author: COOKS, Judge.

text:
    Maria MONTE, et al. v. STATE FARM MUTUAL AUTOMOBILE INS. CO., et al.
    No. 13-979.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 2014.

      Kevin S. Frederick, James P. Doherty, III, Lafayette, LA, for Plaintiffs/Appellants Maria Monte, Glenn Monte and Amanda Monte.
    Terry Rowe, Rowe & Middleton. Lafayette, LA, for Defendants/Appellees Brent M. Turner and State Farm Mutual Automobile Ins. Co.
    Louis C. Lacour, Jr., Adams & Reese, L.L.P., New Orleans, LA, for Defendants/Appellees Ray Chevrolet-Olds, Inc., John B. Love, and Granite State Insurance Company.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

REACTS AND PROCEDURAL HISTORY

This personal injury lawsuit arises out of a May 5, 2009 automobile accident that occurred on Highway 167 South between Maurice and Abbeville. On that date, Plaintiff, Maria Monte, who was the manager of a Burger Kang restaurant in Abbe-ville, was picking up supplies for her restaurant.

Mrs. Monte was driving her Chevrolet Trail Blazer in a southerly direction in the right lane of Hwy. 167, with her cruise control set at 55 MPH. Behind Mrs. Monte, in the same lane of Hwy. 167 was John Love, in his Chevrolet Silverado pickup truck. As Mrs. Monte approached a median crossover, Mr. Love attempted to pass her in the left, passing lane. At the same time, stopped in the median crossover, was a vehicle driven by Brent Turner, who had been driving north on Hwy. 167 in the opposite direction.

Apparently, Mr. Turner accidently placed his foot on both the brake pedal and accelerator, causing his vehicle to creep into the southbound, right lane of Hwy. 167. At this time, Mr. Love, who had begun passing Mrs. Monte in that lane of travel, saw Mr. Turner’s vehicle entering the lane and realized he would not be able to continue in that lane. In response to this, Mr. Love abruptly switched into the southerly, right lane of travel. Upon switching lanes, Mr. Love stated the right tires of his vehicle encroached onto the shoulder of the highway. Mr. Love then applied his brakes and moved his truck fully back onto the right lane of travel. Upon fully re-entering the right lane, Mr. Love immediately applied his brakes and then attempted to accelerate his vehicle. At this moment, Mrs. Monte’s vehicle crashed into the rear of Mr. Love’s truck.

Mrs. Monte testified, upon seeing Mr. Love’s swerve his vehicle into her lane of travel and onto the shoulder, she hit her brakes to disengage her cruise |4control. However, she was unable to stop before colliding with the rear of Mr. Love’s vehicle.

There was a dispute as to whether Mrs. Monte’s vehicle struck Mr. Love’s vehicle twice. Mrs. Monte denied she struck Mr. Love’s vehicle twice. Mr. Love testified that Mrs. Monte’s SUV initially struck his vehicle immediately after he reestablished his vehicle fully in the right lane of Hwy 167, just as he was beginning to accelerate after having avoided the hazard created by Mr. Turner’s vehicle creeping into the left lane of travel. Mr. Love further stated he came to a stop only after and because Mrs. Monte initially rear-ended him; and after he stopped, Mrs. Monte’s vehicle struck his truck a second time.

As a result of the accident, Mrs. Monte suffered a herniated disc in her neck. She underwent extensive treatment and eventually had an interior cervical discectomy and fusion on February 11, 2010. Two years later, after enduring severe, constant pain, she underwent a four level cervical decompression and fusion on May 21, 2012.

Mrs. Monte filed a suit for the damages she endured as a result of the accident. Also joining the suit were her husband, Glenn Monte, and her daughter, Amanda Monte, who sought damages for their loss of consortium. Named as defendants were John Love, Ray Chevrolet-Olds, Inc., Mr. Love’s employer, and the general and excess liability insurers of Ray Chevrolet Olds. At the time of the accident, Mr. Love was in the course and scope of his employment, thus triggering Ray Chevrolet-Old’s vicarious liability. Also named as defendants were Brent Turner and State Farm, the liability insurer of Mr. Turner’s vehicle.

The matter was tried by a jury on April 8-11, 2018. The jury returned a verdict finding Brian Turner 90% at fault, Maria Monte 10% at fault and John Love free from fault. Maria Monte was awarded special damages of $800,000.00 and general damages of $200,000.00. No awards for loss of consortium were |5made to Glenn Monte or Amanda Monte. A judgment reflecting the jury’s verdict was executed and made final. Maria, Glenn and Amanda Monte appealed the judgment, asserting the following assignments of error:

(1) During jury selection, the trial court erred in overturning the challenge for cause of a juror;
(2) The trial judge failed to instruct the jury on the relevant case law interpreting application of the relevant statutes from the Louisiana Highway Regulatory Act;
(3) The jury erred in assigning no fault to John Love;
(4) While instructing the jury, the trial judge failed to explain the elements of general damages to the jury;
(5) When drafting the jury verdict form, the trial court failed to divide any of the elements of general damages;
(6) When drafting the jury verdict form, the trial court failed to divide any of the elements of special damages;
(7) The jury erred in only awarding $300,000.00 in special damages;
(8) The jury erred in only awarding $200,000.00 in general damages;
(9) The jury erred in failing to award loss of consortium awards to Glenn and Amanda Monte;

Brent Turner, and his insurer, State Farm, have answered the appeal and assert the trial court erred in its apportionment of fault. They contend the jury erred in assessing 90% fault on Mr. Turner, in not assessing some portion of fault to Mr. Love and assessing only 10% fault to Mrs. Monte.

ANALYSIS

I. Jury Selection.

In its first assignment of error, plaintiffs contend the trial court abused its discretion in refusing challenge for cause as to potential juror, Frank deGraauw, Jr. Plaintiffs note that during the jury selection process, Mr. deGraauw, acknowledged a personal relationship with the owners of Ray Chevrolet Olds, and stated at one point it would be “difficult” to do his duty as a juror. Mr. deGraauw also | (¡acknowledged he had been sued on the basis of vicarious liability as the owner of a company, the same position as Ray-Chevrolet Olds. Plaintiffs asked the trial court to excuse Mr. deGraauw for cause. The trial court denied the challenge for cause, and the plaintiffs then used one of their peremptory challenges on Mr. deGraauw to exclude him from the jury.

Plaintiffs note a juror may be challenged for cause “when the juror has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial,” or “when the relations by blood, marriage, employment, friendship, or enmity between the juror and any party or his attorney are such that it must be reasonably believed that they would influence the juror in coming to a verdict.” La.Code Civ.P. art. 1765(2) and (3).

In Raymond v. Government Employees Ins. Co., 09-1327, p. 3 (La.App. 3 Cir. 6/2/10), 40 So.3d 1179, 1184, this court discussed the appellate review for denials of challenges for cause:

A trial court has great discretion in ruling on challenges for cause and the appellate court should not disturb its ruling unless the voir dire as a whole indicates an abuse of discretion. Bannerman v. Bishop, 28,382 (La.App. 2 Cir. 7/2/96), 688 So.2d 570, writ denied, 96-2755 (La.1/10/97), 685 So.2d 146. A prospective juror’s friendship, acquaintance, or previous employment of an attorney on an unrelated matter does not necessitate the granting of a challenge for cause if the juror makes it clear that such a relationship would not affect his or her verdict. In re Medical Review Panel on Behalf of Laurent, 94-1661 (La.App. 1 Cir. 6/23/95), 657 So.2d 713.

While plaintiffs correctly note Mr. de-Graauw expressed some trepidation that he might have “difficulty” applying the law to his friends in this case, he did state he would do his duty if he were selected for the jury. The trial court questioned Mr. deGraauw about any possible “difficulty” he might have:

THE COURT: Okay. All right. So you’re going to have some difficulty with it?
MR. DEGRAAUW: Well, it would be difficult.
THE COURT: You would rather not?
17MR. DEGRAAUW: I would rather not.
THE COURT: But if it’s your duty?
MR. DEGRAAUW: If it’s my duty, I would do it.

The trial court, aware that Mr. deGraauw acknowledged a friendship with one of the defendants, after further examination believed Mr. deGraauw would have been a fair juror. As to plaintiffs argument that Mr. deGraauw would have difficulty applying the law of vicarious liability due to his ownership of companies that had been sued in the past, it was revealed in further examination that Mr. deGraauw had worked for insurance companies and rehabilitation specialists in the past. In that capacity, Mr. deGraauw explained he had, on numerous occasions, worked on behalf of plaintiffs in personal injury cases.

