author: WILLIAMS, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Carlton James CHURCH, Appellant.
    No. 47,809-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2013.
    Rehearing Denied June 20, 2013.

      Douglas L. Harville, for Appellant.
    Charles R. Scott, II, District Attorney, Dale G. Cox, William J. Edwards, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and PITMAN, JJ.
   WILLIAMS, J.

_JjThe defendant, Carlton James Church, was charged by amended bill of information with manslaughter, a violation of LSA-R.S. 14:31. After a jury trial, the defendant was found guilty as charged. The district court sentenced the defendant to serve 30 years’ imprisonment at hard labor. Defendant appeals his conviction and sentence. For the following reasons, we affirm.

FACTS

On February 24, 2009, Robert Hall, III, was working as a porter at the Chevyland auto dealership in Shreveport. Hall was a 31-year-old, slightly built man, who was 5 feet, 1 inch tall and weighed 125 pounds. Hall, who was also known as “Little Robert,” had the habit of touching people, or leaning on them, as a greeting and in conversation. This behavior could sometimes get on his coworkers’ nerves. The defendant, who is 6 feet, 2 inches tall and weighs 225 pounds, was employed at Chevyland as a supervising mechanic.

During that afternoon, Hall was walking through one of the bay doors at the rear of the service area and saw the defendant, his coworker, standing just outside the building smoking a cigarette. As was his habit, Hall patted defendant on the back as he walked past. Without saying anything, the defendant turned and punched Hall in the head. Hall, unconscious, fell backwards and struck the back of his head against the concrete pavement. The defendant, who was walking away, noticed that Hall was still on the ground. Defendant went over to Hall and yelled for someone to call 911.

At the time, another porter, Maurice Neal, was standing with his | acoworker, Eric Williams, in the shop. Neal had seen the defendant walking toward the smoking area and mentioned to Williams that the defendant appeared to be angry. About two minutes later, Neal saw Hall going past the smoking area. Neal later told police that as Hall walked through the bay door he touched defendant on the shoulder and that defendant then turned and “nailed him.” Dexter Caldwell, a detailer at Chevyland, testified at trial that he saw Hall fall to the ground:

I was coming around the corner of the car wash, and as soon as I hit that corner, I[saw] Robert falling to the ground.... And when he was falling, he was like already out because he didn’t even try to catch himself. His head just hit the ground. So I did see his head hit that ground.
As my attention went to Jim, I seen he had his — like his lip bit and he had his fists balled up, and he kind of walked away from him, and then.... after he realized Robert wasn’t getting up off the ground, that’s when he came baek[.]

Neal called 911 and told the operator that “we’ve got a guy on the ground.” Neal said that he told the operator that he didn’t know what happened to Hall because “I wanted to leave it up to the managers” and because “I liked Jim and Robert ... and I didn’t want nothing to happen.”

Paramedics arrived and treated Hall, but defendant did not tell them what had occurred. One female employee told the paramedics that Hall had been elbowed in the face. However, when Hall began vomiting, the paramedics thought Hall might have a concussion and decided to transport him to a local hospital. Hall had an injury to the back of his head where it struck the concrete floor of the shop. Hall received treatment at the hospital, but CT scans showed increased brain swelling during the next | -¡several days from the head injury. The pressure from the swelling cut off the blood flow to a portion of his brain, causing Hall to fall into a coma. Hall died on March 3, 2009, after being removed from life support. The doctor who performed the autopsy opined that the brain injury was due to the impact of Hall’s head upon the concrete.

The day after the incident, the defendant spoke with Clary Lunday, who was in charge of the service and parts departments at Chevyland. Lunday recorded this interview on his cell phone. Defendant stated that he had been upset the previous day because the water at his rental home had been cut off due to the homeowner’s unpaid bill. The defendant said that he went to the back of the service area to smoke and as he stood there, “I get elbowed in the back ... turned around and hit that little f* * *er before I knew what I did[.] I spun around and hit him and I hit him hard.”

On March 5, 2009, Detective Eric Far-quhar of the Shreveport Police Department interviewed the defendant, who was accompanied by an attorney. The defendant told the detective that he was upset on the day of this incident not only because of the water bill, but for reasons he did not mention to Lunday, including his ex-wife’s demand for increased child support and a delay of his income tax refund. Defendant said that he decided to go smoke and calm down because he was upset. Defendant explained as follows:

I am sitting there smoking my cigarette ... whenever someone, I don’t know who at this time, walked up behind me and elbowed me in the back, and it was not knock you down elbowed, but it was forcible enough that it made me take a step forward, okay? Now I take a step forward as I caught myself, I immediately turned and swung. I was startled.

[¿Following this interview, defendant was arrested for manslaughter.

Subsequently, the jury found the defendant guilty of manslaughter. The defendant’s motions for new trial and for post-verdict judgment of acquittal were denied. After a lengthy sentencing hearing, the trial court sentenced defendant to serve 30 years at hard labor and denied his motion to reconsider sentence. This appeal followed.

DISCUSSION

The defendant contends the evidence was insufficient to support the conviction of manslaughter. Defendant argues that the evidence did not prove guilt beyond a reasonable doubt because the state failed to show that he intentionally used force against the victim.

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 believability 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.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299. 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.

Manslaughter is a homicide committed without any intent to cause death or great bodily harm when the offender is engaged in the perpetration of any intentional misdemeanor directly affecting the person. LSA-R.S. |fi14:31(A)(2)(a). Battery is an intentional misdemeanor directly affecting the person. State v. Humphrey, 412 So.2d 507 (La.1981). Battery is defined as the intentional use of force or violence upon the person of another. LSA-R.S. 14:33. Battery is a general intent crime. LSA-R.S. 14:11. General criminal intent is present whenever there is specific intent and when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences of his act. LSA-R.S. 14:10.

In the present case, Maurice Neal testified that on the date of the incident, he was standing at the back of the service area when he saw the defendant walk to the smoking area. Neal mentioned to another worker that defendant seemed angry. Neal testified that several minutes later he saw Hall, as he had done many times, touch the defendant’s shoulder as he walked past and that defendant then turned around, looked at Hall and punched him with a closed fist. The testimony of Neal and Dexter Caldwell indicated that defendant hit Hall with enough force to knock him unconscious before his head hit the ground.

In his appellate brief, the defendant alleges that he is not culpable because he acted reflexively in hitting Hall. To support his argument, the defendant cites Neal’s testimony on cross-examination regarding his statement to Lunday that defendant had hit Hall with a “roundhouse” punch:

Q: And you told him that Robert walked behind Jim and tapped him on the back of the shoulder and then Jim turned around with a full roundhouse hit?
A: Yeah, I think I did tell Lunday that. [ ?Q: Okay.
A: I can’t remember — it was a while.
Q: And you said that he immediately turned and hit. Isn’t that what you told Mr. Lunday?
A: Like I say, I probably told him and showed him the way it happened. I just can’t remember.

Based on the evidence presented, the difference between Neal’s description to Lunday of defendant’s punch as a roundhouse and Neal’s testimony at trial is not as great as suggested by the defendant. Lunday did not testify about what Neal told him. Neal testified that he probably told and showed Lunday what happened, but that he could not recall his words at trial. Further, and more importantly, Neal’s description of the punch either as a roundhouse in one instance, or as a direct punch at trial, does not undermine the evidence that the defendant’s act was deliberate and intentional rather than a reflex. Neal did not state, nor does the evidence show, that he ever told Lunday or any other person that the defendant had acted reflexively or involuntarily when he hit Hall.

