author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Benjamin GOTTKE aka Benjamin A. Gottke aka Benjamine A. Gottke.
    No. 14-769.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2014.

      Michael Harson, District Attorney, Fifteenth Judicial District Court, Alan P. Haney, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Benjamin Gottke.
    Court composed of SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

| defendant, Benjamin Gottke, broke into three businesses with the intent to commit theft. He was charged by bill of information with three counts of simple burglary, in violation of La.R.S. 14:62. Defendant pled guilty and was sentenced pursuant to a plea agreement to twelve years at hard labor on each count to run concurrently. Shortly thereafter, the trial court vacated the sentences because a habitual offender bill had been filed by the State. When questioned, Defendant indicated that he did not wish to contest the habitual offender bill and he acknowledged that his agreement with the State was that his sentence would not be less than twelve years at hard labor without the benefit of parole, probation, or suspension of sentence, nor more than twenty-four years with the same conditions. The trial court ordered a presentence investigation report at the close of the hearing.

The trial court vacated Defendant’s previous sentences of twelve years and sentenced him under the habitual offender statute to twenty years at hard labor without benefit of probation, parole, or suspension of sentence. The plea form for the habitual offender proceeding indicates that Defendant admitted to being a third-level offender.

Defendant filed a motion for appeal which was granted by the trial court. Defendant’s initial appellate counsel, Brent Hawkins of the Louisiana Appellate Project, has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging the record contains no non-frivolous issues for appeal and requests that this court grant his accompanying motion to withdraw. This court granted Defendant until September 30, 2014, to file a pro se brief. To date, Defendant has not filed a pro - se brief. However, in November 2014, we signed an 12order allowing Defendant to file a supplemental brief. A supplemental brief was filed by different counsel from the Louisiana Appellate Project, Annette Roach, and assigned three errors patent including the trial court’s failure to adjudicate Defendant a habitual offender, sentencing irregularities, and restrictions imposed upon the habitual offender sentence.

For the following reasons, we affirm Defendant’s convictions for three counts of simple burglary but vacate his sentence and remand the case for resentencing. Appellate counsel’s motion to withdraw is granted.

ANDERS ANALYSIS

Pursuant to Anders, Defendant’s appellate counsel filed a brief stating that he made a conscientious and thorough review of the trial court record and could find no non-frivolous errors on appeal. Thus, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

\:,Id. at 531.

Appellate counsel’s Anders brief must review the record and provide “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Mouton, 95-981, p. 2 (La.4/28/95), 653 So.2d 1176, 1177.

In his Anders brief, appellate counsel points out that the trial court fully informed Defendant of his rights at the guilty plea proceeding and that Defendant knowingly and voluntarily entered his guilty plea. Additionally, appellate counsel notes that any claim of excessiveness of sentence is barred because the sentence was imposed in conformity with a plea agreement.

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, and Benjamin, 573 So.2d 528, we have performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts. Our review confirms the statements made by appellate counsel. Defendant was properly charged in the bill of information, and he was present and represented by counsel at all crucial stages of the proceedings. Additionally, Defendant entered a free and voluntary plea after he was advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). These rights were also set forth in a written plea form signed by Defendant. According to the guilty plea transcript, Defendant was forty-four years old, had a twelfth grade education, and indicated he could read and write the English language.

The trial court advised Defendant of the penalty range he was facing for simple burglary, i.e., imprisonment with or without hard labor for not more than twelve years and a fine of not more than $2,000.00. Additionally, Defendant indicated that he had not been threatened, promised anything, nor induced to enter |4a guilty plea. He confirmed that he entered the plea freely and voluntarily. After the trial court informed Defendant of the elements of the crime, the court asked Defendant what he had done and he responded that he “broke into three businesses” with the intent to steal. The trial court found the guilty plea was knowingly and voluntarily entered. Considering the colloquy between the trial court and Defendant, we find that the trial court properly Boykinized Defendant and that Defendant voluntarily and knowingly entered his guilty plea to three counts of simple burglary.

For the habitual offender proceedings, the trial court informed Defendant that he had the right to remain silent, the right to counsel, and the right to subpoena witnesses. It also informed him that the State had to prove his habitual offender status. Finally, the trial court explained that it accepted.the sentencing limitations agreed to by the parties, which was that the sentence was to be not less than twelve years nor more than twenty-four years at hard labor without benefit of parole, probation, or suspension of sentence. Defendant also signed a written plea form which set forth the plea agreement, the rights Defendant was waiving, and the penalty range to which he was exposed. We find Defendant’s admission to his habitual offender status was voluntary.

Both Defendant’s appellate counsel and the State contend that Defendant’s sentence is not subject to review on appeal. Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides that a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” In State v. Vital, 12-881, pp. 5-6 (La.App. 3 Cir. 2/6/13), 107 So.3d 1274, 1278, writ denied, 13-430 (La.9/13/13), 120 So.3d 692 (footnote omitted), this court held:

Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides that a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This court has held, based on this article, “[i]n an instance where the court sentences the defendant in accordance with the parties’ recommendation for a specific sentence or a sentencing range, it is clear that review of the imposed sentence is precluded.” State v. Jordan, 98-101, p. 4 (La.App. 3 Cir. 6/3/98), 716 So.2d 36, 38. Thus, a defendant may not seek review of his sentence “when a specific sentence or sentencing range is agreed to by both parties as part of a plea agreement, and is judicially recognized at the sentencing hearing.” Id. at 39.

Here, the trial court accepted the limitations placed on the sentencing range and sentenced Defendant within the range. Defense counsel and the State correctly conclude that Defendant cannot seek review of his sentence as it was imposed in conformity with a plea agreement. However, as will be discussed below, there are errors patent concerning the legality of Defendant’s sentence.

In State v. Drew, 47,531, pp. 3-4 (La. App. 2 Cir. 11/14/12), 107 So.3d 748, 750, the second circuit stated:

Defendant is precluded from seeking review of his sentence because it was imposed under a sentencing cap in conformity with a plea agreement set forth in the record at the time of the plea. See La. C. Cr. P. art. 881.2; State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171. However, our error patent review indicates an illegally lenient sentence which we are required to vacate. The trial judge failed to restrict at least two years of defendant’s sentence for forcible rape from benefit of parole, probation or suspension of sentence, as required by La. R.S. 14:42.1(33). Because the language of the sentencing provision gives the trial judge discretion in determining the exact length of time that benefits were to be withheld, the sentence must be vacated and the case remanded for resentencing in compliance with La. R.S. 14:42.1. State v. Carter, 43,304 (La.App. 2 Cir. 6/18/08), 987 So.2d 364, writ denied, 08-2752 (La.9/25/09), 18 So.3d 86.

| f,Further, in State v. Cabanas, 552 So.2d 1040, 1046-47 (La.App. 1 Cir.1989), writ denied, 556 So.2d 41 (La.1990), the first circuit held:

Notwithstanding that defendant’s sentence may have been negotiated pursuant to a plea bargain, in imposing sentence under the applicable penalty provisions of LSA-R.S. 40:967F(3) and 40:967 G(l), the trial court imposed an illegal, indeterminate sentence. The court is required to impose a determinate sentence. LSA-C.Cr.P. art. 879....
Regardless of whether or not the sentence was negotiated pursuant to a plea bargain, this matter must be remanded to the trial court for resentencing to correct the illegal sentence in a manner not inconsistent with the views expressed herein.

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 two errors patent concerning Defendant’s sentence.

As discussed above, Defendant pled guilty to three counts of simple burglary and was sentenced to twelve years at hard labor on each count to run concurrently. The habitual offender bill referred to only one of the simple burglary convictions. At the habitual offender sentencing, the trial court vacated the original concurrent twelve year sentences and sentenced Defendant under the habitual offender statute to a single sentence of twenty years at hard labor without the benefit of probation, parole, or suspension of sentence.

l7We find the trial court erred in that the record does not indicate which of Defendant’s three simple burglary convictions was enhanced. Additionally, a separate sentence should' have been imposed on each of the two' remaining simple burglary convictions. Accordingly, Defendant’s sentence is indeterminate as he was convicted of three counts of simple burglary and only a single sentence was imposed.

