author: DREW, J.

text:
    STATE of Louisiana, Appellee v. John Love ROBINSON, Appellant.
    No. 48,429-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Louisiana Appellate Project by Edward Kelly Bauman, John Love Robinson, for Appellant.
    Charles Rex Scott, II, District Attorney, Jason Trevor Brown, Suzanne Morelock Owen, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and PITMAN, JJ.
   DREW, J.

11 John Love Robinson was convicted by a unanimous jury of the crime of possession of heroin with intent to distribute. This court has previously affirmed his conviction, though we have twice vacated habitual offender adjudications and sentences, remanding each time.

Robinson has been sentenced in this matter a total of four times. His first and his latest sentencing were assessed solely for the commission of this crime, with no habitual offender adjudication to consider.

Robinson appeals, and we now review, his 50-year hard labor sentence, five years of which were ordered to be served without benefits. He also was assessed a fine of $25,000, or in default of payment, to serve 60 days in jail. We vacate the sentence, and remand again.

FACTS

The facts of this case have been set out in our previous opinions. At the latest sentencing, January 17, 2013, the trial court stated that:

• it had reviewed the sentencing guidelines in La. C. Cr. P. art. 894.1, the presen-tence investigation report, and Robinson’s criminal history;

• a lesser sentence would deprecate the seriousness of the offense;

• this was a controlled dangerous substance offense from which the offender obtained substantial income from ongoing drug activities;

• Robinson had been involved in similar offenses for 30 years;

• the state could file an habitual offender bill, if it wished;

• rehabilitation is not a realistic goal in Robinson’s case;

• Robinson was 66 years old and would keep breaking the law; and

• |2in years past, the crime of conviction carried a life sentence.

•A motion to reconsider sentence based on excessiveness was denied without reasons and without a hearing. This appeal followed.

1. INCREASING SENTENCE AFTER SUCCESSFUL APPEALS

Citing State v. Mosley, 08-1319 (La.App. 5th Cir.5/26/09), 16 So.3d 398, Robinson urges that the just and equitable thing for the trial court to have done would have been to reinstate the original sentence. He also urges, citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that the trial court provided no justification or reasons for the increased sentence and was merely being vindictive.

The state responds that:

• reinstatement of the original sentence is not required under our law;

• increased sentences need not be based on post-sentencing conduct;

• the original sentence was assessed without the court knowing of the defendant’s horrific criminal history over many decades;

• Robinson’s age should not be a mitigating factor, in that he is a hardened criminal, insusceptible to rehabilitation;

• a vital distinction between his (third) 40-year sentence, as compared with his (fourth) 50-year sentence, is that the 40-year sentence was imposed as a second-felony offender and the 50-year sentence was imposed as a first-felony offender; and

• persons sentenced as first-felony offenders receive more favorable parole consideration than habitual offenders, meaning that the 50-year sentence could actually result in a shorter period of incarceration than the 40-year habitual offender sentence.

In North Carolina v. Pearce, supra, overruled in part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the [.^Supreme Court held that the Due Process Clause of the Fourteenth Amendment prevented increased sentences when the increase was motivated by vindictiveness on the part of the sentencing judge.

In Pearce, the court established a presumption of vindictiveness when a court imposes a more severe sentence upon a defendant who successfully appeals a previous sentence. This presumption can be overcome by objective information in the record justifying the increased sentence. See Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984); State v. Rodriguez, 550 So.2d 837 (La.App. 2d Cir.1989).

In Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986), the Supreme Court held that nothing in the constitution requires a judge to ignore objective information justifying an increased sentence.

In State v. Rodriguez, supra, this Court upheld an increased sentence imposed on a defendant because of new, objective information concerning the defendant’s extensive prior criminal record, which was contained in a revised presentence investigation report that was not available to the first sentencing judge, thus defeating any claim of vindictiveness.

This record is bereft of objective information justifying the increase in the sentence initially pronounced by the trial court.

|4The defendant has been sentenced four separate times in this case:

1. 20 years at hard labor, all without benefit of parole, probation, or suspension of sentence, plus a fine of $20,000 and court costs, or serve three years (later reduced to one) in default;

2. life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, as a fourth-felony habitual offender;

3. 40 years at hard labor, with five years to be served without benefits, as a second-felony habitual offender; and

4. the current maximum 50 years at hard labor, five years of which to be served without benefits, plus 60 days of default time in lieu of payment of a $25,000 fine.

We know that the presentence investigation report was completed five months before the first sentencing. We do not know when the trial court actually reviewed the PSI. This record is unclear as to what additional information the trial court had at the fourth sentencing, as contrasted with what the court previously knew at the first sentencing.

II. ILLEGAL SENTENCE

A.Parole Eligibility

This crime occurred on January 5, 2006, at which time the offense did not restrict parole eligibility. Robinson urges that the trial court erred in | ¿imposing such a restriction. The state concedes that Robinson is correct.

B. Default Jail Time

The parties also agree that the trial court erred by imposing default jail time for nonpayment of the fine. Since Robinson was represented by appointed counsel at all stages of the proceedings, including his many appeals, his indigence is presumed. He is thus also correct on this point.

C. Constitutional Excessiveness

Robinson contends that the trial court:

• imposed an excessive sentence upon re-sentencing him;

• did not properly consider that he is 67 years old and nonviolent;

• ignored that the amount of heroin recovered (4.07 grams) was small, that only $657 was recovered from his home, and that he has a drug problem, but is not a drug dealer;

• imposed a sentence grossly out of proportion to this crime; and

• did not consider that he needs rehabilitation for his drug addition, which can best be served in a noncustodial environment.

The state responds that the current sentence is appropriate for a man with this 30-year criminal history in the state and federal courts of Texas and Louisiana. The state further urges that nothing here indicates that this ^career criminal has changed his ways. Though the state is entirely correct that this defendant may be deserving of a harsh sentence, we find that the current sentence is illegal on its face, because:

• Robinson’s current sentence exposes him to a longer period of incarceration than is allowed by the statute of conviction; and

• the increased term of imprisonment, compared with that ordered at the first sentencing, is not justified by this record.

