author: PETERS, J.

text:
    Larry E. TOMASIK v. LA STATE VETERANS AFFAIRS OFFICE.
    No. 13-451.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.
    Marcus M. Zimmerman, Lake Charles, LA, for Plaintiff/Appellee, Larry E. Toma-sik.
    James D. “Buddy” Caldwell, Attorney General, Michael W. Landry, Assistant Attorney General, Lake Charles, LA, for Defendant/Appellant, State of Louisiana, Office of Veterans Affairs.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

| ,The defendant in this- workers’ compensation case, the State of Louisiana, Office of Veterans Affairs, appeals a judgment of the workers’ compensation judge (WCJ) finding that the plaintiff, Larry E. Tomasik, proved his heart attack was work-related and that he was entitled to indemnity benefits. For the following reasons, we reverse the judgment and render judgment dismissing Mr. Tomasik’s claims.

DISCUSSION OF THE RECORD

On Tuesday, February 15, 2011, Mr. To-masik suffered a heart attack while carrying boxes into the DeRidder, Louisiana office of his employer, the Louisiana Office of Veterans Affairs (hereinafter sometimes referred to as “the state”). Mr. Tomasik functioned as a Veterans Assistance Counselor for his employer and worked Monday, Wednesday, and Friday in the Lake Charles, Louisiana office and Tuesday and Thursday in the DeRidder office.

Mr. Tomasik maintained active files in both offices, but would often take DeRid-der files to the Lake Charles office to organize them into new folders. He did so because the two days per week he spent in DeRidder were basically counseling days with little time for paperwork. With more time for administrative matters while in Lake Charles, he would organize the DeR-idder files and then return them to DeRid-der on the next trip. However, in late 2009 or early 2010, he received instructions from A1 Leger, his supervisor, to straighten up the DeRidder office by disposing of the inactive files. This significantly increased the transportation requirements for the office files.

Because the paper shredder in the DeR-idder office was inadequate for the amount of shredding required, Mr. Tomasik began transporting the inactive files from that office to the Lake Charles office where a heavy-duty shredder was |2available. The inactive files, as well as the files to be reorganized, were transported to Lake Charles in boxes with dimensions of approximately four feet by two feet wide by two feet in depth. Each box, according to Mr. Tomasik, weighed between fifty and sixty pounds.

Mr. Tomasik’s heart attack in February of 2011, was actually his second heart attack. One year before, in February of 2010, he had begun feeling “woozy” while unloading some boxes from his car at the Lake Charles office. This occurred approximately one month after he received the instructions from Mr. Leger to clean up the DeRidder office. He was treated at a Lake Charles hospital and remained off work for three months. When he returned to work, his activities were initially limited to the Lake Charles office. However, he returned to his old two-office schedule in January of 2011. During his absence from the DeRidder office, the files had piled up, and the office was in a state of disarray. Because he felt pressured to catch up on the necessary shredding of files, he again began transporting boxes to Lake Charles. One month later, he suffered the heart attack which is the subject of this litigation.

The evidence establishes that Mr. Toma-sik’s day did not begin very well on February 15, 2011. As he started to work on that morning, his vehicle would not start. This not only upset him, but it caused him to arrive at the DeRidder office a few minutes late, where veterans were already waiting on him. He unlocked the door and brought in one of the two boxes he was transporting. After bringing in this box, he felt lightheaded. He waited on the first of the waiting veterans and then returned to the vehicle for the second box. As he brought that box into the office, he began bumping into things and felt a tightness in his chest. He dropped into a chair and obtained two nitroglycerin tablets from one of the veterans. He | ¡¡was immediately transported to nearby Beauregard Memorial Hospital in DeRidder. Mr. Tomasik had no memory of being taken to the hospital and did not recall talking to the emergency room nurse. He was subsequently admitted to its intensive care unit after it was determined by the emergency room personnel that he had suffered a heart attack and possible stroke. Later he was transferred for treatment to a Veterans Administration hospital in Houston, Texas.

Tina Sandford, Mr. Tomasik’s daughter, established the time frame for the events of the morning of February 15, 2011. She had resided with her father since his first heart attack, and she testified that after getting the vehicle started, he left home for the thirty minute drive to DeRidder at approximately 8:30 a.m. She received a telephone call from her father at 9:30 a.m., wherein he asked her to look up a telephone number. At that time, according to Ms. Sandford, Mr. Tomasik’s speech was slightly slurred. However, she did not find this unusual because she had observed that since his 2010 heart attack, his speech became slurred anytime he became excited or aggravated. Thirty minutes later, she received a telephone call from the DeRid-der office informing her that something was wrong with her father. When she called back a few moments later, her father had been given the nitroglycerin pills, and the lady she talked to described him as being disoriented.

Ms. Sandford arrived at the hospital at approximately 11:15 a.m., and immediately provided the emergency room personnel with her father’s history of having had a heart attack and stroke the year before wherein he had undergone a heart cathet-erization and the implantation of two stents. She denied telling the emergency room personnel that her father had complained of chest pain, shortness of breath, or any other symptoms the night before, although she did acknowledge |4that she might have told them that he had been a little tired over the weekend after having worked in his rose bed.

On March 28, 2011, Mr. Tomasik filed a disputed claim for compensation against the state, seeking indemnity and medical benefits and penalties and attorney fees. He asserted in his pleading that his heart attack and stroke were caused by his exertions in transporting three boxes, each weighing between fifty to seventy pounds, between the Lake Charles and DeRidder offices.

The matter proceeded to a trial on the merits on August 1, 2012, after which the WCJ took the matter under advisement. On December 20, 2012, the WCJ rendered oral reasons for judgment, finding that Mr. Tomasik proved, by clear and convincing evidence, that his heart-related injury was compensable pursuant to La.R.S. 23:1021(8)(e). Accordingly, the WCJ awarded Mr. Tomasik temporary total disability for the period between February 15 and April 15, 2011, and supplemental earnings benefits for the period between April 15 and May 1, 2011. The WCJ further awarded Mr. Tomasik $2,000.00 in penalties and $6,000.00 in attorney fees based on the state’s failure to pay indemnity benefits. The WCJ executed a written judgment to this effect on December 20, 2012, and, thereafter, the state perfected this appeal.

In its appeal, the state raised three assignments of error:

1. The [WCJ] was manifestly erroneous in determining that the heart attack was a compensable injury.
2. The [WCJ] was manifestly erroneous in determining that the heart-related problems were predominantly or majorly caused by work activity.
3. The [WCJ] was manifestly erroneous in determining that the work activity was either exceptional nor [sic] unusual compared to other persons employed in Tomasik’s profession.

1 ¿Mr. Tomasik answered the state’s appeal and requested additional attorney fees for work performed by his counsel in defending this appeal.

OPINION

It is well settled that the factual findings of a workers’ compensation judge are reviewed pursuant to the manifest error — clearly wrong standard of appellate review. Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2798 (La.1/9/11), 56 So.3d 170. Normally, an injured worker is only required to prove that he suffered a work-related injury by a preponderance of the evidence. However, in order to prove a heart-related or perivascular work injury, the burden of proof is elevated to clear and convincing evidence. La.R.S. 23:1021(8)(e).

Louisiana Revised Statutes 23:1021(8)(e) provides:

Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

In her oral reasons for judgment, the WCJ did not set forth with particularity the facts upon which she relied to conclude that Mr. Tomasik had met his burden of proof under La.R.S. 23:1201(8)(e). Rather, the WCJ stated generally that:

Based on the evidence presented, the Court finds that the claimant has carried his burden of proof by clear and convincing evidence that his physical work stress or exertion accelerated, aggravated, and made worse the claimant’s heart attack or injury. Claimant’s argument is supported by the evidence the claimant suffered a compensable heart attack.
|fiThe Louisiana Supreme Court set forth the parameters for determining whether the compensability of a heart attack in the case of Etta D. Harold v. LaBelle Maison Apartments, 643 So.2d 752 (La.10/17/94). The Harold court recognized that the statute, La. R.S. 23:1201[sic], makes it more difficult for a claimant to prove that the heart-related or perivascular injuries suffered on the job are compensable. However, that court held that the statute should not be construed to preclude recovery of workers’ compensation benefits simply because the claimant suffers from previously unknown but undoubtedly existent coronary artery disease. The Court found that as long as such a claimant meets the heightened burden of proof imposed by the amended statute, he or she can recover.
In this case, Tomasik proved by clear and convincing evidence that the lifting of the heavy boxes at the mandate of his employer, collapsing in a chair after he set boxes down, combined with the medical evidence that indicated that lifting the boxes accelerated the symptoms of the heart attack so much so that the claimant had to be immediately taken to the emergency room.

In Harold v. La Belle Maison Apartments, 94-889, pp. 5-6 (La.10/17/94), 648 So.2d 752, 755, the supreme court discussed the first prong of the two-pronged inquiry required of La.R.S. 23:1201(8)(e), and explained:

The first prong of the amended statute requires plaintiff to prove by clear and convincing evidence that the physical work stress she experienced was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation. LaJEt.S. 23:1021(7)(e)(i). “Extraordinary” is defined as “going beyond what is usual, regular, or customary.” Webster’s New Collegiate Dictionary (1977). “Unusual” is defined as “not usual” and “uncommon;” that is, not in accordance with usage, custom, or habit. Id. As is apparent from these definitions, the terms “extraordinary” and “unusual” have similar meanings. We hold that these terms require plaintiff to prove that her physical work stress went beyond what was usual, regular or customary in relation to the average employee in that occupation.

In Harold, the claimant was a maintenance worker at the apartment complex and had begun to suffer severe pains in her chest and back after removing grass from the cracks in the sidewalk on a hot August day. When she reported her condition to the apartment manager, he responded by handing her a work order for the repair |7of a toilet and dishwasher in an upstairs apartment. Still in pain, she performed those repairs and, shortly thereafter, collapsed and was rushed to a hospital where she was diagnosed as having had a heart attack. The supreme court concluded that the claimant had met her burden of proof under the first prong of La.R.S. 23:1021(8)(e) in that “[b]eing required to perform physical labor while in pain is not usual, regular, or customary for maintenance workers, which was Mrs. Harold’s occupation.” Id. at 755-56.

