author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Richard A. SEATON, Jr., Appellant.
    No. 47,741-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Peggy J. Sullivan, Monroe, LA, for Appellant.
    Charles R. Scott, II, District Attorney, William J. Edwards, Hugo A. Holland, Jr., Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   WILLIAMS, J.

hThe defendant, Richard Seaton, Jr., was charged by bill of information with forcible rape, a violation of LSA-R.S. 14:42.1(A)(1), and abuse of office, a violation of LSA-R.S. 14:134.3. Following a bench trial, the defendant was found guilty as charged. Defendant’s motion for post-verdict judgment of acquittal was denied. The trial court sentenced the defendant to serve 15 years at hard labor for the forcible rape conviction, with the first three years to be served without benefit of parole, probation or suspension of sentence, and three years at hard labor for the abuse of office conviction, with the sentences to run concurrently. The district court denied the defendant’s motion to reconsider sentence. Defendant appeals his convictions and sentences. For the following reasons, we affirm.

FACTS

On December 27, 2010, K.W., an 18-year-old high school senior, attended the Independence Bowl held in Shreveport with her mother, Kimberly Barnes, her boyfriend, David Barnhill, and her grandparents. They were Florida residents who were staying at the Sam’s Town Hotel. The evidence contained in the record established the following events: K.W. probably consumed two 16-ounce cups of Jack Daniels and soda before the game and two beers during the game. After a disagreement with a person sitting behind them, K.W. and Barnhill left the stadium and began arguing with each other. Several officers saw the commotion and asked if K.W. was alright. A short time later, the officers arrested K.W.’s boyfriend after he refused to follow their instructions. K.W. pleaded with the police not to arrest her boyfriend, but the police stated that he would be taken to the ^Shreveport City Jail and gave K.W. his cell phone.

Corporal Ernest French, an employee of the Caddo Parish Sheriffs Office, was working that evening outside the stadium. He testified that K.W. was a short female with dark hair, a small frame and had a “strong odor of alcohol on her breath.” Corporal French testified that he saw defendant at the scene helping with the shuttle buses. French stated that the defendant was tall and wore a dark trench coat. Corporal French testified that after the arrest of KW.’s boyfriend, the defendant touched French’s shoulder and stated, “I can do something with that, she’s cute. I’ll take her on.” Corporal French did not ask who defendant was referring to, but K.W. was standing nearby.

Shreveport Police Sergeant Keith Grant was supervising shuttle routes at the bowl game. Sgt. Grant testified that he was aware the defendant was the city’s contact person with authority regarding the operation of the shuttle routes. Sgt. Grant spoke with K.W. after her boyfriend’s arrest. He described her as a young woman who appeared to be 18 years of age, with a petite build, an approximate height of five feet and weight of 115 pounds. Sgt. Grant stated that she was upset and wanted to go to the jail to get her boyfriend released. Sgt. Grant attempted to help K.W. by advising her to ride the shuttle bus back to Sam’s Town. He also explained the booking process to her, but testified that she did not understand the process and kept repeating his words out loud to herself. Sgt. Grant testified that he told defendant that K.W. needed a ride, and the defendant stated that he could get her back to Sam’s Town. Once K.W. was | oseated on the shuttle, Sgt. Grant was under the impression she was returning to the hotel and he walked back to his assigned area. However, a short time later Sgt. Grant saw defendant driving K.W. away in a golf cart and was surprised because he thought she was going back to her hotel.

Charles McDuff, an operator of one of the shuttle buses, testified that defendant coordinated and supervised the shuttle buses. McDuff testified that at some point during the evening he saw that K.W. was “hollering and screaming,” that he could smell alcohol on her and that he believed she had been drinking based on her actions. McDuff testified that he overheard K.W. refer to defendant as “Officer Rick” and defendant said he was not an officer, but was an administrative officer for the City. However, when McDuff interjected to tell K.W. that defendant was not an officer, defendant then responded, “Technically, I am.” McDuff stated that after K.W. was seated on the bus she again asked about going to the jail and defendant stepped into the bus and asked K.W. if she was going on the bus or with him. K.W. then stood, exited the bus and left with defendant.

The defendant drove K.W. in the golf cart to a city-owned vehicle that he was using for the evening. K.W. testified that defendant placed his hand on her leg while driving her to the city jail. Then, when they arrived at the jail and she attempted to get out of the car, defendant pulled her back inside the car and started kissing her neck. She also stated that she asked defendant to stop during these acts and that she felt uncomfortable.

Jonathan Long, an employee of Louisiana Bail Bonds, testified that he spoke with K.W. at the jail and informed her that his company did not [4post bonds for out-of-state residents. He testified that K.W. began to cry, and told him that the detective who brought her there had been “touching her inappropriately, rubbing on her, kissing on her” and she had told him to stop. Long testified that K.W. offered him money for a ride, but that he could see she was upset, she was crying and he could smell the alcohol on her breath, so he did not give her a ride because of her condition. Long testified that when he walked out to the parking lot, the defendant asked him if he had been able to help K.W. and Long told defendant that he was unable to help her.

Surveillance footage from the waiting room of the jail shows defendant entering the building (after being buzzed in), standing over K.W., and motioning for her to leave with him. Defendant is also seen taking the list of the local bail-bonding companies and walking toward the door.

K.W. testified that she was crying and upset, that she told defendant that she needed to use a phone and go to an ATM, and that defendant stated that they were going to his office to use the phone and an ATM nearby. She stated that defendant never told her that he was carrying a cell phone with him at the time. After arriving and parking in the garage of Government Plaza, defendant used his access card to enter the building and the mayor’s office suite, a secured area on the second floor.

K.W. testified that she knew she was in defendant’s office because of the plaque on his door and the name in front of his seat. According to K.W., defendant started rubbing her back again and feeling underneath the layers of her clothes. K.W. testified that she asked defendant to stop, but that he [.^grabbed her and pulled her onto his lap and began to feel her stomach. She testified that she attempted to move away, but that defendant held her down. During these acts, K.W. testified that she told him to stop.

The defendant then asked K.W. if she had ever seen a mayor’s office before. K.W. testified that she wanted to go to the mayor’s office because she was hoping that more people would be around and that there would be a video camera present to prevent defendant from touching her. He used a card to enter the mayor’s office, which was secured by an electronic security system that required a key card to gain access. Upon entry, K.W. saw a bowl of lollipops and placed one in her pocket. She testified that defendant made sexual comments referring to the lollipop. K.W. testified that she asked to use a bathroom she had seen in the hallway of the second floor, but that defendant told her to use the bathroom in the mayor’s office.

While in the bathroom of the mayor’s office, K.W. sent the following text to her boyfriend: “Tell the police that officer john rape me baby plz 111 do anything for u but I can’t f##k this man no more.” K.W. testified that she had forgotten she had her boyfriend’s phone, which began to ring. K.W. then began to flush the toilet to drown out the ringing sound. She also sent her mother the following texts: “Mom ny5 fone die e im at mayor offic2e down-toen officer seaton helppppp,” and “mom, his name is rick seston.” K.W. testified that she sent these texts because she was afraid she would be raped and killed.

K.W. testified that as she exited the bathroom defendant grabbed her, pushed her against the wall and began kissing her neck. She stated that she Rtold him to stop, but that she was unable to fight him off. The defendant then pushed her onto the couch in the mayor’s office and began undressing her. She testified that her belly button ring was caught in her pants and was ripped out when defendant pulled down her pants. K.W. testified that she told defendant that she was on her menstrual cycle, but he pulled out her tampon and performed oral sex upon her. K.W. testified that she repeatedly told defendant no and asked him to stop.

After defendant finished, K.W. testified that he told her not to go anywhere'and left the room. She stated that when he returned a minute later, she could smell a “latex glove” scent that indicated he was wearing a condom. The defendant then vaginally penetrated her while she was on the couch. K.W. testified'that defendant next turned her onto her stomach and vaginally penetrated her again.

K.W. testified that she was visibly upset afterwards. She then followed defendant to the ATM outside the building. They returned to the mayor’s office to try to find her underwear and then defendant drove her to Sam’s Town. K.W. testified that she had memorized the car’s license plate number while in the parking garage. After being dropped off, she immediately went to a bar in the casino for a pen to write down the number.

K.W. was met in the hotel lobby by her mother and police officers. Her mother had received the texts and had filed a missing person report. Shreveport Police Officer Matthew Holloway testified that K.W. was crying and told him that defendant had raped her in the mayor’s office. She also handed him a piece of paper containing the license plate number and 17description of the city vehicle used by defendant.

Officer Tracy Mendels, an investigator for the Shreveport Police Department Crime Scene Investigations Unit, was called to Government Plaza and advised to look for a belly button ring. Mendels photographed, marked and collected evidence from the offices. The following evidence was secured from the mayor’s office: two DNA swabs from the couch cushion; one tape lift of long dark ham from the couch cushion; and one throw pillow from the couch with suspected bodily fluids. The following evidence was secured from the home of defendant’s father, with whom defendant was staying: a blue shirt and charcoal gray pants; a tube of sexual lubricant; two sex manuals; and a number of condoms. K.W.’s belly button ring, underwear, and tampon were never recovered.