Our law on the appellate review of sentences is well settled.

J^III. ANALYSIS OF THE CURRENT SENTENCE

Even though this defendant’s criminal history is horrific and could justify a near-maximum or maximum sentence, we must review the present 50-year sentence in contrast with the initial 20-year sentence, not with the two intervening habitual offender sentences we have previously vacated.

The trial court improperly imposed the initial 20-year hard labor sentence with denial of all benefits. The trial court further improperly ^exacted three years of default time upon failure to pay the fine and costs.

After two successful appeals, Robinson was again sentenced by the trial court for only the original conviction. Whereas the first sentence was 20 years, the current sentence is 50 years. There is nothing in the record that justifies such an increase. We cannot see that anything was known at the fourth sentencing that was not known at the first.

Accordingly, we vacate the sentence again, and remand for resentencing. The trial court is directed to sentence the defendant to no more than 25 years at hard labor, with no parole restrictions, and no default imprisonment for nonpayment of the fine and costs.

IV. PRO SE ASSIGNMENTS OF ERROR

The defendant’s two pro se assignments have no merit.

DECREE

SENTENCE VACATED, REMANDED WITH INSTRUCTIONS TO SENTENCE TO NO MORE THAN 25 YEARS AT HARD LABOR, WITH NO PAROLE RESTRICTIONS, AND NO DEFAULT IMPRISONMENT FOR NONPAYMENT OF FINES AND COSTS.

      . State v. Robinson, 46,091 (La.App.2d Cir.4/20/11), 63 So.3d 1113, writs denied, 2011-0901 (La.11/23/11), 76 So.3d 1148, and 2011-1016 (La.11/23/11), 76 So.3d 1149; and State v. Robinson, 47,427 (La.App.2d Cir. 10/3/12), 105 So.3d 751.

      . Reconsideration was urged on grounds that the trial court did not adequately consider Robinson’s age, and that his actions were not violent, endangering no one.

      . We do not find that the trial court was vindictive. What we do know is that this record does not justify such a drastic increase in the terms of defendant’s imprisonment.

      . See also State v. Davis, 552 So.2d 524 (La.App. 2d Cir.1989), where this Court found that the defendant’s post-arrest involvement with drugs, as well as her lack of truthfulness about that conduct, were legitimate sentencing considerations that objectively justified the increased sentence and overcame any presumption of vindictiveness.

      . The transcript of March 8, 2010, contains comments relative to another judge having initially sentenced the defendant, “to get him on state time.” The minutes, however, reflect that the same judge sentenced this defendant on all four occasions.

      . The record before us lacks a transcript of the original sentencing. This original sentence was vacated in preparation for sentencing as an habitual offender.

      . This was a mandatory sentence. See La. R.S. 15:529.1. It was vacated on appeal.

      . The sentencing range for Robinson, as a second-felony offender convicted of possession with intent to distribute heroin, was not less than 25 years and not more than 100 years at hard labor. See La. R.S. 15:529.1. This sentence was vacated on appeal.

      . This is the maximum prison time permitted under La. R.S. 40:966(B)(1).

      . The state notes that this 50-year sentence could actually turn out to be less of a penal sanction than the penultimate 40-year sentence as a second offender.

      . In 2006, La. R.S. 40:966(B)(1) provided that a person convicted of possession with intent to distribute heroin shall be sentenced to serve not less than five, nor more than 50 years at hard labor, with at least five years to be served without the benefit of probation or suspension of sentence, and may, in addition, be required to pay a fine of not more than $50,000. There was no prohibition against parole.

      .An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Fortune, 46,522 (La.App.2d Cir.9/21/11), 72 So.3d 1000.
      A defendant’s claim of indigence may be discerned from the record. State v. Williams, 484 So.2d 662 (La.1986); State v. Fortune, supra. Where a defendant is represented by the Indigent Defender’s Office, a court-appointed attorney, or the Louisiana Appellate Project, the court may conclude that the defendant is indigent. See State v. Fortune, supra.

      . Appellate courts utilize a two-pronged test in reviewing excessiveness claims. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows, an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. Art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.
      A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra. As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802.
      In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Pamilton, 43,112 (La.App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 2008-1381 (La.2/13/09), 999 So.2d 1145; State v. Boyte, 42,763 (La.App.2d Cir. 12/19/07), 973 So.2d 900, writ denied, 2008-0175 (La.6/20/08), 983 So.2d 1272. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Anderson, 30,060 (La.App.2d Cir.10/29/97), 702 So.2d 40.

      .Consider these notes, gleaned from the defendant’s August 18, 2008, PSI:
      • He has a juvenile record, and as a young adult he paid a fine or forfeited a bond on several misdemeanor charges of disturbing the peace.

        12 YEARS PASS

      • November 1980 — (Dallas) Possession of cocaine and phenmetrazine reduced to a first class misdemeanor; one-year sentence, six months suspended; four years’ supervised probation.
      • November 1980 — (Fort Worth) Possession of heroin with intent to distribute; one-year sentence, six months suspended; four years’ supervised probation — released from probation 48 days after his sentence.
      • November 1983 — Assault and battery on a police officer — found guilty at trial; sentenced to 15 days on a work program.
      • May 1985 — Arrested for attempted second degree murder; pled guilty to simple battery; six months suspended, two years probation, later revoked.
      • August 1987 — Committed four crimes — ■ found guilty in February 1988;
      1.Possession of cocaine with intent to distribute; 10 years’ federal custody, with five years’ special parole to follow.
      2. Possession of marijuana — Two years, concurrent with cocaine sentence above.
      3. Possession of marijuana — Two years, concurrent with cocaine sentence above.
      4. Use of a firearm in a drug felony — five years without benefits, to run consecutively to the three other charges.
      Total of 15 years

        A DECADE PASSES

      • November 1997 — Possession of cocaine; sentenced in June 1998 to 35 years in the Texas Department of Corrections.

