author: COOKS, Judge.

text:
    Kimberly Hensgens GUINN v. Nathaniel Stuart GUINN
    16-926
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2017

      Evelyn M. Oubre, 522 Clarence Street, Lake Charles, LA 70601, (337) 436-0337, ATTORNEY FOR PLAINTIFF/APPELLANT: Kimberly Beth Hensgens Guinn
    Tim Cassidy, P.O. Box 1446, Jennings, LA 70546, (337) 824-7322, ATTORNEY FOR DEFENDANT/APPELLEE: Nathaniel Stuart Guinn
    Court composed of Chief Judge Ulysses Gene Thibodeaux, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
   COOKS, Judge.

[ ! Kimberly Beth Hensgens Guinn (Kimberly) filed a petition for divorce from Nathaniel Stuart Guinn (Stuart) on June 25, 2014, in which she prayed for joint custody of their three minor children. The three children are ages ten (M.K.G), eight (N.S.G.) and six (G.E.G.). She also asked to be named domiciliary parent with Stuart to have reasonable access to the children. Stuart filed an answer and reconventional demand on July 18, 2014 seeking joint custody and equal access to the children by both parents. On August 12, 2014, the parties appeared in open court and entered into the record a consent agreement on custody and visitation. The parties agreed to joint custody with Kimberly named as domiciliary parent. The agreement set forth an express schedule of visitation for Stuart covering the immediate future but left summer visitation “to be determined later.” The trial court instructed Kimberly’s attorney to prepare a judgment based upon the stipulations and directed Stuart’s attorney to prepare a “standard joint custody implementation plan.” The agreement also provided that neither party engage in any activity to alienate or adversely affect the children and provided “alternating holiday periods according to the school calendar.” Neither party filed any judgment or implementation plan with the trial court.

On November 5, 2014, Stuart filed a motion and order in which he asserted that the stipulation made in court on August 12, 2014, had never been reduced to a signed judgment. He attached a proposed implementation plan and a proposed judgment, and sought a. new court date for a hearing to determine custody and visitation of the three children. Two days later, November 7, 2014, Kimberly filed 19a motion to modify and/or claiify custody and visitation. She, too, asserted the stipulation of August 12, 2014 was not reduced to writing and she further alleged Stuart’s proposed judgment and proposed implementation plan did not conform to the agreement made in open court. Kimberly asserted the two proposed documents “expands to areas/issues not stipulated to by the parties nor raised in any pleading to date.” Kimberly sought to have the trial court adopt a joint custody plan.

Stuart and Kimberly once again appeared in court on December 16, 2014. According to the court minutes, following a pre-trial conference with -the parties and their attorneys present, the trial court entered an order on the record, in open court. The court minutes reflect that: “Both parties are present in the Courtroom and state that they have heard the stipulation, understand it and agree to it” (emphasis added). The judgment, signed on December 30, 2014, provided for joint custody of the minor children “with the parties having such custodial privileges and Christmas Holiday visitation, as specifically stated by and acknowledged by both parties in Open Court, this date, pending further order of this court” (emphasis added). The judgment also ordered that neither party “shall allow Paul Douglas Blank (Doug) to have any contact whatsoever with the minor children of the parties, pending further order of this Court.” The parties were also ordered to mediate the issues of custody and visitation and to develop “an appropriate Joint Custody Implementation Plan.”' The trial court continued all pending rules without date “pending the completion of the mediation hearing.”

Stuart next filed a petition on rule on April 28, 2015, alleging Kimberly was in contempt of the court’s ruling by allowing contact between the minor children and Doug six different times from March 14, 2015 to April 16, 2015. Stuart also prayed to be made domiciliary parent of the minor children and that the children be | ^permitted to continue living in Jennings.

Kimberly and Stuart next appeared in court on May 5, 2015. The trial court set a date for hearing because the effort at mediation failed. The trial court refused Kimberly’s request to remove the prohibition previously put in place forbidding Doug from being in the presence of the parties’ minor children. The trial court emphasized that the prohibition was “the Court’s order.” Kimberly and Doug share a child out of wedlock born prior to her marriage to Stuart, and they have a child recently bom out of marriage during the pendency of these proceedings. Kimberly and Doug were romantically involved before Kimberly met Stuart, and, when this child was almost a year old, Doug was incarcerátéd for seven years. Stuart raised this child as his own and has remained emotionally attached to the child. Kimberly and Doug do not permit Stuart to visit with this child.

Kimberly next filed a “Motion and Order to Amend Existing Orders” asking the court to allow the children to be in Doug’s presence because she was about to give birth to another child, fathered by Doug, and alleging Doug had received “in-house substance abuse treatment” with “continuing follow-up treatment.” Attached to Kimberly’s motion, in support of her contentions, was a written report by Eddie Windham, LCSW. The report includes a history of Doug’s drug abuse up to June of 2015, which we will discuss at length later.

On April 7, 2016, the trial court rendered judgment in the matter awarding joint custody of the three minor Guinn children to Stuart and Kimberly, and naming Stuart the domiciliary parent of all three children. Kimberly was awarded visitation on alternating weekends and every other Wednesday. Major holidays are to be alternated .between Stuart and Kimberly “with the understanding that these holidays shall take precedence over the visitation custodial schedule.” The trial |4court terminated interim periodic spousal support to Kimberly and, further found Kimberly was not free from fault in the breakup of the marriage. The judge denied her claim for periodic. final spousal support. The rule for . contempt filed by Kimberly •against Stuart .also was denied.. Stuart’s rule for contempt filed against Kimberly was granted. Kimberly was held in contempt of the court’s order prohibiting her from allowing the children to be in Doug’s presence. The trial court only issued a warning.to Kimberly admonishing her not to disobey the court’s order in the future. The trial court issued written reasons for its ruling stating “the Court finds at this time it is in the best interest of the minor children to live with their father.” Kimberly’s motion for new trial was denied. Kimberly appeals the judgment of the trial court asserting the trial court erred in:

1) Naming the father [Stuart] as the domiciliary parent, and granting the mother only limited visitations instead of equal time sharing between the mother and her children.
2) Finding the mother in contempt of a previous order denying all contact between the children of this marriage and the father of two of. her other children.

LAW AND ANALYSIS

Kimberly asserts that the judgment rendered in open court on December 16, 2014, and later reduced to writing, is not valid because “there was no testimony presented; no evidence produced; and no stipulations .offered; only a pretrial, conference was held.” We first note that Kimberly’s present counsel was not her attorney at this appearance. She was represented at that court appearance by Mr. Joshua Guillory. Kimberly’s current representation that “no stipulations [were] offered” at the hearing on December 16, 2014, is simply not true. The minutes clearly reflect that the judge stated in open court, on the record, that both "Kimberly and Stuart were present in the courtroom and that both “state that they heard the [¡¡stipulation, understand it and agree to it.” Likewise, the judgment signed on December 30, 2014, recites in the opening paragraph (emphasis added):

Present were Kimberly Hensgens Guinn and her attorney, Joshua S. Guillory; and, Nathaniel Stuart Guinn and his attorney, Tim Cassidy. Considering the record of these proceedings, the arguments of counsel and the stipulations of the parties made in open court this date, the law and evidence being in favor thereof ...”

The transcript of the proceeding also reflects that both parties and their attorneys were present in court and recites that much was discussed in chambers to reach the understanding of what was being placed on-the record. The trial judge asked both parties to confirm their own understanding of what was being made the order of the court. Both acknowledged they understood. Neither the parties nor their attorneys disagreed with any of the recitations being made by the trial judge. As the minutes reflect, all present acknowledged that “the matter was discussed in Chambers,” The particulars of the agreement reached in chambers, which the trial judge recited on the record, and the parties individually acknowledged they understood, included the following:

The court orders both parties to mediation with Judge Ronald D. .Cox. In the interim, while the children, are in the custody of Mrs. Guinn, Mr. Paul Douglas Blank cannot be present. Costs of mediation will be born (sic) by the parties. A mutual restraining order will issue against both parties from alienating or disposing of community property. Mr. Guinn was allowed to enter into the community savings to pay certain bills. Mr. Guinn can enter that account to retrieve $800.00 to pay for mediation with Judge Cox, The custody agreement .will remain in place. Counsel advise the Court that the minutes do not reflect everything that was discussed; it was hand crafted. A joint custody implementation plan will be prepared. Temporarily, joint custody of every other weekend will remain in place. Mr. Cassidy will prepare the judgment. The parties will schedule mediation within 30 days. Counsel advise the Court that holiday visitation should be okay with no problems. Mrs. Guinn will have the Friday from school to Christmas as 5 P.M. Mr. Guinn agrees. Mr. Guinn will withdraw Christmas monies from the community funds.

Both the judgment and the transcript of the proceeding contained in this | ¿record reflect the same provisions and acknowledgment of understanding by the parties and their lawyers as succinctly set forth in the court minutes. Reviewing all three documents made part of this record it is clear that the parties stipulated to the judgment recited in open court on December 16, 2014. We therefore reject Kimberly’s assertion that this judgment is invalid.