Melanie Hubbard, an expert in the field of sexual assault forensic examination, testified that on December 28, 2010, she arrived at Schumpert Hospital after 1:00 a.m. and performed a sexual assault examination on K.W. Hubbard testified that K.W. was very upset and nervous with alcohol on her breath, that her eyes were bloodshot and she was crying. Hubbard testified that K.W. said she had consumed two alcoholic drinks and gave the details about her boyfriend’s arrest, the unwanted advances from defendant, her attempts to contact her mother and boyfriend, and the rape.

The medical examination revealed that K.W. had four “slits,” or lacerations, at the bottom of her posterior fourchette (vaginal opening). Hubbard stated that such slits were different from the norm and indicated “rough intercourse,” which could have occurred with or without consent. |sHubbard also testified that the dried secretions and blood in K.W.’s navel and the brown fluid around her cervix were consistent with K.W.’s narrative of having a body piercing and menstruating.

Jimmy Dale Barnhill, an expert in the area of forensic alcohol toxicology at the North Louisiana Criminalistics Laboratory, testified that test results showed K.W.’s blood alcohol level as .05 grams at 1:30 a.m. or 2:00 a.m. on December 28, 2010. Based upon the victim’s size, body weight and using “retrograde extrapolation,” Barnhill opined that K.W.’s blood alcohol level would have been somewhere between .11 and .16 grams percent at 8 p.m., and between .10 and .15 grams percent at 9 p.m.

Gerald Posey, a deputy and the Technical Resources Manager of the Caddo Parish Sheriffs Office, testified that the security cameras installed at Government Plaza were operated by the sheriffs office. He stated that five of the security camera videos from the evening of the crime had been deleted from the video index. However, Posey testified that he was able to access the video, which was stored on the system server.

Dale Sibley, Chief Administrative Officer of the City, testified that the defendant was fired on the evening of the incident because of his behavior, his use of the mayor’s office and a city vehicle. Sibley testified that defendant made the following statements to him, “I guess I kind of messed up ... I didn’t rape anybody ... And I think when all this is said and done, that will be clear. As a matter of fact, you know, I used a condom and it’s in the trash can.”

The defense called Dale Thomas, an employee for the City of | ^Shreveport, as an expert in the field of Information Technology. Thomas stated that only his office had access to the log report of the key-card security system and that he believed that no city worker had the necessary software to delete the video in the sheriffs system. Specifically, Thomas stated his belief that defendant was granted only “viewer rights,” not “administrative rights,” and so would have been unable to delete any videos.

The defendant testified that at the time of the incident, he was employed as the Assistant Chief Administrative Officer of Shreveport. He testified that on December 27, 2010, he was not armed with a firearm and wore charcoal gray pants, dark blue shirt, yellow tie, a black trench coat and an Independence Bowl lanyard pass around his neck. He testified that he observed the arrest of KW.’s boyfriend and was standing close to the police officers on the scene, but that he never indicated to K.W. that he was a police officer or that he was able to post her bond.

Defendant testified that he offered K.W. help by giving her the choice to ride with him to the city jail. He stated that he and K.W. kissed each other in his car outside of the jail and that he did not force himself upon her or threaten her. Defendant testified that while waiting in the parking lot he spoke with Long about K.W. posting a bond and that he was told that she could not be helped because she was from out of state.

Defendant testified that he then drove K.W. to Government Plaza to use the ATM and the phone, and that he used his access card to enter the building. He testified that K.W. sat in his lap while making phone calls, that he rubbed her back, that they went into the mayor’s office and that K.W. 110went to the bathroom. He asserted that they each took off their own clothes and had sex twice on the couch in the mayor’s office. Defendant stated that K.W. did not tell him to stop, that he did not threaten her and that he used a condom. He testified that he had not deleted any videos and that he had access to view the videos only.

On cross-examination, defendant theorized that K.W. was lying about being raped in an effort to get leverage against the city to get her boyfriend out of jail. He admitted telling Corporal French that K.W. was attractive, but asserted that she did not have slurred speech or an odor of alcohol at the time.

Defendant testified that he told K.W. that the bus ride would not cost anything because the bus operator was working for him, and that he had exerted authority over the bus driver with the police standing there. He also testified that he did tell K.W. that he was something like an officer in that he was the Assistant Chief Administrative Officer for the city. Defendant acknowledged that he could have taken K.W. to Sam’s Town or let her use one of his two cell phones to call bail bonding agencies instead of driving her to his work office after hours. He testified that he did not know how K.W.’s belly button piercing was ripped out and did not see a tampon.

At the conclusion of the bench trial, the defendant was found guilty of one count of forcible rape and one count of abuse of office. Defendant’s motions for post-verdict judgment of acquittal and to quash the abuse of office charge were denied. The trial court sentenced defendant to serve 15 years at hard labor, the first three years without benefit of parole, probation |nor suspension of sentence, for the forcible rape conviction and to serve three years at hard labor for the abuse of office conviction, with both sentences to run concurrently. The defendant’s motion to reconsider sentence was denied and this appeal followed.

DISCUSSION

The defendant contends the evidence was insufficient to support his convictions for forcible rape and abuse of office. Defendant argues the evidence did not prove guilt beyond a reasonable doubt because the victim’s testimony about the incident was contradicted by the timeline of events shown by the surveillance video and cell phone records.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,-137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020.

It is the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Bonnett, 524 So.2d 932 (La.App. 2d Cir.), writ denied, 532 So.2d 148 (La.1988). The trier of fact hears the testimony first hand and unless the fact finder’s assessment of | i2believability is without any rational basis it should not be disturbed by a reviewing court. State v. Mussall, 523 So.2d 1305 (La.1988); State v. Combs, 600 So.2d 751 (La.App. 2d Cir.), writ denied, 604 So.2d 973 (La.1992). The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a fact finder’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; 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.

LSA-R.S. 14:42.1(A)(1) provides, in pertinent part:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

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. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. This is equally applicable to the testimony of victims of sexual assault. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir 8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. 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. Robinson, supra; State v. Ponsell, supra.

In the present case, K.W. testified that the defendant physically pushed her onto the sofa in the mayor’s office, pulled off her pants and without her consent vaginally penetrated her twice. Defendant admitted he performed sexual intercourse with the victim, but asserted the victim had consented. In weighing the conflicting testimony, the court considered the findings of Melanie Hubbard, an expert in the field of sexual assault forensic examination, who testified that the four lacerations in the victim’s vaginal opening were consistent with rough sex and that the evidence which was collected corroborated the victim’s description of a sexual assault.

K.W. also testified that she repeatedly told the defendant “no” before and during the sex acts. The victim stated that she protested each time defendant made advances by pulling her toward him, kissing her, holding her in his lap and removing her clothes. In addition, the victim testified that she attempted to push defendant away and get free of his grasp, but she was physically overpowered by the defendant. The victim’s trial testimony concerning the incident was substantially consistent with her prior statements to the police and nurse examiner Hubbard.

The defendant’s primary challenge to the victim’s testimony relies on the synchronization of the times listed on the security video from the jail |14and Government Plaza and on the key-card records. However, the evidence indicates a lack of such synchronization. For example, the defendant’s submitted timeline shows he and the victim walking out of the jail at 8:51 p.m., so that they were not in. the car at that time. There was no evidence that they sprinted to the city vehicle and sped out of the parking lot, but the Government Plaza video shows the car driving into the garage at 8:53 p.m.

Thus, under the defendant’s timeline, he drove that distance in less than two minutes. Such a tight time sequence suggests the video cameras were not set to the same time. Dan Thomas, a defense witness, stated that the times of the video and card access systems would not match exactly. Thomas also acknowledged that an entry in exhibit D-6, a log of key-card access times at Government Plaza, did not make sense because the log showed defendant accessing the kitchen before leaving the stairwell when such a sequence was not possible.

In addition, the defendant’s timeline and testimony show that the victim’s text to the boyfriend’s phone could have been sent from a restroom as the victim recalled. However, the text would have been sent from the hallway restroom, which the victim used between 8:56 and 9:03 p.m., rather than the mayor’s restroom. Regarding the subject of the text, K.W. testified that she was trying to shock her boyfriend into somehow sending her help and that at the time she feared being raped by defendant based on his behavior up to that point.

We note that in his brief, defendant attempts to portray the victim as a sinister person plotting his downfall. This characterization is not supported 11r-by the record, which shows that defendant initiated the series of events leading to his commission of the crimes by intervening to get the victim off of the shuttle bus that would have returned K.W. to her mother at the hotel.

As the victim of sexual assault, K.W.’s testimony alone was sufficient to prove the commission of forcible rape by the defendant. Further, her account of the events that transpired was supported by scientific and physical evidence obtained shortly after the incident occurred. Based upon the evidence presented, the trial court could reasonably have found that K.W. was prevented from resisting the rape by defendant’s use of physical force. In convicting the defendant, the trial court chose to believe the victim’s testimony instead of the defendant’s claim of consensual sex.

