed she asked McKenna why she was being arrested. He told her the arrest was because she was selling Lortab. She denied the accusation.

Broome admitted her prior criminal history which included a 1991 conviction for distribution of Schedule II CDS, methamphetamine, a 1998 conviction of possession of methamphetamine, and a 2000 conviction for distribution of methamphetamine. After the 2000 conviction, her probation was revoked and she served six years in prison.

Broome testified that no Lortab was recovered from her house. Regarding the drug packaging material and digital scales found in her house, Broome said those items had been in a storage building and she had brought them inside. She acknowledged having a police scanner in the house as well.

Broome insisted that all the law enforcement officers who testified at trial were lying. She asserted that she used to date a friend of McKenna’s and because of that, McKenna had a vendetta against her. Broome claimed that Jeffrey Lunsford, the man Kennedy observed smoking marijuana in her house, was the father of one of her children. She contended that she did not know that Lunsford smoked marijuana in her residence.

McKenna stated that he had previously arrested Broome and that at some point, she dated someone he knew in high school. McKenna denied having a vendetta against Broome.

|13In this case, the jury heard testimony that 600 hydrocodone pills, also known as Lortab, were checked out of the police property room. A forensic chemist identified one of these pills as hydrocodone. Kennedy testified that he, the Cl, Dennis (to whom Broome had just sold methamphetamine), and another man all went into Broome’s bedroom to conduct business. Broome’s son locked the door of the residence behind the group. Kennedy stated that he sold 15 of the pills to Broome. He then observed her give six of the pills to Dennis.

The actual pills sold to Broome could not be tested because they were not recovered. The evidence established that Broome had sufficient time to dispose of the drugs while the arrest team was struggling to gain entry to the residence. In her trial testimony, Broome confirmed that a drug deal involving Lortab occurred in her bedroom. She specifically referred to the pills she saw as Lortab. Broome simply denied her involvement in the transaction, asserting that Kennedy sold the pills to “this other guy that was there.”

The jury made a credibility call and chose to believe Kennedy’s testimony and not Broome’s. The physical appearance of the pills, the high price paid for them, the transaction carried out in Broome’s bedroom behind a locked door to the residence, the reference to the drug as Lortab by all involved, including Broome, and Kennedy’s testimony that he sold the drugs to Broome, who took possession of them and gave some of them to Dennis, constituted sufficient proof beyond a reasonable doubt of the essential elements of both possession and distribution of hydro-codone and was sufficient to convict Broome of those charges.

_|_yJUDGE’S COMMENT ON ENTRAPMENT

Broome argues that the trial court erred in admonishing the jury, following the opening statement of counsel for the defendant, that there was “no entrapment defense in this case” and further admonishing the jury not to consider entrapment as a defense in this case. This argument is without merit.

Legal Principles

La. C. Cr. P. art. 772 provides:

The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.

Essential to the concept of a fair trial is the requirement of complete neutrality on the part of the presiding judge. State ex rel Whiticar v. Butler, 576 So.2d 515 (La.1991). The no-judge-comment rule is designed to safeguard the role of the jury as the sole judge of the facts on the issue of guilt or innocence. If the effect of a question or comment is to permit a reasonable inference that it expresses or implies the judge’s opinion as to the defendant’s innocence or guilt, this constitutes a violation of the defendant’s statutory right to no-comment and thus requires reversal. To constitute reversible error, however, the effect of the improper comment must be such as to have influenced the jury and contributed to the verdict. State v. Patterson, 2011-892 (La.App.3d Cir.2/1/12), 83 So.3d 1209, writ denied, 2012-0526 (La.6/1/12), 90 So.3d 435; State v. Walker, 97-1180 (La.App.3d Cir.3/6/98), 710 So.2d 304; State v. Colligan, 95-880 (La.App.3d Cirj8/7/96),15 679 So.2d 184. Likewise, any comment or question by the judge expressing or implying his opinion with regard to a material issue is reversible. State v. Thomas, 2012-1458 (La.App.3d Cir.6/5/13), 114 So.3d 684.

A trial judge’s remarks made while giving reasons for a ruling are not objectionable as comments on the case unless they are unfair or prejudicial to the accused. State v. Motion, 395 So.2d 1337 (La.1981), cert. denied, 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981); State v. Guillot, 353 So.2d 1005 (La.1977), writ denied, 367 So.2d 864 (La.1979); State v. Warner, 93-0216 (La.App.4th Cir.7/27/94), 641 So.2d 684, writ denied, 94-2517 (La.1/27/95), 649 So.2d 379. When the trial judge’s comments do not imply an opinion as to the defendant’s guilt or innocence, any error in making the comment is harmless. State v. Egana, 550 So.2d 1243 (La.App. 4th Cir.1989); State v. Cathey, 493 So.2d 842 (La.App. 5th Cir.1986), writ denied, 500 So.2d 419 (La.1987), cert. denied, 481 U.S. 1049, 107 S.Ct. 2181, 95 L.Ed.2d 838 (1987).

Trial counsel’s failure to object to the trial judge’s remark and/or seek a mistrial precludes appellate review of the assignment of error. La. C. Cr. P. art. 841; State v. Warner, supra; State v. Cathey, supra. However, if the comments are so extremely inflammatory and prejudicial that they violate due process, the issue may be considered without a contemporaneous objection. See State v. Colligan, supra; State v. Rochon, 98-717 (La.App.5th Cir.3/10/99), 733 So.2d 624; State v. Walker, supra.

Discussion

|1fiIn his opening statement, Broome’s counsel at trial stated:

Got a lot of problems with this case from day one. They’re trying to make a case on speculation. They’re trying to make it on entrapment. And they are trying to produce evidence that they did not recover from the client.

After defense counsel concluded his opening statement, the prosecution asked to approach the bench and an unrecorded bench conference was held between both counsel and the judge. The trial court then made the following statement:

Ladies and gentlemen, this is — like I said, this is argument in what the attorneys believe the case will show. [Defense counsel] did bring up entrapment. There is no entrapment in this case. There is no entrapment defense in this case. So you are not to consider that in this case, okay?

Defense counsel made no objection to the statement by the trial court. Therefore, arguably this issue is not reviewable on appeal. However, we have examined the argument and conclude that the trial court’s comments did not violate La. C. Cr. P. art.- 772. The trial court did not comment on the facts of the case and did not express or imply an opinion as to the defendant’s guilt or innocence. Further, there is no showing that the comment influenced the jury or contributed to the verdict. As stated above, defense counsel did not object to the comment and did not argue that he was precluded from raising entrapment as a defense. We note that entrapment 117was never brought up during voir dire. The defendant did not claim any entrapment in her testimony. Indeed, her defense was that Kennedy sold the Lortab to someone other than her, the law enforcement officials were lying, and no drugs were found. No jury instruction on entrapment was requested. Entrapment was simply not an issue in this case. Accordingly, the trial court’s comments did not constitute error.