After a careful review of the entire record, and in particular Neal’s testimony, we cannot say that the jury erred in accepting Neal’s version of events. The positions of Neal, Hall and defendant at the scene were made clear to the jury through various visual and computer-generated evidence introduced in conjunction with Neal’s testimony. The evidence shows that Neal had the opportunity to observe the actions of defendant and the victim during the commission of the crime. Further, the defendant was able to cross-examine Neal about his ability to view the incident that he described.

| ^Additionally, the jury could reasonably have found that the defendant’s statements that he was knocked forward by Hall’s contact and that he swung his arm without looking to hit the smaller Hall were not plausible, given the difference in physical stature between them. The testimony showed that defendant intentionally punched downward to hit the shorter victim.

The jury considered the evidence and weighed the credibility of the witnesses. Based upon this record, there is ample evidence to support the jury’s rational conclusion that the defendant acted deliberately when he hit Hall. Because the state proved all of the elements of manslaughter beyond a reasonable doubt, this assignment of error is without merit.

Sentencing

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that the court abused its discretion in imposing a sentence that is grossly out of proportion to the severity of the crime and that a less harsh sentence should be imposed.

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. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence 1 ¡¡is the goal of Article 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 Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, 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 of 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 manslaughter is imprisonment at hard labor for not more than 40 years. LSA-R.S. 14:31(B).

In the present case, a number of witnesses testified at the sentencing Imhearing. The victim’s father, Robert Hall, Jr., spoke about the devastating impact on the family resulting from his son’s death. The victim had a younger brother who is mentally handicapped and who lives at Holy Angels in Shreveport. The victim was very close to his brother, whom he visited often, and he participated in family life with his parents as well. The victim was a dedicated employee who enjoyed interacting with his coworkers at Chevy-land. His father described Hall as a person who did not have a mean bone in his body, who was easygoing, thoughtful and a good-natured young man. Hall’s father explained that his son’s death “destroyed a complete family.” He said that since the day his son died he has not been able to get more than three hours of sleep each night. He also said that the victim’s mother cried every night for months after her son’s death and that she was emotionally unable to speak at the sentencing hearing. Hall’s father stated that his mentally handicapped son had lost “his brother, his mentor, and most of all, his future guardian.” Robert Hall, Jr., asked the trial court to give the defendant the maximum sentence for the crime because the victim’s family would live with their loss for the rest of their lives.

The defendant produced a number of witnesses at the hearing, including his mother, his former wife and his 16-year old daughter, who all said that defendant was a very good father who cared for his children and others. However, this testimony was contradicted by the former wife’s statement that defendant owed $20,000 in past due child support. Although these witnesses and others testified that they knew defendant to be a peaceful person whom they had never seen angry, the testimony showed that |nmany of the witnesses did not have significant knowledge of defendant’s personality. Some witnesses had known defendant for only two or three years. One witness stated that in a seven-year period, he had seen defendant probably ten times for business reasons. Another witness, who described himself as defendant’s “best friend,” testified that he had known defendant for approximately 30 years, but had only seen defendant 15 to 20 times in the last ten years. Additionally, most of the witnesses were unfamiliar with the details of defendant’s crime and others said their knowledge was based on information from the defendant or the media.

The defendant testified that he did not graduate from high school and had worked as a mechanic. Defendant stated that he was divorced, that his four children were in the custody of their mother and that he was behind in paying child support. Defendant stated that he used profanity to refer to Hall when speaking to Lunday because he was upset. Defendant testified that he hit Hall because he was “startled,” even though he knew Hall’s habit of patting other workers on the back. Defendant acknowledged that he did not go to visit Hall in the hospital, that he did not attend his funeral and that he had never contacted Hall or his parents to offer an apology before the date of sentencing.

Prior to imposing sentence, the trial court considered the guidelines of Article 894.1, the evidence adduced at the jury trial, the testimony at the sentencing hearing, the letters submitted to the court on the defendant’s behalf and the statement of the victim’s father. The court noted defendant’s prior conviction for DWI and that he had expressed remorse. Based on |12these considerations, the trial court sentenced defendant to serve 30 years’ imprisonment.

Defendant argues that the sentence imposed is excessive, relying on the witness testimony describing him as a nice guy who helped others and never showed anger. However, their testimony supports a finding that many of the witnesses were not really that familiar with defendant. Some had known him for only a few years and had limited contact with him during that time. Even the defendant’s brother testified he had not seen defendant for one year. Further, most of the witnesses expressed surprise when they learned at the hearing that defendant had failed to apologize to Hall or his parents and had not visited Hall in the hospital or attended his funeral. Thus, we cannot say the trial court abused its sentencing discretion by according relatively little or no weight to the essentially subjective statements of belief by defendant’s witnesses.

In addition, contrary to defendant’s assertions in his appellate brief and motion to reconsider, the evidence presented shows that defendant did not act under strong provocation, there were no substantial grounds tending to excuse defendant’s criminal conduct and the victim did not induce defendant’s criminal act. These factors are not supported by the record and defendant’s apparent attempt to blame the victim to excuse his own criminal conduct is troubling. Defendant also seeks to avoid responsibility for his actions by asserting that the victim’s death was caused not by his punch, but by the manner in which the victim’s head hit the ground. Of course, the victim’s head smashed against the pavement only because the defendant | ^intentionally punched the victim without provocation. Regarding the applicable aggravating factors, the record shows that defendant knew the victim was particularly vulnerable due to his learning disability and diminutive size and that the offense caused significant permanent injury to the victim’s family.

The district court heard the evidence at trial and considered the sentencing guidelines. The record shows that the defendant’s criminal conduct resulted from circumstances that are likely to recur because he apparently continues to feel justified in taking out his anger on a physically smaller person who “startled” the defendant when he was having a bad day. Thus, the record supports the trial court’s findings that defendant is in need of correctional treatment that could be provided most effectively by his commitment to an institution and that a lesser sentence would deprecate the seriousness of the defendant’s crime. After reviewing the entire record, we cannot say that the 30-year sentence imposed is grossly out of proportion to the severity of defendant’s crime, which resulted in the death of the victim.

The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. White, 2010-1799 (La.7/1/11), 68 So.3d 508; State v. Williams, 46,674 (La.App.2d Cir.12/14/11), 81 So.3d 220. Based upon the circumstances of this case, where the defendant intentionally punched an innocent and defenseless victim who had sought only to greet his coworker before being senselessly attacked, the trial court did not abuse its discretion in imposing this 30-year sentence; although the term of imprisonment is at the upper end |14of the sentencing range for the offense of conviction, it does not shock the sense of justice. Thus, the sentence imposed is not constitutionally excessive. The assignment of error lacks merit.

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

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

BROWN, Chief Judge, dissents with written reasons.

BROWN, Chief Judge,

dissenting.

|/‘With a ‘shock the conscience’ test of constitutionality, citizens must guess what is the law, guess what a majority of nine judges will believe fair and reasonable. Such a test wilfully throws away the certainty and security that lies in a written constitution, one that does not alter with a judge’s health, belief, or his politics.” Boddie v. Connecticut, 401 U.S. 371, 393, 91 S.Ct. 780, 794, 28 L.Ed.2d 113 (1971) (Black, J., dissenting).

The Eighth Amendment’s proscription of cruel and unusual punishment not only prohibits barbaric punishment but also sentences that are disproportionate to the offense committed. Louisiana’s constitution likewise proscribes cruel, unusual and excessive sentences. An excessive sentence is one that is grossly disproportionate to the offense committed. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.