After reviewing the record, we conclude that a rational trier of fact could have found that the essential elements of the crime of forcible rape were proven beyond a reasonable doubt. Consequently, the trial court did not err in finding defendant guilty of forcible rape.

Abuse of Office

No public officer or public employee shall knowingly and intentionally use the authority of his office or position, directly or indirectly, to compel or coerce any person to provide the public officer or any other person with anything of apparent value when the public officer is not entitled by the nature of his office to the object of his demand. LSA-R.S. 14:134.3. The term anything of value includes sex or money or loss of simple human dignity. State v. Arnold, 548 So.2d 920 (La.1989); State v. Hill, 40,023 (La.App.2d Cir.9/21/05), 911 So.2d 379.

| inIn the present case, defendant was employed as assistant chief administrative officer for the City of Shreveport at the time of the offense. This position qualifies defendant as a public officer or a public employee. The defendant came into contact with the victim through his job duties in supervising the operation of shuttle buses at a public event. When the victim said she needed a phone to call bail bond companies, the defendant did not help her with the cell phone he was carrying or by taking her to the hotel. Instead, the defendant drove K.W. to his work office in a nearly empty building, where she would be isolated and dependent on him. The defendant’s conduct supports a finding that he intentionally used the authority of his office to coerce the victim to provide sex, a thing of value that he was not entitled to receive by the nature of his office. Based upon this record, the evidence presented was sufficient to support the conviction of abuse of office. The assignment of error lacks merit.

Double Jeopardy

The defendant contends the trial court erred in allowing him to be charged with both abuse of office and forcible rape. Defendant argues that he was subjected to double jeopardy because the same evidence required to convict of one offense also supported conviction of the other.

A person cannot twice be put in jeopardy for the same offense. U.S. Const. amend. V; La. Const. Art. 1, § 15; LSA-C.Cr.P. art. 591; State v. Knowles, 392 So.2d 651 (La.1980). Louisiana uses both the “Blockburger test” and the “same evidence test” in determining whether double jeopardy exists. State v. Ceasar, 37,770 (La.App.2d Cir.10/9/03), 856 So.2d 236. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court held that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Louisiana also uses the broader “same evidence” test, which provides that if the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy and a defendant can be placed in jeopardy for only one. This test depends on the proof necessary for a conviction, not the evidence that is actually presented at trial. State v. Steele, 387 So.2d 1175 (La.1980); State v. Redfearn, 44,709 (La.App.2d Cir.9/23/09), 22 So.3d 1078; State v. Robertson, 511 So.2d 1237 (La.App. 2d Cir.1987), writ denied, 516 So.2d 366 (La.1988).

In the instant case, defendant was charged and convicted of two crimes: forcible rape (La. R.S. 14:42.1) and abuse of office (La. R.S. 14:134.3). The forcible rape charge requires proof of sexual intercourse and the prevention of resistance by force or threats of physical violence. The abuse of office charge does not require either of those elements.

In contrast, the abuse of office charge requires evidence that the offender was a public officer or employee, and the use of the authority of his office or position to obtain something of value for himself or another. These elements are not required in the charge of forcible rape. Thus, under the Blockbwrger test, the charges do not amount to double jeopardy.

11sIInder the broader “same evidence” test, contrary to defendant’s assertion, the evidence required to convict of abuse of office would not support conviction of forcible rape, which requires evidence of sex without the victim’s consent. Additionally, the evidence necessary to convict the defendant of forcible rape would not support conviction of abuse of office, which requires evidence that a public official intentionally used his office to coerce another to provide a thing of value to which he was not entitled, whether or not he was successful. Accordingly, this assignment of error is without merit.

Sentencing

The defendant contends the trial court erred in imposing excessive sentences. Defendant argues that less harsh sentences would accomplish the goals of punishment and rehabilitation.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. 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. 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, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out|1sof proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. The penalty for committing forcible rape is imprisonment at hard labor for not less than five nor more than 40 years, with at least two years to be imposed without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:42.1(B). A person convicted of abuse of office shall be imprisoned for not less than one year and not more than five years, or fined not more than $5,000. LSA-R.S. 14:134.3(B).

Prior to imposing sentence, the trial court considered the guidelines of Article 894.1 and found that the defendant was in need of correctional treatment that could be provided most effectively by his commitment to an institution. Regarding defendant’s social history, the court was aware of his age, his family circumstances and that he had been employed. The court considered as mitigating factors the defendant’s expression of remorse, the letters submitted on his behalf and his lack of criminal history. However, the court found as aggravating factors the age and vulnerabilities of the 18-year-old victim at the time of the crimes.

|20In imposing the 15-year sentence for the forcible rape conviction, the trial court found that a lesser sentence would deprecate the seriousness of the crime. The record demonstrates that the trial court took cognizance of the sentencing guidelines in imposing a sentence at the lower end of the sentencing range for the offense of forcible rape. Based upon the circumstances of this case, where the defendant took advantage of a situation involving a young woman from out of state, the trial court did not abuse its discretion in imposing these concurrent sentences, which are not grossly disproportionate to the seriousness of the offenses committed. Thus, we cannot say the sentences imposed are constitutionally excessive. The assignment of eiTor 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.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Anthony Ray WILLIAMS, Appellant.
    No. 47,750-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Louisiana Appellate Project by Douglas Lee Harville, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before MOORE, PITMAN & SEXTON (Ad Hoc), JJ.
   PITMAN, J.

| defendant, Anthony Ray Williams, pled guilty to one count of possession with intent to distribute a Schedule I controlled dangerous substance. He was charged in connection with a traffic stop during which 120 + pounds of marijuana were found in a car with Defendant and the driver, David Harrison (“Harrison”). Defendant’s later request to withdraw his guilty plea was denied by the trial court. He then entered a Crosby plea, reserving the right to appeal the district court’s denial of his motion to suppress, and pled guilty in accordance with a plea agreement. He was subsequently sentenced to 20 years at hard labor. Defendant now appeals. For the following reasons, Defendant’s conviction and sentence are affirmed.

FACTS

While on patrol on 1-20 in Bossier Parish on October 29, 2009, Louisiana State Trooper Brent Peart observed a white Volkswagen Jetta cross the fog line. He drove closer to inspect the vehicle’s license plate, but was unable to read it clearly because a cover on top of the license plate obscured the “outskirts” of the plate. He subsequently stopped the vehicle and instructed the driver to step outside and to the rear of the vehicle.

Harrison, the driver of the vehicle and Defendant’s codefendant, told Trooper Peart that they were driving from Houston, Texas, to Birmingham, Alabama, for a wedding and that the vehicle belonged to his niece. Trooper Peart noted that Harrison avoided eye contact with him and that his hands were trembling when he handed over his driver’s license.

1 ¡/Trooper Peart instructed Harrison to remain standing in front of his police unit while he separately questioned the passenger about their itinerary and the ownership of the vehicle. Defendant was the sole passenger in the vehicle; he told Trooper Peart that he and Harrison were heading to Birmingham, Alabama, to visit some friends, that Harrison was his brother and that the car belonged to Harrison’s friend. Trooper Peart asked for Defendant’s driver’s license and testified at the motion to suppress hearing that Defendant avoided making eye contact with him, faced forward and was nervous, “fumbling with a lot of stuff in the car,” and kept “picking his phone up and down.”

Trooper Peart contacted the dispatcher to check the criminal background of both men and learned that the occupants shared a criminal history of narcotics offenses. Trooper Peart then requested backup from Louisiana State Trooper William Green, who subsequently arrived on scene. Trooper Peart returned the licenses to the occupants, issued a verbal warning and asked for consent to search the vehicle. Harrison stated that the car had nothing illegal in it, but refused to grant consent. Trooper Peart requested a drug dog from Bossier Parish to assist with the traffic stop, but the dog was unavailable. Trooper Peart then contacted Officer Danny Turner of the Minden Police Department and requested a K-9 unit.

Trooper Peart relocated the traffic stop to Goodwill Travel Plaza, a nearby location in Webster Parish, due to rain which had become heavier during the stop. As requested, Officer Turner arrived with the K-9 and the dog alerted to the presence of narcotics in the vehicle. After the alert, laTrooper Peart searched the vehicle and discovered four large bundles wrapped in wrapping paper in the trunk. Harrison and Defendant were subsequently arrested. The content of the bundles was a leafy green vegetable matter and Trooper Peart testified at the hearing on the motion to suppress that he believed the contents to be marijuana. The bundles were later revealed to be 123 lbs. of marijuana. The traffic stop and the detention were recorded by the dash camera in Trooper Peart’s police unit.

Both the photographs of the marijuana seized from the vehicle and a copy of Trooper Peart’s video recording were later introduced into evidence. The defense did not object to these exhibits.

