text:
    STATE of Louisiana v. Michael DAVIS.
    No. 13-KA-495.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Edward C. Milner, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, Louisiana, for PlaintiffiAppellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON and ROBERT M. MURPHY.
   MARC E. JOHNSON, Judge.

| ¡¿Defendant, Michael Davis, appeals his conviction and sentence for second degree murder, claiming the evidence was insufficient to establish his identity as the perpetrator of the offense and claiming various trial court errors. For the reasons that follow, we affirm.

On February 25, 2013, Defendant was indicted and charged with the second degree murder of Reginal Anthony in violation of La. R.S. 14:30.1. He pled not guilty and proceeded to trial on September 25, 2012. After a two-day trial, a 12-person jury found Defendant guilty as charged. The trial court subsequently sentenced Defendant to life imprisonment without benefit of parole, probation or |3suspension of sentence. Defendant timely appealed and raised four assignments of error.

FACTS

In October 2009, Sonora Williams resided on Millender Drive in the Lincolnshire subdivision in Marrero with his mother and siblings. Around 12:00 p.m. on October 12, 2009, Williams left his residence to walk his girlfriend home to a nearby subdivision. While walking down Millender Dr., Williams encountered Jerry Davis and Myro Videau, two men with whom he was acquainted from the neighborhood. The two men stared at Williams, which prompted Williams to reach toward his back pocket, feigning as if he had a gun. The two men then proceeded to a nearby store. As Williams continued, he noticed the two men staring at him again, nodding their heads. Eventually, Williams dropped his girlfriend off and stayed in her neighborhood for the rest of the day, until nightfall.

Later that night, Williams received a call from his girlfriend, telling him that his friend, the victim, was looking for him. Williams returned to his girlfriend’s house where the victim was waiting for him. Williams and the victim then left and proceeded to Williams’ house. There, they hung out together, playing games and watching television, until they walked to the corner store for beer. On their way back home from the store, Williams recognized a green car that turned onto Millen-der Dr. He feared Jerry Davis, who he had seen earlier that day, was in the car so he told the victim to keep walking. Davis was not in the car, but it contained four passengers, one of whom Williams recognized as Defendant. Williams explained that he knew Defendant from around Lin-colnshire.

As Williams and the victim continued walking, Defendant exited the car and started shooting, discharging 11 or 12 rounds. Williams ran. When he looked back, he saw the victim return fire once or twice. Williams continued to run when |4he saw another individual, clad in all black, appear from between two houses and open fire. Williams stated he could not clearly see the face of the second shooter, but suspected it was Jerry Davis.

Williams made it inside his home, but soon realized the victim was not with him. He looked out his front window and saw the victim lying on the ground. Williams called 911 and then ran to his girlfriend’s house where he felt safer. From there, his sister picked him up and brought him to her house. Williams then called the police, who picked him up and brought him to the detective bureau.

Williams gave two recorded statements to the police and identified Defendant from a photographic lineup as the gunman. Based on Williams’ identification, an arrest warrant was issued for Defendant.

Deputy Steven Dorsey of the Jefferson Parish Sheriffs Office responded to the scene on Millender Dr. at approximately 9:45 p.m. on the night of the shooting. Upon his arrival, Deputy Dorsey observed a lifeless young black male on the ground with a pistol in his right hand. An autopsy revealed the victim sustained a gunshot wound in which a bullet had entered the right side of his back, perforated both his lungs and heart, and exited the left side of his body. There was no stippling, which indicated the weapon was not discharged at close range.

Twelve 40-caliber casings and four projectile fragments were recovered from the scene. It was determined that all 12 casings were fired from the same weapon, believed to be a Glock firearm. One of the four projectile fragments was a .38-caliber projectile consistent with having been fired from a High-Point firearm, and two of the other fragments were consistent with having been fired from a Glock firearm. It was determined that the .9-mm handgun recovered from the victim did not fire the 40-caliber casings, but it could have fired the one .38-caliber projectile.

|sOne month after the shooting, on November 21, 2009, after a standoff with police, Defendant was arrested in Marrero. After being advised of his rights, Defendant gave a recorded statement in which he denied shooting the victim. He explained that on the night of the shooting, he accompanied his friend, Iriemme Wind-mon, and her teenage son to Burger King and then to a convenience store before proceeding to her house. He stated that while he was at Windmon’s house, someone knocked on the door and informed him that the victim had been killed.

DISCUSSION

Denial of Motion for Post-Verdict Judgment of Acquittal

In his second assignment of error, Defendant contends the trial court erred in denying his motion for post-verdict judgment of acquittal on the basis the evidence was insufficient to support the verdict.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

This directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact’s rational credibility calls, evidence weighing, and inference drawing. State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09); 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10); 27 So.3d 297. This deference to the fact-finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is | (¡contrary to the weight of the evidence. Id. As a result, under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at the trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08); 985 So.2d 234, 240.

In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Caffrey, 15 So.3d at 202. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04); 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04); 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La.App. 5 Cir. 3/11/08); 982 So.2d 146, 153, writ denied, 08-987 (La.1/30/09), 999 So.2d 745.

Defendant was charged with and convicted of second degree murder in violation of La. R.S. 14:30.1. Second degree murder is defined, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. State v. Seals, 09-1089 (La.App. 5 Cir. 12/29/11); 83 So.3d 285, 306, writ denied, 12-293 (La.10/26/12); 99 So.3d 53, cert. denied, _ U.S. _, 133 S.Ct. 2796, 186 L.Ed.2d 863 (2013) (citing La. R.S. 14:10(1)). The determination of specific intent is a question of fact. Id., 83 So.3d at 306. Specific intent may be inferred from the circumstances and from the defendant’s actions, and the intent to kill or to inflict great bodily harm may be inferred from the extent and severity of the victim’s injuries. Id. Further, a specific intent to kill may be inferred from the intentional use of a deadly weapon such as a knife or gun. State v. Cochran, 09-85 (La.App. 5 Cir. 6/23/09); 19 So.3d 497, 508, writ denied, 09-1742 (La.3/26/10); 29 So.3d 1249.

In the present case, Defendant does not challenge the sufficiency of the evidence as to the elements of second degree murder, but rather challenges the sufficiency of the evidence establishing him as the perpetrator.

In addition to proving each statutory element of the crime charged, the State must also prove the identity of the perpetrator. State v. Williams, 08-272 (La.App. 5 Cir. 12/16/08); 3 So.3d 526, 529, writ denied, 09-143 (La.10/16/09); 19 So.3d 470. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id. Positive identification by only one witness is sufficient to support a conviction. Id.

To prove Defendant’s identity as the perpetrator of the crime, the State introduced the testimony of Williams, an eyewitness to the victim’s murder. Williams testified that he knew Defendant from the neighborhood and that he saw Defendant exit the car and discharge his weapon eleven or twelve times. Twelve .40-caliber casings, all fired from the same gun, were recovered from the scene. Williams subsequently identified Defendant as the perpetrator from a photographic lineup as well as in open court. We find this evidence sufficiently negates any reasonable probability of misidentification and, thus, the State carried its burden of proving beyond a reasonable doubt that Defendant perpetrated this crime.

| ^Defendant argues that Williams’ testimony was insufficient to support the verdict because he was not credible due to the fact that his trial testimony was inconsistent with his prior statements and grand jury testimony. Williams’ prior statements and grand jury testimony are not included in the appellate record. Nonetheless, we note that it is apparent from Williams’ cross-examination that the alleged inconsistencies concerned tangential details. For instance, defense counsel claimed that Williams had testified before the grand jury that the victim had been dropped off at Williams’ house, while at trial Williams testified that he and the victim proceeded to his house together. Defense counsel also pointed out that in Williams’ statements to the police and in his grand jury testimony, he stated that the green car had been parked on the street for five minutes, but at trial Williams testified that he observed the car turn onto Millender Dr. Further, defense counsel pointed out that Williams acknowledged that his testimony during direct examination was incorrect regarding the number of people in the car. On direct examination, Williams testified that he observed three people inside the car; however, on cross-examination, he amended his testimony in accordance with his statements to the police that there were four people in the car on the night of the shooting.

Through cross-examination, the jury was made aware of these various inconsistencies; yet, in returning a guilty verdict, the jurors clearly found Williams’ trial testimony credible. It is not this Court’s function to evaluate the credibility of witnesses. Positive identification by only one witness is sufficient to support a conviction. Viewing the evidence in the light most favorable to the prosecution, we find the evidence was sufficient for any rational trier of fact to have found ^Defendant guilty beyond a reasonable doubt. Thus, we find no error in the trial court’s denial of Defendant’s motion for post-verdict judgment of acquittal.