A court’s proportionality analysis should be guided by the gravity of the offense and culpability of the offender. In the case sub judice, the magnitude of the crime was great. An innocent, vulnerable man was killed. The victim, a 31-year-old slightly built man who was described as slow, was a porter at the car dealership where defendant worked. The victim’s family has been severely impacted by his death.

12An examination of the facts, however, demonstrates that this was not the usual manslaughter case; rather, it was more in the category of a negligent homicide. No guns, knives or blunt instruments were used, and no repeated blows or kicking was involved. There was no anger towards the victim or his life style. There was no specific intent to harm the victim. The defendant did not know the victim was behind him and was “startled” when the victim struck defendant on the back. Startled and in a burst of anger defendant threw a roundhouse punch. The victim was struck once and fell to the cement. Immediately defendant realized what he had done and went to the victim and cried “Little Robert, Little Robert, Little Robert ... get Clary (the boss) ... call 911 ...” The trial court said that defendant, who was 42 years old and who had no criminal record, was remorseful.

Turning to the culpability of the offender, there are again clear distinctions that courts may recognize and apply. The court should have looked at the defendant’s lack of intent to kill. Most would agree that negligent conduct is less serious than intentional conduct. Ranking criminal acts in ascending order of seriousness would be as follows: negligent acts, reckless acts, knowing acts, intentional acts, and malicious acts. A court must look at a defendant’s motive in committing a crime. Thus, a murder during an armed robbery or rape or by contract has a heightened degree of seriousness. This list simply illustrates that there are generally accepted criteria for comparing the severity of different acts.

In the case sub judice, defendant’s one punch was a reckless act and nothing more. The trial court and this court’s majority classifies defendant |sas the worst kind of offender and have imposed close to the maximum penalty allowed for manslaughter. This court’s majority categorized defendant as the worst kind of offender because he is behind on his child support, and they further determined that the many witnesses that testified that defendant, who has no criminal record, was a peaceful man, didn’t really know him. There was no evidence presented that defendant was a violent man, except for this one impulsive act.

To hype their opinion, the majority states that “defendant’s criminal conduct resulted from circumstances that are likely to recur because he apparently feels justified in taking his anger out on a physically smaller person....” Nothing in this record supports this claim which was pulled from thin air. The evidence is just the opposite. Defendant cried and admitted his fault. The trial court said defendant was remorseful. Defendant has no criminal or violent history. He did not attend the funeral because he believed his presence would offend the family.

Although comparing or distinguishing other cases is difficult, I note two other cases from the same judicial district court. First, a drunk driver traveling at a high rate of speed on a residential street broadsided a car being driven by a 17-year-old girl. The devastating impact killed the girl instantly. A registered nurse drew blood from defendant and tests showed his blood alcohol concentration (BAC) to be 0.13 percent, well over the legal limit of 0.08 percent. Despite a previous DWI arrest in Hahnville and a DWI conviction in North Carolina, the trial court sentenced the defendant to serve eight years at hard labor, with seven years suspended, subject to |4three years’ active supervised probation. State v. Gourdine, 41,469 (La.App.2d Cir.12/13/06), 946 So.2d 277 (conviction affirmed, sentence vacated, remanded with instructions).

In another case, two men got a gun and called a taxi to pick them up. After entering the cab they pulled out the gun and had the taxi driver take them to a remote location. They robbed the cab driver and shot him in the back of his head. The bullet entered the back and exited through the front of his skull. Miraculously, the cab driver lived. The man the trial court found was the shooter received a 15-year hard labor sentence for the offense of attempted second degree murder and a five year concurrent term for the armed robbery; the other man received eight-year and five-year concurrent sentences. State v. Wills, 32,073 (La.App.2d Cir.06/16/99), 740 So.2d 741.

The defendant in this case has a clean record, an ex-wife and four kids. The ex-wife testified on his behalf, as did several witnesses who worked with both defendant and the victim. He threw one punch and was sentenced to 30 years at hard labor. I may not be able to tell it but I know it when I see it. This sentence is grossly disproportionate.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, MOORE and PITMAN, JJ.

Rehearing denied.

BROWN, C.J., and CARAWAY, J„ would grant rehearing.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Otis Lee SMITH, Appellant.
    No. 47,890-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2013.
    Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Charles R. Scott, II, District Attorney, G. Scott Brady, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and SEXTON (Ad Hoc), JJ.
   STEWART, J.

hThe defendant, Otis Lee Smith, was convicted of armed robbery, in violation of La. R.S. 14:64. He was sentenced to serve 25 years’ imprisonment, without benefit of probation, parole, or suspension of sentence, and 30 days in parish jail in lieu of court costs, to run concurrently with the other sentence. The defendant now appeals. Based on the following reasons, we affirm the defendant’s conviction and sentence.

PACTS

On February 27, 2009, the defendant and his brother, Terrell Lamon Kellum, were charged via bill of information with armed robbery, in violation of La. R.S. 14:64. The defendant waived his right to a jury trial, and a bench trial commenced on April 5, 2011. The following evidence was adduced at trial.

Brittany Henry testified that she went to her grandparents’ house on Silver Pine Road at approximately 8:30 p.m. in order to use the computer and internet service. Her uncle, Selento Lewis, who was living with his parents at the time, was present. As Brittany left the home, she noticed two African-American men standing by the side of the house and attempted to get in her car.

One of the men ran inside the home, while the other man ran up to Brittany and pointed a gun at her head. Brittany described the man who approached as about six feet tall with a short hair cut, wearing a red hoodie |2and a bandana across the lower portion of his face. The man instructed her to be quiet and led her into the house.

Once inside the house, Brittany observed that the other man, whom she described as about five feet, ten inches tall, also wore a bandana and had a gun. He repeatedly asked Selento, “Where it [sic] at? I know you got some money, where it [sic] at?” Selento responded he did not know what they were talking about and asked them not to hurt him or Brittany.

The two men instructed Brittany and Selento to lie on the floor. They then covered Brittany’s face with a pillow. Brittany overheard them raiding the house. When the two men returned Brittany and Selento, they instructed them undress and go into a bedroom closet. Brittany relayed that she cried, fearing they were going to rape her. One of the men struck her on the buttocks as she entered the closet.

While inside the closet, Brittany overheard the men ransacking the house, and she could hear one of them talking on the phone. She also heard a gun discharge. When Brittany and Selento thought the two men had left the house, they exited the closet and contacted the police. Brittany’s jewelry that she wore that day was stolen, along with her vehicle.

After making a statement to the police, Brittany was shown three photographic lineups. She identified Kellum as the taller perpetrator. She did not identify the defendant’s picture from the lineup.

Selento testified that his niece, Brittany, stopped by to use the computer and internet. When she left, Selento assumed that the door locked automatically behind her. When the door opened, he thought Brittany had |sreturned to get something that she had forgotten. He was surprised by a man putting a gloved hand around his mouth, putting a gun to his head, and ordering him to stand up. He relayed that the man had on darker clothing, either a black hoodie or a pullover sweater. When he stood, he saw another man, who was also wearing gloves, standing behind Brittany with a gun to her head. This man wore a red pullover, black shorts, and black tennis shoes. He stated that both perpetrators wore bandanas over their mouths.

The man who held Selento at gunpoint asked him, “Where it [sic] at?” He repeatedly asked Selento for money and dope, and threatened to kill him if he did not give it to him. Selento told him to take the “couple hundred dollars” he had and his jewelry. Although Selento admitted he was a drug dealer, he did not recognize the men and denied ever dealing with either one of them. He did not hear either man use names, but thought he had heard one call the other “Red” or “Rail.”