On December 10, 2009, Defendant was charged by a bill of information with conspiracy to distribute a Schedule I Controlled Dangerous Substance, namely marijuana, in violation of La. R.S. 40:966(A)(1), for acts committed on October 29, 2009. On May 11, 2010, Defendant was charged by an amended bill of information with possession of a Schedule I Controlled Dangerous Substance, namely over 60 pounds of marijuana, with the intent to distribute, in violation of La. R.S. 40:966(A)(1)(F)(1) (Count One); and conspiracy to distribute a Schedule I Controlled Dangerous Substance, namely marijuana, in violation of La. R.S. 40:966(A)(1) and La. R.S. 40:979 (Count Two) for acts committed on October 29, 2009.

On August 31, 2010, Harrison filed a motion to suppress the evidence of 123 lbs. of marijuana found in the trunk of the vehicle, alleging that the|4search which led to its discovery was illegal. Defendant joined in the motion to suppress. A hearing was held on January 18, 2011, wherein Trooper Peart testified as to the events leading up to Defendant’s arrest.

On February 15, 2011, the district court denied the motion to suppress and provided oral reasons. First, the court noted that the recording from the dash cam in Trooper Peart’s police unit did not show the Volkswagen traveling over the fog line, but begins at the inception of the traffic stop. The court noted that the video featured Trooper Peart informing Harrison that his license plate was obscured by the cover and Harrison responding with “Okay.” The court found merit in Trooper Peart’s testimony that the license plate was obscured and unreadable and determined the initial stop to be reasonable.

In determining whether the traffic stop could lead to the ultimate search of the vehicle, the court found that Harrison’s and Defendant’s conflicting stories about the ownership of the car and the purpose of the trip and their combined nervousness provided Trooper Peart with reasonable suspicion and justified his decision to contact the K-9 Unit.

On May 25, 2010, Defendant entered a plea of not guilty. On October 10, 2011, he withdrew his plea of not guilty and, in accordance with a plea agreement that eliminated the possibility of a multi-bill, entered a plea of guilty to Count One, possession of marijuana with intent to distribute over 60 pounds. The district court advised Defendant that the penalty for the crime would be imprisonment at hard labor for not less than 5 years, nor more than 30 years, and a fine of not less $50,000, nor more Rthan $100,000. After advising Defendant of his Boykin rights, the district court accepted his guilty plea as being voluntary and intelligently made. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

On February 7, 2012, Defendant filed a motion to withdraw his guilty plea stating that, when he originally entered it, he did not have sufficient contact with his attorney and he was also under the impression that Harrison would be testifying against him in exchange for a lesser sentence. The district court denied the motion. On April 10, 2012, Defendant entered a Crosby plea, reserving the right to appeal the district court’s denial of his motion to suppress, and pled guilty to the charge of possession of marijuana with the intent to distribute in accordance with the plea agreement. State v. Crosby, 338 So.2d 584 (La.1976). Defendant was subsequently sentenced to 20 years at hard labor.

DISCUSSION

Traffic stop, detention and search

In his first assignment of error, Defendant argues that he was illegally detained and that the marijuana evidence recovered from the search should have been suppressed. He emphasizes that both he and Harrison were detained for approximately 58 minutes after the initial stop, some 39 minutes after their licenses were returned and after the verbal warning for, any alleged traffic violations, and for approximately 29 minutes while waiting for the K-9 Unit to arrive at the Goodwill Travel Plaza. Defendant further states that Trooper Peart was not investigating the case or doing anything to further his investigation “for much of the 58 minutes” that he | fiwas illegally detained and that both he and Harrison should have been released at the conclusion of the initial investigation.

Defendant asserts that the inconsistent stories did not provide reasonable suspicion of criminal activity and emphasizes that, at the suppression hearing, Trooper Peart testified to smelling only fabric softener and not marijuana. Furthermore, Defendant states that his and Harrison’s behavior was attributable to the stressful situation and the cold, rainy weather.

The standard for evaluating a challenge to a routine warrantless stop for violating traffic laws is the two-step formulation articulated in Terry v. Ohio, 392 U.S. 1 (1968), 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Pena, 43,321 (La.App.2d Cir.7/30/08), 988 So.2d 841; State v. Sims, 40,300 (La.App.2d Cir.10/26/05), 914 So.2d 594. The court must determine “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” United States v. Shabazz, 993 F.2d 431 (5th Cir.1993), quoting Terry v. Ohio, supra.

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur, before stopping the vehicle. United States v. Sharpe, 470 U.S. 675 (1985), 105 S.Ct. 1568, 84 L.Ed.2d 605; State v. Pena, supra; State v. Sims, supra. Here, Trooper Peart witnessed Harrison cross over the fog line, in violation of La. R.S. 32:79, which requires vehicles to remain entirely within a single lane and not move from such lane until the driver has first ascertained that such movement can be made with safety. Further, the addition of the license plate cover to the vehicle was in violation of La. R.S. 47:507 and La. Admin. Code Title 55, pt. III, § 811(6), which state that a license plate should be free of foreign materials and readable for a distance of 50 feet from the rear of the vehicle. The dash cam video showed Trooper Peart pointed out this violation twice and Harrison agreed with this statement. The district court did not commit manifest error in finding that the traffic stop was justified at its inception.

It is apparent from the dash cam recording that the initial traffic stop transformed into an investigatory detention. During the detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. La. C. Cr. P. art. 215.1(D).

There is no bright-line rule for determining when a lawful detention lasts too long. In assessing the reasonableness of an investigatory detention’s duration, the United States Supreme Court and Louisiana courts have focused on the diligence of the detaining officer(s):

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation and in such cases the court should not indulge in unrealistic second guessing.

Is United States v. Sharpe, supra; State v. Turner, 13-0180 (La.3/1/13), 108 So.3d 753; State v. Dixon, 39,994 (La.App.2d Cir.9/21/05), 911 So.2d 372; State v. Arnold, 34,194 (La.App.2d Cir.12/6/00), 779 So.2d 840. The initial traffic stop for the driving violations was 18 minutes and 51 seconds long. Trooper Peart, relying on his training and experience, reasonably suspected the Defendant and Harrison were involved in further criminal activity. Trooper Peart questioned both occupants, collected their Texas driver’s licenses and promptly contacted the dispatcher for backup and for the criminal background checks. Most of the wait time is attributable to the dispatcher having to contact Texas authorities for the information regarding both Defendant and Harrison. The delay was not attributable to any lack of diligence on the part of Trooper Peart.

An officer does not need any degree of reasonable suspicion, as opposed to intuition or “hunch,” to ask for and receive consent to search a vehicle. State v. Strange, 04-0273 (La.5/14/04), 876 So.2d 39. In order to further detain a suspect, however, the officer must have articulable facts giving rise to a reasonable suspicion of some separate illegal activity that would justify further detention of the suspect. State v. Lee, 46,742 (La.App.2d Cir.12/14/11), 79 So.3d 1278. In making that determination, the totality of the circumstances must be taken into account. Id.

The question here is whether Trooper Peart had reasonable suspicion to detain the occupants after returning their licenses and issuing a verbal warning. Trooper Peart testified at the suppression hearing that the Rfoil owing behavior gave him reasonable suspicion of criminal activity: Harrison’s trembling hands and avoidance of eye contact; a strong odor of fabric softener or air freshener; Defendant’s nervousness, avoidance of eye contact and acts of facing forward, fumbling with things in the car and repeatedly picking up his phone; the conflicting stories of the occupants about the purpose of the trip and the ownership of the vehicle; and the shared criminal history of both occupants.

Factors which may give rise to reasonable suspicion include the demeanor of the suspect and unlikely and inconsistent accounts regarding travels. State v. Miller, 00-1657 (La.10/26/01), 798 So.2d 947; State v. Pena, supra. The presence of an air freshener in a vehicle has also been considered a factor which may give rise to reasonable suspicion. State v. Thompson, 543 So.2d 1077 (La.App.2d Cir.5/10/89), writ denied, 551 So.2d 1335 (La.1989). Outstanding warrants and criminal records may also be . considered in this inquiry. State v. Khalfani, 43,647 (La.App.2d Cir.10/29/08), 998 So.2d 756, writ denied; State ex rel. Kamau v. State, 09-0267 (La.11/6/09), 21 So.3d 305; State v. Pena, supra.

It is apparent from the video recording that Harrison was nervous. He was extremely garrulous throughout the stop, communicating with his hands and supplying unnecessary information. Although Defendant’s actions were not visible because he remained seated in the car, the inconsistent accounts given by Harrison and Defendant regarding their travels, together with their shared criminal history, are factors defined in the law that give rise to reasonable suspicion. Furthermore, Trooper Peart’s testimony of |,nsmelling the scent of fabric softener aligns with the jurisprudence of drug couriers using aromatic fragrances of odor eliminating products to mask the scent of narcotics and is another factor that may give rise to reasonable suspicion. The combination of the facts allowed a permissible shift in Trooper Peart’s focus to reasonable suspicion of separate illegal drug activity. Thus, the district court did not commit manifest error in finding that there was reasonable suspicion to detain the occupants after the initial traffic stop.

Accordingly, this assignment of error is without merit.