In the matter before us, the job description for a Veterans Assistance Counselor states that “[t]he incumbent functions in a public relations capacity in the parish where assigned. Incumbent may operate itinerant offices in parishes other than where position is domiciled, when required.” Of the six duties listed, there is only one under which the task Mr. Tomasik was performing might fit:

Maintains current records on all transactions and files correspondence in veterans files or other proper places: prepares and submits periodic written report? reflecting the total office production. Maintains office safety records, . reference manuals, and office equipment.

Included at the end of the job description is the catch all statement, “Performs other related duties as required.” In relation to transporting the files from one office to another, Mr. Tomasik testified that the only instruction he received was that he was to shred the inactive files.

Mr. Tomasik, who was sixty-three-years old at the time of this incident, testified that before being instructed in early 2010, to shred the inactive files, the only files he would transport between the Lake Charles and DeRidder offices were the approximately fifteen files he might be working on at any given time. It was only after receiving these instructions from Mr. Leger that lifting and transporting fifty to sixty pound boxes became a part of Mr. Toma-sik’s duties. Mr. Tomasik | Rwas only aware of one other counselor who transported files between offices as he did, and he did not believe that even that counselor did so on a regular basis.

On the other hand, Mr. Leger, who at the time of the incident was the Southwest Regional Manager for the Office of Veterans Affairs, testified that he supervised all of the offices in that region of the state including the Lake Charles and DeRidder offices. According to Mr. Leger, the duties being performed by Mr. Tomasik on February 15, 2011, were not above and beyond the usual job duties required of his position. Additionally, he did not believe that the stress caused to Mr. Tomasik in moving the boxes was exceptional or that it exceeded that experienced by other counselors employed by the Office of Veterans Affairs. Mr. Leger explained that offices such as the DeRidder office are not fully staffed by the state and that employees working at these offices are required to transport files from these smaller offices to the larger ones.

The supreme court in Harold also discussed the second prong of the two-prong inquiry, stating that it “requires [the claimant] to prove by clear and convincing evidence that her physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of her myocardial infarction.” Id. at 756. In addressing the defendant’s argument in Harold, that the claimant was not entitled to indemnity benefits because her pre-exist-ing significant blockage would have caused a heart attack sooner or later, the supreme court stated:

First, a heart attack claimant’s case does not fail simply because the medical expert cannot definitively state what the primary cause of the heart attack was. Second, the defendant’s argument is essentially that, because [the plaintiff] had a previously unknown but undoubtedly existent heart disease, which prompted [the doctor] to conclude that her heart attack was inevitable, this condition must have been the primary cause of her heart attack, so she cannot recover. We disagree. In our opinion, the legislature did not intend this result when it |3inserted the term “preexisting” in La. R.S. 28:1021(7)(e)(ii). To deny recovery to all heart attack claimants who have existent but unknown coronary artery disease would basically mean that no heart attack claimants would recover. Allowing the discovery of occluded arteries after the fact of a heart attack to preclude recovery of worker’s- compensation benefits is an overbroad reading of the statute. We do not think the legislature intended to eliminate all individuals with coronary artery disease from coverage of the worker’s compensation laws. Instead, it made such claims more difficult to prove by adding the heightened requirements of La.R.S. 23:1021(7)(e). Statutes must be construed in a manner to effectuate their purpose. Smith v. Cajun Insulation, Inc., 392 So.2d 398, 400 (La.1980). In addition, it is well settled that worker’s compensation laws must be given a liberal interpretation. Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1006 (La.1989). Applying these principles, we hold that La.R.S. 23:1021(7)(e) must not be construed to preclude recovery of worker’s compensation benefits simply because the claimant suffers from previously unknown but undoubtedly existent coronary artery disease. As long as such a claimant meets the heightened burden of proof imposed by the amended statute, he or she can recover.

Id. at 757.

In Harold, the claimant had performed heavy physical labor for over fifteen years and never experienced symptoms of cardiac difficulties. Although some significant blockage was apparently discovered after the fact of the heart attack, no physician had ever told her that she suffered from cardiac problems, and she did not even exhibit any of the danger signs of cardiac problems. With regard to causation; the claimant’s treating physician testified “that the delay [she] experienced in receiving medical treatment combined with her continued work while in the onset of a heart attack exacerbated the injuries to her heart.” Id. at 756.

The medical evidence in the matter before us was provided by Dr. Robin Yue, a board certified cardiologist from DeRid-der; Dr. Steven J. Snatic, a Lafayette, Louisiana, neurologist; and Dr. Jerome Arimura, a Lake Charles general practitioner. Both Dr. Yue and Dr. Snatic were of the opinion that Mr. Tomasik’s activities in lifting the boxes did not cause his heart attack. Dr. Arimura was of the opinion that it did cause his heart attack.

110Dr. Arimura examined Mr. Tomasik and reviewed some of his medical records in reaching the conclusion that “the patient clearly should not have been doing any work that required much of any physical exertion, including moving boxes weighing 50-70 lbs” and “more likely than not” the heart attack and stroke he suffered on February 15, 2011, as well as five subsequent syncopal episodes, and one subsequent cardiac event “were precipitated by the moving of the boxes.” Dr. Arimura based his opinion primarily on his review of Mr. Tomasik’s medical records, which revealed an extensive history of inoperable diffuse coronary artery disease, type II diabetes mellitus, hypercholesterolemia, hypertriglyceridemia, heart failure, heart blockage, chronic obstructive pulmonary disease, restrictive lung disease, chronic renal failure, and probable strokes. Dr. Arimura did acknowledge in his medical report that he had not reviewed the records of the Veterans Administration hospitalization and that “the records of the interim hospitalization at the VA Hospital in Houston were not available that might shed light on whether or not the patient indeed suffered another stroke.”

Dr. Yue, on the other hand, concluded that Mr. Tomasik had already suffered his heart attack before arriving in DeRidder on the morning of February 15, 2011, and that the heart attack was not caused by him lifting the boxes. He first became involved with Mr. Tomasik’s evaluation and treatment on the morning of February 15, 2011, when he was contacted by Dr. James Oglesby, the emergency room doctor at Beauregard Memorial Hospital. Dr. Oglesby informed Dr. Yue of Mr. Toma-sik’s complaints of chest pain and his abnormal EKG results, and, after listening to Dr. Oglesby’s report, Dr. Yue agreed with his diagnosis that Mr. Tomasik had suffered a heart attack. Based on this agreed-upon diagnosis, the two doctors determined how to initially move forward in the treatment. Thirty Inminutes after his conversation with Dr. Oglesby, Dr. Yue arrived at the hospital and immediately noted that Mr. Tomasik was very lethargic and unable to provide him with a history. Based on this finding, he concluded that Mr. Tomasik had also suffered a stroke.

In reviewing the results of the blood work performed in the emergency room, Dr. Yue noted that the patient’s Troponin and CPK-MB levels were both elevated. He explained that CPK-MB, which is a cardiac enzyme, is released when the heart muscle suffers damage and that both the CPK-MB and the Troponin levels will elevate and peak and then subside within twenty-four hours after the occurrence of a heart attack. This allows physicians to better pinpoint the actual time a heart attack occurs.

The medical personnel continued to check the two levels, and the blood samples taken at 5:00 p.m. on that day revealed that Mr. Tomasik’s CPK-MB and Troponin levels were 328 and 4.46, respectively. According to Dr. Yue, the normal level for CPK-MB is less than 180, and the normal level for Troponin is 0.04. Based on these levels, Dr. Yue estimated that Mr. Tomasik’s heart attack occurred between four to six hours previously. He stated that the earliest time the heart attack could have occurred was less than twenty-four hours, but the latest time was four hours prior to the blood test. That being the case, he initially estimated that Mr. Tomasik’s heart attack occurred no later than 1:00 p.m.

However, when Dr. Yue reviewed the blood test results from midnight that same day, he noted that Mr. Tomasik’s total CPK had decreased to 248. Based on this finding, he changed the window for the heart attack to between 3:00 to 4:00 a.m. and noon of February 15, 2011, again explaining that the total CPK level [ 12usually starts dropping twenty hours after the occurrence of a heart attack and that most heart attacks occur between midnight and the early morning hours.

Dr. Yue’s conclusion concerning the time frame for Mr. Tomasik’s heart attack involved the fact that both the emergency room doctor and nurse had reported that Mr. Tomasik began suffering chest pain during the night of February 14, 2011. He suggested that his diagnosis could best be described as that of acute coronary syndrome because it contains aspects of a heart attack combined with unstable angina. Dr. Yue explained that the process leading up to such an event begins with plaque rupturing and blocking an artery. This, according to the doctor, would be the unstable angina phase, but it and the impending heart attack are a continuous sequence. Given the history provided to him, he was of the opinion that the angina phase began the evening before.

Dr. Yue’s diagnosis caused him to conclude that the box-lifting activity did not cause Mr. Tomasik’s heart attack, although it may have caused his symptoms to worsen based on an increase in his heart beat in correlation to the decreased flow of oxygen in his blood caused by the blockage. Still, according to the doctor, once the heart muscle is damaged, strenuous activity will induce an increased heart rate, but this is a complication which would not further damage the heart muscle. According to Dr. Yue, had Mr. Tomasik called in sick on the morning of February 15, 2011, he would still have suffered a heart attack.