Selento relayed that the perpetrators made him and Brittany get on the floor, and one of them put his foot on his back and pointed the gun at him. He could hear the bedrooms being ransacked. Sel-ento also testified that the perpetrators made them undress and placed them in the closet. As they were walking toward the closet, Selento stated that one of the perpetrators hit Brittany on the butt, and commented that “if he had time, he’d rape her.”

One of the perpetrators commented that he knew Selento had just purchased new rims for his car because he didn’t have any on his car when he saw him the other day. Selento recalled seeing two young black males walking down the street in his neighborhood the day before. He explained |4that he had never seen the men before then. After reviewing the photographic lineups, Selento identified the defendant as one of the perpetrators, and as one of the young men he saw walking down the street the night before.

Selento testified that the perpetrators took Brittany’s belongings, along with his parents’ television, his mom’s purse that she had just received as a gift, some piggy banks, jewelry, clothes, shoes, a digital camera, and his vehicle. Brittany’s vehicle was recovered, but Selento’s vehicle was found burned in another area in Shreveport. The rims had been removed from his vehicle.

Four alibi witnesses, Latoya Kellum, Shekebra Smith, Dorothy Smith, and Mary Frazier, testified that the defendant attended a birthday party at his mother’s house for his niece at the time that the robbery took place.

Latoya, the defendant and Terrell’s sister, testified that the party was scheduled to start at 5:00 or 6:00 p.m., but it did not start until 9:00 p.m. and lasted about an hour. She explained that the party started late because it took awhile to obtain the decorations for it. Latoya stated that the defendant did attend the party, and when the party ended, went to a local casino with his mom and his wife.

To the contrary, Shekebra, also the defendant and Terrell’s sister, testified that the party began at 7:00 or 8:00 p.m., and lasted three or four hours, ending between 10:00 and 10:30 p.m. Shekebra relayed that the defendant was at the party the entire time, and took her home when it was over.

1 ¿Dorothy, the defendant’s mother, testified that the party started at 9:00 p.m., and lasted until about 10:00 p.m. After the party, she stated that the defendant accompanied her and his wife to a casino.

Mary, Dorothy’s friend, testified that she was on the phone with Dorothy a few minutes before 9:00 p.m., but got off the phone with her to watch the nine o’clock news. She stated that she overheard Dorothy yelling at the defendant “to stay out of the pots she had on the stove.”

Detective Russell Ross of the Shreveport Police Department testified that on February 27, 2009, he was called to the scene of the home invasion. He arrived around 10:30 p.m., and noticed that several of the rooms in the house had displaced furniture and that things had been taken off the walls. Consistent with Brittany’s statement that she overheard a gunshot while she was in the closet, Detective Ross found a shell casing and he saw damage to the base of the wall consistent with a projectile. Detective Ross took Brittany’s statement.

An audio recording of Detective Ross’s interview with the defendant was played in open court. Detective Ross testified that the defendant told him that he got married on February 7, 2009, and that he and his wife went to Natchitoches and remained there until March 1, 2009. The defendant denied being in Shreveport on February 27, 2009, at approximately 10:00 p.m. During the interview, the defendant instructed Ross to contact his mom to corroborate his story.

| (¡Detective Ross testified that although the police found fingerprints at the crime scene and in the stolen vehicles, none of the fingerprints recovered belonged to the defendant.

The trial court noted that there was a significant conflict between the defendant’s alibi and the testimony of the witnesses who stated he attended his niece’s birthday during the time in which the armed robbery occurred. It also recognized that Selento identified the defendant in a photographic lineup as one of the men that he had seen the day before, and as one of the men that participated in the armed robbery. Considering the testimony, arguments, and evidence, the trial court found the defendant guilty as charged.

On July 26, 2011, the trial court denied the defendant’s motion for a new trial, as well as his motion for post-verdict judgment of acquittal. During this hearing, the state expressed its intent to file a multiple offender bill charging the defendant as a third-felony habitual offender, and the trial court ordered a presentence investigation report. However, during the March 12, 2012, sentencing hearing, the state withdrew the multiple offender bill.

After considering the facts and circumstances of the case and the defendant’s prior criminal history, the trial court sentenced the defendant to serve 25 years’ imprisonment without the benefit of probation, parole, or suspension of sentence, to be served concurrently with any other sentence. It also imposed 30 days in the parish jail, in lieu of court costs, to run 17concurrently with the other sentence. The defendant was given credit for time served.

The defendant filed a motion to reconsider sentence, which was denied on April 24, 2012. He now appeals his conviction and sentence.

LAW AND DISCUSSION

Sufficiency of Evidence

We will begin our review with the defendant’s first assignment of error, in which he alleges that the evidence was insufficient to convict him of armed robbery. More specifically, he argues that Brittany did not identify him as one of the robbers and that Selento incorrectly identified him. The defendant also points out that the defense witnesses placed him at his niece’s birthday party during the robbery. Finally, he argues that no fingerprints were recovered that would connect him to the crime.

When issues are raised on appeal, both as to the sufficiency of evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. 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, 2789, 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). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation |sof the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson, supra.

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 jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; 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.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the state relies on circumstantial evidence to establish the existence of an essential element of a crime, the court must assume every fact that the evidence tends to prove and the circumstantial evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438; State v. Lilly, supra.

|Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/06/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). 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. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94; State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

La. R.S. 14:64, armed robbery, provides:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
11flB. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

The immediate control required of the armed robbery statute is satisfied when the property taken is within the presence of the owner. State v. Refuge, 300 So.2d 489 (La.1974). Armed robbery may occur where property taken is not in actual contact with the victim. State v. Boelyn, 432 So.2d 260 (La.1983).

Identification

Where the defendant denies participation in the crime, the state must negate any reasonable probability of misiden-tification in order to meet its burden of proof. State v. Youngblood, 41,976 (La.App.2d Cir.5/9/07), 957 So.2d 305, writ denied, 2007-1226 (La.12/14/07), 970 So.2d 530. Positive identification by only one witness may be sufficient to support a defendant’s conviction and establish the elements of crime beyond a reasonable doubt. Id.; State v. Washington, 2005-1055 (La.App. 4th Cir.7/18/01), 793 So.2d 376.

In the case sub judice, both Brittany and Selento testified that they were robbed by two men, and that both men were armed with a dangerous weapon, a handgun. The perpetrators took Brittany and Selento’s personal belongings, along with his parents’ television, his mom’s purse that she had just received as a gift, some piggy banks, jewelry, clothes, shoes, a digital camera, and his vehicle. These items were taken by force, with a handgun, and intimidation, since the perpetrators threatened to kill them if they did not cooperate.

lnBrittany was able to identify the perpetrator who accosted her as Terrell, but she was unable to identify the defendant. We note that the victims may have had difficulty identifying the perpetrators, since both men wore bandanas over the lower portion of their face. On the other hand, Selento identified the defendant as the man who robbed him on February 27, 2009. As mentioned in the facts section above, Selento testified that one of the perpetrators commented that he knew Sel-ento had just purchased new rims for his car because he didn’t have any on his car when he saw him the other day. Selento recalled seeing two young black males walking down the street in his neighborhood the day before that he had never seen before. After reviewing the photographic lineups, Selento was able to identify the defendant as one of the perpetrators, and as one of the young men he saw walking down the street the night before.

As such, we find that Brittany’s testimony, coupled with Selento’s, is reliable.

Alibi Witnesses

A defendant’s alibi may be rejected when inconsistencies exist between the defendant’s statement and the testimony of his alibi witness. State v. Green, 27,652 (La.App.2d Cir.1/24/06), 666 So.2d 1302, writ denied, 97-0504 (La.10/31/97), 703 So.2d 14.