HABITUAL OFFENDER FINGERPRINT EVIDENCE

In her third assignment of error, Broome argues that the state failed to prove her prior convictions beyond a reasonable doubt at the habitual offender hearing because it relied solely on fingerprint evidence. She suggests that since all of the convictions arose in the First Judicial District Court, the state could have produced witnesses such as arresting officers, booking officers, and parole and probation officers to prove her identity as the person convicted in the predicate offenses. This argument is without merit.

Legal Principles

To prove that a defendant is a habitual offender, the state is required to establish, by competent evidence, that there is a prior felony conviction and that the defendant is the same person who was convicted of that prior felony. State v. Payton, 2000-2899 (La.3/15/02), 810 So.2d 1127; State v. Smith, 46,343 (La.App.2d Cir.6/22/11), 71 So.3d 485, writ denied, 2011-1646 (La.1/13/12), 77 So.3d 950. Both the identity and the prior conviction alleged must be proven beyond a reasonable doubt. La. R.S. 15:529.1(D)(l)(b); State v. Brown, 2011-1656 (La.2/10/12), 82 So.3d 1232. Various methods of proof establishing identity have been recognized as sufficient to sustain the state’s burden of proof including testimony of witnesses, expert opinion as to fingerprints, and photographs contained in duly authenticated records. State v. Brown, supra; State v. Henry, 42,416 (La.App.2d Cir.9/19/07), 966 So.2d 692, writ denied, 2007-2227 (La.8/29/08), 989 So.2d 95.

Discussion

The state asserted that Broome had the following predicate convictions: distribution of Schedule II CDS, 1991; possession of Schedule II CDS, 1998; and distribution of Schedule II CDS, 2000. At the habitual offender hearing on May 1, 2013, the state elected to prove Broome’s identity by having her fingerprinted by an expert who then compared those prints to the ones from her prior convictions. Lt. Owen McDonnell of the Caddo Parish Sheriffs Office was accepted as an expert in fingerprint and friction skin analysis. Lt. McDonnell took Broome’s fingerprint impressions and compared them to those found on certified documents of her previous convictions. He concluded that the fingerprint impressions were all from the same person.

On cross-examination, Lt. McDonnell stated that in comparing the current prints and those from the 2000 conviction, he found in excess of 29 major ridge events in commonality with no unexplainable differences. As to the fingerprints from the 1998 conviction, he saw in excess of 27 major ridge events with no unexplainable differences. As to the fingerprint evidence from the 1991 convictions, Lt. McDonnell noted that it was of lower quality and clarity in comparison to the more recent ones. | ^Nonetheless, he was still able to observe 10 major ridge events in commonality with no unexplainable differences for the middle finger impressions and 14 for the little finger impressions. According to Lt. McDonnell, these were more than adequate to form an opinion as to whether the prints came from the same person and that as few as six points had been used in court before. While he found more clarity in the fingerprint evidence for the 2000 and 1998 convictions, he opined that the evidence of the 1991 conviction was reliable.

The evidence presented by the state was sufficient to prove beyond a reasonable doubt that Broome was the same person who was convicted of each of the three predicate felony convictions. Accordingly, we find that this assignment of error lacks merit.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . Entrapment is an affirmative defense. The burden is on the defendant to prove entrapment by a preponderance of the evidence. The question whether the government agent implanted the criminal idea in the mind of an innocent person to induce the commission of a crime that would not otherwise be committed is one for the jury. State v. Brand, 520 So.2d 114 (La.1988). The entrapment defense will not be recognized when the law enforcement official merely furnishes the accused with an opportunity to commit a crime to which he is predisposed. In entrapment cases, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. Thus, the focus in determining an entrapment defense is on the conduct and disposition of the defendant, as well as the conduct of the government agent. State v. Brand, supra.

      . As previously mentioned, Broome admitted to each of these convictions during cross-examination when she testified during her jury trial.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Evelence Z. PRICE, Appellant.
    No. 49,011-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Charles R. Scott II, District Attorney, Lucien H. Marioneaux, Jr., Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   CARAWAY, J.

_JjEvelence Z. Price was charged with one count of possession with intent to distribute marijuana, in violation of La. R.S. 40:966, and one count of possession of cocaine, in violation of La. R.S. 40:967, as a result of acts occurring on August 25, 2012. After a unanimous jury convicted him on both counts, Price was sentenced to concurrent sentences of 30 years at hard labor for the marijuana conviction and five years at hard labor for the cocaine conviction After the denial of a timely motion to reconsider sentence, this appeal by Price followed. We affirm Price’s convictions, amend his sentences to delete default jail time, and as amended, affirm.

Facts

On August 25, 2012, an off-duty police officer observed Price standing in front of a convenience store selling illegal drugs out of a trash can. Police arrived and detained Price. Thereafter, in the trash can, police found a brown paper bag containing nine plastic bags of marijuana and a small amount of cocaine. Price was arrested and charged with possession with intent to distribute marijuana and possession of cocaine. At the conclusion of his one-day trial, a jury found Price guilty as charged.

Price’s motions for a new trial and post-verdict judgment of acquittal were denied on April 23, 2013. On that same day, Price was sentenced. Prior to imposing sentence, the trial court informed Price of the sentencing range for both offenses of conviction. Further, the court made the following statements:

|2Okay. I remember this one because you were offered a pretty dang good deal, and you turned it down. You were selling drugs out of a trash can at a convenience store.
Mr. Price, under the factors of 894.1, the Court has reviewed those, this is an enterprise that you were engaging in to make money obviously. You have also got a second-degree battery charge that was a felony that you pled guilty to. I count about five of them, five prior felonies from 1989 possession of cocaine, 1991 attempted possession of a firearm by a convicted felon, second-degree battery 1995, possession of Schedule II cocaine in 2001, possession of marijuana second offense in 2002 and now the possession with intent to distribute Schedule I marijuana and the possession of Schedule II cocaine.
Mr. Price, at some point in time it’s got to stop, you know. They are going to multibill you anyway, Mr. Price, okay? They are already getting the multibill ready for you, Mr. Price. Having five priors that’s not good. I mean you don’t leave me any choice, you know.

Price was then sentenced to 30 years at hard labor for possession of marijuana with intent to distribute, with a $10,000 fíne and court costs or 60 days default jail time, and a concurrent sentence of five years at hard labor for the possession of cocaine conviction with a $5,000 fine and court costs or 60 days default jail time.

