text:
    STATE of Louisiana v. Terrance L. MOSLEY.
    No. 08-KA-1318.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Walter G. Amstutz, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, James A. Williams, Rachel Yazbeck, Attorneys at Law, Gretna, LA, for Defen-dani/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| gin this criminal matter, bearing docket number 08-KA-1318, defendant/appellant Terrance L. Mosley appeals his jury trial conviction of possession with intent to distribute marijuana, a violation of La.R.S. 40:966(A). In a separate appeal — a companion case on this Court’s docket — bearing docket number 08-KA-1319 he appeals his habitual offender life sentence.

Mr. Mosley assigns the following errors in the present appeal 08-KA-1318: (1) The trial court erred by accepting Lieutenant Lloyd as an expert and allowing him to give an opinion on the ultimate issue. (2) It was error for the state to introduce “other crimes” evidence through the testimony of Ms. Morgan. (3) The evidence was insufficient to support this conviction. For the reasons that follow, we affirm.

Procedural History

|3The state filed a bill of information charging Mr. Mosley and the codefendant Theodore J. Jones with possession with intent to distribute marijuana. A jury trial proceeded as to Mr. Mosley alone. At trial, the state introduced evidence that Mr. Jones pleaded guilty to possession with intent to distribute marijuana. The twelve-person jury rendered a verdict of guilty as charged as to Mr. Mosley. Mr. Mosley filed a motion for new trial which the trial judge denied. Thereafter the trial court sentenced Mr. Mosley to 25 years at hard lábor. On the same day, the state filed a habitual offender bill of information, alleging that Mr. Mosley was a third felony offender. The habitual offender finding and sentencing are the subject of the separate appeal. A review of that appellate record indicates that on August 22, 2008, the trial judge held a habitual offender hearing and found Mr. Mosley to be a triple felony offender. It also indicates that on August 25, 2008, the trial judge vacated the previous 25-year sentence and sentenced Mr. Mosley to imprisonment for the remainder of his natural life without benefit of parole, probation, or suspension of sentence.

This timely appeal followed the conviction and original 25-year sentence.

Facts

Lieutenant Russell Lloyd of the Gretna Police Department testified that he has been the commander of the Criminal Investigations Division for more than 19 years. He has been involved with narcotics investigations for 13 years. On February 14, 2008, Lieutenant Lloyd was assigned to a multi-jurisdictional crime task force which included the Gretna and New Orleans police departments as well|4as the Jefferson and Plaquemines Parish sheriffs offices. Its purpose was to combat crime on the Westbank. On that evening he patrolled the David Development/Avondale area. He and other officers were riding in an unmarked vehicle, and they wore plain clothes with police shirts instead of uniforms.

Lieutenant Lloyd testified that at the intersection of Alma and Wayne Streets, he passed behind a red Camaro occupied by two men. Mr. Mosley was sitting in the passenger seat. Mr. Jones was the driver. The car drew his attention because it had two license plates: a temporary tag and a “hard” plate. The car was also parked on the street, facing against traffic. The officer testified that duplicate license plates and parking on the wrong side of the street are traffic violations.

Lieutenant Lloyd stated that he pulled his vehicle in front of the car to prevent the occupants from moving it. When the lieutenant exited his vehicle, he saw Mr. Mosley reach toward the floorboard in front of him as if he were trying to hide something. The officers had both occupants get out of the car. Lieutenant Lloyd then inspected the floorboard in front of the seat where Mr. Mosley had been sitting. Lieutenant Lloyd stated that he saw a gallon-size plastic zip-lock bag that contained green vegetable matter, and he removed the bag. He stated that there was nothing else on the passenger floorboard of the vehicle. Lieutenant Lloyd arrested Mr. Mosley and Mr. Jones.

Lieutenant Lloyd testified that following the arrests, he searched the Camaro. In the back seat, he found an open Adidas brand gym bag containing a second gallon bag filled with green vegetable matter. The bag was directly behind Mr. Mosley on the passenger side within arm’s reach. Lieutenant Lloyd stated that he searched Mr. Mosley’s person and recovered $400.00. He found $513.00 on Mr. Jones’ person.

|sAt trial, the parties stipulated to the chemist’s report. The report shows that the two plastic bags of green vegetative matter tested positive for marijuana. One bag of marijuana had a net weight of approximately 430.40 grams, and the other bag had a net weight of approximately 436.90 grams. Thus, the sum of those weights was 867.3 grams. The parties further stipulated that if the chemist were called to testify she would testify in accordance with her report. The jury had the opportunity to view the two bags that the officer seized and which were introduced into evidence.

Defense witness Yolanda Morgan testified that Mr. Mosley is her daughter’s boyfriend, and that he was arrested beside her Alma Street residence in Westwego, Louisiana after visiting there. She stated that she has known Mr. Mosley for one and one-half years, and during that time she has not known him to sell narcotics. She said she had smelled marijuana on him on occasion. When she asked him about it, he told her that that was all he did. Ms. Morgan stated that at the time of the arrest, one of the police officers asked her if she knew Mr. Mosley. She replied that she did, but that she did not know the man arrested with him. Ms. Morgan told the officers that Mr. Mosley had just left her house, and that he did not have anything in his hands at that time.

Law and Discussion

Sufficiency

Mr. Mosley raises trial errors in addition to arguing that the evidence at trial was insufficient. In particular, he argues that Lieutenant Lloyd’s opinion testimony regarding the issue of Mr. Mosley’s intent to distribute should be disregarded. However, when the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. |6 Hearold, 603 So.2d 731, 734 (La.1992). Therefore, Lieutenant Lloyd’s testimony is considered in our discussion of the sufficiency of the evidence. The assigned error regarding his expertise is discussed separately.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Cummings, 95-1377, p. 2 (La.2/28/96), 668 So.2d 1132, 1133. Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, Draughn v. Louisiana, — U.S.-, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007) citing La.R.S. 15:438 and State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002) (quotations in original). This statutory test works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. Neal, supra, 00-0674 at 9, 796 So.2d at 657, citing State v. Rosiere, 488 So.2d 965, 968 (La.1986).

Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. State v. Chism, 436 So.2d 464, 469 (La.1983). The trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, 17reconciled or compromised; and the weight and effect to be given to each permissible inference. Id.

Constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Spears, 05-0964, p. 3 (La.4/4/06), 929 So.2d 1219, 1222 citing State v. Mussall, 523 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law. Spears, supra, 05-0964 at 3, 929 So.2d at 1222-23 (Citations omitted).

The crime of possession with intent to distribute marijuana requires proof that the defendant knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. La.R.S. 40:966(A); State v. Brown, 04-1194, p. 7 (La.App. 5 Cir. 4/26/05), 902 So.2d 542, 547, writ denied, 05-1637 (La.2/3/06), 922 So.2d 1173.

At trial, the state introduced evidence of Mr. Mosley’s 1996 conviction for possession with intent to distribute cocaine, and his 1997 conviction for cocaine distribution. Lieutenant Lloyd, whom the trial court accepted as an expert in the field of narcotics-related investigations, testified that he “charged” Mr. Mosley and Mr. Jones with possession of marijuana with intent to distribute at the time of their arrest based on the large quantity of money and marijuana the men had in their possession, and because there was no paraphernalia in the car that indicated personal consumption. The officer said he did not find any joints, “roaches” (the remains of previously smoked marijuana cigarettes), or cigarette rolling papers in the car to indicate that the two men had used marijuana.

|8 According to Lieutenant Lloyd, the marijuana weighed the equivalent of two pounds. On cross-examination, Lieutenant Lloyd stated that the quantity in and of itself does not make a distribution case. He admitted that he saw no transaction involving narcotics. He testified that he saw Mr. Mosley sitting in the car where there was approximately one pound of marijuana or 400 grams. He stated that marijuana is not perishable. While it might dry out over time, it can still be smoked. He agreed that some indications of a distributor are that a person would have a scale, packaging materials and other bags to transfer the greater amount into smaller amounts.