In State v. Webster, 95-605 (La.App. 3 Cir. 11/2/95), 664 So.2d 624, the defendant was convicted of four counts of armed robbery and sentenced as a third felony offender to seventy-five years at hard labor. In addressing a similar raised issue, we stated:

[T]he trial court erred in that the record does not reveal which of defendant’s four armed robbery convictions was being enhanced. Additionally, the trial court should have imposed a separate sentence on each of the three remaining convictions. Therefore, defendant’s sentence is indeterminate as he was convicted of four counts of armed robbery and only a single sentence was imposed. See State v. Bessonette, 574 So.2d 1305 (La.App. 3 Cir.1991); La.Code Crim.P. art. 879. Accordingly, defendant’s sentence will be vacated and the case remanded to the trial court for clarification as to which count is being enhanced and for imposition of separate sentences on the remaining three counts. See State v. Parker, 593 So.2d 414 (La.App. 1 Cir.1991).

Id. at 630.

Accordingly, Defendant’s sentence must be vacated and the case remanded to the trial court for clarification as to which count is being enhanced and for imposition of separate sentences on the remaining two counts of simple burglary. We must next address whether this error affected Defendant’s plea agreement.

The plea form lists the charge as three counts of simple burglary and indicates that the recommendation was a twelve-year sentence concurrent with any | sother sentence Defendant was serving. The following statement is included on the bottom of the plea form:

THE DEFENDANT AGREES THAT THIS PLEA IS CONTINGENT AND CONDITIONED UPON A PLEA AS A HABITUAL OFFENDER AS OUTLINED IN THE ATTACHED DOCUMENT LÁBLED [sic] THE [sic] A PLEA OF GUILTY, ACKNOWLEDGMENT, WAIVER, CONFESSION AND SENTENCE AS A.HABITUAL OFFENDER.
THE DEFENDANT UNDERSTANDS THAT THE ABOVE SENTENCE WILL BE VACATED AND REPLACED BY A SENTENCE AS A HABITUAL OFFENDER.

The plea form for the habitual offender proceeding indicates that Defendant is a third-level offender and the recommendation was that he be sentenced to not less than twelve nor more than twenty-four years at hard labor without benefit of probation or suspension of sentence concurrent with any other sentence he was serving.

Three concurrent sentences were imposed for the three counts of simple burglary. The plea form mentions the three counts of simple burglary, but then indicates the “sentence” will be replaced by a habitual offender sentence. Thus, it is unclear whether the understanding of the parties was that the three simple burglary sentences were to be replaced by a single habitual offender sentence, which renders the resulting sentence indeterminate, or whether only one of the three simple burglary sentences was to be enhanced under the habitual offender law and an unen-hanced sentence was to be imposed on each of the two remaining simple burglary convictions. In State v. Ott, 12-111, pp. 17-18 (La.App. 5 Cir. 10/16/12), 102 So.3d 944, 955, the fifth circuit addressed a similar issue as follows:

Second, Defendant’s sentence as to Count Two, attempted armed robbery with a firearm, is indeterminate. The bill of ^information charged Defendant with attempted armed robbery while armed with a firearm in violation of LSA-R.S. 14:27 and 14:64.3. LSA-R.S. 14:64.3 provides for an additional penalty of five years without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentence imposed under LSA-R.S. .14:27 and 14:64, when the dangerous weapon used in the commission of an attempted armed robbery is a firearm. However, the trial court sentenced Defendant under LSA-R.S. 14:27 and 14:64, to 15 years at hard labor. The trial judge did not reference LSA-R.S. 14:27 and 14:64.3 during sentencing, nor did she state that she was imposing an additional period of incarceration when imposing Defendant’s attempted armed robbery sentence. Since the State intended to utilize the provisions of LSA-R.S. 14:27 and 14:64.3, Count Two is indeterminate because the trial judge did not state whether the sentence included the fee-arm enhancement.
Because we find the Count Two sentence indeterminate, we vacate the sentence and remand for resentencing according to law and for clarification of whether Defendant’s sentence includes any additional punishment under LSA-R.S. 14:27 and 14:64.3 as this Court did in State v. Declouet, 09-1046 (La.App. 5 Cir. 10/12/10); 52 So.3d 89, 108-09, writ denied, 10-2556 (La.4/8/11); 61 So.3d 681, and State v. Price, 04-812 (La.App. 5 Cir. 3/1/05); 909 So.2d 612, 618. Additionally, in the event the trial court determines the five-year firearm enhancement was not included in Defendant’s original 15-year sentence, then we find it necessary to reserve Defendant’s right to withdraw his guilty plea because it was not a part of his negotiated plea agreement.

Accordingly, we vacate Defendant’s sentence, and the case is remanded for clarification as to which count is being enhanced and for imposition of separate sentences on the remaining two counts. If the trial court determines that the agreement was that the three simple burglary sentences were to be replaced by a single habitual offender sentence, then we reserve Defendant’s right to withdraw his guilty plea.

| uiThus, after conducting an Anders review, we affirm Defendant’s convictions, vacate his sentence, and remand the case for further proceedings consistent with this opinion. We further grant counsel’s motion to withdraw.

CONVICTIONS AFFIRMED, SENTENCE VACATED, AND CASE REMANDED FOR RESENTENCING. MOTION TO WITHDRAW GRANTED.

      . We grant Brent Hawkins' motion to withdraw for the reasons assigned hereafter and further note that clearly Defendant is now represented by different appellate counsel from the Louisiana Appellate Project rendering the issue moot.

      . The colloquy and one page of the plea form indicates that the agreement was that the sentence would not be less than twelve years at hard labor, but the final page of the guilty plea form indicates the minimum sentence would be eight years.

      . In the supplemental brief, Defendant’s counsel’s first alleged error patent does not assert error, but recommends action (a formal adjudication as a habitual offender). However, counsel concedes that Defendant's admission to his habitual offender status was adequate. Thus, we find no corrective action is required by the trial court.

      . Defendant’s counsel’s third alleged error patent notes the restriction on parole imposed by the trial court. While it is true that the trial court erred in restricting parole, this error is rendered moot because we are vacating the sentence. See La.R.S. 15:529.1 and 14:62.

      . The motion to withdraw is granted despite the remand for resentencing because this defendant is represented by different counsel at the trial (Indigent Defender’s Board) and appellate levels (Louisiana Appellate Project). Thus, the trial court will appoinVreappoint counsel for Defendant at the resentencing hearing.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Chaddrick D. MAYES.
    No. 14-683.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2014.

      David W. Burton, District Attorney, Richard F. Blankenship, Assistant District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
    Mitchel M. Evans, II, Attorney at Law, DeRidder, LA, for Defendant/Appellant, Chaddrick D. Mayes.
    Court composed of SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   KEATY, Judge.

| TDefendant, Chaddrick D. Mayes, appeals his conviction for second degree murder. For the following reasons, we affirm.

PROCEDURAL BACKGROUND

Defendant shot and killed Kenneth “Kenny” Palmer, III, following a verbal altercation which occurred between them while attending a wedding party. As a result, Defendant was charged with second degree murder, a violation of La.R.S. 14:30.1. Following a jury trial, Defendant was found guilty of that charge. The trial-court thereafter heard and denied Defendant’s motion for a post-verdict judgment of acquittal as well as his motion for new trial. The trial court subsequently sentenced Defendant to life imprisonment.

Defendant appeals his conviction, assigning the following three errors:

(1) The jury failed to consider the evidence regarding the provocation exhibited by Palmer;
(2) The jury was confused over the use of other crimes evidence, thereby giving great weight to same in rendering its verdict, exceeding the limited purposes for which other crimes evidence may be utilized, and;
(3) The trial court abused its discretion by failing to determine the extent which Defendant would be entitled to the full version of jury instructions relative to his justifiable homicide defense. The shortened version of the jury instructions misled the jury in its deliberations as to whether Defendant was entitled to use lethal force.