Dr. Snatic reviewed Mr. Tomasik’s medical records at the request of the state and agreed with Dr. Yue’s conclusion that Mr. Tomasik’s heart attack was not caused by his activity in lifting the boxes. In his report submitted into evidence, Dr. Snatic reached the following conclusions:

1.) The “incident” of February 15, 2011 which led to Larry Tomasik’s admission to Beauregard Memorial Hospital was an | ^interruption of the blood supply to his brain, involving the ver-tebrobasilar circulation, which ultimately resulted in fixed neurological deficit (an ischemic infarct or non hemorrhagic stroke) [see 7C][.]
A.) This was immediately recognized by Robin Yue upon his first person contact with Mr. [Tomasik] at Beauregard Memorial Hospital (his prior impression of an acute cornary [sic] syndrome as the reason for admission was based on a telephone conversation.
B.) This is documented by C.T. brain scan reported February 19, 2011 which report describes a subacute cerebellar ischemic infarct and by MRI brain scan reported February 24, 2011 which report describes recent infarcts within the left thalamic pulvinar, midbrain, cerebellar, vermis, the bilateral hemisphere (right greater than left) as well as other abnormalities within the vetebrobasilar [sic] distribution. MRA of the head reported on the same date which report indicates a “focal fenestration of the basilar artery” just above the confluence of the vertebral arteries. All of these studies were done a[t] V.A. Houston Medical Center.
C.) A stroke involving the vertebroba-silar symptom was recognized by the neurologists who attended him at the V.A. Medical Center Houston in February 2011.
2.) The stroke which occurred on February 15, 2011 was not caused by physical activity!.]
A.) There is little to no evidence that ischemic strokes are caused by physical activity.
3.) There is evidence that Mr. Tomasik had a posterior circulation stroke about a year earlier in 2010. (See neurology attending note of 2/21/2011 from V.A. Medical Center Houston). See Christus St. Patrick’s medical records 2/2010 including MRI Brain dated 2/17/2010 and discharge summary diagnosis of “acute cerebrovascular accident” and “left sided weakness secondary to acute cerebrovascular accident” among others.
4.) Mr. Tomasik’s two strokes, the one of 2/2010 and the one of 2/2011 are in the same vascular territory (ie: the vertebrobasilar territory). It is therefore likely that both have the same underlying cause. It is my opinion that cause, more likely than not, lies in the “fenestration” of the basilar artery described in the MRA brain scan of 2/24/2011 done at the V.A. Medical Center in Houston. I believe this area served as a site of 114thrombus formation and subsequent embolization accounting for multiple ischemic infarcts.
5.) The possibility of embolic infarction from elsewhere such as the heart is remote.
A.) About 90% of embolic strokes originating in the heart affect the carotid circulation, only 10% affect the vertebrobasilar circulation. The odds of cardiac emboli finding the vertebrobasilar system on two occasions a year apart would seem to be a[b]out 10% of 10% or a[b]out 1%.
6.) It is indisputable that Mr. Tomasik has multiple risk factors that would predict the likeihood [sic] of cardiovascular disease and cerebrobvascu-lar [sic] disease. These include diabetes mellitus, hypertension and hyperlipidemia. Indeed, after an episode of “atypical chest pain”, he was found to have diffuse coronary disease in 2/2010 and had a coronary stent placed. At that time the EKG was normal, cardiac enzymes were normal, “.... recent coronary disease” was included in the final diagnosis. The medical records from that admission make no mention of any activity or work related to the episode of 2/2010 (Christus St. Patrick Hospital).
7.) Upon admission to Beauregard Memorial Hospital, Mr. Tomaski [sic] reportedly complained of chest pain, had an abnormal EKG and subsequently was found to have elevated CKMB and Troponin all suggestive of an acute coronary syndrome. Dr. Yue believed symptoms began “the night before” but the time of the onset appears to be in dispute. Nevertheless, Mr. Tomasik was initially treated for an acute coronary syndrome ... until he was later recognized as having had a stroke.
A.) He had symptoms and signs of heart disease and stroke.
B.) There is no reason an individual with multiple risk factors for vas-culr [sic] disease and a prior history of both coronary artery disease and stroke could not have both in the same 24 hour period.
C.) His initial symptoms, on 2/15/2011, of dizziness, loss of balance, and loss of consciousness are typical of vertebrobasilar ischemia and stroke.
D.) Occasionally strokes appear to be capable of causing EKG changes and elevation of cardiac enzymes. This may be due to marked elevation of adrenalin which is thought by some to be cardiotoxic. I do not know |1fiwhether this explains the con-incidence [sic] of stroke and “acute coronary syndrome” in this case. (See 9).
8.) Dr. Arminara [sic] has reported that he believes that “moving boxes” on 2/15/2100 precipitated Mr. Tomaski’s [sic] stroke of 2/15/2011, subsequent syncopal episodes at V.A. Medical Center Houston and a subsequent stroke at Christus St. Patrick in March 2012 as well as the cardiac event of 2/15[ ]/2012. These conclusions seem to be way above his level of education and experience (he is a G.P., not a Cardiologist and not a Neurologist) and cannot be supported by clear and convincing evidence in the medical literature or elsewhere.
9.) The fact that Mr. Tomaski [sic] had an elevated CPK on admission to Beauregard Memorial is not in dispute. An elevated CPKMB is indicative of myocardial damage. I will defer to Dr. Yue for his conclusion regarding the significance of his finding.

We find that the WCJ erred in concluding that Mr. Tomasik carried his enhanced burden of establishing that the physical work stress to which he was subjected was extraordinary and unusual in comparison to that experienced by the average counselor working for the Office of Veterans Affairs or that it was the predominant and major cause of his heart-related medical condition as required by La.R.S. 23:1021(8)(e). With regard to the first element of the two-prong burden of proof, the evidence established that Mr. Tomasik’s employment duties included “[m]ain-tain[ing] current records on all transactions and files correspondence in veterans files or other proper places” as well as “related duties as required.” This would clearly include the duty to properly dispose of inactive files. Mr. Tomasik testified that he was already transporting some individual files between the two offices on a regular basis before he was instructed to begin the process of disposing of inactive files. While Mr. Tomasik testified that he was only aware of one other counselor who had the same transportation obligations, Mr. Leger explained that many of the smaller offices are not fully staffed and all of the counselors working |lfiat these offices had the same duties as Mr. Tomasik. The burden of proof on this issue is clear and convincing, and we do not find that Mr. Tomasik met that burden.

Furthermore, the medical evidence submitted by Mr. Tomasik does not meet the clear and convincing burden of proof required in La.R.S. 2S:1201(8)(e)(ii). Dr. Ar-imura’s opinion that Mr. Tomasik’s heart attack was precipitated by his moving the boxes was based on a “more likely than not” standard. Thus, Mr. Tomasik failed to meet his burden on this issue as well.

Because we find that the WCJ judgment should be reversed, we need not consider Mr. Tomasik’s request for attorney fees on appeal

DISPOSITION

For the foregoing reasons, we reverse the judgment of the workers’ compensation judge rendered in favor of Larry To-masik and against the State of Louisiana, Office of Veterans Affairs; and we render judgment in favor of the State of Louisiana, Office of Veterans Affairs and against Larry Tomasik, dismissing all of his claims against that entity. We assess all costs of these proceedings against Larry Tomasik.

REVERSED AND RENDERED.

      . At the time of the plaintiff's workers' compensation claim in Harold, La.R.S. 23:1201(8)(e) was designated as La.R.S. 23:1021(7)(e).


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. William KING, III.
    No. 13-469.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Earl B. Taylor, District Attorney, St. Landry Parish, Jennifer M. Ardoin, Asst. District Attorney, Opelousas, LA, for Ap-pellee, State of Louisiana.
    Daniel Sanford, Lafayette, LA, for Appellant, William King, III.
    Court composed of Judges SYLVIA R. COOKS, MARK T. AMY and BILLY H. EZELL.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

| TDefendant, William King, III, (Defendant) was indicted on January 26, 2010, for the brutal second degree murder of Brian Armstrong (Armstrong), in violation of La. R.S. 14:30.1. The murder took place in the St. Landry Parish jail in cell number eight known as “the drunk tank.” Defendant’s cousin, and co-perpetrator, Chadwick 0. King (Chadwick) was also indicted for the murder.

The jury found Defendant guilty as charged on March 15, 2012. Chadwick’s jury rendered a responsive verdict of guilty of negligent homicide in a separate trial in late March of 2012, after Defendant’s trial. Defendant filed a motion for new trial arguing the evidence did not support the essential elements of his conviction and further asserted that newly discovered evidence would have changed the verdict. The trial court denied Defendant’s motion on January 28, 2013.

Defendant appeals his conviction, arguing the evidence was insufficient to convict him or to show his specific intent to cause death or great bodily harm to Armstrong. He also asserts the testimony of a key witness, Reginald Cretain (Cretain), was unreliable because of mental impairment.

Included as an attachment to Defendant’s brief is a transcript of Cretain’s testimony from Chadwick’s trial, given on March 30, 2012, after Defendant’s trial. It is not a part of the record of Defendant’s appeal. Nothing indicates it was ever shown to or discussed with the trial court as part of this matter. Defendant’s motion for new trial alleges he tried to obtain a transcript of the testimony, but the | ?cost was prohibitive. Nevertheless, Defendant obtained this testimony and now seeks to offer it as part of this appeal. This court may not consider this transcript which has not been first presented to the trial court. Uniform Rules — Courts of Appeal, Rule 2-1.7. For the reasons as stated herein we affirm Defendant’s conviction.

FACTS

Brian Armstrong was kicked and stomped to death in the Opelousas City Jail on September 28, 2009 by Defendant and Chadwick. He was booked into the jail around 8:39 p.m. on September 27, 2009, for disturbing the peace due to intoxication, resisting an officer, and entering/remaining on premises after being forbidden. He was attempting to attend an Alcoholics Anonymous meeting in Opelou-sas, Louisiana. The toxicology report and expert medical testimony demonstrate Armstrong was severely intoxicated and had also consumed a large quantity of the drug Prozac. The booking sheet indicates Armstrong “was very combative and was not dressed out.” According to trial testimony, Armstrong was “combative” in that he would not comply with the arresting officers’ requests and became limp when the officers at the jail attempted to put him in the “drunk tank.”