Denial of Motion for New Trial

In Defendant’s first assignment of error, he argues the trial court erred in denying his motion for new trial, which was based on four grounds: (1) the verdict was contrary to the law and evidence; (2) the trial court erred in granting the State’s motion in limine; (3) new and material evidence was discovered after trial which probably would have changed the verdict; and (4) the ends of justice would be served by granting a new trial. On appeal, Defendant only seeks review of the trial court’s denial of his motion on the second and third grounds, namely the grant of the State’s motion in limine and newly discovered evidence.

Pursuant to La.C.Cr.P. art. 851, a motion for new trial is based upon the supposition that an injustice has been done to the defendant, and unless such injustice is shown, the new trial motion shall be denied no matter upon what allegations the motion is grounded. State v. Bazley, 09-358 (La.App. 5 Cir. 1/11/11); 60 So.3d 7, 19, writ denied, 11-282 (La.6/17/11); 63 So.3d 1039. Further, on appeal, a trial judge’s ruling on a motion for new trial will not be disturbed absent a clear showing of an abuse of discretion. State v. Richoux, 11-1112 (La.App. 5 Cir. 9/11/12); 101 So.3d 483, 490, writ denied, 12-2215 (La.4/1/13); 110 So.3d 139.

Defendant first argues that the trial court erred in denying his motion for new trial on the basis it erred in granting the State’s motion in limine, which precluded him from introducing any evidence of the dismissal of the charges against his brother and co-defendant, Jerry Davis. The State contends that under the “law of the case” doctrine, Defendant is not entitled to relief because this Court previously addressed this issue in a supervisory writ application.

| inPrior to trial, the State filed a motion in limine seeking to prevent Defendant from eliciting testimony regarding the dismissal of the charge against Jerry Davis. The trial court granted the motion. Defendant sought supervisory review of this ruling, and this Court denied relief with the following disposition:

In its complained of ruling, the trial court restrained the defense only from cross-examining the witness Sonora Williams regarding the state’s dismissal of the Jerry Davis ease. The trial court did not restrain the Sonora Williams cross-examination as to his identification of both Jerry Davis and defendant, Michael Davis, as the shooter. While the witness’ identification of Jerry Davis as the shooter is relevant, the state’s decision to dismiss its case against Jerry Davis is not. See State v. Weaver, 38, 322 (La.App. 2 Cir. 5/12/04), 873 So.2d 909; State v. Spencer, 374 So.2d 1195 (La.1979); and Garner v. State of Mississippi, 02-00391 (Miss.App.10/14/03), 856 So.2d 729.

State v. Davis, 12-723 (La.App. 5 Cir. 9/25/12) (unpublished writ disposition). The Louisiana Supreme Court subsequently denied writs. State v. Davis, 12-2108 (La.9/26/12); 98 So.3d 822.

Under the “law of the case” doctrine, an appellate court will generally not reconsider its own rulings of law on a subsequent appeal in the same case. State v. Wallace, 12-594 (La.App. 5 Cir. 2/21/13); 110 So.3d 1199, 1202, writ denied, 123 So.3d 1217 (La.10/11/13). The “law of the case” doctrine is discretionary. Id. Reconsideration of a prior ruling may be warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. Id.

In the present case, Defendant does not allege nor does the record reveal any new evidence that, indicates this Court’s previous ruling was patently erroneous or produced unjust results. Accordingly, we decline to reconsider our previous ruling. Since we have determined the trial court did not err in granting the State’s motion in limine, we likewise find the trial court did not abuse its discretion in denying Defendant’s motion for new trial on this basis.

| ^Defendant next argues that the trial court erred in denying his motion for new trial because defense counsel discovered evidence after trial that probably would have changed the guilty verdict.

In his motion for new trial, Defendant argued he was entitled to a new trial based on the discovery of evidence that corroborated his alibi. In particular, Defendant asserted that in his statement to police, he stated he was with Iriemme Windmon at a local Burger King at the time of the shooting. Although the defense investigated this alibi prior to trial, its efforts failed to reveal any corroborating evidence. Defendant claimed that after trial, defense counsel was approached by a family member who managed to get Ms. Windmon to obtain her bank records, which indicated a charge for Burger King on the day of the shooting. Defendant argued he was entitled to a new trial based on the discovery of these records. In support of his motion, Defendant attached the bank records and two sworn affidavits by defense counsel and the defense investigator asserting that Ms. Windmon could not obtain the relevant bank records prior to trial.

The trial court denied the motion for new trial, stating that Ms. Windmon could have been called to testify that she was at the Burger King on the night of the shooting even without the documentation. The trial court noted that the submitted documents did not indicate the time at which Ms. Windmon made a purchase at Burger King.

Under La.C.Cr.P. art. 851(3), a new trial shall be granted when

[n]ew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

In order for a new trial to be granted based on newly discovered evidence, the evidence must have been discovered since the trial; the failure to learn of the 112evidence at the time of trial was not due to the defendant’s lack of diligence; the evidence must be material to the issues at trial; and the evidence must be of such a nature that it would probably produce an acquittal in the event of a retrial. Bazley, 60 So.3d at 21.

We find Defendant failed to satisfy all the requirements necessary to obtain a new trial based on newly discovered evidence. The record shows Defendant gave his statement to the police on November 12, 2009. He was indicted on February 25, 2010, and trial commenced on September 25, 2012. The State provided the defense with Defendant’s statement on August 16, 2010. Thus, the defense had more than two years before trial to investigate Defendant’s alibi, including the opportunity to obtain Ms. Windmon’s bank statement. Defendant has not offered any reason why he could not obtain a standard bank statement in a span of more than two years. Accordingly, we find Defendant has not demonstrated that his failure to learn of the evidence at the time of trial was not due to his lack of diligence.

Furthermore, we find Defendant has not shown the bank statement is of such a nature that it would probably produce an acquittal in the event of a retrial. The bank statement only reflects that a purchase was made at a Burger King with a debit card in the name of Ms. Windmon on October 12, 2009. The statement does not indicate who made the purchase, the time at which the purchase was made, or that the Burger King was located at such a distance from the scene that Defendant would not have been able to be at the scene at the time of the murder. Thus, we find the probative value of the bank statement to be minimal and probably would not have changed the guilty verdict, especially since Defendant was identified by an eyewitness to the crime as the perpetrator.

[! 3Accordingly, we find the trial court did not abuse its discretion in denying Defendant’s motion for new trial on the basis of newly discovered evidence.

Denial of Motion to View the■ Crime Scene

In Defendant’s third assignment of error, he argues the trial court erred in denying his motion to view the crime scene. Prior to trial, Defendant filed a “Motion for Jury to View the Scene,” under La.C.Cr.P. art. 762(2), and requested that the jury be allowed to view the crime scene because the photographs did not accurately depict the scene. The trial court denied the motion, noting that the scene is likely to have changed over time and may include overgrown vegetation or parked vehicles affecting the lines of sight that were not present at the time of the murder.

Under La.C.Cr.P. art. 762(2), sessions of court may be held at places within the parish other than the courthouse at the discretion of the court to “allow the jury or judge to view the place where the crime or any material part thereof is alleged to have occurred, or to view an object which is admissible in evidence but which is difficult to produce in court.” The decision to grant or deny a motion to have the jury view the scene of the crime is within the sound discretion of the trial court, and such a ruling will not be disturbed on appeal absent an abuse of that discretion. State v. Moore, 432 So.2d 209, 216 (La.1983), cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983).

In State v. Johnson, 294 So.2d 229, 230 (La.1974), the Louisiana Supreme Court found no error in the trial court’s denial of the defendant’s motion to view a burglary scene, where photographs and testimony sufficiently conveyed the relevant information. The supreme court reasoned: “We see no reason why the orderly progress of a trial should be disrupted in order to have the jury view a [ particular scene where the same information can be imparted to the jury through the use of photographs and other evidence.” Id.

In the instant case, the jury was presented with numerous photographs, a crime scene sketch, and extensive testimony detailing the scene of the crime. The photographs in conjunction with the sketch clearly reveal the layout of the scene. And, although the sketch is not drawn to scale, it indicates the relative locations of evidence as well as distances between the victim’s body and several fixed points. A review of the record and exhibits fails to demonstrate that the relevant information of this crime scene could not be accurately conveyed via the photographs, the sketch, and testimony. Additionally, it does not appear that a visit to the scene nearly three years after the offense would have been any more informative than reviewing the evidence introduced at trial. Accordingly, we find no abuse of discretion in the trial court’s denial of Defendant’s motion.