On May 16, 2013, Price filed a motion to reconsider his sentence arguing that the imposed maximum sentences were excessive on the grounds that the trial court failed to give adequate consideration to aggravating and mitigating factors, including Price’s age. The motion was denied on May 20, 2013. This appeal ensued.

|sDiscussion

Price asserts that the imposed sentence terms are disproportionate to the severity of the crimes and that the trial court’s failure to consider any mitigating factors including his social, educational or employment history shows that the sentences were not tailored to him.

At the time of the offenses, the penalty for possession with intent to distribute marijuana was a sentence of 5 to 30 years at hard labor and a fine of not more than $50,000. La. R.S. 40:966(B)(3). The sentence for possession of cocaine was a maximum of 5 years, with or without hard labor, and an optional fíne not to exceed $5,000. La. R.S. 40:967(0(2).

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

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90.

We find adequate La.C.Cr.P. art. 894.1 compliance by the trial court. Although not specifically mentioning its consideration of Price’s personal history, the court expressly referred to the guidelines and recited relevant factual considerations. The court also noted Price’s criminal record and the facts of the offense, which included the sale of drugs and Price’s lack of rehabilitation. Thus, an adequate factual basis for the sentence has been shown.

Likewise, we find the imposed sentences adequately tailored to Price. Price’s criminal record included five prior felonies, which included two previous possession of cocaine convictions and one possession of marijuana offense. For those previous offenses, Price faced potential multiple billing. He has obviously failed to benefit from prior leniency in sentencing and has continued in the same pattern of criminal activity for a 20-year period, escalating his activities from possession to sale of illegal drags. His lack of rehabilitation is evidenced by these facts which also qualify Price as the worst type of offender for which these maximum sentences are appropriate. For these reasons, we find no abuse of discretion in the sentences imposed.

LWe note one error patent. The trial court ordered Price to serve 60 days in jail in default of payment of court costs for both sentences. An indigent defendant cannot be subjected to default time in lieu of the payment of a fine, costs or restitution. State v. Lewis, 48,373 (La.App.2d Cir.9/25/13), 125 So.3d 482. A defendant’s claim of indigence in such a situation may be discerned from the record. State v. Arkansas, 47,317 (La.App.2d Cir.8/8/12), 104 So.3d 459, writ denied, 12-1996 (La.3/15/13), 109 So.3d 374. Price’s indigence has been shown by his representation at trial by the Indigent Defender’s Office, and his current representation on appeal by the Louisiana Appellate Project. Thus, the imposition of default time was in error. Therefore, this court modifies Price’s sentences to delete the imposition of default jail time for failure to pay court costs.

Conclusion

For the above reasons, Price’s conviction is affirmed. We delete those portions of Price’s sentences that impose default jail time, and as amended, affirm.

AFFIRMED AS AMENDED.

      . In prior criminal proceedings, Price was also referred to as Efrem Zimblence Price.

      . The trial court did not and was not required to order a presentence investigation report. State v. Bell, 377 So.2d 275 (La.1979); State v. Collins, 32,409 (La.App.2d Cir.9/22/99), 763 So.2d 618. Such an investigation is an aid to the court and not a right of the accused. The trial court’s failure to order a PSI will not be reversed absent an abuse of discretion. Id.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Donte Lashon GILBERT, Jr., Appellant.
    No. 49,039-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Teresa Culpepper Carroll, Jonesboro, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Suzanne M. Owen, Janet L. Silvie, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and PITMAN, JJ.
   BROWN, Chief Judge.

11Defendant, Donte Lashon Gilbert, Jr., pled guilty on June 25, 2013, to one count of aggravated flight from an officer, a violation of La. R.S. 14:108.1. He was sentenced to serve 18 months at hard labor, and a $500 fine was imposed, together with court costs, or 60 days in jail in lieu of payment. Defendant appeals his sentence as excessive. The sentence is amended to remove that portion which imposed jail time in default of payment of the fine and court costs, and as amended, the sentence is affirmed.

Facts

Defendant was initially charged with aggravated flight from an officer, unauthorized use of a motor vehicle, and illegal carrying of weapons while in possession of a controlled dangerous substance. An attorney from the Indigent Defender Board was appointed to provide representation for defendant. On June 25, 2013, defendant appeared before the court to plead guilty to count one, aggravated flight. Counts two and three were dismissed by the state.

The trial court advised defendant that by pleading guilty he would waive his right to a trial by jury, his right to confront and cross-examine witnesses, and his right against self-incrimination. The trial court also advised defendant that he faced a sentencing exposure of up to two years at hard labor and a maximum fine of $2,000. Defendant confirmed that he understood the rights he was waiving and the possible sentence, and said that no one was forcing him to plead guilty.

The following factual basis was recited at the guilty plea hearing. On March 27, 2013, Shreveport Police officers observed defendant speeding on 12La. Hwy. 3132 and attempted to stop him. The officers were in a marked police car and had their lights engaged. Defendant’s friend and his cousin were in the car with him. Defendant continued his flight from the officers into a residential area and was clocked driving at over 80 mph in zones marked for a maximum of 40 or 60 mph. He ran a red light. After turning onto a dead-end street, defendant abandoned the car and fled on foot until he was finally captured. Following his arrest, a search of the vehicle revealed a 9mm handgun, which had been reported stolen, and a small amount of marijuana. The vehicle had also been reported having been taken without authorization.

Defendant confirmed that the facts were correct, but informed the judge that he thought he was only driving 55 or 60 mph. The trial court stated that the video indicated that defendant’s speeds were higher. Defendant said that he fled from the officers because he had an outstanding warrant for resisting an officer and misrepresentation during booking.

The trial court found there was a factual basis for the plea and that defendant was freely and voluntarily pleading guilty, then accepted defendant’s guilty plea.

The judge said that he had reviewed the sentencing guidelines found in La. C. Cr. P. art. 894.1 and that he rewarded defendant for admitting his mistake and pleading guilty. The trial court found that the maximum sentence was not warranted under the circumstances of the case, but also noted that defendant’s outstanding warrant was a consideration. The trial court then sentenced defendant to 18 months imprisonment at hard labor, with credit for time served. The trial court also ordered defendant to pay a |<¾$500 fine, plus court costs, or to serve an additional 60 days in jail in lieu of payment.

On July 25, 2013, defendant filed a motion to reconsider sentence, claiming that the sentence imposed was excessive, that the reasons the trial court gave as aggravating factors were not sufficient grounds for the near maximum sentence imposed and that the trial court gave insufficient weight to mitigating factors such as defendant’s age at the time of the offense, and that he had no prior felony or misdemean- or convictions. The trial court denied the motion on July 26, 2013. Defendant has appealed, urging the excessiveness of his sentence.

