author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Clayton J. ROBINSON, Appellant.
    No. 44,676-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Kenota L. Pulliam, Joseph William Bailey, Shanté Ya Tease Reece Wells, for Appellant.
    Richard Zemry Johnson, Jr., District Attorney, Brian Harrist Barber, Ron Christopher Stamps, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   DREW, J.

11 Clayton J. Robinson was convicted of distribution of cocaine, a Schedule II controlled dangerous substance (“CDS”), and conspiracy to commit a CDS offense. He was sentenced to 25 years at hard labor for distribution and 10 years at hard labor for conspiracy, with the sentences to run concurrently. He appeals. We affirm.

FACTS

The defendant was charged by bill of information with one count of distribution of a Schedule II CDS (cocaine) and one count of conspiracy to commit a CDS offense. The offenses took place in DeSoto Parish on February 2, 2007.

At the jury trial, three witnesses testified for the state: Randall Robillard, Michael Jerome Pitts, and Sergeant Keith Banta.

Robillard, a forensic chemist at the North Louisiana Criminalistics Laboratory, testified as an expert that the substance submitted to him in this case by the DeSoto Parish Sheriffs Department amounted to 1.9 grams of crack cocaine. The state and the defendant stipulated to the chain of custody.

Pitts, who was serving time in Texas on a burglary charge, testified to working with the DeSoto Parish Sheriffs Office in February 2007 to purchase drugs for compensation of $140 per day. Pitts testified that he bought a rock of crack cocaine from Robinson in DeSoto Parish, put the rock in a small Ziploc bag, and turned it over to Sgt. Banta of the Sheriffs Office; Pitts identified Robinson in the courtroom. According to Pitts, he was promised nothing and was receiving no benefit for his testimony. On | ^cross-examination, Pitts indicated that he had worked with Banta on probably 70 or 80 cases in the past.

Sgt. Banta was the state’s last witness. He testified that in February 2007, he was working as a narcotics officer and he approached Pitts, with whom he had worked before, about buying drugs for him. Ban-ta indicated that Pitts entered into an agreement to work in an undercover capacity for $140 per day to buy street-level narcotics.

On this occasion, Pitts was to work in the Logansport area, from which numerous complaints and calls had been received. Sgt. Banta gave the informant $100 to purchase drugs and searched him and his vehicle before the buy, to ensure there was no other contraband available to his snitch. Pitts’ vehicle also was wired with both audio and video recording devices for safety and evidence-gathering purposes.

Sgt. Banta further testified that:

• a video showed Robinson approach the driver’s side window and enter into some type of transaction;
• he did not need help identifying Robinson in the video;
• Robinson was seated and identified in the courtroom;
• after the transaction Pitts returned to him with an evidence bag containing one large rock of crack cocaine;
• through training and experience he could look at it and tell it was crack, but in order to make a definitive conclusion, he conducted a field test before sending it to the crime lab;
• the field test was positive for the presence of cocaine; and
• the DVD entered into evidence had recorded the entire transaction, which was then shown to the jury.

|sAt the end of Sgt. Banta’s testimony, the state and the defense rested. The jury entered a verdict of guilty on both charges.

At the sentencing hearing, the only witness was the Reverend Roderick Kirken-doll, who testified that he had been visiting with Robinson for about a year, and that Robinson was “a wonderful young man” who had a wonderful family. Rev. Kirken-doll claimed to have observed a change in Robinson in wanting to be a better citizen. The pastor asked the court to show leniency to Robinson.

The trial court noted that:

• Robinson had sold $60 worth of crack cocaine;
• the jury had convicted him on both counts;
• he had a troubling criminal history, being “at least a fourth felony offender, depending on whether you count these convictions in the instant case as one;”
• he had two prior convictions for possession of a Schedule II CDS and one prior conviction for possession of a Schedule II CDS with intent to distribute;
• a habitual offender bill had been filed, but without adjudication at that point;
• the PSI as well as Rev. Kirkendoll’s testimony showed Robinson had a caring family, but the record also reflected Robinson had continued to engage in criminal behavior for many years; and
• the sentence (recited above) would be appropriate.

DISCUSSION

Sufficiency

The defense argues the video presented at trial does not show any transaction involving hand-to-hand illicit drug sales and no specific transaction was ever observed by law enforcement conducting the |4surveillance. Thus, the defense argues that the record contains insufficient evidence to sustain the conviction. The defense also argues that Pitts gave testimony solely to have “his offenses with the state of Louisiana dismissed.”

The state argues that Sgt. Banta identified Robinson on the video and that Pitts also identified Robinson. The state also argues that the defense never produced any evidence indicating that Pitts’ testimony was based upon any immunity.

Our law on review of a conviction for sufficiency of the evidence is well settled.

|BIn this case, the evidence is easily sufficient to support the convictions. The jury had the testimony of Pitts as to buying the cocaine from Robinson, a video of the transaction, and the testimony of Sgt. Ban-ta, both identifying Robinson on the video and relating the pre- and post-buy evidence, including Pitts’ returning with the rock of crack cocaine. Additionally, the state presented the testimony of Robillard, from the crime lab, showing the substance was cocaine. Thus, there was plenty of evidence of the transaction even if one could not actually see the passing of the cocaine from Robinson to Pitts. Furthermore, the state is correct in arguing that the defense failed to show that Pitts’ testimony was based upon any immunity. This assignment of error is therefore without merit.

Recusal and Failure to Request Recusal

These two assignments overlap and are addressed together. The defense argues that the presiding judge had been a former prosecutor with the DeSoto Parish District Attorney’s Office and had prosecuted Robinson for unrelated crimes. For this reason, the defense argues not only that the trial judge committed error in failing to reallot the case to another judge, but also that defense counsel rendered ineffective assistance of counsel by failing to file a motion to recuse based on possible bias.

The state argues that the judge is presumed to be impartial and that La. C. Cr. P. art. 671 does not require recusal merely on the basis of a general allegation that he may be biased because he may have previously prosecuted the appellant. The state points out that Robinson’s counsel produced no ^evidence to support allegations that the trial judge was biased or prejudiced and that a review of the trial record gives no hint of bias by the trial judge.

Our law on recusals is well settled.

There is nothing in this record reflecting that the trial judge had prosecuted Robinson in the past, and, in any event, the record does not indicate that the trial court was biased in any way. Furthermore, as was true in State v. Mills, 505 So.2d 933 (La.App. 2d Cir.1987), writ denied, 508 So.2d 65 (La.1987), all issues of fact pertaining to guilt or innocence were tried by a jury and not the trial judge. Accordingly, these assignments of error lack merit.

| rjExcessiveness

The defense argues that the trial court did not state for the record the considerations taken into account and the factual basis underpinning the imposition of these sentences, as required La. C. Cr. P. art. 894.1. Furthermore, the defense argues that Robinson was sentenced according to a PSI which was inaccurate in that it indicated Robinson was 46 years old when he was 36 years old.

Although Robinson was found guilty of distribution and the rock of crack at issue weighed 1.9 grams, the defense states that the 25-year sentence was excessive “for allegedly possessing less than a gram of cocaine” and notes that Robinson comes from a good family and “has garnered the support of many citizens in the community.” The defense cites State v. Miller, 587 So.2d 125 (La.App. 2d Cir.1991), in which this court vacated a 10-year sentence where the defendant sold a small amount of crack cocaine for $60.

The state argues that the only issue raised regarding the PSI being inaccurate is the appellant’s date of birth and that no objection was raised regarding the accuracy of the PSI as to criminal history which shows that the defendant technically is a fifth felony offender of crimes involving drug distribution. The state distinguishes Miller, supra, on the basis that Miller was a first-time offender, whereas Robinson is a fifth felony offender.