Incomplete record

In his second assignment of error, Defendant states that the district court’s ruling on the motion to suppress was based on a review of the video and asserts that there is a gap in the video from the 19:10 time mark to the 28:86 mark. He acknowledges that he failed to object to this alleged defect, but asserts that this Court cannot conduct a review of the complete record in this appeal. Although the recording is not time-stamped, the district court recognized this fact and found the recording to be complete in its entirety. Based on an independent viewing of the video, we see no apparent alterations or deletions and the video is entirely complete. In addition, the defense counsel failed to object to this evidence at the hearing on the motion to suppress. La. C. Cr. P. art. 841 provides that an irregularity error cannot be availed of after verdict unless it was objected to at the time of the occurrence.

Accordingly, this assignment of error has no merit.

| nErrors patent

A review for errors patent revealed that the statutory language of La. R.S. 40:966, which defines the penalty for distribution or possession with intent to distribute Schedule I narcotic drugs, was misstated in an amended bill of information.

Defendant was charged by the following bill of information on December 10, 2009:

Count No. 1 — did commit the crime of conspiracy to distribute a Controlled Dangerous Substance, namely Marijuana [La. R.S. 40:966(A) ], contrary to La. R.S. 14:26.

Subsequently, Defendant was charged by the following amended bill of information on May 11, 2010:

Count No. 1 — did knowingly or intentionally possess a Schedule I Controlled Dangerous Substance (over 60 pounds of Marijuana) with intent to distribute in violation of the provisions of Louisiana Revised Statute 40:966(A)(1)(F)(1).
Count No. £ — did conspire to distribute a Schedule 1 Controlled Dangerous Substance (Marijuana) in violation of the provisions of Louisiana Revised Statute 40:966A(1) and 40:979.

Initially, Defendant entered a plea of not guilty. On October 10, 2011, Defendant withdrew his not guilty plea and entered a plea of guilty to possession of marijuana with intent to distribute over 60 pounds in accordance with a plea agreement. The following dialogue between Defendant and the court occurred during the Boykin colloquy:

The Court: The charge you’re pleading guilty is said to have occurred in Bossier Parish on or about October 29, 2009 and it’s that you knowingly or intentionally possessed a Schedule I | ^controlled dangerous substance said to be over 60 pounds of marijuana with the intent to distribute. Do you understand that, sir?
Defendant: Yes, sir.
The Court: The penalty for the crime that you’re pleading guilty to would be imprisonment at hard labor for not less than five years nor more than 30 years and a fine of not less than $50,000.00 nor more than $100,000. Do you understand that?
Defendant: Yes, sir.
The Court: Do you understand that this is a felony so by entering the plea of guilty you will have a felony conviction on your record and that could be used against you in the future as a basis for an increased sentence under our State’s habitual offender laws?
Defendant: Yes, sir.

As stated in the facts, the district court accepted Defendant’s guilty plea as being voluntary and intelligently made. Later, on April 10, 2012, Defendant entered a Crosby plea and pled guilty to his original terms, while reserving the right to appeal the district court’s denial of his motion to suppress. State v. Crosby, supra. A trial court may allow a guilty plea to be withdrawn at any time prior to sentencing. La. C. Cr. P. art. 559(A). A trial court’s ruling on the matter is subject to reversal only if the court abuses its discretion or is arbitrary. State v. Hall, 26,006 (La.App.2d Cir.5/4/94), 637 So.2d 645, writ denied, 94-1373 (La.9/30/94), 642 So.2d 868. The ^district court accepted this Crosby condition and sentenced Defendant to 20 years at hard labor for the charge of possession of marijuana with the intent to distribute. State v. Crosby, supra. He was not ordered to pay a fíne, nor was any part of the sentence imposed without the benefit of parole.

The issue here is that there is no such statute as La. R.S. 40:966(A)(1)(F)(1). The bill was never amended or corrected, orally or in writing; no motion to quash the bill of information was ever filed on Defendant’s behalf.

Jurisdictional defects, discoverable as errors patent on the face of the record, are those defects which, even conceding the accused’s factual guilt, do not permit his conviction of the offense charged. State v. Kendrick, 34,097 (La.App.2d Cir.12/20/00), 779 So.2d 884, rehearing denied, writ denied, 828 So.2d 563 (La.11/1/02). The accused cannot plead guilty to a crime with which he is not charged and the trial judge is without authority to accept such a plea. State v. Stevens, 452 So.2d 289 (La.App. 2d Cir.1984). However, the failure of the district attorney to amend the bill to conform to Defendant’s plea agreement cannot be considered to render the plea unintelligent or involuntary. State v. Jackson, 04-2863 (La.11/29/05), 916 So.2d 1015.

The sentence in this case would be legal if Defendant was convicted under La. R.S. 40:966F(1) or La. R.S. 40:966A(1). La. R.S. 40:966(A)(1) |14requires that the first 5 years of a sentence be served without benefit of probation, parole or suspension of sentence. Although the district court did not specify that Defendant’s sentence would be served with the first 5 years to be without the benefit of probation, parole, or suspension of sentence, La. R.S. 15:301.1 serves as a “safety net” in ensuring that Defendant’s sentence automatically includes the provisions of La. R.S. 40:966. Thus, the “non-paroleable time” under La. R.S. 40:966(G) is automatically imposed. Although the bill of information was deficient, the transcript reflects that the district court read the penalty for a violation of La. R.S. 40:966(F)(1) to Defendant prior to his plea of guilty.

Defendant was not prejudiced by being sentenced under La. R.S. 40:966(F)(1) because the penalty is 5 to 30 years at hard labor and, thus, less than La. R.S. 40:966(A)(1)’s penalty of 5 to 50 years at hard labor. Effectively, Defendant pled to and was convicted of a violation of La. R.S. 40:966(F)(1). Based on the transcript, Defendant acknowledged his understanding of his waiver of his constitutional rights and the court accepted Defendant’s plea as being made voluntarily and intelligently. Defendant’s sentence of 20 years at hard labor is within the quoted range, and neither he nor the state has raised this issue. In addition, this Court is not required to impose the mandatory fine under La. C. Cr. P. art. 882(A) if Defendant was convicted under La. R.S. 40:966F(1). State v. Griffin 41,946 (La.App.2d Cir.5/2/07), 956 So.2d 199; State v. Price, 05-2514 (La.App.1st Cir.12/28/06), 952 So.2d 112, writ denied, 07-0130 (La.2/22/08), 976 So.2d 1277.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Anthony Ray Williams, are affirmed.

AFFIRMED.

SEXTON, J. (Ad Hoc) concurs, disagreeing with the errors patent treatment.

      . As discussed later in this opinion, there is no such charge under Louisiana statute.

      . La. R.S. 40:966F(1) provides that any person who knowingly or intentionally possesses 60 pounds or more, but less than 2,000 pounds, of marijuana, tetrahydrocannabinol or chemical derivatives thereof, or synthetic cannabinoids, shall be sentenced to serve a term of imprisonment at hard labor of not less than 5 years, nor more than 30 years, and to pay a fine of not less than $50,000, nor more than $100,000.
      La. R.S. 40:966A(1) provides that it is unlawful for any person knowingly or intentionally to produce, manufacture, distribute or dispense a controlled dangerous substance classified in Schedule I and, upon conviction, shall be sentenced to imprisonment for not less than 5 years and no more than 50 years at hard labor, with at least 5 years to be served without benefit of probation or suspension of sentence, and may, in addition, be required to pay a fine of not more than $50,000.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Dalton FLETCHER, Appellant.
    No. 47,777-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Louisiana Appellate Project, by Annette F. Roach, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Fred R. McGaha, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and PITMAN, JJ.
   STEWART, J.

LThis juvenile defendant, Dalton Fletcher, was convicted of two counts of second degree murder and sentenced to life imprisonment, without the benefit of parole, probation, or suspension of sentence on each count. The defendant’s motion to reconsider sentence was denied. The defendant now appeals. For the reasons discussed below, we affirm the defendant’s conviction, vacate the sentence, and remand to the trial court for resentencing.

FACTS

On September 10, 2010, Fletcher shot and killed his parents, Johnny and Tammy Fletcher, with a 12-gauge shotgun in their West Monroe home. He was 15 years old at the time the offense was committed. After his older sister witnessed him fatally shoot their mother, he threatened her with the shotgun he was holding, further instructing her to stay in her room and not to notify the police. The defendant took his sister’s cell phone to ensure she would not notify the police. The defendant then went to sleep and his sister remained in her room the rest of the night. The following morning, the defendant drove their mother’s vehicle to school, with the shotgun and additional ammunition in the trunk, and attended his usual classes. After the defendant left the house, his sister drove to a friend’s house and notified the police. The defendant was apprehended at school during his first class period. His mother’s vehicle was found in the school parking lot, and the shotgun he used to kill his parents was found in the trunk of the car.

Subsequent to the defendant’s arrest, he confessed to killing his parents. He stated that he had planned to commit these acts for about 1 ½ | ^months. He also expressed his intent to commit suicide when he returned home from school that evening.

The defendant was charged with two counts of second degree murder. His trial was moved from the Fourth Judicial District Court, Parish of Ouachita, to the 26th Judicial District Court, Parish of Bossier. The jury trial began on November 28, 2011, and ended on December 5, 2011, when the defendant was found guilty as charged of two counts of second degree murder.