Considering the broad discretion given to the trial judge in determining challenges for cause, we cannot say that the trial court abused that discretion in refusing the challenge for cause as to Mr. de-Graauw. We also note that Mr. deGraauw was not a member of the jury, as plaintiffs used a peremptory challenge to excuse him. There has been no argument made by plaintiffs that they would have challenged another juror that was seated on the jury. Accordingly, we find no merit to this assignment of error.

II. Jury Instructions on Statutes Governing Liability.

In their second assignment of error, plaintiffs contend the trial court inadequately explained the law governing the issue of liability in this case. Specifically, plaintiffs argue “while instructing the jury on the duties of the parties, the trial judge failed to provide any instruction from the cases interpreting the statutes. Rather, he simply read the statutes from the Louisiana Highway Regulatory Act.”

IsTrial courts are required to “instruct jurors on the law applicable to the cause submitted to them.” La.Code Civ.P. art. 1792(B). Adequate jury instructions “fairly and reasonably point out the issues and ... provide correct principles of law for the jury to apply to those issues.” Adams v. Rhodia, Inc., 07-2110, p. 6 (La.5/21/08), 983 So.2d 798, 804. “If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error.” Id. Louisiana jurisprudence is well established that appellate courts must exercise great restraint before reversing a jury verdict because of erroneous jury instructions. Id. Trial courts are given broad discretion in formulating jury instructions and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. Id.

A reading of the record shows the trial judge reviewed, in detail, the statutory law that governed liability in this case to the jury. He noted his preference to read the statutes to the jury rather than read from cases which might have substantially different facts. We find no reversible error in the jury instructions made by the trial court in this case on the liability issues before the jury.

III. Jury’s Finding of No Fault on Part of John Love.

Next, plaintiffs argue the jury manifestly erred in finding Mr. Love free from fault in causing the accident. Plaintiffs contend the facts at trial established Brent Turner came to a full stop in the median crossover; thus Mr. Love was not required to abruptly switch lanes to avoid hitting Mr. Turner’s vehicle. This, of course, is contrary to the version of facts presented by Mr. Love, who testified Mr. Turner’s vehicle slowly moved into his lane of travel presenting him with a sudden emergency situation, requiring him to swerve quickly into the other lane to avoid hitting Mr. Turner’s vehicle. Essentially, plaintiffs ask this court to accept the version of facts presented by Mr. Turner over the version of facts supplied by Mr. RLove. The jury obviously chose to accept Mr. Love’s version, and we cannot find such a decision to be manifestly erroneous unless we find the credibility and factual determinations of the jury to be unreasonable. After a thorough review of the record, we find the jury’s fact and credibility determinations to be reasonable.

Of particular note, the jury heard the testimony of Maria Monte, who was asked to read her written statement made just shortly after the accident. That statement read as follows:

Heading south on 167 on the right side of highway. Cruise was set on 55. A white Silverado was on the left side. They had a silver vehicle crossing the median. Looked like he was not going to stop. So to avoid the accident, white Silverado swerved to miss it but cut across the highway. I then hit him from the back. Tried to avoid, but still hit him.

There was some questioning of Mrs. Monte by counsel for Mr. Turner at trial that much of this statement was what was told to her by Mr. Love. It was also brought out at trial that this version of events, which Mrs. Monte gave to law enforcement, was the same as that alleged in her petition. Certainly, this corroboration of Mr. Love’s testimony may well have influenced the jury’s ultimate conclusion that Mr. Love’s actions were prompted by the sudden emergency created by Mr. Turner’s vehicle.

Mr. Love argued to the jury that the “sudden emergency doctrine” insulated him from liability under the facts of this case. Our Louisiana Supreme Court, in Hickman v. Southern Pacific Transport Co., 262 La. 102, 112-13, 262 So.2d 385, 889 (1972), discussed the sudden emergency doctrine:

One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

|inThus, accepting the version of facts offered by Mr. Love and corroborated by Ms. Monte’s written statement and petition, the jury was reasonable in finding Mr. Love free from fault.

We also find no merit to Mr. Turner and State Farm’s argument that the trial court erred in its assessment of fault. Accepting the version of facts that Mr. Turner’s vehicle came into Mr. Love’s lane, which was reasonable on the jury’s part, we cannot say there was any manifest error in assessing Mr. Turner with 90% fault. We also find no merit in the argument that the jury erred in only assessing 10% fault to Mrs. Monte. She was presented with the same sudden emergency that Mr. Love was due to the actions of Mr. Turner. We note the jury easily could have determined that Mrs. Monte was not at fault in causing the accident, for the same reasons it found relating to Mr. Love. However, it chose to cast her 10% at fault, and we certainly find nothing in the record to support raising that figure to a higher percentage.

IV. Jury’s Instruction on Elements of General Damages.

In its fourth, fifth and sixth assignments of error, plaintiffs argue the trial judge committed reversible, legal error when he failed to instruct the jury on the elements of general damages and provided the jury with a verdict form that did not separate the elements of special and general damages.

In his final instructions to the jury, the trial judge addressed the subject of general damages as follows:

General damages is the other kind of damages. If you find for the plaintiff and you do award special damages, you must also at least consider an award for general damages. What that means is you can’t say, well, we’re just going to— we’re just going to give medical and lost income. We’re not even going to look at anything else, or we’re just going to give medical and lost income. You have to at least consider the damages I’m going to tell you. You don’t have to give them, but you must at least consider them.
So these are damages that can’t be documented exactly. They can’t be calculated mathematically.... So, while it may not be Impossible to establish the exact amount of general damages, the plaintiff must still prove by the weight of the evidence that the damages claimed were actually sustained or will be sustained in the future. You must not award damages that are merely speculative, those that you think might have been suffered or might be suffered in the future.
Since the amount of these damages cannot be supported by exact evidence, like an invoice, you simply have to determine them by applying your experiences in life, your sound discretion, and your common sense.

The verdict form submitted to the jury included a provision for the specification of damages and provided the following heading: “What amount if any, in dollars and cents, will compensate the plaintiff for her injuries?” The verdict form then provided a blank for both special and general damages. After the term “Special Damages” a brief description of that type of damages was included in parentheses and provided: “(such as medical expenses past and future, loss of income, loss of future earning capacity).” Following the term “General Damages” on the jury verdict form was a similar description and provided: “(such as physical pain and suffering past and future, mental or emotional pain and suffering past and future, disability, disfigurement, loss of enjoyment of life).”

Plaintiffs maintain the instructions provided on the elements of damages “caused the jury’s confusion and the erroneous awards.” They further assert the “jury’s confusion is obvious.” In particular, plaintiffs take issue with the trial court’s “refusal to instruct the jury on loss of enjoyment of life as requested by the [plaintiffs].” They maintain loss of enjoyment of life is separate from other general damages and cite the Louisiana Supreme Court case of McGee v. A C And S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770. Plaintiffs misinterpret the supreme court’s holding in McGee. That case held “loss of enjoyment of life is recoverable as a separate element of general damages that may be included as a separate item on a jury verdict form.” Id. at 770. It did not require, as plaintiffs infer, that loss of enjoyment of life be listed as a separate item on the jury verdict form. Loss of 112enjoyment of life was listed as an example of a type of general damages on the jury verdict form in this case.

Despite plaintiffs’ arguments attacking the jury verdict form in this case, they have cited no statutory or jurisprudential support for their claim that the trial judge erred in not listing, individually, the separate elements of damages in this case. Louisiana Code of Civil Procedure Article 1812(C)(4) specifies what is to be included on a jury verdict form in a suit for personal injuries:

(C) In cases to recover damages for injury, death, or loss, the court at the request of any party shall submit to the jury special written questions inquiring as to:
(4) The total amount of special damages and the total amount of general damages sustained as a result of the injury, death, or loss, expressed in dollars, and, if appropriate, the total amount of exemplary damages to be awarded.

While the setting forth of the individual elements of damage awards on the verdict form by the jury might well be helpful to a general understanding of how and why the jury awarded what it did and certainly would assist this court’s duty to review such awards, it simply is not legally required. The verdict form in this case included the required listing for the quantification of special and general damages, which complies with the requirements of La.Code Civ.P. art 1812(C)(4). Thus, these assignments of error have no merit.