During the defendant’s interview with Detective Ross, he told Ross that he got married on February 7, 2009, and that he and his wife went to Natchitoches and remained there until March 1, 2009. The defendant 112denied being in Shreveport on February 27, 2009, at approximately 10:00 p.m.

At times, the testimony of the defendant’s four alibi witnesses, Latoya, Sheke-bra, Dorothy, and Mary conflict each other, as well as the defendant’s statement. The defendant alleged that he wasn’t in Shreveport at all, while all of his alibi witnesses testified that he attended his niece’s birthday party during the time that the armed robbery took place. More specifically, Latoya testified that the defendant did get married in Shreveport, but to her knowledge the newlyweds did not go on any sort of honeymoon, not even to Natchitoches. She stated that they just “took a night off to have fun.” Latoya further testified that the defendant lived with her and their mother, Dorothy, even after he got married. The alibi witnesses’ testimonies regarding when the party started and ended conflict each other as well. Their testimonies also differed regarding where the defendant went after the party.

We also note that the photographs from the defendant’s niece’s birthday and the photographs of the defendant standing in his mother’s kitchen that were submitted as evidence that the defendant was at the niece’s birthday party at the time the armed robbery occurred did not have a time/date stamp on them. Therefore, they cannot positively establish that he was there at the time and date that the alibi witnesses alleged.

After a careful review of the record, we find that the record does not substantiate any of the defendant’s claims. None of the defendant’s alibi witnesses could place him at another location at the exact time the robbery | iatook place. Moreover, Selento saw the defendant walking down the street the day before and was able to easily identify him as one of the perpetrators when presented with the photographic lineups.

The trial judge made a reasonable credibility determination, rejecting the defendant’s alibi argument and believing the victims’ testimony. The record negates any reasonable probability of misidentification.

Fingerprints

The defendant argues that no fingerprints were recovered that would connect him to the crime. The absence of fingerprints can be explained by both Brittany and Selento’s testimony that the perpetrators wore gloves.

We find that the evidence presented at trial, viewed under the Jackson standard, was sufficient for the trial court to find that the elements of armed robbery were met, and that the defendant committed the armed robbery of Brittany and Solento pursuant to La. R.S. 14:64. This assignment of error therefore is without merit.

Excessiveness of Sentence

The defendant argues that his 25-year sentence is excessive. Even though a presentence investigation was ordered, the defendant asserts that the trial court’s comments at sentencing do not clearly indicate that it reviewed the report from the investigation. More specifically, the defendant contends that the trial court failed to articulate any mitigating factors pursuant to La. C. Cr. P. art. 894.1. He requests that his sentence be vacated and this case remanded for full consideration of the factors listed under this article. The defendant also argues that the portion of his sentence ordering him to serve 30 days in the parish jail be vacated because indigent | ^defendants may not be incarcerated for their inability to pay a fine that is part of their sentence.

As stated in the previous assignment, whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than 10 years and for not more than 99 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B).

The trial court is given wide discretion in imposing a sentence within minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473. On review, an appellate court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App.2d Cir.9/21/11), 73 So.3d 1021. Intertwined with our review of a sentence for exces-siveness is our review of the record to ensure that the trial court complied adequately with La. C. Cr. P. art. 894.1 and accorded proper weight to all relevant sentencing factors. State v. Smith, 433 So.2d 688 (La.1983).

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1 and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La.App.2d Cir.11/2/11), 77 So.3d 1052. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court 11Rtook cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46,572 (La.App.2d Cir.9/21/11), 73 So.3d 471; State v. Tatum, 47,292 (La.App.2d Cir.8/15/12), 103 So.3d 550. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.2d 388. The defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, the seriousness of the offense, and the likelihood of rehabilitation are some of the elements considered, but the trial court is not required to weigh any specific matters over other matters. 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, 08-2341 (La.5/15/09), 8 So.3d 581. All convictions and all prior criminal activity may be considered as well as other evidence normally excluded from the trial. State v. Platt, 43,708 (La.App.2d Cir.12/3/08), 998 So.2d 864, writ denied, 2009-0265 (La.11/6/09), 21 So.3d 305. There is no requirement that specific matters be given any particular weight at sentencing. State v. Tatum, supra; State v. Taves, 03-0518 (La.12/3/03), 861 So.2d 144; State v. Caldwell, 46,718 (La.App.2d Cir.11/2/11), 78 So.3d 799.

The second prong requires that a determination be made regarding the constitutional excessiveness of a sentence. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Tatum, supra; State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Washington, 46,568 (La.App.2d Cir.9/21/11), 73 So.3d 440, writ denied, 11-2305 (La.4/27/12), 86 So.3d 625. Normally, sentences at or near the maximum are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. Taylor, 41,898 (La.App.2d Cir.4/4/07), 954 So.2d 804.

The defendant was sentenced to serve 25 years’ imprisonment, without benefit of probation, parole, or suspension of sentence, and 30 days in parish jail in lieu of court costs, to run concurrently with the other sentence. Although the trial court did not articulate all factors enumerated in La. C. Cr. P. art. 894.1 when making its decision, the record reflects that it did consider the facts and circumstances in this case, as well the defendant’s criminal history that included numerous convictions for |17burglary and theft. Including the instant offense, the defendant is now classified as a third-felony offender.

We can assume the trial court considered the presentence investigation report since it was filed on February 15, 2012, nearly a month before the March 12, 2012, sentencing hearing. It appears that the trial court did not have any mitigating factors to consider. The report indicated that the defendant is not married, nor does he have any children. He dropped out in the 10th grade, did not obtain his GED, and stated that his last job was working as a driller for Gemini Production. The defendant did not indicate his dates of employment.

An indigent defendant cannot be subjected to default time in lieu of the payment of a fine, costs, or restitution. State v. Davenport, 43,101 (La.App.2d Cir.3/19/08), 978 So.2d 1189, writ denied, 2008-1211 (La.1/30/09), 999 So.2d 748; State v. Mack, 30,832 (La.App.2d Cir.6/24/98), 715 So.2d 126. The record reveals that on March 1, 2011, J. Antonio Florence enrolled as the defendant’s counsel of record and the court ordered the Indigent Defender’s office relieved. The defendant was not represented by the Indigent Defender’s office at the time his sentence was imposed. Furthermore, the parish jail time was imposed to run concurrently with the 25-year sentence, with credit for time already served.

After a thorough review of the record, we find that the trial court gave proper consideration to all sentencing factors. The severity of the defendant’s sentence does not shock the sense of justice and is not a 11sneedless infliction of pain and suffering. This assignment is therefore without merit.

CONCLUSION

For these reasons, we affirm the conviction and sentence of the defendant, Otis Lee Smith.

AFFIRMED.

      . Codefendant Terrell Kellum pled guilty to simple robbery on September 9, 2010. He was sentenced to five years’ imprisonment at hard labor, suspended, and three years supervised probation.


author: WILLIAMS, J.

text:
    Susan Lee Shope WORLEY, Plaintiff-Appellant v. Arnold Victor WORLEY, Defendant-Appellee.
    No. 47,997-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2013.

      Donald L. Kneipp, Monroe, LA, for Appellant.
    Alan J. Norris, West Monroe, LA, for Appellee.
    Before BROWN, WILLIAMS and MOORE, JJ.
   WILLIAMS, J.

| TPlaintiff, Susan Lee Shope Worley, appeals a district court judgment dismissing her claims with prejudice. For the following reasons, we affirm.