Our law on review of sentences for excessiveness is well settled.

lsThe trial court knew the correct age of Robinson before sentencing. It considered the information in the PSI, including Robinson’s significant criminal history, noting that Robinson had a caring family. Thus, the record shows that the trial court adequately articulated the factual basis for the |flsentences imposed, and the record reflects an adequate factual basis in any event. Furthermore, considering the fact that this defendant is effectively a fifth felony offender, with repeated convictions involving Schedule II drugs, this case is easily distinguishable from Miller, supra, which involved a first felony offender. The sentences imposed upon Robinson cannot be said to be grossly out of proportion to the seriousness of the offenses here. The sentences represent a just disposition of this lifetime criminal. The sentences are not merely a purposeless and needless infliction of pain and suffering. Accordingly, this assignment is without merit.

DECREE

The defendant’s convictions and sentences are AFFIRMED.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir. 1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App. 2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App. 2d Cir. 1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35. This is equally applicable to the testimony of undercover drug agents. State v. Anderson, 30,306 (La.App. 2d Cir. 1/21/98), 706 So.2d 598.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

      . A trial judge is presumed to be impartial. The burden is on the defendant to prove otherwise. The grounds for recusal based on bias "must be of a substantial nature.” State v. Branch, 30,733, p. 13 (La.App. 2d Cir.7/6/98), 714 So.2d 1277, 1285-6, writ denied, 98-2359 (La.1/8/99), 734 So.2d 1227. One seeking to recuse a judge must allege or provide a factual basis for his allegation of bias or prejudice and may not simply make conclusory allegations. State v. Jackson, 30,473 (La.App. 2d Cir.5/13/98), 714 So.2d 87, writ denied, 98-1778 (La.11/6/98), 727 So.2d 444. La. C. Cr. P. art. 671 does not require the recusal of a trial judge simply on the basis that the judge knew the victim or the victim’s family. State v. Gatti, 39,833 (La.App. 2d Cir. 10/13/05), 914 So.2d 74, writ denied, OS-2394 (La.4/17/06), 926 So.2d 511, citing State v. Page, 02-689 (La.App. 5th Cir.1/28/03), 837 So.2d 165, writ denied, 03-0951 (La.11/7/03), 857 So.2d 517.
      In State v. Mills, 505 So.2d 933 (La.App. 2d Cir. 1987), writ denied, 508 So.2d 65 (La.1987), this court rejected the defendant’s contention that the trial court erred in denying the motion to recuse the trial judge, Honorable Douglas H. Allen, on the ground he was an assistant district attorney and previously prosecuted the defendant on an aggravated rape charge in 1980. This court noted that a trial judge is presumed to be impartial and that for an accused to be entitled to the recu-sation on the grounds of bias, prejudice and personal interest, such bias, prejudice and personal interest must be of a substantial nature based on more than mere conclusionary allegations. This court also noted that nothing in the record supported the conclusion that the judge was biased or prejudiced and that all issues of fact pertaining to guilt or innocence were tried by a jury and not the trial judge.
      This court's decision in Mills, supra, was cited with approval by the Louisiana Supreme Court in State v. Connolly, 06-0540, p. 5 (La.6/2/06), 930 So.2d 951, 954, in which the court stated that it had not required a trial judge to recuse himself from a case "on grounds that he had previously prosecuted the defendant in a prior, unrelated case, and therefore might harbor some bias or prejudice against the defendant for that reason alone.”

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court 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, 07-0805 (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. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App. 2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant's personal histoiy (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, 08-2341 (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, 07-0144 (La.9/28/07), 964 So.2d 351.
      Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. Stale v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey,
        623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.
      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, 08-1381 (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, 08-0175 (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. Doyle, 43,438 (La.App. 2d Cir.8/13/08), 989 So.2d 864.
      The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.


source: Caselaw Access Project

author: DREW, JJ.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Courtney Rikel BURTON, Appellant.
    No. 44,670-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Louisiana Appellate Project by Michael H. Idoyaga, Steven Young, for Appellant.
    Jerry L. Jones, District Attorney, Ellen R. Eade, George Daniel Ross, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   DREW, JJ.

11 Defendant, Courtney Rikel Burton, pled guilty to aggravated battery and was sentenced to serve 10 years of imprisonment at hard labor, consecutive with any other sentence. He now appeals, alleging excessiveness. We affirm.

The record shows that on December 10, 2007, Burton fired shots at several men. The victim was hit by shotgun pellets in his leg and thigh.

Burton was originally charged with attempted second degree murder, which could have resulted in a 50-year hard labor sentence, without benefits. La. R.S. 14:27 and 14:30.1. As a result of a plea bargain agreement, Burton pled guilty to the lesser charge of aggravated battery, La. R.S. 14:34.

At sentencing, the trial court discussed the facts of the case at length and Burton’s criminal record in detail. The trial court acknowledged Burton’s responsibilities as a new father, but observed that the pattern of his life of violence strongly suggests that this behavior is likely to recur. No optional fine was imposed. Burton’s timely filed motion to reconsider sentence was denied. This appeal followed.

The defense assigns as error that Burton’s sentence is excessive in light of the mitigating factors presented in the presen-tence investigation.

Our law on review of sentences for excessiveness is well settled.

|aThe trial court adequately discussed the facts of the case and stated that all of the information presented in the presen-tence investigation report was considered. The court acknowledged letters from family members and the fact that Burton has a one-year-old son. However, the court found that Burton should receive the maximum prison sentence.

We do not find that this sentence is grossly disproportionate to the severity of the offense nor is it shocking to the sense of justice. Burton received a significant reduction in potential exposure to confinement| ..¡through his plea bargain agreement. This assignment is therefore without merit.

For the foregoing reasons, the conviction and sentence are AFFIRMED.

      . Defendant was arrested four times in 2007, with each incident involving violence.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court 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. Landos, 419 So.2d 475 (La. 1982); State v. Swayzer, 43,350 (La. App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. 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, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v.

        Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
      A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir. 1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Michael Cornell TIMMONS, Appellant.
    No. 44,702-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      W. Jarred Franklin, for Appellant.
    Charles R. Scott, II, District Attorney, Brady O’Callaghan, Catherine M. Estopi-nal, Assistant District Attorneys, for Ap-pellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

|]The defendant, Michael Cornell Tim-mons, was convicted of felony theft and subsequently adjudicated a fourth felony offender. On appeal, this court vacated the habitual offender adjudication based on the state’s failure to prove the absence of a cleansing period and remanded the matter for further proceedings. State v. Timmons, 43,602 (La.App.2d Cir.10/22/08), 998 So.2d 145. On remand, the defendant was again adjudicated a fourth felony offender and sentenced to 20 years’ imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant appeals his habitual offender adjudication. For the following reasons, we affirm the defendant’s adjudication as a fourth felony offender and his sentence.

FACTS

In November 2003, the defendant was charged by bill of information with one count of felony theft allegedly committed on October 14, 2003, in violation of LSA-R.S. 14:67. As part of a plea agreement, the defendant pled guilty to the charge on July 14, 2004, in exchange for an agreed sentence of eight years at hard labor and the state’s agreement not to file an habitual offender bill. The agreement was conditioned on the defendant appearing for his sentencing two weeks later. However, the defendant did not appear at his sentencing and in August 2007, the state filed an habitual offender bill charging the defendant as a fourth felony offender.

At the November 2007 habitual offender hearing, the state introduced the testimony of Corporal Tommy Rachal, who was accepted as an expert in the field of fingerprint identification and analysis. Corporal Rachal testified 12that he took defendant’s fingerprints in open court that day and had made a comparison to the fingerprints taken of the defendant in the following matters: “State of Louisiana v. Michael Deangelo Timmons,” docket number 234,-164 in the Parish of Rapides; “State of Louisiana v. Michael W. Timmons,” docket number 148,613 in the Parish of Caddo; and “State of Louisiana v. Michael Timmons,” docket number 138,549 in the Parish of Caddo. Corporal Rachal opined that defendant in this case is the same individual who was convicted in each of the three aforementioned cases.