Mr. Mosley argues that, at most, the state proved he was attempting to purchase marijuana from Mr. Jones. Mr. Mosley asserts that the state failed to exclude the reasonable inference that he went to the ear to purchase one of the bags of marijuana for his personal use based on the following evidence: (1) Marijuana is not a perishable item. (2) Quantity alone does not establish distribution. (3) There were no observable drug transactions. (4) There were no items associated with drug transactions. (5) Mr. Mosley’s conviction for distribution was 10 years ago. (6) The marijuana was not packaged for individual sales.

Specific intent is defined as that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La.R.S. 14:10. The intent to distribute may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. Carey, 07-674, p. 4 (La.App. 5 Cir. 12/27/07), 975 So.2d 27, 29, writ denied, 08-0430 (La.11/10/08), 996 So.2d 1064.

In the absence of circumstances from which an intent to distribute may be inferred, mere possession of a drug does not amount to evidence of intent to 1 fldistribute, unless the quantity is so large that no other inference is possible. State v. Hearold, 603 So.2d at 735-36. The following factors are useful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance: 1) previous attempts to distribute the drug; 2) whether the drug was in a form consistent with distribution to others; 3) the amount of the drug; 4) expert or other testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only; and 5) paraphernalia evidencing an intent to distribute. Hearold, supra, 603 So.2d at 735; State v. House, 325 So.2d 222, 225 (La.1975). We agree with the Fourth Circuit that by describing the factors as “useful,” the Supreme Court did not require that the evidence fall squarely within the listed factors to be sufficient for the jury to find the requisite intent to distribute. State v. Cushenberry, 94-1206, p. 4 (La.App. 4 Cir. 1/31/95), 650 So.2d 783, 786.

Furthermore, in discussing the first element of the five-factor formula, the House and Hearold courts specifically refer to evidence of the defendant’s prior attempts to distribute the drug involved in the current offense. But the Hearold court suggests that evidence of distribution of any illegal drug would be sufficient to support an inference of intent to distribute. Addressing the testimony about the defendant’s prior drug activity, the court stated: “This evidence of prior drug distribution, if admissible and when considered with the other evidence pertaining to the amount of drugs found in the bag, could provide a basis for a rational trier of fact to conclude beyond a reasonable doubt that defendant intended to distribute the methamphetamine in his possession in accordance with his longstanding drug dealing operation.” Hearold, supra, 603 So.2d at 736 (Emphasis added).

Large sums of cash may also be considered as circumstantial evidence of intent to distribute a controlled substance. State ex rel. B.L., 02-923, p. 4 (La.App, |10 5 Cir. 1/28/03), 839 So.2d 246, 248 citing Hearold, supra, 603 So.2d at 736 and State v. Taylor, 99-1154, p. 15 (La.App. 5 Cir.2/29/00), 757 So.2d 63, 72, writ denied, 00-1021 (La.3/30/01), 788 So.2d 441.

Mr. Mosley’s convictions show that he had a history of narcotics distribution, but not marijuana distribution in particular. However, Mr. Mosley’s prior history of narcotics distribution was useful in determining whether circumstantial evidence was sufficient to prove the intent to distribute marijuana. Also, the jury could have reasonably excluded the hypothesis that Mr. Mosley only intended to purchase the marijuana given the sheer quantity of the marijuana seized, the large sums of cash, and the absence of paraphernalia indicating personal consumption.

In this case we conclude that the evidence is sufficient to support an ultimate finding that the reasonable findings and inferences permitted by the evidence exclude every reasonable hypothesis of innocence. Despite evidence supporting some contrary inferences, a trier of fact reasonably could have found that Mr. Mosley had specific intent to distribute the marijuana in his possession.

Therefore, this assignment lacks merit. Expert Testimony

Mr. Mosley makes a two-pronged argument on appeal. First, he argues that the trial court erred in accepting Lieutenant Lloyd as an expert witness without first performing the “gatekeeping” function outlined by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) to determine whether the expert testimony is reliable. He argues that Lieutenant Lloyd had no scientific credentials and he did not use a scientific method in making his conclusions. Instead, his conclusions were based on conjecture. He specifically objects to Lieutenant Lloyds testimony Uthat he believed Mr. Mosley intended to distribute marijuana. Second, he argues that the trial court erred in allowing Lieutenant Lloyd to give opinion testimony outside his field of expertise. In this regard, he argues that the court erred in accepting him as an expert witness insofar as his competence to evaluate the evidence to determine whether the evidence met the criteria for possession or possession with intent to distribute. He asserts that only an expert in packaging, distribution, and retail sales of marijuana could testify in such manner.

At trial, defense counsel objected when the prosecutor, during direct examination, asked Lieutenant Lloyd whether a “roach,” which remains after someone smokes a marijuana cigarette, is an item consistent with personal use of marijuana. Defense counsel argued that the prosecutor was attempting to elicit testimony regarding the ultimate issue of fact without first qualifying the witness as an expert. The prosecutor responded by conducting a voir dire of the lieutenant’s qualifications.

The officer testified that he had extensive experience involving several thousand narcotics cases. He stated that he participated in undercover operations and attended numerous schools where he had been trained in the field. He had supervised others in narcotics-related events and at the time of trial was supervising them. He had taught in the training academy or in other forums regarding narcotics-related matters. In his experience as a police officer in the narcotics field he knew the difference between distribution, simple possession, and procession with intent to distribute cases. No one had ever previously attempted to qualify him as an expert in the field of narcotics.

On cross-examination after the state’s tender of the witness as an expert in the field of narcotics-related investigations, the officer testified that he had not written any books or articles on the subject of use or distribution of narcotics. |12With regard to his undercover work, he had not infiltrated organizations that sell marijuana or other narcotics and stayed undercover for any length of time other than a day or two at the most. While in his undercover capacity he had never been a part of the inner core of any organization that distributed drugs or narcotics.

In response to the prosecutor’s redirect on the tender, the officer testified that he was part of the Department of Justice Task Force involving narcotics. Thereafter, the prosecutor again tendered Officer Lloyd as an expert in the field of street level narcotics investigation. In response, defense counsel stated that he had no problem with qualifying the lieutenant as an expert in investigation. He stated, however, that he objected to the officer’s testifying as an expert in the quantities that would distinguish street level users from sellers.

The trial judge qualified the officer, without objection, as an expert in the field of narcotics-related investigations. He deferred ruling on defense counsel’s objection to the officer’s testifying as an expert in the quantities that would distinguish street level users from sellers.

After being qualified, Lieutenant Lloyd testified regarding the quantities of marijuana, which based on his experience, were consistent with distribution or simple possession. He also testified regarding the indicia for personal use.

He stated that based on his experience in marijuana investigations, distribution of marijuana could involve as little as one joint or one cigarette if the person sold that quantity. He explained that on the other hand, if a person were not attempting to sell that amount, the case would be simple possession rather than distribution. He would be concerned that a person had the intent to distribute when he had a larger quantity than one joint or two joints. He stated that a joint would be indicative of simple possession because that amount would be for personal use. The officer testified that quantity in and of itself does not make a distribution case. |1sHe testified that some indications of a distributor are that a person would have a scale, packaging materials and other bags to transfer the greater amount into smaller amounts. He explained that cases of distribution or possession with intent to distribute are not limited to those cases in which baggies and scales and other such items are found. He stated that this case was consistent with possession with intent to distribute marijuana.

Lieutenant Lloyd testified that he did not find any indications of personal consumption in this case. His determination to “charge” the defendants with possession with intent to distribute marijuana was based on the money that was on the defendants, the quantity of marijuana, and the fact that there was nothing else involving personal consumption in the car. He stated that the defendants could not explain where the money came from.