V. Jury’s Award of Special Damages.

By this assignment of error, plaintiffs contend the jury’s special damage award of $300,000.00 to Maria Monte was inadequate. They assert the jury’s award did not account for any of Maria’s loss of earning capacity and vastly undervalued her future medical expenses. As we discussed previously, the fact that the elements of special damages were not itemized on the jury verdict form, | iswhile not legally deficient, does impair our ability to divine the exact amounts the jury awarded for the various categories of special damages.

It is well-settled that a jury is given great discretion in its assessment of quantum, both general and special damages. Louisiana Civil Code article 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the assessment of quantum, or the appropriate amount of damages, by a jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-492, p. 6 (La.10/17/00), 774 So.2d 70, 74. This supreme court has stated:

[T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trier of fact’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606 (quoting Canter v. Koehring, 283 So.2d 716, 724 (La.1973)). Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review. Youn v. Maritime Overseas Corp., et al, 623 So.2d 1257, 1261 (La.1993).

Special damages are those which theoretically may be determined with relative certainty, including medical expenses and lost wages. Kaiser v. Hardin, 06-2092 (La.4/11/07), 953 So.2d 802. An appellate court, in reviewing a jury’s factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong. Kaiser, 953 So.2d at 810 (citing Guillory v. Ins. Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029).

Initially, we note there was a vast disparity between the amounts each side’s experts deemed necessary and warranted to compensate Maria for her injuries. We have reviewed in detail the expert testimony to evaluate what the jury may have considered in fashioning its award.

We agree with plaintiffs that the jury likely made no award for future loss of earning capacity. Plaintiffs presented the testimony of Dr. Steven Staires, who opined that Maria was not capable of returning to work and that was likely to remain the case for the foreseeable future. They also presented the testimony of a vocational rehabilitation expert who stated Maria was unable to perform the type of work she had previously done, which greatly restricted her employability. However, the jury also heard testimony that Dr. Patrick Juneau, who treated Maria following the accident and released her to return to sedentary employment on September 12, 2012 (approximately six months prior to the trial.) After Dr. Juneau’s release to return to work, Maria did not return to treat with Dr. Juneau, but chose instead to change physicians to Dr. Ilyes Munshi, who then referred her to Dr. Staires.

Defendants also presented the testimony of Carla Seyler, accepted as an expert in vocational rehabilitation and life care planning, who tested Maria and reviewed all medical reports. Ms. Seyler also performed a labor market survey that found several, available jobs within Dr. Juneau’s sedentary employment restrictions. The jury was also informed that Dr. Juneau had signed off on several jobs that were available to Maria.

The jury obviously accepted the testimony of Dr. Juneau and Ms. Seyler over that of plaintiffs’ experts, credibility calls that are within the province of the |1sfinder of fact. Thus, we cannot say the jury did not have a reasonable factual basis to find Maria was not entitled to an award for loss of future earning capacity.

As to future medical expenses, both sides presented widely divergent life care plans (which attempt to set a value for all future medical and life care needs). Plaintiffs presented a life care plan prepared by Dr. Neil Gorman, an expert in vocational rehabilitation. Mr. Gorman’s plan totaled in excess of one million dollars. This included approximately $550,000.00 in housekeeping expenses, which included a maid five times per week until Maria was eighty-two (her life expectancy). Mr. Gor-man also included nearly $30,000.00 in his life plan for a lifetime membership to a gym. Significant amounts for future medication were also included in the plan.

Defendants presented the testimony of its economics expert, Denis Boudreaux, who stated he had problems with Dr. Gor-man’s plan, believing it was “unreasonable” and not a reflection of her Maria’s true medical condition. Ms. Seyler testified the extreme amount for household expenses was not warranted, as light household work was within the restrictions authorized by Dr. Juneau. The jury also heard the testimony of Dr. Juneau that Maria had reached maximum medical improvement by September 12, 2012. Dr. Juneau also believed it was in Maria’s best interest to avoid taking any more narcotic medications. He opined that coping was her best option and recommended she participate in a coping skills program.

Ms. Seyler also prepared a life care plan, based on the medical recommendations of both Dr. Juneau and Dr. Staires. That plan totaled $69,694.00. It seems apparent the jury chose to accept Ms. Seyler’s life care plan over that of Mr. Gorman. Although we may believe Ms. Seyler’s plan to be on the low side (as we believe Mr. Gorman’s was excessive), we cannot say the jury abused its vast discretion in that factual and credibility determination.

11 (¡However, we do find the jury’s award of $300,000 in special damages was abusively low because it chose to award an amount lower than the total of special damages acknowledged by defendants to be owed. Defendants’ counsel acknowledged Maria was “entitled to her past medical,” which was stipulated to be $210,880.78. While defendants disputed the much larger sum of past lost wages, its economics expert, Mr. Boudreaux, did state Maria endured lost wages in the amount of $79,000.00. Lastly, as set forth above, Ms. Seyler determined Maria was entitled to an award of $69,694.00 for her future medical and life care needs. Thus, defendants have acknowledged Maria’s special damages to be $359,574.78, and we amend the jury’s special damages award to so reflect.

VI. Jury’s Award of General Damages.

A general damage award cannot be fixed with pecuniary exactitude. It is not our role, as an appellate court to decide what we may consider to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. An appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La.1993); Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Furthermore, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Moreover, on review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221. Reasonable persons may frequently disagree about the measure of damages |17in a particular case, but “[i]t is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn, 623 So.2d at 1261.

Plaintiffs contend the $200,000.00 general damage award made to Maria was “wholly insufficient.” They note she had back and neck problems which were initially treated with physical therapy. When that did not alleviate her problems, an anterior cervical discectomy was performed on her by Dr. John Cobb. Despite the surgery, Maria stated she realized little relief. Dr. Cobb then performed several cervical epidural steroid injections.

Dr. Cobb passed away in 2011, and Maria’s care was transferred to Dr. Juneau. It was recommended that Maria undergo a cervical decompression surgery, which was performed by Dr. Juneau and Dr. Munshi. Maria stated she still suffered from pain and muscle spasms. She also stated she endured pain radiating into her left arm.

After Dr. Juneau released Maria to return to work in September of 2011, she sought treatment from Dr. Munshi, who referred her to Dr. Staires for pain management. Dr. Staires referred Maria back to physical therapy. He testified Maria will have ongoing pain and will need pain management for the foreseeable future.

Defendants note on September 12, 2011, Dr. Juneau found Maria was capable of returning to work and released her with a sedentary employment restriction. He also found she was at maximum medical improvement. He also believed she would no longer need to take narcotics, and that coping was her best option and recommended she participate in a coping skills program.

Plaintiffs also note Maria suffered a significant loss of enjoyment of life. Maria contends, due to her continuing pain, her life was seriously impacted and she |1Rfelt she was a burden to her family. Maria maintains she no longer enjoys a normal family relationship with her husband and children. She stated she can no longer attend her husband’s concerts and requires assistance to perform many routine daily tasks.

The jury’s assignment of quantum is entitled to great deference, and we cannot disturb an award if two permissible views of the evidence exist. While we recognize the jury’s award might be viewed to be on the lower end of what is appropriate, it is not our role to substitute our view of the evidence for that of the jury’s. Based upon the evidence in the record, the jury could have reasonably concluded $200,000.00 was an appropriate general damages award, and thus, did not abuse its discretion in that regard.

VII. Loss of Consortium.

In their final assignment of error, Plaintiffs contend the jury manifestly erred in failing to award any damages for loss of consortium to both Glenn Monte and Amanda Monte. In Creel v. St. Charles Gaming Co., 97-994, p. 11 (La.App. 3 Cir. 2/4/98), 707 So.2d 475, 481, this court discussed the requirements for proving a loss of consortium:

In order to prove a claim for loss of consortium, a plaintiff must prove three things: (1) the liability of the defendant, (2) [the resultant] damages, and (3) his or her consequent loss of consortium damages. Peck v. Wal-Mart Stores, Inc., 96-645 (La.App. 3 Cir. 11/6/96), 682 So.2d 974. Loss of consortium is more than just a loss of general overall happiness, it also includes love and affection, society and companionship, sexual relations, the right of performance of material services, the right of support, aid, and assistance, and felicity. Detraz [v. Hartford Accident & Indemnity Co., 94-708 (La.App. 3 Cir. 12/7/94) ], 647 So.2d 576. The trier of fact is given much discretion in awards for loss of consortium and will not be overturned on appeal in the absence of manifest error. Doucet v. Doug Ashy Bldg. Materials, Inc., 95-1159 (La.App. 3 Cir. 4/3/96), 671 So.2d 1148; Lonthier v. Northwest Ins. Co., 497 So.2d 774 (La.App. 3 Cir.1986).