Crime Scene Sketch

In Defendant’s fourth and final assignment of error, he contends the trial court erred in allowing the jury to review the crime scene sketch during deliberations. He argues this was error because the sketch was not drawn to scale, which would permit jurors to draw incorrect inferences regarding the distances of items to each other. The State responds that the sketch was a non-testimonial exhibit which contained no verbal content and, thus, the jury was allowed to view it during deliberations under La.C.Cr.P. art. 793.

After retiring for deliberation, the jury requested to view the exhibits. The court allowed the jury to view all the exhibits except the crime scene sketch. The jurors then requested the sketch, which the trial court provided to them over Defendant’s objection.

11fiLouisiana Code of Criminal Procedure Article 793(A) provides in pertinent part: “Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.” The general rule as expressed by Article 793 is that the jury is not to inspect written evidence except for the sole purpose of a physical examination of the document itself to determine an issue which does not require the examination of the verbal contents of the document. State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94); 636 So.2d 1069, 1081, writ denied, 94-1361 (La.11/4/94); 644 So.2d 1055.

The Louisiana Supreme Court has held that a map or model may be reviewed by the jury during deliberations. State v. McKinney, 174 La. 214, 140 So. 27, 28 (La.1932). The court explained:

Now a plan, plat, map, picture, photograph, or model, is simply a miniature reproduction of the physical object, or thing, which it represents; and is intended for the convenience and information of those who might otherwise wish, or be obliged, to inspect the object or thing itself. Hence whenever any plat, photograph, model, etc., is offered in evidence, it is as if the thing itself which it represents had been offered in evidence. And since, by the very terms of the Code, the jury ‘may take with them when they retire to deliberate any object * * * that requires a physical examination to enable them to arrive at a just conclusion,’ it follows that they may also take with them the miniature reproduction of such object produced for their convenience and information.

Id.

We find the sketch at issue is essentially a map or model of the crime scene. As a computer-generated sketch, it depicts, in miniature form, the relative locations of the physical evidence at the scene. And, even though the sketch is not to scale, it specifies distances between several fixed points and evidence. Further, the jury was made aware that the sketch was not to scale and viewed the sketch in | ^conjunction with the photographs of the scene. Thus, any possible misinterpretations of the sketch were minimized.

We find our ruling in State v. Lyles, 03-141 (La.App. 5 Cir. 9/16/03); 858 So.2d 35, to be distinguishable from the present case. In Lyles, we found the trial court erred in allowing the jury to view a hand-drawn diagram during deliberations. The diagram was drawn by the victim during her trial testimony and depicted the layout of the room where the offense of indecent behavior with a juvenile had occurred and the location of other individuals in the room, including the defendant. Thus, we found that the jury viewed the diagram for its verbal contents, i.e., the victim’s testimony regarding the description of the room and its occupants. In the present case, the crime scene sketch did not represent witness testimony, but rather it represented objective facts. Nonetheless, in Lyles, we found any error was harmless because the diagram did not depict what occurred and did not bear directly on an element of the crime. Id. at 49.

Additionally, we find the instant case distinguishable from State v. Calloway, 00-1230 (La.App. 5 Cir. 2/28/01); 781 So.2d 849. In Calloway, the jury was allowed to view during deliberations a map of the area and a diagram of the apartment where the murders had occurred. Unlike the present case, the map and diagram in Calloway had been annotated by witnesses. Without specifically addressing whether allowing the jurors to view the map and diagram was error, this Court determined any error was harmless since neither document related to the identification of the defendant, to his alibi defense, or to any other significant issue. Similarly, even if we were to determine in the instant case that the viewing of the crime scene sketch by the jury during deliberations was error, it would be harmless because the sketch did not relate to the identification of Defendant, to his alibi defense, or to any other significant issue.

\,.ERRORS PATENT

In accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990), we have reviewed the record for errors patent and find none that require corrective action.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence for second degree murder are affirmed. We find the evidence sufficiently establishes Defendant’s identity as the perpetrator of the offense. Additionally, we find no error in the trial court’s denial of Defendant’s motion for new trial based on its granting of the State’s motion in limine or based on Defendant’s claim of newly discovered evidence. Further, we find no error in the trial court’s denial of Defendant’s motion for the jury to view the crime scene, or in the trial court’s allowing the jury to view the crime scene sketch during deliberations.

CONVICTION AND SENTENCE AFFIRMED.

      . We address the issue of sufficiency of the evidence first as directed by State v. Hearold, 603 So.2d 731, 734 (La.1992), because if the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary.

      . Before the commencement of trial, the court indicated that Defendant was being prosecuted pursuant to the specific intent theory of second degree murder.

      . While the record indicates Williams gave two recorded statements to the police following the murder, the statements were not introduced into evidence.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Shawn MURPHY.
    No. 13-KA-509.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Scott U. Sehlegel, Jennifer Z. Rosenbach, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney At Law, Louisiana Appellate Project, Thibodaux, Louisiana, For Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

12Pefendant, Shawn Murphy, pled guilty to possession of cocaine in violation of La. R.S. 40:967(C) pursuant to State v. Crosby. In his first appeal, this Court found that the trial court erred in denying defendant’s suppression motions without an evi-dentiary hearing and remanded the matter to the trial court to conduct a hearing on defendant’s motions to suppress. In this second appeal, defendant contends he has been deprived of his right to appellate review due to a malfunctioning of the court reporter’s recording equipment during the suppression hearing, resulting in the omission of portions of the hearing transcript. We agree. Accordingly, we vacate the trial court’s judgment denying defendant’s motion to suppress and remand this matter to the trial court for a new, fully-recorded hearing on defendant’s motion to suppress.

STATEMENT OF THE CASE

The Jefferson Parish District Attorney’s Office filed a bill of information on February 7, 2008, charging defendant with possession of cocaine in violation of La. R.S. 40:967(C). On August 28, 2008, defendant filed standard pre-trial motions, including motions to suppress the evidence, statements, and identification, which the trial court denied, without a hearing, as untimely under La.C.Cr.P. art. 521.

On October 21, 2008, defendant pled guilty to possession of cocaine pursuant to State v. Crosby, supra. The trial court sentenced defendant to five years imprisonment at hard labor. On that same date, the state filed a multiple offender bill of information. Defendant admitted to the allegations in the multiple bill and the trial court adjudicated defendant a second felony offender. The trial judge vacated defendant’s original sentence and sentenced defendant to ten years imprisonment at hard labor.

In his first appeal, defendant alleged that the trial court erred in denying his pre-trial motions without an evidentiary hearing and without “first ascertaining that a legal, factual basis existed to support” his guilty plea. This Court, finding that the trial court erred in dismissing defendant’s suppression motions without an evidentiary hearing, remanded the matter to the trial court for a suppression hearing. State v. Murphy, 09-139 (La.App. 5 Cir. 10/27/09), 28 So.3d 388, 391. On February 10, 2010, the trial court conducted an evidentiary hearing on defendant’s motion to suppress. Defendant sought an out-of-time appeal and, on October 8, 2012, the Louisiana Supreme Court ordered the trial court to grant defendant an out-of-time appeal pursuant to State v. Counterman, 475 So.2d 336, 340 (La.1985) and to appoint appellate counsel.

DISCUSSION

In his sole assignment of error, defendant does not challenge the trial court’s denial of his motion to suppress or raise arguments concerning the merits of the trial court’s judgment denying his motion to suppress. Rather, defendant contends that his right to appellate review has been violated due to the malfunctioning of the trial court reporter’s equipment, which resulted in the omission of portions of the suppression hearing transcript.

In this appeal, appointed appellate counsel submits that defendant is entitled to appellate review of the trial court’s judgment, but indicates that “it is impossible for this issue to be reviewed by this attorney or this Court due to the record being incomplete.” Upon review of the record in this matter, we agree.

The February 10, 2010 minute entry indicates that only one witness, Detective Shane Klein, testified at the suppression hearing. The transcript reflects the direct examination of Detective Klein and a portion of the cross-examination by defendant’s trial counsel. However, according to a notation in the transcript, the court reporter’s recording system malfunctioned during the cross-examination of Detective Klein and no further audio was recorded. The transcript clearly does [ ñnot reflect the entirety of the cross-examination by defense counsel, any re-direct examination by the state, any subsequent arguments made by counsel, or the trial judge’s ruling and any reasons therefor.