The video recording system at the jail included a camera at the end of a hallway that showed the exterior of cell eight. The camera was motion-activated. Without movement the camera is operational but does not record. According to the State’s witness, “the cameras were not working ... [n]ot showing on the monitor” at the patrol supervisor’s desk on September 27, 2009. Thus, the patrol supervisor, Lieutenant Mark Semien (Lieutenant Semien) of the Opelousas Police Department, could not observe anything that took place in the hallway outside cell eight.

|sThe recorded video shows Armstrong was unable to stand when he was carried out of the booking area at 8:18 p.m. on September 27. Lieutenant Semien testified Armstrong “just went limp and he refused to get up” when “he learned that he was going to the jail cell.” Law enforcement officers carried Armstrong into the “drunk tank,” an eight-foot by eight-foot cinderblock room. The light in the cell did not work; a light was in the hallway, but “you can only see, you know, very — very little in the — in the drunk tank.” Nevertheless, Lieutenant Semien testified he could clearly see Armstrong inside the cell because he “was lying right there at the doorway when you open the doorway.” The cell’s solid metal door had a small rectangular window around eye level and a pan-slot lower on the door. It was through this pan-slot that a jail trustee saw Armstrong lying dead on the bloodied floor of the cell the next morning. Apparently no officer checked on the cell for at least six hours.

At 10:40 p.m., the video shows police escorting Cretain through the hallway into the cell. A man wearing an orange jumpsuit is locked in the cell at 11:24 p.m. Another man wearing orange is locked in the cell at 11:32 p.m. At 11:36, the video shows clothing being thrown through the rectangular opening of the cell door into the hallway. Police are in the hallway at 11:55 p.m. on September 27 and again at 12:01 a.m. on September 28, but they do not approach the “drunk tank.” An orange jumpsuit is thrown through the opening at 12:31 a.m. Nothing else occurs on the video until 6:00 a.m., when an officer appears in the hallway. He does not check the cell. At 6:05 a.m., a jail trustee, picking up trash in the hallway, puts something into the pan-slot of the door, and at 6:07 a.m., he puts the orange | Jumpsuit through the opening. At 6:08 a.m., he looks through the opening in the doorway and summons help. Medical personnel arrive at 6:23 a.m.

Lieutenant Semien identified Cretain and Chadwick at trial. He testified no one was in the “drunk tank” cell when Armstrong was placed inside. Armstrong was conscious when he was brought to the police station and when they placed Cre-tain into the cell with him. When Defendant was placed in the cell, he was alive, fully clothed, and had no signs of any of the injuries he later suffered and died from. He was left lying on the floor on his stomach. Every time Lieutenant Semien opened the cell door, Armstrong looked up and moved, indicating to the Lieutenant he was conscious and alive. Lieutenant Sem-ien did not consider Armstrong “that much impaired that he needed medical attention” upon arrival at the station “because he was being combative with the officers.”

Armstrong made no sound at any time Lieutenant Semien went to the cell. He discovered Armstrong was dead when other officers reported to him. Lieutenant Semien could not say what time Armstrong died or how long he had been dead when the body was discovered. He believed he would have heard any “excessively loud” noises coming from the drunk tank “if they were banging on the door, stuff like that,” while he was at his desk. A solid steel door separated the desk from the hall that led to the “drunk tank.” Cre-tain testified he screamed for help and banged on the cell door repeatedly while Armstrong was being brutally stomped to death by Defendant and Chadwick but no one came to help.

Jeffery Fuselier, the trustee at the jail, testified one of the men inside the cell asked Fuselier to hand him a shirt. Fuse-lier handed him the orange shirt thrown from the cell earlier. Another man in the cell asked Fuselier to hand him the orange jumpsuit thrown from the cell onto the floor in the hallway. Fuselier gave them the clothing through the pan-slot in the door. He counted three people in the |ficell, then saw the body on the floor, lying on its back. A shirt found near the bo.dy was torn into two pieces.

Cretain, who was living in Tacoma, Washington at the time of trial, was an eyewitness to the murder. He thought he was placed in the Opelousas City Jail for “disturbing the peace or something— something close to that.” He testified Armstrong was on the ground when he went to the holding cell. Armstrong “was sleeping, you know, drunk and stuff ... He was laying like on his stomach ... arms to his side, you know, and kind of like sleeping there[.]” Cretain testified he saw no injuries on Armstrong’s body when he first observed him. Armstrong was “a little bit” conscious, and he lifted his head, looked at Cretain, and then “laid back down.”

Cretain identified Defendant as the next person brought to the cell although booking records indicate Defendant went to the cell after Chadwick. Defendant “was a little upset and stuff,” and “he was talking and ... voice was kind of ... like angry and stuff, you know, just cursing a little bit and stuff, you know.” He was wearing an orange jumpsuit. Cretain was intoxicated and “kind of like upset” himself. Cretain testified that after all four men were in the cell, Defendant kicked Armstrong twice in the head while he was lying on the floor, then Chadwick joined in the beating. Both Defendant and Chadwick “jumped on him.” Chadwick began striking Armstrong after about “the first three blows” from Defendant. Both kicked Armstrong in the face, then Chadwick kicked him in the side. Defendant removed Armstrong’s clothing and then “stomped in the groin section” causing severe injury to Armstrong’s genitals and inner thighs.

As Defendant stomped Armstrong in the groin, he said “ ‘[y]ou ain’t gonna have no more kids,’ or something like that,” and referred to Armstrong as “You | (¡Cracker.” Chadwick stood on the cell’s bench and jumped onto Armstrong again. The body, according to Cretain, was “bloody, bruised, busted up on the face, uh, just — groin area, man,, was just, I mean — I mean, demolished. I mean, stuff just like just, I mean just pushed — pushed in.” Forensic evidence showed that Armstrong suffered severe internal injuries, including lacerations to his liver and a torn mesentery which holds a person’s intestines in place.

Cretain banged on the cell door and called to his brother, Devon Cretain (Devon), who was in another area of the jail. He believed Devon and “other guys up in there” heard him. Defendant and Chadwick stopped “for a minute- and then they went back and then after that, they just left him — just left him alone after that ... He wasn’t breathing or nothing no more and stuff.” Cretain could tell Armstrong was not breathing by the way the body lay. Armstrong had turned onto his back while they kicked him hard in the face, and “[h]is whole side was split.” Cretain missed some of the beating because his back was turned when he was banging on the door, but he could hear “like stomping ... like the kicking and stuff.” Although Cretain did nothing to try to intervene, he felt he tried to help Armstrong by banging on the door in hopes of getting someone to help.

In the video of Defendant’s post-incident interview, he told law enforcement officers he “didn’t kill that dude on purpose.” Defendant did not recall very much of what happened because he was “f-d up.” He did recall that he kicked Armstrong twice in the jaw while Armstrong lay on the floor and that Chadwick had kicked Armstrong also. Defendant actually commented in his statement, “nobody’s perfect.”

The trial court accepted Dr. Joel Carney (Dr. Carney) as an expert in forensic pathology. Dr. Carney performed an autopsy on Armstrong on September 29, 2009. Pre-autopsy photographs showed Armstrong had “a number of blunt | injuries,” including contusions (bruises), abrasions (scrapes), and patterned contusions. Dr. Carney explained “blunt injuries” are produced by blunt objects, including fists and feet. He saw no defensive injuries to Armstrong’s hands. He testified that all of the bruising on Armstrong’s face, genitals, and torso occurred while he was still alive. When asked if there is a way to tell whether someone received a laceration before or after death, Dr. Carney explained:

Injuries that occur prior to death result in bleeding and this is due to the presence of blood pressure during life. In other words, during life the heart is beating. The blood vessels are filled with blood under pressure. When these blood vessels are injured, they allow blood to leak into the surrounding tissues and this produces visible discoloration of the injured site.
Injuries that take place after death, in contrast, are usually lacking in color. That is, they’re usually yellow in color because these injuries don’t have any bleeding involved with them so — so, yes, there is a way we can distinguish them.

After the body was washed, Dr. Carney found abrasions on the back of Armstrong’s head. He found a patterned contusion of seven roughly parallel lines on the front of Armstrong’s right shoulder. Another patterned contusion of seven parallel lines was located on Armstrong’s left flank, “the left thoraco-abdominal skin,” and the right flank also had “a number of contusions and abrasions.” The back of Armstrong’s right elbow also had contusions and abrasions. Armstrong’s ear had a tear near the left ear canal, and his face had a “large contusion which was red-purple in color and this contusion actually involved the entirety of the face,” from the forehead to the neck. Armstrong had a tear at the corner of his eye, a laceration on the upper portion of his chin, extensive bruising involving the internal aspect of the upper lip, multiple lacerations that tore the inner lining of the mouth and extended to the back of the mouth, and a laceration “within the distribution of the mustache.” The bottom lip was cut and bruised, and Armstrong had another cut just below the nostril.

^Armstrong’s left eye showed bruising of the eyelids and “a laceration at the angle of the eye.” A patterned contusion was on the skin of the forehead. Several superimposed lacerations were on the nose. Armstrong’s neck contained a red bruise with a superimposed darker red bruise. Bruises and contusions involving the right lower portion of the abdomen “extended onto the genitalia, including the dorsal aspect, the top of the penis.” Both of Armstrong’s testes were bruised. The bruises “also involved the right side of the scrotum” and extended onto the inside of Armstrong’s thighs. The right side of the abdomen contained another patterned contusion of wavy lines. The right groin showed the patterned contusion of parallel lines.

Dr. Carney’s internal examination during the autopsy showed fractures of Armstrong’s face, including fractures of the right orbital rim, “a bone immediately beneath the right eye,” and the right zygo-matic bone, “the bone located immediately beneath the skin at this location.” In the upper portion of the neck, the hyoid bone was fractured, indicating “that blunt force or compression occurred to the front of the neck.”

The thyroid cartilage (Adam’s Apple) was fractured. Dr. Carney explained that cartilage is normally “rigid so as to maintain patency of the airway so that air can pass through it.” Armstrong’s fracture “extended through the entire length of the thyroid eartilage[,]” indicating “that a blunt force was applied to the front of the neck in the form of a blow or compression.”

Armstrong had multiple rib fractures on both the right and left sides. Some of “the edges of the fractured bones were separated from one another and they were projecting into the right lung cavity.” Liquid blood was present within the abdominal cavity. The capsulary surfaces of the liver and spleen were torn. The 19mesentery, “a structure that anchors the intestine,” contained a large laceration, “twelve by seven inches ... capable of producing significant bleeding.”