Glenn testified, due to his wife’s injuries he was forced to take over much of the care of their adult, special needs son, Lance. He also testified due to his wife’s 1, problems, their life and relationship was drastically altered. They no longer went on vacations or attended family reunions. Glenn, who was a musician, was forced to cancel several of his concerts to stay and care for Maria, who was very reluctant to leave the family home.

Maria’s adult daughter, Amanda, testified her life changed dramatically after her mother’s injuries. Amanda felt she was now the parent, taking over the cooking, cleaning and much of the caring for Lance. She also needed to assist her mother in many routine tasks, such as getting dressed and fixing her hair. Amanda testified she felt an enormous amount of pressure and stress to take care of her family. Even though she had completed school, Amanda did not attempt to find work due to her obligations at home.

Despite the testimony it heard, the jury chose to award no damages for loss of consortium to either Glenn or Amanda. We find this was clear error. There was no testimony elicited to refute that Maria’s physical capabilities and emotional state significantly changed after the accident. It was not disputed that Maria did suffer significant problems following the accident. In closing arguments, counsel for defendants stated “Mrs. Monte was hurt. She had two surgeries. She has been in pain, she has suffered. Her family has suffered.” Furthermore, in discussing Amanda’s situation in particular, counsel for defendants candidly stated “Amanda makes my heart hurt. She really has had it hard

Although we acknowledge the broad discretion given the jury in determining whether an award for loss of consortium is warranted, we find the jury was clearly wrong in finding plaintiffs failed to establish a loss of consortium herein. Therefore, after reviewing the jurisprudence for the lowest amount reasonably within the discretion of the factfinder, Glenn Monte is entitled to an award of $30,000.00 for his loss of consortium and Amanda Monte is entitled to an award of $50,000.00 for her loss of consortium.

_|2gDECREE

For the foregoing reasons, that portion of the judgment denying damages for Glenn Monte’s and Amanda Monte’s loss of consortium is reversed. Glenn Monte is awarded $30,000.00 for his loss of consortium and Amanda Monte is awarded $50,000.00 for her loss of consortium. The award of special damages is amended to raise that award from $300,000.00 to $359,574.78. In all other respects, the judgment is affirmed. Costs of this appeal are assessed one-third against plaintiffs, the Montes; one-third against Brent Turner and State Farm; and one-third against Ray-Chevrolet-Olds, John Love and Granite State Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Harold Lee JULIEN, Jr.
    No. 13-1327.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 2014.

      J. Phillip Haney, District Attorney, Angela B. Odinet, Assistant District Attorney, St. Martinville, Louisiana, for Appel-lee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Harold Lee Julien, Jr.
    Harold Lee Julien, Jr., Louisiana State Penitentiary, Angola, Louisiana, Defendant.
    Court composed of ELIZABETH A. PICKETT, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| defendant, Harold Lee Julien, Jr., was sentenced to serve life imprisonment without the benefit of parole, probation, or suspension of sentence after a jury found him guilty of second degree murder, a violation of La.R.S. 14:30.1. He now appeals. For the following reasons, we affirm Defendant’s conviction and sentence.

DISCUSSION

Procedural History

Defendant was indicted for the first degree murder of his two-and-a-half-month-old son, a violation of La.R.S. 14:30. He waived formal arraignment and entered a plea of not guilty. On May 10, 2012, pursuant to Defendant’s request, the trial court appointed a doctor to determine Defendant’s mental capacity to proceed to trial. On July 20, 2012, the trial court granted Defendant’s motion to withdraw the sanity commission request.

On June 14, 2013, a jury found Defendant guilty of the responsive verdict of second degree murder, a violation of La. R.S. 14:30.1. Defendant filed a motion for new trial, which the trial court denied. After Defendant waived all delays, the trial court sentenced him to serve life imprisonment without the benefit of parole, probation, or suspension of sentence.

Defendant now appeals, asserting that: 1) the trial court erred in granting defense counsel’s motion to withdraw the sanity commission request; 2) the trial court erred in allowing him to be convicted by a less than unanimous verdict; 3) the evidence adduced at trial was insufficient to support a conviction for second-degree murder; and 4) the trial court erred in failing to grant defense counsel’s challenges for cause regarding two jurors.

| ⅞Facts

On June 6, 2011, two-and-a-half-month-old infant, Harold Julien, III, was transported by paramedics to Dauterive Hospital in New Iberia after his father, Harold Julien, Jr., called 911 because the baby had become unresponsive. The infant was subsequently transferred to Women’s and Children’s Hospital in Lafayette, where he was placed on life support. It was determined that the baby had twenty-five fractures on fourteen of his ribs and a skull fracture which caused a subdural hemorrhage. The rib fractures were determined to be older injuries than the skull fracture. On June 9, 2011, the baby was removed from life support and died. An autopsy later determined the cause of death to most likely be homicide. Defendant, who was the infant’s primary caregiver and alone with the infant most of the day he became unresponsive, was subsequently charged with the first degree murder of his son.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After review, we have found one error patent.

Defendant was informed at sentencing that he has two years within which to file an application for post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8 provides that a defendant has two years after the conviction and sentence become final to seek post-conviction relief. In State v. Conway, 12-525 (La.App. 3 Cir. 11/7/12), 101 So.3d 1132, this court found a similar advisement insufficient and directed the trial court to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of the opinion and to file ^written proof in the record that the defendant received the notice. Accordingly, we direct the trial court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of the opinion and to file written proof in the record that Defendant received the notice.

Sufficiency of the Evidence

We will discuss Defendant’s third assignment of error that the evidence was insufficient to sustain the verdict of second degree murder first because, if the allegation has merit, Defendant could be acquitted of that offense and any following assignments of error pertaining to the verdict of second degree murder may be moot. See Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

Defendant argues that there was no physical evidence that he caused the injury that killed his infant son, Harold Julien, III, and that he was convicted solely on the fact that he was with the infant the entire day the injuries were discovered. He contends that the State failed to exclude the very reasonable hypothesis that someone else caused the injuries.

In State v. Nolan, 04-360, pp. 9-10 (La.App. 3 Cir. 9/29/04), 882 So.2d 1246, 1252, a similar case involving an infant’s death, this court stated:

In reviewing a defendant’s assertions regarding insufficiency of evidence, an appellate court, viewing the evidence in a light most favorable to the prosecution, must determine whether any rational trier of fact could have concluded that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Brown, 02-1922 (La.5/20/03), 846 So.2d 715; State v. Captville, 448 So.2d 676, 678 (La.1984). Moreover, as in the instant matter, when circumstantial evidence provides the basis for the conviction, La. R.S. 15:438 dictates that such evidence must exclude every reasonable hypothesis of innocence. Brown, 846 So.2d 715.

|4“It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review.” State v. Lambert, 97-64, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727.

In the instant case, Deputy David Hines, a patrol deputy with the Iberia Parish Sheriffs Office, testified that he received a call at 10:15 p.m. on June 6, 2011, involving a medical emergency at an apartment at 921 Oak Street. When he arrived at the apartment, paramedics were performing CPR on a small infant. There was a visibly upset man on the scene, whom he identified in court as Defendant. When Deputy Hines asked Defendant what had happened, Defendant told him that he had fed the baby and laid him down in the bassinet next to the bed. A short time later, Defendant heard the baby choking, so he tried to wake him up and burp him, but the baby was having trouble breathing, so he called 911. Defendant told Deputy Hines that twenty minutes had passed between when he put the baby down and when he heard the baby choking. Defendant also told Deputy Hines that he had performed CPR on the baby while waiting for the paramedics.

Natasha Daniels, Harold Julien, Ill’s mother, testified that the baby was born a month premature on March 17, 2011, and diedmn June 9, 2011. At the time he was born, he suffered from gastroschisis, a birth defect in which an infant is born with some or all of its intestines on the outside of the abdomen. The baby was required to stay in the hospital for a month after his birth. Ms. Daniels recalled that he went back into the hospital in May for three or four days. Prior to this second hospitalization, the baby had a loud cry, but afterward, his cry was very weak. The baby could not roll over at the time of his death.

|BMs. Daniels stated that Defendant, whom she met at Sonic in 2008 when she was pregnant with her third child, was the baby’s father. Prior to the baby’s death, she, Defendant, and her four children lived in a one-bedroom apartment that they shared with their friend Betsy; Betsy’s boyfriend, Allen Navy; and their two young children.