Both the Louisiana Supreme Court and the United States Supreme Court have made clear that a criminal defendant has a right to a complete transcript of the trial proceedings, particularly where, as in this case, appellate counsel was not also trial counsel. State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001); State v. Lampkin, 12-391 (La.App. 5 Cir. 5/16/13), 119 So.3d 158, 166. Under Louisiana law, a criminal defendant is constitutionally guaranteed the right of appeal based upon a “complete record of all evidence upon which the judgment is based.” La. Const. Art. I, § 19. Further, La.C.Cr.P. art. 843 requires, in all felony cases, the recording of “all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.”

An inconsequential omission or slight inaccuracy which is immaterial to a proper determination of the appeal does not require reversal or remand. Lampkin, 119 So.3d at 166. Further, “[a] defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcript.” Id. However, the Louisiana Supreme Court has stated that, “where a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded a new, fully-recorded trial.” State v. Ford, 338 So.2d 107, 110 (La.1976). Without a complete record from which a transcript for appeal may be prepared, a defendant’s right of appellate review is rendered meaningless. State v. Thetford, 445 So.2d 128 (La.App. 3rd Cir.1984); State v. Ford, supra.

A review of the record in this case clearly reflects that material portions of the suppression hearing, pertinent to the issue on appeal, are omitted from the transcript. Appointed appellate counsel has stated to this Court that the issues pertinent to defendant’s appeal cannot be reviewed based upon the incomplete transcript in this record. Upon a review of the record, we agree that we cannot review the merits of defendant’s appeal because of the incomplete transcript.

Accordingly, we vacate the trial court’s judgment on defendant’s motion to suppress and remand this matter to the trial court for a new, fully recorded hearing on defendant’s motion. If the trial judge grants defendant’s motion after a new evi-dentiary hearing, the trial judge is required to vacate defendant’s guilty plea. However, if the trial judge again denies defendant’s motion to suppress, defendant maintains his right to seek appellate review of that judgment. See State v. Archie, 462 So.2d 248 (La.App. 4th Cir.1984).

This matter is remanded to the trial court for further proceedings consistent with this opinion.

JUDGMENT VACATED; MATTER REMANDED.

      . 338 So.2d 584 (La.1976).

      . See State v. Murphy, 09-139 (La.App. 5 Cir. 10/27/09), 28 So.3d 388.

      . Defendant’s prior trial counsel filed omnibus pre-trial motions, including a motion to suppress, on February 19, 2008, which the trial court dismissed without a hearing.

      . La.C.Cr.P. art. 521 states that all "pretrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate [;] ” "[ujpon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.” La.C.Cr.P. art. 521.

      . Defendant admitted to the predicate offense of distribution of a controlled dangerous substance — cocaine—in violation of La. R.S. 40:967(A).

      . This Court found:
      [Defendant entered his guilty plea in the present case reserving his right to appeal the issue of whether the evidence against him was lawfully seized, and whether is [sic] would be admissible at trial, in addition to the issue of whether the court erred in dismissing his motions without a hearing. Because the trial court dismissed defendant's motions to suppress, it did not rule on the admissibility of the evidence. State v. Murphy, 28 So.3d at 390.

      . The trial court heard defendant's motion to suppress the evidence on February 10, 2010. Defense counsel did not object to the lack of hearing on any other outstanding pre-trial motions.

      . On June 3, 2011, the trial court denied defendant’s application for post-conviction relief seeking an out-of-time appeal. On July 29, 2011, this Court denied relator's writ application for failure to comply with the Uniform Rules, Courts of Appeal. Defendant applied for writ to the Louisiana Supreme Court, which granted defendant’s application in part and remanded the matter to the trial court.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Brad ENGEL.
    No. 13-KA-519.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Thibodaux, LA, for Appellant, Brad Engel.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and STEPHEN J. WINDHORST.
   SUSAN M. CHEHARDY, Chief Judge.

| gin this case, defendant pled guilty to two counts of sexual battery, violations of La. R.S. 14:43.1. On defendant’s application for supervisory writs, after denial of his motion by the district court, this court ordered the district court to grant defendant’s motion for an out-of-time appeal. Because the record discloses a jurisdictional defect, the defendant’s convictions and sentences are set aside and the case is remanded to the district court.

PROCEDURAL HISTORY

On October 20, 2010, the Jefferson Parish District Attorney filed a bill of information, charging defendant, Brad Engel, with two counts of sexual battery, in violation of La. R.S. 14:43.1. On May 13, 2011, defendant withdrew his former pleas and tendered a plea of guilty as charged on both counts. On May 16, 2011, pursuant to the plea agreement that is set forth in the record, the trial court sentenced defendant to concurrent sentences of 30 years at hard labor, without benefit of parole, probation, or suspension of sentence for the first 25 years.

| ¡¡ERROR PATENT DISCUSSION

On appeal, defendant raises one assignment of error for review, which we preter-mit, because our review reveals reversible error discoverable by mere inspection of the pleadings and proceedings. La. C.Cr.P. art. 920.

In this case, the record reflects that the instant prosecution was instituted by bill of information charging defendant with two counts of sexual battery, in violation of La. R.S. 14:43.1. Article I, § 15 of the Louisiana Constitution of 1974 provides that “no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury.” Similarly, La.C.Cr.P. art. 382(A) provides that a prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury.

At the time of the offenses, the crime of sexual battery, where the victim was under the age of thirteen and the offender was over the age of seventeen, was punishable by life imprisonment. Here, at the relevant time, the victim was under the age of thirteen and defendant was 32 years old; thus, prosecution for the charged offenses can only be instituted by grand jury indictment.

The failure to proceed by grand jury indictment on offenses punishable by life imprisonment is a fatal defect. See, State v. Donahue, 355 So.2d 247 (La.1978); State v. Bates, 11-721 (La.App. 5 Cir. 3/27/13), 113 So.3d 411, 412-14; State v. Underdonk, 11-1598 (La.App. 1 Cir. 3/23/12), 92 So.3d 369, 373-74 writ denied, 12-0910 (La.10/8/12), 98 So.3d 848. This defect may not be waived by a Ldefendant’s guilty plea or failure to raise it in the lower court or on appeal. State v. Donahue, 355 So.2d 247, 249 n. 3 (La.1978) (failure to institute prosecution by indictment where required is reversible error, which can be raised at any time).

In State v. Bates, 11-721 (La.App. 5 Cir. 3/27/13), 113 So.3d 411, 412-14, this Court vacated defendant’s conviction by a twelve-person jury for sexual battery because the prosecution was not instituted by grand jury indictment. Here, defendant’s conviction was obtained by guilty plea. We do not find that distinction to be significant. It was reversible error for the trial court to allow defendant to enter pleas of guilty on the basis of a void bill of information. The convictions and sentences based on an invalid bill of information charging offenses that can only be instituted by grand jury indictment must be set aside.

Having found error requiring the conviction to be set aside, review of defendant’s assignment of error is unnecessary.

DECREE

While this Court regrets distress to the victim, we are compelled, because the State failed to properly institute prosecution in this matter, to set aside defendant’s convictions and sentences. We further order that, pursuant to La.C.Cr.P. art. 538, defendant is to be held in custody or his bail be continued for a period of 60 days from the date the judgment of this Court becomes final, pending the filing of a grand jury indictment, absent which the defendant should be discharged.

CONVICTIONS AND SENTENCES REVERSED.

      . At the time of the offenses that defendant is charged with committing, La. R.S. 14:43.1(C)(2) read:
      Whoever commits the crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. (Emphasis added).

      . This is a right which guarantees that no person shall be charged of certain crimes except by a group of his fellow citizens acting independently of the district attorney or a judge. State v. Davis, 385 So.2d 193 (La.1980). See also, State v. Green, 347 So.2d 229 (La.1977); State v. Thomas, 461 So.2d 332 (La.App. 2 Cir.1984); State v. Gary, 445 So.2d 200 (La.App. 3 Cir.1984); State v. Lott, 434 So.2d 1274 (La.App. 1 Cir.1983); State v. Smith, 542 So.2d 175 (La.App. 1 Cir.1989).


author: CHAISSON, Judge.

text:
    PIERCE FOUNDATIONS INC. v. JAROY CONSTRUCTION INC.
    No. 13-CA-529.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.
    Timothy G. Schafer, Attorney at Law, New Orleans, LA, for Plaintiff/App ellee.
    Lloyd N. Shields, Elizabeth L. Gordon, Ashley B. Robinson, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   CHAISSON, Judge.

12This is a suit by a subcontractor against the general contractor and its statutory bond surety for monies owed under the subcontract. The Ohio Casualty Insurance Company (“Ohio Casualty”), the statutory bond surety, appeals from a judgment finding it liable to Pierce Foundations, Inc. (“Pierce”), the subcontractor, for monies owed under the subcontract. Pierce answered the appeal seeking modification of the date on which interest began to accrue on the judgment. We dismiss the appeal as premature due to the district court’s failure to rule on a pending motion for new trial.