Dr. Carney “ascribed the cause of death as blunt injuries[,] and an element of neck compression [was] not entirely excluded.” Loss of blood was also a cause of death. Dr. Carney could not exclude neck compression because of the fractured hyoid bone and the fractured thyroid cartilage. Those fractures could have caused lack of oxygen or “stimulation from a small organ in the neck known as the cardioid body which is capable of actually stopping the heart.” Dr. Carney could not determine “what mechanism of injury actually caused the death but — but the cause of death [was] blunt injuries.” He did not find any of the blunt force trauma to Armstrong’s head to be life-threatening. Armstrong’s blood alcohol level at the time of the autopsy, around 3:00 p.m. on September 29, 2009, was .352 percent, a level “capable of producing unconsciousness” but not death.

Armstrong also had “two thousand, seven hundred and eighty two nanograms per mil” of the drug Prozac in his system, about five times the upper limit of therapeutic level. The combination of Armstrong’s levels of alcohol and Prozac could cause death but Dr. Carney did not believe these to be the cause of Armstrong’s death.

While Dr. Carney did not issue the death certificate, he provided the opinion as to the cause and manner of death. His opinion was “blunt force trauma caused the death.” Armstrong’s death certificate, however, indicated causes of death as “Blunt Injuries (multiple over body) due to inflicted trauma” and “Alcohol Intoxication (0.352%).” Dr. Carney surmised the local coroner added alcohol intoxication as an additional cause of death. Dr. Carney testified his analysis about damage to Armstrong’s neck “came up after the fact,” but he did not issue a supplemental autopsy report. He believed alcohol may have contributed to |1()Armstrong’s death, but “he had fatal injuries. Fatal injuries trump the toxicology. The injuries were hemorrhagic and they were incurred during life[.]”

The trial court accepted Bethany Harris of the Acadiana Crime Lab “as an expert in forensic science with a specialist as a DNA analyst.” Ms. Harris prepared DNA profiles of Defendant, Chadwick, and Armstrong from reference DNA samples. She performed DNA analysis on a blood stain from the orange prison jumpsuit recovered from Defendant that showed the DNA of major and minor contributors. Armstrong was the major contributor. Ms. Harris first testified neither Defendant nor Chadwick could be excluded as potential contributors to the minor DNA profile found on the jumpsuit. However, she later said Chadwick was “excluded as the source of that minor profile,” but she could not exclude Defendant.

Ms. Harris also analyzed a pair of Nike brand athletic shoes containing a single source DNA profile; the profile matched Armstrong. The shoes were seized from Defendant at 9:20 a.m. on September 28, 2009 at the Opelousas Police Department. The DNA was extracted from a blood stain on the shoes.

The orange prison jumpsuit collected from Chadwick also contained a spot of blood. The DNA profile showed Armstrong was the major DNA contributor. Of the two minor contributors, Chadwick could not be excluded as part of the mixed profile. Ms. Harris could not determine the identity of the second minor DNA contributor to the mixed profile, but she excluded Defendant.

Chadwick’s Timberland shoes also contained blood. The major contributor of the DNA in that blood was Armstrong; Chadwick was the minor contributor.

Mark Kurowski (Mr. Kurowski) qualified “as an expert in forensic science and with the speciality [sic] or emphasis on shoe print analysis.” He enlarged photographs provided by the St. Landry Sheriffs Office to life size “and then |nmade test impressions using the shoes and then overlayed those impressions on the photographs.” Mr. Kurowski explained Defendant’s Nike Air Force One shoes had a unique sole pattern of two areas of concentric circles, “parallel lines around the perimeter, and a small star pattern at the top.” Using impressions of those shoes and scale photographs of Armstrong’s body, Mr. Kurowski determined the shoes inflicted injuries shown to Armstrong’s right neck area and forehead. The imprints on three other areas of injury were “more similar to the Timberland brand shoes” belonging to Chadwick. Although Armstrong also wore Nike Air Force One shoes, Mr. Kurowski excluded those shoes from causing any of the injuries based on their size. The larger size thirteen shoes of Armstrong would have made “parallel lines much fa[r]ther apart[.]”

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record we find there are no errors patent.

ASSIGNMENTS OF ERROR NOS. 1 and 2.

Defendant argues the evidence was insufficient to prove beyond a reasonable doubt that he committed second degree murder and that he possessed the specific intent to kill or do great bodily harm to Armstrong. The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. h?art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165). The appel late court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finders discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinders role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. [120], [133-35], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ] (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378.

|1sSecond degree murder under these facts “is the killing of a human being ... [w]hen the offender has a specific intent to kill or inflict great bodily harm[.]” La.R.S. 14:30.1(A)(1). “Specific criminal intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant.” State v. Maxie, 93-2158, p. 11 (La.4/10/95), 653 So.2d 526, 532 (citing State v. Graham, 420 So.2d 1126 (La.1982)). “The severity of a victim’s injuries may be probative in proving the defendant’s intent to kill.” State v. George, 09-143, p. 8 (La.App. 3 Cir. 10/7/09), 19 So.3d 614, 620 (citing State v. Green, 484 So.2d 698 (La.App. 1 Cir.1985), aff'd, 493 So.2d 1178 (La.9/8/86)).

In State v. Jones, 09-1453 (La.App. 3 Cir. 8/11/10), 45 So.3d 1136, writs denied, 10-504 (La.2/18/11), 57 So.3d 328, and writ denied, 10-2132 (La.2/18/11), 57 So.3d 330, the defendant beat, anally raped, and stabbed his girlfriend over a period of three days. On appeal, he argued he did not intend to kill his victim, evidenced by the small size of the wound and the fact he did not aim at or hit a vital organ. He claimed the opening in the chest wall and collapsed lung were accidental. The defendant refused to let his victim seek medical help because he feared being implicated, but he treated her wound by securing a wash rag to her chest with duct tape. She finally escaped with the help of a neighbor. He was convicted of attempted second degree murder and we upheld that conviction. The victim’s treating physician testified the chest wound “was both significant and life-threatening.” Id. at 1139. She had very low blood pressure, was going into shock, and required a blood transfusion upon arrival at.the hospital. She also had a collapsed lung and required surgery to remove clotted blood in her chest cavity. Her physician testified she would have died had she not received treatment when she did. This court rejected the defendant’s argument that he had no specific intent to kill or cause great bodily harm.

In State v. Scott, 09-748 (La.App. 3 Cir. 12/9/09), 26 So.3d 313, writ denied, 10-94 (La.6/25/10), 38 So.3d 336, the defendant was convicted of second degree murder after he struck the victim multiple times with a baseball bat. As the victim exited the side door of a lounge, the defendant struck him once in the head, then hit him two more times. A witness testified she had seen the defendant “running with a bat hitting people.” Id. at 315-16. The defendant argued the chaos in the area precluded a finding of what truly transpired. He contended others also hit and kicked the victim.

Dr. Carney performed the autopsy on the victim in Scott as he did here. He testified at trial “the cause of death was injuries to the head and brain which were the result of blunt force trauma consistent with being struck forcefully in the head with a bat.” ' Id. at 316. This court held specific intent to cause great bodily harm could be inferred from the defendant’s act and affirmed his conviction.

Here, Defendant admittedly kicked the helpless victim twice in the jaw, apparently without any provocation. He stomped Armstrong’s neck area and forehead so hard he left an imprint of his shoe in Armstrong’s skin. He fractured Armstrong’s hyoid bone and thyroid cartilage. Dr. Carney testified those injuries could have caused neck compression and led to Armstrong’s death. Defendant also stomped Armstrong’s groin area and “demolished” Armstrong’s groin area declaring Armstrong would never have any kids. Armstrong’s blood and DNA were on Defendant’s shoes. The jury could reasonably conclude that Defendant at the very least intended to inflict great bodily harm on Armstrong.

Defendant suggests he should not be held responsible for this death because Armstrong would have died anyway from excessive consumption of Prozac and alcohol. This argument, disrespectful of a human life as it is, ignores the fact that Armstrong was alive at the time Defendant and Chadwick attacked him. Dr. 1^Carney testified the body would not have bruised and bled as it did had Armstrong already been dead at the time Defendant and Chadwick brutally kicked and stomped him. As Dr. Carney testified, “[fjatal injuries trump the toxicology.”

One does not kick or stomp a victim with enough force to fracture his neck area or demolish his groin area without the specific intent to at least inflict great bodily harm, if not to actually kill. Both the nature and the extent of the injuries infer the specific intent to Mil or cause great bodily harm. Thus, the evidence was sufficient to establish Defendant’s specific intent and his guilt. Defendant’s arguments lack merit.

ASSIGNMENT OF ERROR NO. 3.

Defendant contends Cretain’s testimony was unreliable because his ability to perceive events was impaired by a head injury. He argues Cretain’s testimony about this incident “changed and evolved” from the time of his law enforcement interview the day of the incident to when he testified at Chadwick’s trial on March 30, 2012.

The jury assessed Cretain’s credibility and weighed the evidence and we will not disturb their determinations of credibility. Ryan, 969 So.2d 1268. Further, the evidence was sufficient to convict Defendant even without considering Cretain’s testimony. Armstrong was alive when Defendant was placed in the cell, and he was dead some six hours later. He was brutally injured. Defendant admitted to McMng Armstrong. Defendant had Armstrong’s blood and DNA on his shoes. Defendant’s shoe prints were on Armstrong’s neck and forehead.

Additionally, much of Defendant’s argument involves Cretain’s testimony from his civil deposition and his testimony at Chadwick’s trial. Thus, his argument depends on evidence that was not presented in the trial court and may not be considered here. Uniform Rules — Courts of Appeal, Rule 2-1.7.

| mWe find Defendant’s argument lacks merit.

For the reasons as stated above we affirm Defendant’s conviction.

AFFIRMED.

      . Although in Defendant’s appellate brief he states he is not related to Chadwick King, the trial court's Reasons for Judgment (denying Defendant’s motion for new trial) indicate Defendant and Chadwick are cousins.

      . William King is referred to throughout this opinion as “Defendant” and Chadwick King is referred to as “Chadwick.”

      . Cretain testified he was wearing plaid shorts and white and turquoise shoes, as shown on the video.