Kimberly asserts, alternatively, that even if the judgment signed on December 30, 2014 is valid, she is not guilty of contempt because her actions “did not constitute an indirect contempt.” She asserts that 1) only she testified to the facts concerning contact between the children and Doug; 2) “the encounters [between Doug and the children] were nothing but innocuous events with no intent to defy the court; and 3) as to one of the admitted encounters between one of the children and Doug the child did not actually see Doug because “Kimberly told [Doug] to go to a bedroom” while the child went to the bathroom.

Based upon our thorough review of the record we find the trial judge did not abuse his discretion in finding Kimberly in contempt of his express order. Kimberly’s admissions, in her deposition and later in court, would alone be sufficient to establish she knowingly and willfully violated the court’s order prohibiting contact between her and Stuart’s minor children and Doug. Stuart’s testimony provides additional strong support for the trial court’s ruling as does Mr. Windham’s report.

In Garcia v Garcia, 10-446, pp. 4-6 (La. App. 3 Cir. 11/3/10), 49 So.3d 601, 605 this court recapped our law on contempt in a child custody matter:

Louisiana Code of Civil Procedure Article 221 defines contempt of court as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. Contempts of court are of two kinds, direct and construetive[.]” Pursuant to La.Code Civ.P. art. 224(2), ^constructive contempt is “[w]illful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” Constructive contempt “must be based on a finding that the accused violated an order of the court ‘intentionally, knowingly, and purposefully, without justifiable excuse.’ ” Lang v. Asten, Inc., 05-1119, p. 1 (La. 1/13/06), 918 So.2d 453, 454 (quoting Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ denied, 90-990 (La. 5/29/98), 720 So.2d 343). “A trial court is vested with great discretion to determine whether a party should be held in contempt for willfully disobeying a trial court judgment.” Barnes v. Barnes, 07-27, p. 9 (La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257 (citing Fink v. Bryant, 01-987 (La. 11/28/01), 801 So.2d 346).

In her deposition testimony Kimberly stated:

Q. The ban, have you violated that ban a time or two?
A. Yes, I did.
Q. Why did you do that?
A. Why did I do that? Because how do you tell a fíve-year-old, a seven-year-old, and an eight-year-old—or nine-year-old, excuse me, you cannot tell this person hello, do not talk to this person? They don’t understand.
Q. But the judge gave you a direct order and—
A. You’re right. He did.
Q. He said no contact whatsoever.
A. He did. And then Doug and I also share a child together which makes it very difficult.
Q. And so Doug was aware of the order and you were aware of the order and ya’ll violated it?
Object. As far as Doug goes, she doen’t know what Doug was thinking, but you can ask her.
Q. Well, was Doug aware of the order?
A. Yes.
Q. And so—and you were aware of the order?
A. Yes.
|SQ. And you violated it anyway?
A. Yes, I did.
Q. Do you find that to be anti-authority behavior on the part of both of you?
A. Yes.
Q. But the other day when we were at court—and I don’t know—it wasn’t with your first lawyer; it was with your second one, Mr. Guillory, and we went to court. It was right before you terminated Mr. Guillory’s services. And we went to court, and on the way out, Doug ran down the stairs and he was mad and he was kind of going to get him [Stuart] and a deputy had to go and kind of stop him. Do you know about that incident?
A. Yes, I do.
Q. And, again, does Doug have an aggressive personality? Is that something that just pops up every now and then? Is it—
A. Well, when you—
Q. Something he works with every day?
A.—when you hear that the judge made a statement saying if he finds me in contempt, pregnant or not, he will put me in jail. And sitting and watching what he has done to me and those children, it’s very hard to keep control of your emotions. And sometimes you do— he stopped. He wasn’t going. It was just a reaction.
Q. A reaction that—
A. I wanted to—
Q. Do you think that was also indicative of anti-authority-type behavior?
A. I believe that he would do the same thing.
Q. Okay.
A. Because he has done it.

|aWhen Stuart was deposed he related the following concerning his knowledge and experience with Doug:

Q. Tell me why he can’t be around the kids.
A. His record. Simple.
Q. His record of what?
A. His record of past substance abuse, his attitude throughout this whole divorce proceeding.
Q. Tell me about his attitude.
A. He’s very manipulative, he’s very aggressive. You know, aggressive to the point where even in Mr. Wyndham’s (sic) report, he—he fired rounds into a home to get even. He is a narcissist. I don’t know if him being around the kids if there was any—you know, it’s either him or the kids. I don’t necessarily think it would be to the kid’s best interest. I think he would definitely take care of himself. I think that’s quite obvious'in his past record. I mean, he had a child and went off on a criminal tangent and got put away for seven or eight years while he had a newborn infant around.
Q. Do you know what that seven or eight year sentence was for?
A. I did not exactly know the details of it until I actually read that report. I knew it had something to do with drugs and weapons. That’s the extent that I knew.
Q. Do you have any.reason to think that he has been using drugs in the last year or so?
A. I’ve had some incidents where he came to my home right when Kim and I had split up that I definitely thought there was something not right with him. He went on and talked about times when he was suicidal, had a shotgun in ■ his mouth. And then Kim and I had a[n] argument that was basically initiated by her having to do with a pet day at school whén it’s Kim’s time but I’m bringing pets to school for the children to have at pet day. So we go to my brother’s home. We’re on the phone and—
Q. “We”? You and Kim?
A. Kim and I are on the phone and five minutes later, he shows up in a very aggressive manner at my brother’s home which he never has been to, does not know where he lives. And I had my children with me. I was outside arid my brother was outside and he did not look like |inhe was a normal guy wanting to visit. He was very aggressive, very out- ■ spoken. Parked on the road and stormed down the driveway. And then our last court case—our court hearing that we had, he actually was in a—that same hurried pace chasing me outside the courtroom hollering my name enough where a deputy had to be dispatched to go and stop him.
Q. Is that what you mean when you say “aggressive”?
A. That is what I mean when I say “aggressive.”

In addition to Kimberly and Stuart’s testimony, the record also contains Mr. Windham’s report which sets forth a comprehensive examination of Doug. Doug’s criminal history began in high school. His adult criminal record began just two years after high school when in 2000, “after a night of drinking whiskey and using cocaine[,] he drove” to his landlord’s home and fired a sawed-off shotgun five times at their residence and vehicle. He was charged with' “six counts of attempted first degree murder, possession of an illegal firearm, illegal discharge of an illegal weapon and aggravated criminal damage to property.” The “attempted first degree murder charges were dismissed in a plea deal,” and Doug received a “felony conviction with five years supervised probation, community service, anger management and substance abuse treatment.” But before that five year period ended Doug was sentenced in 2004 to serve seven (7) years in prison as the result of a felony conviction. According to Doug’s account of that episode:

[H]e was arrested in Jeff Davis Parish in 2004 for possession of-a firearm by a convicted felon. Doug stated that [he] was driving in a car with two females and that a male friend and two more females were following him in another car. Doug stated that all six of them had been using meth [methamphetamene] together for several days. Doug stated that they were all going to the home, of Doug’s aunt in Welsh. Doug stated that one of the females in the other vehicle called Doug and told him to pull over to give her more meth. Doug stated that he told, her to wait until they got to this aunt’s home. He stated that the girl became angry and called her uncle who worked for the Jeff Davis Parish Sheriffs Department. Doug stated that the girl told her uncle that Doug tides (sic) to run the vehicle that she was riding in |noff the road. Doug stated that he was pulled over by sheriffs deputies a short time later; Doug stated that after being pulled over he admitted to the deputies that [he] had a semi-automatic handgun (a Tech 9) in the vehicle. Doug stated that he was still on probation from his felony charges from 2000 in Washington Parish. Doug stated that he was (sic) served seven years in prison due to the •new charge and probation violation. Doug stated that he was released from prison on February 22, 2011, Doug reported that he completed three years of parole after his release.

Having just completed his three years on parole, Doug was again arrested “in late July or early August 2014, for illegal use of a weapon in Lafayette, Louisiana].” He received a sentence of two years unsupervised probation for that charge. One day after this arrest in Lafayette, Doug “was arrested in Lake Charles at a hotel for possession CDS-2 (meth and steroids).” According to him this arrest happened because he was trying to help an old friend. He recounted the details of this latest episode as follows:

[A]n old female classmate called him and was ‘freaking out’ after using meth. Dough stated that the friend believed she was having a heart attack. Doug stated he met his frfend in Jennings and drove her to Lake Charles. Doug stated that he had been drinking prior to the meeting .with his-friend., [He] stated that he continued drinking and was intoxicated by the time they, arrived in Lake Charles. [He]' stated that he and the Mend checked into a local hotel. [He] fell asleep and the friend began panicking again (believing she was having a heart .attack). Doug stated that she called 911 for help. [He] was arrested when (sic) for possession after law enforcement came, to the room and found his drugs.