For the first time on appeal, Mr. Mosley argues the trial court erred in accepting Lieutenant Lloyd as an expert witness without first performing the “ga-tekeeping” function outlined by the United States Supreme Court in Daubert to determine whether the expert testimony is reliable.

The state responds that Mr. Mosley did not preserve the error because defense counsel accepted the officer as an expert in narcotics-related investigations. The state is partially correct. Defense counsel never requested a Daubert hearing. In Cheairs v. State DOTD, 03-0680, p. 8 (La.12/3/03), 861 So.2d 536, 541 (rehearing granted in part on other grounds), the Supreme Court recognized a distinction between challenging the reliability of the methodology used by the expert, which is addressed by a Daubert inquiry, and the expert’s qualifications to testify competently regarding the matters he intends to address.

Here, at trial defense counsel never challenged the reliability of the methodology used. In fact, he accepted Lieutenant Lloyd as an expert in narcotics | ^investigations. He challenged Lieutenant Lloyd’s expert’s qualifications only as to his testifying regarding quantities that would distinguish street level users from sellers.

Thus, defense counsel qualified his acceptance and he objected to any testimony as to drug quantities that would distinguish street level users from sellers. Although the trial judge never specifically ruled on the objection, he nonetheless allowed Lieutenant Lloyd to testify regarding this distinction. We view the trial judge’s actions in noting the objection and allowing the state to continue questioning Lieutenant Lloyd in the area of quantities that would distinguish street level users from sellers as a tacit overruling of defense counsel’s objection.

Therefore, having failed to challenge the reliability of the methodology used by the expert that issue is not preserved for appeal. Accord: State v. Addison, 05-378, p. 22 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 898, writ denied, 06-1087 (La.11/9/06), 941 So.2d 36 (“[T]he defendant did not preserve this issue for appeal and this assignment of error will not be addressed.”).

Even so, we disagree with Mr. Mosley’s assertion that Lieutenant Lloyd needed scientific credentials and a scientific method in order to testify as an expert about the differences between street sellers and users. In State v. Addison, 05-378, pp. 18, 20 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 895, 897, writ denied, 06-1087 (La.11/9/06), 941 So.2d 36, the defendant raised a similar argument. He argued that the trial court committed reversible error by accepting the officer as an expert because he did not have scientific credentials to prove his expertise, his assessments were based on total conjecture and he did not employ any kind of scientific method in arriving at his conclusions. Although we concluded that the issue was not preserved on appeal, we found that the defendant failed to show how |1Bthe officer’s qualifications were so lacking that he should not have been qualified as an expert in the area. We considered the officer’s training and experience, and found that the trial court did not abuse its broad discretion in finding the officer was competent to testify as an expert.

We now turn to the issue that is properly before us. The issue is whether Lieutenant Lloyd was competent to testify regarding quantities that would distinguish street level users from sellers. In other words, could Lieutenant Lloyd give an expert opinion regarding packaging, distribution, and retail sales of marijuana when he was never specifically qualified as an expert in those areas? Stated differently, could Lieutenant Lloyd give an expert opinion regarding packaging, distribution, and retail sales of marijuana based on his qualifications as an expert in narcotics investigations?

As a general matter, under La. C.E. art. 702, “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify ... in the form of an opinion or otherwise.” State v. Higgins, 03-1980, p. 33 (La.4/1/05), 898 So.2d 1219, 1239, cert. denied, Higgins v. Louisiana, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). In reviewing an expert’s qualifications, “the trial judge is vested with wide discretion in determining the competence of an expert witness. Competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge; h[er] rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error.” Id., quoting State v. Stucke, 419 So.2d 939, 944 (La.1982) (citing State v. Drew, 360 So.2d 500 (La.1978)).

In State v. Grant, 41, 745 (La.App. 2 Cir. 4/4/07), 954 So.2d 823, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629, the defendant argued that an agent l^was not properly qualified as an expert to give an opinion regarding the manner in which the cocaine was packaged, or that the small bags contained individual dosage amounts. The Third Circuit concluded that the contemporaneous objection rule precluded the defendant from raising this issue on appeal due to the fact that he did not object to the issue at trial. Even so, the court concluded that the record clearly supported the fact that the agent possessed the requisite specialized knowledge in order to offer an expert opinion regarding the dosage amounts in which cocaine is sold. The court explained that the agent testified that he had been a police officer for more than six years, assigned to the Caddo-Shreveport Narcotics Task Force for more than three years, and that he had worked undercover for the task force. 41,745 at 9-10, 954 So.2d at 832.

In State v. Johnson, 513 So.2d 832 (La.App. 2 Cir.1987), writ denied, 519 So.2d 124 (La.1988), the defendant, similar to Mr. Mosley, agreed that the officer was an expert in narcotics investigations, but he objected to his testimony defining a “courier” and explaining how cocaine was distributed on the street. The Second Circuit found no merit to the assignment noting in part that the defendant did not explain how one could be an expert in narcotics investigation and not know these things.

Likewise, in the instant ease, Mr. Mosley did not explain how one could be an expert in narcotics investigation and not know the distinction between street level dealers and sellers.

Furthermore, Lieutenant Lloyd testified regarding his extensive experience in narcotics investigations. We hold that the officers extensive training, teaching, supervisory, and on-the-job experience were sufficient to qualify him to offer opinions regarding various aspects of narcotics distribution. His experience encompassed the consumption habits of marijuana users. Defense counsel fails to show that 117Lieutenant Lloyds testimony exceeded his status as a narcotics investigator or encroached upon the expertise which only a person qualified as an expert in packaging, distribution and retail sales of marijuana would possess. We conclude that the trial judge did not abuse his discretion in allowing Lieutenant Lloyd to give his expert opinion regarding the distinction between street level dealers and sellers.

Accordingly, this assignment of error lacks merit.

Previous Convictions

Mr. Mosley complains that the trial court erred in allowing the state to introduce records of his prior narcotics convictions during its cross-examination of defense witness, Ms. Morgan. The state responds that defense counsel placed the defendant’s good character at issue upon questioning Ms. Morgan’s knowledge of whether or not the defendant sells drugs. Therefore, according to the state, defense counsel opened the door for the state to cross-examine the witness as to the defendant’s bad character. In his reply brief, the defendant contends that the state is incorrect because Ms. Morgan’s testimony does not qualify as general reputation testimony. Mr. Mosley asserts that the state never questioned the witness concerning the general reputation of the defendant in the community. Rather, defense counsel only questioned the witness concerning drug sales on the part of Mr. Mosley. Therefore, his character was never an issue.

Under direct examination by defense counsel, Ms. Morgan testified she has known defendant for one and one-half years, and that she has never known Mr. Mosley to sell narcotics. Ms. Morgan testified that, to her knowledge, Mr. Mosley only smoked marijuana; he did not sell marijuana or any other drug.

Before beginning his cross-examination of Ms. Morgan, the prosecutor requested a bench conference, during which he told the judge he believed defense counsel had opened the door to questions regarding Mr. Mosley’s prior drug |1sconvictions. Defense counsel responded that Ms. Morgan had only known Mr. Mosley for a year, and that the state was only entitled to question the witness about events that had occurred during that period. The judge concluded that defense counsel opened the door and he allowed the evidence of the prior drug convictions, over defense counsel’s objection.

The prosecutor asked Ms. Morgan whether she would be surprised to learn that Mr. Mosley had pleaded guilty on February 5, 1996 and June 17, 1997 to the crimes of possession with intent to distribute cocaine and distribution of cocaine, respectively. Each time she responded that she did not know him then. The trial judge overruled defense counsel’s objections to the questions and his objection to the state’s introduction into evidence of certified copies of Mr. Mosley’s two prior convictions.