Discussion

On appeal, defendant argues that the 18-month hard labor sentence is excessive and that the goals of rehabilitation can be achieved with a lesser sentence. Defendant also complains that the trial court failed to specify aggravating or mitigating factors or any of the justifications for imposing a sentence of imprisonment under La. C. Cr. P. art. 894.1.

La. R.S. 14:108.1(E) provides that the penalty for aggravated flight from an officer is imprisonment at hard labor for not more than two years and an optional fine of not more than $2,000.

A sentence is reviewed for exces-siveness by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1 and determining whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La.App.2d Cir.11/02/11), 77 So.3d 1052. A sentence is excessive by constitutional standards, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate [ 4to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/02/11), 77 So.3d 1047.

The trial court has wide discretion in imposing a sentence within minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows that the trial court abused its discretion. State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 11-2304 (La.03/09/12), 84 So.3d 550. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App.2d Cir.10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App.2d Cir.09/21/11), 73 So.3d 1021, writ denied, 11-2347 (La.03/09/12), 84 So.3d 551.

The trial court in this case noted that the guidelines were reviewed and specifically referred to an aggravating factor — the outstanding warrant for resisting an officer and misrepresentation — and a mitigating factor — defendant’s admission of his mistake and guilty plea — that were considered in the determination of his 18-month sentence with a $500 fine, which was less than the maximum of 24 months with a $2,000 fine. As was discussed during the guilty plea colloquy immediately preceding defendant’s sentencing, defendant endangered the lives of his passengers, the pursuing |sofficers, and the citizens along the Interstate and residential areas by driving at speeds exceeding 80 mph and by running a traffic light. Although this was defendant’s first conviction, it was not his first or only criminal act, as evidenced by warrants for resisting an officer and misrepresentation, and other charges for unauthorized use of an immovable and illegal carrying of a firearm while in possession of a controlled dangerous substance. In light of these facts, the sentence of 18 months at hard labor is not disproportionate to the severity of the danger caused by defendant’s actions and does not shock the sentence of justice.

Defendant next asserts that because he is indigent, that portion of his sentence which imposes jail time in default of payment of the $500 fine and court costs is illegal. The state concurs that, due to defendant’s indigent status, the jail time in default of payment of the fine and court costs should be deleted from the sentence imposed.

Therefore, that portion of defendant’s sentence which imposes 60 days jail time in default of the payment of the fine imposed and court costs is vacated.

Conclusion

For the above reasons, defendant’s sentence is amended to remove that portion which imposes jail time in default of payment of the fine and court costs, and as amended, it is affirmed.

      . An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Kerrigan, 27,846 (La.App.2d Cir.04/03/96), 671 So.2d 1242.


author: WILLIAMS, J.

text:
    Robin FANGUY, Plaintiff-Appellant v. Ravish V. PATWARDHAN, M.D., Defendant-Appellee.
    No. 48,773-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Jody T. Benson, John L. Hammons, Shreveport, Annis C. Flournoy, for Appellant.
    Lawrence W. Pettiette, Jr., Rendi B. Wiggins, Joseph S. Woodley, Shreveport, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   WILLIAMS, J.

pin this medical malpractice action, the trial court rendered a judgment, in accordance with the jury’s verdict, in favor of defendant, Dr. Ravish V. Patwardhan. The court also denied a motion for a judgment notwithstanding the verdict (“JNOV”), or in the alternative, a new trial, filed by plaintiff, Robin Fanguy. For the following reasons, we affirm.

FACTS

On May 22, 2007, Robin Fanguy, presented to defendant, Dr. Ravish V. Pat-wardhan, a neurosurgeon, for treatment. Ms. Fanguy, who had been referred to Dr. Patwardhan by her primary physician, Dr. Carl Hines, complained of low back pain, numbness, pain and tingling in her left leg and pain in her left hip. A subsequent MRI revealed a dessication of the disc at L5-S1; a discogram revealed concordant back pain at L4-5 and L5-S1. As a result of the radiological findings, Dr. Patwar-dhan recommended that Ms. Fanguy undergo a two-level transforaminal lumbar interbody fusion (“TLIF”) at L4-5 and L5-S1.

Dr. Patwardhan performed the TLIF on July 9, 2007. According to Dr. Patwar-dhan’s testimony, throughout the surgery, he monitored Ms. Fanguy’s electromyo-graphic (“EMG”) status and he performed the surgery with the use of a fluoroscope. In his postoperative dictation, Dr. Patwar-dhan stated that the rods, screws and cages were properly placed. Dr. Patwar-dhan also testified that he verified the placement of the hardware via fluoroscopy during the surgery; however, he did not print any fluoroscopic images and 12did not obtain postoperative radiographic studies.

On July 24, 2007, Ms. Fanguy returned to Dr. Patwardhan’s office for her first postoperative examination. She reported that she continued to experience back pain. Again, Dr. Patwardhan did not obtain any radiographic studies. Instead, he assured Ms. Fanguy that postoperative pain and inflammation were common and instructed her to continue to take her medication.

Thereafter, on August 28, 2007, Ms. Fanguy called Dr. Patwardhan’s office and reported pain in her left hip. Dr. Patwardhan referred her to Dr. Cambize Shahrdar, an orthopaedic surgeon, who evaluated her on September 21, 2007, and February 5, 2008. Dr. Patwardhan did not schedule any appointments with Ms. Fanguy between August 2007 and February 2008. He testified that he instructed her “to call me if there was a problem. She never called me saying there was a new problem[.]”

On February 12, 2008, Ms. Fanguy returned to Dr. Patwardhan’s office, complaining of low back pain radiating into her left leg, numbness and tingling in her left leg and “constant pain in [her left] leg [and left] foot.” Dr. Patwardhan ordered x-rays, which revealed that one of the cages he had inserted during the TLIF was displaced. He opted to treat Ms. Fanguy conservatively and referred her to a pain management specialist.

On March 20, 2008, Ms. Fanguy was evaluated by Dr. Rebecca Posner, a pain specialist. During this visit, Ms. Fanguy reported numbness, tingling and weakness in her left leg. Thereafter, she was referred to Dr. |sMilan Mody, an orthopaedic spine specialist.