According to Doug, he posted bond the next day and believed he would be placed on a diversionary program. The record contains no further information on the outcome of this latest reported offense. These latest charges once again involve weapons, which Doug was not supposed to have in his- possession, and involve further: use of methamphetamines. These events occurred at the same time Doug and Kimberly had renewed- their relationship, and at the same time.. Stuart and Kimberly were fighting in court about custody and visitation of their children.-1 iaDoug admits to an alcohol problem since the age of fifteen (15); marijuana use since the age of fifteen (15); ■ and a methamphétamine problem since the age of twenty-four (24). . He also told Mr. Windham that he has used “pretty much whatever.[drug] was available.” Kimberly too,. admits to past drug use, including methamphetamines, but asserts that she and Doug have never done drugs together, and that she has never witnessed Doug doing drugs. She also says she started seeing Doug immediately-after he got out,of prison but denied.renewing a romantic involvement with Doug until after she and Stuart separated. Stuart maintains that Kimberly and Doug were having a romantic involvement early on after his release from prison and that such was in part to blame for the breakup of their marriage. Again Kimberly’s testimony in court is very revealing on the subject of Doug Blank.

Q. How often were you seeing Doug Blank six months prior to you filing for a petition of divorce which was in June ’14? How often were you seeing Mr. Blank?
A. I guess every other weekend or I’m not quite sure.
Q, Well, you were totally disgusted with your husband, Mr. Guinn, so when did you become romantically involved with Mr. Blank again? Certainly before you filed the petition?
A. No.
Q. No?
A. No.
Q. Yet you got pregnant for him just a couple months after you filed the petition; it that correct?
A. Correct.
Q. And you’re an LPN; correct?
A. Yeah.
liaQ. You do know how to avoid pregnancies, don’t you?
A. Sure.
Q. So you planned this pregnancy?
A, No, it was not planned.
Q. Oh. So you’re here telling the Court that you had no romantic interest with Mr. Blank prior to filing your petition?
A. Correct.
Q. So when [did] the romantic interest start, the day after?
A. No, sir.
Q. You’re seeing him several times a week every week for the whole, you know, since January 1st of 2014, six months before you file for divorce. You’re already agitated with your husband because you think he’s verbally abusive and you’re telling me you didn’t have any romantic interest in Mr. Blank during that time?
A. That’s correct.
Q. You’re telling me that Mr. Blank, in your little relationship with Mr. Blank, did not cause a demise in your marriage?
A. No, sir.
Q. And y’all had no arguments about it?
A. Stuart and I?
Q. Yes.
A. Yes, we had arguments about that, yes.
Q. Yeah, a lot, huh?
A. Yes sir.
Q. And he wanted you to go to marriage counseling; didn’t he?
A. Yes.
Q. And you refused didn’t you?
A. Well, I was advised by my counsel- or—
luQ. Yes or no, you refused?
A. Yes, I did, yes.
Q. Okay. After you filed for the divorce, and I would guess there was a period of time before we came to court for the first time in August and in August I think you were represented by Mr. Burleigh Doga; is that correct?
A. Correct.
Q. Okay. And when we came to court in August at that time, prior to that time, had Stuart been asking you not to allow the children to be around Mr. Blank?
A. Correct.
Q. Okay. Do you know why he didn’t want the children to be around Mr. Blank?
A. I could assume why.
Q. But you don’t know why?
A, Well, he would tell me why but I have a different why I think he said.
Q. Well, did you read Mr. Windham’s report that /all had done with Mr. Blank? Did you read Mr. Eddie Wind-ham’s report?
A. Yes, I did.
Q. Did you see in there where Doug was on drugs all the way up through August of ’14?
A. Yes.
Q. So all the time he was on drugs and Stuart [was] fussing about this and you paid him no mind? I mean, you said no. You didn’t think Doug was a threat to the children or a problem. How can you justify that?
A. How can I justify that?
Q. Yes.
A. Because I believe that I am responsible enough as a mother that if my kids were put in any kind of danger that I would take them away | isfrom that.
Q. Okay. And then Mr. Blank made an attempt at going to a rehab sometimes at the Home of Grace but he didn’t complete that program; correct?
A. Correct.
Q. He checked out; correct?
A. Correct.
Q. . He also got arrested for two felony arrests in the month of August, is that correct?
A. He has never gotten charged.
Q. He got arrested; correct?
A. He did get arrested, yes, sir.
Q. In Calcasieu Parish.
A. Yes.
Q. With some drugs and also in Lafayette Parish; correct?
A. Correct.
Q. Now, you’re pregnant with his child now and you’re telling him no; is that correct? You’re telling him no you’re going to have a relationship with Doug Blank and you don’t care. That’s what you were telling him?
A. After Doug got out of rehab? Yes.
Q. Yeah, just walked out of rehab. He didn’t complete rehab.
A. No, he did not complete rehab. He’s in another treatment.
Q. Well, at the time he didn’t complete his treatment program at Home of Grace, no?
A. No.
Q. No. He walked out of that, he didn’t complete it.
A. For his own reasons.
|1rQ. Okay, so here’s a man who’s admitted that he’s on drugs, who walks out of treatment, who’s been in prison for seven years and has a multiple arrest record and convictions, 'and you’re telling the father of these three children that no, I think Mr. Blank’s as asset to these children and I want him to be able to see all of my children. How do you justify that?
A. Well, Doug Blank was not a problem when Stuart and I were together and we would have Sunday dinners at Doug’s parent[’]s house.
Q. After you filed the divorce, was there Sunday dinners at the parent’s house?
A. Sunday dinners.
Q. Sunday dinners all the way until December when we had to file an order, a stay away order.
A. Right.

It was later established during Stuart’s testimony that he did not have Sunday dinners with Kimberly and Doug’s parents. Kimberly’s attorney made it clear that Kimberly was not referring to Stuart in her response to his attorney’s question despite both the judge and Stuart’s attorney’s understanding to the contrary. Stuart verified when he testified that he did not have Sunday dinners with Doug’s parents as Kimberly had stated.

Kimberly then explained that her daughter with Doug lives in Crowley with Kimberly’s parents where she attends Catholic school. Although this child is not Stuart’s child he had always paid her tuition to Catholic school just as he did for his own children. Stuart testified he treated this child as his own having raised her as a father since she was a year old. According to Kimberly, when she left Stuart she and Doug got together and no longer allowed Staurt to see the child. This is when Stuart stopped paying her tuition. At that point the child was living with her grandparents. Kimberly’s sister began paying the tuition because, according to | ^Kimberly, neither she nor Doug could afford to pay the child’s tuition. At some point later, according to Kimberly, Doug began helping her sister to pay the child’s tuition and she continued to live with her grandparents.

Stuart had an entirely different understanding concerning Kimberly and Doug’s romantic involvement, and Doug’s fitness to be around Stuart’s children. When asked about the months leading to their physical separation and Kimberly’s filing for divorce Staurt testified as follows:

Q. Okay. In the months preceding that [the filing of the petition for divorce] was she having more and more frequent contact with Mr. Blank?
A. To my knowledge, yes.
Q. Okay. At any time during that period did she tell you, you know what, it’s over and I don’t love you anymore?
A. Yes.
Q. Did she tell you that more than once?
A. She told me that on numerous occasions.
Q. Did she ask you to leave?
A. She asked me to leave on numerous occasions.
Q. Okay. And did you in fact leave?
A. I did not until she left and when she left I decided that it would be better for the kids to not be disrupted so I told her I would leave.
Q. Okay. And so she moved back into the house.
A. She never moved out. She just—for the weekend getaway.
Q. Okay. And so you agreed to move then.
A. I told her that for the kids[’] sake I would leave.
Q. Okay. And then you moved to your parent’s house. At some point in time we went to court, maybe it was a few months after that in August of 2014, do you remember that?
li«A. Yes.
Q. Okay. And do you remember coming here and trying to work out a joint custody agreement type plan?
A. Ido.
Q. Let’s talk about that a little bit. At that point I time, you became very adamant about Mr. Blank not being involved in your children’s lives; is that correct?
A. I was adamant about that two months prior whenever actually he showed up at the home whenever Kim wasn’t there and I had my son and nephew, my brother Will’s son, and it was about 10:30 at night unannounced visit, somebody knocking on the front door and I had a conversation with him. I don’t really know of his reason to show up. He was saying that Kim and I’s arguing was affecting his daughter and he wanted to visit about it. So I invited him in, the boys were sleeping. We visited about it. And I noticed something wasn’t right, you know. Coming from that conversation that we had that he was on a rant. He told of times that he was, you know, talked about drugs, talked about times he wanted to commit suicide, just very distraught in my opinion.
I was quizzing him as to his relationship or his interaction with Kim and at first he denied it, but then after a few minutes of the conversation it was apparent that they had been having interactions, apparent. I actually think that Kim may have sent him over there. I’m not sure. I’m not sure. But after that conversation I suspected him to be on some type of substance. I suspected it. I [did] not know of his full past. I knew that he had done prison time for weapons and drugs. I didn’t know the whole extent of it. I knew what information I gathered from Kim which wasn’t the full story. I don’t have to assume that he was on drugs at that particular point [in] time. Mr. Windham’s report that was filed said that he was on drugs for four months in the summer of 2014 prior to his arrest in August.
A. I asked her from that particular instance that I just testified to is when I started asking her for the kids not to be around him and I’ve asked her—I pleaded with her. I said I do not want them around him and the more I would ask her the more she would go to the opposite . direction.
■Q. Okay. And that’s what resulted in ■ filing the stay away order that was put in place in December of 2014; correct?
|1flA. That is correct.