DISCUSSION

I. 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 that there are no errors patent.

|⅞11. First Assignment of Error

In his first assignment of error, Defendant contends that the jury failed to consider the provocation exhibited by Palmer.

The standard of review applicable to Defendant’s 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). The foregoing standard of review was originally enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review, which is legislatively embodied in La.Code Crim.P. art. 821, “does not allow the appellate court ‘to substitute its own appreciation of the evidence for that of the fact-finder.’ ” State v. Johnson, 14-82, p. 4 (La.App. 3 Cir. 6/4/14), 140 So.3d 854, 857 (quoting State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521). The appellate court does not “assess the credibility of witnesses or reweigh the evidence.” Johnson, 140 So.3d at 857.

Defendant argues that the State failed to disprove that he acted in self-defense. Killing in self-defense is governed by La.R.S. 14:20(A)(1), which states, in pertinent part, that a homicide is justified “[wjhen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” In examining a self-defense claim, it is necessary to consider: (1) whether the defendant reasonably believed that he was in imminent danger of death or great bodily harm; (2) whether the killing was necessary to prevent that death or great bodily harm; and (3) whether the defendant was the aggressor in the l.gconfliet. State v. Jenkins, 98-1603 (La. App. 4 Cir. 12/29/99), 750 So.2d 366, writ denied, 00-556 (La.11/13/00), 773 So.2d 157.

In State v. Mincey, 08-1315 (La.App. 3 Cir. 6/3/09), 14 So.3d 613, a case that is factually similar to the instant case, this court reviewed whether the State presented sufficient evidence to disprove the defendant’s justification defense. The victim in Mincey, Jerome Dejean, was at a nightclub when he became involved in a verbal altercation with the defendant. The defendant subsequently shot Dejean after Deje-an attempted to punch him. On appeal, the defendant argued that the State failed to disprove that he acted in self-defense. This court held, in pertinent part:

The essence of his defense is that he was justified in responding to an attempted punch by shooting his opponent in the chest at close range. We recognize that Dejean had two friends with him. Thus, Defendant may have genuinely felt endangered; further, some level of fear was objectively reasonable. However, the level of force he used to defend himself was far beyond what was necessary under the circumstances.
... [A]s mentioned earlier, responding to an oncoming punch by shooting the other person in the chest is an excessive response. Thus, the jury’s determinations in the present case were not unreasonable. Therefore, the Defendant’s reliance on self-defense is mer-itless.

Mincey, 14 So.3d at 615-16.

In this case, as in Mincey, Defendant’s defense is that he was justified in shooting Palmer because Palmer lunged towards him or shoved a table towards him. Responding to an oncoming table or lunge “by shooting [Palmer] ... is an excessive response.” Mincey, 14 So.3d at 615-16. Consequently, this court finds |4that the State presented sufficient evidence to disprove Defendant’s claim of self-defense. Accordingly, this assignment of error lacks merit.

III. Second Assignment of Error

In his second assignment of error, Defendant argues that the jury’s confusion over the use of other crimes evidence caused it to give greater weight to his prior gun offense when rendering its verdict, exceeding the limited purposes for which other crimes evidence may be utilized.

“‘Evidence of other crimes, wrongs, or acts committed by a defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant.’ ” State v. Raines, 13-304, p. 7 (LaApp. 3 Cir. 11/13/13), 124 So.3d 1275, 1278-79 (quoting State v. Jarrell, 07-1720, pp. 10-11 (La.App. 1 Cir. 9/12/08), 994 So.2d 620, 629-30). There are statutory and jurisprudential exceptions, however, to this rule. La.Code Evid. art. 404(B); State v. Monroe, 364 So.2d 570 (La.1978). Specifically, in Monroe, the supreme court held that evidence of a prior criminal act that is similar to the instant offense was admissible at trial to negate a claim of self-defense.

According to the record in this case, Defendant was convicted in 2001 of aggravated criminal damage to property when he shot a gun towards an occupied vehicle. In the instant case, the trial court heard the State’s motion to determine the admissibility of other crimes evidence which pertained to Defendant’s previous conviction in 2001. The trial court held that the evidence regarding Defendant’s previous conviction was admissible, although no mention could be made of the fact that he had been charged with attempted manslaughter.

IsAt trial, the State presented Lieutenant Kenneth Pine who testified regarding Defendant’s 2001 arrest and conviction. Lieutenant Pine testified that Defendant admitted to pulling the trigger of a “Larsen nine millimeter semi-automatic handgun[.]” Lieutenant Pine also testified that the bullet from that gun hit a car with occupants.

With respect to the prior gun conviction, the jury instructions contained in the record state the following:

Evidence that the defendant was involved in the commission of an offense other than the offense for which he is on trial is to be considered only for the limited purpose(s) to show motive, intent, absence of mistake or accident, or to rebut claim of self-defense or other defense.
Remember the accused is on trial only for the offense charged. You may not find him guilty of this offense merely because he may have committed another offense.
Evidence of other crimes may be offered to prove such things as motive, opportunity, intent, preparation, plan, knowledge, and identity, absence of mistake or accident, but not to prove the “bad character” of the accused. To the extent that other crimes’ evidence proves such matters as guilty knowledge or intent, it does help to prove the offense charged.

Thus, the trial court gave the jury instructions on limiting the use of the other crimes evidence.

In the present case, a bullet shot by Defendant from his gun hit and killed Palmer. Similarly, a bullet shot by Defendant from his gun in 2001 hit an occupied vehicle. This 2001 conviction arising from Defendant’s act of shooting towards a vehicle showed the improbability that Defendant acted in self-defense in the instant case. Moreover, as previously mentioned, the appellate court does not “assess the credibility of witnesses or reweigh the evidence.” Johnson, 140 So.3d at 857. Thus, this assignment lacks merit.

IfilY. Third Assignment of Error

In his third assignment of error, Defendant alleges that the trial court abused its discretion by failing to allow a full version of jury instructions relative to his justifiable homicide defense. The shortened version of the jury instructions, according to Defendant, did not contain the following subsections provided in the justifiable homicide statute, La.R.S. 14:20:

C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Defendant contends that this failure to include the foregoing subsections misled the jury as to whether he was entitled to stand his ground and use lethal force.

The State counters that exclusion was proper, supporting its argument with jurisprudence found in the per curiam opinion of State v. Wilkins, 13-2539 (La.1/15/14), 131 So.3d 839. In Wilkins, the supreme court found that Subsections C and D of La.R.S. 14:20 must be read and applied together. The State asserts that La.R.S. 14:20(C) and (D) are inapplicable in the present case because-Subsection C is conditional pursuant to its language that “[a] person who is not engaged in unlawful activity ... shall have no duty to retreat before using deadly force[J” Since Defendant was previously convicted in 2001 of aggravated criminal damage to property, the State asserts that he was a convicted felon in unlawful possession of a firearm when the instant crime was committed. Since Wilkins provides that Subsections C and D must be read and applied together, and since Defendant was 17engaged in unlawful activity during the instant shooting, the State argues that Defendant is not entitled to the benefit of Subsections C and D. We agree with the State.

Defendant further contends that the State’s reasoning regarding Subsections C and D conflicts with jurisprudence providing that a felon may arm himself in self-defense. Defendant notes the supreme court’s holding in State v. Blache, 480 So.2d 304, 308 (La.1985), wherein it states:

We hold that when a felon is in imminent peril of great bodily harm, or reasonably believes himself or others to be in such danger, he may take possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self-defense, or in defense of others. In such situation justification is a defense to the charge of felon in possession of a firearm.

In opposition, the State argues that Defendant did not “take possession of a weapon for a period no longer than is necessary” to defend himself as stated in Blache, 480 So.2d at 308. We agree with the State for the following reasons.