FACTS AND PROCEDURAL HISTORY

Pierce entered into a written contract with JaRoy Construction, Inc. (“JaRoy”), to provide and install pilings for Jefferson Parish’s “Terrytown Gymnasium” project. During the course of the construction, Pierce filed suit against JaRoy alleging that it was owed additional monies under the subcontract. Pierce later added Ohio Casualty as a defendant, alleging that, as the surety of JaRoy under a construction bond, it guaranteed the performance of JaRoy under the contract and therefore was jointly and severally liable with JaRoy for the | ..¡additional monies owed under the subcontract. In response, Ohio Casualty alleged that Pierce had no cause of action against it because Pierce had failed to timely perfect its lien on the project pursuant to the Louisiana Public Works Act.

On December 13, 2012, after a trial on the merits, the district court rendered judgment in favor of Pierce and against Ohio Casualty, awarding Pierce additional monies under the subcontract. On February 7, 2013, after a hearing on a motion for partial new trial filed by Pierce, the district court amended the judgment to modify the date on which interest began to accrue on the judgment. On February 20, 2013, Pierce filed a second motion for partial new trial, again seeking a modification of the date on which interest began to accrue. On February 21, 2013, the district court, without a hearing or notice to Ohio Casualty, issued a second amended judgment which not only again modified the date on which interest began to accrue, but also held Ohio Casualty liable for additional principal sums. Also on that date, the district court marked the order requesting a hearing on Pierce’s second motion for partial new trial as “moot”.

On March 1, 2013, Ohio Casualty filed a motion for suspensive appeal. On the same date, Ohio Casualty also filed a motion for new trial seeking to have the February 21, 2013 judgment declared a nullity due to the district court’s failure to provide notice to Ohio Casualty, or an opportunity to be heard, before it issued the second amended judgment. On March 7, 2013, the district court signed an order of appeal. On March 11, 2013, Pierce filed a motion to strike Ohio Casualty’s motion for appeal as premature, due to the district court’s alleged failure to first rule on Pierce’s second motion for partial new trial. Pierce also requested that Ohio Casualty’s motion for new trial be declared moot. At a hearing on March 18, 2013, the district court, apparently under the impression that he was divested of [Jurisdiction due to the filing of a motion for appeal, continued all of the pending motions without date until resolution of the appeal.

DISCUSSION

La. C.C.P. art. 2123(C) provides that “[a]n order of appeal is premature if granted before the court disposes of all timely filed motions for new trial ...” Ohio Casualty’s motion for a new trial filed on March 1, 2013, was timely filed. The record does not reflect, either by transcript, by minute entry, or by written judgment, that Ohio Casualty’s motion for new trial has ever been disposed of. The March 18, 2013 minute entry indicates that its motion for new trial was continued without date. Therefore, Ohio Casualty’s motion for new trial was pending before the district court on March 7, 2013, when he signed the order of appeal, rendering the order of appeal premature.

La. C.C.P. art. 2088 provides that the jurisdiction of the appellate court attaches on the granting of the order of appeal. It is evident that if the order of appeal is premature, the jurisdiction of the appellate court does not attach. Here, the order of appeal was premature and therefore this court does not have jurisdiction to hear the appeal at this time. Finally, La. C.C.P. art. 2162 provides that “[a]n appeal can be dismissed at any time ... for lack of jurisdiction of the appellate court ...”

CONCLUSION

Having determined that this court lacks jurisdiction of this case, we dismiss the appeal. The matter is remanded to the district court for further proceedings consistent with this opinion.

APPEAL DISMISSED; CASE REMANDED.


author: HANS J. LILJEBERG, Judge.

text:
    Ramiro FARCIERT v. U.S. AGENCIES CASUALTY INSURANCE COMPANY.
    No. 13-CA-626.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Ramona G. Fernandez, Attorney at Law, Harvey, Louisiana, for Plaintiff/Appellee.
    James L. Donovan, Jr., Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| {.Defendant, U.S. Agencies Casualty Insurance Company (“US Agencies”), appeals a judgment rendered in favor of plaintiff, Ramiro Farciert, finding coverage under the insurance policy issued by defendant and awarding him $18,500.00. For the following reasons, we reverse and vacate the judgment.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on May 30, 2010, involving a 2007 Ford F-150 Supercrew owned by Ramiro Farciert and insured by U.S. Agencies. Mr. Farciert’s son, Erik, was operating the vehicle when he ran into a pole, a parked vehicle, and a house. At the time of the accident, Erik had a blood alcohol content of 0.202 g%, and he ultimately pled guilty to the charge of driving while intoxicated. According to Mr. Farc-iert, Erik took the vehicle without his permission. As a result of the accident, the Ford Supercrew was damaged. The parties stipulated that the value of the damage sustained was $18,500.00.

After the accident, Mr. Farciert sought to recover these damages pursuant to the insurance policy issued by U.S. Agencies that listed the Ford Supercrew as a described vehicle. However, U.S. Agencies refused to pay for the damages, claiming that there was no insurance coverage pursuant to two exclusions set forth in the policy. The first exclusion generally provides that there is no coverage for | odamage to the insured’s vehicle arising from the operation of the vehicle by a person over 15 years of age who has resided in the insured’s household for more than 30 days prior to the accident, if that person is not listed on the application and a premium has not been paid for this person. The second exclusion provides that there is no coverage for loss occurring while the operator of the vehicle had a blood alcohol content above the legal limit.

On May 27, 2011, Mr. Farciert filed suit against U.S. Agencies, seeking to recover the damages sustained as a result of the accident. The matter came before the court for a bench trial on the merits on April 9, 2013.

At trial, Ramiro Farciert testified, through a Spanish interpreter, that on February 12, 2010, he applied for and purchased insurance coverage from U.S. Agencies for his Ford F-150 Supercrew and another vehicle at Gama Insurance Agency (“Gama”). He stated that he chose to go to Gama, because all of the personnel there spoke Spanish. Mr. Farc-iert stated that he signed the policy that he purchased, but he did not read it, because he does not speak or read English. He testified that the insurance agent, who spoke Spanish, read the policy and gave him a general explanation, but she did not translate the policy line by line. One of Mr. Farciert’s sons, Martin, accompanied Mr. Farciert to the insurance agency to translate for him if the insurance agent did not speak Spanish. However, because the agent spoke Spanish, Martin did not provide translation for his father.

According to Mr. Farciert, he was presented with three options for insurance and he chose insurance coverage through U.S. Agencies, because it was the most economical. He testified that it took 50 to 60 minutes for the insurance policy to be explained to him and for him to sign it. Although the policy required the disclosure of the names of any individuals living with him that were 15 years or older, Mr. Farciert testified that the insurance agent never asked him to provide this ^information. He further stated that he had three children over 15 living with him at the time and he would have provided this information, but he was never asked if anyone older than 15 lived with him, other than his wife. He further indicated that he knew he could ask the agent questions, but he did not have any questions because he believed that she was providing him with all of the necessary information.

Mr. Farciert’s son, Martin Farciert, also testified at trial. He stated that he can read, speak, and understand English. He testified that he went with his father to acquire an insurance policy at Gama Insurance Agency, but the agent spoke Spanish so he did not have to translate. He stated that the agent asked his father questions, such as if he was married, did he own a house, and did he have any accidents or tickets on his record. However, he stated that the agent did not ask if Martin or any other children lived with Mr. Farciert. He further testified that the agent did not go over the policy with them; rather, she just explained the monthly premium, what would be covered, and told him where to sign.

At the conclusion of trial, the trial court took the matter under advisement. Thereafter, on May 13, 2013, the trial judge rendered a judgment in favor of Mr. Farc-iert and against U.S. Agencies, finding coverage under the policy and awarding Mr. Farciert $18,500.00 plus interest and costs. The trial judge also issued reasons for judgment, finding that plaintiffs witnesses were credible, that U.S. Agencies did not properly explain the policy to plaintiff, and that Erik took the vehicle without permission which rendered the intoxication exclusion inapplicable. US Agencies appeals.

LAW AND DISCUSSION

In its first assignment of error, U.S. Agencies argues that the trial court erred when it found that the insurance policy was not properly explained to Mr. Farciert Hand when it found that there was coverage under the policy for the damages in this case.