        8 YEARS PASS

      • January 2006 — Possession of heroin with intent to distribute; found guilty two years later. This is what we are dealing with today.

      . The original 20-year hard labor sentence, all ordered served without benefits, would be more severe than a straight-up 20-year hard labor sentence, imposed without parole restrictions. Even though the first sentence was invalid, we do note that the time served by the defendant, had that sentence been legal, would have far exceeded that which he would have served with a 20-year hard labor sentence subject to parole.

      . (1) Lack of an indictment. Robinson argues that he should have been charged by indictment, instead of an information. At the time he committed his crime, this statute did not require life or death. Under La. C. Cr. P. art. 382, only offenses punishable by death or life imprisonment need be instituted by a grand jury indictment.
      (2) Classification as an habitual offender. Robinson is apparently confused, as this argument is moot. There is no habitual offender adjudication before us.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    Velma WARD, et al., Plaintiffs-Appellees v. Deborah A. DAVIDSON, et al., Defendants-Appellants.
    No. 48,435-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Cook, Yancey, King & Galloway, Shreveport, by Scott L. Zimmer, for Appellants.
    Law Offices of Myrt T. Hales, Jr., Ray-ville, by Myrt T. Hales Jr., for Appellee, James L. Tabb.
    Before WILLIAMS, DREW & PITMAN, JJ.
   PITMAN, J.

| defendants Deborah A. Davidson, Tyler Transportation and Transguard Insurance Company of America appeal a judgment awarding Plaintiff James L. Tabb general damages of $17,500. For the following reasons, we affirm the judgment of the trial court.

FACTS

On April 26, 2007, a school bus carrying members of the Rayville High School track team was traveling on Highway 425 in Rayville, Louisiana when it was struck by a tractor-trailer driven by Defendant Deborah Davidson. The injured passengers filed suit against Ms. Davidson; the owner of the trucking company, Tyler Transportation; and their insurer, Trans-guard Insurance Company of America. All plaintiffs’ claims were settled and resolved prior to trial with the exception of Plaintiff James L. Tabb’s claim that the accident caused his injury or aggravated a pre-existing injury.

A bench trial was held on December 6, 2012. Plaintiff and his mother, Traci Tabb, testified. Defendants submitted the police accident report, medical records from Richardson Medical Center, medical records from Dr. David M. Trettin and the deposition of Dr. Trettin for the trial court’s review. The parties stipulated that Defendants were at fault; therefore, the only issue at trial was whether Plaintiff was entitled to damages as a result of the April 26, 2007 accident.

Plaintiff testified that, during the fall of 2006, he dislocated his left shoulder twice in one day during a high school football practice. His coach [ 2took him to Dr. Tret-tin’s office for a medical evaluation, where Plaintiff was given a shoulder harness and advised that he might need surgery in the future. Plaintiff wore the shoulder harness while playing football and testified that his shoulder did not dislocate again during the fall 2006 football season.

Plaintiff further testified that, on April 26, 2007, he was a passenger on a school bus after a high school track meet. At 1:00 a.m., Plaintiff was partially asleep, lying down on the last row of seats on the school bus when an accident occurred. Plaintiff stated: “My body went forward and slammed to the floor and dislocated my shoulder.” Plaintiff testified that he popped his shoulder back into place. Plaintiff and the other passengers on the bus were taken to Richardson Medical Center in Rayville for observation. Plaintiff was placed in a shoulder sling.

Plaintiff also testified that he was involved in another automobile accident on May 4, 2007 — eight days after the school bus accident. Plaintiff was a passenger in a car that was hit from behind while at Sonic Drive-In. Plaintiff stated that he was wearing his seatbelt at the time so his body never left the seat, and his shoulder did not dislocate as a result of the accident at Sonic. Plaintiff further stated that there was “no comparison” between that accident and the school bus accident because the school bus accident was “a lot of sacrifice on my body because of what the impact caused me to do as far as fly forward and hit the seat in front of me and hit the floor.”

| sIn addition, Plaintiff testified that, following the school bus accident, his shoulder began to dislocate at night when he would lie down to sleep, which had not occurred prior to the bus accident. He began sleeping upright in a recliner to prevent his shoulder from dislocating. Plaintiff also stated that, prior to the school bus accident, his arm rolled forward when it dislocated; but, after the accident, his arm rolled backward when it dislocated.

Plaintiff testified he returned to Dr. Trettin’s office in May 2007 for a follow-up examination of his shoulder. Dr. Trettin performed some exercises on his shoulder, took x-rays and advised Plaintiff he would need surgery “immediately.” Plaintiff underwent shoulder surgery on June 19, 2007, after which he experienced pain and numbness. He testified that his shoulder dislocated at least ten times post surgery. Plaintiff also testified that, although he received two athletic scholarships, he was unable to play football in college because of his shoulder injury.

Plaintiffs mother, Traci Tabb, testified that her son’s shoulder “wasn’t as painful” before the school bus accident, but the pain became “so severe” after the school bus accident that his shoulder would dislocate on a “regular basis.” She stated that, after his shoulder surgery, Plaintiff was in so much pain that “he had the pain pump on him and he could squeeze it ever so often but it still didn’t help with the pain and he would just be there crying at times, you know, saying that — how painful it was.” Mrs. Tabb also testified that Dr. Trettin informed her that the problems with her son’s [4shoulder were caused by an injury during football practice and by a genetic condition that caused him to have loose ligaments.