Ms. Daniels testified that on June 6, 2011, she had worked from 11:00 a.m. to 5:00 p.m. After she got home, she cleaned up the apartment and fed the baby. She did not see any bruising on his body or see him wince as though he were in pain. She prepared food for her two-year-old daughter, Niah. Afterwards, she stayed in the apartment for about two hours during which time she and Defendant played around throwing water on each other. This horse-play occurred while she was holding the baby, but she denied that he got wet or hurt during that time. She then went to Wal-Mart to purchase some movies with Betsy. When she left the apartment, only Defendant and Niah were in the apartment with the baby, who was sleeping in his bassinet. At approximately 10:22 p.m., as they were leaving Wal-Mart, Ms. Daniels received a call from the hospital regarding the baby.

When shown photographs taken in the apartment pursuant to a search warrant obtained after the baby was rushed to the hospital, Ms. Daniels stated that when she got home from work on June 6, there were no holes in the wall of Betsy and Allen’s bedroom as depicted in some of the photographs. She said that Defendant had a temper and that she had previously seen him hit the wall. When Defendant was in jail, he told her that after he put the baby down to get food for Niah, the baby fell off the bed and may have “hit his head on the iron part,” but he picked the baby up and put him back to sleep. After Defendant bonded out of jail, he told her that a friend’s four-year-old had picked up the baby and thrown him. | sMs. Daniels later relayed that information to the district attorney’s office. She speculated that the baby’s ribs may have been broken when Defendant and Allen gave him CPR before his May hospitalization.

Ms. Daniels said that her family had concerns about Defendant caring for the children. She never saw Defendant harm the baby and had no problem leaving the children in his care. She admitted, however, that before the baby was born, there were instances of her children having unexplained injuries. She testified that other than just a few hours spent with each of her two sisters, only she and Defendant took care of the baby. However, the baby had stayed with Defendant’s mother for several days about two weeks before his death.

Malinda Meyers, a detective with the Iberia Parish Sheriffs Office, testified that she was the lead investigator in the matter. She had been contacted regarding an unresponsive baby at Dauterive’s Hospital. There, she spoke with Ms. Daniels and Defendant before going to their apartment. The next day, she interrogated both of the parents at police headquarters and revisited the apartment to take measurements. Defendant told the detective that the baby had rolled off the bed and may have hit his head on a board that was between the bed and the wall. Detective Meyers took pictures of the bed and the area where Defendant said the baby had fallen. She testified the bed was eighteen inches off the floor and twenty-one inches away from the wall. The board Defendant indicated the baby may have fallen on was leaning against the bed and was seven inches wide. The baby’s bassinet was also between the bed and the wall.

Detective Meyers talked to the attending physician at the hospital, who told her that when the baby had been admitted on May 13, 2011, prior to the current admission, no injuries were detected on his x-rays. The doctor told Detective [ 7Meyers that the baby now had multiple rib fractures and a skull fracture with bleeding on the brain. Detective Meyers explained that the primary caregivers are suspects when a child is injured.

The video of the first of two interrogations Detective Meyers conducted with Defendant was played for the jury. The following observations were gleaned from our viewing of the video. During the interrogation, Defendant explained the events leading up to his calling 911. He told the detective that after Ms. Daniels left, he fed the baby and lay down on the bed to watch television with Ms. Daniels’ two-year-old daughter. The baby was asleep on his chest. Eventually, the little girl said she was hungry. Defendant laid the baby down on the bed and went into the kitchen to warm up some food for the girl. He heard a loud cry and found the baby on the floor between the bed and the wall. He picked up the baby and patted him on the back a few times, and the baby went back to sleep. Defendant put him in the bassinet. A few minutes later, the baby began to make funny sounds and spit up milk. When he picked the baby up, he was unresponsive. Defendant undressed him to see if he was having the same problem that put him into the hospital in May, which was his bowel pushing out of his rectum. He then ran outside, and Allen, who was just outside the apartment building door, came in, and they attempted to perform CPR. Someone called 911. Defendant stated that he knew of no one who had hurt the baby, and he denied that Ms. Daniels or anyone else who lived in the apartment had harmed the baby. We note that throughout the three-hour interview, Defendant was soft spoken and appeared to be in anguish over the death of his child. His story never wavered.

Detective Meyers testified that she again interrogated Defendant on June 13, 2011, for a little more than an hour and a half. The baby had died on June 9, 2011, 1 swhile Defendant was incarcerated in the parish jail on unrelated charges. The video of the second interrogation was played for the jury. Therein, Defendant said he had lost his job with Wal-Mart on May 12, 2011, two days before the baby went into the hospital the second time. He basically repeated what he had told Detective Meyers during his first interrogation, adamantly repeating that he would not have harmed his son and that he did not know of anyone who would have done so.

Betsy Zuniga testified that she, Allen Navy, and their two children lived with Ms. Daniels, Defendant, and their four children. Defendant was working at Wal-Mart, and they took turns babysitting the children. Mr. Navy never babysat the baby. After Defendant lost his job at Wal-Mart, he watched all of the children a lot of the time. She corroborated Ms. Daniels’ testimony that she picked her up from work at 5:00 p.m. on June 6, 2011, and that later the two of them with another friend, Raquel Navy, went to Wal-Mart. Ms. Zuniga testified that she never saw any problems with the baby except for the one time he went to the hospital in May. You could not hear the baby cry. Otherwise, he seemed to be fine when they left for Wal-Mart. She said that Defendant loved Ms. Daniels’ children, and she trusted him to care for her own children. Raquel Navy corroborated Ms. Daniels’ and Ms. Zuniga’s testimony. She also said the baby appeared well when she saw him in the early evening of June 6, 2011.

Angeline Julien, Defendant’s mother, attested to Defendant’s good relationship with his first son, Jacob, by another woman. At the time of trial, Jacob was three years old. , She described Defendant as good natured, never showing a violent temperament, and never having anger issues. Ms. Julien described Defendant’s relationship with Ms. Daniels’ children as good, and she said that the children called him, “Daddy.” She testified that she had kept the baby on two | occasions, once overnight. When Ms. Julien kept the baby overnight in May, his cry was very weak, and she had to put him down close to her to be able to hear him if he cried during the night. She also stated that when she held the baby and attempted to play with him, his eyes would not track her voice, he would only look down. Ms. Julien told Defendant and Ms. Daniels about her observations, and they said they would take him to the doctor, but she never heard any more about it. During the times he stayed with her, Ms. Julien did not see any bruising on the baby’s body or his head, nor did he act like he was in pain. She said that after the baby came home from the hospital the first time, Defendant held him all the time and that he was very protective of the baby. Ms. Julien stated that after she had kept the baby overnight, Ms. Daniels’ sister, Kellie, kept him for several days.

Girard Navy and Brittney Holiday each stated they were outside when Defendant came down from his apartment and said something was wrong with his baby. When they ran up, Defendant was sitting on the bed with the baby. Allen Navy attempted to give the baby CPR, and Ms. Holiday called 911. Girard Navy said Defendant was so upset he punched holes in the walls. Ms. Holiday, who lived in the complex and was friends with Defendant and Ms. Daniels, said that she never saw any abuse directed towards the baby.

Catherine Longman, the mother of Defendant’s first son, Jacob, who was three years old at the time of trial, testified that Defendant and Jacob have a typical father/son relationship. She stated that Defendant resumed having overnight visits with Jacob after he was released from jail and that she has no reservations about Defendant taking care of Jacob.

Dr. Christopher Tape, a forensic pathologist, conducted an autopsy on the baby. He testified that upon examination, he found no external evidence of injuries | inon the baby’s body; however, he determined that the back of his skull was fractured. The occipital skull fracture was of a recent nature, which had caused subdural hemorrhages and increased cranial pressure. Dr. Tape found approximately twenty-five fractures on fourteen of the baby’s ribs. Those fractures were of a more chronic nature, and all were in the healing state of approximately two weeks. The fractures were located on the lateral and posterior parts of the ribs — on the sides and back of the body. Dr. Tape agreed that the location of the fractures could be consistent with holding the baby up under the arms and squeezing. Dr. Tape testified that the injuries to the baby’s ribs could have resulted in his low cry. Although he explained that pin-pointing when certain injuries occur was difficult, he opined that the skull fracture occurred three to ten days prior to the baby’s death. Dr. Tape agreed that a fall of eighteen inches would not have caused the damage to the child’s skull. He stated that the blow would have had to be significant or a fall of at least five or six feet.