As we have previously set forth, Mr. Windham’s report on Doug wholly substantiates Stuart’s observations and conclusions. The report chronicles Doug’s lifetime addiction to drugs and alcohol qse and the violent behavior he has engaged in when under the influence of drugs and alcohol. Mr. Windham’s report confirmed Stuart’s opinion that Doug was again using drugs right up to the time Stuart and Kimberly went to court. Mr. Windham concludes in his report that Doug has “a high probability of having a Severe Substance Use Disorder.” He álso found Doug now acknowledges his drug use and recognizes the negative consequences of his drug habit and the negative consequences of his loss of control when using alcohol and/or illicit drugs. After interviewing Doug, Kimberly, and their daughter, and after administering a variety of tests, Mr. Windham concluded he does not believe Doug needs any anger management or domestic violence treatment. He summed up his opinion about Doug in this way (emphasis added):

Doug has no concerning or abnormal history of abusive or violent behaviors while sober and drug-free. Although his violent behavior in Washington Parish was extreme I believe it was a very isolated and drug induced incident. When considering the amount of time that Doug has abused alcohol and drugs during his life that this was the only reported or documented violence by Doug while he was impaired by drugs indicates that Doug is not normally violent or highly aggressive. Alcohol and drug abuse lowers inhibitions and often leads to people doing things that they would like to do but restrain themselves from doing sober. Alcohol and drugs tend to cause an increase in violent and abusive behaviors in people who are predisposed to violence. I believe that if Doug had a violent and abusive nature he would have committed many more acts of violence while impaired. I also believe that he would not have “disappeared” or aVoided being around people that he cares about when he was using drugs if he were predisposed to committing violence. I believe that there is a minimal and less than average risk of Doug harming Kimberly, [E.B.], or Kimberly’s other children.
I do recommend that Doug continue to ivork on his recovery from drug addiction. Doug needs to participate in outpatient \ ^substance abuse treatment mth a substance abuse counselor or a therapist unth experience treating substance abusers.

The trial court found Kimberly was at fault in the breakup of the marriage, apparently based on its determinations of credibility regarding Kimberly and Stuart’s testimony. We cannot say the trial court abused its discretion in this regard and note that the trial judge was in the better position to make this determination. Further, after considering all of the testimony, having observed the demeanor of the witnesses and the behavior of Doug throughout the proceedings, the trial judge concluded that Kimberly’s actions violated .the court’s contempt order. We cannot say the trial judge abused his great discretion in reaching that conclusion. Kimberly not only violated the order multiple times but she admits that she has little regard for the order and remains unwilling to accept the fact, or reasons therefor, that the court has prohibited contact between Doug and the Guinn children. It is noteworthy that Doug’s two children with Kimberly do not reside with him, and their oldest child does not reside with Kimberly but instead lives with her parents who do not allow Doug in their home. The trial court also provided in the judgment that: “all visitation with the minor children, when in the presence of Paul Douglas Blank, shall, at all times, be supervised by a competent adult.

Kimberly asserts the trial court erred in naming Stuart domiciliary parent and in “granting [Kimberly] only limited visitations instead of equal time sharing between the mother and her children...” We have already determined that the. first stipulated agreement regarding custody was a valid consent judgment. It was not a considered decree. Therefore, the “party seeking the modification of custody must prove that there has been a material change in circumstances since the original |¾1 decree as well as prove that the proposed modification is in the best interest of the child. Aucoin [v. Aucoin, 02-756 (La.App. 3 Cir. 12/30/02)], 834 So.2d 1245.” Moss v. Goodger, 12-783, p. 5 (La.App. 3 Cir. 12/12/12), 104 So.3d 807, 811. When reviewing child custody determinations we review the facts presented in the record in order to determine the reasonableness of the trial court’s findings.

The trial court is in the best, position to ascertain the best interest ;of the child which is the paramount consideration in determining child custody. La.Civ.Code art. 131; Evans v. Lungrin, 97-541 (La. 2/6/98), 708 So.2d 731. Accordingly, the trial court’s determination regarding child custody is entitled to great weight and will not be disturbed on appeal absent a clear abuse .of discretion. Aucoin v. Aucoin, 02-766 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245. A trial court’s determination of a child’s best interest is usually based heavily on factual findings. Henry v. Henry, 08-689 (La.App. 1 Cir. 9/23/08), 995 So.2d 643. It is well settled that an appellate court cannot set aside a trial court’s factual findings in the absence of manifest error or unless the findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record clearly establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, DOTD, 617 So.2d 880, 882 (La. 1993). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced it would have weighed the evidence differently had it been the trier of fact. Rosell, 549 So.2d at 844. An appellate court, however, is not compelled to slavishly rubberstamp a trial court’s finding. See, Butler v. Zapata Haynie Corp., 92-71 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274, unit granted in part, judgment amended by, 94-1171 (La. 7/5/94), 639 So.2d 1186, cert. denied, 513 U.S. 1017, 115 S.Ct. 579, 130 L.Ed.2d 494 (1994). Indeed, an appellate court is constitutionally mandated to review facts. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099 (La. 7/5/94), 639 So.2d 216.

Moss, 104 So.3d at 810-11.

Our review of this record discloses the trial court’s findings are reasonably supported by the facts and are not manifestly erroneous. The trial court’s finding Kimberly in contempt of its ruling barring contact between Doug and the Guinn children takes on added significance in this matter. Louisiana Revised Statute 13:

1224611 provides in pertinent part: “A pattern of willful and intentional violation of this Section, without good cause, may constitute a material change in circumstances warranting a modification of an existing custody or visitation order.” We have already determined that the trial court’s ruling in this regard is well-supported by the record. The trial court emphasized to Kimberly the importance of obeying this order yet she willfully disobeyed. Kimberly has shown that she has little regard for the trial court’s order prohibiting contact between Doug and the Guinn children. She admitted to repeated violations of the order, but more importantly, she admits to her unwillingness to see the need for such order. She also demonstrates a lack of mature responsibility as the adult in the room where this prohibition is concerned, and instead explains her willful behavior by asking the' court how it can expect these young children to understand the reasons for this prohibition. It is not necessary that these young children grasp the importance of the court’s order. It is, however, necessary that Kimberly understand the need for this order and understand that she must respect the court’s order based on its finding of what is in the best interest of her children. It is this admitted lack of understanding and demonstrated lack of respect for authority that has lead the trial court to its conclusions. It seems Kimberly places her romantic, or romanticized, feelings for Doug ahead of the welfare of her minor children. The trial court was in the best position to make the difficult determinations of credibility of the witnesses who testified in this matter, and we cannot say, after a thorough review of the record, that those determinations indicate any abuse of the trial court’s discretion much less find any manifest error in the trial court’s ruling.

Stuart’s testimony is convincing and is buttressed by Kimberly’s own testimony and other witnesses, as well as by other evidence including Mr. 1 ^Windham’s report. Doug’s longstanding drug use is worthy of consideration especially in light of his behavior when these proceedings began. Troubling, too, is Kimberly’s history of drug use especially when coupled with her history concerning Doug. She has chosen to continue her association with Doug, and when he was released from prison she chose a renewed intimate involvement with him over her marriage and family which quickly led to the birth of another child for Doug. As of the latest court appearance Kimberly has no plans to marry Doug and has made no progress toward employment or housing. Stuart demonstrated a change in circumstances that warranted the court making him domiciliary parent. The trial-court maintained joint custody but placed more limitation on Kimberly’s visitation which we cannot say is unreasonable considering the facts presented. In its reasons for judgment the trial court chronicled the nonexclusive factors listed in Louisiana Civil Code Article 134 that it considered in determining what would be in the best interest of these children, to wit:

[T]he love, affection, and other emotional ties between each party and the child; the capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs; the moral fitness of each party insofar as it affects the welfare of the child; the mental and physical health of each party, and the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party. The trial judge was in the best position

to apply these and other factors in making these determinations. Our review of the entire record reveals the trial court could reasonably reach its conclusions and we find no manifest error in its rulings.

The costs of this appeal are assessed against Kimberly Hensgens Guinn.

AFFIRMED.

      . Unlike many district courts in this circuit, the 31st Judicial District Court for the Parish of Jefferson Davis has only one judge and has no hearing officers, thus, the trial judge in this case presided over all conferences, hearings, and trials in this case.