In his deposition, Dr. Trettin testified that he first treated Plaintiff for his shoulder injury after the injury at football practice in October 2006 and then again following the school bus and Sonic accidents in May 2007. When examining Plaintiff on October 12, 2006, Dr. Trettin noted that Plaintiff injured his shoulder playing football and that his shoulder had dislocated “at least three or four and maybe five or six times” since the initial injury.. Dr. Tret-tin further noted that Plaintiff had “signs of instability” in his left shoulder and “ ‘[mjoderate signs of ligamentous laxity.’ That means he’s a little bit loose-jointed, basically.” Dr. Trettin had Plaintiff fitted with a shoulder harness so that he could continue to play football and stated that Plaintiff might need surgery at the end of the year.

Dr. Trettin further testified that he again examined Plaintiff on May 23, 2007, as a follow-up visit on the instability in his left shoulder. Dr. Trettin noted that Plaintiffs shoulder now slips out at night, which means “it’s become more loose” and determined that Plaintiff would need immediate shoulder surgery. On June 19, 2007, Dr. Trettin operated on Plaintiffs shoulder.

Dr. Trettin also testified that the instability in Plaintiffs left shoulder was caused by the football injury, but that the school bus accident more probably than not aggravated the pre-existing injury to Plaintiffs shoulder. Dr. Trettin stated:

Definitely his instability is worse.... For me it’s difficult to assess what has caused it to become worse, if it would have | r,been a natural progression or if the accident — which apparently it did cause his shoulder to come out of place, made it worse. It surely didn’t help it. The shoulder was already popping out before then.

The trial court found that the school bus accident' on April 26, 2007, aggravated Plaintiffs pre-existing left shoulder injury and fixed general damages in the amount of $17,500. Defendants appeal the judgment of the trial court.

DISCUSSION

Aggravation of Pre-existing Injury

In their first assignment of error, Defendants argue that the trial court erred in finding that the school bus accident on April 26, 2007, aggravated Plaintiffs preexisting shoulder injury, contending that Plaintiff did not meet his burden of proof in that regard. ■ Defendants further argue that the medical testimony of Dr. Trettin demonstrates that Plaintiffs shoulder injury was the same, before and after the school bus accident.

Plaintiff argues that evidence of an aggravation of his shoulder injury was presented at trial. He states that Dr. Trettin testified that the school bus injury “definitely didn’t help his shoulder” and that the school bus accident more probably than not aggravated his pre-existing injury. Plaintiff also argues that his own trial testimony and the testimony of his mother demonstrate an aggravation of the injury to his shoulder.

A court of appeal may not set aside a trial court’s finding of fact “in the absence of ‘manifest error’ or unless it is ‘clearly wrong ” or “has no reasonable factual basis.” Rosell v. ESCO, 549 So.2d 840 (La.1989); Perniciaro v. Brinch, 384 So.2d 392 (La.1980). When seeking damages in |fia personal injury action, the plaintiff has the burden of proving a causal relationship between the accident and any alleged injuries by a preponderance of the evidence. Lewis v. Wallace, 47,885 (La.App.2d Cir.2/27/13), 110 So.3d 1228. The plaintiff satisfies the burden by proving through medical and lay testimony that it was more probable than not that the accident caused the injury. Id.

In a well-reasoned opinion, the trial court stated:

After hearing the testimony and reviewing the medical records and deposition, this Court is of the belief that the evidence did not prove that the April 26, 2007 accident caused the surgery to take place. It appeared that Mr. Tabb’s shoulder surgery was going to take place, even if the accident had not occurred. Mr. Tabb had continued to wear the harness and the shoulder was still popping out on occasion, which shows Mr. Tabb was still having trouble with his shoulder before the accident.
However, this Court is of the belief that the April 26, 2007 accident aggravated Mr. Tabb’s condition. Although Mr. Tabb was wearing his shoulder brace before the April 26, 2007 accident, the shoulder was only popping out on occasion, and was not popping out at night. After the 4/26/07 accident, Mr. Tabb suffered additional injuries which made Mr. Tabb’s condition worse. He did injure his left shoulder in the April 26, 2007 accident and his condition immediately became worse. The shoulder began popping out at night and Mr. Tabb had to sleep in a recliner. Additionally, the shoulder was popping out in both the front and back and was popping out each night, which it had not done before the accident.
In this Court’s opinion, the 4/26/07 accident aggravated Mr. Tabb’s left shoulder condition to such extent that he had to have surgery sooner after this accident and due to the worsened condition, the surgery was more extensive and recovery more extensive.

This court does not find that the trial court was manifestly erroneous when finding that the school bus accident on April 26, 2007, aggravated Plaintiffs preexisting shoulder injury. Plaintiff testified that the condition of his shoulder worsened after the school bus accident in that it began 17popping out of socket at night and that his arm began rolling backward when it dislocated, neither of which had occurred prior to the school bus accident. Mrs. Tabb also testified that the condition of her son’s shoulder worsened following the school bus accident in that his pain was more severe and his shoulder dislocated more regularly. Dr. Trettin’s testimony also noted the changes in the condition of Plaintiffs shoulder before and after the school bus accident. Dr. Trettin testified that the original instability in Plaintiffs left shoulder was caused by the football injury, but that the school bus accident more probably than not aggravated his pre-existing shoulder injury. The trial court’s finding of fact that the school bus accident aggravated Plaintiffs pre-existing shoulder injury is not clearly wrong or manifestly erroneous. Therefore, we find that this assignment of error lacks merit.

Excessive Damages

In their second assignment of error, Defendants argue that the trial court’s award of $17,500 in general damages and $478 in medical expenses is excessive. Defendants contend that, in the comparable eases of Fox v. Layton, 42,491 (La.App.2d Cir.10/17/07), 968 So.2d 302, and Kaffenberger v. Jones, 34,449 (La.App.2d Cir.2/28/01), 781 So.2d 692, the trial courts awarded $10,000 and $6,500, respectively, in general damages. Defendants argue that, in comparison to Fox and Kajfenber-ger, the $17,500 awarded to Plaintiff in the current case is excessive.