A witness may be cross-examined on any matter relevant to any issue in the case. La.C.E. art. 611. Article 404 of the Louisiana Code of Evidence generally disallows the admission of evidence of a person’s character or a trait of his character for the purpose of proving he acted in conformity therewith on a particular occasion. However, as a limited exception to the general rule, Article 404(A)(1) allows admission of evidence of a pertinent trait of a defendant’s character — such as a moral quality — offered by an accused, or by the prosecution to rebut the character evidence. Under La.C.E. art. 405(A), a character witness may be cross-examined regarding relevant specific instances of conduct.

In State v. Hurst, 01-1817 (La.App. 4 Cir. 9/25/02), 828 So.2d 1165, writ denied, 03-0709 (La.3/19/04), 869 So.2d 840, the defendant was convicted of second degree murder. The defendant’s mother was called by the defense as a character witness at trial. The defense counsel questioned the mother as to whether she had ever known her son to be violent or to carry a gun. She responded that the defendant wasjj^not violent, and that she had not seen a gun. On cross-examination, the prosecutor asked her about the defendant’s prior arrests for armed robbery, possession of cocaine and possession of marijuana, and his conviction for theft of goods valued at under $100.00. Hurst, 01-1817 at 7-8, 828 So.2d at 1170.

On appeal, the defendant argued the trial court erred in overruling his objections to the state’s questions regarding his prior criminal history. Citing La.C.E. art. 405, the Fourth Circuit held the questions were proper rebuttal to the character testimony elicited from the defendant’s mother. Similarly, by questioning Ms. Morgan regarding whether she knew Mr. Mosley to be a drug dealer, defense counsel in the instant case opened the door to rebuttal questioning by the state. Therefore, the questions were proper.

Based on the foregoing, this assignment of error lacks merit.

Error Patent

The record was reviewed for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Arceneaux, 07-692, p. 13 (La.App. 5 Cir. 3/25/08), 983 So.2d 148, 155, writ denied, 08-0892 (La.11/10/08), 996 So.2d 1067. This review indicates there are no errors patent that require corrective action.

Decree

For the preceding reasons, the conviction is affirmed.

AFFIRMED.

      . Although the minute entry/commitment indicates that Mr. Mosley was unrepresented by counsel at the time he was sentenced to serve 25 years, the transcript shows otherwise. According to the transcript, which prevails, Mr. Mosley was represented by attorney Harry Boyer. See: State v. Lynch, 441 So.2d 732, 734 (La.1983) (Since there is a discrepancy between the minutes and the transcript, the transcript must prevail.).

      . Under Rule 2-1.14 of the Uniform Rules-Courts of Appeal, any record lodged in this Court may be used, without necessity of duplication, in any other case on appeal or on writ. State v. Wallis, 03-1415, p. 2, n. 3 (La.App. 5 Cir. 3/30/04), 871 So.2d 552, 553, n. 3 citing State v. Bradley, 02-1130 (La.App. 5 Cir.3/11/03), 844 So.2d 115, 118.

      . Id.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Linda THOMAS, Plaintiff-Appellee, v. HOLLYWOOD CASINO, Defendant-Appellant.
    No. 44,271-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Law Offices of Ronald F. Lattier, LLC, by Ronald F. Lattier, Curtis R. Joseph, Jr., Shreveport, for Appellant.
    Fischer & Associates, by Mark K. Man-no, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

hThe employer, Hollywood Casino (now known as Eldorado), appeals judgment finding that Linda Thomas sustained the occupational disease of carpal tunnel syndrome (“CTS”) in both hands, denying its defense of fraud and exception of prescription, and assessing penalties of $8,000 and attorney fees of $15,000. Ms. Thomas answers the appeal, seeking additional attorney fees for handling the appeal. We affirm the judgment and award an additional attorney fee.

Factual Background

Ms. Thomas was employed as a chef for Hollywood at an average weekly wage of $336.40. Through Hollywood, she bought a short-term disability policy from American Fidelity Assurance Company which would pay certain benefits if she sustained an accident that was not work-related.

Ms. Thomas began work in January 2001 and described her job as preparing food for the buffet, which required “constant work, constantly doing things with my hands.” In April 2002, she began having pain and swelling in both hands (more pronounced in the right), bad enough to wake her up at night. She went to a Dr. Brouillette in February 2003, but did not tell him she thought the condition was work-related. He prescribed Vioxx, which she said did not help much. On March 23, she went to the Willis-Knighton Bossier emergency room and again told nobody that it might be work-related. That same day, she applied for two weeks’ FMLA leave, saying only that she needed some time off.

She went to an orthopedic surgeon, Dr. Marion Milstead, on April 3, 2003, reporting symptoms of a year’s duration. He diagnosed multiple ^trigger fingers and CTS, told her to stay off work for a week, and placed her on conservative treatment. In an attending physician’s statement of April 7, he checked off that the disability did not arise out of or in the course of employment. He signed a back-to-work slip on April 17, with restrictions against repetitive work and holding vibrating objects.

Ms. Thomas continued working through the summer, but EMG results in July showed advanced CTS with denervation (loss of nerve function) in both hands. On this information, Dr. Milstead recommended surgery to decompress the nerves, the right hand first. Ms. Thomas applied for another two weeks’ FMLA leave beginning August 19, which was in fact her final day of work at Hollywood. Hollywood fired her on September 25 for failing to return to work after exhausting her FMLA leave.

Ms. Thomas also applied for and received short-term disability benefits under the American Fidelity policy, stating only, “My right hand has just been giving me problems.” She made no claim for workers’ compensation benefits at this time, and Hollywood paid none.

Dr. Milstead performed surgery on her right hand on September 11, 2003. He felt it was reasonably successful, but her recovery was slow and incomplete, and her left hand also needed the operation.

Ms. Thomas filed the instant disputed claim in November 2003, alleging an injury to her right wrist. She demanded weekly benefits, medical treatment, the choice of Dr. Milstead as her treating orthopedist, and penalties and attorney fees. Hollywood conceded that it had paid no benefits, as it had never heard that her injury was work-related. Initially, |sHollywood denied that it was in fact work-related, but rather an intentional, self-inflicted injury. The matter lay dormant for two years while Hollywood was in bankruptcy; in May 2007, it added a defense of fraud in that Ms. Thomas had told American Fidelity that the condition was not work-related.

Meanwhile, Ms. Thomas moved to Arkansas and had the surgery on her left hand in September 2005, charging the procedure to Medicaid and again not telling her doctor that it was work-related. She testified that the operations helped, but she still had pain and could not grip things; for this reason, she could not work. She admitted, however, working part-time as a “lunch substitute” at a school in North Little Rock for the 2006-'07 school year, making about $70 a week, her only income since leaving Hollywood.

At a deposition in May 2007, Dr. Mil-stead stated emphatically that Ms. Thomas’s CTS was work-related, resulting from repetitive work in the kitchen. He explained that the attending physician’s report which he signed stating the opposite, in April 2003, had actually been filled in by a nurse and was in error. He concluded that her work at Hollywood either caused or aggravated her CTS.

Action of the WCJ

One day before trial in September 2007, Hollywood filed a pretrial brief asserting that Ms. Thomas’s claim as to her left hand had prescribed because she never filed a disputed claim formally alleging this injury or amended her existing claim to incorporate it. Counsel argued the issue orally at the beginning of trial; the WCJ took it under advisement.

|4Ms. Thomas testified as outlined above. She also introduced numerous medical records, including Dr. Milstead’s deposition. On direct examination, Dr. Milstead stated that in response to a letter in October 2004, he told claimant’s counsel that the condition was work-related.

Hollywood called no live witnesses but introduced various medical and personnel records, together with the deposition of a Ms. Elledge, an adjuster for American Fidelity. She stated that the company never received any information from Ms. Thomas or from Dr. Milstead that the claimant’s condition was work-related; if it had, the company would not have paid the benefits. The WCJ took the case under advisement for nearly six months.

The WCJ delivered oral reasons for judgment in April 2008. First, she ruled that Hollywood did not properly plead its exception of prescription as to the left wrist. She cited Hearing Officer Rule 5801, under which “written motions” are allowed in compensation proceedings; she also noted that Hollywood’s first pretrial statement listed “bilateral” CTS, showing that it had actual notice of the claim.