The record shows that Palmer was unarmed despite Defendant’s belief to the contrary. This is shown by the trial testimony of the State’s witness, Sergeant James Halbert, of the DeRidder Police Department. Sergeant Halbert testified that he arrived at the scene following the shooting. He testified that he looked at Palmer’s body and failed to see any weapons on him. The State also presented Alzata “Brownie” Crawford at trial. Crawford, who was at the scene of the crime when it occurred, testified that after Palmer shoved the table and prior to the shooting, she did not see a gun in Palmer’s hand.

|sThe record also contains the testimony of another eyewitness, Paul Fairley, who testified that Defendant showed his weapon approximately two or threé times prior to the shooting. - Although Defendant kept placing the gun behind his back after each reveal and prior to the shooting, Fairley testified that he “never took his hand off of the weapon.” Fairley testified, that he attempted to prevent the shooting by jumping in front of and talking to Defendant. Fairley testified that he managed to get Defendant to walk away with him. While they were walking away, however, Fairley testified that he heard a table move followed by the sound of a shooting gun. Fairley testified that Palmer subsequently dropped to the ground, and Defendant ran away.

The record also contains Defendant’s testimony that he bought the gun which killed Palmer approximately four or five months prior to the shooting despite not having a concealed gun permit. Defendant testified that he placed the gun in his waist prior to the party. Thus, the foregoing testimony contained in the record shows that Defendant carried a gun into a party and shot an unarmed man. It further shows that Defendant possessed the gun longer than was necessary to defend himself, which is contrary to the holding in Blache.

We further note that the record does not reveal that Defendant was in “imminent peril” as stated in Blache, 480 So.2d at 308. As mentioned above, the evidence shows that Palmer was unarmed despite Defendant’s belief that Palmer was armed. The evidence contained in the record also shows that Defendant was more physically fit than Palmer. This is shown by the testimony of Dr. Terry Welke, a forensic pathologist who performed Palmer’s autopsy. Dr. Welke testified that Palmer was six feet tall, weighed 206 pounds, and was overweight. On the other hand, photographs submitted by the State at trial revealed that ^Defendant had a muscular build. Thus, a jury could have reasonably believed that the foregoing evidence and testimony showed that Defendant was not at a disadvantage when compared to Palmer.

Based on the above, the trial court did not abuse its discretion by excluding the justifiable homicide defense statute found in La.R.S. 14:20(0 and (D) from the jury instructions. Thus, this assignment of error is without merit.

DECREE

Defendant’s conviction is affirmed.

AFFIRMED.

      . See also State v. Levier, 09-238 (La.App. 3 Cir. 11/4/09), 21 So.3d 1139, writ denied, 38 So.3d 298 (La.6/4/10), wherein this court held that the evidence was insufficient to establish self-defense so as to support a conviction for second degree murder. Although the defendant claimed he was justified in shooting the victim because the victim was reaching in his pocket and the defendant knew or saw that he had a knife, this court found that the level of force used by the defendant was far beyond what was necessary.'

      . We note that Blache was overruled by State v. Curtis, 04-111 (La.App. 3 Cir. 8/4/04), 880 So.2d 112, writ denied, 04-2277 (La.1/28/05), 893 So.2d 71, regarding a sentencing-related issue.


author: PICKETT, Judge.

text:
    Wayne D. LaGRAPPE, et al. v. PROGRESSIVE SECURITY INSURANCE CO., et al.
    No. 14-720.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2014.

      Aaron Broussard, Broussard & Hart, Lake Charles, LA, for Plaintiffs-Appellees, Wayne D. LaGrappe, Jean Ann LaGrappe.
    Robert C. McCorquodale, In-House Counsel, Lake Charles, LA, for Defendant-Appellant, Sheriff Tony Mancuso, in his official capacity as the Sheriff of Calca-sieu Parish, Louisiana.
    Todd M. Ammons, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA for Defendants-Appellants, Sheriff Tony Mancuso, in his official capacity as the Sheriff of Calcasieu Parish, Louisiana, Ace American Insurance Company.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

|,The defendant sheriff appeals the judgment rendered in favor of the plaintiffs for injuries they sustained when their vehicle was rear-ended on Interstate 210 (1-210) in Lake Charles after a sheriffs deputy blocked both eastbound lanes of 1-210 for a funeral procession to merge onto the interstate. For the following reasons, we affirm the judgment.

FACTS

On December 13, 2010, the Calcasieu Parish Sheriffs Office Funeral Division was escorting a funeral procession from Johnson’s Funeral Home in Lake Charles, Louisiana to Dry Creek, Louisiana. The funeral procession left the funeral home and traveled north on Lake Street until it reached College Street/I-210. At College Street, the funeral procession turned east onto College Street then proceeded up the interstate entrance from College Street. A deputy was assigned to control traffic on the interstate as the funeral procession merged onto the interstate.

At the same time, Mr. and Mrs. Wayne LaGrappe were traveling east on 1-210 and approaching the Lake Street exit. Mr. LaGrappe was driving. As they approached the exit, Mr. LaGrappe saw a funeral procession turning from Lake Street onto College Street. He then noticed brake lights on vehicles ahead of them beginning to appear. Traffic ahead of the LaGrappes slowed and came to a stop. Mr. LaGrappe also slowed and brought his vehicle to a stop on the crest of the Lake Street overpass. Mr. La-Grappe left space between his vehicle and the vehicles stopped in front of him, so that traffic coming from behind could see him. After coming to a stop, he turned on his flashers. From the top of the overpass, Mr. LaGrappe observed that all traffic ahead of him was stopped. Mr. LaGrappe Lalso saw that the funeral procession was proceeding up the entrance on to the interstate. After briefly observing the funeral procession, Mr. LaGrappe looked in his rearview mirror and saw a white van approaching from the rear; their vehicle was then was struck from behind.

The white van, a 2003 Ford Econoline van, was owned by Doc’s Sight and Sound and operated by Conor English. Mr. English had completed one job for Doc’s earlier that morning and was headed to another job when the accident occurred. Mr. English had no recollection of the accident and could not provide any information as to why or how he struck the LaGrappes’ vehicle.

The LaGrappes’ vehicle was pushed forward into the vehicle in front of them and severely damaged: The right side of their vehicle was pushed inward onto Mrs. La-Grappe, and jaws of life were required to extricate her from the vehicle. Both Mr. and Mrs. LaGrappe suffered injuries in the accident. Fortunately, none of their injuries were life threatening, and with hard work and perseverance, they were able to return to a fairly normal, but modified lifestyle, of what they enjoyed before the accident. Both of the LaGrappes will be affected by their injuries for the rest of their lives.

The LaGrappes filed 'suit against Mr. English, Doc’s Sight and Sound and its insurer, as well as the Calcasieu Parish Sheriff (the Sheriff) and its insurer, ACE American Insurance Company, seeking to recover damages for the above injuries. The claims against English, Doc’s Sight and Sound, and their insurer were resolved prior to trial. Beginning January 13, 2014, the LaGrappes’ claims against the Sheriff and ACE were tried to a jury. At the trial, ten fact witnesses testified and two traffic reconstruction experts testified, Michael Gillen for the LaGrappes and Michael Sunseri for the Sheriff. After deliberating, the jury assessed 65% fault Isfor the accident to the Sheriff and 35% to Mr. English. The jury awarded Mr. La-Grappe his medical expenses of $25,637.43, and $70,000.00 in general damages, consisting of $50,000.00 for past and future physical pain and suffering; $10,000.00 for past and future loss of enjoyment of life; and $10,000.00 for past and future emotional distress and mental anguish. The jury awarded Mrs. LaGrappe $34,156.52 in medical expenses and $333,000.00 in general damages designated as follows: $200,000.00 for past and future physical pain and suffering; $80,000.00 for past and future loss of enjoyment of life; $45,000.00 for past and future emotional distress and mental anguish;- $4,000.00 for disfigurement; and $4,000.00 for permanent disability.

The Sheriff and Ace appealed the judgment.

ASSIGNMENTS OF ERROR

On appeal, the Sheriff and ACE assign the following seven errors with the trial court proceeding and its judgment.