Plaintiff argues that the award of $17,500 in general damages is not excessive. Plaintiff suggests that the cases of Inzinna v. Walcott, 02-0582 (La.App.1st Cir.11/21/03), 868 So.2d 721; Robling v. Allstate Ins. Co., 97-0582 (La.App.1st Cir.4/8/98), 711 So.2d 780; and Caldwell v. Smith, 25,956 (La.App.2d Cir.8/17/94), 641 So.2d 1011, are more factually similar to Plaintiffs case, and the appellate courts affirmed the awards of general damages of $25,794, $35,000 and $35,000, respectively, in these cases.

A court of appeal cannot disturb a trial court’s award of damages unless the record “clearly reveal[s] that the trier of fact abused his discretion in making his award.” Perniciaro v. Brinch, supra.

[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.

Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

It is well settled that a defendant takes his victim as he finds him and is responsible for all the natural and probable consequences of his tortious conduct. Pemiciaro v. Brinch, supra. In eases where the defendant’s negligent actions aggravate the plaintiffs pre-existing injury, the defendant must compensate the plaintiff for the full extent of this aggravation. Id. at 396.

In the present case, the trial court awarded $17,500 in general damages for the aggravation of Plaintiffs pre-existing shoulder injury. In the portion of the trial court’s opinion quoted, supra, the trial court found that the school bus accident did not cause Plaintiff to need shoulder surgery, but that the accident aggravated his pre-existing shoulder injury. The trial | ;)COurt further found that the aggravation of the pre-existing injury required Plaintiff to “have surgery sooner ... and due to the worsened condition, the surgery was more extensive and recovery more extensive.” The trial court reasoned that “Mr. Tabb had more pain both before and after the surgery due to the aggravated condition” and awarded general damages “for the extent of aggravation of the pre-existing injury.”

The trial court awarded $428 in medical expenses. It explained that “[t]he surgical expenses, Dr. Trettin’s expenses, and the physical therapy would have been incurred even had the accident not occurred,” but the visit to the Richardson Medical Center, the radiology report and the May 23, 2007 appointment with Dr. Trettin were “directly related to the 4/26/07 accident.” The trial court found that Plaintiff was not entitled to recover medical expenses for those costs that would have been incurred had the school bus accident not occurred. The trial court limited Plaintiffs recovery of medical expenses to those directly related to the school bus accident.

We find that the trial court was not manifestly erroneous in awarding Plaintiff $17,500 in general damages for the aggravation of his shoulder injury. The trial court differentiated between the consequences of the original injury and those of the aggravation of the pre-existing injury and limited Plaintiffs recovery of general damages and medical expenses to those caused by the aggravation of the pre-exist-ing shoulder injury. Therefore, we find that this assignment of error lacks merit.

| ^CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Plaintiff James L. Tabb, and against Defendants Deborah A. Davidson, Tyler Transportation and Transguard Insurance Company of America, finding that the school bus accident aggravated Plaintiffs pre-existing injury and awarding him general damages of $17,500 and medical expenses in the amount of $428 is affirmed. Costs of appeal are assessed to Defendants, Deborah A. Davidson, Tyler Transportation and Transguard Insurance Company of America.

AFFIRMED.

      . Mrs. Tabb’s first name is spelled two different ways in the record — "Traci” and "Tracy.”

      . Plaintiffs medical records from Richardson Medical Center Emergency Department dated April 26, 2007, state: "Bus wreck. Threw shoulder out, partly. Still sore. Has had previous dislocation. Is to be operated on end of track season."


author: SANDRA CABRINA JENKINS, Judge.

text:
    STATE of Louisiana v. Darren ADAMS.
    No. 2013-KA-0627.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 25, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Assistant District Attorneys Parish of Orleans, New Orleans, LA, for State/Appellee.
    Donna Andrieu, Chief of Appeals/Supervising Attorney, New Orleans, LA, Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendani/Appel-lant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS.)
   SANDRA CABRINA JENKINS, Judge.

| ,Darren Adams was charged by bill of information with one count of possession of hydrocodone, in violation of La. R.S. 40:967(0(2). Defendant entered a plea of not guilty, and his defense counsel filed a motion to suppress the evidence and statement. The trial court granted the motion, and the State filed a writ with this court on that ruling. This court granted the State’s writ and reversed the trial court judgment granting defendant’s motion to suppress the evidence and statement. Defendant filed an application for writ of certiorari with the Louisiana Supreme Court, which denied defendant’s writ. Defendant then entered a plea of nolo conten-dere, and reserved his right to appeal the denial of the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced defendant to two years at hard labor, suspended, one year of active probation and one year of inactive probation. Defendant now appeals his plea and sentence, and he asserts that the trial court erred by denying the motion to suppress his statement and the evidence. Because this court previously found that the trial court’s ruling that granted the motion was in error, and because Mr. Adams has not presented any further evidence to show that this court’s ruling was in error, we decline to reconsider his argument and we affirm his plea and sentence.

| .STATEMENT OF FACTS

The State of Louisiana charged Darren Adams on June 13, 2012 with one count of possession of hydrocodone, in violation of La. R.S. 40:967(0(2). Defendant failed to appear for arraignment on June 21, and the trial court forfeited his bond and issued a capias for his arrest. Defendant appeared the next day, and the trial court recalled the capias and set aside the bond forfeiture. The matter was reset several times for motions hearings. On October 25, 2012, defendant again failed to appear, and the trial court again revoked his bond and issued a capias. Defendant appeared the next day, and the trial court again recalled the capias and set aside the bond forfeiture. On November 30, the trial court heard and granted defendant’s motions to suppress the evidence and statement. The State sought writs with this court on the trial court’s November 30, 2012 rulings to suppress the statement and evidence. This court granted the State’s writ, reversing the trial court’s rulings and remanding the case for further proceedings. State v. Adams, unpub. 2012-1746 (La.App. 4 Cir. 12/21/12). The Supreme Court denied defendant’s writ from this court’s ruling. State v. Adams, 2013-0004 (La.1/3/13), 108 So.3d 758.