The WCJ next found that Ms. Thomas’s CTS was work-related, based on Dr. Mil-stead’s expert opinion and the “opposite of the presumption” of La. R.S. 23:1031.1 D. She awarded temporary total and supplemental earnings benefits through November 17, 2005. She also found that Ms. Thomas did not willfully injure herself and did not commit fraud.

| BFinally, the WCJ found that Hollywood made no effort to verify or contradict it when Dr. Milstead “changed his mind.” It failed to get a second opinion and raised a defense of fraud belatedly. She therefore assessed four penalties of $2,000 each (for not instituting indemnity payments, for not providing the right wrist surgery, for not providing the left wrist surgery, and for not allowing Ms. Thomas’s choice of physician), an attorney fee of $15,000, and costs of $3,133.

Hollywood has appealed, raising four assignments of error.

Discussion: Defense of Fraud

By its first assignment of error, Hollywood urges the WCJ erred in failing to find fraud under La. R.S. 23:1208. Hollywood argues that this statute has evolved to the point that any false statements or representations will result in forfeiture of benefits. Smith v. Riverwood Int’l, 35, 727 (La.App. 2 Cir. 2/27/02), 810 So.2d 1175, writ denied, 2002-0958 (La.5/31/02), 817 So.2d 101. Hollywood contends that Ms. Thomas repeatedly told healthcare providers and her private insurer, American Fidelity, that the condition was not work-related, and these falsehoods should subject her to forfeiture.

Ms. Thomas concedes that she made numerous statements to healthcare professionals based on her best knowledge at the time; she simply did not know until October 2004 that her condition was work-related. She also asserts that Dr. Mil-stead’s office made an honest mistake when it stated in the April 2003 report that her condition was not work-related.

| (¡Misrepresentation under the Workers’ Compensation Act is regulated by La. R.S. 23:1208 A:

It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

The penalty for a violation is the forfeiture of all benefits. La. R.S. 23:1208 E. The only requirements for a forfeiture of benefits under this statute are (1) a false statement or representation, (2) willfully made, and (3) made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2708 (La.9/5/95), 660 So.2d 7; Freeman v. Chase, 42,716 (La.App. 2 Cir. 12/5/07), 974 So.2d 25. Forfeiture is a harsh remedy and must be strictly construed. Wise v. J.E. Merit Constructors Inc., 97-0684 (La.1/21/98), 707 So.2d 1214; Freeman v. Chase, supra. An inadvertent and inconsequential false statement will not result in forfeiture of benefits. Id. Section 1208 does not penalize any false statement, but only those willfully made for the purpose of obtaining benefits. Resweber v. Haroil Const. Co., supra. The WCJ’s finding or denial of forfeiture will not.be disturbed on appeal absent manifest error. Freeman v. Chase, supra.

Ms. Thomas candidly admitted telling healthcare providers and her private insurer that her condition was not work-related. She maintained, however, that she simply did not know otherwise until many months later. The WCJ was in the superior position to assess her credibility and accepted her explanation as sincere. Arising from ignorance rather than design, Ms. Thomas’s statements to medical personnel do not satisfy the criteria of 17willfulness and purpose to obtain or defeat benefits under R.S. 23:1208 A. As in Freeman v. Chase, supra, the claimant’s erroneous statements do not warrant forfeiture of benefits. Moreover, there is no showing that her statements to American Fidelity had any bearing whatsoever on her potential comp claim. We perceive no manifest error, and this assignment lacks merit.

Finding of Occupational Disease

By its second assignment of error, Hollywood urges the WCJ erred in finding that Ms. Thomas met the burden of proving her alleged occupational disease, bilateral CTS. Under La. R.S. 23:1031.1 B, an occupational disease must be “due to. causes and conditions characteristic of and peculiar to the particular trade, occupation, process or employment.” Hollywood cites the restrictive reading of this statute in Fite v. Louisiana Title Co., 36,393 (La.App. 2 Cir. 10/24/03), 859 So.2d 259, writ denied, 2003-3230 (La.2/20/04), 866 So.2d 829, in which this court held that bilateral CTS was not a characteristic of and peculiar to the job of a title abstractor. Hollywood argues that the record lacks hard evidence linking chefs to bilateral CTS, and lacks the required level of causation. It also contends that there could not be causation because Ms. Thomas told so many' people, for so many months, that it was not work-related.

Ms. Thomas responds that Dr. Milstead stated eight times in deposition that her bilateral CTS was work-related, and said so in writing as early as October 28, 2004; and that Hollywood offered no contrary evidence. Further, CTS is expressly classified as an occupational disease in |sR.S. 23:1031.1 B and is compensable even if the claimant does not give a complete job description to her treating physician. Brown v. Guide Corp., 42,141 (La.App. 2 Cir. 5/9/07), 956 So.2d 808. She argues that Fite v. Louisiana Title is inapposite as in that case neither of the claimant’s two treating physicians testified. She concludes that the WCJ committed no manifest error.

An occupational disease, for purposes of the Workers’ Compensation Act, is defined in La. R.S. 23:1031.1 B:

An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related and perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

The causal link between the claimant’s illness and the work-related duties must be established by a reasonable probability. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161; Jackson v. Red River Parish School Bd., 42,080 (La.App. 2 Cir. 4/4/07), 954 So.2d 818, 219 Ed. L. Rep. 819. The statute explicitly includes CTS as an occupational disease. Kelly v. CNA Ins. Co., 98-0454 (La.3/12/99), 729 So.2d 1033. The activities of a chef may lead to CTS. Ball v. Wendy’s Int’l, 36,923 (La.App. 2 Cir. 3/5/03), 839 So.2d 1208, writ denied, 2003-0978 (La.5/30/03), 845 So.2d 1056.

Dr. Milstead was unusually emphatic in his opinion that Ms. Thomas’s CTS resulted from the repetitive work of a chef in a buffet line. [ ¡/This distinguishes the case from Fite, supra, in which the claimant failed to offer convincing medical evidence of causation. Moreover, Hollywood offered absolutely no evidence to dispute Dr. Milstead’s opinion. Its technical contention that the claimant did not describe “causes and conditions characteristic of and peculiar to” her trade will not countervail the strong medical evidence.

The WCJ committed no manifest error in finding an occupational disease arising from Ms. Thomas’s employment with Hollywood. This assignment of error lacks merit.

Exception of Prescription

By its third assignment of error, Hollywood urges the WCJ erred in failing to recognize the exception of prescription as to Ms. Thomas’s left hand. Hollywood shows that the Form 1008 listed injury to the right wrist only, and was never amended to add the left wrist; she first mentioned it in a pretrial statement in August 2007. Under R.S. 23:1031.1 E, the claimant must file “a claim as provided in this Chapter” within one year of the date the disease manifested itself, the date it disabled her, and the date she reasonably believed it was occupationally related. Hollywood submits that she missed the deadline, thus defeating the claim. It also shows that under La. C.C.P. art. 928 B, the peremptory exception of prescription can be raised at any time, and the WCJ should have heard it.

Ms. Thomas responds that despite Art. 928 B, the WCJ was entitled to disregard the plea of prescription under Hearing Rule 5801. She also |inasserts that Hollywood waived the issue by failing to object to evidence of left-hand CTS at trial.

The time limitations for filing occupational disease claims are contained in La. R.S. 23:1031.1 E:

All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:
(1) The disease manifested itself.
(2) The employee is disabled from working as a result of the disease.
(3)The employee knows or has reasonable grounds to believe that the disease is occupationally related.

The prescriptive periods under the Workers’ Compensation Act are liberally construed to maintain rather than bar a claimant’s action. Millican v. General Motors Corp., 34,207 (La.App. 2 Cir. 11/1/00), 771 So.2d 234, and citations therein.