Dr. Mody evaluated Ms. Fanguy on April 16, 2008. According to the records from that visit, Ms. Fanguy reported that she had fallen from a ladder at home. Dr. Mody ordered x-rays which revealed that the spacers that had been inserted by Dr. Patwardhan were protruding posteriorly into Ms. Fanguy’s spinal canal. Initially, Dr. Mody opted to treat Ms. Fanguy conservatively; he ordered a nerve conduction study and CT myleogram and instructed Ms. Fanguy to perform home exercises. On June 12, 2008, Ms. Fanguy returned to Dr. Mody with continued complaints of back pain. Dr. Mody recommended a revision of the TLIF.

On June 24, 2008, Ms. Fanguy obtained a second opinion from Dr. Euby Kerr, an orthopaedic spine surgeon. Dr. Kerr reviewed the x-rays and opined that the cage Dr. Patwardhan had inserted at L4-5 was compressing Ms. Fanguy’s L5 nerve root. After unsuccessfully treating Ms. Fanguy conservatively, Dr. Kerr performed a revi-

sion of the TLIF on September 8, 2008. Thereafter, Ms. Fanguy reported to Dr. Kerr that her condition had improved and she only experienced minor complaints of numbness and tingling in her left leg and foot.

On October 30, 2008, Ms. Fanguy filed a complaint against Dr. Patwardhan with the Patient’s Compensation Fund, and a medical review panel was convened. The panel concluded that Dr. Patwardhan failed to meet the applicable standard of care in providing postoperative care to Ms. Fan-guy and that the failure “was a factor in reducing the patient’s chance for |4a better outcome.” The panel stated:

Dr. Patwardhan made a contemporaneous statement at the time of [the] procedure that the rods, screws and cages were properly placed. There is no objective evidence to establish that they were not properly placed. Displacement of the cages is a known risk following this procedure, although the risk is relatively low.
The standard of care required that x-rays should have been done immediately following the procedure and at the time of her follow-up visit, but certainly sooner than February 12, 2008, for this patient. The follow-up care and failure to obtain these x-rays was a breach of the applicable standard of care.
The delay in follow-up treatment and addressing the displaced cage was a factor in reducing the patient’s chance for a better outcome.

On June 22, 2011, Ms. Fanguy filed this lawsuit against Dr. Patwardhan, alleging that his conduct caused her to sustain “extensive nerve damage — causing partial (yet permanent) paralyzation, and intense permanent pain[J” She also alleged that her condition was “gravely aggravated” by Dr. Patwardhan’s “failure to perform the necessary and expected follow-up treatment dictated by the applicable postoperative standard of care[.]”

A jury trial was held on January 28-February 1, 2013, during which Ms. Fanguy, Dr. Patwardhan and numerous medical experts testified. Ms. Fanguy’s voluminous medical records were also introduced into evidence.

Ms. Fanguy testified at trial as follows: she began experiencing “back ^problems” in 2001, and they gradually worsened; Dr. Hines began treating her for back pain in 2006; initial treatment was unsuccessful; eventually, Dr. Hines referred her to Dr. Patwardhan, who obtained multiple diagnostic tests before informing her that surgery was her “only option”; after surgery, the pain in her back was “worse than before”; she told Dr. Patwardhan about her pain, and he advised her that the pain was caused by inflammation and would improve “over time”; on her first postoperative follow-up visit, she informed Dr. Patwardhan she was “still in intense pain”; Dr. Patwardhan told her the pain was related to the surgery and would improve; between September 2007 and February 2008, she made multiple telephone calls to Dr. Patwardhan’s office with complaints of pain; Dr. Patwardhan’s nurse attributed her pain to inflammation and instructed her to continue taking her pain medications; she asked Dr. Patwardhan to order x-rays; he instructed her to remain on bed rest, take her medication and follow up with her pain management doctor; at the February 2008 visit to Dr. Patwar-dhan’s office, she “demanded” that he obtain x-rays; she did not return to his office but she was told over the telephone that the x-rays were “normal”; she continued seeing Dr. Hines and her pain management doctor; Dr. Hines referred her to Dr. Mody, who ordered an EMG, x-rays and a MRI; Dr. Mody informed her that two of the “discs” were not located properly and that she would need another surgery; her back felt better as soon as she awakened after the second surgery.

On cross-examination, Ms. Fanguy admitted that she had significant leg and back pain before she went to Dr. Patwar-dhan; however, she denied having trouble walking. She also denied ever requesting or receiving a | (¡motorized wheelchair. However, she was confronted with her medical records which indicated that Dr. Hines ordered a motorized wheelchair for her in 2006. While examining Ms. Fanguy for the wheelchair, Dr. Hines noted that her left lower extremity was “moderately weakened.” Dr. Hines also noted that Ms. Fanguy “experiences falls”; “ambulation causes excessive pain” and that she had an “unsteady gait.” When noting the duration of Ms. Fanguy’s need for the power wheelchair, Dr. Hines responded, “Lifetime.” Additionally, Dr. Hines’ notes revealed that on November 16, 2006, Ms. Fanguy called his office, and reported that her “legs hurt and feel prickly. When I walk, I walk with a limp.”

Ms. Fanguy was also confronted with her medical records from visits to various hospitals and physicians prior to her initial visit to Dr. Patwardhan. The records revealed that on January 29, 2007, she presented to the emergency room at Minden Medical Center, complaining that she had fallen and was unable “to move bilateral lower extremities.” Subsequently, on May 1, 2007, Ms. Fanguy returned to Minden Medical Center’s emergency room complaining of “lower extremity numbness and tingling with activities.” These notes reflected that Ms. Fanguy was “currently using a walking stick for help.” Moreover, Ms. Fangujfs medical records reveal that in April 2008, after the surgery performed by Dr. Patwardhan, but before the revision surgery performed by Dr. Kerr, Ms. Fan-guy went to Dr. Hines and stated, “My low back hurts. I fell off a ladder on Saturday.” However, during her testimony, Ms. Fanguy vehemently denied ever falling from a ladder.

Dr. Patwardhan testified that Dr. Hines referred Ms. Fanguy to him 17because she had experienced severe back pain for a number of years. She also had weakness in her legs, which required the use of a motorized wheelchair. According to Dr. Patwardhan, he informed Ms. Fanguy that the TLIF would help her back pain but “there was not a high chance that it will help your leg symptoms[.]” Dr. Patwar-dhan further testified that during the procedure, he used fluoroscopy to verify the placement of the cages; however, he was unable to obtain images using the equipment in use at that time. He stated, “I saw the x-ray; I made sure the hardware was appropriately placed.” Dr. Patwar-dhan admitted that he did not order postoperative x-rays because Ms. Fanguy was “complaining of the same leg symptoms she had complained about prior to the surgery.” Dr. Patwardhan explained that Ms. Fanguy’s complaints were not similar to the symptoms of a patient who had experienced the dislocation of a cage; therefore, he did not believe x-rays were necessary. Further, Dr. Patwardhan testified that the x-rays he ordered in February 2008 showed that the cages “were slightly displaced”; however, he did not see any obvious compression of the nerve roots. Thus, he believed that Ms. Fanguy was experiencing “continuing symptoma-tology” that she experienced prior to the surgery. He testified that after he obtained the x-rays, he referred Ms. Fanguy back to Dr. Jimmy Ponder, her pain specialist, and she never returned to see him.