      . The jail’s booking log indicates Cretain’s charge was aggravated assault.


author: AMY, Judge.

text:
    STATE of Louisiana v. Jerome THOMAS.
    No. 13-475.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      J. Phillip Haney, District Attorney, Angela B. Odinet, Assistant District Attorney, St. Martinville, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Jerome Thomas.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

| ,A jury convicted the defendant of two counts of aggravated rape for offenses involving minor children. The trial court sentenced the defendant to life imprisonment without the possibility of probation, parole or suspension of sentence. The defendant appeals, questioning the trial court’s denial of his challenges for cause during juror selection. For the following reasons, we affirm.

Factual and Procedural Background

In November 2010, the State charged the defendant with two counts of aggravated rape involving minors under the age of thirteen. See La.R.S. 14:42. The first charge related to an offense allegedly committed in 2010 upon a child born in 2000, whereas the second offense was allegedly committed during the span of 1988 through 1987 upon a child born in 1974.

Following trial, a jury convicted the defendant as charged. The trial court thereafter imposed a term of life imprisonment at hard labor without the possibility of probation, parole or suspension of sentence. See La.R.S. 14:42(D).

The defendant appeals and, in his sole assignment of error, argues that the trial court erred in denying his challenges for cause of two jurors.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. That review revealed no such errors.

Challenges for Cause

As he did at trial, the defendant questions the trial court’s denial of his separate challenges for cause of two jurors, Mr. Trahan and Ms. Howard. During voir dire, both jurors recounted instances of sexual abuse in their respective |2personal or family history. The defendant contends that, in light of that history, the trial court was required to grant his challenges for cause of both jurors. The record indicates that the defendant exercised peremptory challenges for both jurors.

Louisiana Constitution Article 1, § 17 ensures that an “accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptively.” Thus, in the event a defendant must utilize a peremptory challenge in order to correct an erroneous denial of his or her challenge for cause, and ultimately exercises all available peremptory challenges on other prospective jurors, a substantial right of the defendant is affected. State v. Lewis, 12-1021 (La.3/19/13), 112 So.3d 796; In that event, prejudice is presumed. Id.

The defendant in this case lodged challenges for cause based on allegations of bias. In this regard, La.Code Crim.P. art. 797 provides that:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and evidence[.]

The record reveals that the defendant did, in fact, use all twelve peremptory challenges available to him.

In reviewing the denials of the challenges for cause, we are mindful that a trial court is afforded broad discretion in its rulings on such a challenge. See State v. Campbell, 06-286 (La.5/21/08), 983 So.2d 810, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008). Additionally, its ruling will only be reversed in the event that the entirety of the voir dire record reveals an abuse of discretion. Id. Thus, a potential juror’s responses are not to be considered in isolation. Id. However, a challenge for cause should be granted even if a prospective juror states that he or she can remain impartial when the juror’s responses, as a whole, “reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably [inferred].” Id. at 858 (quoting State v. Jones, 474 So.2d 919 (La.1985) (alteration in original)). Thus, and notwithstanding the abuse of discretion standard, a trial court’s denial of a challenge for cause based on an allegation of bias is neither reversible error nor an abuse of discretion if the prospective juror “demonstrates a willingness and ability to decide the case fairly according to the law and evidence” upon further examination or rehabilitation. Id. Having set forth the applicable law and standard of review, we turn to consideration of the correctness of the denials for cause.

Potential Juror Trahan

First, the defendant questions the trial court’s denial of his challenge for cause of potential juror Trahan. Namely, the defendant notes that, when asked if he had relatives who had been the victims of a crime, Mr. Trahan revealed that his sister was a victim of rape “four or five years ago[.]” He explained that she was “[eleven or twelve” at the time of the offense and that the perpetrator “went to jail.” Thereafter, the trial court questioned Mr. Trahan regarding his ability to set that history aside as follows:

Q. All right. So, if you’re selected as a juror, it’ll bring back those, those memories?
A. Kinda.
[4Q. All right. All right. That’ll, would that prevent you from being fair—
A. No.
Q. — to both the State and the Defendant in this case?
A. No.
Q. All right. You can set that aside?
A. (No response).
Q. Yes? No?
A. Yes.
Q. All right.

After the trial court denied the defendant’s challenge for cause, the defendant exercised a peremptory challenge to exclude Mr. Trahan from the jury.

Reviewing the voir dire record as a whole, we find that the trial court did not abuse its discretion in denying the defendant’s challenge of Mr. Trahan. Instead, as indicated in the above-referenced colloquy, Mr. Trahan indicated that his sister’s history would not prevent him from being fair to either the defendant or the State. Additionally, the facts, as developed by the questioning, are not such that required the trial court to find that bias, prejudice, or an inability to render judgment according to the law may be reasonably inferred. See Campbell, 983 So.2d 810.

Accordingly, we find no merit in the defendant’s argument regarding Mr. Tra-han.

Potential Juror Howard

The defendant also questions the denial of his challenge for cause of potential juror Howard, who explained to the trial court during voir dire that she “was molested as a child” and that “[she] was raped when [she] was seventeen.” Ms. Howard explained that no charges had been filed as result. She volunteered |sthat: “I don’t feel that it would affect my decision making but, I wanted that to be known.” Thereafter, the following colloquy occurred between Ms. Howard and the State:

Q. Okay. And so, was it a relative in the—
A. No.
Q. Non-relative?
A. Non-relative.
Q. And you’ve never disclosed?
A. I’ve disclosed it to my family but I didn’t disclose it to the police or anything like that.
Q. And so, how old were you?
A. I was ten.
Q. Okay.
A. Probably for two years. And I was seventeen the last time.
Q. Have you received any type of counseling or—
A. I did. I went to counseling for almost two years.
Q. And you feel like you’ve dealt with—
A. Yes.
Q. — sufficiently enough to allow you to withstand a trial like this?
A. Yes, I think so.
Q. Okay. You know, and a lot of times you hear a lot of people say that they can be fair, but emotionally it’s a very difficult thing for them to experience. Do you think that emotionally you’d be able to withstand it?
A. Yes, I think so.
Q. Okay. Do you think that your own personal experiences would weigh in in any way, shape or form when determining credibility or—
|fiA. I think I could probably see where someone’s coming from because I’ve been there.
Q. Uh-huh.
A. I, I don’t think that it would have an affect on my decision ’cause I feel like someone is innocent until they’re proven guilty. And if someone is guilty then they should be punished for it. But they shouldn’t be punished if they’re not guilty.
Q. So you think that you can fairly look at everything and decide whether or not?
A. Yes.

Thereafter, defense counsel questioned Ms. Howard regarding whether she would be inclined to “lean toward” believing the victims in the case in light of her history. Ms. Howard responded: “I don’t think so.” When defense counsel inquired regarding whether the trial could “bring back memories” of her experiences, Ms. Howard responded:

A. It would probably bring up a memory but I’ve dealt with all of those issues through counseling and I’ve, I’ve had friends who have been through the same thing and I’ve tried to help support them in what they’ve been through. But I don’t, I don’t feel that I would make a decision based on something that’s happened to me in my past. I think that I could look at both sides of a story.
Q. Do you ever regret not having tried to bring the perpetrators in your situation through the criminal process?
A. Yes, I do.
Q. And you honestly can say that you do not feel that that type of regret might motivate you to lean more towards the State than the Defendant in this case?
A. Absolutely not.

Finally, when the State renewed its questioning of Ms. Howard, the prosecutor asked whether she might “over compensate” in an effort to be fair to the defendant. In response, the potential juror explained that: “Through my life I’ve always tried to balance both sides of everything. And sometimes it takes me longer to make a 17decision because I do that. But I want to make the right decision, the best decision that I feel is accurate.”

In rejecting the defendant’s challenge for cause of Ms. Howard, the trial court remarked that Ms. Howard’s answers were “decisive” and “considered.” We find no abuse of discretion in that determination. Instead, Ms. Howard repeatedly confirmed her ability to consider the matter without favor to either the State or the defendant. Her testimony as a whole supports the trial court’s ruling. See Campbell, 983 So.2d 810.

This assignment lacks merit.

DECREE

For the foregoing reasons, the convictions of the defendant, Jerome Thomas, are affirmed.

AFFIRMED.

      . La.Code Crim.P. art. 799 provides that: “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.”


author: PAINTER, Judge.

text:
    STATE of Louisiana v. Yolanda MARTINEZ.
    No. 13-437.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.
    Chad Ikerd, Office of the District Defender, Lafayette, LA, for Defendant-Appellant, Yolanda Martinez.
    J.N. Prather, Jr., Assistant District Attorney, Michael Harson, District Attorney, Fifteenth Judicial District, District Attorney’s Office, Lafayette, LA, for the State of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

In State v. Sarrabea, 13-1271 (La.10/15/13), 126 So.3d 453, 2013 WL 5788888, the Louisiana Supreme Court has upheld our decision in the same case (12-1013 (La.App. 3 Cir. 5/1/13), — So.3d -, 2013 WL 1810228, writ granted, 13-1271 (La.6/26/13), 118 So.3d 428), finding that La.R.S. 14:100.13 is unconstitutional. Accordingly, we vacate the conviction of Defendant, Yolanda Martinez.

FACTS AND PROCEDURAL HISTORY

On September 27, 2011, Defendant operated a vehicle without documentation of her lawful presence in the United States. She was charged with a violation of La. R.S. 14:100.13, operating a motor vehicle as an alien student and/or a nonresident alien without documentation demonstrating that she was lawfully present in the United States. Defendant originally pled not guilty. She filed a motion to quash, arguing that the statute was not a valid exercise of police powers and was preempted by federal legislation. The State, represented by the Louisiana Attorney General’s Office, opposed the motion.

At a hearing on the motion to quash, the trial court indicated that it would “rule the same way” as it had in previous cases addressing this issue and denied the motion. Defendant then entered a no-contest plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving the right to appeal the denial of the motion to quash. She was sentenced to serve five days in the parish jail, with credit for time served, to run concurrently with any other sentence she might be serving. She now appeals the denial of the motion to quash.