1. The Trial Court committed legal error in refusing to instruct the jury in accordance with Petty v. State Farm [Mutual Automotive [Automobile] Insurance Co., 06-1069 (La.App. 4 Cir. 2/7/07), 952 So.2d 767], Viator v. Gilbert, 206 So.2d 106 [ (La.App. 4 Cir.), writs refused, 251 La. 1047, 1048, 208 So.2d 323; award of damages amended by 253 La. 81, 216 So.2d 821 (1968) ]; Gandy v. Arrant, 50 So.2d 676 (La.App. 2 Cir.1951); and Hernandez v. Pan American Fire & Casualty Co., 157 So.2d 923 (La.App. 1 Cir.1963), warranting de novo review.
2. The Trial Court committed legal error in allowing the introduction of [the Sheriffs] Standard Operating Procedures into evidence, when:
a. the Procedures are directly contrary to statutory law, and;
|,b. the Procedures impose a higher duty of care upon the Sheriff than that imposed by law, warranting de novo review.
3. The Trial Court committed legal error in instructing the jury that the Sheriffs violation of its own procedures could be considered negligence when what was prohibited by those procedures was otherwise allowed by law, warranting de novo review.
4. The jury was clearly wrong in assessing any fault to the Calcasieu Parish Sheriffs Office for causing this accident.
5. Alternatively, the jury was clearly wrong in assessing 65% of fault to the Calcasieu Parish Sheriffs Office for causing this accident.
6. The jury abused its discretion in awarding Wayne LaGrappe $70,000.00 in general [damages] sustained in this accident.
7. The jury abused its discretion in awarding Jean LaGrappe $333,000.00 in general [damages] sustained in this accident.

DISCUSSION

The Sheriff’s Funeral Procession Standard Operating Procedures

The Sheriff argues it was legal error for the trial court to allow the procedures to be introduced into evidence. We cannot overturn a trial court’s determination that evidence is admissible unless it constitutes clear error. Wegener v. Lafayette Ins. Co., 10-0810, 10-811 (La.3/15/11), 60 So.3d 1220.

Citing various statutes, the Sheriff argues that when not responding to an emergency, his actions and the actions of his deputies must be gauged by an ordinary standard of care. The Sheriff contends, however, that his procedures for funeral processions establish a higher duty of care than the law requires. Therefore, he asserts it was error for the trial court to admit the procedures into evidence and to instruct the jury that it could consider the procedures when considering the issue of its negligence.

|fiThe Sheriff cites three statutes as establishing the duty of care it owes to the motoring public: La.R.S. 32:24; La.R.S. 32:125; and La.R.S. 14:100.1. Louisiana Revised Statutes 32:24 provides what am emergency vehicle can do when responding to an emergency call, pursuing someone who has or is suspected of violating the law, and responding to a fire. It further specifies that the driver of an emergency vehicle is not relieved of his “duty to drive or ride with due regard for the safety of all persons” and that the provisions do not “protect the driver or rider from the consequences of his reckless disregard for the safety of others.” La.R.S. 32:24(D). Section 125 of Title 32 sets forth how motorists should respond to authorized emergency vehicles that are using audible or visual warnings. This provision also states that it “shall not operate to relieve the driver or rider of an authorized emergency vehicle from the duty to drive -with due regard for the safety of all persons.” Lastly, La.R.S. 14:100.1 prohibits the obstruction of any highway by “impeding .... retarding or restraining traffic ... thereon,” unless such obstruction is created “by governmental authorities, or any officer or agent thereof, in the proper performance of duties.”

The Sheriffs procedures provide, in pertinent part:

Escorting a funeral onto an interstate highway is the most dangerous part of escorting, due to the traffic[’]s high rate of speed on the interstate. Therefore, the following should occur:
The break vehicle should move traffic over to another lane while the funeral procession enters the interstate. Do not try to stop the traffic while the funeral is getting on the interstate.

This procedure does not establish a higher standard of care than the law does. Rather, it sets forth how Sheriffs deputies directing funeral processions should control or divert traffic in order to maintain due regard for the safety of all ^persons by obstructing traffic in a manner least likely to disrupt the flow of traffic on the interstate.

Louisiana Revised Statutes 14:100.1 allows the obstruction of traffic by law enforcement when done in the “proper performance of duties,” but it does not define “proper performance of duties.” “Due regard for the safety of all persons” is the duty established by La.R.S. 32:24 and La. R.S. 32:125; therefore, the “proper performance of duties” contemplated by La. R.S. 14:100.1 must include “due regard for the safety of all persons.” Indeed, common sense dictates that the Sheriffs proper performance of his duties includes maintaining due regard for the safety of all persons. As stated above, the Sheriffs procedure sets forth how to maintain due regard for the safety of all persons when obstructing traffic on a highway for a funeral procession. Accordingly, the Sheriffs procedures are not contrary to statutory law and do not impose a higher duty of care upon the Sheriff than that provided by law. Therefore, the trial court did not commit clear error in admitting the procedures into evidence.

The Sheriff cites Brooks v. City of Jennings, 06-680 (La.App. 3 Cir. 11/22/06), 944 So.2d 768, and Jones v. Congemi, 01-1345, 02-148, 602-149 (La.App. 5 Cir. 5/13/03), 848 So.2d 41, writ denied, 03-1647 (La.10/10/03), 855 So.2d 354, for the proposition that it was error for the trial court to allow the introduction of the CPSO’s funeral procession procedures. These cases stand for the proposition that the failure of law enforcement to comply with department policies and procedures may be reasonable under the circumstances of a particular case. The admissibility of each defendant’s departmental policies and procedures was not at issue in either of these cases. Therefore, these cases do not support the Sheriffs position.

|7The Sheriff also cites cases from other jurisdictions as support for its claim that its policies and procedures should not have been admitted and put before the jury. The cited cases stand for the proposition that policies and procedures that require a standard higher than ordinary care or the level of care required by law cannot be used to establish negligence on the part of the defendant. They have no application here because we have determined the Sheriffs policies and procedures do not establish a standard higher than ordinary care.

Jury Instructions

The Sheriff assigns two errors with the trial court’s jury instructions, asserting: (1)the trial court committed legal error in refusing to give an instruction regarding certain rear-end collisions that he requested, and (2) the trial court erred in giving an instruction regarding the Sheriffs procedures for funeral processions that should not have been given.

In Adams v. Rhodia, Inc.,- 07-2110, p. 7 (La.5/21/08), 983 So.2d 798, 805, the supreme court determined that when reviewing jury instructions, “the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts.” Therefore, the court concluded that “the mere discovery of an error in the judge’s instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case.” Id.

The supreme court further explained that even when an erroneous instruction was given to the jury, the instruction must be considered in light of all the instructions “to determine if the charges adequately provide the correct principles [sof law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its deliberation.” Id. at 804. Unless the instructions “misled the jury” and prevented it “from dispensing justice,” the jury’s verdict should not be set aside. Id.

Petty v. State Farm Mutual Insurance Co.

The . Sheriff asserts this court should perform a de novo review on appeal because the .trial court committed legal error in refusing to instruct the jury in accordance with Petty, 952 So.2d 767; Viator, 206 So.2d 106; Gandy, 50 So.2d 676; and Hernandez, 157 So.2d 923. The Sheriff argues that pursuant to these cases, the trial court’s refusal to instruct the jury pursuant to the holding in Petty constitutes legal error. In Petty, 952 So.2d at 769 (emphasis omitted) (quoting Viator, 206 So.2d at 109), the court applied the following holding to the facts presented therein:

When the lead vehicle makes a sudden stop, or one in order to execute an illegal maneuver, but the operator of a second vehicle is able to bring his car to a stop without a collision, the first driver is not liable if a third vehicle collides with the second.

Petty occurred on Interstate 10 in Me-tairie, when a mattress fell off of a vehicle onto the highway. A following vehicle ran into the mattress which caused her to stop in the highway. Two vehicles following the vehicle that hit the mattress were able to stop without colliding with the first vehicle or each other. The fourth vehicle failed to stop and rear-ended the third vehicle that then rear-ended the second driver. Unlike this case, the party whose mattress caused the first driver to stop and contributed to the resulting accidents was not known and was not a party to the litigation. Therefore, Petty does not stand for the proposition that the person who created the hazard that lead to the accident was not at fault. Rather, it stands |sfor the proposition that the second driver, who was faced with a sudden emergency, was not at fault.