On January 9, 2013, defendant entered a plea of nolo contendere under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and he reserved his right to appeal the denial of his suppression motions pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Defendant waived all delays, and the trial court sentenced him to two years at hard labor, suspended, and placed him on two years of probation, the first year active probation and the second year inactive probation. Defendant moved for an appeal on that date.

|sThe only facts of the case were developed at the suppression hearing. Detective Jamaane Roy testified that he and Detectives Johnson and Pearson were on proactive patrol on the evening of May 4, 2012. As they neared the corner of Mandeville and North Derbigny Streets sometime around 8:30 p.m., they saw two men, later identified as defendant-Darren Adams and Devanee Augustine, in a spotlight next to a store. According to Det. Roy, Mr. Augustine was sitting on some steps, rolling what appeared to be a marijuana cigar, and defendant was standing next to him. As the officers approached in their unmarked Impala, Mr. Augustine and the defendant looked up. Mr. Augustine stood up, dropped the cigar to the ground under the steps, and he and the defendant began walking away in different directions. The officers exited the police unit and detained the men. Det. Johnson retrieved the cigar,, which appeared to have marijuana inside it. Det. Roy testified that the officers advised the two men of their Miranda rights, at which time the defendant blurted that he did not have any “weed” but only had pills in his pocket. The officers handcuffed him; reached into his pocket, and retrieved a pill bottle, in which they found two pills. The officers contacted a pharmacy and described the pills, and personnel from the pharmacy told them that the pills were hydrocodone. At that time, the officers arrested the defendant for possession of hydrocodone.

On cross-examination, Det. Roy stated that the officers were on proactive patrol at the time that they observed Mr. Augustine and the defendant, and he admitted that they had received no information that day concerning the area or either man. Det. Roy also admitted that he did not see defendant with any contraband or weapons.

TERRORS PATENT

A review of the record for patent errors reveals one. There is no indication that defendant was ever arraigned and initially pled not guilty to the charge. Nonetheless, La.C.Cr.P. art. 555 provides that the failure to arraign a defendant is waived if the defendant “enters upon trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.” See State v. Foreman, 2008-0902, p. 17 (La.App. 4 Cir. 4/29/09), 10 So.3d 1288, 1247-48. Although defendant did not go to trial, the transcript of the January 9, 2013 proceeding shows that he entered a nolo contendere plea, reserving his right to appeal the suppression issue. Therefore, any error that may have occurred by the court’s failure to arraign defendant was cured when he entered his plea to the charge in the bill of information. Id.; State v. Brand, 2010-0836, p. 2 (La.App. 4 Cir. 10/6/10), 50 So.3d 868, 869.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant contends that his motions to suppress the evidence and statement should have been granted. In its response, the State argues that this court should not reconsider this issue because this court previously reversed the trial court’s ruling that granted these motions. The State seeks to invoke the “law of the case” doctrine, which this court discussed in State v. Cox, 2011-0670, p 6 (La.App. 4 Cir. 2/22/12), 85 So.3d 252, 256:

The “law of the case” doctrine is well-settled; when it is applied and the reasons for it were explained in State v. McElveen, 2010-0172, p. 13, fn. 8 (La.App. 4 Cir. 9/28/11), 73 So.3d 1033, 1054:
The “law of the case” doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal [ ¿¡process. See Pumphrey v. City of New Orleans, 2005-0979 (La.4/4/06), 925 So.2d 1202. This policy applies to parties who were parties to the case when the former decision was rendered and who thus had their day in court. The reasons for the “law of the case” doctrine is to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing and Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). This doctrine is not an inflexible law; thus appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. It should not be applied where it would accomplish an obvious injustice or where the former appellate decision was manifestly erroneous.
See also State v. Scoggins, 2010-0869, p. 19 (La.App. 4 Cir. 6/17/11), 70 So.3d 145, 156.

In Cox, as here, the trial court granted the defendant’s motion to suppress. The State took writs, and this court reversed the trial court’s ruling. On remand, the defendant withdrew his not guilty plea and pled guilty under Crosby, reserving his right to appeal the denial of his motion to suppress the evidence. No new testimony was taken, nor were any new arguments or pleadings filed. On appeal, this court applied the “law of the case” and refused to revisit the issue of the suppression of the evidence.

In McElveen, from which this court quoted in Cox, the defendants argued that the trial court erred by excluding evidence that the defendants contended would impeach the credibility of a State’s witness. This court refused to consider the argument, noting that it had already ruled on the matter in a pretrial writ from the State, and the defendants had presented no new evidence to show that this | ^court’s earlier ruling was in error. Likewise, in Scoggins, also cited in Cox, the defendant alleged that the trial court erred by allowing and then limiting testimony in violation of the “clergyman’s privilege.” This court refused to reconsider the claim, noting that it had been considered both by this court and the Supreme Court pretrial, and the defendant had not presented any new evidence to convince this court that it erred in its earlier ruling.

Here, as in Cox, this court reversed the trial court’s rulings that suppressed the evidence and statement. On remand, after the Supreme Court denied defendant’s subsequent writ, defendant merely entered his nolo contendere plea to the charge, reserving his right under State v. Crosby to appeal the ruling on his motions to suppress. Defendant presented no new evidence to convince this court that it erred in its earlier ruling. Thus, as in Cox, we decline to reconsider our earlier ruling.

Accordingly, we affirm Darren Adams’ plea and sentence for possession of hydro-codone.