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    Bruce SCHMIT, Jr., Individually and on behalf of his Minor Daughters, Samantha M. Schmit and Bailey A. Schmit v. Setried TJITANDI, Qualified Cable Contractor, LLC and Progressive Insurance Company
    NO. 2016 CA 1431
    Court of Appeal of Louisiana, First Circuit.
    June 2, 2017

      Jack E, Truitt, Pamela S. Chehardy Croft, Amber L, Mitchell, Peter M. Gaha-gan, Covington, Louisiana, Counsel for Plaintiff/Appellant, Bruce'Schmit, Jr„ individually and on behalf of his minor daughters, Samantha M. Schmit and Bailey. A. Schmit .■ > .
    David J. Schexnaydre, Mandeville, Louisiana, Counsel for Defendants/Appellees, Progressive Insurance Group, Qualified Cable Contractor, LLC, and Setfried Tji-tandi
    - BEFORE: HIGGINBOTHAM, ■ ' THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

|2The plaintiff-appellant, Bruce Schmit, Jr., individually and on behalf of his minor daughters, Samantha M.' Schmit and Bailey A. Schmit, appeals the trial court’s ruling on opposing motions- for summary judgment rendered in favor of the defendants-appellees, Setfried Tjitandi, Qualified Cable Contractor, LLC (“Qualified”), and Progressive Insurance Company (“Progressive”). For the following reasons, we reverse in part, affirm in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On August 20, 2014, Mr. Schmit was involved in an automobile accident that occurred during the course and scope of his employment with Cable Marketing Installations, Inc. (“CMI”). Mr. Schmit sustained significant bodily injuries after being struck by a 2005 Chevrolet Express van that was owned by Qualified, insured by Progressive, and driven by Mr. Tjitan-di. Thereafter, on February 9, 2015, Mr. Schmit filed a tort action seeking damages against the defendants. Mr. Schmit claimed that the accident was caused by the negligence of Mr. Tjitandi, whom he alleged failed to follow the proper procedure of circling the van to ensure there were no equipment or other hazards outside of his line of site. Mr. Schmit further asserted that Mr. Tjitandi was an employee of Qualified acting within the course and scope of his employment with Qualified at the time of the accident; Mr. Schmit therefore claimed that Qualified and its liability insurer, Progressive, should be held vicariously liable to him.

On April 27, 2015, the defendants answered Mr. Schmit’s petition for damages and raised several affirmative defenses thereto, including, in pertinent part, the affirmative defense of “injury by fellow servant.”

|sOn January 27, 2016, following certain pre-trial matters not at issue on appeal, Mr. Schmit filed a motion for partial summary judgment against the defendants. Mr. Schmit claimed that there were -no genuine issues of material fact and that he was entitled to judgment as a matter of law with respect to the issue of the defendants’ affirmative defense of injury by fellow servant, which Mr. Schmit styled as the “borrowed employee” defense. In support of his motion for partial summary judgment, Mr. Schmit argued that Mr. Tjitandi was employed by Qualified at the time of the accident and was not an employee or borrowed employee of CMI.

On March 14, 2016, the defendants filed a cross-motion for summary judgment and opposition to' Mr. Schmit’s motion for partial summary judgment, seeking a judgment declaring the Louisiana Workers’ Compensation Act (“LWCA”), La. R.S. 23:1020.1, et seq., to be the exclusive remedy available to Mr. Schmit. In their memorandum in support of their motion for summary judgment, the defendants specifically stressed that they had not claimed, and were not claiming, that Mr. Tjitandi was a borrowed employee of CMI. Rather, the defendants submitted that Mr. Tjitandi was a “full on employee” of CMI operating within the course and scope of his employment at the time of accident in accordance with the factors set forth in Hickman v. Southern Pacific Transport Co., 262 La, 102, 262 So.2d 385 (1972). Mr. Schmit opposed the defendants’ cross-motion for summary judgment.

On June 20, 2016, the opposing motions for summary judgment came before the trial court for a hearing. In open court, the trial court orally denied Mr. Schmit’s motion for partial summary judgment and granted the defendants’ cross-motion for summary judgment. Thereafter, on. July 25, 2016, the trial court signed a final judgment denying Mr. • Schmit’s motion 14for partial summary judgment, granting the defendants’ cross-motion for summary judgment, and ordering the dismissal of all of Mr. Schmit’s claims with prejudice. Mr. Schmit appeals.

ASSIGNMENTS OF ERROR

Mr. Schmit does not present numbered assignments of error in brief, but nevertheless specifies, in paragraph form, the following issues for our appellate review: 1) the trial court erred in denying his motion for partial summary judgment as to the affirmative defense of. injury by a fellow servant being inapplicable and irrelevant; 2) the trial court erred in granting the defendants’ motion for summary judgment dismissing his claims in light of the deposition testimony and affidavits demonstrating that Mr. Tjitandi was ah employee of Qualified and not CMI; and 3) in the alternative, the trial court erred in granting the defendants’ motion for summary judgment dismissing his claims in light of the deposition testimony and affidavits demonstrating that there are material issues of fact as to Mr. Tjitandi’s employment status.

STANDARD OF REVIEW

In our review of the trial court’s ruling on the opposing motions for summary judgment, we use the same criteria that govern- the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. See Supreme Services & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La. 6/22/07), 958 So.2d 634, 638. Because it is the substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law ^applicable to the case. See Smith v. Berteau, 98-1438 (La.App. 1 Cir. 6/26/99), 739 So.2d 269, 272.

DISCUSSION

Mr. Schmit disputes the correctness of the trial court’s ruling on the opposing motions for summary judgment. Initially, we note that the determinative issue set forth in the opposing motions for summary judgment concerns the nature of the relationship between Mr. Tjitandi and Mr. Schmit at the time of the accident on August 20, 2014. More particularly, notwithstanding Mr. Schmit’s arguments' relative to the issue of the borrowed employee defense, in light of the judicial admission of the defendants in their motion for summary judgment, the singular question presented on appeal is whether the trial court correctly determined that the defendants were entitled to judgment as a matter of law declaring Mr. Tjitandi to be an employee of CMI, and, therefore, a co-employee of Mr. Schmit entitled to tort immunity under the LWCA.

Generally speaking, an employee who is injured in an accident while in the course and scope of his employment is limited to' the recovery of workers’ compensation benefits as per the following provisions of the LWCA:

A. (l)(a) Except for intentional acts ... the rights and remedies herein granted to an employee or his dependent on account of an injury, or compen-sable sickness or disease for which he is entitled to compensation under [the LWCA], shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless, such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
L(b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer ... or employee of such employer ... under any dual capacity theory or doctrine.

La. R.S. 23:1032 (emphasis added). Thus, it is well-settled that workers’ compensation is an employee’s exclusive remedy against his fellow worker and that the law extends tort immunity to co-employees. See Jewell v. Haire, 03-1826 (La.App. 1 Cir. 9/17/04), 887 So.2d 490, 492; Champagne v. Am. Alt. Ins. Corp,, 12-51 (La.App. 3 Cir. 6/20/12), 94 So.3d 960, 962, aff'd, 12-1697 (La. 3/19/13), 112 So.3d 179.

The distinction between an employee and an independent contractor for purposes of workers’ compensation is a factual determination that must be made on a case-by-case basis. Mullen v. R.A.M. Enterprises, 02-1157 (La.App. 1 Cir. 3/28/03), 844 So.2d 376, 378 (citing Tower Credit, Inc. v. Carpenter, 01-2875 (La. 9/4/02), 825 So.2d 1125, 1129). In Hickman, 262 So.2d at 390-91, the Louisiana Supreme Court found that the following factors to be relevant in determining whether the relationship of principal and independent contractor exists: 1) there is a valid contract between the parties; 2) the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; 3) the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; 4) there is a specific price for the overall undertaking agreed upon; and 5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. In other words, to determine whether someone is an employee or an independent contractor, the court should |7examine the degree of control over the work. See Bouquet v. Williams, 16-0134 (La.App. 1 Cir. 10/28/16), 206 So.3d 232, 237, writs denied, 16-2077 and 16-2082 (La. 1/9/17), 214 So.3d 870 and 214 So.3d 871.

In the case at bar, the uncontested evidence admitted for purposes of the motions for summary judgment establishes that Mr. Tjitandi was first hired by Qualified in April or May of 2013. In or around this same time period, CMI entered into a contract with a third-party, Charter Communications, to provide technician services for the installation and repair of cable systems. In order to fulfill its obligations under that initial contract with Charter Communications, on October 8, 2013, CMI entered into a subcontractor agreement with Qualified (“the CMI/Qualified contract”). Mr. Tjitandi was working as a field technician with Mr. Schmit, a direct employee of CMI, pursuant to the terms of the CMI/Qualified contract on the date of the accident.

Notably, however, the trial court was also presented with significant conflicting evidence on the motions for summary judgment. For example, in support of his motion for partial summary judgment, Mr. Schmit presented affidavits executed by three individuals, Mitchel Clements (an employee of CMI), Chris Mosley (an employee of CMI), and Robert J. Kellum (an employee of Qualified), all of whom attested that Mr. Tjintadi was not an employee of CMI at the time of the accident. Conversely, the defendants offered into evidence, amongst other things, an excerpt from the deposition of Mr. Tjitandi, wherein he indicated that the day-to-day operations of his employment were primarily governed and controlled by CMI and its employees, such as Mr. Schmit, whom Mr. Tjitandi testified he considered to be his supervisor.