The Sheriffs argument fails to acknowledge that there are a number of other significant differences between this case and Petty. For example, the Viator case, which is the basis of the holding in Petty, was decided before the enactment of the Comparative Fault Law in 1979, and the requirement of La.Civ.Code art. 2323(A) that in cases seeking reparation for personal injury, “the ... fault of all persons causing or contributing to the injury, death, or loss shall be determined.” Additionally, Petty did not mention Article 2323 or discuss why it did not apply to the facts therein. Moreover, there was no discussion of cause-in-fact in Petty.

In this case, the Sheriffs deputy’s blocking of 1-210 was undoubtedly a cause-in-fact of Mr. English hitting the LaGrappe vehicle. If the interstate had not been blocked and the traffic had not backed up, the LaGrappe vehicle would not have been stopped on the interstate, and Mr. English would not have hit it.

The facts of this case are similar to Mendoza v. Mashburn, 99-499, 99-500 (La.App. 5 Cir. 11/10/99), 747 So.2d 1159, unit denied, 00-37 (La.2/18/00), 754 So.2d 976. In Mendoza, a driver had a one-car accident on the downslope of an overpass on Interstate 10; his vehicle was then hit by another vehicle. The state police rer sponded to the accident and blocked traffic with a cruiser. The plaintiffs, who were speeding on their motorcycles, crashed into other vehicles stopped behind the police cruiser. The jury found the driver of the first vehicle to be 25% at fault and the plaintiffs to be 75% at fault. The trial court granted judgment notwithstanding the verdict, finding the plaintiffs to be 50% at fault and the state 50% at fault; it found no fault on the part of the first driver. On appeal, the fifth |1flcircuit reversed the judgment notwithstanding the verdict and reinstated the jury’s verdict, explaining:

[The driver of the first vehicle] was negligent and his negligence set the entire chain of subsequent events into motion. An initial tortfeaser will not be relieved of the consequences of his negligence unless the intervening cause superceded the original negligence and alone produced the injury. If the original tortfea-sor could or should reasonably foresee the accident that might occur, he would be liable notwithstanding the intervening cause. It was entirely foreseeable that losing control of a vehicle, crashing into a guardrail at the foot of an overpass and obstructing traffic on an interstate highway would result in accidents by following, even speeding, vehicles.

Id. at 1168 (citations omitted) (emphasis added). The Mendoza court further concluded:

Obviously, the defendant cannot be relieved from liability by the fact that the risk, or a substantial and important part of the risk, to which he has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant’s negligence....

Id. (quoting Miller v. La. Gas Serv. Co. 601 So.2d 700, 705 (La.App. 5 Cir.), units denied, 604 So.2d 999, 1001). In concluding, the court noted that “[t]he motorcyclists’ injuries would not have occurred but for the initial accident caused by defendant Mashburn.” Id. at 1169. The court ultimately determined that the jury’s original assessment of fault was correct and reversed the judgment notwithstanding' the verdict.

As explained in Mendoza, it was foreseeable that the Sheriffs act of obstructing both lanes of traffic on 1-210 and causing traffic to come to a stop on a high speed interstate could result in accidents by vehicles approaching the stopped traffic. Blocking the interstate included the risk that vehicles stopped because the interstate was blocked might be hit by drivers who were driving at high speeds. | ^Therefore, the LaGrappes’ injuries would not have occurred but for the Sheriffs deputy blocking traffic on 1-210.

The trial court’s jury instructions included an instruction that conforms with the holding in Mendoza and is the current applicable law as per Adams, 983 So.2d 798, and Johnson v. Morehouse General Hospital, 10-387, 10-488 (La.5/10/11), 63 So.3d 87. For these reasons, we find no error in the trial court’s refusal to instruct the jury as requested by the Sheriff.

Violation of the Sheriff’s Procedures as Evidence of Negligence

The Sheriff contends that the trial court’s inclusion of the following instruction in the instructions it provided to the jury constitutes error:

Proof that an organization has violated its own safety rules and training can be used to establish negligence. When an organization violates its own safety procedures designed to prevent the very danger at issue, you may consider that violation as evidence of negligence by virtue of acknowledging the hazard in their own safety policy.

The Sheriff did not object to the complained-of jury instruction, and generally, failure to contemporaneously object to a jury instruction results in waiver of the objections. La.Code Civ.P. art 1793(C). See also Guidry v. Dwight Manuel, Inc., 04-2031 (La.11/17/04), 887 So.2d 456. The Sheriff argues, however, that the jury instruction contains a “plain and fundamental” error; therefore, our review of his complaint is not prohibited. Wegener, 60 So.3d 1220.

We have concluded the Sheriffs procedures do not require that the Sheriff adhere to a standard of conduct higher than that imposed by law. Therefore, the trial court’s instruction that allows, but does not mandate, consideration of the procedures as evidence of negligence does not impose a higher standard of conduct on the Sheriff. Accordingly, we also conclude that the instruction does not contain |1Pa plain and fundamental error that excuses the Sheriffs failure to contemporaneously object to the instruction.

Assessment of Fault to the Sheriff

In his next two assignments of error, the Sheriff argues the jury was clearly wrong in assessing any fault to him for causing the accident or, alternatively, in assessing 65% fault to him.

A jury’s allocation of fault is a fact determination subject to review under the manifest error-clearly wrong standard of review. Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. This standard “precludes the setting aside of a [jury’s] finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.” Id. at 1087.

Close review of the record establishes that the jury’s assessment of fault is not clearly wrong. The Sheriff has a special Funeral Division that escorts funerals throughout the parish. On most occasions, funeral processions are escorted by deputies with prior experience in the Funeral Division. The written procedure and the testimony of deputies experienced in escorting funeral processions established that the merger of the funeral procession onto 1-210 was not handled in accordance with the written and unwritten procedures of the Funeral Division.

Pull cars and brake cars are used to escort funeral processions. Pull cars lead the funeral, and brake cars manage traffic along the route to the graveyard to allow the procession to stay together. There is usually more than one brake car to allow for blocking intersections and merging traffic onto the interstate when necessary. Deputies testified that the procedure followed by the Funeral Division is not fully set forth in the written procedure quoted above. The procedure followed by the deputies who testified at trial is that the brake car assigned to merge traffic onto the 1 ^interstate should park partially on the shoulder and partially in the right lane with his overhead light on to notify traffic to merge left. The brake car should interrupt the flow of traffic for the shortest time possible, and if traffic begins to back up, the deputy in the brake car should instruct the traffic to keep moving by waving his arms or getting out of his vehicle and directing the traffic.

The deputy who blocked the traffic on I-210 was never identified. There is no evidence as to whether he had participated in a funeral procession before or had any knowledge of how to escort a funeral procession. The deputy blocked traffic in both lanes of the interstate, and there is no evidence that he moved or attempted to move his vehicle from blocking both lanes of the interstate until the funeral procession had completely merged onto the interstate and the accident had occurred.

The Sheriff argues that the evidence does not establish that the deputy assigned to control traffic on 1-210 as the funeral procession merged onto the highway blocked both of the east-bound travel lanes. He argues, instead, that motorists on the interstate stopped as a courtesy to the deputy as he prepared to merge the funeral procession onto the interstate. Although one witness, Veronica Thibodeaux, testified by deposition that she initially stopped for the deputy as a courtesy, the evidence established that the deputy subsequently blocked both lanes of 1-210 with his vehicle. Brian LaLande was in the vehicle in front of the LaGrappes. He testified that the deputy parked his car “cattycorner on an angle to block both lanes.” Mr. LaGrappe also testified that the deputy’s vehicle blocked both lanes of travel.

The only witness to testify otherwise was Paul Berzas. Mr. Berzas testified the deputy did not block both lanes of travel until the funeral procession was |14almost completely on the interstate, and he was preparing to leave. On cross-examination, Mr. Berzas’s trial testimony was shown to conflict with written and oral statements that he gave immediately after the accident. Accordingly, although Ms. Thibo-deaux may have initially stopped as a courtesy to the deputy, it was reasonable for the jury to conclude that the deputy blocked both lanes of travel with his car.