The insurance policy issued by U.S. Agencies to Mr. Farciert provides coverage for his Ford F-150 Supercrew and another vehicle. Under the section entitled, “COVERAGES FOR DAMAGE TO YOUR AUTO,” the policy provides the following exclusion, in pertinent part, as follows:

Part-E — Collision Coverage Exclusions for Parts D, E, F, AND G
There is no Coverage for Damage To Your Auto for:
2. Arising out of the operation or use of any auto insured under Parts D, E, F, and/or G by a person who has resided in your household for more than thirty (30) days prior to the date of the accident who was not listed on your application for insurance and/or for whom a premium has not been paid; for the purposes of this exclusion, “a person who has resided in your household” is someone who at the time of the accident has been staying there a minimum of thirty (30) days for an indefinite and extended period of time or who has otherwise evidenced the intent to be a resident of your household. (Emphasis in original).

In addition, page one of the application for insurance provides in pertinent part:

APPLICANT WARRANTS THERE ARE NO PERSONS IN THE HOUSEHOLD AGE 15 AND OLDER OTHER THAN THOSE NAMED BELOW, INCLUDING EXCLUDED PERSON (IF ANY).

On that page, no persons were listed as living in Mr. Farciert’s household, other than Mr. Farciert and his wife, Teresa Farciert. Page two of the application, which was signed by Mr. Farciert, lists Ramiro Farciert as a “Covered Person” and Teresa Farciert as an “Excluded Person.” It further provides, in pertinent part:

Applicant’s Disclosure and Classification of ALL Persons Age 15 and Older Living in the Applicant’s Household
I, the Applicant, acknowledge that I have been asked to provide | fithe names of all persons that live in my household, age 15 and older, licensed or not, and that are related to me or not. I affirmatively state that I have fully and accurately disclosed this information to the insurance company and that I have not withheld any of the requested information. I understand that this information may affect whether the policy is issued, the policy premium or whether the policy would be subject to any different terms, conditions or exclusions. I understand that failure to truthfully list all persons age 15 and older who currently reside in my household may result in the policy being voided or a denial of coverage under exclusions of the policy.

Additionally, on page three of the application is a checklist, and there is a check-mark by “True” next to the statement:

I have disclosed EVERY PERSON LIVING IN MY HOUSEHOLD age 15 and older, whether or not they possess a driver’s license, and whether or not related to me. (Emphasis in original).

Below the checklist is the APPLICANT’S STATEMENT, which provides that the applicant has read the application and provided the information requested by the agent to the insurance company, and that all of the information provided is complete and true. Mr. Farciert signed under the APPLICANT’S STATEMENT, but he testified that he did not put the check-marks on the checklist and did not know what each of the lines stated.

Mr. Farciert admits that his son, Erik, was over 15 at the time of the accident and had resided with him for years before the accident. However, Mr. Farciert did not list Erik, or any of his other children, as a person residing in his household for more than 30 days. Accordingly, Mr. Farciert was not charged and paid no premium for Erik’s use or operation of Mr. Farciert’s vehicles.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Carbon v. Allstate Insurance Co., 97-3085 (La.10/20/98), 719 So.2d 437, 439. The court’s role in interpreting insurance contracts is to | ascertain the common intent of the parties to the contract. LSA-C.C. art. 2045; Cadwallader v. Allstate Insurance Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580. The parties’ intent, as reflected by the words in the policy, determines the extent of coverage. Louisiana Ins. Guar. Ass’n v. Interstate Fire and Cas. Co., 93-911 (La.1/14/94), 630 So.2d 759, 763. Such intent is to be determined in accordance with the plain, ordinary, and general meaning of the words used in the policy, unless the words have acquired a technical meaning. Id.; LSA-C.C. art. 2047.

If the words of a policy are clear and unambiguously express the parties’ intent, the insurance contract must be enforced as written. Cadwallader, 02-1637 at 4, 848 So.2d at 580. Courts do not have the authority to alter the terms of insurance contracts when the policy’s provisions are couched in unambiguous terms. Id. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. Louisiana Ins. Guar. Ass’n, 630 So.2d at 763.

In the present case, the insurance policy clearly and unambiguously requires the disclosure of any person over age 15 that has lived with the insured for at least 30 days. The policy expressly excludes coverage for damage to an insured vehicle arising from the use of that vehicle by a person residing in the insured’s household over 30 days who was not listed on the application for insurance and for whom a premium has not been paid.

Mr. Farciert acknowledges that he did not disclose that anyone other than his wife lived with him, though three of his sons, all of whom were over 15, had been living with him for more than 30 days. Mr. Farciert also admits that no premium was paid to U.S. Agencies for any of his children to operate his vehicles. Further, |sMr. Farciert acknowledges that he signed the application for insurance and the “APPLICANT’S STATEMENT,” both of which indicate that he had disclosed the names of every person living in his household that was age 15 or older. However, Mr. Farciert contends that this coverage exclusion should not apply in this case, because he does not read or speak English and the insurance agent did not ask him for this information.

US Agencies argues that the parties are bound by the terms of the insurance policy. It notes that the insurance agent spoke Spanish and that Mr. Farciert’s son, Martin, who speaks and reads English, went with his father to the insurance agency to assist with translation, if needed. Mr. Farciert acknowledges that he could have asked the insurance agent or his son if he had any questions about the policy. US Agencies further claims that it is incredible to believe that the insurance agent discussed and obtained information for all other portions of the policy, but neglected to ask the one question pertinent to this case-whether anyone over 15 years old lived with the insured.

Recently, in Garza v. Argueta, 12-561 (La.App. 5 Cir. 3/27/13), 113 So.3d 384, this Court addressed a similar situation. In Garza, plaintiff sued his insurer seeking uninsured/underinsured motorist (“UM”) coverage for damages sustained in an accident, though he had executed a waiver of UM coverage when he purchased his insurance policy. Garza, 12-561 at 2, 113 So.3d at 385. Mr. Garza argued that the waiver of UM coverage was invalid because he did not knowingly reject coverage since he was “limited in English” and did not understand what he was signing. Id. at 3^4, 113 So.3d at 386. The trial court granted summary judgment in favor of the insurer, finding no coverage pursuant to the UM waiver. This Court affirmed, noting that Mr. Garza signed the waiver of UM coverage. Garza, 12-561 at 5, 113 So.3d at 386. Although Mr. Garza argued that Spanish |flwas his first language and that he did not understand the waiver, this Court noted that an insured is presumed to know and understand what he is signing. Id. Mr. Garza did not allege fraud, duress, or misconduct of the insurance agent, and this Court found that he did not rebut the presumption that he validly waived UM coverage. Id.

Also, in Pena v. Simeon, 11-1083 (La.App. 5 Cir. 5/22/12), 96 So.3d 547, plaintiff argued that she had not executed a valid waiver of UM coverage, because her first language was Spanish and she did not understand the waiver form that was written in English. This Court rejected plaintiffs argument, finding that she did not rebut the presumption that she knowingly rejected UM coverage. Pena, 11-1083 at 9, 96 So.3d at 551. This Court noted that plaintiff did not allege fraud, duress, or misconduct of the insurance agent, and plaintiff did not tell the insurance agent that she needed the forms explained to her in Spanish. Id. at 9-10, 96 So.3d at 552.

In Rizzo v. Ward, 09-1325 (La.App. 4 Cir. 2/24/10), 32 So.3d 986, the Fourth Circuit addressed a similar case. Plaintiff alleged that his waiver of UM coverage was invalid because the waiver was written in English and he could not speak, read, or write English fluently. The Fourth Circuit rejected plaintiffs argument and found the UM waiver to be valid, noting that plaintiff was able to converse with the insurance agent in Spanish and that he did not allege duress or misconduct of the insurance agent. Rizzo, 09-1325 at 4, 32 So.3d at 988-989.

In the present case, Mr. Farciert signed the application for insurance, which provided that he had disclosed all persons over age 15 living with him for at least 30 days. Absent allegations of fraud, duress, or misconduct of the insurance agent, he is presumed to have known and understood what he signed. Rizzo, 09-1325 at 4, 32 So.3d at 989. Further, the insurance agent spoke Spanish and his son, | inMartin, went with him to the insurance agency because he speaks and reads English. Nothing prevented Mr. Farciert from asking questions if he did not understand what he was signing. We find Mr. Farc-iert’s argument that he did not understand the terms of the policy to be unpersuasive.

The damage to Mr. Fareiert’s vehicle occurred while his son, Erik, was operating the vehicle. However, Mr. Farciert had not disclosed that Erik had been living with him for over 30 days. Under the clear wording of the policy, there was no coverage for damage to the Ford Super-crew while being used by a person over 15 who lived with the insured for over 30 days but was not disclosed.