Hollywood’s position is technically correct. Ms. Thomas never filed “a claim as provided in this Chapter” or amended her existing claim and hence did not comply with R.S. 23:1031.1 E. The WCJ erred in relying on Hollywood’s actual notice of the left-hand claim, as shown by its first pretrial statement. A prior version of R.S. 23:1031.1 E required the employee to file a claim with her employer within six months of the applicable events; this was broadly construed to encompass any form of notice. LaCour v. Hilti Corp., 98-2691 (La.5/18/99), 733 So.2d 1193. Perhaps in response to LaCour, the legislature amended the statute in 2001, extending the filing period to one year but requiring the filing of “a claim as ^provided in this Chapter,” i.e., a Form 1008. 2001 La. Acts No. 1189, § 1; Lee v. Schumpert, 36,733 (La.App. 2 Cir. 1/29/03), 836 So.2d 1214, fn. 2. Hollywood’s constructive notice, therefore, would seem to have no bearing on whether Ms. Thomas filed a timely claim.

Likewise, Ms. Thomas is technically correct that Hollywood never formally filed an exception of prescription. The peremptory exception of prescription may be raised only by the urging party and it must be specially pleaded through a formal, written exception. La. C.C.P. art. 927 B. Arguing the issue either orally or in a memorandum to the court does not suffice. Mesh v. Christus St. Patrick Hosp., 2005-674 (La.App. 3 Cir. 12/30/05), 918 So.2d 559; Box v. City of Baton Rouge, 2002-0198 (La.App. 1 Cir. 1/15/03), 846 So.2d 13, and citations therein. Hearing Officer Rule 5801 confirms that the pleadings allowed in workers’ compensation claims “shall be in writing and shall consist of,” inter alia, written motions.

With the case in this procedural posture, we perceive no error in the WCJ’s decision to disregard the plea of prescription on grounds that Hollywood never filed a written exception to that effect. Although such an exception very well may have prevailed, we are guided by the liberal construction of prescriptive periods in the Workers’ Compensation Act, Millican v. General Motors Corp., supra, and the ideal of fair notice to the claimant and the court. This assignment lacks merit.

Penalties and attorney fee

By its fourth assignment of error, Hollywood urges the WCJ erred in assessing penalties 112and attorney fees. Under La. R.S. 23:1201 F, penalties and fees cannot be assessed if the employer “reasonably controverted” the claim. This penal provision is strictly construed. Trahan v. Coca Cola Bottling Co. United, 2004-0100 (La.3/26/05), 894 So.2d 1096. Hollywood contends that Ms. Thomas went 1 ]é years telling doctors and insurance companies that her condition was not work-related, and the employer should not be penalized for taking her at her word.

Ms. Thomas responds that the award was proper, as Hollywood knew as early as October 28, 2004, that Dr. Milstead now considered the condition to be work-related, but took no action (such as seeking a second medical opinion) until it filed a defense of fraud in May 2007, a mere four months before trial.

Failure to provide payment of benefits will result in a penalty and attor-

ney fee “unless the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201 F(2); McCarroll v. Airport Shuttle Inc., 2000-1123 (La.11/28/00), 773 So.2d 694. The phrase “reasonably controvert” means that the defendant must have “some valid reason or evidence on which to base his denial of benefits.” Brown v. Tex-LA Cartage Inc., 98-1063 (La.12/1/98), 721 So.2d 885; Williams v. Mark Johnson Plumbing, 38,954 (La.App. 2 Cir. 9/22/04), 882 So.2d 1193. Awards of penalties and attorney fees in compensation cases are essentially penal, and are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Trahan v. Coca Cola Bottling Co., supra; Langley v. Petro Star Corp. of La., 2001-0198 (La.6/29/01), 792 So.2d |13 721. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the claimant’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. J.E. Merit Constructors Inc. v. Hickman, 2000-0943 (La.1/17/01), 776 So.2d 435; James v. Express Marketing Inc., 42,740 (La.App. 2 Cir. 12/5/07), 973 So.2d 125, writ denied, 2008-0062 (La.3/7/08), 977 So.2d 910. However, the employer disputing causation must demonstrate that it made a reasonable effort to ascertain the cause of the claimant’s condition before it denies benefits. Smith v. Pilgrim’s Pride Corp., 44,-080 (La.App. 2 Cir. 2/25/09), 4 So.3d 983.

Dr. Milstead’s office initially indicated that Ms. Thomas’s injury was not work-related, but he corrected this in his deposition in May 2007. Until that point, Hollywood was justified in withholding benefits, given Ms. Thomas’s own equivocal statements to healthcare personnel and American Fidelity. However, Dr. Milstead was uncommonly emphatic in his view that her CTS arose from repetitive work in the kitchen, and that her employment either caused or aggravated the condition. The record does not show that Hollywood made any effort to adduce a valid reason or evidence to rebut his medical opinion. This is the type of “indifference and undesirable conduct” that the statute seeks to deter. Hollywood’s failure to present any evidence that would create a closely disputed factual issue warranted the imposition of the penalties and attorney fee. This assignment lacks merit.

| uAnsiver to Appeal

By answer to appeal, Ms. Thomas seeks additional attorney fees for the time spent in defending the appeal. Counsel asserts that he spent some 12 hours preparing the appellate brief, for which he requests an additional $2,500 fee.

A workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending the employer’s unsuccessful appeal. Frith v. Riverwood Inc., 2004-1086 (La.1/19/05), 892 So.2d 7; Freeman v. Chase, supra. Bearing in mind the moderate complexity of this case, the length of the brief and the fact that the WCJ has already awarded counsel a high-end fee of $15,000, we find an additional attorney fee of $1,000 is warranted.

Conclusion

For the reasons expressed, the judgment of the WCJ is affirmed in its entirety. Judgment is further rendered in favor of Linda R. Thomas and against Hollywood Casino for an additional attorney fee of $1,000. Appellate costs are to be paid by the appellant.

AFFIRMED; ADDITIONAL ATTORNEY FEE AWARDED.

      . This statute creates a presumption that CTS is not work-related if the claimant has worked for the employer for less than 12 months. O’Regan v. Preferred Enter. Inc., 98-1602 (La.3/17/00), 758 So.2d 124. It does not, however, create a presumption of causation in favor of a claimant who, like Ms. Thomas, was employed for a year or more.

      . He also stated it was work-related in a form response to claimant’s counsel in October 2004, but the record is not clear that this form was relayed to Hollywood's counsel.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. James Anthony COFFMAN, Appellant.
    Nos. 44,183-KA, 44,184-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Edward K. Bauman, Lake Charles, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, William M. Altimus, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   WILLIAMS, J.

| Nhe defendant, James Coffman, was charged with second degree murder, a violation of LSA-R.S. 14:30.1, and felony theft, a violation of LSA-R.S. 14:67(B). Pursuant to a plea agreement, the defendant pled guilty to the lesser included offense of attempted second degree murder (LSA-R.S. 14:30.1 and 14:27) and felony theft. In exchange, the state agreed not to file an habitual offender bill of information. The defendant was sentenced to serve 50 years’ imprisonment at hard labor for attempted second degree murder and 10 years for felony theft, with the sentences to run concurrently. The district court denied defendant’s motion to reconsider sentence and the defendant appeals. For the following reasons, we affirm.

FACTS

On August 9, 2006, at a residence in Benton, Louisiana, the defendant shot the victim, Tiffany Leanne Johnson, in the left side of the head, causing her death. After shooting the victim, defendant stole a truck parked nearby and drove to Dallas, Texas, where the truck was later found. Two days after the murder, the defendant was arrested in Wichita, Kansas. Defendant was charged with second degree murder and felony theft in an amount of $500 or more. As a result of the plea bargain, the defendant pled guilty to one count of the lesser included offense of attempted second degree murder and one count of felony theft.