There was conflicting evidence as to what Mr. English would have seen as he approached the overpass. Mr. LaLande testified that he saw brake lights as he approached the overpass and had time to stop his vehicle on the top of the overpass. He opined that Mr. English should have seen the brake lights of the vehicles ahead of him as he approached the overpass and stopped his vehicle safely without causing the accident. Mr. Berzas also testified that he changed lanes as he approached the overpass because he saw the white van driven by Mr. English, approaching from behind him at a high rate of speed. He testified that he was descending the overpass when the accident occurred.

Mr. LaGrappe testified that as he approached the Lake Street exit, there was traffic ahead of him and that some of the traffic exited at Lake Street, while other traffic continued over the overpass. He further testified that he could see brake lights coming on, and he started slowing down. He stopped when he got to the top of the overpass and watched the funeral procession a short time. He then looked in his rearview mirror and was rear-ended. Mr. LaGrappe testified that the cars in front of him, including Mr. Lalande’s, were “down-kind of over the crest” of the overpass and that all of the traffic was stopped.

Both traffic reconstruction experts opined that it was neither necessary nor advisable for the deputy to block both lanes of travel on 1-210. They further 1,5agreed that: (1) the escort of a funeral procession should not create unnecessary hazards; (2) having traffic come to a complete stop on an interstate should be avoided; (3) law enforcement should know that rear-end collisions are a risk of stopping traffic on an interstate; (4) risks increase anytime something out of the ordinary occurs; and (5) the distance travelled on an interstate before a driver perceives and reacts is greater than when traveling at lower speeds.

Mr. Gillen testified that it was “incredibly dangerous” to block interstate traffic, espécially on either side of an overpass without proper notice to approaching motorists because it violates their expectation of a free, open, clear roadway. Mr. Gillen also explained in detail how the blocking the interstate can negatively impact a motorist’s ability to recognize that the traffic ahead- of him has slowed and/or stopped and increase the time required for a motorist to process that information and react to it.

Mr. Gillen opined that although Mr. La-lande and Mr. Berzas testified to seeing lights on vehicles as they approached the overpass, it was unlikely that Mr. English saw what they saw. He believed that Mr. English only saw the rear of the La-Grappes’ vehicle and the lights on their vehicle. He cited the time lapse between Mr. Lalande and Mr. Berzas approaching the overpass and Mr. English approaching the overpass to support this opinion. He observed that Mr. Lalande was in front of the LaGrappes and that Mr. Berzas was beyond the crest of the overpass when the accident occurred and saw the accident in his rearview mirror. Based on this evidence, Mr. Gillen concluded that there was no evidence of other vehicles between Mr. English and the LaGrappes and that it was likely Mr. English saw only the lights on the LaGrappes’ vehicle as he approached the overpass. In his opinion, Mr. English did not have sufficient clues and notice of both lanes of 11(itraffic being completely stopped on the interstate to react timely and avoid the accident.

Mr. Sunseri testified that Mr. English had a clear view of the Lake Street overpass for more than 2700 feet. Mr. Sunseri agreed with Mr. Lalande’s opinion that there was no reason, other than his not paying attention, that Mr. English did not see the LaGrappes’ vehicle and stop. He opined that if no vehicle was between Mr. English and the LaGrappes, Mr. English should have seen the LaGrappes’ emergency flashers for at least fifteen seconds, which was sufficient notice for him to stop. Therefore, he disagreed with Mr. Gillen’s conclusion that Mr. English did not have sufficient visual cues and notice alerting him to slow and stop his vehicle before hitting Mr. LaGrappe. On cross-examination, Mr. Sunseri admitted, however, that there was no way to determine how far back Mr. English was when Mr. LaGrappe applied his brakes. He explained that he assumed Mr. English was following at a safe distance and had plenty of time to see the taillights ahead of him, so he could start slowing his vehicle and not hit the LaGrappes.

The factual and expert testimony provided a reasonable basis for the jury to conclude that the Sheriffs deputy was negligent in blocking both lanes of 1-210, and his negligence set into motion the chain of subsequent events that led to the La-Grappes being injured in a rear-end collision. As the expert testimony established, it was entirely foreseeable that blocking both lanes of traffic on 1-210 might “result in accidents by following, even speeding, vehicles.” Mendoza, 747 So.2d at 1168. Accordingly, we find no error in the jury assessing fault to the Sheriff.

Now, we consider whether the percentage of fault the jury assessed to the Sheriff was manifestly erroneous. The assessment of fault is guided by the factors 117set forth in Watson v. State Farm Fire & Casualty Insurance Co., 469 So.2d 967 (La.1985). In Watson, the supreme court determined various factors influence the percentage of fault assigned to the parties. Those factors include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought. Id.

The evidence established that escorting a funeral procession is a courtesy the Sheriff provides to the public. It is not a duty required by law, and no emergency required that the interstate be blocked to accommodate the funeral procession. Under the facts presented here, the Sheriffs deputy was in a superior position to that of Mr. English, and there were no extenuating circumstances that required the deputy to proceed in haste as the funeral procession merged onto the interstate. Moreover, the Sheriff was in a superior position to ensure that all deputies had knowledge of and some training of the procedures to be followed when escorting a funeral procession. However, no evidence indicates the deputy assigned to merge the funeral procession onto the interstate had training or knowledge of the procedures or how to merge traffic onto the interstate with “due regard for the safety of all persons.”

As to Mr. English, although his conduct could have resulted in part from inattention, he could not have had a full awareness of the situation on the downside of the overpass where the traffic was stopped. Mr. Gillen’s testimony was that Mr. English did not have adequate notice of the traffic being stopped on the other side of the overpass to allow him to safely stop before the accident. The Sheriff 118argues, but the evidence does not establish, that Mr. English was speeding before the accident or that he was not paying attention. Compared to the deputy, Mr. English was clearly in an inferior position to recognize the dangers of his actions under the circumstances.

The Sheriffs deputy created the hazard that led to the accident and was in a superior position to appreciate the dangerous risk of blocking the interstate as he did. Moreover, the evidence provided a reasonable basis for the jury to conclude that Mr. English’s failure to appreciate the danger of and react to the traffic stopped ahead of him resulted primarily from the risk created by the Sheriffs deputy. For these reasons, we find no error with the jury’s assessment of 65% fault to the Sheriff.

Damages

The jury’s determination of the amount to award in damages is a finding of fact. Rando, 16 So.3d 1065. On appellate review, the initial inquiry regarding an award of damages is whether the award for the particular injuries and their effects upon the particular injured person is a clear abuse of the trier of fact’s great discretion. Id. Only if a detailed analysis of the facts shows the award to be an abuse of discretion can the award be considered either excessive or insufficient. Id. On appeal, we review the jury’s exercise of discretion, not decide the damage award we believe would be appropriate. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The Sheriff complains that the jury’s award of $70,000.00 in general damages constitutes an abuse of discretion. The jury awarded Mr. LaGrappe:

| iflPast and Future physical pain and suffering: Past and Future loss of enjoyment of life: Past and Future emotional distress and mental anguish: $50,000.00 $10,000.00 $10,000.00

Mr. LaGrappe had not been retired long when the accident occurred and was very active in his retirement. He suffered bruising on the right side of his face and temporal lobe, severe headache, a hemato-ma on the back of his head, swelling and bruising in his right eye and right hand, numbness in both legs, back pain, and neck pain. As a result of the accident, most, if not all, of the activities he looked forward to before retirement and enjoyed after his retirement were limited by pain he suffered due to a back injury he sustained in the accident and the aggravation of numbness in his thigh and leg associated with his treatment for prostate cancer.

Mr. LaGrappe was unable to address his injuries immediately after the accident because he tended to Mrs. LaGrappe who sustained bilateral broken shoulders. Mrs. LaGrappe’s injuries required that Mr. LaGrappe tend to her needs before his because she was unable to use her hands and arms to care for herself. After the accident, he suffered back pain that affected all of his favorite activities, like yard work, gardening, fishing, woodworking, and most importantly, playing with his grandchildren. He described how often he engaged in those activities before the accident and how they were limited after the accident. He explained that while he did not allow the back pain to completely stop his enjoyment of those activities, it did limit how much activity he could engage in and his enjoyment of those activities.