Dr. Euby Kerr testified that he treated Ms. Fanguy from June 2008, before deciding to revise the TLIF on September 8, 2008. He testified that during the surgery, he observed that the pedicle screws were properly placed; however, the cage at L5-S1 “was completely displaced.” Dr. Kerr testified that the cage had transected (severed) approximately 15-20% of the |snerve and the cage at L4-5 was “pulling at the L5 nerve root.” According to Dr. Kerr, if Ms. Fanguy complained of pain shortly after the first surgery, obtaining x-rays sooner could have led to discovering the displacement of the hardware. He testified that it is standard procedure to order postoperative x-rays within three to four weeks to “make sure the hardware is intact, make sure there isn’t any gross catastrophic failures, things of that nature.” He further testified that, in this case, x-rays should have been obtained sooner “in particular because the patient had still continued complaints of pain” and Dr. Patwardhan had an obligation to investigate the source of the pain.

When questioned on direct examination, Dr. Kerr testified that the transection of Ms. Fanguy’s nerve root could have occurred when Dr. Patwardhan inserted the cage or it could have occurred over time. Dr. Kerr further testified that the prolonged compression of the nerve caused Ms. Fanguy to have constant, severe leg pain. He stated that the revision surgery eliminated Ms. Fanguy’s pain “to a fair degree” and that her motor strength and mobility improved, but did not completely resolve. By his last visit with her, on November 6, 2008, she was walking with a limp and complaining of “pain that radiates into the right posterior and lateral lower extremity, with increasing numbness and tingling into the left lower extremity going down into her foot.”

On cross-examination, Dr. Kerr testified that when he examined Ms. Fanguy on September 24, 2008, her bilateral motor strength in the lower extremities was normal. He also testified that Ms. Fanguy reported that her back pain was “much better than before surgery” and that her leg pain had | improved.

Dr. Brian Willis, a neurosurgeon, testified that he was not involved with Ms. Fanguy’s care; however, he was a member of the medical review panel that considered this case. Dr. Willis opined that Ms. Fanguy was not a candidate for a TLIF because her MRI did not reveal any rupture, herniation of discs or instability of the spine. Dr. Willis testified that the evidence did not prove that Dr. Patwar-dhan did not place the cages properly; however, obtaining x-rays, either in the operating room or within a day or two after the surgery “would have documented that the cages were in good position.” Dr. Willis opined that the appropriate standard of care was to check the placement of the cages by obtaining x-rays during the postoperative period. Additionally, he stated that if Dr. Patwardhan had investigated Ms. Fanguy’s complaints further, it “may have revealed, maybe, that there was a displacement or malpositioning of the grafts and that a revision surgery at that time may potentially have resulted in an improved outcome.”

On cross-examination, Dr. Willis reiterated that the evidence did not establish that Dr. Patwardhan improperly placed the cages and there was no way to determine when the cage became displaced. Dr. Willis stated that he did not know if the delay in ordering x-rays caused Ms. Fanguy permanent harm. He testified that obtaining the x-rays sooner might have improved her chance of having a better outcome; however, he was unable to testify to that with certainty.

Dr. Benjamin Nguyen, a neurologist who evaluated Ms. Fanguy, also testified. He stated that Dr. Mody referred Ms. Fanguy to him for an EMG/nerve conduction study in April 2008. In his note dated April 24, Iiq2008, Dr. Nguyen noted that Ms. Fanguy “walks very gingerly and tends to drag her left leg.” However, he also noted that Ms. Fanguy was able to move both legs freely “when she is distracted.” Dr. Nguyen testified that the EMG/nerve conduction study was normal and Ms. Fanguy did not have any denervation in her left leg. He opined that Ms. Fanguy’s weakness in her left leg was “most likely due to conversion disorder.” He testified that he believed Ms. Fanguy’s symptoms of left leg weakness were “fictitious.” He explained that Ms. Fanguy reported that she was unable to walk; however, his observations and examination revealed that Ms. Fanguy did not have difficulty walking. Dr. Nguyen also opined that Ms. Fanguy did not have any nerve injury to L4-5 and L5-S1 that would cause her to experience foot drop or any other problems with her left leg or foot.

■ Dr. Robert Lieberson, a neurosurgeon, also testified. He opined that Dr. Patwar-dhan’s decision to perform the TLIF did not violate the standard of care because Ms. Fanguy had unresolved back pain for more than two years. Dr. Lieberson also opined that Dr. Patwardhan’s postoperative care did not violate the standard of care because it was “pretty much what we do.”

Dr. Marco Ramos, a neurosurgeon and a member of the medical review panel in this matter, also testified. He also opined that Dr. Patwardhan did not breach the standard of care in electing to perform the InTLIF. Dr. Ramos further opined that Dr. Patwardhan did not breach the standard of care in the way he performed the surgery. He explained that the surgery was performed with continuous EMG studies and Dr. Patwardhan placed the cages using a fluoroseope. Dr. Ramos testified that it was apparent to him that Dr. Pat-wardhan performed the surgery correctly with the use of imaging because the screws were placed properly and it is “impossible to do that” without using fluoroscopy. However, he opined that Dr. Patwardhan should have obtained x-rays sooner. According to Dr. Ramos, x-rays might have revealed that the cage was displaced and Ms. Fanguy could have been treated accordingly. Although he testified that Dr. Patwardhan should have ordered x-rays immediately after the surgery, he admitted that he and many other surgeons do not order immediate postoperative x-rays after performing a TLIF. When asked what harm Ms. Fanguy experienced as a result of Dr. Patwardhan’s failure to obtain the x-rays sooner, Dr. Ramos responded:

There is no evidence that this patient had what we usually call [a] fixed neurological deficit. A fixed neurological deficit is a permanent deficit that the patient has as a consequence of neural injury. This patient does not have that.