Finally, Defendant testified. He was twenty-one years old at the time of the June 2013 trial. Defendant stated that he was seventeen when his first son, Jacob, was born and that they had a good relationship. Defendant explained that he was nineteen when he met Ms. Daniels through his friend, Betsy, who worked with her at Sonic. He and Ms. Daniels clicked, and he moved in with her and her two young children after they had dated for several months. Ms. Daniels was pregnant with her third child at the time. Defendant stated that he was the primary caregiver for the baby, particularly after he lost his job at Wal-Mart. Ms. Daniels’ sister, Kellie, babysat the baby for four or five days after he got out of the hospital in May.

hiDefendant stated that when Ms. Daniels came home from work on June 6, they laughed and had fun, and she held the baby before going to buy some movies. After she left, he held the baby, rocking him back and forth. Defendant then “playfully” released the baby onto the bed several times, trying to get him to smile. The last time he did so, the baby let out a little cry. Defendant picked him up, patted him on the back, and put him back down on the bed when he started to fall asleep. Thereafter, Ms. Daniels’ daughter told him that she wanted something to eat, so he went into the kitchen to get her some food. He heard a “thump.” When Defendant went back to check on the baby, he found him on the floor between the bed frame and a board. Defendant picked up the baby, patted him a few times on the back, put him back on the bed, and the baby went back to sleep. Shortly thereafter, the baby started spitting up milk, his body became pale, and his heartbeat slowed down. Defendant panicked and picked up the baby. Not having a phone or knowing what to do, he put the baby back on the bed and ran outside to get his friend Allen. Defendant found Girard Navy and Ms. Holiday who followed him back into the apartment where they found the baby still unresponsive, at which point Defendant “lost it” and punched holes in the wall. Defendant then called 911 and was told to start CPR. He did so, but Allen took over because he was panicking. When the paramedics arrived at the apartment, they were able to get a pulse from the baby which made Defendant think that everything would be all right. Defendant stated that he had taken the baby’s clothes off before the paramedics arrived to check whether his gastroschisis had returned. When he went to find the clothes to dress the baby before the paramedics took him, he moved the blankets on the bed and found a heavy mug that was left on the bed from when he and Ms. Daniels were having the water fight earlier in the evening. At that point, 112he wondered if the baby had possibly hit his head on the mug when he was rocking him. Defendant admitted that he never mentioned a mug on the bed to the police, explaining that he was scared of becoming a suspect and of being thought of as a murderer.

Defendant’s brother met him at the hospital and brought him back to the apartment. There were a lot of police officers there, and he was given a copy of a search warrant. When Defendant returned to the hospital, he was told that the baby had a fractured skull and fractured ribs. He was shocked and unable to think of anyone who would have wanted to hurt the baby. At about 4:00 a.m., Detective Meyers was at the hospital and asked him to come to the Sheriffs Department for an interview later that morning. Defendant stated that he agreed to the interview even though he did not have an attorney because he had nothing to hide. After the interview, Defendant was kept at jail on unrelated charges and was unable to return to the hospital to be with his son. He denied killing his son, and he stated that he never abused him. He also denied knowing that his son had cracked ribs.

Defendant argues that the above testimony did not establish that he had the specific intent to kill his son, inflict serious bodily harm, or engage in cruelty to a juvenile. He further submits that he acted appropriately when he saw that the baby was in distress.

Louisiana Revised Statutes 14:30.1 provides, in pertinent part:

A. Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of ... cruelty to juveniles, second degree cruelty to juveniles even though he has no intent to kill or inflict great bodily harm.

11sThe statute regarding cruelty to a juvenile provides, in pertinent part:

A. Cruelty to juveniles is:
(1) The intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.

La.R.S 14:93.

Specific criminal 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.” La.R.S. 14:10(1). Specific intent to kill or inflict great bodily harm may be inferred from “the extent and severity of the victim’s injuries.” State v. Patterson, 10-415, p. 11 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 148, writ denied, 11-338 (La.6/17/11), 63 So.3d 1037.

Defendant is correct in that the only evidence given at trial to establish the offense of second degree murder was the fact that he was the primary caregiver and that the child was in his care the day of the discovery of the injuries, which does not establish the necessary element of specific intent to kill or inflict injury or unjustifiable pain or suffering. However, the baby’s injuries themselves, could exhibit, at the very least, Defendant’s specific intent to inflict great harm upon him.

As noted above, Dr. Tape testified that the injuries to the baby’s ribs were posterior rib fractures. Ms. Daniels testified that the injuries were possibly caused by CPR administered to the baby. However, in State v. Glenn, 04-526, p. 7 (La.App. 5 Cir. 3/1/05), 900 So.2d 26, 31, where the defendant argued the infant’s rib fractures were the result of administering CPR, a forensic expert testified that “[posterior rib fractures are not consistent with CPR, but are almost exclusive to child abuse, a grabbing around the chest.”

| ^Furthermore, in the current case, Dr. Tape testified the baby had to have fallen from at least five feet to have incurred the fracture to his skull. In State v. Martin, 11-32, p. 3 (La.App. 3 Cir. 6/1/11), 66 So.3d 608, 611, writ denied, 11-1441 (La.12/16/11), 76 So.3d 1201, the ten-week-old baby died as a result of “blunt force injury” to the skull. The defendant claimed he had dropped the baby while giving her a bath. The forensic pathologist who performed the autopsy, however, testified that the injury was inconsistent with a fall and that the “skull fracture could not have been the result of her being dropped, even from chest height.” Id. at 611.

In the current case, Defendant postulated that the skull fracture occurred when the baby rolled off a bed eighteen inches from the floor and hit his head on a board. He also stated that the baby could have hit his head on a ceramic mug when, as he sat on the bed, he dropped the baby “playfully.” The jury did not find these explanations for the baby’s injuries credible, and we will not second-guess that credibility determination. See Lambert, 720 So.2d 724.

In State v. Miller, 06-595, p. 3 (La.App. 3 Cir. 9/27/06), 940 So.2d 864, 867, writ denied, 06-2577 (La.5/11/07), 955 So.2d 1278, wherein the only evidence of the defendant’s guilt was that he was the only person with the opportunity to injure the child, this court (quoting State v. Porter, 99-1722, pp. 15-16 (La.App. 3 Cir. 5/3/00), 761 So.2d 115, 123-24), noted:

Circumstantial evidence consists of the proof of 'collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Guillory, 670 So.2d at 304, citing State v. Donahue, 572 So.2d 255 (La.App. 1 Cir.1990). The circumstantial evidence rule does not require the State to exclude every possible theory of innocence, but only the reasonable hypotheses of innocence. State v. Lilly, 468 So.2d 1154 (La.1985). |1sIn circumstantial evidence cases, this court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, this court, evaluating the evidence in the light most favorable to the prosecution, determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Davis, 92-1623 (La.5/23/94); 637 So.2d 1012, certiorari denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

Continuing in Miller, 940 So.2d at 869, this court affirmed the conviction which was based on circumstantial evidence, stating:

The testimonies of Remedies and Martinez, and Defendant’s own statements, combined with the medical testimony, overwhelmingly narrow the window- of time during which the victim’s injuries could have occurred. It is clear from the evidence recounted above that the little girl’s injuries had to have been inflicted immediately before she became symptomatic. The testimony of Martinez and Defendant’s own statement show that he is the only person who was in a position to have inflicted those injuries. Martinez was in the bathroom at the relevant time, and was apparently quite ill. The record is not clear regarding the whereabouts and activities of the victim’s older brother, Tristine, after the family entered the house. However, since Defendant admitted in his statement that the victim was still able to get up and walk that last time he entered her room, any theory that the boy could have inflicted the injuries is negated. Further, Defendant told police that shortly before re-entering the children’s bedroom to help the victim with her jacket, he saw Tristine and instructed the boy to separate the laundry. The Defendant appears to concede that Tris-tine knows nothing about the crime.
Thus, we find the trial evidence was sufficient to exclude any reasonable hypothesis that someone other than Defendant inflicted the fatal injuries.