AFFIRMED.


author: MAX N. TOBIAS, JR., Judge. LEDET, J.,

text:
    STATE of Louisiana v. Wallace COLLINS.
    No. 2013-KA-0411.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 25, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Mary Murphy, Orleans Public Defenders, New Orleans, LA, for Appellee, Wallace Collins.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   MAX N. TOBIAS, JR., Judge.

hThe ultimate issue in this case is whether Wallace Collins, the accused, is statutorily required to register as a sex offender for his lifetime. The matter comes before us to review a decision of the trial court, granting Mr. Collins’ motion to quash a bill of information that charged him with failing to register and notify as a sex offender or child predator, a violation of La. R.S. 15:542.1.4, for his previous crime of forcible rape. On 16 January 1992, Mr. Collins had been convicted of the crimes of forcible rape (a violation of La. R.S. 14:42.1) and aggravated crime against nature (a violation of La. R.S. M^.l). He was released from incarceration for the crimes on 3 April 1998.

On 1 October 2012, Mr. Collins was charged by bill of information with the crime of failure to register and notify as a sex offender or child predator, to which charge he entered a plea of not guilty. The trial court found no probable cause on [211 January 2013. Thereafter, Mr. Collins filed a motion to quash the bill of information, which the trial court granted. The state timely appeals that judgment.

Mr. Collins argued in the trial court and to us that because at the time of his conviction in 1992 and release from prison in 1998, Louisiana law, La. R.S. 15:544, only required him to register as a sex offender for a period of ten years following his release from incarceration; thus, he contends that he was no longer required to register after 3 April 2008 when his incarceration ceased (and, by implication, any subsequent formal state supervision that continued thereafter).

The state argues that by virtue of Louisiana Acts 2007, No. 460, effective 1 January 2008, the law, La. R.S. 15:544, changed such that Mr. Collins was required to register as a sex offender for his lifetime; further, the state asserts that because the former ten-year period had not lapsed when Louisiana law changed, the length of the reporting was automatically extended for Mr. Collins and those similarly situated.

To the state’s argument, Mr. Collins asserts that the state is asserting a criminal penalty against him in violation of the Article I, § 10, Cl. 1 of the United States Constitution and Article I, § 23 of the 1974 Louisiana Constitution, both of which prohibit ex post facto laws. He asserts that, as testified to by Detective Orlynthia White of the New Orleans Police Department’s Sex Offender Registration Unit, (a) he had been in near perfect compliance with registration requirements, with the exception of missing ohe'appointment with the Detective |,oWhite, (b) he had been registering as required by law since his release from incarceration, and (c) his only violation was his failure to notify as sex offender after a quarterly meeting of 12 July 2012.

The issues before us have been addressed by the Louisiana Supreme Court in the analogous cases of State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, and Smith v. State, 10-1140 (La.1/24/12), 84 So.3d 487. In Olivieri, the Court held that Louisiana’s sex offender registration requirements are remedial, not punitive, Olivieri, p. 5, 779 So.2d at 753. In Smith, where like in Mr. Collins’ case, the former limited registration period had not lapsed when the legislature extended the reporting period to that of lifetime, the Court unanimously held, relying upon Olivieri and State v. Golston, 10-2804 (La.7/1/11), 67 So.3d 452, that the lifetime registration as a sex offender requirement is not punishment, is to be applied retroactively, and is not violative of the constitutional prohibitions on ex post facto laws. Smith, p. 16, 84 So.3d at 498. The lifetime registration requirement imposed by the legislature has a “remedial intent” only, and

while some of the provisions of the registration statutes may be remotely similar to historical forms of punishment, such as public humiliation, the immediate need for public protection was a corollary of, rather than an addendum to, the punishment of sex offenders. We further recognized that, although the registration statutes imposed the burden of the public and community notification process on convicted sex offenders, which caused them to- have to expend money they were not obligated to pay at the time they committed their offenses, the onus placed on them by the legislation did not constitute a separate punishment for their offense, but rather, it imposed a condition of then-release on parole or probation.... [A]ny costs associated with the conditions of their release were a necessary part of the regulatory scheme. [Internal citations omitted.]

Id., p. 17, 84 So.3d 498. The 2007 amendments, effective 1 January 2008,

are not so obtrusive as to deem them punitive rather than remedial or regulatory. While the extension for life of the time period for registration, ... may be harsh, may impact a sex offender’s life in a long-lived and intense manner, and also be quite burdensome to the sex offender, we do not find them to constitute an infringement of the principles of ex post facto.

Id., p. 17, 84 So.3d at 498-499.

For the foregoing reasons, we reverse the judgment of the trial court that granted Mr. Collins’ motion to quash and remand this case to the trial court for further proceedings.

REVERSED; REMANDED.

BELSOME, J., concurs for Reasons Assigned by Judge LEDET.

LEDET, J.,

Concurs with Reasons.

|TI concur, but question the approach the Legislature has taken to protect the public from sex offenders. We cannot continue to deny the severe reporting and financial obligations imposed as a result of lifetime registration and notification upon those defendants with specific, terminable reporting requirements at the time of conviction and release from prison. The stigma attached to sex offenders is significant and the possibility of ostracism is real. Not everyone convicted of a sexual offense is a predator or habitual sex offender. The disparity of impact of the current law on an individual convicted prior to the 2008 amendment to La. R.S. 15:544 should be given constitutional protection from further legislative consideration.

      . The record on appeal does not reflect whether his convictions were pursuant to a plea of guilty, a plea nolo contendere from which he was found guilty, or following a trial.

      . The record before us neither indicates whether he was released on parole on that date nor the length of his original sentence.

        . See Colder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798).


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana in the Interest of J.J.
    No. 2013-CA-0548.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 25, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant. • •
    (Court composed of Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

| T J.J., a juvenile, appeals the judgment of the Juvenile Court adjudicating her a delinquent, on the basis that the evidence was insufficient to establish the offense of simple battery. For the following reasons, we affirm the adjudication and sentence.