The state also introduced as exhibits the bills of information, court minutes and fingerprints taken from the defendant in each of the three prior convictions. The exhibits reflect that in docket number 234,164, the offense immediately preceding the instant offense, the defendant was convicted by a jury of simple burglary of an inhabited dwelling on June 16, 1993, and was sentenced to serve 15 years at hard labor without the benefit of parole, probation or suspension of sentence. The defendant presented no witnesses at the hearing and submitted the matter on the evidence. The court adjudicated the defendant a fourth felony offender and subsequently sentenced him to serve 20 years at hard labor without the benefit of probation or suspension of sentence.

The defendant appealed and in pro se assignments of error contested his adjudication as a fourth felony offender on the basis that he was not advised of his right to remain silent and that the state failed to prove that the 10-year cleansing period between his 1993 conviction for burglary of an inhabited dwelling and the instant offense had not expired. Finding merit as |sto the latter assignment, this court vacated the habitual offender adjudication on the basis that the state had not established the date when the defendant was actually released from state custody and, thus, failed to prove that the cleansing period between adjacent offenses had not expired. State v. Timmons, supra.

On remand, the trial court held a new habitual offender hearing and at the request of the prosecutor took judicial notice of the evidence introduced during the previous hearing. Additionally, the state introduced into evidence a “pen pack” indicating that on June 4, 2002, inmate Michael D. Timmons was released from incarceration in connection with his conviction under Rapides Parish docket number 234,164. The defendant objected to the sufficiency of the evidence on the basis that he “ha[d] no knowledge of what [the pen pack] is and what it stands for.” Statements made by defense counsel indicated that defendant believed the state should be required to re-submit all of the evidence necessary for an habitual offender adjudication. Noting these objections for the record, the trial court concluded that the state had satisfied the requirements under LSA-R.S. 15:529.1 to prove the defendant’s status as a fourth felony offender in light of the evidence adduced at the earlier habitual offender hearing and the supplemental evidence submitted by the state at the subsequent hearing. Defendant was then resentenced to serve 20 years at hard labor without the benefit of probation or suspension of sentence. This appeal followed.

DISCUSSION

The defendant contends the trial court erred in failing to conduct a | complete habitual offender hearing on remand. Defendant argues that he was deprived of the opportunity to challenge alleged irregularities in the pen pak and to raise the issue that the documents produced by the state concerning the predicate offense in Rapides Parish refer to defendant as Michael Deangelo Timmons, while the documents regarding the instant conviction identify the defendant as Michael Cornell Timmons.

When a defendant denies prior convictions in habitual offender proceedings, the burden is on the state to prove the existence of the prior convictions and that defendant was the same person who committed those offenses. State v. Henry, 42,416 (La.App.2d Cir.9/19/07), 966 So.2d 692. The 10-year cleansing period under the habitual offender statute is determined by measuring the period between the date that a defendant is actually discharged from state custody and the commission of the underlying felony. State v. Timmons, supra. The trial judge has the right to take judicial cognizance of any prior proceeding over which he presided as part of the same case. State v. Muhammad, 03-2991 (La.5/25/04), 875 So.2d 45, fn. 9; State v. Jones, 332 So.2d 461 (La.1976).

In the present case, the trial court conducted a contradictory hearing on remand and allowed the state to rely in part on the evidence introduced at the first hearing. Contrary to his contention on appeal, the defendant was afforded an opportunity at the second hearing to present any evidence in his defense, but opted only to object to the contents of the pen pack. Given that the same judge presided over both multiple offender hearings, the court was within its discretion to take cognizance of the evidence introduced at the | <-,prior hearing. Furthermore, since the procedure did not preclude the defendant’s ability to present evidence, he has not demonstrated that he was deprived of the opportunity to challenge any alleged irregularities in the state’s evidence. Nor has defendant shown that allowing the state to rely on evidence previously submitted to the court before the same presiding judge was inconsistent with his right to a contradictory hearing.

In addition, there is no evidence to support defendant’s allegation that he was precluded from addressing the fact that different middle names were listed for defendant in the predicate offense and in this case. On several occasions after the state presented its supplementary evidence in the form of the pen pack, the trial court asked defense counsel and the defendant if they had anything further. In response, neither defense counsel nor defendant expressed the desire to call witnesses or submit any evidence. Accordingly, there is no showing that the procedure employed precluded the defendant from rebutting the evidence presented in support of the fourth felony offender adjudication. The assignment of error lacks merit.

The defendant contends the trial court erred in failing to advise him of his statutory rights relating to a multiple offender hearing. Defendant argues that his adjudication as a fourth felony offender should be reversed because he was not advised of the specific allegations in the habitual offender bill, his right to a hearing or the right to remain silent.

LSA-R.S. 15:529.1(D)(l)(a) requires that the defendant be advised of the specific allegations contained in the habitual offender bill of information and of his right to a hearing at which the state must prove its case. There is |nan implicit requirement that the defendant be advised of his constitutional right to remain silent. Generally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error where the defendant’s habitual offender status is established by competent evidence offered by the state at a hearing, rather than by admission of the defendant. However, when the guilt of the defendant is proven by his own admission to the habitual offender bill of information, without having been informed of his right to a hearing or his right to remain silent by either the trial court or his attorney, there is reversible error. State v. Mason, 37,486 (La.App.2d Cir.12/10/03), 862 So.2d 1077.

This court has previously held that the trial court committed harmless error by failing to read the habitual offender bill of information in court and failing to inform the defendant of his right to remain silent at the habitual offender hearing, where the defendant exercised his right to remain silent, he was provided with an evidentiary hearing, and was aware of the convictions being used against him. State v. Odom, 34,054 (La.App.2d Cir.11/1/00), 772 So.2d 281.

A review of the record demonstrates that on August 7, 2007, the defendant waived formal arraignment on the habitual offender bill, giving up his right to advice of the specific allegations contained in the habitual offender bill of information. Moreover, any error in the advice of habitual offender rights is harmless in this case because the defendant did not plead guilty or stipulate to the charges of the habitual offender bill. Instead, a 17multiple offender hearing was conducted, wherein the state actually proved the truth of the allegations, the defendant’s identity and, as required by this court’s remand, the absence of any cleansing period between the most recent predicate conviction and the commission of the instant offense. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the defendant’s adjudication as a fourth felony offender and his sentence are affirmed.

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Franklin C. REDFEARN, Appellant.
    No. 44,709-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Fred R. McGaha, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   MOORE, J.

[tA grand jury indicted the defendant, Franklin C. Redfearn, for aggravated rape' (La. R.S. 14:42) and aggravated incest (La. R.S. 14:78.1). After trial, the jury returned a responsive verdict to the rape charge of guilty of sexual battery (La. R.S. 14:43.1) and a guilty verdict on the aggravated incest charge. The court sentenced Redfearn to concurrent terras of 40 years for sexual battery, including 30 years without benefits and 25 years without benefits for aggravated incest. The defendant filed this appeal claiming insufficient evidence to convict, excessive sentences, and the erroneous failure to sustain one of his challenges for cause.

Our initial review of the record indicated a possible double jeopardy issue on the face of the record. Accordingly, we issued an order directing the state and counsel for Redfearn to submit briefs regarding whether the instant convictions constitute a violation against double jeopardy, whether it constitutes error patent, and what remedy is appropriate. The parties timely submitted their briefs.

After review of all issues, we affirm the convictions and sentences.