Considering the record before us, along with the applicable law, we find that the trial court erred in finding coverage for the damage to the Ford Supercrew under the facts of this case. Accordingly, we reverse and vacate the judgment awarding $18,500.00, plus interest and costs, to Mr. Farciert.

In its second assignment of error, U.S. Agencies argues that the trial court abused its discretion when it found that the intoxication exclusion in the insurance policy was unenforceable. However, due to our finding in the first assignment of error that there is no coverage under the policy in this case, it is unnecessary to address this argument by U.S. Agencies.

DECREE

For the foregoing reasons, we reverse and vacate the trial court judgment awarding $18,500.00 plus interest and costs to Mr. Farciert.

REVERSED AND VACATED.

      . The name of Mr. Farciert's son is spelled '‘Erik,” "Eric," and "Erick” in different documents in the record. For purposes of this appeal, we will refer to him as "Erik.”

      . Ramiro Farciert testified that at the time he purchased insurance coverage, he had three sons over age 15 living with him: Martin-age 23; Mario-age 22; and Eric-age 18.


author: MARC E. JOHNSON, Judge.

text:
    Rose PERRILLOUX v. UNIFORMS BY KAJAN, INC.
    No. 13-CA-377.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2013.

      Randall C. Joy, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    W. Jared Vincent, Attorney at Law, New Orleans, Louisiana, Counsel for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT M. MURPHY.
   MARC E. JOHNSON, Judge.

| ¡¡Defendant/Appellant, Uniforms by Ka-jan, Inc. (hereinafter referred to as “Ka-jan”), appeals the award of workers’ compensation benefits, penalties and attorney’s fees in favor of Plaintiff/Appellee, Rose Perrilloux, rendered by the Office of Workers’ Compensation, District “7”. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On January 15, 2008, Mrs. Perrilloux reported to work, a store owned and operated by Kajan, to open it for the business day. Upon her arrival in the store, a man entered the store and robbed Mrs. Perril-loux with a knife of the cash located in the register. During the robbery, Mrs. Perril-loux sustained various injuries. Within minutes of the robbery, a co-owner of the store, Paulo Cassanova, arrived at the scene; however, he did not witness the robbery or the robber. Mr. Cassanova did not observe any injuries to Mrs. Perrilloux. The police were called, and a report was filed for the robbery. The investigating officer, Detective Brad Walsh, drafted the police report for the robbery, but he did not note any injuries suffered by Mrs. Perrilloux and no pictures were taken.

l.qOn March 5, 2008, Mrs. Perrilloux filed a Disputed Claim for Compensation against Kajan for injuries sustained during the course of the robbery, alleging Kajan failed to pay or timely pay indemnity benefits at the proper rate, failed to pay and/or authorize or timely pay and/or authorize medical expenses, and failed to provide or timely provide a copy of the medical records after written request. She also alleged she was entitled to total temporary disability and/or supplemental earnings benefits and/or total and permanent disability along with attorney’s fees, penalties and legal interest on all awards.

The trial on the merits was held on July 7, 2011. On October 7, 2011, a judgment was rendered by the trial court. The trial court found Mrs. Perrilloux had experienced an accident during the course and scope of her employment and had sustained physical and mental injuries as a result of that accident. The trial court also found Mrs. Perrilloux was entitled to total temporary disability benefits; payment of medical expenses, medication expenses, and transportation expenses; and multiple penalties for violations, attorney’s fees, interests and costs.

On October 14, 2011, Mrs. Perrilloux filed a Motion for New Trial on the sole issue of whether Kajan was uninsured at the time of the accident, which would entitle her to a 50% increase in the amount of weekly compensation benefits. The hearing for the motion was held on December 2, 2011, and the motion was taken under advisement. The trial court issued Reasons for Judgment on December 7, 2011, which listed 21 findings of fact. The findings of fact included a finding that Mrs. Perrilloux was entitled to an increase in benefits, which was requested in the Motion for New Trial. Although the trial court had not rendered a ruling on Mrs. Perrilloux’s motion, it granted Kajan’s Motion for Appeal on January 9, 2012. In an Amended Judgment rendered on January 31, 2012, the trial court granted the [¿Motion for New Trial for the sole purpose of determining whether Kajan was uninsured at the time of the accident.

In Perrilloux v. Uniforms by Kajan, Inc., 12-413 (La.App. 5 Cir. 12/18/12); 106 So.3d 268, reh. denied, (La.App. 5 Cir. 2/15/13), this Court dismissed Kajan’s appeal on the basis that the trial court had not ruled upon the merits of Mrs. Perril-loux’s Motion for New Trial, and the matter was remanded to the trial court. In an Amended Judgment dated December 27, 2012, the trial court entered a judgment on the Motion for New Trial and awarded Mrs. Perrilloux an additional 50% of indemnity benefits due to the fact that Kajan did not have workers’ compensation insurance on the date of Mrs. Perrilloux’s accident. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal Kajan raises the following assignments of error: 1) the trial court erred in finding Mrs. Perrilloux proved any of her injuries (mental and physical) and her disability by the appropriate standard of proof; 2) the trial court committed a legal error in not applying La. R.S. 23:1142 to the bills of the treating physicians; 3) the trial court committed a legal error in failing to consider the job offered to Mrs. Perrilloux by Kajan as work that she was able to do per her admission; and 4) the trial court erroneously assessed penalties and attorney’s fees.

LAW AND ANALYSIS

Proof of Accident and Injuries

Kajan alleges the trial court erred in finding Mrs. Perrilloux proved by a preponderance of the evidence she had an accident at work and suffered a mental compensable injury. Kajan avers that the circumstances surrounding the robbery tend to cast serious doubts about Mrs. Perrilloux’s version of the events, which means she failed establish an accident occurred. Kajan contends that Mrs. IflPerrilloux’s recitation at trial of the way the robbery occurred was inconsistent and could not have possibly established the existence of an accident by preponderance of the evidence. Kajan further avers that the lack of pictures of Mrs. Perrilloux’s face, the absence of any notation of injuries in the police report, and the failure of the testimonies by Detective Walsh and Mr. Cassanova to corroborate any injuries Mrs. Perrilloux sustained on the day of the incident discredited her testimony. According to Kajan, because Mrs. Perril-loux’s credibility regarding the occurrence of the robbery is questionable, then her physical and mental injuries complained of to the treating physicians are also questionable because Mrs. Perrilloux lacks credibility.

Mrs. Perrilloux asserts the trial court’s rulings should be affirmed because the findings were based upon credibility determinations. She maintains that due to her documented memory problem, she could not testify as to every specific detail of the robbery; however, the testimony of Mr. Cassanova corroborated her testimony that a robbery occurred at the store. Thus, Mrs. Perrilloux contends there was no evidence presented that discredited or seriously casted any doubt on her testimony that she experienced an accident while on the job. Additionally, she avers that the medical evidence presented at trial proved that she sustained physical and mental injuries causally related to the robbery. Because the findings of the trial court were reasonably grounded upon the evidence presented, the trial court’s rulings that Mrs. Perrilloux experienced an accident that occurred at her workplace and sustained injuries from that accident are not manifestly erroneous.

An employee seeking workers’ compensation benefits must prove “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). The Louisiana Workers’ Compensation Act defines an accident as “an unexpected or unforeseen actual, identifiable, precipitous event happening | ^suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). Where the employee is able to identify an event marking the time the injury occurred or the symptoms arose or suddenly or markedly increased in severity, even if such event occurs during the performance of customary or routine work activities, the employee has established an “accident” within the meaning of La. R.S. 23:1021(1). Begue v. Crossover, Inc., 03-267 (La.App. 1 Cir. 11/21/03); 868 So.2d 100, 105.

The employee in a workers’ compensation action has the burden of proving a work-related accident by a preponderance of the evidence. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La.7/2/12); 93 So.3d 1253, 1257. An employee may prove that an unwitnessed accident occurred in the course and scope of his employment by his testimony alone if the employee can prove (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La.1/19/11); 56 So.3d 215, 219.

In determining whether a worker has discharged his burden of proof, the fact-finder “should accept as true a witness’s uneontradicted testimony, although the witness is a party, absent ‘circumstances casting suspicion on the reliability of this testimony.’ ” Marange, supra. The fact-finder’s determination as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are factual determinations that should not be disturbed on appellate review, unless clearly wrong or manifestly erroneous. Marange, 93 So.3d at 1257-158. If the trial court’s findings are reasonable in light of the entirety of the record, the appellate court may not reverse. Ricks v. Odyssey Health Care, 10-1099 (La.App. 5 Cir. 10/25/11); 77 So.3d 386, 389. Consequently, when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Id.