BACKGROUND

On November 15, 2002, the State filed a delinquency petition charging J.J., then fifteen years old, with simple battery, a violation of La. R.S. 14:35. A trial on the merits took place on March 5, 2013, at which three witnesses testified. The first witness was the victim, who testified that on the night of November 6, 2012, she was asleep in her room at Raintree Group Home, when someone entered the room and threw urine on hér. She was unable to identify that person.

Another juvenile residing at Raintree, S.C., testified that, on that evening, she and three other residents, including J.J., had discussed pouring urine on the victim in retaliation for the victim’s having previously poured soap on S.C.’s clothes. S.C., however, did not accompany the three girls who she testified entered |2the victim’s room after having collected urine from a toilet that was stopped up. S.C. did not see who threw the urine on the victim.

Paulette Peters, a night counselor at Raintree, testified that, on the night of the incident, she saw J. J. in a hallway, wearing gloves and when she questioned her, J.J. simply went into a room. She next saw J.J. running out of the victim’s room. Ms. Peterson then entered the victim’s room and witnessed the urine on the victim, her bed and nightstand.

At the conclusion of the State’s case in chief, counsel for J.J. moved for an acquittal, which the juvenile court denied. The court then adjudicated J.J. delinquent and placed her on six months inactive probation. This appeal followed.

DISCUSSION

In this matter, J.J. maintains that the evidence was insufficient to establish the offense of simple battery and as such, the trial court erred in failing to acquit her and in ultimately finding her delinquent.

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous then the standard of proof required in a criminal proceeding against an adult.” State in the Interest of J.W., p. 3 (La.App. 4 Cir. 6/6/12), 95 So.3d 1181, 1184. As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most [■¡favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State in the Interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable in juvenile delinquency cases. Id.

In addition, La. Const, art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. “While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature.” State in the Interest of D.R., 2010-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930. (Emphasis in the original). Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. State in Interest of K.G., 2011-1559, p. 4 (La.App. 4 Cir. 3/21/12), 88 So.3d 1205, 1207, citing, State in the Interest of Batiste, 367 So.2d 784 (La.1979); State ex rel. E.D.C., 39,892 (La.App. 2 Cir. 5/11/05), 903 So.2d 571, State in the Interest of S.S., 557 So.2d 407 (La.App. 4 Cir.1990). In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.

A “simple battery” is a “battery committed without the consent of the victim.” La. R.S. 14:35. A “battery” is defined as “the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” La. R.S. 14:33.

|4In her appellant brief, J.J. notes that no one testified that they actually saw the individual who threw the urine on the victim. She likewise maintains that the State presented no evidence that, when she left the victim’s room, she possessed a container that could have contained a liquid substance or that she was wearing gloves.

Additionally, J.J. also suggests that “noxious” is defined as “physically harmful or destructive to living beings” and argues that urine is not noxious. Finally, J.J. argues that the Stated failed to identify the substance thrown on the victim.

We have found no reported decision which addresses whether throwing urine on someone constitutes simple battery. However, we are guided by State v. Lachney, 621 So.2d 846 (La.App. 5 Cir.1993), which affirmed a simple battery conviction for spitting on someone. The defendant in that case failed to sway the court with his argument that “[h]uman spit is just as harmless as water.” Id., 621 So.2d at 847. The court noted that there are types of touch which cause no physical harm, but are offensive. Id. The court found that the “intentional act of spitting on another in this instance constitutes criminal violence upon the victim.” Lachney, 621 So.2d at 848.

The law clearly provides that a battery is committed when one intentionally administers “a poison or other noxious liquid or substance to another.” La. R.S. 14:33. (Emphasis supplied.). We agree with our brethren in the Fifth Circuit that the substance does not have to cause physical harm to constitute an act of criminal violence. Throwing urine on someone is as offensive as spitting on someone. We | ^therefore find no merit in J.J.’s argument that the State failed to establish the elements of a simple battery under La. R.S. 14:35.

We likewise find no merit to J.J.’s contention that the evidence at trial did not warrant a finding that J.J. committed a simple battery. While J.J. did could not identify the person who threw the urine on her, Mrs. Peters testified that she observed J.J. wearing gloves inside and would not provide a reason why. Thereafter, Mrs. Peters saw J.J. run out of the victim’s room, at which time Mrs. Peters went into the room and observed urine on M.S., on her bed, and on her nightstand.

As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61. While S.C. testified that three girls were involved in the incident (although she was not present when the urine was thrown on the victim), Ms. Peters testified that she only saw J.J. run out of the victim’s room that night. The juvenile court was entitled to give more weight to the testimony of M.S. and Mrs. Peters over that of S.C.

Finally, J.J. argues that the State failed to identify the substance by any sort of chemical analysis. However, a lay witness may testify in the form of opinions or inferences when they are helpful to the determination of a fact at issue and are rationally based on that witness’s perception. La. C.E. art. 701. Lay witnesses are allowed to identify “substance[s] of common recognition,” such as blood. State v. Jones, 315 So.2d 650, 653 (La.1975); State v. Skipper, 284 So.2d 590, 591 (La.1973). After analyzing Jones, Skipper, and La. C.E. art. 701, the Third Circuit, in State v. Poche, 2005-1042, p. 7 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225, found that lay witnesses may be allowed to opine whether a substance is urine because | fiurine is also a substance of common recognition. We agree that urine is a substance of common recognition. Thus, the lay witnesses in this case could properly testify as to whether the substance thrown on the victim was urine.

CONCLUSION

After conducting our review of the record, we find that the evidence as a whole furnishes a basis for the findings of the juvenile court. Accordingly, the judgment adjudicating J.J. delinquent for the offense of simple battery is affirmed.

AFFIRMED.

      . J.J. also raises as an assignment of error the trial court's failure to enter a judgment of acquittal at the conclusion of trial. This assignment of error relates to the sufficiency of the evidence and as such, it will not be addressed separately.

      . Counsel for J.J. concedes that the term "noxious” is not defined in the Criminal Code; the definition she provided was obtained from Miriam Webster Dictionary.