DISCUSSION

Defendant argues that the trial court erred in denying her motion to quash and in finding that La.R.S. 14:100.13 is a proper exercise of state police powers. |2She further contends that the trial court erred in holding that the statute is not preempted by federal law.

Louisiana Revised Statutes 14:100.13(A) provides:

No alien student or nonresident alien shall operate a motor vehicle in the state without documentation demonstrating that the person is lawfully present in the United States.

The penalty for a violation is a fine of up to one thousand dollars and/or imprisonment for up to one year, with or without hard labor, making the offense a felony. La. R.S. 14:100.13(0; La.R.S. 14:2(A)(4).

In Sarrabea, the Louisiana Supreme Court found that La.R.S. 14:100.13 “operates in the field of alien registration and is, therefore, preempted by federal law under the Supremacy Clause of the U.S. Constitution.” Id. at 126 So.3d 453, 455. This follows the United States Supreme Court’s ruling in Arizona v. United States, — U.S. -, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012), where the United States Supreme Court noted that federal law requires aliens to carry proof of registration and concluded that “the Federal Government has occupied the field of alien registration.” Id, at 2502. Field preemption forecloses any state regulation, even when it parallels federal standards, so that “even complementary state regulation is impermissible.” Id. The United States Supreme Court further noted that “[ejven if a State may make a violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law.” Id.

Both the Arizona statute and the Louisiana statute forbid the willful failure to carry documentation demonstrating a lawful presence in the United States and provide a penalty in excess of the penalty provided by federal law. This inconsistency “creates a conflict with the plan Congress put in place ... underscoring] the reason for field preemption.” Id. at 2503.

In State v. Sarrabea, 12-1013 (La.App. 3 Cir. 5/1/13), — So.3d -, 2013 WL 1810228, writ granted, 13-1271 (La.6/26/13), 118 So.3d 428, the defendant was convicted under La.R.S. 14:100.13 and sentenced to three months in the parish jail. On appeal, he argued that the statute was unconstitutional, violated the Equal Protection clause, and was overly broad and vague. This court agreed, holding that Arizona is controlling jurisprudence, and stated, “To put it plain and simple, La.R.S. 14:100.13 is preempted by federal law; and the State of Louisiana lacks Constitutional authority to enforce it.” Id. at — So.3d -, 2013 WL 181022, at *17. The conviction was reversed.

Likewise, this court adopted the Arizona reasoning in State v. Gomez, 12-1357 (La.App. 3 Cir. 5/22/13), 115 So.3d 1200. Finding that Louisiana’s statute is field and conflict preempted, this court held the statute unconstitutional and reversed the conviction. The second circuit reached the same conclusion in State v. Anaya-Espino, 48,025 (La.App. 2 Cir. 5/22/13), 114 So.3d 1248. The first circuit, in State v. Lopez, 12-2043 (La.App. 1 Cir. 3/21/13), 116 So.3d 1, reached the opposite conclusion. However, this split in the circuits has been resolved, and the finding that La.R.S. 14:100.13 is unconstitutional and preempted by federal law has been upheld by the Louisiana Supreme Court in Sarrabea, — So.3d -. Thus, we must follow Sarrabea and reverse Defendant’s conviction on the ground that La.R.S. 14:100.13 is unconstitutional.

DECREE

We reverse the trial court’s ruling denying Defendant’s motion to quash and vacate her conviction.

REVERSED. CONVICTION VACATED.

      . The State has applied for a writ with the Louisiana Supreme Court in Gomez. Writs have also been granted to address this issue in State v. Marquez, 12-1316 (La.App. 3 Cir. 1/7/13) (unpublished writ), writ granted 13-315 (La.5/3/13), 112 So.3d 851, and State v. Ramirez, 12-1245 (La.App. 3 Cir. 1/7/13) (unpublished writ), writ granted, 13-276 (La.5/3/13), 112 So.3d 851, in which a different panel of this court denied the defendants' writ applications and held La.R.S. 14:100.13 constitutional.


text:
    STATE of Louisiana v. Pineda Yanez OSBALDO.
    No. 13-439.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Chad Ikerd, Office of the District Defender, Fifteenth Judicial District, Lafayette, LA, for Defendant-Appellant, Pineda Yanez Osbaldo.
    J.N. Prather, Jr., Assistant District Attorney, Michael Harson, District Attorney, Fifteenth Judicial District Court, District Attorney’s Office, Lafayette, LA, for the State of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

In State v. Sarrabea, 13-1271 (La.10/15/13), 126 So.3d 453, 2013 WL 5788888, the Louisiana Supreme Court has upheld our decision in the same case (12—1013 (La.App. 3 Cir. 5/1/13), — So.3d -, 2013 WL 1810228, writ granted, 13-1271 (La.6/26/13), 118 So.3d 428), finding that La.R.S. 14:100.13 is unconstitutional. Accordingly, we vacate the conviction of Defendant, Pineda Yanez Osbaldo.

FACTS AND PROCEDURAL HISTORY

On November 20, 2011, Defendant operated a vehicle without documentation of his lawful presence in the United States. He was charged with operating a motor vehicle as an alien student and/or a nonresident alien without documentation demonstrating he was lawfully present in the United States, a violation of La.R.S. 14:100.13, and originally pled not guilty. He filed a motion to quash, arguing that the statute was not a valid exercise of police powers and was preempted by federal legislation. The State, represented by the Louisiana Attorney General’s Office, opposed the motion.

At a hearing of the motion to quash, the trial court indicated that it would “rule the same way” as it had in previous cases addressing this issue and denied the motion. Defendant then entered a no-contest plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the denial of the motion to quash. He was sentenced to serve twenty days in the parish jail, with credit for time served, to run concurrently with any other sentence he might be serving. He now appeals the denial of the motion to quash.

DISCUSSION

Defendant argues that the trial court erred in denying his motion to quash and in finding that La.R.S. 14:100.13 is a proper exercise' of state police powers. RHe further contends that the trial court erred in holding that the statute is not preempted by federal law.

Louisiana Revised Statutes 14:100.13(A) provides:

No alien student or nonresident alien shall operate a motor vehicle in the state without documentation demonstrating that the person is lawfully present in the United States.

The penalty for a violation is a fíne of up to one thousand dollars and/or imprisonment for up to one year, with or without hard labor, making the offense a felony. La. R.S. 14:100.13(0; La.R.S. 14:2(A)(4).

In Sarrabea, the Louisiana Supreme Court found that La.R.S. 14:100.13 “operates in the field of alien registration and is, therefore, preempted by federal law under the Supremacy Clause of the U.S. Constitution.” Id. at p. 2, 2013 WL 5788888. This follows the United States Supreme Court’s ruling in Arizona v. United States, — U.S. -, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012), where the United States Supreme Court noted that federal law requires aliens to carry proof of registration and concluded that “the Federal Government has occupied the field of alien registration.” Id. at 2502. Field preemption forecloses any state regulation, even when it parallels federal standards, so that “even complementary state regulation is impermissible.” Id. The United States Supreme Court further noted that “[e]ven if a State may make a violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law.” Id.

Both the Arizona statute and the Louisiana statute forbid the willful failure to carry documentation demonstrating a lawful presence in the United States and provide a penalty in excess of the penalty provided by federal law. This inconsistency “creates a conflict with the plan Congress put in place ... underscoring] the reason for field preemption.” Id. at 2503.

In State v. Sarrabea, 12-1013 (La.App. 3 Cir. 5/1/13), — So.3d -, 2013 WL 1810228, writ granted, 13-1271 (La.6/26/13), 118 So.3d 428, the defendant was convicted under La.R.S. 14:100.13 and sentenced to three months in the parish jail. On appeal, he argued that the statute was unconstitutional, violated the Equal Protection clause, and was overly broad and vague. This court agreed, holding that Arizona is controlling jurisprudence, and stated, “To put it plain and simple, La.R.S. 14:100.13 is preempted by federal law; and the State of Louisiana lacks Constitutional authority to enforce it.” Id. at 126 So.3d 453, 456. The conviction was reversed.

Likewise, this court adopted the Arizona reasoning in State v. Gomez, 12-1357 (La.App. 3 Cir. 5/22/13), 115 So.3d 1200. Finding that Louisiana’s statute is field and conflict preempted, this court held the statute unconstitutional and reversed the conviction. The second circuit reached the same conclusion in State v. Anaya-Espino, 48,025 (La.App. 2 Cir. 5/22/13), 114 So.3d 1248. The first circuit, in State v. Lopez, 12-2043 (La.App. 1 Cir. 3/21/13), 116 So.3d 1, reached the opposite conclusion. However, this split in the circuits has been resolved, and the finding that La.R.S. 14:100.13 is unconstitutional and preempted by federal law has been upheld by the Louisiana Supreme Court in Sambea, 126 So.3d 453. Thus, we must follow Sarrabea and reverse Defendant’s conviction on the ground that La.R.S. 14:100.13 is unconstitutional.

DECREE

We reverse the trial court’s ruling denying Defendant’s motion to quash and vacate his conviction.

REVERSED. CONVICTION VACATED.