[^Furthermore, the very terms of the CMI/Qualified contract create obvious and unresolved questions concerning which entity possessed the right to control and supervise the employees of Qualified working with CMI under the terms of the CMI/Qualified contract. Indeed, while the CMI/Qualified contract expressly identifies Qualified and its employees as “sub-contractors” and “independent contractors,” and provides that Qualified alone ⅛ responsible for the supervision of its employees, the CMI/Qualified contract also indicates that CMI may have had some degree of control over the firing of employees it found to be unsatisfactory. Specifically, Article 4 of the CMI/Qualified contract, enti-tied “Rights and Obligations,” provides as follows:

SUB-CONTRACTOR [(i.e., Qualified),] agrees that in the execution of the work it will employ only such employees as CONTRACTOR [(La, CMR] deems competent .and, upon request of CONTRACTOR, will dismiss from the work such employees it may deem incompetent, careless, insubordinate, or inimical to the public interest..,.
* * *
.It is specifically agreed and understood ■between the CONTRACTOR and SUBCONTRACTOR that the' SUB-CONTRACTOR is an independent contractor as that term is legally defined. The duties and responsibilities of.the SUBCONTRACTOR are contained in this CONTRACT. The SUB-CONTRACTOR alone shall hire, fire, direct, supervise, and pay its employees. The SUBCONTRACTOR shall be wholly and solely responsible for all ... legislated responsibilities of the SUB-CONTRACTOR, as an independent contractor and employer.

In accordance with the foregoing, it is apparent that there are unresolved issues of triable fact regarding the nature of the relationship between Mr. Tjitandi and CMI; and, thus, we find that there are also disputed issues of triable fact regarding the nature of the relationship between Mr. Tjitandi and Mr. Schmit, the exclusivity of the remedies established by the LWCA, and the defendants’ affirmative defense of injury 19by fellow servant. Consequently, the trial court erred in granting the defendants’ cross-motion for summary judgment ordering the dismissal • of Mr. Schmit’s claims with prejudice.

DECREE

For the foregoing reasons, we reverse the trial court’s July 25, 2016 ruling to the extent that the trial court granted the defendants’ motion for summary judgment and ordered the dismissal of Mr. Schmit’s claims with prejudice; we affirm the trial court’s July 25, 2016 ruling to the extent that it denied Mr. Schmit’s motion for partial summary judgment;.: and we hereby remand this case to the.trial court for further proceedings. The costs of this appeal are to be assessed in equal measure to the plaintiff-appellant, Bruce ‘ Schmit, Jr., individually and on behalf of' his minor daughters, Samantha M. Schmit and Bailey A. Schmit, and the defendants-appel-lees, Setfried Tjitandi, Qualified Cable Contractor, LLC, and Progressive Insurance Company.

REVERSED IN PART; AFFIRMED IN PART; REMANDED.

      . Setfried Tjitandi's first name is incorrectly spelled "Setried” in the petition;, herein, we refer to him using the correct spelling of his name,

      . Louisiana Code of Civil Procedure art. 966, regarding summary judgment, was amended and reenacted by La. Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The legal standard to be used by the courts in granting a- motion for summary judgment remains unchanged by the recent legislative amendments to Article 966. See La, C.C.P. art. 966, cmt. (b) (2015).


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Richard Wayne MOSLEY, Appellant
    No. 51,168-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017

      LOUISIANA APPELLATE PROJECT, By: Annette Fuller Roach, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, TOMMY JAN JOHNSON, Assistant District Attorney, Counsel for Ap-pellee
    Before MOORE, GARRETT, and STONE, JJ.
   STONE, J.

jjThe defendant, Richard Wayne Mosely, was charged by bill of information with attempted first-degree murder in violation of La, R.S. 14:27 and 14:30. Following a jury trial, Mosely was found guilty as charged. The trial court adjudicated Mosely a fourth-felony offender and sentenced him to life imprisonment without the benefit of probation or suspension of sentence. For the following reasons, we affirm Mosely’s conviction and amend his life sentence at hard labor to be served without benefit of probation, parole, or suspension of sentence.

FACTUAL AND PROCEDURAL HISTORY

On January 11, 2014, at approximately 2:00 a.m,, Nekedra Mosely ,(“Nekedra”) returned home to her apartment at Southern Oaks: Apartments in Shreveport, Louisiana, Before exiting her vehicle to go inside, Nekedra called Shreveport Police and asked if an officer could come canvass the apartment complex to see if her estranged husband, Richard Mosely (“Mosely”), was waiting for her in the parking lot. Nekedra was informed that an officer would arrive shortly and she preceded to her apartment.

Once inside, Nekedra heard knocking on her window and saw Mosely standing outside. He asked her to let him in, but Nekedra refused and called 911. Mosely then kicked in Nekedra’s front door. The door frame was splintered with the door chain still intact. As Nekedra struggled to push the door shut, Mosely reached inside and slashed Nekedra’s throat with a box cutter. Mosely then entered her apartment and proceeded to use the box cutter to continue to inflict numerous' deep lacerations to Nekedra’s face, ear, arms, upper torso, and hands. Nekedra was able to escape her apartment and seek refuge in the apartment of her | .¿.downstairs neighbor until police arrived. Nekedra was transported to the hospital and, despite suffering massive blood loss, survived the attack.

Mosely was charged by bill of information with the attempted first-degree murder of Nekedra. Following a two-day jury trial, Mosely was found guilty as charged. The state subsequently filed a habitual offender bill of information charging Mosely as a fourth-felony habitual offender. In turn, Mosely moved to quash the habitual offender bill, arguing the state had not proved his commission of the predicate offenses.

Additionally, Mosely filed a motion for new trial and a motion for post-verdict judgment of acquittal. The trial court denied Mosely’s motions and adjudicated him a fourth-felony habitual offender. Mosely was sentenced to life imprisonment without the benefit of probation or suspension of sentence. Mosely subsequently filed a motion to reconsider the sentence, arguing it was unconstitutionally harsh and.excessive. The trial court denied the motion. Mosely now appeals. .. ■

DISCUSSION •

Motion for New Trial

In his first assignment of error, Mosely argues the trial court erroneously denied his motion for new trial. In particular, he asserts three reasons why the motion should have been granted: (1) tHe trial court improperly denied his request for five jury instructions related to eyewitness identification; (2) the trial court improperly allowed-the state to elicit hearsay evidence during trial; and (3) the trial court improperly allowed testimony from Neke-dra that constituted inadmissible other crimes evidence against Mosely.

La. C. Cr. P. art. 851 sets forth the grounds for granting a new trial:

|SA. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. .
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

The trial judge has much discretion in ruling on a motion for a new trial and, upon review, an' appellate court may only set aside the judgment upon a finding that the trial judge exercised his discretion in an arbitrary manner. State v. Hammons, 597 So.2d 990 (La. 1992); State v. Lewis, 2005-0973 (La. App. 4 Cir. 05/24/06), 943 So.2d 1100, writ denied, 2006-1621 (La. 03/09/07), 949 So.2d 437.

Jury Instructions

Mosely claims the trial court should have included his special jury charges concerning eyewitness identification in the jury instructions because the evidence presented at trial was inadequate to prove he was the individual who assaulted Nekedra. Mosely asserts Nekedra’s statement that he was the person who attacked her, was unreliable given her intoxication at the time of the attack.

Prior to trial, Mosely proposed the following special jury charges regarding identification:

I ¿PROPOSED JURY INSTRUCTION NUMBER 1;
When the key issue in the case is identification, the State is required to negate any reasonable probability of misidenti-fication in order to carry its burden of proof. State v. Bright, 98-0398 (La. 04/11/00), 776 So.2d 1134, 1147.
PROPOSED JURY INSTRUCTION NUMBER 2:
A five-factor test for testing the reliability of an identification was enunciated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972):
(1) the witness’ opportunity to view the assailant at the time of the crime;
(2) the witness’ degree of attention;
(3) the accuracy of the witness’ prior description of the assailant;
(4) the witness’ demonstrated level of certainty; and
(5) the time lapse between the crime and the confrontation.
PROPOSED JURY INSTRUCTION NUMBER 3:
The issue of the admissibility of expert testimony eyewitness identification is not a new issue for the Louisiana Supreme Court. Rather, it is undisputed that the admissibility of expert testimony on eyewitness identification has been uniformly barred by this Court on the occasions the issue has been raised. State v. Young, 09-1177 (La. 4/5/10), 35 So.3d 1042, 1047.
PROPOSED JURY INSTRUCTION NUMBER 4:
A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed. 2d 1149 (1967).
PROPOSED JURY INSTRUCTION NUMBER 5:
“The vagaries of eyewitness.identification are well-known; the annals of criminal law are rife-with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967).

The trial court denied the recitation of Mosely’s special charges to the jury but did relate the following pertinent charges to the jury:

In order to prove guilt beyond a reasonable doubt the State must prove that Mosely is the perpetrator of the crime. It is your duty to determine the weight and credibility of the evidence. You may take into consideration the probability or improbability of the statements ■ of the witnesses, their opportunities for knowledge- of the facts to which they testify, their reliability in noting and remembering facts, their demeanor on the stand, the interest or lack of interest they have shown in the case and every circumstance surrounding the 1 Bgiving of their testimony which may aid you in weighing their statements. If you believe that any witnesses in the case have willfully and deliberately testified falsely to any material fact for the purpose of deeeiv-'ing you, then you are justified in disregarding the entire testimony of such witness as proving nothing and as not worthy of belief. You have the right to accept as true or reject as false the testimony of any witness in whole or in part as you are impressed with his truthfulness.