The trial court in this matter held that Mrs. Perrilloux was injured by an accident during the course and scope of her employment with Kajan on January 15, 2008. The trial court also held Mrs. Perrilloux sustained work-related injuries to her face, left knee, and hip, and suffered headaches and psychological injuries, in particular, post-traumatic stress disorder. Mrs. Per-rilloux was awarded temporary total disability benefits dating back to January 15, 2008. In its Reasons for Judgment, the trial court found that Mr. Cassanova’s testimony corroborated the occurrence of the robbery and verified Mrs. Perrilloux’s credibility, despite the conflicting testimony as to the facts concerning the occurrence of the robbery and the connection to Mrs. Perrilloux’s injuries. The trial court specifically noted Mr. Cassanova’s testimony that Mrs. Perrilloux would not be involved in an “inside job,” and she was “one of the better managers” that “was always on top of her goods and everything.” Mrs. Perrilloux was found to be a credible witness with documented memory problems. The trial court also found that Mrs. Perril-loux met the burden of proof to establish that the mental and physical injuries were causally related to the robbery.

After review, we do not find the trial court was erroneous in finding Mrs. Perril-loux met her burden of proof that she experienced a work accident that caused her to have physical and mental injuries. The trial court considered the evidence presented and found Mrs. Perrilloux to be a credible witness. Because the trial court found Mrs. Perrilloux and her account of the robbery to be credible, |swe cannot find the trial court was manifestly erroneous and will not disturb its factual determination.

Payment of Medical Bills

Kajan alleges the trial court erred in failing to apply La. R.S.23:1142 to the payments of Mrs. Perrilloux’s medical bills. Kajan argues that Dr. Edmond Wood, Dr. Frederic Henderson and Dr. Jirina Fiala failed to request pre-authori-zation for treatments as required by law. Because the services received by Mrs. Per-rilloux by those physicians were non-emergency treatments, Kajan contends that each of the medical bills for those doctors should have been limited in liability to $750.00.

Mrs. Perrilloux argues the trial court correctly applied La. R.S. 23:1142 through its application of Subsection E of the statute. She contends that no approval from the employer is required when there is a denial that the employee’s injury is com-pensable under the law. She argues the medical bills should not be limited to only $750.00 each because Kajan has continuously denied that the robbery even occurred. As such, Mrs. Perrilloux maintains that the treating physicians were not required to obtain pre-authorization for her treatments.

La. R.S. 23:1142 provides, in pertinent part:

B. Nonemergency care. (l)(a) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in non-emergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergen-cy services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.

* * *

D. Fees and expenses. If the payor has not consented to the request to incur more than a total of seven hundred fifty dollars for any and all nonemergen-cy diagnostic testing or treatment when such consent is required by this Section, and it is determined by a court having jurisdiction in an action brought either by the employee or the health care provider that the withholding of such consent was arbitrary |9and capricious, or without probable cause, the employer or the insurer shall be liable to the employee or health care provider bringing the action for reasonable attorney fees related to this dispute and to the employee for any medical expenses so incurred by him for an aggravation of the employee’s condition resulting from the withholding of such health care provider services.

E. Exception. In the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.

In this matter, the trial court held that Mrs. Perrilloux was entitled to the payment of medical expenses, medication expenses, and transportation expenses. The trial court further found Kajan did not reasonably controvert Mrs. Perrilloux’s entitlement workers’ compensation benefits for the covered injuries, including medical benefits, medication expenses, diagnostic tests, arid transportation expenses.

After review, we find the trial court properly applied La. R.S. 28:1142 to the medical bills issued by Dr. Wood, Dr. Fía-la, and Dr. Henderson. Because Kajan has denied at the trial court level, and still insinuates to this Court, that a robbery may not have occurred, we find that Subsection E applies to this matter. Thus, no approvals of the pre-authorization requests for treatment with Drs. Wood, Dr. Henderson and Fiala were required. Therefore, we will not disturb the trial court’s determination on the payments of the medical bills.

Job Offer

Kajan alleges the trial court erred in failing to consider the job offer made by Kajan, which would have paid Mrs. Perril-loux the same salary she earned prior to the accident. Kajan claims that it offered Mrs. Perrilloux a job on April 2, 2008 that did not require her to stand all day or interact with the public. Kajan avers that although the job offer was never withdrawn, Mrs. Perrilloux never reported to work.

| inMrs. Perrilloux argues Kajan only made one job offer to her on July 14, 2008, not April 2, 2008. She contends that Dr. Wood had placed her on temporary total disability, meaning she could not accept Kajan’s job offer. Mrs. Perrilloux avers that Kajan’s job offer could only limit its indemnity if she was on some limited work status, not temporary total disability status. As a result, Mrs. Perrilloux maintains the trial court was correct in not considering Kajan’s job offer.

As part of the determination of whether an employer has carried its burden under La. R.S. 23:1221(3)(c)(i) of proving work is available to the claimant, courts must consider all factors that affect the claimant’s ability to engage in the offered or available employment. Daugherty v. Domino’s Pizza, 95-1394 (La.5/21/96); 674 So.2d 947, 953. A claimant does not have to accept employment that involves an appreciable and significant risk to his well-being. Id.

After considering the medical evidence presented during trial, we find that Kajan failed to carry its burden that it offered suitable work for Mrs. Perrilloux. Since Mrs. Perrilloux was placed on temporary total disability during the time a job was actually offered to her, it would have been an appreciable and significant risk to her well-being to work any job. Therefore, the trial court was proper in not considering Kajan’s job offer when determining Mrs. Perrilloux’s workers’ compensation benefits.

Penalties and Fees

Kajan alleges the trial court erred in assessing penalties and attorney’s fees against it because Mrs. Perrilloux’s testimony was so contradictory that it prevented a finding of an accident or injury within the meaning of the statute. Kajan asserts that it paid Mrs. Perrilloux her full workers’ compensation benefits |nuntil the time she hired an attorney and offered her a suitable job. Kajan further asserts that all but one of the pre-authorized medical treatments requested by Mrs. Perrilloux were approved and paid. Kajan contends that its actions certainly were not arbitrary or capricious, and the penalties and attorney’s fees awarded should be reversed.

Mrs. Perrilloux maintains that the trial court was correct in awarding penalties and attorney’s fees because Kajan was blatantly arbitrary and capricious in its denial of her workers’ compensation benefits, especially when Kajan terminated the benefits after she retained an attorney. She avers Kajan failed to reasonably controvert her requests to timely approve or pay for her medical treatments, which mandates both penalties and reasonably attorney’s fees for each violation.

La. R.S. 23:1201(1) provides,
Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(0 shall be applicable to claims arising under this Chapter.

In Williams v. Rowe-Treaudo, 11-46 (La.App. 5 Cir. 9/27/11); 75 So.3d 502, 508, this Court held the following regarding failure to pay workers’ compensation benefits:

When an employer has failed to pay worker’s compensation benefits, the proper standard for review of that decision is whether the employer reasonably controverted the claim. A claim for worker’s compensation is reasonably controverted if the employer has some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right to benefits has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under LSA-R.S. 23:1201, a court must | ^ascertain whether the employer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay the benefits allegedly owed. Whether the refusal to pay benefits warrants the imposition of penalties and attorney fees is a factual question, which we will not disturb in the absence of manifest error.
(Internal citations omitted).

Here, the trial court found Kajan failed to reasonably controvert Mrs. Perrilloux’s entitlement to workers’ compensation benefits. Our review of Mr. Cassanova’s testimony supports the trial court’s conclusion. Mr. Cassanova did not possess the factual and/or medical information to counter Mrs. Perrilloux’s claims. Therefore, we do not find the trial court erred in assessing Ka-jan with the penalties and attorney’s fees provided for in La. R.S. 23:1201.

Answer to Appeal

Mrs. Perrilloux timely filed an Answer to this appeal, requesting additional attorney’s fees for the appellate work performed in this matter.

The court may award damages, including attorney’s fees, for a frivolous appeal against any party to the suit, as in its judgment may be considered equitable. La. C.C.P. art. 2164.

Although Kajan does not prevail on any of the issues raised in its appeal, we do not consider the appeal to be frivolous. Therefore, we do not find an award of attorney’s fees to be equitable and, thus, deny Mrs. Perrilloux’s request.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. The request for attorney’s fees for work performed on this appeal is denied. Kajan is assessed the costs of this appeal. ■

AFFIRMED.

      . Although Kajan stated in a letter dated April 2, 2008 that a job had been offered to Mrs. Perrilloux, there is no evidence of a job offer with a description of the job until July 14, 2008.