      . The State has applied for a writ with the Louisiana Supreme Court in Gomez. Writs have also been granted to address this issue in State v. Marquez, 12-1316 (La.App. 3 Cir. 1/7/13) (unpublished writ), writ granted 13-315 (La.5/3/13), 112 So.3d 851, and State v. Ramirez, 12-1245 (La.App. 3 Cir. 1/7/13) (unpublished writ), writ granted, 13-276 (La.5/3/13), 112 So.3d 851, in which a different panel of this court denied the defendants’ writ applications and held La.R.S. 14:100.13 constitutional.


author: COLEMAN, Justice,

text:
    SWEET VALLEY MISSIONARY BAPTIST CHURCH a/k/a Hub Community Baptist v. ALFA INSURANCE CORPORATION a/k/a Alfa General Insurance Corporation a/k/a Alfa Mutual General Insurance Company a/k/a Alfa Specialty Insurance Corporation.
    No. 2010-CT-01807-SCT.
    Supreme Court of Mississippi.
    Oct. 31, 2013.
    Marc L. Frischhertz, David Lee Brewer, attorneys for appellant.
    Toby Justin Gammill, Whitney Warner Gladden, Jackson, Jacob O. Malatesta, Greenville, attorneys for appellee.
   COLEMAN, Justice,

for the Court:

¶ 1. Sweet Valley Missionary Baptist Church (Sweet Valley) filed a complaint on August 29, 2008, against its insurance carrier, Alfa Insurance Corporation (Alfa). Based on Sweet Valley’s failure to cooperate in discovery, the trial court entered an order of dismissal on June 29, 2009. On July 8, 2009, Sweet Valley filed a motion to set aside judgment, or, in the alternative, a motion for new trial. The trial court denied the motion on January 29, 2010, and, in response, Sweet Valley filed a second complaint against Alfa the same day. The trial court dismissed the second claim based on the expiration of the statute of limitations. Sweet Valley appealed. On rehearing, the Court of Appeals reversed the trial court’s judgment and remanded for further proceedings. Alfa filed a petition for writ of certiorari, and we granted it. We hold that a motion filed pursuant to Mississippi Rule of Civil Procedure 59(e) tolls the applicable statute of limitations, and we reverse the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Sweet Valley filed a complaint on August 29, 2008, against Alfa, its insurance carrier. Sweet Valley alleged a breach of contract based on Alfa’s allegedly deficient coverage payment for damage caused by Hurricane Katrina. Sweet Valley alleged that Alfa’s payout did not cover all of its losses and did not meet its policy limits as provided in the insurance contract. During discovery, problems arose when one of Sweet Valley’s attorneys, Marc Frisch-hertz, failed to follow the proper procedures to be admitted to practice pro hoc vice in Mississippi. Under the belief that he already had been admitted to practice pro hac vice, Frischhertz signed discovery and expert designations. Because doing so while not admitted to practice law created discovery issues, the trial court dismissed Sweet Valley’s case without prejudice on June 29, 2009.

¶ 3. Soon after, on July 8, 2009, Sweet Valley filed a motion to set aside the judgment or for a new trial. A hearing was held, and on January 29, 2010, the circuit court denied Sweet Valley’s motion. On that same day, Sweet Valley filed a new complaint against Alfa. Alfa filed a motion to dismiss the second complaint alleging that while the three-year statute of limitations was tolled during the first lawsuit, the clock resumed when the suit was dismissed on June 29, 2009. Therefore, Alfa argues that the statute of limitations has run as to Sweet Valley’s January 29, 2010, complaint. In its order dismissing the second complaint, the trial court determined that Sweet Valley had filed its motion to set aside the judgment or for a new trial pursuant to Mississippi Rule of Civil Procedure 59, and that the motion did not toll the running of the statute of limitations. Additionally, the trial court found that as of June 29, 2009, forty-six days remained on the three-year statute of limitations, thus making August 14, 2009, the operative deadline for the filing of new complaints. Because Sweet Valley’s second complaint was not filed until January 29, 2010, the trial court dismissed the complaint as untimely, and Sweet Valley appealed. We assigned the case to the Court of Appeals.

¶ 4. The Court of Appeals first affirmed the trial court’s dismissal. However, on rehearing, the Court of Appeals issued a second opinion, replacing the first, in which the court agreed with Sweet Valley’s claim that its motion was timely. Sweet Valley Missionary Baptist Church v. Alfa Ins. Corp., 124 So.3d 688 (Miss.Ct.App.2013), cert. granted, 115 So.3d 804 (Miss.2013). The court noted that a Rule 59 motion for new trial tolls the statute of limitations on the underlying claim, just as it tolls the period of appeals and suspends the finality of judgments. The Court of Appeals reversed the judgment of the trial court dismissing the second complaint and remanded the case. Alfa filed a petition for writ of certiorari, which we granted.

DISCUSSION

¶ 5. The issue presented by Alfa is whether the “Motion to Set Aside Judgment or in the Alternative, Motion for New Trial” filed by Sweet Valley on July 8, 2009, tolled the statute of limitations on the underlying contract claim.

¶ 6. The standard of review concerning a trial court’s grant or denial of a motion to dismiss is de novo. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (¶ 6) (Miss.2006). “When considering a motion to dismiss, the allegations in the complaint must be taken as true[,] and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. (quoting Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (¶ 7) (Miss.1999)) (citing T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995)). Issues involving the statute of limitations are reviewed de novo. Lincoln Elec. Co. v. McLemore, 54 So.3d 833, 835 (¶ 10) (Miss.2010).

¶ 7. Sweet Valley argues that the trial court erred when it denied Sweet Valley’s motion for a new trial based on the expiration of the statute of limitations. Instead, Sweet Valley would apply the decision of Court of Appeals, which determined that the statute of limitations was tolled by the filing of the motion on July 8, 2009, until January 29, 2010, when the trial court denied the motion.

¶ 8. The issue of whether a Rule 59 motion tolls the statute of limitations' of the underlying claim is one of first impression in Mississippi. As the Court stated in Hill v. Ramsey, “[i]t is elementary that, unless process is not timely served, the statute of limitations is tolled upon the filing of the complaint, and does not begin to run again until litigation has ended.” Hill v. Ramsey, 3 So.3d 120, 123 (¶ 10) (Miss.2009). It has long been settled that a timely motion for a new trial extends a judgment until the motion is granted or denied. Laurel Oil & Fertilizer Co. v. McCraw, 178 Miss. 117, 172 So. 503 (1937). In other words, Rule 59(e) motions stay the finality of judgments as well as the thirty-day time period to appeal. Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991); see also Davidson v. Hunsicker, 224 Miss. 203, 79 So.2d 839 (1955). Further, “Professor J.W. Moore has aptly described the effect of Rule 59 motion on a previously filed notice of appeal: ‘The appeal simply self-destructs.’ ” Bruce, 587 So.2d at 901 (quoting 9 Moore’s Federal Practice ¶ 204.12[1], at 4-70, n. 17 (1989)). “[I]t is a familiar principle that no statute of limitations runs against a party until he is allowed by law to do the thing as to which the statute is • interposed.” Moore v. Montgomery Ward & Co., 171 Miss. 420, 156 So. 875 (1934).

¶ 9. In contrast, motions filed under Mississippi Rule of Civil Procedure 60(b) for relief from a judgment do not toll the time for appeal or the enforceability of a judgment. Bruce, 587 So.2d at 903. The Court of Appeals also has specifically found that pending motions filed under Rule 60 do not toll the statute of limitations. Davis v. Biloxi School Dist., 43 So.3d 1135, 1138 (¶¶ 9-10) (Miss.Ct.App.2009). “Importantly, a Rule 60(b) motion does not operate as a stay....” Miss. R. Civ. P. 60 cmt. Unlike a Rule 59 motion, Rule 60(b) motions may be filed later than ten days after a judgment but must concern fraud, misrepresentation, or other misconduct of an adverse party; accident or mistake; newly discovered evidence that could not have been discovered in time; or other reasons justifying relief. Miss. R. Civ. P. 60(b). Rule 59(e) motions provide the court with the opportunity to correct its own error, while “Rule 60(b) motions, on the other hand, proceed on the assumption that the trial court has entered a valid and enforceable judgment which has become, final.” Bruce, 587 So.2d at 904.

¶ 10. Logically, it stands to reason that if a Rule 59 motion tolls the period for appeals and the "enforceability of a judgment, it also should toll the statute of limitations of the underlying claim. If this is not the rule, plaintiffs who file Rule 59 motions risk being left with no remedy if their motion is denied and the statute of limitations has run. As the Court of Appeals noted, “it would not be in the’ best interest of judicial economy to force litigants with an impending statute of limitations to file a new complaint without first having the option to move to alter or amend the judgment.” Sweet Valley Missionary Baptist Church, 124 So.3d at 687 (¶ 15). The U.S. Supreme Court, in Osterneck v. Ernst & Whinney, analyzed the federal version of Rule 59, which is substantially similar to the Mississippi rule, and held that a judgment is not final— even if it may “appear to be a final judgment” — until the court has properly disposed of pending Rule 59 motions. Osterneck v. Ernst & Whinney, 489 U.S. 169, 174, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989). As noted previously, the statute ,of limitations is tolled upon the filing of the complaint and does- not begin to run again until litigation has ended. Hill, 3 So.3d at 123 (¶ 10). Because the statute of limitations is tolled until litigation has ended, Rule 59 motions stay the finality of judgments, and the filing of a Rule 59 motion prevents the running of the statute of limitations on the underlying claim. Because it is consistent with our law and serves judicial economy, we hold that a properly filed motion under Rule 59 continues the tolling of the applicable statute of limitations which occurs when a complaint is filed. .

¶ 11. Because we have found that the statute of limitations was tolled until the trial court denied Sweet Valley’s Rule 59(e) motion, the filing of the second complaint on the same day was timely. The three-year statute of limitations applicable to contract claims began on October 14, 2005, when Alfa paid Sweet Valley $9,951.89, which Sweet Valley alleges did not fully satisfy its -claim. When Sweet Valley filed its complaint on August 29, 2008, with forty-six days remaining under the statute, the statute of limitations was tolled until the case was dismissed on June 29, 2009. The statute of limitations continued to be tolled by the Rule 59 motion to alter or amend the judgment until that motion was denied by the trial court on January 29, 2010. Sweet Valley filed its second complaint with the trial court on the same day its Rule 59 motion was denied. Accordingly, the second complaint was not barred by the statute of limitations. As the statute of limitations issue is dispositive, we decline to address Sweet Valley’s remaining arguments.

CONCLUSION

¶ 12. We hold that a timely filed motion under Rule 59 continues the tolling of the applicable statute of limitations until the court rules on the Rule 59 motion. As a result, we hold that the trial court erred in its dismissal of Sweet Valley’s second complaint, filed on January 29, 2010. Thus, the decision of the Court of Appeals is affirmed, the judgment of the circuit court is reversed, and the case is remanded to the Marion County Circuit Court for further proceedings consistent with this opinion.

¶ 13. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT IS REVERSED, AND THE CASE IS REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, AND KING, JJ„ CONCUR.