FACTS

After the Redfearn family returned home from a boat outing on a nearby lake, Redfearn, asked his wife, Stacey, to prepare something to eat. Meanwhile, he and the three children went into the master bedroom to watch television. While she was preparing the meal, Stacey noticed that the house had become unusually quiet. She went to the master bedroom door, which was closed. When she opened the door, she saw her husband on top of their five-year-old daughter under the bed sheets. Redfearn immediately 12slipped off the girl and kept his back turned to the mother, as she pulled the top sheet off and discovered that both he and the child were naked. The child was on her back with her legs open. Redfearn left the room.

Stacey asked her daughter what happened. The daughter mimicked the movement of sexual intercourse. One of their sons said that their father was doing something nasty.

Stacey confronted the defendant in their living room; he claimed that nothing had occurred. After an argument, she left the home with the children and sought help from a family friend, who put her in touch with the authorities. A forensic interviewer subsequently interviewed the children. The child was also medically examined.

Police subsequently arrested Redfearn, and he was indicted by a grand jury for aggravated rape and aggravated incest. After trial by jury, the applicant was convicted of sexual battery and aggravated incest.

This appeal followed.

Discussion

Sufficiency of Evidence

By his first assignment of error, Red-fearn argues that the state failed to present sufficient evidence to support the verdicts of sexual battery and aggravated incest. He contends that there are internal contradictions and irreconcilable conflicts in the evidence and no physical evidence supporting either of the verdicts other than minor abrasions of the victim’s vagina. He argues that the latter could have been caused by the victim’s life jacket that she wore during a trip to the lake earlier in the day. The sole basis of the ^state’s case, he argues, was the testimony of the victim’s mother, the victim and her two brothers. Finally, Redfearn contends that there was no evidence of any prior disharmony in the family, sexually inappropriate behavior or criminal acts on the part of the defendant. Thus, he contends that the testimony is suspicious enough to raise reasonable doubt concerning his guilt of sexual battery and aggravated incest.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

14Thus, in order for the defendant’s convictions to be upheld, the record must establish that the State proved beyond a reasonable doubt all the essential elements of sexual battery and aggravated incest.

La. R.S. 14:42.1 defines sexual battery as follows:

A. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
B. Lack of knowledge of the victim’s age shall not be a defense. However, where the victim is under seventeen, normal medical treatment or normal sanitary care of an infant shall not be construed as an offense under the provisions of this Section.

La. R.S. 14:78.1 defines aggravated incest as follows:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
|fi(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.
C. Consent is not a defense under this Section.

Trial Evidence

Stacey Redfearn, the defendant’s wife, testified that the victim was born to them on October 23, 2001, making her five years old at the time of the offense.

Stacey testified that after attending church and having lunch with her parents, she met her husband for a day of boating. When she met her husband, she noticed that his speech was slightly slurred and that he had a frozen drink in the cup holder. She testified that he took prescription drugs, Xanax and Lortab, for nerves and back pain. Returning home that evening, the victim rode with her mother, and the two other children, boys older than the victim, rode home with their father.

Once home, at Redfearn’s, Stacey began cooking something to eat. Although she heard her daughter say “Daddy, you are naked,” she thought nothing of it, because nudity was not unusual in the household. After 15 minutes or so, when her house became noticeably quiet, she went to the bedroom and opened the closed door to find her husband lying on top of the five-year old. She pulled the covers off them and discovered that both were naked. She asked what was going on while the defendant pulled away from the child, covered himself and left the room. Stacey stated that the girl “moved her pelvic back and forth,” and she demonstrated this movement to the jury. She had also noticed redness in the girl’s genital area. When she | (¡asked the boys what had happened, the older, eight-year old boy stated: “He was doing something nasty.”

Stacey confronted her husband in the living room; he was still naked and she touched his penis, which was wet. She testified that he had had time to wash himself. The couple argued; when Stacey threatened to leave with the children, the defendant threatened “I’ll kill you before you leave.”

Redfearn then placed the victim in Stacey’s lap, saying, “Tell mama that daddy didn’t do anything.” The victim was crying and shook her head; as Redfearn walked down the hallway, the victim told Stacey in tears, “I told him that it burned.” Redfearn then left the house. According to the victim, he said he was going to see his cousin where “the cops can’t — no cops can’t find us.”

Jessica Bryant, a forensic interviewer with the Children’s Advocacy Center, testified about her qualifications and training, about the process of interviewing children, and about her interviews with the Red-fearn children. Her testimony supported the admission of the DVD recordings of the interviews of the children.

The trial court had previously determined that the children were competent witnesses and the forensic interviews were played for the jury. All three children testified in an adjoining room outside the presence of the defendant and the jury, and then shown in court via closed circuit telecast. One of Redfearn’s attorneys was in the room with the children and one in the courtroom. The children were questioned by the state and cross-examined by counsel.

|7The victim testified that both she and her father were naked while they were in bed together. She testified that her daddy’s “weenie” was sticking up. She described it as slippery and thought that he had soap on it. She stated that the defendant had touched her “private” with it and it hurt. More specifically, she said it burned. She said it hurt “inside and stuff.” She also stated that he touched her genitals with his finger. She stated that while this was happening, her brothers looked under the covers. She also stated that she tried to push her father off and called for her mother.

The victim’s nine-year-old brother, G.R., testified that he and his brother were also in the room with the their father and sister. He stated that he looked under the sheet twice. He saw his father “rubbing” his “weenie” while his sister was lying on top of him. He saw his father “rubbing” his “weenie” on his sister’s “booty,” and he was “kind of wiggling” his body. GR stated that his father was talking “weird” earlier that day, and he attributed it to drinking. He said his father had never talked like that before and had never before done what he did to his sister that day.

P.R., the victim’s eight-year-old brother, testified that he was in his parents’ bed along with his brother, sister and father. He said he looked under the sheets five times, and the last time he looked, he saw his father “rubbing” his “private” on his “sister’s private.” He described the motion as “going up and down.” He said he was the last (of the two boys) to look under the covers, and he saw his father on top of his sister. He heard his sister call “mama.” About five minutes later, he said, his mother came in.

|RThe testimony of police detective Darryl Foster and forensic evidence analyst Lauren Arihood elaborated on the course of the investigation. Arihood testified that no blood was found on the bed in which the crimes occurred, and the presence of bodily fluids or DNA evidence on the bed sheets would not have been unusual (or probative of anything) since the defendant and his wife had sexual relations in the bed the night before the incident.

Dr. Meade O’Boyle, a physician and expert in the field of child sexual abuse, testified that after a colposcopic examination of the child, she determined that, although the victim’s hymen was intact, there were abrasions in the posterior four-chette (the area between the vagina and the anus) and in the area of the hymenal ring. These abrasions are inside the labia.

Redfearn testified in his own defense. He admitted to using prescription Xanax for his nerves, Lortab for neck and back pain due to an injury, and to drinking a Margarita or two while boating on the day of the incident. He testified that his wife merely saw him moving the child off of his chest, where she had gone to sleep, and misinterpreted his actions. He believed that the cause of the child’s redness in her vaginal area was the new life jacket that she had worn that day at the lake. He denied that he did anything inappropriate with his daughter and he specifically denied the truth of the testimony of the children that his penis was erect while they were in the bed.

|9To obtain a conviction for sexual battery, the state was required to prove that the defendant intentionally touched the victim’s anus or genitals with an instrument or any part of his body or that the victim touched his anus or genitals with an instrument or any part of her body. The act must be performed without the victim’s consent, or that the victim was under the age of 15 and at least 3 years younger than the offender. The statute also requires that the victim cannot be the offender’s spouse.

Our review of the trial evidence above shows that these elements were clearly proven. Stacey Redfearn’s testimony established the age of the victim and that the victim was not the defendant’s spouse. She also witnessed what appeared to be very inappropriate behavior in the master bedroom. Both the trial testimony and forensic interviews clearly establish that the defendant was engaged in touching the victim’s vaginal area with his finger and with his penis. Dr. Meade O’Boyle’s examination was consistent with sexual activity on the child. We conclude that the evidence was sufficient beyond a reasonable doubt to sustain the conviction for sexual battery.