In the current case, Defendant testified that he was the babies’ primary caregiver, particularly after he lost his job from Wal-Mart in May. He stated that other than one night at his mother’s house, the only other person to care for the child was Ms. Daniels’ sister, who took care of the baby for several days. |1BMs. Daniels’ testimony was that each of her sisters had only spent a few hours with the baby. Prior to the baby’s May visit to the hospital, there was testimony that the baby had a loud cry. Ms. Daniels testified that after the baby was discharged from the hospital in May, his cry was very low and hard to hear. However, while Dr. Tape stated that rib injuries could have caused the baby to have a weak cry, no rib injuries were detected when the baby was admitted to the hospital in May.

We conclude that the evidence was sufficient to exclude any reasonable hypothesis of innocence that anyone other than Defendant inflicted the injury which resulted in the baby’s death. Defendant argues that even if this court finds him responsible for the death of his son, the evidence supports a verdict of manslaughter rather than second degree murder. He argues in his appellant brief:

Harold Julien did not want his son to die, nor did he have the specific intent to kill or inflict great bodily harm on the child. Rather, this young, inexperienced father may have been in the grip of a sudden heat of passion, brought about by his environment, the loss of his earning ability as the head of the house, his heat of blood compounded by his anger at Natasha for leaving him alone with the children all night.

Manslaughter is defined, in pertinent part, as “[a] homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La.R.S. 14:31(A)(1). In State v. Thornton, 47,598 (La.App. 2 Cir. 3/13/13), 111 So.3d 1130, the defendant admitted he physically abused the infant to get back at the infant’s cheating mother but argued that he was guilty of manslaughter rather than second degree murder because of the provocation. The second circuit stated:

|17[T]he measure of the “provocation sufficient to deprive an average person of his self-control” cannot be met by reference to the crying and discomfort of an innocent victim only three months old. The average person understands that no anger, much less anger accompanied by force and harm, is a reasonable response to an infant. With provocation totally irrelevant as an adult response in such instance, Thornton’s asserted provocation by Ursula can likewise not be transferred so as to make in any manner his violence against the child less culpable. There is no reasonable correlation providing a degree of justification between TJ’s crying, the defendant’s anger over Ursula’s petty and vengeful acts, and the brutality that Thornton showed his own son.
Thornton failed to prove, by a preponderance of the evidence, that circumstances existed such that he was so provoked by sudden passion or heat of blood that he was deprived of an average person’s self-control and cool reflection. State v. Logan, [45,136 (La.App. 2 Cir. 4/14/10), 34 So.3d 528, writ denied, 10-1099 (La.11/5/10), 50 So.3d 812], Thus, the evidence was sufficient to support a conviction for second degree murder. The defendant failed to prove that he acted in sudden passion or heat of blood sufficient to reduce his culpability and render the homicide a manslaughter. State v. Allen, [41,548 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, writ denied, 07-530 (La.12/7/07), 969 So.2d 619]. As a result, the jury’s verdict was correct and the conviction is affirmed.

Id. at 1136-37.

There was no testimony in the record that Defendant was left alone all night with the children at any particular time. Nor was there any testimony which indicated that Defendant was stressed because he was head of the household and had lost his job. Furthermore, Defendant testified that he had experience taking care of a baby. He had helped to care for the child Ms. Daniels was pregnant with when they met and began living together. We find the testimony does not support Defendant’s contention that the injury which resulted in the baby’s death was caused in the heat of passion. Accordingly, the evidence was sufficient to support Defendant’s conviction for second degree murder.

1Motion to Withdraw Sanity Commission

Defendant argues that the trial court erred in granting his motion to withdraw the sanity commission request. In May 2012, Defendant filed a motion titled “Motion for Expert for Indigent Defender.” The motion requested that the State appoint an expert to determine Defendant’s “current mental state and the mental state at the time of the alleged crime.” Soon after, the trial court signed an order appointing Dr. Blackburn to determine Defendant’s mental capacity. On June 20, 2012, the State filed a “Motion to Form Sanity Commission,” notifying the trial court that, pursuant to La. Code Crim.P. art. 644, a sanity commission must consist of no less than two and no more than three members who are qualified in forensic evaluation. The trial court then ordered a second member to the commission, Dr. Michael Blue, and set a hearing date for July 31, 2012, to determine Defendant’s mental capacity to proceed.

On July 12, 2012, Defendant filed a “Motion to Amend the Motion for Expert for Indigent Defendant,” wherein he stated that the request for the State to appoint an expert to examine his mental capacity was made in error and should have reflected a request for the State “to pay for an expert to examine the medical records of the victim.” He further requested that Dr. Emil Laga be appointed as the expert. On July 17, 2012, Defendant filed a “Motion to Withdraw Sanity Commission Request and Motion for Dr. Laga to be Court Appointed Expert.” According to a July 20, 2012 minute entry, the trial court granted the request to withdraw the sanity commission request and the request to appoint Dr. Laga as an expert to review the infant’s medical records but at Defendant’s cost.

Defendant points out that La.Code Crim.P. art. 642, in pertinent part, provides; “[w]hen the question of the defendant’s mental incapacity to proceed is |19raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.” Citing State v. Carney, 25,518 (La.App. 2 Cir. 10/13/95), 663 So.2d 470, Defendant further contends that the act of withdrawing a motion to appoint a sanity commission has been considered to be a further step in the prosecution.

In brief, the State argues that the record indicates it was an obvious error that a request for a sanity commission was made, as Defendant’s original motion was titled “Motion for Expert for Indigent Defender.” In addition, it was the State who actually filed the motion titled “Motion to Form Sanity Commission,” and Defendant filed the motion to withdraw the sanity commission request before the hearing on the matter could take place.

In Carney, 663 So.2d at 473, the second circuit stated:

“Due process and our statutory law require that the issue of the defendant’s mental capacity to proceed shall be determined by the court.” [State v.] Rogers, [419 So.2d 840, 843 (La.1982)]. “This cardinal principle ... prohibits [the court] from committing the ultimate decision of competency to a physician or anyone else.” Id. Furthermore, the above articles, when read in pari mate-ria, implicitly require the trial court to rule on the defendant’s motion and determine whether a “reasonable ground to doubt the defendant’s mental capacity” exists before proceeding further in the prosecution. Withdrawing a motion to appoint a sanity commission is a further step in the prosecution. Also, permitting such a motion to be withdrawn takes the ultimate decision of competency away from the court. Thus, although a mental examination may not be required in every case where the issue of mental capacity is raised, State v. Wilkerson, 403 So.2d 652 (La.1981); State v. Folse, 623 So.2d 59 (La.App. 1st Cir.1993), the record must reflect that the trial court made a determination of whether or not reasonable grounds exist to doubt the defendant’s capacity to proceed.

The defendant in Carney was charged with the second degree murder of his ten-week-old daughter. The defendant admitted he abused the infant “by dropping her on the floor, throwing her on the bed[,] and slapping her in the face.” Id. at|2n471. Defense counsel filed a motion to appoint a sanity commission. In the motion, he stated that the defendant “appeared to be hallucinating, could not assist counsel during interviews, and did not have the mental capacity to understand the proceeding against him or assist in his defense.” Id. at 472. The district attorney requested a hearing on the motion, and the trial court set a date to determine whether to appoint a sanity commission. On that date, defense counsel, without the appearance of the defendant, moved to withdraw the motion, and the trial court granted the motion. The second circuit reversed the conviction, stating:

[T]he defendant sufficiently raised the issue of his mental capacity to proceed after the indictment was filed.
After the defendant raised the issue, the trial court allowed further steps in the prosecution to occur without making a determination of the defendant’s mental capacity to proceed to trial. When defense counsel withdrew the motion to appoint a sanity commission, the defendant was not present and the trial court did not observe or question him about his mental capacity. At the very least, the record should reflect that the trial court should have personally observed the defendant and questioned him as to his understanding of the proceedings to determine if a “reasonable ground” existed to doubt his mental capacity. Further, as noted by the United States Supreme Court, it is contradictory to argue that a defendant may be mentally incompetent, and yet he may knowingly or intelligently waive his right to have the court determine his mental capacity to stand trial. Pate [v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) ], State v. Harris, 406 So.2d 128 (La.1981).

Id. at 473.