FACTS

Plaintiff, Susan Lee Shope Worley (“Susan”), and defendant, Arnold Victor Wor-ley (“Victor”), were married October 19, 1991. Two children, Victoria and Robert, were born during the marriage. On January 18, 2008, Susan filed a petition for divorce. The petition also included a request for “incidental matters,” including primary custody of the children, child support, exclusive use of the former matrimonial domicile, interim and permanent periodic spousal support and reimbursement for contributions she allegedly made to Victor’s education.

On January 25, 2008, the trial court conducted a telephone hearing with the parties. The court ordered Victor to vacate the family residence and awarded exclusive use of the home to Susan. The court also awarded temporary primary custody of the children to Susan.

On February 22, 2008, Victor filed an answer and reconventional demand, requesting temporary and permanent custody of the children and exclusive use of the matrimonial domicile and furnishings. Victor alleged that Susan was “voluntarily unemployed” and that she was at fault for the breakup of the marriage; therefore, she was not entitled to spousal support.

The trial court held a hearing on February 25, 2008. The court ordered Victor to pay $1,720 per month in interim child support and $2,500 in interim spousal support. It also ordered Victor to maintain family major medical insurance coverage, including dental and orthodontic care.

[2On April 8, 2008, a hearing officer conference was conducted. In his report to the court, the hearing officer made specific recommendations, including: (1) that the parties be awarded joint custody of the two minor children, with Susan named the domiciliary parent; (2) that Victor be ordered to pay $1,650 per month in child support and $2,800 per month in interim spousal support; (3) that Victor maintain health insurance coverage for Susan and the children; and (4) that Susan be awarded exclusive use of her vehicle pending further orders from the court. The trial court signed an interim order in accordance with the recommendations. Both parties filed objections to the hearing officer’s recommendations. A hearing was scheduled for September 11, 2008; however, the hearing was continued without date.

Thereafter, Victor filed various motions to compel responses to discovery requests, alleging that Susan had either refused to respond to discovery or had provided incomplete answers to requests. On at least two occasions, the trial court granted Victor’s motions to compel and ordered Susan to pay the costs associated with the motions.

On March 24, 2009, Victor filed a “motion for judgment of divorce,” alleging that he and Susan had lived separate and apart continuously since the filing of the petition for divorce. The judgment of divorce was rendered April 6, 2009.

On August 6, 2010, Susan filed a contradictory rule, requesting that |sthe court, inter alia, (1) reset the hearing regarding the parties’ objections to the hearing officer’s recommendations; (2) compel Victor to complete his answers to her discovery requests; (3) compel Victor to pay a proportionate share of the children’s extracurricular activities; (4) extend interim spousal support for six additional months; (5) award final periodic spousal support; and (6) order partial partition of the community property in order to disburse certain proceeds from a lawsuit involving a former community asset.

On March 10, 2011, Victor filed a motion to dismiss Susan’s objections to the hearing officer’s recommendations. He argued that the objections were set for hearing on September 11, 2008, but they were continued without date. According to Victor, the objections were abandoned because they were not timely reset for hearing. Victor also filed peremptory exceptions of no right and/or no cause of action, arguing that Susan did not have a right to seek a partial partition of community property, and that she did not have a right to claim an extension of interim spousal support because the judgment of divorce was rendered on April 6, 2009. Additionally, Victor filed a motion to compel answers to interrogatories and requests for production of documents which had been sent to Susan’s counsel on February 18, 2011.

The hearing regarding Susan’s requests and Victor’s responses was held on March 14, 2011. During the hearing, Susan testified that Victor had not paid interim spousal support from April 6, 2009, through October 6, 2009. Contrarily, Victor testified that he had paid interim spousal support for the months at issue. At the conclusion of the hearing, the trial court: (1) [.(granted Victor’s motion to dismiss Susan’s objections to the hearing officer’s recommendations on grounds of abandonment; (2) sustained Victor’s exception of no right of action with regard to Susan’s request for an extension of interim spousal support; (3) denied Susan’s motion to partially partition a community asset; (4) granted Victor’s motion to compel responses to discovery; (5) denied Susan’s motion to compel; (6) ordered Susan to produce her bank statements and deposit receipts within 15 days; and (7) ordered Victor to produce documentation of his payment of interim spousal support from April 6, 2009 through October 6, 2009.

On April 14, 2011, Victor produced documentation to the trial court that he had paid the interim monthly spousal support payments. Victor also requested that Susan be sanctioned, alleging that she falsely testified, under oath, that he had failed to pay interim spousal support from April 6, 2009, through October 6, 2009. On April 25, 2011, Victor filed a supplemental motion for sanctions, alleging that Susan had falsely stated that he had failed to pay child support for the month of April 2011.

The matter came for hearing on April 8, 2011. The trial court found Susan in contempt for providing false testimony with regard to the payment of interim spousal support. The court also found Susan in contempt for failing to comply with the court’s order to produce her banking records. The court sentenced Susan to serve 30 days in jail, suspended the sentence, | sand placed her on unsupervised probation for one year. Susan was ordered to pay all costs associated with the proceedings and $1,500 in attorney fees incurred by Victor.

On September 2, 2011, Susan filed a “Rule to Show Cause, Motion to Reset and Motion to Dismiss.” In this filing, Susan moved, inter alia, (1) to have Victor held in contempt for failure to comply with the court-ordered summer-visitation schedule; (2) to have Victor held in contempt for failing to follow the court-ordered Christmas-holiday visitation schedule for the 2010 holiday; (3) to have Victor held in contempt for attempting to convince one of the children to spend time with him outside of the visitation schedule; (4) to increase child support, asking the court to consider Victor’s expense-sharing with his new wife for the purposes of calculating his child support obligation; (5) to have Victor pay his proportionate share of Victoria’s private school costs; (6) to have Victor pay his proportionate share of the children’s extracurricular activities; (7) to have Victor pay the costs of transportation for the visitation exchange with the children, as Victor now lives in Dallas, Texas; and (8) to reset her rule for final periodic spousal support.

On October 5, 2011, Victor filed a motion to compel Susan “to fully respond to a set of interrogatories and requests for production of documents” propounded on April 13, 2011. Victor also requested that Susan be held in contempt for failing to pay costs as previously ordered by the court, for failing to pay attorney fees incurred by Victor as ordered by the court and for failing to comply with the court’s previous orders to | ficomply with discovery. A hearing was scheduled for December 6, 2011.

On December 2, 2011, Susan’s counsel filed a motion to continue the December 6, 2011 hearing and to withdraw as counsel of record. She also requested an emergency status conference. Susan’s counsel alleged that she (counsel) was unable to complete the discovery responses on Susan’s behalf. Counsel also alleged that she desired to withdraw as Susan’s counsel “due to personal professional and health reasons!.]” The trial court denied the motion to reset the hearing and ordered Susan to show cause as to why her counsel should not be allowed to withdraw. The hearing remained scheduled for December 6, 2011.

At the conclusion of the hearing, the court granted Victor’s motion to compel and ordered Susan to complete all requests for discovery by January 5, 2012. The court also found Susan in contempt for failing to pay costs and attorney fees as ordered. Susan was ordered to pay an additional $1,000 in attorney fees incurred by Victor, as well as the costs associated with his latest motion to compel. The court denied counsel’s motion to withdraw.

On February 9, 2012, Victor filed a motion to dismiss Susan’s claims, arguing that Susan had failed to complete answers to his requests for discovery. A hearing was scheduled for July 24, 2012.