To obtain a conviction for aggravated incest as defined above, the state was required to prove that the defendant engaged in at least one of the listed prohibited sexual acts with a relative under the age of 18 (in this case, under age 13) who he knew was related to him by blood, marriage or adoption. The relative must be either a child, grandchild, brother, sister, whole or half, or an uncle, aunt, nephew or niece. The indictment also charged that the victim was under age 13 to bring the prosecution within |1ftthat part of the statute that imposes a more severe penalty when the victim is under the age of 13.

There is no dispute regarding the biological parent-child relationship of the defendant and the victim, and the victim was age five. The evidence is clearly sufficient in this regard.

Regarding the “prohibited act” requirement of aggravated incest, in this instance, the indictment charged the defendant with engaging in each of the listed prohibited acts under the statute except “sexual intercourse.” La. C. Cr. P. art. 480 permits such conjunctive charging “when an offense may be committed by doing one or more of several acts.” “[Pjroof of any one of the acts ... will support a conviction.” Id. However, in its jury instructions, the court specifically defined only the prohibited acts of sexual battery, molestation of a juvenile, and indecent behavior with juveniles, and these were given by reference to the court’s prior definitions of these crimes when listing the responsive verdicts to aggravated rape. Therefore, the prohibited acts for the aggravated incest conviction in this case involved one or more of these three prohibited acts.

We have already concluded that the evidence was sufficient to support the sexual battery conviction arising out of this incident; however, the state contends that the prohibited act for which the defendant was convicted of aggravated incest was the additional evidence of either molestation of a juvenile or indecent behavior with juveniles.

Molestation of a juvenile is defined in La. R.S. 14:81.2(A). Under this statute, the state must prove beyond a reasonable doubt that: (ljjndefendant was over the age of seventeen; (2) the accused committed a lewd or lascivious act upon the person or in the presence of a child under the age of seventeen; (3) the accused was more than two years older than the victim; (4) the accused had the specific intent to arouse or gratify either the child’s sexual desires or his own sexual desires; and (5) the accused committed the lewd or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. State v. Leblanc, 506 So.2d 1197 (La.1987); State v. Ellis, 38,740 (La.App. 2 Cir. 8/18/04), 880 So.2d 214.

A “lewd or lascivious act,” for purposes of molestation of a juvenile, is one which tends to excite lust and to deprave morals with respect to sexual relations and which is obscene, indecent, and related to sexual impurity or incontinence carried on in wanton manner. State v. Holstead, 354 So.2d 493 (La.1977); State v. Cloud, 2006-877 (La.App. 3 Cir. 12/13/06), 946 So.2d 265, writ denied, 2007-0086 (La.9/21/07), 964 So.2d 331. This definition aptly describes the defendant’s conduct: he entered the bed with his daughter and sons, all of whom were naked. All of the children indicated that the defendant’s penis was erect, i.e., “sticking up.” The interview and testimony of the older boy, G.R., and the victim herself is consistent with Redfearn masturbating himself and rubbing his penis on the child’s buttocks and genitals and trying to achieve penetration. Furthermore, the victim stated that she saw what she thought was soap on the defendant’s penis because it was “slippery” and described it as having a | [2bubble on it and it popped and then went down. These descriptions are indicative of sexual arousal and prove an “intent to arouse or to satisfy the sexual desires of ... the offender.”

Finally, we conclude that there was sufficient evidence to show that the defendant both used force and his position as the child’s father to commit the lewd and lascivious offenses against his daughter. The victim testified that she tried to push her father off and called for her mother. This testimony was corroborated by the younger sibling. Also, one of the boys testified that he was afraid to go and tell his mother what was happening at the time.

If the evidence was sufficient to show beyond a reasonable doubt that the defendant engaged in molestation of a juvenile, then the evidence was sufficient to show that he committed the prohibited act of indecent behavior with a juvenile. La. R.S. 14:81(A) provides that in order to convict a defendant of indecent behavior with a juvenile, the state must prove that the defendant: (1) committed any lewd or lascivious act; (2) upon the person or in the presence of; (3) any child under the age of 17; (4) was over the age of 17 and more than 2 years older than the victim; and (5) had the intention of arousing or gratifying the sexual desires of either person. State v. Jones, 34,863 (La.App. 2 Cir. 8/22/01), 794 So.2d 107, writ denied, 2001-2648 (La.8/30/02), 823 So.2d 938. This crime is identical to molestation of a juvenile, La. R.S. 14:81.2, except that Section 81.2 requires the lewd or lascivious act be committed by the use of force, violence, duress, menace, | ^psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of control or supervision over the juvenile.

For these reasons, we conclude that the evidence was sufficient beyond a reasonable doubt to convict the defendant of aggravated incest.

Excessive sentence

By his second assignment of error, the defendant argues that his sentence is excessive because he has no prior record, other than a DWI, prior to this offense.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court 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. 2 Cir. 2/28/07), 953 So.2d 890. 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. Hampton, 38,017 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital | Mstatus, 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. Haley, 38,258 (La.App. 2 Cir. 4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). 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. 2 Cir. 1/24/07), 948 So.2d 379.

The trial court indicated it had read and reviewed a presentence investigation. The court took into account Red-fearn’s social and personal history, noted that he was using prescription drugs (Lor-tab and Xanax) and that he was drinking alcohol on the day of the offenses. The court noted that the defendant believed himself not to be guilty, and the defendant agreed. The court found that there was no strong provocation for the criminal acts and that there was no excuse or justification for the acts. The court noted the lack of any significant criminal history. The court noted that |1fiRedfearn had been viewing pornographic DVDs prior to the crime, which may have led to the commission of the acts for which he was prosecuted.

The trial court found Redfearn’s lack of remorse as an aggravating factor. The trial court found that incarceration would not constitute a hardship on his family, because he was not contributing money to the family, due to his back and neck problems.

The court found that Redfearn’s violation of the trust of his child (the victim) and of the other two children, and his threats to their mother were additional factors in sentencing. The court found as mitigating circumstances his lack of a significant criminal history, his previous steady employment, his back and neck injuries, the loss of his father at age five, and the lack of any other similar crimes against the victim or his other children. The trial court found that Redfearn’s actions in continuing to molest the child after she asked him to quit to be an act of “deliberate cruelty” under the guidelines. The court then sentenced him to 25 years without benefits for the aggravated incest (the mandatory minimum for the offense) and 40 years, including 30 years without benefits, for the sexual battery, imposing the sentences concurrently.

This is a very tragic case in which an entire family has been destroyed. The offenses are so egregious that a severe sentence imposed would not be excessive. The 40-year and 30-year sentences imposed for sexual battery and aggravated incest, respectively, while unquestionably harsh, are less than half the maximum sentences.

|1RWe conclude that the trial court adequately considered and articulated appropriate sentencing factors. Considering the heinous nature of the assault in this case, it does not shock our sense of justice, and is not a purposeless and needless infliction of pain and suffering. Therefore, the sentences are not excessive.

Jury Challenge

By his third assignment, Redfearn requested that the court allow the record to be supplemented and allow a subsequent assignment regarding a jury challenge. After supplementation of the record, defense counsel has now concluded that there is no colorable claim relating to a juror who knew a relatively insignificant witness’s husband, and reported that fact to the trial court. No supplemental brief was filed on that issue, and that claim is deemed abandoned.

Error Patent Review

Our initial review of the record indicated a possible error patent on double jeopardy. As noted, this court directed counsel to file briefs on this issue. The respective parties submitted briefs, and not surprisingly, the state argues that there is no double jeopardy violation, and the defendant argues that there is a double jeopardy violation.