The trial court found that Mosely’s proposed special jury charges were more suitable to a case where the victim or eyewitnesses did not know the perpetrator, unlike in Mosely’s case. The trial court also determined the second proposed jury instruction, containing the five-factor test, was more appropriate for a case where a lineup or identification procedure was used; The- trial court explained that Mosely’s proposed instructions were “a little bit too specific” and nearly constituted a comment on the evidence.

La. C. Cr. P. art. 807 provides:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

Errors in jury instructions are subject to the harmless error analysis. The failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Tate, 01-1658 (La. 05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed. 2d 248 (2004); State v. Tucker, 49,950 (La. App. 2 Cir. 07/08/15), 170 So.3d 394.

|fiNekedra testified that on the night in question, her shift at her place of employment ended at 11:15 p.m., and she and three coworkers went to a casino where she gamed and consumed alcoholic beverages. The group left the casino sometime around 1:00 a.m. Nekedra claimed she was fine to drive home and arrived at her apartment complex around 2:00 a.m. While walking up the stairs of her apartment complex, Nekedra saw Mosely walking toward her. Once inside her apartment, Nekedra. heard knocking on the window and saw Mosely. Nekedra called 911. A recording of her 911 call was played in open court. In the recording, Nekedra can be heard telling the operator that Mosely was outside her door and that she needed the police to come to her apartment. After Mosely kicked in Nekedra’s door and began attacking her, Nekedra placed a second 911 call. That recording was also played for the jury and Nekedra can be heard saying, “Richard, please” and “Richard, stop.”

Shreveport Police Officer Colby Moss (“Officer Moss”) was the first police officer to arrive at the scene. Officer Moss made contact with Nekedra and explained that, based on her injuries, he believed she was dying. He asked her who had attacked her and she responded that hér husband, Mosely, was responsible for her injuries.

Shreveport Police Detective Chad Dailey (“Detective Dailey”) testified that because Nekedra told Officer Moss that her husband attacked her, a fact which was corroborated by Nekedra’s neighbor, Jeremiah Pennington (“Pennington”), he did not feel he needed to show either Nekedra or Pennington a photographic lineup to identify the perpetrator. Detective Dailey spoke with Nekedra about a month after the attack when she was released from the hospital and she again stated Mosely was the person who attacked her.

|7Pr. Britni Teal-tenard (“Dr. Teal-te-nard”), the emergency room physician who treated Nekedra when she arrived at the hospital, testified that she ordered a toxicology screening on Nekedra. The screening indicated Nekedra had a blood-alcohol level of .113. Dr. Teal-tenard explained that a .113 blood-alcohol level, depending on the person, would have a-depressant effect, but “not to the point that they don’t know what’s happening in their surroundings.” The toxicology results also indicated Nekedra had cocaine metabolites in her system. However, the presence of cocaine metabolites in Nekedra’s urine did not necessarily indicate Nekedra had recently ingested cocaine, but would indicate ■ she ingested cocaine within the last three days. Dr. Teal-tendard opined that the cocaine, a stimulant, may have actually somewhat counteracted the effects of the alcohol and heightened Nekedra’s senses.

Despite Nekedra’s toxicity at the time of the incident, her identification of Mosely as the perpetrator was bolstered by several other witnesses’ identification of Mosely. Pennington, Nekedra’s downstairs. neighbor, testified that on January 11, 2014, at around 2:00 a.m., he heard a loud sound come from upstairs. Pennington went outside, looked up toward Nekedra’s second-story apartment,, and .saw Mosely and Nekedra at her door. Nekedra told Mosely to get out and Mosely told Pennington that someone had kicked in the door. Pennington returned to his apartment and called the police. Pennington went back outside just in time, to see Mosely run past his door, their eyes locking as Mosely passed. Nekedra then slowly came down the stairs, holding the railing and asking Pennington to help her. He recalled she, was wet with blood and had cuts all over her body. Pennington provided police with a photograph of Mosely that was retrieved from Pacebook. Pennington confirmed the photograph -was of Mosely and that Mosely was the person he saw attacking Nekedra.

IsDominic Baker (“Baker”) testified that he lived across the courtyard from Neke-dra. on the morning of the attack. At approximately 2:00 a.m., he heard a woman screaming so he looked out his window. He recalled seeing a woman on her knees screaming as a man stood over her swinging his arms. He could not see the man’s face. Baker went back inside to get his shoes and when he came back out, the man was coming down the stairs. Baker testified that he and the man made eye contact for a brief moment. Baker remembered seeing Mosely in the apartment complex before and identified Mosely in open court as the man he saw attacking Nekedra.

After a review of the record, we find the trial court did not abuse its discretion in denying Mosely’s special jury charges. The trial court’s jury charges sufficiently advised the jury regarding the state’s burden of proving that Mosely was the person who attacked Nekedra and adequately informed the jury of its duty to consider the credibility of each of the state’s witnesses, including “their reliability in noting and remembering facts.” Nonetheless, even if the trial court’s actions with regards to the special jury charges could be construed as error, any such error is harmless in light of the overwhelming evidence of Mosely’s guilt.

Hearsay

Mosely argues the trial court allowed the state to elicit inadmissible hearsay evidence in the form of statements made by Baker.

| (¡Hearsay is an oral or written assertion, other than one made by the de-clarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(A)(1) and (C). Hearsay evidence is not admissible, except as otherwise provided by the Code of Evidence or other legislation. La.. C.E. art. 802; State v. Wade, 39,797 (La. App. 2 Cir. 08/09/05), 908 So.2d 1220, writs denied, 06-0109, 06-0148 (La. 06/02/06), 929 So.2d 1251. Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability. State v. Martin, 458 So.2d 454 (La. 1984); Wade, supra.

Where , an investigating officer testifies concerning events leading to the arrest of a defendant, statements made to him by others during the course of the investigation are not hearsay, if they are not offered for the truth' of the matter asserted, but merely to explain the officer’s actions. State v. McNair, 597 So.2d 1096 (La. App. 2 Cir. 1992), writ denied, 605 So.2d 1113 (La. 1992). In othdr words, where the officer does not testify with regard to the substance of what another person told him, but with regard to what he did in response to that information, the testimony is not considered hearsay. State v. Lloyd, 48,914 (La. App. 2 Cir. 01/14/15), 161 So.3d 879, writ denied, 15-0307 (La. 11/30/15), 184 So.3d 33, recon. denied, 15-0307 (La. 02/19/16), 186 So.3d 1176, cert. denied, - U.S. -, 137 S.Ct. 227, 196 L.Ed. 2d 175 (2016).

However, the fact that an officer acted on information obtained during the investigation may not be used as an indirect method of bringing before the jury the substance of the out-of-court assertions of the defendant’s guilt that would otherwise be barred by the hearsay rule. State v. Broadway, 96-2659 (La. 10/19/99), 753 So.2d 801, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed. 2d 466 (2000). Nevertheless, the erroneous admission of hearsay evidence does not require a reversal of the defendant’s conviction if the error is harmless beyond a reasonable doubt. Reversal is mandated only when there is a reasonable possibility that the hearsay evidence might have contributed to the verdict. State v. Wille, 559 So.2d 1321 (La. 1990); State v. Lloyd, supra.

At trial, Officer Tillmon testified that he responded to Southern Oaks Apartments on January 11, 2014, to help investigate a stabbing. Officer Tillmon was tasked with canvassing the area for witnesses when he came into contact with Baker. When asked by the prosecutor what Baker told him during the course of his investigation, Mosely objected on grounds that Baker’s statement constituted hearsay. The trial court overruled Mosely’s objection, explaining that since Baker would be testifying at trial he would be subject to cross-examination and the rules of impeachment.

Officer Tillmon went on to testify that Baker said he lived across the apartment complex courtyard from Nekedra. On the night Nekedra was assaulted, Baker saw a black male, identified only by the last name “Mosely” pushing and hitting a female. He later observed the black male, dressed in all black, fleeing the scene.

We find the trial court had a reasonable basis for concluding Baker’s out-of-court statement did not constitute inadmissible hearsay. Officer Tillmon interviewed Baker as part of the investigation into Nekedra’s attempted murder. Baker’s description of the man who assaulted Nekedra undoubtedly assisted police in their investigation. Baker was called as a witness by the state and was subject to cross-examination by the defense. Baker admitted at trial that he denied knowledge of the identity of the man he saw attacking Nekedra in his initial [^recorded statement to the police and was given the opportunity to clarify the differences in his statements. Notwithstanding, whether the state’s elicitation of Baker’s statement to Officer Tillmon at trial was done for the purpose of explaining the actions of police, or to prove Mosely’s identity, any error in the admission of Baker’s out-of-court statement was harmless considering the overwhelming testimony that Mosely was the offender.