On the date of the hearing, Susan’s counsel filed a motion to withdraw. Counsel alleged that she had notified Susan of the hearing date and had requested to meet with her to prepare for the hearing; however, she was unable to negotiate a “convenient time” to meet with Susan. Counsel also alleged that Susan had not paid her legal fees and would not agree to 17disburse funds held in escrow to pay counsel. Further, counsel alleged that she had reminded Susan of the hearing date two days prior to the hearing, but Susan responded that she “had never agreed to a court date” and that counsel had not informed her of the date. According to counsel, Susan instructed her to “cancel court” and informed counsel that if she went to court, “it would be pro bono and not authorized by Susan Worley.”

The hearing was held as scheduled, but Susan failed to appear. The court granted counsel’s motion to withdraw “on the basis of lack of communication” between Susan and her counsel. Additionally, the trial court granted Victor’s motion, dismissing all “financial related rules and motions” filed by Susan. In its oral reasons, the court stated:

T[ ]he Court has attempted to work with Ms. Worley to get — to get us to a position where we could hear all of the appropriate rules and motions and so forth and move this matter along.
[T]he Court has stayed its hand during this three or four times that it’s had to deal with contempt motions because of her failure to cooperate and to produce discovery timely and what is at stake is this, it is — it is simply the money she’s asking for from Mr. Worley. First she argues in her filing that she’s entitled to reimbursement from him because she worked while he went to school to get his degrees which resulted in him making a real good income over the years. But of course they lived together for many years after he came into a time when he was making a lot of income and so the children and [she] benefitted from that so she likely wouldn’t have prevailed on that anyway, that aspect of it. But then permanent spousal support, of course we have this problem with the interim spousal support and having to find her in contempt for lying about him not paying that timely. The Court is not angry or upset with Ms. Worley at all but the Court has come to a place where it agrees |8that it is time to take action in this matter in the way of a sanction beyond simply awarding attorneys fees and court cost[s]. And the record shows that she could even now have substantial money in the five figure category in her hands if she were to cooperate even with her own lawyer in the matter which she has not done.
The Court is going to grant the motion to dismiss all of the financial claims Susan has made except as it relates to the children. Now this dismissal does not affect any entitlement the children have under prior orders of the court. And so Mr. Worley is ordered to continue to comply with all financial obligations relative to the children.

The following day, the court signed a written judgment dismissing, with prejudice, “all financial related rules and motions filed by [Susan], including but not limited to the rule for permanent spousal support and claims for contribution to the education or training of her former spouse[.]”

Susan appeals.

DISCUSSION

Susan contends the trial court erred in dismissing her claims with prejudice. Susan argues that Victor never requested a dismissal with prejudice, and the trial court failed to make any findings regarding her knowledge, culpability and bad faith prior to dismissing her claims.

LSA-C.C.P. art. 1471 provides, in pertinent part:

A. If a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others any of the following:
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
_k*
C. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. LSA-C.C.P. art. 1673. Dismissal with prejudice is a severe penalty that should be applied only in extreme circumstances. Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199; L & M Products, Inc. v. State, Dept. of Transp. & Dev., 29,998 (La.App.2d Cir.12/10/97), 704 So.2d 415. Because the sanction of dismissal involves property rights, it should be reserved for the most culpable conduct. Id.

In a motion to dismiss based on the failure to comply with discovery requests, the non-compliant party should be clearly aware that his action or inaction will result in dismissal of his case. L & M Products, supra; Allwein v. Horn, 558 So.2d 810 (La.App. 5th Cir.1990). Nonetheless, the trial judge has much discretion in selecting the appropriate sanctions for failure to comply with discovery orders, and a judgment granting a sanction will not be disturbed on appeal absent a clear showing of abuse of discretion. Id.

In Horton, supra, the Louisiana Supreme Court set forth the following four factors for consideration before granting a dismissal or default judgment against a defendant who had established a pattern of intentionally withholding discoverable information from the opposing party: (1) whether the violation was willful or resulted from inability to comply; |10(2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party’s trial preparations; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.

In Johnson v. Bell, 2011-1348 (La.App. 4th Cir.2/15/12), 85 So.3d 216, defendants propounded discovery to plaintiff and plaintiff failed to respond. When defendants filed a motion to compel discovery, neither plaintiff nor his attorney appeared at the hearing. The trial court granted the motion to compel and granted plaintiff 15 days to comply with the requests for discovery. Subsequently, defendants filed a motion to dismiss for failure to comply with discovery; the court granted the motion and dismissed plaintiffs claims with prejudice. Plaintiff then moved for new trial; the trial court granted the motion and ordered plaintiff to provide written discovery responses and to attend a deposition and an independent medical examination. Plaintiff failed to do so, and defendants filed a motion to compel. Again, neither plaintiff nor his attorney appeared at the hearing. The court granted the motion to compel and ordered plaintiff to comply within 10 days. Approximately four months later, defendants filed a motion to dismiss and/or motion to compel. Again, the court issued a judgment ordering plaintiff to comply with defendants’ requests for discovery. Plaintiff failed to respond as ordered; therefore, defendants filed another motion to dismiss. The court granted the motion and dismissed plaintiffs claims with prejudice. The court of appeal reversed, finding that the trial court abused its discretion by dismissing the claims. The court Instated:

[Tjhere is no evidence that [plaintiff] himself knew of any of the court orders compelling discovery. [Plaintiff] never appeared in court for any of the motions to compel and/or motions to dismiss for failure to respond to the court-ordered discovery. A party who lacks knowledge of a court order cannot willfully disobey such an order.
⅜ * *
[T]here is no evidence that any other sanction was considered and/or imposed. [0]ther sanctions are available.
Additionally, defendants never alleged that they were prejudiced in their trial preparation by the failure to comply with the court-ordered discovery. Further, there is no evidence in the record that [plaintiff] participated in the violation of the court’s orders compelling discovery as there is no evidence that [plaintiff] knew of the court orders compelling discovery.
⅜ * ⅜

Id. at 220-21. The supreme court granted defendant’s writ application, reversed the court of appeal’s judgment, and reinstated the trial court’s order of dismissal. The Court stated:

While dismissal is a draconian penalty which should only be applied in extreme cases, it does not appear that the district court abused its discretion in ordering dismissal under the facts of the present case. There is sufficient evidence to support the conclusion that plaintiffs failure to comply with discovery was willful and warranted the harsh remedy imposed by the district court.

Johnson v. Bell, 2012-0600 (La.5/18/12), 89 So.3d 1200 (internal citations omitted).

In the instant case, throughout this protracted litigation, the trial court ordered Susan to respond to discovery on several occasions. After Susan failed to respond as ordered, the court patiently issued more rulings ordering [ iaher to respond. When Susan continued in her delinquency, the court attempted to discourage her from disobeying its discovery orders by ordering her to pay costs associated with the motions to compel. Still, Susan did not respond to discovery requests and did not pay the costs as ordered. Susan continued to disobey the court’s orders; therefore, the court, again, ordered her to comply with discovery and to pay costs. Nevertheless, Susan did not comply and did not pay costs. When Victor filed another motion to compel and a request for sanctions, the court ordered Susan to comply; Susan was also ordered to pay costs, as well as attorney fees in the amount of $1,500. Susan’s behavior did not improve; she continued to disregard the court’s orders for discovery and payment of costs and fees. When Susan disregarded the court’s orders, yet again, Victor filed another motion to compel and requested that she be held in contempt and sanctioned. The court ordered Susan to respond to requests for discovery by January 5, 2012, and held her in contempt for her failure to pay court costs and attorney fees as ordered. Again, the court ordered Susan to pay costs and attorney fees previously assessed, in addition to another $1,000 in attorney fees. Yet again, Susan disregarded the court’s order. When Victor filed a motion to dismiss Susan’s claims, Susan responded by refusing to meet with her attorney and refusing to attend the hearing, on the basis that she did not “agree to” the hearing scheduled by the court.