The state’s contention is that the conviction for sexual battery is not the predicate act (“prohibited act”) for the aggravated incest conviction. It contends that the prohibited act for the aggravated incest conviction was either molestation of a juvenile or indecent behavior with a juvenile, both 117crimes having an additional element not required for a conviction for sexual battery and which also requires different evidence to prove.

Conversely, the defendant contends that the evidence for the convictions for sexual battery and aggravated incest was based on the same evidence, which, it contends, violates the double jeopardy prohibition against multiple punishments for the same offense.

In the instant case, the defendant was charged with two crimes: aggravated rape and aggravated incest. The jury returned a verdict of guilty of sexual battery as responsive to the aggravated rape charge and guilty as charged for aggravated incest. As stated above, aggravated incest requires proof that the defendant engaged in one of numerous listed “prohibited acts,” most of which are in themselves separate crimes. As previously noted, the indictment for aggravated incest did not include as a prohibited act the charge of “sexual intercourse” with the child, ostensibly to avoid a double jeopardy challenge for a conviction arising out of the same act for which it sought a conviction for aggravated rape. When the matter was submitted to the jury, the court gave jury instructions only for the prohibited acts of sexual battery, molestation of a juvenile, and indecent behavior with juveniles.

An accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols, 337 So.2d 1074 (La.1976); State v. Sims, 44,123 (La.App. 2 Cir. 4/15/09), 7 So.3d 1288; State v. Smith, 44,011 (La.App. 2 Cir. 4/8/09), 7 So.3d 855. The evidence was sufficient to convict the defendant for aggravated incest where the prohibited act was molestation of a juvenile or indecent behavior with juveniles. Accordingly, we must now determine if this constitutes double jeopardy.

The Fifth Amendment to the United States Constitution provides that no person shall be “subject for the same offenses to be twice put into jeopardy of life or limb.” State v. Brown, 42,188 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, writ denied, 2007-2199 (La.4/18/08), 978 So.2d 347; State v. Price, 39,582 (La.App. 2 Cir. 3/23/05), 899 So.2d 633; State v. Jacobs, 493 So.2d 766 (La.App. 2 Cir.1986). The double jeopardy clause was made applicable to the states through the Fourteenth Amendment, and Article 1, § 15, of the Louisiana Constitution contains a similar guarantee. Id. The guarantee against double jeopardy provides three central constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and, (3) protection against multiple punishments for the same offense. State v. Crandell, 2005-1060 (La.3/10/06), 924 So.2d 122; State v. Knowles, 392 So.2d 651 (La.1980); State v. Jefferson, 40,439 (La.App. 2 Cir. 1/27/06), 920 So.2d 984; State v. Blackson, 38,044 (La.App. 2 Cir. 1/28/04), 865 So.2d 272.

The two tests used by Louisiana courts when examining double jeopardy violations are the “distinct fact” or the Blockburger test and the |19“same evidence test.” The Blockburger test determines whether each crime requires proof of an additional fact which the other does not. State v. Blackson, supra. If multiple charges are double jeopardy under Block-burger, then the inquiry need go no further, since the constitutional prohibition against double jeopardy will have been abridged.

Even if there is not a finding of double jeopardy under the Blockburger test, we must look to Louisiana’s “same evidence” test to see if the state’s greater protection is implicated. The Louisiana definition of double jeopardy test is contained in La. C. Cr. P. art. 596, which states:

Double jeopardy exists in a second trial only when the charge in that trial is:

(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

The “same evidence” test is articulated as this query: “If all the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.” State v. Steele, supra (emphasis supplied). The “same evidence” test is broader in concept than Blockburger, the [2ocentral idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct. State v. Steele, supra.

As noted by the Louisiana Supreme Court, “the Double Jeopardy Clause, under both the [Blockburger test] and the ‘same evidence’ test, prevents an offender from being convicted of both a felony murder and the underlying felony.” State v. Sandifer, 1995-2226 (La.9/05/96), 679 So.2d 1324, 1329. We believe that the rationale for this rule could prevent the defendant in this instance from being convicted of both sexual battery and aggravated incest where the underlying “prohibited act” was the same sexual battery. Cf. State v. Sims, supra; State v. Sandifer, supra.

Applying the Blockburger test in the instant case, we determine that a conviction for sexual battery requires proof of an additional fact that aggravated incest/molestation of a juvenile does not, and vice versa. Sexual battery requires that the offender touch the victim on the anus or genitals or the victim touch the offender on the anus or genital. This element is not required for aggravated incest/molestation of a juvenile. Conversely, aggravated incest/molestation of a juvenile requires proof that the defendant had specific intent of arousing or gratifying the sexual desires of either person, an element not included in sexual battery. Accordingly, convictions for sexual battery and aggravated incest/molestation of a juvenile do not constitute double jeopardy under Blockburger.

However, our inquiry does not stop here; we must consider the “same evidence” test. Application of this test is often difficult when the allegedly separate offenses arise out of one event.

12i In State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972), the court sustained the defendant’s claim of double jeopardy regarding a subsequent charge of indecent behavior with juveniles stemming from the same conduct for which he had been convicted of simple battery on the same juvenile. In Bonfanti, the court noted that the two charges arose from one occurrence. The evidence used to support the defendant’s previous conviction of simple battery was his use of intentional force on the juvenile by putting his hands up her dress. There was no additional evidence to support the subsequent charge for indecent behavior; thus each offense required the same evidence and subsequent prosecution of the second charge was barred as double jeopardy.

In State v. Steele, supra, the defendant was originally charged with three offenses, including reckless driving, DWI, and negligent injuring. He pled guilty to DWI and the charge of reckless driving was dismissed. The state then proceeded to prosecute Steele for negligent injuring. When applying the “same evidence” test to the crimes of DWI and negligent injuring, the Supreme Court looked at the definitions of the two crimes, determined that the same evidence would not be required to convict Steele on both charges, and concluded that there was no double jeopardy as to these two charges. However, when the Steele court applied the “same evidence” test to the charges of reckless driving and negligent injuring, it concluded that the evidence to prove the second charge (i.e., negligent injuring) would have been sufficient to convict on the first charge (i.e., reckless driving). Id., at 1178. Thus, under the “same evidence” test a ¿¡¿prosecution of the negligent injuring charge would be a violation against double jeopardy.

In State v. Sandifer, supra, the defendant was charged with possession of marijuana and cocaine and possession of a weapon while in possession of a controlled dangerous substance. The defendant pled guilty to possession of marijuana, and subsequently filed a motion to quash the weapon charge. The Louisiana Supreme Court determined that the evidence of the defendant’s alleged possession of cocaine, for which he had not been convicted, provided a proper basis to support his prosecution under the weapon charge. Id., at 1330. The evidence of the defendant’s possession of marijuana was not required in order to convict him of the weapon offense, because other evidence existed sufficient to support the charge.

The circumstances in this case are analogous to those in State v. Steele, supra, and State v. Sandifer, supra. The evidence required for the conviction for aggravated incest/molestation of a juvenile is not the same evidence required for sexual battery. In this instance, we have already concluded above that the evidence was sufficient to show that Redfearn engaged in a lewd and lascivious act by fondling himself in the presence of his daughter with the specific intent of gratifying himself. Indeed, the evidence required and proven for this particular conduct is distinct from the evidence of the conduct constituting sexual battery, that is, the defendant’s rubbing of his penis on the victim’s vagina. Additionally, aggravated incest required evidence of the child’s relationship to the father by blood, marriage or adoption which was not required for the sexual battery conviction.

lasWe therefore conclude that the defendant has not been subjected to double jeopardy in this case.

Conclusion

For the reasons stated, we conclude that the evidence was sufficient to support the convictions of sexual battery and aggravated incest. We further conclude that the sentences imposed were not excessive.