At the sentencing hearing, defense counsel submitted a letter from the defendant’s grandmother for the court’s consideration and a victim impact statement was made by Tiffany Johnson’s father. The district court imposed the maximum sentences of 50 years at hard labor without the|2benefit of parole, probation or suspension of sentence on the attempted second degree murder conviction and 10 years at hard labor on the felony theft conviction, with the sentences to be served concurrently. This appeal followed.

DISCUSSION

The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that the court failed to articulate sufficient reasons for imposing the maximum 50-year sentence.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259. There is no ^requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

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 infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

The penalty for conviction of attempted second degree murder is imprisonment at hard labor for not less than 10 nor more than 50 years without benefit of parole, probation or suspension of sentence. The penalty for felony theft of $500 or more is imprisonment, with or without hard labor, for not more than 10 years or a fine of up to $3,000, or both.

Prior to imposing sentence, the district court reviewed a presentence investigation (PSI) report and recited the defendant’s criminal history, which included a prior felony conviction for possession of MDMA (ecstasy), a Texas conviction for possession of marijuana and arrests for robbery, theft and possession of a stolen firearm. The court noted that defendant was a second felony offender who was on probation when he shot and killed the victim. Referring to the guidelines of Article 894.1, the court found that the defendant’s criminal conduct while on probation raised the likelihood he would commit another offense in the future, that any lesser ^sentence would deprecate the seriousness of the crime committed and that the defendant was in need of a custodial environment provided by an institution.

Defendant argues that the district court neither gave reasons to justify the maximum sentences imposed nor considered allegedly mitigating factors, including the defendant’s youth, employment history, family ties and mental health issues. However, we note that the court specifically found that the nature and permanence of the injury to the victim and defendant’s use of a dangerous weapon in committing the offense were aggravating circumstances under Article 894.1. In addition, the PSI report, which is contained in the appellate record contrary to defendant’s assertion, informed the court of defendant’s age, educational background and family situation, including the fact that defendant was primarily raised by his grandmother after his father’s death when defendant was 5 years old. The defendant does not explain how these factors or the sanity commission report might have persuaded the court to impose a less severe sentence.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct, or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,-239 (La.App.2d Cir.4/30/08), 981 So.2d 792. Here, the defendant was allowed to plead to the lesser included offense of attempted second degree murder, although he actually killed the victim. Thus, the defendant avoided exposure to a life sentence and the 1 fimaximum sentences were within the court’s discretion.

The record demonstrates that the district court more than adequately complied with Article 894.1 in providing reasons for the imposition of these maximum sentences, which are neither grossly disproportionate to the seriousness of the offenses committed nor shocking to the sense of justice. There is no showing that the district court abused its discretion in sentencing this defendant. Thus, we cannot say the sentences imposed are constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

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

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Travis Deon HOWARD, Appellant.
    No. 44,180-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.

      Travis Deon Howard, Pro Se.
    John Harvey Craft, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Robert Randall Smith, Robert Lane Pittard, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| TThis criminal appeal arises from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana. Defendant, Travis Deon Howard, pled guilty to Second Degree Battery, a violation of La. R.S. 14:34.1, and was sentenced to four years at hard labor. Howard appeals his sentence, which, for the following reasons, we affirm.

FACTS

On May 31, 2007, as Marvin Adams entered the grocery store with his 13-year-old daughter, defendant and two other men made rude comments and taunted her. Adams confronted the men and told them to leave his daughter alone. As Adams left the store, and while placing groceries in his car, he was attacked, knocked down and kicked in the head, rendering him unconscious. The three men, including 20-year-old Howard, were charged with second degree battery. Howard pled guilty, and the trial court ordered a presentenee investigation. On July 29, 2008, Howard was sentenced to four years at hard labor for the instant offense to run consecutive with any other sentence. This appeal ensued.

LAW AND DISCUSSION

The sole issue on appeal is whether the four-year sentence was excessive for this offender and offense given that the maximum for a Second Degree Battery conviction is five years at hard labor. Specifically, Howard argues that the other two men involved in the incident pled to a reduced charge of simple battery and received probation. In addition, Howard asserts that the trial court failed to articulate its reasons when it imposed the sentence.

|j>The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. 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 reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where 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. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.01/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.03/11/05), 896 So.2d 57 and 2004-2380 (La.06/03/05), 903 So.2d 452.

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. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 |3 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

There is no proportionality guarantee in noncapital cases unless the reviewing court finds the sentence is grossly disproportionate to the circumstances of the offense. See State v. Callahan, 29,351 (La.App.2d Cir.02/26/97), 690 So.2d 864, fn. 2, writ denied, 1997-0705 (La.09/26/97), 701 So.2d 979, citing Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).

The Louisiana jurisprudence follows the requirement of comparing the same offenses, not merely the same charges. State v. Foley, 456 So.2d 979 (La.1984); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641. There is no requirement that codefendants be treated equally by the sentencing judge. State v. Rogers, 405 So.2d 829 (La.1981); State v. Taylor, 485 So.2d 117 (La.App. 2d Cir.1986). The disparity of sentences between codefendants is only a factor to be considered along with all other appropriate considerations in evaluating a contention that a sentence is excessive. State v. Quimby, 419 So.2d 951 (La.1982); State v. Jackson, 30,473 (La.App.2d Cir.05/13/98), 714 So.2d 87, unit denied, 1998-1778 (La.11/06/98), 727 So.2d 444.

Here, Howard argues that the trial court failed to articulate its reasons as required by La. C. Cr. P. art. 894.1(C). We disagree. The trial court noted the unwarranted and severe nature of the attack by the three defendants, including Howard, on a single man. The trial court found that a lesser sentence would deprecate the seriousness of Howard’s actions. The record indicates that the trial court studied closely Howard’s presentence | investigation report. The trial court noted Howard’s previous unsatisfactory completion of a probationary term for theft. After a thorough review, we find the trial court’s reasoning to be satisfactory; nevertheless, the record clearly shows an adequate factual basis for the sentence imposed, and remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, supra. Further, while not on appeal, we note that during the proceeding now on appeal, Howard pled guilty and was sentenced for Misdemeanor Carnal' Knowledge of Juvenile. Considering the codefendants did not share the same history as Howard, we find the disparity argument is without merit.

The victim was merely protecting his little girl from the harassment and unwanted attention by Howard and the other men. Howard’s participation in the battery which resulted in serious bodily injury to Adams is inexcusable. Considering the nature of the assault on the victim, Howard’s history of criminal conduct, and his previous unsatisfactory performance while on probation, the imposition of a four-year hard labor sentence for this outrageous and cowardly act in no manner shocks or offends our sense of justice. While at the higher end, the record does not persuade us that an unconstitutionally excessive sentence has been imposed.

CONCLUSION

For the foregoing reasons, Travis Deon Howard’s conviction and sentence are affirmed.

AFFIRMED.


author: PAUL A. BONIN, Judge.

text:
    SYSTEMS SERVICES TECHNOLOGIES, INC. v. Darren J. BOYKINS.
    No. 2009-CA-0128.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 2009.

      Warren W. Wingerter, Jr., Edward F. Bukaty III, APLC, Metairie, LA, for Systems & Services Technologies, Inc.
    Darren J. Boykins, New Orleans, LA, in Proper Person, Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|,Mr. Darren Boykins appeals the judgment of the district court dismissing, without prejudice, the lawsuit filed against him by Systems Services Technologies, Inc. (“SSTI”). For the reasons which follow, we affirm.