The sentencing hearing took place on February 3, 2012. Even though the trial judge acknowledged that La. R.S. 14:30.1 provided for a mandatory sentence, he ordered a presentence investigation (“PSI”) and considered the relevant provisions of La. C. Cr. P. Art. 894.1. The trial judge subsequently reviewed the facts of the case as well as other information contained in the PSI, including the defendant’s social history. The trial judge also discussed the impact the murder of the defendant’s parents had on the community. After acknowledging that the sentence is mandated, the trial court sentenced the defendant to two concurrent life sentences, to be served at hard labor, without benefit of probation, parole, or suspension of sentence.

On March 2, 2012, the defendant filed a motion to reconsider sentence. This motion was denied on March 6, 2012. The instant appeal ensued, where the defendant is asserting three assignments of error.

LAW AND DISCUSSION

In the first assignment of error, the defendant alleges that the trial court erred in denying his motion to declare La. R.S. 14:80.1 | .^unconstitutional. In his second assignment, he asserts that the trial court erred in imposing the mandated sentences of life imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence, as those mandated sentences are a violation of the Eighth Amendment’s ban against cruel and unusual punishment, and are constitutionally excessive. Finally, in his third assignment, the defendant alleges that the trial court failed to properly consider his age and other age-related characteristics in determining the appropriate sentences in this case. Since the defendant is alleging the excessiveness of his sentence in all three assignments, we will discuss them together.

The defendant believes that Louisiana’s mandatory sentencing provision for second degree murder does not permit the sentencing court to consider the defendant’s youth, or age-specific characteristics when determining an appropriate sentence.

La. R.S. 14:30.1(B) sets forth the punishment for second degree murder:

B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. McCall, 37,442 (La.App. 2 Cir. 8/20/03), 852 So.2d 1162, writ denied, 04-0039 (La.12/17/04), 888 So.2d 858. On review, the Rappellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

In reviewing claims of an excessive sentence, an appellate court uses a two-step process. 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.

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). The important elements which 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); State v. Dillard, supra.

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

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Young, 46,575 (La.App. 2 Cir. 9/21/11), 73 So.3d 473; State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665.

In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the United States Supreme Court made a historic decision, holding that the Eighth Amendment forbids the sentence of life without the possibility of parole for juvenile offenders who did not commit homicide. This court further explained:

Because age “18 is the point where society draws the line for many purposes between childhood and adulthood,” it is the age below which a defendant may not be sentenced to life without parole for a nonhomicide crime. Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183, 161 L.Ed.2d 1 [ (2005) ]. A State is not required to guarantee eventual freedom to such an offender, but must impose a sentence that provides some meaningful opportunity for release based on demonstrated maturity and rehabilitation.

Following the Graham decision, the United States Supreme Court subsequently decided Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The Miller court ruled that the Eighth Amendment prohibits mandatory life sentences for offenders under the age of 18 who committed homicides. It explained that, “[s]uch mandatory penalties, by their nature, preclude the sentencer from taking account of an offender’s age and wealth of characteristics and circumstances attendant to it.” It noted:

1 ¿Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects that circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

However, the Miller court noted “our decision does not categorically bar a penalty for a class of offenders or type of crime.” Therefore, it did not preclude a sentencing court from sentencing a juvenile offender to life imprisonment without parole. Rather, it “required that it take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 2469.

La. R.S. 15:574.4(D) provides the parole eligibility for any person, under 18 at the time of the commission of the crime, who was sentenced to life imprisonment. This portion of the statute states:

D. (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment who was under the age of eighteen years at the time of the commission of the offense, except for a person serving a life sentence for a conviction of first degree murder (R.S. 11:30) or second degree murder (R.S. 11:30.1), shall be eligible for parole consideration pursuant to the provisions of this Subsection if all of the following conditions have been met:
(a) The offender has served thirty years of the sentence imposed.
|7(b) The offender has not committed any disciplinary offenses in the twelve consecutive months prior to the parole eligibility date
(c) The offender has completed the mandatory minimum of one hundred hours of prerelease programming in accordance with R.S. 15:827.1.
(d) The offender has completed substance abuse treatment as applicable.
(e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
(i) A literacy program.
(ii) An adult basic education program.
(iii) A job skills training program.
(f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
(g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.
(h) If the offender was convicted of aggravated rape, he shall be designated a sex offender and upon release shall comply with all sex offender registration and notification provisions as required by law.
(2) For each offender eligible for parole consideration pursuant to the provisions of this Subsection, the committee shall meet in a three-member panel and each member of the panel shall be provided with and shall consider a written evaluation of the offender by a person who has expertise in adolescent brain development and behavior and any other relevant evidence pertaining to the offender. |s(3) The panel shall render specific findings of fact in support of its decision, (emphasis added.)

La. R.S. 15:574.4(D) does not apply to juveniles serving a life sentence for a conviction of first degree or second degree murder. See La. R.S. 15:574.4(D)(1). The State of Louisiana does not currently have a statute that would afford a juvenile offender convicted of first or second degree murder consideration for parole. In State v. Williams, 12-355 (La.App. 5 Cir. 12/11/12), 106 So.3d 1090, the court called this issue an “issue of first impression.”

The defendant was born on January 6, 1995. He murdered his parents on September the 10, 2010, and was approximately 15 years and eight months on that date. As stated above in the facts portion of this opinion, the defendant was convicted of two counts of second degree murder on December 5, 2011, and sentenced on February 3, 2012. Therefore, he was convicted of two counts of second degree murder and sentenced, before Miller became law, to two concurrent life sentences, to be served at hard labor, without benefit of probation, parole, or suspension of sentence, pursuant to La. R.S. 14:30.1. During the sentencing hearing, the trial judge acknowledged that La. R.S. 14:30.1 provided for a mandatory sentence. Nevertheless, he ordered a PSI and considered the relevant provisions of La. C. Cr. P. art 894.1. He stated:

Following your conviction, the court ordered a presentence investigation report be prepared and submitted to the Court for review. I have reviewed that and the counsel for the state and the defense have also been afforded an opportunity to review the same. I’ve also carefully reviewed all the correspondence that has been submitted to the Court, either on your own behalf, Mr. Fletcher, or on behalf of family members, or even on |flbehalf of citizens of the community that have submitted correspondence as well. And certainly I’ve paid particular attention to the presentence investigation report. Now even though the sentencing is mandatory in this case, this Court still has charged itself with the relevant provisions of Article 894.1 of the Louisiana Code of Criminal Procedure prior to imposing sentence and I’ve reviewed again carefully the contents and revelations of everything that has been given to me, and I certainly I’m intimately familiar with the case as I’ve presided over it with the facts, the allegations, and what the jury has found.

Prior to sentencing the defendant, the trial judge reviewed the facts of the case, as well as other information contained in the PSI, including the defendant’s social history. The trial judge also commented on the impact these two murders had on the community. Again, the trial judge stated that the sentence was mandated, and sentenced the defendant to two concurrent terms of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence.

After a careful review of the sentencing transcript, we note that the trial judge considered some of the factors enumerated in Miller, but the review was not in depth. Focusing instead on a review of the factors enumerated in La. C. Cr. P. art. 894.1, the trial judge acknowledged the defendant’s age, as well as his family environment.

The record describes in great detail the circumstances of the offense committed. The defendant shot both parents in the middle of the night when they were asleep and unarmed. In fact, the defendant shot his father in his arm to rQuse him from his sleep and investigate where the shot initially came from. When he approached his son to ask him why he was doing this, the defendant shot him in the face. He then returned to the bedroom, where Imhis mother fearfully begged for her life. The defendant then shot her in the head, execution style, in the presence of his sister. The defendant did not appear to experience any distress afterwards, since he was able to continue his daily routine of attending school.

It is questionable if rehabilitation would be possible in this case. However, considering the fact that the trial court imposed the mandatory sentence pursuant to La. R.S. 14:30.1, we find that we must vacate the defendant’s sentence and remand this case so that the trial court may conduct a more specific and thorough review of the factors discussed in Miller, supra, in addition to the factors considered in La. C. Cr. P. art. 894.1. These factors must be considered when sentencing the defendant to life imprisonment.

Relying on jurisprudence, we find that the defendant’s mandatory sentence of two concurrent terms of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence, violates Graham, supra, and Miller, supra. We vacate the defendant’s sentence and remand the matter to the trial court for resentencing, after it conducts a more thorough review of the appropriate factors enunciated in Miller. After this review, the trial court will state the reasons for sentencing on the record.

CONCLUSION

For the aforementioned reasons, we affirm the defendant’s conviction, vacate the sentence, and remand the case to the trial court.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING WITH INSTRUCTIONS.


text:
    STATE of Louisiana, Appellee v. Charles Dewayne KENNEDY, Appellant.
    No. 47,795-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.
    Douglas L. Harville, for Appellant.
    J. Schuyler Marvin, District Attorney, Edward C. Jacobs, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and SEXTON (Ad Hoc), JJ.
   WILLIAMS, J.