Accordingly, the convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      . The statute lists “sexual intercourse,” which, standing alone, is not a crime in itself, as a prohibited act under the statute.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . State v. Steele, 387 So.2d 1175 (La.1980).


author: MICHAEL E. KIRBY, Judge.

text:
    Gregory PETERS v. GREYHOUND BUS LINES, INC.
    No. 2009-CA-0694.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 23, 2009.

      Kenneth K. Orie, Metairie, LA, for Plaintifi/Appellee.
    Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Me-tairie, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   MICHAEL E. KIRBY, Judge.

Ijn this appeal, defendant, Greyhound Bus Lines, Inc. (Greyhound), appeals the workers’ compensation judgment in favor of plaintiff, Gregory Peters (Mr. Peters). For reasons that follow, we affirm.

Greyhound first hired Mr. Peters as a driver in 1996. On February 1, 2007, a Greyhound bus driven by Mr. Peters departed New Orleans en route to Houston, Texas with a bus load of passengers. Along the way, Mr. Peters experienced problems with the side mirror of the bus. He stopped two to three times to adjust the side mirror before the regularly scheduled stop in Baton Rouge, Louisiana. While at the Greyhound station in Baton Rouge, several drivers looked at the mirror and assisted Mr. Peters in putting it in place. Believing the mirror was properly in place, Mr. Peters continued toward Houston.

At some point, he experienced further trouble with the side mirror and made two to three more unscheduled stops. Mr. Peters stated the side mirror was important to “make the lane changes proper and safe.” After the continuing problems, Mr. Peters pulled in at a weigh station in Breaux Bridge, Louisiana, and contacted Greyhound to report the problem. Greyhound sent a vendor out to look at the side mirror. When the vendor was unable to fix the problem, Mr. Peters |2contacted Greyhound a second time and was told that a relief bus was being sent to pick up the passengers.

In the interim, a different Greyhound bus picked up the other Greyhound drivers on board Mr. Peter’s bus. These drivers, known as cushioning drivers, were there to relieve Mr. Peters if the need arose during the trip. Mr. Peters testified he and the passengers waited for the relief bus “for a long period of time.” He stated the passengers became upset with the delay, especially after the cushioning drivers got onto another bus. He heard one passenger say, “I ought to pull that f — ing driver out of this seat and take this bus myself, I would drive this f-ing bus without that mirror.” Mr. Peters stated that one lady restrained one of the vocal passengers who moved towards the front of the bus. Next, Mr. Peters testified:

So the longer the wait, the more the disturbance got on the bus. When I went to the restroom and I came back, the passenger who was making the most verbal threats at me, I[sic] was sitting in my seat after I came back. I saw this guy coming at me through the mirror, my body went into a state, it just froze and went into a state that was uncontrollable and I passed out.

Mr. Johnson, a relief driver sent to the scene by Greyhound, testified that he arrived at the weigh station to find Mr. Peters shaking and unresponsive when his name was called. Considering Mr. Peters’ condition, Mr. Johnson contacted Greyhound and was instructed to transport the passengers to Houston on the bus previously driven by Mr. Peters. Mr. Johnson stated he adjusted the side mirror on the regularly scheduled stops. Mr. Johnson stated that when he has had trouble with passengers in the past, he has called the police, to meet the bus at the next regularly scheduled stop.

|sAn ambulance arrived and Mr. Peters was taken to Lafayette General Hospital. Mr. Peters testified that the doctor from Lafayette General Hospital stated that he had suffered a panic attack and prescribed medication, but also recommended that Mr. Peters obtain an EEG. Mr. Peters obtained the EEG from Tulane University Medical Center.

Mr. Peters also sought treatment from Dr. Mendoza of the Veterans Administration Hospital. Dr. Mendoza, a licensed psychologist, testified that Mr. Peters has an anxiety disorder. It seems to have been upon Dr. Mendoza’s suggestion that Mr. Peters filed for workers’ compensation benefits. Dr. Mendoza stated Mr. Peters became upset because he wanted to return to work as a bus driver, but Dr. Mendoza believed further treatment was needed pri- or to Mr. Peters driving a bus again. Dr. Mendoza testified that because he could not support Mr. Peters returning to driving after the February 1, 2007 incident, he submitted a letter to Mr. Peters to use for workers’ compensation benefit purposes. Dr. Mendoza thought this would provide Mr. Peters with “some type of temporary compensation if [he’s] no longer able to work until such time as [he] could find a more appropriate line of work....” The letter stated that Dr. Mendoza believed that it was advisable that Mr. Peters not resume driving a bus at that time and for the foreseeable future due to the panic attack, possible paranoia and what appeared to be somatoform delusions. However, Dr. Mendoza opined that “this was a temporary thing, this wasn’t — I wasn’t declaring him permanently disabled.”

Dr. Mendoza testified that if a passenger who had made verbal threats ran towards the front of the bus, “[i]t would have triggered an anxiety situation for me, if I thought someone was coming to attack me. So I think it would be reasonable that if someone fears that they may be attacked, any one of us, then I think that we |4would probably experience — most of us would experience some degree of anxiety.”

Mr. Peters testified he previously received treatment after an incident arose in 2004 when he got sick while driving a Greyhound bus in Dallas, Texas. Mr. Peters stated he pulled over and contacted Greyhound to obtain a relief driver. The passengers became upset and began to threaten and curse at him. Mr. Peters received a diagnosis of a panic attack and received treatment at the Veterans Administration Hospital. Mr. Peters also testified that because he found no objective reason for his troubles driving, he believed someone put something in his food or drink or tampered with the bus. After a few months, Mr. Peters was cleared to return to work in January 2005. He noted his wife had lost her job, and they were being hassled by creditors prior to the panic attack in 2004.

The workers’ compensation judge found Mr. Peters was “very credible.” The judge further found Mr. Peters suffered a compensable workers’ compensation job accident and rendered judgment in favor of Mr. Peters. The judgment awarded Mr. Peters temporary total disability benefits for the time period February 1, 2007 through September 21, 2007; ordered Greyhound to pay for specified medical treatment arising out of the February 1, 2007, job accident; found Greyhound was not unreasonable and denied the request for penalties; and ordered Greyhound to pay all costs of the litigation.

The standard for reviewing workers’ compensation claims was detailed in Regan v. Lakeland Medical Center, 2003-1347 (La.App. 4 Cir. 3/24/04), 871 So.2d 453. Therein the Court stated:

A trial court’s factual findings in a workers’ compensation case are subject to a manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. The appellate review of a factual finding is a two-part test in which the trial court must determine whether there is a reasonable factual basis in the record for the finding of the trial court, and whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987). An appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). An appellate court may not substitute its own evaluations of credibility and inferences of fact by the trial court when there exists conflict in the testimony. The trial court’s choice between two permissible views of the evidence cannot be manifestly erroneous or clearly wrong. Id. Therefore, the issue is not whether the workers’ compensation judge was right or wrong, but whether its factual conclusion was reasonable. Edwards v. Fischbach & Moore, Inc., 31,372 (La.App. 2 Cir. 12/9/98), 722 So.2d 344.

Regan, 2003-1347, p. 6, 871 So.2d at 458.

Greyhound assigns as error that “the trial [court] erred in finding that [Mr.] Peters met his burden of proving the occurrence of a job accident causing him ‘extraordinary stress’ when viewed under an objective basis causing a mental disability.”

The Workers’ Compensation Act provides:

Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

La. R.S. 23:1021(8)(b). In this case, there is no dispute that Mr. Peters was acting in the course of his employment as a bus driver for Greyhound on February 1, 2007.

| (iThe Act further provides:

No mental injury or illness shall be com-pensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

La. R.S. 23:1021(8)(d).