Mr. LaGrappe explained that after being treated for a while for his complaints, his doctor instructed him not to return for further treatment, unless he could no longer tolerate the pain. Mr. LaGrappe’s doctor prescribed physical |20therapy to address his complaints of pain. After achieving maximum benefit from physical therapy, Mr. LaGrappe testified that he stretched daily and used a TENS unit when needed, as recommended by his physical therapist, to manage his back pain. Following this regimen allowed him to continue enjoying his favorite activities, albeit in a more limited capacity.

Mr. LaGrappe also explained that treatment he had previously undergone for prostate cancer had caused some numbness in his thigh. He testified that the numbness was aggravated in intensity and duration by the accident. He also testified that he now experiences pins and needles pain and leg cramps daily in his thigh which he did not before the accident.

Although some may consider the jury’s award of $70,000.00 to be generous or even high, we cannot say it is a clear abuse of the jury’s discretion “for the particular injuries and their effects under the particular circumstances on the particular injured person.” Id. at 1260. Considering Mr. LaGrappe’s relatively young age of sixty-one years of age at the time of the accident, the manner in which he engaged in and enjoyed numerous activities before the accident, his life expectancy of approximately eighteen years at the time of trial, and the daily impact of his injuries on his activities and his enjoyment of life, we cannot say the jury abused its vast discretion in awarding him $50,000.00 for pain and suffering and $10,000.00 for loss of enjoyment of life.

With regard to Mr. La-Grappe’s award of $10,000.00 in past and future emotional distress and mental anguish, we observe that a plaintiff may recover damages for mental anguish sustained while a traumatic ordeal is in progress by showing “that he was involved in a hazardous situation, within the zone of danger, and that his fear was reasonable given the circumstances.” Boyd v. Allied Signal, Inc., 07-1409, p. 17 (La.App. 1 Cir. 10/17/08), 997 So.2d 111, 122, writ denied, 08-2682 (La.1/16/09), 998 So.2d 105.

Mr. LaGrappe described the events leading up the accident, the accident itself, and what occurred after the accident. He and his wife were both injured; she was rendered unconscious for a period of time. He tried to calm her fears as they waited to be removed from their vehicle. He then witnessed and tried to ease her fears and potential for additional injury as she was extricated from their vehicle with the “jaws of life.” Because he had a potential head injury, Mr. LaGrappe’s head was stabilized with duct tape. The duct tape was placed across his chin over his beard. When the duct tape was pulled off, that portion of his beard under the tape went with the tape. Later that same day, he had to travel alone in an ambulance to Lafayette for neurological testing and assessment to determine whether he suffered a neurological injury in the accident. Under these circumstances, we cannot say the jury’s award of $10,000.00 for emotional distress and mental anguish constitutes manifest error.

The Sheriff also contends the jury’s award of $833,000.00 in general damages to Mrs. LaGrappe was abusive. The jury awarded Mrs. LaGrappe the following general damages:

Past and Future physical pain and suffering: $200,000.00
Past and Future loss of enjoyment of life: $80,000.00
Past and Future emotional distress and mental anguish $45,000.00
Disfigurement $4,000.00
Permanent disability $4,000.00

As with Mr. LaGrappe, Mrs. La-Grappe had not been retired long when the accident occurred, and it had a severe impact on her. Both of her shoulders were |22broken in the accident which necessitated that both of her arms be in slings. Her arms had to be immobilized in slings, and she could not use either of them for three months. She needed assistance with essentially every activity that required the use of one or both of her arms, e.g. turning the page in a book, rising from a chair, eating, and all personal hygiene. Additionally, she developed capsulitis in both shoulders that resulted in her shoulders being “frozen” and immovable. The condition required that her shoulders be manually manipulated by her orthopedic surgeon to release the adhesion that had developed to free them to move. Mrs. LaGrappe explained that although the procedure was performed under anesthesia, the manipulation caused her to suffer great pain for a number of days following the procedure.

Mrs. LaGrappe attended approximately seventy-nine physical therapy sessions. She explained that during physical therapy she often endured pain when the therapist physically moved her arms into positions that she could not move them into on her own to restore their free, natural movement to pre-accident status. She also described her daily routine of at-home physical therapy and how it also caused her pain. She'performed her at-home physical therapy three times every day that she did not go to physical therapy and two times every day that she went to physical therapy-

During her convalescence, Mrs. La-Grappe was unable to participate in any of her pre-accident activities, such as, teaching Sunday school, tutoring at a local school, and, most importantly, playing with her grandchildren. She could not even read her Bible without assistance. One of the activities she missed most was being able to pick up and hold her youngest grandchild, who was only two years of age when the accident occurred.

laiMrs. LaGrappe worked hard and diligently at her physical therapy; however, she was unable to regain full use of her right arm. As a result, her activities continue to be limited due the injuries she sustained in the accident. Her right shoulder now droops. Because she is right handed, Mrs. LaGrappe has to adjust how she does many activities that came naturally before the accident, like reaching for or picking up items she frequently uses in her kitchen. She moved many items stored in her kitchen cabinets to lower shelves to accommodate her limitations. Mrs. LaGrappe explained that although her right arm limits her ability todo some things, she finds a way to perform tasks or activities that she wants to perform. For example, opening a heavy door now requires that she initially open the door with her hand or arm, but she must complete opening the door by using her foot and leg due to the limited strength in her arm. She also described the difficulties she now has with household chores, like moving wet laundry from her washer to her dryer and folding clothes, due to the restricted use of her right arm.

The jury heard Mrs. LaGrappe detail the pain she suffered as a result of her injuries and recovery and the lifelong limitations she must now endure as a result of those injuries. The jury determined the genuineness of her testimony about her injuries, her suffering, the limitations they have caused, and how they affect her. Based on her testimony, the jury judged how her injuries are likely to affect her in the future. In light of Mrs. LaGrappe’s age of sixty-one years when the accident occurred, her life expectancy of approximately twenty years, her pre-accident abilities and activities, and the restrictions and limitations caused by her injuries, we cannot say the jury abused its vast discretion in awarding Mrs. LaGrappe $280,000.00 in past and future pain and suffering and past and present loss of enjoyment of life.

| ⅞/The evidence showed that during the aftermath of the accident Mrs. LaGrappe was very disoriented and upset. She cried and was concerned about Mr. LaGrappe. She thought one of their grandchildren was in the vehicle when the accident occurred, and her daughter had to tell her over and over, that the child was not with them, to console her fears. The extent of the emotional distress and mental anguish the accident caused Mrs. La-Grappe is evidenced by the fact that she will no longer drive on 1-210, regardless of the inconvenience that causes her when traveling from her home in Sulphur to wherever her destination maybe. For these reasons, we find no abuse of discretion in the jury’s award of $45,000.00 for past and present emotional distress and mental anguish.

Mrs. LaGrappe suffered an eight centimeter laceration on her scalp that required twelve staples. Mr. LaGrappe testified that Mrs. LaGrappe was very concerned about the laceration and how it affected styling her hair.' He also explained that since he styled her hair until she regained the use of her arms, he had a hard time trying to style her hair to hide the laceration in a way that pleased her. For these reasons, we find no abuse of discretion in the jury’s award of $4,000.00 for disfigurement. Nor do we find the jury’s award of $4,000.00 for permanent disability to be an abuse of discretion. Mrs. LaGrappe’s right collar bone did not heal properly, and her shoulder now droops which has resulted in decreased strength and range of motion in that shoulder.

DISPOSITION

For the reasons discussed herein, the judgment in favor of Wayne and Jean La-Grappe against Sheriff Tony Mancuso, in his official capacity as the Sheriff of Calca-sieu Parish, Louisiana, and ACE American Insurance Company is affirmed. | asCosts of $36,247.21 are assessed to Sheriff Man-cuso and ACE American Insurance Company.

AFFIRMED.