FACTS AND PROCEEDINGS

On June 10, 2002, Mr. Boykins purchased a new Mitsubishi Diamante car on credit. Mitsubishi Motor Credit of America, Inc. (“Mitsubishi Motor Credit”) financed the purchase under its account number ending in -3276. Mr. Boykins fell behind on his monthly installment payments. Mitsubishi Motor Credit engaged SSTI as its servicing agent, and SSTI instituted this lawsuit against Mr. Boykins on May 26, 2003. The lawsuit began as a petition for executory process. The proceedings continued as ordinary proceedings to obtain a deficiency judgment. La. C.C.P. arts. 2644 and 2771. During the course of the lawsuit, SSTI obtained a judgment that confirmed a preliminary default against Mr. Boykins in 2004 which the trial court later set aside in 2008.

| gAbout the time the judgment was set aside, Mr. Boykins learned that in late 2007, Mitsubishi Motor Credit had transferred ownership of his account to Cavalry SPV I, LLC (“Cavalry”). Mr. Boykins entered into negotiations with Cavalry and reached an agreement with Cavalry to begin making payments on his account with it. Mr. Boykins then brought the matter to the attention of counsel for SSTI and the trial judge.

Counsel for SSTI confirmed with his client that it was no longer servicing the account on behalf of Mitsubishi Motor Credit. On the instructions of his client, counsel for SSTI submitted a proposed judgment of dismissal without prejudice to the trial court. Mr. Boykins objected and contended that the dismissal should only be with prejudice. On November 21, 2008, the trial judge conducted a hearing on the plaintiffs motion to dismiss the lawsuit without prejudice, and based upon the request of SSTI to dismiss their suit without prejudice, signed a judgment to that effect.

Mr. Boykins timely filed his motion for a devolutive appeal from that judgment.

LAW GOVERNING ISSUE ON APPEAL

La. C.C.P. art. 1671 applies to the judgment which was rendered in the trial court; it states:

A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the | 8court may refuse to grant the judgment of dismissal except with prejudice. (emphasis added)

Since Mr. Boykins had made an appearance in these proceedings prior to the filing of the motion to dismiss, the only question for the trial court was whether to grant or deny the dismissal without prejudice as requested by the plaintiff pursuant to La. C.C.P. art. 1671. The trial court could not, as Mr. Boykins erroneously argues, dismiss the suit with prejudice in response to an article 1671 motion. A court may not convert a motion for voluntarily dismissal without prejudice into a dismissal with prejudice. Spencer v. Children’s Hosp., 432 So.2d 823, 824-25 (La.1983). However, the trial court may refuse to grant the dismissal without prejudice, in which case the plaintiff has the option of accepting the dismissal with prejudice or proceeding with the case. Id. See also Northshore Regional Med. Ctr. v. Parish of St. Tammany, 96-0717, pp. 5-6 (La.App. 1 Cir. 12/20/96), 685 So.2d 614, 616-17.

The trial judge exercised her discretion to grant the voluntary dismissal without prejudice rather than to refuse to dismiss the case. “The trial court is given considerable discretion in granting a motion to dismiss after a defendant’s appearance.” New Orleans Redevelopment Authority v. Stroughter, 03-1085, p. 6 (La.App. 4 Cir. 12/17/03), 861 So.2d 940, 944, citing Parish of Jefferson v. Harimaw, Inc., 297 So.2d 694, 695 (La.App. 4 Cir. 1974). In Harimaw, our court noted that “[t]he very object of a dismissal without prejudice is to return the parties |4 to a Status quo ante....” Id. at 695. Thus, the trial court’s judgment relieved Mr. Boy-kins of any further défense of this lawsuit.

Although Mr. Boykins is not entitled to a dismissal with prejudice, which is the relief he sought on appeal, we have considered whether the trial judge abused her discretion in not refusing to grant the voluntary dismissal or in not conditioning her refusal upon the concession by SSTI to a dismissal with prejudice. Mr. Boykins seems to argue that he was no longer liable for the underlying debt to Mitsubishi Motor Credit because of his agreement with Cavalry. A dismissal with prejudice would, of course, bar a subsequent suit on the same debt. La. R.S. 13:4281, La. C.C.P. art. 927(A)(3). This is precisely the result which the trial court sought to avoid. “A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.” La. C.C.P. art. 1673.

From the record, all that can be established is that Mitsubishi Motor Credit informed SSTI that it was no longer to service the debt, that Mitsubishi Motor Credit transferred its interest in the debt to Cavalry, and that Cavalry entered into a payment plan with Mr. Boykins. Nothing in the record establishes that the debt, originally owed to Mitsubishi Motor Credit, has been extinguished or the debt no-vated. “Novation is the extinguishment of an existing obligation by the substitution of a new one.” La. Civ.Code art. 1879. “The intent to extinguish the | ¡¡original obligation must be clear and unequivocal. Novation may not be presumed.” La. Civ. Code art. 1880. La. Civ.Code. art. 1881 provides:

Novation takes place, when by agreement of the parties, a new performance is substituted for that previously owed, or a new cause is substituted for that of the original obligation. If any substantial part of the original performance is still owed, there is no novation.
Novation takes place also when the parties expressly declare their intention to novate an obligation.
Mere modification of an obligation, made without intention to extinguish it, does not effect a novation. The execution of a new writing, the issuance or renewal of a negotiable instrument, or the giving of new securities for the performance of an existing obligation are examples of such a modification.

There is no evidence in the record of a cancellation or substitution of the original promissory note. Cavalry has merely granted Mr. Boykins new terms of repayment; the underlying obligation has not been extinguished. Arnold v. Hancock, 06-632, p. 11 (La.App. 3 Cir. 2/7/07), 950 So.2d 911, 918. Since there was no novation in this case, Mr. Boykins was not entitled to a judgment with res judicata effects. Therefore, it would not have been appropriate for the trial judge to refuse to grant the voluntary dismissal unless SSTI acceded to a dismissal with prejudice.

|fiMr. Boykins argues that the trial court erred in accepting a late filed memorandum from counsel for SSTI. According to Mr. Boykins, the counsel for SSTI served him with a memorandum in support of the motion for voluntary dismissal without prejudice just minutes before the hearing, a violation of Rule 9.9, Rules for Louisiana District Courts and Juvenile Courts. Mr. Boykins objected to the late filing, but he did not request a continuance of the hearing under section 9.9(d) of the rule to prepare to meet the issues raised in the memorandum. The trial judge stated on the record before the parties that the matter before her was “such a simple issue that we can address it without having to adhere to those procedural rules” and proceeded to decide the matter. “An individual judge may, in the interest of justice and upon notice to all parties, permit deviations in a particular proceeding. Any such deviation shall be noted on the record in open court in the presence of all parties ...” Rule 1.4, Rules for Louisiana District Courts and Juvenile Courts. The trial judge did not abuse her discretion in deviating from the requirements of Rule 9.9, especially since Mr. Boykins did not suggest that he needed a continuance.

Therefore, we find that the trial judge did not abuse her considerable discretion in granting the motion of SSTI for a dismissal of its suit against Mr. Boykins without prejudice.

IyDECREE

For the foregoing reasons, we affirm the judgment of the trial court in dismissing this suit against Mr. Darren Boykins without prejudice.

AFFIRMED.

      . Pursuant to La. C.C.P. art. 2128, Mr. Boy-kins exercised his option to designate only a small portion of the record. We are unable to determine from the record whether the vehicle was sold at sheriff's auction.

      . The entity was identified as Cavalry Portfolio Services, LLC.

      . In Spencer, the trial court applied La. C.C.P. art. 1671 in the context of a motion for '‘mistrial” by a plaintiff in a civil matter. The rationale of Spencer is nonetheless applicable to this case.

      . The new repayment terms provided for a reduced principal and reduced interest rate so long as Mr. Boykins remained current on the terms, but “failure to satisfy the terms of this payment plan will result in the revocation of all discounts and reinstatement of the original terms and conditions of your account.” (Defendant's Exhibit 6).

      . Counsel for SSTI orally argued to the trial court that he had not received a copy of Mr. Boykins’ motion or memorandum objecting to any dismissal except with prejudice.

      . Mr. Boykins had prepared ably for the hearing and the plaintiff's memorandum did not raise any new or complex issue for him.