_JjThe defendant, Charles Dewayne Kennedy, was charged by bill of information with simple burglary, in violation of LSA-R.S. 14:62. In exchange for a sentence recommendation of five years and the state’s agreement not to file a habitual offender bill of information, the defendant pled guilty as charged. He was sentenced to serve five years in prison at hard labor, with credit for time served. For the following reasons, we affirm the defendant’s conviction and sentence, and we grant appellate counsel’s motion to withdraw.

FACTS

The defendant’s guilty plea was made subject to a plea agreement with the state. In exchange for the defendant’s guilty plea, the state agreed not to file a habitual offender bill of information. The state also agreed to recommend a sentence of five years at hard labor.

On September 27, 2011, the defendant, who was represented by counsel, pled guilty as charged. According to the facts recited by the state during the plea hearing, the defendant entered an apartment located at 1301 Owens Street in Bossier City and stole a power saw. The defendant was apprehended and confessed to the crime.

The defendant was advised of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Once the defendant waived his rights, the trial court accepted the guilty plea. The defendant waived sentencing delays and was sentenced to the agreed-upon sentence of five yeai's at hard labor.

On appeal, the defendant’s appellate counsel has filed a motion to ^withdraw, together with an Anders brief, alleging that there are no nonfrivolous issues to raise on appeal. See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Monton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). The brief outlined the procedural history of the case and the agreement under which the defendant’s guilty plea was entered. Appellate counsel also vei’ified that a copy of the motion to withdraw and his brief had been mailed to the defendant, in accordance with Anders, Jyles, Mouton and Benjamin, supra.

The record shows that the defendant was properly advised of his Boykin rights before he pled guilty. There were no errors patent found in the guilty plea or during the sentencing proceeding. Additionally, pursuant to LSA-C.Cr.P. art. 881.2, the defendant is precluded from seeking review of his five-year sentence, as it was imposed in conformity with the plea agreement.

This court has reviewed-the l’ecord for errors patent. We have found none.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Lavert HENDERSON, Jr., Appellant.
    No. 47,806-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Paula Corley Marx, Douglas Lee Har-ville, Louisiana Appellate Project, for Appellant.
    Terrell J. Myles, Chief Shreveport City Prosecutor, Justin Smith, Assistant Shreveport City Prosecutor, for Appellee.
    Before BROWN, LOLLEY, and SEXTON (Pro Tempore), JJ.
   BROWN, Chief Judge.

Ijn the municipal court for the City of Shreveport, defendant, Lavert Henderson, Jr., was charged by separate affidavits with two counts of improper telephone communications in violation of La. R.S. 14:285 and one count of aggravated assault in violation of La. R.S. 14:37. The matters were consolidated for a bench trial which occurred on June 25, 2012. Defendant represented himself. Following testimony, the trial court found defendant not guilty of aggravated assault, not guilty of one count of improper telephone communications, and guilty of the other count of improper telephone communications. Henderson was fined $250. Defendant timely appealed.

Discussion

Subsection (C) of La. R.S. 14:285, the statute defining improper telephone communications, provides that whoever violates the provisions of La. R.S. 14:285 shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both. Subsection (B) of La. R.S. 14:37, the statute defining aggravated assault, provides that whoever commits an aggravated assault shall be fined not more than one thousand dollars or imprisoned for not more than six months, or both.

Defendant’s misdemeanor offenses were consolidated for trial. When consolidated, the law considers all criminal charges as if they were originally joined in a single bill. La. C. Cr. P. Art. 706. Had he been convicted of all three offenses, defendant was facing an aggregate sentence of up to 18 months in jail. Therefore, he was entitled to a jury trial. Article 1, § 17 of the Louisiana Constitution; State v. Hicks, 41,906 (La.App.2d Cir.12/20/06), 945 So.2d 959. La. R.S. 13:1894 limits the criminal jurisdiction of city courts to the trial of offenses which are not punishable by imprisonment at hard labor, i.e., to the trial of misdemeanors. Further, La. R.S. 13:1895 stipulates that criminal prosecutions in city courts “shall be tried -without a jury.”

The prosecutor has conceded that defendant was never informed of nor did he waive his right to a jury trial and that his conviction should be vacated and the matter remanded for further proceedings. Accordingly, defendant’s conviction and sentence are vacated and the matter is remanded for further proceedings. Interestingly, upon remand, defendant is only entitled to a bench trial because he will have only one pending misdemeanor charge, inasmuch as he was found not guilty of the other two charges at the first bench trial. See State v. Davis, 427 So.2d 1238 (La.App. 2d Cir.1983).

Conclusion

For the foregoing reasons, defendant’s conviction and sentence are vacated and the matter is remanded for further proceedings.


author: DREW, J.

text:
    Mary MURPHY, Plaintiff-Appellee v. GRAPHIC PACKAGING, INC., Defendant-Appellant.
    No. 47,834-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Hudson, Potts & Bernstein, L.L.P., Monroe, LA, by Jan Peter Christiansen, for Appellant.
    Parhms Law Firm, L.L.C., by Carlton Lashayne Parhms, Monroe, LA, for Appel-lee.
    Before WILLIAMS, DREW and MOORE, JJ.
   DREW, J.

11 Graphic Packaging appeals a judgment finding that Mary Murphy sustained carpal tunnel syndrome in both hands as a result of her employment.

We reverse.

FACTS

Mary Murphy worked for Graphic Packaging for over three decades, beginning in 1977. She retired from Graphic on November 20, 2011. She spent her last four years of employment for the company as a machine tender for three years, and then as a back tender for one year. Murphy began working as a back tender when a machine was shut down and another machine tender had more seniority.

As a machine tender, Murphy mainly worked on Graphic’s No. 5 paper machine, which had nine water filters. It was her job to clean the five-foot long filters with high-pressure hoses. Each filter was contained inside a tube. Murphy used a pry bar first to remove a cap from atop a tube, then to pull the filter up. She then removed the filter and cleaned it. She then put the filter back into the tube and screwed the cap back onto the tube.

Murphy stated that she began experiencing pain and swelling about two years before she retired. The symptoms started in her right hand and were later repeated in her left hand. Murphy said she also used the high-pressure hose to clean the machine’s pan, clean the floor, and perform other routine cleaning. She had to hold the hose with both hands while doing those tasks. When Murphy was asked which job duty caused her more pain and discomfort in her hands, she replied that it was cleaning the |2water filters with high-pressure hoses. She notified her supervisors that it was painful when she pulled the filters out of the tubes. She had not had problems with her right hand prior to that. After she complained, the company assigned employees to help her with pulling out the filters.

Murphy went to Dr. J.D. Patterson, her family doctor, for treatment of her symptoms. He gave her pain medications and told her to alternate heat and ice. She returned to him when the pain would not abate.

Dr. Douglas Brown, an orthopedic surgeon, examined Murphy on March 28, 2010, on a consultation from Dr. Patterson. Murphy reported having right hand and wrist pain for over two weeks. Dr. Brown’s impression was carpal tunnel syndrome. Murphy was given a night splint for the hand, but was to continue working. Dr. Brown referred Murphy for an EMG nerve conduction study. The study, performed by Dr. James Potts on April 13, 2010, showed bilateral carpal tunnel syndrome of moderate severity and right cubi-tal tunnel syndrome of moderate severity.

Dr. Brown next examined Murphy on May 17, 2010. He noted the nerve conduction study results. After finding Murphy to be veiy symptomatic over the right carpal tunnel, he requested a right carpal tunnel release of the median and ulnar nerves of the wrist.

On September 17, 2010, Murphy filed a disputed claim for compensation in which she asserted that she sustained an injury on May 28, 2010, while cleaning water filters.

IsMurphy was treated by Dr. Richard Ballard, an orthopedic surgeon, on October 25, 2010. She gave a history to Dr. Ballard that she:

• had worked in manufacturing for many years handling product;
• had injured herself six months earlier pulling water filters;
• developed pain and numbness in both arms, with the symptoms getting progressively worse;
• had been treated by Dr. Brown; and
• had the nerve conduction study, the results of which she shared.

Dr. Ballard’s impression was bilateral carpal tunnel syndrome. He thought she would benefit from bilateral carpal tunnel releases.

TRIAL

As part of this litigation, Graphic videoed a machine tender performing certain responsibilities of his job, including the cleaning of one filter. The video was shown to Drs. Ballard and Brown at their depositions. Dr. Brown stated that based upon what he saw in the video, there was not enough repetitive motion with the hands during the course of a day to cause Murphy’s carpal tunnel syndrome. Dr. Ballard could not say that he agreed or disagreed with Dr. Brown’s opinion.

Over Graphic’s objections at the February 2012 trial, the WCJ admitted into evidence a June 2011 affidavit from Troy Smith, Murphy’s coworker, on the grounds that Smith was unavailable. Smith had helped Murphy with her job duties. Smith disagreed with the video depiction of the filter cleaning. He related that: (i) unlike the filter in the video, the filters were so dirty that it took a hammer and pry bar to remove the tops from the tubes; (ii) it took at least five minutes to clean each filter with a |4high-pressure water hose; (iii) Murphy had to use the high-pressure hose for other cleaning tasks; (iv) on a good day, Murphy would have to use the hose 8 to 10 times a day for an average of two hours; and (v) on a bad day, Murphy would use the hose 15-20 times a day for an average of four hours.