In Regan, this Court stated that:

In order to recover for a mental injury claim under the Workers’ Compensation Act, a claimant must satisfy both the general requirements of La. R.S. 23:1031 that the “personal injury by accident arise out of and in the course and scope of his employment” and the specific narrow circumstance ... that there be clear and convincing evidence that “the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment.” Partin v. Merchants & Farmers Bank, 2001-1560 (La.3/11/02), 810 So.2d 1118.... A determination of whether the stress is extraordinary is determined by whether an ordinary, reasonable person of usual sensibilities would find it extraordinary. Edwards, supra.

Regan, 2003-1347, p. 7, 871 So.2d at 458-59.

Greyhound cites several cases where the courts have found that the stress experienced by the claimant was not extraordinary. First, Greyhound cited Bryant v. Giani Inv. Co., 626 So.2d 390 (La.App. 4 Cir.1993). In that case, Ms. Bryant was accused by her employer of theft, screamed at, and called obscene names. Ms. Bryant obtained counseling and alleged she suffered post-traumatic stress disorder as a result of the incident. The Court noted there was no violence or threats of violence. Id. at 391. The Court found while it was not acceptable for an employer to shout obscene names at an employee, it is not altogether rare to have outbursts on the job and this episode could not be described as extraordinary. Id. at 393.

|7Next, Greyhound cites McDonald v. American General Fire & Casualty Co., 570 So.2d 98 (La.App. 4 Cir.1990). Mr. McDonald alleged he was forced against his desk and spoken to directly in his face by his immediate supervisor. Mr. McDonald feared he would be fired or that he would be hit. After the confrontation, he began to shake uncontrollably and could not drive. Mr. McDonald obtained treatment and was diagnosed as having generalized anxiety disorder. Id. at 98-99. The Court affirmed the workers’ compensation judge’s finding that Mr. McDonald did not experience an unexpected or unforeseen event happening suddenly or violently. The workers’ compensation judge noted Mr. McDonald experienced an everyday business occurrence. Id. at 100-101.

Also, Greyhound cites Favorite v. Louisiana Health Care Authority, 98-721 (La.App. 5 Cir. 12/16/98), 725 So.2d 556. Ms. Favorite experienced verbal reprimands on a daily basis, and her supervisor also used abusive language in a loud voice. Ms. Favorite experienced anxiety attacks and crying episodes. However, Ms. Favorite obtained medical treatment after one particular episode involving her supervisor telling her to shut up and pointing a finger in her face. After the incident, Ms. Favorite “experienced physical numbness and twitching in her face, a skin rash and she thought she was having a stroke.” Id. at pp. 2-3, 725 So.2d at 557. The workers’ compensation judge, while determining the supervisor’s conduct was appalling, found the behavior was not sudden and unexpected and the behavior did not constitute extraordinary work stress as required by the statute. The appellate Court affirmed the judgment of the workers’ compensation judge. Id. at p. 5, 725 So.2d 558.

Lastly, Greyhound cites Tavella v. Sav-A-Center, 2003-0458 (La.App. 1 Cir. 12/31/03), 868 So.2d 752. Mr. Tavella complained that he was accused of |Rhaving an affair with a co-worker. Mr. Tavella continued to receive treatment for stress related to his job, but thereafter took a medical leave of absence. When Mr. Tav-ella was unable to return to work upon the exhaustion of his paid medical leave, he was terminated. Id. at p. 2, 868 So.2d at 752-53. The Court affirmed the workers’ compensation judge’s finding that Mr. Tav-ella failed to meet his burden of proving extraordinary stress by clear and convincing evidence. Id. at p. 3, 868 So.2d at 753.

By contrast, in the case sub judice, Mr. Peters, unlike Mr. Bryant, did receive threats. Mr. Peters believed he was in imminent danger of the threats being carried out when the most vocal of the passengers issuing threats came down the aisle toward the front of the bus.

Further, all of the cases cited by Greyhound involved an employee and supervisor. None involved an employee and an unknown third-party. While Mr. Johnson testified to incidents involving upset passengers, he did not testify that he was ever threatened by a passenger. Indeed, while it may be commonplace for passengers to become upset and grumpy when their travel plans are delayed, no evidence was presented that it is commonplace for those same passengers to issue threats.

Even though Greyhound emphasized that Mr. Johnson finished driving the passengers to Houston while making adjustments to the mirror, the evidence presented does show that the mirror was broken. Indeed, even the vendor who was called out was unable to repair the mirror.

Greyhound pointed out that the ambulance records and Lafayette General Hospital records do not mention that Mr. Peters told ambulance or hospital personnel that he was threatened by any passengers. However, the ambulance |9records note that Mr. Peters was disoriented and barely able to communicate. Indeed, Mr. Johnson testified that he found Mr. Peters shaking and unresponsive. The Lafayette General Hospital records note that Mr. Peters was having difficulty speaking.

Greyhound also pointed out that Dr. Mendoza’s notes did not mention a threat by any passenger. Dr. Mendoza testified that he could not say he had independent recollection of whether or not Mr. Peters mentioned being threatened because he had already read other reports which mentioned that Mr. Peters stated he was threatened by a passenger. Greyhound thus concluded that no threats were made. However, Mr. Peters testified that he was threatened. Specifically, Mr. Peters heard one passenger say, “I ought to pull that f — ing driver out of this seat and take this bus myself, I would drive this f-ing bus without that mirror.” The workers’ compensation judge found Mr. Peters to be “very credible.”

Additionally, Dr. Mendoza testified that if a passenger who had made verbal threats ran towards the front of the bus, “it would have triggered an anxiety situation for me, if I thought someone was coming to attack me. So I think it would be reasonable that if someone fears that they may be attacked, any one of us, then I think that we would probably experience — most of us would experience some degree of anxiety.”

Greyhound argues that Mr. Peters did not prove that he suffered from an event causing “extraordinary stress.” Greyhound notes Mr. Peters has a history of psychiatric problems, and argues that a person diagnosed with paranoia would perceive that a passenger advancing up the aisle would have harm in mind. However, while Dr. Mendoza’s notes refer to a history of paranoid delusions, a note dated January 26, 2006, relative to the earlier 2004 episode state “Paranoia | inmost [sic] probably sec to depression.” Dr. Mendoza testified that it would be a reasonable assumption that Mr. Peters was suffering from some type of paranoia in relation to the visit in 2006, but there is no indication that Dr. Mendoza diagnosed Mr. Peters as being paranoid. Greyhound further refers to Mr. Peters’ “obsession” with a self-perceived indentation in his right temple as Mr. Peters continuing to exhibit paranoid behavior. While Dr. Mendoza saw no such indentation, the Lafayette General report indicated Mr. Peters had a droop on the side of his face.

Greyhound argues that Mr. Peters experienced a panic attack. Dr. Mendoza testified that a panic attack occurs out of the blue, and it is not something that is associated with any particular situation or stimulus. Thus, Greyhound argues there was no “extraordinary stress” that contributed to Mr. Peters’ panic attack. However, Dr. Mendoza noted that it was Mr. Peters, a layman, who utilized the phrase “panic attack” to describe the February 1, 2007 incident. Dr. Mendoza testified there are similar phenomena where people, in certain situations, have an intense anxiety reaction. Dr. Mendoza stated that the intense anxiety reaction may be similar to that of a person having an anxiety attack, but because the reaction is provoked, those reactions are not by definition a “panic attack.” Dr. Mendoza diagnosed Mr. Peters as having an anxiety disorder. Dr. Mendoza recommended that Mr. Peters refrain from driving a bus for awhile, but Dr. Mendoza also believed this was a temporary thing and specifically stated that Mr. Peters was not permanently disabled.

For the reasons cited herein, we find the factual conclusion reached by the workers’ compensation judge was reasonable.

Accordingly, we affirm the judgment of the workers’ compensation judge.

AFFIRMED.