In State v. Juniors, 05-649 (La.App. 3 Cir. 12/30/05), 918 So.2d 1137, writ denied, 06-267 (La.9/15/06), 936 So.2d 1257, cert. denied, 549 U.S. 1226, 127 S.Ct. 1293, 167 L.Ed.2d 110 (2007), the defendant filed a motion for a sanity commission. The trial court granted the motion and appointed two doctors to examine him. Both doctors conducted an examination and submitted letters to the court stating that the defendant was capable of proceeding to trial and that he was not suffering from a | ¡^mental disorder such that undermined his ability to understand right from wrong. Thereafter, there was nothing entered into the record which showed that there was a contradictory hearing or that the trial court made a determination regarding the defendant’s mental capacity. After conviction, the defendant alleged on appeal that the trial court erred when it allowed him to be tried without adjudicating his competency to proceed to trial. This court conditionally affirmed the conviction and remanded the matter to the trial court to determine whether a nunc pro tunc hearing was possible, noting as follows:

The supreme court discussed the need to address a defendant’s competency in State ex rel. Seals v. State, 00-2738, pp. 5-6 (La.10/25/02), 831 So.2d 828, 832-33 (citations omitted) (emphasis added), as follows:
At the outset, we note the longstanding precept that a defendant does not have an absolute right to the appointment of a sanity commission simply upon request. A trial judge is only required to order a mental examination of a defendant when there are reasonable grounds to doubt the defendant’s mental capacity to proceed. It is well established that “reasonable grounds” exist where one should reasonably doubt the defendant’s capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. To determine a defendant’s capacity, we are first guided by La.Code Crim. Proc. arts. 642, 643, and 647.
This protection, however, is not to say that every time a defendant feigns incapacity the court must order a full-blown sanity commission. In State v. Berry, 391 So.2d 406, 411 (La.1980), we firmly held that the trial court is granted great discretion in determining if a defendant should be afforded a mental examination to determine capacity. Indeed, where a trial judge finds enough evidence to doubt a defendant’s capacity, the court may order the defendant be examined by a single psychiatrist to satisfy requirements of La.Code Crim. Proc. art. 648. There is no need for a sanity commission |22to be appointed each time capacity of a defendant is questioned.
That being said, questions regarding a defendant’s capacity must be deemed by the court to be bona fide and in good faith before a court will consider if there are “reasonable grounds” to doubt capacity. Where there is a bona fide question raised regarding a defendant’s capacity, the failure to observe procedures to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. At this point, the failure to resolve the issue of a defendant’s capacity to proceed may result in nullification of the conviction and sentence under State v. Nomey, 613 So.2d 157, 161-62 (La.1993), or a nunc pro tunc hearing to determine competency retrospectively under State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832.

Id. at 1143-44.

In the current case, we conclude that the trial court did not have reasonable grounds to doubt Defendant’s mental capacity to proceed. The caption of the initial motion filed with the trial court referenced the appointment of an expert for Defendant, who is indigent. While a generic request for a mental examination was made in the body of the motion, there was no specific example of the reason the request was made, such as in Carney, 663 So.2d at 472, wherein it was stated that the defendant “appeared to be hallucinating, could not assist counsel during interviews, and did not have the mental capacity to understand the proceeding against him or assist in his defense.” Because the record supports the finding that Defendant erroneously requested that an expert be appointed to examine his mental capacity, the trial court committed no error in granting Defendant’s request to withdraw the sanity commission request.

| ¾⅛Unanimous Jury Verdict

Defendant argues that because he was charged with first degree murder, he was entitled to a unanimous jury verdict even though he was convicted of the lesser included offense of second degree murder because there was nothing in the record to indicate that the State opted not to seek the death penalty. In support of his argument, Defendant cites La.Code Crim.P. art. 782, which provides:

A. Cases in which punishment may be capital shall be tried by a jury of twelve, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.

Defendant further relies on State v. Goodley, 398 So.2d 1068 (La.1981), wherein the defendant was charged with first degree murder but convicted of manslaughter by an eleven to one vote. The supreme court reversed the conviction, holding:

[I]t is clear that the vote on the lesser included offense, which acts as an acquittal verdict on the capital charge, must conform to the requirements for a lawful verdict on the greater offense, a unanimous verdict. Any other conclusion would violate the constitutional mandate that a “verdict” in a capital case must be by a unanimous jury.

Id. at 1070.

While Goodley was correctly decided based on the law at the time of its rendition, effective August 15, 2007, the first degree murder statute, La.R.S. 14:30, was amended by 2007 La. Acts No. 125, § 1, to provide as follows:

C. Penalty provisions.
(1) If the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The | ^provisions of C.Cr.P. Art 782 relative to cases in which punishment may be capital shall apply.
(2) If the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The provisions of C.Cr.P. Art 782 relative to case in which punishment is necessarily confinement at hard labor shall apply.

Here, Defendant was convicted of second degree murder by a ten-to-two vote. The Bill of Indictment charged Defendant with first degree murder but did not state without the death penalty. However, a minute entry dated December 13, 2011, of the grand jury proceedings, stated:

The Court called for the indictments. The foreman handed the Clerk the report and indictment and the Clerk handed the[m] to the Court. The Court then instructed the Clerk to read the indictment.
The Grand Jury returned a true bill on the accused, the charge of First Degree Murder without the death penalty. The jury was also informed that the death penalty was not being sought during voir dire and again when the trial court gave the jury their instructions following the trial.

Accordingly, under the current version of La.R.S.14:30(C)(2), there was no requirement that Defendant be convicted by a unanimous verdict of twelve jurors. See State v. Bishop, 10-1840 (La.App. 1 Cir. 6/10/11), 68 So.3d 1197, writ denied, 11-1530 (La.12/16/11), 76 So.3d 1203, and State v. Clarkson, 11-933 (La.App. 3 Cir. 3/7/12), 86 So.3d 804, writ denied, 12-788 (La.9/28/12), 98 So.3d 826. There is no merit to this assignment of error.

Challenges for Cause

Defendant argues that the trial court erred when, during voir dire, it denied his challenges for cause as he sought to exclude two prospective members of the jury venire, Mr. Jolet and Mr. Lagman.

lasLouisiana Code of Criminal Procedure Article 799 provides:

In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant. In all other cases, each defendant shall have six peremptory challenges, and the state six for each defendant.

In State v. Scott, 04-1312, pp. 16-17 (La.1/19/06), 921 So.2d 904, 921, cert. denied, 549 U.S. 858, 127 S.Ct. 137, 166 L.Ed.2d 100 (2006), overruled on other grounds by State v. Dunn, 07-878 (La.1/25/08), 974 So.2d 658, the supreme court discussed the trial court’s role in determining whether a prospective juror should be excused for cause from the jury panel, as follows:

A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Cross, 93-1189, p. 7 (La.6/30/95), 658 So.2d 683, 686; State v. Robertson, 92-2660, p. 4 (La.1/14/94), 630 So.2d 1278, 1281. Prejudice is presumed when a challenge for cause is denied erroneously by a trial court and the defendant ultimately exhausts his peremptory challenges. Robertson, 92-2660 at p. 3, 630 So.2d at 1280; State v. Ross, 623 So.2d 643, 644 (La.1993). An erroneous ruling depriving an accused of a peremptory challenge is a substantial violation of his constitutional and statutory rights and constitutes reversible error. Cross, 93-1189 at p. 6, 658 So.2d at 686; State v. Bourque, 622 So.2d 198, 225 (La.1993). “A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.” State v. Jones, 474 So.2d 919, 926 (La.1985). However, a trial court does not abuse its discretion when it refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. Robertson, 92-2660 at p. 4, 630 So.2d at 1281.
To prove there has been error warranting reversal of a conviction, defendant is only required to show: (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. Robertson, 92-2660 at p. 3, 630 So.2d at 1281.

12(jHere, Defendant does not argue in brief that he had exhausted all of his peremptory challenges. The record indicates that Mr. Jolet was his tenth peremptory challenge. Thereafter, the twelve jurors were selected for the panel. While the trial court did deny Defendant’s challenge for cause of the prospective juror, Mr. Lagman, the selection process never reached a point where the decision to use a peremptory challenge to excuse him was necessary as the twelve jurors were already selected. Thus, because Defendant failed to show he exhausted all of his peremptory challenges, there is no merit to this assignment of error.

DECREE

The evidence was sufficient to convict Defendant of the offense of second degree murder of his infant son. There was no error when the trial court allowed Defendant to withdraw the erroneously filed motion for a sanity commission. Defendant was not entitled to a unanimous jury in this case. Finally, Defendant’s constitutional right to a tried by an impartial and competent jury was not violated when the trial court denied Defendant’s challenge for cause of two prospective jurors. Accordingly, Defendant’s conviction and sentence are affirmed.

The trial court is directed to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of the opinion and to file written proof in the record that Defendant received the notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.