The WCJ found that the video showing the cleaning of a filter was not an actual and accurate depiction of Murphy’s job duties. The WCJ further reasoned that since Dr. Brown relied on the video when making his determination, she could not place significant weight on his opinion.

The WCJ quoted a lengthy excerpt from Dr. Ballard’s deposition in which he stated that what he saw on the video was “fairly hand-intensive” and it was possible those hand movements caused the carpal tunnel syndrome. The WCJ also noted that Murphy was one of the most credible witnesses to have testified in her courtroom, and that her testimony regarding her job duties was supported by Smith and even by Todd Johnson, who testified on behalf of Graphic.

The WCJ found that Murphy’s carpal tunnel syndrome in both hands was an occupational disease. Graphic was ordered to pay for all workers compensation benefits owed because of the carpal tunnel syndrome.

DISCUSSION

Affidavit

The WCJ ruled that Smith was unavailable based on the efforts to take his deposition. The affidavit was made available to defense counsel on June 30, 2011. A deposition was set up for September 7, 2011, but was cancelled by Graphic. The company then attempted to depose Smith on [¿February 1, 2012, but he did not appear because a subpoena was not issued. A subpoena was issued for a February 13, 2012, deposition, but Smith again did not appear because the subpoena showed only the date, but not the time.

We find that Smith did not meet the definition of unavailability under La. C.E. art. 804. Murphy did not show that she had been unable to procure his presence at trial. All that was shown at trial was that Graphic had been unable to depose him because of the defects in the two subpoenas.

We recognize that relaxed rules of evidence apply to workers’ compensation proceedings. See La. R.S. 23:1317. Nevertheless, the WCJ abused its discretion in admitting this hearsay evidence on the grounds of unavailability. Furthermore, the affidavit was executed after Dr. Brown’s deposition and was clearly an attempt to undermine the basis of his conclusion. In any event, the admission of the affidavit was of little import as Murphy’s medical evidence was lacking.

Occupational Disease

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. La. R.S. 23:1031.1(B).

The claimant asserting an occupational disease must prove, by a preponderance of evidence, a disability related to an employment-related disease, that it was contracted during the course of employment, and that it is the result of the work performed. J.P. Morgan Chase v. Louis, 44,309 (La.App.2d Cir.5/13/09), 12 So.3d 440; Lee v. Schumpert, 36,733 (La.App.2d Cir.1/29/03), 836 So.2d 1214.

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; Shields v. GNB Technologies, Inc., 33,911 (La.App.2d Cir.10/4/00), 768 So.2d 774.

The claimant will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused it. Lee, supra. Expert testimony is required to support a finding of an occupational disease. Id.

In Fite v. Louisiana Title Co., 36,393 (La.App.2d Cir.10/24/03), 859 So.2d 259, writ denied, 2003-3230 (La.2/20/04), 866 So.2d 829, this court reversed a finding that Fite’s carpal tunnel syndrome and lateral epicondylitis were work-related. Fite, who was an abstractor, claimed that her job required her to pull large books and to write significant amounts. One of her treating physicians, Dr. Knight, opined that her injuries were work-related; the other treating physician concluded otherwise. The medical reports of Dr. Knight showed that he did not consider any detailed independent information regarding the particular responsibilities of Fite’s job that would have caused her symptoms. Rather, his conclusion was based on the job description provided by Fite. This court concluded, therefore, that Dr. Knight’s medical opinion lacked a sufficient and reasonable foundation to prove that Fite’s conditions were occupational diseases, especially in light of opinions to the contrary from another treating 17physician and the second medical opinion doctor. Accordingly, reliance on Dr. Knight’s medical opinion by the WCJ was unreasonable, which made the WCJ’s finding of an occupational disease manifestly erroneous.

The WCJ in this matter discounted Dr. Brown’s testimony because the WCJ did not find the video actually and accurately depicted Murphy’s job duties in that it failed to show the activities and extent of duties required to clean the filters.

The person shown in the video was a machine tender and he was cleaning the same filters that Murphy cleaned. The process of pulling the filter out of the tube, leaning the filter against a stand, and then using the hose to clean the filters that was shown in the video was the same process that she used. Murphy argued that the filters she cleaned were different in the sense that they were dirtier or had more wet paper or “stock” on them, and thus it would take more time to clean than shown in the video. Murphy estimated that it took a total of one hour to remove all nine filters, clean them, and then replace them.

Murphy also testified that the video did not show the machine tender using a pry bar to turn the cap to remove it and then using a pry bar to remove the filter, which she had to do when removing them. Murphy was not sure if she had any other disagreements with the video.

Murphy also said it sometimes took longer than five minutes to clean a filter. Although she testified at her deposition that she cleaned the filters once per shift, she argued at trial that she sometimes had to clean them more than once per shift on a frequent basis.

laTodd Johnson, a product engineer for Graphic, testified that:

• he was over the No. 5 paper machine for one year;
• he then worked as a shift supervisor for three years;
• his duties as a shift supervisor included the No. 5 paper machine;
• Murphy worked under him as a machine tender;
• machine tenders were required to clean the filters once per shift;
• the process involved loosening a cap, pulling the filter out, cleaning the filter, putting the filter back in, and tightening the cap;
• the video showed how a machine tender cleaned a filter;
• at times, a pry bar was needed to loosen the cap or the filter;
• it is not typical to take a full hour to clean all the filters;
• sometimes fiber would get inside the filter and plug it up;
• a plugged filter was not a common occurrence;
• the filter in the video did not look to be covered in stock, though it still appeared to have some debris on it;
• if one filter was covered in stock, then all nine filters would be;
• typically there is not much stock in the water, so usually there was little stock on the filters;
• a machine tender spends most of his shift in a control room where the machine is operated, only leaving the control room every two hours to record data and check gauges, or if the machine is having problems; and
• the videos did not accurately depict a full and true picture of the hand usages required of a machine tender.

Dr. Brown was told by counsel for Graphic that each of nine filters was cleaned during each shift. When he was asked if what was shown in the video could have caused the carpal tunnel syndrome, Dr. Brown replied that while it was the kind of activity that could cause carpal tunnel Rsyndrome if done continuously throughout the day, it would not cause the syndrome, if the duties were only performed once in a 12-hour shift.

The WCJ relied greatly on Dr. Ballard’s findings. He stated that his understanding was that whatever Murphy did, she did it repetitively over the course of the day. He further stated that Murphy had not told him how often she pulled and cleaned the filters. He added that carpal tunnel syndrome can have an etiology of repetitive motions, but the syndrome can also appear in persons having to pull very hard or lift something very heavy.

Dr. Ballard was shown the video of the machine tender cleaning the filter. He was told that nine filters were cleaned once per 12-hour shift. The WCJ quoted part of Dr. Ballard’s answer to a question of whether the filter cleaning shown in the video was the type of repetitive activity that could have caused her carpal tunnel syndrome:

That particular operation was fairly hand intense, you know, with the handling of the hose and the picking up and the putting down and the rotation. It was pretty hand intensive for that period of time. If he had 15 minutes to do that that would be a pretty strenuous workout for that period of time and only once in a shift I don’t know what else they would be doing there, but this is — I know I’m rambling, but I can’t say that oh, no, that’s not enough to cause carpal tunnel or oh, yes, it is. Now I will try to explain that a little bit.... The median nerve shares an enclosed space called a carpal tunnel with other structures such as tendons[.] And anything that makes that space smaller whether it be an injury, a traumatic event or anything that causes the tendons to swell or become irritated will put pressure on that nerve and that’s what carpal tunnel is, so if this fairly hand-intensive thing over that period of time irritates the tendons it is possible that that could do it.

The WCJ neglected to quote the conclusion to that answer when Dr. Ballard stated, with our emphasis added:

ImThere are people who do things much more strenuous than this that don’t have carpal tunnel, so again if you do something extremely intense for a very short period of time — five, 10 minutes, it can irritate that wrist and that wrist can set off carpal tunnel, so I know I’m dancing around, but I cannot say oh, yes, that did or no, that did not.

Dr. Ballard admitted that he could not agree or disagree with Dr. Brown’s opinion that cleaning the filters once per 12-hour shift would not have caused her carpal tunnel syndrome.

Dr. Ballard answered that he could not say one way or the other after watching the video.

In sum, Dr. Ballard gave neutral answers, and Dr. Brown opined that what he saw in the video would not cause carpal tunnel syndrome if done only once during a 12-hour shift.

There was no expert evidence supporting the finding of Murphy’s carpal tunnel syndrome being an occupational disease; therefore, that finding was clearly wrong.

DECREE

At Murphy’s cost, the judgment is REVERSED.

      . Dr. Brown had performed shoulder surgery on Murphy in the 1990s for a work-related claim.