Under the facts of this case, we find that the trial court did not abuse its discretion in dismissing, with prejudice, Susan’s financial claims. The record contains ample evidence to show that Susan continuously and |iawillfully failed and/or refused to comply with multiple requests for discovery, despite the court’s prior sanctions. Susan was present at various hearings during which her failure to comply with discovery requests was a source of contention. The court ordered less drastic measures, such as the payment of costs, attorney fees and sanctions. Yet, Susan refused to comply and refused to pay the costs and fees. Susan doggedly interfered with Victor’s ability to prepare for trial by refusing to produce her financial records (despite the court’s specific order that she do so) and proof of her monthly living expenses. Susan’s trial counsel stated on the record that she had explained the judicial process to Susan, and this court has little doubt that Susan, a college-educated woman, understood the process. Consequently, we must agree with the trial court that Susan’s conduct warranted the harsh remedy of dismissal of her financial claims with prejudice.

Additionally, the trial court stated on the record that the order of dismissal would not affect any claims regarding the children. However, the written judgment provided for the dismissal of “all financial related rules and motions filed by [Susan], including but not limited to the rule for permanent spousal support and claims for contribution to the education or training of her former spouse[.]” The judgment did not mention the claims regarding Victor’s proportionate share of the children’s private schooling, extracurricular activities and transportation for the children for the purposes of visitation. Accordingly, we clarify that only Susan’s financial claims with regard to herself (permanent spousal support and claims for | ^reimbursement for her contribution to Victor’s education) are dismissed with prejudice. All financial claims regarding the children remain viable.

CONCLUSION

For the reasons set forth herein, the trial court’s judgment is affirmed. Costs of this appeal are assessed to plaintiff, Susan Lee Shope Worley.

AFFIRMED.

      . On October 31, 2008, the trial court ordered Susan to "answer or respond completely and under oath the interrogatories and request for production of documents sent to her[.]” She was assessed with "all costs associated with the motion to compel.” On February 25, 2009, Susan was again ordered to pay the costs associated with another motion to compel filed by Victor.

      . Subsequently, on April 14, 2011, the court ordered that "a partial disbursement in the amount of [$30,000] shall be made of the monies presently held in the Paul Hurd, Attorney at Law, trust account through the successful litigation of [a tort suit filed by Victor and Susan].” The court ordered that each party receive payment of $15,000.

      . Subsequently, Susan dismissed her claim that Victor had failed to pay child support in April 2011.

      . According to counsel's assertions on the record, Victor had agreed to disburse the remainder of the funds being held in escrow; however, Susan refused to do so.


author: LOLLEY, J.

text:
    Everlee JACKSON, Plaintiff-Appellant v. Billy R. HERRING and Edith Herring, Defendants-Appellees.
    No. 48,019-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2013.
    Rehearing Not Considered June 14, 2013.

      Ron Christopher Stamps, Shreveport, LA, Britney A. Green, Mansfield, LA, for Appellant.
    Wilkinson, Carmody & Gilliam, Shreveport, LA, by Arthur R. Carmody, Jr., for Appellees.
    Before MOORE, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

11Everlee Jackson appeals the judgment of the 42nd Judicial District Court for the Parish of DeSoto, State of Louisiana, in which the trial court ordered Jackson to pay half the costs for the expert surveyor originally retained by the defendants, Edith and Billy Herring. For the following reasons, we affirm the trial court’s judgment.

Facts

The genesis of this instant appeal is an opinion rendered by this court in a boundary matter, Jackson v. Herring, 46,870 (La.App.2d Cir.01/25/12), 86 So.3d 9 (“Jackson I ”). In that case, Jackson appealed a judgment dismissing her suit captioned as a “Petitory Action with Request for Declaratory Relief’ against the Herrings concerning a small piece of property near Grand Cane in DeSoto Parish. In short, the Herrings had fenced the disputed property which Jackson claimed ownership. The trial court ruled in favor of the Herrings, and Jackson I reversed the trial court’s judgment. The matter was remanded to the trial court to fix the boundary in accordance with La. C.C. art. 794.

On remand to the trial court, Jackson filed a Motion Requesting Rendition of Final Judgment and Taxing of Costs. A hearing was conducted, and at that hearing the trial court assessed (among other things) trial court costs equally to both parties. Included in that amount was the survey cost to Michael Bowman of $15,275.76, which the trial court deemed to be a “cost of court.” Jackson appeals the trial court’s judgment.

1 2Piscussion

On appeal, Jackson raises one assignment of error, arguing that the trial court erred in ordering her to pay half the costs of the expert surveyor, Bowman, where Jackson neither chose, recommended, nor agreed to that expert’s services. According to Jackson, in her original petition she requested that the trial court order a survey of the disputed tract of land. However, that request was never complied with, and the trial court did not appoint a surveyor. Jackson maintains that the surveyor, Bowman, was hired by the defendants, and that he surveyed the property and testified as a defense expert at trial. According to Jackson, Bowman was hired on the defendants’ own volition, and Bowman’s services were not utilized by Jackson. Thus, Jackson maintains that selection and use of Bowman’s services amount to a litigation expense and not a court cost. We disagree.

Louisiana C.C.P. art.1920 states that:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

The allocation of court costs among the parties is a matter which is subject to the discretion of the trial court and its allocation of those costs will not be disturbed absent evidence of an abuse of that discretion. Shreveport Elec. Co., Inc. v. Oasis Pool Service, Inc., 38,776 (La.App.2d Cir.09/29/04), 889 So.2d 274, writ denied, 2005-0340 (La.04/01/05), 897 So.2d 613; Street v. May, 35,589 (La.App.2d Cir.12/05/01), 803 So.2d 312.

Here, the survey in question, prepared by Bowman at the request of the defendants, cost $15,275.76. That survey, relied on heavily in Jackson I, was instrumental in the favorable conclusion to Jackson that the boundary of the disputed Lot 14 extended north of the highway (the defendants argued that Lot 14 was located entirely on the south side of the highway). In Jackson I, 86 So.3d at 17, this court noted that:

[T]he trial court overlooked ... evidence that Lot 14 includes a strip of land north of the highway that is adjacent to Lot 15. Ms. Jackson’s title, which includes the strip north of the highway, provides the juridical link needed to utilize tacking under La. C.C. art. 794 to that which is possessed beyond title and within visible bounds.

Because it was determined by the survey that Lot 14 extended across the road and up to the Herring’s property, Jackson was allowed to utilize tacking and possess beyond her title. This included the “old red house” referred to in the litigation and which Jackson described her ancestors as having possessed.

Whereas, Jackson argues she had no input as to the selection of Bowman as surveyor, it is apparent she would not have prevailed without the Bowman survey as evidence showing that Lot 14 was indeed contiguous with the property in question and was not confined to south of the highway as claimed by the Herrings. Although seemingly an unorthodox decision by the trial court, its ruling as to the surveyor’s fee was undoubtedly proper and “equitable” as required under La. C.C.P. art.1920. Therefore, we conclude |4that the trial court’s judgment assessing equally the cost of the Bowman survey was not an abuse of discretion.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court assessing equally the survey expense of surveyor Michael Bowman. Costs of this appeal are assessed to Everlee Jackson.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, MOORE, LOLLEY and PITMAN, JJ.

Rehearing not considered, not timely.

CARAWAY, J., would deny rehearing.