Dr. Mary McWilliams, another neurologist, also testified. She stated that Ms. Fanguy presented to her on February 4, 2009, complaining of migraine headaches. Dr. McWilliams testified that Ms. Fanguy reported that her left leg was “paralyzed” and that she had foot drop. However, Dr. McWilliams stated that Ms. Fanguy did not give “maximum effort” on tests that involved her motor skills. She documented, “False claim of lower extremity severe weakness [is] proven by inconsistencies in examination.” | ^According to Dr. McWil-liams, generally, spinal nerve damage does not cause weakness and/or sensory loss in only one limb. Her impression was that the origin of Ms. Fanguy’s complaints was emotional, not physical. Dr. McWilliams testified as follows:

In her case, when sitting in the chair and asked to slide her foot back under the chair, she could not move her foot against minimal resistance. I just had my hand behind her ankle. She couldn’t lift her knee and get her foot off the floor. But when she went to get on the exam table, she walked fairly normally across the floor and climbed up one foot and then the other on a step that’s about ... eight inches off the floor. [She] appeared to have minimal difficulty, but certainly was not paralyzed.
She had pretend weakness. I don’t know if it was conscious pretend weakness, or if it was psychiatric pretend weakness, but it wasn’t real weakness in the muscles themselves. She could contract with normal strength. She was trying to show me that she couldn’t. She was showing me such severe weakness that it was obvious that it was untrue. But that doesn’t mean that she didn’t have some weakness buried in all of that other stuff. It was true, and I really just couldn’t tell from examining her, but I could tell that much of what she was complaining of was highly exaggerated.

Portions of the deposition of Dr. Jimmy Ponder, a pain specialist, was read into the record. Dr. Ponder testified that he had been treating Ms. Fanguy for back and leg pain since 2004. Although his office notes reflect that Ms. Fanguy had foot drop, Dr. Ponder admitted that he did not diagnose her with foot drop. He stated that Ms. Fanguy told him that she developed foot drop after the TLIF. Dr. Ponder testified, “I didn’t really diagnose her with that. I kind of assumed maybe that she had some type of tests done in Shreveport.” He also testified that he was not treating Ms. Fan-guy for any new symptoms; he was treating her for the same lumbar radiculopathy that he diagnosed in August 2004. Additionally, Dr. Ponder testified that Ms. 113Fanguy did not require any assistive devices to walk. He further stated that he did not know the cause of Ms. Fanguy’s pain; he just treated her symptoms.

At the conclusion of the trial, the jury found that Ms. Fanguy established, by a preponderance of the evidence, that Dr. Patwardhan “either lacked that degree of knowledge or failed to use reasonable care and diligence, along with his best judgment, in the application of that skill in the treatment of [plaintiff].” However, the jury also found that Ms. Fanguy failed to establish, by a preponderance of the evidence, that Dr. Patwardhan’s breach was a substantial factor in causing harm to her. The trial court signed a judgment in accordance with the jury’s verdict and dismissed Ms. Fanguy’s claims with prejudice.

On February 13, 2013, Ms. Fanguy filed a motion for a JNOV, or in the alternative, a new trial, arguing that the jury’s verdict was “manifestly erroneous, mandating a reversal and obligating [the trial court] to substitute its judgment as to the amount of fair compensation that must be awarded to plaintiff for damages caused by the medical malpractice of the defendantf.]” Following a hearing, the trial judge denied the motion, stating:

⅜ * *
It seems clear to me that the jury took the [Medical Review Panel’s] approach as to what the malpractice was and accepted Dr. Ramos’s analysis. That establishes a deviation below the standard of the care, beneath the standard of care, but whether there are damages from that delay depend entirely on Ms. [Fanguy], and frankly the jury and the Court are of the opinion that she has a less than zero credibility. She is simply not believable, and it is to the point that there may be psychological issues involved in it she is so unbelievable.
Her measure of damages for lack of a timely follow-up 114 depend almost entirely on her testimony as to the damages she suffered. And she is not credible, and the jury apparently just decided that she had not established her damages, because it depends largely on her testimony.
I can see the path the jury took. I don’t think I am allowed to substitute my judgment or what I would have done for what the jury did.
[I] can’t say that the jury was manifestly wrong in taking Dr. Ramos’s testimony and in discounting the Plaintiffs testimony. I think that’s within their province.
Ms. Fanguy appeals.

DISCUSSION

As stated above, Ms. Fanguy sought a JNOV, or in the alternative, a new trial. She argued that the jury’s verdict in favor of Dr. Patwardhan on the issue of causation was manifestly erroneous, and therefore, it required the trial court to substitute its judgment for that of the jury and award damages to plaintiff.

Additionally, Ms. Fanguy contends the jury manifestly erred in concluding that she failed to prove a causal relationship between Dr. Patwardhan’s malpractice and the medical expenses and general damages she incurred for the TLIF and postoperative treatment. She argues that the verdict was contrary to the expert testimony presented at trial. According to Ms. Fan-guy, three physicians, Drs. Kerr, Willis and Ramos, opined that Dr. Patwardhan breached the standard of care and, because of that breach, she had to undergo a revision surgery. Dr. Kerr, who performed the revision surgery, testified that the cages were malpositioned. He also testified that 11sone of the cages had partially transected one of the nerve roots leading from Ms. Fanguy’s spine. Additionally, Dr. Kerr testified that the screws and rods were in place; therefore, the hardware did not migrate after the procedure performed by Dr. Patwardhan. As a result, it is clear that the cages were mal-positioned during the TLIF procedure. Dr. Patwardhan did not present any evidence or testimony to refute Dr. Kerr’s testimony.

A JNOV is warranted when the facts and inferences, viewed in the light most favorable to the party opposing the motion, are so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict; the motion should be granted only when evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. Peterson v. Gibraltar Sav. and Loan, 98-1601 (La.5/18/99), 733 So.2d 1198; Atkins v. Louisiana Mut. Medical Ins. Co., 47,374 (La.App.2d Cir.11/7/12), 105 So.3d 781, writ denied, 2013-0341 (La.4/1/13), 110 So.3d 585. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fairminded men, in the exercise of impartial judgment, might reach different conclusions, the motion should be denied. Anderson v. New Orleans Public Serv., Inc., 583 So.2d 829 (La.1991); Atkins, supra. Simply stated, a trial court can grant a JNOV only when a jury’s verdict is one which reasonable people could not have rendered; if reasonable people could have arrived at the same verdict given the evidence presented to the jury, then a JNOV is improper. Atkins, supra; Jackson v. A.L. & W. Moore Trucking, 609 So.2d 1064 (La.App. 2d Cir.1992).

| ifiThe motion for a new trial requires a less stringent test than for a JNOV. A new trial may be granted in any ease if there is good ground therefor. LSA-C.C.P. art. 1974. Whether to grant a new trial requires a discretionary balancing of many factors. Dowles v. Conagra, Inc., 43,074 (La.App.2d Cir.3/26/08), 980 So.2d 180; Gibson v. Bossier City General Hosp., 594 So.2d 1332 (La.App.2d Cir.1991). Unlike the standard applicable to a motion for JNOV, the trial judge may evaluate evidence without favoring any party and draw his own inferences and conclusions. Perhaps the significant authority is the ability to assess the credibility of witnesses when determining whether to grant or deny the motion for new trial. Dowles, supra. The trial court’s discretion in ruling on a motion for new trial is great, and its decision will not be disturbed on appeal absent an abuse of that discretion. Id.