Other Crimes Evidence

Mosely asserts the trial court erred by allowing the state to present other crimes or bad acts evidence without providing prior notice of its intention to do so. Specifically, Mosely cites Nekedra’s testimony that Mosely had called her repeatedly on January 10, 2014, harassing and threatening her. Mosely also points to Nekedra’s testimony that she had previously filed several police reports on Mosely-

In order to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La. C. Cr. P. art. 841(A). It is well established that a defendant is limited to the grounds for objection articulated at trial and a new basis for an objection may not be raised for the first time on appeal. State v. Delaney, 42,990 (La. App. 2 Cir. 02/13/08), 975 So.2d 789.

La. C.E. art. 404(B) provides, in pertinent part:

(1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for |12such purposes, or when it relates to conduct that constitutes cm integral part of the act or transaction that is the subject of the present proceeding.

(Emphasis added.)

Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146 (La. 1993). This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126 (La. 1973).

Evidence of other crimes, wrongs, or acts may be introduced when it relates to conduct that forms an integral part of the act or' transaction—a matter which is logically relevant to the issues and forms part of the continuous course of the criminal transaction—that is the subject of the present proceedings. See La. C.E. art. 404(B)(1); State v. Colomb, 98-2813 (La. 10/01/99), 747 So.2d 1074. If the state intends to present La. C.E. art. 404(B) evidence, which would be admissible as an integral part of the act, the state is not required to provide the defendant with notice, nor is the trial court required to conduct a Prieur colloquy. La. C. Cr. P. art. 720; State v. Small, 50,388 (La. App. 2 Cir. 02/24/16), 189 So.3d 1129, 1134, writ denied, 16-0533 (La. 03/13/17), 212 So.3d 1158.

At trial, during the playing of one of Nekedra’s recorded 911 calls, she could be heard telling the 911 operator that Mosely had been threatening her. After the recording was over, the prosecutor asked Nekedra about the threats she received. The defense did not object to the question and Nekedra explained that “Mosely just kept calling, threatening me, and saying all kind lisof stuff.” Later, the prosecutor again asked Nekedra about any communications she had with Mosely the night before the attack. The defense did not object to the question and Nekedra testified that on the day before the incident, Mosely called her approximately 18 times and text messaged her. During one of the calls Nekedra told Mosely that their relationship was over and to stop calling. When the prosecutor asked Nekedra what Mosely’s reaction was, the defense lodged an objection arguing that Mosel/s statement constituted hearsay. The trial court overruled the objection and Nekedra answered the question, explaining that Mosely reacted to her rejection by telling her, “Bitch, you won’t see daylight.”

During cross-examination, counsel for Mosely asked Nekedra if she and Mosely fought frequently and whether she would typically fight back. Nekedra responded affirmatively to both questions. On redirect, the prosecution, referencing defense counsel’s earlier questioning, asked Neke-dra about the prior fights between herself and Mosely. Nekedra responded that she had “several police reports” on Mosely and that Mosely had injured her before. The defense did not object to the question.

We find that Mosely failed to preserve this issue for appeal. Mosely’s counsel never objected to the use of Nekedra’s 911 calls or the state’s questioning of her on grounds that either would impermissi-bly allow the introduction of other crimes or bad acts evidence in contravention of La. C.E. art. 404(B). Notwithstanding this fact',' evidence of Mosely’s threatening phone calls hours before the attack was admissible under La. C.É. art. 404(B) to show Mosely’s continuous course of conduct in carrying out the attempted murder of Nekedra. As a result, the state was not required 114to give Mosely Prieur notice of its intention to use the prior actions or threats leading up to the horrendous attack.

Based on the above findings and in light of the overwhelming evidence supporting Mosely’s conviction of attempted 'first-degree murder, the jury’s verdict is not contrary to the law and evidence, as required to justify the granting of a motion for new trial in this case. Moreover, considering the 11-1 guilty verdict, it does not appear that any error committed by the trial court tainted the jury. Accordingly, we find there was ■ no abuse of discretion in the trial judge’s denial of the motion for new trial.

Excessive Sentence

Mosely claims his sentence is excessive in light of his prior criminal record. Mosely acknowledges Nekedra suffered severe injuries and was forced to undergo several surgeries, but notes she survived the incident with minor permanent physical injuries.

The test imposed by the reviewing court in determining the exces-siveness 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. Or. P. art. 894.1. The trial court is not required to list every aggravating or mitigating , circumstance so long ¡as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 483 So.2d 688 (La. 1983); State v. Watson, 46,572 (La. App. 2 Cir. 09/21/11), 73 So.3d 471. The articulation of the factual basis for a sentence is the goal of La. C. Or. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La. 1982); State v. Swayzer, 43,350 (La. App. 2 Cir. 08/13/08), 989 So.2d 267, writ denied, 08-2697 (La. 09/18/09), 17 So.3d 388.

The second portion of the test requires that a determination be made regarding the constitutional excessiveness of a sentence. A sentence violates La. Const, art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La. 01/14/03), 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. 01/15/02), 805 So.2d 166; State v. Washington, 46,568 (La. App. 2 Cir. 09/21/11), 73 So.3d 440, writ denied, 11-2305 (La. 04/27/12), 86 So.3d 625.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Williams, 48,525 (La. App. 2 Cir. 11/20/13), 128 So.3d 1250.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7; State v. Diaz, 46,750 (La. App. 2 Cir. 12/14/11), 81 So.3d 228.

As a fourth-felony offender, Mosely was subject to a sentence of not less than 50 years, nor more than life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:27; La. R.S. 14:30; La. R.S. 15:529.1. Mosely asked for leniency based on his age, 39 years old, and his willingness to rehabilitate himself.

11 fiRefore imposing Mosely’s sentence, the trial court noted its review of the sentencing factors enumerated in La. C. Cr. P. art. 894.1 and determined the following factors applied: (1) Mosely’s conduct manifested deliberate cruelty to his victim; (2) Mosely used violence to carry out his crime; (3) the offense resulted in significant permanent injury and economic loss to his victim; and (4) Mosely used a dangerous weapon in the commission of his offense. The trial court found Mosely’s actions to be especially heinous given the previous relationship between Mosely and Nekedra.

Nekedra gave an emotional statement to the trial court detailing the extent of her injuries and impact of Mosely’s actions on her life. Nekedra described her hospital stay following the attack, the physical and psychological trauma she continues to suffer as a result of the assault, and the scars to her face, neck, and arms that persist as a constant reminder of what Mosely did to her. Nekedra takes depression and anxiety medication, and is under the care of a psychiatrist. She suffers permanent nerve damage to her head and hand as a result of the lacerations she sustained.

The trial court sentenced Mosely to life imprisonment without the benefit of probation or suspension of sentence, stating the following:

The Court has made a considered review of the record in this case, a considered review of the evidence, and I find that this is one of the worst, most personal offenses inflicted against another person in my fairly substantial history of dealing with crimes of violence as a lawyer and as a judge. And I do find that based on Mosely’s criminal history in conjunction with the gravity of those offenses that the constitutionally exceptional remedy and sanction of the maximum possible sentence is appropriate in this case.

We find the record supports Mosely’s sentence of life imprisonment. The trial court detailed applicable aggravating factors in support of the sentence. Despite the fairly benign nature of Mosely’s predicate offenses, |17the horrifying details of Mosely’s attempt to murder his wife by repeatedly slashing her body with a box cutter support the trial court’s characterization of Mosely as one of the worst offenders. As such, considering the nature of the crime and the horrendous injuries inflicted upon Nekedra, the life sentence does not shock the sense of justice.

ERROR PATENT

A review of the record reveals one error patent. The trial court sentenced Mosely to life imprisonment at hard labor without the benefit of probation or suspension of sentence. However, Mosely’s sentence also should have been imposed without the benefit of parole.

La. R.S. 14:27 (D)(1)(a) provides:

If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.

Additionally, La. R.S. 15:574.4 (A)(1) provides, in part, “A person convicted of a third or subsequent felony offense shall not be eligible for parole.”

Consequently, we order Mosely’s life sentence at hard labor be served without the benefit of probation, parole, or suspension of sentence. The trial court minutes should be amended to reflect this adjustment of Mosely’s sentence.

^CONCLUSION

For the aforementioned reasons, Mosely’s conviction is affirmed. His sentence is amended to life without the benefit of probation, parole, or suspension of sentence and, as amended, affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . Mosely also alleged the trial court allowed inadmissible hearsay statements made by Lakebra Hart, another one of Nekedra’s neighbors. On March 25, 2015, Mosely filed a motion in limine requesting that the trial court issue an order prohibiting the state or its witnesses from making mention at trial of. a statement given by . Hart wherein she told police that an unknown witness told her that Mosely had attacked Nekedra approximately one week before the January 11, 2014 assault. Mosely asserted the statement constituted inadmissible other crimes evidence and was also hearsay, Prior to trial, the trial court granted the'motion for lack of foundation and failure of the state to provide Prieur notice of its intention to use the evidence .at Mosely’s trial. Hart did not testify at trial and the prior attack was never mentioned at Mosely’s trial. We therefore pretermit any discussion on allegations made by Mosely concerning Hart’s statement.