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 |17or unless clearly wrong. Hays v. Christus Schumpert Northern La. 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, it is undisputed that Dr. Patwardhan did not obtain postoperative x-rays to verify the placement of the cages. The jury concluded that this failure constituted a breach of the applicable standard of care. However, as stated above, when asked, “Did the plaintiffs establish by a preponderance of the evidence that Dr. Patwardhan’s lack of knowledge or failure to exercise the appropriate degree of care and diligence, along with his best judgment in the application of that skill, was a substantial factor in causing harm to Ms. Robin Fanguy?” The jury responded, “No.”

During the four-day trial, the jury was presented with the testimony from multiple witnesses, lay and expert, with regard to whether Dr. Patwardhan breached the applicable standard of care and whether there was |18a causal connection between the breach (the failure to obtain x-rays between July 2007 and February 2008) and the resulting injury (Ms. Fanguy’s continued complaints of pain, weakness and numbness in her left lower extremity).

We have reviewed this record in its entirety and we find that the facts are not “so strongly and overwhelmingly in favor of [Ms. Fanguy] that reasonable men could not arrive at a contrary verdict.” Therefore, the trial court did not err in denying Ms. Fanguy’s motion for a JNOV/new trial.

This record is replete with evidence and testimony supporting the trial court’s judgment. Ms. Fanguy testified that she did not have any weakness in her left leg or problems walking prior to the TLIF performed by Dr. Patwardhan. However, her medical records belie that testimony. According to Ms. Fanguy’s medical records, in 2006, Dr. Hines ordered her a motorized wheelchair because she was experiencing falls due to an “unsteady gait” and “moderate” weakness in her left leg. Thereafter, she sought treatment from a pain management specialist with complaints of back pain radiating down her legs and pain in her left leg. In January 2007, Ms. Fanguy visited a local emergency room, complaining that she had fallen and was unable to move either of her legs. Approximately one month later, she called Dr. Hines’ office and complained that the “whole left side of [her] body [was] numb.” In June 2007, Dr. Hines documented that Ms. Fanguy’s “ambulation abilities [were] poor without assistance.” Additionally, her medical records show that Ms. Fanguy had been undergoing treatment for fibro-myalgia/chronic pain at least two years before the surgery and her prognosis had been described as “poor.”

[ i9Pr. Kerr testified that there is no way of knowing whether the nerve root compression was caused by Dr. Patwardhan inserting the cages improperly, or whether the cages became displaced over time. Dr. Kerr also testified that although Ms. Fan-guy suffered pain as a result of the compressed nerve, after he revised the TLIF, her pain was “much better than before surgery.”

Similarly, Dr. Willis testified that the evidence did not establish whether the cages were positioned improperly or whether they migrated at a later time. Dr. Willis also acknowledged that EMG/ nerve conduction studies performed after the first TLIF showed that Ms. Fanguy had normal strength and full range of motion in both legs.

Additionally, Dr. Nguyen testified that Ms. Fanguy had normal strength and range of motion in both legs when he evaluated her on April 24, 2008. He further testified that the studies showed that Ms. Fanguy did not have any neurological deficits in her legs. He opined that her complaints of left leg weakness were “fictitious” and were “most likely due to conversion disorder.”

Dr. Ramos testified that Ms. Fanguy’s medical records from various emergency rooms show that she did not have any longstanding effects or weakness in her lower extremities. He also testified that Ms. Fanguy did not have any permanent neurological deficits to indicate that she had experienced a neural injury.

Dr. McWilliams characterized Ms. Fan-guy’s complaints of left leg paralysis/weakness as “false.” She also testified that Ms. Fanguy had “pretend weakness” and that her complaints were “highly exaggerated.”

^Consequently, we cannot say that the trial court erred in rendering a judgment in accordance with the jury’s conclusion that Ms. Fanguy failed to prove that the procedure performed by Dr. Patwardhan caused her left leg pain and weakness. Additionally, in light of the medical records that demonstrate the severity and frequency of Ms. Fanguy’s neurological complaints prior to the surgery, the expert testimony regarding the exaggeration of her symptoms, and the expert opinions that her complaints are psychiatric in nature, as stated above, the trial court did not err in denying Ms. Fanguy’s motion for JNOV or, in the alternative, new trial.

CONCLUSION

For the reasons set forth herein, the trial court’s judgment, rendered in accordance with the jury’s verdict, is hereby affirmed. We also affirm the trial court’s denial of plaintiffs motion for JNOV, or in the alternative, a new trial. Costs of this appeal are assessed to plaintiff, Robin Fanguy.

AFFIRMED.

      . At the time of Ms. Fanguy’s initial visit with defendant, she was 39 years old. She had been treated for back pain by various physicians, including pain management specialists, for a number of years prior to her referral to Dr. Patwardhan.

      . Ms. Fanguy reported increasing pain in her hip and Dr. Shahrdar diagnosed her with left hip trochanteric bursitis.

      . Ms. Fanguy’s last visit to Dr. Kerr was on November 6, 2008.

      . One member of the medical review panel, Dr. Brian Willis, opined that Dr. Patwardhan breached the applicable standard of care by performing the TLIF because Ms. Fanguy was not an appropriate candidate for that procedure. The other members, Dr. Marco Ramos and Dr. Anthony Sin, opined that Dr. Patwar-dhan did not breach the applicable standard of care in performing the procedure based upon Ms. Fanguy’s “unresolved' complaints after two years of conservative treatment, together with the MRI and discogram findings[.]”

      . "Conversion disorder,” formally known as hysteria, is considered psychiatric in nature. Patients present with neurological symptoms without any physical impairments.

      . Ms. Fanguy underwent another EMG/nerve conduction study on May 7, 2008. The test was performed by Dr. Eric Bicknell, another neurologist, and was normal. According to .Dr. Bicknell’s notes, Ms. Fanguy’s "examination was limited by poor volition motor con-trole.]”

      . Dr. Patwardhan has not appealed the portion of the jury’s finding that he breached the standard of care in his treatment of Ms. Fan-guy-